47 



individual or company possessing property effectually to contend. Civil 

 actions against paupers, though they may be uniformly successful, are of no 

 avail ; the costs of the successful action falls upon the party who succeeds ; 

 for the defeated party has no means to pay. Successful prosecutions are of 

 little more avail, for imprisonment to persons of the very lower classes, 

 whose avocations are not generally of an important nature, can easily he 

 compensated for hy those who encourage illegal conduct for their own pur- 

 poses. Therefore, as I have said, success either in a civil or criminal pro- 

 ceeding of this nature affords no redress ; nor do I see how the government 

 of the country can interfere in such matter, save in one way, and that would 

 be by removing from the bench of the magistracy any magistrate who shall 

 be found to aid, abet, or protect illegal proceedings. Over a magistrate who 

 so acts, the government and the Lord Chancellor have undoubted control ; 

 and, in my opinion, it is the case of all others in which the government 

 should so interfere. Indiscretion in a magistrate should, in my opinion, 

 when corrupt motive cannot be imputed, scarcely ever jj)e dealt with as 

 sufficient ground for removal from the commission of the peace ; but a de- 

 liberate encouragement to a breach of the law by a magistrate is, in my 

 opinion, the greatest offence of which a magistrate can be guilty. Now, in 

 my opinion, upon the case submitted to me, there is the strongest evidence 

 that Mr. Staples has been the encourager of a clear breach of the law, and 

 that he has lent his influence to protect the wrongs of which he has been 

 the originator. The evidence of these two propositions 1 think is clear. 



" Mr. Staples is defendant in an action to try the right of the fishery in 

 question, the merits of which case is decided, and a verdict is found against 

 him; the case is ordered for a second trial, upon the ground of the ad- 

 mission of some evidence which the court above thought should not have 

 been admitted upon the first trial; the case is about again to be tried, when 

 Mr. Staples submits ; and in writing, formally and deliberately cedes the 

 right he had claimed. If Lord Donegal's claim (if a claim it can be called) 

 existed at the time of the last trial, such claim would have founded a case of 

 justification for Mr. Staples in the action, if justification could have been 

 founded upon such a claim. But supposing the claim of Lord Donegal, 

 bearing his signature, dated July 2, 1836 (as below), to have been justified, 

 it warrants no taking of fish, or fishing. It is a claim (if such ever had or 

 has subsistence) which cannot, if even yielded to its full extent, warrant 

 the taking of fish from the river ; and all that it could warrant would be a 

 bill in equity, or an action at law, at the suit of Lord Donegal, to recover 

 the value of the fish he claims. 



" To set it up as a justification for the conduct at present pursued, I con- 

 sider to be the adoption of a mere pretext, and I think of so flimsy a nature 

 as not to warrant the slightest doubt, or the raising of the slightest question 

 as to the rights of the Society. 



" Under these circumstances Mr. Staples, according to the statement, 

 permits his son, his man M'Candless, and other men under his command, to 

 renew all the trespasses with deliberation and obstinacy : that he is the 

 individual who sets on those who commit the trespass cannot, if the facts be 

 truly stated, be doubted. The fact, that among the individuals engaged are 

 his son and servant; and his inability to deny the statement made by one 

 of them on trial, viz. that he, the accused, had acted by Mr. Staples's 

 direction, all establish this fact. Mr. Staples, in addition, sits as a magis- 

 trate ; takes a part in deciding what is, in fact and in substance, his own 

 case ; and on these grounds I am of opinion that an application will be 

 successfully made to the government or the Lord Chancellor to have Mr. 



