A Treatise of the Pleas of the Crown

In what case the justices may discharge the suitor of good abearing.

No person shall kill conies in a warren not inclosed.

"at the least, or keepers or warreners in their parks, warrens, or "grounds belonging to their charge; that then any person having "lands, tenements, or hereditaments, of the clear yearly value of one hundred pounds in fee-simple, fee-tail, or for life, in his own right, or in the right of his wife, may take from the person "or possession of such malefactor or malefactors, and to his "own use for ever keep, such guns, bows, cross-bows, or enginehayes, gate-nets, purse-nets, ferrets, and coney-dogs."

+ Sect. 5. By 3 Jac. 1. c. 13. s. 6. it is further enacted, "That "if any person or persons, at any time hereafter, shall fortune to "be bound before any the justices before-mentioned, to the king, "his heirs or successors, for his or their good abearing for seven years, according to the tenor of this act, and the same party or "parties so bound shall afterward, within the said seven years, come before the justices of the peace of the said county where "the said offence was committed, or some of them, in open quarter-sessions, and there in the said sessions confess and " acknowledge his or their said offence or offences, and that he "or they is or are sorry therefor, and satisfy the party or parties grieved, according to the tenor of this act: that then the same "justices before whom the said confession shall be so made, "shall and may have power and authority by virtue of this act, "in the same open sessions, or in any other sessions afterwards "to be holden before the said justices in the said county, within "the said term of seven years, if it shall seem good to their discretions, to discharge the said recognizance and bond so taken, "and also the said party and parties so bound; this act, or any thing therein contained, to the contrary thereof notwithstanding."

+ Sect. 6. By 3 Jac. 1. c. 13. s. 7. it is provided, "That this "act, or any thing herein contained, do not extend to any park or inclosed ground hereafter to be made and used for conies, "without the grant or licence of our sovereign lord the king, his " heirs or successors."

Sect. 7. By 3 Jac. 1. c. 13. s. 8. it is further provided, "That this act, nor any therein contained, shall extend to any "offence or offences concerning the hunting, chasing or killing " of conies, which shall be done or committed in the day-time, "but only to such offences as shall be hereafter done or com"mitted in the night-time only; any thing in this act contained "to the contrary thereof notwithstanding."

+ Sect. 8. By 22 and 23 Car. 2. c. 25. s. 4. IT IS RECITED, "That divers warrens and grounds, not inclosed, are used for the breeding and keeping of conies in several parts of this kingdom, and that sundry dissolute and disorderly persons have been much encouraged to kill and destroy the conies in such warrens and grounds not inclosed, in the night-time, for that the same is not prohibited or punishable by the statutes in that behalf made and provided, which extend only to the stealing and killing of conies in warrens or grounds inclosed:" AND ENACTED, That "if any person or persons shall at any time enter wrongfully " into any warren or ground lawfully used or kept for the breeding

"or

"or keeping of conies (although the same be not inclosed), and "there shall chase, take, or kill any conies against the will of "the owner or occupier thereof, not having lawful title or "authority so to do, and shall be thereof lawfully convicted in "manner hereafter following, the parties so offending shall yield "to the party grieved treble damages and costs, and suffer im- Forfeiture. "prisonment by the space of three months, and after, till they "shall find sureties for their good abearing."

