Commons Sitting of 21 February 1877

MINUTES.
— SELECT COMMITTEE — General Carriers' Act, appointed.
PUBLIC BILLS — Ordered — First Reading —Union of Benefices * [95]; Capital Punishment Abolition * [96]; Vaccination Law (Penalties) * [97]; Railway Passengers Protection * [98]; High Court of Justice (Costs) * [99].
Second Reading—Game Laws (Scotland) Amendment [25]; Registration of Borough Voters [38], debate adjourned.
Second Reading—Referred to a Select Committee— Ecclesiastical Offices and Fees [12].

ECCLESIASTICAL OFFICES AND FEES BILL— [BILL 12.]
(Mr. Cowper-Temple, Mr. Russell Gurney.)
ECCLESIASTICAL OFFICES AND FEES BILL— [BILL 12.]

  SECOND READING.
  Order for Second Reading read.
  MR. COWPER-TEMPLE,in rising to move that the Bill be now read a
  756
  second time, said, that its object was a reform of the procedure of the Ecclesiastical Courts, which had already occupied the attention of the Legislature for many years. The laws regulating these Courts and their fees rested on nearly 100 statutes, and almost all the 11 Bills to reform them which had been brought in at different times included the substance of the present Bill. Most of those Bills seemed to have failed because they attempted to deal at one stroke with a subject so wide and so complicated that it was not possible for any general agreement of the House to be reached in a single Session. What had been accomplished, which was much, was effected by dealing successively with separate parts of the whole. In this way ecclesiastical jurisdiction had been settled; and the part which remained was the procedure in non-contentious business, and the instruments, licences, and remuneration of officers in granting and registering those instruments. The difficulties and abuses that had arisen from time to time with respect to these things were so notorious that he need not dwell on that part of the subject. As long ago as 1832 a Royal Commission was appointed to inquire into them, which recommended a reduction of the fees and offices; and in 1850 a Committee of that House took evidence and made various recommendations. Amongst them was the following:—
  "Your Committee have found from the whole of the evidence submitted to them that the sage precautions of the ancient civil and ecclesiastical laws against undue exactions of fees and the multiplication of offices have been practically disregarded; and your Committee recommend that payment of fees should be replaced by fixed salaries throughout the ecclesiastical establishments."
  No steps, however, were taken to give effect to that recommendation; and it appeared, from the Returns of the years following, that in 90 cases the official duties of registrars were performed by deputies; that 17 minors had been appointed registrars; that two ladies held the office, one of whom had been appointed at the early age of five years; and another registrar was insane. The office was held by patent for life, and it was practically impossible to remove the holders even for incapacity and misconduct. In the diocese of Bristol the

  757
  deputy registrar made no distinction in his charges in Common Law business between what was due to him as an officer of the Court and his professional charges as a proctor. In other dioceses there was no table of fees, and in one diocese the chancellor had doubled all the fees, because he thought they were too small before. In that of Durham the public paid fees for the service of the registrar, who did no part of the business, and then had to pay also the deputy who did the work. In Rochester the office of registrar was formerly held by two clergymen, who each took a third of the fees, and the remaining third went to the deputy, who did all the work. In Bath and Wells the visitation fees which were due from each parish in the diocese were divided between the chancellor, the apparitor general, the registrar, the deputy registrar, and the deputy apparitor general. In 1869 another table was framed in which fees were granted to the secretary. The fees on collations, institutions, and licences received by the secretaries were larger than those of the registrars. Although the chief part of the judicial business had been removed from these Ecclesiastical Courts, the number of officers had not been diminished, and they made large charges, in addition to their fees, for small benefits conferred. The first of the two leading objects of the Bill was to reduce the number of officers to what was at present required; the second related to arrangements for their remuneration. The number of officers was obviously excessive. In one single diocese he had ascertained that the number of officers was 32. The work which was divided between them could be properly performed by two persons, the chancellor and the registrar, but the Bill contemplated its being done by four, the chancellor, the registrar, the secretary, and the apparitor; and taking the average of the officers in the various dioceses, the number of offices might be fairly and properly reduced without any disadvantage to a fourth of the number at present existing. The Bill contained a list of the officers in its Schedule who were to continue, the duties of the others being transferred to the offices which were retained. The changes necessary would be brought about as vacancies arose, no present
  758
  holder of an office being disturbed in it. Commissaries would be abolished altogether, except as a mere temporary appointment made for special occasions. There was no security under the present system that a person appointed to discharge duties was fit by either experience or training to do so, but future appointments would not be permitted to be performed by deputies. The Bill would therefore provide a remedy in that respect. The officials of archdeacons would be abolished, and their duties transferred to diocesan officers, an arrangement which was not open to objection. But the important proposal of the Bill was that henceforth all payments should be made not by fees but by salaries, and for the purpose of apportioning regular salaries the fees must be paid into a common fund, which would be under the direction and responsibility of the Ecclesiastical Commissioners. These fees must be received by stamps, as the safest and easiest mode of taking no less and no more than was due; but where unforeseen difficulties might arise, it was provided that Rules and Orders might be issued by the Privy Council for dispensing with the use of stamps. The marriage licence fees which were granted as dispensations from banns varied in different dioceses. He presumed that the Orders in Council would make them uniform. The salaries of the officers who were to be retained was stated in the Schedule at a maximum amount; the total amounted to about £34,000, and a limitation would be placed on the amount to which they might be reduced. Since the abolition of church rates the difficulty had in-of inducing proper persons to take the office of churchwarden, because they had certain fees to pay and no fund out of which to discharge them, and no process of law could compel payment from an unwilling churchwarden. It was therefore proposed to abolish those fees payable at visitation. The Bill dealt with the fees paid by clergymen on institution to their benefices, but it did not specify them, it followed the precedent of previous Acts, and authorized the issue of tables of fees. He thought those fees ought to be reduced, and it was proposed to repeal those Acts which authorized tables of fees, in order that new tables of fees might be provided.

  759
  The persons who issued the tables of fees were, as before, the two Archbishops and the Lord Chancellor; but it was made competent to Her Majesty to name other Members of the Privy Council who were to be associated with the Lord Chancellor in the issue of these Rules and Orders. In reference again to the marriage fees, if these remained substantially the same, and if the Schedule passed, there would be a surplus available, which might reduce the fees paid by the clergy by 40 per cent. The existing officers were not injured pecuniarily, and there would be a proportionate equality amongst them as to the share they would receive out of the general fund. The Bill reserved for those officers who had accepted office before the Act of 5th and 6th Will. IV. the rights of compensation which that Act conferred upon them for any damage they might sustain. One clause might excite emotion in that House, the clause that provided a salary for the Judge who was now sitting in the Court of Arches a sum of £1,500 a-year. The attention of those interested in this subject had been drawn to a correspondence of Dr. Tristram, who had undertaken to protect the interests of registrars. Dr. Tristram's idea was, that they might guard against the re-introduction into the Bill of the provision for having fees taken by stamps instead of money, if he could persuade the chancellors and registrars to tax themselves voluntarily to an amount of from 3 to 5 per cent, but this ingenious suggestion had met with no response. The Bill was identical with the one which passed through the House of Lords last year, and it ought at least to receive respectful consideration, especially as it had passed unanimously with the approval of the Episcopal Bench and the Lord Chancellor. It was unfortunate that Her Majesty's responsible Advisers could not undertake this subject. Lord Cranworth, when he was Lord Chancellor, did propose a measure dealing with ecclesiastical offices and fees, but an opposition led by the Bishop of Exeter defeated the Bill; and since that date no Government had introduced Bills of this character, they had been left to the Episcopal Bench or to independent Members of Parliament. But although the Government were not ready to take the responsibility of pro-
  760
  posing a measure of the sort, yet he was sure that the right hon. Gentleman who now represented the Government in that House, would feel that practically responsibility attached to him on this subject. They must admit the importance of removing the discredit attaching to the Church from the abuses of the civil administration of its offices; and he trusted they would secure for the Bill a full and impartial consideration. This measure of reform in the Church could not be opposed on its principles, and he was ready to justify its details in Committee. The right hon. Gentleman concluded by moving the second reading of the Bill.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Cowper-Temple.)
  MR. RAIKESsaid, he wished to offer a few observations as an independent Member of the House, and not as in any way connected with the Government or any other organized body. No one would be unwilling to admit that the right hon. Gentleman opposite (Mr. Cowper-Temple), had stated his case very fairly in introducing the Bill; but at the same time, he (Mr. Raikes) thought there was some reason for complaint against those persons who agitated that question outside of the House for pushing forward the Bill in that particular shape at that particular moment. The measure provided for the reduction of ecclesiastical officers and the remuneration of the surviving officers; but another part of it related to the Provincial Judge, and he doubted very much whether, if the circular of Dr. Tristram had been more successful, this Bill would have appeared at the present moment in either House of Parliament; and he confessed that he thought it would never have seen the light at all if it had not been necessary to provide a larger salary for the Judge of the Arches Court. He considered that that Judge should have a suitable stipend; but he was at a loss to see why the salaries of other persons should be diminished in order that the stipend should be provided. When the Public Worship Regulation Act was proposed, the subject of that salary was withdrawn from it, and it was left to the

