§ Order for Second Reading read.
§ SIR DAVID WEDDERBURN,
in moving that the Bill be now read the second time, said, the subject was one which had already on more than one occasion taxed powers of a higher order than he possessed, and this being so, he should endeavour to condense as much as possible what he had to say. He would first explain how it was that the Bill had come into his hands. It had for many years been under the able management of his hon. Friend Mr. Carnegie, the late Member for Forfarshire. When that hon. Gentleman had ceased to be a Member of that House, acting upon his advice, he (Sir David Wedder burn) asked the Lord Advocate whether there was any prospect of Government introducing a Bill this Session on the subject? His Lordships' sentiments on this topic were well- 1341 known, as he had expressed himself freely on it, both in that House and elsewhere, but he stated that he did not see any prospect of being able to introduce a Bill on the subject this Session. He (Sir David Wedderburn) therefore ventured to lay on the Table the same Bill that had already been twice considered during this Parliament, and which on one occasion had been carried on the second reading by a majority of 36. Although he had introduced it on the first day of the Session, he had been unable to obtain an earlier opportunity than the present for getting the second reading put first on the Orders of the Day. He was aware that a private Member had no chance of carrying such a Bill at that period if it were seriously opposed; but as no Notice of opposition had been given, he was not without hope that hon. Gentlemen opposite might consider this a desirable opportunity of settling a troublesome question that had proved very injurious to the interests of Scotland. In order to facilitate the passing of the Bill, although it appeared to him it applied to the urban part of the question as well as to agriculture, he should not be indisposed to assent to a proposal in Committee omitting urban hypothec from the Bill. If they limited the question in this way to agriculture, he thought it would be found that the farmers of Scotland were practically unanimous in favour of the abolition of the existing law. It was said that if the law of hypothec were abolished, the tenants would suffer, and that landlords would not be affected; but he thought that on such a question they might trust to the opinions of the tenant-farmers of Scotland, who were the best judges of their own interests. The result of recent political occurrences in Scotland had shown what those opinions were, and the hon. Member for Wigtownshire (Mr. Vans Agnew) could inform the House what were the views of the farmers on this subject in that part of the country. In Berwickshire, where a contest was now going on, the Liberal candidate at once inserted in his address a paragraph giving his support to the movement for the abolition of hypothec, while the Conservative, at first said he considered it merely a tenant's question, and that he should act in accordance with what he found to be the real wishes of the farmers, and after having made his can- 1342 vass, the same candidate had expressed his willingness to go in for the abolition of the law as applicable to agricultural subjects. He regretted that that election had not terminated, as whichever candidate were returned he (Sir David Wedderburn) should in that case have had one supporter the more. The Commissioners of Supply in Scotland, who were a Conservative body, had petitioned against the Bill, and in dealing with the objections they had urged, he probably could not do better than refer to the Petition of the Aberdeen Commissioners, as that county was proverbial in Scotland for its shrewdness and intelligence. They said in their Petition that they disapproved of the provisions of the Bill; that the law of hypothec was only one branch of the general law of retention in Scotland; and that it would be most unjust to do away with one part of a general law against one class of persons and retain it in force against the other classes. It seemed to him that there was a marked difference between retention, which was in the nature of a pledge, and the law of hypothec—a pledge being a case in which the property of a debtor was transferred into the custody of a creditor for security; while in the case of hypothec, it was a species of security which the debtor held himself, but which, under certain circumstances, could be seized by the landlord. It appeared, therefore, that as far as hypothec was concerned, the landlord was placed in an exceptional position; and this being so, he thought that the burden of proof should be on those who sought to retain the law. It was often said in Scotland that if they abolished hypothec they would have to adopt the English law of distress. He did not admit that, but at the same time he would show how marked was the distinction between the two laws. In the case of distress, the landlord must himself take direct action. Blackstone said the law allowed a man to be his own avenger, by enabling him to distrain upon cattle or other goods for the payment of rent. Under the old common law, a landlord could only take possession of certain goods belonging to his tenant as security; but by a subsequent Act of Parliament the right to sell had also been given. In the case of hypothec the whole produce of the farm was 1343 hypothecated, even in the possession of the tenant, for the rent of a single year, of which it was the crop, and there was no necessity for a landlord taking action on his own behalf, as he could retain the corn or other produce of the soil against all other creditors, and could recover against all who had intermeddled therewith as far as the current year's rent was concerned. This privilege not only belonged to the landlord, but also to any one to whom he might assign the rents. Previous to the Act of 1867, grain or other farm produce that had been sold in public market and paid for and taken possession of, was free from the landlord's right if sold in bulk, but if sold by the sample it was not free. The Act of 1867 had modified this state of things, and now any grain that had been bonâ fide sold at its true market value, paid for, and removed, was protected from the landlord's hypothec. The right to sequestrate failed also when proceedings were not taken within three months of the rent falling due. Still the property sequestrated remained at the risk of the tenant, and the remainder of the crop might be subsequently sequestrated even in the hands of a purchaser, if the amount did not liquidate the rent due. From this it appeared that hypothec was a much more extensive right than distress, and it seemed hardly fair to argue in favour of retaining hypothec on the ground that distress had not proved equally oppressive in England. It was stated in the Petition from Aberdeen that the effect of the abolition of hypo-thee on the country farmers would be more serious than on the tradesmen of the towns.In Scotland it was the practice to let farms on lease, and the tenant's first grain crop was not reaped until the following year. One half-year's rent was payable at Martinmas, and the other at Whitsunside. If the landlord's hypothec were abolished, he would, in self-defence, require the payment of two year's rent at the time of the bargain, and he might make it a condition, if the farm were let on a 19 years' lease, that if any rent was not paid before four months from Whitsuntide, the lease should be void. In this way the landlords might secure their rents; but the tenant would have to pay two years' full rent before he could reach a crop at all.The present Bill made no proposal as to interference with leases or the terms upon which the landlords and tenants might agree as to leases; but if the landlords insisted on pre-payment of their rents, 1344 they would still be in the same position as other persons who obtained pre-payment, and would have to give discount, or fix a lower figure than at present for their rents. There were two sides to every bargain, and the farmers of Scotland were perfectly competent to make their own bargains with their landlords, if they could do so on equal terms. They only objected to the landlords being placed at a great advantage with regard to the other creditors. If hypothec were abolished, the landlords would only be in the same position as the other creditors, except that they would be perfectly safe as regarded their principal, and would only risk their rent, which might be regarded as interest on the property let to the tenant. It could not be doubted that hypothec gave to the farmers increased credit with their landlords; but the effect of this had been very mischievous in cases where persons possessing neither skill nor capital had offered high rents, and successfully competed for the occupation of farms. If, however, a tenant's credit with his landlord were increased by the law of hypothec, it was diminished with the rest of the world. The creditor's uncertainty as to whether he would be the individual victim was one of the great objections to the law, and rendered it unpopular with all classes not directly interested in its retention. He found it stated in the Petition of the Commissioners of Supply of Mid Lothian—"that the extent of the law of hypothec was perfectly well known; that if any one suffered from it, giving credit without security or proper inquiry, he had himself only to blame." If these words were slightly altered it would be an argument in favour of the Bill, because if the landlord were in the same position as the other creditors, it might be equally said of him "that if he suffered from giving credit without security or proper inquiry, he had only himself to blame." In that House it had been asserted, and as a general rule with truth, that Scotch questions were left to the decision of Scotch Representatives. This, however, had not been the case in the matter of hypothec. The present Bill had been twice before the House. In 1869 the "Ayes" for the second reading were 129, and the "Noes" 93, and in the majority there were 27 Scotch Representatives, and in the minority 22. In 1345 1871 the "Ayes" upon the voting for the second reading on the same Bill were 107, and the "Noes" 188, and among the "Ayes" were 30 Scotch Representatives, and among the "Noes" 23, and of the latter number he had every hope that some would vote with him to-day for the second reading of the Bill. If the Bill were left to the decision of the Scotch Representatives to-day, he should not have any doubt as to its being carried. In conclusion, he begged to move the second reading of the Bill.
