Sitting of 21 June 1825

Conduct of Mr. Kenrick.
Mr. Denmansaid, that as the papers respecting Mr. Kenrick's case were now before the House, he wished to give notice, that he would submit a motion for bringing to the bar, on Friday next, five witnesses, to give evidence of the allegations against Mr. Kenrick. The letter, not yet printed by the House, was that which was published by Mr. Kenrick in a Lincoln paper, and was inconsistent with the facts as developed in the affidavits before the court of King's-bench, as well as with the statements of all the other parties. When these witnesses were examined, then he should have done all that could be reasonably expected of him; for of it he knew nothing except from these sources. It had been intimated, that he ought to bring forward a written charge. But, how could he do so without imputing a legal offence? All the written evidence which he could adduce was, the letter which reflected so strongly upon John Franks. That letter, together with the statements of the witnesses, was of such a nature as, if uncontradicted, was calculated to make out a strong case of malversation, partiality, and oppression, against Mr. Kenrick. Should that prove to be the case, it would remain for the House to decide what course they ought to take. At present, he should merely move, "That John Franks and Esther his wife, Edward Arnold, Henry Peters, esq., and Martin Money Canfor, do attend this House upon Friday next."
Mr. Secretary Peelobserved, that the object of the hon. and learned gentleman
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was, to inquire if there was ground for the House to address the Crown to remove an individual from a judicial office. It must first, however, be determined, whether or not the House would enter on the inquiry. If they agreed to summon witnesses, that would be at once to determine that they would inquire. It was due to the individual, and to the importance of the precedent which would be established, to consider what were the grounds for such a proposition. He thought that if the learned gentleman would embody his charges on paper, it would give the individual accused the power of more satisfactorily replying to them. At any rate the motion for summoning witnesses ought to be postponed until the papers were printed.
Mr.S. Bournewished only to give Mr. Kenrick the advantage which the meanest offender would have before the lowest magistrate; namely, that of having the charge specifically stated, with a proper opportunity to be heard in his defence.
Mr. Abercrombysaid, that there were two propositions which no man would dispute. First, that the House ought not prematurely to go into the inquiry; secondly, that they ought not to proceed in it without furnishing the accused with a knowledge of the charge to be preferred against him. But both of those objects had been already attained. The first was effected by the petition of Canfor, which contained the whole matter of the charge. As to the second, a friend of Mr. Kenrick's had stood up in his place in that House, and stated, that it was his anxious desire that there should be full and prompt inquiry. The only question left for the House was, how soon they ought to go into it? The petition of Canfor was before them: affidavits had been prepared by Mr. Kenrick for another place. If evidence were necessary, the House would hear and dispose of it. But, of all cases he had ever known, this was the clearest; and Mr. Kenrick himself courted prompt inquiry.
Mr. Secretary Peelsaid, he did not speak in reference to Mr. Kenrick, but to the forms of the House, and the principles of justice. The House had not determined on inquiry. The learned gentleman might, between this and Friday, reduce his charge to a specific form in writing.
Mr. Wynnsaid, it was the duty of the
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House to take care that the accused should have ample Knowledge of the charge, which ought to be reduced to writing and handed to him. If the charge affected the party in his judicial capacity, it must be reduced to form in writing. In the case of baron Page, the complaint against him was ordered by the House to be reduced to writing by his accuser, and a copy was ordered to be furnished to him. The House could then decide if there was, primâ facie, a sufficient ground of charge to merit further inquiry.
Mr. Tierneysaid, if he understood rightly, there was no charge against Mr. Kenrick as judge, but only as magistrate. If the charge affected him as a judge, then undoubtedly it must be reduced to writing; but the petition, which really contained the charge, only affected him as a justice of the peace. His learned friend did not make any charge; he only presented the petition. It was an odd way of going to work to fix the responsibility upon a member of instituting, by a settled form of his own, a charge contained in a petition; when they ought rather to choose to hear the petitioner themselves, that in case of his not making his charge good, he might be, made answerable. What his learned friend proposed was, that the petitioner should be heard. In the event of proving his charge, it would become the duty of the House to address the Crown for removing Mr. Kenrick from the commission of the peace. Then it would afterwards become a question, how far it could be proper to retain a man in the office of a judge, who was found unfit for the magistracy.
The Solicitor Generalsaid, that if the motion was agreed to, the House would be going into evidence, without having before it the matter to which the evidence applied.
Mr. Broughamwas surprised at the doctrine laid down, that a complaint was not to be entertained, unless the House cramped itself by an impeachment or a written charge. He had understood, that the proposition of his learned friend was grounded in parliamentary enactment, and that this mode of proceeding was a statutory provision to enable the House, in particular cases, to do something which was not so light as a mere complaint, nor so weighty as an impeachment. There had been already two instances of this same kind of proceeding in this session, and yet no demand had been made of a
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charge reduced to writing. The first was against the duke of Manchester; the second against lord Charles Somerset. Inquiry was, in this case, necessary. They might have to impeach. But just now the House was not called on to exert its judicial, but its inquisitorial functions. He had long known Mr. Kenrick professionally, and he did hope that he would be able to clear himself of the charge: but the House must inquire, and it must not be hampered.
Mr. Denmanconsented to withdraw his motion. After which, it was ordered, 1. "That the matter contained in the petition of Martin Money Canfor be taken into consideration upon Friday next.—2. That a copy of the said petition, together with the above order, be communicated to Mr. Kenrick.—3. That Martin Money Canfor do attend this House upon Friday next.—4. That Mr. Kenrick have leave to attend this House, by himself or counsel, on Friday next."

