ized; and the horrid spectacle of folly and tyranny, | partridges-if the lower orders of mankind were not which it at present exhibits, may in time be removed From the eyes of Europe.

There are two eminent Irishmen now in the House of Commons, Lord Castlereagh and Mr. Canning, who will subscribe to the justness of every syllable we have said upon this subject; and who have it in their power, by making it the condition of their remaining in office, to liberate their native country, and raise it to its just rank among the nations of the earth. Yet the court buys them over, year after year, by the pomp and perquisites of office, and year after year they come into the House of Commons, feeling deeply, and describing powerfully, the injuries of five millions of their countrymen, and continue members of a government that inflicts those evils, under the pitiful delusion that it is not a cabinet question,-as if the scratchings and quarrellings of kings and queens could alone cement politicians together in indissoluble unity, while the fate and fortune of one-third of the empire might be complimented away from one minister to another, without the smallest breach in their cabinet alliance. Politicians, at least honest politicians, should be very flexible and accommodating in little things, very rigid and inflexible in great things. And is this not a great thing? Who has painted it in finer and more commanding eloquence than Mr. Canning? Who has taken a more sensible and statesman-like view of our miserable and cruel policy, than Lord Castlereagh? You would think, to hear them, that the same planet could not contain them and the oppressors of their country,-perhaps not the same solar system. Yet for money, claret, and patronage, they lend their countenance, assistance, and friendship, to the ministers who are the stern and inflexible enemies to the emancipation of Ireland!

torn from their families and banished to Botany Bay, hares and pheasants would be increased in number, or, at least, not diminished. It is not, however, till after long experience, that mankind ever think of re curring to humane expedients for effecting their ob jects. The rulers who ride the people never think of coaxing and patting till they have worn out the lashes of their whips, and broken the rowels of their spurs. The legislators of the trigger replied, that two laws had lately passed which would answer their purpose of preserving game: the one, an act for transporting men found with arms in their hands for the purposes of killing game in the night; the other, an act for rendering the buyers of the game equally guilty with the seller, and for involving both in the same penalty. Three seasons have elapsed since the last of these laws was passed; and we appeal to the experience of all the great towns in England, whether the difficulty of procuring game in the slightest degree increased? whether hares, partridges, and pheasants are not purchased with as much facility as before the passing this act?-whether the price of such unlawful com modities is even in the slightest degree increased? Let the Assize and Sessions' calendars bear witness, whether the law for transporting poachers has not had the most direct tendency to encourage brutal as saults and ferocious murders. There is hardly now a jail-delivery in which some gamekeeper has not mur dered a poacher-or some poacher a gamekeeper. If the question concerned the payment of five pounds, a poacher would hardly risk his life rather than be taken; but when he is to go to Botany Bay for seven years, he summons together his brother poachers they get brave from rum, numbers, and despair-and a bloody battle ensues.

Another method by which it is attempted to defeat the depredations of the poacher, is by setting spring guns to murder any person who comes within their reach; and it is to this last new feature in the sup posed game laws, to which, on the present occasion, we intend principally to confine our notice.

Thank God that all is not profligacy and corruption in the history of that devoted people-and that the name of Irishman does not always carry with it the idea of the oppressor or the oppressed-the plunderer or the plundered-the tyrant or the slave. Great men hallow a whole people, and lift up all who live in their time. What Irishman does not feel proud that he has We utterly disclaim all hostility to the game laws lived in the days of GRATTAN? who has not turned to in general. Game ought to belong to those who feed him for comfort, from the false friends and open ene-it. All the landowners in England are fairly entitled mies of Ireland? who did not remember him in the to all the game in England. These laws are condays of its burnings and wastings and murders? No structed upon a basis of substantial justice; but there government ever dismayed him-the world could not is a great deal of absurdity and tyranny mingled bribe him-he thought only of Ireland-lived for no with them, and a perpetual and vehement desire on other object-dedicated to her his beautiful fancy, his the part of the country gentlemen to push the provi elegant wit, his manly courage, and all the splendour sions of these laws up to the highest point of tyranniof his astonishing eloquence. He was so born, and so cal severity. gifted, that poetry, forensic skill, elegant literature, and all the highest attainments of human genius, were within his reach; but he thought the noblest occupation of a man was to make other men happy and free; and in that straight line he went on for fifty years, without one side-look, without one yielding thought, without one motive in his heart which he might not have laid open to the view of God and man. He is gone!--but there is not a single day of his honest life of which every good Irishman would not be more proud, than of the whole political existence of his countrymen, the annual deserters and betrayers of

their native land.

