This is not a case where the motto applies of Volenti non fit injuria. The man does not will to be hurt, but be wills to get the game; and, with that rash confidence natural to many characters, believes he shall avoid the evil and gain the good. On the contrary, it is a case which exactly arranges itself under the maxim, Quando aliquid prohibetur ex directo, prohibetur et per obliquum. Give what notice he may, the proprietor cannot lawfully shoot a trespasser (who neither runs nor resists) with a loaded pistol;- he cannot do it er directo;-how then can he do it per obliquum, by arrang ing on the ground the pistol which commits the murder? Mr. Justice Best delivers the follow. ing opinion. His Lordship concluded mortal pheasant- not the rational | many inchoate acts are innocent, the woodcock, or the accountable hare. consummation of which is a capital The Chief Justice quotes the in- offence. stance of glass and spikes fixed upon walls. He cannot mean to infer from this, because the law connives at the infliction of such small punishments for the protection of property, that it does allow, or ought to allow, proprietors to proceed to the punishment of death. Small means of annoying trespassers may be consistently admitted by the law, though more severe ones are forbidden, and ought to be forbidden; unless it follows, that what is good in any degree, is good in the highest degree. You may correct a servant boy with a switch; but if you bruise him sorely, you are liable to be indicted-if you kill him, you are hanged. A blacksmith corrected his servant with a bar of iron: the boy died, and the blacksmith was executed. (Grey's Case, Kel. 64, 65.) A woman as follows: kicked and stamped on the belly of "This case has been discussed at the bar, her child she was found guilty of as if these engines were exclusively resorted murder. (1 East, P. C. 261.) Si im-to for the protection of game; but I con moderate suo jure utatur, tune reus, ho-sider them as lawfully applicable to the micidii sit. There is, besides, this ad-protection of every species of property ditional difference in the two cases put by the Chief Justice, that no publication of notices can be so plain, in the case of the guns, as the sight of the glass or the spikes; for a trespasser may not believe in the notice which he receives, or he may think he shall see the gun, and so avoid it, or that he may have the good luck to avoid it, if he does not see it; whereas, of the presence of the glass or the spikes he can have no doubt; and he has no hope of placing his hand in any spot where they are not. In the one case he cuts his fingers upon full and perfect notice, the notice of his own senses; in the other case, he loses his life after a notice which he may disbelieve, and by an engine which he may hope to escape. Mr. Justice Bailey observes, in the same case, that it is not an indictable offence to set spring guns: perhaps not. It is not an indictable offence to go about with a loaded pistol, intending to shoot anybody who grins at you: but, if you do it, you are hanged: against unlawful trespassers. But if even they might not lawfully be used for the protection of game, I, for one, should be extremely glad to adopt such means, if they were found sufficient for that purpose; because I think it a great object that gentlemen should have a temptation to reside in the country, amongst their neighbours and tenantry, whose interests must be materially advanced by such a circumstance. The links of society are thereby better preserved, and the mutual advan tage and dependence of the higher and lower classes of society, existing between each other, more beneficially maintained. We have seen, in a neighbouring country, the baneful consequences of the non-resi dence of the landed gentry; and in an ingenious work, lately published by a foreigner, we learn the fatal effects of a like system on the Continent. By preserv ing game, gentlemen are tempted to reside diversion of the field is the only one of in the country; and considering that the which they can partake on their estates, I am of opinion that, for the purpose I have stated, it is of essential importance that this species of property should be inviolably protected." If this speech of Mr. Justice Best be destiny - does he tell us, and tell us tion of every species of property; but even if they might not lawfully be used for the protection of game, I, for one, should be extremely glad to adopt them, if they were found sufficient for that purpose." Can any man doubt to which of these two magistrates he would rather entrust a decision on his life, his liberty, and his possessions? We should be very sorry to misrepresent Mr. Justice Best, and will give to his disavowal of such sentiments, if he do disavow them, all the publicity in our power; but we have cited his very words conscientiously and correctly, as they are given in the Law Report. We have no doubt he meant to do his duty; we blame not his motives, but his feelings and his reasoning. correctly reported, it follows, that