§ MR. BLENNERHASSETT
, in rising to call attention to the Law of Distraint for the rent of Agricultural Holdings in England, Wales, and Ireland, and to move—That it is desirable that the power of Distraint for the rent of Agricultural Holdings in England, Wales, and Ireland should be abolished;said: It generally happens that laws which are permitted to exist unchallenged in easy and prosperous times, when adverse seasons come have to submit to careful examination, and are called upon to justify their existence at the bar of public opinion. It is, unfortunately, too true that this is a time when the conditions affecting the agricultural interest in 21 this country must necessarily be subjected to scrutiny. I do not wish to take a gloomy or exaggerated view of agricultural prospects; but signs are visible on every side that we are passing through a period of trial and difficulty of the most serious nature. Hundreds of farms lying untenanted; farmers who continue in occupation keeping their heads above water with the greatest effort, a necessity widely recognized for a return of a considerable percentage of rent; the competition of foreign producers great and ever increasing, the cereal and animal food imported costing considerably over £100,000,000, and forming nearly a third of all the agricultural produce consumed in this Kingdom; widespread anxiety amongst every class connected with the land. Surely these are indications which should lead us, in common prudence, to review carefully any portion of our legal system which there is reason to suspect may discourage the development, or hamper the growth, of that agricultural industry on which the national welfare so largely depends. A state of the law which in quiet old-world times, or in the full flush of the unexampled prosperity of recent years was not severely felt, may become a great and intolerable evil when we need the full and free control of all our energies to strive with less favourable circumstances. It is, therefore, I venture to think, not inopportune at the present time to ask the House-to consider the expediency of dealing with a law intimately affecting the state of agriculture—a law which is peculiar, and exceptional in character, and, as I think I shall be able to show, unjust and mischievous in its operation. In proposing the abolition of distraint for rent of agricultural holdings in England and Ireland, I am encouraged by the fact that this House has lately affirmed, as regards another portion of the United Kingdom, the principle for which I contend. The effect of my Motion would substantially be to assimilate the law in the various portions of the United Kingdom. I have no intention of asking the House to listen to any minute account of the various theories which have been held as to the origin of the Law of Distress, or to any detailed narration of the stages by which it has arrived at its present state. Distress is one of 22 those primitive institutions which are found in various systems of ancient law. In a primitive society, where the help of a Court of Justice was not to be obtained, taking goods by distress was the simplest and most effectual means of compelling the person against whom it was employed to make the satisfaction required of him. Sir Henry Maine points out that—All forms of distress, the seizure of wife, child, or cattle, even when wholly unregulated by law, were improvements on older custom. The primitive proceeding- was undoubtedly the unceremonious, unannounced attack of the tribe or the man stung by injury on the tribe or the man who had inflicted it. Any expedient by which sudden plunder or slaughter was adjourned or prevented was an advantage even to barbarous society. Thus, it was a gain to mankind as a whole, when its priests and leaders began to encourage the seizure of property or family, not for the purpose of permanent appropriation, but with a view to what we should not now hesitate to call extortion.In England, distress is a remedy so ancient that it is probably coeval with the Common Law itself, or, rather, it may be considered one of those principles which collectively constitute that system which we denominate the Common Law. The earliest mention of it is in an enactment of Canute, when we find it already established in an advanced state of maturity. The successive stages by which this ancient right of personal redress became converted into a remedy for the exclusive benefit of a single class of creditors—namely, the owners of land, may be traced in a great number of Statutes from the time of William the Conqueror and the Great Charter to the present reign. The first adoption of distress, as a means of recovering rent and enforcing the discharge of the other feudal liabilities, was a mitigation of the ancient rigour. For a long time, under the feudal system, the slightest failure on the part of the tenant was punished by an absolute forfeiture of the feud. At a later period, on each default on the part of the tenant, instead of forfeiture, the lord entered upon the feud and held possession till such time only as he had obtained satisfaction for his damages. This method, however, was found on trial to be scarcely less oppressive than the previous one, for it generally deprived the tenant of his only means of supplying the default, and thus amounted, in effect, to the very punish- 23 ment it was intended to extenuate. In process of time a still more gentle remedy was introduced by substituting the seizure of the cattle and other movables found on the land, the lord being entitled to impound and detain the things taken as pledges to compel the performance of the pledges required by the feudal contract. A distress in its ancient form may, therefore, be denned as—The taking without legal process of a personal chattel from the possession of the wrongdoer or defaulter into the hands of the party grieved, to be hold as a pledge for the redress, performance, or satisfaction required.The modern relation of landlord and tenant gradually came into existence. As Blackstone describes it—The feudatories being under frequent incapacities of cultivating and manuring their own lands, soon found it necessary to commit part of them to inferior tenants, obliging them to such returns in service, corn, cattle, or money as might enable the chief feudatories to attend their military duties without distraction—which returns were the original of rent.Various provisions were adopted as a remedy against unjust and excessive distresses. Yet a learned writer describes the effect of the system in these words—Notwithstanding these provisions, the unbridled independence and tyranny of the barons during the civil wars which endangered the throne of the immediate successors of the Conqueror turned distress into an engine of private revenge and public violence. Unjust pretences of distress were falsely alleged, tenants and strangers alike outraged, suit and service wrongfully compelled, exorbitant reliefs demanded, illegal fines extorted, excessive distresses made, the regulations of replevin disregarded; in fine, every wrong practised for the oppression of the weak and the aggrandizement of the powerful.Legislation was for a long time directed towards protecting the tenant from the oppression of the lord; and by a long series of Statutes, and Magna Charta itself, it was sought to soften the severity of the remedy. The last of these mitigating Statutes was passed in the reign of Philip and Mary, enacting that a distress should not be impounded in several places so as to compel the party to sue several replevins. From the reign of Henry VIII. down to the present time, there has been a complete change in the spirit of legislation. We find a long series of Statutes, nearly every one of which has been passed with the object of improving the remedy in the hands of the landowner, the result being what 24 has not unfairly been described as "an almost unique specimen of one-sided legislation." I shall not attempt to go through those Statutes with any minuteness. The most important of them was that passed in the reign of William and Mary, which completely altered, in favour of the landlord, the ancient character of the remedy. This was, in the words of Lord Chief Baron Gilbert—To empower the lord by seizing the chattels to oblige the tenant to perform the feudal services, the chattels remaining in the lord's hands as pledges to compel the performance, and the detention being no longer lawful than while the tenant refused to do the services which were reserved by the feudal contract.The Statute of "William and Mary gave, for the first time, the distrainer power to sell the distress for satisfaction of the rent and charges. Among other rules of the Common Law relative to the subjects of a distress, one was that things belonging to the freehold were not distrainable; and another, that nothing should be distrained which could not be restored in as good condition as that in which it was when it was taken. By the former of these rules, landlords were prevented from distraining growing crops on the tenant's lands, and by the latter from taking corn, even after it had been cut. A subsequent section of the same Statute of William and Mary enabled the landlord to distrain corn in sheaves, or cocks, or loose, or in the straw, or hay in barns, ricks, or otherwise, as well as other chattels. A Statute of George II. further empowered him to distrain growing corn, grass, hops, fruits, roots, pulse, or other product of the land, and to cut and gather them when ripe to be disposed of in satisfaction of the rent. A Statute of Anne gave the power of distress to persons entitled to rent in arrear upon lease six months after the determination of the term, and the same Statute gave the right to follow and distrain goods clandestinely or fraudulently removed—a power which was subsequently enlarged by an Act of George II. In the reign of George II. the ancient rule of the Common Law, which caused the remedy to be attended with considerable risk, that if the party distraining were guilty of any irregularity in making or conducting the distress he thereby became a trespasser ab initio, was set aside, and it was provided— 25That, for any irregularity committed in making or conducting a distress for rent, the party guilty of it shall not be deemed a trespasser ab initio, but that damages shall be recovered by the person aggrieved by such act, in proportion to the injury sustained.Two years later, another great innovation took place by an Act of the same Sovereign, extending the existing provisions for the recovery of rent by distress in cases of rent reserved upon lease to all cases of rent seek, rents of assize, and chief rents. The Statute of Limitations as to real property enacts that no person shall distrain for rent but within 20 years next after the time when the right to distrain first accrued, and provides that no arrears of rent shall be recovered by distress but within six years next after the same shall have become due, or next after an acknowledgment of the same in writing, By an Act passed in the present reign, a tenant's growing crops, taken in execution and sold, and remaining on the premises for the purpose of being reaped, are distrainable by the landlord for rent become due after the taking into execution. Woodfall, in his Text-Book on the Law of Landlord and Tenants, points out that, in consequence of this enactment, which was hastily passed for the benefit of landlords immediately after a decision to the contrary, the tenant's crops can only be sold under an execution for their value, less the rent to which they may become liable, and the costs of a distress; but the landlord may afterwards abstain from distraining, and so in effect benefit the purchaser pro tanto at the tenant's expense, after which he may sue the tenant for such rent, or distrain upon his other goods for the amount. A Statute of Anne provides that no goods shall be removed by the Sheriff under an execution from the demised premises, until one year's rent, if so much be due, is first paid to the landlord, otherwise the Sheriff will be personally liable in an action founded on the Statute. The law, in cases of bankruptcy and liquidation, is thus laid down in the Bankruptcy Act, 1869—The landlord, or other person to whom any rent is due from the bankrupt, may, at any time either before or after the commencement of the bankruptcy, distrain upon the goods or effects of the bankrupt for the rent due to him from the bankrupt, with this limitation, that if such distress or rent be levied after the commencement of the bankruptcy, it shall be available 26 only for one year's rent accrued duo prior to the date of the order of adjudication; but the landlord or other person to whom the rent may be due from the bankrupt may prove, under the bankruptcy, for the overplus due for which the distress may not have been available.It might be supposed from this that in case of insolvency the landlord's priority is limited to one year's rent. Practically, this is not the case. If the distress is put in at any time before the debtor, though long insolvent, has actually been declared bankrupt, it will be in the power of the landlord, who has stood by and allowed arrears to accumulate, to sweep off everything to the full amount of six years' rent, even though nothing be left for the other creditors. There are two Acts of the present reign which it is hardly necessary to mention—namely, those which have been passed for the protection of the goods of lodgers and of railway rolling stock from distress. The simplest form of distress, and that which bears the most evident traces of the primitive institution, is the impounding of stray cattle. This kind of distress has been little affected by legislation, and still remains very much as it was at Common Law. There is no power of sale. It does not arise out of the relation of landlord and tenant, and is founded on the principle of recompense which justifies a person in retaining that which occasions injury to his property till amends be made by the owner. With this ancient remedy, however, we had nothing to do. We may likewise dismiss from consideration the various statutory executions—distresses for poor's rates, distresses under the authority of Inclosure and other Acts, distresses to recover duties or debts due to the. Crown. As a learned writer observes, although such proceedings are in the old books constantly termed distresses, they are, in fact, executions, prerogative executions, by seizure and sale. My Motion is confined to the power enjoyed by the landlord to distrain for non-payment of rent, and here it applies only to one class of tenancy—namely, agricultural holdings. Various considerations have led me not to propose to deal with the power of distress for the rent of houses in towns. It is quite true that, to some extent, the same principles apply to urban and rural tenancies; but, in the practical aspect of the question, there is a great difference. 27 I have been guided by the course the House has taken with respect to Scotland, it having clearly been considered desirable not to deal in the same way and at the same time with urban and rural hypothec. It is obvious that the evils produced by a preferential claim for rent are of much less magnitude in the case of town dwellings, where rent is only a small portion of a tenant's expenditure, and the fact of occupation has not the same tendency to mislead, than as in the case of farms, where the rent is a large and important item, and where the mere fact of being accepted as a tenant is calculated to create a feeling of confidence in the minds of others. What I have to ask the House to consider is, therefore, the landlord's right to distrain for the rent of farms. The slight glance I have attempted to take at the history of distress has, I hope, been sufficient to show that though the remedy itself is ancient, the peculiar form it now has is of comparatively recent introduction, and is, in fact, entirely different from its original character. So far as it is ancient, it is derived from a state of society and social circumstances totally different from the conditions of modern life. So much I have felt bound to say, in venturing to move the abolition of a law which existed in the clays of Canute. After all, it is a practical question which we have to decide. Is the Law of Distress, whatever its history and origin may be, suited to the circumstances of the present day? Is it good, or is it bad, for the country? Does it promote, or does it hinder, agricultural improvement? By these tests it must stand or fall, and I shall endeavour to apply them fairly to it. The first point that must strike everyone, in considering this law, is its highly exceptional character. As Mr. Howard Taylor has well put it—It is not only a class law, but a class exception from law, rendering the landlord, as compared with ordinary creditors, a chartered libertine.Distress is one of the few cases in which the law permits a man to take his remedy into his own hands. It is what Blackstone calls—An extra-judicial or eccentrical form of remedy—namely, that which is obtained by the mere act of the parties themselves.Such remedies can only be excused by some pressing necessity requiring more 28 speedy redress than can be had in the ordinary forms of justice. "It is against reason," says Littleton, "if wrong be done any man, that he thereof should be his own judge." The few other instances in which "the law allows a man to be his own avenger, or to administer redress to himself," are justified by an obvious necessity which it is impossible to plead in the case of a landlord seizing chattels of the tenant for non-payment of rent. They are self-defence, which is the first law of nature; the re-seizure of property, wife, or child, wrongfully taken, which might otherwise be destroyed or carried out of reach; entry on land, which another person without any right has taken possession of; the abatement or removal of nuisances, which, as matters of daily convenience, require an immediate remedy; lastly, the right of the person entitled to seize waifs, wrecks, and estrays, because the thing to be claimed is frequently of such a nature as might be out of the reach of the law before any action could be brought. Distress for rent differs from all these, not only in the absence of the pressing necessity, which is their sole justification, but also in the fact that it is a remedy for what is really a breach of contract. Even in the Scotch Law of Hypothec, the landlord seeking to sequestrate the tenant's property has to make application regularly for sequestration on reasons given to the Sheriff. I believe it would be impossible to find in our law another instance in which a man is allowed to take the law into his own hands in order to obtain a remedy for a breach of contract. The practical evils resulting from the arbitrary and ill-regulative nature of the proceeding by distress were clearly pointed out to the Select Committee of the House of Lords, which sat in 1869, to inquire into the Law of Hypothec. Mr. Henry James—the present hon. and learned Member for Taunton—was examined before the Committee, and, after pointing out that anyone could distrain—the landlord could either do it himself, or choose any person he thought fit for the purpose—he added—The result is that the class of persons executing such a process—it not being a very agreeable occupation—is formed generally of persons who are for the most part insolvent themselves, and who are not certainly sufficiently careful with respect to the due performance of their duties. They seize oftentimes a quantity 29 of goods which is more than sufficient to satisfy the distress, and sell them to personal friends of their own at very much less than the real value. The result is that the tenant often has his whole household broken up, when a very small seizure would have sufficed to pay his rent. If he complains, he has to complain by action against the landlord for taking excessive distress. The effect is that great injustice is done to the tenant, and almost equal injustice is done to the landlord.The present Lord Moncrieff pointed out the less severe operation of the Scotch Law of Hypothec, where, by the simple application for sequestration and taking an inventory, the security attaches, without the shock to the tenant's credit of going on to distrain, and taking possession of the goods. An Englishman boasts that his house is his castle; but it is a strange thing that the day after rent falls due, without notice, and without legal formality of any kind—a power