CHAPTER THE THIRTEENTH.

OF OFFENCES AGAINFT THE PUBLIC HEALTH,
AND THE PUBLIC POLICE OR OECONOMY.

THE fourth fpecies of offences, more efpecially affecting the commonwealth, are fuch as are againft the public health of the nation; a concern of the higheft importance, and for the prefervation of which there are in many countries fpecial magiftrates or curators appointed.

1. THE firft of thefe offences is a felony; but, by the bluffing of providence for more than a century paft, incapable of being committed in this nation. For by ftatute 1 Jac. I. c. 31. it is enacted, that if any perfon infected with the plague, or dwelling in any infected houfe, he commanded by the mayor or conftable, or other head officer of his town or vill, to keep his houfe, and fhall venture to difobey it; he may be inforced, by the watchmen appointed on fuch melancholy occafions, to obey fuch neceffary command: and, if any hurt enfue by fuch inforcement, the watchmen are thereby indemnified. And farther, if fuch perfon fo commanded to confine himfelf goes abroad, and converfes in company, if he has no plague fore upon him, he fhall be punifhed as a vagabond by whipping, and be bound to his good behaviour: but, if he has any infectious fore upon him uncured, he then fhall be guilty of felony. By the ftatute

VOL. IV.

W

26 Geo. II.

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26 Geo. II. c. 6. (explained and amended by 29 Geo. II. c. 8.) the method of performing quarentine, or forty days probation, by fhips coming from infected countries, is put in a much more regular and effectual order than formerly; and mafters of fhips, coming from infected places and difobeying the directions there given, or having the plague on board and concealing it, are guilty of felony without benefit of clergy. The fame penalty alfo attends perfons efcaping from the lazarets, or places wherein quarentine is to be performed; and officers and watchmen neglecting their duty; and perfons conveying goods or letters from fhips performing quarentine.

2. A SECOND, but much inferior, fpecies of offence againft public health is the felling of unwholfome provifions. To prevent which the ftatute 51 Hen. III. ft. 6. and the ordinance for bakers, c. 7. prohibit the fale of corrupted wine, contagious or unwholfome flefh, or flefh that is bought of a Jew; under pain of amercement for the firft offence, pillory for the fecond, fine and imprifonment for the third, and abjuration of the town for the fourth. And by the ftatute 12 Car. II. c. 25. §. 11. any brewing or adulteration of wine is punifhed with the forfeiture of 100 /., if done by the wholefale merchant; and 40 /., if done by the vintner or retale trader. Thefe are all the offences which may properly be faid to refpect the public health.

V. THE laft fpecies of offences which efpecially affect the commonwealth are thofe againft the public police and oeconomy. By the public police and oeconomy I mean the due regulation and domeftic order of the kingdom: whereby the individuals of the ftate, like members of a well-governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners; and to be decent, induftrious, and inoffenfive in their refpective ftations. This head of offences muft therefore be very mifcellaneous, as it comprizes all fuch crimes as efpecially affect public fociety, and are not comprehended under any of the four preceding fpecies. Thefe
amount,
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amount, fome of them to felony, and others to mifdemefnors only. Among he former are,

1. THE offence of clandeftine marriages: for by the ftatute 26 Geo. II. c. 33. 1. To folemnize marriage in any other place befides a church, or public chapel wherein banns have been ufually publifhed, except by licence from the archbifhop; --- and, 2. To folemnize marriage in fuch church or chapel without due publication of banns, or licence obtained from a proper authority; --- do both of them not only render the marriage void, but fubject the perfon folemnizing it to felony, punifhed by tranfportation for fourteen years: as, by three former ftatutes ^a, he and his affiftants were fubject to a pecuniary forfeiture of 100 /. 3. To make a falfe entry in a marriage regifter; to alter it when made; to forge, or counterfeit, fuch entry, or a marriage licence, or aid and abet fuch forgery; to utter the fame as true, knowing it to be counterfeit; or to deftroy or procure the deftruction of any regifter, in order to vacate any marriage, or fubject any perfon to the penalties of this act; all thefe offences, knowingly and willfully committed, fubject the party to to the guilt of felony, without benefit of clergy.

