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gun was placed there for the express purpose of defending the game, by killing or wounding the poacher, or spreading terror, or doing any thing that a reasonable man ought to know would happen from such a proceeding.
Suppose any gentleman were to give notice that all other persons must abstain from his manors; that he himself and his servants paraded the woods and fields with loaded pistols and blunderbusses, and would shoot any body who fired at a partridge; and suppose he were to keep his word, and shoot through the head some rash trespasser who defied this bravado, and was determined to have his sport:—is there any doubt that he would be guilty of murder ? We suppose no resistance on the part of the trespasser; but that, the moment he passes the line of demarcation with his dogs and gun, he is shot dead by the proprietor of the land from behind a tree. If this is not murder, what is murder? We will make the case a little better for the homicide squire. It shall be night; the poacher, an unqualified person, steps over the line of demarcation with his nets and snares, and is instantly shot through the head by the pistol of the proprietor. We have no doubt that this would be murder that it ought to be considered as murder, and punished as murder. We think this so clear, that it would be a waste of time to argue it. There is no kind of resistance on the part of the deceased; no attempt to run away; he is not even challenged: but instantly shot dead by the proprietor of the wood, for no other crime than the intention of killing game unlawfully. We do not
wfully. We do not suppose that any man, possessed of the elements of law and common sense, would deny this to be a case of murder, let the previous notice to the deceased have been as perfect as it could be. It is true, a trespasser in a park may be killed; but then it is when he will not render himself to the keepers, upon a hue and cry to stand to the king's peace. But deer are property, game is not; and this power of slaying deer-stealers is by the 21st Edward I., de Malefactoribus in Parcis, and by 3d and 4th William & Mary, c. 10. So rioters may be killed, house-burners, ravishers, felons refusing to be arrested, felons escaping, felons breaking gaol, men resisting a civil process — may all be put to death. All these cases of justifiable homicide are laid down and admitted in our books. But who ever heard, that to pistol a poacher was justifiable homicide ? It has long been decided, that it is unlawful to kill a dog who is pursuing game in a manor. To decide the contrary,' says Lord Ellenborough, would outrage reason and sense.' (Vere v. Lord Cawdor and King, 11 East, 386.) Pointers have always been treated by the legislature with great delicacy and consideration. To 'wish to be a dog, and to bay the moon,' is not quite so mad a wish as the poet thought it.
If these things are so, what is the difference between the act of firing yourself, and placing an engine which does the same thing? In the one case, your hand pulls the trigger; in the other, it places the wire which communicates with the trigger, and causes the death of the trespasser. There is the same intention of slaying in both cases — there is precisely the same human agency in both cases; only the steps are rather more numerous in the latter case. As to the bad effects of allowing proprietors of game to put trespassers to death at once, or to set guns that will do it, we can have no hesitation in saying, that the first method, of giving the power of life and death to esquires, would be by far the most hu
For, as we have observed in a previous Essay on the Game Laws, a live armigeral spring gun would distinguish an accidental trespasser from a real poacher - a woman or a boy from a man- perhaps might spare a friend or an acquaintance or a father of a family with ten children or a small freeholder who voted for Administration. But this new rural artillery must destroy, without mercy and selection, every one who approaches it.
In the case of Ilot versus Wilks, Esq., the four judges, Abbot, Bailey, Holroyd, and Best, gave their opinions seriatim on points connected with this question. In this case, as reported in Chetwynd's edition of Burn's Justice, 1820, vol. ii. p. 500., Abbot C. J. observes as follows:
I cannot say that repeated and increasing acts of aggression may not reasonably call for increased means of defence and protection. I believe that many of the persons who cause engines of this description to be placed in their grounds, do not do so with an intention to injure any person, but really believe that the publication of notices will prevent any person from sustaining an injury; and that no person having the notice given him, will be weak and foolish enough to expose himself to the perilous consequences of his trespass. Many persons who place such engines in their grounds, do so for the purpose of preventing, by means of terror, injury to their property, rather than from any motive of doing malicious injury.
