THE GAME LAWS.

[The conductors of the _Celtic Magazine_ in their prospectus, and in

their first number, state that "they will at all times be ready to

receive contributions from both sides on any question connected with

the Highlands, and of interest to Highlanders." In whatever light

the subject of the following remarks may be viewed, it will readily

be admitted that it has an interest for Highlanders sufficient to

entitle it to temperate discussion in these pages]:--

The Game Laws in Scotland, as our readers are aware, consist chiefly of

various statutes designed to secure to landed proprietors what the

common law, while it leaves them without the means of effectually

securing, declares them entitled to, the exclusive possession and use of

their land. The common law maxim, that an owner is entitled to the sole

enjoyment of his own ground, the legislature has practically given

effect to from time to time by passing various enactments pointing to

that end. These somewhat numerous statutes are almost identical in

effect in the three kingdoms, to which some of them extend; nor does the

common law throughout materially vary. It is not our intention, however,

to emulate Sir Roger de Coverley, whose explanations of the Game Acts

used to gain great applause at quarter sessions, by entering upon a

minute analysis of them here. We mean to confine ourselves simply to a

critical examination of the various attacks to which they have been

subjected, and an endeavour to make a brief and impartial survey of

their effect on the prosperity of the Highlands.

In entering upon the consideration of adverse criticisms, we find that

they are easily resolved into two classes:--First, there are those as to

what opponents term the unnecessary severity and injurious influence of

the Game Laws upon poachers; and secondly, the injury indirectly

effected by them upon tenant-farmers, agricultural and pastoral.

Sympathy for the poacher is frequently proclaimed by anti-game law

agitators. They will tell you that the disposition to pursue game is

inherent in human nature; that the indulgence of this irrepressible

propensity ought to be regarded with a lenient eye: that game cannot be

identified as property, and that the man who takes it should not be

considered or treated as a thief; dilating the while on the sad

misfortunes that an occasional lapse into the fields in search of a hare

or a rabbit may bring upon an agricultural labourer and his family,

ultimately it may be involving them in ruin. These arguments, however,

though at first sight appearing to have some foundation in reason, do

not satisfactorily stand the test of serious scrutiny. They are such as

could be brought to bear for what they are worth against the operation

of almost all repressive laws in the kingdom. Smuggling, for instance,

is not generally looked upon as a breach of the moral law, nor does it

present itself to common eyes in an odious light; yet it is a crime

punishable by penal laws for the sake of increasing revenue. The man

who takes his own agricultural produce and converts it into a wholesome

and refreshing beverage for his own domestic use is liable to a very

much heavier penalty than he who steps on to his neighbour's property

and puts out his hands to take what he has neither laboured for nor

purchased. In the one case we can imagine an honest industrious

labourer, actuated only by a desire for the comfort of himself and his

family, manufacturing his own goods into nourishing and sustaining ale,

heavily punished for his untaxed enjoyment of the bounties of

Providence; whereas, in the other case, the poacher, as a rule, is a

person with a turn for idleness, an aversion to all honest and steady

labour, and a taste for luxurious indulgences above his means, who

persists in illegally invading another's property in the pursuit and

seizure of its produce.

This character is specially applicable to the poaching class in the

Highlands. Any one familiar with prosecutions in poaching cases there

must see that the offenders brought up for trial form a limited list

of mean-spirited cringing creatures, upon whom any sort of sympathy

would be sadly thrown away, whose faces are well known to the

procurator-fiscal as they appear in rather regular succession in the

dock. It may be said that almost nine poaching prosecutions out of ten

are instituted against old and habitual offenders, who calculate, like

blockade runners, that a few successful raids will enable them

cheerfully to pay the fines inflicted on the occasions of their capture.

As deer-stalking and grouse shooting, to be effective, require

day-light, and pheasant breeding is the exception not the rule in the

north, cases of night poaching, the worst and most severely punishable,

are of unfrequent occurrence, while fines of two pounds, the highest

that can be inflicted for day poaching, in the most aggravated cases, is

not heavy enough even when coupled with costs to make habitual and

systematic poaching an altogether unprofitable occupation. We have no

difficulty therefore in saying that the Game Laws do not press with

undue severity upon the labouring classes in the Highlands, by whom, on

the whole, poaching is now an offence rarely committed; and we believe

that in saying so we express the opinion of those classes themselves.

Any complaints that have been made have not proceeded from them but from

third parties who have endeavoured to range themselves as pretended

friends to compass their own ends. There is just one direction in which

we might hint that improvement is possible. We would wish to see a

sliding scale of fines legalised, by which lighter penalties would be

exigible for first offences and repeated transgressions less leniently

punishable than at present.