UNITARIANS—TOLERATION ACT.
Mr. W. Smithrose, to present a petition signed by a small number of individuals who were, however, well known and of great respectability, complaining of the situation in which they were placed by the present state of the existing laws affecting the profession of certain religious opinions. He had heard that it had been stated in a very high quarter in another House, in respect to the laws affecting the Unitarians, that before any act could be passed for relieving them from the operation of particular statutes, it would be well that some bill should be passed previously, to protect them from the penalties to which they were still subject at common law. At the same moment, and from the same high and learned quarter, there proceeded an appeal which it was impossible not to perceive to be directed and addressed to him (Mr. Smith) personally, and which went to remind him, that at the time a bill which he had been instrumental in carrying through parliament was passed—such bill having for its object to protect Unitarians, in certain cases, from the legal consequences that might attach to the impugning of the doctrine of the Trinity—he had made a declaration to the noble and eminent person in question, whereby he agreed, as to all cases not provided for by such statutes, to leave the Unitarians liable to all the visitations that they might be still

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exposed to from the common law. Now, most unquestionably, he had never made such a declaration. On a former occasion, when he was preparing a measure for the further relief of the Unitarians from the obligation of taking certain oaths, he had had an interview with that most reverend and distinguished prelate, the archbishop of Canterbury, for the purpose of explaining to his grace the principle of the bill he was then about to bring into the House. The archbishop of Canterbury, at that time, told him, that if his object was only to remove such penal liabilities as operated to prevent, perhaps, the fair, friendly, and candid discussion of the doctrinal points to which the Unitarians excepted, he was willing to consent to the repeal of those statutes that might be thought to stand in the way of such a discussion; but, of course, not extending this understanding to any denial of Christianity in general, or to blasphemy; both of which he (Mr. Smith) himself proposed to except out of the operation of his bill. The object of his bill, the 3rd Geo. 4th, was simply this—to put Unitarian Dissenters on the same footing, as to the consequences of professing certain peculiar tenets, as all other Protestant Dissenters had been placed by the act of Toleration. Now, it had been clearly stated by lord Mansfield, that unconformity, simply and as such, was no offence at common law. Why then, it was very desirable that these parties should feel assured that the common law would not visit them as if their unconformity was an offence. The act of the 53rd Geo. 3rd, cap. 160, which recited the act 19th Geo. 3rd, exempted Protestant Dissenters from all penalties to which they were previously liable at law for non-subscription to certain doctrinal articles and oaths. So that he inferred, that nothing could be clearer than this fact—that it was only the denial of Christianity in general, or blasphemy, which was an offence made penal at common law, and not mere non-conformity to particular points of doctrine. By introducing the 53rd Geo. 3rd, he had flattered himself, at one time, that he had done some service, by amending and explaining the law in the respects he had mentioned. The penalties denounced against the profession of these tenets by the common law were of the most severe and heavy kind—fine and imprisonment at the pleasure of the judge, who was authorized, therefore, if he should see fit, to take from a man the
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half of his fortune and years of his liberty for dissenting from the received doctrine of the established church. With the knowledge of facts like these, how was it possible that he should have made any such agreement as that imputed to him? Really, a statement of so serious and so mischievous a nature ought not to have been lightly made in the quarter to which he was alluding. The hon. gentleman, adverting to the other bill he had brought in for the relief of Unitarians from the obligation of taking certain oaths prescribed by the marriage, ritual, observed, that after it had received, with one exception only, the sanction and support of all the most efficient and responsible of his majesty's ministers, it was thrown out in the other House. The petition he had now the honour to present, entered so fully into the object of the petitioners, that he could not do better than refer the House to the object of their prayer, premising only, that if the House should feel hereafter disposed to accede to its prayer, the denial of Christianity as such, and blasphemy, would of course remain, as they at present were, offences at common law.
Mr. Robertsonexpressed himself decidedly adverse to the prayer of the petitioners, and cautioned the House to be aware how they encouraged too much the prevailing spirit of innovation.
The petition was read, and ordered to be printed.