2. ANOTHER felonious offence, with regard to this holy eftate of matrimony, is what our law corruptly calls bigamy; which properly fignifies being twice married, but with us is ufed as fynonymous to polygamy, or having a plurality of wives at once ^b. Such fecond marriage, living the former hufband or wife, is fimply void, and a mere nullity, by the ecclefiaftical law of England: and yet the legiflature has thought it juft to make it felony, by reafon of it's being fo great a violation of the public oeconomy and decency of a well ordered ftate. For polygamy can never be endured under any rational civil eftablifhment, whatever fpecious reafons may be urged for it by the eaftern nations, the fallacioufnefs of which has been fully proved by many fenfible writers:

.{FS}
^a 6 & 7 W. III. c. 6. 7. & 8 W. III. c. 35. 10 Ann. c. 19. §. 176.
^b 3 Inft. 88.
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W 2
but
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but in northern countries the very nature of the climate feems to reclaim againft it; it never having obtained in this part of the world, even from the time of our German anceftors; who, as Tacitus informs us ^c, “prope foli barbarorum fingulis uxoribus “contenti funt.” It is therefore punifhed by the laws both of antient and modern Sweden with death ^d. And with us in England it is enacted by ftatute 1 Jac. I. c. 11. that if any perfon, being married, do afterwards marry again, the former hufband or wife being alive, it is felony; but within the benefit of clergy. The firft wife in this cafe fhall not be admitted as an evidence againft her hufband, becaufe fhe is the true wife; but the fecond may, for fhe is indeed no wife at all ^e; and fo, vice verfa, of a fecond hufband. This act makes an exception to five cafes, in which fuch fecond marriage, though in the three firft it is void, is yet no felony. 1. Where either party bath been continually abroad for feven years, whether the party in England hath notice of the other's being living or no. 2. Where either of the parties hath been abfent from the other feven years, within this kingdom, and the remaining party hath had no notice of the other's being alive within that time. 3. Where there is a divorce or feparation a menfa et thoro by fentence in the ecclefiaftical court. 4. Where the firft marriage is declared abfolutely void by any fuch fentence, and the parties loofed a vinculo. Or, 5. Where either of the parties was under the age of confent at the time of the firft marriage: for in fuch cafe the firft marriage was voidable by the difagreement of either party, which this fecond marriage very clearly amounts too. But, if at the age of confent the parties had agreed to the marriage; and afterwards one of them fhould marry again; I fhould apprehend that fuch fecond marriage would be within the reafon and penalties of the act.

.{FS}
^c de mor. Germ. 18.
^d Stiernh. de jure Sueon. l. 3. c. 2.
^e 1 Hal. P. C. 693.
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3. A THIRD
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3. A THIRD fpecies of felony againft the good order and oeconomy of the kingdom, is by idle foldiers and mariners wandering about the realm, or perfons pretending fo to be, and abufing the name of that honourable profeffion ^f. Such a one, not having a teftimonial or pafs from a juftice of the peace, limiting the time of his paffage; or exceeding the time limited for fourteen days, unlefs he falls fick; or forging fuch teftimonial; is by ftatute 39 Eliz. c. 17. made guilty of felony, without benefit of clergy. This fanguinary law, though in practice defervedly antiquated, ftill remains a difgrace to our ftatute-book: yet attended with this mitigation, that the offender may be delivered, if any honeft freeholder or other perfon of fubftance will take him into his fervice, and he abides in the fame for one years; unlefs licenced to depart by his employer, who in fuch cafe fhall forfeit ten pounds.

