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.