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

"Pascite, ut ante, boves, pueri – submittite tauros."

Absurd, however, as the complaint of this ambitious Damon appears, it indicates at least the extent of change which he and his patrons of the association think they may justly demand. It is not, then, redress of game-law grievances they aim at, but an indefinite change in the social and political system of the country. If any one doubts this, let him read the following extract from the address of Mr Wilson of Glassmount: —

"Much organic change must, however, precede the reforms for which they were now agitating. The suffrage must be extended.– (applause) – and, above all, the voters must be protected in the exercise of their functions by the ballot; for, in a country where so great a disparity existed between the social condition of the electoral body, parliamentary election, as now conducted under a system of open voting, was only a delusion and a mockery." – (Caledonian Mercury, Feb. 12, 1849.)

From such an authority we cannot expect much amity towards the aristocracy, who, he says, "it is notorious, are, in point of political, scientific, and general knowledge, far behind those employed in commerce and manufactures."[3 - Lecture on the Game Laws, by R. Wilson, &c., March 22, 1848.] He compares the present state of Britain with "the condition of France anterior to her first revolution, when the ancient noblesse possessed the same exclusive privileges which are still enjoyed by the aristocracy of this country – and, among the rest, a game law, which was administered with so much severity, that it is admitted on all hands to have been the chief cause of that convulsion which shook Europe to its centre."[4 - Ibid.]

France and its institutions form a subject of constant eulogy to this gentleman, whose speeches show him to be by far the ablest, and, at the same time, the most straightforward of the League lecturers. He admonishes our landed proprietors to visit that country. "In the social condition of that country they would see the results of the abolition of those class privileges and distinctions which their order are still permitted to enjoy in England; and they would there find a widespread comfort in all the rural districts, which has been produced by the subdivision of property, and which is nowhere to be found in this country, where game laws, and laws of entail and primogeniture, are maintained for the exclusive amusement and aggrandisement," &c.[5 - Ibid.]

We are willing to believe that Mr Wilson of Glassmount has never himself visited the country whose condition he longs to see resembled here; and that it is simply from ignorance that he eulogises the agricultural prosperity of a land where five bushels of wheat is the average yield of an imperial acre – where, in two generations, the landed system of the Code Napoleon has produced five and a-half millions of proprietors, the half of whom have revenues not exceeding £2 a-year, and whom the greatest statist of France describes as "propriétaires républicains et affamés." Our object, however, is not to reason with adversaries of this stamp, but simply to show, from their own words, the nature of the reforms they contemplate, under cover of a design to ameliorate the game laws. It may be said, indeed, that such indiscreet avowals of the more zealous members of the Anti-Game-Law Association cannot be fairly ascribed to its leaders. But though their language is, of course, more wary, it were easy to select from their orations even equally strong proofs of that bitter hostility to the landed interest, which prompts Mr Bright himself to cheer on his followers with the announcement that the people are ready to throw off "the burdens imposed on them by an aristocracy who oppress, grind them down, and scourge them;" and "that the time is now come to leach the proprietors of the soil the limits of their rights."[6 - Address in Mr Welford's Influences of the Game Laws.]

A reference to the proceedings of the anti-game-law leaders will show that the specimens we have given are only fair samples of the factious spirit – the querulous, yet bullying and vindictive tone, in which they have conducted this controversy. No one can seriously believe that a hostility, directed not against these laws in particular, but against the whole social and political system of our country, can be founded on a wise and deliberate review of the effects of the statutes in question. Discontent with things in general is a disease which admits of no remedy, and which any ordinary treatment, by argument or concession, would only aggravate.

There are many, however, of more moderate views, who are interested in knowing to what extent the complaints they have heard are founded on reason, and are capable of redress. We purpose, for the present, to limit our remarks principally to the operation of the Scotch law upon game, both because agitation on this subject has recently been most active on this side of the Tweed, and because we think the important differences in the game-laws of England and Scotland have not been sufficiently attended to, and have given rise to much popular misapprehension.