4. OUTLANDISH perfons calling themfelves Egyptians, or gypfies, are another object of the feverity of fome of our unrepealed ftatutes. Thefe are a ftrange kind of commonwealth among themfelves of wandering impoftors and jugglers, who made their firft appearance in Germany about the beginning of the fixteenth century, and have fince fpread themfelves all over Europe. Munfter, it is true ^g, who is followed and relied upon by Spelman ^h, fixes the time of their firft appearance to the year 1417; but, as he owns, that the firft whom he ever faw were in 1524, it is probably an error of the prefs for 1517: efpecially as other hiftorians ^j inform us, that when fultan Selim conquered Egypt, in the year 1517, feveral of the natives refufed to fubmit to the Turkifh yoke; but, being at length fubdued and banifhed, they agreed to difperfe in fmall parties all over the world, where their fuppofed fkill in the black art gave them an univerfal reception, in that age of fuperftition and credulity. In the compafs of a very few years they gained fuch a number of idle profelytes,

.{FS}
^f 3 Inft. 85.
^g Cofmogr. l. 3.
^h Gloff. 193.
^j Mod. Univ. Hift. xliii. 271.
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(who
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(who imitated their language and complexion, and betook themfelves to the fame arts of chiromancy, begging, and pilfering) that they became troublefome and even formidable to moft of the ftates of Europe. Hence they were expelled from France in the year 1560, and from Spain in 1591 ⁱ. And the government in England took the alarm much earlier: for in 1530, they are defcribed by ftatute 22 Hen. VIII. c. 10. as “outlandifh “people, calling themfelves Egyptians, ufing no craft not feat “of merchandize, who have come into this realm and gone from “fhire to fhire and place to place in great company, and ufed “great, fubtil, and crafty means to deceive the people; bearing “them in hand, that they by palmeftry could tell men's and “women's fortunes; and fo many times by craft and fubtilty “have deceived the people of their money, and alfo have committed many heinous felonies and robberies.” Wherefore they are directed to avoid the realm, and not to return under pain of imprifonment, and forfeiture of their goods and chattels; and, upon their trials for any felony which they may have committed, they fhall not be intitled to a jury de medietate linguae. And afterwards, it is enacted by ftatutes 1 & 2 Ph. & M. c. 4. and 5 Eliz. c. 20. that if any fuch perfons fhall be imported into the kingdom, the importer fhall forfeit 40 /. And if the Egyptians themfelves remain one month in this kingdom; or if any perfon, being fourteen years old, (whether natural born fubject or ftranger) which hath been feen or found in the fellowfhip of fuch Egyptians, or which hath difguifed him or herfelf like them, fhall remain in the fame one month, at one or feveral times; it is felony without benefit of clergy: and fir Matthew Hale informs us ^k, that at one Suffolk affifes no lefs than thirteen gypfies were executed upon thefe ftatutes, a few years before the reftoration. But, to the honour of our national humanity, there are no inftances more modern than this, of carrying thefe laws into practice.

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^I Dufrefne. Gloff. I. 200.
^k 1 Hal. P. C. 671.
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5. To
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5. To defcend next to offences, whofe punifhment is fhort of death. Common nufances are a fpecies of offences againft the public order and oeconomical regimen of the ftate; being either the doing of a thing to the annoyance of all the king's fubjects, or the neglecting to do a thing which the common good requires ^l. The nature of common nufances, and their diftinction from private nufances, were explained in the preceding volume ^m; when we confidered more particularly the nature of the private fort, as a civil injury to individuals. I fhall here only remind the ftudent, that common nufances are fuch inconvenient or troublefome offences, as annoy the whole community in general, and not merely fome particular perfon; and therefore are indictable only, and not actionable; as it would be unreafonable to multiply fuits, by giving every man a feparate right of action, for what damnifies him in common only with the reft of his fellow fubjects. Of this nature are, 1. Annoyances in highways, bridges, and public rivers, by rendering the fame inconvenient or dangerous to pafs: either pofitively, by actual obftructions; or negatively, by want of reparations. For both of thefe, the perfons fo obftructing, or fuch individuals as are bound to repair and cleanfe them, or (in default of thefe laft) the parifh at large, may be indicted, diftreined to repair and amend them, and in fome cafes fined. Where there is an houfe erected, or an inclofure made, upon any part of the king's demefnes, or of an highway, or common ftreet, or public water, or fuch like public things, it is properly called a purprefture ⁿ. 2. All thofe kinds of nufances, (fuch as offenfive trades and manufactures) which when injurious to a private man are actionable, are, when detrimental to the public, punifhable by public profecution, and fubject to fine according to the quantity of the mifdemefnor: and particularly the keeping of hogs in any city or market town is indictable as a public nufance ^o.

