The crime for which men were maimed or killed by these engines or torn from their homes by summary and heartless justice was, it must be remembered, no crime at all in the eyes of the great majority of their countrymen. At this time the sale of game was prohibited under stern penalties, and yet every rich man in London, from the Lord Mayor downwards, entertained his guests with game that he had bought from a poulterer. How had the poulterer bought it? There was no secret about the business. It was explained to two Select Committees, the first of the House of Commons in 1823, and the second of the House of Lords in 1828, by poulterers who lived by these transactions, and by police officers who did nothing to interfere with them. Daniel Bishop, for example, one of the chief Bow Street officers, described the arrangements to the Committee in 1823.[361]
‘Can you state to the Committee, how the Game is brought from the poachers up to London, or other market?... The poachers generally meet the coachman or guards of the mails or vans, and deliver it to them after they are out of a town, they do not deliver it in a town; then it is brought up to London, sometimes to their agents; but the coachmen and guards mostly have their friends in London where they know how to dispose of it, and they have their contracts made at so much a brace.... There is no intermediate person between the poacher and the coachman or guard that conveys it to town?... Very seldom; generally the head of the gang pays the rest of the men, and he sends off the Game.... When the game arrives in London, how is it disposed of?... They have their agents, the bookkeepers at most of the inns, the porters who go out with the carts; any persons they know may go and get what quantity they like, by sending an order a day or two before; there are great quantities come up to Leadenhall and Newgate markets.’
Nobody in London thought the worse of a poulterer for buying poached game; and nobody in the country thought any the worse of the poacher who supplied it. A witness before the Committee in 1823 said that in one village the whole of the village were poachers, ‘the constable of the village, the shoemaker and other inhabitants of the village.’ Another witness before the Lords in 1828 said that occupiers and unqualified proprietors agreed with the labourers in thinking that poaching was an innocent practice.
Those who wished to reform the Game Laws argued that if the sale of game were legalised, and if the anomalous qualifications were abolished, the poacher’s prize would become much less valuable, and the temptation would be correspondingly diminished. This view was corroborated by the evidence given to the Select Committees. But all such proposals were bitterly attacked by the great majority of game preservers. Lord Londonderry urged against this reform in 1827 ‘that it would deprive the sportsman of his highest gratification ... the pleasure of furnishing his friends with presents of game: nobody would care for a present which everybody could give’![362] Other game preservers argued that it was sport that made the English gentlemen such good officers, on which the Edinburgh Review remarked: ‘The hunting which Xenophon and Cicero praise as the best discipline for forming great generals from its being war in miniature must have been very unlike pheasant shooting.’[363] Lord Deerhurst declared, when the proposal was made fourteen years earlier, that this was not the time to disgust resident gentlemen. The English aristocracy, like the French, would only consent to live in the country on their own terms. When the squires threatened to turn émigrés if anybody else was allowed to kill a rabbit, or if a poacher was not put to risk of life and limb, Sydney Smith gave an answer that would have scandalised the House of Commons, ‘If gentlemen cannot breathe fresh air without injustice, let them putrefy in Cranbourne Court.’
But what about the justice of the laws against poachers? To most members of Parliament there would have been an element of paradox in such a question. From the discussions on the subject of the Game Laws a modern reader might suppose that poachers were not men of flesh and blood, but some kind of vermin. There were a few exceptions. In 1782, when Coke of Norfolk, acting at the instance of the magistrates of that county, proposed to make the Game Laws more stringent, Turner, the member for York, made a spirited reply; he ‘exclaimed against those laws as cruel and oppressive on the poor: he said it was a shame that the House should always be enacting laws for the safety of gentlemen; he wished they would make a few for the good of the poor.... For his own part, he was convinced, that if he had been a common man, he would have been a poacher, in spite of all the laws; and he was equally sure that the too great severity of the laws was the cause that the number of poachers had increased so much.’[364] Fox (29th April 1796) protested with vigour against the morality that condemned poachers without mercy, and condoned all the vices of the rich, but he, with Sheridan, Curwen, Romilly, and a few others were an infinitesimal minority.
