SECOND READING.

HC Deb 21 February 1877 vol 232 cc770-95

Order for Second Reading read.

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

SIR ALEXANDER GORDON

said, that as the present Bill did not agree with the Bill that was read a second 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 be, that the landlords would never put down any amount—because the Bill provided that where no amount was stated, 40s. 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 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. 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 GORDON

said, 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'LAGAN

said, that applied to the game certificate and not to the gun licence.

SIR ALEXANDER GORDON

said, 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. BARCLAY

said, that a great many of the points to which the 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 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 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 ALEXANDER

said, 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 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. 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 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- 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 DUFF

said, 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. RAMSAY

said, 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- 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 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 STEWART

said, 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 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 STEWART

said, 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- 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 MURE

said, 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 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 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 ELCHO

said, 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 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 MACDUFF

was 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 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 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 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 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, 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.