HC Deb 21 May 1867 vol 187 cc902-15

Order for Second Reading read.


, in moving that the Bill be now read the second time, said, that as he had addressed the House at some length in asking for leave to bring in the Bill he need not now detain them at any length. There had been few objections to the principal clauses of the Bill. The proposal that the jurisdiction should be taken from the Justices of the Peace and given to the sheriffs, and that the decision of the sheriffs should be final, had met with general approval. The objections which had been raised were to the 3rd clause, which proposed that hares and rabbits should be struck out of the game list. By doing this, it was said, poaching would be encouraged, and trespassing would also be increased. But those who made this objection seemed not to be aware that there existed in Scotland a very stringent Trespass Act, which provided that anyone who leaped a fence, or who made his cattle or horse leap a fence, shall be fined £10 Scots; and if this law was not sufficient to prevent trespassing, there was another mode of preventing it, quite irrespective of the Game Laws, and that was by taking out an interdict against the trespasser. Now, if he had to choose between the present Game Laws and the interdict, he would choose the interdict as the more stringent of the two. But he did not propose to repeal the Game Laws by this Bill. They would be as much in force as ever. His great object was to reduce the number of hares and rabbits. It was not these animals that poachers went in search of, they preferred higher game. Besides reducing the number of hares and rabbits, the Bill would have the effect of improving the relationship between landlord and tenant, and putting an end to excessive game preservation, which was calculated to prevent the progress of agriculture in those districts in which it existed, and tenants were not inclined to invest that amount on their lands which they would otherwise do. He trusted, therefore, considering all the circumstances of the case, the House would consent to the reading of this Bill a second time. He did not wish to see the game in the country exterminated. His desire was that there should be a sufficient number to afford fair and legitimate sport; and for this reason he asked for this small concession from the landlords. And let them remember that a timely concession was always a wise step. The resistance to just demands but increased the opposition. He asked the House to assist him in putting down a system which was unjust in itself, a temptation to the poor, an agricultural grievance, and a national loss.


, in seconding the Motion, said, that the question of the Game Laws in Scotland had reached that point at which some legislative interference was necessary; and he thought that satisfactorily shown by the fact that there were before the House two Bills, one proposed by the hon. Gentleman the Member for Linlithgow, and the other by the noble Lord the Member for Haddingtonshire (Lord Elcho), proposing to deal with this question. No one seemed to suppose that the existing state of the law could long continue, and be feared that unless it were settled, and settled speedily, the dissatisfaction now arising between the landlord and tenant, and which was now only commencing, would increase to a degree that all would be sorry to see. Therefore, he thought it their duty on this occasion to take the two Bills before the House, and consider which was the most deserving of support. The tenant-farmers in Scotland were the class most particularly interested in this question, and they had worked very hard to bring it under the attention of the House, Looking at their general knowledge and at the petitions that had been presented, they could come only to one result — namely, that there was a general preference for the Bill of the hon. Member for Linlithgow; and there was no doubt why that preference was so strongly expressed. The grievance these tenant-farmers complained of was the destruction committed by the hares and rabbits, and the remedy was provided in the 3rd clause of the Bill, which struck hares and rabbits out of the game list. It did not follow that if this clause was adopted, therefore hares and rabbits would be extirpated. Their numbers would no doubt diminish, and this was a concession which ought to be made to the well - grounded grievance of the tenant-farmer. He should therefore cheerfully support this Bill on two grounds—first, that it was calculated to do good in its provisions; and secondly, it was the Bill of the two which was calculated to afford a settlement of the question.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. M'Lagan.)


