GAME LAWS. This title in English law is applied to the statutes which regulate the right to pursue and take or kill certain kinds of wild animals (see above). The existence of these statutes is due to the rules of the common law as to the nature of property, and the interest of the Norman sovereigns and of feudal superiors in the pleasures of sport or the chase. The substantial basis of the law of property is physical possession of things and the power to deal with them as we see fit. By the common law wild animals are regarded as res nullius, and as not being the subject of private property until reduced into possession by being killed or captured. A bird in the hand is owned: a bird in the bush is not. Even bees do not become property until hived. "Though a swarm lights in my tree," says Bracton, "I have no more property therein than I have in the birds which make their nests thereon." If reclaimed or confined they become property. If they escape, the rights of the owner continue only while he is in pursuit of the fugitive, i.e. no other person can in the meantime establish a right of property against him by capturing the animal. A swarm of bees "which fly out of my hive are mine so long as I can keep them in sight and have power to pursue them." But the right of recapture does not entitle the owner to follow his animals on to the lands of another, and the only case in which any right to follow wild animals on to the lands of others is now expressly recognized is when deer or hares are hunted with hounds or greyhounds. This recognition merely excepts such pursuit from the law as to criminal game trespass, and fox-hunters and those who course hares or hunt stags are civilly liable for trespass if they pass over land without the consent of the occupier (Paul v. Summerhayes, 1878, 4 Q.B.D. 9).
It is a maxim of the common law that things in which no one can claim any property belong to the crown by its prerogative: this rule has been applied to wild animals, and in particular to deer and what is now called "game." The crown rights may pass to a subject by grant or equivalent prescription. In the course of time the exclusive right to take game, etc., on lands came to be regarded as incidental to the ownership or occupation of the lands. This is described as the right to game ratione soli. In certain districts of England which are crown forests or chases or legal parks, or subject to rights of free warren, the right to take deer and game is not in the owner or occupier of the soil, but is in the crown by prerogative, or ratione privilegii in the grantee of the rights of chase, park or free warren, which are anterior to and superior to those of the owner or occupier of the lands over which the privilege has been granted. In all cases where these special rights do not exist, the right to take or kill wild animals is treated as a profit incidental to the ownership or occupation of the land on which they are found, and there is no public right to take them on private land or even on a highway; nor is there any method known to the law by which the public at large or an undefined body of persons can lawfully acquire the right to take wild animals in alieno solo.
In the nature of things the right to take wild animals is valuable as to deer and the animals usually described as game, and not as to those which are merely noxious as vermin, or simply valueless, as small birds. Upon the rules of the common law there has been grafted much legislation which up till the end of the 18th century was framed for the preservation of deer and game for the recreation and amusement of persons of fortune, and to prevent persons of inferior rank from squandering in the pursuit of game time which their station in life required to be more profitably employed. These enactments included the rigorous code known as the Laws of the Forest (see Forest Laws), as well as what are usually called the Game Laws.
