The Sun.
London, England, 1856-12-27 00:00:00

LORD HASTINGS AND ANOT_EII 7R I been approved by the majority of the trustees, three only
RABBIT CASE AT HOLT. ;wing signed it.
I Mr. Drake—l submit that this is perfectly irrelevant
..-____
, to the question. llou are charged here with trespass-
(From the Norfolk News of this day.) j ing, and you hag, no question of ownership before you.
On Saturday last, at the Holt Petty Sessions, two cf i Mr. Hardy— -But that is the point.
the Commoners, named John flagon and Francis Dus- Mr. Drake It is not the point. They have not taken
I the means soebrn_ucttti putting themselvesandif th they
into
have co court. a I take this
gate, were charged, at the instance of Mr. Barker (to
technicalrot done so they
whom the trustees, withnnt consulting the Comm aners, i
I cannot aepeejt that I should make out a case for them.
had let the shooting), under the let and 2d Wm.. IV., 1 Mr. arEnteer—My friend has the power, if he
cap. 32, commonly known as the Game Act, with have chooses, by putting the award to strengthen the truth
Dag, on the 2d inst., trespassed on the Lows Common i a 1 oa. my statement, which I make with the
have
eest cpohontwvitecor-
tionhof its beingdsof correct, thacl tthoe trusteesdisle os e o f the n right pursuit of game and conies. 'As will be seen by there .
port there was, however, no, attempt t) establish the by thatt
sward
duties are clearly defined,g
shoot
the words
this .
charge of taking game. The magistrates present at the
and nothing canprboepderonye. by them without the assent of
opening of the business were—Lord Hastings (in. the
at least a majority of them, whereas in this case the let-
chair), W. H. Pemberton, Esq., and W. H. Cozens
tin he only p roved and signed by three. I alto further
Hardy, Esq. Mr. Drake, of Dereham, appeared for the i
: pcongtend that the defendants having a right in this pro-
prosecution ; Mr. M'Enteer, of the Home Circuit, for
erty,.and.in
tall the benefits arising from it, they have
the prisoner flagon, and Mr. J. H. Tillett, of Norwich,
e ,
also the right, as farmers have, to destroy or drive
for Dasgate. off from the land, rabbits, rats, moles, or anything
The case having been called on,
else that are not included in the game laws—and in this
Mr. M'Enteer rose and said—Gentlemen, I app ear
here to-day in the case which has now been called be lore case it should be remembered that rabbits are specially
OU'
excluded. Under such circumstances I contend that
I and, as I have an application to make which 'seas a
, ,
particular and personal reference to my Lord Hastings, they are not only justified in taking an occasional
I submit to his lordship and to the bench that his lord-
rabbit, but if they think proper in destroying all the
ship should retire from his seat to await the decision of rabbits on the place. We have witnesses to prove
the magistrates on the application which I amabout to that this common has been in the possession of
make. As the application particularly refers to yourself, these men for forty-five years, during which time
they have held undisputed possession, and under such
I submit, my lord, that you await the decision of the
magistrates in your own case till
Haings—My own cased what in the world do
;circumstances you cannot interfere with the rights of the
commoners,:. to destroy rabbits if they think praper to do
Lordstl shall now read you an extract from a copy of the
you mean by my case ? award.
Mr. M'Enteer—What I mean by your own case ia that
The learned counsel here read extracts from the award
the application I am now about to make is an application
in support of the ri tof his client to do that which was
to the bench that you be required to enter into sureties charged against them as a trespass.
to keep the peace towards Mr. Tillett, who, from violent
Cal. Astley—Are you disputing his information, be
threats used by your lordship, is under serious apprehen,
cause I don't exactly understand what you are about ?
sion of personal injury at your hands •; and, until my
This is an information for killing rabbits, commonly
called by the aet of Parliament " conies." re you ar-
application has been decided, I submit to your lor.dship,
guuingr.thia,t- the information is wrong, or not ?
with great respect, that it would be unbecoming in you
to retire from the bench.
information, E n tteheer rsgaurien g
summonedthat,
here f
otro
rethisB.
