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reverse, if, instead of inviting him to walk

man that comes on your land, because you spectable and temperate Judge might may turn him off by means less hurtful to fairly have uttered. Had such been him: and, therefore, if you saw him walk-the Report cited in Burn, it never would ing in your field, and were to invite him to have drawn from us one syllable of reproceed on his walk, knowing that he must tread on a wire, and so shoot himself with prehension. 3 spring gun, you would be liable to all the consequences that would follow. The invitation to him to pursue his walk is doing indirectly, what, by drawing the trigger of a gun with your own hand, is done directly. But the case is just the on your land, you tell him to keep off, and warn him of what will follow if he does not. It is also said, that it is a maxim of law that you must so use your own property as not to injure another's. This maxim I admit; but I deny its application to the case of a man who comes to trespass on my property. It applies only to cases where a man has only a transient property, such as in the air or water that passes over his land, and which he must not corrupt by nuisance; or where a man has a qualified property, as in land near another's ancient windows, or in land over which another has a right of way. In the first case, he must do nothing on his land to stop the light of the windows, or, in the second, to obstruct the way. This case has been argued, as if it appeared in it that the guns were set to preserve game; but that is not so; they were set to prevent trespasses on the lands of the defendant. Without, however, saying in whom the property of game is vested, I say, that a man has a right to keep persons off his lands in order to preserve the game. is expended in the protection of game; and it would be hard, if, in one night, when the keepers are absent, a gang of poachers might destroy what has been kept at so much cost. If you do not allow men of landed estates to preserve their game, you will not prevail on them to reside in the country. Their poor neighbours will thus loose their protection and kind offices; and the Government the support that it derives from an independent, enlightened, and unpaid magistracy"

Much money

We beg leave, however, to observe, that we have never said that it was Mr. Justice Best's opinion, as reported in Chetwynd, that a man might be put to death without Notice, but without Warning; by which we meant a very different thing. If notice was given on boards that certain grounds were guarded by watchmen with fire-arms, the watchmen, feeling perhaps some little respect for human life, would probably call out to the man to stand and deliver himself up: "Stop, or I'll shoot you!" "Stand, or you are a dead man!"-or some such compunctious phrases as the law compels living But the trap can machines to use. give no such warning-can present to the intruder no alternative of death or surrender. Now, these different modes of action in the dead or the living guard, is what we alluded to in the words without warning. We meant to characterise the ferocious, unrelenting nature of the means used - and the words are perfectly correct and applicable, after all the printed notices in the world. Notice is the communication of some thing about to happen, after some little interval of time. Warning is the communication of some imminent danger. Nobody gives another notice that he will immediately shoot him through the head -or warns him that he will be a dead man in less than thirty years. This, and not the disingenuous purpose ascribed to us by Mr. Justice Best, is the explanation of the offending words. We are thoroughly aware that Mr. Justice Best was an advocate for notice, and never had the most distant intention of representing his opinion otherwise: and we really must say that (if the Report had been correct) there never was a judicial speech where there was so little necessity for having recourse to the arts of misrepresentation. We are convinced, however, that the Report is not correct-and we are heartily glad it is not. There is in the Morning Chronicle an improper and

As Mr. Justice Best denies that he did say what a very respectable and grave law publication reported him to have said, and as Mr. Chetwynd and his reporter have made no attempt to vindicate their Report, of course our observations cease to be applicable. There is certainly nothing in the Term Report of Mr. Justice Best's speech which calls for any degree of moral criticism;-nothing but what a re

offensive phrase, which (now we know | preliminary observations, because we had not the most distant idea of denying that Mr. Justice Best considered ample notice as necessary to the legality of these proceedings.

Mr. Justice Best's style better) we shall
attribute to the reporters, and pass over
without further notice. It would seem
from the complaint of the learned Judge,
that we had omitted something in the
middle of the quotation from Chetwynd;
whereas we have quoted every word of
the speech as Chetwynd has given it,
and only began our quotation after the
Mr. Justice Best in the Morn-
ing Chronicle of the 4th of
June, 1821.