In England the older statutes relating to game were all repealed early in the 19th century. From the time of Richard II. (1389) to 1831, no person might kill game unless qualified by estate or social standing, a qualification raised from a 40s. freehold in 1389 to an interest of £100 a year in freehold or £150 in long leaseholds (1673). In 1831 this qualification by estate was abolished as to England. But in Scotland the right to hunt is theoretically reserved to persons who have in heritage that unknown quantity a "plough-gate of land" (Scots Act 1621, c. 31); and in Ireland qualifications by estate are made necessary for killing game and keeping sporting dogs (Irish Act 1698, 8 Will. III. c. 8). In England the game laws proper consist of the Night Poaching Acts of 1828 and 1844, the Game Act of 1831, the Poaching Prevention Act 1862, and the Ground Game Acts of 1880 and 1906. From the fact that the right of landowners over wild animals on their land does not amount to ownership it follows that they cannot prosecute any one for stealing live wild animals: and that apart from the game laws the only remedy against poachers is by civil action for trespass. As between trespasser and landowner the law is peculiar (Blades v. Higgs, 1865, 11 H.L.C. 621). If A starts and kills a hare on B's land the dead hare belongs to B (ratione soli) and not to A, though he has taken the hare by his own efforts (per industriam). But if A hunts the hare from B's land on to C's land and there kills it, the dead hare belongs to A and not to B or C. It is not B's because it was not taken on his land, and it is not C's because it was not started on his land. In other words the right of each owner is limited to animals both started and killed on his own land, and in the case of conflicting claims to the animal taken (made ratione soli) the captor can make title (per industriam) against both landowners. If he is a trespasser he is liable to civil or criminal proceedings by both landowners, but the game is his unless forfeited under a statute. Another peculiar result of the law is that where trespassers (e.g. poachers) kill and carry off game or rabbits as part of one continuous transaction they are not guilty of theft, but only of game trespass (R. v. Townley, 1871, L.R. 1 C.C.R. 315), but it is theft for a trespasser to pick up and carry off a pheasant killed by the owner of the land on his own land or even a pheasant killed by an independent gang of poachers. The young of wild animals belong (propter impotentiam) to the owner of the land until they are able to fly or run away. This right does not extend to the eggs of wild birds. But the owner can reduce the eggs into possession by taking them up and setting them under hens or in enclosures. And if this is done persons who take them are thieves and not merely poachers. A game farm, like a decoy for wild water-fowl, is treated as a trade or business; but a game preserve in which full-grown animals fly or run wild is subject to the ordinary incidents of the law as to animals ferae naturae.
The classification of wild animals for purposes of sport in England is as follows: -
1. Beasts of forest are hart and hind (red deer), boar, wolf and all beasts of venery.
2. Beasts of chase and park are buck and doe (fallow deer), fox, marten and roe, or all beasts of venery and hunting.
3. Beasts of (free) warren are roe, hare, rabbit, partridge, pheasant, woodcock, quail, rail and heron.
4. Game, as defined by the Night Poaching Act of 1828 and the Game Act of 1831, is pheasant, partridge, black game, red grouse, bustard and hare. In France game (gibier) includes everything eatable that runs or flies.
5. Wild fowl not in any of the previous lists which are nevertheless prized for sport, e.g. duck, snipe, plovers, etc.
6. Wild birds not falling within class 4 are more or less protected against destruction by the Wild Birds Protection Acts, which were, however, passed with quite other objects than the game laws.
As regards class 1 no subject without special authority of the crown may kill within a forest or its purlieus or on adjacent highways, rivers or enclosures. The right to the animals in a forest does not depend on ownership of the land but on the royal prerogative as to the animals, i.e. it exists not ratione soli but ratione privilegii: and this right is not in any way altered by the Game Act 1831. A chase is a forest in the hands of a subject and a legal park (which is an enclosed chase) is created by crown grant or by prescription founded on a lost grant. The rights of the grantee are in substance the same as those of the crown in a forest, and do not depend on ownership of the soil. In the case of a free warren the grantee usually but not necessarily owns some or all of the soil over which the right of warren runs. The right of free warren depends on crown grant or prescription founded on lost grant, and involves a right of property over beasts and fowl of warren on all lands within the franchise. As will appear from the list above, some game birds are not fowl of warren, e.g. black game and red grouse (Duke of Devonshire v. Lodge, 1827, 7 B. & C. 39). Free warren is quite different from ordinary warrens, in which hares or rabbits are bred by the owner of the soil for sport or profit. Ground game in such warrens is protected under the Larceny Act 1861, s. 17, as well as by the game laws. In manors, of which none have been created since 1290, the lord by his franchise had the sporting rights over the manor, but at the present time this right is restricted to the commons and wastes of the manor, the freehold whereof is in him, and does not extend to enclosed freeholds nor as a general rule to enclosed copyholds, unless at the time of enclosure the sporting rights were reserved to him by the Enclosure Act or award (Sowerby v. Smith, 1873, L.R. 8 C.P. 514). In other words his rights exist ratione soli and not ratione privilegii. The Game Act 1831 gives lords of manors and privileged persons certain rights as to appointing gamekeepers with special powers to protect game within the district over which their rights extend (ss. 13, 14, 15, 16). The game laws in no way cut down the special privileges as to forest, park, chase or free warren (1831, s. 9), and confirm the sporting right of lords of manors on the wastes of the manor (1831, s. 10). As to all lands not affected by these rights, the right to kill or take game on the land is presumably in the occupier. On letting land the owner may, subject to the qualifications hereinafter stated, reserve to himself the right to kill or take "game" or rabbits or other wild animals concurrently with or in exclusion of the tenant. Where the exclusive right is in the landlord the tenant is not only liable to forfeiture or damages for breaches of covenants in the lease, but is also liable to penalties on summary conviction if without the lessor's authority he pursues, kills or takes any "game" upon the land or gives permission to others to do so (1831, s. 12). In effect he is made criminally liable for game trespass on lands in his own occupation, so far as relates to game, but is not so liable if he takes rabbits, snipe, woodcock, quails or rails.