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^l 1 Hawk. P. C. 197.
^m Vol. III. pag. 216.
ⁿ Co. Litt. 277. from the French poulpris, an inclofure.
^o Salk. 460.
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3. All
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3. All diforderly inns or ale-houfes, bawdy-houfes, gaming-houfes, ftage-plays unlicenced, booths and ftages for rope-dancers, mountebanks, and the like, are public nufances, and may upon indictment be fuppreffed and fined ^p. Inns, in particular, being intended for the lodging and receipt of travelers, may be indicted, fuppreffed, and the inn-keepers fined, if they refufe to entertain a traveler without a very fufficient caufe: for thus to fruftrate the end of their inftitution is held to be diforderly behaviour ^q. Thus too the hofpitable laws of Norway punifh, in the fevereft degree, fuch inn-keepers as refufe to furnifh accommodations at a juft and reafonable price ^r. 4. By ftatute 10 & 11 W. III. c. 17. all lotteries are declared to be public nufances, and all grants, patents, or licences for the fame to be contrary to law. 5. Cottages are held to be common nufances, if erected fingly on the wafte, being harbours for thieves and other idle and diffolute perfons. Therefore it is enacted by ftatute 31 Eliz. c. 7. that no perfon fhall erect a cottage, unlefs he laws to it four acres of freehold land of inheritance to be occupied therewith, on pain to forfeit to the king 10 /. for it's erection, and 40 s. per month for it's continuance: and no owner or occupier of a cottage fhall fuffer any inmates therein, or more families than one to inhabit there, on pain to forfeit 10 s. per month to the lord of the leet. This feems, upon our prefent more enlarged notions, a hard and impolitic law; depriving the people of houfes to dwell in, and confequently preventing the populoufnefs of towns and parifhes: which, though it is generally endeavoured to be guarded againft, though a fatal rural policy, (being fometimes, when the poor are ill-managed, an intolerable hardfhip) yet, taken in a national view, and on a fuppofition of proper induftry and good parochial government, is a very great advantage to any kingdom. But indeed this, like moft other rigid or inconvenient laws, is rarely put in execution. 6. The making and felling of fireworks and fquibs, or throwing them about in any ftreet, is, on account of the danger that may

.{FS}
^p 1 Hawk. P. C. 198. 225.
^q1 Hal. P. C. 225.
^r Stiernh. de jure Sucon. l. 2. c. 9.
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enfue
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enfue to any thatched or timber buildings, declared to be a common nufance, by ftatute 9 & 10 W. III. c. 7. and therefore is punifhable by fine. 7. Eaves-droppers, or fuch as liften under walls or windows, or the eaves of a houfe, to hearken after difcourfe, and thereupon to frame flanderous and mifchievous tales, are a common nufance and prefentable at the court-leet ^s: or are indictable at the feffions, and punifhable by fine and finding fureties for the good behaviour ^t. 8. Laftly, a common fcold, communis rixatrix, (for our law-latin confines it to the feminine gender) is a public nufance to her neighbourhood. For which offence fhy may be indicted ^u; and, if convicted, fhall ^w be fentenced to be placed in a certain engine of correction called the trebucket, caftigatory, or cucking ftool, which in the Saxon language fignifies the fcolding ftool; though now it is frequently corrupted into ducking ftool, becaufe the refidue of the judgment is, that, when fhe is fo placed therein, fhe fhall be plunged in the water for her punifhment ^x.

