instrument he had in his hand, he gave the keeper a violent blow on the leg, which cut through the gaiter, and wounded him: it was objected at the trial, that as only one had given the blow on the leg, he alone was guilty; but the judge told the jury that if they were of opinion that the prisoners were acting in concert, they were all equally guilty: afterwards, before the judges, it was objected, that as the keeper did not find the prisoners in the wood, he had no right to stop them, and the assistant's doing so by taking hold of the gun, was sufficient provocation to reduce the case from murder to manslaughter, if death had ensued; but the judges held the conviction right.(a) See as to killing upon slight provocation,(b)[1]

(a) R. v. Warner, Albone, Rutler, & Chasham, Ry. & M. 380; 5 Car. & P. 525.

(b) Ante, p. 226.

[1] It has been held that if persons standing in a road hang nets on the twigs of a hedge within a close, it is an entry within sec. 9. Some poachers standing in a lane spread their nets upon the twigs of a hedge, which separated the lane from the close; Alderson, B., said, "I shall tell the jury that if they are satisfied that, in effecting a common purpose by all the defendants, the nets were hung upon the twigs of the hedge so as to be within the field, it was an entry. Lord Ellenborough, C. J., in Pickering v. Rudd, (1 Stark. N. P. C. 56; 4 Camp. 219,) stating that he had once held that firing a gun loaded with shot into a field was a breaking of the close, and I am of opinion that if these defendants so placed the nets within the field it was an entry by them all." Athen's case, 2 Lewin, 191. But in a simi lar case it was held that if persons standing in a road set nets in the hedge-row of an adjoining field, and send a dog into the field to drive game into the nets, this is not an entering of land within sec. 9. Poachers were seen setting nets in the hedge-row of a field, they being on the other side of the hedge in a turnpike-road, they also sent a dog into the field, which drove a hare into one of the nets; it was contended that the sending of the dog into the field to drive the hares into the nets was in point of law, an entering into the field; but it was held that it would be straining the words too much in a criminal case to hold that this was within the statute. Reg. v. Nickless, 8 C. & P. 757, Patteson, J.

If the indictment state that the defendants entered into a close with intent, then and there, to kill game, it must be proved that the defendants had the intent to kill game in the particular close named. Thus, where upon an indictment under the repealed statute so laying the intent, the jury found that the defendant was still in pursuit of game, but they could not say whether in the close specified or elsewhere; the judges held that as the entry, with intent to kill game, was confined by the indictment to the close specified, it was necessary to prove the intent as to that close. Rex v. Barham, R. & M. C. C. R. 151. And upon a similar indictment under the new act, where it appeared that the prisoners were seen in the field laid in the two first counts, but it was not shown that they were doing any act tending to the destruction of game in it; and it rather seemed that they were merely crossing it in their way from one wood to another; Parke, B., held that the first two counts made it necessary to show that the prisoners were in the field laid for the purpose of killing game there. Rex v. Capewell, 5 C. & P. 549. So where on a similar indictment for entering Breadstone plantation, it appeared that a gun was heard about a quarter of a mile from the plantation, and the prisoners were seen in the plantation with a gun, and there were many pheasants roosting in the plantation, which the prisoners must have seen, but they did not fire at any of them. Coleridge, J., said, in summing up, "You must say whether these persons were in this particular covert with an intent to kill game there. If you can suppose that they had gone out on that night poaching in every other covert in the county, that will not be sufficient to support the charge contained in this indictment, if they were not in this partic

And the poachers must be found on the land, committing the offence in the night time, that is to say, from the expiration of the first hour after sunset, until the beginning of the last hour before sunrise.(a) And where a gamekeeper *hearing a shot fired in a [*248] plantation of his master, saw the prisoner there, who dropped

a hen pheasant; the keeper went towards him, and he fired at him. but at the trial the keeper could not swear that this was before eight o'clock in the morning; and it was then objected, that as it was not shown that the prisoner was in the plantation in the pursuit of game one hour before sunrise, the keeper had no right to apprehend him: and the objection was holden good.(b)[1]

(a) Ante, p. 245.