The net effect of the common law and the game laws is to give the occupier of lands and the owner of sporting rights over them the following remedies against persons who infringe their right to kill or take wild animals on the land. A stranger who enters on the land of another to take any wild animals is liable to the occupier for trespass on the land and for the animals started and killed on the land by the trespasser. He is also criminally liable for game trespass if he has entered on the land to search for or in pursuit of "game" or woodcock, snipe, quail, landrails or rabbits. If the trespass is in the daytime (whether on lands of the subject or in royal forests, etc.), the penalty on conviction may not exceed 40s., unless five or more persons go together, in which case the maximum penalty is £5. If a single offender refuses his name or address or gives a false address to the occupier or to the owner of the sporting rights or his representatives, or refuses to leave the land, he may be arrested by them, and is liable to a penalty not exceeding £5, and if five or more concerned together in game trespass have a gun with them and use violence, intimidation or menace, to prevent the approach of persons entitled to take their names or order them off the land, they incur a further penalty up to £5.
If the trespass is in search or pursuit of game or rabbits in the nighttime, the maximum penalty on a first conviction is imprisonment with hard labour for not over three months; on a second, imprisonment, etc., for not over six months, and the offender may be put under sureties not to offend again for a year after a first conviction or for two years after a second conviction. For a first or second offence the conviction is summary, subject to appeal to quarter sessions, but for a third offence the offender is tried on indictment and is liable to penal servitude (3-7 years) or imprisonment with hard labour (2 years). The offenders may be arrested by the owner or occupier of the land or their servants, and if the offenders assault or offer violence by firearms or offensive weapons they are liable to be indicted and on conviction punished to the same extent as in the last offence. In 1844 the above penalties were extended to persons found by night on highways in search or pursuit of game. If three or more trespass together on land by night to take or destroy game or rabbits, and any of them is armed with firearms, bludgeon or other offensive weapon, they are liable to be indicted and on conviction sentenced to penal servitude (3-14 years) or imprisonment with hard labour (2 years). By "day" time is meant from the beginning of the first hour before sunrise to the end of the first hour after sunset, and by "night" from the end of the first hour after sunset to the beginning of the first hour before sunrise (act of 1828, s. 12; act of 1831, s. 34). The time is reckoned by local and not by Greenwich time.
The penalties for night poaching are severe, but encounters between the owners of sporting rights and armed gangs of poachers have often been attended by homicide. It is to be observed that it is illegal and severely punishable to set traps or loaded spring guns for poachers (Offences against the Person Act 1861, s. 31), whereby any grievous bodily harm is intended or may be caused even to a trespasser, so that the incursions of poachers can be prevented only by personal attendance on the scene of their activities; and it is to be observed also that the provisions of the Game Laws above stated are, so far as concerns private land, left to be enforced by private enterprise without the interference of the police, with the result that in some districts there are scenes of private nocturnal war. Even in the Night Poaching Act 1844, which applies to highways, the arrest of offenders is made by owners, occupiers or their gamekeepers. The police were not given any direct authority as to poachers until the Poaching Prevention Act 1862, under which a constable is empowered "on any highway, street or public place, to search any person whom he may have good cause to suspect of coming from any land where he shall have been unlawfully in search or pursuit of 'game,' or any persons aiding or abetting such person, and having in his possession any game unlawfully obtained, or any gun, part of gun, or nets or engines used for the killing or taking game; and also to stop and search any cart or other conveyance in or upon which such constable or peace officer shall have good cause to suspect that any such game, or any such article or thing, is being carried by such person." If any such thing be found the constable is to detain it, and apply for a summons against the offender, summoning him to appear before a petty sessional court, on conviction before which he may be fined not more than £5, and forfeits the game, guns, etc., found in his possession. In this act "game" includes woodcock, snipe and rabbits, and the eggs of game birds other than bustards; and the act applies to poaching either by night or by day. In all cases of summary conviction for poaching an appeal lies to quarter sessions. In all cases of poaching the game, etc., taken may be forfeited by the court which tries the poacher.
