HC Deb 06 July 1864 vol 176 cc931-40

[Progress, 27th April.]

Order for Committee read.

Bill considered in Committee.

(In the Committee.)

Question again proposed.

Clause 1 (Repeal of 10th Section of 27 Geo. III.).

MR. BAGWELL

said, he had opposed this Bill in every stage, and intended to continue his opposition, believing as he did that the measure was both unjust and impolitic: it was unjust because it gave to the landlord what was now the property of the occupier; and it was impolitic because it would create another incentive to crime in a country where agrarian crime was already too prevalent. By the existing law the power of prosecuting for trespass in pursuit of game was in the occupier, and this Bill would transfer it to the landlord —and this was virtually to introduce the English Game Law into Ireland. He believed the Irish people were not awake to the serious consequences of the Bill. The evil effects of the Game Laws were clearly shown by the evidence given before Mr. Bright's Committee. Sir Harry Verney and Mr. Pusey declared that game preserving was a serious evil; Lord Hatherton expressed an opinion that game preserving and profitable farming were incompatible. Now, the present Bill was calculated to bring upon Ireland the evils which arose from the Game Laws in England, and to render that country a game preserving country, with all its attendant consequences of crime and misery. The Returns of convictions under the Game Laws which had been presented to the House made a folio volume of 481 pages. The number of convictions in England and Wales was 30,673, and in Scotland 3,226. Supposing the Amendments on the paper to be carried, they would very slightly mitigate the evils which he apprehended from the Bill, and entertaining this opinion he begged to move that the Chairman leave the chair.

Motion made, and Question, "That the Chairman do now leave the Chair."—(Mr. Bagwell.)

MR. DAWSON

said, that a very erroneous impression prevailed with regard to the Bill. It was thought that if it passed into law, all the powers and concomitant consequences of the English Game Laws would be thrust upon the people of Ireland. But he asserted nothing of the kind would be the case. The Bill only gave to the landlord a power which it was very extraordinary that he did not already possess—the power of preventing trespass in pursuit of game. He thought the Bill would be acceptable to both parties. The tenant was often unwilling to appear in court to prosecute a trespass in pursuit of game, and he would be glad to be relieved from the necessity of being a party to the prosecution. The present Bill was a measure of relief to the tenant, and was, he believed, so considered by the occupiers.

MR. M'CANN

believed the Bill would be productive of great evil and mischief in Ireland. It was the introduction, with additions, of the English system of Game Laws into that country. It was quite true that no petitions had been presented against the Bill, but the fact was that the Irish people had given up petitioning, and were indifferent to what was going on in that House. Looking at the benches near him, he could not help expressing his astonishment at the scanty attendance of Liberal Members. Where were they? ["Oh, oh!"] He did not deny that there were some Liberal Members on the other side; perhaps they were in reality more liberal than the Members on the Liberal side. But, as to the English Liberal Members, they were calling for the support of the Irish Liberals in the division that was to take place on Friday; but now, where—["Order!"]

MR. M'MAHON

said, he did not quite see how the hon. Member for Drogheda was out of order, for in arguing against the progress of a Bill he had a right to show how seriously it would affect the great bulk of the tenantry of Ireland. Every tenant in Ireland who happened not to have a lease—and they were the great bulk of the agricultural population—would be seriously affected by the Bill, and an opportunity ought to be given for more fully considering it. The Bill was said to be for the protection of the tenantry, but it was strange that they had never asked for it. He thought, therefore, that the Bill should be printed and circulated, so that the opinion of the country might be ascertained with respect to it. If it were true that the tenants in cases where prosecutions were required were unwilling or afraid to undertake those prosecutions, there might be some ground for the Bill; but there was no evidence that such was the case. If passed, it would make the law of Ireland more stringent than it was at present, and even more stringent than that of England. He had always contended for the assimilation of the laws of the two countries; but in the present case the worst parts of the law of both countries were picked out and embodied in the Bill, If anything was done in the matter, it ought to be done not by a private Member, but by the Government upon their own responsibility.

SIR COLMAN O'LOGHLEN

said, he was in favour of the principle of the Bill, which was to enable a landlord to proceed for trespass when the game belonged to him, but he did not desire to see the English Game Laws introduced into Ireland. He would suggest, however, that it would be better at this late period of the Session to withdraw the Bill, and introduce a new one next year.

