§ On the motion of Mr. S. Wortley, the House resumed the consideration of the report of the committee on this bill, and the bill was recommitted. On the second clause, a discussion of considerable length ensued. The clause is as follows:—
§ "And be it further enacted, that all hares, rabbits, pheasants, [partridges, grouse, black game, heath and moor game, bustards, woodcocks, snipes, quails, landrails, wild ducks, teal and widgeons, and the young and eggs thereof, found in or upon any inclosed land, are and shall be deemed to be the property of the person or persons, body or bodies politic, corporate or collegiate, seized of, or entitled as owner or owners thereof in possession (and not in reversion) to, the land on which the same shall be found; and all hares, rabbits, pheasants, partridges, grouse, black game, heath and moor game, bustards, woodcocks, snipes, quails, landrails, wild ducks, teal and widgeons, found in and upon any stinted pasture, uninclosed common, or waste land, are and shall be deemed to be the property of the lord or lady, lords or ladies of the manor, lordship or royalty within which such stinted pasture, uninclosed common or waste land shall be situated; and it shall be lawful for the person or persons, body or bodies politic, corporate or collegiate, so entitled to the property of the game within their own hands, and for the lord or lady, lords or ladies of the manor, lordship or royalty so entitled to the property in the game on such stinted pasture, uninclosed common or waste lands respectively to demise and let the game to be found therein."
§ Sir J. Shelley
objected to the clause, that the proprietor of the soil could take or kill game upon it, but could not give the right of doing so to another person.
§ Lord Milton
asked whether, if this clause were agreed to, it would preclude the right of making any remarks on the new descriptions of game introduced in it? He observed, in the enumeration contained in the clause, that woodcocks, which were not game by the common law of the land, were made so by the present measure, and that rabbits, quails, and widgeons were also included. This was an enormous extension of the system of the game laws, of which the people of England already complained so justly as a grievance. The object of the bill was, as he conceived, to mitigate that grievance, and to diminish the mass of crime which every man complained of, from one end of the country to the other. It was therefore inconsistent with the object which they professed, to extend the operation of the game laws to a great variety of animals not heretofore included. He objected to the whole clause, and the bill altogether, though he was prepared with no plan of his own upon the subject. On the contrary, what he wanted was, to get rid of legislation. They had already legislated too much on that, as well as on other subjects. By the present bill, they would have half a dozen lords of the manor, where they had but one before. By one of the clauses, every owner of fifty acres of land was to become entitled to all the game which should be found on that land. In other words, it would vest in twenty persons instead of one, that which was not, in its nature capable of being the property of any individual; and thus would increase tenfold all the evils which were found to arise from the game laws. To the principle of legalizing the sale of game, he subscribed; but he did not approve of the mode in which it was proposed to carry that principle into effect, by means of licences. Desirable as it was that the sale of game should be permitted, there was no way in which it could be accomplished, except by taking away all penalties, and ceasing to legislate on the subject.
Sir J. Sebright
agreed with the noble lord, that the operation of the game laws was unpopular and injurious; but he did not agree with him, as to the causes to which he referred those consequences. He disapproved of the laws, because they confined the enjoyment of game to certain privileged classes, and shut the people at large out from it. A man who was not qualified by being the son of a squire, or 1417 in some other way, could not even shoot on his own land. What reason could be fairly given, why it was improper that a man should be permitted to shoot the game which he fed, and to let his friends shoot it too, if they wished? For his own part, being as he was, to a certain extent, a preserver of game, he knew there was no return he could make so agreeable to many persons on whom he was inclined to bestow a small civility, as to give them a day's shooting. It was not by giving them game, for that they could, and would, and did buy, as the House well knew; but by letting them come and kill it for themselves; and yet, however he might be inclined to do so, he was not permitted, unless such persons were qualified. If one of his tradesmen had behaved well, in waiting patiently for his bill, or in any other way, and he wished to express his sense of the man's civility, by giving him a little sport, he could not do so, because the honest tradesman was not qualified; while a squire's son, who might be a pauper in the workhouse, could shoot overall the manors in the kingdom. This was the cause of the unpopularity of the game laws; and it was because there was one and not ten lords of manors, that the jealousy, which was a very proper one, existed on the part of the people. Men who were not qualified durst not take their guns in their hands; they were not only debarred from shooting game, even on their own lands, for their tables, but they were absolutely prohibited from shooting a hare in their own defence. He disliked all such privileges, and thought the right of shooting game ought to be thrown open to the proprietors of land; and that they who produced the game should have a right to do with it whatever they pleased.