§ GENERAL SIR GEORGE BALFOUR,
on seconding the Motion, said, he did so because he thought the Bill was founded upon claims of justice, and in proof of that he referred to the assertion which had been made by the Lord Advocate, to whom the House looked as their guide and adviser in matters of Scotch law, to the effect that the law of hypothec was an evil law altogether, giving to one class an unfair and unjust preference over all others. He thought that the sooner the law of hypothec was abolished the more beneficial would it be for the agricultural interests of Scotland. He admitted that the principle of hypo-thee was adopted as the common law in many Asiatic States, and he regretted to say what had been its effects in Persia. There they had a country 20 times the area of Ireland, but with a smaller population than that country, and the agriculture of the country yearly on the decrease. Again, in that part of India, where he had resided for many years, the law was at one time in full operation in all its fierceness; but since the changes introduced there of late years by Lord Harris, who had gone there from this country, and by which the despotism of the law of hypothec was greatly lessened, there had been remarkable progress made in agriculture, tending to the improvement of the land which had been greatly depreciated by the operation of the system formerly in use. Here the abolition of hypothec would place the relations between tenants and landlords on a far more satisfactory footing than at present. There was no doubt that rentals in Scotland had increased, and that increase had not been caused by the law of hypothec, but he believed it had taken place in spite of that law, and if that law had not existed, the increase, he believed, would have been much greater. The rentals of all Scot- 1346 land had nearly doubled within the last sixty years, and the increase was still going on. Since 1855, when the first valuation took place under the Valuation Act, the increase of rental in Kincardineshire had amounted to 35 per cent, and it was now going on at the rate of about 2 per cent per annum, and the farmers might justly on this account claim some consideration from the landlords. At all events, the continuance of this law had been mainly supported by the landlords, and the last Bill which came down from the other House, and was passed into law, still retained much of the evil of the old practice of hypothec. It was not wise for the landlords to resist the universal cry raised by the farmers, who were desirous of having the law repealed, and it was very undesirable that the latter should be induced by a sense of injustice to band themselves into the sort of trade union, that had been resorted to by the working classes in order to obtain justice for themselves, by unseating hon. Members of that House who were opposed to its abolition. He admitted that to some extent the evils of the law of hypothec had been mitigated by the Act of 1867; but at the same time he pointed out, that that Act gave to the landlords a right they had not before, and which, he submitted, it was unwise to have conferred. Indeed, the fact of the landlord legislators having inserted such powers in a Bill, was open to serious comment. The law of hypothec came from very ancient times, when nothing was done for the improvement of the land; but the system of cultivation had now been entirely changed, and the farmer was required, not only as formerly, to devote his own labour to the cultivation of the soil, but to risk in his business an amount of capital equal to from seven to even ten times the rental of the land. This increased capital was required for manure, bricks, tiles, and various appliances which were not needed at the time hypothec was established; and the Act of 1867 gave to the landlord rights over the improvements which the tenants effected, that the ancient law or practice did not bestow, for it gave them the right to all the improvements the farmers made in the soil by means of manure, even though that manure had not been paid for. It was said that the Legislature desired by means of hypothec to encourage the poor man; 1347 but although the object was a laudable one, it ought not be effected at the expense of another class. From a Return issued in 1869, it appeared that under the Act of 1867, the number of sequestrations against persons occupying farms with a less rental than £100 a-year was 548, and the number holding farms of above that rent was only 196. That showed that it was not the landlords' interest to let their farms to men without capital; and on this ground he claimed the support of the House to the Bill, which he hoped would become law during the present Session.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Sir David Wedderburn.)
§ SIR EDWARD COLEBROOKE,
in moving the rejection of the Bill, said, he was very sensible of the responsibility of any Scotch Member representing a county constituency in giving an opinion against a measure which was supported by a considerable amount of popular favour; but having formerly expressed an opinion that the Bill was not just in principle, and would if it should be carried out, be most injurious in its consequences, he could not shrink from opposing it, notwithstanding the demonstrations of popular favour it had met with in some parts of Scotland. In recording his vote against the Bill, he must give the reasons why he did so, and he was encouraged in doing so by the statement of his hon. Friend the Member for South Ayr (Sir David Wedderburn), who had introduced the Bill. No doubt, the Bill had met in this House with a considerable amount of support from hon. Members; but how had that support been gained? By bidding to hon. Members who represented burgh constituencies, and offering to exclude towns from the operation of the Bill. He deprecated that course, and insisted that that was a question which affected town as well as country, and if the House went into Committee, he did not think that hon. Members would listen to a proposal that landlords should have a preference in one case, and not in the other. He thought that tenant-farmers were under a great delusion in this matter. They entered upon their farms after an active competition, and knowing that they were subject to the law of hypothec. If the urban popula- 1348 tion who were under the same law did not raise a cry against it, they only showed that they were men of sense, and knew very well that the law was not injurious to their interest. The law of hypothec, he contended, was in favour of the smaller tenants, by giving to landlords a right to which they were entitled by the law not only of Europe, but of other parts of the world. Those were presumptions in favour of the law, and though they could not overbear the considerations which might be urged against it, were at least sufficient to answer the argument that those who opposed the Bill were claiming exceptional privileges which were unjust to the tenant-farmers. It was said that the law allowed men of straw to enter upon the holding of farms. Another and still stranger allegation was, that it was unjust to allow a landlord to swallow up everything, and leave in the lurch the creditor who had supplied the farmer with seeds or manures. All these were very fair subjects for consideration; but there was an immense amount of exaggeration about the statement of them. With regard to the last objection, some important evidence was given before the Commission which inquired into this subject. One of the largest manure merchants in Scotland gave evidence as to his losses. He stated that his dealings with tenant-farmers amounted to £190,000 a-year. His losses in two years amounted to £2,400, and on that account he received dividends amounting to £450. But was that loss, which was a very small percentage, due to the law of hypothec? If hypothec were abolished, could it be said that creditors would not incur losses? On the contrary, he thought it fair to presume that their condition would be a more uncertain one, and that the risk which they would have to run would be greater than at present. Traders would endeavour to recoup themselves by raising the price of their articles to customers. That, in fact, was the measure of the amount of risk and injury which tenant-farmers suffered owing to this law. Evidence of the same kind was given by a Glasgow manure merchant, who said he did not think in the main this law affected the trade injuriously. The smallness of the losses showed the soundness of the trade that was carried on between the farmers of 1349 Scotland and the dealers in seeds and manures. That trade was conducted on safe and cautious principles, and he did not think that the farmers would gain any very great advantage from the new system which would be introduced on the abolition of the law. Then as to the introduction of men of straw, he could only say that they did not enter into competition for farms in his neighbourhood. If a landlord was satisfied that the proposed tenant was a man of character, could keep the farm well stocked, and had the means to carry it on, he would inquire no further. Moreover, in consequence of the law, it was a practice in many parts of Scotland to give credit to a tenant for a year and a-half, and if that credit were abolished, would the farmer gain any advantage from the abolition of the law, even though he gained additional credit from the seed and manure merchants? He thought he would not, and he submitted that the House should consider whether the present law acted so injuriously as to call for its repeal. It had existed for centuries, and he contended that it had done no harm. But considering the effect of this law, he