1st. Keeping this in view, our first change would be the abolition of the land-qualification introduced by the Act 1621; and this for the double reason that it was originally an unwarrantable departure from the general principle just mentioned, and that it is inexpedient to cumber the system with a law which is practically in desuetude.
2d. The effect of this alteration would be to remove also the useless and improper restriction on the sale of game. There can be no good reason for throwing difficulties in the way of the game-dealer's trade. As a check to poaching, we have abundant proof that the present restriction is inoperative; or, if it has any effect, it is directly the reverse of that intended, by throwing the trade very much into the hands of a low class of retailers. Instead of requiring a qualification or permission, which is constantly evaded, we would substitute a game-dealer's license, as in England.
3d. The fifth section of the Day Trespass Act empowers the person having the right to kill game on any lands, or any person authorised by him, to seize game in the possession of a trespasser. This provision has sometimes given occasion to dangerous conflicts between the parties, and is, moreover, quite at variance with the principle of the law above noted.
4th. The next particular we shall mention is of more importance. The evidence of Mr Bright's committee has, we think, fully disproved the charge against the county magistracy of England, of partiality and excessive severity in game cases. Exceptions no doubt were brought forward, but their paucity shows the contrary to be the rule. In Scotland there is still less ground for such an accusation. With us, such an occurrence as a justice adjudicating in his own case is unknown; and we find even the most violent of the abolition lecturers admitting that proceedings before the sessions under the game statutes are conducted with equity and leniency. But this is not enough. The parties who have to administer the law should be above all suspicion of bias or interest, even of the most indirect kind; and we should greatly prefer that game prosecutions were removed altogether, into the court of the judge-ordinary. Such an alteration, were a sure, would be regarded generally by the benches of county magistrates as a most desirable relief from one of the most invidious and embarrassing duties they have to execute. But, as the law stands, they have no option—for offences under the Day Trespass Act are cognisable by them only. If, then, there be any valid reason against transferring the trial of all game offences to the sheriff court, (and at present we can see none) it is at all events most advisable that his jurisdiction should be extended to day as well as to night trespasses.
5th. Any revisal of the law should embrace provisions against the accumulation of penalties; for although these are very rarely insisted on in Scotland, the power of enforcing them affords a pretext for declamations against the severity of the game law, which its opponents know well how to employ.
Besides these modifications of the statutes, it seems most desirable that in all leases the disposal of game should be regulated by special clauses, which should include a reference to arbitration in case of dispute.
FOOTNOTES:
[2] "The game agitators are individuals who suffer a little, and see their brethren suffering more, and who have their feelings annoyed; and those who are not hurt at all by game, but will strike at any public wrong."—Speech of Mr Munro, one of the Council of the Association.
[3] Lecture on the Game Laws, by R. Wilson, &c., March 22, 1848.
[4] Ibid.