THE GAME LAW S.

[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 familar 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 deerstalking 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 pre

sent.

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 tenantfarmer. 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 buccolic 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

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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