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To speak gravely, my Lords, I maintain, that human idleness ought not to be permitted, by the laws of enlightened man, to tax for nothing, beyond the powers which God has given them, the animals which his benevolence has created for our assistance.

But another abuse exists, not less frequent, and much more shocking, because committed under the deliberate calculation of intolerable avarice. I allude to the practice of buying up horses, when past their strength, from old age or discase, upon the computation (I mean to speak literally) of how many days torture and oppression they are capable of living under, so as to return a profit with the addition of the flesh and skin, when brought to one of the numerous houses appropriated for the slaughter of horses. If this practice only extended to carrying on the fair work of horses to the very latest period of labour, instead of destroying them when old or disabled, I should approve, instead of condemning it. But it is most notorious, that with the value of such animals, all care of them is generally at an end, and you see them (I speak literally, and of a systematic abuse) sinking and dying under loads, which no man living would have set the same horse to when in the meridian of his strength and youth.

This horrid abuse, my Lords, which appears at first view to be incapable of aggravation, is nevertheless most shockingly aggravated, when the period arrives at which one would think cruelty must necessarily cease, when exhausted nature is ready to bestow the deliverance of death. But even then a new and most atrocious system of torture commences, of which, my Lords, I could myself be a witness in your committee, as it was proved to my own perfect satisfaction, and that of my friend Mr. Jekyli, upon the information of a worthy magistrate, who called our attention to the abuse. But, perhaps, my Lords, I shall better describe it, as it will at the same time afford an additional proof of these hide ous practices, and of their existence at this hour, by reading a letter which I received but two days ago, the facts of which I am ready to bring in proof before your Lordships.

Here Lord Erkine read an extract from a letter, which stated-

"A very general practice of buying up horses still alive, but not capable of being even further abused by any

kind of labour. These horses, it appeared, were carried in great numbers to slaughter-houses, but not killed at once for their flesh and skins, but left without sustenance, and literally starved to death, that the market might be gradually fed ;-the poor animals, in the mean time, being reduced to eat their own dung, and frequently gnawing one another's manes in the agonies of hunger."

Can there be a doubt, my Lords, that all such shocking practices should be considered and punished as misdemeanors ? Here again it may be said that the Bill, in this part of it, will invest magistrates with a novel and dangerous discretion. I am not yet arrived at that part of the case, though I am fast approaching it; when I do, pledge inyself without fear to maintain the contrary, to the satisfaction of every one of your Lordships, more especially including the learned Lords of the House. No less frequent and wicked an abuse, is the manifest overloading of carriages and animals of burthen, particularly asses; and as far as this poor animal is unjustly considered an emblem of stupidity, the owners who thus oppress him are the greater asses of the two. The same may be said of keeping animals without adequate food to support their strength, or even their existence-this frequently happens to beasts impounded for trespasses; I have had complaints of this abuse from all parts of the country. The notice to the owner is seldom served, and thus the poor innocent animal is left to starve in the pound. As far as an animal is con sidered merely as property, this may be all very well, and the owner must find him out at his peril, but when the animal is looked to upon the principle of this Bill, the impounder ought to feed him, and charge it to the owner as part of the damages.

Only one other offence remains, which I think it necessary to advert to, which it is difficult sufficiently to expose and stigmatize, from the impudence with which it is every day committed; as if the perpetrators of this kind of wickedmess were engaged in something extremely entertaining and innocent, if not merito rious. I allude to those extravagant bets for trying the strength and indurance of horses; not those animating races, proper ly so called, which the horse really enjoys, and which, though undoubtedly attended. with collateral evils, has tended greatly to improve the breed of that noble and use

ful animal.

The contests which I consider as wilful and wanton cruelty, are of a different kind: I maintain, that no man, without being guilty of that great crime, can put it upon the uncertain and mercenary die, whether in races against time--no-not properly so called, but rather journeys of great distances within limited periods, the exertions shall very far exceed the ordinary power which nature has bestowed on the unhappy creature, thus wickedly and inhumanly perverted from the benevolent purposes of their existence.

All the observations I have just been making to your Lordships, undoubtedly apply to the inaliciously tormenting any animal whatsoever, more especially animals which we have voluntarily reclaimed and domesticated; and yet I fairly own to your Lordships, that as the Bill was originally drawn, and as it stood until a few days ago, it would not have resched many shameful and degrading practices. The truth is, that I was afraid to run too rapidly and directly against preju dices. But, on conversing with very enlightened and learned men, I took courage in my own original intention, and introduced the concluding clause, which comprehended the wickedly and wantonly tormenting any reclaimed animal; the effect of which in practice I will explain hereafter, when I come to shew the practicability of executing the law without trespassing upon the just rights and privileges of mankind. If your Lordships, however, shall ultimately differ from me in this part of the subject, you can strike out this clause in the committee. I have purposely kept it quite distinct and separate from the rest of the Bill, as I originally framed it, being resolved to carry an easy sail at first, for fear of oversetting my vessel in a new and dangerous navigation.

