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beds and fish in rivers above estuaries, each should be protected as before mentioned. The difficulty of enacting a law for the preservation of game founded on property, arises not from the nature of the subject, but from the vexed question who is the producer of the food on which game is sustained, a question which could never arise if the soil were vested in a single proprietor. But wherever land capable of cultivation is limited in extent, and people are increasing in number, and are for a maintenance engaged in other pursuits than the cultivation of land, it is impossible to confine the ownership of land to a single proprietor. The relation of landlord and tenant, or some analogous relation, therefore always ultimately arises where land capable of cultivation is limited in extent, and a resident population is increasing in numbers. This limitation may be natural or arbitrary. In all islands it is natural, but wherever wild land capable of cultivation is, by being vested in an exclusive proprietor, restricted from cultivation, whether in an island or elsewhere, the limitation is arbitrary. The relation of landlord and tenant cultivator in England originally arose from the latter cause; a right to occupy and cultivate land in a wild state being obtainable only from a superior proprietor, who would make his own terms-one of which was to limit the proprietary right of the cultivator to the use of the soil for purposes of husbandry. The rights of the chase were thus monopolised by a single class for many generations, the Legislature defining what persons should be entitled to them. A right to hunt in public with hounds was never in any way restricted, but with that exception, the persons entitled to pursue and kill game were few in number, and belonged to a favoured grade of society. In the year 1831, that principle of favouritism was abandoned, and a right to kill game was given to every one willing to pay a tax, but as the right was rendered incapable of being exercised lawfully without the consent of the landlord, the effect of the law has been, * 1 & 2 Will. IV., c. 32, ss. 6 & 7.
and at present is, that game in the absence of any agreement to the contrary cannot be lawfully pursued except by the landlord or with his consent; in other words, the exclusive right to kill game is vested practically in the landlord. This has, recently, in very many instances given rise to a condition of things, not contemplated by the parties when the relation of landlord and tenant first arose. It was always, until recently, understood that the landlord should, did he so choose, be personally in the exclusive right to kill the game and to preserve it, but it was not contemplated that he should assign that right to a stranger, a person standing in a very different relation to the tenant, one between whom and the tenant there could exist no mutual obligations, as regards the payment of rent, the maintenance of farm buildings and the cultivation and management of the land; and who, unlike the landlord, has no interest in keeping down the game sufficiently to enable the tenant to produce sufficient stock and grain to pay his rent. Of late years the privilege of shooting, from its scarcity and the pleasure it affords, has become valuable, representing a considerable marketable price, and many landlords have availed themselves of their exclusive right to kill game by transferring it to others for a pecuniary consideration, thus receiving two rents, one from the tenant, the other from the assignee of the game, the latter being in truth paid by the tenant in addition to his other rent. A more grievous injury to the tenant, a greater practical injustice, cannot well be imagined. It is morally utterly unjustifiable.
It is not surprising, therefore, that great discontent and even indignation should exist amongst the tenant cultivators of land, where game is excessively preserved. It is true the landlord may allege that he might, himself, had he chosen so to do, have preserved the game in the same quantity; and so he might, but had he done so and had then let the game, he could not have taken, without grievous injustice, the same amount of rent, as if the game were preserved
for his own personal enjoyment. Now, beyond all doubt, the. landlord and the tenant of cultivated land are both producers, except, in the single instance, of a tenant at his own exclusive expense bringing wild land into cultivation. It may be, it is believed, truthfully alleged, that the expenditure of the landlord on land before it is adapted for cultivation by an occupying tenant, is necessarily full threefold more than that of the tenant, assuming that the landlord provides and keeps in repair the farmhouse and buildings, drains and breaks up the soil, and makes the inclosures. There was, therefore, no absolutely unjust principle brought into operation when s. 7 of 1 & 2 William IV. was enacted, which (except in cases where the right of killing game had been expressly granted or allowed, and except where upon the original granting or renewing of any lease or agreement a fine or fines had been taken, and where the lease was for a term exceeding twenty-one years,) 'gave the landlords the exclusive right of entering, or authorising another to enter, on land for the purpose of killing or taking game; on the contrary the landlord had far more right to the game than the tenant. The injustice has arisen from the abuse of that statutory privilege.
