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selves and our magistrates in putting those laws in execu-
game, a misderiety of acts of parliament; which are so numerous and so meanor ; confused, and the crime itself of so questionable a nature, that I shall not detain the reader with many observations thereupon. And yet it is an offence which the sportsmen of England seem to think of the highest importance; and a matter, perhaps the only one, of general and national concern; associations having been formed all over the kingdom to prevent its destructive progress. I mean the offence of destroying such beasts and fowls, as are ranked under the denomination of game; which, we may remember, was formerly observed (h), upon the old principles of the forest law, *to be a trespass and offence in all persons alike, who have [*174] not authority from the crown to kill game, which is royal property, by the grant of either a free warren, or at least a manor of their own (30).
But the laws, called the game
(1) See vol. II. page 417, &c.
(29) Section 5 of the 12 Geo. II. c. 28, " An Act for the more effectual preventing of excessive and deceitful gaming,” requires reasonable notice of appeal to the sessions against a conviction, but the notice may be by parol, or in writing : held, that its reasonableness in point of time, is for the justices at sessions to determine ; Rer v. Surrey (Justices), 1 D. & R. 160; 5 B. & A. 539. See the other statutes upon this subject, 13 Geo. II. c. 19; 18 Geo. II. c. 34; 25 Geo. II. c. 36; 30 Geo. II. c. 24; 27 Geo. III. c. 1; 34 Geo. III. c. 46; 42 Geo. III. c. 119. The 27 Geo. III. c. 1, which takes away the summary jurisdiction of magistrates over offences concerning lotteries, only extends to state lotteries, (now abolished, see ante 168, n. (17); and does not repeal their power over games of chance or lotteries prohibited by the 12 Geo. II. c. 28; Rex v. Liston, 5 T. R. 338. Keeping and maintaining a common gaming-house, and for lucre and gain causing and procuring VOL. IV.
idle and evil-disposed persons to come
Prisoners found gambling in the
(30) Grouse are not birds of free
laws, have also inflicted additional punishments, chiefly pecuniary, on persons guilty of this general offence, unless they be people of such rank or fortune as is therein particularly specified. All persons therefore, of what property or distinction soever, that kill game out of their own territories, or even upon their own estates, without the king's licence expressed by the grant of a franchise, are guilty of the first original offence, of encroaching on the royal prerogative. And those indigent persons who do so, without having such rank or fortune as is generally called a qualification, are guilty not only of the original offence, but of the aggravations also, created by the statutes for preserving the game : which aggravations are so severly punished, and those punishments so implacably inflicted, that the offence against the king is seldom thought of, provided the miserable delinquent can make his peace with the lord of the manor. This offence, thus aggravated, I have ranked under the present head, because the only rational footing, upon which we can consider it as a crime, is, that in low and indigent persons it promotes idleness, and takes them away from their proper employments and callings: which is an offence against the public police and economy of the commonwealth (31).
the subject are repealed, are expressly game being known as an article of food, included in sect. 2, which defines what does not seem to afford any solid disshall be deemed game. See that Act tinction, for it is notorious that rooks, set out post n. (32). An action on the at certain seasons of the year, are excase will not lie for disturbing a rookery: tensively used for food. on the ground that rooks are a species (31) The present prevailing offence of birds, feræ naturæ, of a destructive connected with game, is that commonly nature, not known as an article of food, known by the name of poaching, or the and not protected by any statute, and going out armed in the night time, for therefore that a person cannot have any the purpose of destroying and taking property in them, or establish any legal game. This offence, a misdemeanor, right to cause them to resort to his but punishable as a felony, is necessarily trees; Hannam v. Mockett, 4 D. & R. unnoticed by the learned commentator, 518; 2 B. & C. 934. The fact of it having first attracted the particular rooks being birds feræ nutura, and of a attention of the legislature in the year destructive nature, applies equally to 1817, when an Act was passed for its game, and would, upon principle, fur- suppression. *That Act (57 Geo. III. nish equally good reasons for with- c. 90) recited, " that idle and disorderly holding from the latter the protection persons frequently went armed in the of the law; and the circumstance of night time, for the purpose of pro
It had been alluded to in a former statute, 39 and 40 Geo. III. c. 50, but
only as an Act of Vagrancy.
