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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

the clear yearly value of 1001, or for The irformer cannot be a witness ; term of life, &c., or was in any other Rer v. Stone, 2 Ld. Raym. 1545; Rer manner qualified," &c., is not suffi- v. Blaney, 2 Andr. 240. cient, without also specifically nega- A magistrate who convicts an untiving that he had an estate of inhe- qualified person of killing game, and ritance of the clear yearly value of causes his dog to be brought for the 1001. in right of his wife; but it is suf- purpose of seizing it, may order the dog ficient to state that he kept and used a to be killed, without any formal adjudog called a lurcher, to kill and destroy dication of seizure; Kingsworth v. the game; Rex v. Earnshaw, 15 East, Button, 5 Taunt. 416, 1 Marsh, 106. 456.

And he may take a gun used by an A conviction of the defendant " as unqualified person ; Derensk v. Metuas, not being the eldest son of an esquire, 7 Mod. 215. or of other person of higher degree,” is But not the gun of a gamekeeper, good; Rer v. Utley, 1 T. R. 45, n. though he be not within his own manor ;

An information for keeping a net, Rogers v. Carter, 2 Wils. 286. must negative the qualification; Heb- Semble, that he cannot himself enter den v. Bluff, 1 Chit. Rep. 607, n. a house to search for engines, &c. ;

If is sufficient on a conviction against Briggs v. Evrlyn, 2 H. Bl. 114. a carrier for having game in his posses- Fifthly. The lord of a hundred or sion, if the qualifications are negatived wapentake cannot grant a deputation in the information and adjudication, to a gamekeeper ; Earl of Aylesbury without negativing them in the evi- v. Pattison, 1 Doug. 28. dence; Rer v. Turner, 5 M. & S. 206. Bodies corporate, lords of manors,

Such a conviction need not negative are not prevented by 3 G. I. c. 11, the defendant's qualification to kill from appointing unqualified persons game; nor aver that he had the game their gamekeepers. A deputation to in his possession “knowingly;" Rer a gamekeeper, who is neither himself v. Marsh, 4 D. & R. 260; 2 B. & C. qualified, nor is a servant to the lord of 717.

the manor, need not state on the face A conviction should set out all the of it that he is appointed to kill game evidence, and not merely state the re- for the use of the lord ; and it will be sult of it; Rer v. Lovat, 7 T. R. 152; presumed that the game he kills is for and see Rer v. Clarke, 8 T. R. 222. the lord's use, till the contrary is proved;

A conviction stating in the informa- Spurrier v. Vale, 1 Camp. 457; 10 tion that the defendant “ killed a hare," East, 413. is bad; Rer v. Morgan, 2 Chit. Rep. The gamekeeper of a lord of a manor

may carry a gun any where out of the Evidence in support of an informa- manor; Rogers v. Carter, 2 Wils. 387. tion before a magistrate under the A gamekeeper authorized by his game laws, cannot be received in the

deputation to seize greyhounds, setting absence of the defendant, at least, where dogs, ferrets, and to do all other things he has not been personally served with belonging to the office of gamekeeper, a summons to appear to the informa- has no right to seize hounds ; Grant v. tion. Whether in such case, an attor- Hutton, 1 B. & A. 134. ney is by law entitled to be present, A gamekeeper is not empowered to and to act for the defendant before the seize game in the possession of an unmagistrate, quære; Rer v. Commins, qualified person, under a general di8 D. & R. 344.

rection from the lord of the manor,

563.

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, 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 (33) (34).

though the seizure is made within the manor; Bird v. Dale, 7 Taunt. 560; I J. B. Moore, 290.

It is no defence to debt for penalties on the game laws that the defendant acted bona fide as the gamekeeper of a manor, under a deputation from a person claiming a right to appoint the gamekeeper, there being no ground for the claim; Caleruft v. Gibbs, 5 T. R. 19.

Semble, that a deputation is not evidence of qualification, without proof of registration with the clerk of the peace; nor admissible as evidence of the existence of a manor, without a foundation being first laid in fact ; Rushworth v. Craven, 1 M'Clel. and Y. 417.

(33) It will be seen by reference to the statute 1 & 2 W. IV. c. 32, set out at the commencement of note (32), ante 174, that the buying and selling of game is now legalised under certain regulations and restrictions.