thought the House ought to reflect on how dangerous any change in the law would be to small occupiers. The whole of Scotland was not like Mid Lothian, and was not occupied by farmers of large capital and wide credit. Indeed, the agricultural Returns showed that the small farmers were much larger in number than was generally supposed, and if the protection which landlords now enjoyed were abolished, they might be led to destroy these small farms. If the Members of the Government had been present in the House, he would have asked them to consider this question as affecting the conditions to be made between landlords and tenants. The tendency of the Bill would be to induce more stringent conditions than at present, and that, he contended, would not be beneficial to the farmers. As regarded urban occupancy, he thought the abolition of hypothec would lead landlords to require a closer payment of rent, and that would be much deprecated by the labouring classes. The real question in this matter, was, what engagements should be made between proprietors and tenants in Scotland, and the abolition of the law of hypothec would, he contended, put an 1350 end to the present system of tenancy, which had effected such a great improvement in the agriculture of Scotland. He asked the House to bear in mind that any person who parted with his property for a term of years looked to the improvement of that land; and if when a change of ownership took place, the new proprietor was not protected by law, he must take measures with regard to compelling a tenant to quit his farm in the event of his failing to pay his rent, and those measures would operate more hardly on the tenant than the existing law. How far was the principle of the Bill to go? Was it to be confined to the abolition of the law, or go further and declare it to be against public policy for any landlord to insist upon conditions in leases which he granted. He contended that such conditions would be more injurious to the tenants than the present law. He thought the House ought to know, before the Bill went into Committee, to what extent the provisions of the Bill were to go, and what alterations his hon. Friend would agree to, for they could not deny the right of persons to enter into agreements without striking a blow at the system of limited liability. Having stated these views, he would admit fully some of the evils which attached to the law of hypothec. Doubtless cases of hardship did occur, and in some the landlord's claim swallowed up everything, and deprived of their money those who had trusted the tenant with seeds and manures. He did not, however, consider that the claim of the landlord and the claims of the creditors had any analogy, for the risk run by a man who let his land to a tenant could not compare with that of a man who, as a rule, dealt in ready-money transactions. There was in Scotland a preference given to farm servants after the landlord, and he was prepared to consider the cases of the seed and manure merchants, but he would not give a dangerous latitude to persons who advanced money on note of hand. He entertained a strong opinion as to the injustice and impolicy of this measure, to which he should unhesitatingly give his opposition. Scotch proprietors stood on high ground in the matter, for they had taken the lead in agricultural improvement, and had shown their liberality both as to the length of their leases and the covenants 1351 which they contained, and accordingly, for that reason, he should move the rejection of the Bill.
§ MR. C. DALRYMPLE
said, that though he had not intended to second the Amendment of the hon. Baronet (Sir Edward Colebrooke) he would be happy to do so. The House had had the advantage of hearing the hon. Baronet's speech and had also heard the speech of the hon. and gallant Member opposite (Sir George Balfour) which was a speech of a theoretical kind. He was astonished to hear from the hon. and gallant Member for Kincardine (Sir George Balfour), that the time had arrived when the landlords of Scotland should set their houses in order. He was not aware what circumstances had led the prophetic eye of the hon. and gallant Gentleman to foresee that necessity, for he was not aware that the houses of Scotch landlords were out of order, or that they were likely to allow them to be so. He was further astonished at the hon. and gallant Gentleman, who seemed to think that if concessions were made on the subject, and the law of hypothec abolished, his (Sir George Balfour's) own seat and the seats of those who act with him politically, would be less safe than now. For his own part, conjectures of that kind had not the smallest interest for him, and seemed of small importance compared with the importance of the question in hand. The hon. and gallant Gentleman had favoured the House with his experience with regard to the working of the law of hypothec or similar measures in India, and had stated that the result of the existence of the law of hypothec in that country was the deterioration of the land. All he (Mr. Dalrymple) could say in reply was, that the idea of the deterioration of the land in Scotland was a new one to him, and if it had begun, under the law of hypothec, it must have begun very recently. He had not had the advantage of hearing the speech of his hon. Friend (Sir David Wedderburn), but he was sure that his hon. Friend did not introduce any of the usual commonplaces as to hypothec being a remnant of the feudal system and so forth. The truth was that the law of hypothec was part of the old Roman law, and had some claim to respect. Monstrous absurdities were talked about its working. He did not 1352 know that the law could be defended in principle; but as to its working there could be no doubt that it was on the whole, good. Under the law it became possible for a small farmer to take a larger farm, and for the landlord to give time to those who might be behind-hand in the payment of their rents. But further, while the law was in force, other creditors had a better chance of getting payment of what was duo to them than they would have if this law were abolished because the landlord could afford to wait for his money. He (Mr. Dalrymple) spoke of what he knew in all such instances. Those who looked at the matter calmly knew that what he said was true. At times of excitement, during an election contest, and the like, statements were made which, if they were to be believed, would seem to show that the advantages of the law to landlords was enormous, and that as regarded tenants it was oppressive and tyrannical. One would imagine that it was the custom, when a man was behind with his rent to turn him out on the hill-side destitute of goods or property; whereas the truth, he believed, was that the law was rarely enforced. It had been truly said that it was a tenants' and not a landlords' question. He sometimes doubted if farmers realized how they would be situated if the law were abolished. He might tell the House of a story which he heard in a county represented by his hon. Friend behind him (Mr. Agnew). A tenant who had been very active against hypothec, applied to the factor or agent, and asked if he might delay, say till August, his rent which was due in May. The factor said he would ask the laird. On application to the laird, the factor received answer—"By all means: But, let me see, was not he very strong against hypothec?" The factor said that he was; whereupon the laird said—"Give him what he asks, but tell him if it were not for the law of hypothec I could not oblige him." The farmer on hearing that afterwards said that it had never occurred to him to look at the matter in that light. He (Mr. Dalrymple) had always regarded the law as being in the interest of farmers, and especially of small farmers, and he continued of the same opinion. All he could say was, that he had inquired of the class said to be aggrieved, and had done so in more parts of the country than 1353 one, and he could not discover any foundation whatever for such assertions as had been made. Instances of harsh treatment might no doubt be discovered, but he believed they could be easily counted on the fingers of one hand. The hon. and gallant Member (Sir George Balfour) said that there was a universal demand for a repeal of the law on the part of the tenant-farmers of Scotland. All he could say was that the inquiries he had made in two or three counties led him to an entirely opposite conclusion. With one exception, during the last autumn, when he had made many inquiries, he had not heard a tenant-farmer say that he wished to see the law abolished. On the other hand, he had heard many of them say that since the alteration of the law in recent years, possible hardships were few in number, and that the law as it now stood ought to be fairly tried. He had received no expression of feeling against the law; and as he held that urban and rural hypothec must be considered on equal terms, he suspected that those whom he represented who belonged to towns, would be adverse to the change proposed. He was glad the hon. Baronet opposite the Member for Lanarkshire (Sir Edward Colebrooke) had moved the rejection of the Bill, and he should certainly vote with him. Until he heard stronger reasons for the abolition of the law of hypothec than had yet been advanced, he should do his utmost to retain it in the interest of the smaller tenant-farmers. If, on any future occasion, he should receive a representation adverse to that law, from those whom he represented, and whose opinions were founded on knowledge and conviction, he should refrain from opposing the measure.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."—(Sir. Edward Colebrooke.)