a man may put his fellow-creatures to death for any infringement of his property — for picking the sloes and blackberries off his hedges-for breaking a few dead sticks out of them by night or by day-with resistance or without resistance-with warning or without warning; a strange method this of keeping up the links of society, and sider them" (says Mr. Justice Best) maintaining the dependence of the" as lawfully applicable to the proteclower upon the higher classes. It certainly is of importance that gentlemen should reside on their estates in the country; but not that gentlemen with such opinions as these should reside. The more they are absent from the country, the less strain will there be upon those links to which the learned Judge alludes the more firm that dependence upon which he places so just a value. In the case of Dean versus Clayton, Bart., the Court of Common Pleas were equally divided upon the lawfulness of killing a dog coursing a hare by means of a concealed dogspear. We confess that we cannot see the least difference between transfixing with a spear, or placing a spear so that it will transfix; and, therefore, if Vere versus Lord Cawdor and King is good law, the action could have been main- Let it be observed that, in the whole tained in Dean versus Clayton; but the of this case, we have put every circumsolemn consideration concerning the stance in favour of the murderer. We life of the pointer is highly creditable have supposed it to be in the nightto all the judges. They none of them time; but a man may be shot in the say that it is lawful to put a trespass- day by a spring gun. We have suping pointer to death under any cir- posed the deceased to be a poacher; but cumstances, or that they themselves he may be a very innocent man, who would be glad to do it; they all seem has missed his way- an unfortunate duly impressed with the recollection | botanist, or a lover. We have supthat they are deciding the fate of an animal faithfully ministerial to the pleasures of the upper classes of society: there is an awful desire to do their duty, and a dread of any rash and intemperate decision. Seriously speaking, we can hardly believe this report of Mr. Justice Best's speech to be correct; yet we take it from a book which guides the practice of nine tenths of all the magistrates of England. Does a Judge a cool, calm man, in whose hands are the issues of life and death - from whom so many miserable trembling human beings await their * posed notice; but it is a very possible event that the dead man may have been utterly ignorant of the notice. This instrument, so highly approved of by Mr. Justice Best this knitter together of the different orders of society is levelled promiscuously against the guilty or the innocent, the ignorant and the informed. No man who sets such an infernal machine, believes that it can reason or discriminate; it is Large damages have been given for wounds inflicted by spring guns set in a garden in the day-time, where the party wounded had no notice. coupled with Mr. Justice Best's decla ration, constitutes the following affectionate relation between the different orders of society. Says the higher link to the lower, "If you meddle with my game, I will immediately murder you; if you commit the slightest injury upon my real or personal property, I will take you before a magistrate, and fine you five pounds. I am in Parliament, and you are not; and I have just brought in an act of Parliament for that purpose. But so important is it to you that my pleasures should not be interrupted, that I have exempted myself and friends from the operation of this act; and we claim the right (without allowing you any such summary remedy) of riding over your fences, hedges, gates, stiles, guideposts, milestones, woods, underwoods, orchards, gardens, nursery-grounds, crops, vegetables, plants, lands, or other matters or things growing or being thereupon-including your children and yourselves, if you do not get out of the way." Is there, upon earth, such a mockery of justice as an act of Parliament, pretending to protect property, sending a poor hedge-breaker to jail, and specially exempting from its ope ration the accusing and the judging squire, who, at the tail of the hounds, have that morning, perhaps, ruined as much wheat and seeds as would purchase fuel a whole year for a whole village? made to murder all alike, and it does who are qualified. This is surely the murder all alike. most impudent piece of legislation that Blackstone says, that the law of Eng-ever crept into the statute-book; and, land, like that of every other well-regulated community, is tender of the public peace, and careful of the lives of the subjects; "that it will not suffer with impunity any crime to be prevented by death, unless the same, if committed, would also be punished by death." (Commentaries, vol. iv. p. 182.) "The law sets so high a value upon the life of a man, that it always intends some misbehaviour in the person who takes it away, unless by the command, or express permission of the law."