POACHING, though not strictly a legal term, has so long been appropriated in popu lar parlance to describe a well-known legal offense, that it is now usually adopted in legal works. It means the unlawfully trespassing on another's lands for the purpose of catching or pursuing game; and it is likewise extended to the cognate offense of unlaw fully catching or pursuing fish in another's waters.
1. A8 topoaching game.—The, general law as to who is entitled to game, and in what cir cumstances, is stated under the head GAME. As a general rule, whoever is the proprie tor of land is the only person exclusively entitled to catch and kill the game; and where the land is let to a tenant, then, in England and Ireland, if nothing is said or agreed on the subject, it is the tenant, and not the landlord, who is entitled exclusively to the game. In Scotland the rule is the reverse, for the landlord, and not the tenant, is there entitled to the genie; but generally there is an express stipulation in leases, providing for this somewhat unportant right; and of course time parties may agree to anything they like on that head. Whoever, therefore, is entitled to the exclusive privilege of killing the game can alone give permission to a stranger to go and kill game there; and if this permission is not obtained, such stranger, whether qualified or not—i.e., whether he pays the government tax or not—is a poacher, if he go and kill the game. In England there is,aday-poaching act and a night-poaching act, imposing penalties on poachers. By the day-poaehiug act (1 and 2 Will. IV. c. 32, s. 30), whoever unlawfully goes upon lands not his own to pursue or kill not only game (q.v.), but also rabbits, woodcocks. snipes, quails, and land-rails, is liable to a prosily of ,,C2. It has been held that this offence is committed whenever a stranger has de facto gone upon the lands to shoot without having previously expressly obtained the permission of the party entitled to the game, even though he may have had good reason to believe that such permission, if asked, would have been granted as a matter of course, and though, after hearing of the trespass, the owner quite approved and ratified it. Moreover, any person whatever, whether interested in the lands or not, may institute the proceedings for the punishment of the poacher; and the informer is entitled to half the penalty, the other half going to the poor of the parish. When a poacher is found trespassing on lands in search of game, 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; hut the poacher must be 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 can arrest the poacher, and it can only be clone when he is caught in the act on time very lands; for if time poacher clear the fence. and go on to other lands, he cannot then be arrested at all. If game is found on the poachers at the time they are caught, and if, appear to have been newly caught, the party who is entitled to arrest Lim is entitled to seize the game also. If the poacher when convicted do not pay the penalty within the time fixed by the justices, he may be committed to the house of correction for a period not exceeding two calendar months. The, party may appeal against his conviction to the court bf quarter sessions; but he must either remain in custody in the interval or give security for the costs. The offense of poaching is punished more severely when five or more go out together, showing thereby an attempt to intimidate gamekeepers and others, and in such case each is liable to a penalty of 1'5. Moreover, if any of these five or more persons, acting in concert, be armed with a gun, and use violence, each is liable to an additional penalty of As to the night-poaching act (9 Geo. IV. c. 69) it is provided that any person by night—i.e., between the first hour after sunset and the first hour before sun-, rise—unlawfully trespassing in search of game, 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 six months, or in some eases for twelve months; and for a third offense shall be guilty of a misdemeanor, and be imprisoned for two years. In case such night-poachers are found on the lands and in the_aet, 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 fire-arms, sticks, or offensive weapons he shall be guilty of a misdemeanor, and be punishable by two years' imprisonment in addition. In case of three or more night-poachers being armed with guns, bludgeons, or other offensive weapons, 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 hf fields or inclosures, for the owners of the adjoining land are entitled to the game on the highway Under the former law it was, as already mentioned, incompetent for any person except the owner or occupier of the lands to apprehend the poacher, even this could only he done when th• poacher was caught in the act on the lands themselves; and hence, even constables had no power to seize the poacher, though seen to be coming from such lands. But by the recent poaching prevention act (25 and 26 Viet. c. 114), which applies to the United Kingdom, if a constable now meet a suspected poacher on the highway, whom lie has reason to suspect of coming from laud where he has been poaching, such constable may stop and search the poacher; and if game, or implements for taking game, are found on him, may seize and detain them, and summon him before the justices. When before the justices, if it be proved by circumstantial 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 besides forfeiture of the game, and guns, nets, and other imple ments which he may have so used. The person convicted may appeal if lie chooses to the next quarter sessions, or, in certain cases, to the court of queen's bench. With regard to the poacher's property in the game he kills, it is only in those cases where he is caught in the act, and on the spot, that the game can be taken front hint; and this, for obvious reasons, seldom happens. In all other cases the general rule applies that whoever first catches (whether legally or illegally) a wild animal, is entitled to the prop erty in it; and as game is in the category of wild animals, the poacher is (nit:tied to keep the game, except. where it was both started and enright on one and the same per son's lands. The law of Scotland does not materially (Idler from that of England as to poachers; and the night.poachiug act applies to it equally as to England. The Scotch day-trespass act (2 and 3 Will. IV. c. 68) closely agrees with the English act. But it is singular, that, in the•case of night-poachers, the game cannot be taken from the poacher, even when caught in the act and on the lands; though it can be so in England.—Pater ore's Game-laws of the United Kingdom, p. 172. The act conferring power on constables to stop and search poachers on the highway also extends to Scotland. In England tire poaching of hares or rabbits by night in preserves is a misdemeanor; whereas it is only an offense punishable summarily in Scotland. In Ireland the law as to poaching is not identical with the law of England, there being distinct statutes, but substantially the law is the same.—Paterson's Game-laws, 182. The law of the United Kingdom has often been described as too severe against poachers, inasmuch as most of the penalties are cumulative, and the justices who administer the laws are generally game-preservers, and so inclined to convict on the smallest scintilla of evidence. But. on the other hand, it is answered that poaching is in reality only stealing under a milder name, and that the classes who poach are divided by a thin partition from thieves, game being, in every point of view, as much the fruit of the soil as apples or turnips, and the transition from habitual poaching to stealing being not only easy but inevitable.—See Paterson's Game laws.