HL Deb 02 May 1828 vol 19 cc279-89

The Marquis of Salisbury moved the order of the day for going into a committee on this bill.

Lord Suffield

said, he did not rise to offer any opposition to the bill, but relating as it did to a matter with which he had long been particularly conversant, and having as yet had no opportunity of remarking upon it during the present session, he felt desirous of addressing a few words to their lordships on the subject then under consideration. He rejoiced that he had been no party to the bill for two reasons: first, because he did not stand committed to the proposal of a measure which fell short of what he, consistently with his declared opinions, should have thought it his duty to recommend. He rejoiced, secondly, because, being no party to the bill, he could freely give its promoters that applause to which their labours so justly entitled them. In fact, much of that which, in his opinion, was due from the legislature to the public, respecting the Game laws, was attained by this bill.—Much concession was made of an exclusive privilege voluntarily, which as it had been lawfully, however unjustly, possessed, it became an act of liberality to surrender.—He rejoiced especially, that this proposed surrender originated with the aristocratical part of the legislature, remembering that nothing less "than a revolution forced similar privileges from the aristocracy of France. It was happy for the country, and highly creditable to those noble lords whose labours had produced this bill, that so much of the public odium would at length be removed from laws, which odium in fact, had rendered them ineffectual. In their present state, they were a disgrace to any free country, and from their oppressive and unjust nature, they were calculated to augment the evil which they were intended to repress. Inquiry after inquiry had been instituted for the purpose of ascertaining the cause of the increase of poaching, and the most whimsical reasons had been assigned for it. Doubtless many circumstances might have combined to increase the number of violators of these and other laws, but their lordships might be assured, upon his experience as a game-preserver, and as a magistrate, that the principal cause has existed in the just and well-merited detestation in which these laws have been held by the public. Hence your lordships hear of, and many of your lordships acting in the capacity of magistrates must have seen, the difficulty of detecting poachers in the first instance, and in bringing them to justice afterwards. Some witnesses examined by your committee allege in these words, "that the judges of the land seem resolved to acquit all poachers and condemn all keepers." If this be true, why is it so? but if not true to the extent represented, a case of recent occurrence in Gloucestershire sufficiently proves the reluctance of juries to convict a poacher. An inoffensive man, in defence of his master's game encountered some poachers, and had his brains beaten out. I The poacher who beat out his brains, was tried at the last assizes for murder, the evidence was clear as to the fact and as to the person, yet the jury acquitted, he (lord S.) could not say the murderer after his acquittal—but the man who undoubtedly destroyed the gamekeeper by blows savagely inflicted on his head. The absence of spring-guns had also been alleged as a reason for the increase of poaching: now, happening to be the person with whom the proposal for their abolition originated, he could not for bear stating, whatever might I have been the effect of their abolition in Yorkshire or elsewhere, in Norfolk no such result had been experienced, it being a remarkable and notorious fact, that, during the year which had elapsed since the prevention of the use of spring-guns by law, less poaching had taken place in Norfolk than had been known for many years preceding. The best remedy for poaching would be such an alteration of the Game-laws as would secure to the public such an interest in the game as the public had a right to demand. Five years ago he had stated in that House what appeared to him to be the chief desiderata on the part of the public, and these desiderata were in great measure accomplished by the present bill. He thought that every man should have a legal right to buy game. Every one should I have a legal right to sell the game found I upon his own land; and lastly, every one I should have a legal right to kill game upon his own land, or upon the land of another with his permission. Had he (lord S.) the power to recommend any alteration of the present Game-laws to the adoption of the House, he should certainly think it his duty to propose their entire repeal, substituting for them only some additional power to punish trespassers by summary process; but having said this, without attempting to support his own view of the subject by a single argument, he should trouble their lordships with nothing more than an expression of his most hearty concurrence in the propriety of passing the bill then before the House.

Lord Redesdale

said, that the Game-laws were originally laws of police. There were formerly large tracts of land in this country frequented by freebooters, such as Robin Hood and his company, and those laws were made for the purpose of putting-down bodies of that description. The country was now in a totally different condition. With respect to the sale of game, it seemed absurd to give a man leave to do that which you could not prevent his doing. But as it was impossible to prevent it, he was friendly to this bill, so far as it related to the sale of game. Neither had he any objection to give a man a right to kill game on his own land; but he could not see why it was to be limited to persons holding ten or more contiguous acres. Why was a man, because half his land happened to be on one side of the road and half on the other, to be in a worse situation than he whose land was all on the one side? In his opinion, every man who held land ought to have the right of killing game upon it.