which exists in the case of no other personal obligation whatsoever—some dirty and drunken ruffian may be called from the streets and sent to run riot upon your premises, inflicting incalculable damage, far beyond the amount of the claim against you, damage for which redress, if it be obtained at all, can only be sought by expensive and tedious legal process. It must, I think, be seen that such a power as this, however appropriate as an instrument in the hands of feudal lords to enforce the obedience of their vassals, is utterly out of harmony with the commercial principles which regulate the relations of the owners and hirers of land at the present day. I have endeavoured to show that distress is an anomaly and an anachronism, both as regards its nature and the means by which it is enforced. There are other respects in which it is an exceptional and peculiar law. It is a law which gives a preference to one class of creditors over all others. The general principle of law is that when a man is not able to pay his debts, his property shall be equally divided among his creditors. The Law of Distress creates a preferential claim, varying from one to six years' rent, according to the time when it is put in force in favour of one particular creditor. The Law of Hypothec, though limited, in the case of crops, to the rent of the year in which the crop is grown, and in the case of cattle to the current year's rent, gives a similar preferential 30 claim—the difference is one of degree. The principle involved in this preference was one of the points investigated by the Select Committee. An attempt was made to show that the special preferential security enjoyed by the landowner resembles some other instances in which special rights over property are given to certain persons in preference to general creditors by the Commercial Law of this and other nations. As this is a matter on which great stress is laid on the part of the Committee, I am afraid I must trespass on the patience of the House with a somewhat dry and technical argument while I endeavour to get to the bottom of it. The argument in favour of hypothec is thus stated in the Report—Familiar instances of such a preference"—i. e. special preferential security—"are afforded by the lien that shipowners have on the cargoes of their ships for their freight, and by bottomry bonds, which give to their holders a prior claim over the other creditors of the shipowner for money lent for repairs necessary for the safety of the ship. In these cases, the law seems to have been suggested by its having been found convenient to afford special facilities for granting and obtaining credit in the transactions to which it applies.And further, in paragraph 10—It is well known that our Commercial Law allows holders of various kinds of property to pledge to particular creditors property of which they have the command, so as to give those secured a preference over other creditors in case of their bankruptcy. Much of our valuable trade could not be carried on without this facility for raising money. By the Law of Hypothec, the tenants of land or houses are, in fact, enabled virtually to pledge their crops, and the property on their premises, as a security to their landlords for their rents, just as a merchant, importing wine or sugar, may pledge the dock warrants that represent the property, in order to obtain money to carry on his business. When cither farmers or merchants become bankrupt, such pledges are good against the general creditor.In inquiring how far these instances of preferential security resemble "distress," it is necessary to bear in mind that distress and hypothec, though their practical operation may be similar, have had a different origin and are founded on totally different principles. I shall contend that the instances of preference referred to are substantially different from the right of hypothec, and do not carry us any way in disproving the exceptional character of that law. But, even if this were not the case, it would not prove that these preferences were similar to distress. The right of hypo- 31 thee, like the hypothecation known in maritime law, is derived from the Roman Civil Law, and supplanted in Scotland the old Law of Distress. As the present Lord Moncreiff explained to the Committee, hypothec arises from a tacit contract, or contract arising by implication of law; it is a pledging to the landlord the property of the tenant while it remains in his possession by way of security for the rent. Distress, on the other hand, a relic of the old feudal power, though now used to enforce rights arising out of contract, is not founded on any implied contract or any notion of a hypothetical assignment of the tenant's goods. The right to seize strangers' goods disposes of this idea. As Mr. Taylor puts it—Can anything be more ridiculous than that any tenant should he imagined to create a security over his neighbours' chattels present and future for his—the assignors'—own debt, may, for his future non-existing debts, a charge shifting off or on according to the whereabouts of unscheduled, unspecified property, and without warning or consideration to the neighbour affected?This idea of a hypothecation, or pledging of the tenant's goods as a security for the rent, is perfectly inconsistent therefore with the nature of distress, and no substantial analogy between distress and maritime or other hypothecations can be maintained. I might safely leave the argument here; but to show the utter hopelessness of any attempt to defend either distress or hypothec, on the ground of a supposed resemblance between them and other preferential securities recognized by the law, it may be worth while to go a little further. Let us leave out sight the feudal origin of distress, and the absurdity of supposing that anyone could create a lien or security over the goods of another, not in his possession and without the knowledge of his owner, and let us look simply to the effect of distress as giving the landlord a preferential security for his rent, and inquire whether this preference is of the same character as that existing in maritime or other liens. Looked at in this way, the cases of distress and hypothec may be said to resemble one another, and the evidence given before the Committee is applicable to either the Scotch or the English Law. A lien is the right of a person in possession of goods to retain them until a debt due to him has been satisfied. It 32 is merely a right to retain the possession of the goods, and depends on service rendered. The English law on the subject may be found in the evidence of Mr. James, at page 8 of the Blue Book, containing the Report of the proceedings of the Select Committee. Mr. James says—In our land no lien, in the proper sense of the word, can exist without possession. There may be hypothecation without possession, but to have a lien you must have possession. If, for instance, you sent cloth to be made into a coat, or if you sent your watch to be cleaned, the tailor or the watchmaker would have a lien upon those goods until he was paid; but I know of no case in which lien exists, without possession, actual or constructive. The first claim which the owner of a vessel has over the cargo for freight is a case in point, resting directly, like the liens of railway companies and other carriers, on services rendered and on possession.The witness subsequently referred to certain provisions of the Merchant Shipping Act, by which the person having the lien may land goods and put them into bonded warehouses, and pointed out that this was a case of constructive possession by Statute. The essence of the contract of letting and hiring land involves the making over to the tenant, for the period of the demise, of the entire right to the use of the soil which produces the crop. No one, therefore, I think, will venture to maintain that the landlord is in possession, either actual or constructive, of the property of the tenant. Still less is he in possession of the property of a stranger, which is temporarily or accidentally on the premises. It is clear, therefore, that there is no likeness between the right of lien, as commonly known to the law, and the right of distraint. The question is now narrowed to the case of hypothecations, by which preferential security can be given over goods without a transfer of possession. The only instances of hypothecation in our law are those which have been so often pressed into service in discussions on hypothec—namely, what are called bottomry bonds and respondentia, arising out of the power intrusted to a master of a vessel, in consideration of money advanced for repairs necessary for the safety of the ship or cargo, to make the ship or cargo liable for repayment, when the voyage is safely performed. Nothing could more clearly betray the utter weakness 33 of the case than the attempt to bolster it up by such analogy. In the first place, the lender in bottomry bonds cannot take the law into his own hands. He must, like any ordinary creditor, invoke the assistance of a Court to enforce his claims. Then the power of pledging ship or cargo rests upon absolute necessity. Without such a power, it might be impossible in a foreign port to raise the money necessary to put the ship in a safe state for the prosecution of her voyage. It is a power which the master is not entitled to exercise if he can raise money by other means on the credit of the owners. "Necessity alone," says Lord Stowel, "supports bottomry bonds; the absence of necessity is their undoing." I wish to speak with the utmost respect of the labours of the Select Committee; but I must confess that I have searched in vain through the evidence given before it for any grounds for the conclusions expressed in the paragraph of the Report which I have quoted. Some suggestions favourable to such a view may be found in the questions put to the witnesses, but the answers I fear can hardly have been deemed satisfactory. The evidence of an eminent English lawyer I have already referred to, and I do not think there was much comfort got out of that. A Scotch legal authority of the highest eminence, the Lord Advocate of the day, also gave evidence which was very much to the point, though not quite the same point as that indicated in the Report. At page 321 of the Blue Book, Lord Moncreiff is asked—Are there not cases in which, there is aright of Hypothec over other matters as well as real estate; for instance, in what are called, time charters when a person hires a vessel, the owner of the vessel having the first claim over the cargo as against all other creditors?The Lord Advocate replied—That, again, is one of the rights of lien arising out of the Merchant Law and out of the necessities of Commerce. I do not consider that there is an analogy,At page 322, he is further pressed—Do you not consider the case of bottomry bonds an analogy?He answered—I do not; a bottomry bond is a wager in very difficult circumstances, under which the creditor advancing his money is to get a very large return in the event of the vessel arriving 34 safe, and in the event of the vessel not arriving safe, he gets nothing at all. I do not think any great light is to be thrown upon the question of landlords' hypothec by these illustrations, excepting that it shows it is not inconsistent with the general principles of law, that where the risk is unusually disproportionate to the interest, there should be a special power of security.This evidence, coming from so high an authority, does not seem to carry us very far in the direction of the Report. It requires a vivid imagination to see a resemblance between a vessel, out of repair in some strange and distant port, and unable to prosecute her voyage, with, perhaps, a perishable cargo on board, driven by sheer necessity to obtain, on any terms, the advance of money necessary for repairs, and an ordinary landowner seeking payment for his half-year's rent with all the ordinary means of legal redress at his disposal. What is a landlord's risk compared to that of a stranger who advances money on a ship which may never reach her destination? What, even, is the landlord's risk compared to that which is incurred by the ordinary creditors of the farmer, or by ordinary creditors in commercial transactions? His position, instead of being one of extraordinary risk, is one of pre-eminent advantage. He has great power and influence over the debtor. He can protect himself in a variety of ways. He selects his tenant, and has the best means of obtaining information as to his position and character. He can make any terms he thinks necessary for his safety. He may require payment in advance, or the name of some substantial person joined as co-tenant. He can demand surety, or may take a deposit in security. Above all, the loss which he can incur is extremely small when compared with that which may fall on the ordinary trader. The trader runs the risk of losing principal and interest. Land, happily, cannot take to itself wings and fly away, as money often seems to do, and the utmost the landlord, using ordinary diligence, can lose is the rent of his land for a short period—substantially, in fact, his risk is limited to what may be considered the interest on his capital. So far, therefore, from there being in the case of the landowner's claim for rent the special urgency and the high degree of risk which justify the preferency created by bottomry bonds, he is of all creditors the safest and the least in danger of loss. I must apologize 35 to the House for having gone so minutely into this point. It really is not worth it. But I hope, by having done so, I shall have exploded a fallacy which can only have arisen from a confused way of thinking and a loose and inaccurate use of language. I have now endeavoured to show that the Law of Distraint for rent is not only exceptional as to its nature and the means by which it is enforced, but that it is also without parallel in our law, as a special preferential security in favour of one particular class of creditor over property not in his possession, and unsupported by the peculiar necessity which alone justifies such security in the few other instances in which the law allows it. It is hardly necessary to allude to bills of sale and to mortgages. A bill of sale is a conveyance of goods by a person owing money to a person from whom he borrows money by way of security. It is good neither against a landlord's claim for rent nor against creditors under a bankruptcy. A mortgage is conveyance of the land subject to a power of redemption. Neither of these has any resemblance to distraint. Distraint, being a remedy of such an exceptional character, and so contrary to the general spirit of the law, what justification can be pleaded in its defence? It is a privilege which illustrates the observation of Adam Smith, that—Laws frequently continue in force long after the circumstances which first gave occasion to them, and which could alone render them reasonable, are no more.Not a few reasons, however, are given in support of the fairness and usefulness of this law. Of these, perhaps, the one apparently deserving the greatest consideration is that which we find in page 5, paragraph 11th, of the Report of the Select Committee. This paragraph is as follows:—It may he observed, moreover, that the landlord is necessarily in a position different from other creditors. A merchant, if he entertains any doubts as to a customer's solvency, can refuse to deal further, with him, whereas a landlord, who lets his land on lease, parts with the control of it for a term of years; and as the eondition usually inserted in a lease, that it shall be forfeited for non-payment of rent, cannot be enforced without legal process, a considerable time may, and frequently does, elapse before he can recover possession of the land, during which a fresh debt is accruing in the shape of rent from the tenant.36 It would be obviously unjust, in dealing with the landowner's preferential claim, so as to place him, for the recovery of rent, on a level with other creditors, to neglect any peculiar circumstances in his position which would leave him at a disadvantage. That peculiar circumstances do to some extent exist must be admitted, and how they can in fairness be dealt with is a problem which confronts the advocates of the abolition of distraint. This point was directly put to Lord Moncreiff in his examination before the Select Committee. At page 306, he is asked this Question—The landlord's position is somewhat different, is it not, from that of a dealer in manures, or in artificial food, or anything of that kind, who might at once refuse to supply anything further to his customers?The answer is—I observe that in the evidence given before the Commission that illustration is very frequently used, and it is true to a certain extent. At the same time, a landlord has manifestly certain counterbalancing advantages which the ordinary creditor has not, and never can have.At page 324, Lord Moncreiff says—I rather think that the landlord's position is a super-eminent one, and that he has a good deal more in his power than an ordinary creditor, and I do not think that even if the right of Hypothec were abolished, he would stand in a worse position than other creditors.What Lord Moncreiff calls the "super-eminent position" of the landlord, and the high consideration attached by the law to his claim for rent, is capable of many illustrations. Perhaps none is more striking than the decision of the Courts in the well-known case of Davis against Gyde, which, so far as I am aware, has never been questioned. If a bill or note payable at a future day be given on account of an ordinary simple contract demand, for instance, for the price of goods sold and delivered, or even if it is given on account of a judgment debt, it will suspend the right to sue for the original demand until the time has arrived at which the bill or note was payable. In Davis against Gyde, it was held that it is otherwise where such an instrument is given on account of rent, for that being a debt of a superior degree, cannot be suspended by a security of an inferior class; and, therefore, if a landlord take a note of hand at three months, or a security for the rent under a bond, or 37 agree to take interest on rent in arrear, he may nevertheless distrain the next day if he thinks proper. An undoubted peculiarity, however, in the landlord's position arises from the rule of law that rent does not become due until the end of the day on which it is made payable. Before that period has arrived the landlord must stand by, and although his land has been in the occupation of the tenant, he must allow the other creditors to sweep off everything. This is a grievance from which the power of distraint does not protect him, for no distress can be made until the day after the rent has fallen due. It is obvious, however, that the remedy is, to a large extent, in the landlord's own hands. There is no objection in point of law to an agreement by which rent is made payable before the time for which it is to be paid has elapsed. In some districts, I believe, by a local custom, rent is payable as soon as the half-year begins, and this, of course, gives the landlord a right to his remedies immediately. Should this appear objectionable, it would be perfectly simple, though agricultural rents are ordinarily payable half-yearly, to reserve them at shorter intervals. Mr. Burton, a Lincolnshire solicitor, told the Select Committee that prudent solicitors often reserve rents quarterly as a protection to the landlord, without any intention of receiving them oftener than half-yearly. The faintest shadow of grievance would be removed if the law, following the principle of the Apportionment Act, by which rents, like interest on money lent, though payable at fixed periods, are considered as accruing from day to day, were to give the landlord, in case there is good ground for thinking that the tenant is verging on poverty, the rights of a creditor for the current rent, though the conventional time of payment had not arrived. Another peculiar feature of the landlord's position is the difficulty and delay he may have in getting possession when the rent is not paid, and further rent is constantly accruing. This will, no doubt, be fully dealt with by the lion. Member for South Norfolk (Mr. Clare Read), who has an Amendment on the Paper to the effect that the right of re-entry for the non-payment of rent should be made more simple and speedy. On general grounds I certainly look with favour on the 38 Amendment; but I am anxious to hear