ner for treble the fum fo loft; and the plaintiff in either cafe may examine the defendant himself upon oath and that in any of these suits no privilege of parliament shall be allowed. The ftatute farther enacts, that if any person cheats at play, and at one time wins more than 10 l. or any valuable thing, he may be indicted thereupon, and shall forfeit five times the value, shall be deemed infamous, and suffer fuch corporal punishment as in case of wilful perjury. By several statutes of the reign of king George II', all private lotteries by tickets, cards, or dice, (and particularly the games of faro, baffet, ace of hearts, hazard, paffage, rolly polly, and all other games with dice, except baggammon) are prohibited under a penalty of 200 /. for him that shall erect fuch lotteries, and 50l. a time for the players. Public lotteries, unless by authority of parliament, and all manner of ingenious devices, under the denomination of fales or otherwise, which in the end are equivalent to lotteries, were before prohibited by a great variety of statutes under heavy pecuniary penalties. But particular descriptions will ever be lame and deficient, unless all games of mere chance are at once prohibited ;. the inventions of fharpers being fwifter than the punishment of the law, which only hunts them from one device to another. The ftatute 13 Geo. II. c. 19. to prevent the multiplicity of horse races, another fund of gaming, directs that no plates or matches under 50 l. value fhall be run, upon penalty of 2007. to be paid by the owner of each horse running, and 1007. by fuch as advertise the plate. By ftatute 18 Geo. II. c. 34. the ftatute 9 Ann. is farther enforced, and fome deficiences fupplied: the forfeitures of that act may now be recovered in a court of equity; and, moreover, if any man be convicted upon information or indictment of winning or lofing at any fitting 101, or 20%. within twenty four hours, he shall forfeit five times the fum. Thus careful has the legislature been to prevent this deftructive vice: which may fhew that our laws against gaming

f 12 Geo. II. c. 28. 13 Geo. II. c. 19. §.56. 10 Ann. c.26. §.109. 8 Geo. I. c. z. 18 Geo. II. c. 34. $.36,37. 9 Geo. I. c.19. §. 4, 5. 6 Geo. II.

? 10 & 11 W. III. c. 17. 9 Ann. c. 6. c. 35. §. 29, 30.

are

are not fo deficient, as ourselves and our magistrates in putting those laws in execution.

9. LASTLY, there is another offence, so constituted by a variety of acts of parliament, which are so numerous and so confused, and the crime itfelf of fo queftionable a nature, that I fhall not detain the reader with many obfervations thereupon. And yet it is an offence which the sportsmen of England feem to think of the highest importance; and a matter, perhaps the only one, of general and national concern: affociations having been formed all over the kingdom to prevent it's deftructive progrefs. I mean the offence of destroying such beafts and fowls, as are ranked under the denomination of game: which, we may remember, was formerly observed", (upon the old principles of the forest law) to be a trespass and offence in all persons alike, who have not authority from the crown to kill game (which is royal property) by the grant of either a free warren, or at least a manor of their own. But the laws, called the game laws, have also inflicted additional punishments (chiefly pecuniary) on perfons guilty of this general offence, unless they be people of fuch rank or fortune as is therein particularly specified. All persons therefore, of what property or distinction foever, that kill game out of their own territories, or even upon their own eftates, without the king's licence expreffed by the grant of a franchise, are guilty of the first original offence, of encroaching on the royal prerogative. And those indigent perfons who do fo, without having such rank or fortune as is generally called a qualification, are guilty not only of the original offence, but of the aggravations alfo, created by the statutes for preserving the game: which aggravations are so severely punished, and those punishments so implacably inflicted, that the offence against the king is feldom thought of, provided the miserable delinquent can make his peace with the lord of the manor. This offence, thus aggravated, I have ranked under the present head, because the only rational footing, upon which we can confider it as a See Vol. II. pag. 417, &c. i Burn's Juftice, tit. Game. §. 3.

crime, is that in low and indigent perfons it promotes idleness, and takes them away from their proper employments and callings; which is an offence against the public police and oeconomy of the commonwealth.

THE ftatutes for preferving the game are many and various, and not a little obfcure and intricate; it being remarked', that in one ftatute only, 5 Ann. c. 14. there is falfe grammar in no fewer than fix places, befides other miftakes: the occafion of which, or what denomination of perfons were probably the penners of these statutes, I shall not at present enquire. It is in general fufficient to obferve, 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 1001. 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 fhire: 2. A leasehold for ninety nine years of 1501. per annum: 3. Being the fon and heir apparent of an efquire (a very loose and vague defcription) or perfon of fuperior degree: 4. Being the owner, or keeper, of a forest, park, chafe, or warren. For unqualified perfons tranfgreffing these laws, by killing game, keeping engines for that purpose, or even having game in their cuftody, or for perfons (however qualified) that kill game, or have it in poffeffion, at unfeasonable times of the year, there are various penalties affigned, corporal and pecuniary, by different statutes*; on any of which, but only on one at a time, the juftices may convict in a fummary way, or profecutions may be carried on at the affifes. And, laftly, by ftatute 28 Geo. II. c. 12. no perfon, however qualified to kill, may make merchandize of this valuable privilege, by felling or expofing to fale any game, on pain of like forfeiture as if he had no qualification.

* Bura's Justice, tit. Game,

CHAPTER THE

FOURTEENTH.

HOMICIDE.

IN are more

N the ten preceding chapters we have confidered, first, such crimes and misdemefnors as are more immediately injurious to God and his holy religion; secondly, fuch as violate or tranfgrefs the law of nations; thirdly, fuch 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 it's collective capacity; and are now, lastly, to take into confideration 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 abfolutely under the notion of private wrongs; for which a fatisfaction would be due only to the party injured: the manner of obtaining which was the subject of our enquiries in the preceding volume. But the wrongs, which we are now to treat of, are of a much more extenfive confequence; 1. Because it is impoffible 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 subverfion of all civil so

ciety. Upon these accounts it is, that, befides the private fatisfaction due and given in many cafes to the individual, by action for the private wrong, the government alfo calls upon the offender to submit to public punishment for the public crime. And the profecution of these offences is always at the fuit and in the name of the king, in whom by the texture of our conftitution the jus gladii, or executory power of the law, entirely refides. Thus too, in the old Gothic conftitution, there was a threefold punishment inflicted on all delinquents: first, for the private wrong to the party injured; fecondly, 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; that, whenever offenders were fined, "pars multae regi, vel civitati, "pars ipfi qui vindicatur vel propinquis ejus, exfolvitur.”

THESE crimes and mifdemefnors against private fubjects are principally of three kinds; against their perfons, their habitations, and their property.

Of crimes injurious to the persons of private fubjects, the most principal and important is the offence of taking away that life, which is the immediate gift of the great creator; and which therefore no man can be entitled to deprive himself or another of, but in fome manner either exprefly commanded in, or evidently deducible from, thofe laws which the creator has given us; the divine laws, I mean, of either nature or revelation. The subject therefore of the prefent chapter will be, the offence of homicide or destroying the life of man, in it's feveral ftages of guilt, arifing from the particular circumstances of mitigation or aggravation which attend it.

Now homicide, or the killing of any human creature, is of three kinds; juftifiable, excufable, and felonious. The first has no fhare of guilt at all; the fecond very little; but the third is a Stiernhook. 1. 1. c. 5. VOL. IV.

b

de mor. Germ. c. 12.

Y

the