All the abolition orators begin by telling us that game laws are a remnant of the feudal system – that they originated in the tyranny and oppression of the middle ages, and are, therefore, wholly unsuited to our improved state of society. Such an origin, of course, condemns them at once; for, in the popular mind, feudal law is somehow synonymous with slavery, rape, robbery, and all that is damnable. The truth is, however, that the game law of Scotland has no more connexion with the feudal law than with the code of Lycurgus. Even as regards England, there is good ground for questioning Blackstone's doctrine that the right to pursue and kill game is, in all cases, traceable to, and derived from, the crown. But in Scotland, at all events, there never existed any such exclusive system of forest laws as that which grew up under the Norman kings, and which King John was finally compelled to renounce. The broad and liberal principle out of which the Scotch game law has grown, is the maxim of the civil law – quod nullius est occupanti conceditur– that any one may lawfully appropriate and enjoy whatever belongs to no one else – a maxim which must necessarily form the fountainhead of all property. All wild animals, therefore, may be seized by any one, and the law will defend his possession of them. But out of this very principle itself there naturally springs a most important restriction of the common privilege of pursuing game; for the possessor of land, as well as the possessor of game, must be protected in the exclusive enjoyment of what (though originally res nullius) he has made his own by occupation or otherwise. It is evident, then, that the contingent right of the hunter to the animals he may succeed in seizing, can be exercised to its full extent only in an unoccupied and uncultivated country; and must give way, wherever the soil has become the subject of property, to the prior and perfect right of the landowner. Accordingly, we find that in the Roman law the affirmation of the common right to hunt wild animals is coupled with this important restriction, under the very same title – "Qui alienum fundum ingreditur, venandi aut aucupandi gratiâ, potest a domino prohiberi ne ingrediatur;" and, notwithstanding the perplexed and anomalous nature of the tenure of land among the Romans, we find everywhere traces of a strict law of trespass, from the Twelve Tables down to Justinian. And in this the civil law was followed by that of Scotland. Subject to this inevitable restriction, and to a few regulative enactments of less importance, the privilege continued open to all, without distinction, up to the year 1621.[7 - The statute of 1600, prohibiting hunting and hawking to those who had not "the revenues requisit in sik pastimes," is plainly one of a sumptuary tenor, and not properly a game law.] About this time the tenor of the statutes shows that game of all kinds had become exceedingly scarce; and it was probably with a view of preventing its extirpation, as well as of discouraging trespass, which, from the increase of the population, had increased in frequency, that, in the above-mentioned year, an act was introduced which was, without doubt, a decided violation of the principle on which the system was originally founded. The act 1621 prohibited every one from hunting or hawking who had not "a plough of land in heritage;" and subsequent statutes extended this prohibition to the sale and purchase, and even to the possession of game, by persons not thus qualified. This, we repeat, was a direct departure from the leading maxim of the law, as it stood previously; and we can see no reason whatever for now retaining it on the statute-book. It is notorious, however, that, practically, these statutes have now fallen into desuetude, and that the mere want of the heritable qualification has not, for a long period, been made a ground for prosecution. In fact, the privilege is open to any one provided with the landlord's permission, and who has paid the tax demanded by the Exchequer, though he may not possess a foot of land. When, then, we find the orators of Edinburgh complaining of the harsh and intolerable operation of the qualification statutes, it affords the most complete evidence either of their utter ignorance of the actual state of the law, or of the weakness of a cause that needs such disingenuous advocacy.

The fiscal license, which was first required by the act 24th Geo. III. c. 43, cannot be justly regarded in the light of an infraction of the general principle of the Scotch law. Its direct object is not the limitation of the right of hunting, but the maintenance of the public revenue; and it will be readily admitted by all reasonable men that, on the one hand, there cannot be a less objectionable source of taxation than the privilege in question, and, on the other, that the duty is not excessive, when we find above 60,000 persons in Great Britain voluntarily subjecting themselves to it every year.

The two other principal enactments regarding the pursuit of game in Scotland, commonly known as the Night and the Day Trespass Acts, 9 Geo. IV. c. 69, and 2 and 3 Will. IV. c. 68, cannot here be criticised in detail. Their provisions contain one or two anomalies which we shall have occasion to notice below, in suggesting some practicable amendments on the present law. But as to their general spirit, we venture to affirm that they are most legitimate developments of the general principle above stated. In every class of injuries to the rights of others, there are some species of the offence which, from their frequency, or from their being difficult to detect, must necessarily be prevented by more stringent prohibitions than those attached to the genus in general; and in the same way that orchards for example, timber, salmon fisheries, and many other subjects are protected by special penalties, so has it been found requisite to amplify the common law of trespass, in its application to that particular manner of trespass which is confessedly the most frequent and annoying. If the penalties are unnecessarily stringent, let them by all means be modified; but their severity, in comparison with the punishment of ordinary trespass, is not inconsistent with justice, or the principles of wise legislation.

