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

"No individual," he complains, "of this trade has ever risen to importance and dignity in the state. While merchants of every other class, lawyers, and professional men of every other class, have often reached the highest honours which the crown has to bestow, no farmer has ever yet attained even to a seat in the legislature, or to any civic title of distinction; uncertain as the trade is naturally, and harassed and weighed down by those sad enactments the game laws, to be enrolled among the class of farmers is now tantamount to saying, that you belong to a caste which is for ever excluded from the rewards of fair and honourable ambition." – (Mr Cheine Shepherd's Essay. Edinburgh, 1847.)

The association of the game laws with the scorns which "patient merit of the unworthy takes," is at least ingenious. We confess, with Mr Cheine Shepherd, that the aspect of the times is wofully discouraging to any hope that a coronet, "or even the lowest order of knighthood," will in our days become the usual reward for skill

"In small-boned lambs, the horse-hoe, or the drill."

We cannot flatter him with the prospect of becoming a Cincinnatus; or that we shall live to see the time when muck shall make marquisates as well as money; and perhaps the best advice, under the circumstances, we can tender him, is that which the old oracle gave to certain unhappy shepherds in Virgil's time —

"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 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

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

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

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 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 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 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 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 184811 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 eyeTh'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!