HC Deb 24 July 1862 vol 168 cc785-96

Bill considered in Committee:—

(In the Committee.)

MR. W. E. FORSTER

asked, whether the words "from sunset to eight o'clock in the morning" were yesterday expunged or inserted?

THE CHAIRMAN

replied that they were omitted.

SIR STAFFORD NORTHCOTE

said, that his hon. Friend (Sir B. Leighton) had prepared a clause as it would stand if the Amendments he proposed were adopted. The clause had been printed, and he would give copies to any hon. Members who desired to have them. The hon. Member for the Tower Hamlets had proposed to limit the operation of the Bill to persons who might be found coming from land on which the police had reason to believe they had been poaching, and who had in their possession instruments used in the taking of game. His hon. Friend accordingly proposed, that if a policeman found any such person with any gun, or part of a gun, or any nets or engines used in the taking of game, he might search him.

MR. W. E. FORSTER

said, that if only two or three copies of the amended clause had been printed, that was a good reason why the Bill should be postponed. He should therefore move that the Chairman report progress.

Motion made, and Question put, "That the Chairman do report Progress, and ask leave to sit again."

The Committee divided:—Ayes 29; Noes 94: Majority 65.

MR. CONINGHAM

said, that he was very much surprised to see Her Majesty's Government helping to pass the Bill. The noble Lord would find the great majorities which he obtained by the aid of the other side of the House sink from under him at the critical moment. All the subordinates of the Government, however, seemed to be against one another, not only on Indian finance, but on this Game Bill. ["Question!" and "Oh!"] He must do hon. Members opposite the justice to admit, that whenever the question of game was concerned, they "gave tongue" very loud. [A laugh, and "Oh!"] He did not know why hon. Members should interrupt him so constantly. He should move that the Chairman do report progress.

THE CHAIRMAN

said, that the Committee had already decided that question.

MR. CONINGHAM

said, he would then move that the Chairman do leave the chair.

MR. CLAY

said, he had voted against the Bill on every division, and he admitted that he did not like it. It was certain that a very conscientious difference existed between hon. Gentlemen, but it could not fail to be clear that the Bill commanded the support of the majority of the House. He could not think that they ought to attempt to defeat the Bill per fas aut nefas, and he should not go into the lobby with the hon. Gentleman if he divided.

MR. CONINGHAM

said, he would withdraw his Motion.

Motion, by leave, withdrawn.

SIR BALDWIN LEIGHTON

said, he wished to leave out of Clause 1, line 17, the words "to apprehend any such person," and to the end of the clause, in order to insert an Amendment of which he had given notice.

Amendment proposed, To leave out from the word "carried," in page 2, line 3, to the end of the Clause, in order to insert the words "also to stop, search, and detain any cart, boat, or other conveyance in or upon which there shall be reasonable cause to suspect that any such game, guns, parts of guns, nets, or other engines are being carried, and should they find any game or any such article or thing as aforesaid upon such person, cart, boat, or other conveyance, to seize and retain the same; and such constable shall in such case apply to some justice of the peace for a summons citing such person to appear before two justices of the peace acting for the county or borough within which the seizure has been made; and if the person so charged shall fail to satisfy the said justices that he obtained such game lawfully, or that he had such gun, parts of guns, nets, or engines in his possession for a lawful purpose, the said justices shall, on conviction, order the person so convicted to forfeit and pay any sum not exceeding five pounds, and shall forfeit such game, guns, parts of guns, nets, and engines, and direct the same to be sold, and the proceeds of such sale, with the amount of the penalty, to be paid to the treasurer of the county or borough where the conviction takes place; and no person who, by direction of a justice, in writing, shall sell any game so seized, shall be liable to any penalty for such sale.