Lord Hastings—Mr. Tillett need not be under any
—delfenamdanat
apprehension of violence from me.
Mr. INPEnteer—That is not the question, and such a Passing in pursuit of rabbits on their own property.
declaration now made is not sufficient. My suggestion is Colonel Astley—No, not on their property, that is
. this information is wrong ?
that, before we go further, your lordship retire from the
?Tu'. view. Are yon going to bring evidence to show
bench pending the decision of the magistrates on my mat
application as counsel for Mr. Tillett.
Mr. M'Enteer—l am going to bring evidence as to the
Lord Hastings (warmly)—l shall not retire from the
proprietorship of the property, to show that no trespass
bench, and it is not in your power to make me retire. can be committed on one's own property.
Mr. M'Enteer—l did not mean to exercise any power, Colonel Astley —That is quite another thing. I wish
or even to suggest that I possessed it ; but I beg to re- you would confine yourself to one thing.
mind you that in a case which recently came for trial Mr. M'Enteer—The summons is specific. It charges
before Mr. Baron Martin, at Westminster, his lordship, the defendants with trespassing in pursuit of game, and
recollecting that he had been :counsel in the case him- destroying the rabbits is not, under the statute, destroy.
self, at once suggested the propriety of his retiring from ing the game. I meet two points—both as to the charge
the bench, and he refused to sit in judgment. In the of trespass and the charge of taking game.
present case Mr. Tillett— Col. Astley—l wish you to meet the first point ; the
Lord Hastings—l don't know what Mr. Tillett has to first point on the summons is trespass. We are trying
do with this case, except as solicitor for the parties em- this summons and nothing else. Stick to that, and we
ploying him. shall be much obliged to you.
Mr. M'Enteer,—The application I have to make is to Mr. M'Enteer —I say I shall adduce evidence with
be decided by the bench ; but, before I make it, I must regard to the proprietorship and with regard to the
solemnly and in the most respectful terms submit, that, usage of similar proprietorships, and I give you the act
as it peculiarly affects yourself, the ordinary and proper of Parliament with reference to the exceptions to the
course would be for your lordship to retire, and not sit list of game ; and I contend that these men are not at all
in judgment upon your own case. liable under this statute to any penalty, and that they
Lord Hastings—You may argue the case, but if you have not committed a trespass of any kind. I put it to
address the bench yon address me. the bench that if there is a doubt, that doubt should go
Mr. M'Enteer—But, my lord, I say the case so pe-
in favour of the poor. The magistrates have such a case
culiarly affects your lordship, that I wish to address before them now.
Colonel Astley—But time is valuable, pray do stick to
myself to the bench without addressing you. I shall
tender testimony that your lordship has made use of the point. Whether the men are poor or rich has nothing
violent threats, which you sent through a person in this to do with the case. The case before us is to be tried
town, whom you instructed to carry them to Mr. Td- according to the laws of the country. We don't want to
lett; and that you afterwards, in the house of Mr. Til-
have the question of whether the men are poor or rich
lett, which you entered in a most furious and unbecoming introduced. All we want is to do justice strictly. If you
manner, made use of abusive expressions and abusive will be kind enough to stick to the point we are trying,
names, accompanied by foul oaths—(Lord Hastings : I shall be exceedingly obliged to you.
Mr. M'Enteer—Weil, sir, I am adhering at that point,
Yes)—and threatened to blow his brains out. I know
of no bench of magistrates who, under such circurn-
and I only regret that the strictness should sometimes
stances, if an application were made against any coon-
lean against the poor.
mon person, would not instantly consent that that party Colonel Astley (warmly)—l cannot allow such an ob-
should be required to give securities for keeping the servation as that to be made, and I will not suffer it.
peace. Mr. M'Enteer—But I aria privileged here as a member
Lord Hastings—But, my good fellow, you don't sup- of the bar, and I shall exercise that privilege to the ful-
pose that—Mr. Tillett is here—what is he here for ?--I lest extent.
don't know what he is here for. Colonel Astley—Whatever your privilege may be, I
Mr. M'Enteer—He is in this application represented shall certainly allow nothing to be said which is insult.
by me. ing to the magistrates.