It is not necessary for me in this place to say, that no man entertains more horror of the doctrine I am supposed to have laid down, than I do, that the life of man is to be treated lightly and indifferently, in comparison with the preservation of game, and the amusement of sporting-that the laws of humanity are to be violated for the sake merely of preserving the amusement of game. I am sure no man can justly impute to me such wicked doctrines; it is unnecessary for me to say I entertain no such sentiments.

In Barnewall and Alderson there is a correct report of that case.-Morn. Chron.

There are passages in the Morning Chronicle already quoted, and in the Term Report, which we must take the liberty of putting in juxtaposition to each other.

Mr. Justice Best in the Term Reports, Barnewall and
Alderson.

When the owner and his servants are absent at the time of the trespass, it can only be repelled by the terror of spring guns, or other instruments of the same kind There is, in such cases, no possibility of proportioning the resisting force to the obstinacy and violence of the trespasser, as the owner of the close may, and is required to do when he is present.-317.

Without saying in whom the property of game is vested, I say that a man has a right to keep persons off his lands, in order to preserve the game. Much money is expended on the protection of game; and it would be hard if, in one night, when the keepers are absent, a gang of poachers might destroy what has been kept at so much cost.-320.

If an owner of a close cannot set spring guns, he cannot put glass bottles or spikes on the top of a wall.—318.

If both these questions must be answered in the negative, it cannot be unlawful to set spring guns in an enclosed field, at a distance from any road; giving such notice that they are set, as to render it in the highest degree probable that all persons in the neighbourhood must know they are so set. Humanity requires that the fullest notice possible should be given; and the law of England will not sanction what is inconsistent with humanity. Barnewall and Alderson, 319.

There is, perhaps, some little inconsistency in these opposite extracts; but we have not the smallest wish to insist upon it. We are thoroughly and honestly convinced that Mr. Justice Best's horror at the destruction of human life for the mere preservation of game is quite sincere. It is impossible, indeed, that any human being, of common good nature, could entertain a different feeling upon the subject, when it is earnestly pressed upon him; and, though, perhaps, there may be Judges upon the Bench more remarkable for imperturbable apathy, we never heard Mr. Justice Best accused of ill nature. In condescending to notice our observations, in destroying the credit of Chetwynd's Report, and in withdrawing the canopy of his name from the bad passions of country gen

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tlemen, he has conferred a real favour upon the public.

Mr. Justice Best, however, must excuse us for saying, that we are not in the slightest degree convinced by his reasoning. We shall suppose a fifth Judge to have delivered his opinion in the case of Ilott against Wilkes, and to have expressed himself in the following manner. But we must caution Mr. Chetwynd against introducing this fifth Judge in his next edition of Burn's Justice; and we assure him that he is only an imaginary personage.

"My Brother Best justly observes, that prevention of intrusion upon private property is a right which every proprietor may act upon, and use forceto vindicate the force absolutely necessary for such vindication. If any man intrude upon another's lands, the