said, the subject of the Bill was undoubtedly one of the greatest importance, and also one of very great difficulty. The Bill related to a question between landlord and tenant — not to any question between the landlord and the public. After the best consideration that he had given to the subject, it appeared to him that this Bill and the Bill of the noble Lord the Member for Haddingtonshire (Lord Elcho) should be referred to a Select Committee, in order that they might see whether, without unduly interfering with the contract between landlord and tenant, some relief could not be given in what were in some cases undoubtedly very great and perhaps growing evils. But he could not help thinking that this question of landlord and tenant could only be satisfactorily settled by good feeling between them. His hon. Friend the Member for Renfrew said he thought this a subject for legislation; and to a certain extent it might be so. But no legislation would regulate the relations between landlord and tenant half so well as mutual co-operation and mutual respect. Those alone could secure the results which they desired to see; and he thought the very worst thing to do in the relation between landlord and tenant would be for the law to interpose between the agreements which landlord and tenant might choose to make. Neither could he suppose that the hon. Gentleman (Mr. M'Lagan) was altogether opposed to game preservation. Whatever else might be said of it, the love of sport, and all that sport implied, had been of more benefit to Scotland than to almost any other country. It had enlarged their markets, brought an influx of many persons who would not otherwise have come, had brought a great deal of traffic to Scotland which was not there before, and had been of great benefit. It would therefore be a great mistake to make an onslaught on the Game Laws. The love or the power of sport kept proprietors or occupiers resident. On the other hand, sport should be sport — and it seemed to him that the present complaints had arisen from spoiling sport; but they could only look for a remedy for this by the good sense and good feeling of the people. As regarded the Bill, in the first place he objected to it because it was a Bill eminently in favour of the poacher. The adoption of the proposition to take hares and rabbits out of the game lists would be tantamount to extirpating game. It would be impossible by the mere law of trespass to prevent a poacher coming upon land for the purpose of taking game. The result would be that night poaching, especially in some districts, would become so prevalent that the preservation of game would become impossible. The crops of the tenants, too, would become more damaged by the depredations of the night poachers than by the swarms of hares and rabbits which might abound in their neighbourhood. He agreed with his hon. Friend opposite that it would be right to give the tenant a power of keeping down hares, for by that method he was convinced the tenant would become his own game preserver. There was one provision in the Bill which he thought would be very useful, and that he would strongly recommend for adoption, and that was removing these kinds of cases from the justices to the sheriffs. It was impossible not to say that the mode of deciding cases between landlord and tenant, in which the landlords alone were judges, could not be good. He would, moreover, suggest that, to prevent litigation between landlord and tenant, in case of damage being committed, the amount of that damage should be estimated by a valuator, to be appointed by the sheriff. He thought that with much that was valuable in the Bill there were also some other matters that merited stricter inquiry, and it was his intention to move at the proper time the reference of this and another Bill upon the same subject, also on the Paper, to a Select Committee.


