Lords Sitting of 27 February 1827

GAME LAWS.
Lord Wharncliffehaving presented a petition from the magistrates of Bury St. Edmund's, praying for a revision of the Game Laws, observed, that in pursuance of the notice he had given, it now became his duty to call the attention of their lordships to this subject. His lordship proceeded to state the grounds on which he thought the present Game-laws ought to be altered. He trusted that his motives would not be mistaken, nor the object he had in view over-rated. Their lordships had doubtless heard of those desperate conflicts which frequently took place in consequence of the attempts of poachers to obtain possession of game, and must wish to do away with such a state of things. Unfortunately, there must now be many persons in the country who had become habituated to this system of depredation and plunder; for it had been carried on for a great number of years. So long as the persons who had been brought up in such habits existed, it could not be expected that poaching would entirely cease; but he hoped and believed, that a change in the present laws—a change which would go along with the common sense and feelings of the people, and which would induce them to say, "this is right,"—would greatly tend to remedy the

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evil, and would speedily diminish the number of those who lived by unlawful plunder. He hoped it would not be thought presumptuous in him to submit a proposition on the Game-laws to their lordships, so soon after he had had the honour of being called to that House by his majesty's favour. The subject, however, was one to which his attention had been directed for many years. He had frequently adverted to the subject in the other House of parliament, and that House had, on his motion, passed a bill to amend the Game-laws, which was sent up to their lordships, but which did not receive their sanction. Being now a member of their lordships' branch of the legislature, he proposed to bring the subject under their consideration. He did not expect to be able to remove all the evils, or even the greater part of them, which sprang from the Game-laws, but with those laws no man was satisfied. All parties and all ranks condemned them; and the question was, could these laws be so amended as to give satisfaction to the great mass of the people? He was aware that the task was a difficult one; but not so difficult, he thought, as to induce him not to encounter it. He was himself a country gentleman, fond of the sports of the field, and wished on no account to do any thing to injure or destroy them. No man was more sensible than he was of the advantages of country gentlemen residing on their estates; but if that advantage were to be purchased at the expense of retaining all the gross evils of the present Game-laws, he should say it would be too dearly purchased. He was happy to say that when he looked at the system of the Game-laws, he found that in order to amend them, nothing more would be necessary to be done than for their lordships to return back to the state of those laws at an early period, before they had been altered by modern legislative enactments. For himself he would say, that he was no reformer, but he could not shut his eyes to errors which were the growth of time. He would look to the principle on which their lordships' ancestors had founded the Game-laws, and keeping that principle always in view, would endeavour to discover how far, consistently with that principle, they could be amended. And here he must observe, that nothing in his opinion did so much harm as an erroneous dictum laid down in a book which was generally popular.
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Now, in the "Commentaries" of Blackstone,—a book which was the most popular of any on the laws of England,—a dictum was laid down on the subject of game which he must beg leave to say was at variance with the common law of the land. That author stated the animals pursued as game to be ferœ natureœ, and that being so, they belonged to nobody but the king. Now, he would contend against this dictum. Such was not the law, and never was the law of England. The king never possessed such a power as that attributed to him by Blackstone. Every man had full and complete power over the game on his own land, and the true principle of English law with respect to such property was—cujus est solum, ejus est usque ad cœlum, atque ad inferos. Not a partridge or a hare upon any man's estate belonged to the king. The first principle to be set out with in amending the Game-laws was, that according to the common law every man had the right to do what he liked with his own land, and therefore was the owner of the game upon it. Such was always held to be the case, till a comparatively late period, when the Game-laws were altered—an alteration which had produced a change disgraceful to the country. The first great alteration was made in the time of Charles the 2nd, by acts of the 22nd and 23rd of that king's reign. The qualifications which had been established for killing game were of the most absurd and inconsistent nature. He knew that a great number of persons were of opinion, that the present state of the law on this point was the means of preserving game, and though willing to allow game to be sold, they would not consent to alter the qualifications. But he must say, that if their lordships allowed the sale of game, and continued the present qualifications, they would not only do no good, but would make the law worse than it now was. What were the present qualifications to kill game. He would mention some of them to their lordships. A man must be possessed of land to the value of 100 l. a-year if a freeholder, or of 150 l. if a leaseholder, or must be the eldest son of an esquire, or of some person of higher degree. Now, with respect to the first qualification, that of 100 l. a-year, it was easy to understand why it had been enacted. It was, doubtless, supposed, that a man who possessed an estate of 100 l. a-year, would have land enough to sport upon; but the

