TWEED FISHERIES—RESOLUTION. (Hansard, 16 July 1872)

§ MR. TREVELYAN
rose to call the attention of the House to a Return of Convictions under the Tweed Fishery Acts, and to the proceedings at a meeting of quarter sessions in Roxburghshire in May last; and to move— That some of the provisions of the Fishery Acts now in force on the Tweed and its tributaries are oppressive in their operation, and tend by their severity to render the Acts distasteful to the general public opinion of the neighbourhood. The hon. Member said, that up to within the last 15 years, a certain number of convictions had been obtained under Acts passed in 11 Geo. IV. and 6 Will. IV. But in 1857 was inaugurated a system of special legislation, something resembling that proposed to be extended to England and Wales by the hon. Member for Swansea (Mr. Dillwyn). A body of Commissioners was appointed answering very much to his Board of Conservators: except that it contained no representa- 1281 tive element, but consisted exclusively of proprietors or their personal proxies. At the same time there were ordained a great number of minute regulations against illegal fishing; and the Commissioners were empowered to watch the operation of the Acts, to appoint and pay bailiffs, to prosecute, to receive penalties imposed on offenders, and to levy rates on the value of the fishing for the protection of the river. A Supplementary Act was passed in 1859; and in 1868 clauses of a general Act for Scotland were directed to apply to the Tweed. The combined effect of this successive legislation had now had a fair trial, and had been pronounced to be absolutely intolerable by the population of the district, whose complaints have now found voice through the most influential, the most impartial, and the best informed of all witnesses—the magistrates who have to administer the law. At the Quarter Sessions of Roxburghshire, held in May last, Mr. Ord, of Muirhouselaw, moved that the Justices memorialise the Tweed Commissioners to apply to Parliament for a revision of the Tweed Fishery Acts, on the ground that stringent laws very often failed in accomplishing the object they had in view, and that the Tweed Fisheries Act had failed to a great extent. He stated that during seven years, no fewer than 695 persons had been tried in Roxburghshire alone for contraventions of these Acts, of ages varying from nine to 72 years; the fines imposed amounted to no less than £2,163, and the costs to £408; the time spent in prison by the persons convicted was no less than 6,087 days, or over 16 years. Mr. Ord stated that the population was in a chronic state of irritation and discontent. The result of the deliberations of the Roxburghshire magistrates was that a Committee was appointed to consider and report upon the Acts. Now, a Court of Quarter Sessions was not the place where considerations of sport and the rights of property were likely to be left out of sight; and they might be very sure that when at Quarter Sessions a resolution was passed unanimously in favour of a complete revision of a Game Law, that law must be working very badly indeed. How it worked, what were the nature and the operation of the clauses which were so much objected to, any hon. Member might see for himself who 1282 looked at the Return of convictions under the Tweed Acts. The Act of 1857 allowed the Justices or sheriff to fine a prisoner in a sum not exceeding £2 for every fish taken during the close season. The Act of 1859 established a minimum, and rendered it obligatory to fine at least at the rate of 10s. a fish, leaving 40s. as the maximum. The consequences of the change in the law were soon evident. In 1858 the fines under the Act in the county of Selkirk amounted to £4. In 1859 they amounted to £4 2s. 6d. In the year 1865, excluding a large sum in costs, no less than £80 was levied in fines; and in 1867, besides £40 in costs, the fines amounted to £180. That was to say, that in this small county considerably more than £200, or its equivalent in imprisonment, was exacted in one year from the poorest portion of its scanty population. But that was not the worst. In 1868 a general Act was passed, several clauses of which were put in force on the Tweed. Among them was the 33rd clause, which enacted that on the second conviction a penalty of not less than one-half the greatest penalty should be imposed, and that on a third or subsequent offence there should be exacted the greatest amount of penalty mentioned in the Act. The effect of this clause necessarily was to inflict fines which the offenders could not possibly pay; and the jails were filled with youths whom a moderate punishment would have warned back into the paths of industry and good conduct, but whom this extravagance of retribution had forced into a life of crime; while over and above those who were imprisoned or half ruined by fines, no less than 23 persons had absconded, leaving their wives and children to be maintained at the charge of the parish. The long and the short of it was that the magistrates—against their own views of what was just and wise—were obliged to impose fines of an amount impossible to be paid, which, therefore, were virtually sentences of imprisonment. Within the last year, two fines of £98, and two of £38, had been inflicted upon persons of the humblest means, and the country was burdened, at the rate of £40 a-year for every prisoner, with the maintenance of prisoners under a system of legislation the obvious intention of which was to suppress offences by fine, and not by incarceration. [The hon. Member having 1283 examined in detail the numerous offences constituted by the Act, and the severity of the penalties imposed, and narrated some instances of extreme punishment inflicted for very trivial offences, proceeded to say]—And what had been the effect of the Acts? Had poaching diminished? Why, in Roxburghshire, during the first five years covered by the Return, the number of convictions were 217; during the last five years they numbered 431. We might acquiesce in a certain severity of legislation if that severity had the effect of checking crime; but what could be said for repressive measures, which shocked alike the people and the magistrates, when the effect of their operation was to double the crimes against which they were directed? That increase was not due to increased vigilance on the part of the police, for the same system of watching the rivers was in force throughout both these quin-quennial