Close Time. - On certain days, and within periods known as "close time," it is illegal to kill deer or game. The present close times are as follows: -
England. Ireland. Scotland.
Hare None April 21 to Aug. 11* None
Red deer (male) None Jan. 1 to June 9 None
Fallow deer None Sept. 29 to June 10 None
Roe deer None None None
Pheasant Feb. 1 to Sept. 30 Feb.1 to Sept. 30 (1845) Feb. 1 to Sept. 30
Partridge Feb. 1 to Aug. 31 Feb. 1 to Aug. 31 (1899) Feb. 1 to Aug. 31
Black game Dec. 10 to Aug. 20** Dec. 10 to Aug. 20 Dec. 10 to Aug. 20
Red grouse Dec. 10 to Aug. 12 Dec. 10 to Aug. 12 Dec. 10 to Aug. 12
Ptarmigan None Dec. 10 to Aug. 20 Dec. 10 to Aug. 12
Bustard (wild turkey) March 1 to Sept. 1 Jan. 10 to Sept. 1 None
* Unless varied by order of lord-lieutenant.
** Except in Devon, Somerset and New Forest, where to Sept. 1.
In England and Ireland the winged game above named and hares may not be killed on Sundays or Christmas Day. It is illegal to sell or expose for sale hares or leverets in March, April, May, June and July. It is illegal throughout the United Kingdom to buy or sell winged game birds after ten days from the beginning of the close season as fixed by the English law (1831, s. 4; 1860, s. 13). This prohibition applies to the sale of live game, British or foreign, and to the sale of British dead game. It is illegal to lay poison for game or rabbits except in rabbit holes, and it is illegal to kill game by firearms at night. Wild birds not within the list above given but of interest for sport are protected by close times fixed under the Wild Birds Protection Acts, which may vary in each county of each kingdom.
Licences. - Besides the restrictions on the right to take or kill game which arise out of the law as to ownership or occupation of the lands on which it is found, there are further restrictions imposed by the laws of excise. From the time of Richard II. (1389) until 1831 the right of persons other than gamekeepers properly deputed by the lord of a manor to take game was made to depend on the social rank of the person, or on the amount of his interest in land, which ranged from a 40s. freehold (in 1389) to £100 a year (1671). These restrictions were abolished in 1831, and the right to kill game was made conditional on the possession of a game certificate, now called a game licence in Great Britain (act of 1831, ss. 6, 23). By s. 4 of the Game Licences Act 1860 "any person, before he shall in Great Britain take, kill or pursue, or aid or assist in any manner in the taking, killing or pursuing, by any means whatever, or use any dog, gun, net or other engine for the purpose of taking, killing or pursuing any game, or any woodcock, snipe, quail, landrail, or any coney, or any deer, shall take out a proper licence to kill game under this act" - subject to a penalty of £20. There are certain exceptions and exemptions as to royal personages, royal gamekeepers, and with reference to taking woodcock or snipe by nets or springes, by coursing or hunting hares or deer, or killing deer, rabbits or hares (Hares Acts 1848, Game Licences Act 1860) in certain enclosed lands by the owners or occupiers. A licence is not required for beaters and assistants who go out with holders of a game licence. The licence is granted by the Inland Revenue Department. The issue is regulated by the Game Licences Act 1860 as amended by the Customs and Inland Revenue Act 1883. The licences now in use are of four kinds: -
Those taken out after 31st July -
To expire on the next 31st July £3 0 0
To expire on the next 31st October 2 0 0
Those taken out after 1st November -
To expire on the next 31st July 2 0 0
Those taken out for any continuous period of fourteen days specified in the licence 1 0 0
In the case of gamekeepers in Great Britain for whom the employer pays the duty on male servants, the annual licence fee is £2, but the licence extends only to lands on which the employer has a right to kill game. A licence granted to a person in his own right and not as gamekeeper or servant is effective throughout the United Kingdom. The game licence does not authorize trespass on the lands of others in search of game nor the shooting of game, etc., at night, and is forfeited on a conviction of game trespass (1831, s. 30; 1860, s. 11). Persons who have game licences need not have a gun licence, but the possession of a gun licence does not qualify the holder to kill game or even rabbits.