said, he had intended himself to propose the reference of the two Bills to a Select Committee. His intention arose from no hostility to the measure proposed by his hon. Friend. He thought his hon. Friend had done quite right in bringing this Bill before the House, although he did not believe his proposals were those which it was most advisable to adopt. It seemed to him that the right hon. Gentleman, the late Lord Advocate, hit the right nail on the head when he said they must look more to public opinion than to legislation. He (Lord Elcho) remembered when he first put up as a candidate in 1847, a gentleman came down from London to oppose him on the subject of the Game Laws; and from that time up to the present the subject had been more or less discussed, and he did not know whether it was in consequence of the subject being discussed at farmers' clubs, but latterly there had been more discussion, and it was now considered that something should be done. But he strongly thought that the hon. Gentleman in his mode of dealing with the question was not on the right tuck, and he had ventured in his Bill to take a different tack, though he had the same object in view. His hon. Friend proposed four clauses, of which three were in favour, not of the farmer, but of the poacher. One of those clauses removed hares from the Game Law, so that a man might destroy hares on another man's land without being prosecuted for killing game. The usual jurisdiction was abolished not in the interests of the farmer, but of the poacher; and the same might be said of the abolition of the cumulative penalties. Whatever his hon. Friend might say, there could be no doubt that if the law of trespass were the only remedy provided, the damage to the crops would be serious, and the result in the neighbourhood of large towns perfectly terrible. The first to complain of the alteration in the law would, he believed, be the farmers themselves. They had heard a good deal lately, in connection with Hyde Park, about the impossibility of putting the law of trespass into operation, and it would be absurd to imagine that an interdict could possibly be taken out at the quarter sessions against a poacher. As an instance in support of his argument, he might state that an hon. Baronet, a Member of that House, possessed a large estate on which he did not preserve the game. That hon. Baronet received a petition from his tenants asking him to preserve the game and employ keepers, because their lands were overrun with poachers. In America, where there was no lack of freedom, stringent laws were made in each State not only for the preservation of game, but even for the preservation of small birds; and in France, though a permit de chasse could be obtained from the Prefect of a district—who declares when the season opens and when it closes — the person so licensed could shoot only on grounds where he had the permission of the owner, and if he pursued game elsewhere he could be brought before the nearest magistrate, and his gun would be confiscated. He maintained, therefore, that his hon. Friend had not adopted the right way to deal with this question in the Bill which he had brought before the House. His own Bill, on the contrary, had been framed on a different principle. The law of England vested the game in the occupier, and the law of Scotland in the owner of the soil. As the occupier of the land was the one who suffered from any depredations that might be committed, he proposed to give him the control of the game, and thus to assimilate the law of Scotland in that respect to the law of England. He proposed to give the owner the right to enter and kill game. This had been criticized as inconsistent, and as making a difference between the law of England and that of Scotland; but if the object were to diminish game, there could be no objection to the landlord helping the tenant. His Bill would not effect much, but it would put the tenant in a better position. Legislation could not do much as between landlord and tenant. In a letter to the tenant farmers of Great Britain the hon. Member for Birmingham had said— No change in the law can do as much for you as you may do for yourselves. At present the right to the game is in your hands, unless you consent to transfer or reserve it to your landlords. When you take a farm, and you give up the full control of all that lives upon it, you sign over your own subjection to the system against which you so loudly and justly complain. This was the truth of the question; it was entirely a matter of arrangement between landlord and tenant. The hon. Member for Aberdeenshire (Mr. Fordyce), whose name was on the back of the Bill, had led the tenantry of the country to believe he was prepared to go further than it did, to regulate contracts, and perhaps to prevent landlord and tenant entering into any private contract for the preservation of game. The hon. Member had wisely abstained from attempting to give effect to his views. The question of jurisdiction in poaching cases was one which he had carefully avoided in his Bill, because he did not wish to overload it. He hoped that the two Bills would be sent before a Committee, and that the result would be the production of a Bill that would do away with much of the unkindly feeling that existed between landlords and tenants. He admitted that the hare was a social evil in Scotland now, in that it caused so much bad blood; but his own feeling was that this was a question of private agreement and that it could be settled without coming to Parliament at all, first by not preserving to the extent that was done in some places, next by landlords agreeing to give their tenants hares and rabbits, on the understanding that the tenants will help the landlords to preserve the winged game.


said, the hon. Member for Linlithgowshire (Mr. M'Lagan) had reason to congratulate himself on his success in bringing the subject before the House. The support he had received showed that the Bill was in many respects a reasonable Bill, and only one opinion had been expressed as to the able manner in which it had been introduced. He would advise his hon. Friend to accept the proposal made by the right hon. Member for Edinburgh to refer the Bill to a Select Committee. If it were necessary to decide between the two Bills, he should have no hesitation in voting for the Bill of the hon. Member for Linlithgowshire, but if the Bills went upstairs a Committee might make out of the two a better Bill than either was by itself. The preservation of game had been in many parts of the country a great grievance to the farmers, and therefore, in the name of his constituents, he thanked the hon. Member and the noble Lord for bringing the subject before the House.


