SECOND READING. (Hansard, 10 June 1880)

§ SIR WILLIAM HARCOURT

, on rising to move that the Bill be now read a second time, said, that the night of the 10th of June, 1880, would not be forgotten by farmers when two of their reasonable demands, at all events, had gone some way towards being satisfied. He wished to state as briefly as he could the Parliamentary case for the measure now laid before the House. He desired to rest that Parliamentary case upon two paragraphs of the Report of the Committee of 1873. The first paragraph, he thought, was from the pen of the hon. Member for Leicestershire. He stated that ground game which was protected by the law was injurious to crops. Then the Committee proceeded to say— There can be no question that the existence of a large number of hares and rabbits upon an arable farm is most prejudicial to its profitable occupation; and your Committee cannot but highly reprobate the practice of some landlords who keep largo numbers of those animals on cultivated land to the injury of the crops of the farming tenant. Then the Committee said—and it should be remembered that this was the unanimous Report of a Committee composed of Gentleman sitting on both sides of the House— They consider that no landlord should object to the insertion of such engagements in his lease or agreements as will ensure the keeping down of ground game in moderate limits, and that no tenant should enter upon his farm without securing protection from the law by such engagements on the part of the landlord. Now, would hon. Gentlemen say what these engagements should be which no reasonable landlord should refuse, and which no prudent tenant should dispense with? What did the Committee say?— 1710 They are satisfied that no means so efficient for the purpose can be devised as the concession to the tenant of the power of killing ground game upon his farm either exclusively or concurrently with his landlord. That was to say, that the tenant should have power, without any limitation of any kind, to kill ground game upon his farm; and the Committee thought that was the best arrangement that could be made, and one that every reasonable landlord ought to make. He would ask, did every reasonable landlord make that arrangement, and did every prudent tenant insist upon it? Was every prudent tenant able to insist upon it? He thought not. He would read what it was proposed to add after the sentence to which he had last referred— The evidence before your Committee does not lead them to believe that landlords generally are willing to make such concessions. Upon that paragraph the Committee divided equally, and it was only rejected by the casting vote of the Chairman. For the Motion to add those words 9 Members of the Committee voted, and among the 9 were Sir Michael Hicks-Beach, Mr. Cowper, Sir Henry Selwin Ibbetson, Mr. Pell, and Mr. Clare Read. When he said that there were 9 Members of the Committee on one side, that assumed that there were 9 on the other. Hon. Members might take that for granted. The fact remains, therefore, that the whole Committee thought these were conditions necessary for carrying on the agriculture of England which no reasonable landlord should refuse, and which no prudent tenant should dispense with; and yet, in the opinion of 9 Members of the Committee, the landlords were unwilling to concede. That, in his opinion, was the Parliamentary case for the Bill; and the Government simply proposed to carry out that recommendation of the Committee. It appeared to him, however, that the Committee had established premises from which they had failed to draw logical conclusions. There was but one logical conclusion which could be drawn from the admitted facts. That was, that the Legislature should interfere to secure for the farmers of England those reasonable conditions which otherwise there was no chance of their obtaining. Was it to be supposed that the farmers did not desire to secure those conditions? If they did, why did they not obtain them? Because they 1711 could not. Everybody knew that they could not. It was not a fact that they did not want them. Mr. Clare Read, who was, unfortunately, no longer a Member of that House, in his evidence before the Committee, had said that even he—himself as respectable a tenant and as good a farmer as could possibly be found—would not be able to obtain a farm in the county of Norfolk, on condition that he was to have the ground game. And every farmer in Scotland felt that he laboured under a similar disability. The object of this Bill was to remedy that, and secure those conditions for the farmers. The Bill did not pretend to reform the Game Laws; of those he hoped that one of these days, and not a distant one, the Game Laws would be reformed in the direction indicated in the Report of the Committee. The Bill would remove the grievances of the tenant farmers of England indirectly, and would have great effect upon the evils produced by the Game Laws, and would tend in a great degree to mitigate the evil of poaching. In his opinion, the best protector against poaching was the tenant farmer. The other day, Mr. Clare Reed had said that, rather than endure the existing state of things, farmers would prefer to look to the poacher for protection. That was said over and over again in evidence before the Committee of 1S74. The evidence was overwhelming before that Committee in that respect. The head-constables who were examined, stated that ground game was a special cause of night poaching. They were asked whether the