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reason of other qualifications and disqualifications was not so apparent. He was now addressing the great landholders of this country; and all the noble lords around him were not, perhaps, aware, that every time a Scotch or Irish peer went out to sport in this country, he was liable to a penalty of 5l. if he did not possess freehold or leasehold property in England of the required value. According to the law, the second son of a man of property was not qualified to shoot on his father's grounds. The elder son was qualified, but all the rest were disqualified. There were some classes who acquired the right of shooting through others who could not shoot. Certain persons, propagated shooters, for they might have sons who were officers, and were therefore qualified, though the law would not allow them such right. He would mention to their lordships an instance of hardship which might every day occur in the administration of the Game-laws. A person of great property, who resided in the country, but was possessed of no land, wished to amuse himself by shooting. He went out with his gun, and the next day had an information lodged against him, which was followed with a conviction, and the payment of the penalty of 5l. Among the other inconsistencies of the law, he would again advert to the circumstance of the second son of a man of property not being qualified. If a second son was seen sporting on his father's grounds, the gamekeeper of a neighbouring estate might lodge an information against him; but the gamekeeper could not seize his gun or prevent him from shooting, because he could not come over the hedge without leave. If he did, he would be guilty of a trespass. If, however, an unqualified person went on shooting, the law afforded but a very remote remedy. All that could be done was some three months after to prosecute him at some assizes. The prosecutor must then take his chance of an action at law, on which he would perhaps lose the day, and have to sustain a considerable expense; whereas the unqualified sportsman, if convicted, would only have to pay his own costs. Under the act of the 5th of queen Anne, a man might go on sporting all day if he gave his name. If he was afterwards found, he was only liable to conviction in the penalty of 5l., and perhaps he might never be found. All these circumstances showed the confused state in which the
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law upon this subject stood. He would wish to prevent any person from sporting on another man's laud without his leave, and would make it lawful for any person to warn any one so sporting, off the ground. By the alterations he should propose, the owners of land would have complete power to prevent any one from trespassing on their grounds. A main object which he had in view was, to do away with the present qualifications. In justice and honesty, every person ought to know another person's land, and ought not to pass the hedge which divided his own from that of his neighbour's property. He would say that no man should trespass upon another person's land, either for the purpose of sporting under the protection of qualifications, or with the object of theft or gain. Should any person so trespass, he would propose that it should be lawful for the person who owned the grounds, or any body appointed by him, to go to the trespasser, demand his name, and warn him to go off the property; and if that demand should not be complied with, the proprietor should have power to take him immediately before a magistrate, and if any resistance should take place he hoped some considerable punishment would be enacted against the offender. This was a way by which, he thought, property would be much better protected than by the trumpery laws that now existed. Every one would thus have a complete power of preventing any person trespassing on his grounds, and a summary power too, by being enabled to take the offender forthwith before a magistrate, instead of being sent to seek for the distant remedy of an action for damages, the chances of which were, after all, against him.—Having stated his mind upon that part of the question, he should proceed to the other parts of the question. The lord of the manor should have a right to the whole of the game upon his soil. The principle upon which this went was, to do away with the qualifications, but to guard against trespass. He thought it should be considered whether, when a power was given for a protection of game, a power should not also be given for the sale of game. He saw no reason why a person who was allowed a property in game should not be allowed to sell it. The law which prevented qualified persons from selling game was of recent date. An early statute of Henry 7th prohibited the selling of game; but the statute of the 28th of Geo. 2nd quali-