I now come, my Lords, to the second part of the case, which will occupy but a small portion of your Lordship's time, on which I am afraid I have trespassed but too long already.(Heur! 'hear! hear!)

Supposing, now, your Lordships to be desirous of subscribing to the principles I have opened to you, and to feel the propriety of endeavouring to prevent, as far as possible, the inhuman cruelties practised upon animals, so general and so notorious, as to render a more particular statement of them as unnecessary as it would have been disgusting: the main question will then arise, viz. How

the jurisdiction erected by this Bill, if it shall pass into a law, may be executed by courts and magistrates, without investing them with a new and arbitrary discretion.

My Lords, I feel the great importance of this consideration, and I have no desire to shrink from it; on the contrary, I invite your Lordships to the closest investigation of it, and for that purpose I will myself anticipate every possible ubjection of that description, and give your Lordships, in a very few words, the most decisive answers to them.

How, it may be first asked, are magistrates to distinguish between the justifiable labours of the animal, which from man's necessities are often most fatiguing, and apparently excessive, and that real excess which the Bill seeks to punish as wilful, wicked, and wanton cruelty? How are they to distinguish between the blows which are necessary, when beasts of labour are lazy or refractory, or even blows of sudden passion and temper, from delibe rate, cold-blooded, ferocious cruelty, which we see practised every day we live, and which has a tendency, as the preamble recites, to harden the heart against all the impulses of humanity?

How, in the same manner, are they to distinguish between the fatigues and sufferings of beasts for slaughter, in their melancholy journeys to death in our markets, from unnecessary, and therefore bar. barous, aggravations of them?

Here, my Lords, I am at home:-here I know my course so completely, that 1 can scarcely err. I am no speculator upon the effect of the law which I propose to you, as the wisest legislators must often be, who are not practically ac quainted with the administration of jus tice. Having passed my life in our courts of law when filled with the greatest judges, and with the ablest advocates, who from time to time have since added to their number, I know with the utmost precision, the effect of it in practice, and and I pledge myself to your Lordships, that the execution of the Bill, if it passes into law, will be found to be most simple and easy; raising up no new principles of law, and giving to courts no larger dis cretion nor more difficult subjects for judgment, than they are in the constant course of exercising.

First of all, my Lords, the law I prepose to your Lordships is not likely to be attended with abuse in prosecution; a very great, but, I am afraid, an incurable evil in the penal code. I sti

mulate

mulate no mercenary informers, which I admit often to be necessary to give effect to criminal justice; I place the lower world entirely under the genuine unbought sympathies of man.

No one is likely to prosecute by in dictment, or to carry a person before a magistrate, without probable, or rather without obvious and flagrant cause, when he can derive no personal benefit from the prosecution, nor carry it on without trouble and expense. The law is, therefore, more open to the charge of inefficacy than of vexation.

It can indeed have no operation, ex cept when compassionate men (and I trust they will become more numerous from the moral sense which this Bill is calculated to awaken) shall set the law in motion against manifest and disgusting offenders, to deliver themselves from the pain and horror which the immediate view of wilful and wanton cruelty is capable of exciting, or is rather sure to excite, in a generous nature.

What possible difficulty then can be imposed upon the magistrate, who has only to judge upon hearing, from his own human feelings, what such disinterested informers have judged of from hav ing seen and felt. The task is surely most easy, and by no means novel. In deed, the whole administration of law, in many analogous cases, consists in nothing else but in discriminations, generally more difficult in cases of personal

wrongs.

Cruelty to an apprentice, by beating, or over-labour, is judged of daily upon the very principle which this Bill will bring into action in the case of an oppressed animal.

To distinguish the severest discipline, to command obedience, and to enforce activity in such dependents, from brutal ferocity and cruelty, never yet puzzled a judge or a jury, never at least in my very long experience; and when want of sustenance is the complaint, the most culpable over-frugality is never confounded with a wicked and malicious privation of food.

The same distinctions occur frequently upon the plea of moderate chastisement, when any other servant complains of his master, or when it becomes necessary to measure the degree of violence, which is justifiable in repelling violence, or in the preservation of rights.

