Commons Sitting of 8 March 1876

MINUTES.
SELECT COMMITTEE—Parliamentary and Municipal Elections, nominated.
PUBLIC BILLS—Ordered—First Reading—East India (Chief Justices of High Courts) * [98]; Drainage and Improvement of Lands (Ireland) Provisional Orders (No. 2) * [99].
First Reading—Sheriff Courts (Scotland) * [96].
Second Reading—Game Laws (Scotland) [3]; Homicide Law Amendment [75], debate adjourned.
Committee—Sea Insurances (Stamping of Policies) (re-comm.) * [93]—R.P.
Committee—Report—Partition Act (1868) Amendment* [73–97].
Third Reading—Epping Forest* [66], and passed.

GAME LAWS (SCOTLAND) BILL— [BILL 3.]
(Mr. McLagan, Sir William Stirling Maxwell, Sir Edward Colebrooke, Mr. John Maitland.)
GAME LAWS (SCOTLAND) BILL— [BILL 3.]

  SECOND READING.
  Order for Second Reading read.
  MR. M'LAGAN, in moving that the Bill be now read a second time, said: Mr. Speaker, I trust that it will not be considered out of place if I give in a few sentences a short history of the game legislation of recent years. In 1845, on the Motion of the right hon. Gentleman the Member for Birmingham (Mr. John Bright), a Select Committee was appointed to inquire into the operation of the Game Laws. This Committee, which sat for two years, recommended certain modifications of the Game Laws, some of which have been since carried out. These changes, however, did not diminish the preservation of game, or allay the dissatisfaction which was due to it. On the contrary, the slaughtering of hand-fed pheasants had become such a fashionable pastime, and dignified by the name of sport, that every exertion and precaution were used to produce them in as great numbers as possible for the battues; and the evils of this excessive preservation of both winged and ground game were thus greatly increased. The dissatisfaction caused by this state of things among the population in certain parts of the country was so great that the game question was again forced upon the attention of the Legislature. Session after Session in the Parliaments of 1865 and 1868, Bills were introduced with the object of remedying these evils, and in 1871 and 1872 the zeal of Game Law reformers reached its height, if we may judge from the number of Bills introduced—namely, nine. We had the Bill of the hon. Member for Rochester (Mr. Wykeham Martin), which gave the tenant an inalienable right to the rabbits; while the hon. Member for Leicester's (Mr. P. A. Taylor's) provided for the with-

  1607
  drawal of all protection from game. The hon. Member for Bury St. Edmunds (Mr. Hardcastle) made game, and even rooks and wood pigeons, property. The noble Lord the Member for Haddingtonshire (Lord Elcho), and the Lord Advocate of the day, Lord Young, proposed to base all legislation in game on contracts; while the hon. Member for Wick (Mr. Loch) prohibited contracts in hares and rabbits. The hon. Member for Wenlock (Mr. Brown) proposed to repeal the Poaching Act of 1862. The hon. Baronet the Member for West Essex (Sir Henry Selwin-Ibbetson) declared that no contract in game would be valid if inserted in an agricultural lease or agreement: and I proposed to exclude hares and rabbits from the game list. It was no wonder that when such a covey rose the House was bewildered and felt at a loss at which bird to aim, and the consequence was that all escaped and died a natural death in some neighbouring preserve. But, Sir, the House, dreading a repetition of such an infliction, assented to the proposal to refer the question to a Select Committee, that refuge for the destitute, or a Royal Commission, that extinguisher of a disagreeable question. The former was chosen, and the game legislators were sent up stairs to inquire further into the subject, to fight out their battles, and try to agree upon some proposal which would also satisfy the House. Two years were spent by this Committee in its investigation. It was generally reported that the right hon. Gentleman the First Lord of the Admiralty (Mr. Hunt), who presided over that Committee with such ability and fairness, had prepared a Bill embodying the views of the majority of the Committee to be introduced in the Session of 1874. That unfortunate Dissolution, however, which caused the opposing parties to change sides in this House, propelled the right hon. Gentleman from the front Opposition bench to the Treasury bench, and invested him with the responsibilities of office, deprived the House and the country of his attempts to settle the question. Those of the Committee who were in the minority considered themselves justified, from the number who voted on one of the principal propositions in the Committee—namely, that hares and rabbits should be excluded from the Game list—in also embodying their
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  views in a Bill. It was intended at first to apply this Bill to the United Kingdom, but being deprived of the aid of some friends representing English constituencies on the other side, and who were unwilling to embarrass their Leaders in their new and unexpected position, I introduced the Bill as extending only to Scotland. That Bill differed in certain particulars from those I had previously brought in but agreed with them in the main provisions. In my first attempt at amending the Game Laws, I adopted the programme of the Scottish Chamber of Agriculture, which consisted of four provisions, namely—1st, That hares and rabbits should be struck out of the game list; 2nd, that cumulative punishments should be abolished; 3rd, that the jurisdiction in prosecutions under the Game Laws should be transferred from the Justices of the Peace to the Sheriffs; and that there should be a cheap and easy mode of obtaining compensation for damages done by game. The Bill of 1874, in addition to these provisions, contained others recommended by the Committee, and was, upon the whole, more ambitious in its scope and character, for it attempted not merely to amend, but to consolidate all the existing Game Acts of Scotland. The Bill which I have now the honour to ask the House to read a second time is only a part of the last one. It contains three of the provisions of my first Bill—namely, the abolition of cumulative punishments, the transference of the jurisdiction from the justices of the peace to the sheriff, and a cheap and easy mode of obtaining compensation for game damages; and a modification of the fourth—namely, the striking of hares and rabbits out of the Game list only as regards the tenant, and not as regards the public as in my former Bill. In dealing with this question, I have attempted to find some common ground on which all Game Law reformers could meet. We all agree in three of the provisions mentioned above, and also that the tenant should have the full control of the ground game, or, at all events, that some means should be adopted for keeping them in reasonable numbers. The two principal proposals made for accomplishing this object are that hares and rabbits should be struck out of the Game list. The second is that they should be made the joint property of the

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  landlord and the tenant, and that the tenant shall not be allowed to part with that right. The objection made to the first proposal is, that if you strike hares and rabbits out of the Game list, you throw open the fields of the tenant and the woods of the landlord to poachers. In other words, you invoke the aid of the poacher to keep down the number of those animals. The answer to this objection is, that if they are kept in reasonable numbers by the landlord, as they should be, there will be no temptation to the poacher to trespass on his lands in pursuit of game. There can be no doubt that this proposed plan would be effectual in keeping down the number of hares and rabbits. The objections against the other proposal—namely, to give a joint and inalienable right in hares and rabbits to the tenant—are, first, you will either have two game preservers instead of one, or you will do away with all game. It is said that a tenant exercising his right of killing the hares by the gun, frightens the winged game from the farm and thus destroys the sport of the landlord. Second, this proposal would prove quite ineffectual, for those who make it do not conceal that they are of opinion that it can be easily evaded; for a landlord has only to say in the beginning of the lease, if this were the law, that the rent of the farm would be, say, £400 so long as the tenant did not interfere with the ground game, but it would be in his option to make it £450 if he did interfere with them, or pressure would be put upon the tenant in some other way, which would be worse than any damage he might receive from the hares and rabbits. A third objection made to the proposal is that the passing of a law which can be so easily and flagrantly evaded tends to the demoralization of the people. Parliament has expressed its opinion upon this mode of dealing with the question in no unequivocal way. In 1870, when the hon. Member for Rochester (Mr. Wykeham Martin) introduced his Bill, giving the tenant an inalienable right to the rabbits, the feeling of the House was so strong against it that he was obliged to withdraw his Bill. In the following year 85 voted for the hon. Member for Wick's (Mr. Loch's) Bill, containing a similar provision, and 154 against it; and last Session the hon. Member for Forfar's (Mr. Barclay's)
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  Bill, giving a joint and inalienable right to the tenant of all wild animals but the feathered game, was thrown out, only 66 voting for it, and 178 against. If the House will allow me, I shall read the opinion of one of the most distinguished tenant-farmers in Scotland on this provision. He says:—
  "I cannot see how this proposal is to benefit the honest farmer. I should not like to suppose there is a single person in this room whose word is not as good as his bond, so that if on becoming a tenant he gives his word of honour that he will protect hares or rabbits, what good will Mr. Loch's Bill do him? On taking a farm we should have to pass our word to protect both hares and rabbits. I deny that Mr. Loch's Bill can give these animals to the honest tenant, while it may have the effect of preventing honest tenants getting leases, in case they should afterwards turn dishonest."
  Again, in reference to this proposal to interfere with contracts in Mr. Loch's Bill, the same gentleman said—
  "The tenants were not so imbecile as to require to go hat in hand to the Legislature, and ask them to protect them from their own acts."
  These are the words of Mr. George Hope when he was tenant of Fenton-barns; and, however many in this House may differ from him in some of his opinions, all must admit that he is a man of strong common sense, of great shrewdness, of undoubted ability, of great practical knowledge, and is generally considered at the same time a good exponent of the views of the tenant-farmers of Scotland. In the Bill under consideration I propose to assimilate the law of Scotland to that of England in giving to the tenant the right to the game, unless reserved by the landlord, as recommended by the Committee in 1873. To make such reservation effectual the amount of damage agreed upon to be done annually to the crops of the tenant must be mentioned in the lease, and if the damage does not exceed the sum mentioned the tenant shall not be entitled to compensation, but if it does exceed the sum he will be entitled to compensation. The landlord will be assessed upon this sum for rates and taxes. One objection made to this provision is that it is not practicable—that it will be difficult, if not impossible, for the landlord and tenant to agree upon the amount of damage likely to be done to the crops annually for 19 or 21 years. Now, my answer to this is

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  that it is actually done now in many cases. For instance, some landlords on letting their farms now, wishing to do justice with their tenants, and not to be annoyed afterwards with complaints, insist upon an offerer for a farm naming a sum which he may consider as value for the damage that may be done to his crops during the lease, and no difficulty is felt in doing this. Again, in many leases a clause is often inserted that a tenant shall get no compensation for any reasonable head of game, or damage done to his crops. When a dispute arises between landlords and tenants, the arbiters are at a loss to know what is meant by a reasonable head of game, or reasonable amount of damage. Instead of this indefinite term "reasonable amount;" I propose that a sum should be stated which shall be considered as the starting point for any valuations that may afterwards take place. Another objection made to this proposal is the assessing of the landlord on the sum mentioned in the lease for rates and taxes. But there is nothing unreasonable in this. It is quite in accordance with the spirit of the Valuation Act. At present, when the game is let, rates and taxes are paid on the rent given for the game; but if it is reserved, even though that reservation may be the cause of a lower rent, no valuation is put upon the game, and consequently no rates are paid. This is manifestly unjust to the other ratepayers, for they have to pay more on account of this reduced rent. It is the principle of the Valuation Act that anything that adds to, or detracts from, the value of the land should be assessed. For instance, when a landlord and tenant agree by lease that the tenant shall lay out a certain sum on drainage, when that sum is expended both landlord and tenant are assessed on the annual value added to the land by such expenditure, even though the landlord reap no benefit from it during the lease. Surely, then, there is nothing unreasonable in the landlord being assessed on that sum by which the rent of the land is depreciated. Having disposed of the objections to the proposal, I may ask—What are the advantages of it? It is often said that the game clauses in leases are so much alike that tenants sign the leases without reading these clauses, the true character of which is not known
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  till some dispute arises between the landlord and tenant about the game, and they are then found to be most unjust and oppressive. Now, if this provision were to become law, the tenant's attention would be drawn to the game clauses, as he would have to agree with the landlord as to the amount to be stated in the lease for damage to his crops. Another advantage would be, that if during the lease there were a change of the proprietor of the lands, or if the game were let and there were a large increase in the head of game, and the tenant felt himself aggrieved by such increase and consequent damage to his crops, he would only have to apply for arbiters to be put on to value the damage done, who would decide whether that damage was more or less than that represented by the sum stipulated in the lease. It may be said that this provision could easily be evaded by the sum mentioned in the lease being small or large; but if the sum mentioned were too small, the landlord would run the risk of having to pay afterwards a much larger sum for damages to the tenant. If a large sum were mentioned in the lease he would have to pay more rates and taxes, and thus there would be a check put upon him in either case. I come now to speak of that provision in which the present Bill differs from those I have previously introduced. In previous Bills I struck hares and rabbits out of the Game list—in short, I proposed that they should be regarded as no better than vermin. This was often represented to me as the weak point of the Bill, and it was alleged that it would encourage poaching and lead to the extermination of the game, both ground and feathered. In the Committee not a few of the witnesses bore evidence to this effect, and many who did me the honour to vote for the second reading of the Bill in 1874 gave me to understand that they did not approve of that clause of the Bill. I found that with the present state of public opinion it would not be possible to pass such a clause. Having respect, then, to these opinions, and without any change in my own, I have modified the clause thus far—giving the tenant the full right to kill hares and rabbits on his farm, and removing all legal obstructions to his exercising this right, but maintaining the laws of trespass in pursuit of these animals against

