Blackwood's Edinburgh Magazine, Vol. 66, No 405, July 1849

by Various

and if you authorise the populace at large to traverse every park and enclosure, at all hours and seasons, and in any numbers and any manner they please, then we can understand that a few months probably of rustic riot and license may settle the question by the extermination of the whole game species. But we have not yet met any game-law reformer so rabid as to propose putting an end to the penalties on ordinary trespass; on the contrary, we find most of them, (Sir Harry Verney and Mr Pusey among the number,)[12] anticipating the necessity of arming the law with much stronger powers for preventing common trespasses. And even without such additional powers, will not the trespass law as it stands be employed by proprietors to prevent interference with their sports? Is it supposed that the abolition of the game statutes will at once prevent the owners of great manors from rearing pheasants in their own covers? It may indeed drive them to do so at a greater expense, and to enlist additional watchers; but it is not likely that keen game preservers will not avail themselves of such defences as the common law may still leave them. Game then, we contend, may be thinned by this plan, but it will not be exterminated. The consequence will be that its price will be enhanced; but as the demand will still continue, the trade of the poachers will remain as thriving as ever. He may have to work harder and to trudge farther before he can fill his wallet; but this will be compensated by the additional price; and if the present quantity of game is diminished by one-half, the consequence will be that his agents will be able to pay him five shillings a-head for his pheasants instead of five shillings a-brace. In short, we should anticipate, as the effects of abolishing the present statutes, that, while many of the less wealthy owners of land would be deterred by the expense from protecting game, and while the amusement (such as it is) would become greatly more exclusive than it is now, such a measure would not only fail to remove any of the inducements which tempt the idle peasant to take to the predatory life of a poacher, but would, in the outset at least, induce many to try it who never thought of it before.

We must now pass on to the considerations we have to offer on the situation of the tenant-farmer as to game; and the first question that suggests itself as to his case is this,—Whether the injury suffered by tenants be really so serious and extensive as is represented?

"There is no denying," says Mr Shepherd, in his Essay, (p. 12,) "the notoriety of the fact that, in a great majority of instances, this excessive power of infringement on the property of the tenant through these laws has been abused. It has been almost universally abused." Is this true as regards either England or Scotland? or is it merely one of those vague and reckless affirmations which a man writing for a purpose, and not for truth, is so apt to hazard, in disregard or defiance of the facts before him? One thing we do find to be notorious—that the committee's evidence of game abuses in Scotland was limited to one solitary case, that of the estate of Wemyss. And although we may very readily conceive that, with more time and exertion, the agents of the league might have ferreted out other instances, we may, nevertheless, be allowed to express our astonishment that, on the slender foundation of this single case, Mr Bright should have ventured to ask his committee to find the general fact proved, that the prosperity of agriculture "in many parts of Scotland as well as England, is greatly impaired by the preservation of game." We learn at least to estimate the value of the honourable gentleman's judgment, and the amount of proof which an abolitionist regards as demonstration. But the truth is, that the case of Scotland was not examined at all; and the rejected report of Mr Bright and his associates bears on its face the most satisfactory evidence of their utter ignorance that the law on this side the Tweed is a perfectly different system from that of England.

