The great question of the right of property in game, though not raised under this Act, came about the same time under the review of all the Courts, and was ultimately set at rest by the judgment of the House of Lords in Blades v. Higgs. As this decision goes to the root of the principles on which game laws are founded, we give the main features of the case in detail: 'William Blades, the plaintiff, was a fishmonger and licensed dealer in game at Stamford, in the county of Lincoln, and the defendants, William Higgs and Thomas Percival, were, the former the steward, and the latter a servant, in the employ of the Marquis of Exeter. Between seven and eight o'clock in the morning of the 16th October, 1860, the plaintiff bought of a man named Yates two bags, containing about ninety rabbits, and ordered them to be consigned to him at the Midland station at Stamford. The plaintiff, upon the purchase, paid 41. 158. for the rabbits. A few minutes before nine the same morning the plaintiff went to the Midland station with a barrow, for the purpose of bringing the rabbits away to his shop. The bags arrived, directed to the plaintiff, with one of his own printed labels, and the plaintiff paid 48. for the carriage of them to Stamford, and they were delivered to him. As he was proceeding to put the two bags into the barrow, and before he had got them on, the defendant Higgs came up to the plaintiff and said he wanted to see what was in the bags, to which the plaintiff said he should not allow him, and with the assistance of a porter the plaintiff lifted the bags on the barrow. The defendant Higgs remained there until two policemen came, and then he directed them to see what the bags contained. The plaintiff said he might. One of the policemen looked into them, and seeing that they contained dead rabbits he allowed the plaintiff to take them, and assisted him in putting them back on the barrow. The other defendant, Percival, then came up and said, "I shall take these rabbits, they are mine;" and the defendant Higgs said also, "They are the Marquis of Exeter's." The defendants then attempted to get possession of the bags, and the plaintiff resisted for some time, until at length one of the policemen saying to him it was no use his struggling any longer, he discontinued his resistance, and the defendants took possession of the bags and their contents. Another game-dealer in the town, called Pollard, was fetched to the spot to buy the rabbits, and they were sold to him by the defendants, the plaintiff protesting against the sale of his property. The two bags were directed to the plaintiff, and had been sent from the Ketton station on the Midland Railway. 'The learned Judge, Willes, J., who presided at the trial, after observing that a man's property in the land does not give him any right of property in animals of a wild nature upon the land after they have become old enough to escape off the ground, laid down the following proposition : "You have no more right to a rabbit than to a sparrow-you cannot follow it and bring it back. He might kill it, of course, on his own land. It is, I own, very difficult to make a distinction, and for myself, I never could see the distinction between a pheasant and a fowl which I choose to encourage and rear on my land, but there is that distinction in the law, and I am bound to administer the law as it is. The whole theory of the game laws is founded on there being no permanency in property of this description. The doctrine has been followed as laid down in Coke upon Littleton. A person entering on your land is a trespasser no doubt, and on his taking the thing out of or off the land he is a trespasser. The proofs may be as large as the defendant's wish, but if a person goes into a close and kills a rabbit, or ninety rabbits on Lord Exeter's grounds, which comes to the same thing, and goes off and sells them to a fishmonger, then Lord Exeter's people have no right to go to the fishmonger's and take them from him, as coming out of Lord Exeter's grounds; the right would be in him though taken by trespass, and he is only subject to the game laws, and not to the ordinary rules of property." The learned judge then directed the jury as follows:-"If the rabbits were the property of Lord Exeter at the time, the defendants would have had a right to take them, but were they Lord Exeter's? The learned counsel for the defendant says he takes them to have been so, and that he would show that certain poachers were in Lord Exeter's grounds, and took the ninety rabbits and sent them away from Ketton to Stamford, and therefore they were that nobleman's property, and that he had a right by the hands of his servants to take them back. That depends upon this, whether persons going on the property of another and taking rabbits there, not taking them in a hutch, but wild, and killing them, are they to be recovered back? I think not. My notion is, that a person who kills wild animals, such as