We have adverted, in this hasty sketch, only to the prominent features and growth of the law of Scotland; but a more detailed comparison with that of England and other countries of Europe, especially when recent statutes and decisions are taken into view, will fully justify the opinion of Hutcheson and other well qualified judges, that it is "the most liberal and enlightened of all laws as to game." It recognises, of course, no such thing as property in game more than in any other animals of a wild nature. The proprietor of a manor has no right to the pheasant he has fed until he shall have actually brought it to bag, or at least disabled it from escaping; and the right which he then first acquires is quite independent of his ownership of the land.

To many the distinction thus created, by considering all game as wild animals, appears too theoretical; and no doubt it is a question for zoologists rather than for lawyers to decide, whether there really be in animals any such permanent and invariable character as to justify such a universal distinction. There is the strongest presumption that all our domesticated animals were at one time feræ; and it is rather a difficult task to show reason for considering some classes as "indomitabiles," when we see the reindeer, of a tribe naturally the most shy of man, living in the hut of his Lapland master – and when we recollect that among birds, the duck, turkey, and peacock, with us the most civilised and familiar of poultry, are elsewhere most indubitable feræ at this very moment. It has been argued that the commoner kinds of game, under the system of rearing and feeding now so general, are scarcely more shy or migratory in their habits than those animals which the law contrasts with them as mansuefactæ, and therefore regards as property: that even when straying in the fields, we may as reasonably impute to them the animus revertendi– the instinct of returning to their haunts and coverts, as to pigeons and bees which the law for this reason retains under its protection, though abroad from their cots or hives; that the common objection as to the difficulty of identifying game, is one which applies as strongly to many other subjects recognised as vested in an owner; and finally, that, being now in reality valuable articles of commerce, these classes of animals should cease to be viewed as incapable of becoming property. It is difficult to gainsay the premises on which this proposal is built: and if we look to analogy, it cannot be doubted that the invariable tendency of civilisation is towards the restriction of the category of res nullius, and by art and culture to subject all products of the earth to the use, and consequently to the possession of man. But, apart from this speculative view of the subject – it seems to us that, while common opinion is unprepared for so fundamental a change in the law of Scotland, the alteration proposed would not in practice improve the position of any of those classes who are affected by the operation of the present game laws, nor materially obviate any of the bad effects usually ascribed to them.

But it is time now to turn to those alleged evils, and to form some judgment as to whether they are in reality so weighty and numerous, that nothing short of the total abolition of the game laws can effectually check them. The abrogation of a law is no doubt an easy way of overcoming the difficulty of amending it – in the same way that the expedient of wearing no breeches will unquestionably save you the cost of patching them; and as a device for diminishing game-law offences, the total repeal of all game laws is perhaps as simple and efficacious a recipe as could well be conceived. But let us first inquire into the existence of the disease, before we resort to so summary a remedy.

There are three distinct parties who are said to be injured by the operation of these laws – The community at large suffer chiefly by being deprived, it is alleged, of a very large proportion of the produce of the soil, which, if not consumed by game, would go to increase the stock of human food – The poacher has to bear the double injustice of a law which first makes the temptation, and then punishes the transgression – The farmer finds, in the protection given to game, a source of constant annoyance, loss, and disappointment. We shall take these complainants in their order.

The public, (we are told by the enlightened commercial gentleman who represents the metropolis of Scotland,) the public have a right to see that none of the means for maintaining human life are wasted – a great popular principle popularly and broadly stated. It is possible, however, that Mr Cowan may not have contemplated all the admirable results of his principle. He may, perchance, not have seen that it sweeps away, not only every hare and pheasant, but every animal whatever that cannot be eaten or turned to profit in the ledger. His carriage horses eat as much as would maintain six poor paper-makers and their families; the keep of his children's pony would board and educate four orphans at the Ragged Schools. But we are not yet done with him; for he cannot stick his fork into that tempting fowl before him until he can satisfy us, the public, that the grain it has consumed would not have been more profitably applied in fattening sheep or cattle. And what, pray, is that array of plate on the buffet behind him but so much capital held back from the creation of employment and food for that starving population, which he assures us (though every one but himself knows it is nonsense) is increasing at the rate of 1000 per diem! Political economy of this quality may do very well for the Edinburgh Chamber of Commerce; but we really hope, for the credit of the city he represents, that he will not expose himself on any other stage, nor consider it a necessary part of his duties as a legislator, to prescribe the precise manner in which corn shall or shall not be used.

