By the common law of Scotland farming landlords retained certain rights to recover debt, from their tenant farmers, by taking possession of the crops and stock on the farm. It was known as the Law of Hypothic and it was argued that it gave landlords an unfair advantage over any other debtors. In 1865 a Royal Commssion enquiring into the matter reported. Contained in the report is the evidence of two Kirkcudbrightshire farmers, William Sproat of Borness, Borgue, and Thomas Biggar of Kings Grange. Mr Biggar was also a grain, seed and manure merchant. Their evidence gives an interesting snapshot of local farming and tenanting practices at that time.  

Tenant Farmers and the Law of Hypothic in 1865


To the Chairman.—I am a farmer at Borness, Kirkcudbrightshire. My farm extends to about 430 imperial acres, and my rent is 600 guineas. In conjunction with my son I have also the farm of Baldoon in Wigtownshire, which extends to about 600 acres, and the rent is £1000 for the first five years and £1200 after that. I have been a farmer for upwards of forty years. I have always occupied the farm of Borness, and my father had it before me. In the Stewartry of Kirkcudbright generally, the term of entry is Whitsunday and separation of the crop. To Baldoon the whole entry is at Martinmas; and the tenant has the inputting of the wheat-crop, or must pay for it to the outgoing tenant. In the Stewartry the first half-year's rent is payable at Whitsunday before reaping; but a great many of the landlords don't collect it for three months afterwards. Lammas and Candlemas are generally the terms, though by the lease the rents are payable at Martinmas and Whitsunday. A year's rent is payable before any crop is reaped. A considerable part of my farms are pasture. I have it in my power to have under crop one-third of the farm, but generally I have not more than a fourth. We have the grass before we pay the rent.

To Mr Hope.—If I were leaving the farm, I have a right to have one-third in white-crop, and the rest would be in pasture, less the green-crop break. The tenant generally succeeds to the turnip break in April, and he may have a third in white-crop, and the remaining two-thirds in pasture or turnips.

To Mr Curror.—We generally calculate on between sixty and seventy acres of white-crop, and the half of that in green-crop, on a farm of 400 acres.

To the Chairman.—I have a croft in permanent pasture, and there is a margin along the shore which is not suitable for ploughing; that will be between thirty and forty acres. I know pretty well the general state of the agricultural interests in Wigtownshire and Kirkcudbright. I have extensive acquaintance with the farmers. Q. What is your opinion of the law of hypothec; does it operate prejudicially or beneficially?—A. We have very little experience of it. I have only known a rare case or two of sequestration in my district in all my experience. These were not extensive farmers; but I don't know more than two such cases in all my experience. I don't know so much about Wigtownshire; but in Kirkcudbright I have known scarcely any cases. The farmers in my district see the examination of the witnesses before this Commission, but we know very little about the hypothec otherwise. Q. There is no agitation in your county for a change in the law ?—A. I don't think it; but any I have heard speak of it seem to disapprove of the law altogether. We don't think it would affect either the landlord or tenant at all whether it was abolished or not. Q. Do you mean that you-disapprove of the law, or of the proposal to change the law ?—A. We think the proprietors have so much in their power in selecting a tenant that they can secure themselves. Wherever there is a farm to let in the district, there is always a sufficient number of good men to take it, if the proprietor is not determined to have the highest rent; and we think he should take his own risk. I don't think the existence of the law has had any effect in making landlords careless in the selection of their tenants in my district. It is very seldom indeed that the highest rents are taken; and the men preferred are generally practical agriculturists. Q. And there have been few sequestrations, and the agricultural interest generally is thriving?—A. There are not many of us make rich. There have been a great many changes in the district where I come from. When a farm is out of lease there are plenty of competitors for it—plenty of good men— men of capital and skill. Q. Then, while you think the law is liable to objection in point of principle or theory, you cannot say practically that in your district you have had any experience of it one way or other?—A. Very little indeed. In the two cases that I have referred to, the landlord took advantage of it, and the creditors got very little; but these are the only two cases that I recollect of. Lately the practice of bowing has become pretty general in our county. Some of the dairies the tenants keep in their own hands; but the greater number let them to bowers, who are practical men in the making of cheese. They let the cows by so many stones of cheese generally. They point out what land they think will be sufficient to feed the cows, and they give so many turnips in winter, and so much bean-meal. If a cow dies, the tenant stands the risk.