  761
  generosity of the public, or the future wisdom of Parliament, to fill up the vacuum. He did not see why an Ecclesiastical Judge, whose appointment was regarded as of great public importance, should not be paid by the nation, or, if that was not acceptable, why should not the Archbishops and other members of the Episcopal Bench, who had always clamoured, if he might use that phrase, for the appointment of an Ecclesiastical Judge, be called upon to pay towards his salary. There were other grounds for deprecating the introduction of a Bill at this time in reference to these fees. The matrimonial laws would have to be amended, and the fees in respect to them would have to be dealt with; and, therefore, he thought they should wait before making the particular changes now proposed. Moreover, reference had been made in the Press to the supposed intention of the Government to bring in a Bill for the creation of new Sees, and it would be desirable to know what the new Sees were to be, before dealing finally with the matter now before the House, and the fees which would have to be paid to the officials. As to the payment of fees by churchwardens, he thought it would be desirable to abolish them. There were 10,000 parishes in England, and their churchwardens' fees, the collection of which was very difficult, formed a very small portion of the total of £40,000 collected. The payment of money by stamps would be a difficult matter to carry out all over the country, and he did not see that the Bill provided for it. He admitted that some of the proposals in the Bill would effect certain improvements, but he had suggested good reasons for pausing before they attempted to legislate. With respect to the Bishop's chancellor, they were told that in future he was always to be a person learned in the Civil Law. If that was to be construed literally, he supposed it would mean that he was to be a D.C.L., a degree frequently bestowed honoris causâ, and which was not enjoyed by some of the first lawyers of the day. It would therefore be restrictive, for while it would, to a great extent, exclude the members of the English Bar from holding it, it would not prevent clergymen who had taken that degree from doing so. Beyond that, there were many well-qualified persons who had not the degree of D.C.L., while many who
  762
  possessed it were wholly unqualified. Some Bishops seemed disposed to ignore the real duties of the office of chancellor, as in one case the chancellor had been appointed the head of a theological College, and that he considered was objectionable as the duties of two such offices were very different. The functions of the Court of the Bishop's chancellor in regard to the personal status of the clergy had been described as more analogous to those of a court-martial in regard to the personal status of officers of the Army than anything else, and he thought the Army would object strongly to having all matters relating to military discipline judged by the nearest magistrate. The clergy had a right to be heard before the appointment of clerical chancellors was done away with. He disliked the proposed union of registrar and Bishop's secretary, as the duties of the two officers were wholly distinct in practice. He granted that a Bishop's secretary ought to hold his office during pleasure; but he thought that the office of registrar, now held during good behaviour, and which was one of the best parts of our ecclesiastical system, had better be kept on its present footing. Upon the general question he wished to observe that there was a great disposition in the country to believe that these fees were excessive, that they pressed hardly upon the clergy in particular, and that they were received by pampered officials who did little and were largely paid; but, whatever might have been the case in former times, that was not so now. The large fees had been swept away by the Acts which constituted the Probate and Divorce Courts, and the registrars did not receive now more than from £500 to £600 a-year, and they did a large amount of work. In conclusion, the question before them, affecting as it did the position of a body of men not largely represented in the House, was one of considerable importance, and their interests ought not to be disposed of without careful consideration and further inquiry.
  SIR WALTER BARTTELOTsaid, if there were one thing more clear than another to be learnt from the two speeches which they had heard, it was that there was an absolute necessity for a change in the law in regard to this subject. The measure proposed to abolish churchwardens' fees, which

  763
  caused great dissatisfaction in the country, and that fact alone should commend the Bill to the consideration of the House. No doubt it would be highly improper to take away the emoluments of these different classes of persons, without giving them an opportunity of being heard; and remembering also that that was a question of much difficulty, it having been under consideration for some 30 years, he thought it could only be satisfactorily dealt with by practical men, and he should have greatly preferred it if the Home Secretary had taken its settlement in hand and brought in a well-considered measure on the subject. But, thinking as he did, that there was a want for the measure, he would venture to hope that it would be referred to a Select Committee, so that all parties whom it affected might have the opportunity he had referred to, and where everything would be well considered, and as this could be done early in the Session, he should hope to see a good Bill passed this year. Everyone who had read this Bill as it now stood, must come to the conclusion that in its present shape it was very objectionable, very unfair, and could not be allowed to pass.
  MR. GOLDNEYcongratulated the right hon. Gentleman the Member for South Hampshire (Mr. Cowper-Temple) on having brought forward the Bill at so early a period of the Session, because it would give the House an opportunity of fully considering the subject. Other measures of the same kind had usually come down to that House at the end of July when it was impossible to consider them. Frequent attempts of late years had been made to deal with the subject, and in 1872 the right hon. Gentleman the present Home Secretary, before he held office, sought in an admirable manner to grapple with it. For a long time past there had been loud complaints against these ecclesiastical fees, which were often exacted for little or no real service performed. The sums now received by various ecclesiastical officials who filled places which had existed for a long period, but many of whose offices were now practically gone, amounted to about £80,000 a-year. Of that sum £40,000 came from marriage fees, about £15,000 from the clergy on admission to their benefices, £13,000 from visitation fees, £3,000 from consecration fees, and
  764
  the rest from minor sources. In the various dioceses the secretaries of the Bishops received on the average about £400 a-year each; the chancellors about £300, the registrars about £800, and the apparitors and surrogates smaller sums. One officer did his work by deputy, another provided parchment, another provided the seal, another fixed the seal, and so on, the total amount they obtained from the public being, as he had said, no less than £80,000 per annum. The office of Bishop's secretary was entirely a modern creation, and those officers ought therefore to be paid either by the Bishops themselves, or from the funds in the hands of the Ecclesiastical Commissioners, and certainly not by fees. It was absolutely necessary to have a Provincial Judge, and also in each diocese one chancellor; but they ought not to keep up useless offices in order to levy fees from the public for marriage licences and other matters, or from clergymen who were instituted into benefices, the new incumbent having, what with dilapidation charges and other expenses, quite enough to bear without that further impost. Much dissatisfaction was sometimes caused in respect to consecration, and in one instance a hon. Gentleman, a Member of that House, had built a church, and when the time came for its consecration the Bishop of the diocese could not attend and he had to apply to the Bishop of the adjoining diocese, who performed the ceremony; but the consequence was that the Gentleman who built the church had to pay the consecration fees twice over, once for each diocese. That was a specimen of the abuse of this system that required to be abolished. This measure had been introduced into the other House with the sanction of the Bishops, and, also, he understood, with that of a great number of the officials concerned, who were themselves willing to have their duties and their fees better regulated. Let the House, then, get rid of offices to which no work was attached, and only retain those in which real duties had to be performed. He thought the simplest mode of proceeding would be for the Ecclesiastical Commissioners to ask the Bishop what official aid he required, and then, having obtained duly qualified persons, to pay them for their services. They should do that now, without waiting for any prospective and undefined changes

  765
  in the marriage laws, which had, after all, nothing to do with the matter now before them. He anticipated great benefit from referring the Bill to a Select Committee.
  MR. BERESFORD HOPE,while recognizing the moderation and calmness of the hon. Mover, contended that there were incidents connected with the contents and with the introduction of the Bill which called for inquiry, and he trusted, therefore, that the Bill would be referred to a Committee which would have power to take evidence. He spoke especially to the letter, also referred to by his hon. Friend the Member for Chester, from Dr. Tristram, the chancellor of London, and therefore the highest but one of all our ecclesiastical Judges, and a man who was competent to know what he was talking about in such connection. His letter was not intended for publication, and therefore no doubt contained the undisguised and innermost thoughts of the writer—and there was something fresh and innocent in those inmost thoughts of so venerable a Judge. Dr. Tristram alleged that the whole intention of the Bill was to find a salary for Lord Penzance, and that if all the ecclesiastical officials would unite in a subscription for Lord Penzance, nothing more would be heard of the Bill. But the Bill had been heard of again, so clearly Dr. Tristram's scheme must have broken down. Still, there remained his statement, with all the weight of his authority; and there was the diametrically opposite statement of his right hon. Friend. A Committee was clearly needed for settling the question whether, as Dr. Tristram said, the 52nd clause was the Bill, and the rest merely what in the language of editors was called "padding;" or, as the right hon. Gentleman held, the rest of the Bill was the Bill, and the 52nd clause the "padding." The proposal to pay the Public Worship Regulation Judge by fees touched consciences and feelings, and was not to be measured by the simple amount of money involved, while, on the other hand, to abolish offices for the mere sake of cutting down something seemed to him poor economy. Then he thought the hon. Member for Chippenham had argued with less than his usual acuteness in protesting against consolidation, as if that were not the more convenient, while equally effective way of effecting reduc-
  766
  tion, while simple abolition would be alike rude and unsatisfactory. In regard to Lord Penzance, everyone who had the welfare of the Church at heart would regret to see the question of a revision of fees mixed up with the unfortunate controversy which had been raised in connection with the Public Worship Regulation Act, as if there were no other way of providing its Judge with his stipend. The appropriation of marriage and other fees to the payment of the Judge entrusted with the working of that Act would lead to much dissatisfaction. It aggrieved the laity, from whom the large amount in the way of marriage licence fees would proceed; and it aggrieved the clergy, who were called on to pay for a new penal jurisdiction created for their own "regulation" or, as they might think, oppression. How could the right hon. Gentleman justify his proposal to have the brand of discord lighted at the torch of Hymen? Or how would a clergyman on his induction enjoy being forced to help to pay the Judge by whom he might be expelled? Such a provision was like telling a man that the costs of his trial and conviction could be paid out of his own goods, like costs in a civil suit. Those most unhappy prosecutions which had recently agitated the Church, were the shame and the regret of all right-minded and quiet people; and yet they here attempted to impart the memorial of them into a statute which ought above all things to be kept free of strife and dissension. It was a very great mistake, he might even say a political blunder, to hamper the Bill with burning questions, and if only to raise it out of that atmosphere of contention, he should be glad to see it sent to a Committee having power to take evidence.
  MR. MONKsaid, he rose principally to correct one or two inaccuracies that had occurred during the debate. His hon. Friend opposite (Mr. Beresford Hope) had wished Dr. Tristram to be examined, but if the hon. Gentleman had read the evidence that had been taken last year he would find the vicar general of the Province had been heard at great length. He was glad to see that the fees for the admission of churchwardens were abolished by the present Bill, and he agreed with his hon. Friend the Member for Chippenham (Mr. Goldney) that the fees for the institution of

