Lords Sitting of 22 June 1877

MINUTES.
PUBLIC BILLS—Report—Game Laws (Scotland) Amendment (97–118).
Third Reading—Oyster and Mussel Fisheries Order Confirmation (73); Fisheries (Oysters, Crabs, and Lobsters) * (108), and passed.

GAME LAWS (SCOTLAND) AMENDMENT BILL—(Nos. 44–97.)
(The Earl of Rosebery.)
GAME LAWS (SCOTLAND) AMENDMENT BILL—(Nos. 44–97.)

  REPORT OF AMENDMENTS.
  Amendments reported (according to Order).
  THE EARL OF MINTOproposed, in Clause 3 (Interpretation Clause), to leave out the 4th sub-section, by which the word "Game" is interpreted to include "all the animals enumerated in the Game Acts, or any of them," and to give a distinct enumeration of the animals that were included within the purview of the Act. The noble Earl said that in an Act of this kind, it was far better to have a distinct definition of what game really was, rather than define it by scheduling a number of Acts of Parliament—some of which were obsolete—and enacting that the animals which were defined in those Acts as game should be taken to be game under this Act. For instance, the first Act referred to in the Schedule, "an Act of the Parliament of Scotland, passed in the year 1587, chapter 43, entituled 'Aganis slayeris of deir and utheris wyld beastis.' "That Act was obsolete. Again, in the discussion of the measure in Committee, he asked his noble Friend who had charge of the Bill, whether wood-pigeons were included in any of the Acts referred to in the Schedule of the Bill. Now, he himself should interpret it as including wood-pigeons; but the noble Earl said that he did not know. Now, it seemed to him (the Earl of Minto) to be monstrous to legislate upon the subject without knowing the scope of the proposed Bill. Was it or was it not intended to include wood-pigeons, because they were certainly quite as destructive to the crops of the farmer as any other birds which were enumerated in the Acts scheduled. There was no question that this Bill dealt with animals ferœ Natura, and with a large number of animals that were especially enumerated as "game" in the former Acts. Now, on looking at one of those Acts, the first birds enumerated in the list of game were "bustards." But there was not a bustard in the whole of Scotland—they might just as well insert "pterodactyls" in the list. Again, it was only very recently that snipes, woodcocks, herons, and quails were
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  made game, and then only incidentally, by their being included in the Act passed in the Session of William IV., called the Game Trespasses Act. Before that time they were not game at all. That Act referred entirely to trespasses on property, and it might be quite right to punish persons for trespassing in pursuit of snipes and woodcocks as well as for trespassing in pursuit of any other birds. But it was quite another question whether the Schedule of other Acts could with propriety be called a sufficient definition of "game" as referred to in the Act itself.
  Amendment moved, in Clause 3, to leave out sub-section 4, and insert as a new sub-section—
  "4. The word 'game' shall mean, deer, roe, hares, rabbits, pheasants, partridges, grouse, black game, ptarmigan;"
  and, after sub-section 4, add as a new sub-section—
  "5. The term 'Game Acts' shall mean the Acts enumerated in the Schedule to this Act annexed."—(The Earl of Minto.)
  THE EARL OF ROSEBERYsaid, there were good reasons why it would be very inexpedient to agree with the Amendment of the noble Earl. There were already seven or eight game lists, all of them very full and comprehensive in their character, contained in the several Acts enumerated in the Schedule, and it now appeared to him that the noble Earl wished to add an eighth list—which in his (the Earl of Rosebery's) opinion, would create a considerable amount of confusion, and only supplement in an imperfect manner what had already been done. But when he looked at the amended list proposed of the noble Earl, the first thing he had to consider was whether the lists which were already in existence were either too full or deficient; and it was quite clear from the speech of the noble Earl that he believed they were too full. Now, he did not think there was a rational Member of their Lordships' House but would agree that it was unnecessary to add another to the already existing game list. According to the noble Earl's idea, it would seem that he feared that the wood-pigeon was included because the term wild beasts" was used, but it might just as well be held to include the Colorado beetle. There was the further objection to the Amendment of the