WHEN Lord Dacre (then Mr. Brand) brought into the House of Commons his bill for the amendment of the game laws, a system of greater mercy and humanity was in vain recommended to that popular branch of the legislature. The interests of humanity, and the interests of the lord of the manor, were not, however, opposed to each other; nor any attempt made to deny the superior importance of the last. No such bold or alarming topics were agitated; but it was contended that, if laws were less ferocious, there would be more

'Is it lawful to put to death by a spring gun, or any other machine, an unqualified person trespassing upon your woods or fields in pursuit of game, and who has received due notice of your intention, and of the risk to which he is exposed?' This, we think, is stating the question as fairly as can be stated. We purposely exclude gardens, orchards, and all contiguity to the dwelling-house. We exclude, also, all felonious intention on the part of the deceased. The object of his expedition shall be proved to be game; and the notice he received of his danger shall be allowed to be as complete as possible. It must also be part of the case, that the spring 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 himself and his servants paraded the woods and fields other persons must abstain from his manors; that he 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 doubt that he would be guilty of murder? We suppose no resist. ance 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, | Bench intend to say, that the impossibility of putting an unqualified person, steps over the line of demarca- an end to poaching by other means, would justify the tion with his nets and snares, and is instantly shot infliction of death upon the offender? Is he so ignothrough the head by the pistol of the proprietor. We rant of the philosophy of punishing, as to imagine he have no doubt that this would be murder-that it ought has nothing to do but to give ten stripes instead of two, to be considered as murder, and punished as murder. an hundred instead of ten, and a thousand, if an hun We think this so clear, that it would be a waste of dred will not do? to substitute the prison for pecuniary time to argue it. There is no kind of resistance on fines, and the gallows instead of the jail? It is im the part of the deceased; no attempt to run away; possible so enlightened a judge can forget, that the he is not even challenged but instantly shot dead by sympathies of mankind must be consulted; that it the proprietor of the wood, for no other crime than would be wrong to break a person upon the wheel for the intention of killing game unlawfully. We do not stealing a penny loaf, and that gradations in punishsuppose that any man, possessed of the elements of ments must be carefully accommodated to gradations law and common sense, would deny this to be a case in crime; that if poaching is punished more than man. of murder, let the previous notice to the deceased kind in general think it ought to be punished, the fault have been as perfect as it could be. It is true, a tres- will either escape with impunity, or the delinquent be passer in a park may be killed; but then it is when driven to desperation; that if poaching and murder are he will not render himself to the keepers, upon an punished equally, every poacher will be an assassin. hue and cry to stand to the king's peace. But deer Besides, too, if the principle is right in the unlimited. are property, game is not; and this power of slaying and unqualified manner in which the Chief Justice puts deer-stealers is by the 21st Edward I., de Malifactori it-if defence goes on increasing with aggression, the bus in Parcis, and by 3d and 4th William & Mary, c. legislature at least must determine upon their equal 10. So rioters may be killed, house-burners, ravishers, pace. If an act of Parliament made it a capital of felons refusing to be arrested, felons escaping, telons fence to poach upon a manor, as it is to commit a bur breaking jail, men resisting a civil process-may all glary in a dwelling-house, it might then be as lawful be put to death. All these cases of justifiable homi- to shoot a person for trespassing upon your manor, as cide are laid down and admitted in our books. But it is to kill a thief for breaking into your house. But, who ever heard, that to pistol a poacher was justifi. the real question is-and so in sound reasoning his able homicide? It has long been decided, that it is lordship should have put it-If the law at this moanlawful to kill a dog who is pursuing game in a ment determines the aggression to be in such a state, manor. To decide the contrary,' says Lord Ellen- that it merits only a pecuniary fine after summons and borough, would outrage reason and sense.' (Vere v. proof, has any sporadic squire the right to say, that it Lord Cawdor and King, 11 East, 386.) Pointers have shall be punished with death, before any summons and always been treated by the legislature with great de- without any proof?' licacy 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 be tween 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 humane. 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 payment 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