SIR DAVID DUNDAS

said, that in the Amendment of which the hon. Baronet had given notice it was proposed to give the police the power to stop "boats." He did not understand how a policeman could stop boats on the highway. Canals were not highways. The clause also made a difference between a good cause and a reasonable cause, and he thought that that would only give rise to legal quibbles,

MR. COX

said, he had an Amendment to strike out all the words from the word "aforesaid" in line 20 to the word "carried" in line 3, page 2, and he wished to know whether it would be competent for him to put it after the Committee had decided upon adopting the Amendment of the hon. Baronet.

THE CHAIRMAN

said, that at present the question was upon the Amendment of the hon. Member for Shropshire (Sir Baldwin Leighton).

SIR BALDWIN LEIGHTON

said, that his object in moving the Amendment was to do away with the power of apprehending on the part of the police, and to substitute the power of detaining the poaching instrument, and of obtaining a summons against the parties, and he was in hopes that that proposal would have been acceptable to the majority of hon. Members.

MR. COX

said, he should like to hear from the Chairman whether he could move his Amendment if the Motion before the Committee were agreed to. He wished to take the sense of the Committee upon stopping, detaining, and searching carts, boats, and other conveyances.

THE CHAIRMAN

said, that the only question before the Committee was whether certain words should be retained as part of the clause; if they decided that they should not be retained, the hon. Member for Finsbury would be entitled to move his Amendment.

Question, "That the words proposed to be left out stand part of the Clause," put, and negatived.

Question proposed, "That those words be there inserted."

MR. COX

said, he would then move the omission of the words, "also to stop, search, and detain any cart," from the Amendment. He thought that no man ought to be liable to be stopped on a highway upon the mere presumption of a policeman that he was engaged in or contemplated the commission of an injustice. The police were already vested with too great power, and he objected to any additional power being vested in them. The clause would enable a policeman to levy black mail from all persons traversing the highways in a less humble conveyance than a brougham; and he certainly did think that if the object of the country gentleman was, as they pretended it to be, to prevent large gangs of persons from robbing estates of game and conveying it in the open day to railway stations, a less stringent and arbitrary mode of proceeding might be adopted. As the clause stood a commercial traveller proceeding along a country road with a few packets of tea might, unless the policeman were feed to allow him his liberty, be carried before a game preserving justice on the pretence that he was a poacher.

Amendment proposed to the proposed Amendment, to leave out the words "also to stop, search, and detain any cart."

Question put, "That the words proposed to be left out stand part of the proposed Amendment."

The Committee divided:—Ayes 111; Noes 45: Majority 66.

SIR BALDWIN LEIGHTON

said, that there was no objection to leave out the word boat, which was struck out.

MR. COX

said, he would then move to strike out the words "other conveyance" from the Amendment.

Amendment proposed to the proposed Amendment, to leave out the words "or other conveyance."

Question put, "That the words proposed to be left out stand part of the proposed Amendment."

The Committee divided:—Ayes 121; Noes 35: Majority 86.

SIR DAVID DUNDAS

said, he would propose to leave out "guns, parts of guns, nets, or other engines," and to insert the words "any such article or thing."

Amendment agreed to.

MR. HENLEY

said, he strongly objected to any cases under the Act being heard before two justices of the peace except at the regular place of the holding of petty sessions, where the accused could be sure of having legal assistance if he desired it.

MR. AYRTON

said, that by the Bill as it stood accused persons were required to prove their own innocence, which was a principle repugnant to English law. It was utterly indefensible that any individual who might happen to have in his possession any bird said to be game should be liable to an indictment for poaching. A man ought to be convicted only if it were shown that he had obtained game, or used his gun, nets, or other engine in an unlawful manner. In order to insert words to that effect, he would move the omission of the words "if the person so charged shall fail to satisfy the said justices."

Amendment proposed to the proposed Amendment, to leave out the words, "and if the person so charged shall fail to satisfy the said justices."

MR. COLLINS

said, he would remind the hon. Member that in the manufacturing districts, if a person had worsted in a particular stage of its manufacture in his possession, without being able to show that he had obtained it lawfully, he was held to have stolen it.