proprietor must first desire him to go should be rendered more expensive, off, then lay hands upon the intruder, than that the life of man should be then push him off; and if that will not rendered so precarious. But why is it do, call in aid other assistance, before impossible to proportion the resisting he uses a dangerous weapon. If the force to the obstinacy of the trespasser proprietor uses more force than is ab- in the absence of the proprietor? Why solutely necessary, he renders himself may not an intruder be let gently down responsible for all the consequences of into five feet of liquid mud ?—why not the excess. In this doctrine I cordially caught in a box which shall detain him concur; and admire (I am sure, with till the next morning ?-why not held him) the sacred regard which our law in a toothless trap till the proprietor everywhere exhibits for the life and arrives ?-such traps as are sold in all safety of man-its tardiness and re- the iron shops in this city? We are luctance to proceed to extreme violence: bound, according to my Brother Best, but my learned brother then observes to inquire if these means have been s follows:-It is evident, also, that previously resorted to; for upon his ais doctrine is only applicable to tres-own principle, greater violence must passes committed in the presence of not be used, where less will suffice for the owner of the property trespassed the removal of the intruder. upon. When the owner and his ser- "There are crops, I admit, of essenvants are absent at the time of the tres-tial importance to agriculture, which pass, it can only be repelled by the will not bear the expense of eternal terror of spring guns, or other instru- vigilance; and if there be districts ments of the same kind.' If Mr. Jus- where such crops are exposed to such tice Best means, by the terror of spring serious and disheartening depredation, guns, the mere alarm that the notice that may be a good reason for addiexcites or the powder without the tional severity; but then it must be bullets-noise without danger-it is the severity of the legislator, and not not worth while to raise an argument of the proprietor. If the Legislature upon the point; for, absent or present, enact fine and imprisonment as the notice or no notice, such means must punishment for stealing turnips, it is always be lawful. But if my Brother not to be endured that the proprietor Best means that in the absence of the should award to this crime the punishproprietor, the intruder may be killed ment of death. If the fault be not by such instruments, after notice, this sufficiently prevented by the punishis a doctrine to which I never can as-ments already in existence, he must sent; because it rests the life and secu- wait till the frequency and flagrancy of rity of the trespasser upon the accident the offence attracts the notice, and stiof the proprietor's presence. In that mulates the penalties of those who make presence there must be a most cautious laws. He must not make laws (and and nicely graduated scale of admo- those very bloody laws) for himself. nition and harmless compulsion; the "I do not say that the setter of the feelings and safety of the intruder are trap or gun allures the trespasser into to be studiously consulted; but if busi- it; but I say that the punishment he ness or pleasure call the proprietor intends for the man who trespasses away, the intruder may be instantly shot after notice is death. He covers his dead by machinery. Such a state of law, spring gun with furze and heath, and I must be permitted to say, is too in- gives it the most natural appearance he congruous for this or any other country. can; and in that gun he places the *If the alternative is the presence of slugs by which he means to kill the the owner and his servants or such trespasser. This killing of an unchaldreadful consequences as these, why lenged, unresisting person, I really are the owner or his servants allowed cannot help considering to be as much to be absent? If the ultimate object murder as if the proprietor had shot in preventing such intrusions is pleasure the trespasser with his gun. Giving it in sporting, it is better that pleasure all the attention in my power, I am

"My Lord Chief Justice can see no distinction between the case of tenter

utterly at a loss to distinguish between | terror; and if he does not put a bullet the two cases. Does it signify whose there, he never can be the subject of hand or whose foot pulls the string argument in this Court. which moves the trigger ?-the real murderer is he who prepares the instrument of death, and places it in a posi-hooks upon a wall, and the placing of tion that such hand or foot may touch spring guns, as far as the lawfulness of it, for the purposes of destruction. My both is concerned. But the distinctions Brother Holroyd says, the trespasser I take between the case of tenter-books who has had a notice of guns being set upon a wall, and the setting of spring in the wood is the real voluntary agent guns, are founded,—1st, in the magniwho pulls the trigger. But I most tude of the evil inflicted; 2dly, in the certainly think that he is not. He is the great difference of the notice which the animal agent, but not the rational trespasser receives; 3dly, in the very agent he does not intend to put him- different evidence of criminal intention self to death; but he foolishly trusts in in the trespasser; 4thly, in the greater his chance of escaping, and is anything value of the property invaded; 5thly, but a voluntary agent in firing the gun. in the greater antiquity of the abuse. If a trespasser were to rush into a wood, To cut the fingers, or to tear the hand, meaning to seek his own destruction is of course a more pardonable injury to hunt for the wire, and when found, than to kill. The trespasser, in the to pull it, he would indeed be the daytime, sees the spikes; and by day agent, in the most philosophical sense or night, at all events, he sees or feels of the word. But, after entering the the wall. It is impossible he should wood, he does all he can to avoid the not understand the nature of such a gun-keeps clear of every suspicious prohibition, or imagine that his path place, and is baffled only by the supe- lies over this wall; whereas the victim rior cunning of him who planted the gun. of the spring gun may have gone How the firing of the gun then can astray, may not be able to read, or may be called his act-his voluntary act-I first cross the armed soil in the nightam at a loss to conceive. The practice time, when he cannot read;-and so he has unfortunately become so common, is absolutely without any notice at all. that the first person convicted of such a In the next place, the slaughtered man murder, and acting under the delusion may be perfectly innocent in his purof right, might be a fit object for royal pose, which the scaler of the walls mercy. Still, in my opinion, such an act cannot be. No man can get to the top must legally be considered as murder. of a garden wall without a criminal "It has been asked, if it be an in- purpose. A garden, by the common dictable offence to set such guns in a consent and feeling of mankind, con• man's own ground: but let me first tains more precious materials than a put a much greater question-Is it wood, or a field, and may seem to murder to kill any man with such in- justify a greater jealousy and care. struments? If it be, it must be indict- Lastly, and for these reasons, perhaps, able to set them. To place an instru- the practice of putting spikes and glass ment for the purpose of committing bottles has prevailed for this century murder, and to surrender (as in such past; and the right so to do has be cases you must surrender) all control come, from time, and the absence of over its operation, is clearly an indict- cases, (for the plaintiff, in such a case, able offence. must acknowledge himself a thief,) "All my brother Judges have de-inveterate. But it is quite impossible, livered their opinions as if these guns because in some trifling instances, and were often set for the purposes of in much more pardonable circumstan terror, and not of destruction. To this I can only say, that the moment any man puts a bullet into his spring gun, he has some other purpose than that of

