GAME. 
propofitlon, wliich )ias been remarked by fever^l diftin- 
guidied writers, namely, that if the lord of a manor 
lani'iot jullify killing the game on the farms of a tenar.t 
within his royalty, and tlie tenant not being qualified by 
law to kill it himfelf, that then the game on all thofe 
numeroi?s farms miili: remain wholly untouched, and be 
continually propagated in vain, as being for no man’s 
life, nor for the benefit of fociety. This the legiflature 
could never intend ; nor is it any where fet forth when, 
or how, the ancient lords of legal manors forfeited or 
loft this franchife, which muft have been granted origi¬ 
nally with the manor. For if the right of purfuing the 
game over all men’s property, by the feodal fyftem, or 
fyftcm of tenures, was univerftilly admitted to refide ex- 
clulively in the king, then of courfe it follows, that 
when the king granted thefe immunities to a fubjedd, 
that fubjedt muft have poftefted in full right every fuch 
privilege as v/as inherent in the king himfelf. 
That the legiflature, in framing the modern game 
laws, conceived the right of purfuing the game over 
every part of the manor, as well the indofed part as the 
wafte, to veft in the lord of fuch manor, appears ex¬ 
tremely evident from the words of the ftatute in the 
powers delegated to a gamekeeper, viz. “ that all lords 
of manors may authorize their gamekeepers within 
THEIR RESPECTIVE MANORS OR ROYALTIES, -(not 
exempting the indofed parts or farms, but in all parts 
WITHIN the manerial liberty,)—to take and feize all 
fetting-dogs, tunnels, tramels, hays, or other nets, low- 
bels, hare-pipes, fnares, or other engines, for the taking 
and killing of hares, pheafants, partridges, or other 
game, as within the precincts of fuch refpedlive 
manors lhall be ufed, by any perfon who by this adt is 
prohibited to keep or ufe the fame.” 22 & 23 Car. II. 
. . 
Now, if it be held, as fir William Blackftone has affirm¬ 
ed, “ that neither the lord of a manor, nor his game- 
keeper, can enter upon his tenant’s land without being- 
liable to an adtion of trefpafs,”—how can he poffibly 
“ take and feize fetting-dogs, nets, hays, tunnels, tra- 
-mels, lowbels, harepipes, fnares, or other engines,”— 
fet or placed for the deftrudtion of game ? 
Thefe engines are almoft always made ufe of in the in- 
dqfed ground, particularly for partridge and pheafant; 
and for hare likewife, the fnares are much oftener placed 
in coppices, on the fides of rows and hedges, on the bor¬ 
ders of corn-fields and turnips, of clover and faintfoin, 
than upon waftes and commons, where the chance of fuc- 
cefs in poaching is much lefs, and the danger of detec¬ 
tion much greater, than in woods and indofed grounds, 
where the game is fure to be moving at its accuftomed 
hours of feeding ; and wliich hours and places are 
therefore always chofen for its deftrudion. This fad is 
incontrovertible : and therefore if a gamekeeper is not 
warranted to enter an inclofure for the feizure of thefe 
hnplements, of poaching, and for the deted'tion of the 
perfons employed in fetting them, then Inch an appoint¬ 
ment becomes-of no avail, and the ad of parliament it- 
felf is a perfeft nullity. On the contrary, if it be grant, 
ed that the gamekeeper has ariglit to enter the indofed 
grounds and farms within the manor for thefe purpofes, 
then the lord of the manor who appointed him muft in¬ 
herently poflefs the fame right, otherwife he could not 
delegate it to his fervant. And, from a parity of rea.- 
foiling, if he poflefles the right of entering his tenant’s 
farm and grounds in fearch of nets, dogs, fnares, &c. it 
cannot be pretended that he poflelTes not the right of pur¬ 
fuing and killing the game in and upon all fuch grounds 
and inclofures, without being liable to an aEiion of trefpafs 
f rom, any of his manerial tenants. 
How far this right can be maintained on a reputed ma¬ 
nor, or manor extinB, is another queftion; but as all the 
other manerial rights and privileges are loft and gone by 
the e.xtindion of the court-baron, fo it is reafonable to 
conclude that this right, (if it be one,) is loft likewife; 
VoL. VIII. No. 498. 