The supposed amount of destruction by game of cereal and other produce, has afforded a fine field for the more erudite of the game law opponents. Mr Gayford's celebrated calculation, that three hares eat as much as a full-grown sheep, is generally assumed as the infallible basis of their estimates, and the most astounding results are evolved from it.[8 - It is right to mention, that there is some discrepancy in the estimates of Mr Bright's authorities on this point, of whom Mr Gayford is comparatively moderate; for we have others who, (upon, no doubt, equally sound data,) think two hares is the proper equivalent; and Mr Back of Norfolk is convinced that one hare is worse than a sheep; in other words, that one hare will eat up a statute acre. On the other hand, Mr Berkeley weighed the full stomachs of a large hare, and an average Southdown sheep, and found them as one to fifty-five. So that, if the accounts of Mr Gayford and his confrères are right, we have arrived at a law in physiological science equally new and surprising – that the digestive powers of animals increase in a compound inverse ratio to the capacity of the digestive organs!] Mr Charles Stevenson thinks the destruction cannot be less than two bushels per acre over the whole kingdom, representing a total of two hundred thousand quarters. "If it be the case," says Mr Chiene Shepherd, with a modest hesitation – "if it be the case, that throughout this empire the farmers, in general, suffer more loss from game than they pay in the form of poor's tax (and I suppose it cannot be doubted that they do so– that in most parts they suffer more than double the amount of their poor-rates,) then it follows, of course, that there is more destruction from game than would make up the sum collected from poor-rates from the whole lands of the empire."[9 - Scotsman, February 12, 1848.] Double the amount of poor-rates paid by land may be taken roughly at some £9,000,000. But there are others who think even this too low an estimate, and throw into the scale (a million out or in is of no importance) the county rate, highway rate, and all the other direct burdens on land put together! Let us carry on the line of calculation a step further: if game animals alone consume all this, and if we allow a fair proportion of voracity to the minor, but more numerous feræ– rats, mice, rooks, wood-pigeons, &c. – it is clear as daylight that it is a mere delusion to think that a single quarter of wheat can, by any possibility, escape the universal devastation. There is no lunatic so incurable as your rampant arithmetician; and the only delusion that could stand a comparison with the above would be the attempt to reason such men out of their absurdities.

But the actual waste of grain is not, it seems, the only way in which the public suffers. The annual cost to the community of prosecutions under the game acts is an enormous and annually increasing burden. This is proved, of course, by the same system of statistics run mad as that of which we have just given some specimens. The game convictions in the county of Bedford, it is discovered, were, in the year 1843, 36 per cent of the total male summary convictions; and the lovers of the marvellous, who listen to such statements, are quietly left to infer, not only that this is usually the case in Bedfordshire, but that a similar state of things prevails throughout England and Scotland also. They are sagacious enough, however, never to refer to general results. They carefully avoid any mention of the fact, (which, however, any one may learn for himself, by referring to Mr Phillipps' tables,) that the average of the game convictions during the five years these tables include, was, for all England, not 36, but a fraction over 6 per cent of the whole. Now, let us see how the case stands in Scotland. We have observed that our northern orators always draw their illustrations from the south of the Tweed; and we have, therefore, looked with some curiosity into the records of our Scotch county courts, as affording some test of the real extent of the grievance in this part of the empire. Unfortunately these records are not preserved in a tabular form by all the counties; but we have been favoured with returns from five of the most important on the east coast, which we selected as being those in which the preservation of game is notoriously carried to the greatest extent. An abstract of these returns will be found below,[10 - Compare these facts with the preposterous statements which the latest orator of the league, Mr M. Crichton, has been repeating to listening zanies at Greenock, Glasgow, and Edinburgh, that "the commitments arising from game laws amount to ONE-FOURTH of the whole crime of the country."] and will suffice to show how false, in regard to Scotland, is the assertion that game prosecutions are alarmingly numerous; while every one knows that the expense is borne, not by the public, but by the private party, except in very rare and aggravated cases. From these it appears that the whole number of game cases tried, or reported to the authorities, in these five counties, during the years 1846 and 1847, was one hundred and forty-four, being about 2.5 per cent of the whole. Fifeshire (which was selected to be shown up before Mr Bright's committee as an abyss of game-law abuses) had, in 1848, out of eight hundred and thirty offences, only three under the game acts. As to the alleged progressive increase of such cases, the subjoined table of the numbers for the five years preceding 1848[11 - Return of game-law offences during the years 1843-7] proves that, whether it be true or not as respects isolated districts of England, that the number of game-law trials is every year becoming a heavier burden on the public, it certainly is not true in four of the largest and most game-keeping counties of Scotland.