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fied that principle, and was the first statute that imposed a penalty upon the selling of game; but its operation was against the person who sold the game, leaving the person who took it untouched. The 58th of Geo. 3rd put the buyer and the seller upon the same footing. He proposed to sweep away those statutes. The state of society in this country had altered considerably since those acts had passed, which imposed a penalty on the selling of game. Whatever laws their lordships might make, let them not be deceived. However tightly they might endeavour to draw the cord, game would be sold as long as there were rich people to buy. Riches would ultimately triumph; and it would be absurd to say to the rich alderman in London, "you shall not have game." Let game be bought and sold; but he was well aware that at that moment, and under present circumstances, it was possible that a free and open market might have the effect, for some years, to increase the crime of poaching. He would, therefore, restrict the operation of this principle of free purchase and sale, until the market should get into a regular state of supply. He should therefore purpose, that the bill should contain a clause empowering magistrates to license persons, until such time as that power might be dispensed with; for he thought it the best and wisest plan to open the door only by degrees. As he had stated before, he had great reason to hope that the legalizing the purchase and sale of game would go a great way to put an end to the crime of poaching. But he would ask of their lordships to consider well how much they would increase the injury of the present laws, if they should confine the power of selling game to the person possessing a certain amount of property—if it were allowed to an individual who possessed an hundred acres of land, or 100 l. a year, to kill game and go to the market and sell it, while his neighbour, who possessed only ninety nine acres of land, or 99 l. a year, should be prevented. Not only the great landlords, but the small proprietors of land, should have the privilege of selling game. If a person had an estate of three hundred acres, two hundred of which were mortgaged, he would then just have sufficient to qualify him, but would have the power of shooting over the whole estate; while another person who had ten acres less would be disqualified. He would endeavour to correct that
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injustice in the first bill he should have the honour of laying upon their lordships' table.—Another part of the subject related to those persons who went out in the night for the purpose of poaching. Every one who had read the papers for the last three months, and knew the state of the country, must have seen with horror the conflicts which had taken place in consequence of that practice. It happened, too, that the compassion of the people of this country was not excited for the unfortunate gamekeeper, but for the poachers. The language held upon such occasions was, that the laws were unjust and severe. This was not a right state of things, and the only way to put an end to the practice of poaching was by giving a right state of feeling to the public mind. That would go to break the habit of going out at night, for the purpose of depredations of this sort. If a man once went out at night, if he did not get a partridge or a pheasant, he would not return without a sheep. He intended to bring in a bill for the purpose of punishing persons who should go out at night, and to repeal the 57th Geo. 3rd on that subject. The penalties of that existing severe act were, that every person who should be found in a wood or enclosure, armed with a gun, for the purpose of destroying game, should be liable to be tried for felony, and, upon conviction, to be transported. That was a most severe act, and, in many recent cases, the punishment had been thought to be of so severe a nature that juries had been unwilling to perform their duty. That would not be the case if the law were altered. It might be very necessary when a person should be so inveterate in crime, and so decidedly unfit to remain in this country, to send him to another. But it was rather too severe a punishment for the first offence; when, by proper means the offender would probably mend. His proposition was, that a man for the first offence should be liable to be carried before a magistrate, and, upon conviction, be sent to the House of correction and put to hard labour for three months, and at the end of that period to find good sureties for a year. For the second offence, the offender should be sent to prison for six months, and find sureties for a still longer period; and for the third offence be liable, upon conviction, to be transported. Further than that he was even willing to go, and to say that if any person should assault the gamekeepers, whether upon the first, second

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or third offence, such person should be liable to be tried for that assault. These were the alterations in the present law which he proposed to their lordships. They were founded in justice, and upon a provision which was new in gaols, and to which he should call their lordships' attention. Hitherto persons offending had been sent to gaol, and at the expiration of their confinement were perfect masters of themselves, and at liberty to follow their former practices. He had proposed to take from those people a note-of-hand, which should be signed by some of their relations; and it certainly had the effect of making them think that if they offended again, they would not only bring themselves, but their relations into danger. It had been said, in objection to that point, that it could not be supposed that young men could give sureties; but he was satisfied that there was no young man who had offended only a first time, or even a second, but could find sureties. He had had sureties offered to him over and over again. These were the provisions which he would submit for their lordships consideration; and he trusted that their lordships would give their full consideration to them. His object was, to put the law upon the subject, not only in an intelligible, but also in a practicable form. His measures did not go in the least to touch the rights of the lords of the manor; and he trusted their lordships would not receive them as coming from an enemy of their sports; for he was equally connected with those sports as any of their lordships, but was proceeding from an anxious desire that the peers and the gentry of Great Britain should stand well with the people. The noble lord then introduced a bill to amend the laws respecting the preservation of game in that part of Great Britain called England.