the borders of

any warren, ex

+ Sect. 9. By 22 and 23 Car. 2. c. 25. s. 5. IT IS RECITED, No person shall "That divers idle and disorderly persons living near unto war- in the night kill rens, have of late time used to kill and take the conies upon the any conies on borders of the same, and, under colour thereof, do oft-time enter into the said warrens, and there take and kill conies in the night- cept the owner time, when they cannot easily be discovered:" AND ENACTED, of the ground. "That no person or persons shall at any time hereafter kill or "take in the night-time any conies upon the borders of any "warrens, or other grounds lawfully used for the breeding or "keeping of conies, excepting only such person or persons as "shall be owner of the soil, or lawful occupier or possessor of "the ground, or any person or persons employed by him, her, or "them, whereupon such conies shall be so killed or taken, upon "pain that every person so offending, and being thereof lawfully "convicted in manner hereafter following, shall give the party or “parties injured, such recompense or satisfaction for his or their The penalty. "damages, and within such time as shall be appointed by the "justice before whom such offender shall be convicted, and over "and above pay down presently unto the overseers, for the use "of the poor of the parish where such offence shall be com"mitted, such sum of money, not exceeding ten shillings, as the Isaid justice shall think meet: and if such offender or offenders "do not make recompense or satisfaction to the said party or parties injured, and also pay the said sum to the poor in man"ner and form aforesaid, then the said justice shall commit the "said offender or offenders to the house of correction for such "time as the said justice shall think fit, not exceeding one "month."

Sect. 10. By 9 Geo. 1. c. 22. "If any person or persons, "being armed with swords, fire-arms, or other offensive weapons, " and having his or their faces blacked, or being otherwise disguised, shall appear in any forest, chase, park, paddock, or grounds inclosed with any wall, pale, or other fence, or in any "warren or place where conies have been or shall be usually "kept, or shall unlawfully rob any warren or place where conies are usually kept; or shall forcibly rescue any person, being "lawfully in custody of any officer or other person, for any of the "offences above-mentioned; or if any person or persons shall, "by gift or promise of money or other reward, procure any of his "majesty's subjects to join him or them in any such unlawful act, every person so offending shall suffer death without benefit "of clergy." Repealed by 4 Geo. 4. c. 54. as to so much of the above act which takes away benefit of clergy.

Imprisonment.

Felony.

+ Sect. 11. By 5 Geo. 3. c. 14. s. 6. IT IS RECITED, "That Persons conthere are many thousand acres of land in this kingdom altogether victed of enunfit

VOL. I.

tering warrens

in the nighttime, and taking or kill ing conies

there, may be punished by transportation,

&c.

unfit for cultivation, and yet the same are capable of rendering great profit, by the breeding and maintaining conies; as well to the owners of such lands, as to a multitude of industrious manufacturers, who gain their livelihood by working up coney wool; and that a great part of the said land is already used as warrens, in the breeding and maintaining conies; but because divers disorderly persons, neglecting their own lawful trades, have betaken themselves to the taking, killing, and stealing of conies in the night-time, whereby the owners and occupiers of such warrens are greatly discouraged, and many such owners and occupiers have been induced to destroy such warrens, and others have been deterred from stocking other lands, to the great prejudice of the manufacturers of this kingdom; and that the provisions already subsisting have, by experience, been found insufficient for the effectual preservation of conies in warrens;" AND ENACTED, "That if any person or persons shall wilfully and wrongfully, in "the night-time, enter into any warren or grounds lawfully used "or kept for the breeding or keeping of conies, although the same be not inclosed, and shall then and there wilfully and "wrongfully take or kill, in the night-time, any coney or conies, "against the will of the owner or occupier thereof, or shall be "aiding and assisting therein, and shall be convicted of the same "before any of his majesty's justices of oyer and terminer, or "general gaol delivery, for the county where such offence or of"fences shall be committed; every such person and persons so offending, and being thereof lawfully convicted in manner "aforesaid, shall and may be transported for the space of seven years, or suffer such other lesser punishment by whipping, "fine, or imprisonment, as the court, before whom such per"son or persons shall be tried, shall, in their discretion, award " and direct."

+ Sect. 12. By 5 Geo. 3. c. 14. s. 7. it is provided, "That no person who shall be convicted of any offence against this act, "shall be liable to be convicted for any such offence under any "former act or acts, law or laws, now in force."

