§ Order for Second Reading read.
§ MR. J. W. BARCLAY,
in moving that the Bill be now read a second time, said: Mr. Speaker, I am not unmindful of the views expressed on be-half of Her Majesty's Government by the right hon. Gentleman the Home Secretary—whom I am sorry not to see in his place—on the occasion of the second reading of the Bill introduced last year by my hon. Friend the Member for Linlithgowshire (Mr. M Lagan). The statement made by the right hon. Gentleman on that occasion, if I remember aright, was to this effect—that any measure dealing with the question of game ought to be drawn on so wide a basis as to prove a settlement of the question, and that a Bill dealing so comprehensively with the subject could only be carried through this House by Her Majesty's Government. I admit the force of the view expressed by the right hon. Gentleman; but I have considered it my duty to submit to the House proposals which, in certain respects at least, are new, and which, I have taken care to satisfy myself, 423 will be accepted as a settlement of the question. If Her Majesty's Government be pleased to approve of the principle of this Bill I shall be happy, if it be read a second time, to leave the subject in their hands; and I can assure the right hon. Gentleman that the settlement of this vexed question would be conferring great public benefit no less on the landlords than on the tenants. In recommending this question to the consideration of the House I shall not enlarge upon the moral and material evils and the great public loss which arise from the excessive preservation of wild animals under the existing system of legislation. The Committee of this House which for two years took evidence on the subject collected a mass of information which ought to satisfy unprejudiced persons of the very serious evils which exist; and I think the public are very much indebted to my hon. Friend the Member for Leicester (Mr. P. A. Taylor) for the great trouble and the numerous efforts he has made to bring these evils under public notice. But I cannot allow this opportunity to pass without making my protest against the numerous cases of cruel injustice which are perpetrated under the Night Poaching Acts. Anyone who has observed the convictions under those Acts cannot fail to have been painfully struck by the numerous cases in which highly respectable young men have been committed to prison for offences under those Acts. It may be that a farmer's son or a respectable young labourer, for the love of youthful sport and adventure, goes out in search of hares on a moonlight night, and finds himself pounced upon and committed to prison without the alternative of a fine. Sir, I can assure the House that such cases of injustice provoke very largely feelings of resentment against the vindictive character of these laws, and encourage sentiments from which landlords will be the first to suffer. Surely, Sir, it is time that legislation so vindictive and so oppressive should be swept from the Statute Book. I propose to deal with this question by abolishing the whole complicated system of our existing legislation, which I believe cannot be amended, and substituting therefore a simple measure based upon principles of equity and natural justice which I think should fully recommend themselves to the moderate men on both sides of this question. 424 Perhaps I shall most readily explain the provisions of the Bill by stating the principles which I have endeavoured to embody in its provisions. The first principle which I have endeavoured to give effect to is this—that killing wild animals is a right naturally incident to the possession of the land on which the animals may for the time be, and that this right should be protected to such an extent as may be reasonable and necessary. I shall not pause to consider the question of the total abolition of the Game Laws without any substitute, because I am not aware that such a proposal is made by any hon. Member of this House, and, so far as I am able to judge, such a proposal is not supported by public feeling out-of-doors, either in burghs or in counties. I have endeavoured to give effect to the principle which I have stated in the 6th clause, which provides for a simple trespass law directed entirely to trespass in pursuit of wild animals. I do not propose to interfere with the ordinary trespass law, but I propose that it should be an offence under the Bill to trespass upon lands in pursuit of wild animals. To obtain a conviction under the clause, it will be necessary that the trespasser should have some instrument or dog, and further to give primâ facie evidence that he is trespassing in pursuit of wild animals. I believe that if this law is judiciously administered it will give rise to no miscarriage of justice, and give no occasion for inflicting punishment upon innocent persons. I have, in drawing up the clauses, endeavoured to distinguish between the incidental trespasser and the professional poacher. For the first offence I provide a small fine, not to exceed 10s., and for the second and further offences penalties not exceeding £5. I think it would be a great mistake in any re-adjustment of the law to insist upon severe penalties, because I think that under an equitable and reasonable system of legislation public opinion will not sympathize with the poacher to the extent it at present does. That sympathy is due to three causes. The first is the severity of the penalties inflicted under the existing law; the next, sympathy with the farmer, who suffers heavy loss from the excessive preservation of game; and lastly, the feeling that these convictions are sometimes obtained on evidence which, in the higher Courts, would not 425 be considered sufficient to warrant a conviction. I shall perhaps best explain the second principle which has guided me in drawing the provisions of the Bill by referring to the views which have been often expressed by the right hon. Gentleman the Member for Birmingham (Mr. Bright), to whom the farmers and the public are so much indebted for his long and continued efforts for the reform of these laws, and for calling public attention to the evils arising under them. The right hon. Gentleman has stated his opinion that occupants of cultivated and arable land ought to have absolute control of wild animals of every kind upon their land. While agreeing theoretically with the right hon. Gentleman, I think a substantial remedy may be given for existing grievances without going so far as the right hon. Gentleman proposes. The principle which I have endeavoured to give effect to in the Bill is, that the occupant of cultivated and arable lands should have absolute control over the wild animals which live upon his crops. This proposition naturally divides wild animals into two classes—those which live upon the farmers' crops, and those which do not. The valuable wild birds which do not live to any appreciable extent upon tenants' crops I have embodied in a list which I propose to call game. Difficulties may, perhaps, arise as to some of the birds in this Schedule. I am ready to admit that grouse and pheasants in certain seasons and in particular districts do considerable damage: but although I do not profess that this is a perfect Bill, or that it will remedy all the grievances complained of under the existing system, I am pre-pared to affirm that the proposals embodied in the Bill will remove nine-tenths of the grievances of which farmers complain. Although in certain cases grouse and pheasants do damage to growing crops, it is within a limited area. All the farmers who suffer from game to whom I have spoken on this question have stated to me that, though they might suffer a certain amount of damage from grouse and pheasants, they would be satisfied if they had an absolute control of the hares and rabbits upon their lands. This brings me to the great cause of the grievances which at present exist, and the difficulty which stands in the way of dealing with those 426 grievances in a satisfactory manner. In respect to ground game—hares and rabbits—my contention is this, that the preservation of hares and rabbits by the landowner at the cost of the tenant is an arrangement of so vague, uncertain, and indefinite a character that it does not, and cannot, from the nature of the subject, present conditions which are essential to every contract. I might argue this question on the necessity for Parliament interfering and declaring contracts to this extent null and void, and if I did so it would not be necessary for me to depend on my own views of the farmer's position, for the position of parties to certain contracts may be quite clearly ascertained by the terms of the contracts themselves. I shall give examples of some of these contracts, so that the House may be able to form an opinion as to whether one of the parties can be considered in the free and independent position which the law sup-poses every party to a contract to be. The first example to which I refer relates not to small holdings, but to estates of very considerable importance in the north-eastern counties of Scotland, and I should state that these conditions are printed regulations not embodied in any special minute or lease. The conditions apply to the whole estate, and are the conditions upon which alone farms upon that estate will be lot, so that a farmer who applies for a farm is at once informed that unless he is prepared to agree with the regulations affecting this estate, it is unnecessary for him to make any offer for the farm. The first condition is—The proprietor reserves all the game, deer, roe, rabbits, wild fowl, and fish on the estate, with the exclusive liberty and power of