Will any believe that if our Scotch farmers, "in a great majority of instances," found their property sacrificed, they would not have universally joined in demanding the interference of the legislature? But what is the fact? An examination of the reports on petitions during the last two sessions shows that there certainly have been petitions against the game laws, but that for every one emanating from an agricultural body there have been ten from town-councils. We have better evidence, however, than mere inference, for the general distrust with which the farmers have regarded this agitation; for we find the Leaguers themselves, one and all of them, lamenting that their disinterested exertions on behalf of the tenantry have been viewed by that body with the most callous and ungrateful indifference. It is impossible to read without a smile Mr Bright's Address to the Tenant-farmers (prefixed to Mr Welford's Summary of the Evidence); and to mark the patient earnestness with which he entreats them to believe that they are groaning under manifold oppressions—and insists on "rousing them to a sense of what is due to themselves." But your tiller of the soil is ever hard to move. It is surprising that the obstinate fellow cannot be made to comprehend that he is the victim of a malady he has never felt—that he will persist in believing that if game were all he had to complain of, he might snap his fingers at Doctor Bright and his whole fraternity. The essayist of the Association can find no better reason to assign for what he calls "the wondrous and apparently patient silence of the tenantry under so exasperating an evil,"—than, forsooth, that they are too servile to speak out their true opinions. Such an explanation, at the expense of the body whom he pretends to represent, can only insure for him the merited scorn of all who have opportunities of knowing the general character of the spirited, educated, and upright men whom he ventures thus to calumniate. The most obvious way of accounting for their wondrous silence under oppression is also the true one—namely, that, as a general fact, the oppression is unknown. When an intelligent farmer looks round among his neighbours, and finds that for every acre damaged by game there are thousands untouched by it,—when he knows that there are not only whole parishes, but almost whole counties, in which he could not detect in the crops the slightest indication of game,—and further, that, in ninety-nine cases out of a hundred in which a tenant really suffers injury, he is sure of prompt and ample compensation—it is not surprising that he looks upon the Association with suspicion, and refuses to support, by his name or his money, their system of stupendous exaggeration. If anyone wishes to convince himself of the actual truth, we venture to suggest to him a simple test. Damage from game, to be appreciable at all, cannot well be less than a shilling an acre. Now, let any farmer survey in his mind the district with which he is best acquainted, and estimate on how much of it the tenants would give this additional rent, on condition of the game laws being abolished. An average-sized farm, in our best cultivated counties, may be taken at two hundred acres—how many of his brother farmers can he reckon up, who would consent to pay £10 a-year additional on these terms? A similar test, it may be mentioned, was offered to one of Mr Bright's witnesses, (Evidence, i. 4938,) who had set down his annual damages from game at from £180 to £200, and who, after successively declining to give £200, £100, and £75 a-year additional rent for leave to extirpate the game, thought, at last, he might give £50 a-year for that bargain.

But the question immediately before us is this: what remedy does the existing law of Scotland give a tenant in cases of real hardship from the preservation of game? In regard to this question, it is impossible to overlook the broad distinction between the cases of those who have expressly undertaken the burden of the game, and those whose leases contain no such covenant. The quasi-right of property in game recognised by the English law is, by Lord Althorpe's statute of 1832, vested in the occupier of land, when there is no express stipulation to the contrary. The reverse is virtually the case in Scotland—the landlord retains his right to kill game, unless he shall have agreed to surrender it to his tenant. In most cases, however, the landlord's right does not rest merely on the common law, but is expressly reserved to him in the lease. Now, when a tenant has deliberately become a party to such an express stipulation, and when the quantity of game (whether it be small or great) does not exceed, during the currency of the lease, what it was at his entry, on what conceivable plea of reason or justice can he ask the interference either of a court of law or of the legislature? To say, with Mr Bright and his coadjutors, that he seldom attends much to such minor articles in a lease—that he does not understand their effect—that in the competition for land he is glad to secure a farm on any conditions—all this is the most childish trifling, and unworthy of a moment's serious notice. There is not a single sentence in any lease that may not be set aside on the very same grounds; and if agreements of this nature are to be cancelled on pretences so frivolous, there is an end to all faith and meaning in contracts between man and man.

