proportion the resisting force to the obstinacy of the trespasser in the absence of the proprietor? Why may not an intruder be let gently down into five feet of liquid mud?-why not caught in a box which shall detain him till the next morning?-why not held in a toothless trap till the proprietor arrives?-such traps as are sold in all the iron shops in this city? We are bound, according to my Brother Best, to inquire if these means have been previously resorted to; for upon his own principle, greater violence must not be used, where less will suffice for the removal of the intruder.

'There are crops, I admit, of essential importance to agriculture, which will not bear the expense of eternal vigilance; and if there be districts where such crops are exposed to such serious and disheartening depredation, that may be a good reason for additional severity; but then it must be the severity of the legislator, and not of the proprietor. If the Legislature enact fine and imprisonment as the punishment for stealing turnips, it is not to be endured that the proprietor should award to this crime the punishment of death. If the fault be not sufficiently prevented by the punishments already in existence, he must wait till the frequency and flagrancy of the offence attracts the notice, and stimulates the penalties of those who make laws. He must not make laws (and those very bloody laws) for himself.

'I do not say that the setter of the trap or gun allures the trespasser into it; but I say that the punishment he intends for the man who trespasses after notice is death. He covers his spring gun with furze and heath, and gives it the most natural appearance he can; and in that gun he places the slugs by which he means to kill the trespasser. This killing of an unchallenged, unresisting person, I really cannot help considering to be as much murder as if the proprietor had shot the trespasser with his gun. Giving it all the attention in my power, I am utterly at a loss to distinguish between the two cases. Does it signify whose hand or whose foot pulls the string which moves the trigger?-the real murderer is he who prepares the instrument of death, and

places it in a position that such hand or foot may touch it, for the purposes of destruction. My Brother Holroyd says, the trespasser who has had a notice of guns being set in the wood is the real voluntary agent who pulls the trigger. But I most certainly think that he is not. He is the animal agent, but not the rational agent-he does not intend to put himself to death; but he foolishly trusts in his chance of escaping, and is any thing but a voluntary agent in firing the gun. If a trespasser were to rush into a wood, meaning to seek his own destruction to hunt for the wire, and when found, to pull it, he would indeed be the agent, in the most philosophical sense of the word. But, after entering the wood, he does all he can to avoid the gun-keeps clear of every suspicious place, and is baffled only by the superior cunning of him who planted the gun. How the firing of the gun then can be called his act-his voluntary act --I am at a loss to conceive. The practice has unfortunately become so common, that the first person convicted of such a murder, and acting under the delusion of right, might be a fit object for royal mercy. Still, in my opinion, such an act must legally be considered as murder.

'It has been asked, if it be an indictable offence to set such guns in a man's own ground: but let me first put a much greater question-Is it murder to kill any man with such instruments? If it be, it must be indictable to set them. To place an instrument for the purpose of committing murder, and to surrender (as in such cases you must surrender) all control over its operation, is clearly an indictable offence.

'All my brother Judges have delivered their opinions as if these guns were often set for the purposes of 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 terror; and if he does not put a bullet there, he never can be the subject of argument in this Court.

6

My Lord Chief Justice can see no distinction between the case of tenter-hooks upon a wall, and the

placing of spring guns, as far as the lawfulness of both is concerned. But the distinctions I take between the case of tenter-hooks upon a wall, and the setting of spring guns, are founded, 1st, in the magnitude of the evil inflicted; 2dly, in the great difference of the notice which the trespasser receives; 3dly, in the very different evidence of criminal intention in the trespasser; 4thly, in the greater value of the property invaded; 5thly, in the greater antiquity of the abuse. To cut the fingers, or to tear the hand, is of course a more pardonable injury than to kill. The trespasser, in the daytime, sees the spikes; and by day or night, at all events, he sees or feels the wall. It is impossible he should not understand the nature of such a prohibition, or imagine that his path lies over this wall; whereas the victim of the spring gun may have gone astray, may not be able to read, or may first cross the armed soil in the nighttime, when he cannot read;-and so he is absolutely without any notice at all. In the next place, the slaughtered man may be perfectly innocent in his purpose, which the scaler of the walls cannot be. No man can get to the top of a garden wall without a criminal purpose. A garden, by the common consent and feelling of mankind, contains more precious materials than a wood, or a field, and may seem to justify a greater jealousy and care. Lastly, and for these reasons, perhaps, the practice of putting spikes and glass bottles has prevailed for this century past; and the right so to do has become, from time, and the absence of cases, (for the plaintiff, in such a case, must acknowledge himself a thief,) inveterate. But it is quite impossible, because in some trifling instances, and in much more pardonable circumstances, 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 imperious duty to contend, that punishment for such offences as these is to be measured by the law, and not by the exaggerated notions which any individual may form of the importance of his own pleasures. It is my duty,

instead of making one abuse a reason for another, to recall the law back to its perfect state, and to restrain as much as possible the invention and use of private punishments. Indeed, if this wild sort of justice is to be tolerated, I see no sort of use in the careful adaptation of punishments to crimes, in the humane labours of the lawgiver. Every lord of a manor is his own Lycurgus, or rather his own Draco, and the great purpose of civil life is defeated. Inter nova tormentorum genera machinasque exitiales, silent leges.

'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 respecting individuals), join in any undeserved panegyric of the humanity of the English law. I cannot say, at the same moment, that the law of England allows such machines to be set after public notice; and that the law of England sanctions nothing but what is humane. If the law sanction such practices, it sanctions, in my opinion, what is to the last degree odious, unchristian, and inhumane.

The case of the dog or bull I admit to be an analogous case to this: and I say, 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 such a purpose. It is indifferent to me whether the trespasser be slain by animals or machines, intentionally brought there for that purpose he ought not to be slain at all. It is murder to use such a punishment for such an offence. If a man put a ferocious dog in his yard, to guard his house from burglary, and that dog strays into the neighbouring field, and there worries the man, there wants, in this case, the murderous and malicious spirit. The dog was placed in the yard for the legal purpose of guarding the house against burglary; for which crime, if caught in the act of perpetrating it, a man may legally be put to

death. There was no primary intention here of putting a mere trespasser to death. So, if a man keep a ferocious bull, not for agricultural purposes, but for the express purpose of repelling trespassers, and that bull occasion the death of a trespasser, it is murder: the intentional infliction of death by any means for such sort of offences constitutes the murder: a right to kill for such reasons cannot be acquired by the foolhardiness of the trespasser, nor by 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 action lawful which follows? If notice be the principle which consecrates this mode of destroying human beings, I wish my brothers had been a little more clear, or a little more unanimous, as to what is meant by this notice. Must the notice be always actual, or is it sufficient that it is probable? May these guns act only against those who have read the notice, or against all who might have read the notice? The truth 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.

"For these reasons, I am compelled to differ from my learned brothers. We have all, I am sure, the common object of doing justice in such cases as these; we can have no possible motive 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 errors, than to subscribe to opinions of the justice of which I am not convinced. To destroy a trespasser with such machines, I think would be mur

* This has been done.