§ Order for Second Reading read.
§ MR. VANS AGNEW
, in moving that the Bill be now read a second time, said: In the Session of 1875, it was my duty to introduce a similar Bill. I then spoke at considerable length on the 1223 subject generally, and, having a very grateful recollection of the indulgence which I then received, I do not propose on the present occasion to enter upon a history of the law upon the subject, or upon the efforts which have been made in previous Parliaments to effect a change in the present state of the law on the question; but I think it is due to the efforts of those who have been endeavouring to bring the subject before the present Parliament to state in a few words what has been done by them in order to effect the desired change. It is no breach of confidence to say that, when the Parliament met in 1874, the majority of the Conservative Members of Scotland were very desirous that the Government should take up and settle this question; but the House will remember that the Government had only just come into Office, that there was a great deal to think of and much to be done, and they were not able to give it their consideration. In consequence of that, I introduced a Bill in 1874, but was not able to find a day for it. In 1875, I again introduced a Bill, and was fortunate in the ballot, having first choice of a Wednesday. The subject was discussed on the 10th of March, 1875, and on that occasion the Bill was rejected by a majority of only 18 in a House of nearly 300 Members. Out of the 60 Scotch Members 45 were present, and took part in the Division, and of these 42 voted in favour of the Bill, and only three voted for its rejection. Of those Scotch Members who were absent, two had their names on the back of the Bill, and not one of the others would, I believe, have voted against it. That showed an overwhelming, indeed an almost unanimous, feeling on the part of the Scotch Members in favour of the passing of the measure. I do not think there has ever been a stronger expression of opinion on the part of any one portion of the United Kingdom in favour of a particular measure affecting it than on that occasion. In that year, an Agricultural Holdings Bill for England was passed, and a promise made that an Agricultural Holdings Bill for Scotland would be introduced in the following Session. On that, I consulted with a number of my friends, and they and I were of opinion that it was better not to introduce a separate Bill on the subject in 1876, but to deal with the ques- 1224 tion in an Amendment on the Agricultural Holdings Bill. That Bill was read a second time. I could not oppose the second reading, because, for the first time, the Bill gave the statutory right to the farmers of compensation for unexhausted improvements. I, however, put an Amendment on the Paper, on going into Committee, embodying provisions similar to those in the two clauses of the Bill I have now the honour to submit to the House. Late in the Session the promised Bill for Scotland was read a second time; but it went no further, and it has not been renewed. In 1877 I again introduced my Bill, but I could not get a day for it, being unfortunate in the ballot. Last Session, again, I was not fortunate in the ballot. The day upon which I had fixed—the second Wednesday after Easter—happened unexpectedly to fall within the Easter Vacation. I put the Bill down again, therefore, as the first Order on a subsequent Tuesday; but owing to the collapse of a number of Motions on the Paper, and my being unfortunately called to go on with the Bill at half-past 7 o'clock, only 20 Members were in the House on the occasion, and I had not opened my mouth when the House was counted out. The Bill was then withdrawn, and a Resolution introduced on the subject. It was the first Order of the Day on a Tuesday in the hot weather in July; but on the House meeting at 9 o'clock, after a Morning Sitting and the dinner-hour, I was again counted out. I do not think that the 14 Scotch Members on this side, or the 34 Scotch Members on the other side of the House who failed to attend on those occasions when it was counted out, have any right to throw stones at me in respect to the manner I have attended to the question. This year, I am happy to say, I have been fortunate in the ballot, and on an early day in the Session we are met to discuss the measure, I hope with better prospects than we had in 1875, though I believe the discussion then must have done us good, for the position of the Bill was then not nearly so strong as now. On that occasion, I was met with a Motion that the second reading be delayed for six months, and a week ago there was also a Motion, to that effect standing on the Paper in the name of the hon. and gallant Member for the 1225 Ayr Burghs (Sir William Cuninghame). That Notice has disappeared now. A direct attack is not to be made; but, in place of that, my noble Friend the Member for Haddingtonshire (Lord Elcho) has placed a Resolution on the Paper, not in the way of a direct negative, but, to avoid a front attack, he is going to endeavour to turn our flank by causing delay. But I think the noble Lord will find it dangerous tactics to change his front immediately before a general engagement. It is certainly not a proof of strength. In the former debate, as I have said, only two Members representing Scotch constituencies spoke against the Bill, and each of them made certain admissions. My hon. and gallant Friend the Member for the Ayr Burghs said in his speech that if the Bill were limited to tenants with farms of the value of, or exceeding, £200 per annum, he would have no objection to vote for it. That was admitting that the principle of hypothec was not required in large farms. The noble Lord the Member for Haddingtonshire said, on that occasion, that the right of hypothec was not necessary for the landlords; that they could protect themselves, and if they did protect themselves, it would be at the expense of the tenants. My hon. and gallant Friend on the front Bench below me (Sir James Elphinstone)—though he is not a Scotch Member, is a Scotch proprietor, and no one has a better right to speak on the subject than he—said, on that occasion, that if hypothec had affected the landlords only, he would have been prepared to vote for it. These hon. Members, and others I could name, opposed the Bill chiefly in the interests of the tenants, and especially of the smaller tenants; but I must say that I think the farmers of Scotland, both large and small, ought to know their own interests quite as well as any landlords in this House who profess to know what the farmers' interests are, and to speak for them—and it is the belief of those farmers that this privilege of hypothec is injurious to them, and that the retention of it will not be to their advantage. They complain that it injures their credit, that it raises their rents in an unfair degree, and is disadvantageous to them in many other respects. They expressed the opinion that this law was disadvantageous to them most strongly at the last Election, 1226 when they returned Members to the House who, with three exceptions, in 1875, voted in favour of the abolition of this privilege. What I may call the small farmers' argument was used by the hon. Member for East Sussex (Mr. Gregory), and the hon. Member for York (Mr. Leeman); and I am very sorry that the hon. Member for the latter constituency is prevented from being present in the House by illness. Now, I wish to examine this argument in regard to the small farmers, and I should like to say what I mean by a small farmer. I would define him as a man who is something more than what we call in Scotland a crofter, but who is less than a large farmer—a man who has a pair of horses, from four to 10 cows, and some young cattle, who employs no hired labour, who is assisted by members of his family, and who, in particular, ploughs his own land. His rent may be something between £50 and £60. He is a man whose whole labour is taken up on his own land. When we come to a smaller scale of farmer, the man's whole time is not employed on his own farm. He hires himself out to work for somebody else—that is the crofter. Much has been said in praise of these small farmers, and I endorse every word of it. They are industrious and prudent, and they have done a great deal, and are doing a great deal of good in their own line. They break up rough land so as to fit it for produce, and prepare the way for those who come after them. They occupy chiefly inferior soils, and I would be the last man to propose anything to their hurt. But those very men do not think this privilege is for their benefit at all—very far from it. In the County of Aberdeen, for instance, they are a very numerous class; but if this Bill is going to be injurious to them, they would hardly have got up a Petition, as they have done, and presented it to this House in favour of the abolition of hypothec, signed by no fewer than 2,841 farmers, of whom a large proportion are of this class. Small farms are generally on poor soils. Large farms are upon better and more easily cultivated lands. That is occasioned, not through the existence of the law of hypothec, but from natural and economical reasons. A man with capital will not select a farm on a bare hill side; he rather chooses a piece of 1227 land on which he may expend his money with the greatest prospect of profit. The man with little capital, which he has saved from his labour, can only get the rougher land. Now, the abolition of the law of hypothec will not reduce the number of small farms which were not created by it; and if it does not reduce these farms, it will not reduce the number of persons who occupy them. The abolition of this law may make landlords more careful to whom they intrust their land, and I do not think that would be a disadvantage. It would prevent men with insufficient means—men of straw, who have nothing to lose—offering to take farms, knowing that they cannot pay for them, and thus forcing up the market to those who have really something to lose, and who would be steady good tenants. Farmers, whether large or small, complain that the landlord's privilege enables him to receive and accept offers from men who have not sufficient capital or credit, and I think that a very fair ground of complaint against hypothec. There is a custom peculiar to Scotland—namely, back-rent. Over the greater part of Scotland, with the exception of five counties—two in the North and three in the South West—the farmer is not expected to pay any rent until he has had time to sow, reap, and sell the first crop. That enables a man with insufficient capital to offer for a farm, trusting to have a good harvest in the first year. If he has a good harvest, he gets on; but if he has not, he gets into difficulties; and not only does the farmer and the landlord suffer, but everybody else connected with him. I believe that if the custom, with regard to payment of rent in Scotland, was to become the same as in England and Ireland—that is to say, that a man was to pay his first half-year's rent at the end of the first half-year, it would be better for the landlord and tenant, and would put their relations on a more satisfactory footing. I have no doubt that if the landlord's privilege of being paid in full, whether anyone else gets anything or not, ceases entirely, the custom of back-rent will also be done away with. Another complaint is that the law of hypothec, as it stands, injures the credit of farmers with the public. I think that is the case as far as advances from the banks and other sources are concerned, and in dealing with those from whom they 1228 must buy certain articles. For instance, in the case of a failure, where the landlord is paid in full, and all the other creditors get only a dividend—not only is an injury done in the particular case, but it shakes the credit of every farmer in the neighbourhood. Farming, as carried on in Scotland, is carried on to a certain extent on credit. We know that it is a good thing to employ capital in agriculture, because it tends to increase production, and thus augments the national wealth. But this law of hypothec, injuring, as it does, the credit of the farmer, checks production; that checks the increase of national wealth, and limits the farmer's profits, and that keeps down the rent of land, and, consequently, its value. It is argued that hypothec is like other liens, and should not be an exception, and that is the subject of part of the Amendment put on the Paper by the noble Lord the Member for Haddingtonshire. The noble Lord holds that hypothec is only one of many forms of preferential security, and in his speech in 1875, he has told us, as we have often been told, that when, it is proposed to modify a law which is found to press unfairly on some portion of the community, we must make a similar change in all analogous laws, although they have not been complained of. Such an argument is merely a plea for delay on the part of those who will not face the question on hand. To tell us we ought not to remedy that which the whole constituencies of Scotland consider a practical grievance, because we do not intend to make other changes which no one wants or asks for, is hardly a reasonable argument to lay before the House of Commons. I deny that this landlord's right is similar to the liens in commercial matters. But whether it is similar or not, I cannot think it is a point worth arguing at this time. What I maintain is, that as this law has been proved to be no longer beneficial to the class it was meant to benefit, it may be treated as an exception, and be dealt with as an exceptional case, and, as a grievance that has been proved, it should be remedied. It has been said, in justification of hypothec, that the landlord is a qaasi-partner with the tenant. I do not deny that that was the case once, but I deny that it is the case now. There was once a time when he was the owner of the entire stock and crop, and even 1229 found the seed of the farmer. But that is a long time ago. As time went on he became the tenant's sole creditor, and after that he became not the sole creditor, but the largest creditor. All that, however, is changed now. He is no longer the sole creditor. In my own district, for instance, for every £100 of rent paid by the tenant to the landlord, he spends £125 on artificial manures. What has been the result of that expenditure of the tenant's capital upon the land? I can say that, in my own case, having come into possession of my estate nearly 40 years ago, its value now is 50 per cent higher than it was under my predecessor. That has been caused, to a considerable extent, by the amount spent on the land by the tenants in manure, and so forth. No doubt, that is the case also in a great part of Scotland, especially on light lands, and it is of them I am speaking. Light lands, by the application of artificial manures, have been forced to bear much heavier crops than ever formerly it was thought they could bear. Farmers, thus enabled to produce heavier crops, have been enabled to pay much higher rents; and while the landlord's condition has been much improved, the farmer's position has improved to a much greater extent. They are living in a higher social position, and in much more affluence than they were a number of years ago. [Lord ELCHO: Under hypothec?] In spite of hypothec. The landlords of late years, instead of finding capital for the farming of the soil, have really been employing capitalists to cultivate it for them. Seed, implements, labour, and manure, as well as the surface of the ground, go to the making of the crops; and I do not think it is unfair, in the change of circumstances which have arisen of late years, that the landlord should be placed in the same position as other creditors. It is said that if the change should be made in the law of Scotland, which is now proposed, a a change must be made in the law of distress in England. ["Hear, hear!"] I do not agree with the hon. Member in his cheer. Who asks for a change in the law of distress in England? The landlords do not ask for it; the English farmers have have not asked for it. Therefore, there seems no occasion for making such an alteration until the circumstances of the country demand it. When a change takes place in Eng- 1230 land to the extent it has taken place in Scotland, English Members will undoubtedly come down to this House and make the same demand that the Scotch Members are now making. When the circumstances of the English farmers change as the circumstances of the Scotch farmers have done, they will send Representatives who will advocate their views and carry them out. Until they do that, I do not think anyone need be anxious about the law of distress in England. I know that during this debate I shall be met with the Report of the Select Committee of the House of Lords which sat in 1869. Well, that Report was against any further change in the law at present. The House will remember that a law was passed in 1867 very much modifying what had before been the law on this question, and the amending law had had a very short trial when the House of Lords reported that it was not desirable then to make a change. But 10 years have elapsed since then, and during the time this law has been upon its trial, it has not satisfied the wants of the people, and, having