§ Question proposed, "That the word 'now' stand part of the Question."
§ MR. J. W. BARCLAY
said, he was surprised at the opinions that had been expressed by the hon. Baronet behind him (Sir Edward Colebrooke), and by the hon. Gentleman who had just spoken (Mr. C. Dalrymple), which virtually amounted to this—that a law which was founded on an unjust principle acted 1354 well in practice. He was glad that the hon. Baronet who introduced the Bill (Sir David Wedderburn) was prepared to withdraw that portion of it which referred to the urban hypothec. There was no difference in principle between urban and agricultural hypothec, but in point of fact there was no great demand for the abolition of urban hypothec. In that respect it differed very widely from agricultural hypothec. Houses and land were besides very differently circumstanced. If the landlords of houses endeavoured to impose unjust conditions on their tenants, the demand for other houses would at once be made and would be speedily supplied. In the case of houses, therefore, there was a limit placed to the exaction of arbitrary conditions on the part of the landlord, which could not be resorted to in the case of land. Again, the law of hypothec did not affect the credit of the tenant of a house as it did the credit of the tenant of a farm. There was further a feeling on the part of those who dealt with the farmer that the landlord had a preference to which he was not entitled, and that that was an injustice which ought to be abolished, and the farmer suffered on account of that feeling existing. The hon. Baronet who moved the rejection of the Bill (Sir Edward Colebrooke), said that if the law of hypothec were abolished the landlords would impose harder terms upon their tenants. He did not believe that such would be the case. In fact, he did not say that the landlords, generally speaking, exercised the powers given them under the existing law; but there were estates with which he was acquainted upon which the law was used to its fullest extent, and it was practically impossible for the landlords to exact more stringent conditions than existed. He could refer to leases in which the conditions laid down were of the most preposterous character, and such, indeed, as no independent tenant would submit to. Not only did the small tenants not ask for a continuance of the law of hypothec, as had been alleged, but they demanded its total abolition. The county of Aberdeen was par excellence the county of small farmers, and they had pronounced in the most unmistakable mariner against the law, and in favour of the Bill, and his own constituency, the county of Forfar, acted in a similar manner. Perhaps the hon. Baronet behind him 1355 knew the affairs of the tenant-farmers better than they knew them themselves; but if the small farmers of Aberdeenshire knew their own affairs—and they occasionally got credit for doing so—and were the best judges of their own position, then in their own interests they demanded the abolition of this law. Was it likely that the landlords of Scotland would not, as had been stated, give a farm, if this law were abolished, to tenant-farmers, whom they knew to be intelligent, and industrious, and honest, because they had not capital? Why, altogether apart from the philanthropic motive—and would it be philanthropy to give an industrious, honest, and deserving man a farm at fair rent—they would do so for their own sakes. The question ought to be considered on its true basis. There were, doubtless, some small farmers who had risen to higher positions, but they were of that exceptional class who would have risen whether the law of hypothec existed or not. It was a delusion to suppose that the law was of advantage to the small farmers. It was not. It was disadvantageous to the large farmers, but still more so to the small; for it increased the number of competitors, and thereby led to increased rents. But it was said, that if hypothec were abolished the landlords would exact a preference by conditions in leases. That was a matter of law. He did not think that the tenants could conspire with landlords, as suggested, against the public interest. That part of the question, he thought, he might leave to the right hon. and learned Lord on the Treasury bench to deal with. It was not the fact, practically, that a tenant now got a year's credit for his rent. He had to purchase the crop of the outgoing tenant, and the landord got his money as soon as he would, if he kept the land in his own possession. He had said that the few tenant-farmers who had risen to a higher position had not done so on account of the law of hypothec, but even if that were the case, the interest of a whole class should not be sacrificed for a few individuals. The abolition of the law, moreover, would not have an injurious effect upon the landlords. On well and liberally managed estates rents were now always paid with punctuality, and there no difference would arise; but there certainly would be a great 1356 and serious difference on rack-rented estates. The landlord on such estates would have to see that the tenants means were sufficient, although a farmer was entitled to seine credit, as well as a person engaged in any other branch of business or industry—and skill, intelligence, and industry should not be overlooked. For his part, he believed that the Bill would work for the advantage of the landlord. On rack-rented estates the elasticity was taken out of the tenant—he had not the spirit or the inducement to improve the farm or develop its resources, and at the end of the tenancy the landlord got the farm in no better condition than when the lease commenced. It was a mistake to suppose that the leases lasted for 19 years. They contained most stringent conditions, and the landlords could put an end to them on the breach of any one of them. The hon. Member who spoke last (Mr. Dalrymple) said, that the law of hypo-thee was resorted to in very few cases; but it appeared from a Return before the House that it was resorted to in two years in over 500 cases. He hoped that they would on that occasion receive the cordial support of the Lord Advocate. The right hon. and learned Lord had been one of the Commissioners who inquired into the subject, and had signed the Report in favour of abolition, and in the county election which had been referred to by the hon. Baronet the Member for South Ayr (Sir David Wedderburn), the right hon. and learned Lord had expressed himself in the most decided terms against the law. The farmers of Scotland were entitled to the most favourable consideration at the hands of the Liberal. Government. They had supported Her Majesty's Government on all the questions of the day, and in the passing of all the great measures of the present Parliament, and were entitled to the relief which they now sought at their hands. He was surprised to hear the sentiments which had been uttered by some hon. Members behind the Treasury bench. It struck him that the "liberality" of some hon. Members was confined to being Liberal about other people's interests; but that in matters affecting themselves, they were as Conservative as any hon. Member on the other side of the House. He hoped that the Bill would pass, and without the clause exempting its operation from ex- 1357 isting agreements, and that a Liberal Government and its supporters would not favour an opposition which would uphold and increase the protection of the landlord class. The law of hypothec was unjust and indefensible in the public interest, and he hoped it would be abolished during the present Session.
