Sitting of 8 May 1867

MINUTES.
PUBLIC BILLS—Ordered — Metropolis Subways.*
First Reading—Metropolis Subways* [139].
Second Reading—Hypothec Abolition (Scotland) [54], negatived; Municipal Corporations Charities [166], postponed to 19th June; Hypothec Amendment (Scotland)* [100]; Mixed Marriages (Ireland) [120].
Referred to Select Committee—Pier and Harbour Orders Confirmation* [130].
Committee—Church Rates Abolition [13] [R.p.]; Sea Const Fisheries (Ireland) [50], debate adjourned; Execution of Deeds* [26].
Report — Execution of Deeds* [26 & 138].
Considered as amended—Tests Abolition (Oxford and Cambridge) [16].
Third Reading—Customs and Inland Revenue* [113], and passed.

HYPOTHEC ABOLITION (SCOTLAND) BILL— [BILL 54.]
(Mr. Carnegie, Mr. Fordyce, Mr. Edward Craufurd.)
HYPOTHEC ABOLITION (SCOTLAND) BILL— [BILL 54.]

  SECOND READING.
  Order for Second Reading read.
  MR. CARNEGIE, in moving that the Bill be now read the second time, said: I think it may be well to state the reasons which have led me to introduce this Bill. I have had for many years a large acquaintance with tenant fanners in Scotland—long before the period at which I had the honour of a seat in this House—and have therefore had means and opportunities of becoming acquainted with the wishes and feelings of the Scotch tenants such as, I think, few Members of the House possess. I have lived in the houses of these tenant farmers (I being an agricultural student); I have known their opinions, and I have heard this question, and others affecting, the agricultural interest, discussed with the most perfect freedom. I assure the House that the dislike of the Scotch tenants to this law is strong and universal; and that that dislike dates a great deal further back than the decision in the well - known case of "Barns v. Allan." After that judicial decision, numerous meetings were held throughout Scotland; and at one of these meetings, which I had the opportunity of attending, I took occasion to state my intention to make a Motion for the appointment of a Committee of the House of Commons to investigate the whole question of the Landlords Hypothec. It was, however, decided that a Royal Commission would be a better mode of inquiry; and the Government, of the day having consented to issue such a Commission, I had the honour of being appointed a member of it. To the anxious desire of that Commission thoroughly to investigate the question I can bear testimony. We examined 102 witnesses, landlords, factors, tenants, merchants;—in fact, individuals of every class having an interest in the matter. The
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  Commission issued a Report, drawn up by its Chairman. So far as that Report deals with facts, it reflects the greatest credit upon its author; but as far as the recommendation and conclusions of the Report go, I must say I cannot coincide with them. The Report is the Report of the majority; but four members of the Commission, including myself, dissented from the conclusions of the majority; and of these four two were the gentlemen who represented practical agriculture on the Commission. When the Report came out, it was a matter of considerable anxiety on my part to see how it would be received in Scotland by the agriculturists. I fully expected that it would not meet with their sanction; nor, as it appeared, was I mistaken, for shortly afterwards the Chamber of Agriculture of Edinburgh met, and after a full discussion came to a resolution for the entire abolition of the law of hypothec as the best means of improving the relations between landlord and tenant and promoting the improvement of agriculture in Scotland. Now, what is the present state of the matter? The Government has introduced a Bill founded upon the Report of the majority of the Commission. So far as they go, the alterations proposed to be made are improvements on the existing law; but they are of the smallest possible character, and the weakest proposals that could be made if the law is to be altered at all. So far as the merchants and farmers are concerned, they would be left just in much the same position as if the law remained unaltered. The Report of the majority having been embodied in a Bill by the Government, I thought it necessary that the views of the minority should be represented. I had seriously to consider how that was best to be done. I doubted whether it was possible in any way consistent with the forms of the House to amend the Government Bill in Committee, or to make it enact the total abolition of the law. I had another reason for bringing in a Bill of my own — that I could thus get a clear day for its discussion; while the Scotch Bills brought in by the Government are so frequently, from pressure of business, brought on at so late an hour of the evening, that it is almost impossible to obtain a full discussion upon them. Well, a Bill founded upon the Report of the minority of the Commission having been brought in, I thought it my duty to bring before the House the views advocated by the minority. The Report

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  of the Royal Commission clearly states the actual slate of the law of hypothec in Scotland, what it is, and in what it is distinguished from the law of distress in England, to which it is more nearly allied than to any other English law or custom. The law of hypothec, it will be seen, gives the landlord a preference over all other creditors except the Crown, whose rights are always reserved. Now justice demands that if one man owes another anything he ought to pay it if he has the means; but if he has not enough to pay all his debts, it appears to me to be equally just that his whole substance should be pro rata divided among all his creditors. As to the general principle of hypothecs, a thing pledged ceases to a certain extent to be the property of the pledger; but in the case now under our notice, the thing pledged has really no present existence. I consider that theoretical preferences of this kind are of extremely doubtful justice, and it is a grave question whether there is any reason for preserving the principle in this instance. The law of hypothec had its origin in Roman law, at a time when the Cultivators of the soil were in the position of serfs or slaves; then the produce actually belonged to the landlord, and to alienate it was robbery. Afterwards came the system of payment in kind, and then a part of the produce was the landlord's, to remove which was equally robbery; but now that rents are paid in money, it is surely time that this last rag of serfdom should be abolished. Formerly, the farmer lived with his family altogether on the produce of his farm; he had few wants and no bargains to make; his only payment was his rent. But now, things are altered. Implements of agriculture have to be bought, manures have to be bought, and unless these necessary aids to agriculture are purchased, the landlord now could not get his present rent at all. Why should the merchants who supply these necessaries be placed behind the landlord in their claims? The question, then, is, whether it is desirable to maintain this law, which was made to apply to a totally different state of affairs. Is it of any advantage to the landlords, or to the tenants, or to the merchants? I have hardly ever known any landlord declare that be had derived pecuniary benefit from the present law. Their great argument is that the law is of use to the small tenants. Such was the purport of much of the evideuce given before the Commission. From
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  this it appears that the landlords want to maintain the law, not for themselves, but merely for the sake of their tenants. Now, Mr. Dickson, than whom no person in Scotland has greater experience in the valuation of land, and who was not favourable to an immediate repeal of the law, and Mr. Elliot of Laighwood, in their evidence before the Commission, stated, as their opinion, although the abolition might perhaps reduce rents at first, yet in the course of some twenty years it would vastly increase the value of the land by attracting tenants who were possessed of adequate capital, Mr. Elliot said, that if he did not think the abolition of the law would not ultimately benefit the landlord be would hesitate in the matter; and he added that if he had ten sons he would not recommend any one of them to be a fanner as long as this law was in existence. It has been said that the law is good, because it enables landlords to give indulgence to tenants. It may do so, but at whose risk? It was said by Sydney Smith that whenever A saw B in want he longed that C should relieve him. This is something like the principle of indulgence which this law allows. I entirely recognise the liberality and generosity of many of the Scotch landlords, which they nobly showed in the crisis of the cattle plague, and on other occasions; but it is not advantageous, on the contrary it is injurious, to the landlords, to the soil, and to the country, for landlords to take tenants who require indulgence—tenants without adequate capital. I have in this Bill introduced a clause which guards existing rights in contracts entered into upon the faith of the present law — then if this Bill should pass, the landlords, in making new contracts, will be able to make any arrangements they choose. So much for the landlord, as the present law of hypothec affects his interests. Now, as respects the tenants' interests in the law, what benefits do they derive from it? It has been said that the law is of advantage to small tenants. I find it difficult to draw the line between small and large tenants. I do not know where the one class ceases and the other begins. However, I believe that the interests of large and of small tenants in the abolition of this law are identical. There is no real difference, as respects this law, between tenants who have large and tenants who have small holdings—the only and the essential difference is between tenants who have ade-

