GAME. 
Theefqiiiresalfowhoareenumerated by Camdenare per. 
fons who have no land : from 8 Rep. 118. we may col- 
le( 51 ^ that where a ftatute will bear two interpretations, 
one contrary to fenfc, the other agreeable to it, the lat¬ 
ter fhall prevail : here it was evidently the intention of 
tlie legillature, that perfons of higher degree than an 
efquire fliould be qualified, for if the oppolite conftruc- 
tion was to prevail, a perfon w'oiild liave a derivative 
title, when the perfon from whom fncli title derived 
would have none, and this very defendant’s f m will de¬ 
rive a right from his father’s diploma, which it is con¬ 
tended the father hirnfelfhas not. zdly. As to the quef- 
tion, whether an Englifli dodlor be of fiiperior degree to 
an efquire? Blacklfone ranks doctors above efquires, 
and fo do the heralds, but this relates only to Englifii 
degrees: then 3dly. Does a Scotch diploma confer the 
fame right ? A Scotch dodtor is of equal rank as an En¬ 
glifli one as a mem.ber of the civil date : and the 4th ar¬ 
ticle of the adi: of union fays there Jhall be a commvnication 
of till rights, i 3 c. except w'here exprefsly agreed to the 
contrary : as to the college of phyficians and the uni- 
verfities refufing to allow Scotch doctors their own pri¬ 
vileges within their own jurifdictions, they, as private 
corporations, may make what regulations they pleafe 
concerning their own bodies ; but as to all general im¬ 
munities derived from the common law, or under the 
act of union, they cannot deprive any body of thefe. 
—The court took time to confider : but Lortt Mansfield 
then faid, that as to the latter ground he had no doubt, 
that all privileges granted by the ftatutes to the univer- 
frties, were confined to our own, and did not extend to 
Scotland or other foreign univerfities, which were go¬ 
verned by their own particular laws and cuftoms. But 
that the general quelfion upon the conftrudtion of the 
/iatute of Car. II. fliould not pafs undecided.—After¬ 
wards the court delivered their opinions/enVztfw.—I.ord 
Mansfield. This is an adtion brought by the plaintiif 
againfl the defendant for ufing a gun for the purpofe of 
killing game, not being duly qualified. . The cafe ftates 
that the defendant refted his juflification upon a diploma 
from St. Andrew’s in Scotland, conferring on him the 
degree of dodior of phyfic. Two objedfions have been 
raifed : firfl:,That under this diploma, the defendant had 
the fame rights and privileges conferred upon him as are 
acquired by a degree bellowed by the Englifli uni.verfi- 
ties. adly. That dodlors in the learned profeflions are 
of higher degree than an efquire, and therefore by 22 and 
23 Car. II. are exempted from the penalties of the game 
laws. The flatute of 22 & 23 Car. II. has thefe words, 
other than the fon and heir apparent of an efquire, or other perfon 
of higher degree. For the defendant it has been con¬ 
tended, that other perfon of higher degree relates to the 
efquire himfelf, and means that a perlon of higher de¬ 
gree than an efquire is qualified ; whereas on the other 
fide it is contended, that it means other than the fon and 
heir apparent of an efquire, or the fon of any other perfon of 
higher degree. To be lure, abfiird conlequences may feem 
to follow from giving a privilege to the ion which the 
father has not; but the queftion is, has the llatute done 
it or not ? I wiih to have the general point,determined 
becaufe of the conlequences : this court conlidered the 
pointbefore in K. v. Utley, and there tiiey held that the 
llatute meant thefons of other perfons of higher degree: on full 
confideration I am not ripe to vary from the opinion 
given in that judgment, all the precedents are fo ; but 
what llruck me moll was this, the drawer of the llatute 
of Car. II. certainly had the former llatute of Jac. I. in 
his view ; for though it does not follow the other llatute 
throughout, yet it does in that claufe, and that does not 
admit ot a doubt, for there the word e/'is exprefsly in- 
ferted : I cannot therefore unnecelTarily vary from the 
decifion that has been given; I fay unnecejfarily, becaufe 
I am latisfied on the other ground of the opinion 1 de¬ 
livered the other day ; on that ground there is not a co¬ 
lour for faying that the defendant is qualified by the ait 
VoL. VIII..No. 497. 