Ju the same manner the damage from a frivolous assault or of a battery, the effect of provocation or sudden temper, is

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daily distinguished in our courts, from a severe and cold-blooded outrage. hasty word, which just conveys matter that is actionable, is, in the same manner, distinguished in a moment from maliguant and dangerous slander. Mistakes in the extent of authority, which happen every day in the discharge of the complicated duties of the magistracy, are never confounded for a moment, even when they have trenched severely upon personal liberty, with an arbitrary and tyrannous imprisonment. Unguarded or slight trespasses upon property, real or personal, are in the same way the daily subjects of distinction from malicious de privations of rights, or serious interruptions of their enjoyment.

Similar, or rather nicer distinctions, are occuring daily in our courts-when libel or no libel is the question. A line must be drawn between injurious calumny, and fair, though, perhaps, unpleasant animadversion; but plain good sense, without legal subtlety, is sure to settle it with justice-so every man may enjoy what is his own, but not to the injury of his neighbour. What is an injury, or what only a loss, without being injurious, is the question in all cases of nuisance, and they are satisfactorily settled by the common understandings and feelings of mankind.

My Lords, there would be no end of these analogies, if I were to pursue them; I might bring my whole professional life, for near thirty years, in review before your Lordships.

I appeal to the learned Lords of the House, whether these distinctious are not of daily occurrence. I appeal to my noble and learned friend on the woolsack, whether, when he sat as chief justice of the Common Pleas, he found any difficulty in these distinctions. I appeal to my noble and learned friend who sits just by him, whose useful and valuable life is wholly occupied amidst these questions, whether they are doubtful and dangerous in the decision, and whether they are not precisely in point with the difficulties which I have anticipated, or with any others which opponents to the Bill can possibly anticipate. I make a similar appeal to another noble and learned friend, who has filled the highest situation; I do not see him at this moment in his place, but to him also I might make the same fearless applica tion.

I cannot, therefore, conceive a case on which a magistrate would be exposed to

any

once peopled, were marked by certain diversities of character, so minute as to battle the penetration of foreign historians. This, indeed, is a conclusion, far from being so unwarrantable, as soine may infer, if we are to adopt, as a criterion, the recorded dissimilarity of habits, and religious and legislative institutions, which prevailed even amongst neighbouring tribes. Cæsar himself relates, that the Ubii, who dwelt on the banks of the Rhine (chiefly in those parts, which now form the Dukedom of Berg) had become, through their intercourse with the neighbouring Gauls, and travelling merchants, greater lovers of domestic comfort, than any of their compeers. The Suevi wore their hair in long, knotted tresses; whilst those, who inhabited the neighbourhood of the lower Rhine, cut their's short off, and close to the head. The elder Pliny, speaking of the Chauci, who abode near the mouth of the Weser, thus describes them: "The sea rises twice a day so high in those quarters, as to render it disputable, whether they ought to be called sea or land: the natives have raised mounds, equal in height to the flux of the ocean, and build their huts upon them. They catch the fish, which the waves propel towards the shore, in nets made of reeds and sea-rushes. They have neither milk, nor cattle, nor game, nor shrubs. Earth is exposed by them, rather to the air, than to the sun, for the purpose of dressing their victuals upon it. Their only beverage is rainwater, which they collect in pits dug before their huts." Of the inhabitants of Rhetia Vandelicia, and Noricum, less is known but they are generally described as cruel, uncouth in their manners, and given to theft. If such were the diversities, which respectively obtained in the habits and situation of cotemporary tribes, is it not more than probable that their characters were equally diversified ?

The Roman historians, who have described the Germans nost particularly, speak of them in terms of high eulogy. In those days, they were strangers to craft and dissimulation, alive to hospitality, and so rigid in the observance of their promises, that he, who had gambled away his freedom, entered without hesitation into the service of a weaker

De Bello Gallico, 1. iv. Hist. Nat. lib. xvi. c. i. Strabo, lib, iv.

antagonist. Their faith once pledged, nothing could impel them to violate it: a word, nay, a pressure of the hand, was of equal weight with them, as a solemu oath is with their descendants. Though custom, indeed, gave its sanction to polygamy, yet adultery, and the unnatural crimes which accompany libertinism and luxury, were held in universal detestation, and subjected to the severest punishments. Their women performed the menial offices, tended their flocks, and made their raiments. To no pursuit were they so passionately addicted, as warfare, and in none did they display so much activity and perseverance. They were born to arms, and imbibed the warlike spirit with their mother's milk: their earliest occupations formed them to be warriors; they were taught to swim, to bear the extremities of cold and hunger with fortitude,⚫ and to wield their weapons with dexterity. This passion for warfare, was so inex tinguishable, that, when other means of gratifying it were wanting, they did not scruple to enter into the service of foreign nations. No infamy was more intolerable, than that of having fled, or lost their shield, in the field of battle; it was followed, in most cases, by suicide. The plundering another of his property, and the revenging of an insult by mur der, were looked upon as lawful: they were as inveterate towards an obstinate adversary, as merciful towards him who was weaponless, or resigned the contest voluntarily. Next to war, their favourite occupation was hunting. When the master of a family had supplied himself with a sufficient provision of game, and ascertained the proper discharge of their duties on the part of his slaves, his avocations were at an end for some days to come: the time was then indolently passed by his fire-side, or he indulged his lethargy, under some shady tree, in the open air. When weariness, at length overcame him, he had recourse to gaming and feasting, where the greatest intemperance prevailed; and of which, quarrels, ending in acts of violence, were the fatal consequence. In games. of hazard, they frequently staked their whole property; nay, their freedom it self, than which nothing was more dear to them. Festivals, and public assem