shooting, hunting, coursing, and fishing for the same, either by himself, his servants, or others having his permission, tenants under game leases, or their servants, and that notwithstanding any modification or alteration which may hereafter take place in the laws now existing for the protection of the game—no claim being competent to the tenants for damage done or occasioned by or through the exercise of the privilege above-mentioned, nor for any damage done or occasioned by the game itself or by rabbits.In this condition the landlord not only endeavours to bind the tenant, but absolutely tries to over-rule the legislation of this country. The second condition is this—The proprietor reserves to himself the whole game of every kind—rabbits, wild ducks, and 427 such like—and the fish in the river and burns within and bounding his lands, with power and liberty to himself and others having his permission to hunt and shoot, fish, and sport therein; and the tenant shall be bound to protect the same, and to stop all poachers, and other un-qualified persons, and to give duo notice of same to the proprietor; and all the tenants are hereby expressly prohibited from keeping a dog or dogs. The tenants are strictly prohibited from keeping or allowing to remain on their farms any person or persons likely to become a burden on the poor's funds. A contravention of the above regulations, one full year's rent falling in arrear, or bankruptcy of the tenant, are hereby specially declared to incur an irritancy of the lease.Thus the landlord binds the tenants, under the terms which I have specified, to such an extent that if they transgress in any one particular, that transgression would practically terminate the lease. Now, Sir, referring to these conditions, I ask the House to consider for one moment what are the real conditions into which the tenant has entered? For the consideration of a fixed reduction of rent—a reduction which it is alleged is in many cases not made—the tenant undertakes to keep, or allows to be kept, an indefinite number of hares and rabbits, and not only to keep these animals, but to allow them to destroy or consume as much of the crops as the landlord, from the quantity of game which he wishes to be kept, thinks proper. The practical effect of this is that the tenant places his fate and fortune in the hands of the landlord. It is quite true, no doubt, that in comparatively few cases is this privilege which the landlord reserves to himself abused. But even admitting that this were so reasonable, men die, and estates are sold. It, therefore, practically comes to this—that the tenant puts his fortune into the hands of persons whom he does not know, and that to an extent which, if the landlord chose, would be sufficient to ruin him. Surely such a state of matters is an ample justification for this House interfering with freedom of contract, and declaring that such a contract ought to be null and void. But I prefer to argue the question upon this ground—Is this an arrangement of such a nature as the law ought to recognize, and does it contain the essentials necessary to every contract which the law in other cases enforces? If the tenant were bound to keep a certain definite quantity of hares and rabbits, and deliver them to the landlord at a particular time, that 428 would be a contract which would be definite in its conditions, and it could be understood. It might be highly inexpedient, highly injudicious, and contrary to public policy, that such a contract should be made; and in such a case it would be right for Parliament to interfere, and declare such contract null and void. But here the quantity, the conditions, the time of delivery, are altogether vague and uncertain. I do not think that from the nature of the case it is possible that such an arrangement as I have indicated, and such conditions as I have just submitted to the House can contain conditions essential to contract in other cases. I do not ask Parliament to declare contracts of that kind null and void, because I do not think from the nature of the case a good contract can be made—I mean good in the eye of the law. All that I ask the House to do in reading the Bill a second time, is to declare that any arrangement for the preservation of hares and rabbits at the expense of the tenant must be, from the very nature of the subject, so vague, indefinite, uncertain, and unreasonable, in regard to the considerations, as to be a wanting in the essentials which every contract ought to possess. This principle I have endeavoured to embody in the 5th clause of the Bill. By the first part of the clause, I assimilate the law of Scotland in a certain degree to the law of England, and give the tenants the joint right with the landlord of killing all wild animals on the land in his possession. Every tenant, it provides, shall have the right to pursue, take, or kill, and to authorize others to pursue, take, or kill, any wild animal on the land occupied by him. If the matter were allowed to rest here, there would be nothing to prevent the tenant at once assigning this right back again to the landlord, the same as is the practice in England, where the tenant, according to the presumption of law, has the right to the game. It is therefore further provided in the clause "that every contract in restraint of this right shall be held and construed to apply to game only." If the landlord attempts to restrict this privilege, the law shall only recognize it to the extent of wild animals which come under the denomination of game. As regards the new jurisdiction to be provided under the Bill, I propose to transfer all serious cases from the justices of 429 the peace to the sheriff. When the penalty does not exceed 10s., the jurisdiction may remain with the justices of the peace. I have been induced to do that for this reason—that in large counties and in outlying districts, offenders may prefer to be tried by a justice of the peace, when the penalty is limited to 10s., rather than to be troubled with the expense of going to the county town. The Bill which is now submitted to the House is not applicable to England; but there is no reason why it should not be made so, if practicable. While I think the proposals of the Bill are equally applicable, and would be as acceptable in England as they would be in Scotland, I have not in the measure now submitted proposed to include England; but if the Bill should pass a second reading, I shall be quite willing to support any proposal to extend it to the southern half of the island. There is no close time provided under the Bill. I have refrained from introducing any provision on that subject on this principle—I look upon these valuable wild birds, which are in the Schedule, very much in the nature of crops; and if the proprietor of the land chooses to begin to reap his crops at an earlier time than it is wise for him to do so, that is a matter for his own consideration. I should, however, make no objection to the introduction of a close time; but only I do not think it is consistent with the principles I have adopted in considering the measure. It may be objected that I have not enlarged on the public grounds on which the Bill should be supported. I have not done so, because practically, if in this matter the interests of the farmers are protected, so will be the interests of the public. The interest of the farmer is to grow the largest amount of crop so as to make the largest amount of profit out of his land; and the interest of the public is that the farmer should be stimulated and encouraged to produce the largest quantity of food in order that they may get it at a reasonable price. The interests of the farmers and the public are identical, and if you protect the interests of the one, you provide for the interests of the other. I shall refer only to one argument against the Bill. It has been said that the farmers themselves might take to the preservation of hares and rabbits. That is an argument which will have no 430 weight with those who are acquainted with the subject. In the low country, shootings let at from 6d. to 1s. an acre, and in few cases does the rent exceed 1s. Everyone who knows any thing about the damage which hares and rabbits in considerable numbers do to a farm, will agree that for three or four times that amount no farmer would tolerate any quantity of hares and rabbits upon his farm which would interfere to any appreciable extent with his crops or the cultivation of his farm. It would be far more profitable at present for farmers to take shootings upon lands belonging to other persons; but we know that farmers do not take shootings, and therefore it is not reasonable to expect that they would preserve hares and rabbits to any appreciable extent under this measure. I have touched generally upon the principles which have guided me in framing the Bill, in which I have endeavoured to bring forward as moderate and reasonable propositions as would be of service, and such as ought to be accepted by moderate men on both sides of this question, and I now ask the House to approve of this Bill, because it places legislation in regard to wild animals on a simple, just, and intelligible basis, and respects at once the just rights of the public and of individuals; because it interferes as little as possible with existing privileges, and nothing less will give substantial relief; and, lastly, because it will be accepted as a settlement of a question which has long been a fruitful source of vexation, annoyance, and bad fooling between many landlords and tenants. I beg to move that the Bill be now read a second time.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. James Barclay.)