been found wanting, they are asking that a further change should be made. As to the Report, I am not saying anything disrespectful to the noble Lords who formed the Committee in expressing the opinion that their Report was a foregone conclusion. They were all large landholders in Scotland; their opinions were settled before they entered upon the investigation of the question, and no one could have expected them to report otherwise than they did. If that Report were submitted to the constituencies of Scotland, I do not think we should find one constituency which would agree with the conclusions in it. I may now say a few words on the Bill which it is my duty to introduce. It is a similar Bill to that which was before the House last year. The 1st clause abolishes the landlord's exclusive right to hypothec for land rental, either for agriculture or pasture. But there is a Proviso reserving all the rights under existing leases, contracts, or bargains. It is proposed that the Act should come into force at Martinmas—that is, the 11th November next year. The reason for that is that if it is passed into law it will give 12 months to landlords and tenants to consider the matter, and those landlords or tenants who are not under leases can make any arrangement 1231 at the end of the year they think fit. The 2nd clause is rather technical in its expression. It has reference to the law known in Scotland as the Act of Sederunt, 1756. If the landlord's right of hypothec is taken away, and if the tenant does not pay his rent at the end of the six months at which it is due, the landlord will have no right at present to take any steps against him until other six months have expired. Under this Act, after twelve months have elapsed, he may take him before the Sheriff's Court, and call upon him to find security for that year and for the next five years. This is the law as it stands, and the 2nd clause of my Bill is to shorten the period mentioned in the Act from twelve months to six months, and to give power, if security is not found, for the removal of the tenant. It does seem hard that the tenant should be able to remain in possession of his land without fulfilling his part of the bargain, and it does appear to me that if the House removes the privilege of the landlord to hypothec, it is only fair to provide that the landlord may not be unjustly kept out of his land by the tenant who occupies it. This clause was in the Amendment which I proposed to the Agricultural Holdings Bill in 1876. I offer this Bill as a solution of the difficulty, believing it to be a fair compromise between the conflicting demands of interested parties. The Bill, therefore, is to carry out two objects—to take away the preferential right which a landlord has to be paid in full for the use of the surface of the ground, while other creditors who contribute as much as he to the raising of the crop only get, in the event of a failure, a dividend on their debts; and, on the other hand, to enable the landlord to come into possession of his land as soon as his tenant fails to fulfil his part of the bargain. If those two objects are not carried out by the Bill now in the hands of the House, I shall be ready to accept any Amendment which the right hon. and learned Lord Advocate or any other Member may propose, that will more thoroughly carry out its object. I propose that the Bill be now read a second time. I am glad to think it will be supported by the right hon. and learned Gentleman.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Vans Agnew.)1232
§ LORD ELCHO
, in rising to move the following Amendment:—That, inasmuch as the Law of Hypothec is the equivalent in Scotland of the English and Irish Law of distress, and inasmuch as many other examples of preferential security over property being given in certain circumstances to particular creditors are to be found in the commercial Law of this and other Nations, this subject, if dealt with at all by Parliament, should be considered as a whole, and not be treated locally and exceptionally as in the present Bill; and in dealing with this subject due consideration should be given to the fact that the preferential security for payment of rent which landlords have from time immemorial enjoyed at Common Law, regulated by the State, has, to the great advantage of the Nation, enabled many industrious and enterprising men of small means to obtain farms and rise in the world, which otherwise they could not have done,said, it had not been his intention to take any prominent part in this discussion; and he had still no wish, amongst Scotch Members who were bettor acquainted with subject than he was, to enter into any lengthened discussion upon the Bill. The subject was a very old one. That was the day upon which the Wigtonshire annual came into full bloom. The hon. Member had told them how the question had been agitated for some 20 years, how they had Motions made upon it in the House, how Royal Commissions had reported, how Bills had been founded on their Reports, how a Committee of the House of Lords had also inquired into the subject; how, finally, several abortive efforts had been made to get the House to deal with it. The hon. Member told them of the perverse fortune that had followed him last year in dealing with this subject. He had the greatest difficulty, they all knew, in getting a day; and having got a day, those Scotch Members who were now all so anxious to have this Bill passed, which was to take away the preferential right of the landlord, were not present, and the House was counted out. How did they account for that? When they contrasted the facts, that these Scotch Members could not be found last year when they were wanted, and were there in such numbers now, they would see that this was something like a Dissolution muster. The fact that a Dissolution was not so remote in 1879 as it was in 1878 might have had something to do with it. His hon. Friend's Bill was as good last year as it was this; his arguments were as sound last year as they were this; yet, while he got no countenance last 1233 year, he found himself supported by a vast majority of Scotch Members now. His hon. Friend tried to sneer at his Resolution. The question of urban hypothec was, the hon. Member thought, a matter which ought separately to be dealt with. But what happened last year? They had now sitting opposite them the hon. and gallant Member for Kincardineshire (General Sir George Balfour). The hon. and gallant Member had not been so long trained in the mysteries of Parliamentary tactics and procedure in reference to Bills before them as some other Members; and, consequently, brought a comparatively virgin mind to deal with this subject—and, he might add, a thoroughly logical and intelligent mind. What did he do last year—did he bring in such a Bill as this Wigtonshire annual? Not at all. He brought in a Bill, the object of which was to deal not with the preferential security that the landlord had in land only, but to deal with the preferential security of the landlord in houses as well. That was a consistent and honest and straightforward policy; but he was earwigged by all the burgh Members in Scotland—by the hon. Member for Edinburgh (Mr. M'Laren), no doubt, and by the hon. Member for Glasgow (Mr. Anderson), who were all horror-struck—who said—"You do not mean to say that you are going to repeal the right of hypothec of landlords in towns! What would become of the artizans?"—who, by-the-bye, were equivalent to the small tenants in the country—"they won't be able to get lodgings at any price. This will never do. You must withdraw this Bill." The hon. and gallant Member was amenable to these views, expressed to him so forcibly in the Lobby of the House privately, and illogically withdrew the Bill he had logically tabled, and he (Lord Elcho) now ventured to take the view taken by his hon. and gallant Friend last year. It was not only a logical carrying out of this Bill, but it was more consistent with justice than this Bill; and if it were true that the Lord Advocate was going to give his support to this mode of dealing with the preferential claims of landlords, that Bill of the hon. and gallant Member was more consistent with statesmanship, and more just than this "Parliamentary expediency" method of dealing with the question. He (Lord Elcho) had, in the Resolution which was proposed 1234 —rather a long one—["Hear, hear!"] laid down what was the sound principle on this subject. He heard a cheer when he spoke about it being a long one; but he was not then addressing them merely as Scotchmen. It was an English and Irish as well as a Scotch question, and English and Irish Members came down usually to that House at 6 o'clock, knowing nothing of what had taken place, and it was necessary to explain to them in the question before the House what they were really dealing with. Therefore, he had put it in plain language—showing that the law of distress was in principle the same as the more classic term of the law of hypothec. What did this Resolution say? It affirmed three facts. It affirmed that the Law of Hypothec in Scotland was equivalent to the English and Irish law of distress. There could be no dispute about that. It might possibly be necessary to make some little changes, to which he would have no objection, in order to make the law absolutely identical in the two countries; but it was a fact that the law of hypothec was practically identical with the law of distress. The second fact affirmed was that this preferential security was to be found in other things besides land. [Mr. J. W. BARCLAY dissented.] The hon. Member for Forfarshire (Mr. J. W. Barclay), who sat opposite him, shook his head at that; but what was the case? He believed the hon. Gentleman opposite farmed, or did farm, and he remembered hearing him give evidence as an agricultural tenant before a Game Law Committee, and heard from him many very wonderful things. In fact, great sport was afforded to them on that occasion by the hon. Gentleman. It appeared that the hon. Member had ceased to be a farmer now, but he had not ceased to be a shipowner; and had he not a lien upon the cargo carried in his ships if the shipping dues were not paid? If that was so, then he (Lord Elcho) could not understand the shake of the head of the hon. Member; and he was justified in saying that this law applying to land applied to houses and ships and other things as well. But, upon this point, he thought he could bring into court even greater authority upon this question than the hon. Member for Forfarshire. It was an opinion given in a speech upon this very point 1235 of the general application of liens and the application of the law of distress on property of debtors on the part of the owners—given, not by the present Lord Advocate, but by the present Lord Moncreiff, whom they all loved, when Lord Advocate of the Liberal Government of those days. They had advanced very fast since then; but in the Liberal Government of those days, hypothec repeal was a question which, when raised, was always spoken against by the Liberal Lord Advocate, who laid down principles in the matter which he believed to be sound in themselves, and which were laid down without any regard to temporary political expediency. What did the then Lord Advocate say? As to the present one, he would not believe it, until he heard it from himself, that the Lord Advocate of a Conservative Government was going, as they were told, to support this revolutionary Bill. For, unquestionably, it was a complete revolution as regards the position of owners of property in land. Lord Moncreiff said—As to preferential claims, they were not peculiar to the Law of Hypothec. Instances of them are in existence, and in the laws respecting commerce and manufactures there were numerous cases of lien, rights of redemption, which really amount to just as much in giving preference to one creditor over another as the Law of Hypothec in Scotland did. As regards landlords, the principle of the law is, where the risk is more than commensurate with the interest, then the law gives unusual facilities to recover the claim.That principle, going through a variety of cases, reasonably applied to the subject let by the landlord, whose means of subsistence from year to year depended upon his rents. When they talked about putting landlords and creditors upon the same footing, they left out of consideration the fact that creditors for manure, corn, or anything else, could ask for the money due on delivery. But the rent, unless they had fore-rent, was not payable in many cases for a considerable time after the tenant got possession of the land; and, further, the landlord, even though he did not get his rent, was liable for all the burdens on land. Not so the corn merchant. He could take the money he got abroad, but the landlord was solely responsible for these burdens. They had very clear evidence given upon this point by Mr. Murray, one of the Commissioners of 1865, before 1236 the House of Lords in 1869. In answer to the Question—In Scotland, is not the landlord liable for county rates?"—he replied "Yes." Q. "For half the poor rates?"—A. "Yes." Q. "For the repair of churches and manses?"—A. "Yes." Q. "For ministers' stipends?"—A. "Yes." Q. "For schoolmasters' salaries?"—A. "Yes." Q. "And for repairs of schoolhouses?"—A. "Yes.And he might have added, had it been in this year instead of 1869—"and for the repair of roads under the Road Act?"Q. "Supposing that the Law of Hypothec was abolished, and the tenant became landlord, would he not be liable in all these cases, even if he did not get a penny of rent? "—A. "Yes.Where, then, was the similarity between the cases of the dealers in manures and corn and the landlords? Mr. Murray further said, as the result of calculation embracing different parts of the country, and taking the average of the rent of the previous 10 years, he found that these burdens were 8½ per cent upon the gross rental. He (Lord Elcho) believed that it would, in all probability, be found that they made up at least 10½ per cent upon the gross rental now. There was thus a broad distinction between the cases; and, therefore, in dealing with this question, they ought to deal with it generally, if they dealt with it all. He came now to another argument, and he thought it a very strong one—the usage which prevailed in foreign countries. Now, they heard a great deal about the injustice of this law—that it was a barbarous one, which had been left to them from Roman times; and if they were to judge from the wonderful document which the Chamber of Agriculture of Scotland had presented to the House last year, this law was the cause of the decline and fall of the Roman Empire. They began their Petition with the most astounding statement—in fact, speaking as it were with the authority of a page of Gibbon, that the fall of the Roman Empire was entirely owing to the Law of Hypothec. In an Appendix to the Report to which he referred, and which he did not think received sufficient attention, they would find what was the rule in foreign countries. In Austria, landlords had a preference over other creditors. In Baden it was the same. In Bavaria it was likewise the same, though there the preference varied to 1237 some extent. In Poland this law rested upon the Common Law. In Belgium it was the same, and they could claim rent for three years back. In Germany this preference rested upon the general body of the Prussian Law. All agreed in granting a preference. In Darmstadt it was the same; in Radical France, which had come through so many revolutions, the landlord had a right of hypothec, and the Code Napoleon, it was well known, was founded on the Roman law. In Prance there was no agitation on the subject, not even by Gambetta. What was the reason of this difference between France and Scotland? In Scotland the landowners were few, and the tenants were many; but in France the tenants were comparatively few, and the landowners many; and so the farmers were agitating against the landlords on this question, and getting the support of so many Scotch Members as against the landlord. This, however, the farmers should bear in mind, when they looked on what was going on in the course of their Parliamentary history. They ought to remember the great fact that they had had a Liberal Lord Advocate resisting this Bill, while now they were told a Conservative Lord Advocate was going to support it; and they might depend upon it, when the time came that the agricultural labourer was enfranchised, and bore to the farmer the same relative position that the tenant-farmer did now to the landlord, this was as certain as that the sun would rise to-morrow—though in London they might not see it—that there would be hon. Members—God forbid that he should say that it would be the case with any hon. Members who were now sitting there—but when that day came, there would be hon. Members who would be found to take up the case of the labourer as against the tenant-farmer, just as there were Members now to take up the case of the Scotch farmer against the landlord. A Law of Hypothec existed also in the free City of Hamburgh; in Hesse it was the same; and it was the same in that country which, if they were to believe an article written by the late Prime Minister in a magazine lately, England would follow her in decadence—Holland. In