SECOND READING. (Hansard, 14 May 1877)

THE EARL OF ROSEBERY,
in moving that the Bill be now read a second time, said, that this had long been a question of vital importance in Scotland. No one who had watched the Elections in that country and the discussions which had taken place there could have failed to see that it was one which created considerable interest throughout the country. That was not entirely attributable, in his opinion, to the excessive preservation of game in Scotland, but to the unusually high state of cultivation and that the system of 19 year's leases gave to the occupier a great interest in the land as compared with the general tenure of land elsewhere. During the years 1871 and 1872 the excitement on this subject had arrived at such a pitch that no fewer than nine Game Bills were introduced into the other House of Parliament. He would trouble their Lordships by adverting to those deceased measures, only so far as to say that the result of the struggle to get the measures through the House was that the more sedate intelligence of a Select Committee was turned upon the matter; and he claimed for the Bill he had the honour of introducing that it was founded mainly on the recommendations of that Committee. The Chairman of the Committee was Mr. Ward Hunt, the present First Lord of the Admiralty, his noble Relative Earl Stanhope, whom he did not see in his place, Mr. Cameron of Lochiel, Sir Henry Selwin-Ibbetson, and Sir Michael Hicks-Beach, who were, or had been, Members of the present Government. He did not suppose that a Bill framed on the recommendations of a Committee so composed would be likely to have a very revolutionary character. He would proceed at once to state what the provisions of the Bill were. The first provision was to assimilate the law of Scotland to that of England, and to give a definite right to the game to the tenant instead of to the landlord—in other 850 words, to reverse the presumption of law that the right to the game was vested in the landlord in the absence of any express agreement to the contrary, and to vest it in the tenant. The effect of that provision would be that unless there was an express reservation in the lease of the game to the landlord, the lessee would have the exclusive right of hunting and killing the game on the land of which he was tenant. The next provision of the Bill was that in any lease in which the game was reserved to the landlord, there should be some fixed amount by way of compensation for the damage done by the game so reserved, and that the amount of actual damage should be ascertained if possible, and be made subject of agreement between the landlord and the tenant. In the event of disputes arising between the landlord and the tenant as to the amount of damage done, there was a provision of reference to arbitration; and failing that the matter would be brought before the Sheriff. Now with regard to that point he would read two answers given by an eminent authority, Mr. Irving of Drum, before the Select Committee. In answer to one of the questions put to him on the present state of the law he said— I apprehend that the tenant, in making the contract, took into consideration the existing amount of game on the farm just in the same way as they would take into consideration any inconvenience and drawback that might tend to decrease the value of the farm.'' The Bill did not provide for the total amount of damage done, but for the excess over a certain amount of damage fixed beforehand. Now it was obvious that according to the present working of the Game Laws of Scotland they could not absolutely estimate the amount of the damage caused by ground game, unless they established some basis; they might then estimate the damage over the ordinary amount which the tenant might contemplate when he entered on the land; and this Bill proposed to substitute for the amount of damage an actual money value, which would be much easier estimated than any theoretical amount of damage. It was obvious that the middle-aged landlord might not be so keen on the preservation of game as a younger man, who might be more desirous when he came into his inheritance to raise the head of game on 851 the estate higher than it was when the tenant entered on his lease. The arrangement, therefore, proposed by the Bill was necessary to prevent dispute between the landlord and the old tenant. The next provision of the Bill to which he wished to call attention was the proposal to transfer the questions which arose under the Game Law from the justices of the peace to the Sheriff. There was a strong feeling in Scotland that justices of the peace, being largely concerned in the preservation of game, ought not to be allowed to try cases of poaching. It was, in fact, a strange anomaly that a justice of the peace in Scotland should have the power of trying cases against Game Law offences, while in other cases the parties who were interested were not allowed to act in such cases in a judicial capacity. For instance, keepers of breweries and distilleries could not try Excise cases, nor owners of factories hear cases of breach of the Factory Act. He thought it would be rather an advantage to the magistrates themselves as well as to the administration of the law that the Game Law offences should be tried by the Sheriff. The last provision to which he would call attention was this—At present offenders were liable to be prosecuted more than once for the same offence—and he believed that under the present law of Scotland many persons had been charged five or six times for the same offence. There were also two minor provisions—to enable the tenant of a farm to kill hares and rabbits and to give leave to a friend to do the same, and to enable anyone to kill rabbits on taking out a gun licence. He did not know that there could be any objection to such a provision as that. The Bill was certainly not a very revolutionary one, and it was based on the recommendations of the Committee. He knew it to be an honest, and he trusted an adequate attempt to solve a matter of great difficulty.