§ MR. DUNDAS,
in moving that the Bill be read a second time this clay six months, said, that it was a somewhat invidious thing for any hon. Member in any way connected with Scotland to move the rejection of a Bill on the subject moved by the hon. Member for Forfarshire (Mr. Barclay). The hon. Member was an able and worthy advocate of the interests of the farmers of Scotland in that House. As they were men superior in their knowledge of agriculture and in the possession of intelligence to 431 the corresponding class in any other country, he fully admitted the responsibility of rejecting the measure—the more so, as there could he no doubt that the farmers had some real grievance on the subject. For his own part he (Mr. Dundas) had no sympathy with landlords who allowed ground game to increase to such an extent as to be vexatious to the farmer and injurious to the cultivation of land, and he believed, that to a great extent, landlords who did so had brought about the agitation that had given some trouble on this subject. The hon. Member for Forfarshire had said that the interests of the farmers and of the public were identical; but he (Mr. Dundas) thought he should be able to point out some details in which the Bill fell short of what was equitable to the owners and in some respects of what would be advantageous to the interests of the public. The main provisions of the Bill were to abolish the Game Laws entirely, and for all time. It would also abolish the law of trespass in pursuit of game, and licences to sell game. It would give the tenant an inalienable right to kill game and wild animals on land in his occupation, and would also abolish all existing contracts from 1877. Speaking in no unfriendly spirit to the farmer, he regretted that a Bill which might, with some alterations, be a good one as regarded the interests of the farmers, should be encumbered by other provisions which seemed to be inequitable, and could not fail to excite opposition in the House. Taking first the question of interference with contract, although opposed to all avoidable interference with contract, he thought that no inflexible rule could be laid down. The Legislature had sanctioned interference with contract in many eases, and each case ought to be argued on its own merits. The injury by hares and rabbits was so great, and the assessment of damages so difficult, and the process of suing a landlord for compensation so distasteful, that he thought the modified interference with contract proposed by the Bill, to the extent of giving tenants a right to kill hares and rabbits only, was not very objectionable, and he would not have moved the rejection of the Bill on account of that provision. One proviso, however, appeared to have been omitted by the hon. Member—namely, that tenants who had now by 432 law a right to claim compensation for damages caused by an increase of game during their tenancy should cease to have that claim, if under the Bill they got an inalienable right to destroy hares and rabbits. Again, the 5th clause rendered the Bill applicable to existing contracts after the 1st of January, 1877, a principle to which he thought the House would never assent. It would practically amount to forcibly handing over, from one person to another, of money's worth without compensation. Moreover, it had always been said that if the Game Laws were abolished it would be necessary to have a stringent law of trespass; but under the Bill, the penalty imposed for the first offence was 10s., including costs, and the value of the animals killed or found on the trespasser. It was not provided that the animals killed should be forfeited, and, therefore, a professed poacher might have a day's sport among the grouse or partridges, and sell the birds he had killed, for a fine not exceeding 10s., including costs. Thus, as the costs would in many cases exceed that sum, the game-owner would practically be fined for bringing up an offender against the Act. Then it was said that the present Game Laws operated, as a discriminating law of trespass; but the trespass clause in the Bill, in his opinion, would operate as an indiscriminating trespass law. There was a great difference between cases of poaching. A labouring man who started a rabbit, and killed it in a moment of excitement and from love of sport, might well be treated with great leniency. The present law did recognize a difference in sporting offences which ought to be perpetuated; but the Bill under notice drew no distinction between such an offence and the offence of a man who made a trade of poaching, who went about with a gang of comrades with faces disguised, or who poached at night. The penalty proposed by the Bill was, he thought, quite insufficient to deter such persons, and a power of inflicting a severe penalty ought to be entrusted to the sheriff, who was an unprejudiced and uninterested judge, and to whose discretion he could well trust not to make a bad use of the powers entrusted to him. Regarding the Bill as it affected the interests of the public as consumers—no fence time was proposed in the Bill, but as the hon. Gentleman (Mr. Barclay) said he did 433 not object to a fence time being inserted in the Bill he would not press that objection. Without a fence time and with such trifling penalties as were proposed by the Bill, game would soon become as scarce in Scotland as it was in many foreign countries. He would not allude to the importance of game as an article of food; but he might refer to the Report of the Committee on the subject, in the Appendix to which it was stated that almost every country in Europe and every State in America had a close time for game birds and also attached heavier penalties to poaching than those suggested by the Bill. In 1872, Parliament passed an Act for the protection of Wild Birds, which the present Bill would virtually repeal, and on that subject he might refer to a telegram from its Paris Correspondent which appeared in The Times relating to wild birds in Germany, and stating that at Halle, during the late severe weather, a society had been formed for feeding them three times a-day, in the belief that whatever loss they inflicted on the cultivator was repaid to him a hundred-fold in the destruction they wrought among insects. He did not know whether the Scotch farmers had anything to learn from their German brethren, but there was no doubt that wild birds did good by destroying the insects which injured the crops. He thought the House would not consent to the repeal of that Act; and a fortiori he did not think Parliament would sanction a Bill for repealing laws protecting birds which did no injury to crops, and which were very valuable as articles of food. In conclusion, he begged to thank the House for the indulgence they had extended to him, and to say he thought the Bill, for the reasons he had given ought not to be accepted unless very considerable alterations were made in its provisions; and he would therefore move its rejection.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months,"—(Mr. Dundas.)