If the sole object of legislation be to produce the largest quantity of human food, those laws would be the best that, in their result, caused the land to produce and sustain the largest quantity of grain and food producing animals; but game is food, and is therefore primâ facie rightfully under the protection of the law. To justify the utter extirpation of game, for the sake of producing other edible animals, it must be proved that, when brought to market, game has consumed of food or destroyed, or both consumed and destroyed of food a larger quantity in proportion to its saleable weight than other stock. This is incapable of proof. The question was fully gone into before the Select Committee of the House of Commons on the Game Laws in 1845 and 1846, and the evidence upon the question is in the very highest degree
uncertain and unsatisfactory.
Two witnesses say 2 hares,* another, 3,† another, 4 or 5, ‡ another, 1,§ another, 6, || another, 4,¶ another, 55,** another, 50,†† another, 16,‡‡ another, 20,§§ another, 40 hares consume as much as a sheep. truth is that every animal consumes food in quantity, the same, that is in proportion, to its size and weight. Six pounds weight of hare is, therefore, brought to market at the same cost of production as six pounds of beef or mutton, except so far as the hare has prevented the growth of food by its habits, or by its having had a longer existence than is permitted to animals fatted for market. Hares and rabbits may exist longer than domesticated animals. It is believed that they rarely do, but where they have access to corn crops they, by biting off corn in the blade, to a certain extent destroy without any corresponding advantage cereal produce. The urine of the rabbit is also destructive or pernicious. There are evils inseparable from the preservation of hares and rabbits; ought they, therefore, to be extirpated? Would their extirpation be a national advantage? As regards winged game, for about ten days or less in the year, that is to say, so soon as corn crops are ready for the sickle, that is, so soon as the grain will separate from the ear, winged game in common with other granivorous birds attack standing corn; but they do not destroy corn in the blade. Ought pheasants and partridges, therefore, to be extirpated? Here considerations of State become the ally of the game preserver, for there is a principle of government equally important as that of the mere sustenance of human life, a principle which has been always in operation, and that is, the maintenance of national power. War has destroyed far more lives than famine. Are we to disband our army and cease to maintain our navy, because lives may be lost in war? Are we
*Bates, 43, 45, 157. Gayford, 8676. † Bell, 4007, 4000. Skittler, 5722. § Morris, 10,260. Gayford, 8926. ¶ Hobson, 11,864. ** Houghton, 1634, &c. tt Hon. G. F. Berkeley, 15, 475. Brierley (1846), 2387. §§ Hooper (1846), 3277. Earl of Malmsbury (1846), 4720.
to abolish all game laws and permit all wild animals to be extirpated, because game may to a certain extent prevent the largest quantity of human food reaching the market, a quantity incapable of being appreciated? Political economy also here becomes the ally of the game preserver, for it can be proved that the growth of human food in the form of game causes capital to be largely employed in productive industry, and its expenditure to be distributed throughout the provinces, -a national good by no means unworthy of the attention of the statesman. It is, therefore, a serious question whether, were game extirpated, the country would be more prosperous.
It is not the first duty of a State to produce in the largest quantities human food, but to maintain the institutions which tend by moral restraint to prevent population increasing beyond its means of subsistence; that is, institutions which encourage forethought and morality-in other words, progressive civilisation. In this point of view it is right and necessary to have laws for the preservation of game, because the social operation of them is nationally beneficial. sports induce very many of the more highly educated classes to visit and remain for a considerable time every year in the provinces, where they expend capital in the encouragement of provincial art, and in promoting provincial industry, and where by field sports they are able, not only to occupy agreeably that leisure which has been hardly earned, but to restore, and keep unimpaired, that strength of mind, and those intellectual qualifications, which it is essential for the national welfare some portion of society should always possess. Doubtless the preservation of game to some extent leads to crime, but those who contend there ought to be no game laws, must prove that were game extirpated there would be less crime. Upon this question, the sentiments of ministers of religion, and dwellers in towns, ought not to set up against those of dwellers in the country, many of them inhabitants of isolated homesteads, especially exposed to the invasion of the criminal classes. If landlords and tenant farmers be