MENT," it will be seen that where an act declares an act to be unlawful, and omits mention of any specific penalty or punishment, the doing of that act is punishable as a misdemeanor, that is, by fine and imprison ment. The Third section of that statute then provides, that if any person shall pursue, take, kill, or destroy, or attempt so to do, any salmon, or salmon kind, by (certain means therein specified), or use any such means, or others, or lay down any kind of net, engine, &c., or wilfully do, or cause any act whatsoever in any river, &c. &c. "for the destruction of the brood, spawn, or small fry of salmon" (angling excepted), or erect (certain specified devices) so that the young fry, or young salmon, be prevented from going down from such rivers, &c. Such person, for the first offence, forfeits not more than 101., nor less than 51., and for the second, not more than 151., nor less than 101. And shall also forfeit all the fish, spawn, brood, or fry, so taken, and all the nets, weapons, lines, instruments, boats, devices, or things used in taking them. Thence you will observe that angling for salmon fry is not, unfortunately prohibited, but they may not, under the above penalties, be taken &c. by any other means. And by section 4th, No person shall take &c., or have in his possession, either on the water or on shore, or shall bring to shore, or cry, or carry about, sell, offer, or expose to, or for sale, exchange, &c., any spawn, fry, or brood of fish, or any unsizeable fish, or any kippar or sheddar salmon, being unseasonable salmon, or any salmon caught during the fence months. And the conservators, OR ANY OTHER PERSON, may take such fish, &c. wherever the same shall be found, and the baskets, &c. and give the party offending into charge of a constable, &c., who, with all convenient speed, is to bring the fish, &c. baskets, &c. and the offender, before a magistrate, who will then proceed, in the terms of the act. All the fish, &c., baskets, &c., are forfeited, and go to the party laying the information and prosecuting him to conviction, and the offender shall besides forfeit not more than 10., nor less than 51. So that whether the fry be taken, even by angling or otherwise, it may not not be exposed for sale, &c. And by section 6th. All penalties recovered in a summary way before magistrates, go half to the informer, and half to the poor of the parish, or if sued for in a superior court, under the section, go wholly to the informer. What more then can the legislature do than to provide a most ample remedy, and to place that remedy within the reach of any person. Why Lord Duncannon or "the Mayors of Towns," in particular, should be required to give instructions, or what higher authority is to be wished for, for enforcing these preservative laws than the act of * Chitty's (second edition) Burn's Justice, vol. 3, p. 403. parliament itself, I cannot see. Let me, therefore, impress on the correspondent and readers of the Old Magazine and of this Magazine, and on every other person, that it is the duty of and within the power of any and every person to prevent the mischiefs complained of. Now, my dear Sir, I say that in the above instance, it was the duty of the Editor of the Old Sporting, to have reprimanded his informant for not himself taking up the remedy, which the law has provided;there is a listlessness which I contend is reprehensible; an omission in not pointing out an absolute duty to prevent poaching and the dreadful destruction of that all important article of food and sport, salmon. But if we turn to another part of that magazine, we find, not only the sin of omission but the sin of commission also; not only the omission to disencourage, but the actual encouragement of poaching, as the following extract from an article on "Leistering" (in other words spearing)" salmon," when they are in the very act of spawning,-on the spawning beds, will show. "The severity of the present laws, and the practice of posting watchers all along the courses of the various waters in redding or close time, has almost put a stop to this favourite hyperborean pastime. That, as it is always liable to abuse, it was objectionable, there can be no question; but that the results of the restriction have by no means fulfilled its intention, is quite as apparent. The supply of fish, instead of increasing, has palpably decreased; and even the present tacksmen of the upper fisheries, and the watchers, now coincide in opinion with the old rod-fishers, and leisterers, or blazers, that it is the abuse of the practice, not the thing itself under reservation, which should be guarded against. But here is the difficulty, for which it appears morally impossible to provide a remedy. Stop a ranting Highland leisterer, quotha, as long as a fish could be found on a fiourd (ford). "Duncan Steward tells me, that some years since a trio, of which he was one, found a she-fish on the ford, and that they took six he-fish from her in succession, and then left her alone; the next night they found her with a smaller one, and, being good rod men, they left her. Now what Duncan Steward maintains, to which opinion there are now many converts, whom interest has brought round through experience from their pre-conceived opinions, is, that the taking away five or six he fish from the female, provided she be left with one, no matter how small, is of signal benefit; and from this well ascertained reason, when so many he-fish congregate, they fight desperately, so much so that many are often found dead from the injury, and this conflict is often repeated. Now the she-fish cannot, like the grey hen, retire from the crowding hill and hatch in safety, for the bed of incubation is the scene of conflict, and this often gets so completely broken up, that the ova are carried off and lost. This is the decided opinion, from patient and accurate observation, of men capable of deciding in all ways; and it is so apparently and obviously borne out, since leistering was all but stopped, that were I a proprietor of spawning water, and it was not, as it is, illegal, I would, execrating anything in the shape of poaching, give it a real trial." Now, let me ask, is this not a direct sanction to poaching? In the first place, would any man in his senses believe, that these leisterers are so nice and delicate in their operations, that they can detect the male from the female fish? Would any man think these leisterers so nice in their honour that they would only strike the