- -"And as to the necessity which excuses a man who kills another se defendendo, Lord Bacon calls even that necessitas culpabilis." (Commentaries, vol. iv. p. 187.) So far this Luminary of the law. -But the very amusements of the rich are, in the estimation of Mr. Justice Best, of so great importance, that the poor are to be exposed to sudden death who interfere with them. There are other persons of the same opinion with this magistrate respecting the pleasures of the rich. In the last Session of Parliament a bill was passed, entitled "An Act for the summary Punishment, in certain cases, of Persons wilfully or maliciously damaging, or committing Trespasses on public or private Property." Anno primo-(a bad specimen of what is to happen)- Georgii IV. Regis, cap. 56. In this act it is provided, that "if any person shall wilfully, or maliciously, commit any damage, injury, or spoil, upon any building, fence, hedge, gate, stile, guide-post, milestone, tree, wood, underwood, orchard, garden, nursery-ground, crops, vegetables, plants, land, or other matter or thing growing or being therein, or to or upon real or personal property of any nature or kind soever, he may be immediately seized by anybody, without a warrant, taken before a magistrate, and fined, (according to the mischief he has done) to the extent of 51.; or, in default of payment, may be committed to the jail for three months." And at the end comes a clause, exempting from the operation of this act all mischief done in hunting, and by shooters It cannot be urged, in extenuation of such a murder as we have described, that the artificer of death had no particular malice against the deceased; that his object was general, and his indignation levelled against offenders in the aggregate. Everybody knows that there is a malice by implication of law. "In general, any formal design of doing mischief may be called malice; and, therefore, not such killing only as proceeds from premeditated hatred and revenge against the person killed, but also, in many other cases, such as is accompanied with those circumstances There that show the heart to be perversely | boundaries of common sense. wicked, is adjudged to be of malice is a little book called Beccaria on prepense."-(2 Haw. c. 31.) All Crimes and Punishments, which we For, where the law makes use of strongly recommend to the attention of the term, malice aforethought, as de- Mr. Justice Best. He who has not scriptive of the crime of murder, it is read it, is neither fit to make laws, nor Lot to be understood in that narrow to administer them when made. restrained sense in which the modern As to the idea of abolishing poachuse of the word malice is apt to leading altogether, we will believe that one, a principle of malevolence to par-poaching is abolished when it is found ticulars; for the law, by the term ma- impossible to buy game; or when they Ece, malitia, in this instance meaneth, have risen so greatly in price, that that the fact hath been attended with none but people of fortune can buy such circumstances as are the ordinary them. But we are convinced this symptoms of a wicked heart regardless never can and never will happen. of social duty, and fatally bent upon the traps and guns in the world will mischief."(Fost. 256, 257.) never prevent the wealth of the merFerocity is the natural weapon of the chant and manufacturer from comcommon people. If gentlemen of edu-manding the game of the landed cation and property contend with them gentleman. You may, in the pursuit at this sort of warfare, they will pro- of this visionary purpose, render the bably be defeated in the end. If spring common people savage, ferocious, and guns are generally set-if the common vindictive; you may disgrace your people are murdered by them, and the laws by enormous punishments, and Legislature does not interfere, the posts the national character by these new of gamekeeper and lord of the manor secret assassinations; but you will will soon be posts of honour and danger. never separate the wealthy glutton The greatest curse under heaven (wit- from his pheasant. The best way is, ness Ireland) is a peasantry demoralised to take what you want, and to sell by the barbarity and injustice of their the rest fairly and openly. This is the rulers. real spring gun and steel trap which will annihilate, not the unlawful trader, but the unlawful trade. There is a sort of horror in thinking It is expected by some persons, that the severe operation of these engines will put an end to the trade of a poacher. This has always been pre-of a whole land filled with lurking endicated of every fresh operation of severity, that it was to put an end to poaching. But if this argument is good for one thing, it is good for another. Let the first pickpocket who is taken be hung alive by the ribs, and let him be a fortnight in wasting to death. Let us seize a little grammar boy, who is robbing orchards, tie his arms and legs, throw over him a delicate puffpaste, and bake him in a bun-pan in an oven. If poaching