§ MR. ELLICE
said, he could not agree with his hon. Friend who had just sat down (Mr. J. W. Barclay), as to what he had stated as to landlord protection. He (Mr. Ellice) did not oppose the Bill, because he wanted landlord protection; on the contrary, he thought landlords ought to be considered like other people, and in no other way. He objected to disturb a law which had existed for generations, and under which agriculture had prospered in Scotland more than in any other country in the world. He was surprised that his hon. Friend was in favour of disturbing and interfering with existing agreements, and he did not think the House would even endorse that view or tolerate such a proceeding. He expected to have heard arguments in favour of the abolition of the law of hypothec rather than vague and general assertions such as they were accustomed to hear at election time. He had listened to the speech of his hon. Friend the Member for South Ayr (Sir David Wedderburn), and he had failed to discover any one instance in which where the law of hypothec was at all analogous to the law of distress in England, it told injuriously upon the interest of an ordinary creditor, or placed the latter in a less advantageous situation than he would occupy in regard to any other corn or commercial transaction. Allusion had been made to the competitions for farms which the law of hypothec in Scotland gave rise to. Undoubtedly, that was a great complaint, and he had no doubt himself that was the sole cause that had led to the outcry for the abolition of the law of hypothec, for the existence of that law had enabled the humbler man to compete on more equal terms with the rich man. Undoubtedly, if that law were abolished, which now protected the man of small capital, the man of larger capital would then be able to command the situation, and that absorption of small farms would take place which he begged leave to say had been carried already to an extent that was unfortunate for the interests of the country.His hon. 1358 Friend the Member for South Ayr held out a prospect of rents being reduced. He did not believe that any alteration of the law of hypothec, or, indeed any law which that House could pass, would affect the question of rents. Farms would always command their value, and in Scotland especially, people would be found who would give more money for a farm than they thought would allow them to make a profit upon it. Therefore, he thought it was wholly illusory to say that the abolition of the law of hypothec would have any effect upon rents in Scotland. No doubt, it was that illusory hope that had been the means of nurturing the cry for abolition. He believed that the large majority of the Scotch Members were in favour of the Bill, and therefore those of them who took a different course were at least bound to state their reasons for so doing. The law of hypothec was objected to as injurious—first of all to tenants, and secondly, to creditors. He took a totally different view of the case, and he upheld what was understood to be the right of hypothec. He did not say he upheld that particular law as advantageous to the tenant, and as not unjust to the ordinary creditor; he said it was advantageous to the farmer. Let hon. Gentlemen consider this—if a farmer offered to take a farm, the very first thing he was asked was as to his security and ability to pay the rent. He thought that no landlord would take a tenant, and no man would lend money to a customer, without inquiring as to the sufficiency and the security of that person. Well, now, he believed that in the absence of hypothec there were only three ways in which security could be found—a man must either pre-pay his rent, or he must lodge securities equal to the rent, or the must find some person to be his cautioner in the bank. Now, it was well known in Scotland, that there was not one man in 20 of the farming tenants who had more capital than he could spare. On the contrary, they all knew that the improving system had been largely conducted upon credit —that was to say, a tenant had a certain capital of his own, but he had to borrow upon the credit of that capital, probably a considerable sum, as accommodation. Therefore, the first two alternatives in the way of finding security were not open to 19 out of 20 tenants in Scotland. The 1359 only other alternative left was to find some friend or banker who would consent to become caution. They all knew that any person who was referred to in that way, would in his turn, ask for his security, and probably, he would ask for some profit on the transaction; in fact, in the case of all these three alternatives they subjected the tenants to disadvantages and inconveniences to which they were not at present exposed, because instead of their having to prepay the rent, or to find security for the rent in the manner he had suggested, the law stepped in, and found that security ready-made in the prior claim which it gave the landlord over the stock on the farm. Therefore he maintained in respect of hypothec, that whether the tenant was a wealthy man or not, he could be subjected to no possible disadvantage, with the single exception of that one to which he had before alluded—namely, that hypothec let in a larger number of persons to compete for farms than might otherwise be the case, but that was the only disadvantage which a tenant could labour under. As regarded the ordinary creditor, it was complained that the landlord stepped in to his prejudice. But would any hon. Member tell him that ordinary creditors at the present moment in England did not suffer from the same inconvenience? Was there a single case of bankruptcy in that metropolis in which they did not in the first column see "secured creditors" and "ordinary creditors?" The fact was that the thing was as common as possible. A man who was the ordinary creditor was postponed to the creditors who had taken security, or probably exhausted all the securities of the bankrupt. As regarded mortgage, he wanted to know whether the promoters of the Bill were prepared to interfere with the right of mortgage? A man rented his land, or rather lent his land for a consideration, in the same way as another lent money upon the land. He depended in the one case on his hypothec to obtain interest on what he lent, and in the other case the mortgagee expected, and had a right in respect of his mortgage, to get back his capital with interest previous to the satisfaction of the claims of all other creditors. It seemed to him that the cases were very analogous. Now a question had been put about the conditions in a lease. 1360 Well, was it proposed by the Bill to prevent conditions being made in a lease, or was it proposed to allow conditions to be made in a lease under the Bill, by which a tenant could hypothecate or pledge the stock on his farm? If that were done, it appeared to him that it came to very much the same thing, and that they accomplished only in a most round-about way what was now accomplished without any difficulty through the operation of hypothec, and without exposing the tenant to many disadvantages and much inconvenience to which he might otherwise be subject. He would call the attention of his hon. Friends the Members for Edinburgh, Glasgow, Dundee, and other large towns in Scotland to the effect that the abolition of this law might have upon the artizan and the labouring classes in these towns. At the present moment hypothec seemed to him to be a law which immensely added to the capital of a labouring man—the little furniture he possessed. It was the only security that he could give. A landlord gave him a lodging upon the security of the furniture which he had put into it. During the time that man was earning money enough to pay his credit at the end of the week or month. They were going by that Bill to take that security away. What would be the result? That they would put greater difficulties than ever in the way of these poor people obtaining lodgings, who had quite enough already to contend with. They would have to pay a higher rent because the landlord would be sure to put a larger rent on in order to cover his risk if the law of hypothec were abolished, and the consequence would be, that the abolition of the law would be not only disadvantageous, but also of the greatest possible injury to the labouring and artizan classes in Scotland. He spoke not on his own authority, but on that of other people acquainted with the subject, and he invited the Representatives of the large towns in Scotland to say whether the facts which he had stated were correct or not. Upon those grounds, he was opposed to disturbing a system and a law which had lasted so long, and against which, so far as he could see, no practical evil resulted or could be alleged. He thought the present system was beneficial to the farmer; at all events, it subjected him to no disadvantage to which he would not be 1361 equally exposed if the law were abolished. There was, of course, hardly any law in that country which was not susceptible of improvement, and he was not opposed to any alteration which it might be considered desirable to make in the law of hypothec. He would therefore suggest to his hon. Friend the Member for South Ayr, that he should withdraw his Bill for the present, and that in the next Session a Committee of that House should be appointed to inquire not only into the law of hypothec as it related to Scotland, but into the law of distraint in England, because he protested against one country being dealt with in the matter in a different spirit from that in which the other was dealt with, and to see what alterations in those laws were necessary in order to place the legislation of both countries on the same footing. In conclusion, he would simply say that in opposing the Bill he was not influenced by any class interest. He had taken up the line he had after a careful consideration of the whole subject, and in what he believed to be the interest of the tenant-farmers of Scotland generally, and in the cause of agricultural improvement in that country.
