brewers; his portrait with a foaming glass of ale in his hand had the place of honour in the gild-hall, and this led in time, it is suggested, to the myth of the beer-king who is usually represented outside a barrel with a tankard in his hand.
GAME, a word which in its primary and widest significance
means any amusement or sport, often combined in the early
examples with “glee,” “play,” “joy” or “solace.” It is a
common Teutonic word, in O. Eng. gamen, in O.H.G. gaman, but
only appears in modern usage outside English in Dan. gammen
and Swed. gamman. The ulterior derivation is obscure, but
philologists have identified it with the Goth. gaman, companion
or companionship; if this be so, it is compounded of the prefix
ga-, with, and the root seen in “man.” Apart from its primary
and general meaning the word has two specific applications, first
to a contest played as a recreation or as an exhibition of skill, in
accordance with rules and regulations; and, secondly, to those
wild animals which are the objects of the chase, and their flesh as
used for food, distinguished as such from meat, fish and poultry,
and from the flesh of deer, to which the name “venison” is given.
For “game,” from the legal aspect, and the laws relating to its
pursuit and capture see Game Laws. The athletic contests of the
ancient Greeks (ἀγῶνες) and the public shows (ludi) of the arena
and amphitheatre of the ancient Romans are treated below (Games, Classical); the various forms of modern games,
indoor and outdoor, whether of skill, strength or chance, are
dealt with under their specific titles. A special use (“gaming”
or “gambling”) restricts the term to the playing of games for
money, or to betting and wagering on the results of events, as in
horse-racing, &c. (see Gaming and Wagering). “Gamble,”
“gambler” and “gambling” appear very late in English. The
earliest quotations in the New English Dictionary for the three
words are dated 1775, 1747 and 1784 respectively. They were
first regarded as cant or slang words, and implied a reproach,
either as referring to cheats or sharpers, or to those who played
recklessly for extravagant stakes. The form of the words is
obscure, but is supposed to represent a local variation gammle of
the M.E. gamenian. From this word must, of course, be distinguished
“gambol,” to sport, frisk, which, as the older forms
(gambald, gambaud) show, is from the Fr. gambade, leap, jump, of
a horse, It. gambado, gamba, leg (Mod. Fr. jambe).
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, &c., 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
