Scottish Court of Session Decisions

The statute was passed in 1773, and so far as I am aware its meaning has not been elucidated by any decision except the case of Roger v. Gordon, March 12, 1842, 1 Brown 78, which is no doubt a very important case, but the only point decided is that the offence of muirburn might be committed by burning the grass or bent on a moor although no heather was burned, and it gives no help in this case. The Act is the last of a series of statutes going back to a very early date passed for the preservation of game in Scotland. That at least is the avowed purpose of this statute. Sections 1, 2, and 3 relate to the killing of game. Section 4 provides that every person who shall make muirburn or set fire to any heath or muir in Scotland from 11th April to 1st November shall forfeit 40s. for the first offence, £5 for the second, and £10 for every subsequent offence, and in case of non-payment shall be imprisoned. Section 5 provides that if muirburn takes place within the forbidden time, the occupier shall be taken to be guilty of the offence unless he shows that the fire was raised by someone else. Section 6 is the section on which this case depends. It provides ‘that every proprietor of high and wet muirlands, the heather upon which frequently cannot be burned so early as the 11th day of April, may, when such lands are in his own occupation, burn the heath upon the same at any time between the 11th and the 25th day of April in any year without incurring any of the penalties before mentioned; and when such lands are let, the proprietor or his commissioner or factor may, by a writing under his or their hands, authorise his tenant or tenants on such lands to burn the heath thereon at any time between the the llth and 25th day of April in any year without incurring any of the penalties before mentioned.’

It is provided by section 8 that offences against the Act may be inquired into by two justices or by the sheriff, and prosecutions may be carried on either at the instance of the fiscal, ‘or of any other person who will inform or complain.’ Section 10 provides that half of the penalties shall be paid to the prosecutor and the other half to the uses of the poor or the repairing of high-roads, and section 11 gives an appeal to the Circuit Courts or High Court of Justiciary.

From these provisions of the statute it appears (1) that its object was not the protection of proprietors or shooting tenants but the protection of the game; (2) that it provides how it is to be enforced, namely, by penalties and imprisonment; and (3) that muirburning within the forbidden time is a crime or offence to be dealt with in the event of an appeal by the Courts of Justiciary. So clearly has muirburning been always regarded as criminal by our law that Baron Hume treats it as one of the forms of the crime of fire-raising, and he mentions, perhaps with surprise and regret, that he has not observed any case in which it has been treated as capital—Hume, i.131.

It is I think essential to keep in view that the statute is a statute dealing with what the law holds to be criminal, and that it must be interpreted and expressed in the manner proper to criminal statutes.

The complainer has to prove that an offence against the statute has been committed—that is to say, the onus on him is exactly what a common informer would require to undertake; and the question is whether on the evidence led, supposing the complainer had been an informer, it could be held proved that the respondent had contravened the statutes and had subjected himself to a penalty. I do not think the question would have been different had it arisen with the Duke of Sutherland instead of with his grazing tenant.

The respondent, as I have observed, has stated a plea that the prayer for interdict is incompetent. As I have also said, I do not remember that any argument was offered in support of it—at least if it was, I was not duly impressed with it, and for that reason I prefer not to deal with that plea. If I have to do so, I would require to have the case reargued. What I would say just now is, that I am not fully satisfied that it is a bad plea. The statute does not provide that it shall be enforced by interdict, but that it shall be enforced by penalties, and it is not perfectly clear that in such a case the remedy of interdict is open, and I refer on that point to the observations of Lord Young in the Institute of Patents Agent v. Lockwood, January 26, 1893, 20 R. 315–332, nd to the judgment of the House of Lords in that case, June 11, 1894, 21 R. 611.

The complainer might have proceeded under the statute had he chosen, but he has elected to proceed by application for interdict, and supposing him entitled to do so, the question is just the same—Could he have obtained a conviction had he instituted proceedings under the statute as a common informer? I answer that question not without difficulty in the negative.

In considering the question there are one or two facts that may be noticed—in the first place (1) that apart from the statute the respondent's burning seems to have always been conducted skilfully, carefully, and moderately; the Duke's commissioner Mr M'Lean is strongly of that opinion, and the most of the proof supports it; (2) that he did not burn to a large extent either before or after 11th April 1898; and (3) that it did not signify to the complainer what parts of the moor were burned, and indeed he maintains that no part of it could be lawfully burned after 11th April.

If the respondent had been burning heather after the 11th of April without permission (which is the complainer's case on record), or if he had been charged with burning heather after the 25th April, the question might not have been difficult. But when the question comes to be whether he was burning between the 11th and the

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