MR. WALTER

said, he should support the Amendment, because he believed that the power of searching persons or carts had hitherto always been confined to cases where goods were supposed to have been stolen. That was the principle in the case of worsted, which had been mentioned, and also of metal, fowls, and so on. But game was not yet recognised as property, and therefore the principle was not applicable. His object was to get game recognised as property, and then to deal with it as such. If hon. Members would take the trouble to read the Report of the Committee on the Game Laws in 1845, they would find that the witnesses on both sides concurred in acknowledging the importance of declaring game to be private property by law. That lay at the root of the whole question. They would never get really common-sense legislation on the subject until that principle was established. He could not support a clause which conferred the right of searching a man for stealing goods, and of requiring him to account for the possession of them, until those goods had been recognised by law as property.

MR. DARBY GRIFFITH

observed, that dead game was property.

MR. WALTER

said, that game was supposed to be the property of the person in whose possession it was until the contrary was shown.

MR. DARBY GRIFFITH

said, he would further remark that live pheasants in a stew—that was to say, kept in a close place for breeding—constituted property.

MR. HENLEY

said, that the principle involved in the Amendment was a very important one, especially after the change which had taken place in the Bill. He admitted that persons found at night with guns or game in their possession might be supposed to be engaged in some unlawful pursuit; but if the present clause were agreed to, any person walking along the road in the day-time with a gun or a basket of game might be summoned before the justices and compelled to prove his innocence. He was one of those who thought that the old principle of English law was the safest, that a man might hold his tongue and defy any one to prove him guilty. He should vote for the Amendment.

MR. W. E. FORSTER

said, that his hon. and learned Friend the Member for the Tower Hamlets had performed what had appeared to him (Mr. Forster) an herculean task, in proposing a real improvement to a very objectionable measure. One great reason why he opposed the Bill was, that he had seen the evil of similar legislation in the worsted manufacture. It would be exceedingly easy for an innocent man to be proved guilty if the old and humane principle of English law were forsaken—namely, that a man should be held innocent till he had been proved guilty. Hon. Members must not think that all the game in this country came from their preserves. The poultry, game, and rabbits imported from abroad in 1860 amounted in value to £63,314; and giving all the margin due to the poultry, there was, doubtless, much game included in that sum. The remarks of the hon. Member for Berkshire proved that they were not in a position to make new and stringent Game Laws.

SIR GEORGE GREY

said, he wished to have an explanation of the words "the person so charged," because no charge was previously mentioned in the Bill. It was contrary to all the principles of justice that a person charged with any offence should be bound to prove his innocence.

SIR BALDWIN LEIGHTON

said, the words might be altered to "the person so summoned." By an Act of last Session, a person in possession of salmon, under certain circumstances, was bound to prove that the possession was lawful. Any person found with game in his possession could easily prove that he had come by it honestly and lawfully. A dealer in game could show his invoice, and a gentleman in his brougham with a basket of game could easily prove how he came by it. But, from the difficulty of identification, no conviction could take place if the onus probandi was thrown on the prosecutor.

SIR FRANCIS GOLDSMID

said, he thought the argument, if worth anything, would be good for a general alteration of the law of England, requiring persons to prove their innocence and not requiring their accusers to establish their guilt. If, however, such a vital change were made in the law, it ought to be with respect to something much more valuable and important than mere game.

MR. HENLEY

said, he had told an hon. Member when the Bill was introduced that the "salmon party" was so strong there would be no difficulty in carrying it. He was opposed to similar provisions as to salmon in the Bill of last Session, but he found that opposition was useless.

MR. CONINGHAM

said, he opposed the Amendment, because he believed that the game dealers and preservers were great encouragers of poaching. ["No, No!"] "No, no!" Would hon. Gentlemen opposite deny that they were notorious purchasers (by their keepers) of pheasants' eggs well known to have been stolen from other preserves by the poachers who brought them for sale? He would suggest that the provision should be extended, so as to require game preservers to prove the lawful possession of eggs.