  767
  clergymen to benefices should also be done away with. He would admit that Bill had many excellent features; but it was one of so complicated a nature that a Committee of the Whole House could not fully examine its provisions. He was glad, therefore, that the Bill was going before a Select Committee; but he hoped it would not be necessary to take any evidence, as a large amount had already been collected. With regard to the amount of the fees, those who were competent judges estimated them at only £45,000 and the highest estimate he had ever seen was £52,000, instead of £80,000, the sum mentioned by the hon. Member for Chippenham; but however that might be, it was very desirable that certain of these fees should be abolished, and he therefore, as he had said, approved of the reference of the Bill to a Select Committee.
  SIR JOHN KENNAWAYin supporting the Bill, wished to point out that undue haste and spoliation were not fair charges to make against the promoters of the measure. It had been open for discussion since last Session, and it dealt most tenderly with existing interests. The question really was whether the Bill was a fair way of remedying a grievance which had long existed. It proposed to abolish or amalgamate offices only as they fell vacant by death, or lapsed in other ways, by which means 409 offices could be reduced to 100. A great reduction of fees must naturally be expected to follow, and it was estimated that on the fees payable by clergymen on institution and induction alone there would be a reduction of 33 per cent. In view of the great benefits which the Bill promised it was thought proper to set apart a certain amount of fees to provide for an adequate salary for the Ecclesiastical Judge, and that was a question which might very well be considered by the Committee. As the Judge did his duty, it was only right that he should be properly remunerated; and it was to the interest of the Church that his status should be upheld. He agreed that the nation ought to pay the salary of the Judge, but so far this had not been proposed.
  MR. WHITWELLexpressed his satisfaction that the Bill had been brought forward. The sooner these questions were settled the better it would be for
  768
  both the Church and the community generally, as delay would only tend to aggravate the difficulties. There should not be a strict limit placed to the taking of evidence before the Select Committee, because it was desirable that all the circumstances of the case should be dealt with after mature consideration.
  MR. ASSHETON CROSSsaid, he could, at all events, speak on this question with an unbiased and unprejudiced mind, because long before the heated discussions which had arisen from a matter connected with one of the clauses in this Bill his attention had been called to the present subject. The more he looked into the question the more he was persuaded that, so far as the Ecclesiastical Courts were concerned, they were in the position in which all institutions were found that had not been reformed for a long period of years. Where there had been considerable neglect, the natural consequence was that a great sum of money was gathered from persons who could ill afford to pay it. To him it seemed as if a quantity of officers were appointed for the sole purpose of swallowing up the fees, and a quantity of fees imposed for the sole purpose of being swallowed up. He did not purpose to repeat the statements on the subject which he believed had met with the ready acceptance of the House in 1872, nor to endeavour to show that some large reform was necessary for the purpose of providing a remedy for the present state of things. He found that the Bishop of London introduced a Bill on the subject in 1847, another in 1848, and a third in 1849. The Government of the day then took up the question. The Lord Chancellor at that time (Lord Cranworth) brought in a measure for the purpose of regulating those Courts, and it was passed by a majority of 8. In 1869 Lord Shaftesbury introduced one Bill and the Archbishop of Canterbury another, and both were referred to a Select Committee. That Committee reported that one of the Bills should be proceeded with, but owing to want of time the Bill fell through. Lord Shaftesbury again brought the question forward in 1870, but as he was told that some information was required before it could be legislated upon, he had to put the matter off. He again brought it forward in 1871, but it could not be dealt with owing to the illness of the Arch-

  769
  bishop of Canterbury. In 1872 he again introduced his Bill, and in the same Session he (Mr. Cross) brought it forward in the House of Commons. The hon. Member for Chester (Mr. Raikes) then made nearly the same speech as he had made to-day, and as he (Mr. Cross) could not concur with him in thinking that the time had not arrived for dealing with it in a satisfactory manner, it was hoped that, after those five years of grace which had intervened, his hon. Friend would be content that the House should now really proceed to business. There were many matters which would require the greatest possible consideration. He was aware that there were considerable interests concerned, and he readily admitted that those persons who now held the offices should have their interests duly and carefully examined into and respected. He must, however, entirely dissent from the proposition that because a person held a particular office he had not only a vested interest in it, but was entitled to have it continued for his satisfaction to future generations. He did not want to mix up considerations with regard to the case of Mr. Tooth, in connection with Clause 52, or to make any remarks which would give rise to controversy; but in 1872, long before the Act which had been referred to had been passed, he made a proposition that the fees in connection with the procedure in Ecclesiastical Courts required material alteration. He showed that there was one case in which the costs amounted to £5,000, and another in which they exceeded £8,000. It was quite clear that sums of that kind practically rendered any judicial decision impossible. Quite irrespective of that Act of Parliament, some reform was necessary in order to cheapen procedure and avoid actual waste of money. Far be it from him to say that in wishing to cheapen the procedure, he wished to increase the number of suits. He did hope that the common sense of England would set itself against much litigation. He thought that the fewer suits there were the better, and that common-sense men of all parties would agree with him in that opinion. When they came to look at the amount of fees which were levied, the number of officers, and the amount of business done, the contrast was conspicuous. In the Chancellor's and Registrars' Courts the number of
  770
  cases in 1869 was 12, and in 1870 it was only six. They did not want a very extravagant staff for that amount of business. This question had been before Parliament over and over again, and he wanted the House now to face it. He would, therefore, request that the Bill should be referred to a Select Committee, not with the view of shelving it, but with the view of remedying some of the defects to which reference had been made.
  Question put, and agreed to.
  Bill read a second time, and, on the Motion of Mr. ASSHETON CROSS, ordered to be referred to a Select Committee.
  Motion made, and Question proposed, "That the Select Committee have power to send for persons, papers, and records."—(Mr. Beresford Rope.)
  MR. COWPER-TEMPLEthought it would be a great mistake to agree to the proposal.
  MR. ASSHETON CROSSsaid, it was not requisite that the Committee should have power to summon witnesses from every part of the United Kingdom, because the only result of such a proceeding would be that the whole question would be gone into, and the Bill be thrown over. It might be that the Select Committee, when they considered the Bill, might ask leave of the House to take evidence upon certain points. In the first instance, he was quite satisfied that it would be better to refer the Bill simpliciter to a Select Committee; and if they considered it necessary to take evidence on any particular point they could ask leave of the House to do so.
  Motion, by leave, withdrawn.

GAME LAWS (SCOTLAND) AMENDMENT BILL.— [BILL 25.]
(Mr. M'Lagan, Sir William Stirling Maxwell, Sir Edward Colebrooke, Mr. John Maitland.)
GAME LAWS (SCOTLAND) AMENDMENT BILL.— [BILL 25.]