whole of the poachers were in pursuit of ground game? They said that they were. Also, that it was seldom that pheasants were found upon them. What was the remedy for the existing state of things which the farmers asked for? In the Report of the Committee would be found an account of a remarkable conference which took place at Aberdeen in 1873, when delegates from the land lords and the tenant farmers met under the presidency of Mr. Forsyth, then Member of that House, to determine what could be done to settle this question. That Joint Committee reported most unequivocally in favour of conferring upon farmers the right to kill ground game, as the best remedy for the evils in connection with game which they had found to extst. For the pur- 1712 pose of obtaining the opinion of the farmers, the Committee issued schedules to all landowners having a rental of £500 and upwards, and to tenants having a rental of £14, with the request that they should answer certain questions. The result of these inquries was that nine-tenths of the damage done by wild animals to crops was attributed to hares and rabbits. Above three-fourths of the whole number of persons answering inquiries were of opinion that the unrestricted right to kill game, either by their own hands or by those of persons employed by them, would enable Parliament sufficiently to protect their interests. The result was, upon the information before the Committee, that the Joint Committee, considered the chief evil to crops to proceed from hares and rabbits, and decided that nothing but an absolute and unrestricted right to the tenant to kill ground game would meet the case. The Central Chamber of Agriculture in London, and the Chambers of Agriculture in different parts of the Kingdom, had considered this question, and had come to the same conclusion. The remedy which the Government now proposed, therefore, was not a novelty, but was perfectly well known and understood by tenant farmers and landlords throughout the country. It was true that other remedies had been proposed for the evils which were admitted to exist. A suggestion had been made that hares and rabbits should be taken out of the category of game; but he ventured to say that everyone who had considered the question himself, saw that that proposal was open to very great and insuperable objections. The plan had been tried over and over again in foreign countries. It had been tried both in France and Germany, and had entirely failed. After the French Revolution in 1789, the Game Laws were abolished; but in the following year the Revolutionists were bound to restore the Game Laws which had been repealed in the previous year. Then in Germany, in 1848, the same experiment was tried, and produced such confusion that the laws were renewed. It was obvious, in the first place, that merely repealing the Game Laws would still leave the farmer bound to the covenant of his landlord. He would not be able to kill game upon his farm, but everyone else would. That was not the method to 1713 proceed which anyone who had considered the matter would adopt. He could quite understand that hon. Members who wanted to run a red-herring across the trail would propose a measure of that kind; but they must know that it was utterly impracticable. There was another proposal made—namely, that they should allow things to remain as they were, with the difference that they should get compensation for injury done by game. That plan had been tried in every instance, and had always failed. It would fail in this. The valuers were unanimous in their opinion that it would be impossible to estimate the injury caused by ground game. The experiments which had been tried had been found practically unworkable. There was another objection which had been raised to the measure, and that was that it did not deal with the evils produced by ground game coming from the lands of adjoining owners. That matter was certainly not dealt with in this Bill. The principle of this Bill was only to make the right of killing the game which destroyed the crops inseparable from the occupation of the land—to place the right in the hands of those who grew crops—and that he regarded as a simple and sound principle. They knew very well that in old days stipulations used to be made in feudal times before the cultivation of the soil was carried on as at present; but a certain amount of protection and cover should be given to game. In France it was a common stipulation, up to the time of the Revolution, that the tenant was to do certain acts for the benefit of the game. If they insisted upon keeping on the land a stock of game which destroyed the crops, it was just the same as making a stipulation to prevent the crops from growing. He thought that it was a sound and proper principle to unite with the right to kill game the occupation of the land. In old days the right to kill game was sometimes separated from the ownership of the soil by the name of free warren. A man who had nothing to do with the land had the right to kill game on it. The proprietor had not such a right. The man possessing such a right could bring an action of trespass against the proprietor of the soil for an interference of such right. Was it likely that the right of free warren, which excluded the proprietor from the right to destroy 1714 game, would be allowed long to continue? They would very soon have a Bill to do away with free warren brought in under the circumstances. It was really a much more serious thing to interfere with the right of the