by what particular means the hon. Member proposes to effect his purpose. Recent events make it necessary to subject such proposals to very close scrutiny. The action of ejectment is slow and troublesome. It may be prolonged at great hardship to the owner by an insolvent tenant's using dilatory pleas. The policy of the law recently has been to give in every case of truthful and undisputed debts a certain and easy mode of recovering them. For instance, on a bill of exchange, the defendant is prohibited from defending unless he shows that he has really a good defence and gets leave to defend. Whether rent is paid or not is a simple matter of fact, which should be easily and quietly ascertained, and when it is ascertained, the landlord should be put as speedily and inexpensively as possible into possession of his land. However, this is a branch of the subject, which, fully admitting its great importance, I am glad to leave in the able hands of the hon. Member for South Norfolk (Mr. Clare Read.) I have attempted to show that by accompanying the abolition of distraint with one or two minor or simple changes in the law, the landowner would be under no disability in any respect, as compared with other creditors, while he would continue to enjoy many great and peculiar advantages necessarily attached to his position. What would be the effect upon the condition of the tenant? One of the arguments most frequently urged against the abolition of Hypothec is that the landlord being deprived of his special security would insist upon an earlier payment of the rent. It is obvious that the postponement of rent is equivalent to a cash credit to the tenant for the time being. But, say the defenders of Hypothec, if this right be taken away, the system of deferred rents will be abandoned and forehand rents will be required. The merits of the Scotch controversy are not before us; but this argument does not apply to England, because what a Scotchman would call forehand renting is the almost universal practice here. Under the Scotch system of deferred renting, the first payment seldom takes place for less than 12 months, more frequently 15 or 18, and in some cases, even as much as 21 months after the tenant has entered upon a farm. In England the tenant generally speaking enters at Michaelmas, and pays his 39 first half-year's rent at the Lady Day following, with such grace as the landlord chooses to allow him. It may be said, however, that if Distraint be abolished, the landlord will not be content with this, but will require payment in advance. No one can question the landlord's right to make any terms he may think necessary for his own protection. Should the absolute security of payment in advance be required, it would, like other special advantages, have to be discounted in the terms of the bargain. Anyone who wanted exceptional safety would have to pay for it. I have not the least fear, however, that any considerable number of owners would consider such a precaution necessary. Ordinary care in the selection of tenants, and properly-drawn covenants would give all the security that any reasonable man would think necessary. Another safeguard was pointed out by Mr. Makgill, an English witness of great agricultural experience, before the Royal Commission. He drew attention to the fact that along with the system of yearly leases there has grown up a system of tenant-right, which in some parts of the country has attained very large proportions, and which, being as it were a set-off, forms an important security to the landlord for the rent due. The tenant is entitled to certain repayments for manures, for cake, and for acts of husbandry actually performed on the land, so that the payments due to a tenant at his out-going may greatly exceed his last half-year's rent, and, in some cases, actually exceed the whole year's rent. In some parts of the country, as in Lincolnshire, the tenant-right is of still wider extent. It may be worth observing, here, that it is one of the peculiar hardships of the Law of Distraint, that no set-off or counter-claim on the part of the tenant interferes with the landlord's right of distress. Landlords, it may be argued, without distraint to rely on, will not show the same indulgence to tenants. But it may fairly be questioned whether it is proper that the law should protect landowners from risk, in granting indulgence to needy or insolvent tenants. They may do it out of kindness if they please. Business and sentiment must be kept apart. No doubt, it will be, so far as it goes, a loss to the tenant to be deprived of the extra credit with the landlord which he has under the 40 present system. The question is whether the advantage is not one for which he pays too dearly. Preferential security to one creditor can only be given at extra risk to all other creditors. The credit which the farmer has with his landlord entails a loss of credit with every other person with whom he deals. The banker, the manure merchant, the seedsman, the implement maker, every person from whom the farmer buys, all know that, in dealing with him, they run a peculiar risk, and that, in the event of his becoming unable to meet the claims upon him, one creditor may, and often does, get 20s. in the pound, while the general body of the creditors are obliged to content themselves with an infinitesimal dividend. In a case that actually occurred, the landlord was paid in full, and the general creditors got one-halfpenny in the pound. The consequence is, that the tenant pays higher prices to cover extra risk, and obtains credit on less easy terms than if his position were not so uncertain. His general transactions, also, are unduly hampered, and he is prevented from disposing of his produce at the best times and on the most favourable terms. At a recent meeting of the Central Farmers' Club at which this question was discussed, Mr. Hodges, who is, I believe, an extensive farmer in Kent, showed by a practical illustration, what serious obstacles the present state of the law places in the way of business arrangements. In the county of Kent, he said, a great many occupiers of land were in the habit of selling their hay and other produce of that kind to persons in the Metropolis, and when the time came for removal to London, there were often great difficulties in the purchasers getting possession of the haystacks and so on for which they bargained. The consequence was, that the course of business was greatly interrupted, and often at a time when it was necessary that produce should be reduced into cash in order that engagements might be met, and men were in that way pushed, as it were, into the Bankruptcy Court. On the same occasion, Mr. Aveling, a member of a firm of agricultural implement makers at Rochester, said that last year his firm sold a set of steam-ploughing machinery of about £2,000 value to a farmer, from whom he had received excellent re- 41 ferences. The machinery had, however, been at work only about two months, when he received a telegram on a Sunday morning to this effect—"Sorry to tell you a distress put in for rent, ploughing machinery in a neighbouring farm, get it if you can." By a piece of good luck, he was able to remove the machinery the same night, and so he lost nothing. They all knew, he added, that at the bottom of the circulars of the great waggon companies were the words, "deferred payments;" but how could anyone expect him or other manufacturers of agricultural machinery, to enter into a large contract with deferred payments in such a state of the law as that Which now existed? It would be easy to multiply instances of the obstacles which liability to distraint puts in the way of farmers, both in making the best terms in their dealings with the public, and in obtaining the credit of which they stand in need in order to carry on their operations successfully. It would be a great error to estimate the influence of the law by the number of cases in which a distress is actually carried out. These are comparatively rare. This was admitted to the Committee by Mr. Burton—a strong advocate for the retention of the law. He says—In England distresses are, comparatively speaking, very seldom resorted to compared to the extent to which the Law of Distress is always quietly operating.In bankruptcy the assignees often pay without the landlord's distraining. The landlord's rights to his rent, by virtue of the Law of Distress, are constantly and quietly operating without actual distraining being resorted except as an exceptional thing. In like manner, the effect of the law in the tenant's credit is frequently severely felt where the possibility of a distress is never mentioned. A tenant, says Mr. Howard, formerly Member for Bedford, resorts to a banker for an advance to tide him over a crisis; of course, nothing is said by the banker or bank manager at the interview about the ugly question of the Law of Distress, and it probably never once crosses the mind of the would-be borrower. But is anyone simple enough to suppose that it is absent from the mind of the banker when he very blandly informs him that he can be accommodated with the advance, only, he adds, reliable security 42 will be expected? The influence of distraint in stimulating an unhealthy and unsound competition for land, and raising rent above its natural economic level, is extremely mischievous. No one can desire on public grounds that land should be let for less than its full value. The landowner who accepts less than a full rent may confer a favour on the individual who hires his land as he would if he made him a present, but he does no public service, and it is no part of the duty of the State to encourage him so to act. But where rent of land is determined by competition, by what is called "the higgling of the market," sound commercial principles should prevail. Protection should not be given to the owner of a certain commodity by which he may be led to neglect the ordinary precautions of business, and to grasp at a price which is not justified by the circumstances of the property he has to dispose of. The landlord's priority is a premium held out to him by the State to neglect the ordinary precaution of selecting suitable tenants with adequate capital, and it is also a direct inducement to persons without means or skill to enter in to a reckless competition for the hire of a commodity which they can employ neither with profit to themselves nor advantage to the country. Nothing of greater weight could be adduced on this point than the evidence before the Royal Commission of one of the best known and most successful farmers of Scotland, Mr. William Scott of Timpendean. Mr. Scott speaks with immediate reference to Hypothec, but the principle involved is precisely the same. He says—I think the effect of the abolition of the Law of Hypothec would be to improve farming. There would be a much better class of tenants than many who now offer for farms and get them. I think it would lower the rents a little at first, though I have no doubt they would afterwards come up to the same amount. A number of the present successful offerers for farms have neither skill nor capital, and a man without both has no chance. I have known landlords take such men.… I have known tenants get farms who ought to have been bankrupt at the time they were taking them. If the law were abolished, tenants with capital would be sure, that in offering for farms, they were competing on equal terms, and not against men that had nothing to lose. At present, it is a mere speculation with men that have no capital—a sort of 'heads I win, tails you lose.'The effect of reckless letting of land in creating a fictitious rental is by no means 43 limited to the land so let in the first instance. The example is contagious. If hon. Members will turn to the Report of the Royal Commission of 1864, page 122, they will find the process described by that eminent agriculturist, the late Mr. Hope of Fenton Barns—A landlord advertises a farm and lets it to the highest bidder (at say £4 per acre). If I am going to value any land near it, my mind is naturally biassed to see if this farm I am going to value is worth £4 an acre. I say, 'Here is one, it may not be so good, let at that sum; the farm I value must be £4 an acre too.' While the man who took the farm that was advertised does not pay his rent; very probably getting a reduction of rent in a year or two.The true principle was elicited by a noble Lord, a Member of the Select Committee, in his examination of Mr. William Scott. The noble Lord, who evidently totally misapprehended the position of the advocates of the abolition of hypothec, asks Mr. Scott—Do you consider it to be consistent with Free Trade principles that the State should prescribe to the landlords upon what system they should manage their estates? Answer—I do not. Do you consider that it is consistent with those principles that they should be required by law to be prudent, and to choose tenants with capital instead of others? Answer—Not at all. Therefore, if under the present law the landlord is imprudent and chooses tenants without capital, that is his own affair, is it not? Answer—Not at all under the present law, because he is protected at the public expense; at the expense of other creditors.This is exactly how the case is. Without dreaming for a moment of any interference with the landlord's right to manage his property as he thinks fit and to let his farms to whoever he pleases, we do protest most earnestly against a law which affords him special immunity from the results of a want of care and prudence which in other transactions would be disastrous, and which encourages him in a course of proceeding which presses hardly on the competent and solvent farmer, and is highly injurious to the general interests of agriculture. When trade hardly existed, and land was held under feudal tenures, the power of distraint may not have been felt as an injury and inconvenience. But all this has passed away, and landowners now find their best interests are bound up with the commercial treatment of land. The scientific discoveries and mechanical improvements, which have increased the productive powers of the 44 soil and swelled so enormously the rent-rolls of its owners, have made farming a pursuit quite different from the simple culture of by-gone days. Successful farming now requires the control of a large capital, and involves heavy and complicated business transactions in many quarters, and with all sorts of persons. The modern farmer is a man of business who needs the full control of all his resources, and the free use of all his energies. If you fetter and cramp his commercial freedom in the rusty bonds of antiquated privilege, he will be overmatched in the fierce strife of worldwide competition; and, with falling rent and diminished production, you will mourn, when it is top late, that decline in British agriculture which a selfish and shortsighted policy will inevitably produce. The farmer is no longer shielded by protective duties in the disposal of his produce; he has to face the competition of the world. The fresh unexhausted soils, the low rents, and the light taxes of new countries, with the wonderful improvement in the means of transport, bring dangerous competitors to his very door. The present position of the English farmer taxes to the uttermost the powers even of the strongest. In better times, it is full of anxiety. In 1869, Mr. Wilson, of Edington, wrote to the Chairman of the Select Committee a letter, pointing out in forcible language the peculiar risks attendant upon the farmers occupation—When a man enters into a farm he at once invests his means, usually his whole means, in a concern beset with very great risks indeed, and which yields smaller average profits than any business employing a similar amount of capital and labour. What may be called its natural risks, arising from adverse seasons, and from disease and death of live stock, are always very great, besides which there are those which it has in common with other occupations from fluctuations in markets, bad debts, and the dishonesty or carelessness of servants. In the case of a farm let on lease for a term of years, the tenant comes betwixt the landlord and all those risks, and also keeps its fixtures in repair, and insures them against fire. The landlord gets his rent term by term, whether there has been a profit or no; and if the farm proves to be rented above its value, or if disasters befall the tenant, it often enough happens that he has to leave it a ruined man, although all the rents have been paid in full. It is surely unbecoming to manifest such anxiety to have the interests of the naturally strong party, whose risks are small, fenced and secured in every possible way, while those of the weaker party, whoso risks are so great, are deemed unworthy of notice.45 But there are other persons to be considered as well as landlords and tenants. If the landlord's claim on the estate of an insolvent be paid in full, the dividends applicable for the discharge of all the other claims must, of course, be diminished. I do not know that implement-makers, or dealers in manures, seeds, or feeding stuffs, have any special claim to regard; but, certainly, if service done should be remembered, they deserve the utmost consideration at the hands of landowners. Without their energy and enterprize, anything like the present standard of rent would have been impossible. They do not profess to be animated by philanthropic motives, but they seek no exceptional favours. They are men of business; but they do expect that those who reap so rich a harvest from their labours will not deny them fair commercial equality in their dealings with those with whom they conduct their transactions. Every improvement, by which the expenses of cultivation are lowered and the cost of production diminished, cheapens the price of food and is a general advantage to the community. Landowners, however, derive a special advantage from these improvements. Ultimately, indeed, the whole advantage is absorbed by them. Farmers, who use improved machinery or manures may profit by them for a time; but if the expenses of production are thereby permanently diminished, they will be able, with the same margin of profit, to pay more rent, and the competition of capital will soon oblige them to do so. Nothing in the operation of the Law of Distraint offends more strongly against one's ordinary sense of justice than the consequences which proceed from the principle that it is the place where they are found, and not the persons to whom they belong, that renders them liable to distress. It is hard that agricultural implements, tiles, manures, and other property which have not been paid for, should be distrained for the rent of the land on which they are found. It is harder, still, that cattle and sheep, sent upon a farm for temporary keep, and which are not the property of the tenant at all, but belong to some innocent third person, should be seized and sold for arrears of rent. A case, showing the monstrous abuse to which this law may lead, occurred not long ago in Kent, and attracted con- 46 siderable attention. The facts were publicly stated at a meeting of the East Kent Chamber of Agriculture, held at Canterbury last October, and a strong feeling of indignation was expressed. I refer to the case of Lake and Duppa. Mr. James Lake, the aggrieved party, told his story to the meeting, and the facts, I believe, are undisputed. Mr. Lake said that he had been in the habit for many years of sending his lambs, as soon as they were weaned, on to a hill occupied by a neighbouring tenant-farmer, to eat off the aftermath. Having been very unwell lately, Mr. Wood, who managed those things for him, put out his lambs for him this year; and he had received a report from Mr. Wood which contained a complete statement of what had occurred. On the 25th September two men were sent over to bring the lambs back, when they found Mr. George Duppa, the landlord, in possession of the farm. The broker was not there then, but arrived shortly afterwards, and refused to give up the lambs, although well aware to whom they belonged. On the following Wednesday, Mr. Wood called on Mr. Hoare, Mr. Duppa's solicitor, and was referred by him to Mr. Duppa himself, who said he should sell the sheep. On Monday, the 30th September, a bill of the sale was brought to Mr. Wood, and the sale took place on the 2nd October. Mr. Lake said they would see from this that on the 24th September Mr. Duppa seized these lambs, no bill of sale came out until Monday, the 30th, and on Wednesday the lambs were sold; so that really, if Mr. Wood had not happened to be on an adjoining farm, the sheep would have been sold, and the owner, Mr. Lake, would not have known anything about it. It appeared there was four years' rent in arrears, which, with expenses, amounted to £495. The rent of the farm was £112. It was raised from £80 to £112 when Mr. Duppa bought the land, and it was four years' rent at £112 that the distress was for. The tenant's effects realized £135—a great deal more than they were worth—and his, Mr. Lake's, 160 lambs sold for £360, making £495 in all; so that Mr. Duppa had actually got £350 of his in hard cash. He thought the state of things thus revealed ought not to be allowed to exist in any civilized country. Comment on this case is unnecessary. 