We have now to consider that more vexed and intricate portion of our

subject, the operation of the Game Laws upon the position of the

tenant-farmer. This we have stated to be indirect, because, in reality,

many of the results complained of might be continued in existence

independently of the operations of these laws. The points at issue

between landlord and tenant, over which such torrents of discussion have

been poured, are really questions of contract been individuals, which

could and would arise, were the Game Laws abolished. But as complaints

are coupled with a demand for the abolition of these laws as a panacea,

we cannot avoid briefly examining their relation to the interests of

agriculture. Whether owing to bucolic trust in the friendly intentions

of a Conservative Government, or to hopelessness of there being any

advantages derivable therefrom, it is worthy of observation that the

recent agitation on this question, as well as on the kindred subjects of

unexhausted improvements and hypothec denominated by Mr Hope in his

observations in "Recess Studies," "Hindrances to Agriculture," have now

entered upon a quiescent phase. A few years ago an agricultural dinner

was no sooner eaten by the assembled agriculturists than the Game Laws

were tabled with the toddy, and both hotly, and in some cases ably

discussed. But a change for the better is now noticeable in the

atmosphere of Cattle Club Meetings and Wool Fair dinners whereat the

voices of game preservers may even be heard amid applause. Monotony was

the rock on which the agitation was in danger of being shipwrecked, and

as the results did not appear to be commensurate to the labour, as the

stone seemed to be rolled up the hill in vain, so far as concerned the

passing of any favourable parliamentary measure, swords have again been

turned into more useful ploughshares, and spears into less ornamental

pruning hooks. The opportunity is therefore not an unfavourable one for

a calm survey of the situation.

It is a well-known principle in jurisprudence that a contract between

two parties capable of contracting in respect to a subject matter known

to both, if adhered to by either, is inviolably binding; and with the

free action of this principle as between parties, except in a matter of

life and death, the legislature always has had, and we confidently

believe, always will have a delicacy in interfering. If there is no

vital principle, or specialty in a contract between landlord and tenant

in regard to an heritable subject, such as an arable farm, that

necessarily takes it out of the list of ordinary contracts, no

Government would seriously entertain or assist the passing of a measure

for imposing fetters upon one of the parties to that contract,

exceptional legislation to obtain an advantage for the lessee to the

detriment of the lessor. Are there then such specialties? Tenant-farmers

allege (1) that land is not an ordinary subject of contract owing to the

extent being limited, and is a possession the owners of which stand in

the relation merely of national trustees, bound to administer in the way

most beneficial to the people; (2), that tenants are not capable of

contracting on equal terms with their landlords, and that the weaker

party should receive legislative protection in the shape of an

inalienable right to ground game; and (3), that in being compelled to

sign game preservation clauses, the subject matter of that part of their

agreement is one the full extent of which must, from its nature, be

unknown to them. To this reply is made--(1), That the possession of land

is no more a monopoly than the possession of cattle or any other

commodity, that is continually in the market and sold to the highest

bidder; that the fact of the supply being limited, and necessarily in

the hands of the few, in comparison with the many who wish to use it, is

no reason why exceptional restrictions should be placed on its being let

out for hire, but rather the reverse; as well might the possessors of

money, who are few in comparison with those who wish to borrow it, be

statutorily bound to lend it out at less than it would otherwise bring;

and that those who invest money in land, having no contract with the

State, cannot be interfered with by the State in the management of it in

the way they believe most advantageous to themselves; (2), that farmers

as a rule, and particularly those who make the greatest noise about the

Game Laws, are quite capable of attending to their own interests in any

contract with proprietors as to leasing of land; that if they are glad

to obtain it on the proprietors' terms, that is occasioned by the

legitimate operation of the laws of supply and demand, which equally

affect all other contracts; and that to give them an inalienable right

to ground game, which they would immediately convert into money value by

sub-letting, would simply amount to confiscation of part of the

enjoyment of property, and in effect amount to depriving proprietors of

a considerable part of the equivalent for which they gave their money;

and (3), that when a tenant makes an acceptable offer for a farm, he

does so after the fullest investigation as to its capabilities and

disadvantages, and with a good knowledge of the amount of game on the

ground, and the damage likely to be occasioned thereby; and, as thus,

the amount of rent offered is fixed by him after all these points have

received due consideration at his hands, he is precluded from afterwards

crying out against the one-sidedness of his contract. It will thus be

seen that there is just as much to be said on the one side as the other;

