Tuesday, February 14, 2017

That Day...

Saturday, February 04, 2017

is hunting fun?

Another A. P. Herbert Misleading Case...

Mr. Justice Plush gave judgement to-day in the Harkaway Hunt case.

His Lordship: These proceedings have been instituted by the Crown against the Master of the Harkaway Fox­hounds to secure a declaration that he is liable for Entertainments Duty. 

     This tax is a singular product of our own times. Our fathers regarded the entertain­ment of the citizen as a lawful and desirable business, and the Roman emperors went so far as to provide free entertainment for the people, ranking this in importance next to the provision of bread. But the King-Emperor of our realm has in his wisdom seen fit not only to with­hold all assistance from the purveyors of public enter­tainment, but to levy a heavy duty upon them. This tax is so heavy as to partake almost of the nature of a fine, only exceeded in severity by the duties on the sale of spirituous liquors; and there is reason to suppose that in the mind of the Grown the two things are coupled together as harmful practices deserving of discourage­ment.

     The tax is not a tax upon profits but upon gross receipts; and it has been proved in evidence before me that a theatre which is not attracting the public for the reason that it is presenting one of the plays of the national poet, Shakespeare, and is therefore making a weekly loss, will still be required to render a weekly payment to the Exchequer amounting, roughly, to twenty per cent of its takings. It is within the knowledge of the Court that the bookmakers of our land were recently required to pay a duty of only two per cent on their receipts; but so energetic was the objection of these valuable citizens to a tax which had no relation to profits that it was removed. The Entertainment Tax ranges from sixteen to nearly twenty per cent, varying with the prices charged for the entertainment. The impost is a strange one in an age which announces as its chief objective a general increase of leisure and recreation, and in so far as entertainment is founded upon literature and the arts the tax may be said to be a tax upon education and the mind.1

     These considerations have a relevance, which may not immediately appear, to the question which the Court is called upon to answer: Is fox-hunting an enter­tainment?
The defendant, Lord Leather, is Master of the Hark-away Foxhounds, and he has in the box given us a clear and straightforward account of his proceedings, which I am prepared to accept as the truth. As I understand him, the country district in which he resides is subject to the ravages of a cruel and voracious quadruped of the genus Vulpes alopex, commonly known as fox. This creature is of a carnivorous habit and preys upon the poultry of the peasants and farmers, causing much distress of mind and monetary loss; it is cunning, swift, difficult to catch, and a prolific breeder. The defen­dant, therefore, a public-spirited man, has taken cer­tain measures to rid the district of this pest and so to secure the livelihood of the poultry-keeper and the food-supply of the country. He has purchased a number of specially selected dogs and has trained them to pursue the fox across country, guided only by their sense of smell, which is exceptional.   He has also organized a band of ladies and gentlemen who, like himself, have the interests of British agriculture at heart and are willing to assist him at whatever personal risk.   These helpers, loosely called the ‘Hunt’, are mounted on horses, and by their mobility and knowledge of wood­craft render invaluable aid in the intimidation, appre­hension, and destruction of the fox.   Many of them, the defendant has told us, are willing to give up a day’s work in the metropolis and make a special journey to the country in order to play a small part in one of his concerted operations against the common enemy. These operations are conducted three or four times in a week with tireless vigour all through the winter months; but even so it has been found impossible to exterminate the pest.   It was not made quite clear to me why the defendant relaxes his efforts in the summer­time, but I understand that once again he has been guided by his solicitude for the farmer, whose standing crops might suffer damage from the exertions of the defendant’s dogs.   The fact remains that during those months the fox is unmolested, as free to multiply his own species as he is to diminish that of the hen.   Indeed, the witness Turmut, a farmer, some of whose irrelevant and noisy evidence I ought not perhaps to have ad­mitted, maintained with some heat and no little ingrati­tude that the defendant and his helpers would do better to conduct their campaign against the fox with rifles and shot-guns both in winter and in summer.   But I was assured by the defendant that for technical reasons this is wholly impracticable.