of union ; it is true, that by the 4th article of that adl, 
the Scotch have the fame general privileges as the En¬ 
glifli, but then they mult have the fame qualifications 
otherwife they come not wfithin the fame defcription, 
for the general article which declares, there .fliall be a 
communication of all privileges, can only mean fucji as 
are of a general nature : a burgefs of London is endued . 
with'certain privileges, to ivhich aburgel's of Edinburgh 
has no claim; fo in every cafe where a privilege is of a ■ 
qualified nature, it mull be underllood with that quali¬ 
fication; adoflorof the Englifli univerfities may become 
a member of the college of phyficians, may plead in . 
dodlors commons, and has various other privileges from 
which a Scotch dodtor, as fuch, is excluded ; the qua¬ 
lification therefore, mull be from Oxford or Cambridge. 
In like manner, the llatute allowing men of certain de¬ 
grees to have certain difpenlations for holding tv/o liv¬ 
ings, necellarily refers to fuch degrees only] as_ are ob¬ 
tained in an Englilh uniyerfity, for the church of Scot¬ 
land is diflindl from ours, and admits not of the fame 
rules; therefore whatever rank the defendant may hold 
by coLirtefy; he is not in point of law to be conlidered- 
as a dodfor to this purpofe.—WillesJ. Itismyinif- 
fortLine to difter from the rell of the court on the con- 
ftrudlion of the flatute of Car. II. The cafe of K. and 
Utley came before us on a motion to qualh a conv'iclion 
on account of the word of being inferted before the 
words, other perfons of higher degree. 1 find by looking at 
my own paper book that the cafe was but flightly ar¬ 
gued, and the court principally relied upon the ground 
of all the precedents having been in that form ; I adopted 
tliat opinion at that time, but I now retratl my alfent 
to that determination for three, reafons : ill. the game 
laws are already fufficiently opprellive, and therefore 
ought not to be extended by implication ; 2dly. becaufe 
I think that in grammatical conflrudlion and propriety 
the Vi or ds' other perfons mull be taken to be in the noniina- - 
tive and not in the genitive cafe ; 3dly. becaufe a dift'erent 
conllrudlion is unnatural and unreafonable, and nuiftbe- 
produblive of endlefs inconvenience and abfurdity. 1 
Fiiil, nothing can be more oppielfive than the prefent 
fyllem of the game laws ; we are told they ar.ofe from the 
old forell laws, which reflrained the right of killing 
game to much narrower limits; and hence that-thefe 
new regulations encroach on no privileges to which we 
were before entitled ; but on the contrary are mild when 
compared with the fources from whence they Hov/.. 
Blackllone however, in 2d book of his Commentaries, 
c. 27. holds a dirt'erent language; and wherever a law 
is produbtive of tyranny, I Ihall ever give my cenfent- 
to narrow the conltruCtion. 2dly, According to gram¬ 
matical conllrutlion, I think the words other perfons of 
higher degree mull betaken in the nominative cafe, for want 
ot the word of, and I am the more confirmed in that 
opinion, for where the legillature meant x\\»-genitive cafe 
they have exprefsly inferted the word of, as in i Jac. I. 
c. 27. and 9 An. c. 5. which relates to qualifications to 
lit in parliament. But 3dly,. what I moft rely on, are 
the many abfurdities which mull flow from a different 
interpretation; the eldell fon of a barriller at law or of 
a captain in the army or navy will be qualified as fuch, 
and yet the father himlelf will not; even a peer who is 
not qualified by property, will not be privileged to kill 
game, though his fon who claims through him will: the 
a£l could never mean to annex the qualification to land 
only, for no landed eftate however large will confer the 
title, but it mull be acquired either by office, the king’s 
patent, or fome of the means laid down by Selden and 
Camden. A lord of the manor is certainly not an elquire 
by virtue of his manor, or royalty, tliough in common 
acceptation he is conlidered as luch ; tins is evident 
from the 2d fee. of 22 & 23Car. II. c. 25. which empow¬ 
ers lords of manors or other royalties, not under the degree 
of an efquire, to appoint game-keepers ; but no lord of a 
manor under that rank can make luch an appointment,, 
3 L whatever. 