  SECOND READING.
  Order for Second Reading read.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. M'Lagan.)
  SIR ALEXANDER GORDONsaid, that as the present Bill did not agree with the Bill that was read a second

  771
  time last Session, and as it included some amendments suggested by the Government last year, he concluded it would have their support. He thought it necessary to go somewhat in detail into the objections he entertained to the Bill. His first objection was to Clause 3. The Bill of last year was made applicable to tenants who held leases of one year's duration—yearly tenants; the present Bill was applicable only to tenants under a lease of not less than two years. The effect of the clause would be to throw out of the benefits of the Bill the small yearly tenants, the very class of people who suffered most materially from the damage done by game. Therefore, he did not think it would be fair to restrict the operation of the Bill to tenants holding under long leases only, or under leases of over two years. His next objection was to Clause 4, which dealt with the sole right of "hunting, taking, and killing rabbits, hares, and other game." The effect of the clause would be, that if the landlord reserved to himself winged game and hares—the usual reservation—he would not be able to fire a shot, either himself or his friends, at a crow, a wood-pigeon, or a rabbit during the whole period of 19 years. He asked the House whether that was a state of things which landlords were likely to accept? His next objection was to sub-section 3 of Clause 4. In this sub-section, the principle of last year's Bill was abandoned. The principle of last year's Bill was, that in order to reserve the sole right of shooting game, the amount agreed upon between the landlord and tenant that the latter was to suffer by the depredations of game must be stated in the lease, and upon that amount the landlord was to be assessed for rates and taxes; and it was pointed out that that provision would insure a just amount being inserted in the lease, because if the amount was too small the tenant would come in more readily to claim damages; and if it was high, the landlord would then have to pay taxes to that amount. The one was a counter-check upon the other. But in sub-section 3 of this Bill that principle was abandoned, and the landlord was allowed to reserve the game, or any part of it, or any part of the wild animals, without stating any sum as the amount to which he thought the tenant was likely to suffer from the depredations of game. The result would
  772
  be, that the landlords would never put down any amount—because the Bill provided that where no amount was stated, 40 s. should be taken as the amount of damage done, without any claim for compensation. The clause also provided that the damage must be shown to have been committed by that class of game or wild animals to which the reservation applied; that if the landlord reserved to himself winged game and hares, and gave up to the tenant the right to shoot rabbits, and to kill wood-pigeons and rooks, the tenant might demand from his landlord compensation for damage done to his crops. But the difficulty would be to prove what damage was done by the hares, which belonged to the landlord, as distinguished from the damage done by the rabbits, wood-pigeons, and crows, which belonged to the tenant. Everyone acquainted with the question knew the great difficulty of proving damage by game. The licensed valuators themselves who inspected the crops on behalf of the parties differed in some instances to such an extent, that it was difficult to believe they were speaking of the same thing—that was, as to damage done by game. Then the damage done by wood-pigeons was very great, and had greatly increased since the gun licence had been imposed upon farmers. They were unable now to destroy wood-pigeons. The consequence was that associations were formed in many parts of Scotland for the purpose of destroying the pigeons; they offered rewards for their destruction-1d. a-head for rooks and wood-pigeons and 6d. a-dozen for wood-pigeons' eggs. There was another thing which imported great difficulty into the question of assessing the amount the landlord had to pay—namely, the damage done by the tenant himself, or which occurred through his neglect or carelessness. In the case of sheep straying from the fold, for instance, or sheep breaking out of the paths, as they were called in Scotland, they would cause in one night a great amount of damage, and it would be hard that the landlord should have to pay for them. But no landlord could well prove that the damage had been occasioned by a flock of sheep straying out at night. There was another injustice which would be occasioned under this clause, which did not arise under the Bill of last year—namely, that arising from the necessity

  773
  of a double proof, first, that the damage was done by the game reserved, and, next, that it was done by game which merely harboured on the land or came upon it from neighbouring land. By the Bill the landlord of one property would be liable to pay for the damage done to his tenant by game and wild animals coming from another man's property. That, he thought, was a very great hardship. Another objection was in reference to moors and grouse shooting though there were no crops on the moors. By this Bill, unless the owner of a moor reserved to himself the hares upon it, the tenant might come and shoot them although he had no crops which they could injure. That was very hard. Moreover, the Bill would be found practically inapplicable, because it would be set aside by "the regulations for shooting" in Scotland. Nearly all the proprietors in Scotland had regulations for shooting by which all tenants were bound when they took leases, and nothing in this Bill, so far as he could see, would set aside those regulations if the tenant accepted them, and unless he did accept them he could not get a farm. One of the regulations was this—
  "The tenant shall have no claim if the alleged damage committed upon him shall be held to have been done by hares or rabbits or other wild animals."
  A tenant subscribing to those regulations would derive no benefit from the Bill now before them. Again, take Clause 4, as he had already shown, the provisions as to assessment were futile; and, further, it seemed to him that if the landlord reserved to himself the hares and winged game the tenant would be able to rear rabbits to any extent, and sell them in the market, after which he might come upon the landlord for the damage they had done as if it had been done by hares and winged game only. The hon. Member then proceeded to criticise the succeeding proposals of the Bill with great minuteness, objecting to the provisions respecting proceedings before the Sheriff if the tenant did not obtain compensation without; to the omission of provisions respecting pasture lands, although much damage was done by rabbits and ground game to spring pastures; to the power of obtaining interdict being given to the tenant against the landlord, and was not given to the landlord against the tenant.
  774
  Coming to Clause 9, any person might be allowed by the tenant to shoot hares and rabbits without a licence. The effect of that would be very much to encourage poaching, for the poacher would only have to obtain a commission from the farmers in his neighbourhood to shoot rabbits on their account, and he could do so without obtaining a gun licence or a game certificate. That, he said, was a most objectionable state of things; but the clause was objectionable on another ground, for it contained a provision that, in point of fact, declared what was the present state of the law in Scotland. It said that from and after the passing of the Act every person should be free to destroy rabbits on his own land without a gun licence; but the fact was that the tenant occupying the land could now destroy rabbits without a licence.
  MR. M'LAGAN: Not in Scotland.
  SIR ALEXANDER GORDONsaid, he would quote the Act, as the hon. Member seemed to doubt him. In 23 & 24 Vict. c. 90, it was set forth—
  "The taking or destroying of conies in Great Britain by the proprietor any warren whatsoever, or any inclosed ground, or of any inclosed ground whatever, or by the tenant of lands, either by himself or by his direction or permission," and so on.
  MR. M'LAGANsaid, that applied to the game certificate and not to the gun licence.
  SIR ALEXANDER GORDONsaid, it was so. He saw he had fallen into a mistake. However, the Bill had undergone very important changes since last year, and although there was perhaps no Member of the House better acquainted with the subject than the hon. Member, still the circumstance that his proposals had undergone such considerable alterations showed that the hon. Member himself was still in a state of great uncertainty as to the best shape in which he could bring his proposals forward. There were two other Game Bills before the House, and he thought it would greatly facilitate the settlement of the question if Her Majesty's Government would consent to refer the three Bills to a Select Committee, with the view of seeing whether they could not present to the House a good practicable Bill that would be regarded as a permanent settlement of the question.
  MR. J. W. BARCLAYsaid, that a great many of the points to which the

  775
  hon. Baronet opposite had objected might be discussed and settled with much greater facility in Committee than in the course of a debate on the second reading of the Bill. He himself gave a general support to the Bill and intended to vote for the second reading; but, at the same time, he must tell the House that he did not think the Bill would be a settlement of the question with which it dealt. The propositions and arguments which the hon. Baronet the Member for East Aberdeenshire had directed against the system of valuation proposed in the Bill no doubt had great force. He (Mr. Barclay) could not speak as to the experience of his hon. Friend (Mr. M'Lagan) behind him, but certainly he could say from his own that he had never heard of any farmer being disposed to accept this system of valuation as a settlement of the question, or as one which was at all likely to become so. His hon. Friend (Mr. M'Lagan) knew very well—in fact, no one knew better—that it was practically impossible to value the damage done by game with any real approximation to accuracy; but certain statements had been put forward by the hon. Baronet and others, which it might be well to refer to. Even if it were possible to assess the actual damage done to the crops by game, the payment of that damage to the tenant, even where there might be no difficulty, would not be satisfactory, because it would not indemnify nor compensate him for the loss he had suffered. Every farmer knew that a large amount of consequential damage would not be covered by the payment of a sum for direct damage or loss from the injury done to the crop by game. The whole system of a farm would be thrown out of joint by the loss of the crop. It might be laid down as a firm proposition that no farmer would enter on a system of high farming if he had cause to fear that the crops he had to spend his money in raising were likely to be damaged by game, even although he might have the assurance provided by an Act of Parliament that he would receive compensation for the direct damage. He did not propose to criticize the clauses or details of the Bill, but there was a principle involved in the 4th clause to which he wished to direct attention—that was, the question as to the sole right of taking and killing game and
  776
  rabbits. Under this provision of the Bill, he understood that the landlord must either preserve game and wild animals exclusively, or he must hand them over to the tenant, to be his exclusive property. In that case the landlord, in handing over the game to the tenant, and giving him power to prevent any great increase, would at the same time be prevented from killing any himself or allowing his friends to do so. Now, so far as he understood the feeling of the farmers, it was this: They did not desire to have the possession of game or wild animals for the sake of their value —what they wished was, to have control over them for the purpose of preventing any increase of game such as to an appreciable extent would be injurious to their crops. Such being the case, they would have no objection whatever to an arrangement whereby the proprietors should share with them the privilege of shooting over their farms. He would suggest to his hon. Friend (Mr. M'Lagan) whether in Committee the Bill could not be easily modified so as to meet that objection. Another objection he had to the Bill was, that it dealt only to a limited extent with the Game Laws in their criminal aspect. In those laws at present there were certainly very many objectionable features, and it would be extremely desirable that any new Act of Parliament should deal with them. He recognized the very great importance of the principle embodied in the Bill, that Game Law cases should be dealt with by the sheriffs instead of by the justices. During the past winter there had been some extraordinary cases of oppression under the Game Laws, and, looking to the reports in the newspapers, the decisions and convictions arrived at seemed to him to have been founded on very slender and insufficient grounds. As the Bill touched on the jurisdiction of the justices, it would be more satisfactory to all parties if that jurisdiction was transferred to the sheriffs entirely. But the chief reason why he supported the Bill was, that it asserted the principle of the right of Parliament to interfere in contracts between landlord and tenant, and said that the landlord should no longer have the right of dictating such terms to the tenant as he might think fit, or saying that whatever damage he might sustain he should receive no compensation. It would be a great gain