We have now to make a remark or two on the plea set up on behalf of the poacher against the present game laws. What is it that makes a man become a poacher? "Temptation," says Mr Bright, "and temptation only. How can you expect that the poor but honest labourer, who, on his way home from his daily toil, sees hares and pheasants swarming round his path, should abstain from eking out his scanty meal with one of those wild animals, which, though on your land, are no more yours than his? The idea would never have occurred to him if he had not seen the pheasants; and if there had been no game laws, he would have remained an upright and useful member of society." Such, we believe, is the beau-ideal of the poacher, as we find it in abolitionist speeches, and in popular afterpieces at the theatre. He is, of course, always poor, but virtuous, —

"A friendless man, at whose dejected eye
Th'unfeeling proud one looks, and passes by."

We shall not quarrel, however, with the fidelity of this fancy sketch; but we may be allowed to doubt whether any large proportion of those who incur penalties for game trespass have been led into temptation by the mere abundance of game in large preserves. Men of plain sense will think it just as fair to ascribe the frequency of larceny to the abundance of bandanas which old gentlemen will keep dangling from their pockets while pursuing their studies at print-shop windows. The evidence taken by the committee seems rather to show that the poacher's trade thrives best where there is what is called "a fair sprinkling" of ill-watched game, than where he has to encounter a staff of vigilant and well-trained keepers. But what though the case were otherwise? Suppose the existence of the temptation to be admitted, is it to be seriously argued that the province of legislation is not to prohibit offence, but to remove all temptation from the offenders? not to protect men in the enjoyment of their rights, but to abridge or annihilate those rights, that they may not be invaded by others? This, we affirm, is the principle when reduced to simple terms; and startling enough it is to those who have been accustomed to think that the proper tendency of laws and civilisation is in precisely the opposite direction. What although a breach of these laws may sometimes be the commencement of a course of crime, are there no other temptations which open the road to the hulks or the penitentiary? If the magistrates of our towns, who so vehemently denounce the danger of the game laws, are sincere in their search after the sources of crime, and in their efforts to repress them, we can help their inquiries – we can show them at their own doors, and swarming in every street, temptations to debauchery, which have made a hundred crimes for every one that can be traced to game laws, – and yet we cannot perceive that the zeal of our civic reformers has been very strenuously directed to discourage or to diminish the numbers of these dens of dissipation. We can refer them to the reports of our gaol chaplains for proof that three out of every four prisoners are ignorant of the simplest rudiments of education; and yet a praiseworthy attempt lately made in our metropolis to promote instruction by means of apprentice schools, was not favoured with the countenance of our chief magistrate, because he happened to be engaged in the more philanthropic duty of presiding at a meeting for condemning the game laws!

