proceed on his walk, knowing that he must tread on a wire, and so shoot himself with a 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 reverse, if, instead of inviting him to walk 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. Much money 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 lose their protection and kind offices; and the Government the support that it derives from an independent, enlightened, and unpaid magistracy.'

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 respectable and temperate Judge might fairly have uttered. Had such been the Report cited in Burn, it never would have drawn from us one syllable of reprehension.

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 machines to use. But the trap can 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 something 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 offensive phrase, which (now we know 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 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.

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

Morning Chronicle Mr. Justice Best in the Term Reports, of the 4th of June, Barnewall and Alderson. 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

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

correct report of that case.-Morn. Cron.

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 gentlemen, 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 force to vindicate_ the force absolutely necessary for such vindication. any man intrude upon another's lands, the proprietor must first desire him to go off, then lay hands upon the

If

intruder, then push him off; and if that will not do, call in aid other assistance, before he uses a dangerous weapon. If the proprietor uses more force than is absolutely necessary, he renders himself responsible for all the consequences of the excess. In this doctrine I cordially concur; and admire (I am sure, with him) the sacred regard which our law every where exhibits for the life and safety of man-its tardiness and reluctance to proceed to extreme violence: but my learned brother then observes as follows:-" It is evident, also, that this doctrine is only applicable to trespasses committed in the presence of the owner of the property trespassed upon. 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." If Mr. Justice Best means, by the terror of spring guns, the mere alarm that the notice excites - or the powder without the bullets-noise without danger-it is not worth while to raise an argument upon the point; for, absent or present, notice or no notice, such means must always be lawful. But if my Brother Best means that in the absence of the proprietor, the intruder may be killed by such instruments, after notice, this is a doctrine to which I never can assent; because it rests the life and security of the trespasser upon the accident of the proprietor's presence. In that presence there must be a most cautious and nicely graduated scale of admonition and harmless compulsion; the feelings and safety of the intruder are to be studiously consulted; but if business or pleasure call the proprietor away, the intruder may be instantly shot dead by machinery. Such a state of law, I must be permitted to say, is too incongruous for this or any other country.

'If the alternative is the presence of the owner and his servants or such dreadful consequences as these, why are the owner or his servants allowed to be absent? If the ultimate object in preventing such intrusions is pleasure in sporting, it is better that pleasure should be rendered more expensive, than that the life of man should be rendered so precarious. But why is it impossible to