CRUEL TREATMENT OF CATTLE BILL.
Mr. R. Martinmoved the second reading of this bill.
The Attorney Generalsaid, that three years ago a bill had been introduced by his learned friend, the member for Knaresborough (sir J. Mackintosh), which rendered it a felony punishable with transportation, to wound or maim cattle. Previously to the introduction of that bill, the wounding or maiming of cattle was, under the act of Charles, made a felonious offence, in those cases only where the guilty party was proved to have acted from a malicious motive towards the owner of the cattle. As the law now stood, however, maiming or wounding cattle, whether it originated in a malicious design or otherwise, was viewed as a felony against the owner. In the course of the last session, the hon. member (Mr. R. Martin) had brought in a bill, which passed that House, but was thrown out in

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the other, by which the offence that was made a felony by the bill of his learned friend would have been reduced to a misdemeanour. Now, how did the hon. member, in the present instance, endeavour to get over this difficulty? Why, by introducing a proviso in the bill, which set forth, that nothing contained in that bill should be construed to extend to the bill introduced three years ago by the learned member for Knaresborough; thus declaring, that a particular offence was a misdemeanor, which said offence was, by the former bill, the provisions of which were not to be repealed, declared to be a felony. So that the offence was, it appeared, to be both a felony and a misdemeanour. Such a contradictory measure as this could not pass into a law. The hon. member argued, that the existing measure which made the offence a felony was not effective. That, he thought, a very extraordinary reason for endeavouring to mitigate the punishment. He hoped the hon. member would not say that he (the Attorney-general) was the author of that bill, as the hon. member had introduced the proviso in question since it had been submitted to his inspection. He had taken no further part in the formation of the measure than to suggest a few verbal amendments.
Mr. R. Martinsaid, he would maintain, that this was a bill of the Attorney-general's, save and except that part to which allusion had been made. The bill which the Attorney-general had formerly consulted with him in drawing, for preventing the ill-treating of cattle, was nearly the same as the present. When he applied to the Attorney-general on the subject, the learned gentleman said he saw no objection to such a measure, and he brought in a bill pretty much in the form of the present. He afterwards saw the Attorney-general in the library, who took down the black act, and declared that he had no objection to his bill, if it contained the words, "wantonly cutting, maiming, or wounding." And it was not a little remarkable, that the point to which the right hon. Secretary for the Home Department chiefly directed his attention in opposing the bill, when he laughed at the idea of legislating on the cutting off the ears of a puppy-dog, arose entirely from the emendation of the Attorney-general. That bill passed through the committee, and was read a third time; and he would now say, in the presence of the Attorney-
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general and of the country, that that learned gentleman covenanted with him to apply to the Lords to pass the bill. He did not know whether the Attorney-general had applied to the lord-chancellor on the subject, but he said he would speak to him relative to the bill, as a measure of which he approved. Now, if the Attorney-general would strike out every thing in the present bill, and make it precisely similar to the bill of which the learned gentleman was the author, he would be satisfied. The bill to which the Attorney-general had assented was declared an absurd bill by the House of Lords, and with apparent reason; and it was to cure the absurdity of the Attorney-general's own legislation that he had introduced the clause now objected to. He, however, was ready to leave out the proviso. He was not surprised that gentlemen sometimes forgot at the end of the year what they had said in the beginning of it; but it was very extraordinary that a gentleman should forget what had occurred in the course of 24 or 36 hours. Now, within that time, the Attorney-general had stated, that he had no great objection to the bill, provided a word or two were altered. He said, he was ready to support it, if the bill for allowing counsel in cases of felony were not brought on. He now, however, came down, armed with all the heavy artillery of the law, to batter down the measure. If the Attorney-general thus stood forward to oppose bills which had in view the interests of humanity, he feared the public would look upon the House of Commons as a very bad place for the education of a judge.
The Attorney-Generalsaid, if the hon. member could reconcile the first and the last clauses of the bill, he would be satisfied to support the measure.
The House divided: Ayes 18; Noes 27. The bill was consequently lost.

SPRING GUNS BILL.
On the order of the day being read,
Mr. C. Tennysonsaid, that in rising to move the second reading of this bill, he found himself more embarrassed by the facilities which all natural reasoning afforded in support of it, than by any of the difficulties which frequently attended a new project of legislation. The question for the decision of parliament was, whether any individual who pleased, might be allowed to vindicate the inviolability of his property by means which mankind in general hesitated to em-

