selves and our magistrates in putting those laws in execution (29). game, a misdemeanor, 9. Lastly, there is another offence, constituted by a va- 9. destroying riety of acts of parliament; which are so numerous and so 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 (), 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 (h) See vol. II. page 417, &c. (29) Section 5 of the 12 Geo. II. e. 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; Rex 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 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 included in sect. 2, which defines what shall be deemed game. See that Act set out post n. (32). An action on the case will not lie for disturbing a rookery: on the ground that rooks are a species of birds, feræ naturæ, of a destructive nature, not known as an article of food, and not protected by any statute, and therefore that a person cannot have any property in them, or establish any legal right to cause them to resort to his trees; Hannam v. Mockett, 4 D. & R. 518; 2 B. & C. 934. The fact of rooks being birds feræ nuturæ, and of a destructive nature, applies equally to game, and would, upon principle, furnish equally good reasons for withholding from the latter the protection of the law; and the circumstance of game being known as an article of food, does not seem to afford any solid distinction, for it is notorious that rooks, at certain seasons of the year, are extensively used for food. (31) The present prevailing offence connected with game, is that commonly known by the name of poaching, or the going out armed in the night time, for the purpose of destroying and taking game. This offence, a misdemeanor, but punishable as a felony, is necessarily unnoticed by the learned commentator, it having first attracted the particular attention of the legislature in the year 1817, when an Act was passed for its suppression. That Act (57 Geo. III. c. 90) recited, "that idle and disorderly persons frequently went armed in the 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 abetting and assisting each other in the illegal destruction of game and rabbits, and that such practices were found by experience to lead to the commission of felonies and murders;" and then proceeded to make certain enactments "for the more effectual suppression thereof." Nothing could be more true than the recital of that statute; nothing more praiseworthy or more desirable than its object: but nothing, it is lamentable to add, more ineffectual than its operation. After a full and active trial of eleven years, during which all the evils mentioned in its recital progressively increased, that statute has been repealed, and a new one has been passed (9 Geo. IV. c. 69), which has, unhappily, effected but little improvement. In order rightly to understand the cases that have been decided upon this important subject, and correctly to judge of their bearing upon the law as it now stands, it will be necessary to set out both the Acts of Parliament somewhat at length. The 57 Geo. III. c. 90, § 1, enacted, that if any person or persons, having entered into any forest, chase, park, wood, plantation, close, or other open or enclosed ground, with intent illegally to destroy, take, or kill game or rabbits, or with intent to aid, abet and assist, any person or persons illegally to destroy, &c., game, &c., should be found at night, that is to say, between the hours of six in the evening and seven in the morning, from the 1st of October to the 1st of February, between seven in the evening and five in the morning, from the 1st of February to the 1st of April, and between nine in the evening and four in the morning for the remainder of the year, armed with any gun, cross-bow, fire-arms, bludgeon, or any other offensive weapon, every such person so offending, being thereof lawfully convicted, should be adjudged guilty of a misdemeanor, and should be sentenced to transportation for seven years, or should receive such other punishment as might by law be inflicted on persons guilty of misdemeanor, and as the court before which such offenders might be tried and convicted should adjudge. Sect. 2 enacted, that it should and might be lawful to and for the ranger and rangers, owner and owners, occupier and occupiers of any such forest, &c., and for his, her, or their keeper and keepers, servant and servants, and for any other person or persons, to seize and apprehend, or assist in seizing or apprehending, such offender or offenders, and to convey and deliver such offender or offenders into the custody of a peaceofficer, who was thereby authorized and directed to convey such offender or offenders before a justice of the peace; or, in case such offender or offenders should not be so apprehended, then it should and might be lawful for such justice, on information on the oath of any credible witness, to issue his warrant for their apprehension; power to the justice to admit the persons charged to bail, and in default of bail, to commit them to gaol until the next sessions or assizes. with Sect. 3 enacted, that if any person or persons should unlawfully enter into or be found in any forest, &c., at night, according to the provisions of the Act, with respect to what should be deemed night, for the purposes thereof, having any net, engine, or other instrument, for the purpose and with intent to destroy, &c., or should wilfully destroy, &c., game, it should and might be lawful to and for the ranger and rangers, owner and owners, occupier and occupiers of any such forest, &c., and for his, her, or their keeper or keepers, servant and servants, and for any other person or persons, to seize and apprehend, 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 to convey and deliver them into the custody of a peace-officer, who was thereby authorized and directed to convey them before a justice of the peace, to be dealt with according to law. The 9 Geo. IV. c. 69, § 1, after reciting the 57 Geo. III. c. 90, and that "the practice of going out by night for the purpose of destroying game, has nevertheless very much increased of late years, and has in very many instances led to the commission of murder, and of other grievous offences, and that it is expedient to repeal the said recited Act, and to make more effectual provisions than now by law exist for