The statutes for preserving the game are many and various, and not a little obscure and intricate; it being re
tecting themselves, and aiding and adjudged guilty of a misdemeanor, abetting and assisting each other in the and should be sentenced to transportaillegal destruction of game and rabbits, tion for seven years, or should receive and
that such practices were found by such other punishment as might by law experience to lead to the commission be inflicted on persons guilty of misdeof felonies and murders;" and then meanor, and as the court before which proceeded to make certain enactments such offenders might be tried and con“for the more effectual suppression victed should adjudge. thereof." Nothing could be more true Sect. 2 enacted, that it should and than the recital of that statute; nothing might be lawful to and for the ranger more praiseworthy or more desirable and rangers,owner and owners, occupier than its object : but nothing, it is and occupiers of any such forest, &c., and lamentable to add, more ineffectual for his, her, or their keeper and keepers, than its operation. After a full and
servant and servants, and for any other active trial of cleven years, during person or persons, to seize and apwhich all the evils mentioned in its prehend, or assist in seizing or apprerecital progressively increased, that hending, such offender or offenders, statute has been repealed, and a new and to convey and deliver such offender one has been passed (9 Geo. IV. c. 69), or offenders into the custody of a peacewhich has, unhappily, effected but officer, who was thereby authorized and little improvement. In order rightly directed to convey such offender or to understand the cases that have been offenders before a justice of the peace; decided upon this important subject, or, in case such offender or offenders and correctly to judge of their bearing should not be so apprehended, then it upon the law as it now stands, it will be should and might be lawful for such necessary to set out both the Acts of justice, on information on the oath of Parliament somewhat at length. any credible witness, to issue his war
The 57 Geo. III. c. 90, § 1, enacted, rant for their apprehension; with that if any person or persons, having power to the justice to admit the perentered into any forest, chase, park, sons charged to bail, and in default of wood, plantation, close, or other open bail, to commit them to gaol until the or enclosed ground, with intent illegally next sessions or assizes. to destroy, take, or kill game or rabbits, Sect. 3 enacted, that if any person or with intent to aid, abet and assist, or persons should unlawfully enter into any person or persons illegally to or be found in any forest, &c., at night, destroy, &c., game, &c., should be according to the provisions of the Act, found at night, that is to say, between with respect to what should be deemed the hours of six in the evening and night, for the purposes thereof, having seven in the morning, from the 1st of any net, engine, or other instrument, October to the Ist of February, between for the purpose and with intent to seven in the evening and five in the destroy, &c., or should wilfully destroy, morning, from the 1st of February to &c., game, it should and might be lawthe 1st of April, and between nine in ful to and for the ranger and rangers, the evening and four in the morning owner and owners, occupier and occufor the remainder of the year, armed piers of any such forest, &c., and for with any gun, cross-bow, fire-arms, his, her, or their keeper or keepers, bludgeon, or any other offensive weapon, servant and servants, and for any other every such person so offending, being person or persons, to seize and apprethereof lawfully convicted, should be hend, or assist in seizing or appre
marked (i), that in one statute only, 5 Ann. c. 14, there is false grammar in no fewer than six places, besides other mis
(i) Burn's Justice, tit. Game, $ 3.
hending such offender or offenders, and said, himself in 201., and two sureties to convey and deliver them into the in 101. each, or one surety in 201., for custody of a peace-officer, who was his not so offending again for two years; thereby authorized and directed to con- and, in case of not finding such sureties, vey them before a justice of the peace, shall be further imprisoned and kept to to be dealt with according to law. hard labour for one year, unless such
The 9 Geo. IV. c. 69, § 1, after sureties are sooner found; and, in ease reciting the 57 Geo. III. c. 90, and such person shall so offend a third that “the practice of going out by time, he shall be guilty of a misdemeanight for the purpose of destroying nor, and being convicted thereof, shall game, has nevertheless very much in- be liable, at the discretion of the court, creased of late years, and has in very to be transported for seven years, or to many instances led to the commis- be imprisoned and kept to hard labour sion of murder, and of other grievous for any term not exceeding two years. offences, and that it is expedient to re- Sect. 2 enacts, that when any person peal the said recited Act, and to make shall be found upon any land commitmore effectual provisions than now by ting any offence hereinbefore menlaw exist for repressing such practice,” tioned, it shall be lawful for the owner repeals the former Act, and enacts, or occupier of such land, or for any that if any person shall, by night, un- person having a right or reputed right lawfully take or destroy any game or of free warren or free chase thereon, or