Lord Suffield

was at issue with the learned lord as to the origin of the Game-laws. They originated in an act of Richard 2nd, which professed to be "an act for the better regulation of his Majesty's subjects, and for sending them to church;" but it was in reality intended as a pretence for disarming the subject. So far it certainly was, as the learned lord called it, a law of police. Its object was a political one.

Their lordships then went into the committee, in which several of the clauses were agreed to. On the clause being read for qualifying esquires, and those of higher degree,

Lord Wharncliffe

said, it now became his duty to endeavour to show the House, that the qualification system proposed by this bill never could have the effect which was apprehended—and which nobody would more deeply lament than himself—of driv- ing the country gentleman from the country to seek amusement in town. So far from its interfering with the sports of these gentlemen, he contended that it was calculated to improve them. For this purpose it was necessary that these laws should be put upon an equal footing, even with respect to the right of shooting on a man's own land, and thus show the humbler classes that their feelings and interests were consulted as well as those of their landlords. He knew the audience he was addressing, and his demand of their lordships was, to open those privileges to the people; and were it not that he felt that demand to be bottomed in justice, and that their lordships must always wish to stand well with the country, he should despair of accomplishing the modification of these laws which he anticipated. He wished, as far as possible, to give to every man the right to sport on his own land: prima facie, this was but justice; and still more, that there should be no right in another man to come on that land. It was also contrary to justice, that if one man reared a quantity of game on his land and it went on another's land, that he should not participate in it. In this clause the marginal note was, that "all who were of the degree of squires and upwards should be qualified." Now, it might be asked, what was meant by that? By the law, as it stood at present, the son of a squire might kill game, but his father, who was of higher degree, could not. Nothing could be more absurd than that a man might procreate killers of game, but could not kill game himself. This was a perfect anomaly, and therefore he proposed, that the father should have the privilege of killing game as well as the son.—His next proposition was, that a lord of a manor should be qualified to kill game. At present he could not, although he could depute another to kill it. He also proposed to qualify many others who were not qualified at present. He came now to the qualification by estate. At present, it required a man to have a freehold of 100l. a-year in this country, to qualify him to enjoy this species of amusement; so that no Irish or Scotch peer, who came over here, could enjoy this diversion with any of their lordships, without thereby incurring a penalty. Even their lordships' own second sons were debarred from it also. All the bill did in this respect was, to allow a man to permit his friends to shoot on his own land. Now, as to the other qualification, which he confessed to be new, it would be for their lordships to say whether it would be consonant with justice not to allow that, if they made game saleable. One great object in making game saleable was, that the market should be well supplied; if it was not, the poacher would certainly come in. He contended, that the effect of this measure would be, to render the small proprietor anxious to assist the larger proprietor in the preservation of the game. But their lordships must expect, if they had great preserves surrounding his land, and would not allow him to kill game upon his own land, that he would find means to annoy them, if it were only by procuring others, who were qualified, to do so. He had seen an advertisement in a Nottingham paper to this effect—" Whereas my land is surrounded by the land of—, and my crops eaten by his game, I hereby give leave to any person having 100l. a year to come and shoot over my land." Now, this was no more than any man would do. Then, was it not better to give a man leave at once to shoot over his own land? With respect to small proprietors, many of them would not act on this permission, because there was the expense of a certificate, which was three guineas and a half; and then there must be a written licence, under the hand of the clerk of the peace. He hoped he had laid sufficient grounds to induce their lordships to adopt this part of the bill. Now, when once their lordships made game saleable, they must give the proprietors the means of preserving it. As the law stood at present, it was sufficiently severe against unqualified persons; but the penalty was not inflicted for the trespass, but for using a dog and gun. But against qualified persons, the only remedy for trespass was an action at law; in which, after incurring all the chances incident to such a proceeding, even if the plaintiff succeeded in obtaining a verdict, most fortunate, indeed, would he be if that verdict covered the damage. Now, his plan was this—the moment a man put his foot on another man's ground, he must answer for it summarily. Every man ought to be allowed to do what he pleased within his own boundaries; but he ought not to be allowed to intrude within another's. It was said, that this would give rise to much litigation; but let their lordships look at his countrymen in Scotland: he called them his countrymen because the best blood in his veins was Scotch. They were not over unwilling, or afraid, to go to law; and yet it appeared, from the evidence given before the committee, by the lord Advocate and another gentleman, that such was not the case in Scotland, because nobody ever thought of passing the boundary of his own land. Such was the state of society in Scotland, which the law, no doubt, was the instrument in modelling; and such would be the case in this country, if the law were to be assimilated, in that respect, to the law of Scotland. The clause gave to the proprietor the power of demanding the name and place of abode of the party trespassing, and of then going to a magistrate and laying an information before him, in case the offender went away after a remonstrance. But if he should resist, and attempt to pursue the sport against the will of the proprietor, or incase of his giving an obviously false name and address, then the latter, at his own peril, no doubt, was empowered to seize the person, and deliver him over to a peace officer. This power was infinitely more efficacious, as a protection to the preserver of game, than any which the law at present supplied.—He now begged their lordships' attention to the clause of exceptions inserted in this bill. This clause saved the rights of all lords of manors, the rights of free chase, and free warren, it also exempted persons on horseback, and engaged in the pursuit of hunting, from the operations of this bill. There could be no doubt, but that a person hunting, who broke the bounds of another man, was a trespasser under this act. But he would not disturb the presumptive privileges of the chase, having been in his earlier days addicted to the amusement himself: but, on the contrary, would do every thing in his power to maintain it, as a manly, invigorating, English sport. In short, he would leave to the proprietor of the land the same remedy as he now had, against a party trespassing, under the circumstances which he had described. He would add, in reference to this subject, that the sport of hunting depended very much, for its innocent or oppressive character, upon the way in which, the practice was conducted; and, if the gentlemen engaged in it did but show a disposition not to interfere unnecessarily with rights, they might expect to see the coun- try go hand in hand with them.—He begged to remind their lordships, that, on this subject, he was not a new reformer; and it was not without much consideration that he ventured to assure their lordships, that they would do infinitely better by leaving the law as it now was, with respect to game, than merely to make the sale of game legal, and abstain from extending the qualification to kill it. There might be in the minds of proprietors of estates an old feudal feeling in favour of retaining their privileges with respect to game; but they might depend on it that, if once these proprietors turned their privileges into a source of profit, the country would murmur, and their lordships would find that such a system would not be endured. Let, then, he would say, justice be done to the people. Their lordships were the virtual representatives of the landed interest of the country; and he would exhort them to give up a part of their privileges, in order to secure the good-will of the people.