rabbits, is liable to a trespass at the instance of the owner of the ground where he kills the game, under what are called the game laws. I repeat, I never could understand why such a law should exist, because, if a man has land and chooses to rear pheasants and what-not upon it, and goes to the labour and expense of having them preserved, and of feeding them at much more cost than a farmer's barn-door fowls, I never could understand why the law as to larceny did not apply as to that. According to all principle and reason they should belong to the man who created the property just as much as the cock and hen. The sum and substance of it is, in point of law I rule that plaintiff was entitled to the rabbits, and that the defendants were not entitled to take them from him." The jury found a verdict for the plaintiff, with 67. 108. damages. 'The Court of Common Pleas afterwards made absolute a rule for a new trial on the ground of misdirection, inasmuch as the judge had told the jury that the facts relied on by the defendants did not constitute evidence of the right of possession being in the Marquis of Exeter. On appeal the Court of Exchequer Chamber, consisting of Chief Baron Pollock, Barons Martin and Wilde, Justices Blackburn and Mellor, affirmed the judgment of the court.' An An appeal to the House of Lords was then brought. The Lord Chancellor in delivering judgment said :— 'When it is said by writers on the common law of England that there is a qualified or special right of property in game-that is, in animals fera naturæ, which are fit for the food of man-while they continue in their wild state, I apprehend that the word "property" can mean no more than the exclusive right to catch, kill, and appropriate such animals, which is sometimes called by the law a reduction of them into possession. The question in the present case is, whether game found, killed, and taken upon my land by a trespasser becomes my property as much as if it had been killed and taken by myself or my servant by my authority. Upon principle there cannot, I conceive, be much difficulty. If property in game be made absolute by reduction into possession, such reduction must not be a wrongful act; for it would be unreasonable to hold that the act of the trespasser-that is, of a wrong-doer-should divest the owner of the soil of his qualified property in the game, and give the wrong-doer an absolute right of property to the exclusion of the rightful owner. But in game, when killed and taken, there is absolute property in some one, and therefore the property in game found and taken by a trespasser on the land of A. must vest either in A. or the trespasser; and if it be unreasonable to hold that the property vests in the wrong-doer, it must of necessity be vested in A., the owner of the soil. This view of the case is supported by a series of decisions. In the case of Sutton v. Moody, 1 Ld. Raym., Chief Justice Holt deduced several conclusions from the Year-books on the subject of the property in game. These propositions appear to me to prove clearly that game found and killed by a trespasser under such circumstances as that it would be the absolute property of the owner of the soil or of the owner of the right of free warren if it had been found and killed by such owner instead of by the trespasser, does in law become the absolute property of the proprietor of the soil or privilege immediately on its being so caught and killed by the trespasser. I am, therefore, of opinion that the learned counsel for the defendants on the trial at Nisi Prius were right in requiring the evidence to be admitted which they proposed to give, in order to prove that the property in the rabbits was in Lord Exeter, and that the learned judge was wrong in his direction to the jury that such evidence was immaterial, and ought not, therefore, to be admitted." Lord Cranworth, after stating his reasons for concurring in the same opinion, observed : 'It was argued before this House that if game killed by a poacher is the property of the owner of the soil, then every poacher is guilty of larceny. But this is a fallacy. But this is a fallacy. Wild animals whilst they are living are not his personal chattels, so as to be the subject of larceny. They partake, while living, of the quality of the soil, and are, like growing fruit, considered as part of the realty. If a man enters my orchard orchard and fills a wheelbarrow with apples which he gathers from my trees, he is not guilty of larceny, though he has certainly possessed himself of my property, and the same principle is applicable to wild animals.' Lord Chelmsford also delivered an elaborate judgment to the effect that the rabbits in dispute were the property of Lord Exeter. Thus was at length extirpated the deep-rooted legal fallacy that the captor could acquire a right of property in game antagonistic to that of the landowner on whose land it was taken. It may well be asked, after reading this