236 
THE CULTIVATOR. 
Jus, 
der the ground, except only a passage for the King and 
his people.” Thus far we quote the common law of 
England, and the opinions of her courts. 
Judge Putnam, in giving the opinion of the court in 
the case of Stackpole & al vs. Healy, (vide Mass. Re¬ 
ports, vol. 16, pages 34, 35,) says—“ I hold it to be 
clear that the public have no other right but that of 
passing and repassing; and that the title to the land, 
and all the profits to be derived from it, consistently 
with, and subject to the right of way, remain in the 
owner of the soil. The owner may maintain trespass 
for any injury to the soil, which is not incidental to the 
right of passage acquired by the people.” 
It is then given as the opinion of the court that “ it 
is not lawful, therefore, for the public to put the cattle 
in the highway to graze. For whenever one would 
justify taking the property of another, in virtue of a 
license or a way, he must plead and prove that he used 
the way as a way, and not for any other purpose.”— 
Judge P. then quotes the opinion of the English court 
as follows: If one drive a herd of cattle along the high¬ 
way, where trees or wheat or any other kind of corn is 
growing, if one of the beasts take a parcel of the corn, 
if it be against the will of the driver he may well justi¬ 
fy, for the law will intend that a man cannot govern 
them at all times as he would : but if he permitted them 
fyc., then it is otherwise .” 
Such then is the English common law in the matters 
of highways, and such are the opinions of her justices. 
Our statutes are in many instances very wisely based 
on those laws, and in accordance our learned chief jus¬ 
tice Parker has given the opinion above cited. That 
such laws and such statutes are based on principles of 
strict justice to the public, who claim the right of way, 
and the individual through whose premises the way 
passes, cannot admit of a doubt. The public receive 
all they claim; all that can be of any service to them, 
in securing the right of travel and repair. They do 
not ask, as a public body, the right of pasturage, or of 
plowing and sowing or mowing. If they did, it would 
operate as an unequal right, which a part might enjoy, 
while others would have no oportunity or disposition to 
avail themselves of it. On the contrary, it is for the 
public convenience and public interest to leave this right 
of soil and its productions in the hands of the original 
proprietor, and further by good laws to protect him in 
that right. Where would the comfort or the safety of 
the traveller be, if all sorts of animals were allowed to 
run, indiscriminately, in our highways? Here, he 
might be exposed to the attack of a ferocious bull; there 
an unmanageable horse might blockade his path, and 
perhaps endanger his life. Many advocates of street 
pasturing, would no doubt say, keep such animals out, 
but let others run. But no. If our highways are pub¬ 
lic pastures , they have as good aright there as the in¬ 
nocent lamb. If they are pastures, they are pastures 
for every kind of farm stock. This is fully confirmed 
by the practice of the advocates of street feeding. 
Street feeding is an encroachment on individual rights 
to an amount more than equivalent to all the benefits 
that can result from it. Many farmers would never on 
any consideration permit their animals to run at large. 
They choose, like thrifty men, to keep them in their 
own enclosures, where they are safe from the exposures 
to which animals running at large are liable, and where 
they are always sure to find them when needed. Such 
men are forever tormented by street cattle, which usu¬ 
ally go in herds, and are forever picking quarrels 
with those in enclosures adjoining the highway—throw¬ 
ing down fences and teaching other cattle to do so, and 
fighting when the fences are down. Many a quiet 
and orderly stock has been made unruly, and of course 
of depreciated value, by evil associations with animals 
running at large. 
But there are other wrongs to which individuals are 
subject, through this pernicious practice. Suppose for 
instance, (and it is a supposition which will hold good 
in a great majority of eases) that the farm of A. is situ¬ 
ated so that a great proportion of his farm teaming is 
across the public way. In spring he wishes to haul his 
manure to fields opposite to his barns, one of two things 
must be done ; the bars must be put up, or the gates 
opened and shut on each side of the way, every time he 
passes, or his fields must be trodden up by herds of 
marauders, wandering about like the prince of dark¬ 
ness “ seeking whom they may devour.” In summer, 
the season of busy cares, when earth is pouring her trea¬ 
sures into the storehouse and granary, the same scene 
of opening and shutting must be passed through again, 
only twice at each gate for every load of hay or grain 
that is moved to the barn. Now, is not this a pretty 
hem of labor in the hurry of haying and harvest?— 
And does the public, for whose benefit the farmer’s 
fields are cut in twain, demand it? No; they only ask 
t£ the right of travel and repair ,” all these ceremonies 
of labor and toil must be gone through with to gratify 
the lawle'ss desire of a grasping individual. Let ani¬ 
mals be expelled from the highway, and bars may be 
out and gates open for the prosecution of the business 
of the farm from morning till night, or from spring to 
autumn, with nothing to molest or make afraid for the 
safety to crops. And now, brother farmers, we leave 
it for you to say whether such a state of things is desi¬ 
rable in the prosecution of your daily employments.— 
For ourselves, we have lived under the dispensation of 
cattle going at large, and now live under the brighter 
one of having them enclosed, and found the difference 
in favor of the latter too great for our expression. Try 
it, and you will say likewise, and ycur neighbors w'ho 
may not at the first like it so well, will, after a fair 
trial, give a response to your sentiments. 
But to the text—How it can be done ? In the first 
place get a draft of the law of Massachusetts in this 
matter. It is as perfect as a law can be, and so plain 
that a fool cannot mistake its meaning, (though per¬ 
verse and obstinate men may sometimes give it a per¬ 
verse translation) and send petitions, many or few as 
circumstances may permit, to your legislature, and ask 
that a statute in its very letter may be entered upon 
your own book. If they refuse to do this, give them 
leave to stay at home as unfaithful servants of the 
people , in all future time, as the reward of their 
short comings in protecting the people’s rights , and try 
again, and continue to try until the thing is accomplish¬ 
ed. It w'ill soon be done, and in the end will compen¬ 
sate in more than a hundred fold for all the labor its 
accomplishment will cost. Get such a law passed, we 
say, farmers, for ye are the people and can do it, in ev¬ 
ery state in the union, and you will realize in one par¬ 
ticular, the pleasure of sitting under your “ own vine and 
fig-tree,” and will entail a protective statute on poste¬ 
rity, of more value to them than all the protective tariffs 
that a nation of Congresses ever would impose. W. 
Bacon. Elmwood, July 1848. 
Killing animals in the night.—Dumas states 
that animals killed towards the middle of the night fur¬ 
nish meats which are more readily preserved, than do 
those which are slaughtered in the day-time. This 
seems to indicate that the meat most suitable for pre¬ 
servation, is that which is taken from the animal when 
its respiration is least developed, and its temperature 
is at the lowest point. The flesh of animals when kil¬ 
led after a long run is unfit for keeping, and this is 
considered a proof that a quickened respiration and a 
highly developed temperature are conditions unfavora¬ 
ble to its preservation. 