occupier to kill game than with the right of the owner of the land. Various objections had been taken to the Bill, and the great objection to it was that it interfered with the freedom of contract. Freedom of contract was an extremely valuable principle. Everybody knew that; but did the House imagine that this was the first Bill which had interfered with the freedom of contract? Could they for one moment think that this was the first time that Parliament had been asked to interfere with freedom of contract? All principles, however sound they might be, were subject to clear and well-defined exceptions. There were exceptions to freedom of contract both in Common Law and Statute Law. In Common Law they would find in The Text Books, under the great head "contracts in general," that many contracts were null and void. For example, contracts in restraint of trade and industry which prevented a party obtaining a livelihood in any particular avocation or profession, were absolutely null and void as being contrary to public policy. That was a well-known principle, and one which had been frequently acted upon. That principle had been laid down from the earliest times in law, and there was a curious illustration of it in The Text Books, which he would mention. An action was brought against a dyer not to exercise the trade of dyer. It might have been supposed that, under the principle of freedom of contract, the man would have been allowed to make any contract of that kind; but the learned Justice who tried the case stated that contract was Common Law, and if the plaintiff had been present in Court he would have ordered him to pay a fine to the King. Another Judge—Mr. Justice Anderson—said that such contract was just as unreasonable and void in Common Law as a bond by a man not to go to church. That was the principle of the Common Law as to the doctrine of freedom of contract. The Legislature had interfered in a great many instances. Where bad customs had grown up, and one party had been unable to resist the force of those bad cus- 1715 toms, then Parliament had stepped in and broken through the customs and forbidden them. On that principle it was that Parliament had interfered with the Truck Acts between the employer and employed, and forbidden the payment of wages in food or other commodities, and had declared that any contract with wages, otherwise than in coin, should be illegal, null, and void. That was an interference with freedom of contract. Similarly, by a clause in the Merchant Shipping Act, it was provided that no seaman should by agreement forfeit his lien on the ship, or be deprived of any remedy for the recovery of his wages, and that such agreement should be wholly inoperative. That was an interference with the freedom of contract between sailors and their employers for the protection of the whole class of the merchant seamen in this country. Then, again, in the case of railway companies, under the Railway and Canal Traffic Act, special contracts might be made; but the Act said that a special contract should not be binding if the Judge declared its conditions to be unreasonable. But, of all instances of interference with freedom of contract, the most remarkable and instructive was an Act passed in the Conservative Parliament by three Conservative county Members. The Act recited that a custom had prevailed amongst employers and artificers in the hosiery trade to let out frames and machinery, and that it was desirable to prohibit such letting out and to prevent deduction of framet rents from wages; and the Act not only declared all contracts for the stoppage of wages null and void, but rendered every employer who, directly or indirectly, infringed its provisions, liable to a penalty of £5 for every offence. To make this Bill like the Act of the hon. Member for Leicester, it ought to impose a penalty of £5 on every landlord who preserved game; and yet the noble Lord the Member for Haddingtonshire declared this Bill a monstrosity in legislation. Freedom of contract, according to the noble Lord, was a sacred principle only when applied to rent. Interference with it was a matter of course; but Conservative Members, when dealing with land, thought it otherwise. One great reason for attacking the present bad custom was, because it was in itself a deliberate attempt to overthrow the intention of the Legislature. Now, when 1716 the great reform of the Game Laws was made in 1831, it was unquestionably the intention of the Act to give the game upon the land to the occupier. That was the purview of the Act. Under that sacred principle of freedom of contract, the proprietors of land set to work to defeat that intention. They made contracts by which the occupiers of land were debarred from the enjoyment of that right which the Act of 1831 intended to give them; and, so far from the tenant farmer being benefited by that Act, he suffered from it. That which was merely a sporting right became then a game right, and the "game landlord," as Mr. Clare Read called him, was created who let the game over the head of the tenant, because the power to sell game furnished the temptation to let land in this manner, and led to those battues which were the scandal of sport. He would call the attention of the House to a specimen of what a game lease was. The lease had been sent to him that day, and, among other conditions, it contained the following, all connected with the game question—namely, the warning off the land of all unauthorized persons; the removal of any cotter from the land