§ MR. M'LAGAN
I agree with the hon. Member for Forfarshire (Mr. J. W. Barclay) in much that he has spoken, and approve of many of his views, and deprecate as strongly as he does the game clauses in the leases he has read to the House. When I first introduced 434 this question of the Game Laws to the House, I referred to similar clauses, and stated that the existence of such clauses was one of the reasons why I had taken up this question. But I think that my hon. Friend has weakened his case by mentioning that these clauses are exhibited to the intending offerers for a farm before they have ever inspected the farm. If such is the case, there is the less excuse for the tenant, for he then enters into his lease and takes his farm with his eyes open, and there is no excuse for an intelligent man committing himself to an agreement of that character. If we may judge from the Pre-amble of the Bill, the object of it is to reduce the numbers of certain species of wild animals, and by so doing, diminish the temptation to breaches of law, encourage the cultivation of land, and otherwise conduce to the public welfare. In this object I agree with the promoters of the Bill. No reasonable person now denies that the preservation of game is carried to excess in some places, and that the evils from this excessive preservation are great, resulting often in breaches of the law and in murder, in retarding the improvement and proper cultivation of the soil, and in the demoralization of the population. Many proprietors have admitted these evils, and more particularly the destruction of the crops by ground game, and have allowed the tenants to destroy these animals. But, notwithstanding this liberty to the tenants, there are still great complaints of the damage done by hares and rabbits; for the simple reason, that the action and liberty of the tenants are too often interfered with by the too rigorous preservation of the winged game. Will the Bill accomplish the object that it aims at? It repeals almost all the Acts relating to game; but it still gives an adventitious value to certain wild animals which it designates game by a special provision in their favour, and thus it retains the temptation to broaches of the law referred to in the Preamble. It imposes a penalty for going in pursuit of all wild animals, instead of the dozen or score mentioned in the present Game Acts, and thus the Bill is an extension of these Acts. And with a strange inconsistency, forgetfulness, or neglect—call it which you like—while the promoters of the Bill profess to protect all wild animals, and specially those wild 435 birds mentioned as game in it, there is the omission of a provision in it which would through time lead to the extirpation of all the game. There is no prohibition from killing the game or any wild birds during the close season, nor is there any penalty or restriction whatever for taking their eggs. This taking or stealing of the eggs of wild birds is one of the most common causes of trespass on the lands of farmers, and one of the most effectual ways of extirminating the birds. I approve generally of the proposals in the Bill to mitigate the penalties for trespassing in pursuit of game, and to substitute fines for imprisonment; but I think that, in certain cases, the Judge should have the option of imposing a line, or of sentencing the trespasser to imprisonment. There is, for instance, a great distinction between one man found trespassing by himself in pursuit of game in the daytime, and another proved to be one of a gang who went out armed at night with the object of killing game, and determined to offer every resistance—yea, even to commit murder—rather than not to accomplish their object. There can be no doubt that under this Bill such offences would be committed as they are now, and provision ought to be made in the Bill for the punishment of the offenders. The 8th clause does not meet the case to which I refer. It applies to a case of actual assault by a trespasser. I would extend the provisions of that clause to the case of one of three or more persons who were found guilty of trespassing in pursuit of game, even though they may not have committed an assault, but may have intended to intimidate or menace by their numbers. I come now to the novel and peculiar principle of the Bill as contained in the 5th clause, which proposes to restrict the tenant in making new contracts, and to prohibit him from carrying out those he has already made. The clause further vests the right of pursuing, taking, or killing all wild animals in the tenants, and allows him to assign over that right to the landlord as regards 14 species of wild birds which are called game. The landlord, however, is still to have the right of pursuing and killing all wild animals, as he has at present on the land occupied by the tenants. In other words, the landlord, in letting his farm, may reserve the winged game to himself, but can only 436 have the joint right with the tenant in killing the hares and rabbits. I think that the House will recognize here an old friend with a new face and a new name. Mr. Loch, who represented the Wick Burghs in the last Parliament, introduced a similar Bill, giving the right in the winged game to the landlord, and the joint right in the hares and rabbits to the landlord and tenant, and making that right in the tenant inalienable. But Mr. Loch foresaw that the consequence of passing such a Bill might be to make two game preservers instead of one, and thus the ground game would be increased to such an extent as to be a perfect nuisance to neighbours, and he therefore provided for such consequences by proposing that a game preserver was to be liable for damage done to a neighbour's property by the hares and rabbits preserved by him. The propesers of this Bill have not foreseen the consequences of their Bill, and therefore they could not be expected to provide for them, and in this respect the Bill is defective. I said that the principle enunciated in this and the next clause was novel, for it is the first time, I believe, that the Legislature has been asked to pass an Act for the preservation of rats or other pests of the farm. It is provided that any one committing trespass by entering or being on any land with any dog or ferret, in search or pursuit of any wild animals, which, of course, includes a rat, shall pay a penalty of 10s., together with the value of the rat killed or found upon him. Surely the hon. Member is not in earnest in asking the House to give its assent to such a provision. I am not one of those who object to an interference with the rights of property, or one of those rights—namely, the right of free contract—where it is found necessary for the public welfare to do so; but we should be quite sure that in proposing such exceptional legislation, the public good will be promoted by it, or the object desired may not be accomplished otherwise. Now, I question much if the public good will be promoted by such legislation in the present instance; I am of opinion that the reverse would be the case. I believe that if this Bill were passed into law, there would be a persistent evasion of this clause. There is no penalty to be inflicted on the tenant for divesting him-self of his right in the wild animals; 437 nor in doing so would he be regarded as having done what is morally wrong, or as compromising himself socially. All the risk which the landlord would run would be that he would have no recourse at law in enforcing his agreement with a dishonest tenant who would take advantage of the position which the law gave him. In England, whore the tenants generally hold their farms on a six months' notice to quit, the landlord would be sufficiently protected against such conduct on the part of the tenant; and, in Scotland, the landlord would easily protect himself by clauses in the lease, which might be most prejudicial to the tenant if enforced, and which it would be understood would only be enforced if the tenant would resile from any agreements about hares and rabbits which he may have made with the landlord. And thus the clause would be quite inoperative, and would be another instance of the uselessness of the Legislature interfering with the free contract between man and man. I know of cases where the tenants had permission to destroy the rabbits, and, after attempting to reduce their numbers, requested the landlords to relieve them of the privilege; and a Perthshire farmer stated to the Committee on the Game Laws last year, that though he had full liberty to destroy the rabbits on his farm, he feared that by so doing he would offend his landlord, and preferred leaving his farm to exercising the privilege. There is nothing in the Bill to prevent similar cases occurring again. But a provision which could be thus evaded or treated as a dead letter would be more than useless—it would be vicious and de-moralizing in its tendency. For the evasion of any Act of Parliament where no great principle is involved, which is merely disobedience to the commands of the Legislature, knowingly persisted in, tends to deaden the sense of right and wrong in the people, to bring the authority of the ruling powers into discredit, and to lead to insubordination and the committing of greater faults and crimes. I believe, for those reasons, that the passing of such a provision would not be for the public good. It is true that we have had this exceptional legislation before—namely, the interference with the making of con-tracts; but it was based principally on the disparity of the sexes, or of the ages 438 of the contracting parties, or, in other words, we have had to legislate for the benefit of women and children, because they were not in a position to contract for themselves, and we are now asked to put tenant-farmers on the same level as women and children. I feel convinced that the farmers of England and Scot-land do not wish to be placed in such a position, if I may judge from the vigorous protest which one of them made publicly the other day. He protested indignantly against any legislation founded on the idea that the tenants of England were incapable of making an agreement. It is said they are incapable of making an agreement, as they do not contract on equal terms with the land-lords. If the laws of the country gave the landlords an undue advantage over the tenants in making their contracts, lot such laws be amended or repealed; let the landlords be levelled down to the tenants, and not the tenants levelled up to the landlords, thus creating an exclusive land class whoso interests will be controlled by exceptional laws different from those which affect the interests of the other classes of the community. If, again, the landlord possesses an undue advantage over the tenant in making a contract from the natural law of supply and demand, we shall legislate in vain to effect a remedy. It should not be forgot that before a tenant is invested with this inalienable right in the ground game, he has shown himself quite capable of making an agreement by entering into his lease, which involved an outlay of thousands of pounds of his money, and of the annual payment of hundreds of pounds of rent; and are we to suppose after that he cannot make an agreement about hares and rabbits? I regret that I should have to oppose any Bill which attempts to settle this vexed question of the Game Laws. Nor would I have withheld my support from some provisions of this Bill had they not been connected with what is considered an important principle of the Bill, which, if approved of at this time, might with equal propriety be applied to the commercial relations of landlord and tenant generally.
