§ Order for Second Reading read.
§ MR. CARNEGIE
, in moving that the Bill be now read the second time, said, that in asking the time of the House on this subject, which was one on which the tenantry of Scotland took a very deep interest, it was not his intention to make this question what had been called a "hardy annual." He thought, however, he was entitled, on behalf of those he represented, to take up a little of the time of the House under the circumstances which had occurred. Two years ago he had succeeded in carrying a Bill through the second reading, but there it stopped owing to his losing his day on account of the discussion about the Mayor of Cork; last year he did not bring in a Bill, but he put a Question to the Lord Advocate, who answered him that the 409 question was under the consideration of the Government. It remained under the consideration of the Government for the remainder of the Session, and during the Recess; and now he had resolved to propose a Bill himself, and at such a period of the Session as afforded a possibility of its being passed. The subject of the law of hypothec, its nature and origin, had been so much discussed in the country, and in Parliament, that probably it was not necessary for him to say much more about it at the present time. The only new thing he had to state was, that two years ago the House of Lords appointed a Committee to investigate this matter. He stated at that time that he did not think any very great good was likely to come out of a Committee in that place—for the reason that its Members were necessarily composed of one class, and that therefore evidence was not likely to be obtained so satisfactorily as that obtained by the Royal Commission which was constituted of Members of all classes. And certainly that anticipation was fully borne out. The Committee made a marked distinction between a favourable and an unfavourable witness. Those who favoured the existing law were treated with marked courtesy, and plied with leading questions; whereas witnesses who were opposed to the law of hypothec, as it existed, were subjected to a style of cross-examination which would have done credit to the school of which Mr. Serjeant Buzfuz was a distinguished representative. He must say that the treatment some of the witnesses received—especially from one noble Duke—rather surprised him in such a Committee-room. The Committee asked why no small tenants had been examined by the Commission; but, in spite of this, they examined no small tenant. With regard to the law of hypothec, and in what respect it differed from the law of distress, it was scarcely necessary for him to enter. All Scotch Members understood it, and he would refer those English Members who did not, to previous debates and Blue Books; but he would quote one passage from the Report of the Lords' Committee, because it comprised the whole subject in a single sentence—The main difference," they say, "between the law of hypothec in Scotland, and the law of distress in England, consists in this—that in Scot- 410 land the landlord has the power of preventing the tenant from disposing of his crop before the rent becomes due, whereas in England he has no such power.Otherwise the two were very nearly analogous; but, whatever the differences might be, he was ready to admit that every argument against the law of hypothec in Scotland in the main applied to the law of distress in England. The question was whether the law was defensible or not. Was it defensible in theory? He thought it was generally accepted that when a man became bankrupt his assets were divided amongst his creditors. That was a reasonable proceeding to take as the standing point. Then came the question whether there was any particular reason why the landlord should have claims of this sort, which the seller of raw material had not. It had been said that there was great analogy between the law of hypothec and the law of lien as applied to ships. But a great authority—the present Lord Justice Clerk (Lord Moncreiff), who was then Lord Advocate, was examined before the Committee—distinctly denied that there was any such analogy. He said—I do not think that any great light is to be thrown upon the question of landlord's hypothec by those illustrations, excepting that it shows it is not inconsistent with the general principles of law that where the risk is unusally disproportionate to the interest, there should be a special power of security. Beyond that I do not think there is much analogy in the cases.The question was whether a landlord, either in an agricultural subject, or an urban subject, did run an unreasonable risk. He (Mr. Carnegie) thought he did not. The merchant who sold raw material to a manufacturer risked the capital he had invested, and in that raw material he risked the whole of his capital; but a landlord in letting his land only risked the interest of his capital—the yearly rent. He did not think, therefore, that the case could be made out that the landlord ran any very enormous or disproportionate risk as compared to the other competing classes. Then, did the existing law have any practical good effect? How did it affect the landlords? The Royal Commissioners said that the landlords never took it into account in selecting a tenant, and did not look to it as giving security for their rent. The landlords, however, asserted that under the law they could give 411 indulgence to their tenants. But by depriving them of the right of hypothec they were not deprived of the right of giving any indulgence they liked; the only difference would be that, in giving that indulgence, they would give it at their own risk, and not at the risk of other people. A bankrupt tenant very seldom did any good either to the landlord or to his farm. He (Mr. Carnegie) said that the great evil of the law was that it did tempt landlords to take men of insufficient capital for their farms. The apparent security it offered made it very difficult for a factor to advise his landlord to refuse a tenant who offered a large rent; the law threw a temptation in the landlord's way that was very undesirable. This Bill had been so drawn as to guard all existing rights; and the landlords would have no cause of complaint in the event of this Bill passing; because the landlord, on his land coming out of lease, would have at his own discretion various ways of dealing with it. Should he consider that the security the law gave him was insufficient, he still had, as a last resort, if he chose, to take the land into his own hands. He had it in his power. The land was there; he could either farm it himself, or let it; and could exact what conditions he chose for it. A great distinction had been drawn between large and small tenants. As regards this Bill that was not a correct distinction. The distinction he (Mr. Carnegie) would draw was between the tenant with sufficient capital, and the tenant with insufficient capital, irrespective of the size of his holding. It had been said—but very unjustly—that the large farmers wished to diminish the number of small farmers, and even get rid of the small farmers altogether. He did not think that was in the least the case. The large farms and the small farms co-existed together, without any jealousy on the part of the tenants What large farmers objected to was that men with insufficient capital should compete against them for the occupancy of farms. That was what they objected to, not to the existence of small farms. The reckless competition that had taken place sometimes for farms had done an immense deal of harm to the country. Some landlords had been imprudent enough to let land at much over its value to men of comparatively no capi- 412 tal; these men had become bankrupt and paid no dividends, and the whole credit of the farmer class had been seriously shaken. As to the small tenant theory of the law of hypothec, small tenants ad never come forward to demand the maintenance of the law. On the contrary, the balance of evidence was that the smaller tenants were quite as much opposed to the law as the larger ones. It had been stated that the landlords, for the purpose of protecting themselves, would have recourse to fore-rents. Now, he (Mr. Carnegie) had no objection to the principle of payment for occupation, and not for crop. He believed that to be a sounder theory; but he also believed that, in practice, the management of estates would go on much as at present, except that the landlord and factor would be more careful in selecting men of capital. He had heard it said that if the law of hypothec were abolished the landlord would be more afraid of giving leases. Now, the evidence taken before the Commission was that the system of leases arose from considerations with which the law of hypothec had nothing to do. He came now to the question as to how the law affected the merchant. Any law by which a merchant received a very small dividend from a bankrupt debtor must affect him injuriously. Now, wherever traders had become bankrupt under this law, the merchants had received very small dividends; and, although some alteration had been made in the law, giving merchants some little more equity in dealing with landlords and tenants, it had not been altogether successful. He had shown, then, that the law of hypothec was injurious to landlords, tenants, and merchants. He believed it tended to hamper agriculture, by preventing capital being applied to the cultivation of the land; and, if so, the law was injurious to the community in general; and, if for that reason alone, it was desirable that the law should be abolished. He had hitherto directed his remarks principally, though not entirely, to hypothec relating to agriculture. But his Bill included hypothec on other subjects; and he had thought it right it should do so. The analogy between them was very strong; and though nowhere had the law been carried out so strictly in urban districts, or produced such bad effects, as in the agricultural parts of the country, still he considered, 413 that it was a very mischievous law. He did not see that those who provided lodgings, or places of business, had any greater claim than those who provided food, or those who provided clothing. They had done away with the protection some of them had in the arrestment of wages, and it was unfair that a house agreement should be the one which was given a preference over the rest. A great hardship often arose from the seizure of lodgers' goods for rent; there was now a Bill before the House to give lodgers better protection in this respect. It had been said that the abolition of urban hypothec would lead to the letting of houses to workmen for shorter terms; but it appeared by the evidence before the Committee that already the practice was growing of letting such dwellings from month to month. He had endeavoured to show that the law of hypothec was false in theory and injurious in practice. The only argument that he could see in favour of it was one that was often adduced—namely, that it was in existence, and that with this law in existence the agriculture in Scotland had been in the main prosperous. That was generally the argument—the last dying speech and confession—of any abuse. He could fancy in any crowded Asiatic town where disease was rife, the people saying—"We have done very well as it is; then why should we change?" Such an idea, if carried out, would bring back man to the lowest depths of barbarism. The law of hypothec was a relic of the times when rent was paid in kind, and it was no more fit for the present time than would be a Roman villa on the top of Ben Nevis.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Carnegie.)
