[MR. M'LAGAN.] SECOND READING. (Hansard, 23 June 1869)

§ MR. M'LAGAN
, in moving that the Bill be now read the second time, after referring to the other Bills now before the House on the same subject, said, he would not waste the time of the House in proving what was generally admitted—that there was a general and wide-spread dissatisfaction on the game question among the tenantry of Scotland. That discontent was not of recent origin—for it arose with the enactments of the Game Laws themselves, which were founded on the worst kind of legislation—class legislation. The evil complained of was the damage done to crops by an excessive number of hares and rabbits. The proximate cause of the evil was the over preservation of game generally, and the ultimate cause is the protection afforded to these animals by the Game Laws. Several remedies for the evil had been proposed; but he believed that if the proprietors would concede to the tenants an equal right with themselves to kill hares and rabbits there would be an end of the dissatisfaction, and the services of the gamekeeper might be altogether dispensed with; for there was no doubt that if that were done the tenants would be upon their honour to have a fair head of game upon their farms, so that landlords would never have to complain of a bad day's sport from the want of game. But as he did not think the proprietors were sufficiently educated up to the point which would enable such an arrange- 500 ment to be made, he would shortly remark on the different remedies proposed for the evil. The first proposal was that of the noble Lord the Member for Haddingtonshire (Lord Elcho) that the tenant should have authority to kill hares and rabbits, unless there should be an agreement between him and the landlord to the contrary; the other was that of the hon. Member for the Wick Burghs (Mr. Loch), that the tenant should be authorized to kill hares and rabbits noth withstanding any agreement to the contrary. It appealed to him (Mr. M'Lagan) that the first of these measures, while it respected the rights of property, would confer no real benefit on the tenant, and that the other would be a flagrant interference with the rights of property, and would be found practically inoperative. The proposal of the noble Lord was, in effect, an assimilation of the Game Laws of Scotland to those of England; but, in England, the Game Laws had been found wanting, and the complaints of game preservation were as rife there as they were in Scotland. As to the proposal of the hon. and learned Member for Wick, to do away with the private agreements between landlord and tenant in respect of game, he (Mr. M'Lagan) held that it was a violation of the rights of property; for if the landlord could get a larger rent from his tenant by conveying to him the right to kill the game on his land, why should the Legislature interfere to prevent the landlord and tenant entering into such an arrangement? The reason alleged for this interference was that such agreements were contrary to public policy; and he admitted that if there was such an abuse of the rights of private property as amounted to a public nuisance, the Legislature had a right to interfere; and he also admitted that the over preservation of game was contrary to public policy, and was a nuisance. But in this country we were very jealous of the security of property, and before the Legislature could consent to such an interference with the rights of property, they would require to be satisfied that the nuisance—if the over preservation were a public nuisance—could be abated in no other way. But in this case they had the remedy at hand. The evil complained of was the over preservation of game. This was not occasioned—or only in part—by private agreements in leases 501 —the real cause was the Game Laws. The real remedy then lay in an extensive modification of those laws. He now came to the fourth proposal—that which was contained in the present Bill. The distinguishing feature of his proposal from the others was that by it hares and rabbits were struck out from the game list—that hares and rabbits were no longer game within the meaning of the Game Acts. In thus abolishing the main cause of the mischief, of which the farmers of Scotland so strongly complained, he believed that he would put an end to the mischief itself. The great objection he had heard urged to the measure was that it would be only too efficient, and that it would lead to the total extirpation of hares and rabbits. But he did not think it would produce such a result. He had no doubt that it would tend greatly to reduce the number of hares and rabbits; but he felt persuaded, at the same time, that it would leave a sufficient number of them for the purposes of legitimate sport. Another objection made to the Bill was that it would interfere with the rights of property. But he did not see how it would do so, further than many other changes in the law which necessarily interfered with private arrangements; and without such interference, no social or economical reform would ever be possible. Again, it was said, that the Bill would encourage trespassing on land; but, in reply to such an argument, he had to observe, that the measure would leave unaltered the existing law of trespass in Scotland. Finally, it was urged that the Bill would hold out an inducement to poaching; but he did not understand how it would be attended with any such effect, because it would tend greatly to the diminution of hares and rabbits, and, so far, it must necessarily lessen the temptation to poaching. By one of the clauses of the Bill the trial of prosecutions under the Game Laws would be transferred from the justices of the peace to that of the sheriffs of the county, and that would, he thought, be a reasonable change, inasmuch as the sheriffs were better qualified than the magistrates, by their legal training, and by the greater impartiality of their position, for such a duty. The Bill further proposed to abolish, what was really an anomaly in our legislation—the cumulative penalties under the 502 Game Acts. By another clause in the measure prosecutions for damage done to crops by game would be finally decided by the sheriffs, and would not be allowed to be taken, as at present, from one court to another until they ultimately reached the House of Lords. Under the latter system an immense expense would have to be incurred, and the consequence was, that tenants were deterred from seeking the redress to which they believed they were entitled. He had to observe that, although he then moved pro formâ the second reading of the Bill, he was entirely in the hands of the House with respect to its future progress. He had been very glad to hear the other day that the Government meant to deal with the whole question next Session; and he trusted that, in redeeming that pledge, they would introduce a Bill which would not say one thing and do another, and that they would give effect to the opinions which had been so generally expressed by the tenant-farmers of Scotland upon the subject.