(34) Under the head of offences against the public economy,

E. VI. c. 16, and extending its provisions to Scotland and Ireland, and to all offices in the gift of the crown, &c. ; persons buying or selling, or receiving or paying money or reward for any such office; and persons receiving or paying money for soliciting or obtaining any such office, or any negociation or pretended negociation relating thereto; and persons opening or advertising houses for transacting business relating to the sale of any such office ; shall be respectively deemed and adjudged guilty of a misdemeanor: and offences against this Act, committed abroad, shall be tried in the court of King's Bench at Westminster, under the 42 Geo. III. c. 85. Commissions in the East India Company's service are expressly mentioned by the statute, and several instances have occurred, one very recently, of persons convicted and punished for the sale and negotiation of such offices. See two modern decisions bearing upon this subject generally, Hughes v. Statham, 6 D, & R. 219; 4 B. & C. 187; Waldo v. Martin, 6 D. & R, 364; 4 B. & C. 319: and see the other cases collected in 1 Chit. Stat. 740, in notis; 3 Chit. Com L. 98; Harrison's Digest, Officer; Com, Dig. Officer, K. 1. See the 6 Geo. IV, c. 82 & 83, for abolishing the sale of offices in the courts of King's Bench and Common Pleas, sls to bribery at elections, see this work, vol. I., 179, ante, 140, and the statutes 53 Geo. III. c. 89, and 7 & 8 Geo. IV. c. 37.

it allowable to mention that of selling public offices. The ancient statutes of 12 R. II. c. 2, “that none shall obtain offices by suit, or for reward, but upon desert,” which Lord Coke says is worthy to be written in letters of gold, but more worthy to be put in due execution, Co. Litt. 234, and that of 5 and 6 E. VI. c. 16, “against buying and selling of offices," imposed only civil restrictions upon

this offence, and civil disabilities upon offenders. But by the 49 Geo. III. c. 126, reciting tho 5 & 6

may be

176

CHAPTER XIV.

OF HOMICIDE.

vate wrong,

In the ten preceding chapters we have considered, first, such of crimes affect

ing individuals, 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, which are conand did they affect none but their immediate objects, they public and priwould 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 subversion of all civil society. Upon these accounts it is, *that, besides the private satisfaction due and given in [*177] 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

1. Crimes affecting the persons

crime against the public by their evil example (a). Of which we may trace the groundwork, in what Tacitus tells us of his Germans (6); that, whenever offenders were fined “

'pars mutcte regi, vel civitati, pars ipsi qui vindicatur vel pro

pinquis ejus, exsolvitur (1).” and are of three

These crimes and misdemesnors against private subjects kinds;

are principally of three kinds; against their persons, their habitations, and their property.

Of crimes injurious to the persons of private subjects, the of individuals, as homicide,

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 of 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.

Now homicide, or the killing of any human creature, is of kinds, justifiable, excusable, and three kinds; justifiable, excusable, and felonious. The first selonious.

has no share of guilt at all; the second very little : but the (*178] *third is the highest crime against the law of nature that man

is capable of committing.

I Justifiable homicide is of divers kinds. homicide, as, by necessity, or 1. Such as is owing to some unavoidable necessity, without command of law.

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, attainted

which is of three

1. Justifiable

(a) Stiernhook, l. 1, c, 5.

(6) De mor Germ. c. 12.

(1) “ Part of the fine is paid to the king, or the state, and part to the per

son who is injured, or his relations."

or outlawed, deliberately, uncompelled, and extrajudicially, is murder (c). For, as Bracton (d) very justly observes, “istud homicidium, si fit ex livore, vel delectatione effundendi humanum sanguinem licet justè occidatur iste, tamen occisor peccat mortaliter, propter intentionem corruptam (2)." And further, 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 (e). And upon this accountsir 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. Also such judgment, when legal, must be executed by the proper officer, or his appointed deputy; for no one else is required by law to do it, which requisition it is, that justifies the homicide. If another * person doth it of his own head, it is held to be murder (g): [*179) even though it be the judge himself (h). It must further be executed, servato juris ordine ; it must pursue the sentence of the court. If an officer beheads one who is adjudged to be hanged, or vice versá, it is murder (i): for he is merely ministerial, and therefore only justified when he acts under the authority and compulsion of the law: but if a sheriff changes one kind of death for another, he then acts by his own authority, which extends not to the commission of homicide, and besides, this licence might occasion a very gross abuse of his power. The king indeed may remit part of a sentence; as in the case of treason, all but the beheading;

(c) 1 Hal. P. C. 497. (d) Fol. 120.

(e) I Hawk P. C. 70; 1 Hal. P. C. 497.

(5) Burnet in his Life.

(8) 1 Hal. P. C. 501 ; 1 Hawk. P. C. 70.

(h) Dalt. Just. c. 150.

(i) Finch. L. 31 ; 3 Inst. 52; I Hal. P. C. 501.

(2) “This homicide, if it be done party may be justly slain, still the out of malice, or from an inclination slayer is guilty of a capital offence, on to shed human blood, although the account of his corrupt intent."

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