+ Sect. 13. By 5 Geo. 3. c. 14. s. 8. IT IS RECITED, That great mischief and damage had been, and still may be occasioned by the increase of conies upon the sea and river banks in the county of Lincoln, or upon the land or ground within a certain Act not to exdistance from the said banks;" AND ENACTED, "That nothing tend to destroy" in this act contained shall extend, or be construed to extend, to ing conies in

the day-time,

in Lincoln, &c.

prevent any person or persons from killing and destroying, or "from taking and carrying away, in the day-time, any conies that "shall be found on any sea or river (1) banks, erected, or to be "erected, for the preservation of the adjoining lands from being "overflowed by the sea or river waters, so far as the flux and "reflux of the tide does or shall extend, or upon any land or "ground within one furlong distance of such sea or river banks, far as the flux and reflux of the tide does or shall extend, "or upon any land or ground within one furlong distance of such

"sea

(1) This exemption is obviously meant to protect the sea and river banks, to which the burrows of rabbits will do considerable damage.

"sea or river banks; but that it shall and may be lawful to and "for any person or persons to enter upon any such banks, land, "or ground, as aforesaid, within the said county of Lincoln, and "to kill, destroy, take, and carry away, in the day-time, to his or "their own use, any conies so found upon any such banks, land, " or ground, as aforesaid, within the said county, he or they doing "as little damage as may be to the owner or tenant of such "banks, land, or ground; any thing in this or any other act con"tained to the contrary notwithstanding."

+ Sect. 14. By 5 Geo. 3. c. 14. s. 9. it is also provided, "That "no person or persons shall be obliged to make satisfaction for any damages that may be occasioned by such entry, unless "such damages shall exceed the sum of one shilling."

The general result of these statutes appears to be, that by st. of Jas. 1. c. 13. if a wrongdoer shall hunt, drive out, take, or kill any coney, in the night-time, in any inclosed ground kept for that purpose, which was such at the time of passing the act, or has become so since by the king's licence, he may be prosecuted for the misdemeanor at the assizes or sessions. By the stat. 22, 23 Car. 2. c. 25. s. 4. if he chase, take, or kill any coney, either by day or night, in any ground used for keeping conies, whether inclosed or not, he is liable to be convicted before a magistrate. The stat. 5 Geo. 3. c. 14. gives jurisdiction to the justices of oyer and terminer and gaol delivery, where the offence of taking or killing any coney is committed, in the night-time, in any ground which is usually appropriated for the keeping of them, whether inclosed or not; and gives a discretionary power of transporting the offender. And if any such place, where hares or conies are kept, be robbed at any time by any offender armed and disguised, it is made felony without benefit of clergy by the stat. 9 Geo. 1. c. 22. (2 E. P. C. 614.)

But now by stat. 4 Geo. 4. c. 54. the punishment of death inflicted by the 9 Geo. 1. on those killing conies, and being armed and disguised, is repealed; in lieu whereof is substituted transportation for seven years, or imprisonment for three years, with or without hard labour, at the discretion of the court.

Deer Stealing.

+ Sect. 1. By 9 (1) Geo. 1. c. 22. "If any person or persons, being armed with swords, fire-arms, or other offensive wea

(1) This act, which is generally known by the title of the Black Act, creates a variety of offences, of which the following is an abstract.

(1)" If any person or persons, being armed with swords, fire-arms, or other offensive weapons, and having his or their faces blacked, or being otherwise disguised, shall appear in any forest, chase, park, paddock, or grounds inclosed with any wall, pale, or other fence, wherein any deer have been or shall be usually kept.

Or (2) in any warren or place where conies have been or shall be usually kept.

Or (3) in any high road, open heath, common or down.

"pons,

Or (4) shall unlawfully and wilfully hunt, wound, kill, or destroy any red or fallow deer. Or (5) unlawfully rob any warren or place where conies or hares are usually kept.

Or (6) shall unlawfully steal, take and carry away any fish out of any river or pond.