§ MR. FORDYCE
supported the Motion for the second reading, though he admitted that the expectation of legislation on the part of the Government with respect to the subject was fatal to the further progress of the Bill during the present Session. He thought the course proposed by the Government would be more acceptable to the people of Scotland than a protracted inquiry by a Committee. The great recommendation of the present Bill, to his mind, was that no objection on the point of principle could be taken against it. It did not in any way interfere with the law of contract, but merely removed the protection that had hitherto been given by the statute law to certain descriptions of game. He thought that in England we were not sufficiently impressed with the feeling that existed in Scotland upon the game grievance. In some counties it had given rise to a state of social warfare, and he earnestly hoped the Government would, early next Session, deal with the question by a measure to which they could give undivided support.

§ MR. M'COMBIE
said, that as the Government had agreed to bring in a Game Bill for Scotland, he hoped they 503 would make it such a measure as the tenant-farmers could accept. For his own part, he stood by the Aberdeen Resolutions—namely— That any measure to be regarded as a settle merit of the question must provide that not only the occupiers of arable farms have the right to kill hares and rabbits, but also declare all contracts for their preservation illegal and contrary to the public good. Representing, as he had the honour of doing, a division of perhaps the largest cattle-breeding and cattle-feeding county in Britain, where turnips, to which hares and rabbits were especially destructive, were extensively grown, he must say for his constituents, that they would never be satisfied till the Game Laws, root and branch, were swept from the statute book.

§ SIR JAMES ELPHINSTONE
said, that this game question was one of the greatest impostures that ever came before the House. Some hon. Members owed their seats entirely to agitation on this subject, and thus were obliged to bring in Bills without any earthly idea of passing them; they only advanced them to a certain stage and then let them drop. It was perfectly impossible for private Members to legislate on this subject. Legislation upon it must proceed from the Government. Proposals had been made in one of these Bill of a most profligate description. ["Oh!"] He used that language advisedly; for when a tenant-farmer had signed a lease with his landlord containing certain provisions, it was proposed that by the law of the land the provisions so made were to be nugatory. If that was not profligacy he did not know what was. If there was to be any legislation on the subject it must be preceded by a Royal Commission; and if that was granted, to inquire into the operation of the Game Laws both in England and Scotland, great exaggeration would be shown to prevail on the subject. This was altogether a political agitation, got up by agitators and certain editors of newspapers. The whole thing was a fiction. The hon. Gentleman proposed to withdraw poaching cases from the jurisdiction of the magistrates. No such case could come before a magistrate on whose land it occurred, as in those cases they always withdrew, and it would be unadvisable to deprive the country gentlemen of Scotland of those duties which the same 504 class perform in England. The jurisdiction of the Sheriff's Courts in Scotland had been already carried too far. If any legislation was to take place in regard to game, it must be applied to both countries—he had no idea of one law applying to one part of Her Majesty's dominions and not to another. The question, if dealt with at all, ought to be placed in the hands of the Government to be dealt with as an Imperial measure.