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  quate capital to work their farms, whatever the extent of these may be, and tenants who have not. As between good landlords and good tenants the law has very little apparent effect; but, in reality, it has a very decided effect in impairing the credit of the entire farming class. If the failure of one or two farmers takes place, and this law is put in operation, the thing has a very bad effect upon the credit and position of all the farmers of the district. The merchants and traders who supply them with the necessaries for the prosecution of their agricultural industry get suspicious, and charge higher prices as a sort of insurance on what they naturally consider a greater risk; and the consequence is that the good and solvent tenant pays for those who are not so. There is also a temptation in this law to the most prudent landlord. He sees a farm next one of his own let at a far higher rent—perhaps to a man of no capital—and, without knowing the particular circumstances, determines to raise the rent of his next tenant to the same amount. It is often concluded that, by this law, men of skill can get farms without capital. In some cases, such an experiment might be tried by the landlord; but then it ought to be tried at his risk alone, and not at the risk of the public. If the landlord puts a man totally without capital into his farm, it is like playing the game of "Heads I win, and tails you lose" — and the public are the losers. Now, the argument on the subject of the large tenants applies equally to the small tenants. The small tenants themselves do not seem to have the notion that, if this law were abolished, they would be injured, because, as appears from the evidence given before the Commissioners, they are the very men who are quite as clamorous for this repeal as the large farmers. ["No!"] I can quote from the evidence of hostile witnesses that such is the case. I will now allude to the case of the merchants who have dealings with the farmers—such as the seed merchant, the manure merchant, and the implement maker. The case, as it affects them, is exceedingly hard. The law of hypothec enables the landlord to follow the crop even though sold, and make the purchaser pay again for what he has already paid. That is so monstrous that I believe that it can hardly find a defender. Certainly Her Majesty's Government do not seem to be inclined to defend it; and if that goes, the whole theory of hypothec
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  goes with it. The theory of hypothec is that the crop is pledged to the landlord for the payment of his rent; that it is, in fact, the landlord's property until the rent is actually paid, and therefore in making any relaxation upon that you at once break down the theory of the hypothecation of the crop. This following the crop is the reductio ad absurdum of the system. With regard to the other matters affecting the merchants, of course the abolition of the law must tend generally to their advantage. In the case of a farmer becoming bankrupt, the merchant receives a less dividend in consequence of the claim of the landlord being paid in full. I have now endeavoured to show that this law which is maintained is defective in theory; and that in practice it is no good to the good landlord—it is hurtful to the large as well as the small tenants—and that it is most injurious to the merchant. The present law prevents the application of capita to the soil to the same extent that it would otherwise be employed. The only objection that I can see to this abolition is that it would; be the cause of some inconvenience to the factors in the management of their estates; but I do not think that that ought to stand in the way. I will now say one or two words respecting the urban law of hypothec, which is the right of the landlord of a house to have a preferable claim upon the furniture in case of non-payment of rent. The two laws of hypothec, in my opinion, stand upon very much the same footing, and if one is abolished the other ought to be abolished. I have shown the evils attendant upon this law. When I first entered into the inquiry on this subject, I thought a very large modification of the present law would be best; but upon mature deliberation, and after bearing the evidence given before the Royal Commission, I came to the conclusion that though a large modification might be useful, the best thing would be to abolish the law altogether. I know that this conclusion is not shared in by many of those whose opinions on all subjects I must treat with the deepest respect; but, considering the position I hold with regard to this question—as being the one who moved for the Royal Commission in the first instance, and as having been one of its members afterwards—I felt it a duty which I owed to my constituency and to this House to bring this matter before them in a tangible form, and therefore I move that this Bill be read a second time.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Carnegie.)
  MR. HENRY BAILLIE: The hon. Member who has moved the second reading of this Bill had a very difficult subject to deal with; and I am afraid that the speech which he has made will be somewhat unintelligible to the English and Irish Members of this House. ["No, no!"] However, I will endeavour in a few words to explain what the meaning of the law is; why it was instituted, and why it ought to be preserved in some shape or other, not in the interest of the landlords only, but for the interests of tenants themselves. This is really a question which has arisen in Scotland between the great tenants and the small tenants of that country. ["No!"] I say that it is, and there are a number of petitions from small tenants proving that the law of hypothec was established in consequence of the custom which prevails in Scotland of not demanding rent from the tenant until he has been eighteen months in possession. Certainly, this may not be the universal practice, but it is the general one. The consequence of this practice is, that the tenant is allowed not only to raise his crop, but to sell it before he pays his rent; and if the landlord has no hold upon the tenant, it is perfectly obvious that any rascal may sell his crop and stock and leave his landlord without paying his rent. If this law were abolished the landlord in self-defence would be compelled to demand his rent after six months' residence, and before the crop would be raised. Now, would not this be injurious to the tenantry of Scotland? It might not be injurious to the large tenantry who have large capital, but it would be of vast consequence to the poorer tenantry. These small tenants consist generally of farm labourers and others, who have raised themselves from small beginnings, and, having saved a little money, they set up small farms. Now, these men could not set up in small farms if they were called upon to pay their rent after six months. This is the whole question. I do not pretend to say that the law of hypothec ought not to be amended, and the Government have introduced a Bill to effect that object. That Bill is based upon the recommendations of the Royal Commission, and under it certain modifications of the law will be effected, which will answer the requirements of the case. Almost every county
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  in Scotland is in favour of the Government Bill. I believe that the total abolition of this law will be injurious to the smaller tenantry of Scotland, and therefore I move that the present Bill be rejected.
  Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Mr. Henry Baillie.)
  MR. BAXTER: I think the hon. Gentleman who has just sat down did my hon. Friend (Mr. Carnegie) a great injustice when he stated that in the long speech which be delivered he must have been very unintelligible to the English and Irish Members of this House. I must say that I have seldom heard in this House a more clear statement of a difficult subject than that which we received from my hon. Friend. I was also very much surprised to hear it stated that the small tenant farmers were opposed to this Bill. I have inquired on that subject, and find that there have been only six petitions presented against the Bill, signed by twenty persons. I contend that this is an old feudal law, and is one of those artificial protections which is altogether opposed to the spirit of the age in which we live. Now, I want to ask a plain question, and I should like a plain answer to it, Why should a man who owns a field or a house and lets them have a greater security than any other creditor? It is said that agriculture has attained great prosperity in Scotland under this law; but I should rather alter that statement, and say that agriculture has attained its great prosperity in spite of the law, and not in consequence of it. I think that the maintenance of this law only encourages men of straw—that it is treated as a dead letter by all who have the management of good farms in Scotland. I think that the Bill is right in principle when it includes the urban as well as the agricultural hypothec. That is sound political economy, and therefore I support the Bill, and trust that the House will read it a second time.
  MR. BAILLIE COCHRANE: I give credit to the hon. Member (Mr. Carnegie) for the ability and industry which he has shown in connection with this subject; but I must point out one great inconsistency, and that is—the hon. Member was one of the Royal Commission who investigated this subject, and a Bill has been introduced into the House of Lords by the Government in consequence of the recommendations of that Commission. Yet,