The Earl of Malmesbury

gave the noble lord, who had devoted so many years to the consideration of this subject, great credit for the pains he had bestowed upon it; but he could not agree with him in the view he took of it. He considered this to be a perfectly new bill. He knew that their lordships were prejudiced against the present system, because the increase of poaching was attributed to the existing laws; but the evidence before the committee would not bear out this position. His lordship here referred to the witnesses called before the committee. There was, however, another description of persons, whose evidence he should have wished had come before the committee. He meant the persons, magistrates and others, who resided in places where the greatest number of commitments had taken place. In one county, for instance, there had been more commitments under the Game-laws than in all the other counties in England put together; and he must say, that he regretted the absence of this local information before the committee of their lordships. There was an hon. friend of his, the member for Oxford, who was chairman of the quarter-sessions in Wiltshire, and who, he believed, was not a sportsman. Now this gentleman must be aware of the description of persons who had been brought before him, and could have given the committee very valuable information. He should have been glad to have had the evidence of the keepers of the Bridewells, who would have proved what description of persons were committed to their custody, and whether it was not the state of the times, rather than the laws, that had driven agricultural labourers to poaching. He therefore thought that, the inquiry into the question of the causes of the increase of crime had not been carried as far as it ought.—Another description of persons might have been called to state whether the great increase of game and the practice of battûe shooting, had not had a great effect upon poaching. In old time there was not that morbid feeling about sporting which at present existed. Besides this, a great change had taken place, particularly in the middle classes, who indulged in more luxuries than formerly. By the returns respecting the increase of crime, it appeared, that for the last six years there had been no increase of convictions under the Game-laws. In 1821, they were one hundred and forty-eight; in 1822 they fell to ninety-seven; in 1823 they were one hundred and fifty-three; in 1824 they were one hundred and forty; in 1825 they were one hundred and nine; and in 1826 they were one hundred and twenty-eight. From these returns, therefore, it appeared that there had been no increase in the convictions under the Game-laws.—He would now enter into a little analysis of the bill. His noble friend had said, that he wished to do away with the anomaly in the present law of qualification: but had he done so? What did his noble friend mean by "squire?" For his own part, he had never been able to attach any definite idea to the abstract term "squire." He could understand what sort of persons Sancho Pança and squire Western were, but in this country, and in these times, what class of persons were included under the term "squires," he had never been able to find out. He must contend, that if his noble friend had removed one anomaly, he had substituted another in its place. This clause, which regulated qualifications, overthrew the whole of the present system, and would give rise to more litigation than all the existing laws upon the subject put together. These owners of ton acres would be constantly litigating. Let one hundred acres be enclosed, and divided among ten persons. Suppose, on a windy day, a covey gets up on the property of the' owner of one of the ten acres; they fly across the ten acres of the next proprietor, who shoots, and the bird falls in the ten acres of a third proprietor. Now, though the bird might properly belong- to the last, yet such a circumstance would be sure to produce litigation among" them. This was a description of persons who never were intended, and ought not to be, preservers of game. He would much rather see them attending to their farms, than going about at night endeavouring to preserve property which they could not protect. These would be the first persons to whom the poachers would go; because they were not rich enough to watch and protect their game.—One of the consequences of this bill would be, an alteration in the value of property. The value of a thousand acres would then vary, from the circumstance of there being or not being a manor attached to them. But his noble friend had mistaken the matter of qualification. If at the time of the passing the act, now in force, it was considered that 100l. a year was necessary to qualify a man, the qualification now ought to be 300l. a year. This would be only fair, if the relative value of money at the two periods were considered.—There was part of the bill which he must beg his noble friend to explain. It related to joint tenants. Did his noble friend mean, that if there were a number of joint tenants in ten acres of land, they should all be qualified?

