G A 
222 
whatever his eftate may be. On the other hand, was 
ever anefquire, fince the pading of this afit, convicted on 
it? Ifnoiuchinftancecanbe produced, thatihows tJie ge¬ 
neral fenfe of tlie nation as to this aft, and is a mucit 
more powerful argument, and lias greater w'eight with 
me, than any faulty-precedent. From the preambles 
of the Ifatutes on this fubjeft, it is plain they are chiefly 
pointed againfl; perfons of low degree, to prevent me¬ 
chanics from leaving their employments to dellroy the 
game, to the prejudice of noblemen, gentlemen, lords 
of manors, and others : for thofereafons I think gentle¬ 
men of this defcription ought not to be deprived of their 
amalements, and this is my opinion on the general im¬ 
port of the atl; how far it may affeft the prefent qiief- 
tion is another matter. As to the 2d point, if an efquire 
as fuck is qualified, I am likewifeof opinion that doEiors 
are fo ; to this it is objefted, that at all events, a perlon 
who has not taken his degree in England, is not to be 
confidered in the light of a perfon qualified by thefitme 
means as thofe are; but this objeftion is in my mind 
done away by the 4th article of the union, which enadts, 
that there fhall be a communication of all privileges, 
except where it is exprefsly provided to the contrary : 
as to their being excluded by the college of phyficians, 
that is merely tlie refult of a local inftitution ; however, 
as the relt of the court are againft me on the firft point, 
I ihail give no further opinion upon this.—Alhhurlt J. 
I fee no reafon to depart from the conilrudlion which has 
been put upon the llatiite zz Sc 23 Car. II. by this court 
in the cafe of K. & Utley. The game laws are to be 
confidered as pofitive rules, rather than as founded on 
reafon ; therefore it is fafer to adopt what they have ac¬ 
tually laid, than to fuppofe what they meant to fay ; 
though by the ftatute of Jac. I. rank as well as property 
gave a qualification: yet under this ftatute of Car. II. 
a man can only be qualified by means of property ; but 
faid tlie legiliature, the heir apparent, who is in tlie 
line of fucceflion, lhall likewile be qualified, from a 
fuppofitioh that the efquire was fo already ; according 
to which conftruclion I cannot think that it was in their 
intention purpofely to exclude the father, but in fadf 
they have done it; and the matter is put out of all doubt 
by the ftatute of James which exprefsly excludes them, 
and lb does the ftatute of Car. II. as eft'eftually in my 
opinion ; tlie blunder has been adopted perhaps without 
meaning it; this appears to me from the wording of the 
claufe, for it Ihould feem ftrange that in fixing the qua¬ 
lifications, they Ihould begin with property, then go to a 
derivative qualification, and then return to a very large 
deferiptionof original ones, namely, quality and degree. 
In a grammatical fenfe alfo, it mull be taken to be in the 
genitive cafe in the fame manner as if the word q/"had 
been actually inferred. I fee no reafon to depart from 
the conftruction put upon the ftatute Car. II. in K. and 
Utley ; nor can any inconvenience refult from it, for the 
legiliature may hereafter extend the qualification if they 
think proper. It is not necelfary to fay any thing upon 
the other head, if it were, I Ihould agree with my lord. 
•—Buller J. The cafe of the K. Sc Utley did not pals 
with fo little argument as my. brother Willes fuppofes, 
for I remember it was argued very fully, and the grounds 
of our decifion were, ill, the conftant form of convic¬ 
tions on the game laws, which ought to have great weight 
with the court; 2dly, from a comparilon of the feveral 
afts relating to game. But notwithftanding that deci. 
fton, if I faw any reafon to alter the opinion which I then 
gave, I would be ready to do it and correft my miftake ; 
but upon full confideration, in my opinion that judg¬ 
ment was right: ift, taking this claufe of Car. II. in a 
grammatical fenfe, had the exception extended no far¬ 
ther than to other perfons of higher degree, ftill I Ihould 
have thotight that the word of was intended, and that 
the word other was to he underftood in the genitive cafe ; 
but I am confirmed in my opinion by the manner in 
wmch the claufe proceeds, for tlie words immediately 
M E. 