If we are called upon to assign a reason for the frequency of poaching, we should attribute it neither to the mere superabundance of game by itself, nor yet to the pressure of poverty, but very much to the same sort of temptation that encourages the common thief to filch a watch or a handkerchief – namely, the facility of disposing of his spoil. Well-stocked covers may present opportunities to the poacher for turning his craft to account, but it is plain the practice would be comparatively rare if he did not know that at the bar of the next alehouse he can barter his sackful of booty either for beer or ready coin, and no questions asked. Every village of 1000 or 1500 inhabitants offers a market for his wares, and any surplus in the hands of the country dealer can be transferred in eighteen hours to the London poulterer's window. There cannot be a doubt that the consumption of game has increased enormously since the beginning of this century. It was formerly unknown at the tables of men of moderate means, except when haply it came as an occasional remembrance from some country relation, or grateful M.P. Now-a-days the spouse of any third-rate attorney or thriving tradesman would consider her housekeeping disgraced for ever, if she failed to present the expected pheasant or brace of moorfowl "when the goodman feasts his friends." And even if we descend to the artisans and operatives of our large towns, it will be found that hares and rabbits form a wholesome and by no means unusual variation of their daily fare. We have the evidence of one of the great Leadenhall game dealers, that in the month of November hares are sent up to London in such quantities, that they are often enabled to sell them at 9d., and even at 6d. each. The average weight of a hare may be taken at about 8 lb.; and if we deduct one-half for the skin, &c., there will remain 4 lb. of nutritious food, which, even at 2s., is cheaper than beef or mutton; while the occasional change cannot but be both agreeable and beneficial to those who have so limited a choice of food within reach of their means. Some idea may be formed of the vast quantity of game brought into London, from the statements of Mr Brooke, who buys £10,000 worth of game during the course of the winter; and there are ten other great salesmen in Leadenhall market alone. If we make allowance for the supplies sent directly to the smaller poulterers, for the consumption in the other great towns throughout the kingdom, and for the probably still larger quantity that never comes into market at all, it is impossible to deny that game has now become an important part of the food of the people, and that, as an article of commerce, it deserves the attention of the legislature. Any attempt to check the production and sale of a commodity for which there is so general a demand, must prove both useless and mischievous. It is in vain to proscribe it as an expensive luxury, and insist on the substitution of less costly fare. It may be true, for anything we know, that the grain or provender consumed by the 164,000 head of game, which Mr Brooke disposed of in six months, might have produced a greater weight of bullocks or Leicester wedders, (though this is extremely unlikely, for the simple reason that grain, grass, and green crops form only a part of the food of any of the game species); but, whether true or not, it is useless to prevent the rearing of game by any sort of sumptuary enactment, direct or indirect. The proper course of legislation is very plain. While compensation should be made exigible for all damage from excess of game, and new statutory provision made for this purpose, if the present law is insufficient – fair encouragement should at the same time be given for the production, in a legitimate way, of what is required for the use of the public. Facilities should be afforded to the honest dealer for conducting his trade without risk or disguise, and the useless remnant of the qualification law in Scotland should be abolished. Measures of this nature, by turning the constant demand for game into proper channels, will prove the most effectual discouragement to the occupation of the poacher, and to the reckless and irregular habits of life which it generally induces.

A very opposite result, we are persuaded, would follow from the adoption of Mr Bright's quack recipe for putting an end to the practice of poaching. By what indirect influence is the abolition of the game laws expected to produce this effect? If, indeed, along with the game laws, you sweep away also the law of common trespass – if you proclaim, in the nineteenth century, a return to the habits of the golden age, when, as Tibullus tells us —

"Nullus erat custos, nulla exclusura volentes Janua";

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 - Evidence, Part i. 1414; ii. 7647, 7651.] 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 - Shaw, ii. 147.]

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.

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.

DOMINIQUE

A SKETCH FROM LIFE

TWO STUDENTS

At the lower extremity of that ancient street long recognised as the head and centre of the Pays Latin or scholastic quarter of Paris, and which, for six centuries, has borne the name of the Rue de la Harpe, within a few doors of the bridge of St Michel, and in a room upon the fifth floor, two young men were seated, on a spring morning of the year 182-. Even had the modest apartment been situated elsewhere than in the focus of the students' district, its appearance would have prevented the possibility of mistake as to the character of its inmates. Scanty furniture, considerably battered, caricatures of student life, partially veiling the dirty damp-stained paper that blistered upon the walls, which were also adorned by a pair of foils, a cracked guitar, and a set of castanets; a row of pegs supporting pipes, empty bottles in one corner, ponderous octavos thickly coated with dust in another, told a tale confirmed by the exterior of the occupants of the apartment. One of these, a young man of two-and-twenty, was evidently at home, for his feet were thrust into slippers, once embroidered, a Greek cap covered his head, and a tattered dressing-gown of pristine magnificence enveloped his slender and active figure. His features were regular and intelligent, and he had the dark fiery eyes, clustering black hair, and precociously abundant beard of a native of southern France. His companion, a young Norman, had nothing particularly noticeable in his countenance, save a broad open brow and a character of much shrewdness and perspicacity – qualities possessed in a high degree by a majority of his fellow provincials. His dress was one of those nondescript eccentric coats and conical broad-leafed hats at all times particularly affected by French studiosi.