The Earl of Malmesburydid not rise to object to the first reading of the bill which his noble friend had just brought in, but to return thanks for the clear statement he had made upon so important a subject as the Game-laws. He wished, however, to make a few observations. In the first place, he did not attach so much importance to doing away with the qualifications, as he did to the provision for making game property. The great increase of the crime of poaching had been ascribed to the operation of the Game-laws. So it had often been stated, but the truth was, that
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this great increase of poaching was not so much owing to the Game-laws, as to the present distressed condition of the humbler classes of society. The Game-laws had existed for two centuries, without this crime having prevailed to so great an extent as at present. The circumstance was owing to the reduced state of the poorer classes, and to the low price of agricultural produce. He observed a noble lord smiling at that observation, but such was undoubtedly the case; for, owing to the low price of produce, the agriculturists were unable to employ so many labourers as they would otherwise do in the improvement and management of their lands; and the consequence was, that, in the agricultural districts particularly, the people were too apt, from want of lawful employment, to encounter the dangers of poaching. Another cause of the increase of poaching and other crimes, was the present commodious and comfortable state of our gaols. With reference to that point, his lordship stated, that a man had shot at another man in his park, and desired a person who was passing at the time, to notice the fact. The man was brought before him, and when questioned as to his inducement to shoot at the other man, he replied, that he wanted to be sent to prison. He did not think it proper to gratify the man's inclination; but this showed in what light imprisonment, in the present commodious state of our gaols, was regarded. His noble friend had stated, that he did not mean that the sale of game should be made entirely open at once, but only that it should be rendered lawful for certain licensed persons to sell game, which, in reality, amounted to the same thing. In adverting to the topic of qualification, he completely differed from his noble friend, who appeared to think it an hardship on the rich fundholder, that he should not; have a proper supply of game for his money, while it could be had in abundance by a far less wealthy landowner. Now, it so happened, that the fundholders had, during and since the war, obtained great interest for their money, and increased their capital prodigiously; while the land-owners were obliged to be content with an interest of three per cent on their capital. If these rich fundholders were so bent on having game, why did they not, with their superfluous riches, purchase as much land as would give them a qualification to kill it. The case of the rich

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fundholder was certainly, therefore, not a case for pity. The grand point for their lordships' consideration was, the great increase, not only of poaching, but of crime generally; not owing to the operation of the Game-laws, but to the extraordinary state of penury and distress to which the labouring classes had lately been reduced.
The Earl of Hardwickesaid, he could not agree with the noble lord who spoke last, that the great increase of poaching arose out of the distressed state of the country, and not out of the laws. He thought the country was highly indebted to the noble lord opposite for the great pains which he had taken upon this subject; which was certainly one which deserved the serious consideration of the whole legislature. It was notorious that the gaols of the country were filled with persons accused of the crime of poaching; and it would be a happy circumstance, if any device could be found to give a check to the growing increase of that, and of other crimes. He trusted that, whatever the result might be, the noble lord would proceed with his measure, that their lordships might at least have the opportunity of fully considering the subject. Nothing could be more absurd than that an alderman of the city of London should not be able to purchase a pheasant as well as a turkey. He would allow him to purchase all kinds of game.
Lord Teynhamadverted to the great demoralization of the peasantry which had taken place, and thought that no time ought to be lost in entering upon a thorough investigation of the subject. The peasantry of the present day were not the peasantry of our ancestors, "their country's pride," but a degenerated peasantry. Taxation had reduced that portion of the population of this country to such a state, as existed in no other part of the world. He himself would move for the appointment of a committee to examine into the condition of the labouring classes, if no other of their lordships thought proper to do so.