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ploy, and, erecting himself into a despot within his own domains, to inflict death, or grievous mutilation, on all who might venture to approach. If a very considerable number of persons were to set spring guns upon their property, the nuisance would become so intolerable, that a bill would probably be passed by acclamation to prohibit the use of them. But, however insupportable such a state of things would be, yet, as far as notice was concerned, it would be less exceptionable than when the practice was confined, as at present, to that limited number of individuals who were now alone found so tenacious of their rights as to assert them by such ferocious means. In employing any expression of that kind, he did not mean to characterize the feelings, or the principles of those who inconsiderately used spring guns, but the nature of the practice itself. Least of all, did he mean to reflect upon the hon. member for Yorkshire, who had announced his opposition to this measure. His high reputation and manly character, the respect in which he was held in his own country, and all he had ever heard of him, sufficed to prove, that nothing could induce that hon. gentleman to employ these machines, but motives which had appeared to him consistent with justice and humanity.—He repeated, that if the practice were universal, the notice would be universal also; and every man would then know that if he quitted the public highway, his life would probably fall a sacrifice. But now, as it was not above one land-owner in 20,000 who thought fit to defend his property by spring guns and man-traps, the unwary rambler fell within the range of their destructive operation, before he suspected that he was traversing the ground of an individual, who, if one might judge from the act itself, considered human life as nothing in comparison with the risk which the trivial objects of his amusement might occasionally be exposed to. The very name, "Man-Trap," had something so horribly repugnant in it, that the inhabitant of another planet would suppose men to be a species of destructive vermin, and that these traps and engines, calculated for their extirpation, were set by beings of a superior order in the scale of existence. That beings of the same species should plant them, would be utterly incredible!—The question to recur to was, whether any individual who pleased, might indirectly
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resort to means for the protection of his property which other men did not generally adopt, and of which the law would not justify or excuse the direct application, except in those last extremities of self-defence, in which alone homicide was tolerated, and where the law of nature, for a moment, superseded the law of the land. Homicide was stated, by the writers on criminal law, to be justifiable only, in order to prevent an atrocious crime, accompanied by force, as rape or burglary; but it was to be remarked, that the cases of justifiable homicide were confined to those where the party slain would have been punished with death for the crime he was about to commit. Homicide was likewise excusable in self-defence, where life or limb was imminently threatened, but it must be made to appear that the slayer had no other possible means of escape, for it was only in the last extremity that this extreme remedy could be resorted to.—He would now examine how far these principles (for which he did not cite distinct authority, because they were notorious) could tolerate the practice against which this bill was directed. First, the homicide committed by a spring gun on a man sporting upon another's property, evidently, was not in self-defence; neither was it to prevent the commission of a crime punishable by death:— on the contrary, the offence—a mere trespass—would not be punishable at all by the criminal code;—at the worst, it was merely a civil injury, against which the law had provided a remedy by civil action. If the party upon whose property the trespass was committed, were deliberately to discharge a pistol at the breast of the trespasser, he would be hanged, however wilful and mischievous the nature of the trespass might be. Even in cases of capital felony, except under the circumstances of atrocity and force to which he had alluded, it would be equally criminal, in the sight of the law, to slay the offender; but it was a manifest aggravation of that criminality, where the party presumed to administer a punishment infinitely beyond any which the law would affix to the offence. If this were so, what, he would ask, was the extent of legal responsibility which ought to attach to a man who not only ventured to slay an individual for a mere trespass—a civil injury—a private, and oftentimes, a merely nominal wrong—unattended by force—unproductive of bodily apprehension—which the law nei-

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ther denominated nor punished as a crime at all—much less punished by death?—What, he would ask, was the extent of criminality, which, in a moral and abstract view, at least, must attach to the party who not only did this, but who used no discretion as to the object on whom his vengeance should be dealt;—who recklessly suffered it to fall indiscriminately on the head of an offending or an unoffending individual—on the person who might come upon his ground by accident, or, peradventure, with some kind and friendly purpose, or on him who came there with the mind and purpose of a wrong-doer;—and this, on the pretence that the individual on whom the infliction would fall, might possibly, or probably if you will, be (not a person about to commit an atrocious crime, accompanied by force, productive of bodily apprehension, and which the laws would punish by death, but) a wilful trespasser? Now, supposing him to be a trespasser, as wilful and as mischievous as you please, still the owner of the ground would not be justified in putting him to death with his own hand; it was, therefore, incumbent on those who defended spring guns, to shew a distinction between the party who should deliberately kill such a trespasser, and one who, finding it inconvenient to remain personally on watch, should leave as his proxy and representative, a machine so placed, that by a contrivance and arrangement which he had devised for the purpose, it should distinguish (assuming for an instant the possibility) the mischievous trespasser from others, and without giving any warning, any option of surrender, or retreat (as the owner would probably do himself), it should kill or mangle such wilful and mischievous trespasser. If those who contended for the use of spring guns, failed to establish such a distinction, then the party would be guilty of the same crime in one case as in the other;—but, how much was that crime enhanced, if, instead of deputing a machine endowed with powers of discrimination, he should employ one which equally directed its murderous attack against the lives of innocent people passing that way. These blind, unreasoning, undistinguishing, remorseless engines, sacrificed every thing within their range. Infinitely better would it be, monstrous as such a proposition would appear, that the owner should be empowered to destroy or mutilate all persons, being obviously poachers, or wilful
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depredators, than that he should be allowed to adopt a course, which, nineteen times out of twenty, failed to hit the bird in the eye, but indiscriminately massacred poachers, women, children!—which knew not how to spare even the master himself, his wife and family; and country gentlemen were occasionally petrified by intelligence, that even pheasants themselves had fallen victims to its wanton operation.—The hon. gentleman here stated a variety of cases, in which the most terrific and distressing accidents had resulted from the use of spring guns; and added, that he had scarcely discovered one instance in which a poacher or other actual depredator had suffered from them. It was not practicable to limit their operation to particular individuals. If it could be so directed, it would be a plain case of murder; and could it be imagined—was it possible—that any man could delude himself into an idea, that, by reason of the uncertainty who would be the victim, the crime was less, when it was obvious that this very uncertainty greatly increased the evil? If it could be ensured that the injury would fall upon the head of a specific depredator, then it would be murder;—ought it, then, to be considered less than murder in the eye of the law, where, for the chance of killing the real object of vengeance, all mankind were exposed to danger; and where, in fact (as happened in a great majority of cases), some innocent individual was sacrificed. It was laid down by the writers on criminal law, that the "malice aforethought," which was a necessary ingredient to constitute murder, was sufficiently evinced by any wilful act which showed enmity to mankind in general; such as coolly discharging a gun amongst a multitude of people; or, if a man resolved to kill the next person he met, and did so, although he knew him not, it was murder; for this was universal malice. Again, if a man did an act of which the probable consequence might be, and eventually was, death, such killing might be murder, although no stroke were struck by himself. The case of a man having a bull accustomed to do mischief, which he turned loose in order, as he said, to frighten people, was a case of this sort, and seemed to resemble that of an individual who said, that his spring guns, loaded with ball, were intended merely to frighten, and not to kill. It was murder, however, in the case of the bull, if, so turned loose, it killed a man; and,