The sale of game when killed is also subject to statutory regulation. Gamekeepers may not sell game except under the authority of their employer (1831, ss. 17, 25). Persons who hold a full game licence may sell game, but only to persons who hold a licence to deal in game. These licences are annual (expiring on the 1st of July), and are granted in London by justices of the peace, and in the rest of England by the council of the borough or urban or rural district in which the dealer seeks to carry on business (1831, s. 18; 1893, c. 73, s. 27), and a notice of the existence of the licence must be posted on the licensed premises. A licence must be taken out for each shop. The following persons are disqualified for holding the licence: innkeepers, persons holding licences to sell intoxicants, owners, guards or drivers of mail-carts, stagecoaches or public conveyances, carriers and higglers (1831, s. 18). This enactment interferes with the grant of game licences to large stores which also have licences to sell beer. The licensed dealer may buy British game only from persons who are lawfully entitled to sell game. Conviction of an offence under the Game Act 1831 avoids the licence (s. 22). The local licence must also be supplemented by an excise licence for which a fee of £2 is charged. Licensed dealers in game are prohibited from selling game killed in the United Kingdom from the tenth day after the beginning of close time to the end of that period. The provisions above stated under the act of 1831 applied only to England, but were in 1860 extended to the rest of the United Kingdom, and were in 1893 applied to dealers in game imported from abroad. The main effect of the system of licences is to prevent the disposal of game by poachers rather than to benefit the revenue.
Deer. - Deer are not included within the definition of game in any of the English game laws. Deer-stealing was very seriously punished by the old law, and under an act of 9 George I. c. 22, known as the Waltham Black Act, passed because of the depredations of disguised deer-stealers in Epping Forest, it was under certain circumstances made a capital offence. At present offences with reference to deer are included in the Larceny Act 1861. It is a felony to hunt or kill deer in enclosures in forests, chases or purlieus, or in enclosed land where deer is usually kept, or after a previous conviction to hunt or kill deer in the open parts of a forest, etc., and certain minor provisions are made as to arrest by foresters, forfeiture of venison unlawfully possessed and for unlawfully setting traps for deer. These enactments do not prevent a man from killing on his own land deer which have strayed there (Threlkeld v. Smith, 1901, 2 K.B. 531). In Scotland the unlawful killing of deer is punished as theft.
Eggs. - The owner or occupier of land has no property in the eggs of wild birds found on his lands unless he takes them up. But under s. 24 of the Game Act 1831 a penalty of 5s. per egg is incurred by persons who unlawfully (i.e. without being, or having licence from, the person entitled to kill the game) and wilfully take from the nest or destroy in the nest the eggs of any game bird, or of a swan, wild duck, teal or widgeon. Similar provisions exist in Ireland under an act of 1698, and by the Poaching Prevention Act 1862 (United Kingdom) power is given to constables to search persons suspected of poaching and to take from them the eggs of pheasants, partridges, grouse or black game. And the Wild Birds Protection Acts deal with the eggs of all wild birds except game and swans.
