Chapter II: Front Matter (2)

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.

A REMARKABLE FEUDAL CUSTOM.

It is happy for the present age that the ancient manners and customs, which were practised in the Highlands and Islands under the Feudal system, have long since fallen into oblivion. It would fill volumes to relate the numerous practices which were then resorted to by the feudal lords, many of which were cruel in themselves, and entailed great hardships on their submissive vassals who were bound to obey. As the chiefs had full power over the life and death of their retainers, such of them as betrayed any disobedience or opposition to the stern demands of their superiors, rendered themselves liable to the severest punishment, and frequently to nothing less than the penalty of death. The national laws of Kings and Queens had then but little influence in checking or counteracting the peremptory enactments of Feudalism.

The following striking instance of the remarkable practices alluded to will furnish a specimen to the readers of the _Celtic Magazine_, of what took place in Skye, not much more than a century and a half ago.

No sooner did the death of a tenant take place than the event was announced to the laird of the soil. The Land-Stewart, or ground-officer, incurred the displeasure of his master unless that announcement were made no later than three days after it had occurred. Immediately after the deceased farmer had been consigned to the grave, the disconsolate widow, if he had left one, was waited upon by a messenger from the landlord, to deliver up to him the best horse on the farm, such being reckoned then the legal property of the owner of the soil. This rule was as unalterable as the laws of the Medes and Persians. On large and extensive farms the demand was submitted to without much complaint, by the widow, children, or heirs of the deceased, but it pressed hard upon the occupiers of small tenements of land, and particularly so on helpless widows. But whoever refused, or attempted to evade this heartless enactment, forfeited every right to their farms in future, and became liable to have all their goods and chattels confiscated to the laird. It frequently happened that a poor farmer had but one horse, yet even this circumstance did not mitigate the cruelty of the practice; for the solitary animal was taken away, and frequently so to the great distress of the younger branches of the orphan family, who mourned bitterly, and often shed tears for the loss of their favourite animal.

A circumstance took place in the parish of Strath, which was, it is said, the means of abolishing this abominable rule. About the beginning of the seventeenth century a farmer, of the name of Mackinnon, was gathered to his fathers in the parish, and after his interment the laird's messenger visited the afflicted widow, and, as usual, demanded the best horse on her little farm. Her husband having been a kinsman of the laird, and expecting, in her distress, to receive some sympathy from her chief, and at all events, some relaxation of that rule which had been all along so resistlessly put in force, she showed much reluctance to part with the animal. Seeing this, the officer became more and more determined to have it. The widow, in the same manner, became more and more determined in her refusal, and appealed to him in vain to submit the case to the decision of her chief. The officer was inexorable, and becoming incensed at the woman's pertinacity he turned from words to blows, and inflicted some severe wounds on the helpless female to the effusion of blood. She, however, retaliated, and through desperation, assuming more courage, addressed her little son, a boy of four, that stood weeping by her side, and said to him in her own emphatic vernacular:--

"Cha mhac mar an t-athair thu, a' Lachlainn Oig,
Mar diol thu le fuil droch caithreamh do mhàthar;
'S mar smàil thu gu bàs, le diòghaltas air chòir,
Am borb-fhear fiadhaich so, am mòrtair gu'n nàr!"

_Literally translated:--_

"Thou art not a son like the father, my young Lachlan,
Unless thou requite with blood the ill-treatment of thy mother;
And unless thou dash to death, with due revenge,
This fierce and savage fellow--this bare-faced murderer!"

The mother's charge to her boy cannot be said to be tempered with much Christian feeling or principle, yet it was according to the generally cherished practices of the system under which she lived. Then it was that might was right, and revenge bravery. But to return to the subject--the widow's cries and tears, excitement and eloquence, were all in vain. The officer made off with the horse and delivered it to his chief.

Matters went on in this way, in various quarters, for a considerable time, until at length, and about twenty years thereafter, the same officer appeared on the same errand at a neighbouring widow's door, and deprived her as usual of her best horse. The circumstance was brought under the notice of Lachlan Og, and having been, no doubt, frequently reminded of the cruelty inflicted by that official on his mother, was determined to embrace the present befitting occasion for displaying his dire revenge. It may be stated that young Lachlan was noted in the district for his great agility and muscular strength. He made no delay in pursuing the officer, and having come up to him at the distance of some miles, he seized him by the neck and sternly demanded the widow's horse, reminding him, at the same time, of the treatment inflicted by him on his mother twenty years before. The officer stood petrified with fear, seeing fierceness and revenge depicted so very unmistakably in young Mackinnon's face. Yet still he grasped the animal by the halter, and would not permit his youthful assailant to intermeddle with it. The strife commenced, and that in right earnest, but in a few moments the officer fell lifeless on the ground. Mackinnon, seizing his dirk, dissevered the head from the body, and washed it in a fountain by the wayside, which is still pointed out to the traveller as "_Tobar a' chinn_," or "The Well of the Head." He then, at once, mounted the horse, and galloped off to the residence of his chief, carrying the bloody head in his left hand on the point of his dirk. His appearance at the main entrance, with the ghastly trophy still bleeding in his hand, greatly alarmed the menials of the mansion. Without dismounting he inquired if Mackinnon was at home, and being told that he was, he said, "Go and tell my Chief that I have arrived to present him with the head of his officer 'Donnuchadh Mor,' in case that he might wish to embalm it and hang it up in his baronial hall as a trophy of heartlessness and cruelty." The message was instantly delivered to the laird, who could not believe that such a diabolical deed could be perpetrated by any of his clan, but still he came out to see. On his appearance in the court, Lachlan Og dismounted, did obeisance to his chief, and prominently exhibited the dripping head, by lifting it up on his dirk. "What is this, Lachlan, what murder is this?" asked the excited chief. Lachlan explained the whole in full detail, and related the circumstances of the present transaction, as well as of the inhuman treatment which his mother had received when he was a child. The chieftain pondered, paused, and declared that these cruelties had been practised unknown to him. He granted a free pardon to Lachlan Og, appointed him his officer in room of Donnuchadh Mor, and issued an edict over all his estate that thereafter neither widow nor orphan, heir, nor kindred, would ever be deprived by him of their horse, or of any other part of their property.

SGIATHANACH.

GENERAL SIR ALAN CAMERON, K.C.B.,

COLONEL 79TH CAMERON HIGHLANDERS.

[CONTINUED].