FACTS ABOUT THE GAME LAWS
By J. CONNELL
“The Game Laws are the tribute paid by the over-worked and over-taxed people of England to the Lords of the Bread—to the predatory classes who have appropriated the land and depopulated the hills and valleys, to increase their own selfish pleasures. The destruction of the Game Laws is as inevitable in the long-run as was the destruction of Slavery, the repeal of the Corn Laws, the overthrow of an alien Church in the sister isle; but the fight will be a stiff one between the freemen of this country and our savage or only semi-civilised aristocracy and plutocracy.”—Robert Buchanan.
By the common law of England and Scotland, following that of Rome, wild animals in a state of nature are common to all mankind. A legal writer says: “By the very nature of the case wild animals cannot be made the subject of that absolute kind of ownership which is generally signified by the term property. The substantial basis of the law of property is physical possession, the actual power of dealing with things as we see fit, and we can have no such power over animals in a state of nature.”
It is, for instance, impossible to confine pheasants, partridges, grouse, etc., to a particular estate, and, taking fences as they are, the same may be said of the great majority of hares and deer in this country. Moreover, the individuals of each species are so much alike that it is impossible for anyone to identify them as his property. All legal writers without exception acknowledge that living wild creatures are not property. Nevertheless, the Game Laws were placed on the Statute Book to establish a proprietary right in those animals, and, as Mr. Barclay, Sheriff of Perthshire, once told a House of Commons Committee, they “put game, which was not property, in a higher scale than property.” They did this by means of a system of licences for killing and selling game, and by making trespass, which, in itself, is only a civil offence, a criminal offence of great magnitude.
At an early stage it was discovered that a free right of hunting was incompatible with the preservation of game in sufficient numbers to afford enough sport to the monarch and the nobles, and accordingly a series of laws known as the Forest Laws were enacted, by means of which certain districts were reserved for purposes of sport to the sovereign. The increase of population soon rendered protection necessary for areas outside the Royal Forests if the supply of game was to be kept up, and the result was a series of enactments known as the Game Laws. It will thus be seen that the right of taking wild animals, which originally belonged to the whole people, was filched from them by a selfish and privileged class, who, we need hardly add, stole the common lands, by means of “Enclosure Acts,” in much the same manner. It is strange but true that, except in Ireland, and in the north of Scotland, the people have come to acquiesce more readily in the robbery of the land than in the robbery of the game.
The Act which is considered the first or oldest of the Game Laws became law in the thirteenth year of Richard II., and it is interesting to observe the reasons for placing it on the Statute Book which the legislators of the time advanced. Said they:
“It is the practice of divers artificers, labourers, servants, and grooms to keep greyhounds and other dogs, and on the holidays when good Christian people be at church, hearing Divine service, they go hunting in parks, warrens, etc., of lords and others, to the very great destruction of the game.”
We know hundreds of districts, from Kent to Caithness, of which the same might be written to-day, thus showing that the Game Laws have utterly failed to obtain a moral sway over the people.
The term “game” includes hares, pheasants, partridges, grouse, black-game, ptarmigan, and bustards. In addition to these there are a number of animals to which one or other of the game statutes extends protection. These are rabbits, deer, roe, woodcock, snipe, quail, landrails, and wild duck. Although there is no property in wild animals, it has been settled by the Courts that the right to pursue or take game is a private privilege. In England this privilege belongs to the occupier of the soil, in the absence of any agreement to the contrary, and in Scotland to the owner. In the former country agreements reserving the game to the owner are almost universal. The occupier or the owner of the soil has the right to claim any game killed on his land; but such is the curious state of the law that the poacher who takes away what he kills is not guilty of theft.