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  the general public. The clause for recovery of damages is very simple. A tenant feeling himself aggrieved that the damage done to his crops has exceeded the sum mentioned in the lease, intimates the same to the landlord. If the landlord agrees with the tenant to appoint arbiters to value the damages, the question may be said to be settled; but if he does not, an application is made to the sheriff, who forthwith appoints arbiters. The report of the arbiters being approved of by the sheriff, the sheriff delivers his judgment, which shall be final. In the event of its being found that the damage done to any one crop is less than the sum in the lease, and that there is no probability of damage being done to any other crop in the same year, the sheriff shall refuse the claim, and find the lessee liable in expenses; but if there is the probability of damage to other crops of that year, the sheriff shall postpone his judgment till all the crop is raised or reaped. If the whole damage exceeds the sum stated in the case, the sheriff shall certify the amount of such excess, and find the lessee liable in expenses. In proposing that the jurisdiction should be transferred from the justices to the sheriffs, I mean no reflection on the former, but merely that there should be greater confidence in the administration of justice. It cannot be denied that the man accused of being in pursuit of game, when brought before a bench of justices, is suspicious that the judgment of those who are to try him will be biased against him, and that he will not have fair play, as they are all more or less game preservers; and it may be that at some time he was charged with trespassing in pursuit of game on the land of one or more of the gentlemen who are to try him. The Legislature has always been most careful that the administration of justice shall not suffer in the opinion of the people from the slightest suspicion of self-interest in any of the judges influencing his judgment. Hence it is that a baker is not allowed to act as a justice under the Bread Act, or a brower or distiller or retailer of exciseable liquors under the Licensing Act, or an occupier, or father, son, or brother of an occupier under the Factory Act, or a coal master or tenant of coal works under the Mine Acts, or a master in any particular trade or manufacture under the Combination
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  Act. The last provision of the Bill to which I shall call direct attention is, that no person shall be prosecuted more than once under the Game Acts for the same offence. At present a person being in pursuit or unlawfully in possession of game may be prosecuted for being in pursuit of game during the day or night, as the case may be. If the trespass is in close time he may be prosecuted by 13 Geo. III. c. 54, and then he may be prosecuted under the Poaching Prevention Act for unlawfully having game in his possession. He is at the same time also open to prosecution under the Game Qualification Acts, 1621, and he may also be prosecuted for killing game without having a game certificate; so that he may be prosecuted four times for the same offence. I am not going to mention the Gun Licensing Act, but it is a fact that they also prosecute a man for killing game without a gun licence. These are the main provisions of the Bill, and I trust I have explained them to the full satisfaction of the House. I think I have done so, and in moving the second reading I do entreat the House not to allow all their labours to go for nothing, but I ask them to assist Scotch Members in the passing of such a measure as will be creditable to them, and will be a reality and not a shadow. I beg to move the second reading of the Bill.
  SIR WILLIAM STIRLING MAXWELL, in seconding the Motion, said, that his hon. Friend the Member for Linlithgowshire had addressed the House with more than his usual ability, and he hoped that the Bill which was drawn with his hon. Friend's usual skill and moderation, would commend itself to the approval of the majority of the House. For himself, he thought it perhaps the best Bill that had been introduced on the subject since he had had the honour of a seat in that House. It was fair to the landlord, and to the tenant; and also to the ratepayer, whose interests had not hitherto been sufficiently considered on this question. There were some provisions in the Bill to which he thought exception might be taken, but there were none that could not be easily met in Committee. He hoped that the closing words of his hon. Friend's speech would produce the effect they ought to produce upon the House, for each and everyone could not expect to have his own way in

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  this matter. There could be no doubt there was a growing feeling in Parliament and the country that it was wrong and intolerable that the serious and costly business of one class should be injuriously affected by the mere amusement of another. That was a feeling in which most men would agree; and that a grievance did exist in Scotland, owing to the over-preservation of game, no one would deny. It. was now upwards of a quarter of a century since the question first came prominently before the House. In all the General Elections in which he had taken part, and before he had a seat in the House, this question had engaged the attention of their constituents. The electors had generally demanded that the question should be dealt with. Candidates had always admitted the grievances, and always said they desired to redress them. The existence of a grievance had not only been proved before a Committee of that House, but it was not denied by any organ of public opinion, or by any public man whose opinion had any weight in the country. Still, in spite of this concurrence of opinion, Session after Session passed and nothing had been done. Sometimes, as the hon. Member had said, Game Bills rose in coveys: sometimes there had been only a solitary Bill; but in no case had any Bill become an Act. That was a very unsatisfactory state of things: and he could assure the House that when he appeared before his constituents and had to make that confession, he did so with feelings akin to shame. He begged, therefore, to call the attention of the Government to the subject—for he was quite certain it was a subject which, to be effectually dealt with, must either be dealt with by the Government itself, or by an hon. Member who was assured of the support of the Government. He hoped, however, that this Bill would receive the Government support. There was one fact, however, which told unfavourably for the success of the measure—that Petitions on the subject had for some reason or another almost ceased. Last year there was only one Petition, and so far as he knew, no Petition had yet been presented this Session in favour of the Bill. It was therefore open to any hon. Member to say that was sufficient to excuse the Government and the House for doing nothing, since it was evident
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  that their constituents were contented that nothing should be done. No doubt that might be said; but he appealed to hon. Gentlemen on both sides of the House whether such a statement would fairly represent the feeling in Scotland. The best of the farmers in Scotland were not a petitioning class; they did not care to move and agitate; and that might be in part the reason why they did not petition. But he feared that the main cause of their silence was that they had ceased to hope for justice at the hands of the present House of Commons. He drew attention to the subject, not so much for the sake of hon. Members as in the hope that the farmers themselves might observe the natural effect which their silence would produce, and that they would, if they were satisfied with the Bill, petition in favour of it, or at all events take some means which would enable the House to know their opinions and their wishes. The Government had only once since they came into power expressed an opinion on the subject—namely in the year 1874; and he regretted to say that opinion was not in favour of legislation. He hoped that they had since been able to re-consider the question, and now saw their way to take another view. The right hon. Gentleman the Home Secretary was unfortunately not present—detained, no doubt, by the pressure of other public duties. Hon. Members who supported the Government side had observed with great pleasure the growing confidence of the country in the right hon. Gentleman. He had treated many public questions with great success; and he was sure he would add to the esteem with which he was regarded in Scotland, if he would take up this grievance of the farmers and settle it in a satisfactory manner. In his right hon. Friend the Lord Advocate the right hon. Gentleman would find a most judicious adviser, and one who well knew how great the grievance was, and how deep, in certain counties, the consequent discontent. He would beg most respectfully to press on the Government the importance of taking up this question with a view to its settlement. There were two points in particular with which that Bill dealt, and with which any Bill, to be satisfactory, must deal. The first was the giving some cheap and easy remedy for gaining damages before the Sheriff;

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  and the second was the transfer to the paid Justices of the power of dealing with poaching cases. Although other provisions of the Bill were highly valuable, and he should be sorry to part with them, yet if they could agree to pass only so much of it as dealt with those two important points, it would give great satisfaction to the country.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. M'Lagan.)
  VISCOUNT MACDUFFsaid, that the subject before the House was one which had created a good deal of discussion and interest in Scotland, and he thought that the names on the back of the Bill were a proof that, as far as Scotland was concerned, some alteration was necessary, and that a case had been made out for legislation. This miserable hare and rabbit controversy had assumed undue proportions in Scotland, and he must say he was most anxious to see it settled or some compromise effected. English Members ought not to look at propositions like the present as offshoots of those extreme views which were supposed to find a home in the hearts of the Scotch farmers; for the opinions of Scotchmen on both sides of the House were almost identical upon this question—at least so far as ground game were concerned—that even that curious compound the Scotch Conservative had not failed to call these interesting little animals to his aid. During most of their Scotch county elections the unedifying spectacle was to be seen of the would-be legislator appealing to the tenants' well-known view of game—just as if the first and foremost question in their political horizon was the existence of hares and rabbits. If only to get rid of such a humiliating spectacle, all should agree that the question should be settled once for all. Nor did he (Viscount Macduff) see that the difficulties were insurmountable. The preservation of ground game in large quantities was plainly incompatible with a high state of cultivation. Whatever might be the case in England, in the northern part of the island neither the climate nor the soil was favourable to the farmer; and if by ceaseless toil and unstinted application of capital he had managed to win over to agriculture tracts of land which, after all, were not so long
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  ago barren, it was a perfect mockery to suppose that he could look on unmoved while his choicest crops were being devoured, or to suppose that he could be compensated by a few pounds for the havoc which had been created. He thought, then, that on every ground this was a question which ought to be settled as soon as possible. But did the Bill before the House settle it? If he could see within its four corners a solution of the problem, he should hail it with satisfaction; but he confessed he had his misgivings as to its efficiency. His hon. Friend the Member for Linlithgowshire had always associated himself with the question, and his opinion upon it—and indeed upon all agricultural questions—commanded that respect which, if he might be allowed to say so, it so eminently deserved. But he feared that in the present Bill his hon. Friend would hardly attain the object he had in view. At a later stage, perhaps, it might be sufficiently amended; but he felt bound to say that he did not think it altogether a measure which met the occasion. He had been told that there was a sacred principle which must on no account be violated, and that this Bill went at least as far as it was safe to go without invading the well-guarded territory of freedom of contract. He believed that he (Viscount Macduff) was as jealous as most people of any unnecessary interference with freedom of contract, or any other freedom; but he utterly and entirely failed to see how any legislation was possible on the subject of the Game Laws in the interest of the tenant without in some slight way interfering with freedom of contract. He could quite understand the views of those hon. Gentlemen who thought that the Game Laws should be quite swept away; he could also perfectly understand the views of those who preferred to treat this matter by leaving it alone; but what he could not understand was the argument of those who admitted the necessity of legislation and yet thought that a Bill such as this was all that the case required. He gathered from his hon. Friend's (Mr. M'Lagan's) remarks that he thought to attain his object without interference with freedom of contract. But what did the Bill say? Clause 4 said that a landlord was not to be at liberty to contract with the tenant for a reservation of the game to himself un-

