is, besides, this additional 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 any body who grins at you: but, if you do it, you are hanged: many inchoate acts are innocent, the consummation of which is a capital offence.

This is not a case where the motto applies of Volenti non fit injuria. The man does not will to be hurt, but he 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 ex directo; how then can he do it per obliquum, by arranging on the ground the pistol which commits the murder?

Mr. Justice Best delivers the following opinion. His Lordship concluded as follows:

This case has been discussed at the bar, as if these engines were exclusively resorted to for the protection of game; but I consider them as lawfully applicable to the protection of every species of property 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 advantage 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-residence 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 preserving game, gentlemen are tempted to reside in the country; and, considering that the diversion of the field is the only one of 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 correctly reported, it follows, that a man may put his fellowcreatures 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 maintaining the dependence of the lower 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 dog-spear. 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 maintained in Dean versus Clayton; but the solemn consideration concerning the life of the pointer is highly creditable to all the judges. They none of them say that it is lawful to put a trespassing pointer to death under any circumstances, or that they themselves would be glad to do it; they all seem duly impressed with the recollection that 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 destiny - does he tell us, and tell us in a court of justice, that he places such little value on the life of man, that he himself would plot the destruction of his fellow-creatures for the preservation of a few hares and partridges? Nothing which falls from me' (says Mr. Justice Bailey) shall have a tendency to encourage the practice.' I consider them' (says Mr. Justice Best) as lawfully applicable to the protection 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.

(

Let it be observed that, in the whole of this case, we have put every circumstance in favour of the murderer.

We have supposed it to be in the night-time; but a man may be shot in the day* by a spring gun. We have supposed the deceased to be a poacher; but he may be a very innocent man, who has missed his way - an unfortunate botanist, or a lover. We have supposed 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 made to murder all alike, and it does murder all alike.

Blackstone says, that the law of England, 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

* 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.

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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 any body, without a warrant, taken before a magistrate, and fined (according to the mischief he has done) to the extent of 57.; 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 who are qualified. This is surely the most impudent piece of legislation that ever crept into the statute-book; and, coupled with Mr. Justice Best's declaration, 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, guide-posts, 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 gaol, and specially exempting from its operation the accusing and the judging squire, who, at the tail of the hounds, have that morning, perhaps,