MR. GARNETT

said, he also wished to reprobate the practice of Gentlemen who wished to preserve game buying eggs. He hoped an expression of opinion by the House would discourage the practice.

MR. W. E. FORSTER

said, that as one of the Committee on the Salmon Bill of last Session which contained a provision similar to that under discussion, he wished to observe that he had so much to do that he did not observe the words, or else he would have offered opposition to them.

MR. NEWDEGATE

said, he would express a hope that hon. Members would be satisfied with the great step they would gain if that Bill should pass with the Amendment proposed by the hon. Member (Mr. Ayrton). He was anxious to check gang poaching, and he thought that the mere fact that such persons could be stopped and examined would have this effect; but he thought that it was very unreasonable to change the law of evidence in order to preserve game.

MR. AYRTON

said, he would appeal to hon. Gentlemen on the Opposition benches, as strong supporters in general of the principles of the common law of the country, not to make the Bill obnoxious by a departure from those principles, which would open the door to great abuse. He protested against the Salmon Bill when it was before the House.

SIR STAFFORD NORTHCOTE

said, that after listening to all that had been said on both sides, he was not prepared to vote for the retention of these words, and hoped that the hon. Baronet would not press them.

SIR BALDWIN LEIGHTON

said, he wished to point out that the Act to which he had referred applied to persons who might be found in possession of part of a fence.

MR. DEEDES

said, he thought it would be better not to risk the efficiency of the Bill by making it too stringent at first, at least.

Question put, "That the words proposed to be left out stand part of the proposed Amendment."

The Committee divided:—Ayes 45; Noes 102: Majority 57.

MR. AYRTON

said, he would then move the insertion of words enabling justices to punish parties convicted of the offences indicated in the previous part of the clause in the ordinary way.

MR. P. TAYLOR

said, he could assure hon. Gentlemen opposite that out of doors the Bill was regarded as a very obnoxious measure. There was a strong feeling existing against it in the borough which he represented, and a requisition had been sent round calling a public meeting for Monday. He had also received a communication from Blackburn expressing indignation at the measure. He should move that the Chairman report progress.

MR. NEWDEGATE

said, that the existence of the Bill itself was a proof that the House of Commons was doing its duty.

MR. BONHAM-CARTER

supported the Motion.

MR. CRAUFURD

said, the Bill had been altogether altered. The Opposition thought, by a tyrannical majority, to force their unconstitutional measure upon the country. They did not see how they were digging the grave of their own Bill, and had been glad to retrace their steps till it amounted to nothing more than the present law of the land. What, then, was the use of proceeding with the Bill? It would be a mere useless rag of legislation added to the statute-book, the only new distinction created being that policemen were to be made into gamekeepers. Was it worth while to go in for that?

Motion made, and Question put, "That the Chairman do report Progress, and ask leave to sit again."

The Committee divided:—Ayes 31; Noes 110: Majority 79.

MR. CONINGHAM

said, as it was one o'clock, and the game preservers, who were keeping them out of their beds for that precious Bill, would not guarantee them against being stopped and searched on their way home by persons of another description, he thought that they should not be the victims of the "tyrannical majority" any longer.

MR. W. E. FORSTER moved that the Chairman do leave the chair.

Motion made, and Question put, "That the Chairman do now leave the Chair."

The Committee divided:—Ayes 30; Noes 108: Majority 78.

MR. COX

said, he did not rise for any factious purpose, but to appeal to the hon. Baronet (Sir Baldwin Leighton) to consent to progress being reported, in order that the House might have an opportunity of reading the Bill as amended.

SIR BALDWIN LEIGHTON

said, that if the House would apply themselves for a quarter of an hour to the Bill, they might pass it through Committee.

MR. W. E. FORSTER

said, he wished to take occasion to ask the hon. Baronet who had charge of the measure, whether it was desirable he should persevere with it, seeing that it had been connected with a Bill directed not only against night, but also against day poaching?