§ SIR GRAHAM MONTGOMERY
said, his hon. Friend (Mr. Carnegie) had dealt with the subject in a very able manner, and had shown much knowledge of the question. The subject was, no doubt, a dry one; but his hon. Friend had gone into very many details, and he (Sir Graham Montgomery) must beg permission to follow him through his remarks. But first he would express his hope that Her Majesty's Government would take an opportuity, during this debate, of saying what was their intention with respect 414 to this subject. When last year his hon. Friend (Mr. Carnegie) put a Question to the Lord Advocate with reference to this subject, and asked what was the intention of the Government in the matter, his right hon. and learned Friend replied that the question was being considered by the Government in connection with the corresponding law in England. He (Sir Graham Montgomery) hoped that if the Government intended to bring in a measure on that subject, they would hear what were the alterations they proposed. The present Bill was a simple Bill—it was a short one—it went right to the point at once. It consisted of two clauses, and proposed to repeal the law of hypothec altogether. The theory of the Bill, and what he took exception to, was that it called landlords' rent personal debt. It seemed to him that the landlord was entitled to a share of the produce of the ground, and one would have supposed that, when personal debt was substituted, some equivalent would have been given for the right taken away. When a tenant did not pay his rent, it was a difficult thing to eject him. Upon a proceeding for that purpose, he might appeal in the first instance, and might again appeal from the Court of Session to the House of Lords; so that a tenant, who was not disposed to be ejected, might give the landlord a great deal of difficulty, and all the time the rent was running on. He should have supposed his hon. Friend would have proposed some more convenient mode of getting rid of tenants who did not pay their rent. His hon. Friend had criticized rather freely the proceedings of the Committee of the House of Lords on the subject. He seemed to think that the selection of witnesses examined before their Lordships was unfairly made.
§ MR. CARNEGIE
said, that what he had referred to was not the bringing of the witnesses, but the treatment of the witnesses.
§ SIR GRAHAM MONTGOMERY
He thought that before their Lordships there were witnesses—Mr. George Hope, for instance—perfectly able to state to the Committee all the arguments in favour of abolition; but he thought there was a complete failure to make out a good case for abolition. What were the allegations against the law of hypothec? The first was that it gave a preference to the landlord. Why should not that be the 415 case? In Scotland, land was generally let, not from year to year, but on a lease of 19 years. The landlord was thus bound up with the tenant from that period, and was not in the same position as that of the manure and seed merchant. The mere fact that the landlord had only partly the control of the land and the tenant for 19 years was, to his mind, a strong reason for giving him a preference over other creditors. Another allegation was that the law of hypothec increased competition in land. No doubt that was quite true, for tenants were able to take land under it who could not otherwise do so. But it seemed to him right and proper that the tenant should not pay his rent till he had reaped his crop, and that was precisely the way in which the law favoured the tenant. Nor did he believe that this competition was unhealthy. In Scotland, of late years, rent had greatly advanced, and farms became more difficult to obtain than formerly; but he did not think the law of hypothec had anything whatever to do with that fact. The increase in the price of produce was the main reason for the advance in the value of farms. Another allegation against this law was that it was very pernicious to agriculture; and it had been stated that agriculture in Scotland was in a depressed state, and that the tenantry were in a suffering condition. Now, he should have thought that the very reverse of that was the case. There was no country in the world where that interest was more flourishing than at present it was in Scotland. His hon. Friend (Mr. Carnegie) might say it was flourishing in spite of the law of hypothec; but the law had promoted its prosperous condition by securing credit to the smaller class of tenants. The hon. Gentleman said that the landlords were in the habit of letting their farms to the highest offerers, without inquiring as to their ability to meet their engagements, or as to their capital, and were therefore careless in the selection of their tenants. Now, that statement was hardly borne out by facts. Bankruptcies of tenants in Scotland were not greater than in England or any other country. In Scotland many of the smaller class of tenants attributed their rise in the world to the existence of this law. Indeed, several parties examined before the Committee of the House of Lords 416 admitted as much, and the deprivation of these beneficial results would be generally deplored. The exact state of feeling with regard to the law was very clearly brought out before this Committee; the factors—those who had the management of the land—were for the retention of the law; the tenantry were divided on the question, some holding one opinion, and others the reverse; and, of course, manure merchants and seedsmen, who supplied the farmers with what they required to carry on their operations were entirely against the law; but he did not think it had been proved that these gentlemen had suffered more than they would have done had the law not existed. The hon. Gentleman (Mr. Carnegie) alluded to fore-hand rents, and seemed to think that it would not be evil if they were adopted. On the contrary, he (Sir Graham Montgomery) felt satisfied that the proposed change would be very prejudicial to the interests of both landlord and tenant. The larger class of tenants were, no doubt, in favour of this movement, but he doubted much whether his hon. Friend was correct in assuming that the smaller tenants were of the same opinion. He thought, if they were polled, they would be found anything but in favour of the abolition of the law of hypothec; and he believed that if this Bill were passed, the smaller tenants would be driven out of their holdings. Now, as to the question of urban hypothec, with which the Bill also dealt. The law, which worked particularly well in large towns with regard to the letting of houses, was to be abrogated at the same time with that affecting tenants. But it was stated in evidence before the Lords' Committee that if this law were abolished, it would produce great suffering and distress among the working classes; and he could well believe it. The law of distress in England, and the law of hypothec in Scotland, as was stated by the Lord Justice Clerk (Lord Moncreiff), were one and the same in their practical operation. He (Sir Graham Montgomery) would rather say that the landlord in Scotland had the advantage over the landlord in England in possessing the power to sequestrate for current rent not due; in England there was no such power. As they all knew, there were great facilities in Scotland for borrowing money at low rates of interest; one of the causes was this very law of 417 hypothec, and he doubted very much whether, if it were abolished, agricultural improvements would not be to a great extent arrested; and he was of opinion that the abolition of the law of hypothec would tend to destroy the confidence hitherto subsisting between landlord and tenant. Feeling that the measure was totally uncalled for, and that if the alterations it proposed were to take effect, they must lead to injurious consequences, he begged to move that the Bill be read a second time this day six months.
§ LORD GARLIES
said, he had much pleasure in seconding the Motion of the hon. Baronet. There were five different interests affected by this Bill: first, the landlord; second, the more wealthy tenants; third, the smaller class of tenants; fourth, the merchants; and fifth, the land itself. As regarded the landlord, the hon. Baronet had shown very clearly that if the Bill passed, the landlord would not have the power of eviction which he should have, in the case of a tenant not paying his rent. On that ground, therefore, the landlords had a right to object to this Bill. In regard to the more wealthy tenants, he thought this cry had been got up in a measure by that particular class, in order to prevent the smaller tenants competing with them. But, in his opinion, this smaller class of tenants should not be subjected to such restrictions. There was a class of men in Scotland who, by frugal habits and industry, raised themselves to certain positions, from small holdings to large farms, and it would be very undesirable to throw any impediments in their way. As regarded the less wealthy tenants, the hon. Member for Forfar-shire (Mr. Carnegie) said he did not believe they had any objection to the passing of this Bill. Now, he (Lord Garlies) thought there were a good many of this class who had, at elections, used the cry for the abolition of hypothec—not understanding the effect it would have upon them. He agreed that it was quite absurd to put the position of the merchants as at all analogous with that of the landlord. He maintained, also, that the merchant made his contract with his eyes perfectly open; for he was quite aware that the landlord had a previous right to the value of the crop, so that it could not be said that the merchant was placed in any position of hardship. As 418 regarded the land itself, he maintained that the result of this abolition, as was acknowledged by the hon. Member for Forfarshire himself, would be that the landlord, instead of letting the farms, would keep the tillage pretty much in his own hands. He could not imagine anything more telling against the whole of the argument of his hon. Friend than that fact. The reason of the great prosperity—which was not denied from any side—that Scotland had achieved, was very much owing to the system of long leases, and the effect of passing this Bill would be to abolish long leases. The landlord would find he had not the same security, and could not guard himself against loss; so that the practical effect would be either to shorten the leases from year to year, or to induce the landlord to take the tillage into his own hands. This would tend to check the improvements, because a tenant without a long lease would never think of extending these improvements, and the natural result would be an increasing population, with a reduction of cultivation. But he could not help thinking that the real reason of this question being brought forward was that in sensational times—at General Elections—it was found necessary to have a hustings "cry;" and there were always a class of people ready to misrepresent facts, and to upset anything that existed. Perhaps the threats the other night of the hon. Member for the Border Burghs, who said if a certain Bill did not pass there would be a Dissolution, might be one of the reasons for inducing his hon. Friend to press this question.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Sir Graham Montgomery.)
§ Question proposed, "That the word 'now' stand part of the Question."