     The procedure of a hunt, as I understand it, is as follows: The fox is alarmed and dislodged from its lair by the loud barking of the dogs and the playing of musical instruments. Should the quarry escape into the open country, as, to the chagrin of the hunt, it often does, the dogs at once give chase, and the horsemen fol­low the dogs; other helpers follow in motor-cars along the nearest road, and many of the poor follow on foot. Now, it is the case for the Crown that all these persons, although as practical men and women they genuinely desire to rid the neighbourhood of a destructive animal, find a keen enjoyment in the process of destruction for its own sake. No one has ventured to question the single-minded purpose of the defendant, but it is argued that what for him was a crusade has become for his helpers an enjoyable spectacle, excitement, gratifi­cation—in a word, an entertainment. The witness Turmut strongly supported this view; and he remarked with some force that the number of the defendant’s helpers is in fact far in excess of what is practically necessary or useful, and that it is still increasing. He  went so far as to say that many of the helpers did more *harm than good, but that portion of his evidence did not favourably impress me.
     If the contention of the Crown be correct, there is here a development not without parallel in other depart­ments of the national life. The Englishman never enjoys himself except for a noble purpose.²He does not play cricket because it is a good game, but because it creates good citizens. He does not love motor-races for their own sake, but for the advantages they bring to the engineering firms of his country. And it is common knowledge that the devoted persons who conduct and regularly attend horse-races do not do so because they like it, but for the benefit of the breed of the English horse. But their operations have attracted many thousands of citizens who do not conceal that they visit horse-races for their own selfish pleasure. Accordingly the State imposes an Entertainment Tax upon their tickets of admission; and a member of the Jockey Club would not be  excused on the ground that his purpose at Epsom was to watch and foster the English thorough­bred.

     The relevance of my observations on theatres will now begin to appear. The defendant has admitted in evidence that he collects an annual tribute from his helpers, from farmers, and others, who habitually attend his operations and enjoy the spectacle of his dogs and horses at their pious labours. These contributions are necessary for the maintenance of the dogs and their keepers and for other purposes; and they are willingly given by the ladies and gentlemen of the Hunt in return for the pleasure or entertainment which the defendant has provided. The Crown say therefore that he is liable to pay Entertainment Duty on the sums so re­ceived, at the statutory rates, that is to say, two shillings on the first fifteen shillings and sixpence for every five shillings or part of five shillings over fifteen shillings.

     The defendant’s answer is that the fox may be said to enjoy the hunt for its own sake—and even the dogs and horses—but that his human followers are governed only by philanthropic motives, and that his takings are devoted to a philanthropic purpose, the destruction of vermin and the preservation of poultry, and should therefore be exempt under the Act. Unfortunately for him this plea is disposed of by the precedents of the racecourse and the theatre. There is a school of thought which still holds that the plays of Shakespeare have an educative and uplifting character; but even if that could be established it would not exempt the rash man who presented them from handing over nearly a fifth of his takings to the Exchequer. In my judgment the conten­tion of the Crown has substance.

     I hold that fox-hunt­ing is an entertainment; that the moneys received by the defendant from the hunters and farmers are by way of payment for that entertainment, and that it must, like other entertainments, make its proper contribution to the public revenues according to law. Lord Leather is, as it were, the manager of a theatre: the Hunt are his audience and the dogs his actors. If, after remunerat­ing his actors and paying the duty, he is out of pocket, it cannot be helped. It is a dangerous thing to give pleasure to the people. He has been Master for six­teen years, and he must pay duty not only in respect of the current year but for every preceding year since the institution of the duty by the Act of 1916. It has been urged before me that this will be a hardship; but, as Lord Mildew said in Mope v. The Llandudno Sewage Commissioners, ‘Nullum tempus occunit regi’—or ‘Time is no object to a Government Department.’ Costs to the Crown, paripassu.
1 And sec page 247 for a full examination of the tax, per Wool, J.
² The same thought has been well expressed by the poet Herbert:
‘No Englishman—’tis one of Nature’s laws— Enjoys himself except for some good cause.”

Friday, January 06, 2017

What is Education? Guest Column by Alan Patrick Herbert

I like A.P. Herbert's Misleading Cases, and this is one of my favourites-


The Court of Criminal Appeal gave judgement in this case today, which arose out of the conviction of a canal boatman for failing to send his children to school.

     The Lord Chief Justice: This case is simple but important. The appellant, Samuel Bloggs, is a boatman owning and navigating a pair of monkey-boats (erroneously described by Sir Ethelred Rutt as barges) on the Grand Union Canal. Mr. Bloggs is a married man and has three children, who reside with their father and mother on the two boats, which are loyally entitled George and Mary. Mr. Bloggs was summoned by the Education Authority of the County of Middlesex for failing to send his children to a school for the purpose of receiving elementary education, and he was committed.