§ Mr. Stuart Wortley
entreated the House to confine its attention to the subject of the clause before them, and not to suffer questions upon the general principle of the bill to be discussed, until the clause should be disposed of. His noble friend's objection had been, he thought, founded in a mistake, because he seemed to suppose, that there was a penalty attached to killing those animals which were now first to be called game. It was not so; but the property of such animals was vested in the owners of the soil on which they were grown or should be found, and persons unlawfully killing them incurred no penalty, but were liable to the conse- 1418 quences of the trespass. No unqualified man could go on the land of another and kill any of this game; but, if he killed>any of that which had before been called game, then he incurred the penalties which had been before provided for that offence. If a man had only a foot of land, he might kill all the game he could find on it.
wished to know whether, as the bill declared these animals to be the property of the owner of the soil, persons killing them were to be considered as committing a felony?
Mr. S. Wortley
wished the word "rabbits" to be retained, because the common pretence under which poaching was extensively carried on was, that the persons committing it were in search of rabbits.
Mr. R. Smith,
thinking that the notions about game were so loose and unsettled, that people did not regard it in the same light as other property, objected that any other penalty should be annexed to the violation of it than attached to ordinary trespassers.
repeated his wish to know, whether the carrying away such game as was mentioned in the bill was to be considered as a felony against the owners?
Mr. S. Wortley
said, that the penalty of 40s. provided by the act was the only one which it was intended to inflict; but to prevent all misconstruction on this head, he proposed to add a clause, declaring, that no other penalties than those mentioned in the bill should attach.
§ The clause, as amended, was agreed to.
§ Mr. Goulburn
objected to the clause, which transferred the right to the game from the lord of the manor to the owner of the land, and instanced his own case. He was lord of a manor, in which he had no land, but was in possession of the tithes, and he had hitherto enjoyed, with the permission of the occupiers, the right of sporting over the whole of the manor j but, by this clause, his situation would be materially altered, and that greatly to his disadvantage. He knew the House 1419 would not legislate upon particular cases, but the situation in which he stood, was that of many other persons.
contended, that lords of manors, not being owners of the land, had no right whatever to shoot over it without licence, and that the clause would not materially intrench upon any manorial rights.
§ Sir J. Wrottesley
wished, that on whatever footing the rights of lords of manors at present stood, they should so remain.
Mr. Alderman Heygate
contended, (hat manors were good property. He had known one purchased from government, which had no other, quit rent but 5l. a year, and no other common belonging to it than a few acres, and for this manorial right 1,400l. had been given. If this bill were now to pass, this person would be cheated out of 1,400l. He trusted the House would protect the rights of lords of manors, which were not so imaginary as some gentlemen supposed them to be.
was hostile to the clause; and wished to know, whether the rights of lords of manors, let them be what they would at present, would not be materially altered if the bill passed.
Mr. S. Wortley
defended the clause. He thought that the rights, as they existed at present, subject to impediments at every step, were not worth a farthing; and that, on the whole, he had given to lords of manors more than he had taken away by making the game on unenclosed lands property.
§ Lord Milton
could not but think that there was a great interference with the rights of property by the present bill; and that, before the House should so interfere, they ought to be assured of the benefits which were likely to arise from it. He should be ready to agree to it, if any great advantage could be shown to be derived from it; but he thought the operation would be prejudicial, for it would increase, instead of diminish, the grievances of the game laws. The committee were sitting to clear the county gaols from the number of criminals with which they were filled under the game laws. That was the great grievance; but by this bill the number of enclosures would be increased, and consequently the number of persons interested in prosecutions, and he feared the number of offenders, would also be increased.
Mr. S. Wortley
held it to be impossible to pass a law making game saleable, and yet leave the right to it in the hands of those who had not contributed to the expense of feeding it.
Sir. J Sebright
agreed with his hon. friend, that to make game saleable, and retain it in the hands of a privileged class, was what the country would not endure.
Mr. G. Bankes
said, that the House ought to pause before they threw open to the great class of the people aright, which, from the numbers, power, and disposition of that class, they never afterwards could recal. He was one of those who considered that a species of property which had been enjoyed for ages, ought not to be lightly dealt with. He did not conceive that the proposed alteration would have the effect of making the gaols less full, or the people more moral, or more contented.
said, that the state of things under the game laws was so abominable, that any measure which would afford a chance of escaping from that state he was disposed to consider a benefit. If he were convinced, that legalizing the sale of game, without introducing the principle of property, would prove effectual, he would willingly agree to it; but he could not indulge that hope. He could not help saying, that what had fallen from the hon. member for Yorkshire, had gone a great way to reconcile him to the clause.
