Moths to a flame

A strange and touching story about four trespassing boys

Anyone who knows me knows I love a legal case, particularly if it involves both private law and animals. Hence my interest was piqued by the description of an injunction case in the 21st edition of Hanbury and Martin’s Modern Equity,¹ by my colleagues Jamie Glister and James Lee, which describes the following:

An injunction will issue to restrain a threatened or existing trespass. In minor cases, the court will leave the claimant to such remedy as he has at law; as…where collectors chased a butterfly on to the claimant’s land.

The referenced case was Fielden v Cox.² I looked up the case, and sure enough, the four young trespassing lads (aged 18 to 22) had been collecting butterflies, moths and insects.

Immediately, I was captivated. The court had refused to issue an injunction restraining the four lads from trespassing on Mr Fielden’s pheasant coverts, on the basis that there was no point, given that the four lads (“persons who might have been expected to behave civilly and properly”) had promised not to do it again.

The judge, Buckley J, explained that in June and July 1905:

one of the brothers was only down one day, returning home the following day. As Mr. Buckmaster observed, he “went to catch a butterfly and caught a writ.” During their visit the defendants occupied a considerable time in catching moths and other insects; and the principal complaint against them was that they had visited the road and trespassed thereon by using it, not for passing and repassing as wayfarers, but in a wrongful manner by frequenting and stopping upon it for hours at a time by night as well as by day, and setting appliances and lights thereon for the purpose of carrying on their pursuit of attracting and collecting moths or other insects. There was also a complaint that Messrs. Rupert and Justin Brooke had actually entered one of the coverts and traversed it with lighted lamps. This gang of desperate men, as one of their own counsel described them, had, when tackled by a solicitor’s clerk in pursuit of their solicitors’ names, &c., and armed with a solicitor’s letter for three of the four, obtained from the clerk a definition of an injunction, and told him that they had no solicitor, and would accept personal service. They had also performed a dance to relieve their feelings, but had ultimately accepted a suggestion from the clerk that they should leave the neighbourhood, and give their word of honour not to repeat their acts.

There are so many things to love about this. Mr Buckmaster later becomes Lord Buckmaster, the dissenting judge in Donoghue v Stevenson,³ the famous case involving the snail in a bottle of ginger beer, which gave rise to the tort of negligence.

The vivid picture of the solicitor’s clerk running through the wood after the lads, seeking the name of their solicitor is also quite delightful. What does the judgment mean when it says, “[t]hey had also performed a dance to relieve their feelings”? Ultimately, the judge decides in favour of the cheeky boys, not Mr Fielden and his pheasant hunting.

I could not help posting the screenshot of the case on X-Twitter. Several commenters pointed out the name of the second defendant, one Rupert Brooke, and the association of the ringleader, Mr G.L. Cox, with Cambridge University. Could it be that Rupert Brooke, who had attended Cambridge, had several brothers, lived in that area of the world, and famously loved insects? After all, in his poem, Heaven, he had said:

Fat caterpillars drift around,
And Paradisal grubs are found;
Unfading moths, immortal flies,
And the worm that never dies.
And in that Heaven of all their wish,
There shall be no more land, say fish.

However, despite my initial excitement and instinct that it must have been that Rupert Brooke, the Rupert Brooke in the case had brothers named Neville and Justin, or so the judgment said. Rupert Brooke the poet had brothers named Richard “Dick” Brooke and William Alfred “Alfred” Brooke, and a sister named Edith.

Parenthetically, one cannot help feeling sorry for Rupert Brooke the poet’s parents. By 1915, all of their children were dead. Edith died in 1886, the year after she was born. Dick died aged 26, of pneumonia, in 1907. Rupert died of septicaemia in 1915, aged 27, and Alfred died in battle on the Western Front also in 1915, aged 24.

Eventually, between us, we solved the mystery. The Rupert Brooke in the case was not the poet, but he was one of four sons of the tea merchant, Arthur Brooke, who founded Brooke Bond & Co, as were Justin and Neville. The oldest son, Gerald, who ended up taking over the business, was not involved in the moth-catching exploits.

However my further research indicated that, by strange chance, Justin Brooke, one of the moth-catching lads, also went to Cambridge and was friends with Rupert Brooke the poet, although they were not related. With Rupert Brooke the poet, Justin was a founder of the Marlowe Dramatic Society at Cambridge University in 1907, a society still in existence today. He apparently persuaded Rupert Brooke the poet to appear as the Herald in Aeschylus’ Eumenides at Cambridge. Both Justin and Rupert the poet were part of the group of Cambridge students called the ‘neo-pagans’ by Virginia Woolf, because of their love of nature and the outdoors, which certainly seems to fit with Justin’s boyish moth-catching exploits. Justin went on to become a farmer and a father to five children.

There’s also an Australian connection to the tea merchant Brookes, with Agnes Brooke (Arthur Brooke’s sister) marrying Alfred Bushell, and emigrating to Australia, where they went on to found Bushell’s Tea Company.

Photo by Daniele Bissoli on Unsplash

The interest of the young Brooke brothers in moths, butterflies and beetles reflects another shift in society. Entomology had been growing in popularity in Europe from the late eighteenth century, and in 1833, the Entomology Society of London (now the Royal Entomological Society) was founded. As JFM Clark has explained, nineteenth century notions of entomology had profound impacts on political and social science, as people sought to extend knowledge about insects to the organisation of society.⁴ By the late eighteenth century, the blind Swiss researcher François Huber had created glass folio hives similar to the ones we know now, so that honey could be taken from bees with minimum disturbance. This was translated into English in 1806,⁵ and arguably, influenced the Whiggish view that society could be improved by improving the environment of both animals and people. Clark has noted that the nineteenth century saw “[a] concern with the processes and deep structure of life at the same time as Romanticism displaced the Classical episteme.”⁶

Hence, the nineteenth century Enlightenment desire to categorise and structure the world in a rational manner was complicated and complemented by a desire to break down the dualist division between human society and the natural world, in a way that’s reflected rather nicely by Justin Brooke’s early twentieth century moth-catching exploits, but also by his ‘neo-Pagan’ interests.

I can’t help thinking, when I read that case, however, of the fate of Rupert Brooke the poet—who wasn’t actually involved in the case after all—but who, like a moth to a flame, burned out young. I’ll leave the last word to him, with some more references to moths, in The Great Lover:

These I have loved:
		White plates and cups, clean-gleaming,
Ringed with blue lines; and feathery, faery dust;
Wet roofs, beneath the lamp-light; the strong crust
Of friendly bread; and many-tasting food;
Rainbows; and the blue bitter smoke of wood;
And radiant raindrops couching in cool flowers;
And flowers themselves, that sway through sunny hours,
Dreaming of moths that drink them under the moon…

1. (London: Sweet & Maxwell, 2018) [28–066].

2. (1906) 22 TLR 411.

3. [1932] AC 562.

4. JFM Clark, Bugs and the Victorians (New Haven: Yale University Press, 2009).

5. François Huber, Nouvelles Observations sur les Abeilles, adressés à M. Charles Bonnet [New Observations on the Natural History of Bees] (London: Longman, Hurst, Rees and Orme, 1806), 6–7. The English translation was dedicated to Sir Joseph Banks, then President of the Royal Society, and the translator is unattributed.

6. JFM Clark, ‘‘The Complete Biography of Every Animal’: Ants, Bees, and Humanity in Nineteenth-Century England’ (1998) 29(2) Studies in History and Philosophy of Biological and Biomedical Sciences 249, 249.