HC Deb 09 March 1819 vol 39 cc937-50
Mr. Brand

, in rising, pursuant to his notice, to bring forward his motion for the amendment of the game laws, observed, that the subject was one of the highest importance, inasmuch as it was intimately connected with the interest, the happiness, and moral conduct of the lower orders of society. For the benefit of those members of the present parliament who were not members of the last, he would inform them, that in the year 1816, a report on this subject was made by a very numerous, intelligent, and industrious committee of that House, to the concluding passage of which he requested particular attention. The committee observed, that they would not, at a late period of the session, introduce to the House any measure, on a subject which had so great a variety of bearings; but they cherished sanguine expectations, that a bill, founded on the principles recognised by the common law of the land, that principle being, that the property of game was in the individual possessing the land where it was discovered, might be advantageously resorted to, by which the present system of the game laws might be improved, and the fore they came to the following resolution:— "That all game should be considered the property of the person on whose land such game should be found." He approved entirely of this principle; and he had long wished to bring forward a measure founded on the view of which the committee had professed their approbation. In order to show the efficacy of the plan which he should submit to their notice, it would be necessary for him to enter into some minute details on the subject, which he would however endeavour to make as concise as possible. He was afraid, nevertheless, that in spite of all his endeavours, he should not be able to command the attention of the House during all the remarks which he should make to them, because the subject was so extensive, and spread over so large a space of history as totally to defy any summary abridgment. He would, however, as briefly and as perspicuously as possible, call the notice of the House to a subject, which, in the minds of thinking men, yielded scarcely to any that could be brought before them as a question of domestic policy, and of moral interest. It was curious to follow the history of the game laws —to mark their origin, in feudal barbarism, and to trace their growth through various periods, when a false policy was mistaken for wisdom. So early as the 13th of Richard 2nd, there was a statute, establishing a sort of qualification, as necessary to enable a man to destroy game. That qualification was 20 marks a year. But still the statute seemed to proceed on the principle of ratione soli—on the principle, that the property in game belonged to the person on whose land the game was found. This continued to be the law of England for some time; but was in a certain degree abrogated by the operation of the statute of uses, of fines and recoveries, and other legal technicalities, into which he should then decline to enter, inasmuch as the original proprietors found that they had not only parted with their lands, in these fictitious conveyances, but also with the rights which they enjoyed from those lands. They had not only, they perceived, given up their lands, but they found also that they had parted with that indulgence, the indulgence of taking game all over their estates, which their predecessors had enjoyed. The consequence was, that all those statutes had grown up, which encroached on the privileges once enjoyed by the possessors of the land— statutes that were in fact perpetually increasing. The main law of this kind was the 23rd of Charles 2nd, by which the existing qualification was rendered necessary. By the system tolerated by this law, all the personal, all the leasehold property of the country, was excluded from the possession of the game. It seemed that the immediate proprietors, and those who had manors, were not contradistinguished by this law—and the latter finding, by the species of qualification it required, that they were themselves, in many instances, precluded from procuring game, hit upon the system of appointing game-keepers, with deputations. Those deputations protected game-keepers from the operation of the game laws, and enabled them to kill game where their masters could not. This system of appointing game-keepers, under deputations, was only applicable to lords of manors, whose servants it effectually screened from the penalty of the law. As constables, appointed to preserve game, he looked upon the situation of game-keeper as a very ancient office. But they were now created under the statute of the 5th of Anne, which altered, in a very considerable degree, the intent and meaning of the 23rd of Charles 2nd. This privilege of appointing