6. IDLENESS in any perfon whatfoever is alfo a high offence againft the public oeconomy. In China it is a maxim, that if there be a man who does not work, or a woman that is idle, in the empire, fomebody muft fuffer cold or hunger: the produce of the lands not being more than fufficient, with culture, to maintain the inhabitants; and therefore, though the idle perfon may fhift off the want from himfelf, yet it muft in the end fall fomewhere. The court alfo of Areopagus at Athens punifhed idlenefs, and exerted a right of examining every citizen in what manner he fpent his time; the intention of which was ^y, that the Athenians, knowing they were to give an account of their occupations, fhould follow only fuch as were laudable, and that there might be no room left for fuch as lived by unlawful arts. The civil law expelled all fturdy vagrants from the city ^z: and,

.{FS}
^s Kitch. of courts. 20.
^t Ibid. 1 Hawk. P. C. 132.
^u 6 Mod. 213.
^w 1 Hawk. P. C. 198. 200.
^x 3 Inft. 219.
^y Valcr. Maxim. l. 2. c. 6.
^z Nov. 80. c. 5.
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VOL. IV.

X

in

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in our own law, all idle perfons or vagabonds, whom our antient ftatutes defcribe to be “fuch as wake on the night, and fleep on “the day, and haunt cuftomable taverns, and ale-houfes, and “routs about; and no man wot from whence they come, ne “whither they go;” or fuch as are moft particularly defcribed by ftatute 17 Geo. II. c. 5. and divided into three claffes, idle and diforderly perfons, rogues and vagabonds, and incorrigible rogues: --- all thefe are offenders againft the good order, and blemifhes in the government, of any kingdom. They are therefore all punifhed, by the ftatute laft-mentioned; that is to fay, idle and diforderly perfons with one month's imprifonment in the houfe of correction; rogues and vagabonds with whipping and imprifonment not exceeding fix months; and incorrigible rogues with the like difcipline and confinement, not exceeding two years: the breach and efcape from which confinement in one of an inferior clafs, ranks him among incorrigible rogues; and in a rouge (before incorrigible) makes him a felon, and liable to be tranfported for feven years. Perfons harbouring vagrants are liable to a fine of forty
fhillings, and to pay all expenfes brought upon the parifh thereby ; in the fame manner .as by our antient laws , whoever harboured any ftranger for more than two nights, was anfwerable to the public for any offence that fuch his inmate might commit ^a.

7. UNDER the head of public oeconomy may alfo be properly ranked all fumptuary laws againft luxury, and extravagant expenfes in drefs, diet, and the like; concerning the general utility of which to a ftate, there is much controverfy among the political writers. Baron Montefquieu laws it down ^b, that luxury is neceffary in monarchies, as in France; but ruinous to democracies, as in Holland. With regard therefore to England, whofe government is compounded of both fpecies, it may ftill be a dubious queftion, how far private luxury is a public evil; and, as fuch, cognizable by public laws. and indeed our legif-

.{FS}
^a LL. Edw. c. 27. Bracton. l. 3. tr. 2.c. 10. §. 2.
^b Sp. L. b. 7. c. 2 & 4.
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lators
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lators have feveral times changed their fentiments as to this point: for formerly there were a multitude of penal laws exifting, to reftrain excefs in apparel ^c; chiefly made in the reigns of Edward the third, Edward the fourth, and Henry the eighth, againft piked fhoes, fhort doublets, and long coats; all of which were repealed by ftatute 1 Jac. I. c. 25. But, as to excefs in diet, there ftill remains one antient ftatute unrepealed, at dinner or fupper, with more than two courfes; except upon fome great holydays there fpecified, in which he may be fervid with three.