  777
  to have the principle clearly laid down, that if a landlord was to preserve game, he should at least specify the amount of damage which the tenant might be called on to suffer before he had the right to claim compensation. With reference to what fell from the hon. Baronet the Member for East Aberdeenshire he understood the Bill would override the private contracts and, so far as it went, supersede those rules and regulations to which the hon. Member referred. On these grounds principally he supported the second reading of the Bill. He did not believe it would settle the question finally— but he thought the operation of such an Act would do very considerable service indirectly—just as the amount of discussion and agitation which had taken place on the Game Laws of late years had done much to diminish the excessive preservation of game which formerly took place in many parts of the country. The provisions of the Bill, if they became law, would probably have an indirect effect in causing a considerable improvement in the present state of affairs; although he had no doubt that exceptional landlords would still be found who would cause much disturbance and heartburning and bad feeling, as they did at present. He thought it would be far better to pass a comprehensive law based on this principle—namely, that the preservation of hares and rabbits by tenants at their own expense for the benefit of their landlords was an arrangement of so indefinite a nature as not to possess the true elements of a contract, and that, therefore, Parliament would refuse to recognize such an arrangement at all. For the reasons he had stated, believing the Bill would do a certain amount of good, he would support it.
  COLONEL ALEXANDERsaid, that some years ago he was under the painful necessity of initiating the opposition to the measure of his hon. Friend the Member for Linlithgowshire, and therefore he had additional pleasure, on this occasion, in offering him his humble support. They ought to feel grateful to him, not only for the care he had bestowed in endeavouring to find a panacea for this evil, and a solution of this thorny and complex question, but also for consenting generously to abandon some of his most cherished convictions in order to
  778
  contrive a compromise to reconcile opposing and conflicting interests. He (Colonel Alexander) trusted that all hon. Members on either side would meet the hon. Gentleman in the same spirit, and that they would cheerfully abandon any of their own pet crotchets and inventions, and heartily co-operate with him in endeavouring to meet and grapple with the difficulties of this, to Scotland at least, most important and momentous question. Not that he was sanguine enough to believe that this Bill would satisfy the whole of Scotland. No doubt there were some extreme politicians who said they would not be content unless what they called the inalienable right to the game on their land was conceded to them. A gentleman, who was the leader of the party in the county which he had the honour to represent (Ayrshire), recently wrote to say that ho perfectly agreed with him that all the measures proposed as a remedy for the evils of the Game Laws up to the present were shams; and he added that the proposal which he (Colonel Alexander) supported at the time was, perhaps, the greatest sham of the whole—that being the proposal supported by the noble Lord the Member for Elginshire (Viscount Macduff) for the concurrent right of landlord and tenant to the ground game. The gentleman he alluded to said he was perfectly content to wait patiently for what was the only true remedy—namely, the result of the ballot-boxes at the next Election. That statement probably would hardly be satisfactory to the noble Lord the Member for Elginshire. The noble Lord said on that occasion that if that —concurrent endowment of landlord and tenant—was done, higher questions than hares and rabbits would take their place in Scotch county elections, and that that miserable bone of contention would be for ever buried. The noble Lord was young and sanguine, but if he expected all agitation on the Game Laws to cease, he would be like the countryman who waited for all the water in the river to flow past. But because they could not please everybody, were they not to attempt to please anybody? He thought this measure was calculated to please all those who would rather have half a loaf than no bread. As to what was called "the inalienable right" of the tenant to the game on his land, he was sure Parliament would never listen to or sanction such.

  779
  an immoral proposal. No good tenant in Scotland—and almost all were good tenants—would take advantage of such a measure — the only people to profit by it would be a small class of men—men to be found in every community—who were totally unable to realize the pride felt by an honest man who felt that his word was as good as his bond. It had been said that this Bill interfered with freedom of contract; and the hon. Member for Forfarshire (Mr. Barclay) based his support of it on that ground. He (Colonel Alexander) did not possess the microscopic vision of the hon. Member for Forfarshire, and he was quite unable to see in what way the Bill interfered with freedom of contract. The noble Lord the Member for Haddingtonshire (Lord Elcho) said last year in his speech on the Bill that free Englishmen should not be interfered with in their bargains by the State, but that they would be so interfered with under the provisions of that Bill. Now, if this Bill should become law, all that the State would say to individuals was—"You are at perfect liberty to make any contract you please; we do not interfere with you, but we require you to state your agreement in such precise and unmistakeable terms that we shall be able to bind both parties to the fulfilment of the agreement." The State did not interfere with the contract; it only enforced it after it had been made. Some hon. Members were not aware that in Scotland, although not in England, the tenant was even now empowered to claim compensation for any damage done by excess or super-abundance of game on his land. All that this Bill did was to afford a cheaper and more expeditious mode of obtaining compensation than existed at present. He could not for the life of him see how this Bill interfered with freedom of contract. What were the alternative proposals? He had already dealt with the subject-matter of the inalienable right; but even if that were conceded, what was to protect the land of the non-sporting man from the ravages of the game committed on the land of his sporting neighbour? Such a concession as the so-called inalienable right would not only be immoral; it would also be useless. Then there was a proposal to exclude hares and rabbits entirely from the game list. That was a proposal conceived principally in the interests of the poacher, who would be
  780
  free to ramble at his will and pleasure over the land, confident that any damage he might have to pay under the Trespass Act would be more than re-imbursed by the game he could appropriate. The Committee which sat three years ago under the presidency of the First Lord of the Admiralty fairly stated the difficulty of making game property. They said—
  "It would be difficult to confer on game all the attributes of property, and it would be unreasonable to include in the category of property animals which, by their own act, can transfer themselves to the property of others."
  There remained, then, the proposal of concurrent right, which he (Colonel Alexander) was at one time disposed to support; but he now thought there was one fatal objection to it—that there would be great facility for evasion. In any case, he did not think that plan could compete with that proposed by his hon. Friend. In regard to the transfer of jurisdiction, he was assured that the grievance felt on this head was inappreciable; but as a good deal of feeling had been aroused on the matter, he would agree to abandon that jurisdiction, which the great majority of the magistrates did not desire to retain. He did not entertain any apprehension that the magistrates would feel themselves placed in an inferior position to their English brethren on account of parting with this portion of their jurisdiction. In regard to cumulative penalties, it was proved before the Committee to which the hon. Member for Forfarshire (Mr. Barclay) alluded, that they had been rarely exacted. Therefore, there was no necessity for retaining them on the Statute Book. Moreover, the magistrates were apt to show undue leniency if they felt that the prosecution was likely to be carried further, and cumulative penalties demanded. It had been said that at present any landlord could give compensation for damage done by game; and he concurred in that remark, for he knew that in many leases clauses were inserted entitling the tenant to reasonable compensation for damage done by game; but then the question arose—What was reasonable? They all knew that what appeared reasonable to one man was not so to another. The Bill of the hon. Member proposed a simple and efficacious remedy for what had been hitherto doubt-

  781
  ful. This measure had been now before the House and the country for 12 months; its provisions had been well discussed, and he thought they had for the most part met the approval of Scotland. He hoped the Government would, after pointing out any amendments they thought desirable, assent to the second reading of the Bill, and he trusted that hon. Members from England and Ireland would remember one statement made by the Committee of 1873—namely, "That they found in Scotland a much stronger feeling had been evoked in regard to the preservation of game than in England." He trusted, therefore, that the House would no longer trifle with this important question.
  MR. GRANT DUFFsaid, he should support the second reading of the Bill; but he did not rise to make any general remarks upon its provisions, for he saw that it was likely to obtain considerable support from both sides of the House. He rose simply to bear testimony to a simple fact—to the fact, namely, that the speech of the noble Lord the Member for Elgin shire (Viscount Macduff), of last year, to which the hon. and gallant Member who had just sat down (Colonel Alexander) took exception, exactly represented the views held by the great majority of the Liberals in the three north-eastern counties of Scotland, and, he believed, the views of a large portion of the Conservative country population of those same counties.
  MR. RAMSAYsaid, that in his opinion the principles embodied in the Bill were well calculated to provide a practical remedy for an admitted hardship which occurred under the existing law. That hardship arose from the circumstance that, under the existing common law of Scotland, a tenant was entitled to compensation for any damage done by game, should the game have been increased during the currency of his lease beyond the point at which it stood when he entered upon his lease. But hon. Members would readily understand the difficulty which must occur in proving that an increase had taken place. A large amount of the irritation and heart-burning which had arisen in Scotland with reference to the Game Laws, as a whole, was due to the circumstance that when a tenant came into court and sued his landlord for damage done by game upon his land, he was met by the insu-
  782
  perable difficulty of proving that the damage done at the time when he brought his action had increased beyond the amount of damage done at the period of his entrance upon his farm. Now, the Bill did provide a remedy for that defect in the administration of our existing law. It provided that the amount of damage done by game at the date of the tenant's entrance on the land should be specified in the lease, and if it should be determined that a greater amount of damage had been done by, game than that which was specified, he should be entitled to receive the difference from his landlord. It was on that account that he valued this Bill very highly. With reference to the other principle adopted in this Bill—namely, the transfer from the Justices of the Peace of jurisdiction in respect of offences against the Game Laws—he concurred with the hon. and gallant Gentleman the Member for South Ayrshire (Colonel Alexander) when he said that the majority of the Justices of the Peace in Scotland were quite willing to be relieved of that part of their duties. He could see nothing derogatory to them in the proposal that this jurisdiction should be transferred. Much of the criticism which had been passed by the hon. Baronet opposite (Sir Alexander Gordon) upon this measure could be satisfactorily met in Committee. Ho heard the hon. Member for Forfarshire (Mr. Barclay) with some surprise state that his reason for supporting the Bill was that it did interfere with freedom of contract. He (Mr. Ramsay) regretted to hear the expression of such a sentiment in that House. He should be very loath to support any Bill which aimed at placing the farmers of Scotland under a system of tutelage, under which they would have done for them by law that which they were quite competent and willing to do for themselves. But he had other objections to the Bill, which would be better stated in Committee. In particular he agreed with the hon. Baronet opposite, the Member for East Aberdeenshire, in objecting to the proposal to apply a different law to the tenant from that which was applied to the landlord. Why should the landlord be denuded of any legal remedy for the enforcement of a contract into which a tenant voluntarily entered, while the latter was to have

