Page:Blackwood's Magazine volume 150.djvu/272

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264
Access to Mountains.
[Aug.

quiring the intervention of the Legislature. But it must be borne in mind that if legislation is unnecessary, it will certainly, as Mr Thomson points out, be mischievous, because it will set people to stand on their rights in a province of law where those rights are singularly ill-defined and over-lapping, and where peace depends on mutual forbearance and reasonableness. The truth is, the law of trespass in Scotland stands in an anomalous position. It conveys a command without a sanction. It is pithily expounded by Mr Rankine[1]:—

“Except in the exercise of a public duty, or of some public franchise or private right, no one is entitled, without the permission of the proprietor, to enter his land or house on foot, on horseback, or in a vehicle; or his private loch or river by swimming or in a boat. It is of no consequence whether the land be enclosed or not.”

But, on the other hand—

“As the law of Scotland never recognised the infliction of imprisonment for debt, so it knows of no penalty for a simple act of trespass; but in the same way that a debtor was imprisoned as a rebel for allowing himself to be to the horn, the trespasser may severely dealt with, as in contempt of Court. He may indeed jeer at the time-honoured placard which threatens him with rigorous prosecution as brutum fulmen. But the proprietor or possessor of the land or building entered has the right to turn him off, ordering him to quit the land in a given or in any direction.

“In case of refusal to obey, the use of violence will be equally unjustifiable, and will equally found a claim for damages whether the intrusion be founded on an alleged right-of-way or servitude, or, on the other hand, be an impudent trespass not justified by any claim of right. . . .

“In cases of simple trespass, the only remedy at law is the purely civil process of interdict, . . . but decree will not go out unless the complainer can prove a reasonable apprehension of the repetition of the same or similar intrusion.”

It is obvious that this state of the law gives boundless possibilities of friction, and in fact reduces matters to a deadlock between landholder and trespasser determined to insist on the utmost of their rights. Smooth working depends on the general moderation and good feeling of both sides. Mr Bryce’s proposal only increases the opportunities of collision, if, as would be the probable result of his bill, the parties are set at arm’s-length. How does Mr Bryce propose to prove to an incredulous gillie on the lower slopes of a mountain that his purposes in ascending are those of recreation or scientific or artistic study? If the gillie chooses to maintain the contrary, and to assert that Mr Bryce is in reality there for the purpose of taking eggs or for the pursuit of game or other wild birds according to the time of year, or on his road to an illicit still, or that he would not resist a rare fern or a plant of white heather, how is Mr Bryce to vindicate the innocency of his intentions? In such matters the bill leaves, and must leave, a discretion in the hands of the keeper. To do otherwise would be to leave the poacher, the smuggler, and the oologist unchecked. If, then, the proprietor chooses to make himself disagreeable, and to exclude mankind, he will find it as easy to do so by challenging their motive as at present by challenging their right. He would lay himself open, no doubt, to an interdict, upon satis-

  1. ↑ Land Ownership in Scotland, p. 123.
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