47 The facts speak for themselves. Distress has been defended on the ground that the relation between landlord and tenant is a sort of partnership, giving the landlord a claim for his rent upon what is found on the land. But what is the meaning of such language, applied to such a case as this? What partnership or quasi-partnership existed between Mr. Lake, the owner of the lambs, and Mr. Duppa, the owner of the land? How can it possibly be argued that Mr. Lake's lambs were Mr. Duppa's share of the produce of the farm? I pass on to glance very briefly on the effect of the abolition of Distraint on the position of the landowner. I may say, in passing, that I approach this question not as a farmer or as a dealer in implements, manures, or anything of the sort. My income is derived from the ownership of land, and it is because I believe the abolition of Distress would be conducive not only to the general welfare of the country, but also to the true interests of the landowners, that I bring forward this Motion. It has been urged by those in favour of the existing law, that if it were abolished, the landlord's power of raising money for the improvement of his estate would be greatly diminished, as anything which tends to impair the security of rent tends necessarily to improve the mortgagee's security for the payment of interest. This objection was stated in the draft-Report submitted to the Select Committee by the Chairman, Lord Airlie; but as it does not appear in the Report ultimately adopted, it may fairly be assumed that the Committee were unable to find evidence to support it. Let us turn for a moment to the evidence itself. Witnesses of great experience and authority were examined on the point. At page 5 of the Report, Mr. James is asked—Supposing the right of Distress to be abolished, and that security, if it is a security, taken away, would the lenders of money on mortgage find it necessary to require either a large margin in lending on the security of land, or to raise the rate of interest, or perhaps to do both?Mr. James replies—I do not think it would affect that in the slightest degree. I think the mortgagee does not look to the rent he could get by distress, but he looks rather to what he could realize by bringing the property into the market and selling it after foreclosing. It is only after 48 foreclosing that the mortgagee has the power of getting his principal back by a sale. I do not think the abolition of the right of Distress would affect loans on mortgages at all.So much for the opinion of a lawyer of great experience. Now what does a practical agriculturist say? At page 58 of the Report of the Select Committee, Mr. Scott, of Timpendean, gives this answer—In the case of mortgages, I don't think it would be more difficult for landlords to raise money upon land. It is not usual for landed property to be borrowed upon to its full value; and, in the next place, proprietors scarcely ever have four or five tenants failing at once. There would be as much from the good tenants as would pay the interest.One witness, and one only, expressed a contrary opinion; but I think it must be felt that, in his anxiety to prove too much, this gentleman deprived his evidence of any weight whatsoever. At page 11 of the Blue Book this question was put to Mr. Burton—Of course, if the security were impaired, I suppose lenders would either require a larger margin or a higher rate of interest?Mr. Burton scorns this idea of nicely balanced less or more, and replies—No; they would not be tempted at all. We should decline to lend.And he adds—No solicitor would lend money with the possibility of getting his clients into jeopardy of being disappointed of their incomes.I do not think I go too far in saying that no weight can possibly be attached to the views of a man who could commit himself to such a reckless assertion as this. If the power of Distraint were abolished, what security for money lent would be better than a mortgage on real property, with the usual margin and power of sale in default of payment of principal or interest? The rate of interest and the facility of obtaining loans depends, of course, on the state of the Money Market, which is constantly being acted upon by a great variety of causes; but the idea of saying that if this right of Distress—of which only under the rarest circumstances, a lender on landed estates ever avails himself, and which we are assured on high authority seldom or never enters into his consideration in arranging a loan—were taken away, no temptation would induce lenders to advance money on mortgage, is a statement so extravagant that it would be mere waste of 49 time to dwell upon it. I do not know how much of the money raised on mortgage is spent on the improvement of the land—I imagine not a very large portion of it; but, however this may be, the attempt utterly broke down which was made to show that the abolition of Distraint would injuriously affect the power of raising money on landed security. It is said that if the special security afforded by distress be taken away, the value of land will be diminished, and rents will fall. So far as distress stimulates a fictitious and unhealthy competition, and landowners, relying upon it, are induced to let their farms to reckless bidders without capital or knowledge, rents, thus raised above the proper level, would temporarily fall; but, in the long run, rents artificially stimulated in this way must fall, and they are highly injurious to owners. The amount which a landlord can get must ultimately depend upon the net produce of the soil; it is only by increasing this that the substantial value of his property can be raised. If a needy or ignorant tenant promises an excessive rent, he may pay it for a time; but things will adjust themselves after a bit, and the land, neglected and exhausted, will fall even below its former value. No better illustration can be found than that which is used by Mr. Taylor in his pamphlet. He points out that the true interest of the landholding class, as a class, is something very different from the immediate pecuniary advantages of all the present recipients of rent.
Were a railway company suddenly and arbitrarily to raise its rates, the income of some shareholders would be greatly augmented, because the alienated traffic could not simultaneously be divided. Yet to the permanent shareholder such a course were ruin, and to the company, as a company, suicide. On the other hand, reduction of rates or judicious outlay may decrease the present dividend, while developing new traffic and assuring a prosperous future.Owners, we are told, would decline to let their lands, and would farm them themselves. This is not probable; we see every day farms coming into the owners' hands, and the owners preferring even to let them at lower rents rather than incur the risk and trouble of keeping thorn themselves. If this were the effect, however, we have the high authority of Adam Smith to show that it would be far from an evil. In The Wealth of 50 Nations he points out how important it is that the landlord should be induced to cultivate a part of his own land. His capital is generally larger than that of the tenant, and with less skill he can frequently raise a greater produce. The landlord can afford to try experiments, and is generally disposed to do so. His unsuccessful experiments occasion only a moderate loss to himself; his successful ones contribute to the improvement and better cultivation of the whole country. The fact is that the landowner's interest is strictly and inseparably connected with the interests of the community. Whatever either promotes or obstructs the one necessarily promotes or obstructs the other. If the maintenance of this law is injurious to the general interests of agriculture, then it is necessarily injurious to the interests of the landowner rightly understood. An artificial exception from the principles of law which attracts into a certain business persons destitute of the qualifications necessary to work that business properly, and which exposes persons possessed of those qualifications to an unfair and injurious rivalry, must lower the character of the business and hinder its development. Neither does it benefit the unhappy persons led into a struggle for which they are unequal. Several witnesses pointed out to the Select Committee the strong objections to a law which gives countenance and currency to the delusion that farming is a business which a man may safely engage in with the very slenderest means, if only he be steady and industrious, and have a good knowledge. Mr. John Wilson said—It is very saddening to think of the multitude of such men who, by attempting to farm on such terms, have, speedily lost every penny of their hard-earned little stores, and of the still greater numbers who in the same way have consigned themselves to a lifetime of care, and privation, and ill-requited toil.The Law of Distress holds out a premium to landowners to accept as tenants persons with insufficient capital. I do not say that they generally do so, but so far as the Law of Distress influences their selection this must be its effect. It would be easy to show how injurious this is to the public welfare. The interest of the community is that the greatest possible amount of produce should be raised at the least possible cost. Authorities are united in deploring the evil of 51 insufficient capital in agriculture. Lord Derby, some years ago, expressed his belief that we might double our production as a nation were sufficient capital employed in cultivation. How foolish and mischievous, then, to maintain a law which practically discourages the application of capital to the land? What we want is thoroughness and quality of cultivation; yet we encourage farmers in that misguided desire, which is so general amongst them, to hold too much land in proportion to their capital. Mr. Wilson says—Let any observant person travel over the country, and in all parts of it he will find instances of farms lying alongside of each other, and with equal natural advantages, which, nevertheless, exhibit a very remarkable contrast, as regards their productiveness. When such cases are inquired into, it will usually be found that the difference is duo, not to the greater skill and energy of the more successful occupiers but mainly that he is conducting his business with the advantage of sufficient capital, while his neighbour is straightened in that respect.The example of foreign countries may be referred to, but I do not think it will carry us any way in defence of this law. In some parts of the Continent the landlord is privileged as against other creditors, in others he is not. In Finland he has a preference only if he is a nobleman. In some countries he is privileged if the payment be in kind, but if it be in money he is only a simple creditor. Distress was adopted by the States of America as a portion of the Common Law of England, but it does not appear to have thriven there. In the answers to questions concerning the law in the United States, which appear in the Supplementary Appendix to the Report of the Select Committee on Hypothec, page 4, Mr. Carlisle, the Legal Adviser to the United Legation, says—In a few of the States only is the Common Law remedy of Distress preserved. The general tendency and spirit of the legislation of late years has been, not only to abolish this summary remedy, but to place landlords quite on the same footing with other creditors, leaving the parties to make their own contracts in their own way, touching security for the payment of rent.At page 5, Mr. Carlisle adds—Generally in all the States, rent is not required to be paid in advance; but many landlords, especially in the case of monthly tenants of the poorer classes—This, of course, refers to small urban tenements— 52stipulate for payment in advance. Some security for the punctual payment of the rent is found in very summary and cheap remedies, provided by law, for ejecting the tenant for default of payment.My Motion applies to Ireland as well as to England. I have hitherto dealt with the question chiefly from the English point of view, and I do not know that there is much in the case of Ireland which calls for special observation. The law is more restricted there in several respects. It is limited to one year's rent. A proposal to take away the right of Distress, as far as the general operation of the law is concerned, was one of the provisions of the Irish Land Bill which Mr. Fortescue, on the part of Lord Russell's Government, laid before the House of Commons in 1866. I have here a letter from a gentleman whose name will be familiar to most Irish Members—Mr. Hussey, the most extensive land-agent in Ireland. Mr. Hussey, who deals as agent with from 5,000 to 6,000 tenants, does not consider Distress needed for the security of rent, and says that on the estates he manages it has not been used for 15 or 20 years. In fact, on well-managed Irish estates it is a power which is never put in force. There is considerable apprehension, however, that in the present depressed state of Irish agriculture, this rusty weapon of rural tyranny may be drawn forth again. So far as I am aware, the better class of resident landowners and agents do not consider the maintenance of the law necessary for their protection. On the other hand, those bodies which represent the opinion of the farmers, have expressed a decided wish for its abolition. The Central Tenant's Defence Association, at a recent meeting in Dublin, unanimously adopted a resolution calling upon the Irish Members to support this Motion. The Kerry Tenants' Defence Association, the Wexford Association, and various other bodies, have given expression to the same feeling. I have now only a few words to say with respect to the proposals of the hon. Member for South Norfolk (Mr. Clare Read). The last of them I have already alluded to, and indicated the way in which I regard it. Had I been introducing a Bill instead of a Resolution, I would have endeavoured to frame a clause relieving the landlord from unnecessary difficulty or delay in re-enter- 53 ing upon his land in case of non-payment of rent, and I believe this could be effectually done with all due regard to the tenant's interest, and without hardship to anyone concerned. The other parts of the hon. Member's proposal are of a different nature. Regarded as independent propositions, no doubt, the limitation of Distress to one year's rent, and the proviso that the stock of a third party taken to graze should only be liable for the amount of consideration payable for the grazing would, so far as they go, be decided improvements in the law. The effect of the Amendments, however, would be to substitute these modifications of the law for the definite and comprehensive proposal that the law itself should cease to exist. A compromise, I know, possesses great attraction for many minds; but is this a case to which it is satisfactory or desirable to apply such a compromise? I cannot think so. There is a principle involved in the maintenance of this law which it will be far better to face boldly and finally. It is not easy to comprehend the position of the hon. Member for South Norfolk. At a recent meeting of the Central Farmers' Club he expressed strong opinions on this subject. He is reported as having used these words—My opinion is that the Law of Distress is wrong in principle. It allows a man to be his own avenger, which is, I consider, contrary to the spirit of our laws altogether. It also allows him to be an avenger of his wrongs in private.A little further on, he says—I contend that this law is worse in principle than the almost doomed Law of Hypothec in Scotland.The hon. Member's attitude, it is only fair to say, was the same then as it is now, and in that very speech before the Farmers' Club he announced his intention of moving the Amendment which now stands in his name. It is an Amendment objecting to the abolition of a law which he considers wrong in principle, and altogether contrary to the spirit of our laws. Can any good come of maintaining such a law as this? If it be so bad as the hon. Member thinks it, why not sweep it away at once, and have done with it? The hon. Member spoke and voted for the total abolition of Hypothec, and yet he strives to preserve this law, which, by his own contention, is worse in principle. "What is the use of this timid and hesitating policy? How 54 did it avail in the Scotch question? A very few years ago we passed an Act, greatly relaxing the severity of the law in that portion of the Kingdom. Then we had a Select Committee which summed up very ably the arguments against further change. But it was all in vain. Public opinion in Scotland went to the root of the matter. Public opinion had discerned a principle, and was resolved to carry that principle to its only logical conclusion. And this year we have had the second reading of a Bill to abolish the Law of Hypothec, supported by the Lord Advocate on the part of the Government and carried by a large majority. Why, then, this hesitation and delay? What can come of it but waste of public time and disturbance of public opinion? We should not be too eager to make changes in the law; but when the necessity for a change is proved, and the time for it is come, our legislation should proceed on clear and definite principles, and should be, as far as possible, a settlement of the question with which we deal. If you accept my Motion this subject will be for ever set at rest; if you adopt a timid and hesitating middle course you will satisfy no one, and settle nothing. I am sorry to have been obliged to trouble the House at such length, but I cannot apologize for having done so. I could not venture, with due respect to the House, to present an incomplete case. I have no sympathy with persons who would propose to change any portion of our ancient laws without fully considering the reasons for, and carefully estimating the consequences of, their proposals. I ask the House to abolish an antiquated privilege which came into existence under social and political conditions totally different from those which now prevail amongst us—a privilege which is out of harmony with the spirit of modern institutions, and hostile to the full and free development of modern enterprize. One feature of the case I have not cared to dwell upon, though it is impossible to ignore it. The Law of Distraint is a class privilege in the strictest sense of the term. It is a privilege which has been created by the power and which is maintained for the benefit of class alone, and enjoyed by it at the expense and injury of every other class. In the long series of enactments which have shaped this law from the 55 time of Henry VIII. to our own day, the dominent influence of the landowner is reflected. Shall we wait till the demand for the repeal of this law becomes a cry through the length and breadth, of the land for the destruction of a class privilege? This should be no Party question. A few months ago, the Essex Chamber of Agriculture, as I am told, a highly Conservative body, adopted a resolution which is embodied in a Petition lately presented to this House, praying that as the Law of Distress is injurious to the best interest of the landlord, unjust to the tenant, and deceptive to the trader, it should be forthwith repealed. Public opinion is awake to its importance. Let us not permit this question to become an instrument of political agitation, or a means of severing those who ought to be united. Let us adapt our measure to the circumstances and wants of the time, and boldly and promptly, but with true prudence, efface from the Statute Book a law which is opposed to modern ideas, and unsuited to the conditions of modern industry. The hon. Gentleman concluded by moving the Resolution of which he had given Notice.