and clamour notwithstanding, we believe, the day is still distant when

the legislature will step in to interfere with free contract between

landlord and tenant, by laying down conditions which even both parties

with their eyes open, and of mutual consent, will not be allowed to

alter. In other words, in an age when the cry is for freedom from all

special advantages to owners of land, such as hypothec and entail, so as

to place it on an open footing with all other subjects, it would be

strange, indeed, were exceptional legislation required for the lessees

of land to give them the special advantages which the spirit of the age

denied to their landlords. Are we to have landlord right levelled down

while tenant right is to be levelled up? We have yet to see it. It

cannot, however, in fairness be denied that there are certain

circumstances in which the tenants' third complaint above-mentioned is

just and reasonable. While a tenant is strictly tied down under the

conditions of his lease to a certain rotation of cropping, and various

other regulations regarding his use of the land, the proprietor is left

practically unfettered as to the extent of increase of game that he may

allow to take place. Immunity in such an event is secured to the latter,

either by a clause to that effect in the lease or by the prudent

reluctance of the tenant to pursue his landlord through court after

court in the knowledge that even the extra-judicial expense of such

procedure would quickly amount to more than the ultimate damages

awarded, if awarded at all, and that the feelings engendered by the

contest would stand in the way of a renewal at the expiry of the lease.

There is here, undoubtedly, a manifest hardship to the tenant, for which

the legislature would be justified in passing a remedial measure. It

would quite consist with the acknowledged and equitable principles of

jurisprudence that cheap and speedy redress for the tenant against such

uncontemplated and undue increase of game should be provided by

legislative enactment. All wrongs have their remedies; but the remedy in

such a case is not the giving an inalienable right to ground game to the

tenant, as that would amount to a wronging of the landlord, who might

wish to reserve such right at any cost of compensation to the tenant for

damage really inflicted. What is desirable is, that such damage should

be assessable, and the value thereof recoverable with the least possible

trouble and expense to the tenant. We think that this could be most

effectually secured by the statutory appointment in each county of a

competent, impartial, and reliable assessor whose duty it would be to

inspect and record the amount of game existing on every farm in that

county at the entry of the tenant, and who would be bound at any future

season on the application, either of the proprietor or of the tenant, to

re-inspect that farm and report as to whether there was any appreciable

increase in the stock of game thereon, and if so to issue an award and

valuation of the amount of damage thereby occasioned, the amount of

which the tenant would be legally entitled to deduct at payment of the

next half-year's rent. The expense of this inspection, according to a

fixed scale of charge, should be payable by the landlord where damages

were found exigible; but, otherwise, where the tenant's claim was

decided to be unfounded, the whole expense would, in equity, be payable

by him to the assessor. Of course, there are objections that can be

raised to the adoption of this, as of any other proposed compromise; but

on a careful consideration they will not be found insuperable.

Enthusiasts there are and will remain who will demand that an

inalienable right to ground game be gratuitously conferred upon them.

But by the great majority of agriculturalists who think temperately it

is agreed that the only possible settlement of the ground game question

is one of compromise. We have been credibly informed that in the

counties of Forfar and Caithness, farmers, to whom the right to ground

game had been made over, after short experience of the unexpected

trouble and expense connected with the due keeping down of hares and

rabbits, had entreated their landlords to relieve them of the burden,

which they had at first unreflectingly and gladly assumed.

The damage done by game on agricultural farms in the Highlands is

altogether inconsiderable in affecting the agricultural prosperity of

the country. Our opinion is that if the truth were fairly told farmers

would confess that where the shoe pinches is in the pressure of high

rents caused by their own mutual competitions for farms, rather than the

trifling damage done by game. The bringing forward of the game question

has been merely the trotting out of a stalking horse. There were no

complaints of game or game laws in the good old times when the rents

were low. Our grandfathers and great-grandfathers were rejoiced to

furnish the laird with a good day's sport, in the fruits of which they

generally participated. Game must have done as much harm then as now,

but farmers in those days did not feel pushed to meet the rent day. They

could live on a smaller income; they did not seek or require the same

luxuries, and had less outlay in labour. Of course, a great deal has

happened since then, but it cannot be said that for this the lairds are

entirely to blame. Then to rent a farm was synonymous with making money;

now it as often means losing it. With higher rents, the result of a

keener demand, a farmer's profits have been sadly diminished, and he too

often exerts his ingenuity in discovering grounds of deduction from a

rent he feels to be burdensome. On the sound enough principle of

abolishing special privileges of all kinds he can fairly advocate the

abolition of hypothec, but when in the same breath he turns his back

upon that principle by calling for the creation of the extraordinary

privilege of an inalienable right to ground game, he asks too much and

has every probability of getting too little.