It appears to us, too, very singular to say, that 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 sus taining 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 is the real belief of the engineer-if he thinks 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 thinks 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 falls from my act, I am guilty of murder. ther,' (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 there. upon one is killed-this is murder-for he bath an ill intent; though that intent extended not to death, and though he knew not the party slain.' (3 Inst. 57.) If a man is not mad, he must be presumed to foresee common consequences if he puts a bullet into a spring gun-he may 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 preser. vers 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

Fur

the least worthy of God's creatures must fall-the | ty-for picking the sloes and blackberries off ha rustic without a soul-not the Christian partridge-not hedges-for breaking a few dead sticks out of them the immortal pheasant-not the rational woodcock, or by night or by day-with resistance or without resistthe accountable hare. ance with warning or without warning; a strange The Chief Justice quotes the instance of glass and method this of keeping up the links of society, and spikes fixed upon walls. He cannot mean to infer maintaining the dependence of the lower upon the from this, because the law connives at the infliction higher classes. It certainly is of importance that of such small punishments for the protection of pro- gentlemen should reside on their estates in the coun perty, that it does allow, or ought to allow, proprie. try; but not that gentlemen with such opinions as tors to proceed to the punishment of death. Small these should reside. The more they are absent means of annoying trespassers may be consistently from the country, the less strain will there be upon admitted by the law, though more severe ones are those links to which the learned judge alludes-the forbidden, and ought to be forbidden; unless it fol- more firm that dependence upon which he places so lows, that what is good in any degree, is good in the just a value. In the case of Dean versus Clayton, Bart., highest degree. You may correct a servant boy with the Court of Common Pleas were equally divided upon a switch; but if you bruise him sorely, you are to be the lawfulness of killing a dog coursing a hare by indicted-if you kill him, you are hanged. A black- means of a concealed dog-spear. We confess that we smith corrected his servant with a bar of iron; the cannot see the least difference between transfixing 'boy died, and the blacksmith was executed. (Grey's with a spear, or placing a spear so that it will transfix; Case, Kel. 64, 65.) A woman kicked and stamped on and, therefore, if Vere versus Lord Cawdor and King, the belly of her child-she was found guilty of mur- is good law, the action could have been maintained in der. ( East, P. C. 261.) Si immoderate suo jure Dean versus Clayton; but the solemn consideration utatur, tunc reus homicidii sit. There is, besides, this concerning the life of the pointer is highly creditable additional difference in the two cases put by the Chief to all the judges. They none of them say that it is Justice, that no publication of notices can be so plain, lawful to put a trespassing pointer to death under any in the case of the guns, as the sight of the glass or circumstances, or that they themselves would be glad the spikes; for a trespasser may not believe in the to do it; they all seem duly impressed with the recol notice which he receives, or he may think he shall lection that they are deciding the fate of an animal see a gun, and so avoid it, or that he may have the faithfully ministerial to the pleasures of the upper good luck to avoid it, if he does not see it; whereas, classes of society: there is an awful desire to do their of the presence of the glass or the spikes he can have duty, and a dread of any rash and intemperate decino doubt; and he has no hope of placing his hand in sion. Seriously speaking, we can hardly believe this any spot where they are not. In the one case, he report of Mr. Justice Best's speech to be correct; yet cuts his fingers upon full and perfect notice, the notice we take it from a book which guides the practice of of his own senses; in the other case, he loses his life nine-tenths of all the magistrates in England. Does a after a notice which he may disbelieve, and by an judge-a cool, calm man, in whose hands are the issues engine which he may hope to escape. of life and death, from whom so many miserable treinbling 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 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 does 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.