game-keepers, with liberty, under these deputations, to kill game where they pleased, was the only manorial right that he desired to attack or to affect. From that period to the present numerous acts of parliament were passed for the purpose of preserving the game belonging to lords of manors; and of enabling the great landed proprietors to resist the accumulating personal property of the country. Such measures were evidently necessary, if it were thought a just principle to resist the demand for a participation in the game of the country, which, in proportion as personal property increased, must become every day stronger. But parliament ought to consider that they were legislating on the law of property and of nature —they ought to reflect whether it was right, when the income of the monied class of the community was equal to that of the whole estated property of the country, that the landed proprietors should deprive the other classes of that enjoyment which their fortunes entitled them to. He would not, at this enlightened period, descant on the ridiculous situation in which the property of the country was placed by the existing game laws, or point out minutely the curious distinctions that were attached to it. It might be enough to say, that, at this time, a man possessed of 100,000l. a-year personal property, if he had no land could not shoot, or, he believed, possess game. He did not think, if he deposed before a magistrate, that he suspected the first merchant in the city of London of having game in his house, and demanded a search-warrant, in order to examine his premises, the individual being unqualified, that the warrant could legally be refused. What was of still more importance, was, that all the small landed proprietors in the country, on whose grounds the game existed, and whose property was damaged by those animals, were precluded from killing game. The consequence of this must be, that those persons, though not directly encouraging poachers in their neighbourhood, were by no means active in putting them down. They were neutralized—they felt like disinterested persons, since the destruction of game by poachers could not harm them. There was a natural feeling in the minds of youth, particularly in this country, to pursue those wild animals which nature had scattered over the face of the earth. Every thing around encouraged them to this amusement —and how did the system of legislation oppose the growth of this feeling? A few words would explain it. They had a system of legislation, by which the personal property of the country was undervalued; they had a system of legislation by which individuals amongst the higher orders of society were excited to encourage a breach of the law; they had a system of legislation which was intended to put down a pursuit to which the best and most useful part of their population was naturally prone; they had a system of legislation, instigating the very men who ought to be most eager to discover the violators of the law, to screen and conceal them. If any mode could be devised for removing such a system, and introducing a more wholesome one, such a plan ought to be favourably received by the House. The practical result of the law was very well known. The returns for the last year proved that a vast mass of the criminals who had been tried by the different tribunals of the country, had been first introduced into prison for offences of one kind or other against the game laws. As to the relative proportion he could not speak accurately, because there had been great delay in making out the returns, which were not even yet in the hands of every member, and because these returns, long as they had been in making, were not, to his knowledge, altogether correct. The cases which he himself knew were, however, sufficient for his purpose; and he would assert, that, if he were called upon to fix what data he would have given to determine the problem, which is the best and the shortest way to demoralize a whole people, he would answer, "take an offence which has nothing in it of disgusting crime, or of moral turpitude; let the habits of the country be favourable, and the property of the country not opposed to it, punish it in all its different shades, with the utmost degree of severity, and you will have, with all speed, the very demoralization which you are wishful to effect." The offence of poaching was one that exactly corresponded with the case which he had put; and when it was recollected that young men of active habits and vigorous minds were the parties most generally engaged in it, it was no wonder that, when they were placed by the arm of the law in a situation where contamination was most likely to reach them, they became the desperate and profligate wretches which they were well known so frequently to become.