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  instead of supporting that Bill, the hon. Member introduces a Bill of his own, which goes very much further. I believe there were only four Members of the Royal Commission who were opposed to the recommendation, out of the eleven Members of it. This I take to be a most important feature in the case. I think if you abolish the law of hypothec you will prevent the granting of long leases, which is now so beneficial in Scotland, and the abolition of the law will ruin small tenants altogether. I therefore really hope the hon. Member will frankly consider the serious character of his proposal. The Government are dealing with the question by the Bill which they have introduced, and which carries out the recommendations of the Royal Commission. I freely admit that I think the present law ought to be modified; but it would be better to proceed with the Government Bill rather than this one. This law has existed for centuries in Scotland, and the agriculture of that country has attained great prosperity under it. Therefore, I call upon the House to exercise the greatest precaution before it passes a Bill which would effect this sweeping change.
  SIR ROBERT ANSTRUTHER: I shall support the Amendment for the rejection of this Bill. I have examined into the question, and I feel convinced that it is not a question as between the landlord and the tenant. It is generally supposed that the landlords are anxious to keep up the law in their own favour; and if I thought that was the case, I should have no hesitation in supporting the second reading of the Bill. But I feel convinced, from the inquiries which I have made, that this is an agitation on the part of the large farmers as against the small farmers. If you abolish this law, you will not diminish the rents—and the only result will be that the landlord will get forehanded instead of back-banded rents. Now, small farmers cannot pay forehanded rents, and therefore the result will be that these men will no longer be able to compete with the large farmers. The large farmers will thus have it all their own way, and they will exclude the small farmers from the market, and think that they will get their own lands cheaper. I do not believe that the law of hypothec encourages men of straw. The Scotch landlord does what every other sensible man does in taking a tenant, he requires references and deals with the applicants for his farm in accordance with these references. Although I represent a large county (Fifeshire) I
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  have only received one letter in favour of it; and believing that the smaller tenants will be seriously damaged by it, I shall give my vote against the second reading.
  MR. CUMMING-BRUCE: I recently attended a county meeting in Scotland at which a resolution for a petition against the Bill was carried by an overwhelming majority. The landlords unanimously say "this law has been long in operation, and the small tenants have received much indulgence from it, and we therefore ask you and all county Members to stand forward against the passing of the Bill." My own experience of the law is, that by extending to the tenants an amount of credit it has tended very much to cause rapid and extensive improvements among the industrious classes in Scotland. The hon. Gentleman who moved the second reading of the Bill (Mr. Carnegie) said it was quite unfair not to extend this law to all trades in the community; but he must have forgotten how essential is the difference which exists in Scotland between farmers and those who deal in business of another description. With respect to references, although a landlord might let his farm to a man in whom he had confidence, the man might die, and his successor be a very unsatisfactory tenant. In this case the law of hypothec would be a very valuable assistance to the landlord. Taking all the circumstances of the case into consideration, I will give my vote for the Amendment.
  MR. G. YOUNG: This is really a very simple question. My objection to the law of hypothec may be stated in a single sentence—I regard it as an artificial and exceptional law. I have been unable to find, notwithstanding the careful attention I have given to what has been said to-day, any satisfactory reasons urged in support of the law grounded upon necessity or upon considerations of policy or expediency. It appears to me that a farmhouse is neither more nor less than a place on the same footing as what a draper may require for the purposes of his trade. His trade requires his own skill and capital, and credit is required for the cultivation of the land and raising crops, which would enable the farmer to pay the price for his land. If all goes well with him he is able to pay everybody, and no question of difficulty arises; but if he becomes embarrassed, owing to bad seasons or otherwise, he is unable to pay all his creditors; and the question then with those immediately concerned is, whether there are reasons of policy or justice by

