SOLOMON HAD IT EASIER : NUMBER SEVENTEEN
It was a wild autumn day, an equinoctial gale driving needles of rain at a sharp slant. Still, being well into his ninth decade of experiencing such things, Judge Embert Wimple was inclined to take less notice of them than he once did. There were other matters to think about. It was understandable that those obliged to spend their days in factory, office or shop fretted about being penned in when nature was smiling. However, they were protected when the elements were in uproar, so on the whole it wasn’t too bad a balance. Such was the judge’s train of thought as he was swept to court for another day of dealing with human frailties.
No cricket pro tem, but an overseas tour was not far distant and how England’s batsmen would stand up to a battery of formidable bowlers was a matter for conjecture. Still, as long as there was fair play – and wasn’t there always? – some fine entertainment was in prospect. As befitted his professional stance, the judge was impartial as to the outcome. ‘It matters not whether you win or lose, but how you play the game’, was his attitude to all matters, sporting or not.
Mellowness still prevailed in the Wimple household. Esmeralda could now barely keep abreast of the demands for her paintings, while the judge was working his way toward an overall view of the mysteries of time and space. He hoped that anytime now, he would be able to reach a conclusion about the bang-crunch interpretation as against the steady state one.
However, the immediate prospect was Bennett versus Gavins. This was something to do with theft, trespass or some equally sordid theme – and that was all his honour wished to know about it in advance. He took up his position, noting that the plaintiff’s case was in the vastly experienced – if now rather shaky – hands of Simon Fortescue, the defendant being represented by another ageing gentleman, Henry Bullivant. It was high time, the judge thought sourly, for some of these greybeards to stand aside and make room for younger advocates with a little fizz in them. What on earth was old Fortescue doing in court at seventy-eight? And Bullivant must surely be in his late sixties. Ah, well, time to make a start.
“Let us get going, Mr Fothergill,” said the judge, addressing Fortescue.
Defending counsel gave his usual slight bow. “May it please Your Honour, we are here as a result of an incident which occurred on the twenty-fourth of June this year. My client, Mr Bennett, is a farmer. His land has its southern boundary about eight miles due north of here and extends a little way further in broadly the same direction. It is Mr Bennett’s custom to inspect his estate each evening, checking walls, hedges, fences and so on. In the country northwest of his land there is a tarn from which a stream runs southeast, passing through the land of his farming neighbour to the northwest, then through Mr Bennett’s own land, then through that of his downstream neighbours, eventually debouching into the river which runs westwards. Though small, this waterway is considered very picturesque in parts.”
“Apparently a delightful rural idyll,” said the judge. “Is the description relevant?”
“Perhaps not, Your Honour. I was merely trying to paint a picture of the scene.”
“And so you have, Mr Forsdyke. I defer no-one in my admiration of your verbal artistry, but we are addressing an incident, are we not?”
“We are. During his evening round on the day in question, my client was approaching the stream, when he saw the defendant walking along by the water’s edge. Across Mr Gavins’ shoulder was a stick, from which a trout was suspended on a length of string. My client had had trouble with Mr Gavins in the past, specifically regarding trespass and suspected poaching. He called out to the defendant, who began to run away. Despite my client’s efforts to detain him, Mr Gavins made good his escape, complete with the trout. Mr Bennett does not seek redress with respect to the trespass, but feels that the time has come for him to make a stand in the matter of the unauthorised taking of fish and game from his land. He accepts that Mr Gavins is not the only offender, but contends that he is the most frequent one. Mr Bennett feels that an example must be made.”
“I see,” said the judge. “Now, the sanctity of private property is a time-honoured aspect of our legal affairs, notwithstanding the fact that much of that property was acquired by the trading of favours among a privileged minority and excluded most of the population.” Fortescue did not like the sound of that. “However,” the judge went on, “I think I understand the prosecution’s position, so we will now hear what the defence has to say. Mr Bullaway?” The judge had, during the previous evening, listened to radio documentary about affairs in southern Africa, so got the best compromise he could between defending counsel’s name and that of one of the cities mentioned in the programme.