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  noble Earl that all the clauses of the Bill dealt with contracts; but the 10th and 11th clauses referred to the amendment of criminal procedure under the Game Laws enumerated in the Schedule, and the penalties of those Acts could only be exacted under the game lists in those Acts.
  THE EARL OF MINTOsaid, he had no such wish.
  THE EARL OF ROSEBERY: Then it was absolutely necessary to refer back to the other clauses.
  THE DUKE OF RICHMOND AND GORDONhoped the noble Earl would not press his Amendment. He believed that all the game it was necessary to define was defined within the four corners of the Acts that had been scheduled. One very good reason for their not adopting the Amendment was, that in all likelihood it would tend to limit the definition of the word "game" to the animals therein enumerated; whereas the definition at the present moment was to be in accordance with the definition given to game in the Acts of Parliament which were scheduled.
  THE DUKE OF ARGYLLalso opposed the Amendment. He would point out that as the proposed definition would affect the list of game contained in all the Acts scheduled it would affect all prosecutions arising out of any of those Acts in respect of all animals, as well those that were not enumerated as those that were.
  THE EARL OF MINTOsaid, that as he read the words of the Bill, "game" was to include all that was enumerated in the Schedules of other Acts; but, inasmuch as this was an Act to regulate the relation between landlord and tenants, he could not help thinking that the title of the Bill should be amended so as to correspond with that fact. Why should that fact not be set forth in the title? However, if their Lordships would not support him, he would not persevere any longer in arguing in favour of his Amendment.
  On Question? Resolved in the Negative.
  THE EARL OF SELKIRKmoved an Amendment in Clause 3 (Interpretation Clause) to insert after the word "grass," in the definition of the word "crops," the words "under cultivation," so as to make the clause read, "the word crop shall include grass under cultivation."
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  The noble Earl said that he moved the Amendment at the request of the noble Duke (the Duke of Buccleuch), who was unable to be in his place to-night. The object of the Amendment was to except the grass land on moors and mountains from the operation of the Bill. It was perfectly clear that the framers of the measure had no intention of extending its provision to the tops of mountains, and to those large districts in which there could be no possible injury done by game. He therefore proposed to insert after the word "grass" the words "land under cultivation,"—unless their Lordships should be of opinion that the object could be better effected by the amendments which had been put on the Paper by the noble Earl (the Earl of Rosebery).
  THE EAEL OF ROSEBERYsuggested that the object of the noble Earl might be better obtained by the adoption of the word "muirland," which was very well known to the Scotch law, rather than by the insertion of the words, "land under cultivation;" because, if they adopted those words, the matter would be left very undefined, seeing that some land might be partly under cultivation and partly muirland, and the adoption of such words would bring the whole of that land under the operation of the Act. With respect to the word "muirland," a very distinct definition of it had been given by Lord Cock-burn in a Scotch cause. The object of the noble Duke (the Duke of Buccleuch) being undoubtedly to exclude the moors of Scotland from the scope of the Bill, he thought that if they added the words "except muirland," they would better effect that object than by using the words proposed by the noble Earl.
  THE DUKE OF ARGYLLsaid, he did not think the matter one of very great importance, as in all probability the quantity of "grassland under cultivation" on moors would be very small; but a question might arise whether, if the words "land under cultivation" were adopted, it might not be taken to mean land under arable course of cultivation. He believed that the words suggested by the noble Earl (the Earl of Rosebery) were preferable to those suggested by the noble Earl opposite (the Earl of Selkirk).
  THE DUKE OF RICHMOND AND GORDONsaid, he thought the word

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  "muirland" was preferable to "grass land under cultivation,"
  Amendment negatived.
  Then, on the Motion of the Earl of ROSEBERY, Amendment made; subsection 5 struck out, and the following substituted:—
  "5. The word 'crop' shall include 'grass, whether intended for hay or pasture, except where grown upon muirlands."
  THE EARL OF SELKIRKmoved an Amendment in Clause 7 (Provisions as to arbitrations for settling claims of damage between lessors and lessees), to leave out the words
  ("When a lessor and lessee agree in writing to refer to arbitration any claim of damage arising under this Act,") and insert ("In all cases where there is a clause in a lease providing for the settlement of disputes by arbitration, the case shall be at once referred to the arbiter pointed out in the lease; and where no such clause exists in the lease, it shall be competent for a lessor or lessee to refer such claims for compensation to arbitration, in which case")
  If the clause were adopted in the present form, there would be two sets of arbitrators—those appointed under the lease, and those appointed under the Act. The effect, therefore, would be to render nugatory the provisions for arbitration under the lease.
  THE EARL OF ROSEBERYreminded their Lordships that this was a point which had been decided in Committee, and he did not think that any additional reasons had been alleged by the noble Earl to induce them to change the decision at which they then arrived. If the Amendment of the noble Earl was inserted, no one would know under what arbitration disputes with respect to damage by game would come. He thought that it would be better to have one uniform arbitration like that proposed in the Bill.
  THE EARL OF SELKIRKsaid, that the Amendment would certainly be an interference with the principle of arbitration as laid down in the lease.
  THE DUKE OF RICHMOND AND GORDONventured to urge upon his noble Friend not to press this Amendment. He quite agreed with him when he said that it was possible that disputes might arise under the lease; but it was equally possible that they might arise outside the lease, and the arbitration now proposed would enable them to dispose
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  of matters which were not contemplated in the lease. If this provision was inserted for the purpose of deciding the way in which all disputes arising out of the lease were to be decided, it was better to confine all decisions to one kind of arbitration. It was perfectly possible that the lease might contain nothing whatever in regard to game, and still it might provide for arbitration of disputes which might arise under the lease; but it could not possibly provide for the settlement of disputes arising outside the lease. In his opinion, the clause as it stood would work better than it would if amended in the manner proposed by the noble Earl.
  THE EARL OF SELKIRKrepeated, that when in the lease itself there was a clause to the effect that disputes between the parties should be settled in the way which was pointed out by the lease, that was the way in which the parties to the lease had contracted to arbitrate. It was therefore a plain infraction of the principle of freedom of contract to enact that they should be settled in another manner.
  THE LORD CHANCELLORsaid, that as far as he understood the argument of the noble Earl, it appeared to him that there were some grounds for his Amendment, and he was not at all sure that some change in the clause might not be introduced which, without affecting the general principle of arbitration under the Bill, would carry out his view. He understood the noble Earl to say that the provisions of the Bill would affect leases which were hereafter made. It therefore applied to the future. But landlords and tenants might agree to leave the settlement of any disputes arising under the lease to arbitration as agreed in the lease itself; while disputes arising out of damage done by game might be left to the arbitration proposed by the Bill. He did not suppose the noble Earl who had charge of the measure would object to some such provision being inserted in the Bill.
  THE EARL OF ROSEBERYreminded the noble and learned Lord that there was already one general provision for arbitration in the Bill, and he thought it would be very inexpedient to introduce a second.
  THE LORD CHANCELLORsaid, that he was quite aware of the provision referred to; but he thought that where

