[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.