Lord Hastings—By yon ! I don't care whom he is Mr. M'Enteer—l intend no insult to the magistrates,
represented by, whether by you or by anybody else, but but if you will draw an inference I must leave that to
if Mr. Tillett imagines he is in bodily fear from me, why you.
—it's perfectly laughable, that's all. (Laughing.) He's Colonel Astley—l have no doubt that your law may
under no bodily fear from me. Unless Mr. Tillett will be very good, but common sense tells me that you have
swear to that—(the noble lord broke off his sentence, no business as a barrister to make a speech so as to give
and indulged in a hearty laugh). the public an idea that they cannot get justice done
Mr. M'Enteer—As you seem to treat the matter in so here. Now the poor and the rich will all be alike in
jocular a manner, I must ask you, do you deny the fact this country, and Ido think that you ought, with due
that you entered his house and threatened to blow his regard to the magistrates, to consider that your observe-
brains out, and did everything you could to provoke him tions should rather tend to enlighten us than to mystify
to fight? us. Now I maintain that this is a plain and simple
Lord Hastings (laughing)—Fight ! Why, my dear fel- case, and that what you have to do is to show that these
low, he has got no fight in him. If Mr. Tillett likes—l men either have a right or have not a right. In answer
have no doubt Mr. Tillett cautioned me very fairly to the summons which I have granted against these men,
in the paper that if I went into his house he would put you must show that these men have a right. It is only
me into the hands of the police ' - and you know I could a common AB C case, and is as clear as possible. We
not call Mr. Tillett out alter that. You know that in doe% want any mystification; we only want a clear state-
Ireland they do these things much easier. Yon could meat.
not call a man out after that in any way whatever. I Mr. M'Enteer—A mI to understand that if the right
went in the most peaceable way to Mr. Tillett, and in of property is proved, you admit that the obarge of
the first place I demanded an explanation, and he said being in pursuit of game falls to the ground?
in the most domineering way, " I shall give you none. Colonel Astley—No, I did not say that. But I want
to
I shall give you none." Very well, I said, that's all, have one point argued at a time.
I cannot make a man give me any explanation. Mr. M'Enteer—l take both grounds.
After this kind of discussion had ccntinued for some Colonel Astley—Take one ground at a time.
time, Ur. M'Enteer—l take that of the right of these men
Mr. M'Enteer said—Will your lordship retire ? to the property.
Lord Hastings—No !no! I am not going to retire. I Colonel Astley—Do you acknowledge that these awn
am not ashamed of any thing you are going to say, and Jam have killed the rabbits ?
not going to flinch from my duty in any way whatever. Mr. M'Enteer—Yea, Ido fully.
Mr. M'Enteer—Then, my lord, as you are chairman, Colonel Astley—Now we are coming to the point.
I shall decline to urge upon the bench the application Mr. M'Enteer—l admit the fact that the rabbits were
which affects you personally ; and if you, as chairman killed ; but what I contend is that, under the circum-
of this bench, refused to accede to my request, most cer- stances, these men had as good a right to kill these
tainly there shall be an application made to the Court of rabbits as any nobleman or gentleman has to kill his
Queen's Bench, and you shall be indicted at the coming pheasants, I hope that whatever your previous decisions
assizes of this county. may have been, in your decision today you may endea-
Lord Hastings—ls it so ?—please yourself. (To the your to make amends for them. lam satisfied in my
Clerk)—Just take those words down, will you ? own mind that these men are dealing with property of
The charge against the defendants was then proceeded which they are legally possessed, and that in taking these
with, rabbits they have simply exercised their rights to the
property, so that there was no ground for summoning
us here to-day under this act, inasmuch as there was no
trespass. I will not trouble you any further, but will
leave the case in your hands, and I hope that your
decision will be such as to satisfy the people of this
country.