following are, tfrd oroners and keepers offorejls, parks, 
chafes, and warrens \ now had the preceding part of tlia 
fentence, or other perfons of higher degree, been intended to 
have been taken in tlte nominative cafe, why did the le- 
giliature alter the mode of exprelfion? for when they 
fpeak of other perfons to be exempted in tiieir own right, 
they change the words. Again it is alked, what reafon 
is there for excepting the eldeft Ion alone, and not tire 
younger? The only realbn that can be given is, be- 
caufe he is the prefumptive iieir to the real eftate, which 
is a further argument for fuppofing that -landed quali¬ 
fication was tlie immediate object of the ftatute, and in 
fact this aft of Car. II. had that principally in shew, for 
it repeals the perfonal qualification of the ftatute of 
James, and leaves no otlier but that of land^ with the 
exception in favour of the heir apparent, on account of 
his right of fucceflion. And we may obferve, that there 
is the fame exception introduced into the aft of qualifi¬ 
cations of members of parliament. I have no doubt 
that the legiliature took it for granted that efquires them- 
felves would be qualified in refpecl of their land, and 
for the reafons afligned, extended the qualification to 
their eldeft Ions. So that had tlie legiliature been afleed 
at the time of making this aft, whether they intended to 
exclude the younger fons of dukes? they would have an- 
fwered no\ but I am as firmly perfuaded, that had the 
fame quellion been put to them refpefting doftors, they 
would liave anlwered in the ajfrmative-. be this as it may, 
we are bound to take the aft as they have made it; a 
cofus omijfus can in no cafe be fupplied by a court of law, 
for that would be to make laws; nor can I conceive that 
it is our province to conlider, whether fuch a law that 
has been palTedis tyrannical or not: it has been faid that 
this aft is only pointed againft perfons of low degree, as 
appears from the preamble ; to confider the preamble of 
an aft is to be fure in general a good mode to come at 
the meaning of the legiliature, but it does not aftift us in 
this cafe, for we gather from the enabling part of the 
ftatute, that a perlon who has a freehold of 99I. per an¬ 
num, or a leal'ehold for ninety-nine years of 149I. per 
annum, is not qualified, but can it be laid that either of 
thefe is a mean or vulgar perfon? Thus far we have 
been confidering the ftatute of Cha. II. alone, but now 
confider it as coupled with the former ftatutes which are 
in pari materia. In the ftatute of James, the fame words 
other perfons of higher degree are tiled, and there it is clear 
they are tiled as part of the defcription of the fons, for' 
the particle of is exprefsly prefixed; now if the ftatute 
of Car. II. is any ways doubtful we muft expound it by 
the ftatute of James, and that is confined to fons alone. 
But the ftrong ground of all is, that all the acts relative 
to game have been from time to time reftriftive of the 
right to kill game: they abolilli foine qualifications and 
raile others, and confeqiicntly leflen the number of qua¬ 
lified perfons, and no one ftatute can be conftrued into 
an enabling one; this is decilive. 7 'heie is not a pre¬ 
tence to fay that a doblor of phylic is within the excep. 
tion of ihc ftatute of James ; then if he is not within that 
ftatute, how can he be laid to be qualified under the fta¬ 
tute of Car. II. which is a reftraining one, and gives no 
new qualification whatever ? As to the other quellion, 
whether a doftor of phylic of the defendam’s deicrip- 
tion is qualified? I think he is not on another ground, 
but on tins head I refer generally to what my lord has . 
laid.—-Judgment for the plaintift. D.& £. i V. 44. 
And all lords of manors or other royalties may autho¬ 
rize their gamekeepers mithin their resfective 
MANORS OR ROYALTIES, to take and feize all fuch 
guns, bows, greyhounds, fetting-dogs, lurchers, or other 
dogs to kill Jiares or conies; ferrets, tramels, lowbels, 
hays, or other nets, hare-pipes, liiares, or other engines 
for the taking and killing of conies, hares, pheafants, 
partridges, or other game, as within the precinfts of 
fuch rel'peftive manors ftiall be iifed by any jerfon who 
by this aft is prohibited to keep or ufe the lame ; and 
moreover. 
