promotes idleness, and takes them away from their proper employments and callings; which is an offence against the [175] public police and economy of the commonwealth.

years

The statutes for preserving the game were many and various, and not a little obscure and intricate; it being remarked, that in one statute only, 5 Ann. c. 14, there is false grammar in no fewer than six places, besides other mistakes; the occasion of which, or what denomination of persons were probably the penners of the statutes, I shall not at present inquire. It is in general sufficient to observe, that the qualifications for killing game, as they were usually called, or more properly the exemptions from the penalties inflicted by the statute law, were, 1. The having a freehold estate of 1007. per annum: there being fifty times the property required to enable a man to kill a partridge, as to vote for a knight of the shire: 2. A leasehold for ninety-nine of 150%. per annum: 3. Being the son and heir apparent of an esquire (a very loose and vague description), or person of superior degree: 4. Being the owner, or keeper, of a forest, park, chace, or warren. For unqualified persons transgressing these laws, by killing game, keeping engines for that purpose, or even having game in their custody, or for persons (however qualified) that killed game or had it in their possession, at unseasonable times of the year, or unseasonable hours of the day or night, on Sundays or on Christmas-day, there were various penalties assigned, corporal and pecuniary, by different statutes;t on any of which, but only on one at a time, the justices might convict in a summary way, or (in most of them) prosecutions might be carried on at the assizes. And lastly, by statute 28 Geo. II. c. 12, no persons, however qualified to kill, might make merchandize of this valuable privilege, by selling or exposing to sale any game, on pain of like forfeiture as if he had no qualification.

'After repeated discussions in and out of Parliament, all these statutes were repealed by the act 1 & 2 Will. IV. c. 32, whereby the necessity of any qualification for the killing of game was abolished; and the right to do so was made to depend simply on the payment of an annual tax, called a

• Burn's Justice, Game, s. 3.

Burn's Justice, tit. Game.

Night-poaching.

game certificate." In the absence of express stipulation to the contrary, the occupiers of land are not entitled to the game in preference to the owner, and the sale of game (formerly strictly prohibited), by licensed persons, is recognized.'

At the same time the offence of trespassing by night in pursuit of game, or in other words the crime of night-poaching, is made highly penal by the statute 9 Geo. IV. c. 69, by which, persons taking or destroying game or rabbits by night, or entering or being in any land for that purpose, are punishable, for the first offence, upon summary conviction, with imprisonment for three months, and hard labour, and bound to find sureties for a year; for the second offence, with six months' imprisonment, and to find sureties for two years; and upon the third, are guilty of a misdemeanor, and liable to transportation for seven years (now penal servitude), or imprisonment to hard labour for any term not exceeding two years. Power is given to the owners or occupiers of land, lords of manors, their gamekeepers or servants, to apprehend such offenders; and persons who assault or offer violence with any gun, or other offensive weapon, towards any person thus authorized, are guilty of a misdemeanor, and liable to transportation for seven years (now penal servitude), or imprisonment and hard labour for any term not exceeding two years. If any persons, to the number of three or more together, by night enter or be in any land, for the purpose of taking or destroying game or rabbits, any of such persons being armed with any gun or other offensive weapon, every of them is guilty of a misdemeanor, and subject to transportation for any term not exceeding fourteen, nor less than seven years, or to imprisonment and hard labour for any term not exceeding three years.'

On the other hand, the modes often resorted to by landowners themselves, for preventing trespassing, are restrained within certain limits. Thus by the statute 7 & 8 Geo. IV. c. 18, if any person set, or place, any spring-gun, man-trap, or other engine calculated to destroy human life or inflict bodily harm, with the intent that the same, or whereby the

Hares may, however, now be killed by the occupiers or owners of land,

without their taking out a game certificate, 11 & 12 Vict. c. 29.'

same, may destroy or inflict grievous bodily harm, upon a trespasser or other person coming in contact therewith, the person so setting such gun, trap, or other engine, is guilty of a misdemeanor. This does not, however, extend to make it illegal to set any gun or trap, such as may be usually set with the intent of destroying vermin. And notwithstanding this statute, the setting of a dangerous engine (as dog-spears) with intent to preserve the game, and to disable dogs coming upon the land, in pursuit of it, is not unlawful."

▾ Jordin v. Crump, 8 M. & W. 782.

CHAPTER XIV.

OF HOMICIDE.

[176] IN the ten preceding chapters we have considered, first, such crimes and misdemeanors as are more immediately injurious to God and his holy religion; secondly, such as violate or transgress the law of nations; thirdly, such as more especially affect the sovereign, the father and representative of his people; fourthly, such as more directly infringe the rights of the public or commonwealth, taken in its collective capacity; and are now, lastly, to take into consideration those which in a more peculiar manner affect and injure individuals or private subjects.

Offences against individuals.

Were these injuries, indeed, confined to individuals only, and did they affect none but their immediate objects, they would fall absolutely under the notion of private wrongs; for which a satisfaction would be due only to the party injured: the manner of obtaining which was the subject of our inquiries in the preceding volume. But the wrongs which we are now to treat of are of a much more extensive consequence; 1. Because it is impossible they can be committed without a violation of the laws of nature; of the moral as well as political rules of right: 2. Because they include in them almost always a breach of the public peace: 3. Because by their example and evil tendency they threaten and endanger the [177] subversion of all civil society. Upon these accounts it is, that besides the private satisfaction due and given in many cases to the individual, by action for the private wrong, the Government also calls upon the offender to submit to public punishment for the public crime. And the prosecution of these offences is always at the suit and in the name of the sovereign, in whom, by the texture of our constitution, the jus gladii, or executory power of the law entirely resides. Thus, too, in the old Gothic constitution, there was a threefold punishment inflicted on all delinquents: first, for the private wrong to the

party injured; secondly, for the offence against the sovereign by disobedience to the laws; and thirdly, for the crime against the public by their evil example. Of which we may trace the groundwork in what Tacitus tells us of the Germans ;" that, whenever offenders were fined, "pars mulctæ regi, vel civitati, pars ipsi, qui vindicatur, vel propinquis ejus, exsolvitur.”

These crimes and misdemeanors against private subjects are principally of three kinds; against their persons, their habitations, and their property.

the person.

Of crimes injurious to the persons of private subjects, the Crimes against most principal and important is the offence of taking away that life which is the immediate gift of the great Creator; and of which, therefore, no man can be entitled to deprive himself or another, but in some manner either expressly commanded in, or evidently deducible from, those laws which the Creator has given us; the Divine laws, I mean, of either nature or revelation. The subject, therefore, of the present chapter will be the offence of homicide, or destroying the life of man, in its several stages of guilt, arising from the particular circumstances of mitigation or aggravation which attend it.

able, excusable,

Now homicide, or the killing of any human creature, is of Homicide justifithree kinds; justifiable, excusable, and felonious. The first has or felonious. no share of guilt at all; the second very little; but the third is the highest crime against the law of nature that man is [178] capable of committing.

I. Justifiable homicide is of divers kinds.

I. JUSTIFIABLE
HOMICIDE.

1. Such as is owing to some unavoidable necessity, without 1. Of necessity. any will, intention, or desire, and without any inadvertence or negligence in the party killing, and therefore without any shadow of blame. As, for instance, by virtue of such an office as obliges one, in the execution of public justice, to put to death a malefactor, who has forfeited his life by the laws and verdict of his country. This is an act of necessity, and even

a

Stiernhook, 1. 1, c. 5.

b De Mor. Germ. c. 12.