§ Sir Samuel Romilly
rose, in pursuance of previous notice, to move for the repeal of an act which had been only seven months in existence, which had been hurried through the House at a very late period of the last session, amidst a multiplicity of other public bills, had been read a third time at one o'clock in the morning, then sent up to the Lords, where it equally passed without any remark, and finally received the royal assent at the very close of the session. It was an act of the most unjustifiable severity, upon the merits of which the deliberate sense of the House ought at least to have passed; though he believed that the great majority of the House did not even so much as know of its existence. The act to which he referred was on the subject of the game laws; and it put the illegal destruction of game on the same footing as any felony, by rendering the offence liable to the penalty of transportation for seven years. Nay, it did still more; for it made not merely the act, but the mere attempt to kill game by night, in an enclosed place, a felony, rendering the offender liable to transportation for seven years. The bill enacted, that if any person be found in an enclosed place by night, not merely with a gun, but with a net, or any other engine 339 for killing game, he shall be liable to the above penalty, at the discretion of the magistrates met at the quarter sessions. The game laws had been uniformly complained of as a code unusually severe; but such an act as this, he believed, was without example in the laws of any other country. He was quite sensible of the habits of idleness and profligacy which poaching created; but such an attempt as this to repress it was in fact defeating its own object: for the question recurred, whether it was just or politic to adopt such severe laws, which tended to drive to desperation the violent and lawless character of the poacher, who might be induced to repel force by force, when he knew it was a matter of indifference whether he had a gun, or merely a net, or some other engine for the destruction of game. He did not deny that acts of atrocity in the pursuit of poaching had been more frequent of late years than formerly; but the question was, whether a bill, which changed the whole policy of the game laws, was the most effectual mode of putting them down. Here the learned gentleman read the preamble of the bill, which recited, that many idle and disorderly persons had of late gone abroad, and had been trained up by habits of poaching to felonies, and even to murders. It then proceeded to enact, that any person found by night in an enclosed place, with a gun, or merely a net, or other engine for the destruction of hares, rabbits, or any other game, should be liable to transportation for seven years. Now, had it merely created a severe punishment for the offence, he should not have objected to it; but when he found it clothed with such extraordinary severity, he would ask, whether the preamble was not a mere pretence, and had not the offenders better go armed, for by doing so they would not incur a higher penalty? It was not his intention to represent the game laws in an odious point of view: but he must remind the House, that there was this obvious distinction between them and other penal laws; namely, that the latter were made for the protection of the poor as well as the rich; but this was not so with the game laws, which ought not to be clothed with such extraordinary severity. Let us next see, said the learned gentleman, how the act defined the period of night. Now the night of these wise legislators extended from eight at night till seven o'clock in the morning, from the month of October 340 to the month of March. He had heard much of the omnipotence of parliament, but he never understood that it could change day into night; though every gentleman must be aware, that the sun was up three quarters before seven in the month of October, and, therefore, three quarters of an hour before these legislators still pronounced it night. This definition rendered almost every qualified man in the country liable to the operation of the act; for, as the sportsman was generally an early riser, if found in any enclosed place for game before seven o'clock, he became liable to transportation. It was also to be considered, that this discretionary power of infliction was left to the country magistrates, a body of men whom he highly respected, but who, considering their personal feelings on matters of this kind, ought not to be trusted with discretionary powers which were too large to be intrusted even to the judges of the land. It was, in the clearest sense, improper at any time to give any judge too much power, and he certainly lamented that penal laws should exist which were not intended to be put into execution. He hoped he should have the good fortune, in the future discussions on this proposed bill of his, not to be charged, as he had been formerly, with any wish to innovate on the penal statutes, and he trusted he should not (indeed he could not) be charged with attacking what had been sanctioned by the wisdom of our ancestors. This was the wisdom merely of seven months. When he recollected the period at which the act was introduced into the House, and the late hour at which the discussion had come on, when many of the members were fatigued, he was not surprised at the little attention paid to it, because he knew how exhausted, at that hour members were from the immense pressure of business. But he was more than astonished at the quiet manner in which it had passed in another House, when he recollected the scrupulous anxiety that that House had always shown, to prevent any innovation on the penal laws. He remembered an act of Elizabeth, dooming to the gallows such soldiers and sailors as were found begging in the streets without a pass from their officers, had attracted the notice of judge Blackstone, who thought it was worthy of being repealed. He (sir Samuel) viewing it in the same light, had introduced a bill, in which he had happily suc- 341 ceeded in this House and in the other also, excepting one alteration made in his preamble to the act. He had said, "Whereas it was highly expedient to repeal an act, &c." the Lords expunged the word "highly," as, though they thought it expedient to repeal an act for hanging soldiers and sailors, they did not consider it "highly" expedient. He was astonished they had not been equally attentive in this case, especially respecting the palpable error of including broad day-light in the term night. The wisdom of that House had always been exerted to prevent innovations on the penal laws, and he was sure there never was a more flagrant innovation, at least in point of sincerity, than this was. He concluded by moving for leave to bring in a bill to repeal the said act, at the same time wishing it to be understood, that there were provisions in that act which it would still be proper to retain in any other act the House thought proper to adopt.