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  which his landlord, who is neither more nor less than a creditor, should have a preference over all the other creditors. It is for those who justify that preference to adduce arguments or facts in support of it. It is for those who maintain that law to show it is justified by some reasons of necessity or at least of expediency. The hon. Member for Inverness-shire (Mr. Henry Baillie) described some of the small tenants as little more than farm labourers; but I would not speak of them as "farm labourers," but as men without capital, but possessing skill, integrity, and great frugality, who kept their farms and laboured at them with their own bauds and those of their families, and it is notorious that much larger rents are obtained from these farmers than from tenants of a much higher class. In the evidence of Mr. Hinson before the Royal Commission you will find the following:—
  "I think the necessary consequence of this law would be to exclude the poorer class of tenants who wanted farms. I think, under the present system, the landlords get higher rents. The operation of the present system is for the landlords to let their farms at higher rents to persons without capital, and without any risk to themselves. The poor tenants have done a great deal for Scotland."
  Now, the inference I take from this is—not that the present law should be maintained, but that it ought to be abolished. If the operation of the present law is to render landlords less cautious than they otherwise would be in the selection of their tenants, that is an evil effect. There is really no necessity whatever for this artificial protection of the landlord. The law as it stands enables the landlord to let his farm of bad land to a tenant without capital at an advanced rent without any risk to himself, because this law of hypothec secures him. It appears to me that the law of hypothec is objectionable and at variance with the law which regulates the interests of all conditions alike. The landlords do not require this artificial protection, because without the aid of this law they are able to take care of themselves. But then the landlords say that if they availed themselves of those means of taking care of themselves, it would have the effect of driving the small tenants out of the country altogether. Well, if these small tenants have been beneficial to the country, I should be the last man to sacrifice them; but if, on the other hand, the landlords get their rents satisfactorily from the small tenants, there is no necessity for this law,
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  which I characterize as artificial and exceptional.
  MR. GRAHAM: The arguments in favour of the Bill have been all as to its affecting agricultural property. The Royal Commission had only the question of agricultural property referred to them; yet, on looking into this Bill, I find it will not only abolish the right of the landlords in an agricultural point of view, but will take away their right of distraining for rent in tenements. I admit the justice of the hon. and learned Gentleman's (Mr. Young) remark with respect to a farmer living in a house just as a trader does in his; yet still I believe that the restrictions of the law of hypothec are not only just to the landlord, but beneficial to the tenant. I know very well that the landlord always looks to the furniture of the tenant as security for his rent, and if this law is altered the poor man will be deprived of what is of service to him in the way of capital by getting credit from his landlord. I must oppose the second reading of the Bill, unless it is agreed to accept Amendments in Committee in regard to urban property and the landlord's rights.
  SIR JAMES FERGUSSON: The objection of the hon. and learned Gentleman opposite to the law of hypothec is based on the theory and practice of the law. I do not pretend to be able to meet him on legal ground; but the answer on either point is easy. He says the law of hypothec is bad because it protects one creditor alone against a bankrupt debtor. I submit that such a view of the law of hypothec is not just. The hon, and learned Gentleman asked why the landed proprietor should be placed in any such position; but the Royal Commissioners stated in their Report as the reason why the law gives its preference to the landlord over the ordinary creditor, and why that preference ought to be maintained, in the first place, that the landlord letting his land for nineteen years requires a different sort of security from other creditors. The main point on which this law must rest is the security it gives to the landlord over his small tenants, and the means thus afforded to sustain them in hard times. The gentlemen who were examined before the Committee may have stated their experience as to the operation of the law, and the way in which it has been carried out, in a manner perfectly true and yet diametrically opposite, because the custom in one part of the coun-

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  try gives no criterion for what goes on in another part. In the wealthy portion of the Lothians, for instance, the relations between landlord and tenant are of the simplest kind; but in localities where the climate is more uncertain, and the land comparatively poor, a different state of things exists, and such a law as this is necessary to assist struggling but deserving tenants. As to the landlord and tenant dealing with each other just as traders do, that might do all very well among wealthy persons, but it is not applicable to all times and places. The present law has probably excited less complaint and been more useful than any other, and I therefore oppose this Bill, which proposes its entire abolition, without providing any substitute.
  MR. CRAUFURD: As my name is one of those on the back of this Bill, I wish to say a few words in support of its principle. I think it is right to abolish not only the agricultural but the urban law of hypothec, and as a proof that the tenant farmers are in favour of the measure, I may recall to recollection that since the agitation commenced on this subject, there has been an election in Aberdeenshire, and the tenant farmers there expressed unequivocally their opinion of the question by returning the present Member by a large majority. In its origin probably the law was equitable. Everything connected with the cultivation of land was furnished by the landlord; the tenant gave only his labour; and then the right of the landlord to follow the produce for his rent was reasonable. But now that the landlord supplies the land only, and the tenant furnishes everything else, the reason for the law no longer applies. At present the landlord has ample means of protection against the tenant's insolvency, for the leases, which are more general in Scotland than in any other country, always contains a covenant that the leases are voided by the mortgage.
  MR. M'LAGAN: Having had the honour of being one of the Commissioners appointed to consider the law relating to the landlords' right of hypothec in Scotland, I have to ask the indulgence of the House while I state shortly my reasons for agreeing with the majority of the Commissioners that this law should not be abolished. I think that credit is due to the hon. Member for Forfarshire for including urban with agricultural hypothec in his Bill; if he had limited his legislation to the latter, he would himself have been guilty of what he
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  condemns in the present law—namely, exceptional legislation; in fact, I see no reason why he should not have gone further, and included in his Bill all hypothecs and securities made preferable by law. If he had done this he would have been more consistent in his legislation. The hon. Member also in his Bill properly exempts existing leases; but this is equivalent to postponing in some degree the abolition of the law for nineteen or twenty-one years. And though I think that it is but just that existing leases should be exempted, still I foresee great confusion from their exemption if this Bill should pass; for instance, if it be true, as some manure merchants allege, that they would be able to sell their goods cheaper to farmers if there were no law of hypothec, such merchants would require to have two prices for their agricultural customers, and before rendering their accounts would require to ascertain whether the farmers held their leases under the law of hypothec or not. I admit, Sir, that there is much in this law that is exceptional, and it was on account of its exceptional character that when my attention was first directed to the subject I felt inclined to come to the conclusion that it ought to be abolished. But on further consideration, on an attentive hearing and careful perusal of the evidence, on giving due weight to the deliberate opinions not only of individuals, but of certain associated bodies well qualified to judge of this question, and on being convinced that the success of many it farmer and the progress of Scottish agriculture could in some measure be traced to this law, I arrived at the conclusion that, though there was much in it that was exceptional and could not be defended at present, the abolition of it would be inexpedient; and let us not forget that in legislation there is much that is expedient that is not just. I shall proceed now to reply to some objections to the law of hypothec as it affects those connected with land—namely, proprietors and tenants, and as it affects the community at large. Now, one objection urged against the law is that it unduly increases rents. I admit at once the tendency of the law is to produce that effect; but I deny that it has had any appreciable effect in raising rents to their present pitch. I maintain that other circumstances have conduced to the gradual and rapid rise of rents of late years; and that as these circumstances are brought into play or do not exist, rents rise or fall. It is well known that during