§ MR. M'COMBIE
Although my feelings carry me further, yet I have much pleasure in supporting this Bill. The obnoxious Game Laws have been and are kept up to foster the pride and ostentation 439 of the rich, and have been the means of creating the dreadful heart-burnings that exist between landlord and tenant on game-preserved estates. It is a grievance that is intolerable. I will yield to no other hon. Member in this House in the respect I bear to many landlords in Scotland, who would rather lose their right hand than do an injustice to their tenants by eating up their crops with hares or rabbits; but who can respect another class who tyrannize over and oppress their tenantry? I am sent to this House almost exclusively by the tenant-farmers of a great county to speak for them; but when I dare say a word in their behalf, it would be difficult to enumerate around how many dining tables I am stigmatized as the most impudent, the most impertinent, and the most dangerous fellow that has ever appeared, setting class against class, and that many a better man has been——well, I am afraid to say what. Partial laws have been the means of setting class against class, and who can deny that the Game Laws are partial laws? My constituents have also been stigmatized as disgracing themselves by sending such a follow of their own class to represent them; but they proved at the last Election their utter contempt for such animadversions; neither shall such animadversions deter me from doing what I believe to be my duty in the high and responsible situation in which I am placed by the electors of my native county. In corroboration of the justness of the opinions I hold and am now expressing, I will quote the words of one whose voice, though "now silent, yet speaketh;" and whose words will carry weight even in this House—of one whose memory is embalmed in the hearts of the tenant-farmers as the most popular landlord of Scotland in my day—the late Duke of Richmond. A few years before his death he stated at a cattle show dinner at Drumin—"That before he would treat his tenants as some proprietors treated theirs, or advertise his farms, he would rather go and break stones on the road." His Grace did not make rash assertions. I would ask those proprietors who may feel that his Grace's language is applicable to them, to weigh well those immortal words, and ask themselves how they have treated their tenants, and how they have treated the poor, the honest cottars? In my native parish, the good 440 old proprietor having gone to his rest, another landlord succeeded, who has turned out almost every man, woman, and child. Innumerable are the poor creatures he has sent adrift; not one, scarcely, has he left behind. After having spent long lifetimes in the reclamation of barren moors and built houses thereon, they are turned out in their old age with their families, and without one shilling of recompense, with nothing but the cheerless prospect of the poor-house staring them in the face. Will it surprise you, Sir, that the farmers demand tenant-right, or will it surprise you that the late Duke of Richmond could not repress his feelings of indignation at such heartless, wicked, mean, and dishonourable conduct, and that he would rather go and break stones on the road than act so towards his tenantry? I trust that this House will pass such laws as will remedy the grievances complained of, and thus show game-preserving proprietors that the world was not made altogether for them, but for the good of the whole community. I beg to support the Bill.
§ MR. GOLDNEY,
in opposing the second reading of the Bill, said, that perhaps it was not quite plain why he should take part in a debate on Scotch Game Laws. He did not profess to know very much about them; but he was clear on one point, and that was, that of all the parties likely to be injured by the passing of the Bill, the tenant would be injured in a variety of ways. Without entering into the general subject of game, he wished to look at the Bill as presented to the House. It professed, in the first instance, to do away with all laws relating to the preservation of game, and it gave in return the most meagre protection that any tenant or landlord, or any person residing in a neighbourhood where game was preserved, could possibly have. Having repealed, or professed to repeal, all the laws relative to poaching and trespass, it limited trespass simply to a trespass in pursuit of wild animals. The construction of the Bill meant a roving right to everybody to go over lands for the purpose of destroying or taking game. In endeavouring to protect the tenant, they would deprive him of the right the law at present gave him with regard to trespassers. He could say—"You have done away with all existing 441 statutes on the question, and the whole community, if they choose, can come and walk over my land." The trespasser could say—" I am not here for the purpose of pursuing wild animals, but to pursue pheasants or grouse, and you nave no right to stop me." That was, he contended, the only inference from the law as the Bill was drawn up. They were getting rid of all existing powers of punishment, and giving a latitude to the general community to go over the land of the occupier. In his opinion, the matter required large and careful treatment, and ought not to be dealt with in that indiscriminate manner. But further, in attempting the restraint of contract, the Bill merely restrained the contract between the landlord and tenant. If the law of trespass, as the hon. Member for Linlithgowshire (Mr. M'Lagan) said, was limited simply to the place where it was committed, a man might not only go to the immediate locality, but he would be invited to come. He thought the Bill ought not really to be read a second time. In preventing bands of men going abroad armed, they were preventing not only injury to property, but the destruction of life.
§ MR. FORDYCE,
in reference to the criticisms passed upon the Bill, inquired how it was that so many of the tenant-farmers of Scotland were favourable to the Bill? They were, it was well known, very shrewd men, and they knew very well their own business; and he thought that the fact that they supported the measure, showed that it would not do them the injury the last speaker (Mr. Goldney) supposed. He begged to support the Bill, because he believed it would prevent further game grievances in Scotland, He thought such was the end which both sides of the House had in view. The Bill was an ingenious combination of two Bills which had been some time before the House—the Bill of the hon. Member for Linlithgowshire (Mr. M'Lagan), and the Bill of the late Member for Wick (Mr. Loch). It proceeded on the assumption that game breeders were those on arable land. He found that out of 3,817 farmers who gave in a return, no fewer than 3,202, representing 350,000 acres of arable land, attributed their grievance entirely to ground game. The Bill would give liberty to the tenant to destroy ground game. It had been said that if the Bill 442 was carried, it would be inoperative; but as a large landed proprietor, he could thoroughly say that it would be practically impossible to evade its operation—and he believed, further, that no practical landlord could afford to evade it. While he gave a cordial and general support to the Bill, he must say there were some provisions which he should like to see abolished. He thought, for instance, it was a great mistake to think if the Game Laws were abolished or modified, it would be necessary to have a stringent trespass law. If the Game Laws were abolished, no more would be heard of trespass, for they created trespass by making the occasion or opportunity. One great objection to the Bill had been its proposed interference with contract; but it was worthy of remark that the only alternative scheme—namely, that of the hon. Member for Linlithgowshire—interfered quite as much with contract. There were two ways in which they could interfere with contract. They could in express terms render the making of it null and void, or they could allow it to be made, and take away all legal means of enforcing it—which was what was practically done by the Bill of the hon. Member for Linlithgowshire. He trusted, in conclusion, that if the Government opposed the Bill, they would, at least, promise some redress to the tenant-farmers who had suffered so long, and endeavour to bring in a Bill of their own, so that the Session might not be altogether barren, as regarded Scotch legislation.