To Mr Hope.—I don't think he is bound to put in another when a cow dies, though I dare say the dairyman expects him to do so. The cows continue the property of the tenant.

To Mr M'Lagan.—I am not aware of any case in my district where the bowers purchase the cows, and put them in; but I have heard of such a thing.

To the Chairman.—In my district the cows continue to belong to the tenants, and are liable to the landlord's hypothec.

To Mr Curror.—I have heard that as high as  £11 of money rent is given for a cow; but for that the tenants give also three imperial bushels of beans, and perhaps a little oats, and so many turnips, besides as much straw as the cow requires, and a sufficiency of grass. The bowers, generally, have not much means.

To Mr Curror.—There are not many very small tenants in Galloway, though there are a few.

To the Chairman.—The rents vary from £90 to £100 or £150, and, in some few instances, £50 or £60; but there are not many of these.

To Mr Carnegie.—These small tenants have been industrious farm-servants, and have been able to take a small farm. Q. Do you find that the system of payment of rent in your district in any way prevents farm-servants from raising themselves in that way ?—A. I don't think so—for a small farm where they can take it; but there are very few small farms in our part of the country. Grieves, and people of that sort, however, do raise themselves and take small farms.

To Mr Hope.—The entry to Baldoon is at Martinmas. It is different from the rest of Lord Galloway's land in Wigtownshire. The stipulation is that the first half-year's rent is payable at Candlemas, and the other at Lammas. I entered to very little grass. The previous tenant had 270 or 280 acres of crop. In the course of my experience there have been a good many changes of tenants in my neighbourhood, from their dying out, and from other causes. When a lease is out, the old tenant generally gets the option to take it again. On Lord Selkirk's estate it is very rare indeed that a farm comes into the market. The tenants generally get leave to remain at the old rent; but, where a tenant dies in the farm, it is exposed to the public. Generally when leases expire, if the proprietor and tenant don't agree, the farm is exposed to the public; and very often the landlords take pretty near the highest offer, though not quite the highest.

To Mr M'Lagan.—The tenantry of Galloway have not much experience of the law of hypothec; but, so far as I have ascertained, the opinion generally is that it is unfair, and that the proprietor has it in his power to select a good tenant, and should run the same risk as the manure merchant or the seed merchant. Q. Do you know any case where the tenant, by receiving temporary indulgence from the landlord in regard to paying his rent when he was in difficulties, has afterwards thriven?—A. Yes, that is generally done; if it was not done just now, a great many would go to the wall. Q. Do you think landlords generally, unless they had the security of the law of hypothec, would be inclined to give that indulgence?—A. Where a landlord has an industrious tenant, he would not distress him for a small thing, but would have confidence that, when times improved, he would pay him, or else he would reduce his rent. Generally I think landlords do give a deduction where there is a succession of bad seasons. Q. But if the law of hypothec were abolished, would they be inclined to act in the same way ?—A. I should hope they would. I think the landlords have suffered no loss in our part of the country. Q. Are you aware of any cases where parties have risen from being farm-servants to take small farms, and have gradually taken larger farms?—A, They have added field to field; but they have never, so far as I recollect, taken large farms. I call a farm of 300 or 400 acres a large farm. They have perhaps taken a farm of 100 acres. If I were lending money, I would ask security, unless I had every confidence in the borrower. Q. The landlord gives his land for a certain number of years; don't you think it fair that he should have some security?—A. He gets his rent half-yearly, and I cannot see what right he has to more. He only risks his rent for half a year, and his land is always there, and we think landlords should be careful in the selection of their tenants. I think they are careful, though there may be rare instances in which they are deceived; they exercise great caution, and seldom take the highest offer. Q. Supposing the landlord has selected a first-rate tenant, but, before the lease is half out, the tenant dies, and the management of the farm comes into the hands of trustees; does it not often happen that the farm is given back to the landlord in a worse condition than when it was let to the tenant? —A. There may be instances of that. Q. Is it not fair that the landlord should have some security when he runs all that risk, and gives away his land for nineteen years?—A. I have not given that question very much thought, but one would say it is only reasonable in a case of that kind.