§ MR. CRAUFURD
said, that though it had been stated by his hon. Friend opposite (Sir Graham Montgomery) that this was a somewhat dry subject, it was, nevertheless, a subject of very great importance to the commercial and landed interests of the country; and, that being so, he regretted that a larger attendance should not have been attracted to discuss the matter; because, though the question referred to one part of the 419 kingdom, it must involve the re-consideration of the whole of this class of legislation. Some, indeed, of his hon. Friends argued that they should not attempt to deal with this law in Scotland until they brought in one general measure for the whole United Kingdom. But all persons with ordinary experience of common or political life must know, that if they postponed acting until they could effect a grand revolution, they might wait till the Greek Kalends. The best principle was, that when they proposed to remove an obnoxious fabric in the interests of the whole community, they should pick it down brick by brick, with as little disturbance and danger as possible, in order that it might ultimately come down altogether. A great deal had been said about the benefits which this law had conferred. It had been said of it, as it had lately been said of purchase in the Army, which had lately occupied the attention of the House for five nights, that while theoretically it was a very objectionable system, yet, in practice, it had worked well. The House, however, had decided, even without a Division, that the system, though it might work well, was bad in principle, and they had consented to its abolition. The same thing applied to this question of hypothec. Something had been said about the question of small tenants. They had been told that if it had not been for this law, they would not have risen from small beginnings to the successful state in which they now were. But there, again, the argument failed, because they had no experimentum crucis that their success was owing to this law and to this law alone. There was nothing to show that the intellect and ability of these men would not have enabled them to succeed without the aid of this law. Then it was said that small tenants were in favour of the continuance of this law, and that it was a protection to them, and an encouragement to them in the prosecution of their business. But he (Mr. Craufurd) should like, first of all, to have a definition of what constituted a small tenant. So far as he had seen, those who were called small tenants were men who had generally failed utterly to make a livelihood, in spite of the alleged benefits of this law. In spite of those they had struggled on, and had ultimately been obliged to give up their farms, because the small 420 farms were not sufficient to enable them to pay expenses, and to earn a livelihood. Then it was said that if they abolished this protection to landlords, they should compel the institution of fore-hand rents. Now, there was a curious piece of evidence before the Hypothec Commission on this point. Mr. James Sinclair, a landowner of Caithnesshire, in answer to the question—Is it consistent with your knowledge that fore-rents have not prevented letting of farms?"—replied—"No; it has been the invariable practice.What became, then, of the great argument that fore-rents were the great obstacle to the letting of small farms? Mr. Sinclair says—There is, in some districts of Caithness, great competition for crofts of £5 or £10; but the competition for these farms seems to be a sort of periodical epidemic. We find no difficulty in getting good tenants, paying fore-rents.[Mr. ORR-EWING: They are not farmers.] The hon. Gentleman says these persons are not farmers at all. Now he (Mr. Craufurd) was not going into the question of what was a farmer, but he said that a tenant who paid from £5 to £10 a-year for his land, out of the land, was practically as much, a farmer as the man who paid £500 a-year. The hon. Baronet (Sir Graham Montgomery) who had moved the rejection of the Bill, had said that the small tenants, if polled, would object to the Bill. The small tenants had never been asked, and he might tell his hon. Friend if he wanted to establish a case before a jury, he could not establish it unless he satisfied the jury that the men for whom he spoke held the opinion which he who professed to speak for them said they held. But the small tenants had not been called upon for their opinion, and that had created in his (Mr. Craufurd's) mind a suspicion that their views had not been correctly represented. If it was really the case that the small tenants objected to this Bill, to the extent to which it had been stated, those men ought to have been called in large numbers, and their evidence put upon record. No one had any right to say that those men held those opinions simply because he believed that they held them. He had no doubt that the people who said that was the opinion of the small tenants conscientiously believed it; but that direct evidence was wanting. The best evidence already obtained was only second-hand, and their 421 was no better rule, either in law or in everyday life, than always to decline to take evidence as second-hand when it could be procured from the fountain-head. The statement about the small tenant, therefore, should be supported in the manner in which it ought to be supported, before this House listened to it Allusion had been made to the evidence given before the Committee of the House of Lords in 1869; and his hon. Friend (Mr. Carnegie), who has charge of this Bill, complained very justly of the manner in which the examination of the witnesses was conducted. When members of the Hypothec Commission were called, they were asked no questions as to whether small tenants had been examined by the Commission, and what evidence they had given; but when persons who were not members of the Commission went before the Committee, they were asked questions which they could not possibly answer, such as—"Are you not aware that the small tenants, who were examined before the Commission, objected to the abolition of the law of hypothec?" I say that the small tenants themselves have never been asked the question. Then they were told that there was no demand for the abolition of urban hypothec. He admitted that the question of urban hypothec had not attracted so much attention as that of rural hypothec, and for this reason—urban hypothec affected the great mass of proprietors of houses in burghs, and they did not wish, whatever their political opinions, to have what they fancied a beneficial security taken from them. These men were generally electors of their burghs; they sent Members to that House; and it was not likely that the Members who represented a class so interested would vote against a law of which they so much approved. Now, although he had the honour to represent a district of burghs, he had felt it his duty to inquire into this matter, and he had come to an opposite conclusion with regard to this Bill. No doubt it was their duty to attend to the feelings and wishes of their constituents; but it was also their duty to exercise a discretion, to act on their own opinions, and to judge whether really and truly this law was, in general, beneficial to the community. And his hon. Friends, who represented urban constituencies, should not forget that the re- 422 cent adoption of the lodger franchise required that they should take into their careful consideration the interests of the lodger as well as those of the landlord. When, therefore, his hon. Friend (Mr. Carnegie) asked him (Mr. Craufurd) to join in the Bill, he replied that he could not see any distinction between urban hypothec and rural hypothec, and that he should decline to put his name on the Bill, unless it was based on the broad principle that what was good for the country was good for the town; and his hon. Friend at once acknowledged that it was impossible to depart from that broad principle. If they were to go into the question of urban hypothec, the hardships and grievances which could be shown to arise from the law would startle the House. The House had already assented to the principle that urban hypothec was not to be continued in England; for only last night the House unanimously assented to the second reading of a Bill—the Lodgers' Protection Bill—which, pro tanto, repealed the law of hypothec in towns. As the law relating to lodgers stood at present, a man might go into unfurnished lodgings, and furnish them himself, and though he might pay his rent regularly to his landlord, if the landlord failed to pay his, the owner of the property might come down on the whole of the lodger's furniture, and sweep away the very bed from under him. Such a monstrous state of things surely ought not to be allowed to continue. They ought, in this House, to consider the interests of those of their constituents who were owners of property. They had been accused of legislating too much for landlords, and he asked, if a Parliament elected by Household Suffrage would maintain a law, which gave an undue advantage to landlords who could protect themselves by requiring security before letting their property to tenants? He had great pleasure in supporting the Bill on its broad principle, and hoped the House would receive from Her Majesty's Government a clear and distinct indication of the course they were going to pursue, and that they would give their hearty support to this measure, which he considered the interests of the community at large demanded that they should give.
§ MR. BAILLIE COCHRANE
opposed the Bill, on the ground that it was avowedly part of a series of measures 423 which were to be brought forward one after another in order to subvert the Constitution. The hon. and learned Gentleman who had just sat down said that if you wished to pull down an edifice, you were to do it by removing it brick by brick; and this Bill seemed to him one brick of our social edifice. This measure could not be taken by itself—it was the portent of further changes. The law of hypothec was not a landlord's question at all, it was purely a question of the interests of the tenants of Scotland. It made no difference to the landlord whether the law was maintained or abolished, as the landlord had only to make his own conditions in order to be perfectly secure; but if the law was abolished, it would inflict a serious injury upon the class of small tenants.
§ MR. M'COMBIE
said, he had much pleasure in supporting the Bill of his hon. Friend (Mr. Carnegie). The tenant-farmers of Scotland were deeply indebted to him. The Bill vitally affected the interests of his constituents, the tenant-farmers of Scotland. The hypothec law was one of those classes of laws that had been kept up by the proprietors at the expense of the tenants. The law of hypothec affected every tenant-farmer, whether large or small. It created a fictitious value on land, and allowed the proprietor to accept tenants with little or no capital. Such persons, instead of farming the land, actually scourged it, and in a few years handed it over in an exhausted state to their landlord, who again re-let it to another tenant, very likely of the same description. There was not the half of the capital invested in land in Scotland that ought to be; and the land was not yielding above two-thirds of what it was able to produce. Therefore, he maintained that this was not altogether a tenant-farmer's question, but rather one of a national character. The large farmers had been accused that they wished to turn out the small tenants for the purpose of adding to their own holdings. He (Mr. M'Combie) most emphatically denied that such was the case. Many of the holdings in Aberdeenshire were of land of such inferior quality that they would never pay a large farmer—he would not have them if he could get them for nothing. They were told that it would ruin the poor tenants if the law of hypothec was abolished. Depend upon it, it was a 424 law to keep a poor man always poor, and did not assist the farmer of fair means in getting rich. Again, who were the highest bidders for farms when they were advertised? With few exceptions, they were men with little capital, and sometimes men with no capital. The effect of the abolition of the law of hypothec would be that landlords would only let their farms to tenants who had capital to manage them. Who, then, were the parties that were against the abolition of the law of hypothec? It was not the large farmers; it was not the small farmers generally in Aberdeenshire; it was not the manure merchant; it was not the general merchant; it was not the labouring classes; it was not the tradesmen. No; it was solely those who profited by it—the proprietors and their factors. If he thought the abolition of the law would harm the poor man, he should be the last to vote for it.
