HC Deb 05 March 1867 vol 185 cc1388-97

MR. M'LAGAN moved for leave to bring in a Bill to amend the Laws relating to the preservation of Game in Scotland. He said, its object was to remove some of the causes of that discontent about game which, not unreasonably, in many instances prevailed among the tenantry of Scotland. Of late years several circumstances had tended to increase that dissatisfaction. The relationships between the different classes connected with land had been considerably modified. The modern system of farming rendered a farmer more subject to loss and annoyance from game. Rents had risen, and farming had been conducted on more strictly commercial principles. The palmy days of farming were past, and the tenant was obliged to calculate on every small return he might obtain from his outlay; this being the more necessary, when this annual outlay on manures and feeding stuffs often exceeded the rent paid to the landlord. Cotemporaneously, however, with this increase of rent and expenditure, and diminution of profits, there had been an immense increase in game, caused by excessive preservation, and if to these causes of dissatisfaction were added the difference in the mode of conducting the sport from that in which it was formerly carried on, the discontent which prevailed could be no matter of surprise. Formerly the sportsman, content with a moderate amount of game, rejoicing in the healthful exercise which he was obliged to take in pursuit of it, and knowing that he had always the goodwill of the tenant on whose farm he shot, was always sure of a pleasant day's sport, and never forgot to give a kindly greeting at the farmhouse and deposit some of the spoils of the day. Now, however, in too many instances, the object of the sportsman appeared to be to have a large bag with as little trouble as possible. For months the game had been strictly preserved; and at the proper time he sallied forth accompanied by his keepers, his beaters, his dogs, and the game cart. A wholesale slaughter took place, and the game cart was filled and dispatched to the nearest poulterer or game dealer, without the slightest acknowledgment to the tenant on whose crops the game had been reared. Irritating as such conduct must be to a tenant of spirit, even when the sportsman was the proprietor of the lands, it was still more so when he was a stranger, who, paying a rent for the game, endeavoured to reimburse himself by selling most of what he shot. No wonder a tenant felt discontented when he saw the fruits of his great outlay, his anxieties, his skill, and his labours not merely eaten up, but destroyed by animals which he himself had not the power to keep within reasonable bounds, and which were a source of income and profit to another. It was said, however, that a tenant had no cause of complaint, since, when he took his farm, he agreed to conditions reserving the game to the landlord, and depriving himself of nil claim to compensation on account of any injury done to his crops by that game, some leases, indeed, the tenant was converted into a gamekeeper, and was bound to preserve game and to prevent poachers entering on his farm. The following is a specimen of the game clauses often inserted into leases in Scotland:— As also reserving the whole game, deer, fish, rabbits, and wild fowl, which now are, or may hereafter be, upon any part of the said lands with the exclusive right of hunting, &c.; and that, notwithstanding of any alterations or modifications that may take place in reference to the laws for the preservation of game; and the tenant is hereby taken bound to warn off said lands all unauthorized persons who may be hunting, fishing, shooting, or trespassing thereon. And the tenant and his servants and dependents are hereby prohibited from keeping any dog or dogs on the farm, except one collie or sheep-dog, which dog shall not be allowed to go at largo or to go about the fields unless accompanied by the shepherd, and then only for the purpose of tending the sheep; and any dog found at large or following game, the keeper shall be entitled to shoot or otherwise destroy, and the tenant shall have no claim or recourse there for against the proprietor or his keeper, and the tenant shall not be entitled to carry a gun on the farm, except for the purpose of scaring crows or wood pigeons, which gun shall not be loaded with shot, and the keepers shall be entitled to satisfy themselves on any occasion that said gun is not loaded in contravention of the stipulation. Moreover, the servant of the tenant shall not be entitled to carry a gun on any pretence whatever; but the tenant shall have power to furnish one of his servants with a short pistol for firing powder only, for the purpose of searing crows, &c. So that a tenant is not allowed to keep that most companionable of animals, a Scotch terrier. But before condemning them for signing clauses so derogatory to their position as independent yeomen and as men of intelligence and capital, it should be remembered that there was at present a very great competition for farms, owing to many who had made money in other occupations becoming com- petitors for farms. Moreover, these clauses were stereotyped and unalterable in the leases of many estates, and were till recently, and even now, in some instances regarded by competitors for farms as mere formal sentences which, owing to the great competition, they were inclined to overlook or consent to. They were induced the more readily to agree to them, because, on examining the farm with the view of giving an offer for it, they observed no unusual number of game, and trusted to the honour of the landlord