Col. Astley—You acknowledge the trespass ?
Mr. M'Enteer—No, certainly not ; there was no tres-
pass. I acknowledge the fact of their going upon the
land and taking the rabbits, but I maintain that they
had a right to do so.
Mr. Tillett then addressed the bench at length on be-
half of Dusgate. In the coarse of his argument he said
these men ar,, notoriously the occupiers of every blade
cf grass, every particle of ling, and every lia of brake on
the estate. There is no other living man who is entitled
to anything that can be derived from this land. Neither
the trustees nor Mr. Barker are entitled to any advantage
from it. That being so these men are the substantial
owners of everything connected with this land, with,
the single exception of the mines, the existence of
1 which, I suppose, no cue will assert. It is, there-
fere, a mockery of common sense to say that they have
trespassed on laud, every particle ef the surface of which
is their own, and which surface these rabbits are
destroying. Even supposing the law is against tbeee=
which, by the way, I strenuously deny—still It is en out-
rage against common sense to suppose that in what they
have done they have committed an offence.
At the conclusion of his address the court was cleared,
and the three magistrates remained in deliberation an
hour, at the expiration of which titne the public were
re-admitted.
Colonel Astley then addressed the defendants in the
following worde—lt is the decision of the magistrates,
after very mature considerations hha after you have
been ably defended by very talented gentlemen, who
have come on purpose to take up your cause, that we
nevertheless cannot alter the decision which We gave
in a previous cage. We have no wish to send you to
gaol, our only object being the protection of what We
consider the right of this gentleman (Mr. Barker) to the
property which he hires. I hope and trust that this
may be the last offence committed, and I hope that your
friends may try this case in some other court, and thus
put an end to it. The decision to which we hate Come
is, that you will be each fined ls. and expenses, and in
default of payment will be confined at Walaingham gaol
1 for 14 dam
Mr. Cozens-Hardy—l wish to make an observation,
as I happen unfortunately—or it may be fortunately—to
differ from my brethren on the bench In this somewhat
important case. I have not been able to concur in this
conviction, nor in the previous one of a similar character,
and my reasons are principally these :—First, because 1
think it cannot be established that these men have com-
mitted a trespass upon this land, and particularly a tres-
pass under the Game Act. Second, I think that the
trustee have not any power or authority whatever by
their award to grant a lease of the right of shooting over
this property, even if the lease had been signed by all the
parties claiming to be trustees, whereas in the present
instance it has been signed only by four-fifths. And
lastly, these parties having exercised and maintained the
iright of taking rabbits from this land for nearly half a
centurywithout interruption, I cannot be a party to
sending these men to prison for a trespass. (Cheers.)
3
?Tillett—Will you make out the warrant, if you
Drake--To show that we have no other desire
tplelae:Ullsrrte:o have the question fairly settled, I have no objec-
tion to agree with Mr. Tillett on a special case to be
heard before the Court of Queen's Bencb.
A voice—Who's to pay the expenses ?
Mr. Tillett—Aye, that is the point.
Col. Astley— Could you not take counsel's opinion on
the subject ? It is a pity these men should he misled, and
if Mr. Barker is misled it is a hard case, for when a man
pays for his shooting he expel to have it. It is a pity
that this ill spirit should exist.
Mr. Tillett—But remember that it is the trustees that
are the real parties who have provoked it ?
Col. Astley—Of course you intend to pay the fines and
expenses ?
Mr. Tillett—No, indeed we do not. They will go to
prison.
The parties then left the court, and the prisoners were
soon afterwards removed, amidst the acclamations of a
large company of the inhabitants, who had assembled to
witness their departure,

Lord Hastings remained on the bench a short tirue
after this, and then left.
Mr. Drake appeared for the prosecution ; Mr.
M'Enteer appeared for Hagon, and Mr. Tillett for Dna-
gate.