can be extirpated by intensity of punishment, why not all other crimes? If racks and gibbets and tenter-hooks are the best method of bringing back the golden age, why do we refrain from so easy a receipt for abolishing every species of wickedness? The best way of answering a bad argument is not to stop it, but to let it go on in its course till it leaps over the gines of death― machinations against human life under every green tree — traps and guns in every dusky dell and bosky bourn - the feræ naturâ, the lords of manors, eyeing their peasantry as so many butts and marks, and panting to hear the click of the trap and to see the flash of the gun. How any human being, educated in liberal knowledge and Christian feeling, can doom to certain destruction a poor wretch, tempted by the sight of animals that naturally appear to him to belong to one person as well as another, we are at a loss to conceive. We cannot imagine how he could live in the same village, and see the widow and orphans of the man whose blood he had shed for such a trifle. We consider a person who could do this to be deficient in the very elements - of morals to want that sacred regard | destitute of every species of employto hunan life which is one of the ment, and locked up with accomplished corner stones of civil society. If he villains as idle as himself, listens to sacrifice the life of man for his mere their pleasant narrative of successful pleasures, he would do so, if he dared, crimes, and pants for the hour of for the lowest and least of his passions. freedom, that he may begin the same He may be defended, perhaps, by the bold and interesting career. abominable injustice of the Game Laws This is a perfectly true picture of though we think and hope he is the prison establishments of many not. But there rests upon his head, counties in England, and was so, till and there is marked in his account, very lately, of almost all; and the the deep and indelible sin of blood-effects so completely answered the guiltiness. PRISONS. (E. REVIEW, 1821.) 1. Thoughts on the Criminal Prisons of this Country, occasioned by the Bill now in the House of Commons, for Consolidating and Amending the Laws relating to Prisons; with some Remarks on the Practice of looking to the Task-Master of the Prison rather than to the Chap lain for the Reformation of Offenders: and of purchasing the Work of those whom the Law has condemned to hard Labour as a Punishment, by allowing them to spend a Portion of their Earnings during their Imprisonment. By George Holford, Esq. M.P. Rivington. 1821. 2. Gurney on Prisons. Constable & Co. 1819. design, that, in the year 1818, there were committed to the jails of the United Kingdom more than one hundred and seven thousand persons!* s number supposed to be greater than that of all the commitments in the other kingdoms of Europe put together. The bodily treatment of prisoners has been greatly improved since the time of Howard. There is still, however, much to do; and the attention of good and humane people has been lately called to their state of moral discipline. It is inconceivable to what a spirit of party this has given birth;-all the fat and sleek people—the enjoyers — the mumpsimus, and "well as we are' people, are perfectly outrageous at being compelled to do their duty; and to sacrifice time and money to the lower orders of mankind. Their first which were brought forward for the purposes of amendment; and the alderman's sarcasm of the Turkey carpet in jails was bandied from one hard-hearted and fat-witted gentleman to another: but the advocates of prison-improvement are men in earnest -not playing at religion, but of deep feeling, and of indefatigable industry in charitable pursuits. Mr. Buxton went in company with men of the most irreproachable veracity; and found, in the heart of the metropolis, and in a prison of which the very Turkey carpet alderman was an official visitor, scenes of horror, filth, and cruelty, which would have disgraced even the interior of a slave-ship. 3. Report of Society for bettering the Con dition of Prisons. Bensley. 1820. THERE are, in every county in Eng-resource was, to deny all the facts land, large public schools, maintained at the expense of the county, for the encouragement of profligacy and vice, and for providing a proper succession of housebreakers, profligates, and thieves. They are schools, too, conducted without the smallest degree of partiality or favour; there being no man (however mean his birth, or obscure his situation), who may not easily procure admission to them. The moment any young person evinces the slightest propensity for these pursuits, he is provided with food, clothing, and lodging, and put to his studies under the most accomplished thieves and cut-throats the county can supply. There is not, to be sure, a formal arrangement of lectures, after the manner of our Universities; but the petty larcenous stripling, being left, This dislike of innovation proceeds sometimes from the disgust excited by * Report of Prison Society, xiv. |