§ Mr. Frankland Lewis,
as one of the committee that had brought in the act in question, thought it necessary to say, that at the time when it was introduced it was his opinion, that the severity of the game laws should be relaxed on the one hand, while it was increased on the other, and that game should be put on the same footing with other private property. And for the purpose of subjecting the invaders and destroyers of this species of property to the same punishment as those of any other kind, he thought it necessary, to give to magistrates the power, in certain cases, of sentencing offenders to transportation. The punishments imposed by former acts had been found quite ineffectual; and he had therefore, upon the whole view of the case, thought the act in question the best, under all the difficulties with which the evil which it went to remedy was surrounded. But he was not insensible to its defects, and therefore should not oppose the motion.
confessed that the committee with which this bill had originated had begun, in his opinion, at the wrong end, when they suggested the enactment of new penalties. His own disposition had been in favour of taking into the consideration of the committee the whole system of the game laws, with a view of introducing some more general and efficient measure. When he suggested the propriety of legalizing the sale of game as a means of discouraging poaching, he had 342 been told that it was already notoriously bought and sold, as every thing else was in London. He knew well that there was a regular supply in the market, but his object was to take away the illegality of that supply. The committee, however, came to a resolution declaratory of the principle, that game ought to be made the private property of those on whose land it was taken. Whatever might be the justness of that proposition, it was undeniable, that under the present system game was brought to London from every manor and every preserve in the kingdom, and through so many hands, poachers, mail-coach guards, servants, correspondents, and poulterers, as greatly to enhance the price to the consumer. He decidedly approved of the sale of game being legalized, and thought some measure of that kind should be adopted. He remembered an old act, by which a person found at night after game was liable to be sent twelve months as a rogue and vagabond to the House of Correction, or to the army and navy for life. Every one knew the story of the soldier who was brought from Germany in a state of sleep, whence he could not be roused. He was taken into York Hospital, and, in consequence of the humane attention of colonel Christie, recovered. Having had an opportunity of conversing with this man, he found that he had originally been apprehended in Gloucestershire, under Mr. Joddrell's act, and sent for six months to the House of Correction, whence he was transferred to the Royal York Rangers. The affliction which he felt in consequence of being torn from his wife and family, brought on his singular disorder. He was restored however to his senses, and the Prince Regent, with that humanity for which he was so conspicuous, gave him a free pardon, and sent him home to his wife and family. Let the purchasers of game in this great metropolis reflect on this occurrence, and pause before they gratified their own palates at the risk of endangering some poor man's happiness. As long as such purchases went on, it would be a hopeless endeavour by any legal enactments to stop the practice of poaching. As that was the case, therefore, he trusted parliament would consent to legalize the sale of game. He had been told last session, that such an act would encourage poaching. He did not believe it. It had been said, that the power to apprehend those who had game 343 in their possession, was at present one of the most effectual means of preventing poaching. He did not believe, however, that such apprehensions were frequent. If they were, how could the drivers of stage coaches ever escape, in whose possession game might almost always be found? Still, if it were so, he thought a greater public benefit would arise from giving up a chance row and then of catching a poacher, than from retaining the law as it now stood. He was also desirous that a provision should be made, to enable the lords of manors to grant deputations to the occupiers of such manors. That, and legalizing the sale of game, would obtain all the objects that appeared to him to be desirable. The public at large would obtain a supply of game, and the poacher would be cut off from his illicit practices. If the House agreed with him in opinion on the subject, lie should have great pleasure in bringing in a bill to the effect which he had described.