§ MR. ORR-EWING
said, that if this had been only a question between landlord and tenant, and that the law was maintained solely in the interests of the landlords, he should have supported this Bill; but he opposed it principally because he believed the law of hypothec operated, for the benefit of the working men in urban properties, and for the benefit of small tenants in the rural parishes. If the law were repealed as regarded urban properties, it would inflict great injury on the working men, who must have houses wherein to lay their heads. The hon. Member for Forfarshire (Mr. Carnegie) had told them that rents were collected in towns and cities by the month; but his (Mr. Ewing's) experience of the working classes of Scotland led him to believe that those who paid by the week or the month belonged to the lowest portion of the community: the general custom was to pay rent by the year or by the six months. The Act of 1867 would prevent a landlord from following the crops of his tenant, and since that Act the question had become one entirely of the capitalist against the poor man. He believed that no greater injury could be done to Scotland than by passing this Bill, for it would prevent the intelligent labourer or small farmer from raising himself from his position to a better. This, indeed, had been virtually admitted by the supporters of the Bill, for it had been said in the debate that no man who had not capital ought to have 425 a farm. That would be most unjust. Look at the case of Mr. Denholme, who gave evidence before the Committee, that, in 16 years he had raised himself from the position of a ploughman to that of a tenant-farmer paying £1,400 a-year rent, and who said that he would never have had a chance of rising to the position in which he was placed but for the law of hypothec. Nine-tenths of the farmers of Scotland had been originally labourers or overseers, or the sons of persons who had risen from such positions; and the House should not lightly change a law which had conferred so much benefit upon the country. In his own county there was not a farmer with whom he had conversed on this subject who was not perfectly satisfied with the law as it stood. It was not fit, at all events, that it should be left to a private Member to bring in a Bill of this character. Had the hon. Member the slightest chance of passing the measure, even if he succeeded in passing it through this House? Certainly not. But if it were passed through this House, under the authority of the Government, it might meet a more favourable reception at the hands of the other House. The Government should, if it were thought necessary, bring in a Bill to assimilate the law of the three kingdoms. In his opinion, the need for the amendment of the law of distress in England was greater than in Scotland, where manure not on the soil, farm implements, and things of that kind could not be seized. Why, then, should Scotland alone be selected for legislation? He hoped the Government would not support the Bill.
§ MR. DYCE NICOL
said, that he believed the consequences of this law were not only to deter capital from land, but to keep the occupiers poor, by inducing them to agree to conditions opposed to good cultivation and profitable farming, which would be acknowledged by all practical men to be preferable to high rents; and that the interests of landowners would be best protected by looking narrowly to the skill, capital, and character of their tenants, which the abolition of this law would compel them to do. On a considerable portion of his property fore-hand rents were paid—that is to say, the first half-year's rent was payable in May after sowing, and the last in November. This he found to be the case when he came into possession, 426 and on a recent renewal of leases was not objected to. They were all small tenants, who, as a class, were the most highly rented in Scotland, while recent statistics showed that four-fifths of the sequestrations are of tenants paying under £100 a-year—a sad commentary on the allegation that the law of hypothec enabled landlords to help the poor but industrious small tenant. Whether the Legislature were prepared at present to sanction the abolition of this law or not, he believed that concession to the reasonable remonstrances of the tenant-farmers on this subject could not long be delayed.
§ MR. G. B. GREGORY
thought that if this Bill were passed, they must soon, after deal with the law of distress as it applied to England. It was the same question mutato nomine. The subject of distress for rent throughout the whole United Kingdom was involved. No principle of law was better understood than that of distress for rent. Everybody who took land clearly understood that his crops would be distrainable; and, indeed, in respect to land, the relation between landlord and tenant was a quasi-partnership, in consequence of which the landlord had a lien for his rent upon the crops which were grown out of his land. In his opinion the law led to no practical hardship; indeed, he believed that the arrangement was for the benefit of the tenant. On large estates the rents were generally collected yearly or half-yearly, so that the tenant had the benefit of a long period in which to realize his produce, and the landlord knew he had good security for his forbearance; but any change that would lessen the security for the rent would lead to a collection of the rent quarterly, or even by anticipation. He trusted that the Government would oppose this Bill.
§ MR. ILLINGWORTH
said, he could not but view this law of hypothec as the remnant of a feudal system, and he could not think that landlords should have such extraordinary power as this law gave them. The law was said to favour the considerate treatment of tenants by landlords. If that were so, it was at the expense of ordinary creditors.
§ MR. FORDYCE
said, the hon. Member for Dumbartonshire (Mr. Orr-Ewing) objected to the Bill because, in his opinion, it would injuriously affect the interests of the smaller tenants. He (Mr. 427 Fordyce) represented what was par excellence the county of small tenants, and he was there to maintain that, as a rule, they were strongly in favour of the measure. The hon. Member adduced but one reason in support of this assertion of the injurious tendency of the abolition of the law of hypothec on the small tenants—namely, that it would be more difficult for them to get farms under the new system. He (Mr. Fordyce) was unable to see the force of this argument. Surely the credit of the tenant would be increased, and he would more readily obtain advances from banks and friends, when it was known that, in the event of any misfortune, the lion's share of his effects would not be carried off by the landlord; and, certainly, the tenantry were as good, if not better, judges of what was for their interest than the hon. Member. There was one argument against hypothec to which allusion had not been made, but which seemed to him to be a strong one. It put a landlord out of sympathy with his tenants. It withdrew any inducement to consult their views and feelings—at all events, put it in the power of a landlord of a mercenary spirit to rack-rent and oppress his tenants in every way. A landlord of a mercenary spirit might go over his farms, and find, every blade of grass and every turnip destroyed by game; but so long as he was aware that if the worst came to the worst, and the tenant became bankrupt, he (the landlord) would receive full payment, it did not affect him in the least. It was a matter of perfect indifference what became of the tenant. The competition stimulated by the law of hypothec and the existing monopoly of land secured him an abundance of candidates for the farm. Abolish this law, and the state of things would be very different. A large farm would be like a large warehouse—of no use to the owner unless he consulted the views and feelings of the tenantry. He hoped the Lord Advocate would atone for the Game Bill he had introduced by supporting this Bill.
§ MR. STAPLETON
said, that the first question he was asked upon his canvass was, whether he would vote against the Scotch law of hypothec; and after inquiry he had come to the conclusion that so far as the Scotch law of hypothec differed from the law of distress in England and Ireland it was bad and required reform; but so far as it was consonant with 428 the general law of the Empire no case had been made out against it. Now, the difference consisted in this—that the Scotch landlord could sequestrate the tenant's goods for rent accruing, and therefore not yet due at the time of the sequestration, which an English landlord could not do. He hoped therefore that in Committee the Bill would be altered, so as to put the law in the two countries upon the same footing. As for the argument that undue competition would be prevented, and farmers possessing capital would be encouraged by the Bill to apply their capital to the land, he did not see the policy of preventing B from making a bargain with A, in order that C might make a better bargain with A. As it stood, the Bill would increase the monopoly, not in the ownership, but in the occupation of land. He did not wish to shut out well-educated labourers or shepherds from rising to be tenant-farmers. Such a gradual rise was much better than the sudden fortunes made of late years in trade. The House, therefore, should hesitate before adopting the whole of the Bill. It had been said that more food would be produced, if the poor farmers had to give way to rich ones. He thought that a dangerous argument. It might land them in Communism. Louis Blanc had proved that the wages of workmen might be raised by diminishing the number of tradesmen employed in the distribution of their work. He thought they would do better to avoid these general considerations of remote effects, and confine themselves to the way in which that law affected those immediately concerned. The question was this—was there any reason for giving the landlord a preference over other creditors? The answer was obvious—that the landlord could not stop his credit at once, as other creditors might. This was so, even where the land was let from year to year, and a fortiori when it was let on lease. Now, in Scotland leases were the rule; not, as in England, the exception. It had been said that the landlord ought not to lease his land to one who was not a good man; but there were cases—as where a tenant died, and he was succeeded by his son—where that argument could not be applied; and he thought it did not amount to much. One of the greatest advances that could be made would consist in the 429 assimilation of the law in the different parts of the kingdom, not only in this case but wherever it was possible.
§ MR. PELL
thought that the Scotch system had produced one evil—namely, to encourage men deficient in capital to come into the market to compete against those who were in better circumstances. That was no reason why there should be a special law for one part of the kingdom, and he thought it would be well if something like the principle which regulated the relation between landlord and tenant in England should be applied to Scotland. He should vote against the Bill, because he did not believe, if it were applied to England, it would in any way benefit the tenants.