The Earl of Carnarvonthought that the best thanks of the House and the country were due to the noble lord for bringing this important subject under their consideration. A bill had, not long ago, been brought up from the other House on the same subject, which was in some respects attended with difficulties, and their lordships had thought proper to reject it. In the bills now to be brought forward he trusted that
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those difficulties would be removed; and, if they proceeded on the same principle as the former bill, they should have his decided support. He fully agreed with the noble lord who spoke before him, that great demoralization had been produced in the condition of the labouring classes, more especially in the agricultural districts, where the wages of labour were reduced to the minimum, and the poor-laws were executed in such a manner as to aggravate the evil. That this was one cause of the increase of the crime of poaching, as well as of other crimes, there could be no reasonable doubt; but still it could as little be doubted, that the increase of the crime of poaching ought, in a considerable degree, to be ascribed to the operation of the Game-laws. It was impossible that those laws should not contribute, in a high degree, to the increase of that crime, when it was considered, that game was a commodity which no one was ashamed to buy, although, in the first instance, it could be sold only by thieves. Respectable people would feel ashamed to purchase any other article, knowing it to be stolen; but this feeling did not extend to game. No man could attach more consideration to the comforts of the country gentlemen than he did; but, owing to the present state of the Game-laws, crimes against them remained often concealed and unpunished, and, by that means, naturally led to crimes of greater magnitude. Until the qualifications and other obnoxious parts of those laws were done away, matters could not be placed on a proper footing. He highly approved of affixing a milder punishment to the crime of poaching, in the first instance; and he was satisfied that in such cases, the parents and other relations, and even the farmers whom they served, might often be induced to become sureties for their future good behaviour; and that this would have a good effect in repressing the crime. It was a common saying, that there was honour even among thieves; and these people would be deterred more effectually by the consideration that their relations and friends would be compromised by a second crime, than if they knew that they themselves would be the only sufferers. This sort of feeling was apparent, in the extreme difficulty found in inducing one poacher to give up another. He concluded by again thanking the noble lord for bringing forward the subject, and for the pains which he had bestowed upon it.
Lord Clifdensaid, that there was one part of the question which the noble lord had entirely omitted to mention in bringing forward his laudable propositions; but he supposed the great difficulty of touching upon so delicate a subject must have occasioned the omission. He alluded to the use of spring-guns. Two years ago, a noble lord had carried a bill through that House, which had for its object the putting an end to their use; but it was lost in the other House. It was a disgrace to the country that they were ever allowed to be set. Every paper related the accidents which they occasioned, and the mischief was, that the guilty seldom suffered by them. Their lordships were aware that no man would buy a fowl if he knew it to have been stolen, but no one was ashamed to buy game; and he believed that the highest personage in the state had bought game to a considerable amount. Every man thought he had a right to buy game.
The Marquis of Lansdownsaid, he had no wish to detain the House by going into the details of the bill which had just been offered to their lordships' consideration, as noble lords would be better prepared to give their opinions upon the subject on the second reading of the bill; but, in rising to say a few words, he wished to convey the most cordial expressions of his respect and gratitude to the noble lord for bringing the subject under the consideration of the House, in a manner which must secure for it an ample and full discussion. Greatly as the offences against the Game-laws had directly increased, a very imperfect estimate would be formed of the consequences of those offences, unless their indirect effects were taken into consideration; they being the first step towards other crimes of all descriptions, and of a more heinous nature. The offences against the Game-laws undoubtedly led, especially in the agricultural districts, to the commission of a variety of other and more desperate crimes; and it would be taking a very narrow view of the subject to suppose that the consequences were confined to the increase of the single crime of poaching. He therefore, intended to have on their lordships' table, by the time these bills should be read a second time, a return of commitments for crimes in general, which might have the effect of throwing much light on this subject. He agreed that the increase of crime had been owing to other causes besides the Game-laws; and the
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main cause was, in his opinion, the unfortunate habit of paying wages out of the poor-rates—thus destroying, in the labourer's mind, every feeling of independence, honour and honesty—for there might be honour and honesty in all stations, and rendering them negligent of character, when they found that character could be of no use to them. This was an evil which, perhaps, was not so well known to the noble mover, as it had not, as yet, in its worst features, extended to the north of England, though it must soon reach that quarter also. Thus the labourers were first led to commit offences against the Game-laws, and these paved the way for still more heinous offences.
The bills were then read a first time.