MR. W. R. ORMSBY GORE

said, he certainly would not accede to the sugges- tion to withdraw the Bill, as he believed it would be a great relief to the tenant.

MR. O'HAGAN (THE ATTORNEY GENERAL FOR IRELAND)

said, that the second clause would, by a side wind, displace the old law of the country, which required that where the landlord reserved the game to himself it should be done by a regular, written instrument. This was a serious innovation on the law, and he did not think it should be done by a side wind and without due consideration.

MR. W. R. ORMSBY GORE

said, no doubt the proposed change in the law was a great alteration, but what were Members sent to that House for unless it was to alter the law? The game on land held from year to year was now virtually the landlord's property, yet if he wished to punish a trespasser he must go and ask the permission of the tenant; and if the latter gave his consent, he subjected himself to the ill-will of the person prosecuted. That was a position from which the tenant would be very glad to be freed.

MR. MONSELL

said, that in certain instances the Bill as it stood would transfer the property in game from the tenant to the landlord, and that undoubtedly would be a great change; but he thought if the Amendment of which his hon. Friend the Member for Youghal (Mr. Butt) had given notice was adopted, it would remove all objections. Under that clause the landlord who retained his right to the game, would be enabled to vindicate his right himself. This would give him all the power that was necessary, without introducing any fundamental alteration in the existing law.

MR. LONGFIELD

said, that the Game Laws in England and Ireland thirty five years ago were the same; but by the 1st William IV. not only was that right given to the landlord, which his hon. Friend by this Bill intended to give, but by retrospective legislation even existing contracts were altered, and that was going much further than it was now proposed to do. The Irish tenant was well disposed to preserve his landlord's game, but he complained that the present state of the law took from him both time and labour, and placed him in an invidious position towards his neighbour. The landlord had the beneficial ownership of the game at present, and this alteration of the law would merely enable him to enforce his right. He protested against a small portion of Gentlemen in that House setting themselves up as the exclusive champions of the Irish tenant.

MR. M'MAHON

said, that as in a few months they would be probably sent before their constituents, if the hon. Member thought his Bill was so much desired by the Irish tenants, he could not do better than go before them with the cry of "My Game Bill."

MR. W. R. ORMSBY GORE

said, it would be seen from the Amendment which he had put upon the paper, that he did not propose to take away any existing right. He went so far as to require that no prosecution should be instituted by any person except he had an exclusive right to the game.

SIR GEORGE GREY

said, it was difficult to know what they were discussing. As the hon. Gentleman had himself put an Amendment of an important character upon the paper, he would suggest that the hon. Gentleman would do well to commit the Bill pro formâ, and have it printed, and then the House would see what their real position with respect to the Bill was.

MR. W. R. ORMSBY GORE

said, there was no difficulty in ascertaining what the nature of the Bill was. He was ready to maintain every existing right except that of prosecuting in the name of the tenants at will.

LORD NAAS

said, that there was really but one clause in the Bill, and his hon. Friend proposed to substitute another which had been before the House for the last two months. The House, therefore, would gain nothing by committing the Bill pro forma.

MR. LONGFIELD

said, that where a landlord had reserved to himself the right to game it was in every instance an exclusive right. The Attorney General for Ireland would tell them that such was the case. It might, however, be better to insert a word which would make that clear, and his hon. Friend had no objection to do so.

MR. O'HAGAN (THE ATTORNEY GENERAL FOR IRELAND)

said, that there was not the slightest doubt that so far the law, as stated by the hon. and learned Gentleman, was correct.

COLONEL DUNNE

said, that hon. Members who had no interest in land in Ireland were very liberal in dealing with other people's property; he should be very sorry if it were supposed that Ireland was represented by a few Gentlemen who came there and made speeches as an easy means of raising political capital. He did not think the Bill would be of much use; how- ever, he should support it because there was nothing misleading about it. Every landed proprietor now put more stringent conditions as to game into his leases than the Bill provided for him.

MR. BAGWELL

said, he would put it to the House whether it was more vulgar to impute motives of the vilest kind to Gentlemen who were equal in social position to the hon. and gallant Member, or to do what hon. Gentlemen conceived to be their duty in that House.

MR. M'CANN

said, they had heard a good many legal opinions, but the legal Gentlemen had not made the matter much clearer. The Bill gave no definition of game, which was an essential point, and he should therefore support the proposition of the Home Secretary.