Bullivant was mildly comforted by another of the judge’s close ones. “May it please Your Honour, our submission is that, as so often in human affairs, we are dealing with a question of interpretation. In this case, an unworthy motive appears to have been attributed to my client, who was in fact acting in a socially admirable manner.”
“Was he indeed?” said the judge. “I can hardly wait to hear more. Continue.” It had not been lost upon the judge that the defendant wasn’t making his first court appearance, not even the first before Embert Wimple. If the judge remembered correctly, James Gavins had last come within his purview after being apprehended while struggling gallantly to free a hare from a trap on land owned by one of the current plaintiff’s neighbours.
“Thank you,” said Bullivant. “We are pleased that the prosecution does not wish to pursue the matter of trespass. In fact, my client admits that he was on the plaintiff’s land. However, the explanation is simple. Mr Gavins is employed by an egg-packing company, the premises concerned being adjacent to the land of the plaintiff’s neighbour to the northwest. Now, my client does not have the benefit of motor transport and, owing to a medical condition, cannot ride a bicycle. In order to get home by road, he is faced with a two-mile walk, which is not always a pleasant prospect after a day’s work. When he took up his employment, Mr Gavins noted that he could shorten his homeward journey to less than a mile, by crossing land belonging to the plaintiff and his neighbours. With a wife and five children eagerly awaiting his return from work, my client succumbed to the temptation to take the short route. He regrets this transgression and is relieved to note that his weakness is not to be punished.”
“This is interesting” said the judge, “but it does not enlighten us with regard to the trout. What have you to say about that?”
“A good deal, Your Honour?”
“I was afraid so. Go on.”
“We are dealing here with a total misunderstanding of intentions. My client is well known for his caring attitude to creatures of the wild. Only last week he released a ram from a distressing predicament when the animal’s horns had become entangled in a barbed wire fence. Mr Gavins was injured in the process. He asks that it be noted that on the occasion in question here, he took the trout from the water upstream of the plaintiff’s land. At several points along the waterway, there are pools and it was in one of these that Mr Gavins saw the creature, which seemed to him to be in some distress.”
“In distress?” said the judge. “How did your client perceive that?”
“He is an expert in such matters, Your Honour, and noted that the trout was struggling.”
“Is it possible to make such an assessment with any real accuracy?”
“Yes, if the observer has sufficient knowledge. Mr Gavins took the trout from the pool, intending to do two things. First, having grasped that the fish was disorientated, he wished to transfer it to faster-running water, where he believed it might feel more comfortable. Second, he had studied such things extensively, his conclusion being that trout, along with salmon, tend to leap from the water quite frequently. Mr Gavins has a theory that both trout and salmon are making, as it were, a collective cri de cœur, seeking their preferred aerial environment, while aquatically bound. Not only was my client taking the trout to waters more amenable to its condition, but was also aerating it in the process, thus killing two birds with one stone, so to speak.”
“And perhaps killing the trout,” said the judge.
“It was a calculated risk, or as it is referred to in some circles, a judgement call.”
“No need for overkill. Either expression will do. Proceed.”
“Mr Gavins was, as he saw it, acting for the best, when he was accosted by the plaintiff. It is true that he ran away. He did so for the very good reason that Mr Bennett was pursuing him with a shotgun. In fact, the weapon was discharged and several of the pellets tore through both legs of my client’s trousers, which are available for Your Honour’s inspection.” He pointed at a parcel on a nearby table. It is nothing short of a miracle that Mr Gavins was not injured.
The judge held up a hand. “Just a moment. The prosecution said nothing of this.” He glared at Fortescue. “Mr Fotheringay?”