8. NEXT to that of luxury, naturally follows the offence of gaming, which is generally introduced to fupply or retrieve the expenfes occafioned by the former: it being a king of tacit confeffion, that the company engaged therein do, in general, exceed the bounds of their refpective fortunes; and therefore they caft lots to determine upon whom the ruin fhall at prefent fall, that the reft may be faved a little longer. But, taken in any light, it is an offence of the moft alarming nature; tending by neceffary confequence to promote public idlenefs, theft, and debauchery among thofe of a lower clafs: and, among perfons of a fuperior rank, it hath frequently been attended with the fudden ruin and defolation of antient and opulent families, an abandoned proftitution of every principle of honour and virtue, and too often hath ended in felf-murder. To reftrain this pernicious vice, among the inferior fort of people, the ftatute 33 Hen. VIII. c. 9. was made; which prohibits to al but gentlemen the games of tennis, tables, cards, dice, bowls, and other unlawful diverfions there fpecified ^d, unlefs in the time of chriftmas, under pecuniary pains and imprifonment. And the fame law, and alfo the ftatute 30 Geo. III. c. 24. inflict pecuniary penalties, as well upon the mafter of any public houfe wherein fervants are permitted to game, as upon the fervants themfelves who are found to be gaming there. But this is not the principal ground of modern

.{FS}
^c 3 Inft. 199.
^d Logetting in the fields, flide-thrift or fhove-groat, cloyfh-cayls, half-bowl, and coyting.
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X 2
com-
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complaint: it is the gaming in high life, that demands the attention of the magiftrate; a paffion to which every valuable confideration is made a facrifice, and which we feem to have inherited from our anceftors the antient Germans; whom Tacitus ^e defcribes to have been bewitched with the fpirit of play to a moft exorbitant degree. “They addict themfelves, fays he, to dice, “(which is wonderful) when fober, and a ferious employment; with fuch a mad defire of winning or lofing, that, when “ftript of every thing elfe, they will ftake at laft their libetty, “and their very felves. The lofer goes into a voluntary flavery, “and, though younger and ftronger than his antagonift, fuffers “himfelf to be bound and fold. And this perfeverance in fo bad “a caufe they call the point of honour: ea eft in re prava pervicacia, ipfi fidem vocant.” One would almoft be tempted to think Tacitus was defcribing a modern Englifhman. When men are thus intoxicated wit fo frantic a fpirit, laws will be of little avail: becaufe the fame falfe fenfe of honour, that prompts a man to facrifice himfelf, will deter him from appealing to the magiftrate. Yet it is proper that laws fhould be, and be known publicly, that gentlemen may learn what penalties they willfully incur, and what a confidence they repofe in fharpers; who, if fuccefsful in play, are certain to be paid with honour, or, if unfuccefsful, have it in their power to be ftill greater gainers by informing: For by ftatute 16 Car. II. c. 7. if any perfon by playing or betting fhall lofe more than 100 /., at one time, he fhall not be compellable to pay the fame; and the winner fhall forfeit treble the value, one moiety to the king, the other to the informer. The ftatute 9 Ann. c. 14. enacts, that all bonds and other fecurities, given for money won at play, or money lent at the time to play withal, fhall be utterly void: that all mortgages and incumbrances of lands, made upon the fame confideration, fhall be and enure to the ufe of the heir of the mortgagor: that, if any perfon at one time lofes 10 /., at play, he may fue the winner, and recover it back by action of debt at law; and, in cafe the lofer does not, any other perfon may fue the win-