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  the European war in the beginning of this century rents rose very high, and so great was their fall immediately after the cessation of hostilities that the Corn Laws were passed with the object of maintaining them. Agriculture languished, rents remained almost stationary for about twenty years after, and farms went almost a begging during the agitation for the repeal of the Corn Laws. Any rise that did take place could be clearly traced to the improvements in the land and not to any undue competition for farms caused by the law of hypothec. The Corn Laws were repealed and a period of great agricultural depression took place during the transition period. But the failure of the potato crop in Ireland and most parts of England, and the successful and profitable cultivation of it in Scotland, and the high prices of all farm produce caused by the Crimean War gave a stimulus to farming, and conjoined with the improved system of farming, the commercial prosperity of the country, and the consequent increase of capital, induced a great competition for farms, and materially raised rents. These circumstances were of themselves quite sufficient to cause the present high rents, even though there had been no law of hypothec. The truth is that farms are like everything else, dependent for their value upon supply and demand. While the population and wealth of the country have been increasing at an enormous rate, and the desire to possess land has been unabated, the extent of the land has remained the same, and the number of farms has been diminished, and the consequence is that land has been greatly raised in value both to the purchaser and to the tenant. There is no greater mistake that the manager of an estate can commit than by attempting to raise the rent of his farms by availing himself of the artificial stimulus caused by an exceptional law, as it is alleged is done by some managers by the law of hypothec, and as I believe has been done in a most outrageous manner in some cases in the county of Forfar. A manager trusting to the protection afforded him by such a law may choose a tenant without skill and capital; but the inevitable result of such a choice will be the deterioration of the farm, and the consequent reduction of rent. I maintain, therefore, that a permanent rise in the rent of land can be attributed to the law of hypothec only in so far as that law encourages the improvement of agriculture by assisting industrious and skilful
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  tenants. It is said, moreover, that on account of this law landlords and factors are careless in the selection of their tenants, that men of capital and skill are passed over, and mere adventurers chosen if they offer the highest rent. It may be that some greedy and unwise managers of estates may take the highest offerer of a farm whatever may be his qualifications. But we have it distinctly stated in evidence that such are merely exceptions, and that both proprietors and factors are most particular in making inquiries about the character and capital of the men who offer for farms, and that in general they select the best men even though they may not be the highest offerers. That they are sometimes misled we need not be surprised, when we know that some of our most sagacious merchants in this and other cities are frequently deceived in the men with whom they have dealings, even though they have better opportunities of ascertaining the circumstances and the character of those with whom they have mercantile transactions than the managers of estates living in country districts can possibly have. We are told again that the law of hypothec prevents farmers getting advances from bankers, between whom and the farmers banking facilities would be very much increased if this law were abolished. The evidence laid before the Commission is at direct variance with this statement; for almost every banker who gave evidence stated that the abolition of the law would make no difference to them in giving credit to farmers. And in addition to this direct evidence we have the strong indirect evidence of experience from which we learn that nothing has tended more to the advancement of agriculture in Scotland for the last fifty years, than the cash credit system of our Scotch banks, by which farmers were enabled, from the facilities afforded them, of borrowing money from the banks for the improving and carrying on of their farms. We are further told that the law operates injuriously on those merchants who are in the habit of dealing with tenants. But the evidence given before the Commission by merchants favourable to the abolition of the law of hypothec was to the contrary effect. It appeared from their statements that during the succession of bad seasons from 1861, the losses their firms had suffered from their dealings with tenants were not greater than from one-third to a little over 1 per cent. Mr. Copland, of Aberdeen, stated his loss