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by parity of reason, it ought, in his judgment, to be equally deemed murder in the case of an individual killed by a spring gun.—This brought him to the argument on the other side, that spring guns were, in fact, merely set with the venial object of exciting terror, and without any purpose of destruction. He had no objection whatever to reasonable and innocent triodes of deterring people from trespassing, or otherwise violating the law. He approved even the humane fraud of the learned and ingenious divine, who, finding other means fail, advertised, upon a board, that a Polufloisboio was set in his garden; thus exciting apprehension by a new and unheard-of machine, the danger of which no man knew how to calculate or provide against;—but he who used death-dealing engines, who set spring-guns and mantraps, and who put bullets into the one, and sharp teeth into the other, meant to kill or maim those who actually intruded, and assumed that some would intrude in defiance of the terror exeited, otherwise, why did he insert the bullets or the sharp teeth at all?—Such arguments as he had ventured to employ, were frequently met by the proposition, that where there was notice given that such machines were set upon a man's property, there was no ground of just complaint. But, he would ask, whether it was lawful, or ought to be lawful, to put a man to death because you have given him notice of your intention? Suppose a gentleman were to give notice, not only by printed boards, but by the cryer in the neighbouring towns, and in the county newspaper, that he would shoot any poacher found in his woods; and suppose him to execute his threat, he would be hanged for murder. The case would not be better, if, after threatening to kill any man, poacher or other, who pursued a certain path through his ground, he actually did so.—Yet, where was the difference between a man so acting upon notice thus given, and one, who, after even the most ample notice, arranged a spring gun to do the same thing in his absence as he would have done if present?—It appeared to him that the fact of notice could make no difference in the principle where the question was to be examined on public grounds, or even where it was raised between individuals as matter of private injury, except with respect to the precise point decided in the case of Holt and Wilks, in the court of King's-bench in 1818. But, the opinion of Mr. Justice
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Best, delivered in that case, went to give a much more important effect to the circumstance of notice. The case of Holt and Wilks was that of a person injured by a spring gun, where it was proved that he had distinct notice, before he entered the ground, that spring guns were set there. He brought an action to recover damages for the injury received. The decision itself, which was against him, did not, it was obvious, touch the general question as to the criminality (in a moral view) of setting spring guns or the expediency of permitting their use. All the judges decided the case on the prominent ground that notice being bought home to the party, volenti non fit injuria. The Lord Chief Justice expressly guarded himself by saying, that "he left untouched the general question, as to the liability incurred by placing such engines as these where no notice was brought home to the party injured;" and Mr. Justice Holroyd seemed to take the same course. The language of that learned judge was, however, very remarkable with reference to the general question. He said "the only doubt which I have entertained during the course of the argument, arises out of the maxim of law, that a man cannot do that indirectly which he cannot do directly. I am now, however, satisfied that this principle has no application to the present case, where the plaintiff had express notice, that spring guns were placed on the premises into which he wrongfully entered; for, in that case, the firing off the gun, which was the cause of the injury, was his act, and not the. act of the person who placed the gun there. If, indeed, a party who had no notice, had gone into the grounds, although he work be a trespasser, the act of firing off the gun by treading accidentally on the wires, would not, in consequence of those wires being latent, be considered his own act; but he would be a mere instrument of producing that which resulted from a prior for act done by another." After explaining and illustrating this position, he added, "Now, in the present case, in order to make the firing off of this gun the act of the person who placed it there, we must consider him as doing, indirectly, the same thing as if he had taken up the gun and shot the plaintiff; and we must consider the latter an instrument and not an actor; but, in my opinion, the plaintiff, in this case, was not an instrument, but an actor." It was plain, from the tenor of this language,