(b) R. v. Tomlinson, 7 Car. & P. 183.

ular covert with intent to destroy game there. It lies on the prosecutor to make out to your satisfaction that the prisoners had an intent to kill game in this particular covert; the intent can in this case only be inferred from the conduct of the parties, and it is here shown that there was game which the defendants must have seen, but did not make the slightest attempt to destroy." Rex v. Gainer, 7 C. & P. 231.

A doubt is stated in the marginal note of Rex v. Barham, (R. & M. C. C. R. 151,) whether it is necessary that the defendant should have such an intent in the place in which he is found armed, unless it be so stated in the indictment, and Rex v. Worker, (R. & M., C. C. R. 165,) is referred to, but in that case, although the indictment was general, no such question arose; and it should seem that whether the words "then and there" be in the indictment or not, the entry into the close must be proved to be with intent to kill game in such close, for unless such be the case the entry was made into that close, not with intent to kill game, but with some different intent, as, for instance, to pass over it. And where it appeared that the prisoners were in Shutt Leasowe, a place named in the indictment, and which adjoined Short Wood, and were apparently going to the wood, Mr. J. Patteson, said, "the intent was evidently to kill game in the wood, into which none of the parties ever got for that purpose; it is true that they are charged with being in Shutt Lasowe, but they had no intention of killing game there; they must be acquitted." Reg. v. Davi, 8 C. & P. 759.

The indictment must in some way or other particularize the place; for the defendant has a right to know to what specific place the evidence is to be directed: and stating that in the parish of A. the party entered into a certain close there, was held not sufficient under the repealed statute. The first count of an indictment stated, that the defendant, at the parish of Whitford, in the county of Northumberland, having entered into a certain close there situate, with intent there illegally to kill game, was there found at night armed with a certain gun; and the second count charged him in like manner with having entered into a certain inclosed ground: but neither the close nor the inclosed ground were described by name, ownership, occupation, or abuttals. And upon a case reserved, Abbott, C. J., Holroyd, J., and Park, J., thought any such description unnecessary; but Burrough, J., Garrow, B., Best, J., Hullock, B., and Bayley, J., thought otherwise, because this was substantially a local offence, and the defendant was entitled to know to what specific place the evidence was to be directed; and the judgment was arrested. Rex v. Ridley, T. T. 1823; Russ. & Ry. 515. So it has been held under the new statute that an indictment for entering "a covert in tho parish of A." is too general. Rex v. Crick, 5 C. & P. 508. to allege that the defendants entered certain land in the without stating whether the land was inclosed or not. Gurney, B.

But it has been held sufficient occupation of a person named, Rex v. Andrews, 2 M. & Rob. 37;

[2] The indictment must allege not only an entry by night, but an arming by night. An indictment alleged that the defendants did by night unlawfully enter divers closes and enclosed lands, and were then and there in the said closes and lands, armed with guns for the

(c) In impressing seamen.[2]

To render the impressment of a seaman legal, there must be a legal warrant from the lords of the Admiralty; the warrant must be executed by a proper officer; and the parties impressed must (in the usual terms of the warrant) be "seamen, seafaring men, and others whose oc

purpose of then and there taking and destroying game; it was objected that the words "then and there" did not mean that the defendants were there by night, but only on the day, and at the place aforesaid; and it was held that the indictment was bad. If the words "by night" had occurred at the beginning of the sentence, they might have governed the whole, or if they had been at the end of the sentence they might have referred to the whole; but here they are in the middle of the sentence, and are applied to a particular branch of it, and cannot be extended to that which follows. The two members of the sentence are distinct; the first states the entry into the close by night, but does not state that the defendants were armed, or the intent with which they entered; the second branch states, that they were in the closes armed, for the purpose of destroying game, but does not state that they were there by night. Neither of those branches of the sentence contains all that is requisite to constitute an offence within the statute, and the two being distinct the indictment is bad. Davies v. Rex, 10 B. & C. 89.

The indictment need not contain any specific allegation that the defendants entered the close between the expiration of the first hour after sunset and the beginning of the last hour before sunrise, the period which, by the 12th section of the statute, it is provided, shall be considered night. Riley's case, 1 Lewin, 149, Parke, B. Pearson's case, 1 Lewin, 145, Gurney, B.