Damage to Crops by Game. - Where an occupier of lands has not the right to kill game or rabbits he runs the risk of suffering damage by the depredations of the protected animals, which he may not kill without incurring a liability to summary conviction or for breach of the conditions on which he holds the land. At common law the owner of land who has reserved to himself the sporting rights, and his sporting tenants, must use the reserved rights reasonably. They are liable for any damage wilfully or unnecessarily done to the crops, etc., of the occupier, such as trampling down standing crops or breaking hedges or fences. They are not directly liable to the occupier for damage done to the crops by game bred on the land or frequenting it in the ordinary course of nature; but are not entitled to turn down game or rabbits on the land. And if game or rabbits are for the purposes of sport imported or artificially raised on land, the person who breeds or brings them there is liable for the damage done to the crops of adjoining owners or occupiers (Farrer v. Nelson, 1885, 15 Q.B.D. 258; Birkbeck v. Paget, 31 Beav. 403; Hilton v. Green, 1862, 2 F. & F. 821).
Recent legislation has greatly increased the rights of the occupiers of land as against the owners of sporting rights over it. As regards hares and rabbits the occupier's rights are regulated by the Ground Game Act 1880 (which is expressed to be made "in the interests of good husbandry and for the better security of capital and labour invested in the cultivation of the soil"). By that act the occupier of land as incident to and inseparable from his occupation has the right to kill and take hares and rabbits on the land. The right is indefeasible and cannot be divested by contract with the owner or landlord or even by letting the occupier's sporting rights to another. But where apart from the act the right to kill game on the land is vested in a person other than the occupier, such person has a right concurrent with the statutory right of the occupier to take hares and rabbits on the land. The act does not extend to common lands nor to lands over which rights of grazing or pasturage for not more than nine months in the year exist. Consequently over such lands exclusive rights of killing ground game still continue, and the law appears not to apply in cases where a special right of killing or taking ground game vested before the 7th of September 1880 in any person (other than the landlord) by statute, charter or franchise (s. 5). The mode of exercise of the occupier's right is subject to certain limitations. The ground game is only to be taken by him or by persons whom he has duly authorized in writing, who must be members of his family or his servants or bona fide employed by him for reward to take ground game. The written authority must be produced on demand to persons having concurrent rights to take and kill the ground game (s. 1 (1) (c)). Firearms may not be used by night, nor may poison be used, nor may spring traps be set except in rabbit holes (s. 6); nor may ground game be killed on days or seasons or by methods prohibited by statute in 1880 (s. 10).
In the case of moorland and unenclosed lands (which are not arable and do not consist of small detached portions of less than 25 acres) the occupier may between the 1st of September and the 31st of March kill and take ground game; but between the 1st of September and the 10th of December firearms may not be used (1880, s. 1 (3); 1906, s. 2). In the case of such lands the occupiers and the owners of the sporting rights may between the 1st of September and the 10th of December make and enforce for their joint benefit agreements for taking the ground game. The Agricultural Holdings Act 1906 (operating from 1909) deals, inter alia, with damage to crops by deer and winged game, but does not apply to damage by hares or rabbits. The tenant of agricultural land is entitled to compensation for damage to his crops exceeding 1s. per acre over the area affected if caused by game, "the right to kill or take which is vested neither in him nor in any one claiming under him other than the landlord and which the tenant has not permission in writing to kill" (s. 2). The right of the tenant is indefeasible and cannot be contracted away. Disputes as to amount are to be settled by arbitration; but claims to be effectual must be made as to growing crops before reaping, raising or feeding off, and as to cut crops before carrying. In the case of contracts of tenancy created before the 1st of January 1909, allowances are to be made if by their terms compensation for damage by game is stipulated for, or an allowance of an agreed amount for damage by game was expressly made in fixing the rent. The compensation is payable by the landlord subject to his right to be indemnified in cases where the sporting rights are not vested in him.