Increased means of defence and protection, but increased (his Lordship should remember) from the pay. ment of five pounds to instant death - and instant death inflicted, not by the arm of law, but by the arm of the proprietor;- could the Lord Chief Justice of the King's Bench intend to say, that the impossibility of putting an end to poaching by other means would justify the infliction of death upon the offender? Is he so ignorant of the philosophy of punishing, as to imagine he has nothing to do but to give ten stripes instead of two, a hundred instead of ten, and a thousand, if a hundred will not do? to substitute the prison for pecuniary fines, and the gallows instead of the gaol ? It is impossible so enlightened a Judge can forget, that the sympathies of mankind must be consulted; that it would be wrong to break a person upon the wheel for stealing a penny loaf, and that gradations in punishments must be carefully accommodated to gradations in crime; that if poaching is punished more than mankind in general think it ought to be punished, the fault will either escape with impunity, or the delinquent be driven to desperation; that if poaching and murder are punished equally, every poacher will be an assassin. Besides, too, if the principle is right in the unlimited and unqualified manner in which the Chief Justice puts it—if defence goes on increasing with aggression, the Legislature at least must determine upon their equal pace. If an act of Parliament made it a capital offence to poach upon a manor,
as it is to commit a burglary in a dwelling-house, it might then be as lawful to shoot a person for trespassing upon your manor, as it is to kill a thief for breaking into your house.
house. But the real question is—and so in sound reasoning his Lordship should have put it. — “ If the law at this moment determine the aggression to be in such a state, that it merits only a pecuniary fine after summons and proof, has any sporadic squire the right to say, that it shall be punished with death, before any summons and without any proof ?' It appears to us, too, very singular, to say,
many persons who cause engines of this description to be placed in their ground, do not do so with an intention of injuring any person, but really believe that the publication of notices will prevent any person from sustaining an injury, and that no person, having the notice given him, will be weak and foolish enough to expose himself to the perilous consequences of his trespass. But if this be the real belief of the engineer – if he think the mere notice will keep people away—then he must think it a mere inutility that the guns should be placed at all: if he think that many will be deterred, and a few come, then he must mean to shoot those few. He who believes his gun will never be called upon to do its duty, need set no gun, and trust to rumour of their being set, or being loaded, for his protection. Against the gun and the powder we have no complaint; they are perfectly fair and admissible: our quarrel is with the bullets. He who sets a loaded gun means it should go off if it is touched. But what signifies the mere empty wish that there may be no mischief, when I perform an action which my common sense tells me may produce the worst mischief ? If I hear a great noise in the street, and fire a bullet to keep people quiet, I may not perhaps have intended to kill; I may have wished to have produced quiet, by mere terror, and I may have expressed a strong hope that my object has been effected without the destruction of human life. Still I have done that which every man of sound intellect knows is likely to kill; and if any one fall from my act, I am guilty of
murder. * Further? (says Lord Coke), “if there be an evil intent, though that intent extendeth not to death, it is murder. Thus, if a man, knowing that many people are in the street, throw a stone over the wall, intending only to frighten them, or to give them a little hurt, and thereupon one is killed - this is murder - for he had an ill intent; though that intent extended not to death, and though he knew not the party slain.' (3 Inst. 57.) If a man be not mad, he must be presumed to foresee common consequences; if he puts a bullet into a spring gun — he must be supposed to foresee that it will kill any poacher who touches the wire - and to that consequence
he must stand. We do not suppose all preservers of game to be so bloodily inclined that they would prefer the death of a poacher to his staying away. Their object is to preserve game; they have no objection to preserve the lives of their fellow-creatures also, if both can exist at the same time; if not, the least worthy of God's creatures must fall- the rustic without a soul, - not the Christian partridge - not the immortal pheasant-not the rational woodcock, or the accountable hare.
The Chief Justice quotes the instance 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 kicked and stamped on the belly of her child — she was found guilty of murder. (1 East, P. C. 261.) Si immoderate suo jure utatur, tunc reus homicidii sit. There