without assigning any cause—such was the result of the preservation of game; failing such removal, the cottage was to revert to the landlord; and it was also provided and declared that the tenant should not by himself, his servants, or others, in any way disturb or annoy the game. The House would understand by that the nature of a game lease. He wanted to show there was a game lease even in this country, and it referred to a great estate of a great nobleman. He would not give his name. He wondered hon. Gentlemen were so impatient of hearing a game lease read to them. He would, therefore, refer them to something else which would show the consequence of game preserving. It would be found on page 314 of the Evidence before the Committee of 1873, Question 9,950. It related to a case of a cotter, who complained that he could grow nothing in his garden but potatoes, in consequence of the destruction caused by hares, of which he counted on one occasion no fewer than seven. He was recommended to set a trap and catch them. He did so. The hare made a great noise. The fact of his having caught one became known, he was removed from his cottage next day, and was obliged to leave 1717 the parish, which all belonged to one individual. In fact, he was obliged to live at a distance of six miles from his work. That was a state of things that was repugnant to the feelings of Englishmen, and it was for that reason that he would use every effort in his power to put an end to it. The Act of 1831 was comparatively ineffective in consequence of its being passed at a time when the tenant farmers were not properly represented in that House—that was to say, before the Reform Bill was passed. In those circumstances, he was not to be deterred by the cry of freedom of contract from pressing forward this measure, having shown the House that freedom of contract had always been departed from whenever it had been necessary to depart from a very bad custom. There was another objection to the Bill, of which he felt the weight more strongly. That objection came from Scotland, and was raised against the 5th clause, which saved existing contracts. He did not know whether hon. Members opposite wished that clause to struck out; if so, he should be ready to meet their views in that respect. The clause had been put into the Bill because it had been in the Act of 1831, and also in the Scotch Act. He was fully aware of the hardship of delaying any just and necessary remedy for a long period; but, although the farmers of Scotland would suffer from the operation of that clause, those of England, owing to the prevalence of yearly holdings, would not suffer in the same degree. It had been suggested that hares should be omitted from the Bill, but he could see no reason for excluding them from its operation; for all the evidence before the Commission of 1873–4 was as strong as to the injury done by hares as it was with regard to that done by rabbits. Then it was urged that a more sacred animal than hares or rabbits would be imperilled by this Bill, and that was the sacrosanct four-footed animal, the fox. Every country had its sacred animal; Egypt had its cat, and England had its fox. He would, however, venture to suggest to those who loved the fox and fox-hunting, that that sport as it existed in this country, was only carried on by the tolerance and good-will of the tenant farmer. No fox-hunter had the right to ride over a single field in this country. As he had said, it existed by the good-will of the tenant 1718 farmer, and he could not conceive why, if it existed now, it should not continue after the passing of the Bill. If the farmers wanted to stop it, it could be done by putting wires in the fences. Such things had been done, and might be done again; but why it was to be supposed that the tenant farmers, because they had power to kill hares and rabbits, should also kill foxes, he could not understand. He had always understood that the greatest enemy of the fox was the gamekeeper, who, on an estate where there was an over-preservation of game, had every inducement to destroy those animals; and, therefore, he advised hon. Members to pass a Bill against the gamekeeper rather than against the tenant farmer. It had been said that the Bill required amendment; of course, it did. All Bills required amendment, and he had no doubt that the present Bill was no exception to the rule. He was very anxious to see upon the Paper the Amendments which were to be proposed, and he undertook, on the part of the Government, to give them very favourable and careful consideration, with the strongest disposition to adopt such as might seem fitting and proper. But he desired to say that the Government would accept only those which were consistent with the principle of the Bill. It had been proposed that the tenant farmer should not be allowed to take the ground game by means of guns or nets, or the other usual modes of taking such game. That was not an Amendment consistent with the principle of the Bill. This was a Bill enabling the farmer to kill hares and rabbits, and anything to the contrary would not be worth the passing. He did not want the Bill to be an ungracious concession to the farmers of England, that it should be surrounded with all sorts of prohibitions. When a man who farmed 1,000 acres walked over his land, he ought to have a little freedom. But, whatever else was to be done, the Bill must not be made a sham. It had been said, earlier in the evening, that the farmers had had enough of sham legislation. This