Benjamin Lubbock was called, and proved the infor-
mation which charged the defendants, with having com-
mitted trespass by being on the Lows Common, on the
2d inst., in pursuit of rabbits. The information was
laid under land 2 Will. IV., c. 32.
John Allcoek was then called and deposed—l saw the
two defendants on the Lows on the 2d of this month.
I was upon the Lows at the time, and saw Dusgate and
Hagon there ; they were digging far rabbits. I stood
by, and saw what they were doing. Atter they had
finished their digging Hagon took out a rabbit. He took
it out of a burrow. Both the defendants were digging
at the burrow while I wast present betore the rabbit was
taken out. Hagon took the rabbit. I left them on the
Lows.

Cross-examined by Mr. M'Enteer—l live near the
Lows.
Mr. M'Enteer—Do you know this flagon to he one
of those persons living in the houses to which the Lows
belong ?
Mr. Drake—Perhaps you will a4t him whether he
knows what occupiers have a right there.
Mr. Tillett—l suppose you will produce the award.
Mr. Drake—No, indeed, we shall not. It is fur you to
prove that these men are the owners, and have the right
to which they claim.
Mr. Tillett—We have given notice to the churchwar-
dens to produce the award.
Mr. Drake—What have the churchwardens to do
with it
Mr. Tillett—Why, they are the trustees for the par-
ties.
Mr. Drake—But I appear for the information, and if
you wanted to bring the churchwardens before the court
you bad the opportonithof doing so by summons.
Mr. M'Enteer to the witness—Do you know anything
as to the ownership of the Lows Common ?
Witness—No, sir, I have nothing to do with it.
Mr. Drake—That will be the case for the prosecution.
(During the examination of this witness Colonel F.
Astley entered the room, ani took his seat with the
other magistrates.)
Mr. M.'Enteer—Gentlemen, I appear for the defen-
dant flagon, and now I submit in the first instance
to you that here there has been no trespass whatever
committed ; and that flagon and others, as we shalt
show you by the award, are in possession of the houses
to which the ownership of these Lows are attached.
Mr. Drake—Are you going to produce the award ?
Mr. M'Enteer— Yes.
Mr. Drake—From whose custody ?
Mr. M'Enteer—We have got copies of tae
award.
Mr. Drake— Oh, copies. We require originals in a,
court of law.
Mr. M'Enteer—We will produce the original.
Mr. Drake—But I ask again from whose custody ?
Mr. Tillett—Surely you are not going to fight the
question so. The original is in the room.
Mr. Drake—lndeed, I shall fight it on any technical
ground I can take.
Mr. Tillett—Oh, very well, very well.
Mr. M'Enteer—Well now, gentlemen, we shall, as I
said, produce the award.
Mr. Drake—From whose custody
Mr. M'Enteer—That is quite immaterial. I object
to being interrupted by you.
Mr. Drake—But I submit that you have been open-
ing a case you have no means of proving. Certainly we
shall not produce it.
Mr. Tillett—lf you refuse to produce it perhaps you
will wait till it comes to that.
Mr. M'Enteer—Here, in a case which involves the
question of the entire right of these poor men to this
property, .I am met by a technical objection to prevent
us if possible from going into the merits of the case, so
that the magistrates might, through that technicality, be
called upon again at this season of the year, as in the
previous case, to send these two poor men to prison for
exercising a right of proprietorship in this land. Now
I submit that these men are clearly the proprietors of
the property ix question, as will be shown by the award ;
and being the proprietors to all intents and purposes—
and having, according to the terms of that award, as
good a title to the rand as any nobleman or gentleman
can have to an estate in hisPossegion—an action against
them for trespassing oa their own property is wholly and
entirely out of the question. Having urged these points,
I will now submit to you that the trustees have not the
power to dispose of the right to take rabbits on this land
to any other parties, especially as the letting has not

NORWICH, Friday Evening.—A. mexorial ha been
sent to the Howe Secretary, asking for an immediate
inquiry into the conduct of the Holt magistrates in the
great Norfolk rabbit case.