periods; nor to excessive strictness on the part of the magistrates, for the magistrates would interpret these laws in a humane sense if they were capable of such an interpretation. It was due to a principle, the nature and action of which was nowhere better laid down than in the series of speeches which Sir Samuel Romilly made in favour of the mitigation of our criminal law— It is not merely by severity," said, or rather quoted, Romilly, "but by exciting in the community a sentiment of disapprobation against any particular act that we can hope to deter offenders from committing it; and although severity may tend to increase the disapprobation when it is in conformity with public sentiment, yet when it is in opposition to such sentiments it may have an opposite tendency. That the Tweed Acts had such a tendency he had already shown from the evidence of the Bench, and the evidence of the Tweed Commission of 1867 proved the very same thing. It was a striking commentary on this legislation that £2,000 a-year was spent on police for the protection of fishings, the total rental of which (to a great extent artificial) amounted to some £9,000 a-year; and then they were told, in the Reports of Salmon Commissions and the Preambles to Bills, that this was a question not of protecting private sport, but a valuable public branch of industry. Conceive a business which required 22 per cent of the rental to be spent on watching the premises! There was also something to be said about the system under which 1284 the waters were protected. A clause in the General Police Act of 1857 allowed constables to be sworn in, and placed under the charge and direction of the Chief Constable, at the instance and the expense of private individuals. Under this clause a large number of extra constables, paid by the Tweed Commissioners, were embodied in the police of the counties bordering on the river. This arrangement was, to say the least, of dubious financial advantage to the counties; though he was bound to say that in applying for the arrangement there was no reason to suppose that the Commissioners were desirous of saving the funds of the Commission. The only possible advantage to the ratepayers consisted in placing at their disposal more policemen than were required during the summer months; while in the close time, when nights were long and the ordinary patrol duties exceptionally heavy, the attention of the police was diverted to the river. It was like taking a man's coat in winter and compensating him by forcing on him an overcoat in the dog days. But the moral disadvantages of the arrangement were more to be deprecated than the pecuniary, for it associated in the minds of the people the guardians of the peace, and the charge of laws which were generally odious. It made the policeman to be viewed in the light in which the water-bailiff was proverbially looked on in Scotland. Mr. Ord distinctly said before his brother justices that the police were not regarded as they ought to be; the late sheriff and the present sheriff-substitute of Roxburghshire openly condemned the arrangement; and hon. Members who knew what the sheriffs of a Scotch county were, would think twice before they rejected their authority. And what said those who were strongly in favour of these Acts? The Chief Constable of the combined counties of Roxburghshire and Selkirkshire was asked before the House of Lords' Committee whether the employment of the constables on Fishery duties produced unpopularity to the force. "I think it does," he answered, "among the lower orders. I find that the lower orders are unwilling to give information in regard to Tweed offences." Hon. Gentlemen who were accustomed to fish in the sparsely inhabited regions of Norway and the Highlands must reflect that in 1285 the manufacturing counties an enormous percentage of the population belong to the orders which do not sympathise with this legislation. Is it not rather hard," asked Earl Minto of the Inspector General of Constabulary, "on the county police and ratepayers of counties, if the Tweed Commissioners employ and pay an insufficient number of men to suppress poaching that they should be held responsible for the suppression of the Tweed offences?—Yes. It is an experiment. Poaching is not put an end to. But the police are doing their duty. A gratifying reflection; but not an adequate compensation for the manifold drawbacks of a system, the evils of which were none the less grave because they were to a great extent latent below the surface of society. In 1870 the Scotch Salmon Commission sent round a paper of questions, of which one was—"Is the system of protection in your district efficient?" Answers came from 32 districts, in only two of which the Tweed system of police prevailed. It was not too much to say that of all the answers that from the Tweed was the most unfavourable. It was an ominous sign after this evidence to find the Commissioners recommending that the Tweed system should be extended generally; that constables and peace officers should be empowered to search persons whom they might meet in the street or highway; above all, that the clause enforcing half penalty on second conviction, and full penalty on a third conviction, should not only be retained, but should be rendered far more stringent. Which were they to trust? The Commissioners who were absorbed in the details of salmon preservation, or the magistrates who had the charge of the moral welfare of the community? They all knew what Commissioners were; how in their devotion to the subject on which they were perpetually engaged they were liable to lose all sense of the proportion which that subject bore to other interests and other considerations. It was these recommendations, in the teeth of this evidence, that made it doubly essential for hon. Members to hesitate before they carried further legislation founded solely on the Reports of Salmon Commissioners. He had brought forward this Motion on two grounds—first, that Parliament might have an opportunity of ascertaining the effect of past legislation applying to special districts before it extended that legislation to the nation 1286 at large. His second purpose was to ascertain whether at a future time he might venture to ask the House to amend these Acts in such a manner that the people might obey them willingly, and the magistrates might administer them without misgiving; and in this view he begged to move the Resolution of which he had given Notice.