Or (7) if any person or persons (that is, not being armed or disguised, or whether so or not) shall unlawfully and wilfully hunt, wound, kill, destroy, or steal any red or fallow deer fed or kept in any places in any of his majesty's forests or chases which are or shall be inclosed with pales, rails, or other fences; or in any park, paddock, or grounds inclosed where deer have been or shall be usually kept.

pons, and having his or their faces blacked, or being otherwise disguised, shall appear in any forest, chase, park, paddock, or "grounds inclosed with any wall, pale, or other fence, wherein

any deer have been or shall be usually kept, or shall unlaw"fully and wilfully hunt, wound, kill, destroy, or steal any red or "fallow deer; or if any person or persons (whether armed and "disguised or not) shall unlawfully and wilfully hunt, wound, "kill, destroy, or steal any red or fallow deer, fed or kept in any places in any of the king's forests or chases which are or shall "be inclosed with pales, rails, or other fences; or in any park, "paddock, or grounds inclosed, where deer have been or shall "be usually kept; or shall forcibly rescue any person, being law"fully in custody of any officer or other person, for any the said "offences; or shall, by gift or promise of money, or other "reward, procure any to join him or them in any such unlawful "act: every person so offending, being thereof lawfully con"victed (in any county in England), shall be guilty of felony "without benefit of clergy; but not to work corruption of "blood, nor forfeiture of lands or goods.'

and

+ Sect. 2. By 16 Geo. 3. c. 30. IT IS RECITED, "that the statutes now in force for the discovery and punishment of deerstealers are numerous, and many of them ineffectual whereas the good purposes thereby intended might be better effected, if such of the said statutes as are found to be defective were repealed, and such good provisions as are therein contained, together with such further provisions as may be expedient, were Penalty on any reduced into one act;" and therefore ENACTED, "That if any

persons who shall hunt, &c. any fallow deer, in any forest,

&c.

person or persons shall course or hunt, or shall take in any "slip, noose, toyle, or snare, or shall kill, wound, or destroy, or "shall shoot at, or otherwise attempt to kill, wound, or destroy, or shall carry away, any red or fallow deer, in any forest, chase, purlieu, or ancient walk, whether inclosed or not, or in any "inclosed park, paddock, wood, or other inclosed ground, where "deer are, have been, or shall be usually kept, without the con"sent of the owner, or without being otherwise duly authorised, 66 or shall be aiding, abetting, or assisting therein or thereunto, "every person so offending, by coursing, hunting, shooting at, "or otherwise attempting to kill, wound, or destroy, or by aiding "therein, or thereunto, shall forfeit, for every such offence, the "sum of twenty pounds; and every person so offending by "killing, wounding, or destroying, or by taking in any slip,

Or (8) shall unlawfully and maliciously break down the mound or head of any fish-pond whereby the fish shall be lost and destroyed.

Or (9) shall unlawfully kill, maim, or wound any cattle.

Or (10) cut down or otherwise destroy any trees planted in any avenue, or growing in any garden, orchard, or plantation, for ornament, shelter, or profit.

Or (11) shall set fire to any house, barn, or outhouse, or to any hovel, cock, mow, or stack of corn, straw, hay, or wood.

Or (12) shall wilfully and maliciously shoot any person in any dwelling-house or other place.

Or (13) shall knowingly send any letter without

noose,

any name subscribed thereto, or signed with a fictitious name, demanding money, venison, or other valuable thing.

Or (14) shall forcibly rescue any person being lawfully in custody of any officer or other person for any of the offences before-mentioned.

Or (15) if any person or persons shall, by gift or promise of money, or other reward, procure any of his majesty's subjects to join him or them in any such unlawful act, every person so offending, being thereof lawfully convicted, shall be adjudged guilty of felony, and shall suffer death as in cases of felony without benefit of clergy."-See postea as to the repeal (by st. 4 Geo. 4. c. 54.) of so much as excludes benefit of clergy, p. 189.

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A Treatise of the Pleas of the Crown: Or, A System of the ..., Volume 1