fact, the state of the law in Holland was similar to that in Scotland before they amended it in the latter country in 1869. In Italy they had a law, giving security to the landlord, which 1238 was adopted from the Code Napoleon. In Saxe-Coburg, if they had not preferential security, the rent was generally paid half-yearly or quarterly, and was secured to the landlord. In Saxony there was a preferential claim to the landlord. In fact, Wurtemburg was the only Vans Agnewed country in Europe—the only country in which there was no preference given to the landlord; and he wished the hon. Member joy of this solitary example in favour of his legislation. Even in America, what was the state of things? There was a preference given in the States of Alabama, Georgia, and Pennsylvania; whilst in New York the landlord was on the same footing as other creditors; but by attachment a preference might be acquired even there. That was the state of things in Europe, and also in America; and he ventured to think that this Law of Hypothec could not be so iniquitous, impolitic, and injurious a law as it was said to be in this document from the Scottish Chamber of Agriculture, or it would not have been found pervading all Europe, and even still holding its own in America. So much for the first part of his Resolution. If they dealt with this question, which involved great principles of legislation permeating their whole commercial legislation, it ought to be dealt with in a statesmanlike way, and not in an isolated and exceptional way, as this Bill proposed to deal with it. They ought not to have one law singled out for abolition, without a regard to the general principle on which their legislation ought to be conducted. He therefore proceeded in his Resolution to say that it was not expedient to make this change. What was the object of all their legislation with regard to the land and farming? It was for the benefit of agriculture. It was not for the benefit of the individual farmer, or it ought not to be, at least. It ought not to be for the benefit of the landlord, but ought to be for the benefit of the nation, by producing the greatest amount of crops in the best way. Granting this, however, was it necessary to abolish this law in Scotland? The barren moors and hills had been subdued and reclaimed, until the agriculture of Scotland was a bye-word for its excellence, and all that, they must remember, had been effected under this very law. They 1239 might say it was in spite of it if they chose; but it was quite as open for him to say that it was in consequence of it. They, at any rate, agreed that it was concurrently with this law, if not in consequence of it, that this state of things had been produced. The hon. Member for Wigtownshire had described the state of his own estate as that of a perfect garden, until they might almost expect the shares of the railways would rise, owing to the number of persons who would, flock to see it when his speech was read. His interpretation that it was in consequence of hypothec was a natural one. He wanted no more than this admission. He said that if they looked to the condition of the country—and he was, indeed, willing to accept the statement of his hon. Friend as to the condition of his own farm—they had every reason to be satisfied; and how had that happy state of Scotland been brought about? This brought him now to the latter part of his Resolution. It had been brought about, he asserted, by the industry and enterprize of their farmers; but it was not by the large farmers alone. No doubt, in his own county, large farmers, by their industry and enterprize, were doing, and had done, much in the way of reclamation of waste land; but this subduing of the hills and moors of Scotland had been done by the small farmers generally. It had been done by the little men who had risen from the rank of peasants. They got a horse and cart, and took a bit of land, and rose gradually, until they had become great and wealthy men. All through the evidence presented to the Commission, they had this shown as the great characteristic of Scotland—that men had raised themselves by small means to become farmers of the largest holdings. They might take the case of Mr. George Hope as an example. He believed that his father began in a very small way, and he himself eventually became one of the greatest farmers, and, after having retired from farming, was enabled to become the proprietor of two estates in Peeblesshire. What did the Committee say upon this subject? They said that the evidence taken both in the present and former inquiries was conclusive as to the fact that the law of hypothec afforded facilities by which industrious and intelligent men raised themselves 1240 from very humble positions to those of prosperous farmers. There were many instances of shepherds and agricultural labourers raising themselves to the comfortable position of tenant-farmers by the facilities afforded them of obtaining land, which they could not have had but for the Law of Hypothec, and the Commission said that there could be no greater mistake than to withdraw these facilities from such men. The late Lord Dalhousie and the Duke of Argyll, Liberal statesmen, always spoke in the same way. He (Lord Elcho) therefore held, looking to the interests and safety of the State, that there could be no greater misfortune than that they should have only two classes in it—the large landlords, who were the owners, and the large tenants, who were the occupiers of the soil. This would be the result if they were to drive out of the market, as must invariably be the case if they abolished this law, the small and industrious farmer, and prevented him from rising. In the far North there had been a great deal of waste lands transformed into the richest corn land in Scotland or Great Britain. This land had been given to these small farmers for nothing for a certain number of years. They afterwards held it for a small rent, and gradually increased the rent until it returned a fair amount. In this way, improving tenants were gradually enabled to take into their hands farms of rich alluvial land. That was a sound system. They had it on evidence that could not be denied that if this law was abolished landlords, in their own defence, instead of giving 12 months', 18 months', or two years' credit to their tenants, would be obliged to fore-rent, and possibly combine farms together, and turn comparatively small holdings into large grazing farms, and thus there would be a monopoly created on the part of the big farmers to the injury of the small farmers. That was not to be desired, and he questioned whether fore-rents would be of advantage. He was sorry to say he was speaking at a time when there was great agricultural distress. These times of distress told not only upon small farmers, but upon the big farmers. Some of the latter, who were most eloquent at agricultural club meetings, were not prospering at this moment. How was the difficulty met in many cases? It was 1241 met by the landlords, who could afford to show consideration for their tenantry, giving them two or three months' grace when their rent became due. But pass this law, and they could not do that, and when bad times came again—and let them not think the passing of this law would prevent them from having periodical recurrences of bad times—they would not be able to attribute these bad times to the Law of Hypothec, as he did not doubt would be done in the course of this debate, and they would suffer from the impossibility of landlords showing this consideration to their tenants. Fore-rents would take an enormous sum out of the pockets of the tenants. When this question was first mooted, and the antidote of fore-rent was mentioned, there was a howl of indignation in The North British Agriculturist, or somewhere. It was said—Is it possible that the landlords of Scotland can be so hard-hearted as to fine their tenants £8,000,000 by compelling them to pay forehanded?He had a letter from Mr. Murray, Crown Agent, who gave evidence before the Lords. He said he had seen it stated that the effects of the abolition of hypothec would be to make the tenants pay two rents in one year, which practically meant a disbursement to the extent of £7,000,000. Looking to all these questions, he (Lord Elcho) thought it was not expedient in the national interest to make this change. If it were to be made at all, it ought to be made on some broad principles; and they ought to consider its bearings in other countries as well as their own before they thought of making it. His hon. Friend the Member for East Sussex (Mr. Gregory) had put an Amendment on the Paper, to which he had not the least objection. His hon. Friend proposed that the law ought to be maintained and assimilated to the law of England. There might be things in the law of England which it might be desirable to adopt in the Scotch law, and there might be things in the Scotch law which it might be desirable to put into the English law. He had no objection, therefore, in the least, to the Amendment, or to the assimilation of the law of the three countries. He had to apologize for the want of preparation in his speech; but he had to say that it was only two days ago that he determined to speak upon the subject, and 1242 since coming to that determination his time had been very much occupied. Monday, for instance, was spent in witnessing the tenacity of one Irish Member, and the skill in anatomizing of another, who occupied seven hours with one item in the Estimates.
§ LORD ELCHO
said, he would not, indeed, have spoken, if he had not heard that Her Majesty's Government were going to support this Bill. He owned that he heard that with great astonishment, because he ventured to think that if this question was to be dealt with, as he had said already, it ought to have been dealt with on some broader principles than those of Party and political expediency. It must, he was afraid, be under pressure of political expediency that the Government were acting. The principle of the matter at issue remained absolutely unchanged. Nothing had occurred in any way to alter or change the character of the Act they were proposing to repeal; and when he reminded them that so late as the year 1875 the Government opposed this Bill, and that 19 Members of the Government, besides three Members of the House, who were not then in the Government but were so now, had resisted the abolition of the Act, he thought he had shown grounds for his assertion that it was on political expediency that they were proceeding. He should be glad to hear what light had suddenly dawned on the Treasury Bench which was not brightly shining on them in the year 1875, and what the possible reason of it could be which had induced 19 Gentlemen—Cabinet Ministers and others—who had voted against the abolition of this Act, now to vote in favour of its abolition. Far be it from him to lecture, or presume to say anything approaching a lecture, to the Lord Advocate, the Treasury Bench, or any other Gentlemen in the House. But he could not help thinking that the reason for this sudden change of opinion was the Mid-Lothian Election that was impending; but he ventured to say that, by doing what they were doing, by being untrue to their former convictions on the subject, they would not retain a seat in Scotland they would not otherwise have retained, nor would they gain a seat which otherwise they would not have gained. On the contrary, if they had 1243 resisted this as a Government, and if every Scotch Member had voted against the Government and carried it, what would the position of these Members have been on the hustings? They could have said—"We have had the courage to go against our own Government, and we have passed this law, abolished hypothec in spite of them." He thought their position would have been better. Each Government had a raison d'etre, and the raison d'etre of the Conservative Government was not to give way to the passing blasts of political expediency, but to take their stand on sound principles of legislation. He ventured to think that the country, when it refused to return a majority to the late Government and put the present Ministry in Office, did so in the belief that they had secured a Government which would have the moral courage to resist what were called "popular cries," which were founded, in many cases, on wrong principles, and that they would have had some bulwark upon which they could rely. But even granting that this change of policy on the part of the Conservative Government did secure them the Election in Mid-Lothian, or a gain of a seat somewhere else, that would be a very trifling gain compared with the loss which would attend the loss of confidence on the part of the country in a Conservative Government. This matter would affect not only Scotland, but the whole of the country. He, therefore, begged to move the Resolution which stood, in his name.
§ MR. BAILLIE COCHRANE
, in seconding the Amendment, said, he wished to guard hon. Members against any false impression which they might have received from the speech of his hon. Friend who introduced the question. One of his observations was that the Scotch landlords were in favour of this Bill—[Mr. VANS AGNEW: I said nothing of the sort.] The Scotch proprietors and Scotch gentlemen who were in favour of it were those who were standing for Scotch constituencies. It was thought very convenient to count out the Bill last Session, and doubtless his hon. Friend knew it would be counted out—[Mr. VANS AGNEW: No, no.] Well, then, he might have known it, and the fact that it was counted out then, and that they had now such a muster of Members, was a clear indica- 1244 tion, as had been pointed out, that they were approaching a General Election. They knew what this Bill was. It was the thumbscrew applied by the Scotch constituencies to candidates. Let them ask any gentleman connected with Scotland, who was not standing for a Scotch constituency, and he would tell them that it was not necessary. Why, then, were Scotch Members made by absolute compulsion to support this measure? He was sorry, he must say, that the extreme Liberalism which was prevalent in Scotland had devised this as the first blow that was to be made against the agricultural interest, and they believed this Bill was a crucial test to their Scotch Members. His hon. Friend who moved the second reading of the measure had said that agriculture was very prosperous in Scotland. It was, no doubt, the fact that Scotch farming was a model of farming, and was praised everywhere; but this pre-eminence in the face of Europe had been maintained under the Law of Hypothec. This was not a question merely affecting landlords. As landowners they could protect themselves. If a farm went into the market, instead of giving a year and a-half to tenants in which to pay their rent, they had only to make them give security for the money before they entered the farm, or make them pay in advance. But it was a most important question as affecting the improvement of small farms, and the improvement of small farmers. If they carried a Bill like this, they would undoubtedly make a monopoly of farming. It would be surprising to him if the Liberal Party—the English Liberal Party—were to think of supporting a Bill of this kind, which was really to give the land in monopoly to the large farmers, and to turn out a most valuable class of men who had laboured so admirably, and had raised themselves, as the small farmers in Scotland had done. He thought it was one of the worst signs of the times that this Bill should be so universally supported by candidates on the hustings. He was sorry to hear that the Lord Advocate and the Government had changed opinions upon it. He knew that it was a great cry in Scotland—a great Liberal cry—and that the Government hoped to gain support by supporting this Bill. He, therefore, appealed now to the English Members to listen 1245 to people who were well acquainted with Scotland, who had Scotch property and Scotch interests, and who were not Scotch candidates—and he thought they would agree with them that, if the House passed such a Bill as this, they would inflict a great blow on agriculture in Scotland, and would do great injury to that admirable class in the country—namely, the small tenant farmers.
To leave out from the word "That" to the end of the Question, in order to add the words "inasmuch as the Law of Hypothec is the equivalent in Scotland of the English and Irish Law of distress, and inasmuch as many other examples of preferential security over property being given in certain circumstances to particular creditors are to be found in the commercial Law of this and other Nations, this subject, if dealt with at all by Parliament, should be considered as a whole, and not be treated locally and exceptionally as in the present Bill; and in dealing with this subject due consideration should be given to the fact that the preferential security for payment of rent which landlords have from time immemorial enjoyed at Common Law, regulated by Statute, has, to the great advantage of the Nation, enabled many industrious and enterprising men of small means to obtain farms and rise in the world, which otherwise they could not have done,"—(Lord Elcho,)
§ Question proposed, "That the word8 proposed to be left out stand part of the Question."
