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 term of life, &c., or was in any other manner qualified," &c., is not sufficient, without also specifically negativing that he had an estate of inheritance of the clear yearly value of 1001, in right of his wife; but it is sufficient to state that he kept and used a dog called a lurcher, to kill and destroy the game; Rex v. Earnshaw, 15 East, 456. A conviction of the defendant "as not being the eldest son of an esquire, or of other person of higher degree," is good; Rex v. Utley, 1 T. R. 45, n. An information for keeping a net, must negative the qualification; Hebden v. Bluff, 1 Chit. Rep. 607, n. If is sufficient on a conviction against a carrier for having game in his possession, if the qualifications are negatived in the information and adjudication, without negativing them in the evidence; Rex v. Turner, 5 M. & S. 206. Such a conviction need not negative the defendant's qualification to kill game; nor aver that he had the game in his possession "knowingly;" Rex v. Marsh, 4 D. & R. 260; 2 B. & C. 717. A conviction should set out all the evidence, and not merely state the result of it; Rex v. Lovat, 7 T. R. 152; and see Rer v. Clarke, 8 T. R. 222. A conviction stating in the information that the defendant "killed a hare," is bad; Rer v. Morgan, 2 Chit. Rep. 563. Evidence in support of an information before a magistrate under the game laws, cannot be received in the absence of the defendant, at least, where he has not been personally served with a summons to appear to the information. Whether in such case, an attorney is by law entitled to be present, and to act for the defendant before the magistrate, quære; Rer v. Commins, 8 D. & R. 344. The informer cannot be a witness; Rex v. Stone, 2 Ld. Raym. 1545; Rex v. Blaney, 2 Andr. 240. A magistrate who convicts an unqualified person of killing game, and causes his dog to be brought for the purpose of seizing it, may order the dog to be killed, without any formal adjudication of seizure; Kingsworth v. Button, 5 Taunt. 416, 1 Marsh, 106. And he may take a gun used by an unqualified person; Devensk v. Metuas, 7 Mod. 215. But not the gun of a gamekeeper, though he be not within his own manor; Rogers v. Carter, 2 Wils. 286. Semble, that he cannot himself enter a house to search for engines, &c. ; Briggs v. Evelyn, 2 H. Bl. 114. Fifthly. The lord of a hundred or wapentake cannot grant a deputation to a gamekeeper; Earl of Aylesbury v. Pattison, 1 Doug. 28. Bodies corporate, lords of manors, are not prevented by 3 G. I. c. 11, from appointing unqualified persons their gamekeepers. A deputation to a gamekeeper, who is neither himself qualified, nor is a servant to the lord of the manor, need not state on the face of it that he is appointed to kill game for the use of the lord; and it will be presumed that the game he kills is for the lord's use,till the contrary is proved; Spurrier v. Vale, 1 Camp. 457; 10 East, 413. The gamekeeper of a lord of a manor may carry a gun any where out of the manor; Rogers v. Carter, 2 Wils. 387. A gamekeeper authorized by his deputation to seize greyhounds, setting dogs, ferrets, and to do all other things belonging to the office of gamekeeper, has no right to seize hounds; Grant v. Hutton, 1 B. & A. 134. A gamekeeper is not empowered to seize game in the possession of an unqualified person, under a general direction from the lord of the manor, 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; 1 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; Calcraft 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, it may be 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. e. 126, reciting the 5 & 6 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 As 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. 176 CHAPTER XIV. OF HOMICIDE. ing individuals, In the ten preceding chapters we have considered, first, such of crimes affectcrimes 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. sidered both as public and pri vate wrongs, Were these injuries indeed confined to individuals only, which are conand 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 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 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 [*177] and are of three kinds; I. Crimes affecting the persons as homicide, crime against the public by their evil example (a). Of which we may trace the groundwork, in what Tacitus tells us of his Germans (b); that, whenever offenders were fined "pars mutctæ 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 of individuals, 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. which is of three kinds, justifiable, excusable, and felonious. [*178] 1. Justifiable homicide, as, by necessity, or command of law. 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 is capable of committing. I 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, attainted (a) Stiernhook, l. 1, c, 5. (b) De mor Germ. c. 12. (1) "Part of the fine is paid to the king, or the state, and part to the person who is injured, or his relations." 178 HOMICIDE. 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 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 (ƒ): 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 versa, 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) 1 Hawk P. C. 70; 1 Hal. P. C. 497. (f) Burnet in his Life. (g) 1 Hal. P. C. 501; 1 Hawk. P. C. 70. (h) Dalt. Just. c. 150. (i) Finch. L. 31; 3 Inst. 52; 1 Hal. P. C. 501. (2) "This homicide, if it be done out of malice, or from an inclination to shed human blood, although the party may be justly slain, still the |