rabbits in any land, whether open or for the lord of the manor or reputed enclosed, or shall by night unlawfully manor wherein such land may be situenter or be in any land, whether open or ate, and for any gamekeeper or servant enclosed, with any gun, net, engine, or of any of the persons herein mentioned, other instrument, for the purpose of or any person assisting such gametaking or destroying game, such offen- keeper or servant, to seize and appreder shall, upon conviction thereof before hend such offender upon such land, or two justices, be committed for the first in case of pursuit being made, in any offence for any period not exceeding other place to which he may have three months, with hard labour ; and, escaped therefrom, and to deliver him at the expiration of such period, shall into the custody of a peace-officer, in find sureties by recognizance, himself order to his being conveyed before two in 101., and two sureties in 5l. each, justices; and, in case such offender or one surety in 101., for his not so shall assault or offer any violence with offending again for one year; and, in any gun,cross-bow,fire-arms, bludgeon, case of not finding such sureties, shall stick, club, or any other offensive be further imprisoned and kept to hard weapon whatsoever, towards any person labour for six months, unless such sure- hereby authorized to seize and appreties are sooner found; and, in case hend him, he shall, whether it be his such person shall so offend a second first, second, or any other offence, be time; and shall be thereof convicted guilty of a misdemeanor ; and, being before two justices, he shall be com- convicted thereof, shall be liable, at the mitted for any period not exceeding discretion of the court, to be transported six months, with hard labour; and, at for seven years, or to be imprisoned the expiration of such period, shall and kept to hard labour for any term find gureties by recognizance, as afore- not exceeding two years.
takes : the occasion of which, or what denomination of persons were probably the penners of these statutes, I shall not
Sect. 3 enacts, that where any per- Sect. 12 enacts, that for the purposes son shall be charged on the oath of a of this Act, the night shall be consi. credible witness, before any justice, dered, and is hereby declared to comwith any offence punishable upon sum- mence, at the expiration of the first mary conviction by virtue of this Act, hour after sunset, and to conclude at the justice may issue his warrant for
the beginning of the last hour before apprehending such person, and bringing sunrise. him before two justices, to be dealt with Sect. 13 enacts, that for the purposes according to law.
of this Act the word game shall be Sect. 4 enacts, that the prosecution deemed to include hares, pheasants, for every offence punishable upon sum- partridges, grouse, heath or moor game, mary conviction by virtue of this Act,
black game, and bustards. shall be commenced within six months The two Acts of parliament being after the commission of the offence ; thus at once brought under review, the and the prosecution for every offence student will have little difficulty in punishable upon indictment, or other marking the distinctions between them. wise than upon summary conviction, One great evil attending the old Act, by virtue of this Act, shall be com- was the indiscriminate power of inmenced within twelve months after the
flicting so severe a punishment as transcommission of the offence.
portation for seven years, or long imSect. 5 gives a form of conviction.
prisonment (to which, since the 3 Geo. Sect. 6 gives an appeal to the IV. c. 114, hard labour might be Quarter Sessions.
added), for every offence, whether the Sect. 7 takes away the certiorari. first or not, and whether accompanied
Sect. 8 directs convictions to be by circumstances of aggravation or not. returned to the Quarter Sessions, and Another, and still greater evil, was the registered, and makes them evidence
vesting such a power in the courts of in prosecutions under the Act.
quarter sessions, constituted as they Sect. 9.enacts, that if any persons, are of individuals who, however merito the number of three or more toge- torious in other respects, are the very ther, shall by night unlawfully enter or last persons qualified to administer the be in any land, whether open or en- law in such cases with proper imparclosed, for the purpose of taking or de- tiality, temper, and mercy. It is notostroying game or rabbits, any of such rious that those courts have frequently persons being armed with any gun, visited the poacher with sentence of cross-bow, fire-arms, bludgeon, or any transportation at the same sessions other offensive weapon, each and every where they have dismissed the servant of such persons shall be guilty of a who has robbed his employer, or the misdemeanor, and being convicted nightly marauder who has broken open thereof before the justices of gaol deli- and plundered a hen-house, with a few very, of the county or place in which months' imprisonment; and that the the offence shall be committed, shall sentences passed by the judges of asbe liable, at the discretion of the court, size upon offenders against the game to be transported for any term not ex- laws, have been upon an average about ceeding fourteen, nor less than seven one-fourth in degree of severity in years, or to be imprisoned and kept to comparison with those passed upon sihard labour for any term not exceeding milar offenders by the courts of quarter
sessions. By the new Act both these