§ VISCOUNT MACDUFF
said, he would like, with the indulgence of the House, to say a few words on this question, though he confessed that he felt almost ashamed to have to go through some arguments which had been so often brought forward, and, he might add, pretty well hammered out from every point of view. He was glad to think that, by a slow and mysterious process of evolution, all Her Majesty's Government had now gradually emerged into the condition of full-fledged supporters of the abolition of hypothec. The noble Lord said he was sorry to see they had made use again this afternoon of the old argument about the small tenants. He recollected, when this question was last brought forward, four years ago, it was said that hypothec was necessary to prop up the small tenants. He did not believe anything of the kind, and must confess that he had always been rather amused at his noble Friend (Lord Elcho), and those who thought with him upon 1246 this question, being so thoughtful as to take the small farmers under their wing. It had always been a stock argument with those who thought with the noble Lord on this question to say that the abolition of hypothec would extinguish the small tenant, and that it should, therefore, be maintained on grounds of general expediency. He could not agree to anything of the kind. He yielded to none in his appreciation of the work done in Scotland by small tenant-farmers. He had had practical experience himself of their energy, enterprize, and frugality; which had converted acres of wild morass or stony hillsides into fertile corn fields. But could anyone seriously maintain that these admirable qualities had been brought out by the Law of Hypothec? He believed that they would have existed if the Law of Hypothec had never been heard of. He was quite ready to admit that the Law of Hypothec was of use in a remote period, when the landlord and tenant were on an entirely different footing; but all that made this law then necessary had long since passed away. One was told often, and he had even heard it in that House, that the Law of Hypothec must be maintained in order to protect the poorer class of farmers against the richer. That seemed a very attractive argument. For his own part, he rejoiced to see a large number of small tenants. But was it seriously meant that their legislation was intended to encourage men without capital to take farms? Surely such an argument was at variance with every sound economic and commercial principle, and would, if pushed to its logical conclusion, land them into rank socialism. It came to this—that the economic advantages of capital were so unfair that they required, this law to counter-balance and nullify them; and he did not think that, in spite of able advocacy opposite, the House of Commons would be found to support such a view. What was wanted in Scotland was not a large class of small impoverished farmers, dependent for their very being on their landlord, and living only in his approving smile, but a class of farmers, whether large or small, who should be independent men, possessed of energy and enterprize, and not beholden to their landlords for the capital with which they cultivated the soil. He did not mean to imply that farms should be held only by large capitalists, but that 1247 farms, whether they were of 20 or 1,000 acres, should be held by men whose capital bore a fitting proportion to the land they rented; and when he heard of hypothec helping the small tenants, he could not help thinking that those who advanced such arguments were fondly dreaming of the feudal days, when the farmer, recognizing in his landlord his only means of subsistence, looked up to him for everything, and was in fact, if not in name, little better than a serf. If landlords were so solicitous as some seemed to think for the multiplication of small farmers, why did they not proceed to divide their present holdings into small ones, and thus encourage so worthy a class? But he saw no such tendency, and could not help thinking that this argument of the "small tenants" had been ingeniously dragged forward to cover an unpopular and untenable position. It was almost an insult to Scotch farmers to say, as he had often heard it said, that agriculture in Scotland could only flourish when bolstered up by the antiquated Law of Hypothec. He had said before that the fullest possible concession ought to be made to the utility of this law in remote times. It had rendered undeniable services to agriculture when it was in its infancy, and when the landlord was virtually the tenant's only creditor. But now-a-days circumstances had entirely changed. The landlord was now no longer the only creditor of his tenant. In very many cases he was far from being the largest creditor, and farmers had frequently told him that their manure bill was often double their rents. Indeed—and this was an argument which did not appear to have been sufficiently appreciated—while other creditors, in dealing with a farmer, risked, not unfrequently, a considerable portion of their capital, the landlord could, in the nature of things, risk no more than the interest on his—namely, the rent of his land. But the anomaly of this law was that it gave a preference claim to the landlord over all other creditors, which must necessarily diminish the credit of the farmer with his banker and the general public. Now, his noble Friend laid some stress upon preferential security being given over other sorts of property. This might be advisable under certain circumstances; but, unless it was specially desired by both parties, it ought not to be main- 1248 tained, save on some ground of general expediency, and none such was found to exist in favour of hypothec. As for landlords, he maintained that they did not want this law, and upon well-managed estates it was rarely, if ever, put in force. Were it abolished tomorrow, ample securities of another kind might be easily devised. In letting a farm a landlord ought to look to the means of the applicant; and it w as neither to his interest, nor to that of the tenants, still less to that of the land, to encourage men of insufficient means to take farms, relying upon this Law of Hypothec to see them through. He was told that the difficulty of settling this question arose from the inconvenience of making a different law for Scotland from that which obtained in England. That was the gist of the argument of the hon. Member for East Sussex (Mr. Gregory), as developed in his Amendment, He did not pretend to be well versed in the opinion of England on that question, though he noticed, a short while ago, that, in a speech at a Chamber of Agriculture in an Eastern county, a proposal was made to do away with the law of distress. He did not presume to offer any opinion on this subject to English farmers; but he viewed the question as a purely Scotch one, which ought to be settled on principles thoroughly understood and appreciated in Scotland. Precedents were not wanting for introducing Bills applying to one Kingdom only, or different Bills on the same subject for each Kingdom. An Agricultural Holdings Bill was brought in for Scotland separate from that which was passed for England, and a Game Act had actually been passed for Scotland without a similar measure being proposed for England. Athough, on principle, he should always be happy to see the laws of the two Kingdoms assimilated, yet, until the assimilation could be brought about, he did not think that the House need be moved by any such consideration from giving its assent to the measure now before it. This was a time of general and wide-spread depression in the country, and prices were not likely to rule for some time to come in favour of the agricultural classes. He could not help thinking that it was a propitious moment to remove an old long-standing grievance, and to settle the question in a manner which had been approved over 1249 and over again by a practically unanimous vote of the Scotch people.
§ SIR GEORGE DOUGLAS
said, he had much pleasure in supporting the Bill of the hon. Member for Wigtownshire, not under compulsion, but because he felt convinced that the time had come when agricultural hypothec should be abolished in Scotland. Scotchmen had now had many years' experience of that law, and he could not but observe that the feeling of objection to hypothec was much stronger and more universal now than formerly. The present landowners of Scotland were, he believed, quite indifferent as to its continuance, while the majority of the tenant-farmers felt it to be a great drawback to their credit and their interests; and in times of general depression like the present, when a succession of unfavourable seasons, bad crops, and trade crises were taking place, they had difficulty in getting those temporary advances from bankers which were a great help to the farmers. Owing to the climate and the geographical formation of the country, the extent of land capable of cultivation in Scotland was very limited, and the demand for farms and agricultural produce had yearly increased. The discoveries of science were extensively applied to husbandry, and had enabled farmers to obtain much larger returns from the soil than formerly was possible; but this could only be done by great efforts. It must not be forgotten that prices had risen of late years. From inquiries which he made a few years ago in the East of Scotland, he found that the expenditure for feeding stock, artificial manure, and seeds, not including labour and machinery, in many cases exceeded the rent paid, and in others approached the amount. On one farm rented at £600, these expenses amounted to £670, while the bill for labour, manual and horse, was about £800. On a farm which had a rent of £1,500 a sum of £1,100 was paid for artificial manures, seeds, &c, and £1,400 for labour. On a farm worth £1,700 the cost was £1,900 and £1,600. These figures were taken from farms, the leases of which were generally about half run, and where no excessive improvements had been carried on. He had other figures which it was unnecessary to trouble the House with; but he might say that on a rental of £12,500 1250 no less than £11,500 was spent in manures, &c, and £11,700 for labour. With this knowledge of the expenses of carrying on a farm, it could scarcely be shown that the law should be maintained, however useful it might have been in bygone times, when capital was scarcely known among the farmers of Scotland, when small holdings were the rule, and when the circumstances of agriculture were totally different from those of the present day. Why the interests of the landowners should be protected against those of other creditors, without whose assistance the tenant would not be able to extract from the soil sufficient to pay his rent, he did not know. It was quite true that the landowner had probably the principle interest in the farmer's credit. That he and his tenant were bound together for a period of years, while the labourer, after his engagement for the year was over, was free to seek fresh employment elsewhere, and while the seed merchant and the implement maker need not again transact business with a farmer who was not a good customer. On the other hand, the landowner under present circumstances, when so much was demanded from farmers, required no law to protect his interests. He always had it in his power to make searching inquiry into the antecedents of anyone who offered for his land, and to make stringent conditions as to its management. Sequestrations for rent were not common in ordinary years in Scotland, and when they did occur it was frequently on estates where the owners had not taken precautions in the selection of their tenants, who had been men who offered high rents, but who were unacquainted with farming, and fell behind in the first or second season. No doubt, the present system of hypothec did tempt men to offer higher money, and induce them to take larger farms than their means would warrant. On many farms, he believed, the terms were now being advanced. Under a proper system there should be no accumulation of arrears, and hypothec would be unnecessary. In his own district they had an excellent system of long leases, and the only protection they required was some protection from ground game, and the abolition of hypothec.
§ SIR EDWARD COLEBROOKE
said, he was anxious to avail himself of this 1251 opportunity to state to the hon. Member who had brought forward this proposition, that the proposal he had made opened fair ground for a settlement of the question. He was anxious also to bring back the House to the propositions the hon. Member made at the close of his speech, and to leave out what constituted the staple of the hon. Member's speech as to the defects of the law. He had always felt that there were some defects in the law. With these views, he came down to the House without any knowledge as to the course the Government were about to take, or without any clear knowledge of what views the hon. Gentleman was about to advance. He had endeavoured to study the 2nd clause, and to see what the power remaining to the landlord would be under that proposition. Not being a lawyer, he was unsuccessful; but what he understood the proposition now to be was that the hon. Member would give greater effect to a law some 200 or 300 years old. Whatever might be the defects of that law, the principle of it was worthy of consideration, and he would advise those who had hitherto opposed this Bill to waive their objections to it, on condition that they should obtain security for their rent; and, secondly, some reasonable process for terminating the lease in case of the tenant being unable to carry out its due provisions. These conditions were essential to the abolition of hypothec. If hypothec was abolished, it became necessary to protect the honest man against the bad, and to that end there should be a law to secure the payment of rent. As he understood it, the 2nd clause would give not merely the power to the Sheriff to compel the tenant to give security for his rent, but it would also give power of summary removal. That was a strong proposition, and he questioned whether the proposal now made would have exactly the same popularity as proposals for the abolition of hypothec had hitherto received. At the same time, something of that kind must be done, if they were to do justice between the parties; and without having any idea of the course the Government were going to take, his idea in coming down to the House was to get them to reconcile the law to the interests of the two parties affected. He was glad to find that the Government were about to take a step in this di- 1252 rection, and it seemed to him desirable that the Lord Advocate should speak as early as was consistent with his dignity, so that the House might know what they were going to vote upon. He did not agree with those who said it was within the power of the landlord to obtain any protection he pleased. No doubt, many did so on land that was not let from year to year; but on leases of farms extending over 19 years the landlord parted with his property for a term, during which, in ordinary course of nature, the tenant might in all probability change. The landlord lost his control, and could not have the same knowledge of the party who might succeed. He therefore required the protection of the law in case the farmer should not be a person who should make good use of his farm. These were reasons why he thought it was most important, if there was not preference given to the landlord, that there should be power of strictly compelling the tenant to give security without any prejudice against any other creditors. Entertaining these views, he was anxious to bring the House back to the discussion on the particular points of the Bill. He would not go into vague generalities as to the imperfection of the law and the desire to maintain the tenant's independence, but would go to what the practical effect of the proposal of the hon. Gentleman would be. He was prepared to give his support on these conditions. He could not agree with all the hon. Gentleman had said in his speech as to the grounds of objection to the existing law, though he did not dispute that they were very strongly entertained by the tenant-farmers of Scotland, that the Law of Hypothec produced undue competition, and prevented farmers from obtaining credit. All that a landlord required was to see whether the candidate for a farm was a man of good character, and whether he had stock enough for his farm. He could not say the law had encouraged the landlords to accept small tenants; but it had encouraged them to give to those tenants leases which they would not have had in former days without giving proper security. On the other hand, he admitted that when they came to examine the law, there was something to be said as to the hardship of giving preference credit to a landlord, though 1253 cases did not often occur in which the other creditors of the tenant suffered. Still, he thought, on principle, the position was not defensible. While a landlord had a right to ask that he should have security for his payment, he should have the same position as other creditors, and if he failed to support his claim in time, he must take the consequences. In this view, he thought the tenant had a right to ask of Parliament what was asked for by the hon. Gentleman. Holding that view he would appeal to Her Majesty's Government to inform the House as to what their views were, and also whether Her Majesty's Government would take the Bill themselves. It seemed to him that the hon. Gentleman (Mr. Vans Agnew) would have a very poor chance of the Bill ever coming on again except in the small hours; and if there was a reasonable prospect of a settlement he did not see why Her Majesty's Government should not seize the chance, or at all events, give a day for the discussion of the points. Because the real discussion would be in Committee. When they came to a Division, probably the second reading would be carried. What they had to decide was whether the proposition made in the Bill was a fair one. The giving of summary power of ejectment was a matter for consideration, which he would adjourn to another occasion. They ought to consider not merely what the effect of this Bill would be in Scotland, but what the effect would be in England. He did not think they could separate the agricultural and urban hypothec so distinctly as was supposed in this Bill. He represented very largely an urban constituency, and wished to see justice done to his people as well as to others, and if this. Bill was passed with regard to agricultural subjects, he did not think it would be possible to resist the demands of urban tenants. He thought the alteration should be given to both. Entertaining these views, he would not oppose the second reading of this Bill.
§ MR. CLARE READ
said, that when he last joined in a discussion on this subject he had the honour of a seat on the Treasury Bench. The noble Lord the Member for Haddingtonshire (Lord Elcho) said the Government was about to change its front, because they opposed the Bill on that occasion. They had not changed, because that was the only chance 1254 Members of the Government had in their days of liberty to speak and vote as they pleased. On that occasion, the hon. and gallant Member for Portsmouth (Sir James Elphinstone) said if hypothec was abolished there would be nothing in Scotland but a bloated aristocracy of large farmers. Of course, the jocular way in which the hon. Member said that deprived it of its sting. It was a Conservative Government in 1867 which amended the Law of Hypothec; and as he had said to the farmers of Norfolk, so he would say to the Liberal farmers of Scotland, that, after all, they got the chief part of their relief from a Conservative Government. It was said that if they passed this law, there would be no more small Scotch farmers. If it was so, it was a libel on the landlords of Scotland, as it meant that they would not be good Samaritans, would not be generous to their tenants unless they could do so with other people's money. Large farmers in England had generally the worst land, and small farmers the better land. It was often found in England that a generous landlord, wishing to make some provision for an old servant or small tradesman on the estate, intrusted him with a few acres which he was utterly incapable of managing, and it generally ended in his coming to grief. If there were more care exercised in the selection of small tenants it would be an advantage. The small farmers of Scotland had constantly petitioned the House in favour of the abolition of the Law of Hypothec, and he did not think there had been one Petition in favour of its retention. The question was one essentially of home rule. The farmers of Scotland demanded it, and he maintained that they ought to have it. When it was said that the constituencies of Scotland did not represent the small farmers, he found that the franchise was £14 rent, which would surely embrace the vast majority of small farmers. These were the men who wished that their Members, whether Liberal or Conservative, should vote for the abolition of the Law of Hypothec. As to the argument of the noble Lord that if they abolished the Law of Hypothec they would abolish the Law of Distress in England, all he could say was, that when there was the same unanimity among the farmers of England the House would grant their request. Another reason why he had 1255 changed his mind was the operation of the Agricultural Holdings Act in England. In England the farmers had simply asked that the capital employed in the cultivation of the soil should be theirs, and that they should be preserved from the ravages of ground game. They had obtained neither, nor had they been obtained for Scotland. The noble Lord said the landlord was an exceptional creditor; and so he was, for he only risked his rent, which was his interest; he could not lose his capital, which was his land. It had been said that in the farmers' clubs in England there was very little mention of the law of distress. He admitted that it was not often discussed, but whenever it had been discussed it had been condemned in its present form. He wondered his hon. Friend (Mr. Gregory), who was so anxious to perpetuate the Law of Distress, should not turn his legal mind to its improvement. The hon. Member had said, four years ago, that he thought it would be beneficial if the Law of Hypothec in Scotland could be assimilated to the Law of Distress in England; but he (Mr. Clare Read) considered the latter was worse than hypothec in Scotland. In hypothec everything was done above board, and a landlord could not move without going to a court of law; but under the Law of Distress a man might, without warning or proof, go and seize a tenant's goods, and employ for that purpose not the legitimate officer of a Court, but any trumpery vagabond out of the streets. Not only that, but he could seize for as much as six years' rent. Then the noble Lord (Lord Elcho) had said that the Law of Distress was not very generally put in force either in England or in Scotland. [Lord ELCHO: I did not say so.] Then he would say it. [Lord ELCHO: It is the fact.] No doubt it was, and he would rather hire a farm of his noble Friend without any formal agreement than take the most liberal lease from some other landlords; but it did not follow that the Law of Hypothec was good. On many estates, no doubt, it was not put in force; but where the landlord was very needy, or grasping and avaricious, or unjust, it was put in force to the great detriment not only of the tenant on that estate, but to the injury of agriculture by damaging the credit of tenants generally. It could not be said now, as was said four years ago, that agriculture 1256 in Scotland was very prosperous. They might not be so badly off as in England, but it was no longer true in either country that the farmers "flourished and complained." It had been urged that the landlord was a partner, who committed his capital to another for a share of the produce. That might have been a very good argument in times gone by, when the landlord found the capital, the seeds, and the stock, the tenant being a sort of serf; but circumstances were very much altered now, and the banker, merchant, seedsman, and the labourer had to be considered as well as the landlord. Rent was like the interest of money; and just as the usurer who demanded his interest in advance would not get so much as if he gave credit, so landlords, if they were to demand their rents in advance, would have to be content with less rent. He denied I that the abolition of hypothec would prejudice the interests of mortgagees. As the tenant-farmers of Scotland urgently demanded this repeal, and made it a test question at Elections, he should no longer withhold his vote, but would give it cheerfully for the second reading.