There is no necessity for saying anything in reply to the attacks of a

few pastoral tenants or large sheep farmers. It is now matter of history

that by repeated and uncontradicted assertion a comparatively small and

uninfluential sheep-farmer clique had thoroughly convinced themselves,

and almost persuaded a portion of the public, that deer forests were

responsible for all the misery and poverty in the Highlands, for all the

cruel evictions which were carried out to make room, not for deer, but

for those very farmers who made such a noise. Having succeeded in

infecting some impressionable people, including not a few writers in the

press who knew as little of a deer forest and its surroundings as they

did of the great Sahara, there was at one time some danger of the outcry

becoming general; but the report of the Parliamentary Commission so

completely exposed the nakedness of the land, so thoroughly demonstrated

the absence of anything like reasonable foundation for complaint, as to

convince even the most extreme politician of the utter absurdity of the

position assumed. The cry never did find an echo in the heart of the

Highlander. He knew too well that the same justice had been meted out to

him and his by the predecessors of those very farmers, as they

themselves were then receiving at the hands of the wealthy Sassenach. He

knew that the evil of depopulation had been accomplished in the

Highlands, not by the introduction of deer, but of sheep on a large

scale by Lowland farmers before ever deer forests had come to be

considered a source of revenue. It was, therefore, somewhat amusing to

the Highland people to witness the descendants of these Lowland _novi

homines_ smitten upon the thigh and roaring lustily. The only bribe they

promised allies was the offer of mutton a twentieth of a penny per pound

cheaper, and Highlanders refused to be bought over at that price,

especially as its payment was more than doubtful. The deer forest

agitation has died a natural death. Peace to its ashes.

We have hitherto confined ourselves to discussing the so-called

disadvantages of the Game Laws: we have yet to consider the facts on the

other side of the question, by which those disadvantages are altogether

overbalanced. As the space allotted to us in this Magazine, however, has

its limits, we will meanwhile content ourselves with enumerating

_seriatim_ a few of the manifold benefits accruing to the Highlands from

Game Laws and game. These are--(1), The great increase of rental from

land, which is manifestly beneficial, not only to the proprietors, but

to all classes in the country in which they spend their incomes; (2),

The residence in the Highlands for so many months yearly of wealthy

sportsmen, who, if game were unpreserved and consequently non-existent,

would have no inducement so to reside; (3), The remunerative employment

afforded by those sportsmen to the labouring classes; (4), The profits

made by shopkeepers and others in the various Highland towns, by

supplying the requirements of such sportsmen; (5), The opening up of the

country by railways, which could not have been remuneratively effected

for years yet to come in the Highlands without the traffic afforded by

the conveyance of sportsmen and their belongings; (6), The advancement

of civilization in the north, by the opening up of roads and the

building of handsome Lodges in remote localities, and the circulation of

money involved in the execution of these improvements.

This enumeration might be extended to various minor details, but we

think we have said enough to satisfy every candid and impartial reader

that a very serious blow would be inflicted upon the prosperity of the

Highlands by the abolition of the Game Laws--laws which are by no means

the antiquated and useless remains of feudalism so strongly denounced by

Radicalism run mad. The truth of this need not be altogether left to

abstract speculation. We have a crucial instance in the case of the

American Republic, where the absence of such laws was felt to be so

prejudicial to the general welfare that game regulations were passed

much more stringent than in this country, and where, at present, as Mr

J.D. Dougall in his admirable treatise on "Shooting" informs us, "there

exist over one hundred powerful associations for the due prosecution of

Game law delinquents, and these associations are rapidly increasing, and

appear to be highly popular." "Here," he adds, "we have one struggling

Anti-Game Law League: in the States there are over one hundred

flourishing Pro-Game Law Leagues. The cry of a party here is:--Utterly

exterminate all game as vermin; leave nothing to shoot at. The

increasing general cry across the Atlantic is:--Preserve our game and

our fish for our genuine field sports." So long as our Game Laws

continue to increase the prosperity of the country without infringing

upon the liberty of the people, they stand in little need of defence;

are not much endangered by attack.

The Celtic Magazine, Vol I, No. IV, February 1876 A Monthly Periodical Devoted to the Literature, History, Antiquities, Folk Lore, Traditions, and the Social and Material Interest of the Celt at Home and Abroad. · 第 10 / 20 题