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what Mr. Justice Holroyd's opinion Would be in a case where notice was not distinctly brought home to the party.—He now came to the opinion of Mr. Justice Best, who laid it down, that the prevention of intrusion upon property was a right, to vindicate which, every proprietor was allowed to use the force which was absolutely necessary. The learned judge proceeded, "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 out-doors 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 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, where he is present."— Now, the most prominent objections to spring guns, were, that they knew not what trespasses ought to be forcibly resisted, and were incapable of proportioning their force to the occasion; yet the learned judge was here alleging this very incapacity as their apology and defence! But, they were moreover chargeable with doing at once, that which the owner could, in no case, do to a trespasser—they violently, and without parley, deprived him of his life, or inflicted on him some grievous bodily injury. Mr. Justice Best added, that it could not be unlawful to set spring guns in an enclosed field, at a distance from in any road, giving such notice that they were set, as to render it in the highest degree probable, that all persons in the neighbourhood must know that they were so set. But he (Mr. T.) wished to observe, on the subject of notice, that others, beside the immediate neighbours, were exposed to the dangers of spring guns. In the neighbourhood, it soon became notorious. It was to persons
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unacquainted with the spot, that the danger was always imminent. No notice was so full and complete, as to secure it to all who might approach, by meeting the eye upon every part of the boundary. The great probability always was, that the party would cross the fence, in the interval between the boards, and at a point where they were not visible. Besides, the fullest notice by boards would be ineffectual in the night, or, in the case of persons unable to read. He did not wish to contravene the decision of the court, in the case of Holt and Wilks. On the contrary, he thought it a sound determination of the point which there arose; but the general question which parliament had now to decide was not, as in that case, whether a man who had distinct notice, that spring guns were set, could maintain an action for an injury received, but, whether, by permitting the continuance of this practice, society at large should be exposed to the risk, which each individual ran, of passing the boundary of a territory, where these engines were set, without seeing the notice which a board might exhibit. He would go further, and say, that as, even where the party had seen the notice, he might act like the individual in the case of Holt and Wilks, who, for the sake of a few wood-nuts, resolved, to brave the danger—a paternal and humane legislature ought not, in his mind, to allow a tenacious proprietor, reckless of human life, to spread temptations in the first place, and snares in the second, for the weak, the youthful, and the rash. Neither was it expedient that such an example of ferocity on the part of the rich, should be given to the poor. Practices like these, especially when they appeared to be tolerated by the law, (as this would if the present bill should be rejected,) were calculated to produce the worst effects on the mind of the lower orders of the people, by leading them to believe that the laws were oppressive and bloody, as directed against them on the part of the higher classes; and possibly, to generate a spirit of retaliation, which, in troublesome times, might develope itself in deeds of horror and of vengeance.—The hon. gentleman remarked, that, however complete the notice might be in any case, the maxim "Volenti non fit injuria," which governed the court in that of Holt and Wilks, could not decide the question which parliament had now to consider; namely, whether the state did not receive

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damage by the injury done to individuals, by this practice, and whether it did not therefore enter into the class of public wrongs, as to which no man could be considered as "Volens." The maxim had exclusive application to matters of private wrong, and could have none whatever upon any subject connected with the criminal jurisprudence of the country. Mr. Justice Best had adverted to the principle that a man must so use his property, as not to injure another, but denied its application where that other person was guilty of a trespass. To agree with the learned judge, it was necessary to assume that a man had that sort of an absolute dominium over his land, which would exclude all mankind from it in all supposable cases; but, it appeared to him, that property of every description was rather of a qualified, than an absolute nature, whether it were in land or any other possession. In a state of society, a man's property was evidently qualified, rather than absolute, even in those possessions which were more immediately and personally his by nature, as in his strength, or even his life. They must not be employed in a manner incompatible with the good of the society to which he belonged, or the one might be coerced, and the other might be forfeited. The policy of states had assigned to individuals separate property, the extent of a man's power over which, varied according to the varying temper and circumstances of different governments. It was assigned to him out of what was originally fisc, or common stock, and the usufruct was thus secured exclusively to him, in order to induce him to improve it to the utmost, which was for the public benefit as well as for his own. But this purpose being answered, it was not expedient that those persons, in whom the possession of the soil was vested by conventional laws, should render the earth, which was given to mankind in general as an abiding place, unfit for that main purpose; it was not justifiable that any man should so deal with the portion of land which fell to, his lot, as to render it an infernal region, within which he might usurp the power of inflicting death on all comers; of inflicting it without warning, and before the case of the individual could be examined into, according to the impartial practice of that Rhadamanthus, who within his
—durissima regna Castigatque-auditque.
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Besides, it was inconvenient to the state itself, for there were many purposes, on account of which, a man could justifiably enter upon the land of another; and for which the law should secure to him the power of entry. Take the case of the pursuit of a felon, or of escape from felonious attack—the execution of civil or criminal process upon the land, on the part of public officers, and various other cases which might be assigned But these justifiable entries would be precluded, if men could lawfully set spring guns upon their ground, and thus prohibit the approach of any human being, however necessary and warrantable. If spring guns were found to prevent poachers from trespassing on the ground where they were placed, they would naturally resort to property not so guarded. This gave an undue advantage to him who scrupled not to offer up his Fellow beings as sacrifices, upon the altar of his pleasures, while the humane proprietor suffered accumulated depredation. Accordingly, if the legislature decided to tolerate the practice, it must deem it advisable and desirable that it should be general, in order to secure an equal protection, and put an end to depredation altogether by these means; and then, he would ask, what would be the condition of the country, if every hollow contained a man-trap, and every bush a spring gun? The earth would become a hell, and mankind would be divided into devils and victims. A legislature was bound thus to look at the general consequences of any practice submitted to its review, and there could be no doubt that this was one which must produce both practically and morally—both immediately and by consequence, the most baneful results to the country.—He now came to a consideration of the remedy for this evil, provided by the bill before the House. First; the act of setting the engine was declared to be unlawful, and any injury short of death was constituted a misdemeanor. Next, homicide by means of a spring gun was declared to be manslaughter. He had shown, that it could not be justifiable or excusable homicide, and he thought he had also shown that, consistently with legal principles, it might be dealt with as murder. The noble person, however, who framed this measure, was restrained by the humane and benevolent feeling which constantly distinguished him, from treating that as murder which the usage

