Jonathan Edwards Ryland John Foster.

Critical essays: contributed to the Eclectic review, Volume 1 online

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people of the rules intended to be observed in such cases as
the law could not have specifically provided for : so that a
little time would do away with a considerable part of the evil
represented by Mr. "Windham as an inseparable attendant,
and justl;^ deprecated so far as it is an inseparable attendant,
on the discretionary application of a general law — that is,
its "requiring men to live by an unknown rule," and
"inflicting pams and penalties upon conditions which no
man is able previously to ascertain." A short series of the
proclaimed and compared adjudgments of a few of the
tribunals, might easily give the people at the very least as
settled a standard of the degrees and penalties of this class
of offences, as that with which they are furnished respecting
the various other classes by our criminal code ; a code of
which so vast a proportion of the enactments are considered
by the authorities administering the law, as totally unfit to
be enforced — and which therefore leaves so veiy large a part
of the general admruistration of justice to be purely an
exercise of that very discretion which the orator affects so
much to dread. It is obvious, too, that the danger which in
relation to this one subject he insists on so much, — of the
judges being influenced by passion, may just as properly be
urged against that exceedingly wide and unquestioned dis-
cretion in our criminal courts. But the danger of the
judges being impelled by passion to decisions of excessiye
severity, will appear exceedingly small when the very low
general state of our moral sentiments regarding the suffer-
ings of animals is taken into account ; even cultivated men,
as we have seen, often betraying a strange want of sensi-
bility on this point.* Indeed Mr. "Windham himself, in
another part of the speech, represents that if it were not so,
the desired reform might be effected without the interference
of the legislature. Unless it were to be expected that our
English gentlemen, as soon as they felt themselves invested
with their new office should melt into a most unwonted kind
of sympathy, the probability would be that the offenders
cited before them might escape somewhat too easily ; and



tliat, speaking generally, the judges would only* become
adequately severe through an enlargement of their virtuous
feelings, which would at the same time make them anxious
to be just in that severity.

It is not to be denied that the appointed courts or magis-
trates would have occasion for their utmost discrimination
to ascertain the true nature of the acts charged before them
— to distinguish wanton cruelty from impositions, or inflic-
tions necessitated by unavoidable circumstances — to obtain
proof who is the real or chief offender — and to discern when
an accuser may be guilty of malicious misrepresentation.
But Lord Erskine has shown that all this is perfectly
analogous to what forms a very large share of the ordinary
business of the courts of law, in which the prosecutions for
cruel treatment of apprentices, for assaults, for slander, for
trespasses, &c. &c., involve exactly the same sort of difficul-
ties. He will not, indeed, allow them to be called
difficulties; declaring for himself, with an appeal to the
experience also of his learned brethren, that he has known
hardly any causes of this nature in which the truth did not
very soon make itself palpable to the court. And, since in
the course of so many causes, perplexity, fallacy, and malice,
under all their imaginable modes, have generally failed to
embarrass the court for anv long time, it is very reasonably
inferred that in cases of alleged cruelty to animals it cannot
generally be impossible to ascertain the truth. To be sure,
the keenness of Westminster Hall cannot be spread all over
the country, and conferred on each magistrate along with
his patent of office : but it must not be conceded to Mr.
Windham's implied judgment of the faculties of our English
gentlemen, that they would not be able, with the accuser,
the accused, and the witnesses before them in open daylight
— and very often before dinner — ^to make a tolerable estimate
of the characters and the statements ; when they had looks,
tones, narratives, replies to all the questions thev chose to
put, sometimes the injured animals, and often the known
characters of the persons, all placed fairly in their view. A
very few exposed and stigmatized instances of malicious
accusation, or purely impertinent, consequential inter-
ference, would go far towards putting an end to that kind
of injustice ; as none but the most worthless persons in a



neigbbourliood, personB who may be easily known for sncli,
would be wiUing to expose tbemselTes to be conyicted of it.
With Lord Erskine, tnerefore, we tbink that on tbe wbole
tbe proposed law is *' more open to tbe cbarge of ineficacj
than of yexation."