Lord Wharncliffe

said, that these words were inserted at the suggestion of an eminent lawyer. According to his own conception, if there were six joint tenants, they would all be qualified, so far as the land in which they had an interest was concerned.

The Earl of Malmesbury

said, that if that were the case, he thought the clause extremely objectionable. His noble friend had said, that no qualification was necessary in Scotland: but what said the lord Advocate? He did not say, that there would be greater litigation under the system of law in England than under the system of law in Scotland; but that the law of Scotland had not been productive of a great extent of litigation. As to the poulterers, as soon as they found that qualified persons were undersold by the poachers, they would buy of the latter in preference to the former. Then the part of the bill which made game found on unqualified persons seizable would be pro- ductive of the greatest trouble. By qualifying such persons, they gave great facilities to poaching-. With respect to the exception which the bill made in favour of coursing and hunting, he was sorry to see it remain a part of the law. But he wished to call the attention of their lordships to the clause, which excepted persons following game on horseback from the provisions of the bill. Suppose he found his noble friend following game, on his property, on horseback, he had only to discharge his gun suddenly, and get his noble friend from his saddle, and immediately he was dismounted, he would become a trespasser. He was afraid this bill would make a great difference in the present constitution of society; and that by creating a new class of game-preservers among little tenants, it would destroy industry, and give rise to extensive litigation.

Lord Calthorpe

contended, that the evils complained of resulted from the Game-laws, rather than from want of employment. The greatest outrages which had been committed did not occur in places where the labourers were out of employment, nor in the agricultural districts; but in manufacturing parts, and where there was no want of employment. That proved to him, that the chief inducement to poaching did not arise from the scarcity of employment, but it resulted from the law which forbad the sale of game, and the demand created by those who were possessed of the means of purchasing every thing legally except game. It was clear that while that demand existed, it would be supplied by persons who could not resist the temptation of profit. It was also proved before the committee, that it was far more easy to get juries to convict poachers in agricultural parts, where the want of employment existed than in the manufacturing parts of the country, where it appeared that persons, who were not in want, committed the greatest outrages. He thought this a proof of the subversion of feeling produced by the Game-laws. Where the plea of poverty existed, no favour was shown; but, towards the individuals who had no such plea, and were only actuated by a desire to supply, for their own profit, the demands of the rich, favour was extended. The evidence before their lordships was decisive of the badness of these laws; and proved that, if game were allowed to be sold, it would diminish the inducements to the commission of this offence; than which a more fruitful source of crime did not exist. The clause which altered the mode of qualification, was essential to give effect to the other parts of the bill. Under the present system, the poacher had a great share of what the land-holders ought to possess exclusively themselves; but if the latter were, as they would be by this bill, secured in the unreproached exercise of their rights, they would derive an enjoyment from those rights which, under the present system, they never could attain.

The question was then put, that the qualification clause stand part of the bill. Contents 33; Not-contents 18; Majority 15. On the clause being read, exempting from the provisions of the bill persons hunting for game on horseback, or coursing with hounds,

The Earl of Malmesbury

objected to it, but especially to that part of it which related to coursing, which would open a wide, field for poachers. Of course they had a right to suppose that none but respectable persons would be found following game on horseback; but the clause was worded in such a way as might give rise to a point, of law. Suppose an individual, when following game on horseback, happened to be thrown from his horse, would he not then be placed in the situation of a trespasser?

Lord Wharncliffe

said, the object of the clause was to allow persons who had raised game on his ground, for instance, to follow it on the next estate.

The words "hunting for game on horseback" were agreed to without a division. On the words "or coursing with hounds" being proposed to standpart of the clause, the House divided: Content 26; Not-content 18; the bill was ordered to be recommitted on Tuesday.