that, at all events, there would be no increase of it so as materially to damage their crops. It had been argued that a tenant on looking over a farm should have satisfied himself as to the amount of game on it; but this was impossible, for, at particular hours of the day, the game retired to the covers, or might, for the occasion, be driven off the farm by the keepers. He knew a case where a tenant, himself a sportsman, having year after year had fields of turnips destroyed by the deer and hares, complained to the landlord of the superabundance of the game, and the landlord, who lived at a distance, resolved to have a day's shooting on the farm to reduce the numbers. An intimation was sent to the keepers, but when the landlord made his appearance very little game was seen. The tenant afterwards discovered that previous to the arrival of the landlord, the keepers had driven the game off the farm, so that their master might not have cause to complain of their excess of zeal in preserving it, In too many instances, indeed, the keeper was the sole or main cause of disagreement between landlord and tenant; and so great was the damage done to a tenant's crops, that he was under the necessity of giving up his farm if the evil were not soon remedied. It was alleged by some that the damage done to the crops by game, even on strictly preserved estates, was immaterial. Such, however, was not the opinion of gentlemen well qualified to judge. He knew a case in which the damage done to the crops and the expense of protecting them from the game on a farm of 560 acres amounted to upwards of £900 for the last two years. The late Mr. Pusey, once a Member of the House, and an eminent agriculturist, gave evidence before a Select Committee of the House on the Game Laws, about twenty years ago. He said that he was once a strict game preserver; but, seeing the evils that arose from the system, he discontinued it, and by so doing, he had more satisfaction in the farming of his estate, and his tenants were more contented. His principal reason for ceasing to preserve game was that he was convinced the farmers had grounds for complaining of the quantity of game that was kept, and of the injury which their crops suffered from hares and rabbits. He also stated that game had become a source of serious loss and annoyance to tenants in those parts where it was highly preserved, and that the landowners would find great advantages from relaxing the protection, or abandoning it altogether. This evidence of Mr. Pusey was corroborated by that of Lord Hatherton, given before the same Committee. His Lordship was at one time a strict game preserver, before he became an extensive improving farmer, when he had seldom less than 2,000 acres of land under improvement. He stated, in evidence, that a very extensive and strict preservation of hares and rabbits was most injurious to land in every way, and he found that to pursue the two occupations—a rigid preserver of hares and game generally, and an improver of his land by planting and farming—was perfectly incompatible. He soon found, as a farmer desirous of introducing among his tenantry and into the neighbourhood a better system of cultivation, that it was utterly hopeless to do so unless he completely destroyed the hares. And, again, he should have thought it perfectly idle to invest capital in the improvement of land if he had not the power of destroying hares. The Duke of Grafton also stated, before the same Committee, that he had destroyed all the hares on his estate in Suffolk on account of the injury they did to the crops of the farmers. Sir Harry Verney also stated it as his opinion that the preservation of game in great abundance was a serious discouragement to good farming. All practically acquainted with agriculture agreed in the opinion of these noblemen and gentlemen that the animals most destructive to the crops of the farmer were the hares and rabbits. It was most difficult, if not impossible, to estimate the damage done by hares, for their depredations were not confined to one place, but extended sometimes for miles; and it was not so much what they consumed as what they destroyed. He had seen a field of turnips destroyed during frost by the hares passing along the rows and taking a bite out of almost every turnip, thus exposing it to the frost and rendering it useless. He had seen fields of grain cut up with their roads and the ground strewn with the heads of grain which had fallen from the straw being gnawed through at the joints by these pests. He had seen fields nearly ready for harvest trampled on and beaten to the ground by them in their mischievous gambols. He had seen a young plantation of firs irreparably injured by the tops of the finest plants being cut off by them. He had seen pastures so polluted by their manure that more useful animals refused to graze on them. He knew some farms where certain crops, such as winter vetches, could not be cultivated. His observations and experience had led him to the same conclusion arrived at by Lord Hatherton—that the preservation of hares and the improvement and the proper farming of land were incompatible. Various estimates had been given as to how many hares were equal to one sheep in the amount of food destroyed by the one and consumed by the other. The estimates had varied from two to six and eight hares for one sheep; and he was certain that, if he took into account the damage done to the different crops mentioned, the lowest estimate would be much nearer the truth than the highest. He recently read of an estate in Aberdeen-shire on which 30,000 rabbits and 1,400 hares had been destroyed