But tbe objection on wbicb tbe most zealous part; of Mr.
Windham's oratory is employed, is the iniquitous <^Btinc-
tion which, be asserts, any law of the kind would practically
make, and which tbe law, as laid down in the proposed bill,
does formally make, between the rich and the poor. It was
perfectly in character that on this topic our statesman should
take fire ; and on the present occasion it bums so fiercely as
to threaten the whole constitution of parliament : for his
Speech declares, that though he had been, from conyiction,
a steady opponent of parliamentary reform, the passing of
tbe pro^sed law would be enough to reyerse all his opinions,
and decide him for a grand change in the constitution of the
House of Commons. Fart of this inequali^ which he
predicts in the operation of the law, is the feilure of its
execution against the rich in cases strictly analogous to those
in which it would be executed agvinst the lower orders.
Now though it is truly an odious thing in a community,
that the rich should be tolerated in yices which are punished
in the poor, yet a moralist may be allowed to wish that the
atrocious yices may be extirpated from among the poor, eyen
though the rich should resolye, as their own peculiar privilege,
to retain them. And, since jurisdiction must always be
substantially in the hands of the more wealthy class, we
would rather, upon tbe whole, that the yery "'squire,'* who
last week, "rode his hunter to death" in a fox-chace, and
on whom, notwithstanding, the law against cruelty would,
according; to Mr. Windham, fail to be executed, should be
the magistrate to punish a man of the "lower orders" for
forcing a poor debilitated horse along with a cart-load of
stones of double the reasonable weight, till it falls down
and can rise no more, — ^than that this and other similar bar-
barians should be allowed to do this again. What would
become of law and justice m general, if we were to be nice
about the characters of thief-takers and executioners ? It
might, indeed, be hoped, one should thiak, that some few
*^ 'squires" might be found in the different parts of England,



who do not ride their hunters to death, and who, if in office,
would be found to have the temerity to execute the law
i^ainst those 'squires that do. It might also be thought not
totally romantic, especially in humble innocents l&e us,
unacquainted with the wealthy and the genteel people of
the land, to hope that the 'squire, who has probably been
educated at the uniyersity, and has the clergyman to dine
with him every week, would, when invested with a commis-
sion to enforce authoritatively funong his neighbours, both
a specific rule and a g^ieral priwnple against cruelty —
bethink himself of the propriely of not perpetrating noto-
rious cruelties himself, in the form of either riding his
hunter, or causing a pair of post-horses to be driven to
death. But still, u such surmises and hopes are founded in
a perfect ignorance of the character of the wealthy, polished,
college-bred gentlemen of this country ; if we must be
compelled to accept Mr. Windham's implied estimate of
them ; and if, therefore, it would be in vam to seek for any
of them to be constituted mi^strates to take cognizance of
cruelty who would not perpetrate the grossest cruelties
themselves, — still even though all this were so, we would
rather that only one cruelty should be committed than that
ten should ; and woidd allow the wealthy and cultivated
men to commit one, as a reward for the exercise of their
humanity in preventing the other nine.

It is at the same time extr^nely mortifying to patriotic
feelings of a better kind than those of mere English pride,
to have from so acute an observer, and so indulgent a
moralist as Mr. Windham, such a testimony against the
humanity of the more cultivated class of our countrymen
and counl^women, as is conveyed in the substance of this
Speech. The orator most pointedly insists ihab if they really
had any tolerable share of the humanity to which it is pre-
tended this law is designed to give efficacy, they might give
it efficacy without the assistance of s^ich a law. And in
exculpation of the immediate agents of cruelty, such post-
boys, and even the proprietors of post-horses, he drives
home the charge — a <marge of much severer quality, in feu^t,
than there are any expressions to indicate it was in his
opinion — ^to the superior agent and criminal, " his honour,"
for whose sake the cruelty is committed.