SIR BALDWIN LEIGHTON

said, he intended to adhere to the Amendment made yesterday on the Motion of the hon. Member for Boston. He therefore could not reinsert the words "between sunset and eight in the morning."

MR. W. E. FORSTER

said, that after the statement of the hon. Baronet, he must divide the Committee on the question that the clause, as amended, stand part of the Bill.

MR. CRAUFURD

again urged the advocates of the measure not to persevere further with it, inasmuch as by the Amendments made in it, it became a wholly worthless Bill.

MR. BASS

said, he would entreat the hon. Baronet who had charge of the Bill to consent to its being altered to a night poaching Bill, as it originally stood, instead of persevering with it as both a day and night poaching Bill.

Question put, "That the Clause, as amended, stand part of the Bill."

The Committee divided:—Ayes 91; Noes 27: Majority 64.

Clause, as amended, agreed to.

Clause 2 (Sale of Game).

SIR BALDWIN LEIGHTON

said, he would consent to withdraw the clause for the present, upon the understanding that no further opposition would be given to the remaining provisions of the Bill.

MR. HARVEY LEWIS

said, he wished to understand whether it was the intention of the hon. Baronet to withdraw the clause entirely.

MR. SEYMOUR FITZGERALD

said, his hon. Friend had said he would not press the clause at that time, upon the understanding that the other provisions were agreed to. If, however, those other clauses were opposed, he should reserve to himself the right of reviving it.

MR. WALTER

suggested that the clause should be omitted. It was the most objectionable clause in the Bill, because it imposed conditions on the sale of game which did not exist with regard to the sale of other articles of food. He read an extract from the evidence of Mr. Brooke, a large dealer in game, who was examined before the Committee in 1845, and who, in answer to a question put by Mr. Bright, objected to any restriction whatever on the sale of game. His evidence was as follows:— I am of opinion that the game trade would be best free; that there should be no licensing with regard to the sale of game. I should look upon game as property. I should look upon pheasants and partridges, and hares and rabbits, with as much respect, as property, as chickens and ducks; and I hope that that may one day be the case; that a gentleman having pheasants may call them his own, and that no man would have a right to take them; and that the salesman who receives them as stolen goods should be punished like any other common felon for doing so. I should like to see that. And in the next answer he said— I still live in hope to see the day that a gentleman may be enabled to preserve game as he may his deer, or whatever may belong to him, which I conceive to be his right. I have always felt that a man who takes a pheasant takes a gentleman's property.

He hoped, then, that the clause would be omitted from the Bill.

Clause struck out.

Clause 3 (Operation of Act).

MR. CRAUFURD moved that the words "Great Britain" be struck out of the clause and "England" inserted instead, with the view of confining the operation of the Bill to England only.

Amendment proposed, in line 31, to leave out from the words "thirty-two," to the words "sixty-eight."

Question put, "That the words proposed to be left out stand part of Clause."

The Committee divided:—Ayes 86; Noes 17: Majority 69.

Clause agreed to.

SIR BALDWIN LEIGHTON

said, he proposed to move a clause defining what game meant.

Clause brought up, and read 1º; 2º.

SIR JOSEPH PAXTON moved, as an Amendment, to exclude "rabbits" from the clause.

Amendment proposed, to leave out the word "rabbits."

Question put, "That the word 'rabbits' stand part of the Clause "

The Committee divided:—Ayes 78; Noes 16: Majority 62.

Clause agreed to.

MR. STANILAND

proposed clauses for the recovery of penalties and the prevention of certiorari for the removal of any conviction or order made under this Act.

Clauses agreed to.

SIR BALDWIN LEIGHTON moved a clause respecting the power of appeal.

Clause agreed to.

House resumed.

Bill reported, with Amendments; as amended, to be considered on Monday next, and to be printed. [Bill 232.]