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  from these transactions in 1863, at seven-eighths per cent, and in 1864, at one-third; and that from dealings with other classes in the same years, at one-half and one-fifth respectively. The mercantile community in general are in favour of the abolition of this law. In 1853 a Commission was appointed to inquire whether the Mercantile Laws of England, Scotland, and Ireland, could be advantageously assimilated; and they addressed inquiries to different bodies in the three kingdoms. In reply the Convention of the Royal Burghs of Scotland, which may be considered to represent the mercantile interests in these burghs, the Glasgow and West of Scotland Guardian Society for the Protection of Trade, and the provost and merchants of Dundee, were unanimous in protesting against the abolition of this law of hypothec; and the former body have this year re-affirmed that opinion by a majority of 38 to 5. Neither is it true that landlords who have leased their farms for a long term are in a better position than the merchants who supply their tenants with goods. The latter take all the risks into their consideration and fix their price accordingly; but the landlord cannot calculate the risk of his tenant mismanaging his farm; the land may be so deteriorated by the end of the term that it might not re-let at the same rent by £100; or if the landlord were compelled to sell he would get £3,000 less for it than if his tenant had farmed properly. Surely this is as much risk of capital as the merchant's. Now, what will be the effect of abolishing the law. The law at present gives a security for the landlord's rent, and he is thus enabled to give a considerable indulgence for the payment of his rent. The custom is, then, not to ask for any rent for a year or fifteen months after the tenant has entered on his farm, and then only one-half of the rent is paid. This, then, is equivalent to lending the tenant so much capital, and the manure merchants and others are generally paid before the rent becomes due. If, however, you do away with this security, the landlord must look out for some other, and the one that comes most readily to him, is the payment of the rent on the tenant entering on the farm, or at all events before the crop is reaped, and the rent will thus be either pre-paid, as is the case generally in England, or a fore-rent. Every tenant, therefore, who was back-rented before and becomes fore-rented, would require to have
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  as much more capital as would pay his fore-rent if he remained in the same farm; if he had not this capital he must take a smaller farm which will be more suitable for his capital. The result of this will be that there will be fewer competitors for the large farms; but the competition will be quite as great if not greater for the smaller farms, hence, while the rents of the larger farms may be reduced, those of the smaller farms will be quite as high, and it is probable that some of the smaller tenants will be thrown out of their farms. Perhaps some landlords may not be content with simple pre-payment of rents, but may demand collateral security in addition. If this is done, it will introduce a system of cautionry which ought always to be discouraged. Another effect of the repeal of the law will be to shorten leases, for landlords finding themselves deprived of their security will be chary of granting long leases to every one, as it is always found a most difficult matter to get a tenant out of his farm. It is somewhat singular that while Irish Members are so anxious to have the system of leases introduced into Ireland, the tendency of this agitation in Scotland is to shorten leases. I am clearly of opinion that the advanced state of agriculture in Scotland is due very much to the long leases, and we are indebted for these leases to the security afforded to the landlord by the law of hypothec. There can be no doubt that this law simplifies very much the entering into contracts between landlord and tenant, and it is the means of a good relationship and kindly feeling being kept up between them. By it the landlord in bad seasons or during a succession of unfavourable seasons has it in his power to give every indulgence to his tenant, and many a tenant has by this indulgence been enabled to recover himself when better times came round, which he could not have done if this law had not existed. I have no hesitation in saying that the abolition of the law will fall far more heavily on the tenant than on the landlord. And I do not see why you are going to deprive the proprietor of land and houses of his preferable security, while you allow the owner of capital to retain his preferable security. Why should a man having £10,000 in money lent on heritable security have his interest and capital secured by law, while the proprietor of £10,000 of land or houses will be deprived of the legal security of their rents if this Bill becomes law?
  MR. DYCE NICOLsaid, that seeing the patience of the House was nearly exhausted, he would merely say, with reference to the feeling in Scotland, and the character of the petitions for the total abolition of the law of hypothec, which had been so unfairly referred to by Members on the opposite Benches, that he had had the honour of presenting to the House a petition in favour of total abolition from the Scottish Chamber of Agriculture, an association composed of the principal tenant farmers in Scotland; and from the county he had the honour to represent a similar petition, the most numerously signed that had ever been sent to this House from Kincardineshire, and as the tenant farmers in it might be included in the class of holders of small or moderate sized farms, he thought this a sufficient answer, showing that that class were desirous of the abolition of the law. It was from the circumstance of the opinions of himself and the Member for Aberdeenshire being in unison with those of the tenant farmers on this and other agricultural questions, that they were indebted for their seats in this House. He believed that were the law of hypothec totally abolished, agriculture in Scotland would be in a sounder and better state, beneficial to the landlord, the tenant, and the public. The agitation on this subject was attributable to the high rents in Scotland—often remarked upon by less fortunate landlords in England—but which was owing to our system of long leases, and to the enterprize and industry of our Scotch tenantry, who were satisfied with a smaller return for their capital than the same class in England; but they would no longer quietly submit to the unfair competition which this law encourages, and their just demands for concession on this subject could not long be denied to a class than whom none of Her Majesty's subjects were more enterprizing, intelligent, and loyal.
  MR. M'LARENsaid, he was one of the first of the Scotch Members who brought this subject under the notice of the Government, which led to the issuing of the Royal Commission. He claimed on good grounds to know the opinions respecting the law of hypothec of all classes in Scotland as well as any one, and he could say that the farmers and the mercantile classes complained greatly that the landlord at the end of two years could sweep away every farthing belonging not more to him than to the general creditors. For himself, he
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  held that the principle of the law was wrong and pernicious, and he would, of course, vote for the second reading of this Bill.
  MR. MONCREIFF: I intend to vote against this Bill, and I will discuss the subject as shortly as I can. I am not aware that any complaint has been made from the residents in towns in Scotland, nor any petitions sent to this House from them against this law of hypothec; and as the objections made to the law apply as well to towns as to rural districts, on this ground I oppose the Bill. But I agree with the majority of the Commission who reported on the subject, and with the provisions of the Bill sent down from "another place." I believe that the law of hypothec, as it at present stands, is a great deal too stringent, and I desire to see it amended; but there is a great deal of difference between modifying a law and abolishing it altogether. I am not prepared to take that step. This is not a theoretical, it is a practical question. The landlord being only a party to a contract can, even if the law were changed, always make his own terms, and preserve to himself his own remedy. As to preference claims, they are not peculiar to the law of hypothec. Instances of their existence in the laws respecting trade, commerce, and manufactures are numerous. There are cases of lien and rights of redemption, which really amount to just as much by giving a preference to one creditor over another as the law of hypothec in Scotland is as respects the landlord. The principle of the law is this—That where the risk is more than commensurate with the interest, then the law gives an unusual facility to recover the subject-matter of the interest. That is the principle of the law of lien, and it goes through a variety of cases, and it reasonably applies to that of the landlord, who has a lien, and whose means of subsistence for the year depends upon his receiving the rents of the year. But this is a practical matter. The landlord cannot be compelled to let his land. He may choose his tenant—he has ample means to protect his interests—he may, if this law be abolished, exact payment of rent in advance, or require security, and this implies that under the then new state of things the general creditor gains no more than at present. Small tenants will not be able to pay rent in advance, nor give security, and this, reducing the demand for farms, would on doubt cause farms to

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  be let at something less than at present. Landlords would get rather less rent than before, and merchants and other creditors of farmers would be as they were before. The Bill, if it becomes law, will create in-convenience, without any benefit, and there is no necessity for it. One statute of a most beneficial nature regulates the relations between landlords and tenants in Scotland, and the abolition of the law of hypothec would only introduce confusion into those relations, and it would disturb the present satisfactory arrangements as to leases. I therefore shall vote against the second reading of the Bill, which I hope the House will see reason to reject.
  MR. CARNEGIEbriefly replied.
  Question put, "That the word 'now' stand part of the Question."
  The House divided:—Ayes 96; Noes 225: Majority 129.
  Words added.
  Main Question, as amended, put, and agreed to.
  Bill put off for six months.