§ MR. W. H. MAXWELL
said, he should not have risen to take up the time of the House had it not been for some remarks made by two hon. Friends. The practice in Scotland agreed very much with what was represented to be the practice in England, and he believed the practical results were similar. Having had to do with the management of land in Scotland for 30 years, and knowing what was going on in the district of country which he represented, he believed that this law, of which so much had been said, was very little known—practically, at least, in that part of Scotland. If he was not mistaken there were Returns on the Table of the House which showed that, although the landlord had the power in question, yet in reality he very seldom required to avail himself of it, and that the great complaint which had been made of injury to the agriculture of Scotland from the operation of this law was very much exaggerated. His hon. and learned Friend the Member for Ayr (Mr. Craufurd) and the hon. Member for Aberdeenshire (Mr. M'Combie) had referred to the small tenants of the district with which they were connected. He could not say anything about the state of the small tenants in Aberdeenshire; but he knew a good many small tenants in Ayrshire, and he did not hesitate to say that there was no class of men who deserved more encouragement—a class who, having saved a few pounds, took a farm, and not only succeeded themselves, but put the family they left behind them in a position to raise themselves, and do credit to the district with which they were connected. He thought it 430 would be a great pity if Englishmen were to go away with the idea that the small farmers of Scotland were not doing good to their country at the same time that they are benefiting themselves. He did not believe that landlords were much interested in the continuance of the present law; but he did think that small tenants were, and that such persons would suffer by a change. He should be glad if the agitation that existed to a small extent in Scotland was put an end to, and some measure were introduced by the Lord Advocate which would evince due consideration not merely for the interests which were connected with the land, but also for other interests, which were connected in much the same way as landlords and tenants. He wished to see some measure introduced which would embrace not only Scotland, but the kingdom at large. Holding these views, he could not support the Bill as it stood, and therefore he could not vote for the second reading.
§ THE LORD ADVOCATE
My hon. Friend the Member for Dumbartonshire (Mr. Orr-Ewing) has said that, in his opinion, no greater injury could be done to Scotland than by the passing of this Bill. I think my hon. Friend must admit on consideration that this is rather exaggerated language, and that Scotland is not in such a happy state of security against evils, that the greatest evil that could be done to her would be to abolish the law of hypothec. My own opinion is against the law of hypothec, and has ever been against it, since I considered the subject as one of the Commissioners appointed to inquire into the matter and report upon it. I regard it as untenable, for I cannot consider it otherwise than as an exceptional and highly artificial law. The hypothec is a privilege in the strictest sense of the term, and a privilege of landlords. It is a privilege of landlords, because it is a peculiar law in their favour, which does not exist in favour of others. The question really is, whether the relation, between landlord and tenant is such as to require and to justify the continuance of this exceptional and artificial law in favour of landlords. In order to take an intelligent view of this question, it will be necessary to consider carefully what is the nature of the relations between landlord and tenant. I must observe, before referring further to that re- 431 lation, that the law with which the Bill professes to deal makes no distinction between rural subjects and urban subjects—the law is the same with regard to both. What, then, is the relation of landlord and tenant, that this peculiar law should exist in the landlord's favour? The hon. Baronet the Member for Peeblesshire (Sir Graham Montgomery) took exception to the language of the Bill, in characterizing the landlord's claim for rent as a personal debt—observing that the true character of the landlord's claim was a right to a share of the profit of the subject of the lease. Now, what is the meaning of such language in reference to cattle on a farm? Cattle are purchased and brought by the tenant upon the farm to graze there—perhaps they are not paid for—and they may not have been there a week or a day when they are subjected to the landlord's seizure. How can these cattle be the landlord's share of the produce of the farm? The same remark applies to urban subjects. Take the case of furniture which the tenant has purchased, and perhaps not paid for. Is that furniture part of the landlord's share of the produce of the house? So, also, in the case of a shop; this highly artificial law gives the landlord a claim over all others on the goods which the tenant has purchased, probably on credit, in order to carry on his business. Are these goods the landlord's share of the produce of the shop? The hon. Member for Sussex (Mr. G. B. Gregory) said that he thought the relation between landlord and tenant was a quasi partnership. What is the meaning of that? A tenant may hire a house and furnish it with furniture which is not paid for. Is there any partnership in that case? The same principle is applicable in all cases, and at present no distinction is made on account of difference of subject. According to the ancient practice of Scotland—I cannot speak with confidence with regard to England—the relation between landlord and tenant was not what it is now. The cultivator was hired by the landlord to cultivate the land, and was rewarded, not with money, but with a share of the produce. In modern times the relation rests upon a simple contract for the hiring of the land, which the proprietor has desired to turn to the best account. For this purpose the use of the land by the tenant has been made 432 conditional on a periodical money payment. Now, what is the nature of the landlord's claim for that periodical money payment? It is nothing else than a personal debt. The law never regarded, it otherwise—and that is its legal character. In order to carry on the business of farming, a man requires many other things besides land. He requires labour; he requires seed; he requires manures; he has to go into the market to buy all these things; and the hiring of the land is only one of the steps which are requisite to enable him to set to work in the business in which he is engaged. Now, why is the landlord to have a preference over all other creditors simply because he has a claim to the rent of land or a house? The hon. Member for Kirkcudbright (Mr. Maxwell) said that landlords very seldom use the privilege which they possess. I will venture to say that landlords use their privilege on every occasion when it is their interest to do so. I have not myself heard of any landlord who, in case of failure on the part of his tenant, has agreed to allow the whole of the property to be divided equally among the creditors. The landlord's privilege comes into operation only when the tenant becomes bankrupt, and if a tenant be unable to pay 20s. in the pound, the landlord exercises his privilege, and probably gets paid in full, while the other creditors can only obtain perhaps a few shillings in the pound. It is said that it is a great advantage to a large number of small tenants that this security for landlords should exist. It may be a great advantage to landlords, but I have never been able to see how the existence of this privilege can be an advantage to tenants, because the effect of giving a preferential security of the landlord must be to diminish the tenant's credit with others. To give the landlord a preferential claim is to prejudice the credit of the tenant with everyone else. What can be the advantage of the present law to the tenant if he is prejudiced in the eyes of the butcher, and the tailor, and all other persons with whom he has occasion to deal? Such is the effect of that exceptional and artificial law, which we call the law of hypothec, and which it is proposed by this Bill to abolish. I must not omit to notice an argument against change which has been constantly urged in the debates on the 433 question. It has been said that this is a small tenant's question, and that that highly estimable class of persons would be injured by the abolition of the present law. My hon. Friend the Member for Kirkcudbright (Mr. Maxwell) characterized that class of tenants as an honest, frugal, intelligent, and industrious body of men. If that be a correct description of them—as I have no doubt it is—and if they pay, as they proverbially do, the highest rents, I cannot believe that the landlords of Scotland would be unwilling still to have them as tenants, even if the law of hypothec had been abolished. Frugality is one of their attributes. They do not require to live in the same manner as a higher class of farmers, and hence they can afford to pay a higher rent; and experience has shown that on the whole there is no safer class of tenants than the small tenants of Scotland. I have no doubt that they merit what has been said in their favour; and that being the case, the landlords of Scotland will, for their own sake, continue them in their occupations. Moreover, we must not put altogether aside the law of kindness, which must lead to a desire to encourage a class of men who are meritorious as well as safe. But suppose they were not such men as they are, what should we think of an announcement made by the landlords to this effect—"We cannot trust these men. Our opinion of their trustworthiness is not such that we should feel safe in leaving farms in their hands, and we would rather have a lower rent from men of capital, unless we can have the higher farm-men without capital, combined with a preferential security, which will save us from the risk of loss?" It is said, again, that the landlord would be compelled, if this law were abolished, to stipulate for fore-hand rents. Well, if it is necessary for the landlord's security that the rent be paid beforehand, by all means let it be so. Security is not a thing to be had without paying for it. People who run risks and give credit must be paid for that credit. It is for landlords, just like other people, to judge whether or not they can safely deal with a particular individual without security or prepayment, but by all means let them exercise their own judgment. They have the selection of their tenants, and other people who deal with the man whom the 434 landlord has selected to be tenant are entitled to suppose that the landlord has deemed him worthy of trust. How does the law stand? The tenant becomes bankrupt, and the landlord who put him in the farm is by the operation of the hypothec paid in full, while other creditors who trusted him have only a dividend. It is said the law is known, and nobody can complain of its operation because it is known, and it is said further that, because security over property is quite familiar to the law, therefore there is nothing particular or exceptional in this matter. Now, the law of security ought to be the same to all—and there ought to be no particular or exceptional law in favour of landlords. The law of security is an important chapter in the law of every country. It stands upon considerations of policy, and general convenience, and does not permit a trader to give a security over his stock-in-trade, or indeed anyone to give security over personal property retained in his own hand. The hypothec is an exception to the law which governs securities, and I think it is an impolitic exception, for it pledges a trader's stock to one favoured creditor, contrary to all the considerations on which the law of security rests. As for the statement that the law is known, that is good for nothing. If it is, you might with out hardship, or giving just cause of complaint, confer a security in favour of any creditor whatever, and, because the law was known, say there was no hardship in it. I have never been able to see any reason why a man who lets a house for six months in return for £20, £30, or £40, or whatever the sum may be, should have a preference over the creditor who supplies the furniture of the house, or the goods necessary for the sustenance of the family living therein. Why should the landlord get everything, while the man who supplies the clothes and food should go without a shilling? A house is not more necessary than the furniture in it; but if you suppose a house is actually more necessary than the furniture which is contained in it, it is certainly not more necessary than the food which is supplied, and those who supply the food might have to go without a shilling, while the man who lets the house gets everything. It is said that it is a great boon for a poor man to 435 command credit with those who let houses, but it would be also of great advantage to have credit with those who supply the necessaries of life. I see great injustice in the law which this Bill proposes to abolish, and therefore I am in favour of its being read a second time. I have been asked to state what the Government intend to do with respect to the measure. I have no difficulty in answering that question by saying that the Government will support the Bill. But we are here dealing with the law of hypothec in Scotland, and in reference to Scotland only—though it may be, as has been suggested, that the considerations and principles upon which this Bill rests may have force with respect to the law of distress in England. That is a question, however, which must be considered when it arises. If the same considerations and arguments do apply to the law of distress in England as to the law of hypothec in Scotland, I should myself be in favour of its repeal. This, however, is not the time to raise that question. I know that the relation between landlord and tenant in England is different, and there may very well be considerations arising out of that difference which have a material bearing on this subject. The contract is of a more commercial character in Scotland than in England. The custom in Scotland is that farms are let as leases fall out, according to their ascertained value at the time, and there is never any hesitation upon the part of the best landlords in Scotland to raising rents in accordance with that ascertained increased value. The thing may be different in England, and there may be reasons for retaining the law of distress which will not support the law of hypothec, which this Bill proposes to abolish. I should desire now to deal with the Scotch law of hypothec on its own merits or demerits, and not to be carried away by the references which have been made to the English law of distress, which is not at present the subject of complaint and may stand on a different footing; though, for myself, I do not shrink from saying that I should be prepared to carry to their legitimate result, whatever that may be, the principles on which my opposition to the law of hypothec are based.