  783
  full liberty to apply such a remedy as against his landlord? He thought anything more unfair could hardly be proposed; and if no other hon. Member should take exception to that provision, he would move in Committee that the 8th clause be omitted from the Bill. There were other points upon which he might dwell; but as they would have ample opportunity in Committee to discuss the details of the measure, he would not occupy the time of the House further than to say that he should give his cordial support to the second reading.
  MR. MARK STEWARTsaid, that he ventured to differ from some hon. Members opposite, and also from his hon. Friend behind (Sir Alexander Gordon) with regard to the course Her Majesty's Government would adopt on this Bill. Although we had had until now but one speaker from behind the Ministerial benches, and he had spoken in a spirit hostile to the principle of the Bill, he could not help thinking that the Government, taking into consideration all the measures which had been so frequently discussed in this House and the counties with regard to the question of the Game Laws in Scotland, and seeing nothing had been yet done, would support the second reading of the Bill. It could not be denied for one moment that this Game question occupied a very prominent place in all political addresses of hon. Members in Scotland; yet, although this Parliament had been sitting now for more than three years, no attempt on the part of the Government had been made to pass any measure which could be said to afford any amount of relief at all to the tenant-farmers of Scotland in this matter, and this consideration ought to induce the House to interpose in favour of this Bill at this moment. It would be a matter of satisfaction, at least to the farmers of the North, where high rents had to be paid, and a large labour bill and vast outlay had to be incurred, if the House of Commons at the present moment were prepared to legislate finally on the question. All who had any knowledge of agriculture knew perfectly well that unless the crops were reasonably protected from the ravages of hares and rabbits and other game, the tenants could not reap the benefit of the large capital which they put into the land. If that protection
  784
  were given, it would give not only gratification to them, but would show to Scotland that the pledges given by Scotch Members with regard to this question were not allowed to remain unfulfilled. His hon. Friend the Member for Aberdeenshire talked of the Bill as if it only applied to his own particular county. Of course, he (Mr. M. Stewart) could not be as cognizant as his hon. Friend was of the state of that county, but he knew that the Bill would very much assist many counties in the Southern parts of Scotland, and would give more satisfaction than other Bills introduced into that House. The hon. Member for Forfarshire (Mr. Barclay) had made a speech in which, while he supported the principle of the Bill, he disclosed a strong predilection in favour of his own pot measure—of which, however, no Notice appeared to have been given for the present Session. All knew that the feeling of the House in past Sessions was antagonistic to the principles of the hon. Member's measure; they also knew that it would be impossible to bring forward at the present time a Bill proposing to interfere with freedom of contract with any chance of passing. Therefore, he did not think that they would hear very much more of the Bill of the hon. Member for Forfarshire, or of measures of that character. But here they had a Bill which he maintained did not interfere with freedom of contract. He need not repeat the argument which had been so well stated by the hon. and gallant Member for South Ayrshire (Colonel Alexander). He thought it quite clear that if contracts were entered into by two parties, all that Parliament could do was to see that they were reasonably carried out; and that was all that was proposed in this Bill. The hon. Baronet the Member for East Aberdeenshire (Sir Alexander Gordon) had pointed out many objections that arose to the working of the Bill. He told them they would not be able to distinguish between damage done by hares and rabbits, and that occasioned by sheep. He (Mr. M. Stewart) knew no practical farmer in or out of the House who would tell them he had any difficulty in distinguishing the teeth marks of the animals which had bitten a turnip. Then his hon. Friend took exception to the proviso that notice should be given within three weeks.
  SIR ALEXANDER GORDON: Will you allow me to say that damage done by game is within three weeks, the damage done by sheep and their feet marks may be six months.
  MR. MARK STEWARTsaid, he said teeth marks, not sheep marks. He understood his hon. Friend that he had great objections to that term of three weeks—he seemed to argue it was more than three weeks, and his first argument went to prove that. Now, within three weeks might mean the very next day after the damage had been committed; it did not necessarily follow that it was up to the time of the expiry of those three weeks. Then, again, his hon. Friend said that the Bill did not touch the Game regulations of that part of the county with which he was connected. Well, if it did not, why take so much exception to it, and why find so much fault? He (Mr. M. Stewart) could again tell him it favourably affected many other parts of Scotland. Among other instances, he objected to that clause which prevented proceedings being taken against a tenant by interdict. That was a question which would have to be more fully discussed. He (Mr. M. Stewart) thought there was a great deal to be said on both sides of the question. It was at times a very great hardship to proceed against a respectable young tenant-farmer, whose only fault was that he had amused himself beyond the verge of prudence; but, on the other hand, there were many who did not care for a small fine which would be imposed by civil action, and therefore who would practically escape the law altogether. There was only one more point to which he (Mr. M. Stewart) wished to draw the attention of the House, and that was with regard to the feeling of the magistrates on the subject of any transfer of their jurisdiction. As far as his experience of magistrates went, he could not believe that there was that strong emotional feeling which was described last year from the front bench against the taking away the power and authority of magistrates. He did not think that among the Scotch magistrates at least—who had very much less magisterial work than those of England, and who very seldom met in quarter sessions or petty session—he could name one who would in the slightest degree feel aggrieved if this jurisdiction, often invi-
  786
  dious and disagreeable, were taken away from him, or who would consider he was having any portion of the dignity of his office removed. He had much pleasure in supporting the hon. Member for Linlithgowshire (Mr. M'Lagan) in his endeavour to pass this Bill into law, and thanked his hon. Friend for introducing it.
  COLONEL MUREsaid, he entirely concurred in the expression which fell from the hon. and gallant Member for South Ayrshire (Colonel Alexander) when he said that he thought the hon. Member for Linlithgowshire had grappled with the subject in such a manner as to afford a fair prospect of its being brought to a satisfactory conclusion. The Scotch Members were greatly indebted to the hon. Member for his persevering efforts. There was one remark which fell from the hon. Member for Forfarshire (Mr. Barclay) with which he could not agree. The hon. Member said he felt gratification in finding that Parliament was invited to step in to interfere with the freedom of contract. Now, if there was one thing which he disliked in the Bill it was that it had been thought necessary that Parliament should step in to interfere with the right of contract. The whole difficulty, however, in connection with the Game question in Scotland had undoubtedly been that of defining what the damage was. He thought, on the whole, that the landlords of Scotland were reasonable, and that, on the whole, the tenants were reasonable; but when the matter of contract was brought before them the great difficulty had always been to define the amount of damage; and that was a point which the hon. Member for Linlithgowshire had successfully grappled with in his Bill. For that reason, he was disposed to waive his dislike to the indirect interference with the freedom of contract which undoubtedly was to be found in the measure. One good feature of the Bill was that it assimilated the law of Scotland to the law of England. In Scotland, tenants had always pointed it out as a grievance that the prior right to the game did not belong to them, whereas in England the tenants had that right. That had always been a grievance with the Scotch farmers. But if there was one provision of the Bill more valuable than another, it was the transfer of the jurisdiction in Game

