The People vs. Super-nanny: The Options for Hunters and Householders
by Joyce Lee Malcolm
On the day that the ban on hunting comes(came) into force in England and Wales, Joyce Lee Malcolm - Professor of History at Bentley College and author of Guns and Violence: The English Experience - argues that there are similarities between this ban and the government’s attitude to householders defending themselves against burglars. Professor Malcolm outlines the rather different options open to the two groups. Hunters may well be best served by relying on the vagaries of the Hunting Act; householders may have to rely on the good sense of juries. As with everything the Social Affairs Unit publishes, the views expressed in this article are the author’s own, and not those of the Social Affairs Unit, its Trustees, Advisors or Director.
“God’s hammer against cakes and ale” they called them in the seventeenth-century, those Puritans who outlawed sports, music and dance on the Sabbath. Today Labour backbenchers are a hammer against the “upper-class” country pleasure of fox hunting, ostensibly in the name of animal protection. The same politicians with little sympathy for householders fighting to protect themselves -burglars have rights too - insist police invest time and resources to protect foxes. One wonders who will get scarce jail space - violent criminals, bat-wielding householders, or hunters whose dogs kill a fox.
The issues of personal protection and fox hunting are different, but there has been a consistency in approach by the government. It is not God’s, but nanny’s, hammer they wield, and the government is insistent nanny knows best. The question is what are “the children” to do?
Hunt supporters have a quiver of creative answers. Two cases are wending their way through the courts and may ultimately be heard by the Law Lords. Hunt clubs are also adopting strategies to work around the new restrictions. Some 250 hunts in England and Wales, with 60,000 riders and at least 350,000 followers, will ride through the countryside testing the new law. Many will follow the scent of a dead fox. Other hunts are recreating themselves as hound-exercising clubs, taking the dogs for “walkies". Should a fox be sighted, well, dogs will be dogs.
Since even backbenchers recognize that foxes threaten farm animals, the new law permits the use of two dogs to flush a fox and shoot it, and terriers are allowed to aid gamekeepers. Thanks to Giles Bradshaw, a Devonshire farmer, a loophole has emerged that, supporters of the ban argue, drives “a coach, horses and a pack of hounds” through the act. Bradshaw may continue using his four collies to chase foxes and deer away from his land. The Hunt Act had put him in the position of “being legally obliged to purchase a high-powered rifle, which he did not wish to do, and to shoot any animal that was ‘flushed’ by dogs.” He has been informed that “chasing away” unwanted animals does not violate the law. Bradshaw has now invited the local hunt to “chase wild mammals away” from his land.
All these variations on a theme make it extraordinarily difficult for the local constable to determine who is breaking the hunt act. Nor do most constables really want to arrest friends and neighbours. Like gamekeepers before them, who hesitated to prosecute poachers, they don’t want to become local pariahs. If the League Against Cruel Sports has its way, however, they may have no choice. That organization promises a “crimewatch service” to report offending hunters.
The final recourse for hunters is massive civil disobedience. The Hunting Declaration has gathered some 40,000 people ready to break the ban, but this option is seen as a final resort, although community refusal to obey a law has an honorable history. The tactic poses a direct challenge to law enforcement that police are ill-equipped to handle.
Desperate householders have a more fundamental wrong to right and fewer options than the hunting community. Until common sense prevails and the law on self-defence changes, the only recourse for householders may be civil disobedience. In their case however, it is a lonely and perilous option. Do what you must and throw yourself on the mercy of the judicial system. This strategy of community disobedience worked well during the eighteenth and early nineteenth centuries when the notorious Black Act made virtually every criminal offence a hanging one. While Parliament stood solidly behind the Act, the community colluded to thwart it. Lord Holland complained that people refused to report offences, “lest they should endanger the life of a fellow creature, for the paltry sum of five shillings, or even of forty shillings". Many indictments were dismissed. Those that reached the courts found jurors, and even judges, prepared to commit what Blackstone termed “a kind of pious perjury", by distorting the facts to avoid the extreme penalty. In one remarkable case the charge was stealing a ten pound note. The jury, “in the warmth of their humane feelings", committed perjury and reduced it in their verdict to below 40 shillings. It took a century for Parliament to realize that “the pain of death was not applicable to such offences". In the meantime the community had followed its own understanding of justice, sparing many lives.
Juries have been a bulwark for the preservation of individual rights because they can refuse to see injustice done. They are the individual’s final protection. Simon Jenkins, in a recent article for The Times (27th January 2005) entitled Juries: the evidence is clear. . dump them dismisses jury service as “time-wasting, inefficient and expensive", a “footling business” that “should go the way of trial by ordeal, ducking stools and public hangings". In his zeal for efficiency, professionalism and the well-turned phrase, Jenkins has missed the point entirely. Magna Carta and the American Bill of Rights preserved trial by jury, not because it was efficient or helped government keep order, but because it was the cornerstone of individual rights. Justice Willes argued in an English court in 1785 that juries had the power and sometimes the right to judge the law. It was a right, he wrote, “for the most cogent reasons, lodged in the jury, as without this restraint the subject in bad times would have no security for his life, liberty or property". Several years later, Theophilus Parsons, Chief Justice of the Massachusetts Supreme Court, explained why trial by jury was, as the New Hampshire Bill of Rights put it, to “be held sacred":
An act of usurpation is not obligatory: it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his fellow-citizens can convict him; they are his jury; and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they will certainly pronounce him, if the supposed law he resisted was an act of usurpation.
Until current law is changed, the community, and in particular judges and juries, must stand firm for the rights of the individual. Happily some judges have begun to throw out cases against homeowners who harmed robbers. The people have this final recourse, to refuse to permit an injustice to occur. Abide by the law if you can, change it if you can; failing that turn to your fellow citizens for justice. Nanny may not trust the people, but they should trust each other.
Joyce Lee Malcolm is Professor of History at Bentley College and author of Guns and Violence: The English Experience.
Editor, . . Mr Kemp; Director South West Regional Control Centre Project Fire Service HQ Exeter; can rest assured that despite living in this new 21st Century, that has been marked by repeated catastophic failures of computer systems, commissioned in the main by New-Labour; we are all feeling wonderfully relaxed about the fact that he now wants to entrust our entire Emergency services network to one centre somewhere on a Taunton flood plain; that will be totally dependant on a satellite guidance system. . . . I just wanted to ask him.. . “Have you thought about putting it in INDIA Mr Kemp???. . . Think of all the fantastic savings!!”
P.S. . . . Of course! . . I know!! . . He’s really been keeping that as a surprise!!!
Care homes were once a very successful and completely viable proposition for both the carers and all those needing care in the ‘autumn’ of their lives. The sheer numbers of places that were once available to choose from, always assured everyone of both quality and choice. . That was until the ‘dead hand’ of government regulation started interfering. . .
‘Errol’. . I have told you about it before; please refrain from using that language.
I mean Editor!! . Only a blithering idiot wouldn’t know all the words. I am sure Keith Davis does! . . .
THE BBC, WHO ORCHESTRATED THE ‘WITCH HUNT’ AGAINST THE FREEMASONS, BECAUSE OF THEIR MEMBERS POSSIBLE POLITICAL ALLEGIANCE NOW HAVE THE BLIND CHEEK TO INVITE FABIAN SOCIETY MEMBERS ON TO NEWS PROGRAMS TO COMMENT AND OFFER OPINION!