Star.
London, England, 1825-08-18 00:00:00

PRICE SEVENPEiICE,

They were considerations which did not pre.ent them-
selves to the minds of a Jury very frequently; but they
would easily apply the general remarks which he
should make, to the opening which they had heard
from his Learned Friend. Mr. Smith. The plaintiff in
this case claimed at the hands of a Jury, remuneration
for an injury which he had received by the act of the
defendant, who had placed in his garden a spring gun,
of which he had given vin notice whatever. At the
fint view, they would perceive that this was a case of
no ordinary description. He felt the difficulties which
were naturally connected with this case gteatly in-
creased by the recollection that the able, learned, con-
siderate, and, he was equally assured, most humane
Judges who presided in our Courts, had differed
on many points of principle applicable to this case.—
Under what circumstances a man should be allowed by

law to place an instrument of death in his garden, or
in any other place belonging to him, was a question of
very grave and setious interest—one upon which they
must observe that great difference of opinion exiitEd
amongst ►he Legislators, as well as amongst the most
Learned Judges of our day. The latter individuals,
anxious on the one side to adhere to the strctest rules

of humanity, and on the other, to afford due protection
to property,'felt themselves almost unequal to the task
of deciding on this question; and in One case had sepa-
rated without coming to a decision at all ; while, in
another, shrinking from the determination of a most
important principle, they had passed their judgment on
a single fact which existed in that case, hat which fact
had nothing to do with the general question as it ap-
peared at first sight. The Jury were aware, that the
Man who committed a. trespass was liable, by process
of action, to make reparation *for that trespass. 'He
would be made to pay so much damages as would
allow a fair and just compensation for the actual pecu-
niary loss sustained; or to such an account as the law
would presume the violation of an admitted right de-
manded. That amount might be more or less, aCcord-
ing to the motives or circumstances which accompanied
the act : but .they were now discussing whether this
principle was longer to continue part of the law'of
England ? for if. in this and other cases, a man might
punish trespass by the infliction of death, then the
ascertainment of damages for trespass must sink so
low in the scale, that it became a matter no 'anger
worthy 'of Consideration. His Learned Friend (Mr.
Serjetnt Pell) would ably point out to them the
necessity, so long as 'society existed, of affording
doe and sufficient protection to property. All that
his Learned Friend could say on this point, he Would
'admit with the greatest pleasure and redirection ;
but When his Learned Friend had done, he. Would re-
quest of the Jury to recollect that the question was—
not whether property shall be duly protected, but.
whether the infliction of death was w proper and fit
mode to be adopted for the purpose of effecting that
object? This was the case of a garden enclosed on one
side by a wall of six or toren feet in height, and on an-
'Other by a fence or a wall, which presented the same
botindary that a hedge did-being no higher than
hedges usually are. The defendant might say, dd If I
had:caught the lad in iny garden, he would have been
only liable to punishment for trespass; if I had taken a
pistol, and opposing his entrance, bad shot him, that
Would have teen riairder; yet I, cvho would have been
guilty of an illegal act if I had thus proceeded—(being
'responsible both here and hereafter for my conduct in
thus proceeding)—may place in my garden Withatit
guard, controul, or •ficiiice, a deadly instrument, whiCh
no one can approach, hOwdier innocently, except at the
hazard of his life." Two cases bad recently occurred,
which related rtwae or less to that now under considera-
tion. The one was a case where a dog had been
wounded 4 a spear placed in a wood. The question
there *Was, Whether. a Gentleman might, for the pre-
servation of game, place spears in a wood, to destroy
the dogs of any other persons trespassing there ? After
'a grave and solerim argument, the Judges of the Court
Id Common Pleas were divided on the question. Two
thought the act legal, and t o thought otherwise. The
second case approached .mole near to the present. That
' was the case of a spring gun set in a wood, which the
plaintiff, who was wounded by the nun, had entered
to gather nuts. The Court of Kings Bench thought
that the plaintiff was not entitled to redress, on the
ground that the plaintiff had distinct personal no-
tice that there were spring guns in the wood.—
The Court said, 44 We decline considering the general
question—we fiit ourselves on the fact that the plaintiff
had. due notice, and therefore had voluntarily incurred
the • mischief." both these cases, the minds of the
Judges shrank from the decision of the great question,
which he rather Nought, and he hoped, would be de-
cided„in this case. He rather thought they must now
'Learn 4, aye" or 4, no," without any exception, whether a
man might prevent trespass by plac'ng in peril of his
life every person who ventured without leave to enter
on his grounds. In the present case, the Gentleman
who chose to protect his garden in this way, did not
think it necessary to give notice—not only did he for-
bear to give, notice, but when it was suggested to him
that it was& and proper to give notice, he refused to do
so. With regret he found, that in the case in the King's
Bench to which he had alluded, the Court did not hear
Cotinsel on both sidei. They heard the Counsel for the
plaintiff, and decided chat there was no legal ground to
sustain his case. He wished' the Learned Judges had
adopted a maxim of the Lord Chancellor, who declared
that he was always anxious 10 hear, the arguments of
those who agreed with him, because when his own opi-
nions came before him, dressed and decked out by ano-
ther person, he could hen d;scover his own errors and
fallacies more readily than if he merely trusted to his
ughifth
of their
eLearn
Juwdngefisrsott
the King's
impressions.B Bench
he thought,
in the exercise
most excellent discretion, beard the a gu ments of the
Gentlemen who were to support the principle on which
the defendant's case mainly rested, it was likely that the
paucity of reasoning which would have been manifest is
suppoi Ling such a doctrine—the doctrine that human life
might be taken away to prevent a dam ge of s..—would
probably have induced them to decide against so muns
strous a proposition. From various causes he felt the
highest respect for the individual Jadges of the Court of
Kiug's Bench ; but, yielding to diem the respect