§ MR. GORDON
said, he must express his surprise at the announcement which 436 had just been made, that the Government intended to support this Bill. They had not heard that there was any complaints of the law of distress in England; on the contrary, those hon. Members who had addressed the House that day had intimated that there were no complaints against the law of distress; yet they heard from the Lord Advocate that the Government were ready to apply, or would be ready to apply, the same system to England in the case of the law of distress as they were about to do in supporting the abolition of the law of hypothec in Scotland. He must say their mode of dealing with this Bill was very inconsistent with the course they had taken with reference to the game question. The game question had caused more disturbance in Scotland than in England; but when in a former Session the hon. Member for Wick (Mr. Loch) brought in his Bills, the hon. and learned Lord Advocate opposed them—this year he said he would not oppose it, though he would oppose some of its provisions; and then he brought in a Bill of his own, not merely for the purpose of regulating the law with regard to game in Scotland, but in reference to the law of England as well, on the ground that in a matter of that kind there should be as much as possible an assimilation of the laws of the two countries. But what consistency was there in the course shadowed forth to-day? Here was a Bill to abolish the law of hypothec; and they were told that that law was substantially the same as the law of distress in England, and that in some future Session, provided the law of hypothec in Scotland was abolished, the Government might be prepared to apply the same principles to the law of distress in England. Why not adopt the same course as was done in the case of the Game Bill? When they were about to make changes of this kind, it was better to attempt at once to assimilate the laws of the two countries; and if that could not be done by making the law as it existed in Scotland exactly the same as that which existed in England let it be referred to the consideration of a Committee what should be done. If the subject was one worthy of consideration at all, the Government ought, upon their own responsibility, to bring in a Bill dealing with it; and then let them take up the question and deal with it in reference to the whole country, 437 and not as regards Scotland alone. In reference to the law itself, it must be kept in view that the law of hypothec was not—as some hon. Gentlemen seemed to suppose—a privilege given to the landlord and created by statute. It was the result of common law. It had grown out of the relations of landlord and tenant from the earliest period. It was the law of the Romans, and the law of Rome was the foundation of our Scotch law. It had not been carried out as the result of a statute law, and only one statute had been passed in reference to it, and that was in 1867, when an Act was passed for the purpose of modifying the law to the benefit of the tenant. The hon. Gentleman who moved the second reading of the Bill said he wished to place all creditors upon the same footing. But was that a principle which they could carry out? There might be, by the operation of the common law, a preference created in the case of one creditor from another, as, for instance, in the case of mortgages and lien upon property. The common law allowed this. Were they prepared to do away with it? He ventured to think there was nothing positively unjust in the recognition of a right of hypothec in the landlord as against the goods of the tenant. The law was known to everybody. No person who dealt with a tenant did not know that his goods were liable to be taken under the law of hypothec in payment of rent. With regard to the policy of the law of hypothec in Scotland, tenants generally held under leases of 19 years' duration, and therefore landlords stood in relation to them in a different position to butchers and other trades-people; they had the power of stopping the supplies at any moment, whereas the landlord could not terminate the tenancy in a like summary manner, and consequently the law was fair in itself. Then the landlord in Scotland was liable to the county rates, except one-half of the poor rates, amounting to 8½ per cent. for which he only ranked as an ordinary creditor. Scotland stood in a very peculiar position as regarded this question, and if any protection was to be given to landlords, he said the landlords of Scotland were better entitled to that protection than the landlords of England. What would be the result if you do away with this law? The landlord would be obliged whenever he suspected his 438 tenant to be in a bad position to take out a sequestration in bankruptcy, and so bring matters to a point at once; whereas, if he had some security, he would act towards the tenant in a more indulgent manner; and in many cases the tenant recovered himself. He must say he thought it would be productive of great harshness to the tenant himself if they were to do away with this system. As regarded other parties who might have dealings with the tenant, they could do as they liked. They might stop their dealings whenever they liked. Therefore, there was no hardship so far as they were concerned. He said then that this was more a tenant's question than a landlord's, because the latter could make his own terms and secure his rent by enforcing payment quarterly, instead of allowing it to remain over, perhaps, for years. He thought the abolition would be equally injurious to the urban population—especially in large towns—as in the agricultural districts. He (Mr. Gordon) should regret exceedingly that men of skill, industry, and steady conduct should be prevented from rising in the world—and that he feared would be the result of this Bill. Let the House remark how different was the encouragement given to the small tenants in Scotland by this Bill than that given to the small tenants of Ireland last year. He should most certainly vote against the Bill, and he thought English Members would be inclined to reconsider the position now that they had been distinctly told that the same law might be meted out to them in some future Session as they now proposed to measure out to Scotland.
§ MR. ELLICE
said, he thought that after the speech of the Lord Advocate, which entered into a much more extensive field than the law of hypothec in Scotland, it was necessary to say a few words. With regard to the law of hypothec, he would dismiss that altogether, merely stating his strong opinion that the law of all parts of this kingdom, whether in England or in Scotland, ought to be, as regards practical effect, identical, although, perhaps, in different terms. A few years ago, when a great alteration of hypothec took place, he (Mr. Ellice) besought the Government to make the law identical with the law of distress in England. He foresaw then that if the law of hypothec was ever so little different 439 from the law in England, it would lead to further agitation on the subject, and he had proved in the right. If the Scotch law had then been assimilated to the law of England, they would not have been subjected to the agitation which had since been got up in Scotland. He should hail with delight any measure properly brought in, as it ought to be, by a responsible Government. But, as he had said, the Lord Advocate had entered into a much larger field of controversy than that of the law of hypothec. He said that the Bill for abolishing that law was supported by the Government because they thought it an unjustifiable law, as giving the landlord a preferential claim; and he said that the law of distress upon furniture in towns was as unjustifiable as the law of hypothec, and he went on to say that the same principle that was applied to Scotland ought to be applied to England in the case of the law of distress. This was the first time they had heard that. But the statement came from the Treasury Bench; it was not from an individual Member on the other side, or below the Gangway; but it came with all the authority and weight which must be attached to a declaration coming from the Cabinet of the country. He said, then, that the Lord Advocate had introduced new matter which neither that House nor the country had had time to consider. He should like to know what the proprietors of house property in London, in Dundee, in Glasgow, in Edinburgh, and Manchester, would say when they heard this? Before they came to a decision upon a matter of such importance, they ought to have the opinion of the country expressed; but if they passed the second reading of this Bill, they at once affirmed the principle and declaration of the Lord Advocate. They, in fact, committed themselves to the repeal of the law of distress in England, as well as the abolition of the law of hypothec in Scotland. He appealed to the Government to do the same thing now as they had formerly done with regard to game—they did not actually oppose the Bill of the hon. Member for Wick (Mr. Loch) though they supported it by their speeches, and withheld their votes—now they supported the Bill of the hon. Member for Forfar, and have brought in a Bill of their own. Let them act in the same way now. Let them advise the hon. Member to with- 440 draw this Bill, and then let them bring in a Bill of their own dealing with this law of hypothec and law of distraint in a reasonable and just manner; let the country have an opportunity of seeing that Bill, and this House of considering it. It would thus come before them with all the responsibility of Government, and would have some chance of passing; while they know that such a Bill as that at present before them would have no chance of passing. In order to give the Government the opportunity of considering what course they intend to adopt on the subject, he would move the adjournment of the debate.
