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marked', 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 these statutes, I shall not at present inquire. It is in general sufficient to observe, that the qualifications for killing game, as they are usually called, or more properly the exemptions from the penalties inflicted by the statute law, are, 1. The having a freehold estate of 100l. 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 years of 1501. 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, chase, or warren. (18) 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 kill game or have it in possession, at unseasonable times of the year, or unseasonable hours of the day or night, on Sundays or on Christmas day, there are various penalties assigned, corporal and pecuniary, by different statutes *; on any of which, but only on one at a time, the justices may convict in a summary way, or (in most of them)
(18) The words of the statute 22 & 23 C.2. c. 25. are “ lands and tenements, or some other estate of inheritance in his own or his wife's right, of the clear yearly value of 100l. per annum, or for a term of life, or lease or leases of 99 years, or for any longer term, of the clear yearly value of 150l.” The estate, therefore, of 100l. per annum must be an estate of inheritance; a mere freehold will not suffice, nor is the freehold necessary; it may be a copyhold or equitable estate. The term “ clear yearly value” will not be satisfied, if the rent of the land is reduced below the 100l. by the payment of the interest of a mortgage on it. A life estate must be of the annual value of 1501., which construction has been given to the statute on comparing it with former qualification laws, in which the policy has always been to increase the value where the interest is only for life. The exceptions of the statute are worded thus: “other than the son and heir-apparent of an esquire, or other person of higher degree.” Within these words, neither an esquire, nor person of higher degree, are included; all persons down to knights and colonels, serjeants at law, and doctors in the three learned professions, are of higher degree than esquires. See Vol.I. p.405., and the cases collected in Selwyn's Ni. Pri.877. 6 Ed.
prosecutions may be carried on at the assizes. And, lastly, by statute 28 Geo. II. c. 12. no person, however qualified to kill, may 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. (19)
(19) The 58 G. 3. c. 75. has imposed a penalty of 51. on the buying of game, a regulation almost indispensable as a part of the present system of game laws; but the system itself has been repeatedly before the legislature within a few years, and though difficulties have occurred, which have caused the subject to be as often thrown aside, yet it seems certain that some fundamental change will take place in it ere long, and, therefore, I think it unnecessary to give an account of the various decisions which are reported on the present state of these laws.
CHAPTER THE FOURTEENTH.
such crimes and misdemesnors 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 king, 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.
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
which 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
subversion of all civil society. Upon these accounts it is, [ 177 ) 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
king, 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 king 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 his Germans b; that, whenever offenders were fined, “ pars mulctae
regi, vel civitati, pars ipsi, qui vindicatur vel propinquis ejus, exsolvitur.” (1)
THESE crimes and misdemesnors against private subjects are principally of three kinds; against their persons, their habitations, and their property.
Of crimes injurious to the persons of private subjects, the 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 it's several stages of guilt, arising from the particular circumstances of mitigation or aggravation which attend it.
Now homicide, or the killing of any human creature, is of three kinds; justifiable, excusable, and felonious. The first has no share of guilt at all; the second very little; but the third is the highest crime against the law of nature that man [ 178 ] is capable of committing.
(1) See ante, p.5. 7. In the French law, the crime and the civil injury are kept distinct; the action for damages may go on at the same time with, or after the public prosecution, and before the same judges and jury. Code d'Instruction Criminelle. Disp. Prel.
1. JUSTIFIABLE homicide is of divers kinds.
1. Such as is owing to some unavoidable necessity, without 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 a malefactor to death, who hath forfeited his life by the laws and verdict of his country. This is an act of necessity, and even of civil duty; and therefore not only justifiable, but commendable, where the law requires it. But the law must require it, otherwise it is not justifiable: therefore wantonly to kill the greatest of malefactors, a felon or a traitor, atlainted, or outlawed, deliberately, uncompelled, and extrajudicially, is murder. For, as Bractono very justly observes, “ istud “ homicidium, si fit ex livore, vel delectatione effundendi hu“ manum sanguinem, licet justè occidatur iste, tamen occisor
peccat mortalitur, propter intentionem corruptam.” And farther, if judgment of death be given by a judge not authorized by lawful commission, and execution is done accordingly, the judge is guilty of murder And upon this account sir Matthew Hale himself, though he accepted the place of a judge of the common pleas under Cromwell's government, (since it is necessary to decide the disputes of civil property in the worst of times,) yet declined to sit on the crown side at the assizes, and try prisoners; having very strong objections to the legality of the usurper's commission f; a distinction perhaps rather too refined ; since the punishment of crimes is at least as necessary to society, as maintaining the boundaries of property. (2) Also such judgment, when legal, ci Hal. P. C. 497.
e i Hawk. P.C. c. 28, s. 4. 1 Hal. P.C. 497. 4 1.3. tr.2. c.4,
f Burnet in his life.
(2) It appears from his life, that for some time after his elevation to the bench till the execution of Ch. 1., sir M. Hale sate indifferently on both sides of the court on the circuit; but that even then“ he made distinction between common and ordinary felonies, and offences against the state ; for the last he would never meddle in them, for he thought these might be often legal and warrantable actions, and that the putting men to death on that account was murder; but for the ordinary felonies, he at first was of opinion, that it was as necessary even in times of usurpation to execute justice in those cases, as in matters of property.” pp. 38. 40.