§ The chairman then put the question on the amendment of the clause, which was carried without a division; it being to this effect—"And in all cases in which game shall be demised or let, the use and property of the same shall be deemed to be vested in the person to whom it shall be so let or demised."1421
§ Sir J. Wrottesley
was exceedingly anxious that the sale of game should be permitted, because he well knew it could not be prevented. He, however, only asked now, that the permissive rights which land-owners at present possessed of appointing game-keepers, &c, should be reserved to them.
§ Mr. Goulburn
thought the hon. baronet's proposition would defeat the general objects of lords of the manors as to game.
§ The committee then divided: For the clause as amended, 82. Against it 29. Majority 53.
objected to the next clause, as authorizing, in very many cases, a violation of existing contracts between landlords and tenants, where a right of killing game had been reserved to the latter. This clause enacted, "that it should be lawful for the person entitled as owner in fee of any enclosed lands, the same not being in his own possession, but let to others, tenants or tenant, to pursue, kill and destroy game, over such lands, without asking permission of the owner thereof." He should propose to omit the latter part of it.
§ Mr. J. Smith
supported the amendment. If tenants were thus deprived of vested rights, some compensation ought to be given to them.
Mr. S. Worthy
thought there might be some force in the objection taken, if it were assumed, that landlords were necessarily litigious. But he could not consent to such an amendment; for it was taking the right of shooting from the landlord, and giving it, in effect, to the tenant, solely. The landlord would be placed by it in a much worse situation than he stood at present. He would venture to say, that if this clause were passed, without the words objected to being retained in it, he should be kept off his own land for all purposes of sporting, for several years to come.
Mr. Alderman Heygate
was satisfied of the monstrous injustice which the clause in its present state was calculated to produce. What security had tenants that landlords would behave in so gentlemanly a manner, or in a way so little litigious, as the hon. member for Yorkshire seemed to suppose? Inasmuch, indeed, as this bill would enable all tenants, whether qualified or unqualified, to sport over the land; in their occupation, so far the landlord would be placed in a 1422 worse situation by this bill than he was before; but that was no reason for retaining the clause.
§ Mr. Goulburn
supported the rights of the lords of manors, which the bill at present did not sufficiently protect.
thought there could be no good in holding out any inducement to tenants to quarrel with their landlords. Tenants might as well be at once permitted to sport over the lands they occupied, to the exclusion of the landlord, as landlords be left in the prejudiced situation which this proposition would leave them in.
Mr. F. Lewis
suggested, that if a tenant were legally qualified to kill game, he ought to be allowed to possess the right, notwithstanding this bill, in any case where it was granted by his lease. The lord of the manor ought to enjoy a concurrent right. A clause, he thought, might be so worded, as to avoid the difficulty at present started.
§ Sir Shelley
instanced his own case, and argued, that if the clause passed, as it was now worded, he should be ousted of an important right, for which he had paid a considerable sum.
was of opinion, that if the landlord possessed the right of shooting now, he ought not to be deprived of it. Nevertheless, he supported the amendment, because it was only just to preserve equally the right of the tenant.
said, that as the question was intricate, it ought to be left for decision on a future day.
§ Sir J. Wrottesley
maintained, that there was no intricacy at all in the point. He was of opinion, that to retain the words would be virtually to give the landlords a power of altering half the leases in the kingdom; for it was as much a matter of course, where there was no express stipulation in the lease to the contrary, for the landlord to concede to the tenant a right of shooting over the land, as of growing upon it crops of wheat, barley, or other corn, or of fishing in any waters that ran through it.
§ Sir T. Acland
thought it was necessary to give landlords some protection, otherwise they would not be in a better, but in a worse situation. He was inclined to leave the parties as nearly as possible in the state in which they at that moment 1423 stood. He would not confer upon the landlord any new right, nor allow the tenant, upon whose farm the owner might at present come under the terms of the lease, to warn him off. He wished a declaratory clause upon the subject, to be introduced into the bill. In leases in general, the landlord reserved the right to sport; but old ladies, and infirm persons, did not always insert a clause for this purpose. As the law stood, the landlord enjoyed certain valuable privileges, and the House ought not, with a suicidal hand, to destroy them.
§ Mr. J. Martin
said, he had supported the bill in principle originally; but, if this clause were inserted without amendment, he would vote against the measure in every future stage.
Mr. S. Worthy
expressed his readiness to postpone the further consideration of the clause until another day. He was satisfied that it ought to be introduced into the bill in its present shape, in order that justice might be done to all parties. He proposed that the Chairman report progress, and ask leave to sit again.
§ The Chairman accordingly reported progress, and obtained leave to sit again.