The aristocracy had set up a code, under which a man or boy who had offended against the laws, but had done nothing for which any of his fellows imputed discredit to him, was snatched from his home, thrown into gaol with thieves and criminals, and perhaps flung to the other side of the world, leaving his family either to go upon the rates or to pick up a living by such dishonesties as they could contrive. This last penalty probably meant final separation. Mr. T. G. B. Estcourt, M.P., stated in evidence before the Select Committee on Secondary Punishments in 1831[365] that as men who had been transported were not brought back at the public expense, they scarcely ever returned,[366] that agricultural labourers specially dreaded transportation, because it meant ‘entire separation’ from ‘former associates, relations, and friends,’ and that since he and his brother magistrates in Wiltshire had taken to transporting more freely, committals had decreased. The special misery that transportation inflicted on men of this class is illustrated in Marcus Clarke’s famous novel, For the Term of His Natural Life. In the passage describing the barracoon on the transport ship, Clarke throws on the screen all the different types of character—forgers, housebreakers, cracksmen, footpads—penned up in that poisonous prison. ‘The poacher grimly thinking of his sick wife and children would start as the night-house ruffian clapped him on the shoulder and bade him with a curse to take good heart and be a man.’ Readers of Mr. Hudson’s character sketches of the modern Wiltshire labourer can imagine the scene. To the lad who had never been outside his own village such a society must have been unspeakably alien and terrible: a ring of callous and mocking faces, hardened, by crime and wrong and base punishment, to make bitter ridicule of all the memories of home and boyhood and innocence that were surging and breaking round his simple heart.
The growing brutality of the Game Laws, if it is the chief, is not the only illustration of the extent to which the pressure of poverty was driving the labourers to press upon law and order, and the kind of measures that the ruling class took to protect its property. Another illustration is the Malicious Trespass Act.
In 1820 Parliament passed an Act which provided that any person convicted before a single J.P. within four months of the act of doing any malicious injury to any building, hedge, fence, tree, wood, or underwood was to pay damage not exceeding £5, and if he was unable to pay these damages he was to be sent to hard labour in a common gaol or House of Correction for three months. The law before the passing of this Act was as it is to-day, i.e. the remedy lay in an action at law against the trespasser, and the trespasser under the Act of William and Mary had to pay damages. The Act of 1820 was passed without any debate that is reported in Hansard, but it is not unreasonable to assume that it was demanded for the protection of enclosures and game preserves.[367] This Act exempted one set of persons entirely, ‘persons engaged in hunting, and qualified persons in pursuit of game.’ These privileged gentlemen could do as much injury as they pleased.
One clause provided that every male offender under sixteen who did not pay damages, and all costs and charges and expenses forthwith, might be sent by the magistrate to hard labour in the House of Correction for six weeks. Thus a child who broke a bough from a tree by the roadside might be sent by the magistrate, who would in many cases be the owner of the tree, to the House of Correction, there to learn the ways of criminals at an age when the magistrate’s own children were about half-way through their luxurious education. This was no brutum fulmen. Children were sent to prison in great numbers.[368] Brougham said in 1828: ‘There was a Bill introduced by the Rt. Hon. Gentleman opposite for extending the payment of expenses of witnesses and prosecutors out of the county rates. It is not to be doubted that it has greatly increased the number of Commitments, and has been the cause of many persons being brought to trial, who ought to have been discharged by the Magistrates. The habit of committing, from this and other causes, has grievously increased everywhere of late, and especially of boys. Eighteen hundred and odd, many of them mere children, have been committed in the Warwick district during the last seven years.’[369] The Governor of the House of Correction in Coldbath Fields, giving evidence before the Committee on Secondary Punishments in 1831, said that he had under his charge a boy of ten years old who had been in prison eight times. Capper, the Superintendent of the Convict Establishment, told the same Committee that some of the boy convicts were so young that they could scarcely put on their clothes, and that they had to be dressed. Richard Potter’s diary for 1813 contains this entry: ‘Oct. 13.—I was attending to give evidence against a man. Afterwards, two boys, John and Thomas Clough, aged 12 and 10 years, were tried and found guilty of stealing some Irish linen out of Joseph Thorley’s warehouse during the dinner hour. The Chairman sentenced them to seven years’ transportation. On its being pronounced, the Mother of those unfortunate boys came to the Bar to her children, and with them was in great agony, imploring mercy of the Bench. With difficulty the children were removed. The scene was so horrifying I could remain no longer in court.’[370] Parliament put these tremendous weapons into the hands of men who believed in using them, who administered the law on the principle by which Sir William Dyott regulated his conduct as a magistrate, that ‘nothing but the terror of human suffering can avail to prevent crime.’