     It has to be remembered that, if the prosecution is successful, the defendant’s children will be educated free of charge. The prosecutors, therefore, are wantonly seeking to increase the public expenditure. It is difficult to see why, in the present state of the national finances, the children of a class already too prolific should be educated for nothing. If a man can afford beer, tobacco, and entertainment, and a weekly contribution to a trade union, he can to contribute some small sum weekly towards the education of his children. The State at one time could well afford to educate them without the assistance of the parents, but it can well afford it no longer, and therefore we must look  with particular suspicion on any attempt to increase the burdens of the State in this respect.

     In the course of his trade or occupation as a carrier of goods or raw materials, Mr Bloggs travels continuously up and down the canal between Birmingham and London; and he put forward the reasonable defence that it was difficult for him to send children who were constantly in motion to a. school which remained stationary. He also questioned the right of a Middlesex authority to intervene in the private affairs of a family which spent more than half the week in Warwickshire and other counties. But a defence founded on nothing more than reason and practicability was easily brushed aside by a public authority, and Mr Bloggs was driven to that second line of defence which has perplexed and divided the Courts below.

     ‘What is Education?’ says Mr Bloggs. But it is not necessary for this Court to add one more to the many answers which learned men have made to that question. The question for us is, What is meant by Elementary Education in the Education Acts of this We find, after careful research, that the expression ‘elementary education’ is nowhere defined in that long series of statutes. The omission is wise, for the notion of what constitutes elementary education must obviously vary in every age, county, and class. But, though Parliament has been discreetly vague, the Court in this case is compelled to be definite.
     The respondents ask us to say that by elementary education is meant education in those elementary subjects which are ordinarily taught to our defenceless children, as reading, writing, and arithmetic. But it has been argued for Mr Bloggs that the words mean education in the elements or first parts to be learned of any subject which may be useful or necessary to the good citizen in that state of life for which he is destined by Providence, heredity, or inclination.

     Now, the children of Mr Bloggs, though they have not attended a school, have already acquired the rudiments of their father’s and grandfather’s trade, that is to say, the handling of boats and the navigation of canals; they are able in an emergency to steer a boat into a lock, to open or close a lock-gate, to make bowlines and reef-knots, clove hitches and fisherman’s bends, and to do many other useful and difficult things which the members of this Court, we admit, are unable to do. Further, it is common ground that the children are healthy, sufficiently fed, well-behaved, and attached to the life of the water, as their forebears for three generations have been. Mr and Mrs Bloggs are instructing them slowly in reading and writing, and even, with reluctance, it seems, in arithmetic.

     It is not contended that in these subjects they are so far advanced as children of the same age who attend the public elementary schools; on the other hand, the evidence is that those children are quite unable to make a bowline-on-a-bight, to distinguish between the port and. starboard sides1 of a. vessel, or to steer the smallest boat into the largest lock without disaster, while in health, discipline, manners, and practical intelligence they are inferior to the little Bloggs.

     Standardized themselves according to a single pattern, they conceive it their right and duty to take offensive notice of any person who seems to them to be unusual, a man with long hair or a woman with a short skirt. The Bloggs children do not shout ‘Oy!’ at passing strangers, as do increasingly the ‘educated’ children of the shore; they are more courteous to persons and more respectful of property. They do not commit what are called, it appears, ‘runaway-rings’, steal flowers from window-boxes or apples from trees. They would scorn to spit from bridges or throw stones at the mariner passing below. They exhibit the same good manners and gentle bearing as their parents; and since they are not in constant attendance at the cinema their speech is uncorrupted by the slang or accent of Chicago.

     Now, Mr. Herbert Spencer said that if we give our pupils the knowledge which ‘is of most worth’ – that is, the knowledge which has indispensable practical value in regulating the affairs of life – we shall at the same time give them the best possible mental training. And Mr. Bloggs (who, by the way, can read but not write) is an unconscious follower of Mr. Spencer. It may well be that our education authorities exaggerate the value of reading, writing, and arithmetic as aids to citizenship. In these days a person unable to read would be spared the experience of much that is vulgar, depressing, or injurious; a person unable to write will commit neither forgery nor free verse; and a person not well grounded in arithmetic will not engage in betting, speculation, the defalcation of accounts, or avaricious dreams of material wealth. At any rate it will not be denied that the spread of these three studies has had many evil and dubious consequences.

     But the practice of navigation is at the bottom of our national prosperity and safety, and has played no small part in the formation of the British character. The charge against Mr. Bloggs is that he has given his children an elementary training in the arts of this noble profession to the neglect of certain formal studies which are not essential to a virtuous, God-fearing, and useful life in the calling of their forefathers.