The learned gentleman was seized by a brief fit of coughing, which gave him time to form a reply. “The shotgun was fired accidentally, Your Honour. While approaching the defendant, Mr Bennett slipped on a wet tree root. He fell, wrenching a knee and inadvertently pulling the trigger. He had no intention of using the weapon in anger, but merely sought to interview Mr Gavins.”
“I see,” said the judge. “I take note of the fact that Mr Bennett encountered the wet root on the twenty-fourth of June, which I recall was during a long dry spell. Can you explain this?”
Fortescue instantly brought to bear his great experience. “Yes, Your Honour. The ground at the place in question is always marshy, even at the height of summer.”
“I see. However, we will now let the defence finish.” He opened a hand at Bullivant. Mr Brumfitt?”
“Thank you. There is little more to say. Owing to the violent nature of the plaintiff’s reaction to what was a minor infringement, my client was unable to carry out his plan to return the trout to the water. Indeed, he considered himself lucky to have escaped with his life.”
“What happened to it?” asked the judge.
“To his life?”
“No, of course not. The trout, sir, the trout.”
“Ah, the trout. When Mr Gavins reached his home, he found that the creature was still suspended from the stick, but was dead. My client was distressed, first because he had failed to preserve the fish and second because he had been forced to review his hard-thought theory concerning the avian capability of the species. He had, in a manner of speaking, been obliged to return to the drawing board. For lack of any alternative, the trout was fed to my client’s cat. In summary, our contention is that the absence of any trespass charge leaves only the allegation of poaching and that even if that were to be substantiated, the abstraction of the trout from the water took place on land not belonging to the plaintiff and is therefore none of his business. Finally, we are shocked by the prosecution’s failure to allude to the matter of the shooting.”
“Very well,” said the judge. “We seem to have all the facts we are ever likely to have, so if both parties are agreeable, I will make a decision.”
There was no dissent, so the judge pushed aside his notes, removed his glasses, took a deep breath and summarised: “It is said that cases are tried, but in this matter, it would be more appropriate to say that it is the arbiter who undergoes the trial, particularly with regard to patience. I have seldom been required to listen to such a farrago of nonsense. The sole merit of these proceedings is that they have been passably entertaining, but I shall now put a stop to that. I am aware that the defendant has appeared in court a number of times, in connection with his propensity to assist our scaled, furred and feathered friends. Offhand, I recall incidents involving a pike, a hare, four rabbits and a pheasant. In this case, it is clear that we shall never know at which point Mr Gavins took the trout from the water. Perhaps the lesson to Mr Bennett is that he might in future seek to cooperate with his neighbours before contemplating charges. As to the defendant’s flight when accosted, I can say only that if I were faced with the same situation, I would seek to depart the scene in much the same way as Mr Gavins did.
“With regard to the plaintiff’s conduct, I can well understand his frustration and his reaction. However, I am also mindful of the fact that he could not have had any proof as to the point at which the trout was taken from the water. That might have been done as the defendant claims it was. Also, I am not persuaded that the discharge of the shotgun was entirely accidental. I ask myself whether it was possibly a physical equivalent of the famous Freudian slip. Anyway, a few well-considered words might have been more appropriate. I consider it regrettable that people sometimes seek to make up in belligerence what they lack in articulation. Yet that applies to many of us. I can think of occasions on which I have considered remonstrating with my neighbours, especially with those who sit atop lawnmowers, trundling to and fro, when in my heart of hearts I would rather have shot them. However, if we were all to submit to our baser urges, we would have a very primitive society.
“Now, the defendant may or may not be a poacher, but there is insufficient evidence that he was so at the time in question. As to Mr Bennett, I accept that he felt aggrieved, but he clearly made no effort to establish the true facts before rushing into action. No doubt the principle of the inviolability of private property must be considered, but there is also the question of ‘noblesse oblige’, which often has particular connotations for landowners. Taking everything into account, I feel compelled to dismiss the charge. Proceedings concluded.”
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