§ MR. STAPLETON
said, that a former Lord Advocate—Mr. Moncreiff—had distinctly expressed the opinion that the first thing to do was to assimilate the law of Scotland in this respect to the law of England; and the right hon. and learned Gentleman even went further, and promised to bring in a Bill to that effect; but in the meanwhile, he was removed from that House to undertake superior duties elsewhere. It was his (Mr. Stapleton's) opinion that the whole question would have been advantageously settled if that right hon. and learned Gentleman had continued in office. He was inclined to think that the law of England would work satisfactorily in Scotland, although the circumstances of the two countries might be somewhat different.
§ THE LORD ADVOCATE
said, he did not suppose the hon. Gentleman the Mover of the Bill had any very sanguine hope of its being passed into law during the present Session. He rather thought his object in introducing the Bill was to have the subject, which was one of great importance, discussed, and to obtain the opinion of this House upon it. The principle of the Bill was, that landlords 1362 should have for the recovery of the rents due to them the like legal remedies, and no other, which by the law of Scotland were given to other creditors as regarded personal obligations. He had no such unbecoming confidence in his opinions, and far too sincere a respect for the judgment of others who differed from him, to permit him to imagine for one moment that the question had not two sides to it, and that there were not questions of weight and consideration on both sides. Therefore, the opinion announced by his hon. Friend the Member for Lanarkshire (Sir Edward Colebrooke) who moved the Amendment, did not take him by surprise, because his hon. Friend and he had had occasion to consider the question together as Members of the Royal Commission to which reference had been made, and he knew that they then arrived at different conclusions upon the question which the Commission had to consider. Some Members of the Commission desired to maintain the law with small modifications, others suggested greater ones, and some with whom he concurred, were in favour of a total abolition of the law. In fact his own opinion, formed after the best and most careful consideration he was able to give the subject, was altogether against the law of hypothec. Though that was not the opinion of the majority of the Commissioners, he was in favour of putting the landlord upon the same footing for the recovery of his rent as other creditors were for the recovery of their debts. It was the opinion not only of some hon. Members in that House, but of certain persons out-of-doors, that it was not a landlords' question, and that it was a tenants' question. It was impossible for hint to hear that without marvelling that the landlords, who were said to have little interest in the question—almost none at all in fact—had been almost alone in Scotland in the desire for the retention of this law, and the tenant-farmers, who were said to have the greatest interest in the matter, were almost unanimous in their urgent desire for its repeal. He could not believe that the tenant-farmers of Scotland did not understand their own interests. He could not believe that they were under a delusion as to the effect of the operation of the law, because they were an intelligent class of men. What they believed was, that that law was detrimental in its 1363 operation to their legitimate interests. It had been said, in defence of the law, that it produced liberal contracts between landlords and tenants, but it was impossible to give security to one particular creditor except at the expense of the other creditors. Now, did the nature of the debt afford any good reason for giving a preference to the landlord. His hon. Friend the Member for Lanarkshire had pointed out that there were preferential creditors under the law of England, and he instanced farm servants. His hon. Friend might also have included domestic servants; and the reason for giving them a preference no doubt was that it would be cruel to allow such small creditors to go without payment of their wages. For a similar reason the law gave a preference to those who advanced money to pay a man's death-bed and funeral expenses. But such reasons were hardly applicable to the case of landlords. The only other preferential creditor was the Crown, and certainly the preference given to the Crown rested upon other considerations than were applicable to landlords. In his opinion, there was nothing in the nature of the landlord's claim for rent to justify giving him a preference over all other creditors. He did not speak disrespectfully when he said a tenant-farmer was simply a trader, whose trade consisted in hiring land for the purpose of raising crops out of it by the application of skill, labour, and capital. He had occasion for credit in the conduct of his business, and one of his creditors was the landlord who let him the land upon which he desired to carry on his trade. He had also occasion for credit in other directions. He had to employ labourers. He had to purchase manure and seeds. His stock-intrade, in the case of an arable farm, consisted of the crops which he had raised out of the land; and in the case of the grazing farm, the stock-in-trade was the cattle and sheep, which he might have purchased on credit. Now, the common law of the land was, that when a trader failed so that he was unable to pay his debts, his stock-in-trade or assets should be equally divided, without favour or preference, amongst his creditors. But in the case of hypothec, the law interfered in favour of one creditor above the others. Why was that. They were told that landlords would not let their farms without security unless the law stepped in 1364 for their protection; and they were also told that to abolish the law would have a most prejudicial effect upon the smaller class of tenants, even to the extent of extinguishing them altogether. But he considered persons who let land for hire were in exactly the same position as persons who let houses and shops, and they ought to take their security according to the person they considered they were dealing with. Why should landlords be put upon a different footing from others if they had perfect confidence in the honesty, industry, and skill of the tenant? If those conditions were fulfilled, they might give credit without any security at all, and if they demanded security or pre-payment, they ought only to have it upon the usual terms. Landlords, like other persons, should have to consider their own legitimate interests as other creditors considered theirs. The argument that the law was in favour of the smaller tenants seemed to him to be quite unsound. From the evidence taken before the Royal Commission, it appeared that there were no tenants who paid higher rents than the smaller tenants, and they were enabled to do so in consequence of their persevering industry, and the continual labour of their families applied to the land. It was also proved incontrovertibly before the Commission that there were no persons who paid their rents more surely or regularly. Those were good reasons why landlords should let farms to the smaller tenants, whether the law of hypothec existed or not. But if the existence of that law induced landlords to let their lands to persons whom they would otherwise not accept as tenants, and that was done at the expense of other creditors, its effect was most prejudicial, because it was interfering with a natural law which said that persons should give credit upon their own discretion and at their own proper risk. The baneful effect of the law was, that the tenant-farmer's stock was pledged to one creditor, while the tenant-farmer could not himself pledge his cattle or crops to any other creditor. Landlords, in letting their land, ought to be put upon the same footing as other creditors—no worse, and as certainly no better. He would give them no preference which other creditors did not have, and he would not allow contracts to be made in favour of one class of creditors 1365 which could not be made in favour of others. These were the general considerations which, to his mind, operated against the law of hypothec. It had always appeared to him to be an exceptional and artificial law, which interfered with the ordinary course of affairs, and interfered in an impolitic manner. It was not enough to say that the law had been infrequently put in force. Notwithstanding the rarity of its enforcement, it nevertheless had a great influence. While artificially creating an increase of credit in the direction in favour of which it operated, it produced a corresponding diminution of credit in the opposite direction—in the direction of those at whose expense, in the event of any failure, the preference was given. Being in favour of the principle of the Bill, he should give the second reading his support, though he wished to remark before sitting down that he could see no difference between rural and urban hypothec, and his only wonder was that either law had been allowed to stand so long.