§ Sir E. Knatchbull
had no objection to the proposed repeal, provided some other measure were to be substituted for it. He hoped he should live to see game made private property; but at a time when arms were carried at night by persons in combination, and with an avowed resolution of opposing those who should attempt to defend their master's rights, some strong measure was absolutely necessary.
observed, that his hon. and learned friend's object was merely to repeal what appeared to him to be objectionable. That would not prevent the introduction of another bill by any gentleman who might think proper to bring it in; and, in his opinion, some law to protect the persons described by the hon. baronet who had last spoken, was highly desirable.
thought that a motion for leave to bring in a bill to amend and not to repeal the present act, would be the preferable mode of proceeding. He was very desirous of suggesting this to the consideration of the hon. and learned gentleman, but as he was not now in the House, he would move to adjourn the debate on the subject until Friday next.
§ Mr. Curwen
could not concur in the proposition for adjourning the debate; conceiving, as he did, that the whole system of the game laws was unjust and tyrannical. To make the punishment for poaching a moderate one, and to enable 344 qualified individuals to sell game would be the only way to put an end to those violent practices on the part of the poachers, which could not be characterised in terms of too strong reprobation. At present no purchaser of game weighed the distressing consequences to which his conduct might lead. He repeated that the whole system of the game laws required revision. By the present law, the unqualified person who sold game was liable to punishment, but not the unqualified person who purchased it. Could any thing be more unjust? And where, he would ask, was the principle of allowing the possessor of land to the amount of 100l. a year a qualification, and denying it to the possessor of land to the amount of only 99l. a year? He had once been a sportsman himself, and he therefore knew the value of game to a country gentleman: but he was not the less persuaded of the absolute necessity of a change in the character of the laws by which it was at present protected. There was no moral turpitude attached to the offence against them, and it was therefore impossible to induce the lower orders to believe that in committing that offence they were guilty of any crime.
§ Mr. George Bankes
begged leave to assure the House, that in bringing forward the proposition last session he had used every effort to obviate the objections that were made to it. With this view, he had asked the advice of a number of legal friends; and, among the rest of his hon. and learned friend, whose absence from the House and the country, in consequence of ill-health, he was sure he was not singular in regretting, he meant the member for St. Mawes (Mr. Horner). Not satisfied with this, he had even presumed to introduce himself to the acquaintance of the hon. baronet opposite, and to put into his hands the draught of the bill, precisely as it now stood; and he certainly conceived, from the remarks of the hon. baronet, that it met with his approbation. There could be no doubt on the mind of any man, that some legislative provision of a similar nature was indispensable to the protection of those who would otherwise incur the greatest risks in the discharge of their duty.
§ Sir M. W. Ridley
observed, that the only legitimate end of punishment was the prevention of crime. The act in question had not this effect, because, from the severity of its provisions, it was only in cases of a very aggravated nature that indivi- 345 duals could be induced to press its execution. He highly approved of the recommendations which had been thrown out on this subject by his hon. friend to legalize the sale of game, and to enable lords of manors to grant deputations. These regulations would make game cheaper, and thus render the employment of poaching less lucrative and tempting. He thought that the farming of licences would be a good mode of preventing poaching; as the person by whom they were farmed would be interested in the detection of poachers. It was well known, that individuals had been sentenced to trasportation under this act, simply for having guns in their possession at night. Now certainly great care should be taken to show, that there was a premeditated intention to use those guns in resistance against individuals who were employed in the protection of game. What was in many cases the operation of the existing law? To induce individuals who were aware that the very act of carrying a gun at night would render them liable to transportation, to commit violence for the purpose of avoiding apprehension. By whom, too, was the law at present put in force? He by no means meant to cast any imputation on the gentlemen acting as magistrates in the country, for whom, on the contrary, he entertained great respect; but certainly they were more interested on the subject than he wished them to be. He most cordially supported the motion for the repeal of the act.