§ MR. B. WILLIAMS
, in seconding the Resolution, said, that no one could justify the Law of Distress on any principle of jurisprudence. It enabled the landlord at his own will to enforce the payment of a debt which he thought due to him by the tenant, to be judge in his own case, and also executioner. The Law of Distress originated at a time when the tenant was bound to his lord not only as regarded his goods but his personal liberty, and it would never have continued to this day had not the landlords of this country exercised their rights with singular forbearance. That the law was unequal, and that it sometimes produced real injustice, no one who attended our Law Courts could deny. When the law was enforced the tenant was perfectly helpless. It was true there was the remedy of replevin, but it was a cumbersome, expensive, and dilatory process, and often involved the tenant in long and useless litigation. Whatever claim the tenant might have against the landlord, if any rent was due the landlord had the right to enter and distrain. The law with regard to excessive distress had been laid down entirely in favour of the landlord. Mr. Justice Bailey had said— 56The landlord is not bound to calculate very nicely the value of the property seized, but he must take care that some proportion is kept between the sum he is entitled to levy for and the sum he is entitled to take.And Baron Parke had ruled still more tersely—To determine whether the distress was excessive, you must ascertain what the goods seized would fetch at a broker's sale.The landlord, acting on that view of the law, could seize large portions of the tenant's property and confiscate them. In Wales the practice of distress was seldom resorted to, landlords preferring arbitration for a settlement of whatever differences they might have with their tenantry. The difficulties of the tenant had been increased by the Judicature Act of 1875, which enabled the landlord to reply to the tenant's action for excessive distress by allegations of breach of covenant or bad farming. Counterclaims of that kind ought to be regarded with jealousy by the Courts as the suggestions of legal ingenuity, but unfortunately they were not. A case came before him last year in the course of his professional practice, in which a distress was levied on a large farmer in the North of England, who had a valuable stock on his farm, and the property was sold in a most wasteful manner and for most inadequate prices. The tenant, acting on advice, brought an action for excessive distress, and the landlord brought a counter-claim for bad farming and breaches of covenant. The case occupied some days, and the Judge was not able to complete it because he had to go elsewhere, and at the last moment the tenant was obliged to accept £400 by way of compensation, each party to pay his own costs. The £400 was not more than enough to pay the lawyer's bill. The result was that the tenant was ruined by the wasteful sale. In cases where land in Ireland had fallen into the hands of speculators, the Law of Distress had been frequently exercised with great severity. Although he fully admitted the evil that would result to the tenant if he were allowed to enter into possession of a farm unless he had sufficient capital to cultivate it, he contended that if landlords would, condescend to come down from the high eminence of privilege they occupied, and give up the right of distress, abandoned yearly tenancies, and granted 57 long leases, the capitalists of the country, being secure of their money, would join in the development of the landed interests of the country. He might say in conclusion that he did not agree in some of the proposals put forward by the hon. Member for Norfolk (Mr. Clare Read) in his Amendment, especially that which exempted from seizure the stock of a third party left on the farm for grazing.
To leave out from the word "That" to the end of the Question, in order to add the words "it is desirable that the power of distraint for the rent of agricultural holdings in England, Wales, and Ireland should be abolished,"—(Mr. Blenner hassett.)
§ Question proposed, "That the words proposed to be left out stand part of the Question."
§ MR. CLARE READ
said, that he had lost his voice through attending a temperance meeting. Possibly that circumstance might excite some sympathy on his behalf from hon. Members opposite, although he did not look for much pity from those around him. He desired, however, to utter a few inarticulate sentences in defence of the Amendment on this subject which he had placed upon the Notice Paper, but which he could not move. By that Amendment he had proposed to omit from the Resolution the word "abolished," in order to insert the words "limited to one year's rent," and to add words providing—That the stock of a third party taken on a farm to graze should only be liable for the amount of consideration payable for the grazing, and that the landlord's rights to re-entry for the non-payment of rent should he more simple and speedy than at present.He maintained that if the Law of Distress was to be maintained at all, it must be on the lines thus indicated. He had been charged with inconsistency in putting that Amendment on the Paper, although he had supported the abolition of the Law of Hypothec in Scotland; but what he had said with regard to that was that when the tenants of England demanded the abolition of the Law of Distress with the same unanimity as the people of Scotland had demanded the abolition of the Law of Hypothec, he should be quite ready to vote for it. It 58 was a curious fact, however, that though for many years the Law of Hypothec had been regarded amongst the tenant-farmers in Scotland as a great grievance, it was not until a recent date that the Law of Distress had at any agricultural meeting been referred to as being in any way detrimental to the tenant-farmers in England. The harsh operation of the present Law of Distress had been brought more forcibly into notice of late in consequence of the bad times the farmers had been passing through. Not long ago, a landlord who had allowed his tenant to get several years into arrear with his rent waited until the sheep of a neighbouring farmer were sent on to the farm to graze, when he at once put in a distress and sold the sheep for £400. It was a remarkable proof of the good sense, the justice, and the moderation of the landlords of England, that they very rarely put that extraordinary law into operation. He might be asked why he did not advocate the total abolition of the Law of Distress. His answer was, that that law was so interwoven with our agricultural system that its total and immediate repeal would give a very great shock to all who were concerned in agriculture, and would be detrimental, especially in times of depression like the present, alike to the landlord and the tenant. If they were to abolish that law at once, they must, according to all precedents, exempt existing tenancies from the operation of the now Act; but, on the other hand, if they simply modified it as he would suggest, it might be applied at once to every holding in England. His suggestion was that the landlord's right of distress should only extend to one year's rent. Why had he done that? Because that limit was the law of the land in the case of bankruptcy; and, further, he did not suppose that a landlord would distrain on a tenant unless the latter were more or less insolvent. The rents in annual tenancies were generally due half-yearly, and payable as a rule in England some three or four months after they became due; and if the landlord wished to be generous to his tenant and allowed more than two half-years' rent to be in abeyance, he might take his share with the other creditors for anything over and above one year's rent. His next suggestion was that the stock of a third party taken on a farm to graze should only be 59 liable for the amount of consideration payable for the grazing. That was derived from the Hypothec (Scotland) Act of 1867; it had worked remarkably well during the last 12 years, and there was no reason why it should not be equally good for England. In these times of depression the capital of the tenants had been so reduced, that many of them could not stock their land, and the only way in which the landlord could get his rent was by enabling the tenant to take to graze on his farm the stock of other people. Machinery, such as thrashing-machines and steam-ploughs, which was often let out, was liable to be seized if it happened to be on the tenant's land, whereas it really ought to be exempted. On the same principle that lodgers' goods were exempt from seizure by the landlord of a house, so he would exempt all the cattle and agricultural machinery belonging to a third party which might be found upon a farm. Then, with regard to the right of reentry, if the landlord could not get his rent he ought to have his land, and to have it at once. He believed it often took a landlord months to eject a yearly tenant and obtain possession of his land. It was a roundabout, tedious, and expensive process, and he thought it ought to be both quick and cheap; quick if he was dealing with a fraudulent tenant, and also cheap, or the remedy would be worse than the disease. Moreover, he would not allow any distress to be made except by a bailiff or respectable officer of some Court, and not by a trumpery blackguard acting under the instructions of a pettifogging lawyer. With respect to agricultural leases, if the tenant became insolvent during the time he occupied the farm and was made a bankrupt, if the trustee could not carry on the farm, the landlord could enter immediately on the farm and could also seize all the growing crops. Cases of that kind had recently occurred; and a landlord had bagged not only the whole of his rent, but something like £800 worth of hay and turnips that were on the land. He had mentioned the matter to the Attorney General, who had promised to take it into consideration when the Bankruptcy Bill came under discussion. In conclusion, he hoped the House would favourably consider his suggestions, which he was now precluded from formally moving as Amendments.
§ MR. J. W. BARCLAY
said, he felt considerably surprised by the views of the hon. Member for South Norfolk (Mr. Clare Bead) as embodied in the Amendments he had placed on the Paper for; although the changes he proposed would favour, to some extent, a tenant's creditors, their effect would be prejudicial to the farmers themselves. To limit distraint to one year's rent would simply be to limit the indulgence which landlords would give their tenants; and it would be a conclusive answer, doubtless, by a land agent to a tenant desiring delay for more than one year's rent, that Parliament, by the change proposed, had precluded the landlord from giving it. To give greater power of re-entry to the landlord would simply be to give him more summary means of ejecting the tenant, which seemed wholly unnecessary, so long as the landlord had the preference to a year's rent, and one year would practically give him a preference to two years' rent. The Amendment might be accepted as evidence of the disinterested character of farmers' politics, for they showed that they were ready to look after the interests of their landlords and creditors before their own. As the hon. Member for South Norfolk had remarked, this question of distress and its effects was new to English farmers; but farmers in Scotland had long ago made up their minds about the Law of Hypothec, which was the corresponding law in Scotland, and the same in principle. He would state, as briefly as possible, the objections to the law, which were much wider and deeper than it at first sight appeared. The land of England was a monopoly, in these respects at least—that the quantity to be leased was in the hands of very few, and that, however great the demand, the quantity could not be increased. The agricultural population naturally increased, and, in these circumstances, competition was maintained at a maximum, and tenants' profits at a minimum. But as if the excessive competition, inevitable in the circumstances, was not enough, it was still further intensified by the Law of Distress, which enabled landlords to accept as tenants, or, at least, as competitors for farms, men who had not sufficient capital for the farm. That was the argument put forward by landlords and land agents in defence of the 61 law as it stood. It was not because they had any favour for the poor man; but because the man with inadequate capital offered a higher rent, or was willing to submit to more onerous conditions in the lease. These circumstances explained wiry tenant - farmers frequently submitted to onerous, and, in many cases, monstrously unjust and even absurd, conditions in leases. The vicious principle of the law was that the landlord was protected against the consequence of his own imprudence, and, it might be, greed. Even if the landlord accepted a doubtful tenant because he promised a higher rent, or because he submitted to highly onerous conditions—it might be with regard to ground game—this Law of Distress secured the payment of the rent. It was evident that the Amendment to restrict the distraint to one year's rent would not meet this, the principal ground of the farmers' objection to the law. The injustice of the law to creditors and others dealing with the tenant was very obvious. The landlord who risked only his interest and not his capital was paid in full, when other creditors who risked both capital and interest had to take a dividend, or perhaps even get nothing. The landlord, in his (Mr. J. W. Barclay's) opinion, had grounds for complaint against the law; and if they had not complained already, he expected they would begin to do so by-and-bye. So long as prices of agricultural produce continued to advance, as was the case for a good many years, tenants with inadequate capital might manage to get on; but when bad seasons and lower prices came, landlords would find that the high rents promised by those tenants with inadequate capital were delusive. The tenants might hold on for a year or two, but they did so at the expense of the farm, which would ultimately fall into the landlord's hands in a condition which he would find very prejudicial to its being re-let. Landlords under such experience would begin to have doubts as to the wisdom of their land-agents in increasing the rent-roll by accepting tenants with limited means, who, when reverses came, were unable to hold their position and do justice to the land. Land agents were the only people who got advantage from the law, because it was only by means of this Law of Distress that the control of large estates could be kept in lawyers' offices, 62 by people who knew little, if anything, of farming. It was thought all right if the rent-roll were increased and the rent collected. The Law of Distress enabled them to do both. As for improved cultivation, they, as a rule, did nothing for that. It was thought that by antiquated and obsolete covenants in leases tenants could be prevented from exhausting the land; but he never saw covenants which would prevent a tenant from exhausting his farm, if he set himself to do so. Such covenants, together with the want of compensation for improvements, were the great obstacles to improved cultivation. They tied up the hands of the intelligent and skilful farmer from making the best of the land for himself and the landlord. The abolition of distress would do much to improve this state of matters; but no modification of it, as suggested by the hon. Member for South Norfolk, would be of any avail. The restriction to one year's rent would simply make the land agent more stringent with the tenant; and he, therefore, strongly supported the Motion for the total abolition of the law, giving the landlord reasonable powers of re-entry when the tenant had become insolvent and unable to discharge his obligations.
