[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 familiar 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 deer-stalking 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 present.

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 tenant-farmer. 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 bucolic 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 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 by legislative enactment. All wrongs have their remedies; but the remedy in such a case is not the giving an inalienable right to ground game to the tenant, as that would amount to a wronging of the landlord, who might wish to reserve such right at any cost of compensation to the tenant for damage really inflicted. What is desirable is, that such damage should be assessable, and the value thereof recoverable with the least possible trouble and expense to the tenant. We think that this could be most effectually secured by the statutory appointment in each county of a competent, impartial, and reliable assessor whose duty it would be to inspect and record the amount of game existing on every farm in that county at the entry of the tenant, and who would be bound at any future season on the application, either of the proprietor or of the tenant, to re-inspect that farm and report as to whether there was any appreciable increase in the stock of game thereon, and if so to issue an award and valuation of the amount of damage thereby occasioned, the amount of which the tenant would be legally entitled to deduct at payment of the next half-year's rent. The expense of this inspection, according to a fixed scale of charge, should be payable by the landlord where damages were found exigible; but, otherwise, where the tenant's claim was decided to be unfounded, the whole expense would, in equity, be payable by him to the assessor. Of course, there are objections that can be raised to the adoption of this, as of any other proposed compromise; but on a careful consideration they will not be found insuperable. Enthusiasts there are and will remain who will demand that an inalienable right to ground game be gratuitously conferred upon them. But by the great majority of agriculturalists who think temperately it is agreed that the only possible settlement of the ground game question is one of compromise. We have been credibly informed that in the counties of Forfar and Caithness, farmers, to whom the right to ground game had been made over, after short experience of the unexpected trouble and expense connected with the due keeping down of hares and rabbits, had entreated their landlords to relieve them of the burden, which they had at first unreflectingly and gladly assumed.

The damage done by game on agricultural farms in the Highlands is altogether inconsiderable in affecting the agricultural prosperity of the country. Our opinion is that if the truth were fairly told farmers would confess that where the shoe pinches is in the pressure of high rents caused by their own mutual competitions for farms, rather than the trifling damage done by game. The bringing forward of the game question has been merely the trotting out of a stalking horse. There were no complaints of game or game laws in the good old times when the rents were low. Our grandfathers and great-grandfathers were rejoiced to furnish the laird with a good day's sport, in the fruits of which they generally participated. Game must have done as much harm then as now, but farmers in those days did not feel pushed to meet the rent day. They could live on a smaller income; they did not seek or require the same luxuries, and had less outlay in labour. Of course, a great deal has happened since then, but it cannot be said that for this the lairds are entirely to blame. Then to rent a farm was synonymous with making money; now it as often means losing it. With higher rents, the result of a keener demand, a farmer's profits have been sadly diminished, and he too often exerts his ingenuity in discovering grounds of deduction from a rent he feels to be burdensome. On the sound enough principle of abolishing special privileges of all kinds he can fairly advocate the abolition of hypothec, but when in the same breath he turns his back upon that principle by calling for the creation of the extraordinary privilege of an inalienable right to ground game, he asks too much and has every probability of getting too little.

There is no necessity for saying anything in reply to the attacks of a few pastoral tenants or large sheep farmers. It is now matter of history that by repeated and uncontradicted assertion a comparatively small and uninfluential sheep-farmer clique had thoroughly convinced themselves, and almost persuaded a portion of the public, that deer forests were responsible for all the misery and poverty in the Highlands, for all the cruel evictions which were carried out to make room, not for deer, but for those very farmers who made such a noise. Having succeeded in infecting some impressionable people, including not a few writers in the press who knew as little of a deer forest and its surroundings as they did of the great Sahara, there was at one time some danger of the outcry becoming general; but the report of the Parliamentary Commission so completely exposed the nakedness of the land, so thoroughly demonstrated the absence of anything like reasonable foundation for complaint, as to convince even the most extreme politician of the utter absurdity of the position assumed. The cry never did find an echo in the heart of the Highlander. He knew too well that the same justice had been meted out to him and his by the predecessors of those very farmers, as they themselves were then receiving at the hands of the wealthy Sassenach. He knew that the evil of depopulation had been accomplished in the Highlands, not by the introduction of deer, but of sheep on a large scale by Lowland farmers before ever deer forests had come to be considered a source of revenue. It was, therefore, somewhat amusing to the Highland people to witness the descendants of these Lowland novi homines smitten upon the thigh and roaring lustily. The only bribe they promised allies was the offer of mutton a twentieth of a penny per pound cheaper, and Highlanders refused to be bought over at that price, especially as its payment was more than doubtful. The deer forest agitation has died a natural death. Peace to its ashes.

We have hitherto confined ourselves to discussing the so-called disadvantages of the Game Laws: we have yet to consider the facts on the other side of the question, by which those disadvantages are altogether overbalanced. As the space allotted to us in this Magazine, however, has its limits, we will meanwhile content ourselves with enumerating seriatim a few of the manifold benefits accruing to the Highlands from Game Laws and game. These are—(1), The great increase of rental from land, which is manifestly beneficial, not only to the proprietors, but to all classes in the country in which they spend their incomes; (2), The residence in the Highlands for so many months yearly of wealthy sportsmen, who, if game were unpreserved and consequently non-existent, would have no inducement so to reside; (3), The remunerative employment afforded by those sportsmen to the labouring classes; (4), The profits made by shopkeepers and others in the various Highland towns, by supplying the requirements of such sportsmen; (5), The opening up of the country by railways, which could not have been remuneratively effected for years yet to come in the Highlands without the traffic afforded by the conveyance of sportsmen and their belongings; (6), The advancement of civilization in the north, by the opening up of roads and the building of handsome Lodges in remote localities, and the circulation of money involved in the execution of these improvements.

This enumeration might be extended to various minor details, but we think we have said enough to satisfy every candid and impartial reader that a very serious blow would be inflicted upon the prosperity of the Highlands by the abolition of the Game Laws—laws which are by no means the antiquated and useless remains of feudalism so strongly denounced by Radicalism run mad. The truth of this need not be altogether left to abstract speculation. We have a crucial instance in the case of the American Republic, where the absence of such laws was felt to be so prejudicial to the general welfare that game regulations were passed much more stringent than in this country, and where, at present, as Mr J.D. Dougall in his admirable treatise on "Shooting" informs us, "there exist over one hundred powerful associations for the due prosecution of Game law delinquents, and these associations are rapidly increasing, and appear to be highly popular." "Here," he adds, "we have one struggling Anti-Game Law League: in the States there are over one hundred flourishing Pro-Game Law Leagues. The cry of a party here is:—Utterly exterminate all game as vermin; leave nothing to shoot at. The increasing general cry across the Atlantic is:—Preserve our game and our fish for our genuine field sports." So long as our Game Laws continue to increase the prosperity of the country without infringing upon the liberty of the people, they stand in little need of defence; are not much endangered by attack.

EVAN MACKENZIE.