He could not possibly imagine a system more perfectly calculated to produce such an effect. —If he conceived that the measure he meant to propose would prevent country gentlemen from residing on their estates, and prevent them from pursuing that course of humanization and civilization for which they were so remarkable, he would not, mischievous as the existing system appeared to be, recommend its repeal. But what he had in view, would, at the same time, remove the evil of which he complained, and answer every purpose of the resident country gentlemen. By the common law the game was ratione soli, in the owners soil; and he could not but hope, that, by recurring to the ancient law of the land, the legislature might find means to get rid of the mischiefs which the existing system produced. To prove that the ancient law was as he stated it, the hon. gentleman quoted a passage from the 4th Institute, and also read the preamble to the statute of Henry 7th. Taking the ancient law of the country as the ground-work of the bill which he meant to introduce to the House, he contended that the occupier of the land, on whose property the game was fed and maintained, ought to possess it, unless it was specially reserved to the original owner of the soil, or leased by such owner to some other person for his use and enjoyment. In either case, the lessor received an equivalent for the injury done, and the lessee, in his bargain, was allowed a compensation for the right thus reserved or sold. The lessor would, in that case, feel himself interested in the preservation of game, since he could dispose of it at a greater value, and the lessee would not shut his eyes to the practice of poaching, as he did at present, since the landlord who let the premises would make his bargain with reference to the extent of game preserved on the lessee's property. Game would thus become personal property, and the supply would be as regular as that of any other article of consumption. Thus, it would be unnecessary for those who enjoyed the personal income of the country, to encourage the poacher, as they were now excited to do. Why should not a lessee send a hare or a pheasant to market as well as a sheep or a calf? He could not perceive any good argument against his doing so. The only objection that could be offered was this, that game was moveable, and the property in it not so secure as other species of property were. His position was, that game should always be considered the property of those on whose land it was found. By proceeding in this way they would remove from the mind of the lessee the angry feeling, which now made him look on poaching with apathy; and they would also do away the temptation, on the part of men possessed of personal income, to have their wants, as far as game was concerned, supplied by the agency of poachers. He conceived, too, that his system would introduce a certain sense of moral feeling amongst poachers. At present, they were not checked in their course, by any idea that poaching was a crime. But, when they heard individuals, from day to day, speaking of game as their property—property which they might legally dispose of to the highest bidder— they would at length be checked by that natural feeling which deterred men from committing what was termed a robbery. Besides, the reduced price of game would lessen the temptation. Game would still bear its fair value, as fowls, geese, &c. did, but it would not acquire that accumulative value which circumstances now gave to it. Perhaps it would be said, that, under the proposed alteration in the law, game would be procured by theft, whilst less means were in existence for the conviction of the offender. But against this probability, he would oppose the increased moral feeling, and the decreased price, which would operate more powerfully than the right of search which this law now armed them with. A fiscal regulation, that of granting licences, did exist at present. He had no objection to extend it, and to grant a right of searching where unlicensed persons were suspected of * having game in their possession. He would grant every protection to game, consistent with the law of nature, the property of the country, and the general circumstances of the age in which we lived. He would protect it against black-poachers, those who went armed and disguised —he would protect it against snares and nets —he would protect it against the use of air-guns, which, he understood, were very destructive; in short, he would support every mode of protecting game, consistently with the rights of the rich and the poor, of the landed and the personal property of the country. It might be said, that a small proprietor having a field near a large preserve, would decoy the game into his premises, and, having got it there, would destroy it. In the first place, a preserve ought not to be in such a position; for it was clear, that, if the small proprietor did not destroy the game, the game would materially injure his land. But, when nets, snares, and air-guns, were prohibited, how could the proprietor of a small field destroy his neighbour's game surreptitiously? His efforts could only have the effect of frightening them back to their sacred shelter, where they could procure food in abundance. There were some rights which he admitted that he felt it difficult to interfere with. With respect to royal rights and free warrens, he knew not what to recommend. The last was a right of a curious and complicated nature, the origin of which it was historically difficult to ascertain, granted by the crown to the owner of the soil, and accompanying the soil. Both those privileges he intended to except from the operation of his measure, for he should take especial care not to interfere with any acknowledged real right. He did not touch the real rights of lords of manors; he left him the power of appointing as many preservers and protectors of his game as he chose; he only prevented him from killing game upon the land of his tenants or other men: at present he could not legally do so, nor could any body else delegated by him; and his gamekeeper was punishable, though by a different process. He had forgotten to state earlier, that in considering game as property, it was important to ascertain in what light, as property, it should be viewed, and how an invasion of it should be punished. He would not make the offence larceny; that he thought would be too severe, but he considered that an en- actment similar to the 31st of the king, for the preservation of turnips, potatoes, &c. in the ground, might be extended to it. Those articles being, as he considered game to be, the growth of the soil. The penalty of a breach of the act to which he had adverted, was a fine of 20s., and, in default of payment, imprisonment for a certain period. The penalty which he contemplated was 5l. per head, summarily recoverable before two justices of the peace, and where the penalties amounted to more than 20l. they might be recoverable by action at law. The details of his measure, as far as related to this part of the subject, had been furnished by a gentleman of the profession in all respects most competent. In the case where an occupier, the game on whose land was not preserved for the proprietor by the terms of the lease, had part of it destroyed by such proprietor, he should propose that the penalty of five pounds per head should be enforced against the trespasser—since, as lessor, he had let the right to the game, as much as any other part of his property, to the occupier or lessee. Where sporting leases were already granted, he would provide, that wherever the lessor had given the right of shooting, every such lease should be considered as imparting to the person to whom it was granted, the right to enter on the premises to which it referred, for the purpose of pursuing, killing, or preserving the game on that particular land, although the land itself was afterwards let to another. It would be for the lessee to make the best bargain in his power. He hoped that the House would allow him permission to bring in his bill, and further details could be stated on a future occasion. He had not been induced to come forward by any inordinate love of legislation, but by a sincere desire to remedy existing abuses: he had not proceeded incautiously, but had consulted the most able, discreet, and good men, upon the subject, and had formed his own opinions and this measure upon their judgment. The hon. gentleman then moved, "That leave be given to bring in a bill to amend the Laws for the Preservation of Game."