male-fish? Why, because cock pheasants sometimes fight, it would be as well to allow poachers to go into your preserves, and trust to their delicate sense of right and prudence and honour to kill only cock pheasants, and such of those only as they may find fighting. What twaddle!! You will not, I am sure, fail to observe that the leistering goes on during spawning time only, and consequently when the fish ought to be most protected, and are worse than good for nothing as food; and let me ask were fish less plentiful before leistering was invented than since? to assert the affirmative, of which would not be more extravagant than to maintain, that the prevention of leistering has caused the falling off in the supply of salmon in the present day. I pray you, dear Editor, do not you become an advocate for such principles, or, like the pit goer at the theatre, I shall exclaim, "Silence, you rascals, or I'll leave the house!" I should not have intruded my thoughts on your valuable space, had you not once courted further communications. From your Well-wisher, AN OLD SALMON FISHER. * SIR, FISH PONDS AND BAD LAWS. To the Editor of the N. S. M. THE observations of your correspondent N. W. in the number for July last, under the above title, are to a certain extent very justifiable; and it certainly is an oversight, on the part of the legislature, that the attempt to commit the offences he complains of, is not specially provided for by the act 7 and 8 Geo. IV, c. 29, s. 34. No doubt, before long, we shall be able to obtain an amendment of the act in that respect. But N. W. is not altogether without redress, as I shall show presently. He complains that the greater offence is punishable only as a misdemeanor, entailing vast trouble and expense on the prosecution, while the lesser offence is punishable by penalties which are recoverNotice to Correspondents in the March Number, 1840. able in a summary manner before a justice of the peace. But surely, the liability to pay a penalty, and the right on payment thereof to be forthwith discharged, is not so heavy as the liability to fine and imprisonment, or to indictment at the sesions, even supposing bail be accepted; the law, at all events, considers the latter punishment to be far the heavier of the two. However, the case N. W. puts is so like one I had occasion to submit for the opinion of a counsel of great eminence, that in order to satisfy N. W. that the attempt to take fish in a private pond adjoining to a dwelling-house, is of itself a misdemeanor and punishable as such. I venture to send you both case and the opinion, which was given to me, for insertion if you think fit. "CASE. Your's, &c. A COUNTRY GENTLEMAN. "On the 25th of February last, at between one and two o'clock, A.M. one M-repeatedly dragged with a net a pond belonging to Mr. P――― in a lawn immediately adjourning to that gentleman's house, and which contained some very fine pike, tench, and carp. Owing, however, to the difficulty of dragging the pond, on account of certain piles driven into the bottom thereof, no fish were actually caught. Mr. P has been so annoyed by attempts of this de scription, that he has resolved to proceed against M if possible under the 7 and 8 Geo. IV. c. 29, s. 34. A doubt has, however, been suggested, whether the language of that section is sufficiently precise to include the offence in question, the words of that part of the section which relates to offences in ponds of this description adjoining dwellinghouses being, 'If any person shall unlawfully and wilfully take or destroy any fish,' &c., whereas in the present case nothing was actually taken or destroyed. Mr. is liable to any punishment for the above offence under the 7 and 8 Geo. IV. c. 29, s. 34.” "I am of opinion that M▬▬▬ is liable, under the section above referred to, to be indicted for a misdeamenor, and punished accordingly. It is true, as above observed, that the portion of the 34th section which relates to the offence in question in terms, only includes the actual taking or destroying of fish, but it is clear, that an attempt to commit a misdemeanor is itself a misdemeanor, whether the offence attempted be a misdemeanor at common law, or made such by positive enactment, as in the present instance (per Gron. J. R. Higgins, v. East, 18, Schofield's Case, Russ and R. C. C. 107 n.). Mmay therefore be prosecuted, and punished as in ordinary cases of misdemeanor, namely, by fine and imprisonment. 6th March, 18) J. S. W. Temple." NEWMARKET JULY MEETING. This Meeting, which was wont to be so well attended, and so popular a one, and we have seen a good ring formed at the bottom of the Windmill Hill on a Sunday afternoon,-is now a very jaded affair. Few arrive even on the Monday-and nothing like betting until within an hour of the start. On the present occasion there was a feeble muster, – a wholsale grant of bad weather (Joseph Hume would have objected to the supplies), and a very so so treat in the way of racing. There was no Crucifix on this occasion-nor anything within a stone of her. We proceed to the racing. Handicap Sweekstakes of 20 sovs. each, for three yr. olds; new T.Y.C.-Five subs. Mr. Beresford's Bob Peel, by Medero, 8st.-Conolly Lord Exeter's Hellespont, by Reveller, 8st. Mr. Ford's Ten-pound Note, by Taurus, or Augustus, 8st... .... 1 2 pd Betting: 2 to 1 each agst. Bob Peel and Miss Romer, and 4 to 1 agst. Hellespont.-Bob Peel made the play, followed by Hellespont and Ten-pound-note to the corner of the plantations, where they joined issue; Bob, however, defeated them in a few strides and won cleverly by a length. Match 50 sovs.-T.Y.C. ...... 1 2 Hon. G. S. Byng's Garry-owen, by St. Patrick, 8st. 71b.—Nat................. Lord Albemarle's Olive Branch, by Plenipo, 7 st. 9lb. Betting: 7 to 2 on Garry-owen.-Capt. Byng, or the Bird at his Ear, is a good match maker. Both jocks went on waiting orders for half the distance, when Nat's stirrup iron broke, and the horse went a length in advance of the mare; before reaching the cords they were together again, but half way up them the son of St. Patrick resumed his lead and won by a length easy. The July Stakes, a subscription of 50 sovs. each, 30 ft,, for two yr. old; colts, 8st. 7lb. ; and fillies, 8st. 5lb.; new T.Y.C.-Twentyseven subs. Mr. Wilson's br. c. by Voltaire, out of Yorkshire Lass.-Rogers 1 2 Mr. Thornhill's Messene, sister to Montezuma.. Lord Exeter's f. by Sultan, out of Marchesa....... Mr. Thornhill's b. c. Eolian, by Emilius, out of Kate Kearney 0 |