OBSERVATIONS

UPON THE

STAT. UTES

MADE FOR

The Prefervation of the Game.

WE

E fhall now proceed to fuch obfervations upon the ftatutes made for the preservation of game, as will lead the reader to a clear and certain understanding of fuch as are now in force and ufe; and the firft fubject that feems to offer itself is that of the office, qualifications, and power of a game-keeper, and his indemnity in the execution of his office.

Qualification of game-keepers, and their power in fearching for and feizing guns, dogs, and

game.

This fubject divides itself into feveral particulars-1, the method of appointing him, -2. his

-2. his qualifications,-3. his power,-4; his indemnity.

Firft-The method of appointing him.—The deputation or authority muft be properly executed, that is, figned and fealed by the lord of the manor, and an entry made of fuch appointment with the clerk of the peace of the county, riding, or divifion, wherein the manor lies.

Secondly-The qualifications neceffary for a game-keeper, with power to kill and deftroy game.-Thefe are, by the ftat. 3 G. 1. c. II. p. 137. either, I. a qualification by estate, or otherwise, to kill game abfolutely in his own right: (which game-keeper, it seems by the ftat. 9 Ann, c. 25, f. 1. p. 110. need not be entered with the clerk of the peace) or, 2. if fuch perfon is not fo qualified to kill game, he must be truly and properly a fervant to the lord or lady of the manor, or must be immediately employed and appointed to take and kill game for the fole use of fuch lord or lady. The reafon for this part of the qualification is pointed out in the preamble of the faid act of the 3 G. c. 11. which recites, "Whereas it is become ufual "for lords and ladies of manors to grant "deputations to the farmers, tenants, and "occupiers of the lands and estates within "their manors, to be game-keepers, with "power to deftroy game; which practice 66 is a very great abuse of the powers in"tended by the faid acts [5 Ann, c. 14. ❝and 9 Ann, c. 23.] to be granted, and

❝tends

tends very much to the deftruction of "game." This clearly fhews the meaning of this part of the act, and indicates what defcription of persons cannot be legal gamekeepers, with power to kill game. And perfons fo circumftanced fhould be cautious how they are feen to kill game, and how they interrupt those who are unqualified; for although it is clear that game-keepers, properly qualified agreeable to this and other acts, are authorized to interrupt unqualified perfons, yet it is equally true, that game-keepers who are not fo qualified would be amenable to the laws, if they were to do fo.

But in Mich. 9 G. 3. it was adjudged that a lord of à manor may appoint a gamekeeper, with power to kill game, though he is neither a perfon qualified, nor a menial fervant of the lord, (for a man may be truly and properly a fervant without being a menial fervant); and fuch game-keeper hath a right to carry a gun any where, though out of the manor; and though he kills game, or sports out of the manor, his gun cannot be taken from him; but if he kills game out of the manor, he is liable to the penalty. Mic. 2 Wils. 387, and 2 N. Abr. 617.3. The being entered with the clerk of the peace is a qualification fo far, that if a game-k eper, whofe name is not fo entered, or who fhall not be otherwife qualified by the laws of this kingdom to kill fhall game, kill, fell, or expose to fale, any hare, pheafant, partridge, moor, heath game, or groufe,

he

he fhall be liable to a penalty of five pounds, or (in default of payment) to imprisonment for three months. 9 Ann, c. 25. f. 1. p.

110.

Thirdly-The powers with which he is invefted.—The firft power which is given to him, is by the flat. 22 & 23 Car. 2. p. 69. whereby he is impowered to take and feize guns, bows, greyhounds, fetting-dogs, lurchers, &c. of perfons unqualified. And here it is to be observed, that it doth not appear that before the ftat. 22 & 23 Car. 2. p. 68. lords of manors had any power to appoint game-keepers with authority to take and feize engines and dogs that were made ufe of for the deftruction of game; nor does it appear that a power is by any law antecedent to the 5 Ann, c. 14. p. 105. given to the lords themselves to exercise that power of feizing engines and dogs, which they could then inveft their game-keepers with. It may indeed be argued, that as the act of the 22 & 23 Car. 2. enables lords of manors to give that power to their gamekeepers, they must firft have had that power in themfelves, or they could not have given it to another; but then it fhould be obferved, that the power and authority of the game-keeper is given to him by the statute, and not by the lord, who is nothing more than a medium through which the power paffes from the ftatute to the game-keeper. And as lords of manors had no power themLelves to feize guns or other inftruments be

fore

fore the faid 5 Ann, c. 14. that power was invefted folely in the game-keeper, who alone could lawfully do it. Since which ftatute, not only the game-keepers, but juftices of the peace in their respective jurisdictions, and lords and ladies of manors, have the power invested in them.

It has been much difputed whether justices of the peace, lords of manors, and gamekeepers have power to feize the guns or dogs of unqualified perfons, who are beating for game within their jurifdiction or manors: but this feems to have a perfect folution, if with refpect to the gamekeeper we appeal to the ftatute of the 22 and 23 Car. 2. p. 68. and with refpect to the power of juftices of the peace, and lords or ladies of the manor, to the ftat. 5 Ann. c. 14. p. 105:

This power of feizing, with refpect to the gamekeeper, feems to confift of one branch only, and with refpect to justices of the peace and the lords of manors, of more than one. The gamekeeper feems to be empowered by the ftat. 22 and 23 Car. 2. f. 2. in the first place to take and feize all fuch guns, bows, greyhounds, fetting dogs, lurchers, or other dogs to kill hares or conies, ferrets, tramels, lowbels, hayes, or other nets, harepipes, fnares, or other engines for the taking and killing of game, as fhall be used within the precincts of his manor by unqualified perfons; by which branch of the tatute it feems that he has power to feize the gun or dog of any unqualified person he

fhall