§ MR. RODWELL
contended that it was a popular delusion to suppose that the Law of Distress operated solely to the benefit of the landlord and the detriment of the tenant. He admitted that the law might require modification, but contended that in practice the law had not worked harshly. A recent case in Kent, where a landlord seized sheep worth £300 or £400, belonging to a third person, in distress for rent of several years, was clearly exceptional. The outcry that case had caused showed that the law was not often so employed, and he challenged any hon. Member to give an instance within his own knowledge. At present, the stock of the tenant was a running guarantee for the payment of his rent. His own belief was that the abolition of the present law would act very injuriously on the interests of the tenant, because a landlord would then be far more likely than was at present the case to take the first opportunity to secure his rights and to proceed harshly, when otherwise he would be disposed to the side of leniency. The law as it stood, properly and fairly 63 worked, was, indeed, more for the benefit of the tenant than of the landlord, although its primary object was the protection of the landlord; and he altogether denied that it was either unjust or unequal; but a limitation from six to two years was desirable. Besides, there was the great advantage to the tenant-class from the operation of the existing law, that young men were often enabled in consequence of it to enter upon a business in which they could exercise their talents and industry; whereas, if it were repealed, the facilities for taking a farm which now existed would be denied them. The relations, he might add, between landlord and tenant were on a totally different footing from a creditor and debtor under ordinary circumstances, for unless the landlord took his rent in advance, the landlord could only get it at certain times, periodically; but a creditor could refuse to supply a man with goods, while the landlord was in a very different position. There was no injustice as regarded third parties, for every person who trusted a farmer knew what the landlord's rights were. Therefore, he contended, exceptional legislation was justified by the inherent difference in their situation. But if the Law of Distraint were to be abolished with regard to agricultural holdings, he was at a loss to see why it should not be done away with in its application to house property in towns, a proposition no one was bold enough to make. Entertaining these views, he should vote against the Amendment of the hon. Member for Kerry.
§ MR. COGAN
said, he hoped this question would be settled as speedily as possible. It would be better for both landlords and tenants that all angry discussions should be evaded, and that the question should be promptly settled on grounds of fairness and justice. It was with this feeling, and believing that it would be both for the interests of the landlords as well as the tenants of the country that an agreement should be arrived at, that he cordially supported the Motion of his hon. Friend. In the exhaustive speech which the House had listened to from him, he had shown from history that the present law was antiquated in its character, and only fitted for times now past, and that its present operation was unjust and by no means impartial. In his (Mr. Cogan's) opinion, 64 the power of distraint was hard upon the tenants, and, although not extensively put in force, yet its latent power, which might at any time be used, was hurtful and injurious in many ways. He was surprised to hear the hon. and learned Gentleman who spoke last say that the present law was neither unjust nor harsh. The hon. and learned Gentleman could not have heard an instance of injustice, quoted in the House tonight, or he would not have given that opinion. An instance had been given, in which a landlord allowed his tenant to go five years without payment of rent, and when a third party placed his sheep upon the tenant's farm the landlord seized them and recouped himself the five years' rent. That was a case of injustice and hardship in which an innocent third party had to suffer, by the landlord putting the unjust power of the law of distress into force. When a case like that had been stated publicly and not contradicted, it did seem strange to hear any hon. Member get up and assert that the law was just and impartial in its application. It was with great surprise that he heard the hon. Member for South Norfolk (Mr. Clare Read), who had acknowledged in public speeches that this law was bad in principle, now stating that he could not agree to the abolition of the law. How would the hon. Gentleman justify that course? He hoped that he would at some future time be able to state, with increased vigour and increased courage, his opposition to the present practice, and his actions would come up to his convictions. He believed that this law was unjust, and, therefore, should be abolished; that it was injurious to the tenants; and that it was hurtful and of no use to the landlords. Not many, it was true, had recourse to it, but still it existed and could be used. In Ireland the law, by which an owner could recover either his rent or his land, was simple enough. Upon one year's rent being due a landlord had simply to bring an action of ejectment against the tenant, and he could very soon obtain possession of his land. He contended that that was quite sufficient, and that no more was required to meet the case. He hoped the House would act promptly in the matter, and thus do an act of simple justice in a graceful way, instead of delaying and having to concede it 65 at some future time to pressure from without.
§ MR. PELL
thought that if the House acted wisely and with moderation, it could not do better than accept the first proposal of his hon. Friend the Member for South Norfolk. If the power were limited to one year's rent, he thought the justice of the case would be met; and if the landlord chose to give another year's credit, he should not be allowed to be generous at the cost of the other creditors. After all, the landlord would have the tenant very much in his power for nearly two years. With reference to the proposal that the landlord's rights of re-entry for the non-payment of rent should be made more speedy of execution than at present, he said there was no doubt very great hardship might be done by the right of speedy re-entry. At present, however, the law was very unsatisfactory. He could not go with his hon. Friend on the point as to the seizure of cattle on grazing land. No doubt, the question was one of considerable importance in the Midland counties, and there was land there where the landlords would have nothing whatever excepting live stock; but a person, before putting cattle on land to graze, might easily ascertain whether there was any back rent on the land. If a man put a large amount of property on the land, he ought to do it at his own risk. He did not know why the right of distress should be confined to agricultural holdings. One year's rent was, he thought, sufficient to distrain for; and, therefore, he was inclined to support the Amendment of his hon. Friend the Member for South Norfolk.
§ GENERAL SIR GEORGE BALFOUR
, in supporting the Motion to abolish the English Law of Distress, referred to the evils to agricultural improvement and extension occasioned by the Law of Hypothec in Scotland, and to the wide gulf which existed there from that law between landlords and tenants; and which law, being injurious to the interests of the country, ought not to be allowed to remain on the Statute Book, merely for the interests of one class of the people. It was obvious that the abundance of cheap grain which we now got from all parts of the world would in future prevent the agriculturists of England, Ireland, and Scotland from obtaining those remunerative prices which they obtained in past years. These 66 prices were, no doubt, enhanced to the public because the Law of Distress and of Hypothec gave rights and special privileges to landlords, which interfered with the tenant in obtaining cheap capital to work the farms. Unless we could cheapen produce in this country, or find a new article which farmers could produce, and which would pay them better than grain had done for years past, it would be impossible to remove the agricultural distress which was now felt. With this prospect, it would be impossible to pay the rents which landlords had hitherto received from farmers, and the soil would be less cultivated than hitherto. The agriculture of Scotland was undoubtedly highly advanced; mainly, as Mr. Caird has so well and so clearly stated in his recent work, through the intelligence and money of farmers; but another notable thing about Scotch agriculture was the want of capital on the part of tenant-farmers to extend these improvements which the present competition with foreign produce so urgently called for. The right of the landlord to distrain the goods of farmers had been the main cause why the latter had not been able to obtain better money or credit accommodation for their agricultural operations, and had prevented people from coming forward with loans to the farmers to enable them to cultivate the land they occupied, because in a distress for rent the property of him who had assisted the farmer might be seized by the landlord. Owing to these recent pecuniary necessities from bad harvests and low prices, the tenant-farmers of Scotland had, he said, been prevented by this deficiency of capital from increasing their stocks, or keeping cattle till an age when their quality and value would have been greatly enhanced. He pointed out the necessity for freeing the farmers from the shackles which now impeded their action in contending against the world in the production of grain and meat. Our high-priced lands, often inferior to those abroad, could only be kept in cultivation by increasing the productive power of the country. This could only be effected by the application of more capital, thereby encouraging agriculture. He argued that if landlords would give up their preferential claim on their tenants' goods, they would enable the latter to obtain more means whereby to till their farms better, and to pay every- 67 body, even the landlords' high rents, which certainly could not be paid if the present impediments were to be allowed to exist.
§ MR. BRUEN
thought it unfortunate that the House would not have an opportunity of deciding on the merits of the two propositions before it, one of which recommended the repeal of the Law of Distress, while the other indicated certain changes that might be made with advantage. He joined with those who thought that the law might be improved by placing the power to execute a distraint in the hands of a responsible officer, but denied that the ordinary practice of the law was unjust or oppressive. Only one case was cited in which the law had been used harshly; but there were many other laws in force which, if pressed to their extreme limits, would inflict great hardship. It was a maxim of lawyers that laws were not passed to meet extreme cases; nor, on the other hand, were laws repealed on the assumption that extreme cases of hardship might occur under them. It must be shown that they were of frequent occurrence in order to warrant a repeal of the law. As things were, the law was not generally denounced as unjust and oppressive; and his right hon. Friend the Member for Kildare (Mr. Cogan) might be called as a witness in favour of that view, for the right hon. Member had told the House that, in his experience, the Law of Distress was rarely put in operation in Ireland. For his own part, he saw no injustice in preferential claims such as the law often recognized, if it did not actually create them. But, apart from abstract questions, the real point involved was the actual operation of the law. Was it prejudicial or advantageous to the tenant? He believed that the right of distress was often exercised by the landlord in the interests of the tenant, and with the result of enabling him to keep in his hands the capital by which he worked his farm. At any rate, that was now and then the case in Ireland, where the existing law appeared to him to be, on the whole, beneficial. He could not, therefore, support the Amendment of the hon. Member for Kerry.
§ MR. SYNAN
supported the Amendment, which he regarded as timely. It had been said that the case cited by the hon. Member for Kerry (Mr. Blennerhassett) was an exceptional case, and was 68 not, therefore, to be relied upon as an argument in favour of the abolition of the Law of Distress; but the fact that this exceptional case was inherent in the law itself was as conclusive as if a hundred cases had been cited, because the landlord, if so inclined, had the power to do that which was admittedly unjust. The strongest argument in favour of the abolition of the law was the fact that it was scarcely ever put in operation. But its retention had been advocated in the interests of the small tenants. It could only be used in their favour by depriving the creditors of their just claims. The landlord had no risk beyond losing the interest on his money, which was the rent paid for his land, and the law as it existed was unjust both in principle and practice, and was opposed to the conscientious convictions of every honest man; while the only ground on which it was at all tolerated was that it was not used. If it had been used, he ventured to say that it would never have been allowed to exist so long as it had. At the present time great distress prevailed in the agricultural districts. That distress might go on for a long time; and if, in consequence of that distress, harsh landlords used the power in an unjust manner, he ventured to say that the abolition of the law would be only a question of time. Well, if it was doing no good, and its abolition was only a question of time, why was not the present opportune time taken and the law at once abolished, for the purpose of promoting the interests of the tenants, and enabling them to get more credit and to produce more from the farms of the country? What was that absurd law founded upon? It was founded upon the old feudal principle. ["No, no!"] There were two laws upon the subject—one was the Law of Hypothec and the other the Law of Distraint. The Law of Hypothec in Scotland was a relic of the Roman Law introduced into that country. The Law of Distress was a feudal law founded upon the feudal system, and the right of the lord to compel his vassal to do his duty. The Law of Distraint was merely the power to seize a man's goods and chattels, and keep them in pledge until he discharged his feudal services to his lord. He asked why the old Law of Distress, which was founded on a different state of the times, and a different state of society, and upon a social system which 69 had totally disappeared—why should it be allowed to exist when it was generally admitted that it was not used? The relations between landlord and tenant were now of the nature of a contract; and why should there be superadded to it the old, unused system of the Law of Distraint? It had been adopted, no doubt, by the Statutes, and made more sweeping; but the law was still the same in principle, and under it a man could allow rent to go on for six years, and then come down on the tenant. In such a case, a tenant could not be said to be a free agent with such a terror held over him, and the laws of the country could give him no protection. The law was not used; it was only held over the tenants in terror. Let them abolish it, and they would give greater security to the tenant. It would make him a free man, and put him on a level with the landlord and with men in all other trades. Its abolition would be as beneficial in England as the change of Land Laws had been in Ireland'—instead of injuring the landlord, it would serve him, and instead of diminishing the security for his rent, it would increase that security. The first action of the abolition of the law would be to prevent that small competition which had somewhat risen the price of land, and it might, in that way, reduce the rent; but, ultimately, like the change in the Irish Land Laws, it would increase the security of the tenant and strengthen the position of the landlords.
§ MR. GREGORY
thought the hon. Member who had just sat down had shown a most lamentable ignorance of the relations between landlord and tenant in England, as regarded the subject of discussion. The Law of Distraint was one of the most ancient and established laws of the country, and also one which was most generally acknowledged and understood; and when it was proposed to repeal a law which stood in that condition, he thought the onus of showing some ground for that repeal rested on those who proposed it. The only judicial investigation that had taken place on the subject had reference to the Law of Hypothec in Scotland, which was investigated by a Committee of the House of Lords, and the evidence there showed that the holders of large farms wanted the law abolished in order to prevent competition for farms; and that those who dealt with farmers wished the law 70 abolished in order to save themselves from losses, which they themselves admitted were less than were common in ordinary trade. He did not, however, think the House would be disposed to prevent competition on the part of small with large farmers, or to save traders from trifling losses; in fact, the opposition to the law was a selfish one in the one class, and an unfounded one in the other. He believed that, generally speaking, no landlord thought of the Law of Distress when he let a farm; what he considered was the solvency of the tenant and the adequacy of the rent. The Law of Hypothec in Scotland had been referred to as equivalent to that of distress in England; but there was this advantage in the Law of Hypothec—that, to a certain extent, it was a judicial process requiring that an application should be made to the Court before it was put in force. He did not say that the Law of Distress did not require some modification. He thought six years was too long a period for the power of recovery by distress to extend. One year, however, as proposed by his hon. Friend the Member for South Norfolk (Mr. Clare Read), would be too short; and he thought it should be at least two years. There were some crops, such as hops, or fruit of a precarious character, and for which the tenant needed indulgence; but that indulgence could not be given if the power of distress were limited to one year. His hon. Friend also proposed to exempt the stock of a third party that might be grazing on the property. But a man might never have any stock of his own, and be always grazing his neighbour's. It would, however, only be fair that the landlord should exhaust the property of a tenant before he had recourse to that of third parties. The power of distress should be primarily exercised on the property of the tenant, and recourse should not be had to the property of third parties until that of the tenant was exhausted. He could not agree to give landlords greater powers of ejectment than they possessed at present, and which enabled them to apply to any County Court for assistance; and, besides, it was a hard thing to turn a man suddenly out of his farm. He well remembered a remarkable speech on this subject by his hon. Friend the Member for York (Mr. Leeman), and the illustration which he gave of the benefits conferred by the 71 present law upon small tenants in his county, and was afraid, if the Law of Distress were abolished, that the small tenants of that as well as other counties would be greatly prejudiced; therefore, he should vote against the Motion.
contended that, as they could not distrain upon a sub-tenant of a house for more than he owed to the original tenant of a house or building in respect to the portion which he (the sub-tenant) occupied, so it ought to be in the case of land, and if a man put sheep or cattle upon his neighbour's farm for a few weeks to be agisted, they ought not to be distrained on for more than the liability incurred on account of their keep.