§ Moved, "That the Debate be now adjourned."—(Mr. Ellice.)
hoped the House would not agree to the adjournment of the debate. This Bill was only intended to apply to the land, and would not in any way apply to preference contracts, such as mortgages or liens. It would leave freedom of contract open as now. He thought the very antiquity of hypothec was a presumption in favour of its abolition. It had been argued that the abolition would be injurious to the small tenants; but he would remind the House that small tenants had signed Petitions in favour of its abolition as well as against it. He admitted the conduct of the Government had not been as consistent with reference to this question as with regard to the game laws; but it was impossible for the Government now to undertake questions where there were no admitted grievances, before they dealt with those that required immediate attention.
§ MR. LEEMAN
said, that if this had been a measure confined in its influence to Scotland, the strong probability was that he should not have deemed it necessary to trouble himself or the House very much about it; but he could not listen to the speech of the learned Lord Advocate without feeling, as an Englishman, some surprise. He understood the Lord Advocate to state, that if the principle of legislation now proposed in regard to Scotland were adopted, there could be no reason why the Government should not apply it to the English law of distress, and abolish that also. Now, he altogether objected to this side-wind mode of legislating for England, however convenient it might be to Scot- 441 tish Members. If such was the intention of the Government, they should have given some intimation to the country in the Queen's Speech that they intended to make so radical a change in the institutions of the country, as they now indicated. He protested against the Government dealing in the manner suggested with so large a question as this. A few days ago they had themselves formed a precedent which they might have followed in this case, for they advised a private Member to withdraw his Bill, and undertook to introduce a Bill of their own. If the Government were prepared to support the application to England of the principle embodied in this Bill for Scotland, in all fairness they ought to have told the country what their intentions were. Such a principle, however, ought not to receive Parliamentary sanction on the basis of a Bill introduced by private Members having no official responsibility. According to the Government, it was equally proper to abolish the landlord's right of distress in England and the landlord's right of hypothec in Scotland; and, once pass this Bill, nothing could be easier—it was only substituting "distress for rent" for "hypothec." He thought English Members ought to see to this. Referring to an illustration that had been used, he could not see that there was any analogy between the landlord and any ordinary tradesman. The landlord generally parted with the possession of his land for a considerable period, and in the expectation, both on his part and on that of the tenant, that a permanent relationship was being established between them, and not a mere hiring of a carriage or any other chattel, such as was indicated by the Lord Advocate. Again, a man who sold cattle to stock a farm was in a very different position from the landlord, because the cattle dealer would require to have the money paid down before parting with his cattle, while the landlord could not ask for his rent until a certain term had expired. In like manner, the butcher and the baker might ask to be paid beforehand for what they supplied. The ordinary tradesman could close his transactions with his customers, or vary them at pleasure; but the landlord was bound to at least a year or to a term of years, and to the conditions of his letting, and had no control over his 442 property until its termination. Except in counties in which mortgages were registered a mortgage might be kept secret, and no one need know of its existence. The hon. Member for Berwick-on-Tweed had intimated that in Committee he would move to assimilate the law of Scotland to that of England, and the Lord Advocate had stated his views in favour of the abolition of distress in England; and therefore the House was discussing the Bill as if its principle was hereafter to be applied to England, and as if it were proposed to alter the law of this country with regard to distress for rent. A greater curse than the abolition of the law of distress you could not inflict upon thousands of small tenant-farmers in Yorkshire; for if it were abolished, the landlords would invariably require the payment of rent in advance; and the tenants could not pay in advance, because they looked to the produce of their crops to enable them to pay it at all. Of course there were instances in which the competency of tenants would be so well known that landlords would not require the rent in advance; but such instances were comparatively few in number. It was all very well to talk of kindness and sympathy; but landlords were practical men, and expected to have some security before parting with the possession of their land for a lengthened period. If it were proposed to alter the law of England, the country ought to have an opportunity of expressing an opinion upon the subject. The Bill might offer a Scotch mode of getting in the thin end of the wedge, in an attack on the rights of property; but it was a mode which was unworthy of the Government, and he trusted the Bill would be thrown out by a large majority.
§ COLONEL CORBETT
said, he should oppose the Bill on the same ground as that taken by the hon. Member for York (Mr. Leeman). He objected to the case of England being prejudged in this manner. The question had assumed a new aspect since it became an English one as well as a Scotch one.
§ MR. M'LAREN
said, this question had been discussed as if it applied to the occupancy of land alone; but he wished to say one word about low-rented houses. In the town which he had the honour to represent there were 15,000 houses of various kinds under £12 rent. 443 Now, he considered the passing of this Bill, without any right of hypothec, would be an injury—not to the owners of the houses, whom he did not care about, but to the tenants themselves. Abolish the law of hypothec, and there was no kind of security. If the landlord asked a poor man to give him security, the poor man could not do it. If he asked him to pay in advance he could not do it, because he had not got the money. If they passed this Bill it would cause a degree of distress and annoyance—he spoke from personal knowledge—which he thought few hon. Members had any conception of. Therefore the course he intended to take was this—unless the Bill should contain a clause after it came out of Committee giving the right of hypothec for six months, he should vote against the third reading; but in the hope that some such clause might be inserted in Committee, he would vote for the second reading.
§ LORD JOHN MANNERS
said, in the face of the extraordinary statement of the Lord Advocate, he was not surprised that the hon. Member for St. Andrews (Mr. Ellice) should have moved the adjournment of the debate. The Lord Advocate had intimated, on the part of the Government, his willingness to apply the same principle as that contained in the Bill to the law of distress in England. [The LORD ADVOCATE: I intimated no intention on the subject.] Then he (Lord John Manners), in common, he believed, with a large portion of that House, had misunderstood or misapprehended the expressions that were uttered by the Lord Advocate. The feeling manifested against this Bill and its principle induced him to think that it ought to be rejected on its second reading. In order that the House might better be able to come to a decision on its merits, he hoped that the hon. Member for St. Andrews would withdraw his Motion for the adjournment of the debate, and allow the Bill to be thrown out on Division.
MR. M. T. BASS
said, he heartily supported the principle of the Bill, believing that it would benefit both tenants and landlords in Scotland, and he hoped to see the day when the principle of it would be applied to England.
§ MR. ELLICE
intimated his intention to press the Motion for adjournment, because he believed it right, after the declaration which had been made from the 444 Government Bench, that the Ministry should have an opportunity of re-considering their policy on the question.
§ MR. COLLINS
supported the Motion for adjournment. He said this was a tenant's question, and if the principle were applied to England, Yorkshire Members would certainly seek to exempt that county from its operation.
§ THE LORD ADVOCATE
I think it is my duty to offer a word of explanation, because I wish to set myself and the House right with regard to what I really did say. Owing to some fault, no doubt of my own, my meaning has been misapprehended. When I came down to the House to-day—certainly intending to support this Bill—I had not the slightest intention of making any reference to England, or of saying one word regarding the law of distress in England. I was not aware, and I do not know, that the law of distress in England is a subject of complaint such as the law of hypothec in Scotland certainly has been. I am aware, that whatever may be said of the legal analogy between the relation of the landlord and tenant in England, and the corresponding relation in Scotland, there are distinctions of a very important character I was led—and perhaps I ought not to have been led—to make mention of England in connection with this, because of the challenge which was very pointedly addressed to me by the hon. Baronet the Member for Peeblesshire (Sir Graham Montgomery), who desired to know whether it was the intention of the Government not only to support this Bill, which was confined to Scotland, but also to extend the same principle to England, and introduce a measure to abolish the law of distress. I said the support which was given to this Bill was a support given to it as a Scotch Bill, and as dealing with Scotch law; but I had no authority to say, and no intention of saying, and, indeed, did not say anything of the kind which has been attributed to me. On the contrary, I repeat I was not aware, and am not aware now, that the law of distress has been the subject of complaint at all in England; but I venture to say this—speaking for myself, and in reference to my own argument against the law of hypothec—that, if the same considerations were urged against the law of distress in England as have been and are 445 urged against the law of hypothec in Scotland, and there were no other considerations to alter the case, then, I for one, would be prepared to give effect to the same considerations in England: but on the part of the Government I express no opinion in reference to the law of distress in England, and no intention on the part of the Government of moving in the matter.