.{FS}
^e de mor. Germ c. 24.
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ner
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ner for treble the fum fo loft; and the plaintiff in either cafe may examine the defendant himfelf upon oath: and that in any of thefe fuits no privilege of parliament fhall be allowed. The ftatute farther enacts, that if any perfon cheats at play, and at one time wins more than 10 /., or any valuable thing, he may be indicted thereupon, and fhall forfeit five times the value, fhall be deemed infamous, and fuffer fuch corporal punifhment as in cafe of willful perjury. By feveral ftatutes of the reign of king George II ^f, 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 fhall erect fuch lotteries, and 50 /., a time for the players. Public lotteries, unlefs by authority of parliament, and all manner of ingenious devices, under the denomination of fales or otherwife, which in the end are equivalent to lotteries, were before prohibited by a great variety of ftatutes ^g under heavy pecuniary penalties. But particular defcriptions will ever be lame and deficient, unlefs all games of mere chance are at once prohibited; the inventions of fharpers being fwifter than the punifhment of the law, which only hunts them from one device to another. The ftatute 13 Geo. II. c. 19. to prevent the multiplicity of horfe races, another fund of gaming, directs that no plates or matches under 50 /., value fhall be run, upon penalty of 200 /., to be paid by the owner of each horfe running, and 100 /., by fuch as advertife the plate. By ftatute 188 Geo. II. c. 34. the ftatute 9 Ann. is farther enforced, and fome deficiencies 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 10 /. or 20 /., within twenty four hours, he fhall forfeit five times the fum. Thus careful has the legiflature been to prevent this deftructive vice: which may fhew that our laws againft gaming

.{FS}
^f 12 Geo. II. c. 28. 13 Geo. II. c. 19. 18 Geo. II. c. 34.
^g 10 & 11 W. III. c. 17. 9 Ann. c. 6. §. 56. 10 Ann. c. 26. §. 109. 8 Geo. I. c. 2. §. 36, 37. 9 Geo. I. c. 19. §. 4, 5. 6 Geo. II. c. 35. §. 29, 30.
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are
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are not fo deficient, as ourfelves and our magiftrates in putting thofe laws in execution.

9. LASTLY, there is another offence, fo conftituted by a variety of acts of parliament, which are fo numerous and fo confufed, 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 fportfmen of England feem to think of the higheft 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 deftroying fuch beafts and fowls, as are ranked under the denomination of game: which, we may remember, was formerly obferved ^h, (upon the old principles of the foreft law) to be a trefpafs and offence in all perfons 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 leaft a manor of their own. But the laws, called the game laws, have alfo inflicted additional punifhments (chiefly pecuniary) on perfons guilty of this general offence, unlefs they be people of fuch rank or fortune as is therein particularly fpecified. All perfons therefore, of what property or diftinction 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 franchife, are guilty of the firft original offence, of encroaching on the royal prerogative. And thofe indigent perfons who do fo, without having fuch 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 ftatutes for preferving the game: which aggravations are fo feverely punifhed, and thofe punifhments fo implacably inflicted, that the offence againft the king is feldom thought of, provided the miferable delinquent can make his peace with the lord of the manor. This offence, thus aggravated, I have ranked under the prefent head, becaufe the only rational footing, upon which we can confider it as a

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^h See Vol. II. pag. 417, &c.
^I Burn's Juftice, tit. Game. §. 3.
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crime,
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crime, is that in low and indigent perfons it promotes idlenefs, and takes than away from their proper employments and callings; which is an offence againft 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 ^I, 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 thefe ftatutes, I fhall not at prefent enquire. It is in general fufficient to obferve, that the qualifications for killing game as they are ufually called, or more properly the exemptions from the penalties inflicted by the ftatute law, are, 1. The having a freehold eftate of 100 /., 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 leafehold for ninety nine years of 150 /., per annum: 3. Being the fon and heir apparent of an efquire (a very loofe and vague defcription) or perfon of fuperior degree: 4. Being the owner, or keeper, of a foreft, park, chafe, or warren. For unqualified perfons tranfgreffing thefe laws, by killing game, keeping engines for that purpofe, or even having game in their cuftody, or for perfons (however qualified) that kill game, or have it is poffeffion, at unfeafonable times of they year, there are various penalties affigned, corporal and pecuniary, by different ftatutes ^k; 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.

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^k Burn's Juftice, tit. Game.
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