** Whose &nlt is it, in nineteen cases ont of twenty, that these
sufferings are incurred t The traveller drives up in haste, his
servant naving half-killed one post-horse in riding forward to
announce his approach. The horses are hrouffht out ; th ey a re
weak, spavined, galled, hardly dry from their mst stage. What
is the dialogue that ensues 1 Does the traveller offer to stop on
his journey, or even to wait till the horses can be refreshed ?
Such a thought never enters Ms head ; he swears at the landlord
and threatens never to come again to his house, because he
expects to go only seven miles an hour, when he had hoped to go
nine. But when the landlord has assured him that the horses,
however bad in their appearance, will carry his honour very well,
and has directed the ' Lads* to 'make the best of their way^' the
traveller's humanity is satisfied, and h^ hears with perfect com-
posure and compla[cency the cracking whips of the postillions
only intimating to them, by-the-bye, that if they do not bring
him in in time, they shall not receive a farthing. ' — ^P. 21.

This supposed instance was undoubtedly meant and con-
sidered by Mr. Windham as a fair sample of the humane
feelings prevaling in that part of society of which the indi«
viduals are of consequence enough to be preceded and
annoimced in. their movements, by servants on horses " half-
killed " to execute the important office ; and it is mortifying
to be compelled to acknowledge that whatever else be as-
cribed or denied to Mr. Windham, it would be ridiculous to
question his knowledge of the world. But it is really very
curious that such a description should form part of a serious
argument against a law for the prevention of cruelty. How
does he iapply such a fact to such a purpose ? It is thus.
He is representing that " those persons of the lower orders'*
who would most commonly be found the immediate perpetra-
tors of cruelty, especially of the kind here described, are very
much at the will of their betters, such as " his honour," and
actually commit much of the alleged cruelty at their authori-
tative dictate ; and that, therefore, if " his honour," and such
as "his honour," chose to alter their will and dictates in this
matter, they could, without any interference of the law, pre-
vent that cruelty. Why yes ; and, with submission, it may
perhaps be questioned whether the necessity of a law in any
case whatever is not owing precisely to the circumstance that
people have not the will to do right without it. " His honour"
18 eNddently not disposed to save the legislature the odium




and the pain of exerting their power — a power so rarely and
reluctantly exerted — of enacting one more restrictive and
penal statute. " But then/' says Mr. "Windham " since 'his
honour, ' is in this case the real cause of the cruelty (while
et, not being the direct perpetrator, he cannot be touched
jy the law), you will commit a flagrant injustice in making a
law to punish the landlord and the post-boy." To this it
must be replied, that without a law directed against the land-
lord and post-boy, we cannot, according to Mr. Windham's
own statement of the case, reach '^ his honour," to put a re-
straint on his detestable barbarity ; and that by means of such
a law we can put that restraint. Por if the landlord has just
received an authenticated copy of a heavy penal statute
against cruelties like those here described, he will be very
certain not to suffer the poor horses under such circum-
stances, to be goaded out of his stable, however " his honour"
may storm and ** swear." And if tins important gentleman,
baronet, or lord, as the case may be, should threaten to go to
another inn, the landlord will laugh, and tell him that the
statute is probably in equal force at the other inn. And also
when the " lads " set off, the landlord will warn them that it
is at their peril they take their consequential luggage at any
such rate as *' nine miles an hour," in whatever style the said
luggage may command, growl, or threaten. As to his threat-
ening them with '^ not a farthing," it is obvious that one
point to be provided for in the proposed legal regulation
would be that, at any rate the w7u>le of their reward should
not depend on the choice of the traveller who would propor-
tion its degree upward exactly to the degree of cruelly, we
should think the proprietor of the horses would be exc

glad of this statute, as the best protection of himself and his
horses against the imperative insolence of such persons as "his
honour." K he has retained the very slightest sentiment of
what we, by courtesy to our nature, are pleased to call
humanity, or if he has any reasonable care of the animals,
even as mere working machines, which it cannot be good