CHURCH RATES ABOLITION BILL.
(Mr. Hardcastle, Mr. Baines, Mr. Trevelyan.)
CHURCH RATES ABOLITION BILL.

  [BILL 13.] COMMITTEE.
  Order for Committee read.
  MR. HARDCASTLEsaid, that notice had been given of a series of Amendments by the hon. Member for Hastings (Mr. Waldegrave-Leslie), who was unfortunately prevented by indisposition from being in the House that day. It would be unwise to discuss some Amendments and to leave others for future discussion, and he therefore suggested that it would be well to allow the Bill to pass the present stage without discussion, reserving the consideration of the Amendments for the next stage—the bringing up of the Report.
  Bill considered in Committee.
  (In the Committee.)
  Clause 1 (Church Rates Abolished).
  SIR MICHAEL HICKS - BEACHmoved that the Chairman report Progress.
  Motion made, and Question put, "That the Chairman do report Progress, and ask leave to sit again."—(Sir Michael Hicks-Beach.)
  The Committee divided:—Ayes 242; Noes 102: Majority 140.
  House resumed.
  Committee report Progress; to sit again upon Wednesday 12th June.

MUNICIPAL CORPORATIONS CHARITIES BILL— [BILL 60.]—SECOND READING.
(Mr. Richard Young, Mr. William Edward Forster.)
Order for Second Reading read.
VISCOUNT GALWAYsaid, he believed there was only one opinion in the House with regard to the Bill. It related to charities which had been handed over to trustees with very beneficial effects. There had been no complaint of the management of the charities by the trustees, who were locally elected, and knew the circumstances of the charities. This Bill would re-invest charities in the hands of corporations, and to do that could only lead to jobbery. He was convinced that scarcely a Member of the House approved the Bill, and therefore there was no use in keeping the Order on the books. He moved that the Order be discharged.
MR. SPEAKERsaid, it was an unusual course to move the discharge of an Order in the absence of the Member in charge of a Bill, and in this case the hon. Member (Mr. R. Young) had arranged for the postponement of the second reading to Wednesday, the 19th of June.
ADMIRAL DUNCOMBEasked if it was to be understood that the noble Lord (Viscount Galway) was precluded from moving the discharge of the Order. He apprehended that, by the usages of Parliament and the rules of the House, when an hon. Member had charge of a Bill it was his business to be in his place when the Order was called.
MR. P. WYKEHAM MARTINsaid, that, as a matter of fact, the hon. Member in charge of the Bill was in the House a minute ago.
MR. GOLDNEY, who had given notice of his intention to move that the Bill should be read a second time that day six months, said, that he had a conversation with the hon. Member two minutes ago on the subject of the Bill.
MR. R. YOUNG, who had returned to the House, said, he had thought his presence unnecessary, as previous to the division on the Church Rates Bill it had been arranged that, as there would not be time to discuss

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this Bill, the second reading should be postponed to the 19th of June.
Motion made, and Question proposed, "That the Bill be read a second time upon Wednesday the 19th day of June next.
VISCOUNT GALWAYmoved, as an Amendment, that the Order be discharged.
Amendment proposed,
To leave out from the words "That the" to the end of the Question, in order to add the words "Order for the Second Reading of the said Bill be discharged,"—(Viscount Galway,)
—instead thereof.
Question proposed, "That the words proposed to be left out stand part of the Question."
MR. COLERIDGEhoped the noble Lord would not press the Amendment. He himself entertained an opinion adverse to the Bill, and should be disposed strongly to oppose it and to vote against it; but yet, if the noble Lord divided the House, he should be obliged to vote against him. When an hon. Member who had charge of a Bill communicated with others opposed to him, and a general understanding was arrived at with regard to the postponement of a Bill, if that understanding could not be relied upon, and a division took place on the Bill, it could be no fair criterion of the opinion of the House, because it would take place in the absence of some of those who took special interest in the matter.
MR. GOLDNEYsaid, that although he had given notice of an Amendment for the rejection of the Bill, he had not been a party to the alleged understanding; no notice had been given him of the intended postponement, and it was only by accident he had heard of it.
SIR FRANCIS GOLDSMIDsaid, it was quite an ordinary thing to allow a Bill to be postponed at the request of the hon. Member in charge of it, and it would be unfair to depart from that course on the present occasion, when, owing to the Bill being preceded by a most important one, there was every reason to suppose there would be no time for discussing it.
MR. NEWDEGATEsaid, while desirous of showing all courtesy to the hon. Member for Cambridge, he must say that it was taking an undue liberty with hon. Members to put them to the inconvenience of attending to consider a particular Bill, and, when there was a full House, to have
210
it announced suddenly from the Chair, without the attendance of the responsible Member, that the business for which they had assembled was to be postponed.
MR. CLAYsaid, he was in the same position as the hon. Member for Exeter—opposed to the Bill, and informed of the intended postponement; and he knew that a number of Members interested in it had gone away with the belief that the understanding as to postponement would be acted upon.
MR. BRADYknew that many Members interested in the Bill had left the House, and rather than have the Order discharged he would move the adjournment of the debate.
VISCOUNT ROYSTONsaid, his hon. Colleague had not displayed that zeal which might have been expected of an hon. Member in regard to the first Bill he introduced, for he had personally had some difficulty in impressing the hon. Member with the fact that he must look after his own interests if he meant to carry the Bill—which, however, was open to doubt.
MR. MOWBRAYappealed to the noble Lord (Viscount Galway) not to press the Motion for the discharge of the Order. It was quite true he had ample grounds for making it, for the hon. Member for Cambridgeshire (Mr. R. Young) was in the House up to within a minute of the time that the Order was read; and to leave it then, knowing of the Amendment of the hon. Member for Chippenham (Mr. Goldney), was almost an act of disrespect to the House. However, the hon. Member had not been long in the House. They must give him credit for fully believing that an understanding had been arrived at, and after the statement that an understanding existed, and that hon. Members had left the House in the belief that it would be acted upon, it would hardly be consistent with the ordinary rules of their procedure to discharge the Order.
MR. WHALLEYobjected to the hon. Member (Mr. R. Young) being charged with any want of respect to the House in acting upon what he believed to be an accepted arrangement.
VISCOUNT GALWAYsaid, he was quite astonished, after he had moved the discharge of the Order, to hear that the hon. Member (Mr. R. Young) was not in the House. As he might, perhaps, be thought to be taking a somewhat unusual course, he would not put the House to the trouble of dividing, although he was

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inclined to do so, considering that the Bill might have been discussed in the time already spent, and that there was not the slightest chance of its passing, not a Member having said a word in its favour.
Amendment, by leave, withdrawn.
Original Question put, and agreed to.
Bill to be read a second time upon Wednesday 19th June.

SEA COAST FISHERIES (IRELAND) BILL— [BILL 50.]
(Mr. Blake, Colonel Tottenham, Mr. Brady.)
SEA COAST FISHERIES (IRELAND) BILL— [BILL 50.]

  COMMITTEE.
  Order for Committee read.
  Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."
  SIR HENRY WINSTON - BARRONmoved that the Bill be referred to a Select Committee, remarking that two Commissions had arrived at diametrically opposite conclusions on the subject of the measure.
  Amendment proposed,
  To leave out from the word "That" to the end of the Question, in order to add the words "The Bill be committed to a Select Committee,"—(Sir Henry Winston-Barron,)
  —instead thereof.
  Question proposed, "That the words proposed to be left out stand part of the Question."
  MR. BLAKEsaid, he did not expect there would be any objection to this course. The Chief Secretary was quite disposed that it should be done, and the only obstacle had been the delay about the Fishery Convention with France. The terms of that treaty were known, and as its operation would only extend to within three miles of the coast, and he supposed would not differ much from the late Convention, there was no good reason why the Committee should not, in the first instance, proceed to the consideration of matters which only related to Ireland, and when the Convention came out take it into consideration also. It was said that a general Fishery Act for the kingdom would be introduced. He was not prepared to deny that a good Bill for England would also be suitable to Ireland. But there were peculiar circumstances about Ireland which called for special legislation on the fishery question. It was then too late for him to enter fully into the subject; but he was
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  quite prepared to prove that without peculiar remedies being applied, the Irish fisheries would never be raised from their present depressed and sinking condition. If he was invested with absolute powers for even half-a-dozen years, and given the disposal of £500,000, he would stake his very existence that within that period he would give remunerative and healthy employment to an additional 500,000 people, enrich Ireland to the extent of £5,000,000 a year, and give to the kingdom £15,000,000 worth of additional food, besides forming a splendid nursery for the Mercantile and Royal Naval Marine, and in the end pay back nearly all the money advanced. Although he knew as much as any man in the Empire, perhaps, about the inland and sea fisheries, and knew almost every river and creek in Ireland, he did not want anything to be received on his own authority—he was ready to quote received authorities for everything he said. He believed the coasts and inland waters of Ireland might be made as remunerative as all the land of which it was composed. He had furnished nearly every Member of that House with printed papers showing what might be done by the deep-sea and coast fisheries, especially in oysters, and he defied a single statement to be contradicted. Surely no Government ought to deny a Committee to investigate so important a matter. He believed a late Lord of the Admiralty, and who had been one of the Royal Commission on Fisheries, intended to object to the Bill going into Committee unless he (Mr. Blake) would take out the clauses authorizing loans to fishermen. Now, he begged to tell the hon. Gentleman that he would do nothing of the kind. These clauses constituted the very essence of the Bill, and he would rather lose it altogether than give up that portion of the Bill.
  SIR HERVEY BRUCEsaid, that the Bill would unsettle all the fishery laws of the kingdom; and he asked, whether the hon. Gentleman would consent to the insertion of a clause saving all rights of salmon fisheries as established by law?
  MR. BLAKEwas willing to give that assurance. The Bill was not meant to interfere with salmon fisheries at all.
  LORD NAASsaid, the proper course would be to wait for the result of the French Fishery Convention, and he suggested the postponement of the Bill for a week with this object. The Government did not wish to obstruct the Bill in any way, and in a

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  week they would be able to decide whether it might be properly referred to a Select Committee.
  Debate adjourned till Wednesday next.

MIXED MARRIAGES (IRELAND) BILL— [BILL 120.]—SECOND READING.
(Mr. Serjeant Armstrong, Mr. Cogan.)
MIXED MARRIAGES (IRELAND) BILL— [BILL 120.]—SECOND READING.

  ADJOURNED DEBATE RESUMED.
  Order read, for resuming Adjourned Debate on Question [7th May], "That the Bill be now read a second time."
  Question again proposed.
  Debate resumed.
  MR. VANCEthought it would have been well to await the result of the Commission on Marriage Law; but on the understanding that the Committee was fixed for May 28, so as to afford time for further inquiry on the subject, he had no objection to the second reading.
  Question put, and agreed to.
  Bill read a second time, and committed for Tuesday 28th May.

TESTS ABOLITION (OXFORD AND CAMBRIDGE) BILL—(BILL 16.
(Mr. Coleridge, Mr. Grant Duff.)
TESTS ABOLITION (OXFORD AND CAMBRIDGE) BILL—(BILL 16.

  CONSIDERATION.
  Bill, as amended, considered.
  MR. COLERIDGEsaid, that the hon. Baronet the Member for Oxford University (Sir William Heathcote) had intimated to him that the present stage of the Bill would not be opposed, and that there should be a full discussion on the third reading.
  SIR MICHAEL HICKS - BEACHhoped that the third reading would be fixed for some day on which the Bill was likely to come on.
  MR. COLERIDGEsaid, that as far as depended upon him, the fullest opportunity should be given for discussion.
  To be read the third time upon Friday 17th May.

  METROPOLIS SUBWAYS BILL.
  On Motion of Mr. TITE, Bill to make provision respecting the use of Subways constructed by the Metropolitan Board of Works in the Metropolis, ordered to be brought in by Mr. TITE and Colonel HOGG.
  Bill presented, and read the first time. [Bill 139.]
  House adjourned at a quarter before Six o'clock.

Preamble
Their Lordships sat for the despatch of Judicial Business only.
House adjourned at half past Eleven o'clock, till To-morrow, half past Ten o'clock.