Bill was intended to give and secure certain things which were wanted. It was not a Bill like the Agricultural Holdings Act. But there was another example of departure from the principle of freedom of contract. The 2nd clause of a Bill for amend- 1719 ing the Agricultural Holdings Bill, which emanated from the Conservative Benches, commenced as follows— Notwithstanding anything in the section hereinbefore referred to, it shall not be competent for any landlord or tenant to withdraw himself from the provisions of the said Act. It had been found necessary to introduce from the Conservative Benches a Bill to do away with the freedom of contract; and the remarkable part of it was that one of those hon. Gentlemen whose name appeared on that Bill went down into Staffordshire to denounce the present measure, because it interfered with the freedom of contract. They had not had the benefit of the Bill to amend the Agricultural Holdings Bill. It bad been announced, but not published. The hon. Member had told them that he had Amendments in store, and be would like to know what Amendments he had to this Bill? The noble Lord the Member for Haddingtonshire had said he should like to have an opportunity of ascertaining the opinion of his constituents with regard to the measure. But hon. Members who had denounced the Bill had had some opportunity of learning the opinions of their constituents, and he had himself received copies of resolutions in approbation of it. The hon. Member for Worcestershire went to raise his voice against the Bill at the Central Chamber of Agriculture. [Mr. KNIGHT said, he had not raised his voice against the Bill.] In that case, his statement was founded upon an inaccurate report. There was no doubt some other Mr. Knight, who protested against the Bill, together with other gentlemen, but who, when it came to the vote, thought it wiser to acquiesce in an unanimous approval of it. Reso-lutions in favour of the Bill had also been received from Norfolk, Staffordshire, and many other counties of England. But then they had been told that if the Government passed this Bill it would be of no use, because the country gentlemen would not pay any attention to it. But the hon. Member who suggested that could not but pretend to be much more wicked than he was. He was, after all, a law-abiding man, and he was sure that if the Legislature passed the Act, even the noble Member for Haddingtonshire would observe it. But it could not be said that hon. Gentlemen, 1720 whose business it was to enforce the law and set an example of obedience to it, would not observe it; for, after all, the enforcing of the law depended not so much upon police and prisons as upon the desire and intention of the community to observe it, and it was for this that the country gentleman of England were distinguished. Then they were told that if the Bill passed, it would do away with leases. Why had leases been given? Because, he supposed, they had been found beneficial to agriculture. And would the country gentlemen of England take up the position that they would sacrifice the interests of agriculture, besides those of the tenant farmers and the 100,000 labourers on their own estates, for the sake of a few rabbits? But he did not take that any more seriously than he had taken the other threat, for to impute to country gentlemen such sentiments was to do them a profound injustice which they in no way deserved. He was happy to say that this was not a Party measure. With regard to the proposals to amend the Bill, he trusted that the display of Amendments on the Paper would not cause alarm. But the fact was, Amendments on the Paper were much more numerous than votes in the Lobby; and, in the present case, some of the Notices on the Paper had clearly been put down by hon. Gentlemen of not large Parliamentary experience. One hon. Gentleman, he observed, who put down an Amendment against the Bill, had expressed great surprise and some displeasure at having opposed the Bill by putting down Notice of Motion, "That it be read this day three months," when it was his full desire to support it. That showed an innocence of Parliamentary procedure which was, perhaps, shared by other hon. Gentlemen who had put down Amendments on the Table, no doubt equally intended to further the progress of the Bill. He was sure that his hon. Friend the Member for Stroud (Mr. Brand) had put down his Amendment because he was aware that the farmers at the Central Chamber of Agriculture in Gloucestershire had passed a resolution in favour of the measure. He was sure, also, that the hon. Member for East Cumberland (Mr. Stafford Howard) desired to assist the Bill and carry out the wishes of the farmers in that country. Again, he was happy to know that a distinguished Member for Essex had pre- 1721 sided at the Central Chamber of Agriculture, when a unanimous resolution was put from the chair in favour of the Bill. He should, therefore, feel surprised and disappointed if he did not receive the hon. Gentleman's support, and should be still more so if the Bill was not supported by the hon. Member for Cambridge. In conclusion, he stated his belief that if the measure were rejected, no substitute could be found for it but the total abolition of the Game Laws; and he, therefore, presented it to the House as a moderate measure, in the confident expectation that it would receive from both sides the support of the great majority of hon. Members, because it was a remedy for an intolerable evil. He moved the second reading of the Bill.