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  less he, at the same time, agreed to limit the amount of game damage which the tenant was to submit to without compensation, and unless he stated it positively in the lease. Indeed, he was to be assessed upon the sum which he thus named. This, he ventured to say, was a most distinct interference with freedom of contract. It must be clear that if a landlord was unable to reserve a single head of game unless he put a price upon it, his power of making an agreement with his tenant was no longer unfettered, his freedom of contract no longer complete. His object, however, was not to find fault with his hon. Friend for interfering with so sacred a principle, but to point out that his Bill, while it did not avoid interfering with freedom of contract, was not likely to attain the great object of settling this question, which alone could make any such interference justifiable. For his own part, he feared this was not a question to be settled by nicely-adjusted scales of compensation for damages done to crops beyond certain stipulated sums. He believed firmly that legislation, to be effectual, must rest on broader lines. He believed that no legislation could be effectual which did not separate clearly and treat differently the two essentially different kinds of game; securing to the occupier by statute a joint right with the owner to the ground game, and leaving the winged game to the discretion of the contracting parties. He failed to see any object in legislation which failed to do that. He was not without some practical experience of an arrangement of the sort, and he had always found that while it gave satisfaction to every fair claim, both of landlord and tenant, it gave to the tenant that incentive to high cultivation which had produced such admirable results in Scotland. This Bill sought to attain its object by a scheme of compensation. He (Viscount Macduff) did not think the idea of compensation was one which would commend itself to the farmer. The very idea of recovering compensation, with its necessary following of notices in writing, references to arbiters, reports of valuators, and judgments of Sheriffs, seemed to him to open the door to endless litigation—which, after all, was not a very cheery prospect for the landlord—and was it to be supposed that the tenant who, after all this trouble, succeeded in
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  wringing a few pounds of compensation from his landlord, would be satisfied for his devastated crops and encouraged to sow them again? He quite agreed with his hon. Friend (Mr. M'Lagan) that a valuable stipulation was introduced into the Bill by transferring, in Clause 12, the jurisdiction in game eases from the justices of the peace to the sheriff; and he was quite sure no one would hail the change with greater satisfaction than the justices themselves, who would be only too glad to be relieved from those disagreeable and invidious duties. He would not take up the time of the House by going into details. He should certainly vote for the second reading of the Bill, however insufficient he might deem it as a final measure, because he sincerely desired that some change should take place. He deplored the prominence the question had assumed in a great many parts of Scotland. It was one which had been played with on both sides, and general expressions had been used with regard to it which might mean nothing or a great deal; and these general expressions had worked upon the mind of the farmer, and led him to expect what hon. Members in this House did not intend to propose. He hoped, however, that that discussion might pave the way for some settlement or compromise which would rid them permanently of that vexed question. When that should have been done, higher questions than hares and rabbits would take their place in Scotch county elections, and that miserable bone of contention would be for ever buried.
  MR. ORR-EWINGsaid, he had listened with great regret to the speech which had just been delivered by the noble Lord opposite (Viscount Macduff), for he thought speeches of the kind had prevented the question from being settled before that time. Such speeches held out to the tenant-farmers of Scotland a false hope of an extreme measure such as had been indicated by the noble Lord, but which he himself must know perfectly well was not likely to be passed by that House in the present or any other Parliament. Freedom of contract was so sacred a matter that it ought not to be interfered with unless there was a far stronger argument against it than could be shown in any grievance attaching to the Game Laws of Scotland. He would like to ask the noble Lord whe-

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  ther, even if they had a Bill on the lines which he had indicated, they could prevent landlords and tenants from entering into agreements that would be as complete as agreements were at present? It was impossible for Parliament to tie the hands of the parties, because they could make penalties or conditions by contract which no law could possibly interfere with. Whether the noble Lord intended his speech to be of use at future elections he did not say, but it was a pity that a noble Lord holding so high a position should have made a speech injurious to the settlement of the question. It was a pity that the noble Lord should have imported into the discussion of a temperate Bill that bitterness which he certainly did not expect from him. The noble Lord spoke as if hon. Members sitting on his side of the House were the only parties who desired to settle the question. That he begged entirely to deny. Some of the greatest game preservers in Scotland belonged to that side of the House, and they on this side were as anxious as hon. Members opposite to have the question set at rest. More than that, if the noble Lord's Party were so desirous to relieve the tenants from this grievance, to change the existing law and to give the ground game to the tenants, why did not the late Government settle the question when it could command a majority of 120, and when consequently it had the power to settle any question which it might have chosen to bring before the country? The present Bill was an attempt on the part of the hon. Member for Linlithgow, with the support of the great majority of hon. Members from Scotland, to remedy a grievance which the tenant-farmers of Scotland had long felt. It was a grievance, also, which had been admitted by the House, and certainly by hon. Members for Scotland, for the Bill before the House, he might observe, was purely a Scotch Bill. Moreover, it was a moderate Bill. Almost every year since he came into Parliament Bills on the subject had been introduced by private Members, but all those measures were extreme in their principle, interfering almost universally with freedom of contract. Those Bills were never palatable to the House, and they were thrown out by large majorities of hon. Members on both sides of the House. He thought it was strange that
  1622
  notwithstanding the general admission of the grievance, no Government had ever attempted to grapple with it. He thought it was the duty of a Government when a grievance was generally admitted to bring in a measure, for it was only by a Government measure, or a measure supported by the Government—as he hoped this would be—that the question could be settled. The only objection urged against the present Bill was that it interfered with freedom of contract. Now, for his part, he could not see that it did so. There was no doubt that it indicated a form of lease in order to enable the tenant to make a claim for any damages which might accrue, but it did not state the amount of such damage. That was left to be settled by the tenant and the landlord. The present Bill did not indicate any amount of money, but only the principle. They all knew that in Scotland, when game was in the hands of the proprietor, he studied the interests of the tenants. He saw the hon. Member for Kincardineshire shake his head, but he maintained that, as a rule, when the game was in the hands of the landlord, he did study the interests of the farmer. The great grievance arose when the landlord let his game—when he received, on the one hand, a high rent for his land, and, on the other, a high rent for his game. Under the Bill, when a tenant took a lease, it was arranged between him and the landlord what was the amount of damage done by game at that moment. If the landlord afterwards let his game, and thereby increased the damage perhaps four-fold, was it not right and proper that the tenant should receive compensation? The Bill would not be of any use without that clause, and he could not see that it injured any party. The proposal contained in the Bill of last year was a far greater interference with the freedom of contract. The present Bill had been introduced for Scotland alone, and he hoped hon. Members who did not belong to Scotland would not oppose it, as was too often the case in regard to Scotch measures, because they were afraid the same principle might be applied by legislation for England at a future day. At all events, let us be allowed to make the experiment, and after a few years, if it worked well, it might be wise for English Members to adopt a similar measure. He

  1623
  thought it hard that Bills affecting Scotland only, and which met with the approval of almost all Scotch Members, should be rejected by English Members merely because they were afraid lest the same legislation might be applied to them. Take the Hypothec Bill as an instance. Almost all the Scotch Members were in favour of it, but Englishmen came down to oppose it, because they thought it would interfere with the law of distraint. English Members desired to throw out this Bill which the Scotch Members were unanimously in favour of. The present Bill, indeed, might not be satisfactory to all parties. The noble Lord opposite thought it did not go far enough, while other hon. Members thought it went too far. It might have some defects which could be remedied in Committee, but on behalf of the tenant-farmers of Scotland he asked them not slightingly to reject the Bill on the second reading. Even if the Bill were to pass almost in its present state, it would give great relief to the tenant-farmers of Scotland. If the Bill passed every conscientious man would take good care to guard the interests of the tenant-farmer by adopting the clause of the Bill so as to prevent the tenant from being ruined by another person coming in to shoot the game.
  MR. J. W. BARCLAYsaid, the discussion, so far as it had proceeded, offered, in his opinion, the greatest encouragement to the reformers of the Game Laws they had yet received. The question of Game Law reform had ceased to be a matter of argument. No one had ventured to defend the system of Game Laws which gave annually 10,000 to 12,000 criminal convictions, besides many lawsuits which were not reported. He regretted very much that the Bill which the hon. Member for Linlithgowshire had introduced into the House, although bearing to a certain extent indirectly on that aspect of the Game Laws, made no very important provision for diminishing their severity and hardship. At the same time, he was willing to admit that some of the proposals in the Bill went to a certain extent in that direction. No one defended the system whereby the landlord, after letting his land for the production of crops by which the farmer was going to pay the rent which the landlord claimed, and also to maintain himself,
  1624
  further inserted within the provisions of his lease a condition whereby the landlord reserved for himself the right of consuming and destroying as much of that produce as he thought right and proper. It was exceedingly gratifying to him to hear the eloquence of the hon. Member for Dumbartonshire (Mr. Orr-Ewing) in denouncing the practice, which unfortunately prevailed to no small extent in Scotland; and although the hon. Member was right in saying that the practice was more prevalent in those cases in which the proprietor let his shooting to strangers, yet, unfortunately, some of the gravest and most obnoxious cases of game preserving occurred where landlords held the shootings in their own hands, and after letting the land at a rack-rent, endeavoured to obtain a second rent by selling the game which was produced at the expense of the farmer. He said that was no longer a question of argument. It had become simply one of pressure; and he was glad to find that, notwithstanding what they occasionally heard with regard to the feelings of the farmers of Scotland—he spoke of the farmers of Scotland because that was a Scotch Bill—he had no doubt the English farmers would by-and-by awake and put the same pressure on their Representatives—he was glad to find that the pressure exercised by the farmers was having its effect not only on that side of the House, where it was much wanted, but also on the other side of the House. They found that the Bill was supported by Gentlemen belonging to the Conservative party, and that was certainly a great advance on the position which they held a few years ago. He congratulated the hon. Member for Linlithgowshire on the progress he was making on the question. He had heard him previously in connection with Game Bills protesting most gravely and earnestly against any interference with the freedom of contract, and he had heard hon. Members on the other side taking up the same ground. He was glad to find that familiarity seemed to have partially reconciled hon. Members to the bugbear of freedom of contract on questions affecting land, and that their experience in connection with merchant shipping and other questions had led them to view the matter with more favour. The supporters of the Bill had

  1625
  given up the position that there was something sacred in regard to contracts affecting land, which removed them from the principles which were applicable to all other transactions. He was rather surprised to find that any hon. Member should deny that the Bill interfered with freedom of contract. There were three clauses in it which interfered with that principle in the most direct manner. In the first place, it declared that the amount of damage should be in every contract specified, and the landlord and tenant were not to be allowed to make such a contract or arrangement as they thought proper. It was specially provided that every contract should specify the amount of damage in excess of which the tenant was to be entitled to compensation for injury done to his crops. Surely that was a specification in regard to contract which no one could have the slightest doubt interfered with freedom of contract. Some persons seemed to think that in order to interfere with freedom of contract you must specify the prices or rates at which exchange of values between members of the community were to take place. Parliament had not in any case fixed prices or rates. It had simply interfered to lay down principles or to overrule practices which were on the face of them unjust. The contention with respect to the preservation of hares and rabbits was that they formed a subject on which it was not possible to contract. No one could determine the amount of damage which could accrue to a tenant from their preservation, and therefore it was an indeterminate contract, which the law should not be called upon to enforce. He believed that principle had been determined in analogous cases in England. No doubt, the hon. Member for Linlithgowshire had endeavoured to get over the difficulty by specifying the amount of damage which the landlord had caused; but, although he did not think that met the difficulty, he was not disposed on the present occasion to criticize the Bill. He had heard with great satisfaction the able and eloquent speech of the noble Lord the Member for Elgin (Viscount Macduff), and with the strictures which he had made upon the Bill he entirely and fully agreed. The 4th clause provided that, independent of any contract which the landlord might make, and notwithstanding any promises
  1626
  the tenant made to the landlord, the tenant should be entitled to compensation in cases where the damage exceeded the sum stipulated in the lease. The hon. Member for Linlithgowshire used to urge as a strong objection to giving the tenant the inalienable right to hares and rabbits, that it would be defeated by an understanding between the landlord and tenant when bargaining about the farm. But it appeared to him that the same objection might be offered to the proposition the hon. Member now made. A nominal sum might be put into the lease of £5, £10, or £15; but an understanding might be come to that, although the damage far exceeded the amount named, no claim would be made. He would be on his honour, and therefore the same objection which the hon. Member had taken to the inalienable right equally applied to this proposition. The third point was that the landlord should not be allowed to obtain any interdict against the tenant for violating his contract. There were two ways of interfering with freedom of contract. The one was to declare that any attempt at contract or bargain of the nature prescribed should be illegal and of no effect. The other was by declaring that if such a contract was made the law would not enforce it. And that was the proposal of the hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon). The proposal of the hon. Member was that the landlord should be deprived of one of his remedies at law for enforcing a contract. They now asked Parliament to interfere in the making of the bargain, and by presumption they inferred that the bargain made as prescribed would be just; but if it was just he held that the landlord ought to have the full remedies provided for him at common law. The principal objection to the Bill was said to be its interference with contract, and that was the main reason why he should give it his support. There was no doubt that the bringing of these cases before the sheriff would be of great advantage. Panegyrics were often delivered in that House upon the justices of the peace; but there were many cases in which great injustice was done to the men who were brought before them for breach of the Game Laws—an injustice which was not only felt by the parties themselves, but apprehended by the general mass of