2.17 
and the more fo, as there are no tenants who hold of or 
under {uch a manor; and it is not pretended that the lord 
of a legal manor can juftify entering, either of himfelf or 
by his' gamekeeper, into any man’s land fituated out of 
his manor, or even within his manor, if fuch occupant does 
not perform fuit and fervice at his court for the land he 
occupies: which is fometimes the cafe with allodial and 
other freehold farms, fituated within the boundary of a 
legal manor. In all cafes, how'ever, where the baronial 
courts are maintained, and at w'hich the tenants perform 
their fuit and fervice, it is conceived that the lord can 
claim, without trefpafs, the right of fporting over the 
indofed ground; and the opinion of many men, of dif- 
tinguiflied abilities in the Englifli jiirifprudence, is i* 
favour of this manerial franchife ; fomewhat arbitrary, 
indeed, and perhaps the only exifting fragment of the 
ancient feodal authority. In all the precedents we have 
ftated, or have heard of, the aftions for trefpafs have 
been brought againft unqualified perfons, or the lord of 
S manor extindl, or for trefpafs of a legal lord out of his ma¬ 
nor. But the queftion, in the fliape we have propofed 
if, with the many and nice diftiniilions wliich emanate 
from it, has never been before the court; though it wouhl 
be extremely defirable, for the information of the own¬ 
ers of fuel) franchifes, as well as of the public at large, 
that the matter ftiould be coolly and ferioufly argued, 
and decided upon with that candour and deliberate ju(- 
tice, for which the Englifli courts of law are fo emi¬ 
nently diftinguiflied. 
That the game-laws, in their prefent confufed form, 
are in many refpedts contradidory and v’exatious, ap¬ 
pears to be univerfally admitted. The juftices Aflihui ft 
and 'Willes {D. & E. i. v. 44.) openly declared in 
court, that" nothing could be more oppreffive than the 
prefent fyftem of the game-laws ; and that in expound¬ 
ing them, they ought to be confidered only as pofitive 
rules, rather than as laws founded on reafon.”—Per¬ 
haps it might hereafter be found expedient to repeal the 
flatutes now in force relating to this fubjed, in order to 
form a new fyftem under one ad of parliament, that 
fliall appear more confonant to human reafon, and ex¬ 
plain more obvioufly and fatisfadorily therights ofindi- 
viduals, and the pains and penalties to be incurred by 
thofe who offend. Ofwhat utility can the claufabe now, 
in the fiat. 33 Hen. VIII. c. 6. which fets forth, that /hoot¬ 
ing with a crofs-bow, hand-gun, or deinihake, by any 
perfon not poffeffing lool. a year, incurs a penalty of 
lol. Or that hand-guns are to be of a yard length in the 
ftock and gun, otherwife qualified perfons are to take, 
feize, and deftroy them ? Many other of our prefent ex¬ 
ifting laws, enaded for the prefervation of the game, 
ftand'in a fimilar predicament; and previous to any fub- 
ftantial reformation to be made in the code, it migh.t 
perhapsbe worth while we//to confider, whether itw-ould 
not prove more beneficial to the community at large, and 
much more advantageous to the fportfman, to make the 
game private property. This w'ould eftedually ftrike at 
the root of poaching ; game would abound in every part 
of the kingdom ; our markets would be fupplied witJi it 
tliroughout the feafon at a reafonable price; and every 
man poffeffed of landed property would enjoy the right 
he ought to inherit from nature, that of fporting on his 
own foil, and of poflelling in full right the game it nur¬ 
tures up, and which he feeds, and propagates, and pro- 
teds. Selfilh minds alone will revolt at fo juft and equi¬ 
table an arrangement of the game-laws. The circum- 
ftance of the game being fera naturce, is not a fufficient 
ground whereon to found an objection, provided every 
perfon is confined within the boundaries of his own land ; 
and as to its pafling occafionally from one man’s foil to 
that of another, the chance being equal, will ftill afford 
the fame participation of equal advantage and of equal 
right. The royalty of all river filheries in England is 
maintained upon this principle ; and fo might that of the 
game, with the faraejuftice and facility. 
jP GA'MECOCK, 