§ SIR JAMES ELPHINSTONE
said, the Bill of the hon. Member sought to do something which was beyond oven the power of the House of Commons—inasmuch as it proposed to turn birds into beasts. But his reason for rising was to give the most unqualified contradiction to the aspersions which had been cast by the hon. Member for West Aberdeenshire (Mr. M'Combie) on the land-owners of the county he represented. His hon. Friend had a neighbour with whom it was understood he was on very bad terms. That gentleman, in the exercise of his undoubted right, exposed some of his farms to public competition, and changed a good many of his tenants. He was not further acquainted with the circumstances of the case; but at every public meeting that his hon. Friend attended, the vials of his wrath were 443 poured out upon the proprietors of Aberdeenshire, because his neighbour had evicted his tenants, and in some other inscrutable manner offended him. He (Sir James Elphinstone) was an owner, as his ancestors had been, of property in Aberdeenshire; but he did not know that on his own estate, or the estates of his neighbours, any tenant who wished to remain on his farm, and who offered at the termination of his lease a reasonable rent, was not allowed to do so. As regarded his own property, the tenants remained there as long as they pleased, and no man had been evicted; in fact, he had tenants whose ancestors had been settled on their holdings for more than throe centuries. They had an absolute fixity of tenure, in so far as the farmers were men of good character and of sufficient means. Farms were continued to families, and at the same time the greatest forbearance was shown to the widows and children of those persons who died during the currency of the leases. As the question had drifted into the matter of land tenure, he wished to say that whenever the Game Laws were discussed, that was the direction in which the discussion drifted. The custom in Aberdeenshire had always been to have rules and regulations in reference to every property, and they were just as well known as the laws of the country. With regard to the late Duke of Richmond, there was no friend in the world that he respected or admired more than him, and it was perfectly true that he did what he found was the custom of the country. There was no estate in Scotland that was managed better than the Duke of Richmond's; but the tenant-farmers in some parts would not take the game if it was offered to them. ["Oh, oh!"] Why, he could give an instance of a large estate where the game was offered to the tenants at 2½ per cent of their rents, but they would not take it. He did not wish to interfere with the discussion of the question, but he simply rose to vindicate himself and his neighbours from the aspersions thrown at them by the hon. Gentleman.
GENERAL SIR GEORGE BALEOUR,
in supporting the Bill, said, that he regretted the hon. Baronet had made reflections on his hon. Friend the Member for West Aberdeenshire (Mr. M'Combie). There was no one in the House who deserved so well of all 444 tenant-farmers than his hon. Friend, and from the fact of himself and his hon. Friend having been chosen to represent their respective counties, it was clear that the tenant-farmers of Scotland were not satisfied with the relations which now subsisted between them and their landlords with respect to game, and he therefore, for one, was anxious to see that cause of vexation removed. As to the Bill, he felt that, so far from being sufficient to meet the case, it fell greatly short of that which was required and what would eventually meet with the approval of the House. He therefore hoped the Conservative Members would join in carrying the Bill through the House. It was far short of what the First Lord of the Admiralty, who was Chairman of the Select Committee on Game, would, in his opinion, have introduced for modifying the Game Laws, and he hoped that such a Bill might be brought forward by the Government. With regard to many of the clauses of the Bill, he believed several changes could be made in Committee, and if the House would allow it to pass into Committee, some modifications might be made which would make it a reasonable Bill. He therefore gave the Bill his cordial support, in the full expectation that they would be able to make desirable changes. If they did so, it might answer for a short time, until a total reform in the laws relating to game was effected.
§ SIR HENRY SELWIN-IBBETSON,
in reference to the remark of the hon. Member for Forfarshire (Mr. J. W. Barclay), that the Home Secretary last year declared it to be his opinion that any legislation on the subject of the Game Laws ought to be so drawn up as to be a final settlement of the question, said, he was perfectly prepared to adhere to that statement, but he hardly thought the House would believe that the Bill now before them fulfilled those conditions. The fact was, as was evident from what had already passed in the discussion, there was a great diversity of feeling with respect to the Bill among Scotch Members. They had heard the hon. Member for Linlithgowshire (Mr. M Lagan), who for a very long time had studied the question, take the Bill to pieces in a way which left him and those who opposed it but very little to say. If there was that diversity of 445 opinion among Scotch Members, how were they to imagine for a moment that it would satisfy the people of Scotland generally? If they went further, and remembered that there was an hon. Member who yearly had a Bill upon the Table for the total abolition of the Game Laws, it seemed to him that here again arose a difficulty, as those who supported this Bill would not agree in dealing with the question in the manner proposed by the hon. Member for Forfarshire. Although the hon. Member had swept from the Statute Book every enactment which touched wild animals of every description, still he proceeded to set up a kind of quasi now Game Bill, inasmuch as he asked them to establish a now trespass law for a certain class of wild animals. Anyone who read the Bill carefully must see that it was a trespass law which applied to wild animals exclusively. [Mr. J. W. BAKCLAY: Wild animals includes game.] He contended that the hon. Member had swept away every penalty which now existed for killing game, and had set up under the Bill, as he read it, game as a distinct class of wild animals. Then the hon. Member proposed to enact a new trespass law for those who went in pursuit, not of game, but of wild animals; and if that proposition were true it struck at once a deadly blow at the Bill. He believed that the tenant-farmers throughout the country were generally opposed to the entire abolition of the Game Laws, unless proper steps were taken to protect their lands from the depredations of the people; and he had no hesitation in saying that nothing was so likely to produce a vast increase in trespassing upon farmers' fields as provisions such as were contained in this Bill, which would remove persons so trespassing in search of game from the penalties of the law. The clauses of the Bill, moreover, showed, in his opinion, that the hon. Member had not carefully considered the evidence which influenced the Committee which during two Sessions very carefully inquired into the subject. The hon. Member would sweep away the dangerous offence of night poaching, which was the introduction of all kinds of depredations, and would enact that a fine for the first offence amounting to 10s., and that amount covering costs, should alone be imposed. That, he contended, was wholly inadequate to meet the offence, and by that provision, 446 the hon. Member would place in the same category the man with whom many people had sympathy, the man who was accidentally and by love of sport led into an act of poaching by day, and the man who made a profession of poaching, and determined to carry it out at night, at whatever risk against the rest of the community. Again, the hon. Member would do away with the close season in regard to various kinds of game, whilst the evidence which had been laid before the Committee clearly showed that certain supplies of game were almost necessary. It was true that people might object to over-preserving; but whilst in Germany they had been obliged to pass a law to restrict the killing of small birds, in other parts of the Continent where Game Laws were abolished after the disturbance of 1848, they had been re-enacted with even greater severity, because the food sup-plies of the people had been found to be seriously diminished. In Belgium, in-deed, the abolition was declared to be intolerable and most prejudicial to the husbandman, whoso crops were trodden underfoot by poachers. The diminution of food supply was a consideration which the House could not overlook, and with the cases of Prussia and Belgium before them, he hoped they would adopt no such extreme course as that which was suggested. It should also not be forgotten that the large towns in our own manufacturing districts relied largely for their food on that little animal which was the bæte noire of some hon. Gentle-men in that House, so that Parliament ought, he contended, to hesitate before it gave its assent to the repeal of the Game Laws. But he did not wish to be understood as giving his approval in any way to many of the practices that had been described to the House that day. The leases drawn in the form that had been quoted, constituted, he believed, the great exceptions to the general rule. He said that those leases ought to be held up to the reprobation of the country generally; but then he said also that for the sake of remedying a few grievances scattered here and there over the country, they should be very careful before they made up their minds to interfere with the laws of contract, which, he maintained, formed the best part of the history of the relations between landlords and tenants. If the Bill 447 should become law, he very much doubted whether it would have the effect which the hon. Member who had charge of it supposed it would have. No one could shut their eyes to the fact that land in Scotland, especially land that was productive of game of any sort, had increased immensely in value during the last few years. No one could deny that the Scotland of to-day was very different from the Scotland of 50 years ago, and there was evidence before them that the rentals taken for shooting in that country had improved the districts in which that shooting was, by reason of the very large amount of expenditure incurred, not only in the making of roads, but in the improvement of the dwellings of the people who lived there. With the knowledge which landlords had of the large rentals they were able to get for their shooting, and it being just possible that the tenants would not be able to offer them so large an increase in the rent for agricultural purposes as would be an equivalent for the rentals the landlords at present received for shooting, he rather thought that the tenants would find by degrees that the sheep were either taken off the land for deer-forest purposes, or that rents were asked for lands including the shooting which they would not be able to meet in years when crime, disease, and other evils happened to visit the country. The farmer who should take a shooting at a rent which must be very much larger than his agricultural rental would, he believed, undertake a property that would be of a very speculative character. He believed that in years like the last two, he would find that whilst he was bound by his lease to pay a very high rent for his land be-cause he had acquired the shooting, what he received from the letting of it would be comparatively very small. These were points which the farmers of Scotland had to consider in regard to any Game Bill that might be enacted, He might fairly say that he, for one, had never been amongst the bitter opponents of an alteration of the Game Laws; but he maintained that any Bill passed through that House dealing with the question should be a Bill which should deal with the whole country generally, which should assimilate as much as possible the history of the Game Laws in Scotland and England, which should 448 at the same time respect the law of contract, and which should respect as far as possible the good relations which happily at present existed in most cases between landlord and tenant.