The indictment may contain counts not only on the 9th section, but also on the 2nd, for assaulting a gamekeeper authorized to apprehend, for assaulting a gamekeeper in the execution of his duty, and for a common assault, (Rex v. Finacane, 5 C. & P. 551, and MS. C. S. G. Parke, B. Rex v. Simpson, Stafford Spring Ass. 1830, Bolland, B.,) and if there be any doubt as to the number of persons not amounting to three, or the proof their being out in pursuit of game, it certainly would be prudent to add such counts in all cases where an assault has been committed. Where an indictment, after stating the entry into the land by night, proceeded thus, the defendants "being then and there by night as aforesaid armed with a gun;" and it was objected that this averment was not sufficient, because "then" meant only the day and year aforesaid, and not the time of the entry; Mr. B. Parke said, he would leave the defendants to their writ of error, but advised the insertion of the words, "at the time when they so entered," in such indictments in future. Rex v. Wilks, 7 C. & P. 811. Where an indictment alleged, that the defendants did enter, and were in certain land, they "being then and there by night as aforesaid armed with guns, and other offensive weapons," and it was objected that the indictment did not contain any sufficient allegation that the defendants were armed when they entered the land; it was held, that the indictment was sufficient, as all the requisites of the statute had been complied with. Rex v. Kendrick, 7 C. & P. 184, and MS. C. G. S. Coleridge, J.

Where there was one indictment for shooting at a gamekeeper with intent to murder him, and another indictment for night poaching, both founded on the same transaction, it was held that the prosecutor was not bound to elect which he would proceed upon, as the offences were quite distinct, and one of them could not possibly merge in the order. Rex v. Handley, 5 C. & P. 565, Parke, B.

[2] The impressment of seaman, is hardly consistent with the temper and genius of a free government. It can only be defended, on the ground of its necessity for the safety of the country; in order that the government may be enabled in time of need, thus premptorily to call for the services of persons who have freely chosen a seafaring life and whose education and habits, have fitted them for the employment.

cupations and callings are to work in vessels and boats, upon rivers." See the form of the warrant.(a)

1. There must be a legal warrant; if there be none, and the party impressing be killed, it is manslaughter only.(b) If the party impressed be killed, it is murder. If on the other hand, there be a legal warrant, and it be executed legally, and the person impressed be a proper object of impressment, if the officer or any of the men acting under his immediate orders be killed, it is murder ;(c) if in the struggle the party impressed be killed, it is justifiable homicide; but if the party impressed be killed in flight, it will be manslaughter at least, perhaps murder, in the same manner as in cases of misdemeanor.(d)[3]

2. The warrant must be executed by the proper officer. The warrant requires that the person entrusted with the execution of it, must be a commissioned officer, expressly deputed in writing endorsed on the warrant, under the hand and seal of the officer to whom the warrant is directed. Where the warrant was directed to the captain of a man-ofwar, and he deputed his lieutenant, but neither were present when some seamen of the ship, by their verbal orders, attempted to impress a seaman, who resisted and killed one of the pressgang: this was holden to be manslaughter only ;(e) if the seaman had been killed, it would have been murder.(g)

3. The party impressed must be a "seaman, seafaring man, or other whose occupation or calling is to work in vessels or boats on rivers."(h) Therefore, where the mate and some seamen of a ship of war, in the

(a) Fost. 156.

(b) See Huggett's case, Kel. 59.

(c) 1 East, P. C. 308.

(d) 1 East, P. C. 308; see ante, p. 222.

(e) Bradfoot's case, Fost. 154.

(g) Dixon's case, 1 East, P. C. 313; see Borthwick's case, 1 Doug. 207. (h) Supra.