     They are unable, it is true, to read fluently the accounts of murder trials in the Sunday newspapers; they cannot write their names upon the walls of lavatories and public monuments; they do not understand the calculation of odds or the fluctuations of stocks and shares. But these acquirements may come in time.

     Meanwhile, as day by day they travel through the country, the skies and of England are their books, their excellent parents are their newspapers, and the practical problems of navigation are their arithmetic. As for writing, there is too much writing in our country as it is; and it is a satisfaction to contemplate three children who in all probability will never become novelists nor write for the papers.

     It cannot have been the intention of Nature, which fashions the flowers and fishes in such variety, that Men, the noblest works of Nature, should be all exactly alike, shaped in the same mould and fitted to the same ends. But that, it appears, is the principle, which has prompted this prosecution.

     What is in the mind of the Education Authority, however, is no great matter. The short point in this case is that Parliament does not support them. Parliament has nowhere said that the first essentials of an elementary education are reading, writing, and arithmetic. I hold therefore that Mr. Bloggs, who is carefully, lovingly, and without cost to the State equipping his children for a useful career, is providing for them an ‘elementary education’ within the meaning of the Acts. He was wrongfully convicted, and the appeal must be allowed. Costs to Mr. Bloggs, and a lump sum of one hundred pounds by way of compensation for his time and trouble.

Thursday, January 05, 2017

French Draft....

My draft was of course edited for style and length, as is perfectly correct in a magazine. For those who might prefer my own, um, breezy style, here's the original. Links are to to Sarah Farnsworth's better-than-reality pictures.
Where can you look around yourself and see carbon fiber bicycles, tricorne hats, dogs with names like Aphrodite, trotting horses, gilded swords, thoroughbreds, and huge cameras, all being used at the same time?
Any Saturday out with a pack of staghounds in France!
Last fall your correspondent had the chance to introduce some American friends to the chasse à courre - French mounted hunting. Experienced hunters in the U. S. and in England, they found out that across la manche it's the same- and different. We were lucky enough to have magnificent sporting photographer Sarah Farnsworth along, so the pictures are almost better than real life! A spectacle that has been refined since medieval times, it's the ancestor of English hunting. And like all our ancestors, the same, and different.
To start with, French hunting is done in large forests, which have been carefully maintained for centuries. The woods are organized- they are cut with two-horse-wide pathways in a pattern that resembles a pattern of spider webs. You always know where you are- every intersection has a name, and in this forest, a signpost telling you which clearing is which way.
Our meet, at the Croix Bacquet in the forest of Villiers Cotteret, was with the Villiers Cotteret stag hounds. The red deer, which looks somewhat like an American elk but slightly smaller is generally considered the greatest game. But don't say that too loudly around the followers of the scores of packs that chase the wily roebuck, tough boar, boar, speedy hare, or clever fox- à chacun son goût.
Just like a North American day with hounds, people show up in ones and twos at the designated clearing. The first thing a hunter from the U. S. notices is that mounted hunters are distinctly a minority, although the etiquette is that they have the right of way. Although hunting started as as an aristocratic pastime, these days all sorts of people come out.
On foot, in vehicles, on bicycles, it's an occasion for everybody who loves the chase.
This man on his very well muffled scooter is a regular.
Like hunters in the states, everyone is smiling. And the first thing you do when you get there is to shake hands, or share a kiss on the cheek, with everyone there! The meet-and greet goes on for a while, snacks come out, and the tufters straggle up. Just a coincidence.

The tufters are hounds that went out with their handlers at dawn, looking for signs of big red deer stags.
Patrice, who's providing our livery for the day, always has wonderful horses. Well turned out, mannerly, and hard as nails. Ex race horses are a great source for hunter prospects everywhere. And since trotting tracks are big business there, more than half the horses you'll see in the woods had a first career pulling a sulky around. It works- as you'll see, endurance matters more than sprinting.
And here come the hounds! They have their very own minivan-
"We want to hunt!"