§ MR. ORR EWING
regretted that the right hon. and learned Lord Advocate did not support the recommendation of the hon. Member for St. Andrews (Mr. Ellice) to refer the Bill to a Select Committee with a view to the framing of a measure which might settle that much agitated question for the benefit of both countries. If it were so unjust that a preferential claim should be given to the landlord, why was it that the Government, which during the five years of that Parliament had such a majority at their back that they could pass ally measure, did not bring in a Bill to settle the question? He denied that it was the landlords of Scotland alone who had a preferential claim. Nine-tenths of the foreign trade of this country was carried on under laws which gave particular creditors a preference, and so was a large proportion of the trade of the country. He was himself acquainted with a case of failure to the amount of £478,000, of which £300,000 was secured to preferential creditors, and the remainder yielded not long since a dividend of 7¼d. in the pound. But, though he believed the law to be more in the interest of the tenant than the landlord, yet, seeing the agitation which of late years prevailed in Scotland on the subject, and sooner than have it made a party cry, if 1366 they could not get a Select Committee, he would be prepared to vote for the abolition of the law.
§ MR. LEEMAN
said, not a single new argument had been advanced in favour of the Bill, and he therefore hoped the House would be prepared to deal with it on that occasion as it had done with a similar measure two years ago, which was rejected by a majority of nearly two to one. The main ground upon which that Bill was rejected was, that if the law of hypothec in Scotland was abolished, it must be a prelude to the abolition of the law of distress in England. All the Bills which had been introduced on the subject of hypothec since 1867 were rooted and grounded in the opinion of the minority of the Royal Commission; four members of that Commission were in favour of abolition, while 13 were against it. The objectionable part of the law of hypo-thee was removed in 1867, and he would remind the Lord Advocate, that in the Committee whose recommendation led to that alteration, he was in the minority. A Committee of the House of Lords declared in a subsequent year its opinion that the abolition of the law would be injurious to the interests of all classes. The former Lord Advocate of the present Government had also said that if hypothec were abolished landlords would get rather less than before, while the other creditors would be in the same position as they were. Did the Government support the Bill? In 1870, in answer to a Question put by Mr. Carnegie, the Government said that they were considering the question in connection with the subject of the law of distress in England. In 1871 only one Member of the Government rose to say a word in favour of the Bill. Only one had yet spoken in its favour this year; and the nature of the Whip issued that morning, coupled with the appearance of the Treasury bench, which was all but empty, did not say much for the anxiety of the Government to pass the measure. He doubted whether the Bill had the support of any Member of the Government, excepting the Lord Advocate. It was the large farmers of Scotland who asked for the repeal of this law, and many of those were men who had risen to their present position mainly through the influence of the law. That had been given in evidence before the 1367 Commission. To attack the law of hypothec in Scotland was to attack by a side wind the law of distress in England, and the only fair way of dealing with the question was to bring in a Bill founded on inquiry by a Select Committee to settle the question in both countries. If they took away the power of distress in England, the consequence would be that no poor farmer would obtain a holding, and for that reason he should vote against the Bill
§ MR. R. W. DUFF
said, there were very few Scotch Members who dared appear before their constituents without saying that they were in favour of the abolition of the law of hypothec. The Bill of 1867, which modified the law of hypothec, had failed, and there was now no alternative but to abolish the law altogether. [Lord ELCHO: How has that Bill failed?] Why, it had failed to satisfy the just wishes and requirements of the people of Scotland. In voting for the second reading, however, he wished it to be understood that he did so in order that the law might be abolished in the urban as well as the rural districts.
§ MR. VANS AGNEW
said, that although he believed that tenant-farmers would not derive much benefit from the proposed abolition of hypothec, the effect of which had been much exaggerated in the arguments on both sides, yet he would support the Bill to the extent of its proposal to abolish the law in agricultural districts, but he was not in favour of its abolition in towns. He hoped, therefore, the hon. Baronet the Member for South Ayr would undertake to limit the Bill to agricultural districts.
§ SIR DAVID WEDDERBURN
said, he could not undertake to do so, but he would not offer objection to its being done.
§ MR. VANS AGNEW
said, when the Bill got into Committee, if it passed the second reading, he should move that its operation be confined to agricultural districts. He had been recently returned for an agricultural constituency under the Ballot, and he was free to admit that if it had not been known that his opinion was in favour of this Bill he should not have been returned; and he believed the same thing might be said of some hon. Gentlemen on the other side. The Scotch law differed from 1368 the English Law of Distraint in this—that cattle and crop could be followed and recovered by the landlord after they had been sold. The farmers' case was, that by the action of this law competition was increased, rents raised, and their credit reduced. Several members had spoken of the class of small farmers, which he took to mean those paying less than £50 of rent. They were a class who lived a very hard life; in fact, they and their families were not so well housed, clothed, or fed as the farm servants on large farms, and their children were kept more at work than at school. It was a question worthy of the consideration of the House, whether it was a national benefit to encourage the letting of land to men without capital, when there were plenty with capital ready to take it. The effect of the repeal of the law to the farmer would be that he would have to find security for his rent, and he would in future be fore-rented. But they said that it affected their credit; that the rent was not so large a part of the expense of cultivation as the cost of seed, manure, and labour, and they had a very strong feeling on the subject. He hoped the House would grant them what they asked. It was not a landlords' question; they could protect themselves, and had no interest in maintaining the law for themselves. It caused great irritation in Scotland; and by dividing those, whose interests should be identical, was a source of more political evil than its repeal would be.
§ MR. M'LAREN
said, he should vote for the second reading of the Bill on the grounds stated by the right hon. and learned Lord Advocate. So far as regarded the abolition of the law of agricultural hypothec, the speech of the right hon. and learned Lord was unanswerable. That, however, was all the length he (Mr. M'Laren) could go to. The right hon. and learned Lord seemed, if he understood him rightly, to think that the urban was in no degree different from the rural population. On that particular point he (Mr. M'Laren) was inclined to take issue with him, but at all events no person would question that if the law affected injuriously 79,000 householders—and there was 500,000 who were not at all connected with agriculture in any shape or way—they ought not to be told that for the sake of removing a grievance from 79,000 of the 1369 inhabitants, they were to inflict an injury upon 500,000 others. He should like to see any hon. Member getting up and saying that he ever presented a Petition from any place, great or small, complaining of any wrong done to them in agricultural districts by this law. Of course, where a farmer or agriculturist inhabited a house, the household furniture and other effects were the smallest part of his capital. He had probably five times as much in stock and other property; but if they took the case of the poor householder, the circumstances were altogether different. His only capital as a rule was his sinews and bones, and they could not take these away from him. They remained at his own disposal. In the case of a farmer, the landlord could take the whole of the capital of the farm, visible or invisible, as far as it was embarked in the land. He spoke entirely in the interest of the working-classes, and he believed that it would be a disadvantage to tens of thousands of working men if they abolished this law in their case, because it was quite obvious that in the proposed new system, it would be impossible for them to give any security for the rent, and the consequence would be that they would be unable to get a house at all. It would be a great evil to abolish the law of hypothec generally.