The two young men were seated at either extremity of the low sill of a tall French window, thrown wide open to admit the pleasant spring sunshine, into which they puffed, from capacious pipes, wreaths of thin blue smoke. Their conversation turned upon a crime – or rather a series of crimes – which occasioned, at that particular moment, much excitement in Paris, and which will still be remembered by those persons upon the tablets of whose memory the lapse of a quarter of a century does not act as a spunge. About three years previously, a young man named Gilbert Gaudry, of respectable family, liberal education, and good reputation, had been tried and convicted for the murder of an uncle, by whose death he largely inherited. The accused man was in debt, and his embarrassed circumstances prevented his marrying a woman to whom he was passionately attached; his uncle had recently refused him pecuniary assistance, upon which occasion Gaudry was heard to express himself harshly and angrily. Many other circumstances concurred to throw upon him the odium of the crime; and, altogether, the evidence, although entirely circumstantial, was so strong against him, that, in spite of his powerful appeal and solemn denial, the judge condemned him to death. The sentence had been commuted to the galleys for life. Three years passed, and the real murderer was discovered – a discharged servant of the murdered man, who, at the trial, had given important evidence against Gaudry. The guillotine did its work on the right offender, and Gaudry's sentence was reversed. But three years of slavery and opprobrium, of shame, horror, and gnawing sense of injustice, had wrought terribly upon the misjudged man, inspiring him with a blind and burning thirst of revenge. Almost his first act, on finding himself at liberty, was to stab, in broad daylight, and in the open street, the judge who had condemned him. This time there could be no question of his guilt, and he would inevitably have been condemned to death; but, before his trial, he found means of hanging himself in his cell. This last tragical and shocking incident had occurred but two days previously, and now furnished the embryo jurists with a theme for animated discussion. Without vindicating the wretched murderer and suicide, the young Norman was disposed to find an extenuating circumstance in the unjust punishment he had endured. But his friend scouted such leniency, and, taking up high ground, maintained that no criminal was baser than he who, the victim of judicial error, revenged himself upon the magistrate who had decided according to the best of his judgment and conscience, but who, sharing the liability to err of every human judge, was misled by deceitful appearances or perjured witnesses.

"Argue it as you will," cried Dominique Lafon; "be plausible and eloquent, bring batteries of sophisms to the attack, you cannot breach my solid position. Excuse and extenuation are alike in vain. I repeat and maintain, that to make a magistrate personally responsible for his judgments, be they just or unjust, so long as he has kept within the line of his duty, and acted according to his conscience, is revenge of the basest and most criminal description."

"Bear in mind," replied Henry la Chapelle, "that I attempt not to justify the unhappy Gaudry. All I assert is, that injustice excites in the breast of every man, even of the gentlest, hatred against him by whom the injustice is done. And its frequent repetition, or the long continuance of the suffering it occasions, will ultimately provoke, in nine cases out of ten, an outbreak of revengeful fury. The heart becomes embittered, the judgment blinded, the mild and beautiful injunctions of Scripture are forgotten or disregarded, in the gust of passion and vindictive rage. To offer the left cheek when the right has been buffeted, is, of all divine precepts, the most difficult to follow. A man ruined, tortured, or disgraced by injustice, looks to the sentence, not to the intention, of his judge; taxes him with precipitation, prejudice, or over-severity, and views revenge as a right rather than a crime. Doubtless there are exceptions – men whose Christian endurance would abide by them even unto death; but, believe me, they are few, very few. The virtues of Job are rare; and rancour, the vile weed, chokes, in our corrupt age, the meek flower, resignation."

"A man to whom injustice is really done," said Dominique, "may console himself with the consciousness of his innocence, which an act of rancorous revenge would induce many to doubt. The suffering victim finds sympathy; the fierce avenger excites horror and reprobation."

"Mere words, my dear fellow," replied la Chapelle. "Fine phrases, and nothing else. You are a theorist, pleading against human nature. What logic is this? Undeserved punishment is far more difficult to endure than merited castigation; and an act of revenge should rather plead in favour of the innocence of him who commits it. In a criminal, the consciousness that he merited his punishment would leave less room for hatred than for shame; it would excite vexation at his ill luck, rather than enduring anger against his judge. There would be exceptions and variations, of course, according to the moral idiosyncracy of the individual. It is impossible to establish a mathematical scale for the workings of human passions. I repeat that I do not justify such revenge, but I still maintain that to seek it is natural to man, and that many men, even with less aggravation than was given to Gaudry, might not have sufficient resolution and virtue to resist the impulse."

"You have but a paltry opinion of your fellow-creatures," said Dominique. "I am glad to think better of them. And I hold him a weak slave to the corruption of our nature, who has not strength to repress the impulse to a deed his conscience cannot justify."