said, the tenantry of England had no wish to see the Game Laws entirely repealed; nor were they opposed to fair and legitimate sport. It was almost impossible to preserve too much winged game, for they were hardly any injury to the fanner, except when a preserver bought a large quantity of eggs—they were probably his neighbour's, and possibly his own — and had them hatched close to a tenant's corn or grass. In that case the damage might be considerable from the quantity of grass or corn trampled upon and destroyed. It was impossible to have too many partridges; they might harass late wheats or early peas; but they lived on insects for so large a part of the year that they did, on the whole, far more good than they did harm. The best way of preserving winged game was to allow tenants to have the control of the foot game. He had that morning received a letter from an extensive land agent and successful farmer in Norfolk, who was convinced that ground game ought not to have a right to legal protection. We had in England no officer corresponding to the sheriff in Scotland; but, generally speaking, the great bulk of the English public were satisfied with the administration of the Game Laws by the magistrates, believing that they tempered justice with mercy. If they did not, the press and public opinion would soon make them do it. He believed the magistrates, as a body, would be glad if these troublesome Game Laws could be administered by some other authority. The first time he sat on the bench a stupid man pleaded guilty to looking after a rabbit and was fined 6d., but the costs amounted to nearly £1. The man could not pay and was sent to prison, and his wife and children became chargeable to the parish. That was the fault of the law itself, and not of those who administered it. Both Bills before the House proposed remedies for the increase of game during existing tenancies. In England they had few leases; but it was quite possible for a yearly tenant to enter upon and improve a farm that was comparatively free from game, and afterwards, at the whim of his landlord, or change of owners, he might be eaten up and half ruined. There was an estate in Norfolk in which the public took great interest. Some five or six years ago, when this estate passed into the hands of the present proprietor, there was hardly any running game. The farmers had leases, but the hares and rabbits now swarmed to such an extent that no food was left for the support of the tenants' flocks, and during this winter even the underwood was eaten and the timber barked. But he had yet a stronger case to illustrate the evil. Soon after the purchase of the estate one of the leases fell in, and, in order to be correct in his statement, he would, with the permission of the House, read an extract from a letter he had received from a widow lady, a tenant on the estate. In 1862 the agent was very pleased to secure a man of character, education, and capital, to take this farm. He expressed a wish to see our banker's book, to make sure we had funds for the purpose. The rent was fixed at a high rate, and there was hardly a hare to be seen upon the farm; and, in answer to my husband's inquiries upon that point, he was assured he would never be injured by game. The gentleman referred to unfortunately died in 1865, having during the last few months of his life expressed his uneasiness at the alarming increase of hares. Still they multiplied, and in the spring of 1866 his widow addressed a note to the agent, stating that, after expending some thou- sands on the farm, she, for the first time, expected some return, and now the hares were destroying everything. But the foot game was not killed, and this lady writes— The agent consented to have the damage valued. The valuation was drawn up by a gentleman chosen by the agent himself, and overlooked and approved by another of the most practical farmers in the neighbourhood; so that I naturally expected to receive a cheque for the same, but regret to say I have been informed the valuation is to be set on one side, and have been offered less than half the amount on the plea that, after all, it is at the option of the landlord to do as he pleases in such matters.


What was the amount of the valuation?


The damage was valued at £575, and the offer was £250.


What was the extent of the farm?


About 800 acres. Now, if this was the way enterprizing farmers were treated on the estate of such a landlord, what could they expect from small and needy landowners? It was quite time, in his opinion, that tenants should have some legislative protection which would prevent them from being ruined by such an increase of game. He should have great pleasure in supporting the second reading of the Bill.


said, that he was not one of those who expected much good to result from legislation on the subject of the game grievance. The only enactment going to the root of the matter would be one making contracts for the preservation of hares and rabbits on arable land illegal, and though he was personally in favour of this, he did not think it had any prospect of passing this House. At the same time, he believed the Bill of the hon. Member for Linlithgowshire would effect a sensible mitigation of the evils complained of. His proposition was to take hares and rabbits out of the list of game, and place them in the position of rats and mice and other vermin. And why should they not? It had been said that this was equivalent to handing over the game to the poacher; but, in the first place, it should be kept in mind that the proposition only extended to hares and rabbits; and in the second that persons found would still be liable under the Day Trespass Act as trespassers in pursuit of game. No doubt it would still be in the power of proprietors to insert game clauses in leases; but the advantage to the tenant would be that for a breach of such, he could be treated civilly. The other provisions of the Bill were equally satisfactory. Great dissatisfaction was felt in Scotland at the way in which justice is administered in regard to the Game Laws. With regard to the Bill of the noble Lord (Lord Elcho) the tenant farmers had paid little attention to it, believing it to be trifling with the question. He should like to have heard from the noble Lord the reasons which had induced him to propose to make deer game, but had listened in vain to his speech, For his own part he would strongly recommend the hon. Member for Linlithgow to adopt the suggestion of the right hon. Member for Edinburgh, and to have both Bills sent to a Select Committee. He did so with regret, but only because he perceived if this course was not taken, the Bill of the noble Lord would, in all probability, pass, which he should regret still more.


