Poaching, though not strictly a legal term, has so long been appropriated in popular speech to describe a well-known offence that it is now usually adopted in legal works. It means trespassing on another's lands in pursuit of game; and it is likewise extended to the cognate offence of unlawfully fishing in another's waters.
(1) As to Poaching Game.—The general law as to who is entitled to game, and in what circumstances, is stated under the head GAME-LAWS. In
England there are a Day Poaching Act and a Night Poaching Act, imposing penalties on poachers. By the Day Poaching Act, 1831, whoever unlawfully goes upon lands not his own to pursue or kill Game (q.v.), rabbits, woodcocks, snipes, quails, or land-rails is liable to a penalty of £2. 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; but the poacher must be taken within twelve hours before the justice, otherwise he is entitled to go at large. In such a case a penalty of £5 may be inflicted. If game be found on the poacher at the time he is caught, and it appear to have been newly caught, the party who is entitled to arrest him 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 of Quarter Sessions; but he must either remain in custody in the interval, or give security for the costs. The offence of poaching is punished more severely when five or more go out together, and in such case each is liable to a penalty of £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 £5. By the Night Poaching Act, 1828, which applies to the United Kingdom, it is provided that any person by night—i.e. between the first hour after sunset and the first hour before sunrise—unlawfully trespassing in search of game shall for a first offence be committed by the justices to the house of correction for a period not exceeding three months; for a second offence shall be committed for a period not exceeding six months, the convicted person being in each case liable to a further term of imprisonment on failure to give securities at the end of his sentence; and for a third offence shall be guilty of a misdemeanour, and be liable to penal servitude or two years' imprisonment. 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 misdemeanour, and be punishable by penal servitude or two years' imprisonment. In case of three or more night-poachers being armed with guns, bludgeons, or other offensive weapons, each is guilty of a misdemeanour, and is liable to penal servitude or imprisonment for three years. The provisions of the Night Poaching Act were, by the amending Act of 1844, extended to public roads and highways, it having been found that the original act was evaded, and the risk of murder greatly increased by poachers frequenting such places.
Under the former law it was, as already mentioned, incompetent for any person except the owner or occupier of the lands or their servants to apprehend the poacher, and even this could be done only when the poacher was caught in the act on the lands; and hence even constables had no power to seize the poacher, though seen to be coming from such lands. But by the Poaching Prevention Act, 1862, which applies to the United Kingdom, if a constable meets a suspected poacher in any public place, whom he has reason to suspect of 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 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 for poaching, 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 used. The constable may also stop and search any cart in which he suspects there may be 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 be 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, inasmuch 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 transition 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 objection has been removed by the Game Laws Amendment Act, 1877, under which all summary prosecutions for poaching must be conducted before the sheriff or his substitute.
See Oke, Game Laws (new ed. 1881); Neville, Game Laws (new ed. 1884); Forbes Irvine, Game Laws of Scotland; A. Porter, The Gamekeeper's Manual (2d ed. 1889); Kent, The Fish and Game Laws of the State of New York (1888); and, for other sides of the subject, R. Jefferies, The Gamekeeper at Home (1878), and The Amateur Poacher (1880); John Watson, Poachers and Poaching (1891).
☛ (2) Poaching 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 rule is 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 uncommon 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 individual 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 subsequent 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 subject 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 highway for the purpose of fishing or pursuing game, the use of the highway, so far as the public are concerned, 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 angler, 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 the 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 privilege 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, however, to the poaching implements, such as nets, it is provided by an express section of the Larceny Act, 1861, that the owner of the fishery or land where the poacher is caught, or his servant, may demand, and if refused may seize, the net, rod, line, hook, or other implement used for taking the fish, but no other person can seize these. Large powers to arrest are given to water-bailiffs acting under the Fresh-water Fisheries Act, 1878.
The law of Scotland differs considerably from that of England. As regards fish other than salmon the general rule is that the riparian owner is entitled to catch all the fish he can, provided he do not interfere with the superior right of some crown grantee of the salmon-fishery. A person who poaches trout or other fresh-water fish with a net, or by double-rod fishing, or cross-line fishing, or set lines, &c., incurs a penalty of £5, besides forfeiture of the fish caught. And he may be arrested if he is net-fishing, but not if he is fishing in another way. Moreover a mere angler of trout, though a poacher, cannot be arrested nor yet punished by any penalty; though he is liable to an action of interdiction. In the case of all poachers of trout (except angling poachers, who can neither be arrested nor yet have their fish or fishing-rod taken from them by force), the owner of the fishery or any person authorised by him may seize the nets, boats, and fishing implements if the poachers are found on the spot. See the Fresh-water Fisheries (Scotland) Acts of 1845 and 1860. The public have no right to angle from a highway adjoining a stream. Where a stream runs through a farm the farmer has no right to angle for trout, unless the lease expressly allows it. The Irish law is practically the same as the English.
See Paterson's Fishery Laws (new ed. 1873); Oke's Fishery Laws (new ed. 1884); and, for Scotland, Stewart on Rights of Fishing (1869).