§ SIR GRAHAM MONTGOMERY
observed, that the hon. Member who had so ably brought this question before the House had said that the existing Acts had failed of their object; but, although he had spoken much about the penalties imposed on poor people, it was difficult to gather from him in what point those Acts had failed. Since the Act of 1857 was passed, he understood that the fisheries of the Tweed had very considerably increased, and a much greater quantity of salmon been caught than in former times. Would the hon. Gentleman substitute for the present system the demoralizing one which existed before 1857? The employment of the police in watching the river was a matter on which magistrates differed much; but for himself he thought that, on the whole, if the law was to be maintained, it was advisable that the river should be protected by the police rather than by the water bailiffs, upon whom they could very seldom rely. The hon. Gentleman had not made out a case for an alteration in that respect; but if he had his feelings, he should move in another Session for a Select Committee upon the working of the Tweed Acts.

§ MR. RIDLEY
admitted that the hon. Member had stated his case with moderation and good faith; but he complained that he should have thought fit to seize that opportunity for making an attack upon the policy of salmon preservation throughout the kingdom. He failed to find in the general Scotch Act any clause so stringent as that contained in the English Act of 1865, which imposed certain penalties for offences under it, and which increased those penalties most severely in proportion to their number. 1287 He did not think that the hon. Gentleman had made out any case of hardship in respect to poaching or the right of search. Surely, if the rivers were to be protected at all it was necessary that those penalties should be inflicted. Now, according to the Returns before them, three-fourths of the fines imposed were paid. He thought that the House should not stultify itself by agreeing to such an abstract Resolution as that proposed.

§ MR. DILLWYN
agreed with the hon. Member for the Border Burghs (Mr. Trevelyan) in thinking that it was a great mistake to have over-stringent penalties, which generally defeated themselves, and he thought it was not wise to have minimum penalties enforced by any law. He maintained that in all those laws, instead of having minimum penalties, a great latitude ought to be allowed to magistrates when dealing with offences.

MR. BRUCE
said, the whole scope of the argument of the hon. Member for the Border Burghs had been directed rather against the general Act, which had been incorporated with the Tweed Acts, than against any provision peculiar to these Acts. The hon. Member had commenced by comparing the Salmon Acts to the Game Laws; but there were no points of similarity between them. The Game Laws protected the game upon a particular estate for the benefit of a private person—the Salmon Acts preserved the salmon during the breeding season, when they were unfit for food, to enable them to return to the sea. Undoubtedly, on the Tweed there had been very lawless proceedings before those Acts were passed, and it was against those Acts that the hon. Gentleman invited the House to concur in this Resolution. Mr. Huntley, Chairman of the Commissioners, and formerly a Member of that House, had written a letter on this subject, strongly confirming the general statement the hon. Gentleman had made. Nearly all the convictions to which the hon. Gentleman had referred took place during the close months. Each salmon was capable of depositing 1,000,000 of eggs, and when the fish returned to the sea they became the property of those who caught them and sold them as food. The policy of these Acts, and of the heavy punishments inflicted for the preservation of salmon, was not immediately for the benefit of the riparian proprietors, but of the public 1288 who bought and consumed the salmon in a healthy state. In comparing the number of convictions under the Act, the hon. Gentleman had not taken into account the differing circumstances of the rivers. The banks of the Tay and the Spey were thinly peopled, those of the Tweed quite the contrary, and therefore poaching was with much more difficulty prevented in the latter river. There was no doubt but that the employment of the police by private individuals was always objectionable; but in this case they were employed to protect the poor fishermen rather than the large proprietors. With regard to the severity of the existing laws, while he admitted they were too severe he thought they should not be so relaxed as to admit of fish being taken in an unwholesome state. Laws which were unduly severe had a tendency to defeat their own object, and he believed that principle applied in the present instance. Under the circumstances he had stated, the hon. Member would no doubt be satisfied with having directed the attention of the House and of the country to the subject.

§ MR. WHALLEY
said, his experience in North Wales exactly coincided with that of his hon. Friend (Mr. Trevelyan), whom he wished to thank for the forcible manner in which he had drawn attention to this question.

§ MR. WHITWELL
said, he hoped the hon. Member would not divide the House on the present occasion, so that he might be left at liberty to introduce next Session a short Bill giving more discretion to the magistrates.

§ MR. STAPLETON
said, he thought the hon. Member would do well to accept the suggestion of the hon. Baronet opposite (Sir Graham Montgomery), and either bring in a Bill next Session, or move for a Select Committee to inquire into the subject.

§ MR. TREVELYAN
, in expressing his willingness to withdraw the Motion, said, the general concurrence of hon. Members who had spoken would encourage him to bring a short Bill forward next year, when he should expect the support of both sides of the House as well as the Treasury bench.