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 can. not 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. lordship concluded as follows:

His

6

Let it be observed, that in the whole of this case, This case has been discussed at the bar, as if these engines we have put every circumstance in favour of the mur were exclusively resorted to for the protection of game; but I consider them as lawfully applicable to the protection of derer. We have supposed it to be in the night tiine; every species of property against unlawful trespassers. But if but a man may be shot in the day by a spring gun. even they might not lawfully be used for the protection of We have supposed the deceased to be a poacher; but game, I, for one, should be extremely glad to adopt such he may be a very innocent inan, who has missed his means, if they were found sufficient for that purpose; be-way-an unfortunate botanist, or a lover. We have cause I think it a great object that gentlemen should have a supposed notice; but it is a very possible event that temptation to reside in the country, amongst their neighbours the dead man may have been utterly ignorant of the and tenantry, whose interests must be materially advanced by notice. This instrument, so highly approved of by such a circumstance. The links of society are thereby better preserved, and the mutual advantage and dependence of the Mr. Justice Best-this knitter together of the different higher classes of society, existing between each other, more orders of society-is levelled promiscuously against the beneficially maintained. We have seen, in a neighbouring guilty or the innocent, the ignorant and the informed. country, the baneful consequences of the non-residence of the No man who sets such an infernal machine, believes landed gentry; and in an ingenious work, lately published by that it can reason or discriminate; it is made to mura foreigner, we learn the fatal effects of a like system on the der all alike, and it does murder all alike. 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 the 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.'

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

If this speech of Mr. Justice Best is correctly reported, it follows, that a man may put his fellow-spring guns set in a garden in the day-time, where the party * Large damages have been given for wounds inflicted by creatures to death for any infringement of his proper- wounded had no notice.

stance, meaneth, that the fact hath been attended with such circumstances as are the ordinary symp toms of a wicked heart, regardless of social duty, and | fatally bent on mischief.'-Fost. 256, 257.

Ferocity is the natural weapon of the common people. It gentlemen of education and property contend with them at this sort of warfare, they will probably be defeated in the end. If spring guns are generally set-if the common people are murdered by them, and the legislature do not interfere, the posts of gamekeeper and lord of the manor will soon be posts of honour and danger. The greatest curse under heaven (witness Ireland) is a peasantry demoralized by the barbarity and injustice of their rulers. It is expected by some persons, that the severe operation of these engines will put an end to the trade of a poacher. This has always been predicated of every fresh operation of severity, that it was to put an end to poachnig. But if this argument is good for one thing, it is good for another. Let the first pickpocket who is taken be hung alive by the ribs, and let him be a fortnight in wasting to death. Let us seize a little grammar boy, who is robbing orchards, tie his and bake him in a bun-pan in an oven. If ing can be extirpated by intensity of punishment, why not all other crimes? If racks and gibbets and tenter-hooks are the best method of bringing back the golden age, why do we refrain from so easy a receipt for abolishing every species of wickedness? The best way of answering a bad argument is not to stop it, but to let it go on in its course till it leaps over the boundaries of common sense. There is a little book called Beccaria on Crimes and Punishments, which we strongly recommend to the attention of Mr. Justice Best. He who has not read it, is neither fit to make laws, nor to administer them when made.

to be prevented by death, unless the same, if committed, would also be punished by death. (Commentaries, vol. iv. 182.) The law sets so high a value upon the life of a man, that it always intends some misbehaviour in the person who take, 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 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, style, guide-post, mile-stone, tree, wood, under-arms and legs, throw over him a delicate puff-paste, wood, orchard, garden, nursery-ground, crops, vegetables, plants, land, or other matter or thing growing or being therein, or to or upon any 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 51.; 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, mile. stones, 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

As to the idea of abolishing poaching altogether, we will believe that poaching is abolished when it is found impossible to buy game; or when they have risen so greatly in price, that none but people of fortune can buy them. But we are convinced this never can, and never will happen. All the traps and guns in the world will never prevent the wealth of the merchant and manufacturer from commanding the game of the landed gentleman. You may, in the pursuit of this visionary purpose, render the common people savage, ferocious, and vindictive; you may disgrace your laws by enormous punishments, and the national character by these new secret assassinations; but you will never separate the wealthy glutton from the phea sant. The best way is, to take what you want, and to sell the rest fairly and openly. This is the real spring gun and steel trap which will annihilate, not the unlawful trader, but the unlawful trade.