annually for the last twenty years. Suppose that three rabbits were equal to two hares, and four hares to one sheep, and that there must have been fed on the estate at least double the number annually destroyed, we had a number of hares and rabbits kept constantly on that estate which would be equivalent to about 11,000 sheep. The estate contained about 6,000 arable acres, about 3,000 acres of hill pasture, and about 5,000 acres in wood. Thus, there would be as much food destroyed by hares and rabbits on that estate as if nearly two sheep were kept on each arable acre, or about one and a quarter on each acre in cultivation and in hill pasture. Lord Hatherton, in his evidence before the Committee, stated that— He would be extremely glad to see hares taken altogether out of the class of game, and put on the same footing as rabbits. He believed it would correct a great amount of evil, affecting material interests both of tenant and landlord, and affecting the moral condition of the lower orders; and it was the simplest and greatest improvement that could be made in the Game Laws. Fully sympathizing in these views, he proposed that hares and rabbits should be dropped from the game list. He knew that some of his friends considered that this was going too far; but he was ready to consider favourably any Amendments that might be proposed in Committee, provided the tenants' interests were protected, and no encouragement was given to poaching. It might be said that rabbits were not game; but they were included in the Act 2 & 3 Will. IV. c. 68, or the Day Trespass Act; in the Act 9 Geo. IV. c. 69, or the Night Trespass Act; and also in the Act for the Prevention of Poaching of 1862. He proposed, next, to abolish cumulative punishments—that was, punishments imposed by several statutes, under each and every one of which a person might be prosecuted and convicted for one single act. Contrary as this was to the principles of justice and jurisprudence, and opposed as it was to the spirit of our laws, it was still true. For instance, under the Game Qualification Act of 1621, no man could hunt or hawk, "who hath not a ploughgate of land in heritage" under a penalty of £8 6s. 8d. A ploughgate varied from fifty to 100 acres, so that not a few Members of this House rendered themselves liable to be punished when enjoying their autumnal sports on the Highland hills. Then if the unqualified person committed the offence, or wilfully took, killed, destroyed, or had in his possession any moor fowl or ptarmigan out of the proper season—that is to say, between the 10th of December and the 20th of August, he was liable to be fined both £8 6s. 8d., under the Act of 1621, and £5 for each bird he killed or had in his possession, under the Act 13 Geo. III. c. 54, and at the same time to forfeit his gun under the Act 1707. Further, if he were a trespasser, and he was convicted before a justice of the peace of being in the pursuit of game between the beginning of the first hour before sunrise and the end of the last hour after sunset, he would forfeit and pay £5, or in default be imprisoned under the Day Trespass Act, 2 & 3 Will. IV. c. 68. But if he were convicted of being in the pursuit of game between the expiration of the first hour after sunset and the beginning of the last hour before sunrise, the trespasser would be visited for the first offence, under 9 Geo. IV. c. 69, or the Night Trespass Act, with imprisonment with hard labour for three months; and he would be bound to find caution for £10 that he would not trespass again for one year; or, if he could not find caution, he must suffer imprisonment with hard labour for an additional six months. For a second offence the penalty is doubled, and for a third offence he might be transported. And lastly, if the trespasser had not taken out the game certificate, he would have the punishment imposed on him under the Game Certificate Acts. The next clause of the Bill dealt with the tribunal before which all offences against the Game Laws were tried. At present, these were all within the jurisdiction of the justices of the peace. In nine cases out of ten the justices before whom these offences were brought were game preservers, or, at all events, being proprietors of land, were interested in the supply of game being kept up. It was very like appointing a man to be judge in his own case. Under the Day Trespass Act a trespasser was liable to be brought up, and, on the oath of the gamekeeper, to be convicted before the master of the keeper, who was at the same time the proprietor of the land on which the trespass was committed. Every gentleman acting as a justice of the peace under the circumstances would conscientiously discharge the duties which the law had imposed on him, and would endeavour to decide according to the Act. But he could not change human nature, and it could not be denied that a game-preserving justice was very apt to be prejudiced against a poacher; and the sentence, even if according to law, might on that account be unduly severe. This appointing a man to be a judge in his own case was, fortunately, quite an anomaly in our legislation, and quite at variance with the spirit of all recent enactments. No road trustee, who was generally a justice of the peace, could act at quarter sessions in an appeal from a meeting of road trustees of which he was a member. No occupier, or father, son, or brother of an occupier, could act as a justice of the peace under the Factory Act; no coal master or tenant of coal works under the Mines Act; no miller or baker under the Bread Act; and no brewer under the Licensing Act. It was proposed to remove all Game Law