  1627
  the public. He said generally in respect of the Bill that in so far as it interfered with freedom of contract it was a valuable Bill; and beyond that he did not think it would be productive of much result. To the transference of the right of game from the landlord to the tenant he would be inclined to attach more importance, if it were not for the example of England; but they all knew that though it was the law in England it had not had practical effect, because in every case the game was reserved. He regretted that when the hon. Member for Linlithgowshire was legislating on the question, and was determined to interfere with contract, he did not go a step farther and deal with the question in a more simple and conclusive manner. On behalf of the farmers, he must say that they could not recognize compensation for damages as a settlement of the game question for two reasons. In the first place, the tenant knew that any sum he would get would not really compensate him for the loss he had sustained, if he had received serious injury, and he was sure in that the hon. Member himself would agree. In the second place, they did not wish to quarrel with their landlords, as they would have to do if they were compelled to claim compensation under the Bill. ["Hear, hear!"] He could assure the House that the farmers were anxious to avoid quarrelling with their landlords, but if, under the Bill, they were to claim compensation, they would certainly be involved in many disputes. If the landlord was disposed to allow compensation he could do so voluntarily without an Act of Parliament; and if there was any difficulty in regard to the amount of damage it could be referred arbiters, in the same way as proposed in the measure, without having recourse to a lawsuit. He should vote for the Bill, not because it was a settlement of the question, but because it was so far satisfactory to those who had been long labouring to promote reform on this subject.
  SIR WILLIAM CUNINGHAMEsaid, that although he represented a borough and not an agricultural constituency, and had therefore no personal object to serve, yet as there were one or two objections to the Bill which had not yet been alluded to, which he should like to point out, he hoped he might be allowed to say a few words.
  1628
  He was deeply impressed with the desirability and expediency of endeavouring to improve the position of the tenant-farmers of Scotland in this matter of game, he considered that in many respects they were very unfortunately placed, and that the unfortunate position in which they stood injuriously affected not only themselves, but also the proprietors of land and the public generally. He therefore approached any Bill that was intended to deal with this important national question in a very friendly spirit. He fully recognized all that had been said of the extremely moderate and fair intentions of his hon. Friend the Member for Linlithgowshire, who had brought forward the measure, and he would say further, that the Bill itself was very moderate and fair, and if it could be carried out on the plan which he wished should be followed, it would, to a very great extent, cure the evil that existed. The Bill itself, up to a certain point, was extremely fair, moderate, reasonable, and just, and he believed it to be founded upon the true principle that ought always to be followed in making arrangements as to game between proprietors and tenants—namely, that the annual damage estimated as done by the game should be put down in writing, and that the tenant should be entitled to compensation for any damage that was done beyond that estimate. The Bill transferred the property of the game from the lessor to the lessee. It said that the lessor was not to be entitled to reserve to himself the game unless, under the third sub-section of the 4th clause, the amount of damage agreed upon as done annually to the crop by game was set forth in the lease. To those proposals he saw no objection. He quite agreed with those who could not see in this third sub-section any interference with freedom of contract. If a proprietor, under the 6th clause, wished to reserve entirely to himself the game, and to relieve himself from all liability to claims for damage on the part of the tenant, the power was left in his hands; he had only to place the estimated damage at so high a point that the tenant could under no circumstances have any claim. The two parties were left to make any contract they pleased. The Bill did not interfere with freedom of contract, but what it did was this, under the last paragraph of the

  1629
  clause it put a penalty upon an extremely high valuation of the damage, and no doubt the object of the hon. Member in making that proposal was to prevent the landlord defeating or evading the object of the Bill. This brought him to the point to which he rose to draw attention, the latter part of the sub-section, which stipulated that the lessor should be returned as the proprietor of game at a rent equal to the sum mentioned in the lease, on which he should be assessed for rates and taxes. He (Sir William Cuninghame) objected to that on two grounds. In the first place, it was obvious that the lessor, to save himself from possible legal difficulties with unreasonable and vexatious tenants, would have to value the sporting right which he reserved, at a much higher sum than it was worth; and in the second place, that proprietors of properties of equal value would be unequally rated. With regard to the first objection, and as an instance of the hardship of the case, he had received a letter from an experienced factor in Scotland, who managed an estate on which the game was let at the sum of £50, or about 3¼d. an acre. One hare or rabbit getting into an oat-field might do damage in a single night to the extent of 3s. or 4s.; now, as an estimate of the damage that might be done by game, that sum 3¼d. was simply absurd. To save himself from the damage which in such a case he would have to pay, the landlord would have to value the amount of damage done to crops at a very much higher figure. In the opinion of his correspondent the proprietor of an arable farm would have to put the estimate of damages at 13 s. or 14 s. an acre, being in that case rated on a valuation of over 40 times the value of his sporting rights. As to his second objection to this rating part of the sub-section—namely, that proprietors of properties of equal value would under it be rated at different amounts. A proprietor of sporting rights living in a hilly country, where there were few turnips and little corn to be damaged by hares and rabbits, might be in a position to rate his damages as nothing, or next to nothing, and he would be put down in the valuation roll at a very small amount. But another proprietor in a different locality, possibly surrounded by neighbours who preserved ground game, and perhaps wishing to
  1630
  preserve a reasonable stock himself, would be obliged to rate the damage done to crops at a very high figure. It was no answer to say that the proprietor in each case valued his own property—because practically he did not value it. The valuation was fixed by his position. He did not consider that the other objections which had been urged against the Bill were tenable; and he entirely approved of the transfer of jurisdiction in game cases from the justices to the sheriffs. He had such serious objections to the sub-section of Clause 4, to which he had referred, and believed it would act so injuriously in many respects and so unfairly to landed proprietors, that, if he thought it could not be amended, or would not be withdrawn, he should vote against the Bill; but he thought he might be allowed to treat it as a matter of detail, and that it would be discussed in Committee, and altered in a manner consistent with justice. As he approved thoroughly of the principles of the Bill, he should vote for the second reading; and hoped the Government would allow it to go to a second reading, and that they would give the benefit of their assistance in Committee in altering any part of it which might be considered objectionable.
  SIR EDWARD COLEBROOKEsaid, he heartily congratulated his hon. Friend the Member for Linlithgowshire that no objections had been taken to his Bill except on matters of detail. With regard to the remarks of the hon. Baronet who had just sat down, some he thought were founded upon an exaggerated apprehension of the effect of the valuation clause. If the object of the Bill was to introduce a new Valuation Act, with the view to put the valuation of game upon a different footing, there might be some objection as to the inequality of its operation; but this clause was introduced as a security, and he thought an important security, for the operation of the clause which was one of the main purposes of the Bill. Nor did he think it would be right to object to the principle of the clause because it might act with a certain inequality in respect of pasture land and arable land. But, to his mind, there was a more forcible objection to the Bill—whether it went far enough for a settlement of the question. If the Bill was so weak as some hon. Gentlemen—especially the noble Lord (Viscount Macduff)—had

  1631
  urged, there was no use in going further and wasting the time of the House in passing a measure which would not have any practical operation at all. He regretted that his hon. Friend had not had courage enough to face the question of hares and rabbits. He had long entertained the hope that the House might see its way to legislate in the direction of excepting them from the operation of the Game Laws and give tenants a direct right to them—especially in the case of rabbits, which he regarded as mere vermin. This would be not only in the interest of the tenants, but of the landlords also. He thought landlords sometimes might require some protection against their keepers. Rabbits were frequently kept up to an injurious extent that the keepers might make a profit of them. He believed, however, that it was hopeless in the present Parliament to deal with the question of ground game. He was not frightened by the argument that the Bill interfered with freedom of contract. What those who wished for any improvement of the law contended was, that the abuses which had arisen from freedom of contract should be checked. All were agreed that shooting in moderation was not merely unobjectionable to the public, but to the tenant-farmers. It was the abuse of the thing that they wanted to remedy. Then came the question—How were they to define excessive preservation? Lord Moncreiff, when Lord Advocate, made a proposition that the amount of damage might be assessed at any one time—either at the beginning of the lease or upon the demand of the tenant; and that for anything beyond that he should have a right to compensation. That was a practical proposal, and one deserving of consideration. He thought that the point raised by the hon. Member for Forfarshire (Mr. J. W. Barclay) would be fatal to any Bill that could be introduced. No doubt there was danger in all our legislation that it might be superseded by the unwillingness of the tenant to give offence to his landlord; but he did not think they should be deterred from legislating on account of those fears. In his opinion the present proposal was better than that of Lord Moncreiff. It proceeded very much upon the same principle which Parliament had acted upon in enforcing the load-line upon ships. There was a great difficulty
  1632
  in determining what was a proper load-line, and the principle adopted was that the owner of a ship should fix his own load-line. This measure proposed that there should be a load-line for tenants with regard to game. There was, no doubt, danger that the load-line would be marked too high; but then there came in the provision of security—namely, that of the liability to be assessed. He thought the Bill afforded a fair prospect of security. The Bill was one well worthy of the consideration of the House. He had great hopes that it would act well, and he trusted that at all events the House would assent to the second reading, and consider in Committee any objections to matters of detail.
  SIR ALEXANDER GORDONsaid, in his opinion the Bill would be inoperative for the attainment of the objects the hon. Member who proposed it had in view. His object was the same as his own—that of relieving the tenant-farmers of Scotland from the grievance from which they now suffered, so far as caused by hares and rabbits. The hon. Member (Mr. M'Lagan) had frankly stated that he considered his Bill to be an interference with the principle of freedom of contract for which hon. Members on this side of the House had so often contended for, and with good reason. The hon. Member for Dumbartonshire (Mr. Orr-Ewing) was, he thought, rather too severe upon the noble Lord who spoke from the other side of the House, when he alluded to his speech as being made with reference to the hustings. The course which the noble Lord the Member for Elginshire advocated was one which he practically carried out himself, and his object was to enact by law that which he had found by practice to be a beneficial arrangement between landlord and tenant. As to there being no Petitions and not much anxiety expressed by the tenant-farmers in Scotland for a measure of this kind, they looked to the Government to bring forward a measure that would settle the question finally. The late Government in two successive years, 1870–71, brought in Bills, and he believed the present Government had intimated a wish to take up the question. He ventured to think the Bill now before the House would not fulfil the expectations of the country or of the hon. Member himself. In Clause 4 it professed to give all that they wished