Sporting Rights. - Sporting rights (i.e. rights of fowling or of shooting, or of taking or killing game or rabbits, or of fishing), when severed from the occupation of land, are subject to income or property tax, and to assessment for the purpose of local rates (Rating Act 1874); and in valuing land whether for rates or taxes the value of the sporting rights is now an important and often the chief item of value in beneficial occupation of the land. Where the sporting rights are the landlord's, the rate thereon is paid in the first instance by the tenant and deducted from his rent. Where the sporting right is reserved and let, the rating authority may rate either the landlord or the sporting tenant as occupier of the right. The Ground Game Acts have not affected the liability to assessment of concurrent rights of killing hares and rabbits reserved by a landlord, or of a concurrent right granted by the occupier (Ryde (2nd ed.), 385-387). The ownership of sporting rights severed from the ownership or occupation of the land over which they are exercisable is not an interest in land giving the electoral franchise or a claim for compensation if the land is taken under the Lands Clauses Consolidation Acts.
Scotland. - By the law of Scotland all men have right and privilege of game on their own estates as a real right incident thereto, which does not pass by an agricultural lease except by express words, or in the case of ground game by the act of 1880. The landlord is liable to the tenant for damage done to the surface of the lands in exercise of his right to the game and also for extraordinary damage by over-preserving or over-stocking. Under an act of 1877 he was liable for excessive damage done by rabbits or game reserved to or retained under a lease granted after the 1st of January 1878, or reserved by presumption of common law; this act from 1909 onwards is superseded by the provisions of the Agricultural Holdings Act 1906. Night poaching is punished by the same act as in England, and day poaching by an act of 1832 and the act of 1882. Until 1887 poaching by night under arms was a capital offence. The definition of game in Scotland for purposes of night poaching is the same as in England. The provisions of the act of 1832 as to game trespass by day apply also to deer, roe, rabbits, woodcock, snipe, rails and wild duck; but in other respects closely resemble those of the English act of 1831.
Offences against the game laws are not triable by justices of the peace, but only in the sheriff court. The close time for game birds in Scotland is the same as in England, so far as dealing in them is concerned, but differs slightly as to killing. Black game may not be killed between the 10th of December and the 25th of August, nor ptarmigan between the 10th of December and the 20th of August. There is no close time for red, fallow or roe deer, or rabbits. By an old Scots act of 1621 (omitted from the recent wholesale repeal of such acts) no one may lawfully kill game in Scotland who does not own a plough-gate of land except on the land of a person so qualified.
Ireland. - The common law as to game is the same for Ireland as for England. The game laws of Ireland are contained partly in acts passed prior to the union (1698, 1707, 1787 and 1797), partly in acts limited to Ireland, and as to the rest in acts common to the whole United Kingdom.
Under the act of 1698 no one may kill game in Ireland who has not a freehold worth £40 a year or £1000 net personality, and elaborate provisions are made by that and later acts against the keeping of sporting dogs by persons not qualified by estate to kill game. British officers and soldiers in Ireland appear to have been much addicted to poaching, and their activities were restrained by enactments of 1698 and 1707.
Night poaching in Ireland is dealt with by an act of 1826. Trespass on lands in pursuit of game to which the landlord or lessor has by reservation exclusive right is summarily punishable under an act of 1864, which includes in the definition of game, woodcock, snipe, quails, landrails, wild duck, widgeon and teal. Under the Land Act 1881 the landlord of a statutory holding may at the commencement of the term subject to the Ground Game Acts retain and exercise the exclusive right of taking "game" as above defined.
British Possessions Abroad. - The English game laws have not been carried to any colony as part of the personal law of the colonists, nor have they been extended to them by imperial or colonial legislation. But the legislatures of many colonies have passed acts to preserve or protect native or imported wild animals, and in some of these statutes the protected animals are described as game. These statutes are free from feudal prepossessions as to sporting rights, and are framed rather on the lines of the Wild Birds Protection Acts than on the English game laws, but in some possessions, e.g. Quebec, sporting leases by the crown are recognized. The acts since 1895 are indicated in the annual summary of colonial legislation furnished in the Journal of the Society of Comparative Legislation.
See also Oke's Game Laws, 4th ed., by Willis Bund (1897); Warry, Game Laws of England (1897); Marchant and Watkins, Wild Birds Protection Act (1897).
(W. F. C.)
Note - this article incorporates content from Encyclopaedia Britannica, Eleventh Edition, (1910-1911)