§ SIR DAVID WEDDERBURN
, in supporting the Bill, said, he wished there had been more English and Irish Members present, because he should like to draw their attention to certain facts. The history of this Bill was very instructive, as bearing—although it might only be in a minor degree, but very distinctly—on the question of Home Rule. This question of the abolition of hypothec was one regarding which the people of Scotland were at present practically unanimous; and the four hon. Gentlemen whose names appeared on the back of the Bill were Representatives of Scotch county constituencies, and sat on the Government side of the House. It was now 10 years ago since he had the honour to contest the constituency of South Ayrshire, and he was at that time in favour of the abolition of the law, while his hon. Friend who now sat for the county was against its abolition, and he believed one reason why his hon. Friend was not returned on that occasion was because he opposed that abolition. He now rejoiced to find the name of his hon. Friend on the back of this Bill, and he welcomed him as an influential convert to its principle. Now, he found there had been four Divisions within the last 10 1257 years in this House on this subject. In 1869, the late Member for Forfarshire (Mr. Carnegie) introduced a Bill which was more sweeping in its provisions than the present Bill; and he succeeded on that occasion in obtaining 129 votes in its favour, and there were 93 recorded against it. The Ayes included 27 Scotch Members, and the Noes 22 Members. That did not argue that there was any great majority of Sootch Members in favour of the abolition of this law; but, only two years later, Mr. Carnegie took another Division on the same Bill, and he did not find any very marked difference then in the votes given. There were then 28 Ayes and 24 Noes; but, owing to the opposition of Mr. Leeman, the cause of whose absence from the House to-day they all regretted, the Bill was rejected by 186 to 107. The reason of the hon. Member's opposition was that he considered the Law of Distress in England and the Law of Hypothec in Scotland to be inextricably bound up, and through the influence which he possessed with English Members he was able to get the rejection of the Bill. In 1873, after Mr. Carnegie had left the House, he (Sir David Wedderburn) had the honour to introduce the same Bill affecting not merely agricultural but urban hypothec, and at that time they were only able to get 85 in favour of the Bill, and 149 were against it. It might appear, from a superficial observation of these numbers, that the cause had seriously-fallen off in the amount of support it was able to obtain; but the point to which he wished to call attention was this—there were in the minority 35, and in the majority there were only 20, Scotch Members. These three Divisions were taken in a Parliament which was very largely Liberal in its majority; but what was still more important was that in the only Division taken in this Parliament in which the Conservatives were in the majority, there were 41 Scotch votes recorded for the Bill, and only three against it. He repeated, that upon this matter Scotch people were practically unanimous, and he must protest against hon. Members, such as the hon. Member for the Isle of Wight (Mr. Baillie Cochrane), attempting to tell English Members what the feeling of Scotland was. The hon. Member might be a very good Member for the Isle of Wight; but, holding the opinions which 1258 he did, he very much doubted whether he would find a constituency in Scotland which would elect him. He (Sir David Wedderburn) did not think this Bill went far enough; but he should gladly support it, because, as far as it went, it was in the right direction, and he appealed to English and Irish Members to concur in the view of the Scotch Representatives, and to support this moderate measure of reform.
§ THE LORD ADVOCATE (Mr. WATSON)
said, he agreed entirely with the observation that had been repeatedly made in the course of this debate, to the effect that this question had been thoroughly discussed on more than one occasion. It was, therefore, quite unnecessary to enter into an argument upon every point that could be raised pro or con the measure. He could hardly conceive that the noble Lord (Lord Elcho) should have felt the surprise he expressed at the action of the Government, when he took into consideration this other fact—that not only were the people of Scotland almost unanimous—both tenants and landlords—in favour of the abolition of the Law of Hypothec, but that the Representatives of the people in that House were practically unanimous on that point—the only remaining apostles of hypothec being, in fact, the noble Lord himself and another hon. Member for a Scotch burgh. The Amendment of the noble Lord formulated all those objections to the measure which its opponents could rely on. Taken as a whole, it was obviously an appeal to the English Members. He assumed, as the basis of the Resolution, that the Law of Distress and the Law of Hypothec were identical in principle. Well, that might be so or not. They were certainly somewhat similar in character, being both remedies competent to the landlord, and he did not say which was the best or the worst. He did say, however, that from what he knew of the relations existing between the agricultural tenant and his landlord in England, and from what he knew of the case in Scotland, he was by no means satisfied that the result was precisely the same in both countries. He was disposed to hold—indeed, he was satisfied as far as his experience went—that in Scotland the relations between landlord and tenant approached much more nearly 1259 to an ordinary commercial contract. There was more of what in England would be termed rack-renting. In Scotland it was simply a matter of contract. If the tenant did not give the commercial value of the land, he did not get it as tenant. Therefore, regarding it from that point of view, he did not hesitate to say it had long been his opinion that no case could be made out for the Law of Hypothec, and no good argument adduced for its maintenance. It had been said that there were other liens known to the law. The noble Lord made a very unhappy allusion when he referred to the lien that a shipowner had over the cargo he carried in his vessel. Those liens depended upon possession of the thing over which the lien extended. There were many liens of that kind, and he had never heard any objection to those on principle, because possession was, in those cases, with the man who had the right of lien, so that there could be no mistake about it, whereas the main objection to the Law of Hypothec in Scotland was that the man who held the lien was not in possession. The law had been somewhat relaxed within the last few years; but still a purchaser was not safe unless he paid for and carried off his purchase at once, or unless he bought it at a public auction after seven days' notice had been given to the landlord or his factor that such auction was to take place. Now, various authorities had been quoted by the noble Lord from the words of Gentlemen who had sat in that House, and who had held the Office of Lord Advocate; but he rather thought the noble Lord scarcely did full credit to these Gentlemen in stating their views on this question. He knew very well that in 1870 the present Lord Young, then Lord Advocate, stated distinctly to the House that he had been a Member of the Committee which had inquired into the Law of Hypothec, and the result of the inquiry had been to confirm the opinion he had always entertained as a lawyer, that hypothec was an entirely exceptional lien, altogether indefensible on legal principles. He bowed to the authority of Lord Moncreiff; but he should take the liberty to quote in full the passage which the noble Lord had quoted in part. Lord Moncreiff said—I do not think that any light is to be thrown upon the matter of the landlords' hypothec"— 1260 (referring to those liens which formed the second branch of the statement in Lord Elcho's Resolution)—"except that it shows it is not inconsistent with the great principle of law that where the risk is disproportionate to the interest there should be special security. Beyond that I do not think there is any analogy in the case.He (the Lord Advocate) accepted that ruling, and it would have been a good deal more to the point if the noble Lord had gone on to show that the landlord did incur exceptional risks when he gave his land into the possession of a tenant for a yearly rent. He quite admitted that in such a case as maritime hypothec there might be something to be said for the exceptional character of the risk; but he should like to hear from anyone who took the view of the noble Lord what there was which a man embarked in adventure, when he let a farm, beyond the risk of the mere loss of interest, so as to bring it within the rule laid down by Lord Moncreiff. That statement of Lord Moncreiff's was by no means favourable to the Law of Hypothec, unless it could be shown that exceptional risks were incurred by a landlord in letting a farm. The last point raised by the noble Lord's Amendment was as to the existence of urban hypothec. There was, however, this distinction between urban and agricultural hypothec—that, practically, no legislation had been demanded, so far as he knew, in the one case, whereas it was clamorously demanded in the other. Whenever the urban landlord or tenant made out a case and complained, it would be time for the Legislature to interfere; but that House ought not to occupy itself with remedying fancy grievances, when those labouring under them, appeared to be totally unaware of their existence. He did not desire to enter further into argument; but he should ask their English Friends, on whatever side of the House they sat, to consider whether this was a matter affecting them at all, and whether they ought not to be guided by the unanimous opinion of those who were really concerned? He would ask them to consider this question as a Scottish question, and not merely to say—"The Law of Hypothec in Scotland is the same as the Law of Distress in England, and both must stand or fall together." They must satisfy themselves that the relations between landlords and tenants in the one country were the same as in the other. [Lord 1261 Elcho: Hear, hear!] The noble Lord said, "Hear, hear!" He was sure the noble Lord did not wish to see the Irish Land Act introduced into Scotland. His purpose was to delay this measure, in order that he might have the opportunity of reducing everything in Scotland to the same level with England and Ireland. If that was his object, then he would have to wait a long time. Perhaps he meant to delay this reform until the Land Laws of Scotland were assimilated to those of England, and so leave the question to be indefinitely postponed. The system of tenant-right was very much interwoven with the system of land-right, and he was afraid that for all practical purposes, if they were to have any reform of tenant-right at all, they must start with that reform from a Scotch point of view; and they could not expect a measure changing the law so radically as the noble Lord desired within any reasonable compass of time. The hon. Baronet the Member for North Lanarkshire (Sir Edward Colebrooke) had appealed to him to state what the intention of the Government was with regard to that part of the Bill which dealt with the remedy of a landlord. He entirely agreed with the views of the hon. Member to this extent—that when they converted a contract of a privileged and exceptional character into something very nearly approaching, if not entirely consisting of, a commercial contract, it was not right that the landlord should be without his remedy. The condition upon which the tenant possessed the land was that he paid rent, and he did not think it would be seriously proposed that the landlord was to be entirely without a remedy, and that if the tenant did not pay the stipulated rent, or any part of it, he was to be entitled to retain possession for any length of time. The law of Scotland, as it stood at present upon that subject, was very distinct. There was an Act passed, not by the Legislature, but by the Judges of the Court of Session, in the year 1756, which practically regulated the matter. If a whole twelvemonth's rent be unpaid—and the practice then was to pay the rents yearly, and not according to the system of half-year's payment which had since sprung up—if it were unpaid, then the tenant might be brought at once before the local 1262 Judge, who ordained him to find caution within a short time for the arrears due, and also caution for five years' rent to follow, or to quit the farm at once; and if he were two years' rent in arrear, the lease was entirely extinguished, and the tenant-right was at an end. That had often been called "Judge-made law," and abused as such; and, taken in conjunction with the right of hypothec, that law certainly was somewhat severe; but those who blamed the Judges in that respect entirely left out of view that the older law of Scotland, which prevailed in 1756, was very much harsher, and that the Judges of that period thought they were very much mitigating in favour of the tenant the rule which prevailed during the period of agricultural depression which followed the Rebellion of 1755. It was in favour of the tenant entirely that the Act of Sederunt in question was passed. The hon. Member who had charge of the Bill had introduced the provision that at the end of six months there should be the same remedies against a tenant that now existed at the end of twelve months. If the hon. Member for North Lanarkshire (Sir Edward Colebrooke) was not satisfied with that, then he must say that it appeared to him to be a provision sufficiently stringent. He thought that something less might have sufficed; but he certainly did think that, failing the rent, or security therefor, there ought to be a power of removal. But these were matters of detail. They did not in the least degree affect the principle of the Bill, and he saw no reason why the second reading should not be granted, because the matter to which he had last alluded, in response to the appeal of the hon. Baronet the Member for North Lanarkshire, was one that might most appropriately be disposed of in Committee of the House.