ces, private vengeance has usurped upon the province of law, that I can, from such slight abuses, confer upon private vengeance the power of life and death.

On the contrary, I think it my impe- I strays into the neighbouring field, and rious duty to contend, that punishment there worries the man, there wants, in for such offences as these is to be this case, the murderous and malicious measured by the law, and not by the spirit. The dog was placed in the exaggerated notions which any indivi-yard for the legal purpose of guarding dual may form of the importance of the house against burglary; for which his own pleasures. It is my duty, in-crime, if caught in the act of perpetrastead of making one abuse a reason for ting it, a man may legally be put to another, to recall the law back to its death. There was no primary intenperfect state, and to restrain as much tion here of putting a mere trespasser as possible the invention and use of to death. So, if a man keep a ferocious private punishments. Indeed, if this bull, not for agricultural purposes, but wild sort of justice is to be tolerated, I for the express purpose of repelling see no sort of use in the careful adap- trespassers, and that bull occasion the tation of punishments to crimes, in the death of a trespasser, it is murder: the humane labours of the lawgiver. Every intentional infliction of death by any lord of a manor is his own Lycurgus, means for such sort of offences constior rather his own Draco, and the great tutes the murder: a right to kill for purpose of civil life is defeated. Inter such reasons cannot be acquired by the nota tormentorum genera machinasque foolhardiness of the trespasser, nor by eritiales, silent leges. any sort of notice or publicity. If a man were to blow a trumpet all over the country, and say that he would shoot any man who asked him how he did, would he acquire a right to do so by such notice? Does mere publication of an unlawful intention make the

"Whatever be the law, the question of humanity is a separate question. I shall not state all I think of that person, who, for the preservation of game, would doom the innocent-or the guilty intruder, to a sudden death. I will not, however (because I am silent re-action lawful which follows? If nospecting individuals), join in any un- tice be the principle which consecrates deserved panegyric of the humanity of this mode of destroying human beings, the English law. I cannot say, at the I wish my brothers had been a little same moment, that the law of England | more clear, or a little more unanimous, allows such machines to be set after as to what is meant by this notice. public notice; and that the law of Must the notice be always actual, or is England sanctions nothing but what is it sufficient that it is probable? May humane. If the law sanctions such these guns act only against those who practices, it sanctions, in my opinion, have read the notice, or against all who what is to the last degree odious, un-might have read the notice? The truth christian, and inhumane.

is, that the practice is so enormous, and the opinions of the most learned men so various, that a declaratory law upon the subject is imperiously required.* Common humanity required it, after the extraordinary difference of opinion which occurred in the case of Dean and Clayton.

“The case of the dog or bull I admit to be an analogous case to this : and I ay, if a man were to keep a dog of great ferocity and power, for the express purpose of guarding against trespass in woods or fields, and that dog was to kill a trespasser, it would be murder in the person placing him there "For these reasons, I am compelled for such a purpose. It is indifferent to to differ from my learned brothers. me whether the trespasser be slain by We have all, I am sure, the common animals or machines, intentionally object of doing justice in such cases as brought there for that purpose: he these; we can have no possible motive ought not to be slain at all. It is murder to use such a punishment for such an offence. If a man put a ferocions dog in his yard, to guard his house from burglary, and that dog

for doing otherwise. Where such a superiority of talents and numbers is against me, I must of course be wrong; but I think it better to publish my own

This has been done.

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