§ MR. SHAW-LEFEVRE
said, that although the discussion had been sustained principally by Scotch Members, yet he hoped he might be permitted to say a few words. Various objections had been urged against the Bill, with some of which he concurred. Then the hon. Gentleman who had just spoken had pointed out that the trespass clauses of the Bill applied to wild animals, but not to game. He (Mr. Shaw-Lefevre) was quite certain that that could not be the intention of his hon. Friend who had charge of the Bill. A further objection to the Bill was that it included a number of wild animals in the trespass law which were not now included in it. For his part, he did not see any good reason for that. He thought that the Bill as now drawn would make fox-hunting a penal offence. Now, he did not believe that the farmers, as a rule, made any objection to fox-hunting, and it would be a mistake to raise that question. Putting aside these objections to the Bill, he assumed that its main principle was the exclusion of hares and rabbits from the Game Laws, and to that principle he should give his support. He had no doubt a great deal would be said in Committee on the Bill, about interfering with the freedom of contract. They should, however, recollect that but for the penal Game Laws, this property in game would not have any existence whatever. Therefore, if there was no other way of securing to the tenant the enjoyment of the hares and rabbits upon his land, he saw no reason why they should not interfere with the freedom of contract, at least, to that extent. He had always been opposed to those who advocated the entire abolition of the Game Laws, on the ground that if they did so Parliament would be compelled very shortly after either to re-enact those laws, or else to pass a general trespass law. For his part, he must strongly object to a general trespass law. He thought that any attempt to make general trespass a penal matter in this country would be attended with very great inconvenience, which would probably give rise to com-plaints and to injustice of a very aggravated 449 character, and he was quite satisfied that it would not be safe to entrust the administration of such a law to an unpaid magistracy. Although, however, opposed to the abolition of the Game Laws, he thought there was much to be complained of with respect to them. Nobody who had read the evidence given before the Committee over which his right hon. Friend opposite (Mr. Hunt) had presided, could fail to come to the conclusion that there was a considerable grievance suffered under those laws. That grievance arose mainly from the over-preservation of hares and rabbits at the present time. What, therefore, the House should aim at achieving was the reserving of hares and rabbits to the tenants, and although there were many faults in the Bill, yet understanding that to be the object which his hon. Friend had mainly in view, he should give his vote for the second reading.
§ MR. STORER
said, he could assure Scotch Members that English agriculturists sympathized in many cases with their Scotch brethren, who were suffering from the great evil of over-preservation of game. At the same time, he could not admit that the Bill contained the necessary provision for putting an end to that evil. He quite agreed with the hon. Baronet (Sir Henry Selwin-Ibbetson) that probably the real remedy for the evil was to be found in the springing up of a better feeling between landlord and tenant. It was within his knowledge that in very many cases such a feeling had sprung up, and on some very large estates the hares and rabbits were now given over by the landlords to the tenant-farmers. He thought that should the Bill pass into law their Scotch friends might reckon on having a large company in the Highlands next summer; for he saw no reason why any person with a mere certificate and a gun should not walk from one end of Scotland to the other, destroying all the winged game that might cross his path. But that was not the only blot in the Bill. Its great blot, in his humble opinion, was that it interfered grossly with freedom of contract and the rights of property. So far as he knew anything of the feelings of the tenant-farmers of England, they were not men who would wish to assume that landlords were to have no right over the land they had purchased, or who would desire to repudiate 450 any bargain which they had deliberately made. That was the great principle which would be infringed if the Bill were to become law, and he hoped the hon. Member would withdraw it.
§ MR. ORR-EWING
said, he was much grieved by the remarks which had been made by the hon. Gentleman the Member for West Aberdeenshire (Mr. M'Combie) as to the relations subsisting between the farmers and the landowners of Scotland. He must have intended his remarks to apply only to the county to which he belonged, for he (Mr. Orr-Ewing) could assure the House that the remarks of the hon. Gentleman were totally unapplicable to any part of Scotland with which he was acquainted. He believed the character of the Scotch landlords to be that they had at heart equally with their own interest the prosperity of their tenant-farmers. He was sure that his hon. Friend, on reflection, would take the first opportunity of making some explanation as to what he really meant to convey to the House. The hon. Member for East Aberdeenshire (Mr. Fordyce) had stated that the Bill was unanimously supported by the tenant-farmers of Scotland. He (Mr. Orr-Ewing) was not aware that the Bill had been discussed at all in the West of Scotland, and, if he was not mistaken, the Agricultural Society or club of the county represented by the hon. Member who had charge of the Bill last year opposed that very measure. If he could believe that the main principle of the Bill was to exclude hares and rabbits from the Game Laws, he should certainly not oppose the second reading—but was that its principle? On the contrary, he maintained that the main principle of the measure was to abolish the Game Laws altogether, and to substitute a trumpery trespass law. The principle of the Bill was to do away with private contract between landlords and tenant-farmers. He did not believe that the tenant-farmers of Scotland desired such a law as that, and why should they? They knew very well that if, as stated, they did not make bargains on equal terms with the land-owners, there were others whom they employed who were in a less powerful position than that in which they themselves stood towards their landlords, and if they were to do away with freedom 451 of contract between landlord and tenant, why should they not prescribe the terms upon which the tenant-farmers should employ their labourers? Why should they not make a law saying that living, clothing, and other things which a man required had so much increased in price that the wages of a labourer should not be less than £2 a-week? Where were they to stop, if they were to do away with that self-acting principle of private contract between man and man? He was as strongly in favour of the Game Laws being dealt with, and protection being given to the tenant-farmers for injury done to them, as any supporter of the present Bill could be, but he wished to see that relief given on a sound principle. The Bill brought in by the hon. Gentleman was one, however, which he himself could hardly have expected to carry. He (Mr. Orr-Ewing) rather thought it was brought in to please the more extreme portion of the county to which he belonged, and with a view to make himself popular by holding out hopes which he knew would not be realized. He really thought that hon. Members should confine themselves to bringing forward measures of a practical nature which would not disturb the harmony that existed, and which would promote the best interests of the country, without paying any regard to the effect which they might have upon their individual popularity.