cases from the jurisdiction of the justices of the peace to the sheriffs of the county in which the offence was committed, who were somewhat similar to the County Court Judges in England. This met the wishes of many justices of the peace, who were desirous of being relieved of what to them was an invidious and irksome task. In most leases there was a clause reserving the game to the proprietor, and frequently there was such a large increase of game during the currency of the lease as to involve a serious loss to the tenant. At present, the tenant had his remedy at law if he had not signed some foolish clause depriving him of his rights. But litigation was generally so expensive, from each party having a right to appeal to a higher court, that few tenants were willing to raise an action for damages from game. The clause provided that the amount of damages in cases of injury caused by increase of game during the currency of the lease should be determined by the sheriff, whose decision should be final. An objection was made to this clause, that the increase of game might have been caused, not by the landlord of the tenant suffering the injury, but by a neighbouring proprietor. It was not difficult to distinguish a game-preserving landlord, who would encourage an increase of game, and one who was contented with a moderate amount of game; and the decision of this point might safely be left with the sheriff. He proposed that there should be a reservation of the rights under all existing game leases, and that the Act should not extend to England. He asked the House to consider the provisions of the Bill in a fair, generous, and conciliatory spirit, remembering that if any concessions were to be made, they must be made by that class which was most powerfully represented in that House to a class whose peculiar interests were but poorly represented. He trusted he had said nothing that would tend to stir up class against class, or to increase the heart burnings which, unfortunately, in too many instances existed between landlords and tenants on account of this question. His object had been, not to widen but to repair the breach between them. He might have detailed many cases of great hardship to the tenant from excessive game preservation; but he only touched on these, preferring to leave his case more to the love of justice and the generosity of the landlords. Legislation could do much in this question, but liberal concessions in private agreements could do quite as much. Let them not be too tenacious of their rights when these operate to the loss of others and the injury of the country. Among no classes of the country was it so desirable to have an amicable understanding as among those connected with the land, for upon a thriving and intelligent tenantry, and a contented and educated peasantry, depended the prosperity of the landlord and the success of agriculture.


said, the general provisions of the Bill ought to be accepted by the tenant farmers of Scotland as a satisfactory compromise on the game question. In some respects its provisions went too far. In others it did not go far enough; for instance, it did not propose any settlement of the vexed question of game preserving clauses in leases. But it grappled with the question, and was worthy of support. Public opinion in Scotland was very strong against game preserving, and it was very desirable that the provisions of the measure should be discussed in that country, whether the Bill passed or not, as it would pave the way to future legislation. It might appear a miserable question to engage the attention of Parliament; but he could assure the House that in many counties in Scotland it was driving the tenants to desperation. He trusted that something would be done to put an end to the present state of affairs with reference to the preservation of game in Scotland, and restore that good feeling between landlord and tenant which was so essential in a country district for the welfare of every one.


said, he wished to thank his hon. Friend for a Bill which appeared to be plain, simple, and admirably adapted to the end in view. Legislation on this subject was absolutely necessary, and some measure like the present would greatly benefit the agricultural interest in Scotland. His hon. Friend had not exaggerated the frightful damage inflicted by hares and rabbits in some parts of the country. He hoped there would be no opposition to the passing of the Bill.


trusted the Bill just introduced by the hon. Member for Linlithgowshire would be favourably received by the House, calculated, as it was, in some degree to meet the grievance under which so many of the tenant farmers in Scotland were now suffering; and to allay that painful and increasing agitation arising from the excessive preservation of game; and by its systematic sale exacting a second rent from the tenant. He hoped that there would be little difference of opinion as to those provisions in this Bill by which the jurisdiction in game cases was transferred from justices of the peace to the sheriff or sheriff substitute, and giving to the same authority power as to the valuation and payment of damage from the increase to an unreasonable extent of game. As there would be other opportunities for its discussion in the progress of this Bill, he would only ask of the House its support of a measure essential to the prosperity of both landlord and tenant.

Motion agreed to. Bill to amend the Laws relating to the preservation of Game in Scotland, ordered to be brought in by Mr. M'LAGAN, Sir WILLIAM STIRLING-MAXWELL, and Mr. FORDYCE.

Bill presented, and read the first time. [Bill 65.]