There is a sort of horror in thinking of a whole land filled with lurking engines of death-machinations

and specially exempting fr.hedge-breaker to jail, against human life under every green tree-traps and

its operation the accusing and the judging squire, who, at the tail of the hounds, have that morning, perhaps, ruined as much wheat and seeds as would purchase fuel a whole year for a whole village?

It cannot be urged, in extenuation of such a murder as we have described, that the artificer of death had no particular malice against the deceased; that his object was general, and his indiguation levelled against offenders in the aggregate. Every body knows that there is a malice by implication of law.

We

guns in every dusky dell and bosky bourn-the fera natura, the lords of manors eyeing their peasantry as so many butts and marks, and panting to hear the click of the trap, and to see the flash of the gun, How any human being, educated in liberal knowledge and Christian feeling, can doom to certain destruction a poor wretch, tempted by the sight of animals that naturally appear to him to belong to one person as well as another, we are at a loss to conceive. cannot imagine how he could live in the same village, and see the widow and orphans of the man whose In general, any formal design of doing mischief blood he had shed for such a trifle. We consider a may be called malice; and therefore, not such killing person who could do this, to be deficient in the very only as proceeds from premeditated hatred and re-elements of morals-to want that sacred regard to hu venge against the person killed, but also, in many other cases, such as is accompanied with those circumstances that show the heart to be preversely wicked, is adjudged to be of malice prepense.'-2

Haw. c. 31.

For, where the law makes use of the term, malice aforethought, as descriptive of the crime of murder, it is not to be understood in that narrow restrained sense in which the modern use of the word malice is apt to lead one, a principle of malevolence to particulars : for the law, by the term malice, malitia, in this in

man life which is one of the corner stones of civil society. If he sacrifices the life of man for his mere pleasures, he would do so, if he dared, for the lowest and least of his passions. He may be defended, per. haps, by the abominable injustice of the game lawsthough we think and hope he is not. But there rests upon his head, and there is marked in his account, the deed and indelible sin of blood-guiltiness.

PRISONS. (Edinburgh Review, 1821.) Thoughts on the Criminal Prisons of this Country, occasioned by the Bill now in the House of Commons, for Consolidating and Amending the Laws relating to Prisons; with some Remarks on the Practice of looking to the TaskMaster of the Prison rather than to the Chaplain for the Reformation of Offenders; and of purchasing the Work of

those whom the Law has condemned to Hard Labour as a

Punishment, by allowing them to spend a Portion of their
Earnings during their Imprisonment. By George Holford,

Esq. M. P. Rivington. 1821.

2. Gurney on Prisons. Constable and Co. 1819.
3. Report of Society for bettering the Condition of Prisons.
Bensley. 1820.

rection of one abuse may lead to that of anotherfeel uneasy at any visible operation of public spirit and rectifies abuses from a sense of duty-and think, and justice-hate and tremble at a man who exposes if such things are suffered to be, that their candle. ends and cheese-parings are no longer safe and these sagacious persons, it must be said for them, are not very wrong in this feeling. Providence, which has denied to them all that is great and good, has given them a fine tact for the preservation of their plunder: their real enemy is the spirit of inquiry-the dislike of wrong-the love of right-and the courage and diligence which are the concomitants of these virtues.When once this spirit is up, it may be as well directed THERE are, in every county in England, large pub- to one abuse as another. To say you must not torture lic schools, maintained at the expense of the county, a prisoner with bad air and bad food, and to say you for the encouragement of profligacy and vice, and for must not tax me without my consent, or that of my providing a proper succession of housebreakers, prof- representative, are both emanations of the same prin ligates, and thieves. They are schools, too, conduct-ciple, occurring to the same sort of understanding, ed without the smallest degree of partiality or favour; congenial to the same disposition, published, protectthere being no man (however mean his birth, or ob-ed, and enforced by the same qualities. This it is that scure his situation,) who may not easily procure ad- really excites the horror against Mrs. Fry, Mr. Gurmission to them. The moment any young person ney, Mr. Bennet, and Mr. Buxton. Alarmists such as evinces the slightest propensity for these pursuits, he we have described have no particular wish that prisons is provided with food, clothing, and lodging; and put should be dirty, jailers cruel, or prisoners wretched; to his studies under the most accomplished thieves they care little about such matters either way; but all and cut-throats the county can supply. There is not, their malice and ineanness are called up into action to be sure, a formal arrangement of lectures, after the when they see secrets brought to light, and abuses manner of our universities; but the petty larcenous giving way before the diffusion of intelligence, and the strippling, being left destitute of every species of em- aroused feelings of justice and compassion. As for us, ployment, and locked up with accomplished villains we have neither love of change, nor fear of it; but a as idle as himself, listens to their pleasant narrative a love of what is just and wise, as far as we are able of successful crimes, and pants for the hour of free- to find it out. In this spirit we shall offer a few obser dom, that he may begin the same bold and interesting vations upon prisons, and upon the publications before