  1633
  but the next two lines destroyed that by introducing the words "unless reserved." The effect of the Bill would be that every landlord in Scotland must reserve the game on his property, if he wished to shoot either a hare or a partridge during the whole 19 years of the lease without asking his tenant's permission. If he did not put in that reservation the tenant would have the sole right, and the landlord could not follow a pheasant out of his own cover into an adjoining turnip field without the tenant's permission. He thought that was not a state of things that the landlords were prepared to accept. There was another objection to the Bill. It was the custom of many liberal landlords to give their tenants free permission to shoot hares and rabbits, reserving to themselves the winged game. Under this Bill a landlord wishing to continue that arrangement must of necessity put in his lease the amount of damage to be done by the hares and rabbits which he gave his tenants permission to kill. If he did not he could not preserve the winged game. The result would be that his liberality would cause him to be taxed to the extent of the amount of damage that was estimated as likely to be done by his game. If he put in a nominal amount of damage, say 1s., in order that his tenants might have the free permission they had hitherto enjoyed, the result would be that every one of his tenants had a legal document in his possession by which they could sue him for any damage exceeding that nominal amount; and in large properties—some of them having not less than 1,100 tenants—that would be a most inconvenient power to place in the hands of the tenants. Another clause said that the lessee should be liable in damages for shooting contrary to his contract. The damage to the landlord in the case of a hare being shot would be the value of the hare; so that the landlord would have to sue his tenant for a few shillings in each case. The Bill was not complete, and if enacted in its present form would cause a great amount of litigation between landlord and tenant. It would also be most unjust to compel a landlord to pay for damage caused by game from the property of another landlord. Instead of diminishing the bad feeling which, he was sorry to say, existed in many parts of Scotland, the Bill would increase it ten-
  1634
  fold. The objections to the Bill were, he thought, very important, and deserved the consideration of the House.
  MR. FRASER-MACKINTOSHsaid, this question was one of particular importance to the Highlands; and to show that it was so, he might mention that in Inverness and Boss, with which he was immediately connected, the valuation of lands and heritages was last year about £600,000, and of this no less than £100,000 was derived from game rents alone. Fifty years ago those game rents did not exist; they were entirely the creation of modern times, and they had continued of late steadily to grow, giving an increased and increasing area of taxation. These were the direct advantages of the Game Laws; the indirect advantages were very great also. They had sportsmen going to the Highlands and spending large sums of money in our railways and steamers, and among our posting-masters and merchants. In fact, he believed that in Scotland alone, during the months of August, September, and October, a sum of not less than £1,000,000 was spent on or in connection with game. This, then, as he had said, was a question of great importance to Scotland, and especially to the Highlands. The Game Laws were attacked not only out-of-doors, but within the House—for instance directly, as by the hon. Member for Leicester (Mr. Taylor), also indirectly, but no less fatally, by the hon. Member for Forfarshire (Mr. J. W. Barclay); and connected as they were with the Highlands, and feeling very much interested in this question, they found they had a very good claim on the Government to deal with the entire subject. He was not going to say a grievance did not exist. A grievance undoubtedly did exist, as had been proved by the Committee appointed three years ago. Now, there were three points discussed before that Committee. The first was with regard to deer forests. No doubt farmers whose lands were bordered by deer forests had good reasons for complaining. The Committee reported in favour of fencing deer forests, and as a good deal of injury was done by deer, it was high time something should be done in the way of giving effect to that recommendation. The next complaint was in regard to the undue preservation of winged game. Whatever might be the real causes,

  1635
  there could be no doubt that one was due to that unfortunate system of sportsmen wishing to have great bags. It so happened that winged game increased to a very great extent, and the farmer had good reason to complain. This over-preservation of winged game was not only bad for the farmers, but it was bad for sport itself, being, as was almost universally admitted, one of the principal causes of disease among game. In regard to this matter, he thought that the farmers were entitled to more satisfactory and summary remedies than were at present available. He was quite opposed to giving tenants an inalienable, or even a concurrent right to game. He was quite satisfied that this concurrent right was nothing less than individual wrong; but he was quite willing that effectual and summary provision should be made for making up for the increase of winged game, and he thought the remedy suggested in the Bill would do very much towards satisfying the farmers. There only remained another point—a very important one—which gave rise to nine-tenths of the complaints in regard to game in Scotland. That was with regard to hares and rabbits. To most of true sportsmen that was a matter of indifference; but it was difficult to arrive at a satisfactory conclusion as to what to do. So far as he was concerned, he thought nothing short of this would do—namely, that they should give to the tenant the right on arable and low-lying pasture grounds to destroy hares and rabbits in the fullest and most unrestricted manner. It was impossible, in his opinion, to come to any other conclusion. He was against giving the tenant a concurrent right to shoot hares and rabbits everywhere, and his reason was this—that on most of the large farms in the Highlands, the arable and low pasture lands constituted only a very small portion, and if they were giving tenants a concurrent right to shoot everywhere, it would tend to the landlord being deprived of the right to let separately his shootings at all; for it would be impossible to keep the tenants from shooting game at the same time, and who, when challenged for being in the midst of grouse grounds, could answer that they were only shooting mountain hares. This question of game was one of great importance to the Highlands, and it was one that was growing up,
  1636
  and had a very beneficial effect by leading to the circulation of money and the relief of taxation; and his object was simply this—to press on the Government to take up this matter, and deal with it as a whole in the three directions he had indicated. He would support the Bill as being a step in the right direction; but it would not settle the question of the Game Laws in Scotland. It was said that it was in consequence of the neglect of Scottish business by the late Government that the supporters of the other side who were returned from Scotland were increased from six to twenty; and if the Government desired to show their gratitude to their Scottish Conservative supporters who in this matter were at one with their Liberal brethren, they would now, when matters were in a comparatively quiescent state, remove grievances which, if long delayed, would make matters hereafter not so easily settled.
  MR. CLARE READsaid, he must apologize for entering upon this hitherto purely Scotch debate; but as he was the member of the Committee to which reference had been made, and who had moved that hares as well as rabbits should be taken out of the category of game, he felt bound to support the Bill. He must congratulate the hon. Member for Linlithgowshire (Mr. M'Lagan) on his semi-conversion in regard to the subject of non-interference with freedom of contract. The hon. Gentleman seemed now to have arrived at the conclusion that if they were to remedy the grievance by legislation, they must take from those who had the power their right to commit the grievance. He also congratulated the hon. Gentleman on letting fall from this Bill his friend the poacher. In previous years the hon. Gentleman had wished to aid the tenant-farmers through the poacher; but on the present occasion, he was glad to see, he did not propose to do so. He should vote for the Bill with much satisfaction; but there was another Bill to be submitted to the House on a future day, which he should still more cordially support, and for which he claimed the vote of the Under Secretary for the Home Department, who some years ago had introduced a measure based on the same principle. When, he might add, an hon. Friend of his argued against the interference of English Members in the question before

  1637
  the House, as affecting Scotland only, he felt disposed to remind him that it would be as well that on questions like the Burials Bill an hon. Gentleman who represented a Scotch constituency should not vote against the views of the majority of English Members and against his own Party.
  MR. MUNTZsaid, he should support the Bill because, although he could not consider it final, it was a step in the right direction. Now that the question had been so thoroughly considered, he had hopes, and he still entertained them, that the Government would bring forward a measure that would be a final settlement of this question. There was a good deal of nonsense talked about the Game Laws, but at the same time a very great grievance existed; for there could be no doubt that both in England and Scotland the farmers suffered heavy losses from the destruction committed by hares and rabbits, and it was certainly time that something should be done to protect them. The 4th clause of the Bill proposed, in effect, to assimilate the law of England and Scotland in respect of the rights of the occupier, giving to the occupier the right to the game; but, in practice, that was never carried out.
  SIR WILLIAM EDMONSTONEsaid, that as the hon. Member for Linlithgowshire had introduced some obvious modifications into his present Bill, he was prepared to support the second reading. They had heard a great deal said about the damage done by hares and rabbits, and it sometimes seemed to be thought that Tory rabbits eat more than Whig rabbits. He did not mean to say that no evil was caused by rabbits, but he did say that more damage was done by rats than by either hares or rabbits. He believed the hon. Gentleman was willing to do all that was possible to meet the views of all parties, and under those circumstances would not oppose the second reading of his Bill.
  GENERAL SIR GEORGE BALFOURsaid, it was a misfortune for any country to have two important classes like the landowners and tenant-farmers in a position of antagonism such as they were in Scotland. This dissension being mainly owing to the unfair protection given to game preservers, he hoped, therefore, the Government would take up the question of a reform in the Protectionist Laws; and if they did not, he
  1638
  should give his support to the present Bill. He did not think the Bill was altogether sufficient to redress the grievance so reasonably urged by the farmers against the injury done to the crops by protected game, but it was a step in the right direction, and he would support it, trusting that it would give some peace and quiet to Scotland. He agreed with the hon. Member for Inverness (Mr. Mackintosh) that the great evil to be provided against was the over-preservation of winged game. The farmers in general were far from being unfavourable to landowners having that fair degree of sport in the field which made residence in Scotland enjoyable. It was the over-doing of the game preservation which excited farmers against all Game Laws. This evil was largely swelled by game preserves being rented to persons unconnected with the land, and by owners of lands keeping up great heads of game for sale, and which were reared on the crops of farmers. These crying evils ought to be stopped, and landlords who dealt in game should not escape the small licence levied on other dealers in game. No doubt there were defects in the Bill—for example, it took no account of the great damage which was done by game to farms adjoining lands belonging to other proprietors, and some remedy ought to be provided for this omission as well as for other defects. He would support the Bill, believing it would do some good; but it would be better to abolish the whole of the Game Laws than to allow the present heart burnings to continue.
  SIR GRAHAM MONTGOMERYsaid, that the game question had agitated Scotland for many years past, and at election times had occasioned considerable difficulty. He believed, however, that the evil was rapidly curing itself. Anyone who was acquainted with shootings in Scotland 10 years ago would tell them the change that had taken place. They would not find one rabbit now to every 20 found 10 years ago. The hon. Member for East Aberdeenshire (Sir Alexander Gordon) said the question was a very disagreeable one in the North of Scotland. Speaking for the South he (Sir Graham Montgomery) could say that landowners had been for some time dealing in a more liberal spirit than formerly with their tenants in the matter of game preserving. As to the pro-

