Page:The New International Encyclopædia 1st ed. v. 16.djvu/177

* POA. 143 POACHING. POA, pG'u. See JIeadow Grass. POACHING (OF. pocher, from poche, pocket, proljably fioiii Ir. poc, Gael, poca, pocket, or less probably connected with OF. poclicr, poucher, to tlirust, hit, and ultimately with Eng. pochard, which see for etyniologA- ). In English criminal law, the act of unlawfully trespassing on another's lands fur the purpose of killing or taking game, or for the purpose of catching fish. It embraces a variety of statutory offenses, with respect to game and tisli, by persons having no sporting rights. These statutes were enacted in the inter- ests of the public, primarily for the purpose of protecting game and fish which are valuable for food. Such animals are not treated by English law as the subjects of larceny, and, but for spe- cial legishition, persons taking them from an- other's lands would be liable only to a civil ac- tion for trespass. English game and poaching statutes make such taking a crime. The exist- ing legislation on this topic begins with the Xight Poaching Act, 1828 (Geo. IV., c. 69), and the Day Poaching Act of 18.31 (1 and 2 Geo. IV., c. 32). These were called forth by the rapid increase of poaching which followed the close of the Napoleonic wars. Such increase has been ascribed to the distress prevailing in agricultural districts during the third decade of the last century, and to the large number of tur- bulent spirits thrown out of military employ- ment and cast back into the ranks of ordinary laborers. The acts referred to above made poach- ing a crime instead of treating it, in its various forms, as an offense which could be condoned by a money penalty. They also legalized the .sale of game which had been lawfully captured or killed. Poaching Game. By the Xight Poaching Act, it is provided that any person unlawfully tres- passing in search of game by night — i.e. between the first hour after sunset and the first hour be- fore sunrise — shall for a first offense be committed by the justices to the house of correction for three months, or in some cases for six months; for a second offense shall be committed for si.x months, or in some cases for twelve months ; and for a third ofTen.se shall be guilty of a misde- meanor and be imprisoned for two years. In case such night poachers are found on the lands and in the act. the owner or occupier of the land or his servants may arrest the poachers and take them before justices. If the night poacher, when arrested, use firearms, sticks, or offensive weapons, he shall be guilty of a misdemeanor and be pun- ishable by two years' imprisonment in addition. In case of three or more night jxjachers being armed with guns, bludgeons, or other offensive weaiions, each is guilty of a misdemeanor, and is liable to imprisonment for three years. Poachers have no right to kill game on the highway any more than in fields or inclosures. for the owners of the adjoining land are entitled to the game on the highway. By the Day Poaching Act, whoever unlawfully goes u])on lands not his own to pursue or kill game of any kind is liable to a penalty of £2. When a poacher is found trespassing on lands in seai-ch of came, the person entitled to the game there, or the tenant, or a gamekeeper, or servant of either, may demand the poacher's name and place of abode, and if it is refused may arrest such poacher, and take him before a justice of the peace; but the poacher nmst he taken within twelve hours before the justice, otherwise he is entitled to go at large. It is only the persons named (and not any one of the public, or even a constable) who oan arrest the poacher, and it can only be done when he is caught in the act on the very lands; for if the poacher clear the fence, and go on to other lands, he cannot then be ar- rested at all. If the poacher when convicted does not pay the penalty within the time fi.ed by the justices, he may be committed to the house of correction for a period not exceeding two calen- dar months. The party may appeal against his conviction to the Court of Quarter Sessions ; but he must either remain in custody in the interval or give security for the costs. By the Poaching Prevention Act, 1802 (2.5 and 26 Vict., c. 114), which applies to the United Kingdom, if a constable now meet a suspected poacher on the highway, whom he has reason to suspect of coming from land where he has been poaching, such constalde may stop and search the poacher; and if game, or implements for tak- ing game, are found on him, may seize and detain them, and summon him before the justices. When before the justices, if it Ije proved by circumstan- tial evidence or otherwise that such game was procured by poaching, or that the implements were used, the poacher may be fined in a penalty of £5, besides forfeiture of the game, and guns, nets, and other implements which he may have so u.sed. The person convicted may appeal if he chooses to the next Quarter .Sessions, or in cer- tain cases to the Court of King's Bench. Except as provided otherwise, the rule applies that who- ever first catches (whether legally or illegally) a wild animal is entitled to the property in it; and as game is in the category of wild animals, the poacher is entitled to keep the game, except where it was both started and caught on one and the same person's lands. The game-law's have often been described as too severe against poachers, as most of the penalties are cumula- tive, and the magistrates are usually, as game preservers, inclined to convict. PoACHiKG Fish. The law of fisheries is not uniform in the United Kingdom. In England the general rule is that any one of the public may fish freely in the sea and in all navigable rivers ; and where he can fish he can catch salmon as well as eveiy other kind of fish. But there is an ex- ception to this general rule, 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 navigable river to an individual, and as this was, in point of fact, often granted, it follows that it is not imcommou 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 th.at he has exercised this exclusive right as far back as one or two centu- ries, it will be inferred that his right dates from before jMagna Charta, and therefore will be legal. When such is the case the public have no right to fish even in a navigable river or the sea at the specified places, the sole fishery being vested in this individual owner. In streams not navigable 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 exchisive fishery ip 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