Out they get, and everyone gathers up for the rapport.
The tufters line up, and each one tells the Master what he's found- or not found- in the solitary misty dawn. It's an example of how French hunting is more crowd sourced than ours is. Those volunteer tufters who think they have a good stag try to "sell" what they've found to the Master, and there's plenty of banter. Eventually he decides where he will draw, and puts us all in the picture. He also warns us about possible problems, where things are going on in the forest, and so forth.
So, to horse/truck/bike/track shoes!
This is where another French difference starts- the music!
The more experienced hunters and some of the professional staff carry full sized, valveless French horns wrapped around themselves.
Everything that happens during a hunt has a specific tune to go with it, and "Let's go" is first. All through the day, you'll hear those horns telling you what's going on. Remember this is the woods, so unless you're right there, you can't see the action. And once hounds get rolling, they are tough to spot by ear as well. The cry echoes back and fort among the trees, and sometimes it sounds as though you are right in the middle of the action. You might be, too! But If you know the tunes, the horns will let you know if they have found, what kind of stag it is, when it crosses a road or goes along it, goes to water, or gets away out of the forest.
The move off is part of the pageantry. The hunt's fanfare- each one has one- is blown, along with fanfares from packs who have visiting members, personal signature music, and probably what seems like a brassy version of "Woo Hoo!"!
And by the way, another difference (and one of my favorites) from anglophone hunting- NO electronic communication. They'll send you home if you use a cell telephone to hunt, and I think a radio might get you a head shaving. If you can't keep up or you get lost, you miss out. Eyes and ears were good enough for Charlemagne, they are good enough for us.
The dress, too, is different from ours. Gold braid, long coats, and swords add panache and draw the eye in a way our somber livery doesn't. And that's another part of the hunt as spectacle- each item of clothing transmits information about who the wearer is in the scheme of the day.
We're off! The huntsman heads for the designated section of forest and casts his hounds out to search. Drawing for game is the same in Virginia or the Vendee. But hounds may pursue only a mature stag. So when hounds speak, all eyes are out to see the game- everyone is looking along the allees to see it cross.
Even the horses know what's what.
And another difference appears- there's no organized, controlled field as is typical west of Finisterre. You're on your own here- everyone goes where he thinks he'll have the best chance to spot the quarry and hounds. It would make most English and American huntsmen crazy. Thirty horses, twenty cars, a hundred foot and bicycle people all over the place. I love it myself, but it will look like seven train wrecks the first time you see it.
And it works, I think, because of something all the visitors remark on. Once things start, the hounds seem to be the full focus of everyone out there. It's a truism that some people ride to hunt and some hunt to ride, but here the first seem almost absent. We found that everyone was listening, watching, trying to figure out what was going on and what might happen next.
And that continued all day. Just as anywhere, people had a snack and a visit, but their eyes and ears were always cocked to the hounds and the forest.
Once hounds found, the stag put on his skates and ran. Like a coyote back home, they have superior speed and strength, intimate territorial knowledge, and they evade for a living.
So there's going to be an hour or two of find him lose him, draw again.
Sarah will do whatever it takes to get the shot, you can't see it but she climbed a pretty good little bank to get this one, and took a pretty good tumble coming down quickly! You don't have to be on a horse to get hurt doing this.
And here we saw more of that crowdsourcing. The Master and the Huntsman weren't shy about asking what we'd seen, or what we hadn't seen. After a while, this whipper-in saw the hunted stag- lucky us, we were right there- and we were off again!
Injured hounds have priority, just like at home.
Horses were getting tired, and people too. Another French difference- no alcohol out hunting! I know, it sounds crazy in the land of champagne- and actually on the border of Champagne itself- but it's true.
The Americans were still in it!
Cary McWhorter and Crispin Menefee weren't about to go home.
A tai-o, and we were off again! This find-lose-find took much longer on this day than usual, there was speculation that the stag was a visitor because he did not seem to run typical routes. We got to see lots of forest! As you'd expect, to a visitor one wall of oak trees looks much like another, but our experienced French hosts knew the place intimately.
And then, away! I must confess that your humble correspondent made the mistake of taking a chance on where he thought the stag would go. I have got to quit that thinking stuff, it hurts my head. I was wrong, and we were thrown well out.
It turns out that the stag left the forest! They do that now and again, and once they do, it's tough to catch them up again. Although I've seen this pack do it they didn't today. Shadows were lengthening, there were only a few people still up (including the Americans!), so they gave him best.
I admit that I like this part of the hunting day a lot.
It's a pleasure to see piled up hounds, tired horses, making sure everyone is accounted for, and loading that last one who's just too tired to take another step.
The universal end of the hunting day.
One of us diaried it- "We saw the hunted stag six times, six hours in the saddle, 45 Kilometers". By French standards, it wasn't a particularly big day.

Sarah Farnsworth