  787
  Law cases from the magistrate to the sheriff. No persons could desire to do their duty more impartially than the magistrates of Scotland, but most of them were proprietors of land, and probably game preservers; and when a game question came before them, no matter how strong their desire might be to act impartially, they formed a tribunal to a certain extent tainted. They were interested in one view, and the tenant was interested in another. One point to which he desired to direct attention was the question of crops. The Bill applied to growing crops only, but in a large part of Scotland the growing crop was grass. The Scotch—at least in that district from which he came—were now competing with Gloucester and Cheshire farmers. The cheese-making in Wigtownshire and Ayrshire was one of the great industries in Scotland, and any practical farmer here would agree with him that nothing could be more grievous or disheartening to the tenants of Wigtownshire and Ayrshire, who had entered into competition with the great cheese-making counties in England, than to find themselves thwarted in the competition by the injury to their crops which all kinds of game—hares particularly—unquestionably did in some Scotch districts. In this view it was even more important that the Bill should apply to growing grass than to the crops to which it referred. Another reason why he approved this Bill was that it set aside entirely the idea that hares were to be removed out of the protection of the Game Laws. Nothing in his mind would be more injurious to the tenant. In the populous part of Scotland where he lived, he had no hesitation in saying that a proposal of so sweeping a nature would be far from satisfactory to farmers as well as to landlords. The agitation about game in Scotland was not now nearly so great as it used to be. The reason was that the discussion on the subject, and the growing common-sense of the landlords and tenants had resulted in their taking a far more reasonable view of the Game question than they did some years ago. He remembered, when discussing the policy of the different Game Bills before Parliament previous to the General Election, when the Game question formed one staple of political discussion—which was perhaps one of the worst features of
  788
  the unsettled condition of this question —several tenant-farmers implored him not to persist in a design he had formed of removing a game-keeper from his property; for they said—"If you move him we shall have our farms swept by poachers, our gates and fences destroyed, and we shall have no protection whatever for our property." That was a fair illustration of the point he wished to impress on the House—namely, that farmers, while attaching great importance to protection from the ravages of hares and rabbits, also attached great importance to the protection afforded them by the Game Laws. There were points in this measure, no doubt, which could be amended in Committee—in particular he recommended for consideration the point with regard to grass crops—but he must again congratulate the hon. Member on having brought in his Bill, and hoped it would pass the second reading.
  LORD ELCHOsaid, he agreed that it was desirable that this game question should be settled, for it was a source of heartburning to Scotland. The hon. Member for the Falkirk Burghs (Mr. Ramsay) entirely expressed his (Lord Elcho's) own opinion when he said it was not wise to do for men what they could do for themselves. That was sound policy which should guide legislation on this subject. In regard to any general legislation upon it, he thought it would be better left in the hands of the Government than in those of private Members. There was a mass of information in the Blue Books at the disposal of the Government, and if they would turn their hands to it they would elaborate from that a useful measure. He did not intend on this occasion to oppose the second reading of the Bill. Last year he thought it his duty to oppose it, and indeed he was asked to move its rejection on account of its interference with contract. Some said that it did still, and some said that it did not, interfere with freedom of contract. The same thing was said last year. To night they had had a very eloquent speech from his hon. and gallant Friend behind him the Member for South Ayrshire (Colonel Alexander). When he found Gentlemen whose views on this question of interference with contract were diametrically opposed to his own, supporting the Bill on the very ground that it did interfere with freedom of

  789
  contract, he thought there was ipso facto good ground that the enemy was in the right, and that this unsound policy did exist in the Bill. The hon. Member for Forfarshire (Mr. Barclay) held the same language this year as he did last year upon this question of contract. The hon. Member for Forfarshire supported the Bill on the very ground that it did interfere with freedom of contract, though he thought it did not interfere enough. The hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon) supported the Bill last year on the ground that it did interfere; but he thought that this year the interference was not so great, and therefore he did not like it now. But the hon. Member opposite (Mr. Barclay) thought it still an interference with contract, and that was why he supported the Bill this year, in full confidence that, when under not a "traditional," but some other sort of House of Commons, he would be able to push his principle to greater lengths. He (Lord Elcho) was bound to do this justice to his hon. Friend opposite the Member for West Lothian (Mr. M'Lagan), and to say that last year's Bill was evidently more clearly an interference with freedom of contract than this year's. The Government last year felt it to be so, and they put down words which, in their opinion, guarded this freedom of contract; and these words his hon. Friend had adopted. He (Lord Elcho) felt that till they heard the explanation of the Government as to how far they thought the words they put down last year did or did not protect them from that interference with contract, it would be impertinent on his part to maintain that it had not given that protection. The Government had been placed in their present position mainly because the country trusted to them to maintain the security of property and the freedom of making contract between man and man. That was the principle they had upheld in the Agricultural Holdings Act, and the House had a right to expect from them that they would allow no legislation to pass which infringed the principle of liberty for sane full-grown men to make their bargains with each other. In the confidence that the Government would be careful to guard against this interference, he would accede to the second reading of the Bill.
  VISCOUNT MACDUFFwas understood to say that he had not had the good fortune to hear the remarks of the hon. and gallant Member for South Ayrshire, but he understood that he had taken exception to something which he (Viscount Macduff) had said last year when this Bill was under discussion. He rose, therefore, to say that he adhered to everyone of the opinions he then submitted to the House. He added that he was certain that this question would never be settled by any Bill which was not drawn up on the lines of the one which had been introduced into the House by the hon. and gallant Member for East Aberdeenshire.
  THE LORD ADVOCATE: It is not the intention of Her Majesty's Government to offer any opposition to the second reading of the Bill which has been introduced by the hon. Member for Linlithgow. But in consequence of some observations that have been made in the course of this discussion, and in consequence of what has fallen from the noble Lord the Member for East Lothian (Lord Elcho), it is absolutely necessary that I should say something with regard to the position we occupy in relation to this Bill. It has been said that all the Amendments of which Notice was given by my Predecessor in office last year have been given effect to in the present Bill. That is so far the case; but I must call the attention of the House to the fact that these Amendments, of which Notice was given by the late Lord Advocate, did not constitute the whole of the objections which the Government had to urge against the measure. On the contrary, there were other objections stated by private Members against certain clauses of the Bill of very great importance, to which the objections then stated by the Lord Advocate were simply supplementary. I do not intend to go into details which may be discussed in Committee; but I think it is due to the hon. Member who has introduced this Bill to inform him fairly of the points which we conceive are still open to re-consideration, and which I now recommend to his consideration before this Bill passes on to a further stage. It appears to me that this Bill does not interfere in any proper sense of the expression with the freedom of contract. It makes—and this appears to me to be the leading principle of the Bill—what

  791
  seem to me very fair and reasonable provisions for ascertaining the damage done by game as between landlord and tenant. That is a duty which is thrown upon the Courts of Law in Scotland, and I think the Legislature are quite entitled to require that in this matter the law shall be placed on such a footing that Courts of Law shall be able to deal equitably and fairly with these questions as they arise. Now, I venture to doubt whether at present the state of the law in Scotland is such as to admit of that fair and equitable treatment of these questions when they do arise, for under long leases of 19 years—which is the general duration of leases in arable and agricultural subjects—where there is no special stipulation for regulating game damages, the implied condition is that the tenant shall submit, without having the right to claim damages, to as much injury as could be inflicted upon his crops by the average stock of game upon his farm at the time when he entered upon his lease. And accordingly, about the 15th or 16th year of the currency of the lease, when the period of its duration has nearly expired, and a Court of Law is called upon to estimate damage due to the tenant, it may be quite a simple thing to estimate the loss occasioned by injury from game during the year in which the claim is made. But that is not the measure of the tenant's right. In order to obtain the measure of the tenant's right, you have to dispose of two very speculative questions—first, what the average amount of game was upon the farm 15 years before; and when you have ascertained that factor, you have in the second place to estimate how much that average stock would have eaten had it been upon the farm during the year for which the claim is made. And that which the present Bill appears to me, in its leading principle, to provide, is this, that after ascertaining the total damage done in the year for which damage is claimed, the parties themselves shall furnish the Court with a fair contract measure, in money value, of the amount of damage to which it is stipulated that the tenant shall submit, instead of leaving that amount a matter of implication and speculation. Accordingly, the Bill provides that it must be arranged by contract between the contracting parties what shall be the factor that is to be deducted from
  792
  the actual damage done to the crop. That is not taking from the parties the liberty of contract. The Bill merely compels the parties who seek a remedy to settle in their contract what that remedy shall be. But there are some points in this Bill upon which objections were stated last year, and to these I shall very briefly advert, because it appears to me that as yet the Bill does not satisfactorily dispose of them. In the beginning of the 4th clause the words of the Bill apply to all land, whether arable, or grass, or stone, or heather, or moss, or whatever the composition of the farm may be. But when you come to the clauses regulating damages, the expressions used are limited to cereal crops and green crops. It appears to me to be a proper matter for consideration how far the scope of this Bill should be extended to all land, or whether you are to assimilate a deer forest or mere grouse land having heather upon it, to a farm where there are crops of various kinds, including grass, not being mere natural vegetation, but the results produced by capital, skill, and mechanical appliances. There are various other matters introduced into in this Bill which did not appear in the last. For instance—"wild birds," and also "wild animals." I am quite aware that there are wild animals which are very nearly allied to game, but these deer and roedeer it would be easy to name in a Bill like this. Still the words "wild birds" and "wild animals" are very wide. If I may say so, they cover everything from a wood pigeon to a sparrow, and from a roedeer to a rat. I can hardly think that this was seriously intended by the framer of the Bill. I would further suggest that the very introduction of wild birds is objectionable; and I think crows, sparrows, and so forth, ought to be omitted from the Bill altogether, for reasons which have already been stated in the course of this discussion. If these are to be retained, I fear that by this Bill—which in some respects is to my mind a very useful Bill—we shall only relieve our Judges from one onerous duty in order to impose upon them another still more difficult. Let me call the attention of the House to clause 5 of the Bill. The tenant is to give notice if he is of opinion that damage has been done to his crops by game, "wild birds, and wild animals harboured on the