§ MR. CARNEGIE
appealed to the hon. Gentleman who had moved the adjournment of the debate (Mr. Ellice) to withdraw that Motion, and allow the Bill to be decided upon its own merits.
§ Motion made, and Question, "That the Debate be now adjourned,"—(Mr. Ellice,)—put, and negatived.
§ Question put, "That the word 'now' stand part of the Question."
§ The House divided:—Ayes 105; Noes 186: Majority 81.
§ Words added.
§ Main Question, as amended, put and agreed to.
§ Bill put off for six months.447
|Adair, H. E.||Edwardes, hon. Col. W.|
|Adam, W. P.||Eykyn, R.|
|Akroyd, E.||Fitzmaurice, Lord E.|
|Anderson, G.||Fletcher, I.|
|Anstruther, Sir R.||Fordyce, W. D.|
|Antrobus, Sir E.||Forster, C.|
|Armitstead, G.||Gavin, Major|
|Baines, E.||Gladstone, W. H.|
|Baker, R. B. W.||Glyn, hon. G. G.|
|Bass, A.||Gourley, E. T.|
|Bass, M. T.||Graham, W.|
|Baxter, W. E.||Hardeastle, J. A.|
|Bazley, Sir T.||Hibbert, J. T.|
|Beaumont, W. B.||Hodgkinson, G.|
|Bowmont, Marquess of||Hughes, T.|
|Bowring, E. A.||Illingworth, A.|
|Bright, J. (Manchester)||Jardine, R.|
|Brinckman, Captain||Johnston, A.|
|Brown, A. H.||Kinnaird, hon. A. F.|
|Bruce, Lord C.||Lambert, N. G.|
|Bruce, rt. hon. H. A.||Lancaster, J.|
|Buckley, N.||Lawson, Sir W.|
|Campbell, H.||Leatham, E. A.|
|Candlish, J.||Lewis, J. D.|
|Carter, Mr. Alderman||Loch, G.|
|Cartwright, W. C.||Lush, Dr.|
|Colman, J. J.||Lusk, A.|
|Crawford, R. W.||M'Combie, W.|
|Dalglish, R.||M'Laren, D.|
|Davie, Sir H. R. F.||Merry, J.|
|Davison, rt. hon. J. R.||Mitchell, T. A.|
|Dixon, G.||Monk, C. J.|
|Dodds, J.||Morgan, G. O.|
|Dodson, J. G.||Mundella, A. J.|
|Duff, M. E. G.||Muntz, P. H.|
|Dundas, F.||Nicol, J. D.|
|O'Conor, D. M.||Smith, E.|
|Parker, C. S.||Stevenson, J. C.|
|Philips, R. N.||Stone, W. H.|
|Pim, J.||Storks, rt. hn. Sir H. K.|
|Platt, J.||Sykes, Colonel W. H.|
|Playfair, L.||Taylor, P. A.|
|Plimsoll, S.||Trevelyan, G. O.|
|Potter, T. B.||Vivian, Capt. hn. J. C. W.|
|Price, W. P.||Wedderburn, Sir D.|
|Rathbone, W.||White, J.|
|Robertson, D.||Whitwell, J.|
|Russell, A.||Wingfield, Sir C.|
|Rylands, P.||Young, A. W.|
|Salomons, Sir D.||Young, G.|
|Seely, C. (Lincoln)|
|Sheridan, H. B.||Carnegie, hon. C.|
|Simon, Mr. Serjeant||Craufurd, E. H. J.|
|Sinclair, Sir J. G. T.|
|Adderley, rt. hon. Sir C.||Dalrymple, C.|
|Allen, Major||Dalrymple, D.|
|Amphlett, R. P.||Dent, J. D.|
|Arbuthnot, Major G.||Dickson, Major A. G.|
|Archdall, Captain M.||Dimsdale, R.|
|Arkwright, A. P.||Dyke, W. H.|
|Arkwright, R.||Eastwick, E. B.|
|Assheton, R.||Eaton, H. W.|
|Baggallay, Sir R.||Edwards, H.|
|Bagge, Sir W.||Egerton, hon. A. F.|
|Bailey, Sir J. R.||Egerton, Sir P. G.|
|Barnett, H.||Egerton, hon. W.|
|Barrington, Viscount||Elcho, Lord|
|Barttelot, Colonel||Ellice, E.|
|Bateson, Sir T.||Elliot, G.|
|Bathurst, A. A.||Elphinstone, Sir J. D. H.|
|Beach, Sir M. H.||Erskine, Admiral J. E.|
|Beach, W. W. B.||Ewing, A. O.|
|Bective, Earl of||Ewing, H. E. C.|
|Bentinck, G. C.||Feilden, H. M.|
|Bentinck, G. W. P.||Fellowes, E.|
|Beresford, Lt.-Col. M.||Figgins, J.|
|Bingham, Lord||Finch, G. H.|
|Bouverie, rt. hon. E. P.||Finnie, W.|
|Brand, H. R.||Floyer, J.|
|Bright, R.||Forester, rt. hon. Gen.|
|Brise, Colonel R.||Fowler, R. N.|
|Bristowe, S. B.||Garlies, Lord|
|Broadley, W. H. H.||Goldney, G.|
|Bruce, Sir H. H.||Goldsmid, J.|
|Buckley, Sir E.||Gordon, E. S.|
|Cameron, D.||Gore, J. R. O.|
|Cartwright, F.||Gore, W. R. O.|
|Cave, right hon. S.||Grant, Colonel hon. J.|
|Cawley, C. E.||Graves, S. R.|
|Cecil, Lord E. H. B. G.||Gregory, G. B.|
|Chambers, M.||Gregory, W. H.|
|Child, Sir S.||Grieve, J. J.|
|Cholmeley, Sir M.||Grosvenor, Capt. R. W.|
|Clowes, S. W.||Grove, T. F.|
|Cochrane, A. D. W. R. B.||Guest, A. E.|
|Cole, Col. hon. H. A.||Gurney, rt. hon. R.|
|Colebrooke, Sir T. E.||Hamilton, I. T.|
|Collins, T.||Hamilton, J. G. C.|
|Corbett, Colonel||Hamilton, Lord C. J.|
|Corrance, F. S.||Hamilton, Lord G.|
|Cowper - Temple, right hon. W.||Hay, Sir J. C. D.|
|Herbert, rt. hon. Gen. Sir P.|
|Croft, Sir H. G. D.||Hervey, Lord A. H. C.|
|Cross, R. A.||Heygate, W. U.|
|Cubitt, G.||Hick, J.|
|Hodgson, W. N.||Round, J.|
|Holford, R. S.||Royston, Viscount|
|Holms, J.||Russell, H.|
|Holt, J. M.||Scourfield, J. H.|
|Hope, A. J. B. B.||Selwin - Ibbetson, Sir H. J.|
|Hoskyns, C. W.|
|Hunt, rt. hon. G. W.||Simonds, W. B.|
|Jones, J.||Smith, A.|
|Kingscote, Colonel||Smith, F. C.|
|Lacon, Sir E. H. K.||Smith, J. B.|
|Laird, J.||Smith, R.|
|Learmonth, A.||Smith, S. G.|
|Lewis, J. H.||Somerset, Lord H. R. C.|
|Liddell, hon. H. G.||Stacpoole, W.|
|Lindsay, Col. R. L.||Stanley, hon. W. O.|
|Lowther, J.||Stapleton, J.|
|M'Lagan, P.||Sturt, H. G.|
|Mahon, Viscount||Sturt, Lt. -Colonel N.|
|Maitland, Sir A. C. R. G.||Sykes, C.|
|Manners, rt. hn. Lord J.||Talbot, hon. Captain|
|Matheson, A.||Talbot, J. G.|
|Maxwell, W. H.||Taylor, rt. hon. Col.|
|Mellor, T. W.||Thynne, Lord H. F.|
|Meyrick, T.||Tollemache, hon. F. J.|
|Miller, J.||Tollemache, J.|
|Milles, hon. G. W.||Trelawny, Sir J. S.|
|Mills, C. H.||Turner, C.|
|Mitford, W. T.||Vivian, A. P.|
|Morgan, hon. Major||Walker, Major G. G.|
|Mowbray, rt. hon. J. R.||Walpole, hon. F.|
|Newport, Viscount||Waterhouse, S.|
|Noel, hon. G. J.||Wells, W.|
|North, Colonel||Wheelhouse, W. S. J.|
|Norwood, C. M.||Williams, Sir F. M.|
|Ogilvy, Sir J.||Williamson, Sir H.|
|Paget, R. H.||Wilmot, H.|
|Parker, Lt.-Col. W.||Winn, R.|
|Pease, J. W.||Woods, H.|
|Peek, H. W.||Wyndham, hon. P.|
|Pell, A.||Wynn, C. W. W.|
|Pemberton, E. L.|
|Phipps, C. P.||Montgomery, Sir G. G.|
|Powell, W.||Leeman, G.|
|Ridley, M. W.|