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of the country had, to a certain extent, for some time past, tolerated. He had treated it, therefore, as manslaughter, which was defined by the authorities to be, the unlawful killing another, without malice, and either voluntarily, as upon sudden provocation—or involuntarily, but in the commission of an unlawful act. The case of manslaughter by a spring gun, would fall within the last class. The act of setting the spring gun was made an unlawful act—and the death ensuing upon it was assumed to be an involuntary consequence, chargeable, as manslaughter, upon the party. The prohibition to be effected by the bill, of spring guns and man traps, was general. It extended equally to gardens as to fields and woods, and to the night as well as to the day-time. If there was any truth in the principles he had laid down, he could not compromise them by agreeing to an exception in favour of gardens, or to one which would allow the use of spring guns in the night, which some gentlemen desired. Upon those principles both exceptions were inadmissible, and he would rather the matter remain as it was, than accede to any legislative sanction of the practice, however limited. In order, however, to supply the deficiency of the existing laws for the protection of gardens, a deficiency from which had originated the use of spring guns and man traps for that purpose, he had another bill from the Lords to recommend to the notice of the House, which was, to make it felony to steal in a garden, although the fruit or vegetables were severed at the time by the hand of the depredator, in which case, as the law now stood, the depredation could only be dealt with as a trespass, or, under an act of Elizabeth, as a case for compensation, with the alternative of whipping. With these observations, he should leave this bill for the prohibition of spring guns in the hands of the House—and whether it should consider the practice of employing those engines with reference to the homicide and other grievous mischief, which too frequently resulted from it, and which the rejection of the bill would appear to tolerate and even to patronizeߞor with reference to the inconvenience of permitting individuals thus to make and execute laws for themselves, and to vindicate their property by these bloody and disproportioned extremities, far beyond any which the law itself would administerߞor whether the House should
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look to the brutalizing effect of the practice on the mind and character of the British people, and to its certain and mischievous tendency to produce a re-action of hostile feeling amongst the lower classes, against the institutions of the country, by destroying that respect for and attachment to them, which it was most important to cultivate and maintainߞhe felt a confidence that it would sanction this measure for putting an end to an anomalous barbarity which was inconsistent with any system of regular government, and especially disgraceful to a country which, in other respects, stood pre-eminent for its laws and institutions, its morals and its usages amongst the enlightened and civilised nations of the earth. He moved, that the bill should be read a second time.
Mr. S. Wortleydenied, that spring guns were used only by lords of manors for the protection of game. They had been long used by persons of inferior rank, for the protection of various descriptions of property. It was not, therefore, as seemed to be generally argued, a question between the rich and the poor. He contended, that spring guns were not unlawful. According to the law of the land, a man had a right to set them for the protection of his property, provided he gave due notice of his doing so. That had been over and over again determined by the judges on the bench. There were no doubts on the subject: but the bill professed to be for the removal of doubts. It was founded, therefore, on a false principle; and, were it on that ground alone, he would vote against it. The other House was in the habit of criticising bills which they received from the House of Commons. It was but fair to look closely in return at the bills received from the other House; and he would say of this bill, that the preamble was false, and that the clauses were contradictory and unintelligible. In support of his opinion of the legality of the practice, he quoted the opinions of several of the judges, especially that of Mr. Justice Bailey, one of the most humane men living. If spring guns were illegal, then all kinds of property had been up to this time illegally defended. One of the main benefits of the use of spring guns was, that they not only acted as a great discouragement to poaching, but tended to prevent the dreadful evils which resulted from the affrays and fights between bodies of game-keepers and poach-