THE DUKE OF BUCCLEUCH
said, he would not oppose the second reading of the Bill. It was true that there had been a great many Scotch Game Bills brought into the other House, but that was only a proof of the agitation which had been created, as he thought, unne- 852 cessarily upon the subject. It had formed an excellent topic upon which to make exciting, not to say inflammatory, speeches on the hustings—talking about the poor oppressed tenants whose profits were all eaten up by an imaginary quantity of game. He believed an excess of game was the exception on Scotch farms, and not the rule, and there were very few counties in which there was much game preserving in Scotland. It was true that they heard of great battues occasionally, where some thousands of pheasants were shot; but on examination it turned out that they were hand-bred and hand-reared, and only turned into the coppice for a short time before they were destroyed by the sportsman. He thought, from the specimen he had seen of the Bill, it was much more likely to give rise to quarrels between landlords and tenants than to prevent litigation. Who was to settle the question of what amount of damage was done to the crops, and how was it possible to estimate it at so much per acre? The way in which such questions were dealt with and settled now was that when a tenant made an offer for a farm, he took into calculation all the drawbacks to which it was subject; and he (the Duke of Buccleuch) knew himself that the damage done to the crops by the game was always a subject of discussion, and landlords were always willing to consider the damage in the amount of the rent. But to say what the damage was per acre would be a very different matter. Then, again, the game that did the damage to a farm belonging to one owner very often came from the estate of another, and it would be very absurd that the landlord of a farm was to compensate the tenant for damage caused by the hares and rabbits of his neighbours. The tenants often took the trouble to scare away a few rooks from a cornfield, which were practically doing more good than harm, while they stood stick in hand gazing at the wood pigeons, which were doing far more harm. This measure completely altered the whole law of Scotland, and took away the property in game from the proprietor to vest it in the tenant, who might be here to-day and gone to-morrow, and who would take no care to preserve the game on the farm, unless with a view to show how much damage he sustained by it. In so far as the Bill took away the rights of 853 the landowner, he would in Committee move Amendments in the sense of the Agricultural Holdings Act in England. Why should there not be the same freedom of contract between landlord and tenant in Scotland as in England or anywhere else? Then, again, he objected to the change proposed by which the Justices were not to adjudicate upon Game Law offences. He could not understand how it was that it was such a dreadful thing for a Scottish proprietor of land to hear a case of offence against the Game Laws; yet it seemed to be considered such a dreadful iniquity that it was impossible to tolerate it. They had no such officer as Sheriff Substitute in England. Did the noble Earl (the Earl of Rosebery) think that Scottish Justices of the Peace were not quite as impartial and just as English Justices. He had himself acted as Justice of the Peace in Scotland, and he would not allow such an aspersion to be thrown upon an excellent body of men, for whom he had the highest respect. He had no objection to such cases being heard by the Sheriff Substitutes, but he did not think that they would deal with them one whit better than the Justices. With respect to the liberty given by a tenant to a friend to shoot hares and rabbits, of course that would be limited to the laud which he occupied.

§ THE MARQUESS OF RIPON
said, he rose solely for the purpose of suggesting to the noble Earl (the Earl of Rosebery) an Amendment that he thought would improve the Bill—namely, the adoption of a recommendation which was approved by the Select Committee. In cases where the damage was done not by game living on the land of the owner, but by game coming from the property of a neighbouring owner, hardship was inflicted not on the occupier only, but on the owner. The landlord would lose in rent, and the occupier in damage to his crops. He found no provision in the Bill to meet that case, although he believed it would be found that the Select Committee had laid it down that the owner of preserves should be made liable for damage done by his game to his neighbours. He supposed the House of Commons had not seen their way to carry out that recommendation. He was by no means sure whether under Clause 5 such owner would be liable for any damage what- 854 ever. The matter, however, came distinctly within the purview of the Bill.

THE DUKE OF RICHMOND AND GORDON
said, he was not inclined to agree with the noble Duke behind him (the Duke of Buccleuch). In justice to the hon. Member who introduced this Bill into the other House of Parliament (Mr. M'Lagan), he felt bound to express his belief that he did so without any electioneering view whatever, and was only influenced by a desire to remove those feelings of heartburning and jealousy which certainly prevailed in some parts of Scotland—and he was happy to say it was only in some parts of Scotland that such things did exist. He was not going into the details of the Bill. He believed a noble Duke who was present just now, but was obliged to go away from indisposition (the Duke of Argyll), would move some Amendments in Committee. The noble Duke (the Duke of Buccleuch) was wrong in supposing that the Bill interfered with freedom of contract. If it interfered with freedom of contract in the slightest degree, he should himself have as strong an objection to it as the noble Duke. The part which the noble Duke fancied interfered with freedom of contract, in reality did no more than this—it set up a basis on which damage could be assessed. They got a sort of datum line, from which they could start to assess damage done by game; whereas, if they had no such figures, it would be difficult to assess the amount of damage done to a farm over and above the amount which might naturally be expected. There was some obscurity in the clause, which the noble Marquess (the Marquess of Ripon) drew attention to as to reservation; and there was another point which was not very clear, and that was whether the owner might not be liable even for damage done by rabbits which were not reserved. He merely threw out those hints for the noble Earl to consider before going into Committee. Another point he would call attention to was whether there would be an arrangement by which the landlord might have some security for the expense he might be put to in ascertaining the damage done over and above the amount that might be fixed. If a tenant complained to a landlord of damage done on a particular farm, the landlord might send a competent valuer to go over the farm to 855 assess the value in excess over what was agreed upon; and that might take place over and over again, and the tenant might never go to court. In that case the practice might give rise to bad feeling between the landlord and tenant. The landlord might be put to considerable expense to have the damage valued, while the tenant never intended to go into court. There might be some clauses introduced to meet the difficulties which he had pointed out to the noble Earl on this question. He had no other observation to make on the Bill. He believed it to be an honest attempt to put a stop to a state of things which, if they could be put a stop to, it was very desirable to do it.

THE EARL OF ROSEBERY,
in reference to the presumption of law being in favour of game belonging to a tenant who, it was said, might be here to-day and gone to-morrow, reminded their Lordships that in Scotland the tenants held leases for 19 years. He admitted the Scotch Justices did their duty quite as well as the English; but it appeared to him desirable to transfer the game cases to the Sheriffs, in order to avoid any possible reproach that might arise from the Justices themselves being preservers of game. With regard to depredations committed by a neighbour's game, that was a difficult subject to deal with, and he hardly saw his way through that part of the question. He could not help thinking that the expenses of the valuer might be provided for by arrangement in the lease, as was done in many valuations at present.