  1639
  position to put the law on the same footing as in England, he did not think it would do much for the tenant; but so far as it assimilated the laws of the two countries, it was a step in the right direction. His main objection to the Bill was that it did not follow the recommendations of the Select Committee, presided over by the First Lord of the Admiralty. Several things which were in the Bill were not recommended by their Re-port, and especially the one embodied in the 4th clause: but the objections to that clause had been so freely discussed that it was unnecessary to say more. As to the question of compensation, the hon. Member for Forfar (Mr. J. W. Barclay) said the tenants were not in favour of compensation. In fact, they did not believe in compensation.
  MR. J. W. BARCLAYexplained that what he intended to say was that the farmers would not accept the proposal in this Bill as to compensation as a settlement of the question.
  SIR GRAHAM MONTGOMERYsaid, it had always appeared to him that some easy and simple mode of assessing the compensation to the tenant for the injury done by game, would be the best mode of settling the Game Law difficulty. That, he knew, was the opinion of Lord Moncreiff, who so long ably filled the office of Lord Advocate. He thought the clauses of the Bill which provided for damages and arbitration excellent. As to the provision that the jurisdiction in Game Law cases should be removed from the Justices to the Sheriffs, he was aware that the Scottish Chamber of Commerce made a strong point of that; but he could never see how that concerned the tenant-farmers very much; and so far as the poachers were concerned, he did not think they would care much whether their cases were tried by the Justices or the Sheriff: but so long as the Justices in England decided poaching cases, it would be something like a slur and a stigma on the Justices of Scotland if they were deprived of their jurisdiction. As to the Bill before the House, his vote would be determined by what he heard in reply. If the hon. Member (Mr. M'Lagan) was disposed to withdraw the clause affecting freedom of contract, or if he consented to refer his Bill to a Select Committee, he (Sir Graham Montgomery) proposed to give him his vote; but if he did not have some indi-
  1640
  cations of the hon. Member's views in regard to those two matters, he should be obliged to oppose the second reading.
  MR. GOURLEYsaid, he entirely agreed with the preceding speakers, that it was high time that something should be done to remedy the evils inflicted by the Game Laws; but to his belief the only real solution of the question was to abolish those laws altogether. The abolition of cumulative penalties for game offences was very necessary; and however long the Game Laws existed there could be no difference of opinion as to the necessity of modifying the existing cumulative system of punishments. He thought the whole subject was well worth the attention of the the Home Secretary with a view to reform.
  MR. MARK STEWARTsaid, that if the third section of the fourth clause restricting freedom of contract were withdrawn he thought the Bill might be accepted, for it contained several useful provisions. The proposal to transfer the jurisdiction in poaching cases from the Justices to the Sheriff was very judicious; for although beyond doubt the Justices were actuated by no other motive than to discharge their duties impartially, the people of Scotland considered the present system a grievance; and it would add much to the value of the tribunal in other respects if this invidious jurisdiction were withdrawn from it. The House had now been waiting for two years in the expectation that the Government might be induced to deal with the question, and when a Bill came before them of the moderate character of that of the hon. Member for Linlithgowshire, the House ought to take into consideration that it had been spared the trouble of finding a solution of the existing difficulties. His hon. Friend the Member for Peeblesshire (Sir Graham Montgomery) said that he did not altogether approve of this Bill, because it did not contain all the recommendations made by the Select Committee. Now, one reason why he (Mr. M. Stewart) approved the Bill was that it contained so many of those recommendations. He found that the Bill did attempt to assimilate the law of Scotland to that of England in giving the tenant primâ facie a right in the game. It also proposed to settle disputes by summary process; and by transferring the juris-

  1641
  diction from the Justices of the Peace to the Sheriffs, who, he need hardly tell English Members, corresponded with County Court Judges in England. Again, it attempted to settle disputes as to compensation by arbitration. That was a very valuable provision. Now, although this could not be termed in any degree a complete Bill, yet it offered a solution of a great difficulty now felt by tenants who might be unwilling to oppose their landlords, and who yet felt their interests too deeply involved. They could now say that they had a claim sanctioned by Act of Parliament; and would settle it without litigation by the means provided by the Act. He hoped the Government would give the Bill of his hon. Friend their favourable consideration, at all events to the extent of giving it a second reading; and if there were any clauses distasteful to them, he had no doubt that with the majority at their back they would in Committee be able to amend them in any way they thought fit.
  MR. RAMSAYsaid, in his opinion, the question of the Game Laws was one of such importance that he thought it could only be properly dealt with by Her Majesty's Ministers, and he concurred, therefore, in appealing to the right hon. Gentlemen on the Treasury bench to adopt the suggestion that had come from their own side as well as from this, that they should take up the moderate Bill now under consideration and deal with this question. The excitement on the subject was very great in certain districts, and from his own experience, in the cultivation and management of land, he would say that the sooner it was settled the better. This Bill, he thought, would give satisfaction to the farmers of Scotland for a long time to come. But though he should support the Bill he must not be supposed to be pledged to all its details. He could not agree to the sub-sections attached to the 4th clause, inasmuch as he could not approve of anything which interfered with the freedom of contract. Then, while he thought it desirable that the laws of the two countries should be assimilated, where it could be done with reference to the circumstances of the people, their wishes, and their position, he did not think that it was desirable, when they were seeking to assimilate the laws of Scotland to those of England in relation to
  1642
  game, that they should introduce a system which was unknown in England, and engraft that upon their Scottish system. He hoped his hon. Friend the Member for Linlithgowshire would be willing to modify any of the sub-sections or other parts of the Bill in a way which did not militate against its general principles. He approved of the provision which conferred upon the tenant-farmers the right to kill hares and rabbits. As regarded sub-section 3 of Clause 4 he thought there would be difficulty in carrying it out, because it seemed in direct contravention of the provisions of the Valuation Act of Scotland. He heartily approved of the proposal that the jurisdiction in game cases should be transferred from the Justices of the Peace to Sheriffs; but in so saying he did not intend to throw the slightest slur upon the administration of justice by the Justices of the Peace. If the Bill had proposed to do nothing more than to assimilate the law of Scotland to the law of England, and to confer upon tenants the right to kill hares and rabbits on the land in their possession, and to transfer the jurisdiction from the Justices of the Peace to Sheriffs, he should say it would be a very useful measure, and he hoped Her Majesty's Ministers would assent to the second reading in order that it might be amended in Committee in those points which appeared to require consideration.
  MR. STORERhoped that the Government might be induced to bring forward a comprehensive measure on the subject, which should apply equally to England as to Scotland. No one was more anxious than he that the farmers should have a cheap, easy, and effective remedy against any inordinate quantity of game which might exist on their farms; but he failed to see how the Bill of the hon. Member for Linlithgow would meet the case; because in numerous instances already it was the farmers themselves who, by agreeing to certain leases without stipulation as to the quantity of game that should be upon the land, put themselves out of any remedy in that particular. It was provided by the third sub-section of the 4th clause that there should be set forth in the lease that most invidious arrangement that the amount of damage agreed upon to be done only to the crops of the lessee should be exactly defined. Why, how was it possible that such a

  1643
  definition could be made, or if it were made, how could it possibly be adhered to? This, he contended, would lead to inevitable and constant disagreement between landlord and tenant. He saw a greater degree of common sense and justice between landlord and tenant in the Bill, which he understood was prepared by the noble Lord the Member for Elginshire (Viscount Macduff). As to the jurisdiction of Justices in poaching cases, it was well known that they never sat in cases in which they were themselves interested.
  MR. P. A. TAYLORsaid, that being of opinion that the Game Laws were altogether bad, injurious, and unjust, and that there was no practical remedy for the evils arising from them except their entire abolition, he had felt some little difficulty in deciding whether he should vote for the Bill, or walk out of the House and give no vote at all. Under it the landlord and the tenant were to make some arrangement as to the basis of destruction of the people's food, which these wild animals should be allowed to destroy. He had, therefore, felt a difficulty about voting for the Bill, lest he should be thereby making himself an assenting party to a sort of immoral bargain. No doubt, the destruction of crops might be to some extent diminished under the Bill, which would also recognize that the House of Commons were alive to the importance of the question, and were willing to do some—though it might be infinitesimal—justice in regard to it. Then the occupier was to be allowed, under certain circumstances, to kill hares and rabbits without being liable to take out either gun or game licence. Well, what an amount of dishonesty and evasion that would give rise to! The occupier would not take out a game licence, but he would go upon the land and shoot anything that came within the level of his gun. This illustrated the sort of mischief they were sure to tumble into with small measures like the present. He supposed that they should hear from the Government during the debate what were their intentions with respect to the Game Laws. They had avowed their determination not to address themselves to measures of organic change, but to give their attention to measures of social interest. The Committee presided over by the right hon. Gentleman the present First
  1644
  Lord of the Admiralty had made a very elaborate Report, and the right hon. Gentleman had promised to bring in a Bill; but hitherto he had not done so. Could the House imagine any question of greater interest or importance to which they might have addressed themselves? There were two practical advantages, he frankly acknowledged, to be gained from the passing of the Bill; one was the putting an end to the injustice involved in cumulative penalties, and the other was the getting rid of the anomaly of the jurisdiction in these cases being given to the county magistracy. Hon. Gentlemen opposite asked what did it matter by whom a poacher was condemned? That was rather begging the question; it was hardly a principle recognized in the ordinary customs of English law, that in the same person should be the attributes of prosecutor, judge, and executioner. He had heard it said before that Justices never exercised jurisdiction in their own cases, and he was reminded of the words he once heard uttered in that House upon that point. Certainly they did not; they retired when their own case was brought before the bench, in the Christian hope that those they left behind them would deal with poachers on their land even as they themselves would deal with poachers on other men's land.
  LORD ELCHOsaid, he came down to the House in the hope that the character of the Bill was such that he should be able cordially to support the second reading and assist in promoting a satisfactory settlement of this question as between landlord and tenant. He was under the impression that the principle of the Bill was the same as that embodied in a measure brought in some time ago by the late Lord Advocate—namely, the establishment in Scotland of a presumption in favour of the tenant in the matter of the possession of game, as it now was in England. That presumption was now in favour of the landlord, game being in Scotland the property of the landlord, while in England it was the property of the tenant. It was said that that would do nothing for the tenant. That he disputed. At present if a tenant in Scotland wanted to get any control over the game, he had to go to the landlord and endeavour to make the best bargain he could; whereas in England the case was the reverse—here the law

  1645
  recognized the occupier as the owner, and it was the landlord who by his agreement asked the tenant to give up a property which the law vested in him. The two things, therefore, were totally distinct, and if by law they were to make this change they would place the tenant in Scotland in a better position to make a bargain with his landlord, because he would then be placed in possession of a thing to be bargained for. [A laugh.] His hon. and learned Friend the Member for Oxford might sneer. He was very strong on these questions of contract, and he was "the real farmer's friend;" but when the Government of which he was a Member, with a majority of 120, which had revolutionized the Church in Ireland, and established extraordinary principles in dealing with land in that country, came to grapple with this question, all they found they could do with it was to give the tenants a greater power to contract; they also gave the tenant a speedy and cheap mode of obtaining redress when the landlord departed from his bargain. He maintained that when the Legislature had done those two things, it had done all it could fairly accomplish in the matter. But he found that that was not the principle of the Bill of his hon. Friend the Member for Linlithgow. His hon. Friend said that his Bill had three principles—namely, the transference of the jurisdiction from the Justices to the Sheriffs; the putting an end to cumulative penalties; and, lastly, providing a new mode of valuing the damage done by game. As regarded the first principle, it was based on the assumption that the Justices would not do justice if they had an interest in the property in question. That assumption, however, went a great deal further—it went to the length that no man ought to sit in judgment in cases where the property involved was of the character of property in which he was himself interested. Thus a Chief Justice ought not to try a man for stealing silver spoons, his Lordship being probably interested in that description of property. This question of an unpaid magistracy was a great question, which ought not to be dealt with in this way, but ought to be looked upon as a whole. If it were thought desirable to substitute for unpaid magistrates stipendiary magistrates, let that be done in every instance, and not confined to one portion
  1646
  of the Kingdom and to one particular class of cases. As regarded cumulative penalties on poaching, it was not the first time that his hon. Friend had appeared as "the poacher's friend." He observed that the Chancellor of the Exchequer was not present; but it was for him to say whether a man who could be punished under one description of offence was not to be punished for a breach of the Excise laws as well. Those were matters which might fairly be considered in Committee. But he now came to what he believed to be the real principle of the Bill, and that was interference with freedom of contract. By the 4th clause, 3rd section, it was the tenant and the landlord who were to decide between themselves what should be set down as the value of the game on the land, and that was to be deducted from the rent. Now, where two men wanted the same farm, the protection which that clause gave to the tenant was absolutely illusory. He would assume that the clause passed, and that the two Conservatives who supported this Bill, the hon. Members for Dumbartonshire and Stirlingshire, wanted a farm of his. They took one, and they deducted 1s. for the game over the whole farm. How were they to prevent that? The House in this matter was asked to take a step which would prove illusory, and afford no protection to the farmer, while it would be cutting at the root of a very great and sound principle. He confessed that, like St. Paul, he was born free, and he wished to die a free man. By that he meant that the great inheritance they had was that free Englishmen and full-grown sane men in their bargains with each other should not be treated as if they were children and interfered with by the State. This principle had been accepted by the State, which had made exceptions in the matter of contract—it watched over women and children, minors and lunatics; and in dealing with Merchant Shipping and in the Factory Acts the principle was extended still further to the protection of life and limb. But in ordinary dealings by contract in matters of property, whether it were in funds, shares, or any other description of property, the State had not as yet broken through that broad line of demarcation, and he hoped and trusted it never would. If there was one thing more than another which placed the