Question put.

The Committee divided:—Ayes 29; Noes 73: Majority, 44.

SIR COLMAN O'LOGHLEN,

on behalf of the hon. and learned Member for Youghal (Mr. Butt), who was unavoidably absent, moved the following Amendment: In line 11, after blank, insert, 'whenever any proceeding shall be instituted against any person to recover the penalty imposed by—." In line 15 to leave out, "shall be, and is hereby repealed," and insert, "it shall not be necessary to institute such proceeding, in the name or by the authority of the occupier of the land, upon which such person has entered, but same may be instituted by any persons legally entitled to the exclusive right of killing game upon such land; and in such case the leave and licence of the occupier or person entitled to the possession of such land shall not be a sufficient defence, but for the purpose of such proceeding the person entitled to the exclusive right of killing game shall be deemed the legal occupier of the land; but, in all other respects, the person charged with such trespass shall be at liberty to prove, by way of defence, any matter which would have been a defence to an action at law for such trespass, and no person shall be convicted of such offence who shall have entered upon such lands by leave and licence of the actual occupier in case it shall appear he had reasonable cause to believe that such occupier was entitled to authorise him to kill game on such land.

Amendment proposed, in page 1, line 11, after the words "sixty-four," to insert the words "whenever any proceeding shall be instituted against any person to recover the penalty imposed by."—(Sir Colman O'Loghlen.)

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

MR. W. R. ORSMBY GORE

said, he approved the principle of the Amendment, which he had adopted in a new clause he intended to substitute for Clause 2; but there were Words in the latter part of the Amendment which he objected to. The hon. Member for Yougbal (Mr. Butt) was satisfied with the new clause to be proposed in lieu of Clause 2.

MR. BAGWELL

wished to know whether the hon. Gentleman would give a landlord who had the exclusive right of killing game the power of prosecuting trespassers or not.

MR. ROEBUCK

suggested that it would be much better for the Committee to have the whole matter before them before they were called on for a decision. He defied any one to understand what was before the Committee. He would pass the Bill through Committee pro forma, and have it reprinted.

SIR GEORGE GREY

said, that he had recommended the same thing half an hour ago.

MR. W. R. ORSMBY GORE

observed, that there could be no difficulty in understanding what was intended, as the new clause had been before the House for two months.

MR. ROEBUCK moved that the Chairman report Progress.

Motion made, and Question put, "That the Chairman do report Progress, and ask leave to sit again.—(Mr. Roebuck.)

The Committee divided:—Ayes 43; Noes 60: Majority 17.

MR. LONGFIELD

then said, that if the Amendment moved by the hon. Baronet the Member for Clare (Sir Colman O'Loghlen) were withdrawn, the promoters of the Bill were ready, when the Committee came to the consideration of the new clause in lieu of Clause 2, to alter it in a way which would be satisfactory to hon. Members on both sides of the House.

Amendment, by leave, withdrawn.

Clause agreed to.

Clause 2 (Penalty for trespassing in pursuit of Game, or of Woodcocks, Snipes, &c.), struck out.

Clause 3 (Interpretation of the word "Game.")

SIR COLMAN O'LOGHLEN moved the omission of the word "rabbits" from the clause.

Amendment proposed, in line 23, to leave out the word "rabbits."—(Sir Colman O'Loghlen.)

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

MR. W. R. ORMSBY GORE moved the insertion of the word "woodcocks."

MR. M'MAHON

objected to the insertion of "woodcock" and the other words which the hon. Gentleman had put on the paper—"snipes, quails, landrails, wild ducks, widgeon, and teal." Those did not constitute "game" in the true sense of the term. There could be no right of property in migratory birds, which were not bred under the care of keepers. They were not "game" under the law of England. If it was desired to assimilate the laws of the two countries, why should they be inserted? "Wild ducks, teal, and widgeon" were found in the Irish Act of 1787, but that was no reason why they should be inserted in the Irish Game Act of 1864.

COLONEL SYKES

said, a man could not have property in migratory birds. Wild ducks, widgeon, and teal were the property of the Esquimaux for half the year.

MR. W. R. ORSMBY GORE

said, that if the hon. and gallant Gentleman would accompany him to Ireland, he would show him twenty nests of wild ducks within a space not larger than that House.

