Those who have been accustomed to watch the tactics of the Manchester party cannot have overlooked or forgotten the significant coincidence, in point of time, between Mr Bright's attack on the Game Laws, and the last grand assault upon the barrier which formerly protected British agriculture. That wily lover of peace among all orders of men saw how much it would assist the ultimate designs of his party to excite distrust and enmity between the two great divisions of the protectionist garrison—the owners and the cultivators of land; and the anti-game-law demonstration was planned for that purpose. The manoeuvre was rendered useless by the sudden and unconditional surrender of the fortress by that leader, whose system of defence has ever been, as Capefigue says—"cÉder incessamment." It is impossible, however, to disguise the true source of the sudden sympathy for the farmers' grievances, which in 1845 and 1846 yearned in the compassionate bowels of the agrarian leaders, and led to the lengthened inquiries of Mr Bright's committee.

But it seems we are not yet done with the game-law agitation. It is true the last rampart of protection is levelled to the ground: but the subjugation of the country interest to the potentates of the factory is not yet accomplished. The owners of the soil have not yet bowed low enough to the Baal of free trade; their influence is not altogether obliterated, nor their privileges sufficiently curtailed; and therefore Mr Bright and the Anti-Game-Law Association have buckled on their armour once more, and the tenantry are again invited to join in the crusade against those who, they are assured, have always been their inveterate oppressors; and, to cut of as much as possible the remotest chance of an amicable settlement, it is proclaimed that no concession will be accepted—no proposal of adjustment listened to—short of the total and immediate abolition of every statute on the subject of game.

The truth is, that this branch of the agitation trade is too valuable to be lost sight of by those who earn their bread or their popularity in that line of business. Hundreds of honest peasants, rotting in unwholesome gaols, their wives and children herded in thousands to the workhouse—hard-working tenants sequestrated by a grasping and selfish aristocracy—these are all too fertile topics for the platform philanthropist to be risked by leaving open any door for conciliation; and therefore the terms demanded are such as it is well known cannot be accepted.

Our attention has been attracted to the doings of an association which has for its professed object the abolition of all game laws, and which has recently opened a new campaign in Scotland, under the leadership of the chief magistrate of Edinburgh, and one of the representatives of the city. Of course the construction of such societies is no longer a mystery to any one; and that under our notice appears to be got up on the most approved pattern, and with all the newest improvements. A staff of active officials directs its movements, and collects funds—lecturers, pamphleteers, newspaper editors are paid or propitiated. From the raw material of Mr Bright's blue-books the most exaggerated statements and calculations of the most zealous witnesses are carefully picked out, and worked up into a picture, which is held up to a horrified public as a true representation of the condition of the rural districts; and the game laws become, in the hands of such artists, a monster pestilence, enough to have made the hair of Pharaoh himself to stand on end. It is not to be wondered at if some, who have not had the opportunity of investigating for themselves the effects of these laws, have been misled by the bold ingenuity of the professed fabricators of grievances; but it is a fact which we shall again have occasion to notice, that they have made but little impression on the tenant farmers. Of the few members of that class who have taken an active share in the agitation, we doubt if there is one who could prove a loss from game on any year's crop to the value of a five-pound note.[2] The fact is, that while no one will deny the existence of individual cases of hardship from the operation of the game laws, you will hear comparatively little about them among those who are represented as groaning under their intolerable burden. If you would learn the weight of the grievance, you must go to the burghs and town-councils; and there—among small grocers and dissenting clergymen, who would be puzzled to distinguish a pheasant from a bird-of-paradise—you will be made acquainted with the extent of the desolation of these "fearful wildfowl:" from them you will learn the true shape and dimensions of "the game-law incubus," which, as one orator of the tribe tells us, "is gradually changing the surface of this once fertile land into a desert."

But while we are willing to allow for a certain leaven of misled sincerity among the supporters of this association, it is evident that, among its most active and influential leaders, the relief of the farmer or the relaxation of penal laws is not the real object. We shall show from their own writings and speeches the most convincing proof that they contemplate far more extensive and fundamental changes than the mere abolition of the game laws. There is not, indeed, much congruity or system in the opinions which we shall have to quote; but in one point it will be seen that they all concur—a vindictive hostility to the possessors of land, and an eager desire to abridge or destroy the advantages attached, or supposed to be attached, to that description of property. Thus the system of entails—the freedom of real property from legacy and probate duty—the landlord's preferable lien for the rent of his land, figure in the debates of the abolitionist orators, along with other topics equally relevant to the game laws, as oppressive burdens on the industry of the country. The system of the tenure of land, also, is pronounced to be a crying injustice; and one gentleman modestly insists on the necessity of a law for compelling the landlord to make payment to his tenant at the expiry of every lease for any increase in the value of the farm during his occupation. The author of an "Essay on the Evils of Game-Laws," which the association rewarded with their highest premium, and which, therefore, we are fairly entitled to take as an authorised exposition of their sentiments, thus enlarges on "the withering and ruinous thraldom" to which the farmers are subjected by a system of partial legislation.

"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

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—

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 1848[11] 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,—

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] 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]

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.

[2] "The game agitators are individuals who suffer a little, and see their brethren suffering more, and who have their feelings annoyed; and those who are not hurt at all by game, but will strike at any public wrong."—Speech of Mr Munro, one of the Council of the Association.