Solicy, as to his own pecuniary interest, to work down and
estroy so fest, he will be happy to plead the inhibition of
this statute ; if he can be so perverse a wretch as to be
indifferent at once to the sufferin&^s of the animals and the
calculation of his own advantage, he will deserve to stand the



sole respondent, for all the cruelty committed between tlie
trayeller and the post-boy, and to bmSot the utmost punish-
ment awarded by the law. To notice again that one landlord
would hare no inducement to comply with the unreasonable
demands of travellers on the ground of competition of
interests with other landlords, whom our oratmr's argument
supposes ready to give the barbarous accommodation which
this one might remse, would be rery superfluous but for
the gross uiSkimess, as to this point, of the passage we bare
quoted — and of another (p. 18), in which the totveller is
represented as *^ hinting to the post-boy that he means to
dine at the next stage, and that if he does not bring him in
in time, he will never go to his master^s house again." The
acute m^er of this speech saw clearly, that his threatened
transfer of custom m>m one proprietor of post-hoi^es to
another, was the essential basis of his argum^at against the
Implication of a penal law to that proprietor. His interest,
our orator argues, necessitates him to be servile and cruel,
since by disobli^g the traveller he would lose employment
— the laraveller instontly and ever after going to another inn,
where no such humane regulation will ret^d him. Now
what warAs can do justice to the mockery of maintaining an
apparently serious argument on a ground so palpably t^en
from under the reasoner by the nature of the case ? It being
unavoidably present to his thoughts at the time, and it
having been put in the most pointed form of words in Lord
Erskine's printed speech, that such competition and transfers
must be precluded oy a law known to be equally restrictive
on all the owners of post-horses. Can there be two places
in England where a man could talk in this way without
lau|;hing out at his audience for gravely listening to him.

£1 prosecuting his argument, that people of wealth and
rank might, if they pleased, do much without the assistance
of law, for the prevention of cruelty, the orator bestows
some poignant sarcasms on hjrpocritical pretensions to sensi-
bility ; and he will be cheered with animation by those who
are in earnest for that prevention, at each vindictive sentence
applied to such personages as those described in the fol-
lowing passages : —

" One of the fkvourite instances [in exemplification of cruelty]
in the &shionable female circles, as they are called, of this town.



(and who f^ppear, l^jnthe'-bja, to Imve been verj diligently ojuq-
vassed), are the cases with which the members of these societies
have been continually shodted, of coachmen whipping their
horses in public places ; one instance, by the way, by no means
of magnitude enough to call for the interference of the legis-
lature. But be its magnitude what it will, why must the legis-
lature be called in 1 Are tiiere no means (sufficient probably
ibr punidiing the offence adequately in each instance, but cer-
tainly for preventing the practice) in the power possessed by
masters and mistresses ? But apply to any of these ladies, and
satisfy them, after much difficulty, that their coachman was the
most active and the most in the wrong, in the struggle which
caused so much disturbance at the last Opera, and the answer
probably would be : ' Oh ! to be sure it is very shocking ; but
then John is so clever in a crowd ! the other night at Lady
Suoh-a-one's, when all the world were perishing in the passage,
waiting for their' carriages, ours was up in an instant, and we
were at Mrs. Such-a-one*s half an hour before any one else.
"We should not know what to do if we were to part with him.'
Was it the coachman here who most deserved punishment, or
was it for iixe parties hare des^ibed to call for a law 1" — P. 19.

In an assembly of confessedly iqieqnalled rank in point of
integrity, there evidently could not be a more effectual
way for putting a question in » tcain for speedy deci-
Bion, than by stating it so that the decision as on the
one side or on the other, shall appear to be identical
with the honesty or the hypocrisy of that assembly^. Our
onUjor therefore has put his grand objection tigamst the
law as proposed by Lord Erskine, — ^its making an invidious
and iniquitous distraction between the higher and lower
orders, into this argumentum ad konUnem form. The bill,
he represents to the assembly, not merely proposes certain
specific laws against certain specified modes of cruelty, but
promulgates a grand abstract principle against cruelty to
animals in general. Well : what are usu^y called sports,
such as hunting, shooting, and fishing, are as decidedly of
the nature of cruelty as anything in the world can be, and
therefore " cannot, one should think (we are using his own
words) be allowed an instant; as being, more than any
others, in the very line and point-blank aim of the statute,
and having nothing to protect them but that which ought
in justice and decency to be the strongest reason against
them ; namely, that they lure the mere sports of the rich."


