every partridge taken in the night-time, and of forty shillings CH. XXXII. for hawking in the standing corn, the fines to be recovered before a justice of the peace, and to go half to the lord of the manor and half to the informer. These penalties are heavy enough, but are so much lighter than those of the earlier statute that the latter must have been forgotten. It applies only to night poaching. 66 In 1604 was passed 1 Jas. 1, c. 27, which recited, amongst other things, that the earlier acts had failed because the poachers were usually too poor to pay the penalties or costs, and it accordingly enacted that every one who shot or shot at "any pheasant, partridge, house-dove or pigeon, hearn, mallard, duck, teal, widgeon, grouse, heathercock, moregame, "or any such fowl, or any hare," was to be imprisoned for three months unless he paid twenty shillings for every bird or hare so killed. The terms of the section are absolute, and forbid all shooting " with any gun, cross-bow, stone-bow, or long-bow," at any of the birds mentioned, and at hares. It permits coursing to certain persons qualified by estate or birth, and the netting of pheasants and partridges to a 1 rather more restricted class. It also forbids the selling and the buying to sell again of deer, hares, partridges, and pheasants. In 1609 the property qualification was greatly raised, and the right conferred by it was altered from a right to net pheasants and partridges on the land of the qualified person to a right to take pheasants and partridges on their own land in the day-time, "between the feast of St. Michael the Archangel and the birth of our Lord God, yearly." This was effected by 7 Jas. 1, c. 11. It also forbade hawking for pheasants and partridges between the 1st of July and the 31st of August. I suppose "take" in the act of 1609 was construed to include "shoot," otherwise the shooting of partridges and pheasants continued to be unlawful, and to subject all sportsmen to a fine of twenty shillings for each bird or hare down to 1832. The act of 1604 seems to proceed on "The son or sons of any knight, or of any baron of parliament, or of some person of higher degree, or the son and heir apparent of any esquire," might keep greyhounds for coursing, and nets for partridges and pheasants, but might not, apparently, net partridges or pheasants, unless they possessed certain other qualifications. Cf. ss. 3 and 6. CH. XXXII. the principle that the only proper and sportsmanlike way of killing game was by hawking or coursing, that shooting was to be altogether illegal, and netting permitted only to qualified owners. The act of 1609 abolishes netting and restricts hawking. In 1670 (22 & 23 Chas. 2, c. 25) the appointment of gamekeepers was first authorized, and all persons with less than £100 a year freehold, £150 leasehold for 99 years, except the heir apparent of a squire and others of higher degree, were forbidden to have guns, bows, or sporting dogs, and gamekeepers were authorized to search houses for them. Killing rabbits by night was made punishable by ten shillings fine. By 5 Anne, c. 14, A.D. 1706 (see, too, 28 Geo. 2, c. 12), the sale of game was put under further restrictions, and by 1other statutes various regulations were made as to the season for different kinds of game, and 2 others made provisions as to the manner in which penalties were to be sued for, but no act of sufficient interest to be here noticed was passed till 9 Geo. 4, c. 69 (1828), which is still in force. There were, however, provisions as to deer-stealing and killing rabbits and hares in warrens to which I have already referred. The act of George IV. is still in force. It is far severer than any of its predecessors, except one or two which were practically obsolete. It is the first act which punished poaching as a crime, instead of treating it as an offence of which a money penalty was the primary and natural consequence. It punishes taking or destroying game or rabbits by night, or being unlawfully on any land by night for the purpose of so doing, for the first offence with imprisonment and hard labour up to three months; for the second offence up to six months; and for the third offence with transportation for seven years, or imprisonment and hard labour up to two years. Owners or their keepers may arrest offenders, and if the offender offers resistance with any offensive weapon, he may be punished, whether it is his first, second, or third offence, with seven years' transportation as a maximum. If three persons, of whom any one is openly armed, are on 1 2 Geo. 3, c. 29; 39 Geo. 3, c. 34; 43 Geo. 3, c. 112. 3 Ante, p. 148. land by night in order to destroy game or rabbits, each of CH. XXXII. them is liable to fourteen years' transportation as a maximum punishment. 