§ MR. MARTEN
said, that serious inconvenience would result from the adoption of the Resolution, because it would introduce a broad distinction between agricultural holdings and property of other descriptions, which were now equally subject to the same law. Upon the whole, the law of landlord and tenant had worked satisfactorily during a long course of centuries, being modified by legislation to meet the changing requirements of society, based on the necessity of affording due security to the landlord; and the history of the law seemed to furnish arguments for its continuance rather than its abolition. The right of distress, so far as regarded the property of the tenant, was in harmony with the general law of this country respecting liens. It was important to remember how the law varied in the three Kingdoms. It was stated that in Scotland the right of lien could not exist independently of possession; but it was different in England. True, in Common Law, possession must accompany a lien; but there might be an equitable lien unaccompanied by possession, and parties might contract that this equitable lien should exist in respect of goods from time to time on the premises, as well as in respect of goods on the premises at the date of the contract. And if the Law of Distress were abolished in England, there would be a power under the existing law to enter into a contract which would affect the tenant's disposition of property in the future as fully as if the law were preserved. Distraint was not peculiar to agriculture. Almost every well-drawn deed of security in England contained a power of distress as a necessary 72 incident to a right which was separate for the time being from possession of the property concerned. A banker or capitalist who advanced money in a commercial concern guarded himself in such a way that he could at any moment seize and remove the plant or stock-in-trade, for the time being, of his debtor for the satisfaction of the debt. It was, therefore, erroneous to suppose that the Law of Distress was practically unknown except in agriculture. At the present moment, the law gave under a bill of sale as complete a power as there was under a distress over the tenant's property. There was no doubt that, as far as the property of third persons was concerned, the law was much in want of amendment. The decisions had been somewhat capricious on this point. If a horse were sent to be shod, the landlord could not distrain it if he put in a distress against the blacksmith for rent; but if a horse were put at livery, it could be distrained. So, if a coach were sent to be repaired, it could not be distrained; but if it were put out at livery it could. There were other cases of a similar curious description. The law operated capriciously and unjustly; and he thought they might fairly amend it on the principle of the Lodgers' Goods Protection Act, passed in the year 1871, and the Railway Rolling Stock Protection Act, 1872. But although he was in favour of imposing further limits upon the right of distress upon the property of third parties, he was equally in favour of maintaining the freedom of contract. He could not, therefore, accept the proposal to limit the right of distress as against the goods of a tenant to one year only. He (Mr. Marten) did not see why a right of distress should not exist for six years. If the landlords were forced by the Law of Limitations to demand payment of the rents, and to compel the debtor to pay within a more limited period, a great many debtors who now succeeded during had times in weathering the storm would be reduced to great straits, and many of them would founder in the course of their difficulties. Indeed, he felt bound to enter a strong protest against the views of the hon. Member for Kerry (Mr. Blennerhassett) on this point. The hon. Member seemed to hold, that the right of the landlord to even one year's rent in preference to other creditors was something monstrous, as if no such 73 personage as a "secured" creditor ever existed. Nothing really could be more unfair than to take away the right of a man to do as he pleased with his own and to mortgage his property and give preferential security at his own discretion, provided he acted bonâ fide. It appeared to him that the Resolution would introduce great confusion into the Law of Distress, and would, in all probability, injure the whole system of agricultural holdings.
§ MR. O'DONNELL
said, he thought he could fairly congratulate the English and Scotch Representatives who had engaged in this debate upon the success which it was already evident had attended their co-operation. It was quite evident that the first object of attack, the Law of Distress, was doomed, and that no long time would elapse before that law would have gone over to its ancestors. It was with the greatest possible pleasure that he listened to the learned and judicious speech of the hon. Member for Kerry in laying the subject before the House, and he trusted it would not be long before the English tenant-farmers had Representatives of their own in the House as capable as the hon. Member of defending their interests with fairness, sympathy, and ability. He did not intend to enter into an examination of the self-contradiction on which the hon. Member for South Norfolk (Mr. Clare Read) appeared to plume himself. That hon. Gentleman admitted that the law was a bad law, worse than the Scotch Law of Hypothec; but he still endeavoured to continue it. He had not heard a single argument, either inside or outside the House, on behalf of the Law of Distress from the point of view of the tenants, except one, which was not calculated to command a great deal of assent. It had been said that a tenant who was heavily in debt to his tradesmen might, by collusion with the agent of an estate, be enabled to cheat those tradesmen; but that, by the operation of the Law of Distress, this might be defeated. But he was sure that the tenant-class, as a body, would much prefer to be allowed to run the risk of meeting their lawful obligations in a lawful way rather than be protected in this unwholesome fashion. As for the argument on behalf of the landlords, it seemed to him simply to amount to this—that those gentlemen being in a position of exceptional advantage, for 74 that reason asked for exceptional protection. He did not know that that argument had in it a great amount of validity. The whole of the Law of Distress was merely a relic of feudal times, and, except as a tradition of the past, it could not be defended. It was time to remind the landlords of the country that the dangers of feudalism were gone for good and all; the landowners no longer provided for the defence of barony or county; an array of landlords and their tenants no longer defended their shores against foreign invasion; the landlords no longer exercised the functions which they did six centuries ago; and the reason for investing them with exceptional powers had long since departed. They lived in an age of organized policy; they lived in an age of general liability on the part of the taxpayers; they lived in an age of a national Army; they lived in an age of regular public administrations; and all the old feudal necessity having gone, the feudal privileges had no longer any necessity for existence. He believed that the abolition of the Law of Distress would tend to the advantage of the landowners as well as to the advantage of the tenants; that it would improve the credit of the tenantry; and that it would open a way into their ranks to a more substantial class of men. It would render landlords secure of their rents by a better and worthier means than the present; and, except as an indication of the obstinate and inbred weakness of human nature to cling to whatever was as long as possible, he could not see any reason for the retention of this law. He trusted that the abolition of the Law of Distress would be followed by the abolition of many other exceptional privileges which ought to have no place in the present day, which were injurious to the tenants, and which were likewise injurious to the landlords. He hoped that, amongst other improvements, the landlords would no longer be enabled to confiscate the improvements of the tenantry. During the discussion of this subject those who usually sat on the front Opposition Benches had not been conspicuous by their presence; but if the Liberal Party ever expected to reach or maintain power without dealing thoroughly and comprehensively with the Land Question, not only in Ireland but in England and Scotland, they were labouring under a singular misapprehension. That Party must learn to apply 75 its magnificent ideas of sympathy in regard to nations a little nearer home. With reference to hon. Gentlemen opposite, he had no doubt that strong public opinion in the English counties might have an educating effect upon them. It was a matter of history that the Members of the Conservative Party were susceptible of education; and that Party was so closely connected with county interests, as to make it absolutely indispensable for them to consider this question with seriousness and thoroughness.
§ SIR WALTER B. BARTTELOT
was unable to concur in the statement made by the hon. Gentleman who seconded the Motion to the effect that, but for the Law of Distraint, the produce of the country might have been increased threefold. He had always been under the impression that, until quite lately, we could grow more per acre than any other country in the world. No doubt, improvements might be introduced; but he denied that we could, under any system, grow three times more than we did at present. He felt grateful to his hon. Friend the Member for South Norfolk (Mr. Clare Read) for having stated publicly that the landlords of this country had not abused the privilege of distress. His hon. Friend mentioned, indeed, the notable Kent case; but could any hon. Member refer to similar cases which had occurred within his own knowledge? During his own long experience of farming he had never known in his own county or neighbourhood a case in which the terrible provisions said to exist in the Law of Distress had been exercised against a tenant. If the existing law were abolished, a severe shock would be given to the whole agricultural interest. That law was as advantageous to the tenant, if not more so, than it was to the landlord; and it was on this ground that he objected to the Motion of the hon. Member for Kerry (Mr. Blennerhassett). He would not say that the Law of Distress ought not to be amended; but he thought that the House ought not to accept a crude, abstract Resolution for abolishing that law, nor should it absolutely adopt the principles which had been laid down by the hon. Member for South Norfolk. It would, in his opinion, be unwise for them to follow such a course, by which they could not do justice either to the tenant or the landlord. The Government alone could deal satisfactorily with a question of 76 that kind; and he therefore hoped they would be prepared to state that, looking to the extreme depression which agriculture was labouring under, and yet without doing anything in a hurry or under the influence of panic, they would consider the Law of Distress, and if they saw their way to improve it would bring in some measure which would, he was sure, be accepted by the House, and would also give to the great agricultural interest the satisfaction which it was entitled to demand.
§ SIR THOMAS ACLAND
thought it was a fortunate circumstance that they had had in that debate a singular union between the Members for the sister country and those who were interested in agriculture in England. The course of the discussion had shown that the present law for securing to the landlord his rent was in a very unsatisfactory state. He believed that the sudden or hasty dealing with that question would not be entirely for the benefit of that class of agriculturists who were supposed to be most deeply interested in getting rid of the Law of Distress. He agreed with the last speaker that the time was drawing near when that question ought to be dealt with by the responsible Government, and that it could not be wisely treated by the simple affirmation of an abstract Resolution. The Motion now before them was not the Resolution of the hon. Member for Kerry (Mr. Blennerhassett), but whether the Speaker should leave the Chair, or whether they should go into the consideration of the hon. Member for Kerry's Resolution with a view to see whether they should amend it as the hon. Member for South Norfolk (Mr. Clare Read) proposed. For himself, he did not feel bound to give a directly affirmative or negative vote on the proposal of the hon. Member for Kerry; but he thought that the debate had seriously shaken the whole position of the claim of the landlord, on his own mere motion and without the support of any judicial process, to go upon the farm and take the property of the tenant in satisfaction of his rent. There were a great number of farmers in England who had risen from very humble means, and who had not the large capital which they were told would be brought to the cultivation of the land if the present law were altered. The position of those men required to be most considerately regarded. In his part of the country 77 there were tenants who commenced by getting into debt to their landlord for a half-year's rent, and that continued during the whole of their tenancy. What would be the effect of the proposed alteration of the law in such cases? He was told by one gentleman that his county would rise in arms at once in a state of indignation if the Law of Distress were suddenly abolished, because there would be an immediate demand of a half-year's rent all round. Landlords had long been aware that agriculture required time. The legislation of the present Government had laid down broadly the principle that agriculture required that the farmer should be able to look forward to leases of two, three, and in many cases seven, or, in some instances, even 20 years. It was the policy of Parliament—whatever course might be taken by landlords and tenants in making contracts to the contrary—to encourage compensation to farmers, if they had only two or three years' undisturbed possession of their holdings. It was desirable to keep up a feeling in the mind of the practical agriculturist that he should not be disturbed if he was a man of capital. A great deal of nonsense had been talked about increasing the produce of the soil of this country. He believed that no saying had done more mischief than the ill-advised saying of Lord Derby that it would be easy to double the produce of England. There was, in his opinion, a very moderate limit beyond which they could not on an average of years increase the gross produce of the English soil. He wished that Lord Derby, who was regarded as a model of caution and common sense, would let the world really know what he now thought on that matter. When that noble Earl made the remark to which he was now referring he was probably thinking of growing potatoes in Lancashire, or lettuces and cabbages near the great towns of the North, and not to the general agriculture of the country. What Parliament could do was to legislate in such a manner that those who were already producing all they could would continue to do so. Admitting that it was desirable that men of capital should be secured in their holdings, what was the landlord to do when his tenant turned out to be a man of straw? What the landlords of England wanted was not the power of squeezing the last farthing from the 78 tenant, but that they, if the tenant could not pay his rent, should have facilities for recovering their land, so that they might be able to let it to a man of capital. He did not know that the Law of Distress operated injuriously to the farmers if they were solvent and wanted to borrow money. He was told it was no uncommon thing for the farmer to take his rent book to the banker to show that he had discharged all his obligations to his landlord. In many quarters there was a hesitation in trusting farmers who did not stand clear with their landlords. Speaking for himself, and for some few with whom he had conversed, he believed the landlords would do wisely to move forward in this matter, and not to cling any longer to this right of priority of payment for their land, but to ask for measures that would enable them to recover their lands from insolvent tenants, and put them into the hands of men of capital. He did not believe that the landlords would be affected injuriously by relaxation in this matter; on the contrary, he thought they would gain. It was not desirable to retain the law in its present state; but the question was one which ought to be dealt with by the Government of the country, whose duty it would be to provide in any alteration that might be made the necessary safeguards for the protection of the landlords' rights. But if the Resolution of the hon. Member for Kerry wore to become a substantive Motion, he would like to introduce words into it with a view to make the change gradual—that the law should apply to future, but not to existing, tenancies. He thought, however, it would be inexpedient to act hastily in the matter.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. GIBSON)
said, that whatever difference of opinion there might be as to the Resolution of the hon. Member for Kerry, there could be none as to its meaning, which was that, without further consideration, the Law of Distress should be abolished. One thing was very clear—that though there might be many theoretical objections to the law, as a matter of fact, its administration at the present day was not attended with practical grievance, and no case of actual hardship had been cited in the course of the debate. That was a very important consideration to remember, when they were asked to sanction such a proposal as that of the hon. Member for Kerry. 79 Although the hon. Member for Kerry gave an interesting historical narrative of the gradual growth of the law, yet, when he came to deal with the actual facts, he asked the House to deal with it as a new law without antecedents. The House was really discussing one of the oldest institutions in the country—an institution which, as had been well stated by the hon. Member for South Norfolk, and the hon. Gentleman who spoke after him, was more intimately connected with the relations of landlord and tenant than any other institution which could be named. Hon. Gentlemen had showed that this law, notwithstanding theoretical objections, worked to a large extent in the interest of the tenant; and if it were now, without consideration, abolished, many classes of tenants might be affected injuriously. For it was obvious that if this law were taken away, the landlord must be given another remedy which would be simpler and shorter. There was said to be an analogy between this law and the Law of Hypothec. Well, then, if it were abolished, there should be an analogy also in the remedy. A shorter and simpler action of ejectment should be given to the landlord. What would be the effect of the abolition of this ancient usage on poor tenants without capital and without friends? The landlord, in the interest of his family, might be compelled to say to them—"A theoretical Gentleman having made a speech in the House of Commons for the abolition of the Law of Distress, I can deal now only with tenants having large capital, which will enable me to dispense with the Law of Distress." Therefore, in the interests of the tenants themselves, it was not expedient to summarily get rid of this old and not harshly-working institution. He could understand the motive for the Resolution, if it could be shown that this power of the landlord had been abused, or if it were a new law, susceptible of abuse in its use; but as one of the institutions of the country, as long almost as the country had a history, he could not admit there had been any case made out for its immediate and total abolition. He was informed that this law was not used to any large extent in England, and in Ireland they all knew it was very sparingly employed. It was not a popular remedy, and its practical operation was to enable the landlord, in many eases, to deal with a class of tenants 80 which he would not otherwise feel at liberty to choose. It should be remembered that if landlords violated the law they were subject to an action, and if they made a legal distress, but an excessive one, they were equally subject to an action. In the words of one of the oldest Statutes of the country, a landlord who so distrained was "to be grievously amerced," and that before a British jury. In cases, therefore, of real practical grievance, the wronged tenant could obtain redress, the remedies to which he might resort being distinctly and clearly laid down. It was a slight mistake to assume that the Law of Distress and the Law of Hypothec were identical. There were, in truth, several marked distinctions between them. It was not proposed to bring the provisions of the Bill relating to hypothec, which had been presented to the House, into operation until the year 1880; but the Resolution of his hon. Friend the Member for Kerry asked the House to abolish the Law of Distress at once. He was sorry the Lord Advocate was not present; but he (the Attorney General for Ireland) understood that the Bill to abolish hypothec had in it a limitation as to the size of the holdings, but the present proposition was applicable to every agricultural holding in the Empire.