But the tenant's case assumes a very different aspect when, by artificial means expressly contrived for the purpose, the game has been increased subsequent to his entry. Then, it is obvious, the burden is no longer the same which the tenant undertook. It is a state of things which he could not anticipate from the terms of his contract; and if the authority of the courts of law were unable to reach such a case, and to protect the tenant from what is in fact an infringement, on the part of the landlord, of their mutual agreement, it is difficult to imagine stronger grounds for insisting that the defect should be supplied by positive enactment. No such interference, however, is requisite. Our law courts not only possess the power of enforcing compensation for such injuries, but in the recent decision, in the case of Wemyss and Others v. Wilson, the supreme court has asserted and exercised that power in the most distinct and unqualified manner. "There is no instance," says Mr Chiene Shepherd, writing before the date of the above-mentioned judgment, "in which our head court in Scotland—the Court of Session—has ever given a decision entitling a tenant to damages from a landlord for destruction of his crops by game." Now, supposing the fact as here stated, to be strictly correct, what inference, we ask, can common candour draw from it? Are we to conclude that the law of Scotland, or the bench that administers it, are so corrupt as to countenance such an insult to justice? No such express decision had then been given, simply because no such claim had ever been tried; and surely this very fact is in itself the strongest possible presumption against the alleged universal abuse of the power of preserving game—a presumption that a hardship which, up to 1847, had never been made the ground of a formal appeal to the law tribunals, cannot be either very frequent or very severe. The statement, however, is not strictly correct; for, though no actual decree had been given on the special amount of damages before 1847, a very distinct, though incidental, opinion as to the liability of landlords in such cases was given in a case which occurred fifteen years ago—Drysdale v. Jameson. The principle of the law could not be more lucidly stated than in the words of the learned judge (Fullerton) on that occasion.

"A tenant, in taking a farm, must be considered as taking it under the burden of supporting the game, and may be presumed to have satisfied himself of the extent of that burden, as he is understood to do of any other unfavourable circumstance impairing the productiveness of the farm. But, on the other hand, it would seem contrary to principle that the landlord, who is bound to warrant the beneficial possession to the tenant, should be allowed, by his own act, to aggravate the burden in any great degree. A tenant, in order to support such a claim, must prove not only a certain visible damage arising from game, but a certain visible increase of the game, and a consequent alteration of the circumstances contemplated in the contract, imputable to the landlord. The true ground of damage seems to be, not that the game is abundant, but that its abundance has been materially increased since the date of the lease."[13]

Surely so clear an opinion, coming from such a quarter, was a pretty plain indication of the protection which the law would extend to a tenant in these circumstances; and, accordingly, it has been completely confirmed on every point by the more recent and comprehensive decision on Captain Wemyss' case. Any new steps on the part of a landlord for stimulating the natural supply of game, whether by feeding them, breeding them artificially, or by a systematic destruction of the vermin which naturally prey on them, will be held as indicating an intention on his part to depart from the terms of the contract, and as therefore opening a valid claim for any damage the tenant may experience in consequence of the change. And it is not only such direct and active measures for augmenting the stipulated burden that will be thus interpreted against the landlord; but even his doing so negatively—that is, his failing to exercise the power he retains in his own hands, and to keep down the burden to the same amount at which the tenant found it on his entry, will be held as equivalent to his positive act.

If, then, there ever was any ground for alleging that the state of the law was indefinite, the objection is now removed. No one can pretend to doubt that a tenant of land in Scotland has as ample a protection against injury from game as the law can give him. To prevent the injury beforehand is beyond the power of any law. All that it can do is to afford him as prompt and effectual means of redress as it furnishes against any other species of injury. In short, when its principle is weighed fairly, and when we take into consideration the relief from the fiscal qualification which Mr Mackenzie's act of last session conferred on the farmers, we shall be able to estimate how far it is true that, "both in parliament and out of parliament, the interests and industry of tenants are systematically sacrificed to the maintenance of the odious privileges of more favoured classes."

We have followed out and exposed, perhaps at greater length than was necessary, the stock sophisms and more flagrant exaggerations by which the total abolition of game laws is usually supported. Some points are yet untouched; but we prefer employing the rest of our paper in briefly stating a few suggestions for the removal of some of those difficulties and anomalies in the Scotch law, which we set out with acknowledging. In judging of any such alterations, it is necessary never to lose sight of the leading principle on which the whole Scotch system is founded—namely, the original and common right to seize and appropriate the animals of chase, qualified and determined by the previous right of the landowner to the exclusive use of the soil.