§ MR. J. W. BARCLAY,
in reply, said, he would detain the House only for a few minutes, and principally in explanation of some points on which a good deal of misapprehension appeared to exist. Very few hon. Members had taken exception to the principle of the Bill, which was simply this—that any arrangement between landlord and tenant regarding ground game must be of so vague and uncertain a character, that it could not possess those elements which were essential to the formation of binding contracts. It appeared to him that the 5th clause did confer upon the tenant the right to take or kill wild animals upon his land, irrespective of the landlord or any one else, and that the latter part of the clause restrained the tenant from making any contract with any person so as to alienate his right in respect to ground game. This did not apply to the landlord with greater force than to any one else. With 452 regard to the objection stated by the Under Secretary for the Home Department, that persons might trespass in search of game without coming under the provisions of the Bill—it did seem to him that the Bill was sufficiently clearly drawn, wild animals being defined to be wild quadrupeds and wild birds. He had not thought it necessary to put in the word "all." The 6th clause was directed against any person trespassing in pursuit of wild animals of any kind, and that must include trespass in search of game. It did not appear to him that there could be any doubt upon the point, but if there were, the Bill could be amended in Committee. As regarded the question of compensation raised by the hon. Member for Richmond (Mr. Dundas), he understood that farmers would cease to have a claim for compensation in respect to damage done by hares and rabbits, and there was not the least necessity to make provision for that in the Bill. As to interference with existing contracts, he wished to point out that that interference was limited to contracts for the preservation of hares and rabbits, and would not affect contracts for the preservation of game as defined in the Act. If it was sound policy to interfere with contracts on the grounds he had stated, then, for the same reasons, the interference should apply to contracts in existence at the time of the passing of the Act. But that was not the reason that induced him to make the measure apply to existing contracts. There were leases on the same estate that ran out at various times, and if the Bill did not apply to existing contracts, there would soon arise a state of affairs under which the tenant of one part of an estate might have the right to destroy hares and rabbits, while the same right was denied to the tenant of another part. Such a state of things would not be satisfactory either to landlord or tenant. The hon. Member for Richmond had, he thought, rather misapprehended the penalty clause. The penalty did not include the value of the wild animals found on the poacher, the value of the animals had to be added, and the argument, therefore, that a poacher might make a profit out of the transaction, did not apply. He was surprised to hear the Under Secretary defend the Night Poaching Act because the Report of the Game Laws 453 Committee, of which the hon. Gentleman was a Member, recommended a modification of the Act. This objection, however, did not touch the principle of the measure, and it was open to the House to make what Amendments it might think desirable in Committee in the way of increasing the penalty. As regarded the abolition of the Wild Birds Protection Act, and of a close time, he thought his hon. Friends had not appreciated the scope of the Bill, because owners and occupiers of land had power to prevent trespass during the whole year as regarded unauthorized persons. Therefore, if they wanted an Act making a close time it could only be directed against landlords and tenants. Now, the landlord and occupier of a farm had the right, in his view, to maintain only such birds as they thought advantageous to the land. With reference to the suggestion that the Bill would put an end to hunting, he did not see how that description of sport could be affected by it. Under the present law, hunting was illegal upon lands without the permission or authority of the proprietor of those lands; and in that respect the Bill did not make any change. He confessed that he had been considerably disappointed with the course which his hon. Friend the Member for Linlithgowshire (Mr. M 'Lagan) had taken on the present occasion, and he could only say that if his hon. Friend represented the minds of the farmers of Scotland regarding this Bill, he (Mr. Barclay) must admit that he did not. The House had been treated by his hon. Friend with a somewhat elaborate essay on ethics, to which he must refuse to give his approval. His hon. Friend had hinted that the principle of the Bill was dishonest, and yet he had stated that he was prepared to accept that principle if cause could be shown. That was a principle of ethics of which he could not approve, and he must leave it with his hon. Friend. His hon. Friend had said that the Bill would apply to trespass in pursuit of rats. He (Mr. Barclay) understood that Bills in Parliament were to be regarded as practical measures. Now, the same argument would apply to the botanist gathering specimens upon land, who, upon the same principle, might be prosecuted for theft. But they knew that no such difficulty arose under the common law, 454 and he could not fancy any circumstances wherein the owner, or indeed the occupant of land would think it necessary, without very good and direct cause, to prosecute any person for entering on his farm in pursuit of rats. The hon. Member for Dumbartonshire (Mr. Orr-Ewing) indicated a doubt as to whether he (Mr. Barclay) believed in the remedy he proposed. On that point he would only say that, being possessed with an anxious desire to see this question settled upon moderate and reasonable grounds, and having considered the subject very fully for a good many years, he had failed to discover any better way in which that settlement might be arrived at than that which he had embodied in the Bill. He must confess he was rather disappointed on that occasion that he had not the support of the Under Secretary for the Home Department, because the Bill had embodied a principle similar to, if not so extreme, as that which the hon. Gentleman introduced in his own Bill two years ago, one clause of which provided that an occupier, under certain restrictions, should be entitled at all times to pursue, take, and kill hares and rabbits on his land, any covenant, reservation, guarantee, or agreement with the owner or any other person to the contrary effect notwithstanding. He appealed to the House whether that was not going quite as far as he proposed to do. He had said that his Bill would be approved by the farmers of England, and when he said so, he had in view the opinions repeatedly expressed by the hon. Member for South Norfolk, now a Member of the Government. As regarded the farmers of Scotland, in the East and in some districts of the West, he was satisfied his proposals would be accepted by thorn fully and completely as affording a satisfactory settlement of the question. When it was argued that there was an interference with freedom of contract, he need scarcely remind the House of the many cases in which Parliament had so interfered—as, for instance, in Shipping Acts, Mines Regulation Acts, Workshop Acts, Acts relating to the relations of attorneys and solicitors with their clients, Agricultural Children's Acts, and the Act of last Session, introduced by the hon. Member for Leicestershire (Mr. Pell), prohibiting contracts for the stoppage of artificers wages. He had 455 touched upon one or two of the misconceptions that existed in regard to the Bill, and he repeated that the measure which he now asked the House to approve of would simply have the practical effect of giving to the tenant a joint and concurrent right with the landlord in the catching and killing of hares and rabbits on the land which he occupied, and providing that he should neither divest himself of it, nor be divested of it by his landlord or any other person.
§ Question put, "That the word 'now' stand part of the Question."
§ The House divided:—Ayes 66; Noes 178: Majority 112.
§ Words added.
§ Main Question, as amended, put, and agreed to.
§ Second Reading put off for six months.