Pomp. Mela de Situ Orbis. lib. iii. cap. S. † Id. ibid.

blies, were opened with the goblet in their hand. They were strangers to parade and luxury; and their proudest trapping consisted in the high polish of their weapons.

Necessity alone compelled the ancient Gerinans to cultivate their soil, which was barren; rather from the want of tillage, than from the niggardliness of nature. Agricultural pursuits were left to the care of old or infirm people, and of slaves: nor was any other culture at tended to by these, but that of oats and barley. They lived in the most profound ignorance of those objects, which constitute the brightest charms of civilized life. The arts and sciences were totally unknown to them. It appears that they were unacquainted with writing: their whole knowledge of poetry and music, consisted in war-songs, and national airs, in which their bards strove to nourish emulation, by recording the deeds of their great men and warriors. To his tory, medicine, geography, astronomy, mathematics, and natural philosophy, they were utter strangers. They had neither teachers nor schools, and were indebted for all they knew, to wholesome reason, the dictates of experience, and the impulse of nature. Like children, their delight was in a medley of gaudy colours, with which their dwellings and bucklers were profusely bedizened. Their religion was neither deformed by impurities, nor disgraced by cruelty. They believed in a Supreme Being, whose divine nature they abstained from debasing by human representations: he was worshipped, not in temples, but in groves, where their instruments of war were kept, and the sacred mysteries were solemnized, to which the initiated only were admitted. Some adored the earth,

At the public asteinbries of the people,

each one attended as his convenience dictated, without regard to any appointed hour. Wo men were excluded from them, though they were generally consulted by their husbands at home, on the most important affairs. When all were met together, the king, or, where there was none, their chief, or some other distinguished and eloquent spokesman, propounded the objects for deliberation. The people expressed their disapprobation by murmurs and clashing of swords, whilst their approbation was signified by huzzas and clashing of shields. At these assemblies, kings or leaders were chosen; peace, war, alliances, and embassies were resolved upon, and heinous public crimes were punished. Cons. Posselt. Geschichte der Teutschen, Gesch. d. T. vol. i. p. 13.

MONTHLY Mac. No. 186.

others the sun, the moon, or the stars, as the centre whence all their blessings were dispensed. The immortality of the soul, and the rewards and punishments of a future state, were objects of their firm belief. The priesthood was held in great reverence: the maintenance of silence and order at public assemblies, and the expounding of signs and tokens, by which they were influenced on the most momentous occasions, formed a part of the priestly functions.

Rome itself recognized freedom as an hereditary property of the ancient Gerimans and Scythians. Every free-born German was the lord, the priest, and the judge of his household. He could punish and eject his wife, with the concurrence of her relatives, for a breach of the marriage vow: he had the power of life and death over his slaves. Many of the German nations, or tribes, enjoyed a state of perfect independence, and chose a new leader at the breaking out of every war; whilst those, who tolerated a monarchical government, were so jealous of their freedom, that their king was, literally speaking, but the first servant in the state; being bound to consult his principal adherents on matters of the most trivial nature, and to abide by the decision of his people on those of general moment.

Such was the state of the primitive inhabitants of Germany. It will be my endeavour to shew, on a future occasion, to what causes we may nscribe the changes, which afterwards took place in the aboriginal features of the German character. DECIUS.

For the Monthly Magazine.
OR DUELLING,

"IN France, the example of Francis I.
had drawn after it the most me-
lancholy consequences. Being charged
with a breach of faith, hy the Emperor
Charles V. he gave him the lie in form,
and challenged him to single combat.
The difficulty of providing for two such
combatants a sufficient security of the
field, and adjusting other circumstances,
prevented the meeting; but the mischief
of the example was complete. This hap-
pened in the year 1588. In the latter
part of the same century, when France
was torn by the most violent convulsions,
the age of duelling mixed itself with the
animosity of the civil and religious
parties, and contribued to depopulate
the country; nor was its fury abated by

4 E

the

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