repressing such practice," repeals the former Act, and enacts, that if any person shall, by night, unlawfully take or destroy any game or rabbits in any land, whether open or enclosed, or shall by night unlawfully enter or be in any land, whether open or enclosed, with any gun, net, engine, or other instrument, for the purpose of taking or destroying game, such offender shall, upon conviction thereof before two justices, be committed for the first offence for any period not exceeding three months, with hard labour; and, at the expiration of such period, shall find sureties by recognizance, himself in 10., and two sureties in 5. each, or one surety in 10l., for his not so offending again for one year; and, in case of not finding such sureties, shall be further imprisoned and kept to hard labour for six months, unless such sureties are sooner found; and, in case such person shall so offend a second time, and shall be thereof convicted before two justices, he shall be committed for any period not exceeding six months, with hard labour; and, at the expiration of such period, shall find sureties by recognizance, as afore ་ said, himself in 201., and two sureties in 10. each, or one surety in 201., for his not so offending again for two years; and, in case of not finding such sureties, shall be further imprisoned and kept to hard labour for one year, unless such sureties are sooner found; and, in ease such person shall so offend a third time, he shall be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the court, to be transported for seven years, or to be imprisoned and kept to hard labour for any term not exceeding two years. Sect. 2 enacts, that when any person shall be found upon any land committing any offence hereinbefore mentioned, it shall be lawful for the owner or occupier of such land, or for any person having a right or reputed right of free warren or free chase thereon, or for the lord of the manor or reputed manor wherein such land may be situate, and for any gamekeeper or servant of any of the persons herein mentioned, or any person assisting such gamekeeper or servant, to seize and apprehend such offender upon such land, or in case of pursuit being made, in any other place to which he may have escaped therefrom, and to deliver him into the custody of a peace-officer, in order to his being conveyed before two justices; and, in case such offender shall assault or offer any violence with any gun,cross-bow,fire-arms, bludgeon, stick, club, or any other offensive weapon whatsoever, towards any person hereby authorized to seize and apprehend him, he shall, whether it be his first, second, or any other offence, be guilty of a misdemeanor; and, heing convicted thereof, shall be liable, at the discretion of the court, to be transported for seven years, or to be imprisoned and kept to hard labour for any term 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 person shall be charged on the oath of a eredible witness, before any justice, with any offence punishable upon summary conviction by virtue of this Act, the justice may issue his warrant for apprehending such person, and bringing him before two justices, to be dealt with according to law. Sect. 4 enacts, that the prosecution for every offence punishable upon summary conviction by virtue of this Act, shall be commenced within six months after the commission of the offence; and the prosecution for every offence punishable upon indictment, or otherwise than upon summary conviction, by virtue of this Act, shall be commenced within twelve months after the commission of the offence. Sect. 5 gives a form of conviction. Sect. 6 gives an appeal to the Quarter Sessions. Sect. 7 takes away the certiorari. Sect. 8 directs convictions to be returned to the Quarter Sessions, and registered, and makes them evidence in prosecutions under the Act. Sect. 9 enacts, that if any persons, to the number of three or more together, shall by night unlawfully enter or be in any land, whether open or enclosed, for the purpose of taking or destroying game or rabbits, any of such persons being armed with any gun, cross-bow, fire-arms, bludgeon, or any other offensive weapon, each and every of such persons shall be guilty of a misdemeanor, and being convicted thereof before the justices of gaol delivery, of the county or place in which the offence shall be committed, shall be liable, at the discretion of the court, to be transported for any term not exceeding fourteen, nor less than seven years, or to be imprisoned and kept to hard labour for any term not exceeding three years. Sect. 12 enacts, that for the purposes of this Act, the night shall be considered, and is hereby declared to commence, at the expiration of the first hour after sunset, and to conclude at the beginning of the last hour before sunrise. Sect. 13 enacts, that for the purposes of this Act the word game shall be deemed to include hares, pheasants, partridges, grouse, heath or moor game, black game, and bustards. The two Acts of parliament being thus at once brought under review, the student will have little difficulty in marking the distinctions between them. One great evil attending the old Act, was the indiscriminate power of inflicting so severe a punishment as transportation for seven years, or long imprisonment (to which, since the 3 Geo. IV. c. 114, hard labour might be added), for every offence, whether the first or not, and whether accompanied by circumstances of aggravation or not. Another, and still greater evil, was the vesting such a power in the courts of quarter sessions, constituted as they are of individuals who, however meritorious in other respects, are the very last persons qualified to administer the law in such cases with proper impartiality, temper, and mercy. It is notorious that those courts have frequently visited the poacher with sentence of transportation at the same sessions where they have dismissed the servant who has robbed his employer, or the nightly marauder who has broken open and plundered a hen-house, with a few months' imprisonment; and that the sentences passed by the judges of assize upon offenders against the game laws, have been upon an average about one-fourth in degree of severity in comparison with those passed upon similar offenders by the courts of quarter sessions. By the new Act both these |