[3] In cases of pressing for the sea service, if the party fly, the killing by the officer, în the pursuit to overtake him, will be manslaughter, at least, and in some cases murder, according to the rules which govern the case of misdemeanors; paying attention, nevertheless to those usages which have prevailed in the sea service, in this respect, so far as they are authorized by the courts which have ordinary jurisdiction over such matters, and are not expressly repugnant to the laws of the land. An officer in the impress service, put one of his seaman on board a boat belonging to one William Collyer, a fisherman, with intent to bring it under the stern of another vessel, in order to see if there were any fit objects of the impress service on board. The boat steered away in another direction; and the officer pursued in another vessel for three hours firing several shots at her, with a musket loaded with ball, for the purpose of hitting the halyards, and bringing the boat to, which was found to be the usual way, and one of the shots unfortunately killed Collyer. The court said it was impossible for it to be more than manslaughter Rex v. Phillips, Cowp. 830. It is presumed, that this decision proceeded on the ground that the musket was not levelled at the deceased, nor any bodily hurt intended to him. But inasmuch as such an act was calculated to breed danger, and not warranted by law, though no bodily hurt were intended, it was holden to be manslaughter, and the defendant was burned in the hand. 1 East, P. C. C. c. 5, s. 75. p. 308.

absence of the deputed officer, attempted to impress one How, who was servant to a tobacconist, and never was a mariner, and How made some resistance, and took out his knife, when one of the seamen hit [*249] *him a violent blow on the side of the head, with a large walking stick, having a great knob at the end of it, and he died of it: this was holden to be murder, because the party was not liable to be impressed, and the deputed officer was not present and acting in the impressment.(a) So, where a warrant was directed by the Admiralty to Lord Danby to impress seamen, and one Browning his servant, without any warrant in writing, impressed a person who was no seaman, who, trying to escape, was killed by Browning; this was adjudged to be murder.(b)[1]

(a) Dixon's case, supra.

(b) 1 East, P. C. 312.

[1] In England, the practice of impressing seamen, and of granting powers to the admiralty for that purpose, seems to be of very ancient date, and to have been uniformly continued by a regular series of precedents to the present time; from which circumstance, it has been said to form part of the common law of the land, Fost. 154, 168; Comb. 245; Burr. 245; R. v. Jubbs, Cowp. 517; Ex parte Fox, 5 T. R. 276. And, though no statute has expressly declared this power to be in the crown, there are certainly many which very strongly imply it.

Thus, the 2 Ric. 2, c. 4, speaks of mariners being arrested and retained for the king's service, as of a thing well known, and practised without dispute; and provides a remedy against their running away.

By 2 & 3 Ph. & M. c. 16, sec. 8, also, if any watchman, who uses the river Thames, shall hide himself during the execution of any commission of pressing for the king's service, he is liable to be imprisoned for two weeks, and be suspended from his calling for a year and a day.

By 5 Eliz. c. 5, no fisherman shall be taken by the queen's commission to serve as a mariner; but the commission shall be first brought to two magistrates inhabiting near the sea coast where the mariners are to be taken, to the intent that the justices may choose out and return such a number of able-bodied men, as in the commission are contained, to serve her majesty.

By many subsequent acts, also,-such as the 7 & 8 W. 3, c. 21., 2 Ann. c. 6., 4 & 5 Ann. c. 19., 13 G. 2 c. 17., 2 G. 3, c. 15., 11 G. 3, c. 38., 19 G. 3. c. 75, &c.,—especially protections are allowed to certain classes of seamen, under particular circumstances, to prevent them from being impressed. Ferrymen, likewise, are said to be privileged from being impressed at common law. Sav. 14. But a seafaring man serving the office of headborough is not thereby exempted. Ex parte Fox, 5 T. R. 276. All which, says Sir W. Blackstone, do most evidently imply a power of impressing to reside somewhere; and, if anywhere, it must, from the spirit of our constitution, as well as from the frequent mention of the king's commission, reside in the crown alone. 4 Bl. 419.

Many have thought it would be more desirable to have a public register for seamen; so that, when the public safety required it, the services of these men might be immediately called forth. But, in considering this plan it should be remembered that a sailor's life is not one of fixed abode; and, when the dangers of the country might most urgently demand a prompt supply of mariners to man our fleets, the register men might then be on distant voyages; or even, though employed in the coasting trade, a delay most ruinous to the nation might be caused, before the necessary complement of men could be obtained. The expedient of a register was, indeed, attempted about the middle of King William's reign, when a