  1647
  present Government in power, it was their resolve to put their foot firmly down on this question and to say—"We will not have this State interference with freedom of contract." It was amusing to find two Conservative Members (Mr. Orr-Ewing and Sir William Edmonstone), one of whom had placed his name on the back of the Bill, trying to prove to their own consciences and to this House that the Bill did not propose to interfere with freedom of contract, or representing the interference as so small that they were like the prostitute who pleaded the smallness of her child. But this plea was torn from them by the hon. and gallant Member for Aberdeenshire (Sir Alexander Gordon) and the hon. Member for South Norfolk (Mr. Clare Read), who welcomed the Bill because they saw in it the principle for which they had so anxiously striven—namely, the interference of the State in matters of contract between landlord and tenants. One word on the general question of the Game Laws. Hon. Gentlemen urged that game destroyed the food of the people, and said that they intended to vote for this Bill. But when another Bill was before the House in relation to commons, those same Gentlemen said it was essential that those commons should be preserved. "We are independent," they urged, "of England for a supply of food for the people. We can import what food we want, and therefore can afford to devote these waste spaces to affording recreation to the people." He would leave those hon. Gentlemen to reconcile those two arguments. He remembered on a former occasion a late Member of the House (Mr. R. Dalglish), referring to the ground game question, saying to him in the Lobby, "It is all very well for you to talk, but we are not going to give up hare soup." No doubt the hare soup question was a very great question. Any hon. Gentleman who sat on the Committee on the subject of Game Laws knew that something like 30,000,000 of rabbits alone were consumed in this country every year for food, while a great quantity were imported; and besides concerning the food of the people, the subject was connected with their industry. The skins of hares and rabbits formed the staple of a great trade—they were worked up into silk hats; and he should not be surprised if the silk hats
  1648
  of the hon. Gentlemen who sat around him were formed in a great measure of those skins. It was his intention to move the rejection of the Bill; but he wished to ask the hon. Member (Mr. M'Lagan) if he would withdraw the 3rd section of the 4th clause, which dealt with freedom of contract, if he (Lord Elcho) withdrew his Amendment. The question was a much larger one than was commonly supposed, and it was not desirable to break through the great principle of freedom of contract. By way of merely giving himself a locus standi in case of the hon. Member refusing his suggestion, he should move that the Bill be read a second time that day six months.
  Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Lord Elcho.)
  SIR ROBERT ANSTRUTHERsaid, he had not had the privilege of listening to his noble Friend for some time, and the last time when he had heard him was on a different occasion from the present. It was on an occasion when he appeared in the position with which he taunted his hon. and learned Friend the Member for Oxfordshire as "the farmer's Friend." Unless he was mistaken, it was only last year the noble Lord made a speech at Haddington—a most interesting speech—and his noble Friend then cautioned his audience against "lawyer-drawn leases"—and this was the hon. Gentleman who now said—"Beware of interfering with freedom of contract," because by perfect freedom of contract the landlord would be enabled to preserve as much game as he pleased.
  LORD ELCHOsaid, he was sorry to interfere; but as his hon. Friend seemed about to base an argument on the point, he might be allowed to say that the statement was absolutely without foundation. It was quite true he (Lord Elcho) did make a speech, being in the chair at an agricultural dinner in his county. After showing what wonderful discoveries there had been in chemistry—after pointing out that, instead of the ordinary rotation in crops, it would be found that by trying land in a certain chemical way they could get additional crops of barley, he said the leases, as affected cultivated land, formed a matter for consideration.
  SIR ROBERT ANSTRUTHER: Still it was evident that his noble Friend did not approve of lawyer-drawn leases.
  LORD ELCHO: Not of their terms.
  SIR ROBERT ANSTRUTHERwas prepared to deal with the question of contract, and was not the least afraid to meet his noble Friend on that point. With respect to the Bill of the hon. Member for Linlithgow, he admitted there was a good deal of good in it. All those provisions to which his noble Friend had referred were good. The assimilation of the law of Scotland in this matter to that of England was good. The removal of the jurisdiction from the Magistrates to the Sheriffs was good; the simple method of compensation for damage done by game was good. The objection he had to the Bill was that it was so weak. It did not go far enough. To please the hon. Member for South Norfolk (Mr. Clare Read) it must have gone further. They had had some very curious statements made in the course of the debate by hon. Gentlemen whose names were on the back of the Bill. The hon. Baronet the Member for Lanarkshire said—"My only objection to the Bill is with reference to Section 3 of Clause 4." But that was the only part of the Bill which was worth a farthing, in his (Sir Robert Anstruther's) opinion.
  SIR EDWARD COLEBROOKE: My speech was strongly in favour of the sub-section of Clause 4. I said it was the very back-bone of the Bill.
  SIR ROBERT ANSTRUTHER: Well, that was still more satisfactory for his case, because his noble Friend opposite was afraid of the horrible consequences that were to ensue from the sub-section. But here was an hon. Member of great experience in landed estates who said—"By all means let us have the sub-section. It is the back-bone of the Bill." That was very satisfactory. The hon. Member was moderate in all his opinions, and was deserving of the confidence of the House. The name of the hon. Member for Perthshire (Sir William Stirling Maxwell) was also on the back of the Bill. He trusted that the Government would deal with the question and pass part of the Bill. He (Sir Robert Anstruther) would like to ask him what was the part of the Bill he would like to be passed, and what part dropped? Perhaps he would say,
  1650
  if he were in the House—"Pass all those parts of the Bill to which I have referred, but kindly drop out the sub-seetion of Clause 4." Why, that was the very kernel of the whole measure. It was now 10 minutes past 4, and not a sound had been uttered from the Treasury bench. He sincerely sympathized with hon. Gentlemen on the other side, because even now they did not know which way they were going to vote. He might go further, and express a great doubt if the Under Secretary of State for the Home Department knew what he was going to do. He did not refer to the Secretary of State; he always knew his own mind. But he had commiserated the Under Secretary for the last two hours and a-half—he was very sorry for him. But he supposed they would know his opinion in the course of a few minutes, and it was quite possible that he had been waiting to hear his (Sir Robert Anstruther's) speech. If his statement had the slightest effect on the hon. Gentleman's opinion he should feel proud. But in what a position did it place his hon. Friend who had brought in the Bill. He did not know up to this very moment whether the child of his affection was to be strangled or emasculated. As soon, however, as the right hon. Gentlemen opposite got their orders, they would know whether it was to be strangled or not. If it was strangled, he should be sorry for the Scotch Tories. They had made use of the question on the hustings, and had doubtless brought all the pressure they could to bear on the front bench, in the hope of getting rid, once for all, of the election difficulty. If the Bill were strangled, what would happen? They had demanded redress; they had kneeled to the Secretary of State. He felt for the hon. Member for Peeblesshire, who so plaintively alluded to the state of matters in Peeblesshire. His hon. Friend the Member for Dumbartonshire took exception to the remarks of the noble Viscount the Member for Elgin, because he had said that a Scotch Tory was a compound animal. If the Government had decided that the second reading should be allowed they had discreetly put up his noble Friend (Lord Elcho) to propose the Amendment. If his hon. Friend the Member for Linlithgow were so unwise as to accept the alternative of withdrawing the clause that related to

  1651
  freedom of contract, the Government would accept the Bill, and it would pass with its most valuable provisions left. What a position his hon. Friend (Mr. M'Lagan) would then be in! His noble Friend (Lord Elcho) talked about being a free man, and about St. Paul, to whom he compared himself, with, he must say, a little self-consciousness. There were few people who had a greater regard for his noble Friend than he (Sir Robert Anstruther) had. He had many most estimable qualities, he was an amiable gentleman whom nobody could help but esteem; but his warmest friend, if asked to give a description of him, would, he thought, have stopped short of St. Paul. If his noble Friend showed him that the parties contracting did so upon perfectly equal terms, and without doing injury to a third person who could not help himself, then he would sit down. The noble Lord drew pictures of the Scottish farmers being treated like lunatics, or minors, and so on. He (Sir Robert Anstruther) believed the state of the case in Scotland to be this. Under the law of hypothec the demand for farms was so unwholesomely stimulated that the farmer could not contract on equal terms with his landlord. Every hon. Member in that House knew that the law of hypothec gave the landlord an immense advantage in dealing with his tenant. Why? Because it allowed him to put a tenant on a farm, knowing that in the event of any failure of the tenant the landlord could protect himself, but all the other creditors must go to the wall. If the law of hypothec were abolished, then his noble Friend would be right. But did the contract entered into between those parties affect only themselves? There was the case of the hares and rabbits, reserved between the landlord and tenant, going through the fences, and destroying the crops of a farmer who had nothing to do with preservation at all. He should vote for the second reading, because he thought it in many respects a good Bill—his only complaint was that it did not go far enough—he said he had made out a case in which they might interfere with freedom of contract. The principle of interference with freedom of contract could not be so dangerous, because it had been put into a Bill by the Under Secretary, in whom he might say he had complete confidence.
  1652
  It was true that he had since gone from the Opposition to the Treasury Bench; but he did not think the hon. Gentleman was one to refuse when in power what he had promised when out in the cold. On the 19th February, 1872, the Bill was introduced, and it contained these words—
  "An occupier of land stall be subjected to any of the restrictions hereafter to be specified in any lease or any agreement to which he is party."
  These had reference to allowing the land-land to shoot winged game and the shooting of animals out of season—
  "An occupier of land shall be entitled at all times to pursue, take, and kill hares and rabbits on such land without being liable to any forfeiture, action, suit, prosecution, or proceeding in any covenant, reservation, grant, or agreement with the owner, or with any other person to the contrary notwithstanding."
  Then it could not be so very bad. It would be interesting to know the line which the Secretary of State would take. He would ask him to do something in the matter. He wished he would try to settle it in the interests of both landlord and tenant, to settle it upon equitable terms, and, if possible, to do it so that it should not be opened for many years.
  MR. GREENEbegged to assure the hon. Member for Linlithgowshire that the farmers of England were strongly opposed to any interference with the freedom of contract. Any such interference would be most mischievous. The farmers of England were able to make their own contracts, and did not require to be treated like children. He did not see why the landlords and tenants should not be allowed to make their own contracts, for their interests were inseparable; and a landlord who allowed his tenant's crop to be injured by ground game was doing an injury to himself. Unless, therefore, the hon. Member consented to withdraw sub-section 3 of Clause 4, as suggested by the noble Lord the Member for Haddingtonshire, he hoped the Bill would be rejected.
  SIR HENRY SELWIN-IBBETSON: I am certain the House will bear with me for a moment while I say one or two words, before I deal with the Bill, in reference to the amusing speech of my hon. Friend the Member for Fife (Sir

