The account, to which I have alluded, is this:
“Hampshire. The Lent Assizes for this county concluded on Saturday morning. The Criminal Calendar contained 58 prisoners for trial, 16 of whom have been sentenced to suffer death, but two only of that number (poachers) were left by the Judges for execution, viz.: James Turner, aged 28, for aiding and assisting in killing Robert Baker, gamekeeper to Thomas Asheton Smith, Esq., in the parish of South Tidworth, and Charles Smith, aged 27, for having wilfully and maliciously shot at Robert Snellgrove, assistant gamekeeper to Lord Palmerston, at Broadlands, in the parish of Romsey, with intent to do him grievous bodily harm. The Judge (Burrough) observed, it became necessary to these cases, that the extreme sentence of the law should be inflicted, to deter others, as resistance to gamekeepers was now arrived at an alarming height, and many lives had been lost.”
The first thing to observe here is, that there were sixteen persons sentenced to suffer death; and that the only persons actually put to death, were those who had been endeavouring to get at the hares, pheasants or partridges of Thomas Asheton Smith, and of our Secretary at War, Lord Palmerston. Whether the Judge Burrough (who was long Chairman of the Quarter Sessions in Hampshire), uttered the words ascribed to him, or not, I cannot say; but the words have gone forth in print, and the impression they are calculated to make is this: that it was necessary to put these two men to death, in order to deter others from resisting gamekeepers. The putting of these men to death has excited a very deep feeling throughout the County of Hants; a feeling very honourable to the people of that county, and very natural to the breast of every human being.
In this case there appears to have been a killing, in which Turner assisted; and Turner might, by possibility, have given the fatal blow; but in the case of Smith, there was no killing at all. There was a mere shooting at, with intention to do him bodily harm. This latter offence was not a crime for which men were put to death, even when there was no assault, or attempt at assault, on the part of the person shot at; this was not a crime punished with death, until that terrible act, brought in by the late Lord Ellenborough, was passed, and formed a part of our matchless Code, that Code which there is such a talk about softening; but which softening does not appear to have in view this Act, or any portion of the Game-Laws.
In order to form a just opinion with regard to the offence of these two men that have been hanged at Winchester, we must first consider the motives by which they were actuated, in committing the acts of violence laid to their charge. For, it is the intention, and not the mere act, that constitutes the crime. To make an act murder, there must be malice aforethought. The question, therefore, is, did these men attack, or were they the attacked? It seems to be clear that they were the attacked parties: for they are executed, according to this publication, to deter others from resisting gamekeepers!
I know very well that there is Law for this; but what I shall endeavour to show is, that the Law ought to be altered; that the people of Hampshire ought to petition for such alteration; and that if you, the Landlords, were wise, you would petition also, for an alteration, if not a total annihilation of that terrible Code, called the Game-Laws, which has been growing harder and harder all the time that it ought to have been wearing away. It should never be forgotten, that, in order to make punishments efficient in the way of example, they must be thought just by the Community at large; and they will never be thought just if they aim at the protection of things belonging to one particular class of the Community, and, especially, if those very things be grudged to this class by the Community in general. When punishments of this sort take place, they are looked upon as unnecessary, the sufferers are objects of pity, the common feeling of the Community is in their favour, instead of being against them; and it is those who cause the punishment, and not those who suffer it, who become objects of abhorrence.
Upon seeing two of our countrymen hanging upon a gallows, we naturally, and instantly, run back to the cause. First we find the fighting with gamekeepers; next we find that the men would have been transported if caught in or near a cover with guns, after dark; next we find that these trespassers are exposed to transportation because they are in pursuit, or supposed to be in pursuit, of partridges, pheasants, or hares; and then, we ask, where is the foundation of a law to punish a man with transportation for being in pursuit of these animals? And where, indeed, is the foundation of the Law, to take from any man, be he who he may, the right of catching and using these animals? We know very well; we are instructed by mere feeling, that we have a right to live, to see and to move. Common sense tells us that there are some things which no man can reasonably call his property; and though poachers (as they are called) do not read Blackstone’s Commentaries, they know that such animals as are of a wild and untameable disposition, any man may seize upon and keep for his own use and pleasure. “All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterwards.” (Book 2, Chapter 1.)
In the Second Book and Twenty-sixth Chapter of Blackstone, the poacher might read as follows: “With regard likewise to wild animals, all mankind had by the original grant of the Creator a right to pursue and take away any fowl or insect of the air, any fish or inhabitant of the waters, and any beast or reptile of the field: and this natural right still continues in every individual, unless where it is restrained by the civil laws of the country. And when a man has once so seized them, they become, while living, his qualified property, or, if dead, are absolutely his own: so that to steal them, or otherwise invade this property, is, according to the respective values, sometimes a criminal offence, sometimes only a civil injury.”
Poachers do not read this; but that reason which is common to all mankind tells them that this is true, and tells them, also, what to think of any positive law that is made to restrain them from this right granted by the Creator. Before I proceed further in commenting upon the case immediately before me, let me once more quote this English Judge, who wrote fifty years ago, when the Game Code was mild indeed, compared to the one of the present day. “Another violent alteration,” says he, “of the English Constitution consisted in the depopulation of whole countries, for the purposes of the King’s royal diversion; and subjecting both them, and all the ancient forests of the kingdom, to the unreasonable severities of forest laws imported from the continent, whereby the slaughter of a beast was made almost as penal as the death of a man. In the Saxon times, though no man was allowed to kill or chase the King’s deer, yet he might start any game, pursue and kill it upon his own estate. But the rigour of these new constitutions vested the sole property of all the game in England in the King alone; and no man was entitled to disturb any fowl of the air, or any beast of the field, of such kinds as were specially reserved for the royal amusement of the Sovereign, without express license from the King, by a grant of a chase or free warren: and those franchises were granted as much with a view to preserve the breed of animals, as to indulge the subject. From a similar principle to which, though the forest laws are now mitigated, and by degrees grown entirely obsolete, yet from this root has sprung up a bastard slip, known by the name of the Game-Law, now arrived to and wantoning in its highest vigour: both founded upon the same unreasonable notions of permanent property in wild creatures; and both productive of the same tyranny to the commons: but with this difference; that the forest laws established only one mighty hunter throughout the land, the game-laws have raised a little Nimrod in every manor.” (Book 4, Chapter 33.)
When this was written nothing was known of the present severity of the law. Judge Blackstone says that the Game Law was then wantoning in its highest vigour; what, then, would he have said, if any one had proposed to make it felony to resist a gamekeeper? He calls it tyranny to the commons, as it existed in his time; what would he have said of the present Code; which, so far from being thought a thing to be softened, is never so much as mentioned by those humane and gentle creatures, who are absolutely supporting a sort of reputation, and aiming at distinction in Society, in consequence of their incessant talk about softening the Criminal Code?