Motion made, and Question put, "That the word 'woodcocks' be added."

The Committee divided:—Ayes 81; Noes 28: Majority 53.

MR. M'MAHON

objected to the insertion of "wild ducks, widgeon, and teal." They were not game, and he hoped the Committee would not make them so.

MR. W. R. ORSMBY GORE

said, wild ducks were included in the early part of the Bill, and by two Acts their eggs were made game.

MR. BAGWELL

reminded the Committee that on some of the shores of Ireland, wild ducks formed a great resource for poor people.

MR. LONGFIELD

explained that the Bill referred only to private property.

SIR GEORGE GREY

understood that wild duck was included in the Bill only in connection with penalties for trespass.

MR. ROEBUCK

asked why, in that case, they did not include all birds—a swallow for instance. [A laugh, and "Hear, hear!"]

MR. M'MAHON

said, that if the Committee agreed to the introduction of wild ducks, it would deprive a large number of people in Ireland of a portion of their means of subsistence. A man shooting a wild duck on the seashore would be liable to the penalties of this Bill.

MR. LONGFIELD

said, the Bill did not apply to the sea but to the land, which was private property.

MR. M'CANN

said, there were landowners in Ireland who not only claimed a right to the seashore, but who also prevented persons from fishing at high water up to their land. Was it likely they would permit the poor to shoot wild ducks on the seashore if this Bill passed?

MR. LONGFIELD

hoped the Committee would not suppose the Irish people lived on wild ducks.

SIR GEORGE GREY

observed that, although wild ducks were included in the existing Irish law, they were not in the English law.

Amendment proposed, at the end of the Clause, to add the words "wild ducks."—(Mr. William Ormsby Gore.)

Question put, "That those words be there added."

The Committee divided:—Ayes 64; Noes 53: Majority 11.

MR. W. R. ORMSBY GORE

proposed that the word "deer" should be included in the clause.

MR. BAGSHAW

objected. In some parts deer ran wild over the country, and often did great damage to the crops of poor people.

MR. M'MAHON

asked if deer were not already sufficiently protected?

MR. O'HAGAN

said, that deer in a gentleman's park were protected.

MR. W. R. ORMSBY GORE,

in referring to the Act of William III., found that deer were sufficiently protected. He would, therefore, withdraw his proposal.

Amendment, by leave, withdrawn.

Clause agreed to.

Clause 4 (Act to extend to Ireland only) also agreed to.

MR. W. R. ORMSBY GORE moved the following clause in lieu of Clause 2:— Where the landlord or lessor of any land has reserved to himself the right to the game on such land, or where the occupier of any land shall hold the same as tenant from year to year, without a right to the game having been duly given to him by some writing, then such landlord or lessor for the purpose of prosecuting all persons for trespassing in pursuit of game on such land without his consent, shall be deemed the legal occupier of the said land; and any person who shall enter or be upon said land in search of or in pursuit of game without the consent of such landlord or lessor, shall be deemed a trespasser, and shall on conviction thereof before one or more justices of the peace, sitting in petty sessions, forfeit and pay such sum not exceeding 40s., together with the costs, as the said justice or justices shall think fit; and such penalty and costs shall be recovered and levied in the same mode, and with the same power of appeal, as are provided for the recovering and levying of any penalties under the Petty Sessions Act of the 14 & 15 Vict. c. 93, and the Petty Sessions Act of the 21 & 22 Vict. c. 100, and as if the provisions in said acts relating to the recovery of penalties were herein expressly repeated.

Clause (Definitions of "legal occupier" and "trespasser."—Penalties for such trespass,"—(Mr. William Ormsby Gore,)—brought up, and read 1o; 2o.

MR. BAGWELL

opposed the clause, on the ground that there might be more than one person interested in the property who ought to have equal rights.

MR. O'HAGAN

apprehended that, in such a case, the clause would not apply. It could only be brought into operation in cases where the landlord or lessor possessed an exclusive right.

MAJOR STUART KNOX

asked if the clause would affect Church property.

MR. O'HAGAN

thought that it would not apply to property of that description.

Motion made, and Question put, "That the Clause be added to the Bill."

The Committee divided:—Ayes 103; Noes 27: Majority 76.

House resumed.

Bill reported; as amended, to be considered on Friday. [Bill 195.]