450 oir CBinBLTT to Ajmuxs.

But, behold ! this bill, founding itself^ and taking to itself
the highest credit for bein^ founded, on this grand general
principle, leaves and sanctions the rich in the most perfect
possession of iJl these cruel sports. And who is it that
M to pass this bill into a kw ? " Why," says he, " a
house of hunters and shooters :" and after suggesting to
them what a fine figure their legislation would make in the
world, when the newspapers should come to record in one
column a string of commitments under the ** Cruelty Bill,"
and in another, all the savage incidents of a desperate
chace, under the head of '* Sporting Intelligence," he
exclaims : —

*^ Was it possible that men could stand the shame of such
statements, — ^that this hoase which tolerated such sports, nay,
which claimed them, as the pecolar privilege of the class to
which it belonged, a house of hunters and shooters, should,
while they left these untouched, be affecting to take the brute
creation under their protection ; and be passing bills for the
punishment of every carter or driver whom an angry passenger
should accuse of chastising his horses with over- severity.** ** It
was in vain to attempt to disguise the fact, that i^ with such a
preamble (as Lord Erskine*s; on our statutes, and with acts
passed in consequence to punish the lower classes for any cruelty
mflicted upon animals, we continued to practice and to reserve
in a great measure to ourselves the sports of hunting, shooting,
and fishing, we must exhibit ourselves as the most hardened and
unblushing h3rpocrites that ever shocked the feelings of mankind.**
Pp. 25, 26.

"With great dexterity and success this assailant of the
new scheme of legislation cuts away the line of distinction
by which Lord Erskine had endeavoured to save the decorum
of the legislature, while it should be excluding a large
proportion of the animal tribes from the protection of a
bill professing to proceed on a general principle of humanity,
by calling those excluded animals the "unreclaimed," or
fera natura, " Why," says Mr. Windham, " because they
did not ask man's protection, were they to be liable in
consequence to be persecuted and tormented by him ?
On the contrarv, if he did nothing for their good, he ought
the rather to be required to do nothing for their harm."
It was, in truth, a matter of no small perplexity, in pro-
posing a solemn legislative recognition of a principle



condemning cruelly to animals in general, to explain to the

Sersons who were to make this recognition, how they might
o it in perfect consistency with the retention of a legal
right to seek sport in the infliction of pain. Perhaps on
this part of the subject the mover of the bill was less fully
prepared than on the other parts, to meet that extreme
moral scrupulosity which he could not be unaware he should
find awake to every point of consistency. "We really do not
see how the proposition could be better introduced than in
some such manner as the following: *' There is a great
deal of cruelty exercised on brute animals in this country,
which we certainly have the power in some degree to
prevent ; and I will endeavour to show that it is therefore
our duty to do so. If, however, we adopt a formal measure
on the subject, the assertion of something in the form of a
general principle condemnatory of cruelty, seems highly
proper as the oasis of any particular enactments, and may
also be useful by exciting thought and impressing the moral
sense. Then, as to the particular enactments, let ns trv
how many we can agree upon. You and I know very well
that the pursuits of the sportsman are extremely cruel;
but jrou and I also know very well that it would be utterly
in vain for me to propose to this assembly any restrictions on
those sports. I am sorry for the appearance of inconsis-
tency that will arise fi*om this exception, especially as it is
an exception made so insidiously in your own favour. But
in a matter so urgent, it is better that something should be
done, with whatever defects or inconsistency, than that
nothing should. I think the enormous sum of pain that
may be prevented by such regulations as we probably might
concur to make, a far more important consideration, than
the uniformity of the character of our legislation. Eetain,
if it must be so, your asserted right and your practice of
hunting, shootine;, and fishiog ; but pray do not go to fancy
it an indispensable point of beneficence to the people, to
secure to them also an inviolable unlimited privilege to be
cruel, in another way."

It remains only to make one slight observation on the
sort of consistency so carefully maintained in this Speech
between the professions of regret for the sufferings of

Online LibraryJonathan Edwards Ryland John FosterCritical essays: contributed to the Eclectic review, Volume 1 → online text (page 45 of 52)