case, why is not the law pushed to its natural sequence, and game made the subject of larceny? The reference of Lord Cranworth to the principles of the common law leads to a conclusion diametrically opposed to that intended by his Lordship. It is true that things affixed to the freehold and savouring of the realty, such as growing crops, fruit, vegetables, and mineral ores, and the like; choses in action, such as bonds and bills, &c., are not the subject of larceny at common law, but all these anomalies of common law have long since been swept away and corrected by statute. The person who steals such things is classed and punishable as a thief under the Consolidated Criminal Acts of 1861. The moment that game is proved to rank in the same category, it is incumbent upon the legislature to advance a step further, and subject it to a similar rule of law. What are the arguments against such a course? The principal objection which hinged on the right of property in game is gone, since the decision of the House of Lords that game is the absolute property of the owner of the land on which it is killed. Another objection-the difficulty of identifying the thing stolen-will disappear with a very slight examination; it is equally applicable to grain, spice, and many natural productions; to calico, cloth, and many manufactured articles, all subjects of larceny; the truth is, that conviction in such cases rarely turns on questions of identity, but depends either on direct evidence of the fact or on such circumstantial evidence as leads to an inevitable conclusion of guilt. It is also argued that if game be made the subject of larceny there would be no theft unless game be actually taken, whereas under the present law the offence is complete on proof of a trespass in pursuit of game." That argument is easily disposed of. Trespass, according to the highest authorities on criminal law, is the very foundation of larceny. All felony includes a trespass, whence it follows that if the party be guilty of no trespass in taking the goods, he cannot * 1 & 2 Will. IV., c. 32, s. 30. be * be guilty of felony in carrying them away.' Further than this, every attempt to commit a felony or misdemeanour is punishable under the criminal law,† so that as soon as the legislature enacts that game be property subject to the law of larceny, a trespass with intent to steal game becomes at once a statutable crime. There are no technical difficulties attending such an alteration of the law, for the language of existing statutes is applicable by the mere substitution of game as the subject matter of the enactment. Thus, whosoever shall unlawfully and wilfully take or kill (any bird or beast of game) in any land, whether the same be inclosed or not, shall be guilty of larceny ;+ or whosoever shall enter into any land, § whether inclosed or not, with intent unlawfully to take or kill (any bird or beast of game) shall be guilty of a misdemeanour, and on conviction thereof before two justices of the peace, shall forfeit and pay, &c. A more formidable difficulty arises from the fact that the procedure and punishment in cases of larceny are very different from those at present applicable to offences under the game laws. The answer to this objection is, that, if the definition of offences be changed, the cumulative penalties under the excise laws repealed, and some other trifling alterations made under the head of punishment, the classification of offences and jurisdiction of justices might be retained as at present. It is the fashion to say that it would be unfair to fix the opprobrium of a theft on a mere sporting trespass. We cannot see the force of the reflection: an accidental trespass would not be amenable to the law, actus non facit reum, nisi mens sit rea; but if a man wilfully enters the land of his neighbour for the purpose of depriving him of his property, he ought to bear the odium attached to the act: every transaction will stand on its own merits, and public opinion will afford a very fair court of appeal against any obloquy which may momentarily attach to a questionable occurrence. It would be well if the law as well as public opinion were able to reach a class of offenders who now escape unscathed, viz., the gentlemen who purchase pheasants' eggs were there no receivers there would be no thieves, is an old legal axiom, and the rich man who in this way offers an * 1 Hawk. c. 19, s. 1, p. 142. Thurborn's case, 1 Den. C. C. 387. See 14 & 15 Vict., c. 100, s. 9; 24 & 25 Vict., c. 100, s. 38. § See ibid. s. 16. 24 & 25 Vict., c. 96, s. 17. Englishmen are rightly tender on any question that affects the liberty of the subject. In the case of game larceny, or misdemeanour by day, the procedure would be by summons to Petty Sessions: there would be no power of apprehension, save as at present, where the offender refuses to give his name and address. Night poachers would, as now, be liable to arrest. Vol. 122.-No. 243 M almost |