POACHING 



255 



coming from land where he has been poaching, and 

 of having in his possession game unlawfully got, 

 or a gun or net, such constable may stop and 

 search the poacher ; and if game, or implements 

 for taking game, be found on him, may seize and 

 detain them, and summon the poacher before the 

 justices. When lief ore the justices, if it be proved 

 by circumstantial evidence or otherwise that such 

 game was procured by poaching, or that the imple- 

 ments were used for poaching, the poacher may be 

 fined in a penalty or 5, liesides forfeiture of the 

 game, and guns, nets, and other implements which 

 he may have so used. The constable may also stop 

 and search any cart in which he suspects there may 

 l>e such game or implements. The person convicted 

 may appeal, if he chooses, to the next Quarter 

 Sessions, or, in certain cases, to the Court of 

 Queen's Bench. A conviction can be obtained only 

 in cases of actual seizure of game or implements, 

 but for a conviction it is not necessary that the 

 poacher should be seen actually committing the 

 offence. Poaching hares or rabbits by night in any 

 warren or breeding-ground is a misdemeanour under 

 the Larceny Consolidation Act, 1861. This act 

 does not apply to Scotland. 



As game is in the category of wild animals, in 

 England the poacher is entitled to keep the game 

 unless it was both started and caught on the same 

 person's lands. But, as stated above, game may 

 "' taken from a poacher if the demand is made at 

 the time on the land or on fresh pursuit. 



The law of Scotland as to poachers does not 

 materially differ from that of England, and the 

 Night-poaching Acts apply to Scotland. The 

 Scots Day Trespass Act, 1832, closely agrees with 

 the English Act. In Scotland game is the property 

 of the captor, and accordingly where there is no 

 statutory forfeiture the offender is entitled to retain 

 game found in his possession. It is not necessary 

 under the Scots Day Trespass Act for the seizure of 

 game in the possession of a poacher that the game 

 should have been recently killed. A third offence 

 of night-poaching in Scotland must be tried before 

 the High Court of Justiciary, and the offender, if 

 convicted, is liable to penal servitude. In Ireland 

 the law as to poaching is not identical with the 

 law of England, but substantially the provisions 

 are the same. 



The law of the United Kingdom has often been 

 described as too severe against poachers, inas- 

 much as most of the penalties, except in Ireland, 

 are cumulative. But it is answered that poaching 

 is in reality only stealing under a milder name, 

 game being as much the fruit of the soil, dependent 

 upon the care and protection of the owner or 

 occupier, as apples or turnips, and that the transi- 

 tion from habitual poaching to stealing is not only 

 easy, but inevitable. The administration of the 

 law by justices, many of whom preserve game, is 

 also objected to. As regards Scotland this objec- 

 tion has been removed by the Game Laws Amend- 

 ment Act, 1877, under which all summary prosecu- 

 tions for poaching must be conducted before the 

 sheriff or his substitute. 



See Oke, Oame Lawn (new ed. 1881); Neville, Game 

 Lam (new ed. 1884 ) ; Forbes Irvine, Game Lnwi of Scot- 

 I""'! A. Porter, The Oanu 'keeper's Manual (2d ed. 

 1889) ; Kent, The Fith and Oame Laws of the State of 

 New York (1888) ; nd, for other sides of the subject, 

 R Jefferien, The Oamekeeper at Home (1878), and The 

 Amatrur Poaeher (1880); John Watson, Poachers and 

 Poaching ( 1891 ). 



(2) Ponrhinfi Fish is the unlawfully entering on 

 another's fishery in order to catch fish. Salmon- 

 poaching will be found treated under the head of 

 SALMON. The law of fisheries is not uniform in 

 the United Kingdom. In England the general 

 rale iir that any one of the public may fish freely in 



the sea and in all navigable rivers as far as the tide 

 flows ; and where he can fish he can catch salmon 

 as well as every other kind of fish. But there is an 

 exception to this generality, which consists in this, 

 that as the crown could before Magna Charta 

 (which took away such right) legally grant a 

 several or exclusive fishery in the sea or a tidal 

 river to an individual, and as this was, in point of 

 fact, often granted, it follows that it is not uncom- 

 mon to find, even at the present day, an individual, 

 generally the lord of an adjacent manor, still 

 claiming a several fishery in these places. If he 

 can prove that he has exercised this exclusive right 

 as far back as one or two centuries it will be 

 inferred that his right dates from before Magna 

 Charta, and it will therefore be sustained. When 

 such is the case the public have no right to fish 

 even in a tidal river or the sea at the specified 

 places, the sole fishery being vested in this individ- 

 ual owner. In streams not tidal the rule is that 

 each riparian owner i.e. the owner of the lands on 

 the bank of the stream has a right to a several or 

 exclusive fishery up to the middle line of the stream. 

 If he is owner on both sides of the stream then he 

 has the exclusive fishery in the whole of the stream, 

 so far as his lands extend. As to ponds, whoever 

 is owner of the soil is the owner of a several fishery 

 therein. As to lakes, it is not clearly ascertained 

 how the fishery is to be divided between the owners 

 of the lands abutting thereon ; but much will 

 depend on the title to the lands and the subse- 

 quent user. As a general rule, there is no such 

 thing as a right in the public to fish anywhere 

 except in a tidal river or the sea, and that is sub- 

 ject to the exception of an individual claiming a 

 several fishery, as before mentioned. It is often 

 supposed that if a highway adjoins a private stream 

 any one may fish in the stream or angle there ; but 

 this is a delusion. Nobody is entitled to use a high- 

 way for the purpose of fishing or pursuing game, the 

 use of the highway, so far as the public are con- 

 cerned, being confined to the purposes of travelling 

 or transport. The general rule as to all several i.e. 

 exclusive fisheries is that whoever poaches the fish 

 commits an offence, for which he may be summoned 

 before justices and fined 5, over and above the 

 value of the fish taken ; and if the fishery where 

 he poaches is adjoining the dwelling-house of the 

 owner of the fishery it is a still higher offence, for 

 it is then an indictable misdemeanour. The Fish- 

 poaching Code of England is contained in the 

 Larceny Act, 1861. It is immaterial what kind of 

 fish is caught by poachers, and how they are 

 caught. But a milder punishment is awarded to 

 the poaching anrjler, for even though he poach in a 

 fishery adjoining the owner's dwelling-house he 

 incurs only a penalty of 5 ; and where the fishery 

 does not adjoin a dwelling-house he incurs a penalty 

 of only 2. Whenever a fish-poacher, other than 

 an angler, is caught in the act of poaching he 

 may be at once apprehended, not only by tlie 

 owner of the fishery, but by anybody ; but this 

 can only be done while he is on the spot or near 

 it, for if he escape to the highway or to other 

 lands before being arrested he cannot then be 

 apprehended, but can only be summoned before 

 justices in the usual way. In this respect a privi- 

 lege is given to anglers, for in no case can these be 

 arrested, if angling during the daytime ; they can 

 only be summoned for the offence. The poacher, 

 when arrested, must be taken within a reasonable 

 time before a justice of the peace, and charged with 

 the offence. In regard to the fish poached the rule 

 is that whoever first catches the fish, whether 

 legally or illegally, is entitled to keep it ; so that 

 the poacher, whatever other punishment he may 

 incur, does not lose his fish. With regard, how- 

 ever, to the poaching implements, such as nets, it in 