career.

This is a perfectly true picture of the prison establishments of many counties in England, and was so, till very lately, of almost all; and the effects so completely answered the design, that in the year 1818, there were committed to the jails of the United King. dom more than one hundred and seven thousand persons! a number supposed to be greater than that of all the commitments in the other kingdoms of Europe put together.

The bodily treatment of prisoners has been greatly improved since the time of Howard. There is still, however, much to do; and the attention of good and humane people has been lately called to their state of moral discipline.

It is inconceivable to what a spirit of party this has given birth;—all the fat and sleek people,-the enjoy. ers, the mumpsimus, and well as we are people, are perfectly outrageous at being compelled to do their duty and to sacrifice time and money to the lower or ders of mankind. Their first resource was, to deny all the facts which were brought forward for the purposes of amendment; and the alderman's sarcasm of the Turkey carpet in jails was bandied from one hardhearted and fat-witted gentleman to another: but the advocates of prison-improvement are men in earnest not playing at religion, but of deep feeling, and of indefatible industry in charitable pursuits. Mr. Buxton went in company with men of the most irreproachable veracity; and found, in the heart of the metropolis, and in a prison of which the very Turkey carpet alder man was an official visitor, scenes of horror, filth, and cruelty, which would have disgraced even the interior of a slave-ship.

This dislike of innovation proceeds sometimes from the disgust excited by false humanity, canting hypocrisy, and silly enthusiasm. It proceeds also from a stupid and indiscriminate horror of change, whether of evil for good, or good for evil. There is also much party spirit in these matters. A good deal of these humane projects and institutions originates from Dissenters. The plunderers of the public, the jobbers, and those who sell themselves to some great man, who sells himself to a greater, all scent from afar, the danger of political change-are sensible that the cor

* Report of Prison Society, xiv.

us.

The new law should keep up the distinction between jails and houses of correction. One of each should exist in every county, either at a distance from each other, or in such a state of juxtaposition that they might be under the same governor. To the jail should be committed all persons accused of capital offences, whose trials would come on at the Assizes; to the house of correction, all offenders whose cases would be cognizable at the Quarter Sessions. Sentence of imprisonment in the house of correction, after trial, should cary with it hard labour; sentence of impris onment in the jail, after trial, should imply an exemption from compulsory labour. There should be no compulsory labour in jails-only in houses of correc tion. In using the terms Jail and House of Correction, we shall always attend to these distinctions. Prisoners for trial should not only not be compelled to labour, but they should have every indulgence shown to them compatible with safety. No chains-much better diet than they commonly have-all possible access to their friends and relations-and means of earning money if they choose it. The broad and obvious distinction between prisoners before and after trial should constantly be attended to; to violate it is gross tyranny and cruelty.

The jails for men and women should be so far separated, that nothing could be seen or heard from one to the other. The men should be divided into two classes: 1st, those who are not yet tried; 2d, those who are tried and convicted. The first class should be divided into those who are accused as misdemeanants and as felons; and each of these into first misdemeanants and second misdemeanants, men of better and worse character; and the same with felons. The second class should be divided into, 1st, persons condemned to death; 2dly, persons condemned for transportation: 3dly, first class of confined, or men of the best character under sentence of confinement; 4thly, second confined, or men of worse character under sentence of confinement. To these are to be added separate places for king's evidence, boys, lunatics, and places for the reception of prisoners, before they can be examined and classed-a chapel, hospital, yards, and workshops for such as are willing to work.

The classifications in jails will then be as follows: