COMMITTEE. (Hansard, 7 March 1867)

THE LORD CHANCELLOR
said, that notice had been given of some Amend- 1429 ments, some of which were formal and others substantial; and he therefore proposed now that the House should go into Committee pro formâ, in order that these Amendments, to which he had assented, should be embodied in the measure, and the Bill be re-printed.

THE DUKE OF ARGYLL
said, he did not consider that there was any reason for the grudging spirit in which some noble Lords had received this Bill; and for himself, he was sincerely grateful to the Government for having introduced the measure, which he thought was a wise one, effecting an important alteration in the existing laws. The Bill was a much more important one than many of their Lordships were aware. He might add that the question to which this Bill referred was one which did not exclusively apply to Scotland, but had its importance and influence in England as well. In England, as well as in Scotland, the landlord had a priority of claim in respect of his rent above all other creditors. The measure of preference in Scotland was different from that in England, and the machinery for giving it effect was different; but the principle was the same; for in both parts of the kingdom the landlord had the same preference over every other creditor. Now, recently the question had been raised in Scotland, whether it was wise and just that the landlord should have any preference; and the argument in the negative was maintained, on the one hand, on the ground of general principles, and on the other, on the ground of expediency. On the first ground, it was argued that there was no reason in the nature of things why landlords should have a preference, and especially now, when the industry of agriculture was becoming so much commercial, and when large sums of money were expended on manures and seeds. It had been contended that the claims of the manure merchant and seed merchant ought to run pari passu with those of the landlord, as regards the power given by law to assert their respective claims over the produce of the soil. Then again, with regard to the argument founded upon expediency, it had been maintained that the preference given to the landlord resulted in this—that the landlord was less careful and less anxious than he ought to be with respect to the character and the capital of the tenants to whom he let his lands; and it had been argued that it might he as expedient for the landlord himself that 1430 there should be no priority of claim given to the latter, but that he should be left to trust to his own inquiries as to the character and capital of those whom he was about to take as tenants. Now, although he (the Duke of Argyll) was open to conviction on this question, he must confess that he thought, in point of abstract principle, there did exist some reasons why the landlord should have a certain priority of claim upon the produce of the tenant's land over other creditors. In the first place, the rent was itself simply a specified part of the produce, and, in point of strict argument, that portion of the produce was not at any time the property of the tenant at all. Originally, almost all rents were paid in kind; and in some parts of Scotland, and also in certain districts of England, the rent was still stipulated for partly in kind, the conversion of it into corresponding money values being a mere matter of convenience. Now, supposing the rent to be stipulated to be paid in kind, and to be deliverable to the landlord, that stipulated amount of the produce would belong to the landlord as his property, and never, under any circumstances, would be the property of the tenants. But the more important argument on behalf of the total abolition of the law of hypothec and distraint seemed to be in the advantage which the abolition of the law would give to the larger class of tenantry both in England and Scotland. The agitation in favour of the abolition of this law was mainly got up and carried on by tenants of large capital. This class of tenants had not at all concealed their opinions on the subject before the Royal Commission, for they had stated distinctly that their desire and conviction was that the abolition of the law of hypothec would act severally against the smaller class of tenants. They said that the rent of land was at present unnaturally high on account of the great competition for land, owing to the number of small tenants seeking farms in the market. They said there were always a large number of persons ready to bid for land in the market, although they had no capital, and were not of the highest character; and they said that this right of priority of claim in the landlord induced him to accept the highest offer, without due inquiry into character and capital. He (the Duke of Argyll) was not quite sure the effect would be to the extent that was supposed; but if the change was to be made immediately and 1431 suddenly it would have a most disastrous effect on a large and deserving class of men in Scotland. The West of Scotland was farmed by small holders, with little more capital, in many instances, than was just sufficient to stock the land. They were the most important link between the labourers and the large capitalists who held the large farms, and they were generally men who might be described as working men, and their daughters and sons were also engaged in the work, of the farm. He was therefore against the total abolition of the priority of claim on the part of the landlord, both on abstract principles and as regarded expediency. The law of hypothec was based on the old Roman law, and carried the power of the landlord to great excess in Scotland. It was an important amendment of the law that was now proposed, and he hoped it would receive the sanction of both Houses of Parliament. He asked the noble and learned Lord on the Woolsack to consider whether the priority of claim had better not be extended to three months after the first year's rent, and not three months after the half-year, as proposed in the Bill.

THE DUKE OF MONTROSE
said, the 4th clause, which limited the landlord's priority to three months after the rent was payable, would lead to the very state of things which the noble Duke deprecated—namely, the displacement of a large number of small tenants. He asked the noble and learned Lord who had charge of the Bill to consider whether it would not be better to fix the limitation to a period of three months after a year's rent had become due?

§ LORD ST. LEONARDS
said, he had not intended to take any part in the debate on this Bill; but from what he had heard, he had no doubt that the Bill, if passed, would have a great effect on the rights of the landlords in other parts of the country. Even with the best tenants the rent was hardly ever paid exactly at the end of the half-year, and frequently they were two or three months or sometimes more in arrear. If therefore they took away the right of distress within three months after the half-year's rent became due, it would disturb the whole of the existing arrangements of the country. Hundreds and thousands of tenants would be in arms and declare that a new tenancy had been created; for the landlords would in consequence be necessarily driven to distrain at the end of every half-year. It 1432 is not the custom of English landlords to distrain—a distress is a rare occurrence; but the power is important, and enables the landlord to give more indulgence than he might otherwise think it prudent to do.

THE LORD CHANCELLOR
said, he thought those matters could be better considered in Committee, and he would defer what he had to say until then.