1 All the acts to which I have referred, except only the act of 1828, were repealed in 1832 by 1 & 2 Will. 4, c. 32. It established the present system, by which qualifications for sporting and the prohibition of the sale of game were abolished, and new penalties for poaching by day were substituted for the old ones. Those penalties are as follows:For a trespass in pursuit of game by day, a fine of £2 and costs; if the poachers are to the number of five or more, £5 and costs; trespassers may be required to give their names and addresses and to leave the land, and if they refuse may be arrested. If they endeavour by violence or intimidation to prevent any authorized person from approaching them, or refuse to give their names, they are liable to a fine of £5. Some slight alterations and amendments in the law have been made of late years, but I need not refer to them specifically. The general effect of the history I have related is as follows: A series of statutes extending over 317 years (13 Rich. 2, 1389, to 5 Anne, 1706) erected the right to kill game into the privilege of a class at once artificial and ill defined. The game itself became incapable of being sold. The result of this was that, on the land of an unqualified freeholder, partridges, pheasants, and hares were in an extraordinary position. The owner could not kill them because he was not qualified, and if any one else did so without the owner's leave he committed a trespass. As I have shown, it was theoretically doubtful whether from 1604 to 1832 any one could lawfully shoot a pheasant, partridge, or hare whatever qualification he possessed. The penalties by which this privilege was protected were not (except in the case of deerstealers) severe, consisting principally in a moderate money fine, which might, in default of payment, be converted into imprisonment. This system lasted for something over 120 years (1706-1828), when it was sanctioned by an act (9 Geo. 4, c. 69) which turned night poaching into a 1 1 & 2 Will. 4, c. 32, ss. 30-32. CH. XXXII. serious crime, punishable on a third conviction with transportation. Four years after this the old system was swept away, and a new one was substituted for it, by which the right to game became an incident of the ownership or right to possession (as might be arranged between the owner and occupier) of land, and game itself was allowed to be sold like any other produce of the soil, subject to a few restrictions of no interest. Lastly, the severe penalties which had formed the crowning point of the old privilege became the sanction of the new incident of property. Upon a full review of the whole subject, it seems to me that the act of George IV. is needlessly severe. No doubt it ought to be a serious offence severely punishable to form part of an armed gang of night poachers, because, as a fact, the offence leads to desperate acts of violence. For many years, when I was on the Midland Circuit, every or almost every Spring Assize produced cases in which life had been lost, or desperate injuries inflicted, in fights so occasioned; but I think that the liability to penal servitude might be made to depend on the conduct of the poachers when challenged to surrender. If they did so quietly, or even if they ran away quietly, they ought not to be liable to any specially severe punishment. I think too that to make a man liable to seven years' penal servitude on a third conviction for mere night poaching is cruelly severe, nor do I understand. why an assault with a stick on a keeper in order to resist apprehension is made punishable by seven years' penal servitude, when an assault on a police constable in the execution of his duty is punishable only by two years' imprisonment and hard labour. If the keeper is unlawfully wounded, or if grievous bodily harm is inflicted on him with intent to avoid a lawful apprehension, the offence can be dealt with under the general provisions of the law. A considerable number of acts have been passed in very recent times for the protection of salmon and other fish, of sea-fowl and other birds; but they are of no legal or historical interest. EXTENSIVE ADOPTION OF ENGLISH CRIMINAL LAW. 283 CHAPTER XXXIII. INDIAN CRIMINAL LAW. IN the first chapter of this book I said that the criminal CH. XXXIII. law of England resembled that of Rome in the circumstance that it had been adopted in many countries other than that of its origin. To omit all notice of these systems would be to give an inadequate idea of the interest and extent of the subject. To give anything like an adequate outline of them would not only require knowledge which I do not possess, but would swell this work to an unmanageable size. The criminal law of England has been reproduced in various shapes in nearly all the thirty-eight States which form the United States of America. It has also been introduced into most of the forty-five colonies which form part of the British Empire. There are thus seventy or eighty versions of the English criminal law. In some cases the law has been codified. In others it remains as it was at the time of its introduction, subject to such modifications as it has received by local legislation. A favourable instance of the way in which the criminal law of England is reproduced in the colonies is supplied by the act which in the colony of Victoria serves the purposes of a Penal Code. This is "The Criminal Law and Practice "Statute of 1864," 2 which came into force January 1, 1865. It re-enacts, with almost servile minuteness, the Consolidation Acts of 1861. It contains no definition of murder, theft, or 1 Counting the eight colonies which make up the Dominion of Canada as one. 227 Vic. No, 233. |