§ GENERAL SIR GEOEGE BALFOUR
said, he could most heartily support the principle of the Bill, believing that the abolition of the right of hypothec, which entitled the holders of land to unjust priorities, such as at present prevailed in Scotland, would be beneficial, not only to the landlords and to tenants, but to the whole of the country. In supporting the second reading, he desired to make a few observations with regard to the remarks of the noble Lord the Member for Haddington- 1263 shire (Lord Elcho) respecting tenant-farmers. The noble Lord's usually candid mind had not on the present occasion induced him to give full credit to the tenant-farmers for what they had done for the agriculture of Scotland. He had brought forward the right of hypothec as one of the great means by which that wonderful change in the cultivation of the soil of Scotland, which was a marked feature in modern days, had been accomplished. He had said that this hypothec had been instrumental in raising up a set of farmers who had done all this good for the country. But he would remind the noble Lord that the great epoch from which dated the vast extension of the farm cultivation in Scotland commenced in 1770. That was the great landmark which guided all those who had studied the question as to the beginning of the improvement of agriculture in Scotland. In order to see what had been the result, it was essential to examine with great care the provisions of that great legislative measure, known as the Montgomery Act, and which had continued in practical operation, with but trifling changes. The Legislature, seeing the great evils which arose from the impoverished condition of many of the landlords who were merely life-holders of nearly all the lands of Scotland, decided upon making a vast change in the land system of Scotland. They passed a law whereby, first of all, landlords holding entailed estates were enabled to extend their leases for 19, 21, and 30 years; and next the Act, so far as it intrusted the impoverished landlords with the power of improving their lands by means of active, industrious, and skilled farmers, provided, at the same time, for money being raised for the purpose of erecting suitable buildings, and for making other improvements. It was to these measures, together with the employment of larger capital on the part of tenant-farmers, that the great improvement which had taken place since the year 1770 was due. The right of hypothec, which had existed from the earliest years, when holders of land provided cattle, seed, and implements for agriculture, and paid merely for the labour, had in reality nothing to do in effecting the improvements. The noble Lord had raised very strongly the question of the great risk which the 1264 landlords had incurred in giving over their lands to be cultivated by tenant-farmers. He would remind the noble Lord of this important fact—that, taking the value of the whole land of Scotland to be equal to £230,000,000, the capital invested by the tenants in its cultivation was represented by £40,000,000 or £50,000,000, and, therefore, the farmers risked infinitely more than the landlords risked, because the whole of this vast sum was actually in daily use, and exposed to deterioration and loss, as of late years. The amount of landlord risk was comparatively small. The annual interest on the capital value of the land could not be more than £7,000,000. Therefore, the farmers annually risked five times the sum that the landlords risked. It was upon that ground that he urged that the tenant-farmers of Scotland should have every consideration. It was mainly owing to the enterprize and knowledge of farmers, and to the use of their capital, that improvements were traceable. Nay, more, he would say that within 20 years the land of Scotland had increased in value to the extent of from £40,000,000 to £45,000,000; and without ascribing all this increase to farmers, yet a large share of the improved value might justly be ascribed to them, and that of itself constituted a claim which the farmers had upon the landlords to the extension of agriculture. He urged that not only the right of hypothec should be abolished, but that all other impediments—as, for example, the Game Laws, should be removed. The interference with the mode of cultivation, such as most of the leases so unwisely enforced, should be abandoned by the landlords. The defective buildings, not only for the farm labourers, but for cattle and other farming purposes, should be replaced by the landlord, or the rights of tenants to compensation recognized. But the true policy was for the owners of lands to invest in permanent improvements, and thus leave farmers to use their capital for purely agricultural purposes. He was very glad to hear that the hon. Member for South Norfolk (Mr. Clare Read) advocate in the strongest manner the right of the farmers to get the result of their improvements. He said distinctly that every relaxation of the impediments which landlords had placed upon the cultivation of the soil 1265 had been attended with good to the landlords, in a far higher degree than to tenant-farmers, and, through them, to the whole of the country. He not only cordially accepted the abolition of one burden, that of hypothec, but he urged that freedom of contract between landlord and tenant should be enforced; and he, therefore, deprecated any terms being laid down in Act of Parliament which farmers and landlords could provide for in leases. After the declaration which had been made by the Lord Advocate, he thought it would be unwise on his part to trespass further on the attention of the House.
§ MR. GREGORY
said, that he had opposed previous measures on this subject, and having considered this Bill with reference to those which had preceded it, and having heard the arguments that had been advocated in its favour, he had not, like the hon. Member for South Norfolk (Mr. Clare Read), changed his mind. He still thought it was an objectionable measure, and he would state shortly his reasons for so thinking. It had always occurred to him, in connection with this measure, that they should consider whether it involved a matter of general principle, and that principle capable of extension, and if so, whether sufficient grounds were laid down for making this alteration. With due respect to the Lord Advocate, he could not altogether agree with him in saying that this question of hypothec and distress was dissociated from the question of lien. He thought there was a considerable connection between them; but he would treat this matter merely as a question of hypothec in Scotland or distress in England, and the principle involved was that the landlord should have a remedy, and a speedy one, in respect of rent which was due to him for the occupation of his property. He did not think that any hon. Gentleman who had addressed the House in support of the Bill had alleged that such a claim on behalf of the landlord was in the abstract an unjust one. But the abolition of it was put simply as a question of expediency, and of a general wish on the part of the agriculturists of Scotland. With respect to the question of expediency, it was admitted by his hon. Friend who had introduced the Bill that during the existence of this law his own property, at all events, had, within a limited pe- 1266 riod, increased in value some 50 per cent under its operation, and certainly Scotch agriculture was not at present in a backward condition. But amongst the grounds alleged in favour of the abolition of this law, it was stated that the security of other creditors of the tenant was lessened by the preferential claim which it gave to the landlord. What evidence had they of that? It appeared, from the evidence given before the Committee of the House of Lords, that the losses of these persons from bad debts had really been nothing. The majority of them could not make their losses above 1 per cent upon the whole of their trade, and he should like to know if many businesses in the country were carried on upon better terms than that. He would remind the House that they were dealing with a principle which applied not only to agriculture, but to urban hypothec. He admitted, however, that as regarded the operation of the Law of Hypothec and the Law of Distress, they were not in a satisfactory position. He should like to see an assimilation of the process in both countries. He considered that the Scotch Law of Hypothec was objectionable, in that it gave a right of distress before the rent had accrued. It was altogether inconsistent with abstract justice that there should be a claim before the debt was actually incurred. On the other hand, he thought that the law of Scotland was better than that of England, in that it required something of a judicial process before the law was put in force. In England the process in many cases was now very objectionable, and it was placed in the hands of persons to whom the power ought not to be given. Again, as to the English law, he thought power extended too far back. He should be quite willing to limit the power of distress in England to a period of one year, or, at the very utmost, to two years. If the law of the two countries were put upon a reasonable footing in these respects, a great many of the grounds now alleged in favour of the abolition of the one or the other would be removed.
§ MR. J. W. BARCLAY
thanked the Government for having given their assent to this Bill, and especially the right hon. and learned Lord Advocate, for the very clear and strong exposition which he had given of the views of the Government. He was glad the right 1267 hon. and learned Lord had not committed himself to the support of the 2nd clause of the Bill. The power already possessed by landlords was of an extremely arbitrary and harsh character; and although most landlords might be trusted to exercise it in a proper way, it would be in the power of an unjust landlord to ask security from a tenant, even if only one day in arrear, as a means of getting possession of a farm. The arguments of the noble Lord the Member for Haddingtonshire (Lord Elcho) had been so completely answered by his hon. Friend opposite (Mr. Clare Read), and by the right hon. and learned Lord, that there was no occasion to refer to them any further. The landlord's lien depended entirely on a fiction of the law. This lien of the landlord differed essentially from all other liens with which he (Mr. J. W. Barclay) was acquainted in this respect—that it existed without custody of the goods over which the lien extended. In every case of commercial lien the lien was lost when custody was lost. To raise the contention that whatever moved across the land became the landlord's was absurd. He was pleased to hear the noble Lord's remarks about the enterprize of the tenant-farmers. No doubt, what he said was perfectly true. A great number of the smaller tenants had got possession of morasses and turned them into smiling cornfields. There was, according to the noble Lord, no rent payable for those waste lands; but he could not follow the noble Lord's argument that this circumstance was in favour of the Law of Hypothec. No doubt, many landlords in Scotland had assisted the tenants who had insufficient capital when they offered the highest rent; but to say that the landlords would not assist the tenants unless they were sure of the rent was a libel on the landlords of Scotland. There was no new argument to offer on the question. The present position of agricultural affairs was the most conclusive argument. For several years back, from one cause or another, to a considerable extent owing to the existence of the Law of Hypothec, capital had been drained away from agriculture, and now the whole agricultural interest was suffering from want of capital more than from anything else. The man who entered on a farm with an insufficient capital had found out that it was the most 1268 hopeless thing a man could do to enter upon farming with an insufficient capital. The profits had never in his (Mr. J. W. Barclay's) experience been enough to enable a man to pay interest on borrowed capital; and so, when the first wave of disaster came, he became engaged in a struggle to carry on and maintain his hold on the farm, which continually got into a worse condition, and by-and-bye was returned to the landlord in a very deteriorated condition. This Law of Hypothec, instead of being a tenant's question, as used to be alleged, had made itself a landlord's question, as the landlord would discover more and more within the next few years. The only hope he could see for agriculture in the meantime was this—that there should be the greatest encouragement offered for capital being taken to the cultivation of the land, for it was only by employing a large quantity of capital on the land that he could see any hope of farmers in that country being able to compete with foreigners at all, and he feared that even the abolition of the Law of Hypothec might be too late to accomplish that object. Under the most favourable circumstances, it must be years before the condition of agriculture could approach what it was 10 or 15 years ago. It was all very well for farmers with small capital to take farms when a general advance in prices was going on, which helped them to carry on; but when a movement downwards came the want of capital was quickly discovered, and the landlords suffered. Seeing, then, the condition of agriculture, he would urge hon. Members to agree to the second reading of that Bill to-day, and that the Government should take it into their charge. It must be very evident to hon. Gentlemen on both sides of the House that the utmost efforts of the opponents of the Bill would only defer the passing of the law for a year or two. If, in the meantime, capital was being still more completely frightened away from agricultural pursuits, the difficulty would become all the greater to induce it to come back. He hoped, therefore, that they should have a Division that afternoon, and that hon. Members on both sides would unite in passing the Bill.
§ SIR WILLIAM CUNINGHAME
said, he desired to explain the reasons which had led him to support the Amendment 1269 of his noble Friend (Lord Elcho), instead of persevering with his own proposal that the second reading of the Bill should be postponed till that day three months. His reasons for adopting that course were two—in the first place, because it was strongly pointed out to him that it was very desirable that those Members of the House who were not already aware of it should be made acquainted with the position of the Law of Distress in England in reference to, and in connection with, the Law of Hypothec in Scotland; and, in the second place, because he felt convinced that by giving precedence to the proposition of the noble Lord, he would be able to secure that the matter should be laid before the House in a much more able manner than he would have been himself able to present it. With regard to the first of those reasons, he thought it could not be denied, after what had been already said, that the Law of Distress and the Law of Hypothec were identical in principle; and with regard to his second reason, he thought that the way in which the case against the Bill had been presented by Lord Elcho—the distinct and eloquent way—fully justified him in the course which he had followed. There was one point to which he thought it was highly desirable that the attention of the House should be directed, and that was the argument and the position of his hon. Friend the Member for Wigtownshire (Mr. Vans Agnew), and many of those who followed him, in regard to the view which he took upon this question. The argument of the hon. Gentleman, speaking broadly, amounted pretty much to this—that the Law of Hypothec, by limiting the tenant's credit with his tradesmen to a greater extent than it increased it with his landlord, was an operation injurious to agriculture. That argument had also been dwelt upon by the hon. Member for Forfarshire (Mr. J. W. Barclay), who had assured the House that agriculture in Scotland at this moment was suffering from insufficient capital, and that nothing but the infusion of fresh capital could save it from being completely swamped by foreign competition. With regard to these opinions, all he could say was that he thought the House ought to require, in a matter of this importance, something more than mere assertion. Hon. Gentlemen had them- 1270 selves admitted that this was an ancient law which at one time proved beneficial to agriculture, and the onus probandi of proof lay upon those who said that it had lost that character. It seemed to him in the last degree improbable that the abolition of the Law of Hypothec would increase the tenant's credit with his tradesmen to a greater extent than it would diminish it with his landlord. He could quite understand that if a tenant were owing his landlord £100, £200, or £300, a banker would not advance so much money to him as if he did not owe anything; but he could not understand how the doing away with his debt would increase his capital to a greater extent than the amount of that liability. If the operation of the law were such as some hon. Members had described, he did not think the House would have been left in any doubt upon the subject. A Commission had been appointed to inquire into the matter; and if the state of things had been of the nature which had been referred to, one would have expected the witnesses to have assured the Commissioners that such was the state and operation of the law, and to have said—"We cannot get credit with our bankers, our seed merchants will not allow us sufficient length of time, and we are crippled in capital on that account." As a matter of fact, that was not the case, as anyone would see who had taken the trouble of reading the evidence. The objections which the tenant-farmers had invariably urged was that the law encouraged what they called unfair competition—that it brought men who had no capital into the trade, and that it placed farmers in the position of having to compete with what were termed "men of straw." That being so, it appeared to him that what was alleged by the hon. Member for Wigtownshire was simply a product of his own imagination. He did not, for one moment, suppose that his hon. Friend was in the least insincere in the manner in which he had brought forward the question, or that he did not believe in the argument which he had advanced. No one who knew the pertinacity with which the hon. Member had brought forward this question—although he must sometimes have felt that he did so under considerable difficulty, both in his own case and certainly in the case of his Party—would be in- 1271 clined to accuse him of any want of earnestness. All he desired to show was that the contention of the hon. Member was not the fact, and that his argument was almost entirely different from the arguments of those who were anxious to see the Law of Hypothec abolished. As he had said, the view of the tenant-farmers of Scotland—the view of a proportion of them, whether a small or a large percentage—was that the existing law increased the rents, that it brought forward the men of straw, and that thus the tenant-farmers were placed at a disadvantage. They also contended that the law was unjust; but their objections were not to be found in the mouth of the hon. Member for Wigtownshire, or of those who took his view. The inference was that the contention of the hon. Member was an afterthought, and that while attacking the law he did so for reasons with which he himself could not concur. As to the arguments brought forward by others who were equally as earnest in the matter as his hon. Friend, it appeared to him that their object was obviously a selfish one. They had made their own fortunes in a trade—if he might use the expression—and they wanted to establish a monopoly in that trade. He did not blame them; most people were selfish, and this was a selfish age. Probably what was done by the men who were engaged in other occupations—masons, carpenters, lawyers, doctors, and, indeed, almost everybody—was not very discreditable to tenant-farmers. At the same time, he thought the majority of hon. Members would agree