§ Mr. Lockhart
expressed his anxiety to see the act very considerably amended. That could not effectively be done by any interpolations; but would best be accomplished by a repeal of the act, in the bill declaring which repeal there might be a clause severely to punish poachers for such proceedings as led to felony and murder. As to making game property, he should always oppose any attempt at a measure so visionary and impracticable. Where a large and continued extent of ground was possessed by one lord of the manor, it might be done: but where, as in most cases, a manor was interspersed with small freeholds, the only consequence of it would be to beget a system of trespass and ill neighbourhood in every parish, as well as eventually to cause the total destruction of the game itself—a circumstance that would be extremely injurious to the community, as the amusement of sporting frequently induced gentlemen to reside on their own estates rather than in large cities. 346 He had observed in France the evils resulting from an abandonment of the sports of the field by the gentlemen of the country, who had, in many instances, substituted for them amusements of a description very unfavourable both to their fortune and to their character. He should be sorry to see English gentlemen driven to make such an exchange; and he should also much regret to see them deprived of the means of showing civility and attention to their neighbours, who did not enjoy privileges similar to their own. He allowed that the game laws were anomalous; but he denied that they were unjust Their general tendency was to attach country gentlemen to their homes, and to preserve those links that bound them to their tenants and to the poor.
§ Mr. Wilberforce
was of opinion that the existing law was unjust and severe. It subjected individuals to a severe penalty for an act, which it was contrary to the natural feeling of mankind to say was in itself a crime; and which men could be never brought to think a crime, merely because there were legislative provisions against it. He agreed with the hon. and learned mover, that that House ought to be very tender on this subject, interested as many members were upon it. Means might surely be adopted for preserving that which was unquestionably a suitable amusement for the gentlemen of the country, without such laws as those now existing. He strongly objected to game being put on the footing of other property. It was not, as in other cases where the insecurity of property rendered it necessary to pass very severe laws for its protection. To steal cloth from the tenter hooks of a bleachfield was a serious crime, with which to deprive an individual of his amusement could not be put on a level. The House were bound not to go beyond the strict limits which the case required. He could not help thinking that the preservation of game might be effected without so many invidious enactments. If game were criminally obtained, it must be criminal to allow it to be openly sold. If the selling were unlawful, the purchasing must be unlawful also. But it was not right to make up in severity for a defect of power, in cases of mere amusement; that was a principle which ought ever to be confined to crimes and offences of a high magnitude. No doubt, however, if it were enacted that licences might be granted, no person in a liberal situation of life would purchase in 347 future, except from those who were legally authorized to sell.
in consequence of what had been thrown out, gave notice of his intention to move for leave to bring in a bill, empowering magistrates to grant retail licences, for the sale of game. This Power of selling game had, indeed, never been entirely taken away before the 28th of Geo. 2d. He had understood from some of the largest proprietors of game in the kingdom, that they would undertake to supply the public with game, and to undersell the poacher.
§ Mr. Huskisson
declared, that he could not see the connexion between the preamble of the act in question, which lamented the existence of illegal combinations of armed persons going out by night to commit acts of violence, and the provisions in the act to transport an individual who might snare a hare, or shoot a partridge. The punishments denounced in the act were not at all expedient for the protection of game, but were highly expedient for the protection of the gamekeepers, whose lives would otherwise be constantly placed in the greatest jeopardy. It was highly desirable that the present act should be repealed; but if parliament should repeal it, and make no provision for the protection of the persons whom he had described, they would, in his opinion, not do their duty.
§ The amendment was put and negatived. On the original motion being put,
§ Sir E. Knatchbull
made some observations on the propriety of coupling the repeal with some other measure in lieu of the act repealed.
§ Sir S. Romilly
said, he had no objection if any gentleman, better acquainted with the subject, should take it up, and bring in a bill providing other remedies in lieu of those in the act proposed to be repealed.
said, the most unexceptionable course would be, first to repeal the existing act, and then to bring in a bill providing the necessary remedies.
§ Sir Egerton Brydges
conceived some measure in lieu of the one proposed to be repealed as absolutely necessary.
§ Leave was then given to bring in a bill to repeal the said act.