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ers. Among other instances of the kind, he knew of one in which poachers having been deterred from going on his (Mr. S. W.'s) grounds, in consequence of knowing that there were spring guns set in it, had proceeded to a neighbouring manor, where they were met by a body of game-keepers. A sanguinary conflict took place. One of the game-keepers was severely wounded; one of the poachers also was wounded, and another taken and transported. Such evils as these were averted by spring guns. If the bill should proceed, it was his intention to propose an amendment, that the use of spring guns should be illegal only during the day, but not in the night.
Sir F. Burdettobserved, that there was scarcely any instance on record, of spring guns having taken effect on the persons against whom they were planted. Their general operation was on innocent persons; and was something very like assassination. After adverting to the decision of the court of King's-bench on the subject, he observed, that previous to that decision the judges of the court of Common Pleas were divided in opinion respecting it; so that the assertion in the preamble of the bill, that doubts existed respecting the legality of the practice of using spring guns, was well founded. The English law was so tender of human life, that it did not permit it to be taken, except when property could not be otherwise defended. Yet here was a mode of taking life operating principally upon the innocent, and which, even if it operated upon the most guilty, would inflict upon them a punishment more than adequate to their offence. Those upon whom it principally operated were children straying into the woods to pick up sticks or flowers; or travellers, wandering out of their road. It was allowed, on all hands, that the use of spring gulls would be illegal, were it not accompanied by due notice; now, from the very nature of the case, due notice could not be given. But, the greatest evil attendant on spring guns was, their being applied to the protection of game. He could not coincide with those who thought so discreditably of English gentlemen, as to believe that the preservation of game was indispensable to their residence in the country, and their performance of the various duties of their situation. To call such an argument in aid of the use of spring guns was a proof of the weakness of the cause. The Game laws generally
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were among the greatest evils with which the country was afflicted; and it was incumbent on the House to do what they could to put an end to a system which maintained a kind of civil war, and which prevented that good feeling which would otherwise subsist between the rich and the poor. If the setting of spring guns would, as the hon. member for Yorkshire seemed to suppose, prevent, such an evil, the practice might almost be tolerated. But, we had all the evils resulting from the Game laws added to the evils resulting from. this cruel system.
Mr. R. Colborneobserved, that he was one of those who objected to the bill, not because they were admirers of spring guns, but because they preferred that mode of preserving game and other property, to other measures which might be adopted. As to humanity, he could not highly applaud the humanity of persons, who objected to spring guns, but who prepared well-organized bodies of armed men, to turn out and fight with the poachers. It was his firm opinion, that if the quantity of blood spilt in the nightly conflicts to which he alluded, could be compared with the quantity of blood spilt accidentally by spring guns, the tide of opinion would not run so strongly as it did in opposition to the latter mode of defence.
Mr. Hudson Gurneysaid, he thought the country under great obligations to the noble lord with whom this measure originated in the other House; who was himself a great proprietor, and had more game than any other individual in the county of Norfolk. The infamous practice of setting spring guns was, he said, of very modern introduction; the victims of it were generally the innocent. Unhappily, it had of late been very much on the increase. He believed himself that it was entirely unlawful, and trusted it would ever remain so.
Lord Binningwas in favour of the principle of the bill, as it applied to the question of game, but there were some clauses in it to which he could not assent.
Mr. Scarlettobserved that by the law of England, game was not property. If it were, the setting of spring guns might, be the more excusable; but after the decision in the courts, some revision of the law was requisite. He should therefore vote for the second reading, in the hope of accomplishing it.
After a short reply from Mr. Tennyson,

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List of the Majority and Minority.

MAJORITY.

Allen, J.A.

Marjoribanks, S.

Benett, J.

Monck, J. B.

Bentinck, lord W.

Mundy, F.

Binning, lord.

Phillimore, Dr.

Browne, D.

Plummer, W.

Burdett, sir F.

Rice, T. S.

Cooper, Bransby

Russell, lord. J.

Corbett, Panton

Scarlett, J.

Denman, T.

Sefton, earl of

Evans, W.

Stuart, lord James

Forbes, sir C.

Trant, W. H.

Gurney, Hudson

Tulk, F. A.

Hardinge, sir H.

Twiss, Horace

Haward, Henry

Wilson, C.

Hendley, H.

Wilson, sir R.

Hume, Jos.

Wodehouse, hon. col.

Hutchinson, C. H.

Jones, J.

TELLERS.

Lamb, W.

Hobhouse, J. C.

Lockhart, J.J.

Tennyson, C.

MINORITY.

Bankes, H.

Percy, capt.

Bridges,

Ross, C.

Clerk, Geo.

Seymour, H.

Douglas, J.

Somerset, lord G.

Fellowes, N.

Townshend, col.

Gordon, hon. W.

Tremayne, J. H.

Green, Thos.

Wharton, J.

Joliffe, J.

Wigram, W.

Lovain, lord

Wilson, Thos.

Lowther, J.

Wortley, J. S.

Lowther, lord

TELLERS

Lushington, S. R.

Manners, lord R.

Colburn, Ridley

Milbank, M.

Shelley, sir John

the House divided: Ayes 35; Noes 27.

ASSESSORS AT ELECTIONS' BILL.
Mr. H. Twissmoved the committal of this bill.
Mr. Hobhousesaid, that the bill had been before the House almost as many sessions as he had been a member of it; and yet he had hardly heard any reason in its support. The learned mover seemed to think that there was a want of lawyers at elections; now, he thought the evil was of an opposite character—from what he had seen, there were too many lawyers at elections. But without adverting to the provisions of the bill, he had to express the hope that at so advanced a period of the session, the bill might be withdrawn.
Mr. H. Twisssaid, that the fault was not his that the bill had not been brought on earlier; nor was the situation of his bill peculiar; others, not originating with the government, being similarly circumstanced; so that it would seem, as he had brought the bill before the House four
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sessions, that delays were not confined to the court of Chancery. After the wish that had been expressed, he would withdraw the bill; but would introduce it next session.