that it was not an object with which the House need very much sympathize, or one which it was bound to go any considerable distance out of its way in order to facilitate. When a demand of this description was made, it appeared to him that the House ought to look with special care to the probable results of the change which it was proposed to make. That was a point which, in his opinion, was a great deal too much overlooked, alike by those who advocated the proposed abolition and those who defended the present law. It had been said that this was a tenant's and not a landlord's question; but as to the position in which tenants and landlords would stand after an abolition of the law, no one had taken the trouble to consider. The fact was that it was very 1272 difficult—it was almost impossible—to say what would be the exact result of the measure of the hon. Member for Wigtownshire, should it be passed into law. Suppose that that which had often been suggested as the probable result took place. Suppose that landlords found it an absolute necessity, in order to secure themselves reasonably and fairly, not to exact fore-handed rents, which would not give them the same security as the present law, but to require their tenants to pay a sum into the bank as security, or to pay their rents in advance, was that a result which was likely to be beneficial either to landlords, or to tenants, or to agriculture in general? It seemed to him, so far as the tenants were concerned, that they must necessarily be placed in a worse position than that which they occupied at present, and that they would undoubtedly experience a loss of a considerable part of that capital which had hitherto been employed in connection with the farm. Would it be to the advantage of the landlord? Quite the contrary. His reasoning would be either that he must get rid of his tenants, or allow his property to be farmed with a smaller amount of capital than was now the case. Was not this, therefore, a landlord's question, and not only a landlord's question, but a question of vital importance? Again, supposing landlords found it impossible to place their tenants in the position they would desire, then it appeared to him that, from the landlord's point of view, the question was still more important. Then they would simply have to take their tenants without any security at all. All these considerations pointed to the conclusion that the results which were likely to follow the abolition of hypothec ought to be very carefully weighed and considered before the House made a change which, in his opinion, would be of a very doubtful character, which would be a sort of a leap in the dark, and the only object of which was to enable the tenant-farmers, or a certain number of them, to form a trades union amongst themselves. There was another matter of some little difficulty on which he thought he ought not altogether to be silent, and that was the question of the apparent unanimity of Scotch opinion on this subject. He entirely admitted the force of the argument as to the number of 1273 Scotch votes which might be given in favour of the proposal now before the House; but he disputed the idea that that majority of votes would prove that the majority of Scotchmen were in favour of the abolition of the existing law. He would go further and dispute that it would even prove that a majority of tenant-farmers were in favour of hypothec being done away with. He said so for this reason—they all knew that Scotch tenant-farmers were very fond of following their leaders. They collected together at agricultural dinners and other meetings which they were accustomed to frequent, and listened to the animated and apparently convincing speeches made by two or three prominent farmers, whom they looked upon as the chief men in their districts. They took their opinions from the men to whom he referred; and those men, being of the richer and wealthier amongst their class, were very naturally, he did not say improperly, biassed towards that view which was likely to benefit themselves. The smaller farmers followed them, and in that way it came to be supposed that on this subject they were pretty nearly unanimous in opinion. But to show that the views of the tenant-farmers were by no means so strong as some hon. Members appeared to think, he would mention what had occurred recently in his own neighbourhood. His hon. and gallant Friend the Member for South Ayrshire (Colonel Alexander) had his name upon the back of this Bill. No doubt, the reason of that was that the hon. and gallant Member thought that the measure embodied the opinions of the majority of the tenant-farmers in his district. He happened to know, as a matter of fact, that that was not the case. He had tested the question by issuing a circular upon the subject—a circular which was as fairly drawn as possible. He chose from the valuation roll the first 15 names in each parish in South Ayrshire, and he asked the persons whom he so selected whether they thought the Law of Hypothec ought to be retained or abolished? He had not the exact numbers at present beside him; but the general result was that he received about 150 replies, and that five to three were in favour of the maintenance of the existing law. That was in the constituency of his hon. and gallant 1274 Friend (Colonel Alexander), and he thought that the fact which he had just mentioned threw some doubt upon the statement as to whether a majority of even tenant-farmers wished a change in the present Statute. He would appeal to the population generally, and he claimed the burghs in his support. To his mind, it appeared to be absolutely certain that if the principle of the present law were to be departed from and discredited by this Bill being accepted, the measure must sooner or later be extended to burghs, and that, he was convinced, would amount to a national disaster. As to the alleged unanimity on the part of the Scotch Members, he need not go very far for unanimity on the other side of the House in order to abolish a law. He thought it would be allowed that almost any proposal in that direction was favourably received on the Liberal side of the House. But, with regard to the position of some other hon. Members, he thought the matter might be explained in this way. They had been led to believe that the subject was of less importance than it really was; they had been tickled with the idea that it was a tenant's and not a landlord's question; and they thought they would be justified in yielding to the wishes of their tenantry. He would only say, further, that he regretted extremely to hear from the remarks of the hon. and learned Gentleman (the Lord Advocate) that her Majesty's Government felt inclined to accept this measure. With regard to what had been said as to a change of front on the part of the Administration, he would only observe that although, as had been shown, the Government, on the occasion of the last Division, did not act altogether as the Government, yet it must be allowed that the Bill would not have been rejected at that time had the Government not been more or less inclined to oppose it. Nor would it be accepted on this occasion unless the Government gave it some support. He could not help hoping that the change of attitude on the part of the Administration was caused more by a real change of opinion than by any mere question of expediency. If expediency had anything to do with the change of attitude to which he referred, it would, in his estimation, be very discreditible. He would like to appeal to those hon. Members present who did not feel it 1275 absolutely incumbent on them to go into the Lobby with the Government on the present occasion to come forward and assist them, and give those in Scotland a still further opportunity of considering the question, which, he believed, was not at all understood by those who were interested, and more especially by the small tenant-farmers. They had not the slightest idea that it would be followed with any unpleasant result; and he felt sure that when the measure was clearly and thoroughly understood by them, as it would be more clearly understood after the present debate, there would be a great many who formerly would have been inclined to favour the change in the law that would alter their opinion. He trusted that the Bill would not be passed, or, if read a second time, that it would be postponed in order to give the people of Scotland an opportunity of discussing the matter before such an important change was made.
§ MR. R. W. DUFF
said, he wished to congratulate the Government on the course they had pursued in the matter; but there was one point which he should like to have explained. He understood, in the speech of the Lord Advocate, that he spoke of the land in Scotland being rack-rented.
§ THE LORD ADVOCATE
said, he certainly made use of that expression, but it was covered by the accompanying words. He did not mean that the land was rented at extortionate rates, but that it was generally let at full market rates.
§ MR. R. W. DUFF
said, he thought it would be generally understood, at least by Scotch Members, that rack rents meant getting as much as possible out of a tenant for the land in question, and he must deny that that was the case in Scotland. What usually occurred was, that when a 19 years' lease had expired the land was re-valued, and the landlord offered it first to the sitting tenant. If he took it at the increased rent he was at liberty to do so; but, if not, it went into the market. That system prevailed to a great extent in Scotland; and there were cases on record in Scotland, as no doubt in England also, where men had gone on occupying the same farm for years in that way. He understood the Lord Advocate to say that he admitted the principle of the 2nd clause of the Bill, although it might possibly require some amendment in Committee; but still he was 1276 understood to support it, as explained by the hon. Gentleman who introduced the Bill. The House had had some remarks from the hon. Member for South Norfolk, who always spoke with authority on agricultural questions. He told the House, among other things, that the farmers naturally looked to the Conservative Governments for all improvements. Perhaps he was right in saying so in regard to that particular measure; but there was one omission which he failed to supply—namely, that the question of hypothec had been moved from the other side of the House, and during that time there was not one Conservative who had ever supported it. They seemed to be acting on the principle of taking the kettle off the fire just before it boiled over. But, whatever the principle might be on which it was done, he was glad to have the support of the Government in doing away with the law which he believed to be universally unpopular in Scotland. His own experience differed very much from that which had been expressed by other hon. Members; and he was quite satisfied that, in his own county, the farmers were almost unanimous in wishing the Law of Hypothec to be abolished. He thought that was one of the reasons why the argument with regard to the small farmers broke down, because, undoubtedly, in that part of the country, the average holdings of the farmers were much smaller than in other places. His own opinion on the question was that the small farmers—such men were alluded to by the hon. Member for Wigtownshire (Mr. Vans Agnew)—were in a better position than were the largo farmers. He thought the arrears of rent were, generally speaking, much less than on large ones. The small farmers were not so much compelled to carry on their business on credit, and he believed their position was a much better one. He thought that that was a strong argument against the remarks made about the small farmers being against the change. He had listened with much interest to the speech of his noble Friend the Member for Haddingtonshire (Lord Elcho), and on one point he agreed with him—namely, that, as a matter of principle, urban and rural hypothec ought to go together' He thought the noble Lord was perfectly right in saying so. At the same time, he would not say that he would only vote for the 1277 present Bill because he could get no other. He would also like to remind those who had quoted the opinion of Lord Moncreiff as an authority in favour of the Bill, that the learned Lord, when he spoke in favour of such a Bill, distinctly stated that the urban and rural hypothec should go together. It also suited the noble Lord to quote another Lord Advocate, Lord Young, who certainly was the first Lord Advocate who supported such a measure. The noble Lord alluded to the landlord's interest, and stated that it was not to the interest of the landlords that this law should be done away with. Speaking as a landlord himself, and, he believed, also speaking as representing the views of many other landlords, he could say that they had no desire at all to retain the law. They could always make themselves secure and perfectly safe. He was quite sure no legal gentleman acquainted with legal hypothec would have any difficulty in making themselves perfectly safe even if the law was done away with, and, indeed, he could see no reason why the law should be continued even with regard to the landlord's interest. It seemed to him that by doing away with the Law of Hypothec they would be strengthening the position of the landlord and tenant. His noble Friend was a great advocate of freedom of contract; but the Law of Hypothec was against freedom of contract. How was a man to have freedom of contract under such a law? If the noble Lord was really sincere in desiring that freedom of contract which he advocated, he would remind him of a Resolution which was passed by the Northern Chamber of Agriculture some time since, which declared that the continuance of the Law of Hypothec was inconsistent with freedom of contract. He thought that conclusion was a perfectly sensible and logical conclusion to be drawn; and if the noble Lord was sincere in his desire for freedom of contract, he would call upon him to show his sincerity by changing his view on the question before the House. His hon. Friend the Member for Forfarshire (Mr. J. W. Barclay) had said that what was wanted to remove the present condition of distress in the country was more capital, and he admitted that that would assist in some degree; but what was wanted to assist still more was greater freedom in the law of entail. 1278 He thought that was a question which, sooner or later must come before the country, for there was no doubt that the tying-up the land under legal restrictions did far more damage than even the Law of Hypothec. However, that was a subject upon which he could not enter at the present time; and he could only say in conclusion that the law, being an unjust one in principle, he should have very much pleasure in giving his support to his hon. Friend opposite.
§ MR. M'LAREN
said, he should not take up the time of the House, and should only address himself to one or two points of the measure. He wished to point out, with regard to urban hypothec and rural hypothec, that the two things must be kept entirely apart. It had been stated that the two things should go together. He took issue on that point, and from what he knew of the Records of that House, he would undertake to say that if they searched those Records, they would not find a single Petition on them in favour of the abolition of urban hypothec. If they searched the records of the newspapers in all the towns in Scotland, he did not think they would find any account of meetings held in favour of the abolition of urban hypothec, and the same remark applied to Chambers of Commerce, merchant companies, and guilds of all kinds. He had never heard of any such body who wished to abolish it. The hon. Member for Roxburghshire (Sir George Douglas) gave the House some interesting details respecting the results of enforcing the law. Let them take the case of a farm where the rent was £2,000 a-year. There would, according to the hon. Baronet, be another £2,000 spent on the farm on manure, and another £2,000 in labour, so that the result of a sequestration for rent would be most injurious to the tenant by swallowing up £4,000 of outlay. He would lose not merely his farm, but also all the amount of capital which had been laid out on the ground, and which in the future would benefit the possessor of the ground by producing crops, &c. When a landlord distrained for rent, he swallowed up not merely the value of this rent, but the whole of the tenant's capital as well, and of which the landlord got the ultimate benefit. A Parliamentary Return had been issued showing the number of houses in towns and 1279 their valuation, for laying on the house tax; and if hon. Members would examine those Returns they would find that, with comparatively few exceptions, they were valued at sums under £100 a-year, and it was only on this rent that the urban hypothec applied. Let them look at the Law of Hypothec in rural districts, and compare it with that. The dissimilarity was excessively great. A man occupying a house at £100 a-year in town could embark in trade almost to any extent, and if bankruptcy took place, he might have creditors to whom he owed £20,000 or £30,000; and how did the Law of Hypothec apply in that case? No man, with any self-respect, would allow the rent of his house to fall into arrear, the result being that there was no rent due except for the current half-year. But in that case what was allowed for hypothec was simply £50 on the security of furniture, &c., and all the estates were distributed among the creditors with the exception of that £50. But far different was the case of the farmer. Some Glasgow Bank people failed for sums varying from £1,000,000 to £2,000,000 and £3,000,000; but it would probably be found that the rent they paid was under £300 a-year. All the landlord's right of hypothec in that case would be £150 secured on the furniture; but hundreds and thousands of pounds realized by the assets of the bankrupts were distributed among the creditors. There was really no kind of analogy between the operation of the town and the rural hypothec. The landlord in the country swallowed up everything, although the tenant was indebted to the manure and seed merchants, the wheelwright, the smith, or the farrier, and to people of all kinds. The House had no right to take those different kinds of hypothec together, and say that the one was the same as the other. A paper had been recently distributed among hon. Members of the House, giving an account of the debates that had taken place therein on the Mines Regulation Act; and it appeared from that pamphlet that four hon. Members who spoke in that debate had indicated that they had worked in mines themselves, and so could speak on the subject with authority. As well might the noble Lord the Member for Haddingtonshire expatiate on the benefits of the old mining laws, and say that those men 1280 who rose to be Members of that House had done so, not from their own natural talents simply, but because they began life in a coal-mine, as take the line of argument he had done, by attempting to show that the Law of Hypothec had been the means of raising very small farmers to positions of wealth and influence. The whole thing was a fallacy. They had no right to put the two things together, and say that the one was the cause of the other. He might as well look at the clock which was going on a mantlepiece over a fire, and say that the clock was going because there was a bright fire burning beneath it. Although the Bill would no doubt be carried in the House on the second reading, that would be a mere farce if Her Majesty's Government did not determine to support it and carry it through to a practical conclusion. It would otherwise be a mere matter of form. Hon. Members, when they found the right hon. and learned Gentleman the Lord Advocate standing up and making an excellent speech in favour of the Bill as he did, must expect that in consistency, and on every principle of justice, and in the interest of public policy, that the Government in its future stages should give the Bill their thorough, honest, and hearty support, and carry it through to a conclusion.