§ MR. RAMSAY
said, the right hon. and learned Gentleman was mistaken. There was no limitation in the Bill applicable to tenant farmers.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. GIBSON)
said, that unquestionably the Scotch Bill, as it stood, only applied to holdings of a certain size; but he had the greatest hesitation in attempting to give a meaning to the clearest words in a Scotch Bill. At any rate, the landlord in Scotland got a lien over the property of the tenant before the rent was actually due. [Mr. RAMSAY: That is not the case.] Then he would withdraw the expression. He assumed that to be the case from the recent speech of the Lord Advocate; but he confessed he knew but little about it, and he had not an interpreter beside him, and might be wrong. The Amendment which had been placed upon the Paper dealt with the question in a very different manner from that in which the Resolution dealt with it. The hon. Member for Kerry (Mr. Blennerhassett) seemed to have approached the question from a 81 theoretical point of view. He seemed to have studied the subject with the help of several philosophical works, whereas the hon. Member who had placed the Amendment upon the Paper approached the whole matter from a purely practical point of view. The hon. Member for South Norfolk (Mr. Clare Bead) had adduced some very powerful reasons, which would probably convince a large proportion of the Members of the House that the term of six years in connection with the exercise of the right of distress might be shortened with advantage. Doubtless, whenever the law should come to be considered in a practical way, that suggestion would receive very considerable attention. The principle that the goods of innocent third parties should be protected where rent for which they were not personally liable was claimed was one which would always meet with very great sympathy from Members of the House. That principle, however, should not be accepted hurriedly; for, if adopted, the immunity which would be conceded to third parties might enable a fraudulent tenant to oust the rights of a landlord by means of a colourable false ownership. The proposition, therefore, was one which must be approached with a considerable amount of caution. He was very much struck with the fact that the Motion for the abolition of the Law of Distress had been introduced by an Irish Member; for though Ireland had been more affected by Land Bills during the last seven years than any other part of the country, no assault had, up to the present time, been made upon the Law of Distress in that part of the British Isles. The Bill put forward by his lamented Friend (Mr. Butt) did not interfere in any way with that law. There was also a Land Bill before the House, stating what changes were considered necessary in the Land Law in Ireland; but no reference was made in it to the Law of Distress. There was not the slightest proof that the Law of Distress was regarded as a grievance in Ireland, or in any other part of the United Kingdom; and, under these circumstances, he ventured to think that the Resolution proposed by the hon. Member for Kerry ought not to be entertained.
§ MR. COURTNEY
demurred to the representations which the right hon. and learned Gentleman had given of the issue before the House. Hon. Members were 82 not asked to declare that the Law of Distress should be abolished immediately and unreservedly. No doubt, the Resolution was couched in general terms; but if his hon. Friend had to frame a Bill he would, as they could gather from his speech, embody in it a good deal of what the right hon. and learned Gentleman had just alluded to as essential. Practically, there were two propositions before the House—that of the hon. Member for Kerry and that of the hon. Member for South Norfolk. The technical question, however, was that the Speaker leave the Chair, and if hon. Members desired to express an opinion as between the two propositions named—and it seemed to him they were bound to do so—they must, in the first instance, negative the Motion that the Speaker leave the Chair, in order that the proposition of the hon. Member for Kerry might become the substantive Motion. They could then amend the proposition, and, practically, adopt that of the hon. Member for South Norfolk instead of it. All, therefore, who were favourable to either proposition should vote against the Motion that the Speaker leave the Chair. [Sir WALTER B. BARTTELOT: No, No!] The hon. and gallant Member for West Sussex said "No!" and he had great experience; but he (Mr. Courtney) referred to what had recently happened when the hon. Member for Blackburn (Mr. Briggs) called attention to the Indian cotton duties. Those who were in favour of the Motion of that hon. Member, and those who were in favour of the Amendment to it suggested by the hon. Member for South-East Lancashire (Mr. Hardcastle), joined in voting against the Motion that Mr. Speaker do leave the Chair. He was himself in favour of the abolition of the Law of Distress altogether. With regard to the limit of time to be placed on the power of distraint, it seemed to him that some hon. Members had failed to see what was the fact—that a Law of Distress for one year practically gave security for two years. If it was not exercised at the end of the first year, it remained, so to speak, hanging over the head of the tenant until the second year had all but expired. It had been argued that this was a very ancient law which ought not to be abolished unless it was shown to be productive of serious evils. It was said that the onus probandi lay with those who desired the 83 abolition of the law. He thought, however, it must be admitted at once that this law had in itself something exceptional. His hon. and learned Friend the Member for Cambridge (Mr. Marten) had stated that if this exceptional law were abolished, the power could be got back again by means of registered bills of sale. In reference to this point, he had, some years ago, put a question to Judge Longfield, who replied—First, there is a great deal of difference between a power given by contract and a power given by law; and, secondly, if you had unlimited multiplication of bills of sale the evil would become so intolerable that the Legislature would interfere and stop it.Why must a landlord have more security than any other creditor? To this question no real answer had been given in the course of the present discussion. Many hon. Members had, indeed, expressed their opinion that a landlord ought to have more security than other creditors; but they had failed to explain the reason why. There was a great want of reciprocity in this matter of security. It appeared to be felt necessary that landlords should have security against their tenants; but why was it not equally necessary that tenants should have security against their landlords? The tenant risked more capital upon a farm than the landlord did. The landlord risked his rent; but the tenant put upon the farm considerably more capital than was represented by the rent. It was said that the existing law was a great boon to an indigent farmer, who could be trusted further than he would otherwise be in consequence of the greater security that was given to the landlord. If the tenant were living just on the verge of solvency, that proposition meant that the landlord was willing to be kind to his tenant provided he ran no risk. He did not see that that was any great advantage to the tenant; and it certainly was a disadvantage to everybody trading with him. The hon. Member for East Sussex (Mr. Gregory) said that rents were not higher through the Law of Distress; but the hon. Member went on to say that a landowner kept men as tenants who, but for that law, would not be kept. By that means the number of competitors for farms was increased, and when the demand for farms was greater than the supply the prices must go up. It was important that men should have sufficient capital 84 to cultivate the farms they occupied. By the application of more capital to the cultivation of the land its produce could, in the opinion of men like Mr. James Caird, be increased 25 per cent, and an hon. Member had said he had found by his own experience that that could be done. This showed that though the immediate effect of an abolition of distress would be a fall of rents, they would rise again in the future without any abatement of the farmers' profit. In the interests alike of the country, of the farmers, and of the landlords, the Law of Distress was condemned, and, in his opinion, it might be advantageously abolished.
MR. STAVELEY HILL
observed, that not one word had been said as to this Law of Distress acting in any way prejudicially with reference to the tenant. He believed it would be for the interest of the tenant that the present Law of Distress should be continued. The landlord and the tenant entered into a contract on an equal footing. The creditors of the tenant were aware of the nature of that contract; and, in his opinion, that fact placed the tenant in a better position than he would otherwise occupy to obtain such credit as he might require.
§ MR. RAMSAY
, in supporting the Motion, said, he was curious to know how hon. Gentlemen who had voted for the total and immediate repeal of the Law of Hypothec in Scotland had come to a very different conclusion with regard to the Law of Distraint in England. The Attorney General for Ireland had sought to draw some distinctions between the Law of Distress in England and the Law of Hypothec in Scotland; but the only distinction between the law of the two countries was that the Law of Hypothec in Scotland was, in its present form, less severe than the Law of Distraint in England. Yet Her Majesty's Ministers were giving their unconditional support to the abolition of the Law of Hypothec, on the ground that it was not necessary for the protection of the interests of the landlord, and that it would be beneficial to the tenant-farmers of Scotland. It would be well for the tenant-farmers of England to note that the Members of the Government could vote for a law which did not affect themselves, but took a very different view of the matter in relation to the landlords of Scotland. He could 85 conceive of nothing more inconsistent on the part of Ministers.
§ THE CHANCELLOR OF THE EXCHEQUER
Sir, it is not my intention to prolong the interesting discussion we have had upon the general question of the Law of Distress; but I wish, before we go to a Division, to say one or two words upon the view which Her Majesty's Government take of the question before us. And I find it the more necessary to do that because, in one or two of the later speeches which have been delivered, there has been a tendency to suggest false analogies. I entirely dissent from what has been said as to the analogy between this case and the vote which was given some time ago upon the Bill relating to the Law of Hypothec in Scotland. I have frequently heard the question of the Law of Hypothec in Scotland discussed in this House; but I do not think that I have heard the Law of Distress called in question in the same way, and certainly not under the circumstances, in which the Law of Hypothec has been discussed in the form of Bills which have been presented, and with the discussion which has taken place in Scotland upon the subject. But I have observed that if any suggestion emanated from any English gentleman when the question of Hypothec was under discussion that an alteration of the Law of Hypothec would involve an alteration of the Law of Distress in England, we have been met with lectures and a torrent of eloquence to prove that we know nothing of that law at all if we supposed that there was any analogy whatever between it and the Law of Distress in England. But what I would say with regard to the Law of Hypothec is, that it is a matter which has been much discussed in Scotland by all classes. It was made the subject of various Bills introduced by hon. Members sitting in different parts of the House, and representing different interests; and ultimately a Bill was passed on the subject, not entirely by Her Majesty's Government, as some have assumed, because some Members of Her Majesty's Government abstained from voting on the Bill, and others voted against it. But, at all events, the Bill was passed after full discussion, and with reference to the circumstances and wishes of the people of Scotland. Now, however, we are not asked to consider a Bill at all, but a broad and startling 86 proposition made in a very able speech of considerable learning, which does great credit to the industry of the hon. Member who brought forward the subject (Mr. Blennerhassett). But, after all, it has been introduced by a Gentleman who represents an Irish constituency, and who speaks much more from an Irish than an English point of view. He makes this broad proposition, and asks us at once to affirm that the Law of Distress ought to be abolished. He is met by a counter-proposition from my hon. Friend the Member for South Norfolk (Mr. Clare Read), who speaks upon a question of this sort with the very highest authority. And what does my hon. Friend say in these very pithy and pertinent remarks with which he favoured us in the beginning of the evening? He said—"He approached this subject as one which required consideration, and one which was very intimately connected with the welfare of agriculture. It was one of high importance, and he thought the time had come when they ought to have legislation and amendment." But he went on to say—"He could not recommend the sweeping measure proposed by the hon. Member for Kerry (Mr. Blennerhassett). He must bear in mind that this system of distress was one closely interwoven with the agricultural system of the country, and they should consider carefully the mode in which they were to deal with it." I entirely agree, and the Government entirely agree, with the view taken by my hon. Friend. We regard this as a subject that requires consideration; we consider that there are points of the Law of Distress which demand revision. But we say that the question is one upon which we cannot at the first blush proceed to legislate, because it touches so many interests and demands very careful deliberation. We have no difficulty in saying that we do recognize in the views put forward by the hon. Member matter which requires and should have early consideration. I do not enter into the question as to whether distress is to be limited to one year, to a year and a-half, or to two years, or any particular time, or whether it should be somewhat restrained, and should be qualified with reference to the distress upon the goods of third persons. The hon. Member for Liskeard (Mr. Courtney) said—"You are bound to do what I ask you to do." He challenged the 87 Government to say whether or not they approved of the proposition of the hon. Member for South Norfolk (Mr. Clare Read), because, if they did, they were bound to negative the Motion that the Speaker do leave the Chair; and he urged that we were bound to proceed at once to consider this question and pass some Resolution upon the subject—if not the Resolution of the hon. Member for Kerry (Mr. Blennerhassett), then that of the hon. Member for South Norfolk—and he called upon us to do that because he said he relies upon the analogy of the vote arrived at the other day on the subject of the Indian cotton duties. But that, again, is a false analogy. The House was then expressing an opinion on an act of the Government of India, and saying whether it was satisfied with regard to that act; various opinions were put before us, and votes were taken, and the matter ended in the House expressing an opinion with regard to the act in question—[Mr. COURTNEY: And the future policy.]—and the future policy in a very general form. Here, however, we are called upon to adopt a Resolution pledging ourselves to legislation before we have properly considered the principles on which it should be founded. Now, nothing can be more mischievous, or load to greater inconvenience in Parliamentary action, than the adoption of abstract principles before it has been well considered what our legislation ought to be. The discussion of a subject in the form in which it is presented on Friday evening is one of the greatest possible utility. Nothing can be better than the opportunity which is then given us of freely discussing and considering questions of this sort, which to many of us appear in different aspects, and present new features. But if we were bound, whenever an abstract question is presented to us, to follow it up by legislation, I say we should in many cases act foolishly, and we are not prepared to do that on the present occasion. Sir, the Government will vote for your leaving the Chair not as giving an opinion contrary to those expressed by the hon. Member for South Norfolk, which we receive with great respect, and intend fully and candidly to consider. I have to thank the hon. Baronet the Member for North Devon (Sir Thomas Acland) for the very useful observations which he made in the 88 course of his speech, and to express a hope that we may be allowed to take the only proper step under the circumstances, and to vote that you, Sir, do now leave the Chair.
§ Question put.
§ The House divided:—Ayes 202: Noes 92: Majority 110.—(Div. List, No. 84.)
§ Main Question proposed, "That Mr. Speaker do now leave the Chair."
§ Motion, by leave, withdrawn.
§ Committee deferred till Monday next.