Sir John Shelley

argued, that the hon. member would be deceived, if he supposed that his bill would have the effect of rendering the country more moral and less disposed to crime; on the contrary, he was well convinced that poaching, and all kinds of artifices to procure game, would be encouraged, inasmuch as new temptations would be held out to offenders, and the danger of detection would be considerably lessened. The consequence of an abandonment of the existing system would be to drive country gentlemen to London, by which the now almost insupportable poor-rates would be augmented, and the agriculturists ruined.

Mr. Bankes

admitted that the present system was liable to many objections; but maintained, that the demoralization (to adopt a word from the hon. mover) would be ten times as great after this bill passed as before it. It was said, that moral feeling and reduced price were to diminish the commission of offences against the game laws; but was it to be supposed that the feelings of the higher orders, and their disgust at crime, would have any operation upon the lower ranks of society? and as to the question of price, it was not possible that the breeder of game could bring it to market at so cheap a rate as the stealer. The thief would always be able to undersell the honest man; so that this part of the project was both wild and absurd. On a former occasion he had stated that he neither agreed with the premises nor in the conclusion of the hon. member for Hertfordshire; and it was a gross contradiction to give a man a right to sell game without communicating to him the right to kill. What common sense was there in such a proposal? There were two or three modes of dealing with the game laws that were quite intelligible, and the first and simplest was, no doubt, repealing them altogether; but what would be the consequence of such a proceeding? It would, as had been said, drive the country-gentlemen to London— it would prevent them from residing on their property, and the injury would be incalculable. The residence of gentlemen on their estates bad, more than any thing else, contributed to the prosperity of the nation, and had enabled her to hold her head higher among the kingdoms of Europe; and if that were checked, if any disgust were excited by the abolition of laudable country amusements, the most dreadful results might ensue. The country would be impoverished, and that indeed would end in the total demoralization of the inhabitants of the provinces. Undoubtedly it was an effectual way to put an end to theft, to put an end to property; and if the game laws were totally abolished, poaching would of course be abolished also; but was such a system to be recommended in the present day, and in the present state of feeling? Coming to the enacting parts of the proposed plan, it was obvious that, in order to make it effectual, the penalties must be augmented, and the enforcement of them rendered more strict; yet at the same moment the hon. gentleman multiplied the number of offences, by increasing the facilities, and adding to the temptations. It seemed, however, that the design was, to restore a state of nature as applied to game; what was meant by this he did not exactly know; but he put it to the House how it was possible now to return to any thing approaching a state of nature: if fishing and hunting for a livelihood were to be resorted to, he could inform the hon. gentleman that all the game in Europe would not be found sufficient to supply the wants of one-tenth of the poor population of this kingdom. It might seem paradoxical, but it was quite true, that those laws which confined the pursuit of game to the higher orders, formed one great source of the regularity and industry of the lower orders: if those checks were not put upon the ardour of youth and the prevailing love of the chase, the utmost mischief would arise, and certain demoralization must ensue. Blackstone, though at first censuring little Nimrods, had at last admitted, in another part of his Commentaries, that the game laws were necessary as measures of police to preserve habits of order and industry among the poor. Did the hon. member ever hear of a poacher who was honest and hard working, a good father, husband, or son? Never: yet his measure was intended far the encouragement of that infecting class. The labouring poor would in no way be benefited; the hon. member did not pretend that they would; and by calling game property he would not diminish the desire of taking it. Did the hon. gentleman mean to say, that because of the odium of the existing system among the lower classes of society, the game laws should be repealed altogether? That would, of necessity, be the next step to that now proposed; and the consequence would be, that the poor would resort to the pursuit of game as a means of subsistence; in which event he had no doubt that in two months, all the game in the country would be destroyed. It was well known that such had been the case in France, where, after the revolution, the people declared that there should be no game-law, or restriction whatever; and now that country was, in a manner, entirely stript of game. It presented a widely different aspect from what it did within his remembrance, when game of all descriptions were straying in every direction, and crossing even the public roads. The hon. gentleman had admitted, with himself, that the preservation of this species of property was of the highest consequence and importance to those country gentlemen who were attached to its pursuits. The country itself, and the surrounding tenantry, were always more indebted to the ardour with which gentlemen resident on their estates entered into that amusement, for the good name they sustained, the hospitality they practised, the liberality they evinced, and the thousand virtues that emanated from them among their own circles, than to any other cause whatever; and these noble qualities would all be involved in one common ruin by the adoption of that project which the hon. gentleman had been speaking of. That project he should most decidedly oppose. It could only create in the lower orders a disposition to become poachers; amongst the higher orders it would destroy rational amusement; and he was sure it would tend to bring about a subversion of that order, and an abatement of that kindness and attachment, which had so long existed between the higher and the humbler ranks of the people. The existing system, though not perfect, was much better than any project he had ever known recommended as a substitute for it; and the House should recollect, that when once a system was disturbed it was sometimes impossible to restore it.