§ SIR GRAHAM MONTGOMERY
said, that as one of the Members of the last Parliament who took a very prominent part in opposing the Bill, he wished to say a few words. Before the last General Election in 1874, no doubt there was a great cry in Scotland for the abolition of the Law of Hypothec. There was a great cry in 1874 for its abolition, and at that time he confessed he pledged himself no longer to oppose the abolition of it. At the same time, he entirely disputed the contention that the whole of the tenant-farmers of Scotland and the great majority of the people of Scotland generally were in favour of its abolition. For himself, he believed that if the Act of 1867 had gone a little further, and had prevented the sequestration being put in force before the rent was due, they would not have heard anything of this cry for the total abolition of the law. He thought it was very unfortunate that that Act did not go a little further, because that Act did certainly put an end to almost all the grievances which were 1281 the cause of the cry for the abolition of hypothec originally. No doubt, under the old law, there were great grievances, and in some cases nothing could be more unjust than its enforcement. As a Scotch Member, he wished to say that he felt great objection to the abolition of the law. They would, by doing so, put the Scotch landlords in a very invidious position. In the present condition of contract and leases, no tenant could be called upon to pay his rent till something like a year or 18 months after it was due. That was a great concession to the tenant-farmer, and a great advantage to him. One of the witnesses before the House of Lords stated that it was equivalent to a landlord supplying a tenant with capital equal to a year's rent. He believed that was really the case; but when the Bill was adopted, and the Law of Hypothec was abolished, the landlords in Scotland would have to adopt the practice of fore-renting the land, and that would put the landlord in a very invidious position. In Scotland the custom had always been to give the tenant-farmers a much longer time to pay their rents, and more especially the poorer and smaller tenants; but the result of the Bill would be to make them pay up much sharper than before. He did not know what the feelings of the Scotch tenant-farmers generally might be on the subject; but he could not help feeling that a great many of them were in favour of it, simply because they had been led into that view by others. He was quite sure that a great many of those who were in favour of it were not aware of the effect of passing such a Bill as the one before the House; and he felt sure that if they understood what would be the effect of it, that they would not be so much in favour of it as they were at the present time. He quite agreed with a great many speakers, that if the Bill was passed—whether it was to pass or not he did not know; he was not going to help to pass it, although he was not going to oppose it—there must be an amendment of the Law of Ejectment. The present Law of Ejectment, which the Lord Advocate explained to the House, was a very cumbersome one, and they knew that under that law a landlord might have to take a case to the House of Lords, and all that time the rent was accruing. He, therefore, 1282 contended that with a Bill like the present one they must have a law of ejectment, which would put the landlord in the position of being able to eject a tenant in a much speedier way than under the present system. While he regretted he could not follow Her Majesty's Government in this Bill, at the same time he did not feel it his duty to vote for the Amendment.
§ MR. RAMSAY
said, he would not detain the House by any remarks of an extended character; but he felt that the strong statements made by hon. Members on both sides of the House required some modification. It had been stated by his hon. Friend the Member for Edinburgh (Mr. M'Laren) that there was a radical distinction between urban and rural hypothec; but, in his opinion, the principle of urban hypothec and the principle of rural hypothec were entirely alike, and there was no distinction between the one and the other. The hon. Member had stated to the House that a tenant-farmer might have invested a capital of some thousands of pounds in his farm in paying for materials, all of which might subsequently be appropriated by the landlord. But a similar case to that might happen to a tenant in town, when his household furniture became liable to be seized for rent. It was true, however, though you could sell a bed from under a tenant in the town, you could not touch the household furniture of the farmer. Unanimity with regard to this measure had been spoken of by hon. Gentlemen on both sides of the House, and the hon. Gentleman who introduced the Bill spoke of the landlords of Scotland as being in his favour.
§ MR. RAMSAY
said, he was under the impression that the hon. Gentleman did say so, and that the Lord Advocate also stated that there was unanimity in Scotland in favour of the Bill. He (Mr. Ramsay) did not deny that, so far as any opinion had been expressed, that opinion had been in favour of the Bill. But he ventured to say that many of the people did not regard the Bill as of any great importance; and the Petitions that had come to the House from Scotland had been chiefly from tenant-farmers—the occupiers of arable land. It 1283 might be that the exercise of the right of hypothec by the landlord was by some considered essential; and he would say, having had experience with regard to grazing farms, that he had never known any case in which the Law of Hypothec had proved injurious to farmers where grazing was the chief occupation. In such districts he had not heard much in the way of complaint. But he believed that, in consequence of the agitation that had taken place upon the question among the occupiers of arable land, other districts had been pervaded by similar sentiments to those expressed in favour of the Bill, without knowing what the effect would be. In that way the opinion, so far as it had been expressed, no doubt was in favour of the Bill. But he did not remember that a single Petition for or against had been presented to the House from the Commissioners of Supply in any part of Scotland. Until the opinion of Scotland was obtained, it could not be said that the people were unanimously in favour of the Bill. He was of opinion that if the Law of Hypothec was abolished to-morrow, the landlords of Scotland would still be able to look after their own interests, and would do so. With regard to the 2nd clause contained in the Bill, the hon. Gentleman, in his opinion, had not clearly expressed his meaning in reference to the remedy open to the landlord; and the Lord Advocate, in explaining that clause, did not state in what form it was proposed that the clause should stand. Unless the question as to the nature and extent of security was definitely stated, it was impossible that the Bill could become law to the satisfaction of the people of Scotland. He did not intend to oppose the Bill; but it would be for those who, like himself, were of opinion that the urban and rural hypothec stood upon the same footing, to propose Amendments in Committee with respect to all rents due in Scotland.
§ MR. BAILLIE HAMILTON
said, it appeared to him that there ought to be only two parties considered as interested in this question—namely, the Scotch landlord and the Scotch tenant; but opponents of the Bill seemed to be afraid that the principle of Free Trade which they advocated would cross the boundary, and spread itself throughout Eng- 1284 land, and end that law of distress which seemed to be so dear to them. He, however, thought the tenants of England could hardly be so attached to the Law of Distress as the landlords; but assuming that they were, where, he asked, was the agitation for its repeal to come from? It, therefore, appeared to him that this fear was baseless, and any opposition on this ground to this Bill would be an exercise of selfish might. He was not radical enough to ride roughshod over the landlord if he had no other protection; but without the Law of Hypothec he considered he had ample means of protection within his power, and therefore, as regarded him, the maintenance of the law was unnecessary. Competition among farmers in Scotland was sufficient to allow a farmer to pick and choose his tenants; and if he did not pick suitable ones, he ought not to be protected by special legislation. It was impossible to state the landlord's case more clearly than had been done by Sheriff Smith of Elgin, who had said that if a landlord did not give any credit or take any risk, he would have to take a lower rent than if he did give credit and take some risk, and if he did give credit and take some risk, he would probably get a higher rent than if he did not. Well, he believed that this view of the question was taken by a largo majority of Scotch landlords; that they were personally indifferent as to the proposed change in the law; and that the objections entertained by some were based altogether upon their sympathetic interest in the small tenant, whom they thought the abolition of hypothec would injuriously affect. But was that the opinion of the tenant-farmer of Scotland? How many Petitions had been presented to the House of Commons during the last six years against the Bill of his hon. Friend? How many hon. Members representing Scotch agricultural constituencies were there who had not pledged themselves, if not to support, at least not to oppose this Bill? How many of those Members would say that the abolition of hypothec was viewed with apprehension by any considerable number of those who had sent them there? He could only say that no representation of the sort had ever been made to him; and he believed the tenant-farmers of Scotland were, practically speaking, at one in their dislike of 1285 the law, and unanimous in their desire for its repeal. No one could deny that hypothec had done good service in its day, and that the existing tenantry of Scotland had, to a large extent, been built up by its aid; but the day of its utility was past. It was like the supports of an arch, which could now stand by itself. It had been said that this preferential security had been enjoyed by Scotch landlords from time immemorial. He recommended Scotch landlords to make the most of their time, and to enjoy it while they could; for they might rest assured that if this Government was too timid or too Conservative to seal its doom, its funeral knell would soon be rung by other hands. But what did time immemorial mean? It meant a time of which they had got memorials sufficient to tell them that the farmer was then little better than a serf, and nothing better than a peasant cultivator of the soil, while, to all intents and purposes, the landlord retained possession. In those days little or no capital was required or possessed by the tenants. The income of the landlord fluctuated with the price of grain grown upon his farms, and he shared, in common with the tenant, the results of a prosperous or an adverse season. Under the modern system, when leases of 19 years at a fixed cash rental were universal, when agriculture was becoming more and more a science, and, above all, when the oil-cake and the manure merchant were often creditors for as much or more than the landlord, it did seem that the condition of affairs had so materially altered since the noble Lord's "time immemorial" that the hon. Gentleman was, in his opinion, fully justified in pressing this question upon the attention of the House and the Government. He had stated that the landlord was not unfrequently not the largest creditor of the farmer; and in order to prove that he would quote a very few figures, kindly placed at his disposal by the tenant-farmers in the county he had the honour to represent. One of the gentlemen stated that whilst his rent, in round figures, amounted to £2,030 he expended from January 1,1876, to January 1, 1877, upon oil-cake, £1,895; upon manures, £774; making a total of £2,669, or £638 more than he paid his landlord. Other similar cases might be quoted. Then, considering the ample 1286 security that the landlord had at his disposal, were hypothec abolished, it did seem hard that the tenant should be, by its continuance, unnecessarily fettered and injured as regarded his credit in those dealings which were essential to carry on his business, and essential in order that the maximum amount of produce might be obtained from the soil. When Mr. M'Combie told them that Aberdeenshire was a county of small farmers, and that between 2,000 and 3,000 of them signed a Petition in favour of the abolition of hypothec, he only gave a sample of the feeling which pervaded all Scotland. There were exceptions, of course, and doubtless many farmers would willingly leave things as they were; but if the wishes of the tenantry could be fully tested, the amount of unanimity on this subject would astonish even those who thought they knew best. With regard to the two last lines of the Amendment of the noble Lord the Member for Haddingtonshire (Lord Elcho), he could say that no one more truly sympathized than he did with the struggle for advancement of industrious and enterprizing men; but he could not think that the interests of a great existing class should be postponed in order to foster competition by a few men of small means. Nor was that all. Agricultural interests had suffered so severely during a series of bad years, and with foreign competition reducing prices to the lowest point, that farmers without a little surplus capital had been nearly ruined. But if such men as the noble Lord the Member for Haddingtonshire pleaded for bad character and adequate capital, the abolition of hypothec would not prevent their taking such farms as their means would allow. Probably it would make landlords a little more cautious in their selection of tenants; but in the long run it would be found the best thing for the country. He regretted that the Government had not hitherto seen fit to take up the question. The Bill was not the mere outcome of a private Member's hobby. It was the expression of the well-considered and earnest desire of thousands of those tenant-farmers who were the best and most powerful friends of the Conservative Party in Scotland. They believed that the present law acted prejudicially to the credit and welfare of the tenant; that it was non-essential to the landlord, and inequitable as regards 1287 other creditors; and as the Bill in no way affected England, and would prove, he believed, to be conducive to the best interests of agriculture in Scotland, he trusted that amongst its supporters that day the Scotch tenant-farmers would not look in vain for the names of the right hon. Gentlemen on the Treasury Bench.
§ MR. M'LAGAN
said, he was sorry to interpose between the House and a Division; but he wished to say that, while he favoured the 1st clause of the Bill, there was something about the 2nd clause which he could not understand. The present law was very severe, and this 2nd clause appeared to increase the severity. There was no doubt that some difficulty existed at the present time in getting quit of a tenant who could not pay his rent, and who had been sequestrated by the landlord by his exercising his right under the Law of Hypothec. He knew a case in which the Law of Hypothec was exercised in consequence of a man failing to pay his rent. The man lived on the farm for five or six years afterwards, notwithstanding the legal steps taken to put him out of his farm, and damaged the farm to a great extent. It was clear that the landlord must have some remedy in his hands; and he hoped, when the Bill was in Committee, that some proposals would be made by which the landlords would be able to resume possession of their farms by some easy process when the rents were not paid. As he had often troubled the House upon the question, he did not intend to make any further remarks.
§ MR. VANS AGNEW
, in reply, said, he had endeavoured to lift this question out of the region of Party politics, and to treat it as a matter of political economy, and in this light he thought the discussion showed it should be regarded. The objections which had been urged to details of the measure could be suitably discussed in Committee. As he stated earlier in the day, he was prepared to accept any Amendment by the Lord Advocate, or other hon. Members, which would more satisfactorily meet the wants of the country. It had been his desire in this Bill not to propose more alterations in the present law than might be necessary. He would not go further into the questions of detail; but would merely make an appeal to English and Irish Mem- 1288 bers in the House. This was a Scotch question, and a local question. It had often been before the House; and the result of the present division would show that only two Scotch Members were ready to vote against the Bill.
§ MR. BAILLIE COCHRANE
, interrupting, complained that the hon. Member was making his speech over again.
§ MR. VANS AGNEW
thought that the hon. Member, who had been so long in the House, would know perfectly well that he had the right to reply on the debate, and he was not replying to any observations the hon. Gentleman made. The Scotch Members of Parliament were considered to understand their own affairs; and as to what had been said about this Bill affecting the English Law of Distress, he would remark that if the House were to maintain the Law of Hypothec, which was not a good law, on account of some remote possibility of England being injured, he did not think they would be treating the Representatives of Scotland fairly. If the House thought their Representatives had proved their case, he asked them to let them have their own way on a matter in which they were so united.
§ Question put.
§ The House divided:—Ayes 204; Noes 77: Majority 127.—(Div. List, No. 48.)
§ Main Question put, and agreed to.
§ Bill read a second time, and committed for Tuesday 1st April.