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  Robert Anstruther). The hon. Baronet has brought against me what might be interpreted, if I did not know his thoroughly good intention, as a grave charge. He wonders whether I am prepared to assert that, sitting upon this bench, I change my opinion as rapidly as some people he says change theirs. What are the real facts of the ease? In 1869, 1870, 1871, and 1872 it seemed to be the fashion for hon. Members on both sides of the House to inundate the floor of the House with measures connected with the difficult question of the Game Laws. I, perhaps, as a young man, fancied I was wiser than I was, and I fancied I could contribute to the list of measures. I had long been convinced—and it is my conviction at the present moment—that this is a question which is not worth all the agitation and trouble and ill-will which are produced by it. I have long believed that if we could in any way deal with this question satisfactorily to the landlord and tenant, we should do much to promote agricultural welfare, and I was rash enough to suppose that that Bill of mine might have contributed to that result. But all these Bills met with the same fate. They were all—as perhaps they deserved—rejected by the House, and referred to a Select Committee which sat for two years. I believe not only my eyes, but the eyes of a great many of these amateur legislators on this subject, were very materially opened by the evidence given before the Committee. I am glad, therefore, of this opportunity to make my ample confession to the House that the evidence did convince me that my younger views on this question had, to that extent, been erroneous. I think the hon. Member for Linlithgowshire (Mr. M'Lagan) has deserved well of the House in regard to this measure by his evident desire to come to a satisfactory solution of the question. He shows that desire by giving up many of those notions—I will not say principles—which he had formed upon the question, and which he saw were antagonistic to the opinions of hon. Members on this side of the House. I will ask the House to consider whether we should practically be doing that which I believe we are all anxious to do—that is, to arrive at a practical settlement of the question—if we adopt this Bill as it has been pre-
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  sented to us. We heard in the course of the discussion the hon. Member for South Lanarkshire (Sir Edward Cole-brooke) object to the Bill because it would not settle the question, and almost all the Members who got up in the early part of the debate stated that while they objected to the Bill as not going far enough, they would vote for the Bill because it was a step in the right direction.
  SIR EDWARD COLEBROOKEexplained that he did not say that the Bill would not settle the question, but that he should have had more confidence in it if it had gone further.
  SIR HENRY SELWIN-IBBETSON: At any rate, there were many hon. Members who had said that the Bill as it stood was only a step in the right direction. I remember that argument was often used in olden times with regard to other measures, and I cannot think that it is a sound way of dealing with a great question like this by tampering with it in this way. Will the House think that the hon. Member for Forfarshire (Mr. J. W. Barclay) would accept this Bill as a solution of the question? We shall have, as soon as this Bill passes, a repetition of the Wild Animals Bill, and the hon. Member for Leicester (Mr. P. A. Taylor) will never be satisfied with any Bill that does not protect those whom he calls the people, but whom I call poachers. I do think there are objections to this Bill—to many parts of it—which, perhaps, have not been brought to the knowledge of the hon. Member who introduced it. It has been said in favour of the measure that it assimilates the law with regard to the property of game in Scotland to that which exists in England. But what would happen if this Bill passed? Why you would have in Scotland two distinct laws at the same time as to the property in game. On those farms which are let under any agreement from year to year you would have the game vested in the landlords as at present; whereas in regard to any land leased after the passing of this Bill, the game would be vested in the tenant. That is one objection which I see to this Bill. I am quite in accord with the hon. Member in wishing to see the law of England and Scotland assimilated; but I would like to see a more complete assimilation than is proposed in this

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  Bill. Now in regard to the 4th clause of this Bill, which has been so much objected to. Either the clause is utterly illusory, or it is a great interference with freedom of contract. Alandlord mayagree to let his farm at a certain agricultural rent, and set out the amount of damage—say at Is.—which the tenant is to suffer by the preservation of game. He may at the same time make the tenant sign a stamped agreement that he will not proceed against his landlord for any further amount, and thus your Bill would be rendered utterly nugatory. It may be said that the Courts of Law would hold such an agreement to be invalid; but in that case you come on the horns of your dilemma, and must admit that the Bill would be a real interference with freedom of contract. There are other cases in which the object you have in view might under the Bill be easily evaded. I think that if we deal with matters of this sort—if we deal even as the 12th clause proposes to do with the transfer of jurisdiction from the county Magistrates to the Sheriffs—we ought only to do so after very great consideration. I am not prepared to say that the arguments in favour of such a change may not be very great. I know that before the Committee, to which I have already alluded, a great deal of evidence was given on the subject, and from my experience as a magistrate I must say I should be only too happy to see cases of this sort taken away from their jurisdiction. But if that is to be done it should be done generally, and we should not allow the magistrates of Scotland to suppose a slur was passed on them by depriving them of a jurisdiction which was still allowed to their brethren on the other side of the border. Beyond these things, I think it may be very fairly urged that this Bill is to a certain extent an interference with the rating law of Scotland, because under this Bill you would allow any landlord practically to set out his own rateable value. There is another point in this Bill which requires very great consideration, and that is the clause which proposes to do away with the Excise and gun licences so far as the tenants and the people they certify to be their employés are concerned. If the gun licences and game certificates are wrong in principle it may be a very good ground for altering the law; but to exempt only a few individuals from
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  its operation would open the door to a great deal of evasion. I have shown that this Bill does interfere with freedom of contract, and that it possesses other defects; but, at the same time, there are points in the measure to which I give my own adhesion. Therefore, if the hon. Member would accept the challenge made to him by the noble Lord on this side of the House (Lord Elcho), and would withdraw the 3rd section of the 4th clause, I should not be prepared to oppose the second reading, on the understanding that the other clauses would have to be amended in Committee. But, on the whole, I think the hon. Member would best advance the interests he has in view by withdrawing the present Bill altogether.
  MR. M'LAGAN, in reply, said, he must remind the noble Lord the Member for Haddingtonshire (Lord Elcho), who to-day so strongly denounced interference with contract, that the Bill introduced three or four years ago—the Mines Regulation Bill—of which the noble Lord was a foster-father, went much further in the direction of interference with contract than the present Bill did. The noble Lord took the full-grown miners under his protection, and compelled the Legislature to make their contracts for them; but he neglected the poor tenants of Scotland, whose crops on which they depended were destroyed by the landlords' preservation of game. As he had said before, nobody was more opposed as a general principle to interference with freedom of contract than himself, and he maintained that there was only a semblance of such interference in the provisions of this Bill. If those who opposed his proposal on that head would undertake in Committee to propose some other effectual method of accomplishing the same end, he would withdraw the clause, but in the absence of any such undertaking he must go to a division. He regretted the Government were supporting the noble Lord, for anybody who had listened to the discussion must have been convinced that this was a Bill as to which there was little more than a difference as to some of the clauses, which could be readily arranged if the Bill were sent to a Committee. The right hon. Gentleman had stated that the Bill would alter the system of valuation in Scotland; but he

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  assured him that it would leave it practically almost the same as at present.
  Question put, "That the word 'now' stand part of the Question."
  The House divided:—Ayes 172; Noes 150: Majority 22.
  Main Question put, and agreed to.
  Bill read a second time, and committed for To-morrow.

HOMICIDE LAW AMENDMENT BILL.
(Sir Eardley Wilmot, Mr. Whitwell.)
HOMICIDE LAW AMENDMENT BILL.

  [BILL 75.] SECOND READING.
  Order for Second Reading read.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Sir Eardley Wilmot.)
  THE ATTORNEY GENERALsaid, there were many objections to the provisions of the measure, which was founded on the less preferable of two recommendations of the Commission on Capital Punishment. Instead of simplifying the law it appeared to him to complicate it and to render it more difficult for the Courts to administer. It divided the crime of murder into two classes—"offences of the first and second degrees." It defined murder of the first degree as "the unlawful killing of a human being by another, with deliberate intent to kill, and with malice aforethought;" but the 4th clause also declared it murder in the first degree "where death had been caused by the wilful act of any person when committing or attempting to commit any felony, or assaulting any peace officer or soldier in the lawful execution of his duty, or in attempting to rescue himself or another person from lawful custody." The consequence would be that much complication would arise from the question, what was "malice aforethought," and what was a "deliberate intent to kill." On the one hand, many acts of homicide, which were now murder, and which ought to be crimes of the first degree, would come under the second degree, because it might be impossible to prove "malice aforethought;" and, on the other hand, some offences would be murder which in the present state of the law were manslaughter only. What was required
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  was to know what the crime was under the Act of Parliament, without having reference to the subtleties of textbooks. The definitions of the crime would be most difficult and perplexing. If, for instance, a man went out to shoot and steal a fowl, and in firing at it he missed the bird and accidentally killed a man who happened to be at the other side of the hedge—the Bill made that man liable to be tried for murder of the first degree, although he was innocent of all intention to kill the man. Again, where a constable took a drunken man into custody, and the man in the struggle injured the officer in such a way as to cause his death, the Bill made the offence murder, though the drunken man had no intention to commit murder, or to inflict any injury whatever. If a constable took a pickpocket into custody, and the pickpocket in his effort to escape injured the officer to such a degree that he lost his life, the Bill made it murder, although the poor wretch had no object but that of escaping. The only definition given of murder in the second degree was that it was not murder in the first degree. Murder in the first degree was punished with death; but the punishment for murder in the second degree were discretionary, varying from penal servitude for life to penal servitude for seven years. The Bill, in treating of infanticide, provided that the crime should be murder in the second degree if the act was committed at the time of the child's birth or within seven days after; if seven days had elapsed, it would be murder of the first degree. There was no class of murders so frequent as that of infants, and he saw no ground why the offence should not be treated as seriously as the murder of adults was treated. He could not see that there ought to be any difference between the deliberate murder of an infant and an adult. Another objection that he had to the Bill was that it, in effect, took away the prerogative of mercy from the Crown and handed it over to the jury. Those with whom the prerogative now rested were persons who were able to make a calm and unimpassioned inquiry into all the circumstances of the case, and were able to advise the Crown without prejudice; whereas the juries were peculiarly liable to be influenced by personal sentiment, by the skilled art of counsel, or the feelings ex-

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  cited by the circumstances of the trial of the provocation suggested. On the other hand, the Bill took away the power of pardon or mitigation in the case of persons sentenced to penal servitude for life, for it provided that the order for liberation and the grounds thereof should be laid on the Table of the House of Parliament for one month before it took effect. The power to be given to the juries resembled that possessed by juries in some foreign countries—and which was constantly exercised in France—of returning a verdict of "Guilty, with extenuating circumstances." It might be that the law of homicide required amendment. Practically, he believed the law as it now existed worked well, because it was administered by Judges who thoroughly understood the law relating to the crime; but it might be well to make the theory more consonant with the practice. The question was one of the utmost importance, and should be dealt with by the Government, who could act under the advice of the most competent authorities, and should not be left to be dealt with by any private Member, however able and experienced a lawyer he might be.
  SIR EARDLEY WILMOTsaid, he must apologize to the Attorney General for having, as a private Member, undertaken such a task, but he had a strong feeling that the law respecting murder required amendment, and he was anxious to forward law reform to the utmost of his power. In relation to the appointment of a Public Prosecutor and other improvements in the criminal law he had put himself in communication with the Home Secretary, and it was only because no step was taken in the matter that he brought in the Bill. He hoped on a future occasion to be able to meet every objection taken by the Attorney General to the Bill, and seeing that the sitting had now almost drawn to a close he would move the adjournment of the debate.
  MR. SPEAKERsaid, it was not competent to the hon. Member as Mover of the second reading, to move the adjournment of the debate.
  MR. WHEELHOUSE: Then, Sir, I move that the debate be now adjourned.
  Motion agreed to.
  Debate adjourned till Wednesday next.

  EAST INDIA (CHIEF JUSTICES OF HIGH COURTS) BILL.
  On Motion of Sir GEORGE CAMPBELL, Bill to amend the Law relating to the appointment of Chief Justices of the High Courts in India, ordered to be brought in by Sir GEORGE CAMPBELL, Sir GEORGE BALFOUR, and Mr. KINNAIRD.
  Bill presented, and read the first time. [Bill 98.]

  DRAINAGE AND IMPROVEMENT OF LANDS (IRELAND) PROVISIONAL ORDERS (NO. 2) BILL.
  On Motion of Mr. WILLIAM HENRY SMITH, Bill to confirm two Provisional Orders made under "The Drainage and Improvement of Lands (Ireland) Act, 1863," and the Acts amending the same, ordered to be brought in by Mr. WILLIAM HENRY SMITH and Mr. SOLICITOR GENERAL for IRELAND.
  Bill presented, and read the first time. [Bill 99.]
  House adjourned at ten minutes before Six o'clock.