§ SIR D. WEDDERBURN
said, that the Home Secretary, being the representative of a Scotch constituency, could not be unaware of the feelings of the Scotch tenant-farmers on this subject; but there was a growing opinion that these Bills had been shelved in spite of the pledges given on the hustings. They had heard from some who were nominally supporters of Game Law Reform, that no legislation should take place until a Royal Commission had reported on the subject; and he thought it might be worth the consideration of the right hon. Gentleman whether such a Commission might not now be appointed, in order that, during the holidays, the question may be inquired into, otherwise it might be alleged, when the subject came on for consideration next Session, that neither Parliament nor the country had sufficient facts before them to warrant legislation.

§ MR. SINCLAIR AYTOUN
said, it was perfectly useless for private Members to attempt to bring in Bills upon this subject: neither did he think that a Royal Commission was needed. The Government ought to take this question up; but he feared there was some misunderstanding as to the intention of the Government. On a former occasion his right hon. Friend the Lord Advocate expressed himself in a manner which led him to believe that after the Whitsuntide holidays the Government would express their intentions upon this matter, and whether they intended to bring in a Bill or not next Session. But that, it seemed, was a mistake. Since then the Home Secretary did make a guarded engagement that the Government would bring in this Bill, but it was so qualified that it came to nothing. Now, it is perfectly clear that if the Government did not bring in the Bill, legislation on the question was totally impracticable. He thought it therefore incumbent on the Government at once to declare uncon- 505 ditionally whether they would bring in a Bill or not.

THE LORD ADVOCATE
said, he had intended to make some observations on the general question; but, as the hour would not permit that, he would simply say, in reference to the question of his hon. Friend (Mr. Aytoun) that on a former occasion he had suggested that the debate on these different Bills should be adjourned till after the Whitsun Recess, and that their promoters should consider whether they would not leave the matter in the hands of the Government with a view to legislation by the Government next Session. Since that time the question had been put to his right hon. Friend the Secretary of State for the Home Department, who gave an answer to the effect that the Government would consider the matter—as they were bound to do—very seriously with a view to legislation by the Government next Session. He did not think the House would require a stronger pledge on a subject on which there was so much difference of opinion. After the expression of the views of the different constituencies of Scotland on this subject at the last election, he thought the Government were bound, if they possibly could, to deal with the subject next Session.

MR. PARKER
said, on behalf of the tenant-farmers of Perthshire, he had to thank Her Majesty's Government for the promise which they held out of dealing with this question next year. If there were any two points on which, from the first, hon. Members had been agreed, they were these—first, that the difficulties between landlord and tenant might better have been settled by other means than legislation, since, by kindly feeling and moderation in the exercise of the rights of property, the necessity for an appeal to Parliament might have been avoided; and, secondly, that if there must be legislation, it might best be undertaken by the Government, and not by private Members. But, unfortunately, the relations between landlord and tenant were not such that legislation could be dispensed with; and, unfortunately, the Government had their hands so full that they were unable to deal with the question this year. That constituted the justification of private Members endeavouring to promote a settlement by themselves introducing Bills. 506 Those Bills, although they should now be withdrawn, had not been useless. The discussion they had provoked had indeed taken place at most inconvenient hours, so that it had not been possible to do justice to any one of the three Bills. Yet they had drawn out a certain amount of feeling friendly to reform, and they had obtained a promise of favourable consideration for this question from Her Majesty's Government. He did not wish to represent the engagement as more definite than it was; but he did not know that the matter could be left in a more favourable position than this—that the Government promised to deal with the question in the best manner circumstances would permit in the next Session; and that, meanwhile, those Members who advocated this reform would endeavour to bring about as much unity of opinion as possible among the tenant-farmers, and also amongst the proprietors of Scotland, so that next year the question might be more ripe for legislation.