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  the landlord and tenant agreed in the lease to settle disputes arising out of damage done by game, as well as other matters according to terms contained in the lease, there might be a provision enabling them to do so without interfering with the general principle of arbitration contained in the Bill.
  THE DUKE OF ARGYLLunderstood the effect of the Amendment of the noble Earl to be, that in leases where there was a general clause for arbitration on matters arising out of the lease, the arbitration should include disputes arising out of the damage caused by game, and that they should not be subject to the special arbitration provided by the Bill. He did not think that there was any objection to the introduction of such a principle into the Bill; but he doubted whether the Amendment proposed would exactly meet the case.
  THE EARL OF SELKIRKsaid, that he would probably be able to suggest some words that would meet the difficulty on the third reading.
  Amendment (by leave of the House) withdrawn.
  THE EARL OF STAIRmoved an Amendment to add Proviso to Clause 6, sub-section 2,
  (Provisions as to actions of damage between lessor and lessee.)
  After ("sterling") add ("Provided always, that the sheriff substitute shall, whenever required to do so by either party, take and record the evidence laid before him, in which case an appeal shall be to the sheriff, whose judgment shall be final.
  The noble Earl said, that by the Bill, as it now stood, the jurisdiction of the Sheriff-substitute, which was now limited to trial of small debts to the amount of £12, would be extended to the trial of disputes between landlords and tenants, often involving very nice and intricate questions, up to £50.
  THE EARL OF ROSEBERYthought that their Lordships could very well trust the Sheriffs-substitute with the settlement of disputes under this Bill. The main objection which he had to the Amendment was, that whereas the object of the Bill was to render easier the relations between landlords and tenants, this Amendment would tend to increase litigation, by giving a right of appeal
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  from the Court of the Sheriff-substitute to that of the Sheriff.
  THE EARL OF STAIRsaid, this was a point upon which he should feel it necessary to divide the House.
  After a short conversation,
  THE EARL OF ROSEBERYconsented to accept the Amendment.
  Words added.
  Clause, as amended, agreed to.
  Further Amendments made.
  THE EARL OF MINTOmoved to insert in the title of the Act, the words—(" to regulate the relations between landlords and tenants in respect of damages by Game, and"). The noble Earl said, that the object of the Amendment which he proposed was to make the title more harmonious with the Bill itself, so as to make it intelligible to the people of Scotland at large.
  THE DUKE OF RICHMOND AND GORDONsaid, it was unnecessary to put in further words to express the object of the Bill. Although it was perfectly plain that this would be an Act which would regulate the relations between landlord and tenant, it was not necessary to express that intention in the title.
  THE LORD CHANCELLORsaid, the object of the noble Earl appeared to be to impress upon the title the idea of the nature of the Bill itself. But that seemed sufficiently done by the short title of the Act—" An Act to amend the Laws relating to Game in Scotland."
  THE EARL OF ROSEBERYsaid, he had no objection to the addition proposed to the title; but he thought with the noble Duke and the noble and learned Lord that it was unnecessary.
  On Question? Resolved in the Negative.
  Bill to be read 3ª on Tuesday next; and to be printed, as amended. (No. 118.)
  House adjourned at a quarter past Six o'clock to Monday next, Eleven o'clock.