concurred with the other Judges. Of this omission I have reason to complain, because, if it had been inserted, the writer of the article could not have said, 'It follows that a man may put his fellow-creatures 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.' The Judges with whom Mr. Chetwynd makes me concur in opinion, all gave their judgment on the ground of due notice being given. I do not complain of the other observations contained in this work; they would have been deserved by me had I ever uttered such an opinion as the report of Mr. Chetwynd has stated me to have delivered. The whole of what I said will be found to be utterly inconsistent with the statement, by those who will read the case in 'Barnewall and Alderson.' I will only trouble the Court with the passage which will be found in the report of my judgment in 3 Barnewall and Alderson, 319:'-It cannot be unlawful to set spring guns in an enclosed field, at a distance from any road, giving such notice that they are set, as to render it in the highest degree probable that all persons in the neighbourhood must know that they are so set. Humanity required that the fullest notice possible should be given; and the law of England will not sanction what is inconsistent with humanity.' I have taken the first opportunity of saying this, because I think it of importance to the public that such a misrepresentation of the opinion of one of the Judges should not be circulated without some

notice.

We subjoin the report of Messrs. Barnewall and Alderson, here alluded to, and allowed by Mr. Justice Best to be correct.

"Best, J. The act of the plaintiff could only occasion mere nominal damages to the wood of the defendant. The injury that the plaintiff's trespass has brought upon himself is extremely severe. In such a case, one cannot, without pain, decide against the action. But we must not allow our feelings to induce us to lose sight of the principles which are essential to the rights of property. The prevention of intrusion upon property is one of these rights; and every proprietor is allowed to use the force that is absolutely necessary to vindicate it. If he uses more force than is absolutely necessary, he renders himself responsible for all the consequences of the excess. Thus, if a man comes on my land, I cannot lay hands on him to remove him, until I have desired him to go off. If he will not depart on request, I cannot proceed immediately to beat him, but must endeavour to push him off. If he is too powerful for me, I cannot use a dangerous weapon, but must first call in aid other assistance. I am speaking of outdoor property, and of cases in which no felony is to be apprehended. It is evident, also, that this doctrine is only applicable to trespasses committed in the presence of the owner of the property trespassed on. When the owner and the 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 where he is present. There is no distinction between the mode of defence of one species of outdoor property and another (except in cases where the taking or breaking into the property amounts to felony). If the owner of woods cannot set spring guns in his woods, the owner of an orchard, or of a field with potatoes or turnips, or any other crop usually the object of plunder, cannot set them in such field. How, then, are these kinds of property to be protected, at a distance from the residence of the owner, in the night, and in the absence of his servants? It has been said, that the law has provided remedies for any injuries to such things by action. But the offender must be detected before he can be subjected to an action; and the expense of continual watching for this purpose would often exceed the value of the property to be protected. If we look at the subject in this point of view, we may find, amongs tpoor tenants, who are prevented from paying their rents by the plunder of their crops, men who are more objects of our compassion than the wanton trespasser, who brings on himself the injury which he suffers. If an owner of a close cannot set spring guns, he cannot put glass bottles or spikes on the top of a wall, or even have a savage dog, to prevent persons from entering his yard. It has been said, in argument, that you may see the glass bottles or spikes; and it is admitted, that if the exact spot where these guns are set was pointed out to the trespasser, he could not maintain any action for the injury he received from one of them. As to seeing the glass bottles or spikes, that must depend on the circumStance whether it be light or dark at the time of the trespass. But what difference does it make, whether the trespasser be told the gun is set in such a spot, or that there are guns in different parts of such a field, if he has no right to go on any part of that field? It is absurd to say you may set the guns, provided you tell the trespasser exactly where they are set, because then the setting them could answer no purpose. My brother Bayley has illustrated this case, by the question which he asked, namely, Can you indict a man for putting spring guns in his enclosed field? I think the question put by Lord C. J. Gibbs, in the case in the Common Pleas, a still better illustration, viz., Can you justify entering into enclosed lands,, to take away guns so set? 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 set, as to render it in the highest degree probable that all persons in the neighbourhood must know that 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. It has been said in argument, that it is a principle of law, that you cannot do indirectly what you are not permitted to do directly. This principle is not applicable to the case. You cannot shoot a man that comes on your land, because you may turn him off by means less hurtful to him; and, therefore, if you saw him walking in your field, and were to invite him to 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 dif ferent thing. If notice was given on boards that certain grounds were guarded by watchmen with firearms, 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 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 of the 4th of June, 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 sportingthat the laws of humanity are to be violated for the sake merely of preserving the amusement of game. 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 correct report of that case.-Morning Chron.

Mr. Justice Best in the Term Reports, Barnewall and
Alderson.

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 set, as to render it in the highest degree probable that all persons in the neighbourhood must know they are so set. manity 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, 314.

Hu

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. If any man intrude upon another's lands, the proprietor must first desire him to go off, and then lay

hands upon the 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 everywhere 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 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 anything 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.

"My Lord Chief Justice can see no distinction between the case of tenterhooks 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 tenterhooks upon a wall, and the setting of spring guns, are founded-Ist, in the magnitude of the evil inflicted; 2ndly, in the great difference of the notice which the trespasser receives; 3rdly, 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 night-time, 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 feeling 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