said, he should be sorry for it to go forth that all Scotland was labouring under an over-preservation of game. He had recently attended a county meeting at which it was stated that game, instead of being exterminated ought to be encouraged; in his county and in the county of Stirling the tenants were not at all unwilling that a reasonable quantity of game should be kept up; while, on the other hand, it was not the interest of the landlords to keep up an unreasonable quantity, and so depreciate the agricultural value of their estates. He agreed with the hon. Member for Norfolk (Mr. Read) that winged game rather benefited than injured the crops. He recollected a case where a noble Lord, when shooting on the land of a tenant who complained of the quantity of game, opened the crop of one of the birds, and showed that it was full of beetles. Under these circumstances, if that House came to the conclusion that it was necessary to legislate for the reduction of game, he hoped that they would exclude winged game from the enactment. He was sorry to hear the remarks of hon. Gentlemen opposite as to the change of jurisdiction from the justices to the sheriffs. He did not think anything had occurred to justify them in throwing a stigma on the Justices of the Peace, who acted, he believed, conscientiously, and in accordance with what they believed their duties demanded. County justices were, the greater number of them, persons residing in the towns, such as agents of banks, gentlemen in charge of estates, and professional writers; and it was very rarely, indeed, that the gentry came on the bench when poaching cases came before it. All knew that the Justices of the Peace in England did their duty efficiently and well. Why do not the justices in Scotland get the same mete of praise? He trusted there would be no interference with the jurisdiction of the justices in Scotland.


said, he did not see why this discussion should be prolonged, as they all seemed agreed that these Bills should be sent to a Select Committee. He merely rose to say that, in the district of burghs which he had the honour to represent, a district closely contiguous to a part of the country to which the hon. Member had referred, there was, at the last election, much feeling expressed in favour of some legislation with respect to game, and, if it were necessary now to go to a division, he should certainly vote in favour of the Bill of the hon. Member for Linlithgow.


said, the question had been treated as one solely between landlords and tenants. But the State was also interested, first, in preventing such a multiplication of game as would furnish temptation to crime, and so increase the criminal classes; and secondly, in seeing that land was properly cultivated. Thirty years ago in this country the right of property in game was not admitted at all. The State reserved to itself the same dominion over game which our Norman Conquerors had asserted. Even now the owner and occupier enjoyed only a qualified right to destroy the game; and as the rights of the State had never been surrendered, it was open to the State, without injury to private rights, to abandon the game to anybody who chose to kill it.


said, he could not admit the truth of the statement which had been made in the course of debate, that the administration of the Game Laws by the magistrates in England was satisfactory. On the contrary, he believed that the administration was eminently unsatisfactory to the people at large. No doubt the magistrates did their duty conscientiously; but the public naturally ascribed to those interested in the administration of the Game Laws an undue bias as owners and game preservers. The whole subject of the Game Laws, whether in Scotland or England, was one which it would be well to refer to a Select Committee. As between landlord and tenant, he agreed that it was more a question of contract than a question for legislation. The chief object of the Game Laws was the protection of the tenant against the poacher. They had been lately told that in Wales they did not know the difference between a squirrel and a fox. At any rate the people there knew very well what a hare was, and poachers would rather have a hare than a pheasant. If you removed the protection which the tenant had against the poacher, especially in the neighbourhood of large towns, and allowed the poacher to go over the farmer's ground in pursuit of hares, you would never have a proper system of cultivation.