Mr. Curwen

reminded the House, that on a former occasion, when this question was agitated, it Was the opinion of a committee of that House, that it would be much more advantageous to the country in general as well as to sportsmen, that the existing game laws should be done away with altogether. The hon. gentleman who had just down had said, that the bill he was considering was complained of only by poachers; but he must be singularly ignorant of the general feeling prevailing throughout the country, of the marked dislike entertained for those laws collectively and individually, by all classes, if he supposed that that dislike and disgust were confined to one set of men only. The hon. gentleman must know very little indeed of public sentiment on this question, if he did not know that the most respectable classes of society held the game laws in the greatest detestation, as opposed to every principle of fairness and of justice. The hon. gentleman had said that those laws were made for the higher orders of society, and not for the lower—he admitted the fact, and that was precisely the reason that he objected to them; he objected to them because they were not just, because they were not equal; he objected to them also because they tended to destroy the very object they were meant to promote. As the laws stood at present, few felt any interest in the preservation of game—none felt any shame or compunction for destroying it; but if fair, equal, and equitable laws were enacted, the public would feel a distinct interest in the preservation of game; it would be then considered disgraceful to destroy it unjustly. Since the law passed against stealing turnips and potatoes in the field, that species of offence was much diminished. The same consequence would follow, he had no doubt, from the proposed change in the game laws; because, from that moment poaching would be considered a disgrace. The hon. gentleman had talked of poachers; he (Mr. Curwen) was willing to admit that many of them were very improper persons, but at the same time he would say that many others who committed that crime were persons of a very different character. So odious were the game laws now held, that to violate them was no longer held disgraceful, and many respectable persons violated the law. The hon. gentleman had referred to the authority of judge Blackstone—a great man —a great authority upon many subjects, but not the best authority on this subject. The statute of Charles 1st, which Blackstone calls an enacting statute, was a restraining statute—it restrained individuals from that which they formerly enjoyed. He hoped the House would put an end to the system which these laws upheld. He was sure if they were repealed, there would be abundance of game, because every man would feel himself bound to preserve it: it would become as sacred as any species of private property, and he was sure the lower orders would feel as little inclined to destroy it, as they at present did to destroy or to take away any article belonging to the farmers in their neighbourhood. The game laws were, in truth, unjust and odious laws; they were laws which inflicted much misery and oppression. He hoped the House would adopt some remedy. Equally tyrannical and unjust, they were alike opposed to the true spirit of the British constitution as they were to the true feelings of Englishmen, and they should not be permitted to remain whilst any means existed to accomplish their repeal.

Mr. F. Lewis

said, he was as desirous as the hon. member for Corfe Castle, that the gentry of England should not be induced to leave their country residences, but it appeared to him that his hon. friend's bill was calculated to avert such an evil, since it gave to all owners of land, full, absolute, and undisturbed possession and enjoyment of it. How could this deter any gentleman from residing in the country? What was it that in reality preserved game? Not the game laws, but the liability to action for trespass. In place of this indirect mode of legislation, he wished to see a substantive measure that would go more directly to the object, by making the killing of game, without the permission of the proprietor, a substantive offence. It had been asked triumphantly, whether he who stole turnips or potatoes in a field, did not get them more cheaply than the person who grew and sold them? But he would ask, whether it was the person who stole, or the person who grew that supplied the market. The fair supposition was, that with respect to game, if the proposed measuse were adopted, it would be supplied by the proprietor of the ground, and not as now by the poacher. Did the hon. gentleman forget the great advantage which the man who procured an article by open, fair and honest means, had over him who procured it by means that were dishonest and illegal? or could he suppose that the latter would be able to stand up against the efforts of that industry which the public would encourage, and the law would protect? It had been asked whether they could get rid of a crime, by saying it was a crime? No doubt they could not; but was It not a most improper course of legislation to call those actions crimes which were not so in their own nature? There was no greater crime in selling a pheasant than in selling a chicken, and the laws which punished the one act while they permitted the other, ought not to continue, unless they were necessary to the enjoyment of property. Feeling that the adoption of his hon. friend's proposed measure would tend to diminish the sum of public misery, and augment the sum of public good, he should certainly give his vote for it.

Leave was then given to bring in the bill.