  793
  lands of the lessor in any one year during the lease." It might be difficult to tell how many head of game were on a farm 10 or 15 years before; but the duty that would be laid on a Judge who has to decide this matter, if he decides according to the letter of this clause, will be that of discovering out of a given number of crows or pigeons which destroyed the tenant's crops, how many and what proportion were harboured on the lands of the lessor, and how many on the lands of his neighbours. I would suggest to my hon. Friend that the Government cannot in Committee support any proposal of that kind. In regard to the mode of carrying out the provisions of the Bill, I appreciate the importance of a simple remedy, and shall be prepared to give my hon. Friend any assistance I can in devising means for attaining this desirable result. As to making the Sheriff's judgment depend on the valuation of one valuator, I know the difficulty of getting valuators who do not look at the question either from one side or the other, and I submit that the proposal requires re-consideration. We have been told by the hon. and gallant Member for East Aberdeenshire that in some cases which have occurred—and this statement was assented to by my hon. and gallant Friend opposite the Member for Kincardineshire—the Sheriff found difficulty in deciding game damages, because the valuators took such opposite views that he did not think they were speaking of the same case. It would be unsatisfactory to have valuators appointed who were in the habit of valuing solely for landlords; and, on the other hand it would be equally objectionable to have the assistance of valuators who were in the habit of valuing solely for tenants. I think it would be well to give the Judge discretion as to whom he should call in aid. The only other clause on which I will make a remark is the 8th, which appears to me to take away from the landlord the only remedy which can be in the least degree effectual to him for enforcing the contract. It is impossible to assimilate the remedies given to the lessor and the lessee, because the claim of the tenant for damages has no resemblance to the lessor's reserved right to game, and he therefore can have no corresponding means of enforcing it. And I would venture to
  794
  suggest that where, in terms of this Bill, a lessor reserves his right to game, it may be, and in many cases will be, for the purpose of enjoying personally the sports of the field. Well, if he does so, I venture to think that is not a reserved interest which is estimable in money, or that the Sheriff can tell how much pecuniary damage the proprietor who lost his season's shooting through the lessee's breach of contract, suffered from having to remain in his own house, or from having to travel on the Continent. I wish to consider whether, in a Bill like this, which sanctions a contract by which a landlord is to retain the sole and exclusive right, upon certain conditions in the Bill specified, of shooting his own game on his own property, it is right and proper in the same breath to take away from him the only remedy which can possibly ensure his enjoyment of the right. In conclusion, I have to call the attention of the hon. Member (Mr. M'Lagan) to the important amendments touching the Inland Revenue Laws suggested by my Predecessor, but which have not been given effect to by this Bill. One relates to the gun licence. If the opposition intimated last year to the proposed partial repeal of the gun tax were successful, it appears to me that there would be no necessity for Clauses 9 and 10 of this Bill; for my hon. Friend must be aware that under the Act 11 and 12 Vict., c. 30, it is not necessary for any person in Scotland having a right to kill hares to take out a game certificate; and, that if he exercise that right in his own person, or by means of any other person having a written authority from him, he does not incur any legal liability. These are all the observations which occur to me at present. I have thought it right to state them more at large than I otherwise should have done, to prevent misconception as to the terms on which the Government have intimated their position in regard to the second reading of this Bill.
  MR. M'LAGAN, in reply, said, he could not but think that his hon. and gallant Friend the Member for South Aberdeenshire (Sir Alexander Gordon) in criticizing the Bill had been somewhat hypercritical. He denied that the present Bill would in any way interfere with liberty of contract. The Bill would not interfere with liberty of contract,

  795
  because the landlord would be allowed to reserve the game or to do as he thought proper; if, however, he did not insert a clause to that effect in the lease, the common law would take its course. Of course, he should be happy to consider any Amendments in Committee.
  Question put, and agreed to.
  Bill read a second time and committed for Tuesday 6th March.

REGISTRATION OF BOROUGH VOTERS BILL— [BILL 38.]
(Sir Charles Dilke, Mr. Rathbone, Mr. Boord.)
REGISTRATION OF BOROUGH VOTERS BILL— [BILL 38.]

  SECOND READING.
  Order for Second Reading read.
  SIR CHARLES W. DILKE,in moving that the Bill be now read a second time, after referring in detail to former similar Bills, said, the principle of the measure was the assimilation of the Parliamentary and municipal registers as far as the preparation of the first list and the revision were concerned. In the operation of the existing law of registration of voters great injustice was frequently done to persons who were entitled to have their names entered in the register. This was not the only Bill before the House which dealt with the subject of registration. The hon. and learned Member for Cambridge (Mr. Marten) and the hon. Member for Greenwich (Mr. Boord) had both Bills of their own, and he had hoped that the three Bills would have been allowed to pass a second reading, that they would then be referred to a Select Committee, and that next year the Government might take the subject up and deal with it themselves. He had been informed, however, that the Government intended to oppose the Bill, their opposition being founded, not upon the general principle of the measure, but upon certain clauses contained in it, the Government holding that it was not a Registration Bill, but a Reform Bill, because it touched the qualification of voters. He maintained, however, that it dealt with qualification only in a very small way. He begged to move the second reading of the Bill, and trusted the House would assent to the proposal.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Sir Charles W. Dilke.)
  MR. GORSTsaid, he considered it his duty to oppose the second reading of the Bill. He could not see any practical good to be derived from the annual introduction of these Bills, which did not attempt to consolidate the law of registration, but touched only isolated portions of the law. The subject was one which might be far more appropriately dealt with by the Government. The Bill, notwithstanding the hon. Baronet's disclaimer, was a Reform Bill in disguise, and as such he must regard it. When the time came, as come it would, that it might be necessary to deal with the Parliamentary and municipal registration of voters, the party to take the matter up and introduce a Bill to deal with the franchise in such a manner as might appear to require reform was the Government. The hon. Baronet, in dealing with the lodger franchise, said his object was that every lodger who paid rent should be entitled to a vote; but if that were admitted the Parliamentary and municipal franchises would be swamped with lodgers paying a very small rent.
  And it being a quarter of an hour before Six of the clock, the debate stood adjourned till To-morrow.

  GENERAL CARRIERS' ACT.
  Select Committee appointed, "to inquire into the operation of the Act 11 Geo. 4 and 1 Will 4, c. 68, commonly called 'The General Carriers' Act.'"—(Sir Henry Jackson.)
  And, on March 5, Committee nominated as follows:—Sir CHARLES ADDERLEY, Mr. CAVENDISH BENTINCK, Mr. BROCKLEHURST, Mr. MAURICE BROOKS, Mr. BRUCE, Mr. CAMPBELL-BANNERMAN, Mr. FRESHFIELD, Mr. ATTORNEY GENERAL for IRELAND, Mr. GOLDNEY, Mr. STAVELEY HILL, Mr. LAING, Mr. LEEMAN, Mr. MAJENDIE, Mr. MORLEY, Mr. PEMBERTON, Mr. SALT, Sir EDWARD WATKIN, Mr. WHITWELL, and Sir HENRY JACKSON:—Power to send for persons, papers, and records; Five to be the quorum.

  UNION OF BENEFICES BILL.
  On Motion of Mr. ARTHUR MILLS, Bill to make better provision for the Union of Contiguous Benefices, ordered to be brought in by Mr. ARTHUR MILLS and Sir HARCOURT JOHN-STONE.
  Bill presented, and read the first time. [Bill 95.]

  CAPITAL PUNISHMENT ABOLITION BILL.
  On Motion of Mr. PEASE, Bill to abolish the Punishment of Death, ordered to be brought in by Mr. PEASE, Mr. LEEMAN, and Mr. M'LAREN.
  Bill presented, and read the first time. [Bill 96.]

  VACCINATION LAW (PENALTIES) BILL.
  Motion of Mr. PEASE, Bill to amend the Law relating to Vaccination, so far as accumulating penalties are concerned, ordered to be brought in by Mr. PEASE, Mr. JAMES, Mr. MUNDELLA, and Mr. LEEMAN.
  Bill presented, and read the first time. [Bill 97.]

  RAILWAY PASSENGERS PROTECTION BILL.
  On Motion of Mr. H. B. SHERIDAN, Bill for the better Protection of Railway Passengers, ordered to be brought in by Mr. H. B. SHERIDAN, Mr. ASHBURY, Mr. THOMAS CAVE, Mr. ANDERSON, and Mr. GOURLEY.
  Bill presented, and read the first time. [Bill 98.]

  HIGH COURT OF JUSTICE (COSTS) BILL.
  On Motion of Sir HENRY JACKSON, Bill to amend the Law relating to the taxation of Costs in the High Court of Justice, ordered to be brought in by Sir HENRY JACKSON, Mr. LEEMAN, and Mr. ALFRED MARTEN.
  Bill presented, and read the first time. [Bill 99.]
  House adjourned at ten minutes before Six of the clock.