§ SIR JAMES ELPHINSTONE
said, he thought that the law as it stood at present had worked well for Scotland. There had been a great increase in her produce, and, as a rule, landlords and tenants worked admirably together. Not only that, but the manufacturing industry of that part of the Kingdom was such that the produce of Europe, India, and Australia, was brought in large quantities to the ports of Scotland. He would not believe any man who told him that the landed proprietors of Scotland had not done their duty. His recollection of Scotland extended, he was sorry to say, over 55 years. Before he first went to sea, he lived in that country, which was at that time almost covered with broom. There was, however, an indomitable spirit of energy and independence in the youth of Scotland, which was shared alike by rich and poor; and the sons of the upper classes went into foreign countries where they often made their fortunes, and returning, threw fresh capital into the soil, which enabled 1370 them to bring many enterprises to a successful issue, and greatly to increase the produce of the land. They were told that there had been a great many Petitions for the abolition of this law. Now, he knew exactly how Petitions were got up in Scotland. A number of persons were sent round with blank pieces of paper, to get signatures on any kind of representation, and when sufficient names were got, they were all put together on a piece of paper on which was the heading of the Petition. He had some of those documents got up in that way in his possession, and very curious they looked. The fact was, that this agitation was fostered, if not got up, by the Scotch Chambers of Agriculture, which, although useful at first, had much degenerated, and were now in the habit of only discussing matters on trade union principles. Men would not say in the House of Commons what they would at their own dinner tables, and it was necessary at once to fall down and worship the popular idol, whatever it might be.
§ MR. C. S. PARKER
said, that the hon. Baronet the Member for Portsmouth (Sir James Elphinstone) admitted that no candidate now came before an agricultural constituency in Scotland without declaring in favour of a change in this law, and of this the on. Member opposite lately elected for Wigtonshire (Mr. Vans Agnew) was an instance. The hon. Baronet paid hon. Gentlemen who had supported the Bill on both sides of the House the compliment of saying that at his dinner table they would hold a different language. He hoped not; but for his part, he attached more importance to what a man said in his responsible place in the House of Commons, than at any dinner table. The noble Lord the Member for Haddingtonshire (Lord Echo), seemed to think that it was not right for hon. Members to advocate the views of their constituents; but he (Mr. Parker) considered that when a Member was elected for a certain constituency, under certain pledges, he was bound so far to represent their opinions in the House. He did not mean to say that he should argue against his own convictions of what was for the public good; but he thought that he was bound to express the opinions and feelings of his constituents, for though he might have private in- 1371 terests opposed to them, it was in that sense he was prepared to give his vote. He admitted that there was some weight in the argument of the hon. Baronet that this was not an exceptional law passed for the benefit of one class, but a remnant of the old Roman law, and a portion of the law at this day of most countries in Europe. He knew that there was a good deal to be said in its favour, but not sufficient to induce them to retain it; because, since the old Roman law was adopted the conditions of agriculture had been considerably changed, and in no country more than Scotland. It was not necessary to retain a law, because it existed in other nations of Europe; and since the people of Scotland had strongly expressed their opposition to it, he thought that Parliament should give due consideration to their wishes. On a former occasion the opposition to a similar measure was founded upon the analogy existing between the law of hypothec and that of distress in England. Those tactics had succeeded once, and the hon. Member for York (Mr. Leeman) naturally had recourse to them again. There might be some analogy between the two laws, but he (Mr. Parker) contended that the one might be dealt with in Scotland, where it was felt as a grievance, without interfering with the other, if it was not felt as a grievance, in England. There were two reasons for the abolition of hypothec; first, that the landlord's preferential right against other creditors, however well known could not be enforced without creating a sense of injustice; and secondly, that it tended to make landowners less careful in the choice of tenants. On the other hand, he did not see any reason why it should be maintained, and therefore he would vote for the second reading of the Bill.
§ LORD ELCHO
said, he certainly deprecated the idea that any Member of the House was sent there as the mere mouthpiece of his constituents. Certain persons always had the idea that when they were returned for a constituency, they were merely the delegates of that constituency. He repudiated that idea, and said that in his view, when once returned, a Member was bound to advocate the adoption of measures which were for the good of the community at large. With respect to the observation which had been made that persons 1372 would not say in the House what they say at their dinner tables, he thought it would be sometimes much better if they did. He entirely concurred in the powerful speech made by the hon. Member for York (Mr. Leeman), who showed conclusively that the law of hypothec in no degree differed from the law of England, as respected houses, ships, and land, and various other kinds of property, and he confessed he was rather curious to hear how a shipowner, returned for an agricultural constituency, could draw such distinction between the two as to make him vote for the present Bill. The burgh Members for Scotland had endeavoured to satisfy their conscience by imagining that there was such a distinction, when in point of fact there was none. The fact was, that this was an attempt to do an impossible thing by legislation—namely, to put the owner of property into the same position as the person who wished to obtain possession of it, and that too in respect to a limited description of property, which was always in demand—namely, the land. To legislate in that way was to legislate upon unsound principle. As long as the demand existed, they would never be able to regulate these matters, and as soon as it ceased legislation would become wholly unnecessary.
§ SIR FRANCIS GOLDSMID
said, that he was desirous to make a few observations on this measure from the point of view of an English lawyer. It appeared to him that hypothec, especially after the modifications made in it by the recent Act, was so similar to distraint for rent in England that the former could not be abolished without the latter being fully considered. Now in the value he set upon a landlord's right to distrain he did not go as far, or half as far, as his hon. Friend the Member for York (Mr. Leeman), who almost seemed to consider that that right could not be taken away without shaking the British Constitution to its foundations, and that if distress in the legal sense were abolished, wide-spread distress, according to the popular meaning of the word, would inevitably ensue. At the same time, it was clear that the House was not at present prepared to deal with the English law on this subject, and that being so, he (Sir Francis Goldsmid) thought that the present Bill could not be profitably proceeded with. 1373 He believed that if the power of distress were destroyed, the principal result would be that landlords would habitually require bills of sale of the tenants' goods, which would put them in much the same position as if the right of distress still existed. He collected from the observations of the right hon. and learned Lord Advocate that the Scotch law recognized no instrument analogous to the bill of sale. But the point to which he (Sir Francis Goldsmid) had just referred was one of those which required examination in that comprehensive view of English and Scotch law which ought to be taken before the House attempted further legislation on the subject.
MR. M. T. BASS
said, that he had been a tenant-farmer for 50 years, and he was quite assured that no change in the law of hypothec would induce a Scotch or English landlord to take for his tenant a man who had not sufficient capital to farm the land, but he would always look out for a man who, by laying out his capital upon it, would render it more productive. At the same time, he wished to express, in the strongest manner he could, his objection both to the law of hypothec in Scotland and the law of distress in England, as being alike opposed to good farming and the interests of the community, and prejudicial to both landlords and tenants.
§ SIR DAVID WEDDERBURN
said, that notwithstanding all the arguments that had been advanced against the measure, he should take the opinion of the House upon it. He could not consent to withdraw the 2nd clause, which he had inserted to fulfil a pledge be had given to those who had sent him there; but if an Amendment were proposed to limit the operation of the clause in respect to the urban population he should not oppose it, nor would he withdraw the Bill in consequence. At the same time, he did not himself see any difference between the urban and the rural population which should induce him to make any such exception.
§ Question put.
§ The House divided:—Ayes 83; Noes 147: Majority 64.
§ Words added.
§ Main Question, as amended, put, and agreed to.
§ Bill put off for three months.