said, he quite concurred in the propriety of referring the Bills to a Select Committee, provided they had efficient trespass laws. For his own part, he should have no objection that hares and rabbits should be no longer game. In Scotland the Law of Trespass, which dated back to 1600, was quite unworkable and required alteration. As to the jurisdiction of the justices in these cases, he should have liked to hear some better ground alleged for the proposed change in this respect, and could not help thinking that it would be an undeserved slur upon the justices to transfer this jurisdiction to the sheriffs. He approved generally of the proposal to give the tenants greater facilities than they now had for recovering damages from the landlords. He hoped that out of both Bills might come useful legislation.


said, he hoped the law of Scotland on this subject would be assimilated to that of England. He held that the English Jaw was right, and that everything should be let with a farm, when there was no express provision or contract to the contrary, and whatever was to be excepted, whether timber, minerals, or game, should be an express provision from the operation of the lease. Much of the evil complained of even in England arose from the contracts entered into not being sufficiently explicit. He was, however, happy to say they were acting in the Midland Counties on the principle which had been adopted in Lincolnshire—namely, the embodying in writing the terms of their contract, which agreement might afterwards be stamped and constitute a legal document. It was, then, the fault of the landlord, and still more so the fault of the tenant, if either did not insist on such provisions as should secure him from injury, from dilapidation, from game, or from any other cause. The different circumstances of property as they occurred could not be defined specifically by statute, they could be met only by specific agreement between the parties. The hon. Gentleman the Member for Oxford (Mr. Neate) said there was an obligation on the part of landowners and tenants to provide food for the people of the country, a doctrine which he (Mr. Newdegate) recognised as that on which the system of protection was founded. The hon. Member had adverted to the fact that the Game Law was a remnant of the feudal system; that system had been abandoned and game had by law been rendered property. The reservation of the right of sporting, and game, and damage by game, were matters which ought to be the subject of an express contract between the landlord and tenant.


said, he believed there was no system in Scotland more condemned than that by which Justices of the Peace were allowed to decide on game cases, and he further believed that there could be no improvement of a small kind which would be hailed with greater satisfaction than a transference of that jurisdiction to the stipendiary magistrates of Scotland—the sheriffs. An hon. Member had said that the owner of land never appeared on the bench when a case in which he was concerned came on. That might be true; but he (Mr. M'Laren) was not at all sure whether the very fact of his being on the bench and withdrawing from it, might not have a modifying effect on the judgment of his brother justices. The noble Lord (Lord Elcho) said the Bill of the hon. Member for Linlithgow was approved by the Chamber of Agriculture in Scotland. If that was so he thought that the highest character that could be given to the Bill, because the Chamber of Agriculture consists of about 800 farmers and landowners in all parts of Scotland, who had the greatest influence among the farmers of Scotland. He had heard a good deal said about these Bills in Scotland, and all he had heard led him to the conviction that the Bill of the noble Lord was a little worse than no Bill, because with what it did it docs no good, and in regard to the clause which would make that game which now was not game it did a little harm.

Motion agreed to.

Bill read a second time, and committed to a Select Committee.

GAME LAWS (SCOTLAND) BILL read a second time, and committed to the Select Committee on the Game Preservation (Scotland) Bill.

And, on June 4, Select Committee nominated as follows:—Mr. MONCREIFF, Sir GRAHAM MONTGOMERY, Lord ELCHO, Mr. M'LAGAN, Sir WILLIAM STIRLING-MAXWELL, Sir ROBERT ANSTRUTHER, Mr. FINLAY, Mr. HENRY BAILLIE, Mr. FORDYCE, Major WALKER, Mr. ROBERTSON (Berwickshire), Mr. LAMONT, and Captain SPEIRS:—Five to be the quorum:—And, on June 6, Colonel HAMLYN FANE, Mr. READ, and Mr. BONHAM-CARTER added.