To Mr Carnegie.—In some instances the farmers in Galloway put their sons into farms, but now they are more generally turning their attention to something else. We think the land is getting beyond its value, and that farming is a very poor trade. A great many people from Ayrshire take land in our part of the country; and the bowers who keep dairies have been able to pay more rent than the people in the district, and that has been the cause of a great many changes. They are mostly all Ayrshire people who have introduced the dairy system.

To Mr M'Lagan.—When cheese sells well, they are able to pay higher rents. In my younger days very few cattle or sheep were fed in our district; now it is entirely a sheep district.

To Mr M'Lagan.—There is a bower on Baldoon, and about 100 cows.



To the Chairman.—I am a landed proprietor in the Stewartry of Kirkcudbright, and I also have a farm. My own estate is 190 imperial acres, and my farm, King's Grange in the parish of Urr, 350 acres. I pay £487 of rent. The term of entry to the farm is Whitsunday and separation of crop, and I pay my first rent at Martinmas before reaping. That is the general term of entry in that district. The stipulation is to pay at Martinmas, but I believe the rents are frequently not collected till February. I pay at Martinmas. My father was a farmer, and I was brought up with him. I have been engaged in the practice of agriculture since 1836, and always in the same county. I also deal in seed and manure, principally in that county, but also in Dumfriesshire. I am pretty well acquainted with the state of agriculture in Kirkcudbrightshire, but I do not know the opinions of the farmers generally in the county on the subject we are at present considering. Q. Have they formed any decided opinion as to the effects of the law of hypothec ?—A. I cannot give you the farmers' opinion on that subject. My own opinion is that there should be no law on the subject at all. I think the landlord should be left to manage his own business, in the same way as a mercantile man is left to manage his. The landlord is not bound to let his land, and he can make his own terms—forerent, or payment when the tenant enters. So far as I have been engaged in trade, I have found the law very disadvantageous, because the landlord has generally been paid in full, while the manure merchant and other dealers have had to come in for a very small dividend. Q. Are there many sequestrations in your district?—A. For the last five years I find that I have made twenty-four bad debts in different counties, the amount of the debts being £409, 2s. That debt represented dealings to the amount of about £10,000 a year for manures. I buy seeds from the farmers and sell wholesale, mostly in England; but I have a small retail trade at home in a similar business with farmers, in clover and turnips, and also in rye-grass. The bad debts which I have mentioned are upon dealings of about £11,000 a year; but they are for five years, so that, on dealings amounting to £55,000,1 have lost £409. I think that a considerable loss, because our profit is very small.

To Mr Carnegie.—The £409 is the amount of bad debts, but on these I got a dividend of £108, 3s. 11d.

To the Chairman.—My loss has been about £300 on dealings to the extent of £55,000. I don't complain of that as a very heavy loss, but it is nearly as much as I had lost for twenty years before.

To Mr M'Lagan.—It was owing to the bad years.

To the Chairman.—I attribute the loss to the bad years, and not to the law of hypothec. The £108 was nearly all paid by two debtors, and there are only five debtors from whom I received anything. One of the cases was not exactly a failure; it was that of a tenant who bought £17 worth of manure from me three years ago. The year before that he bought his manure from one of my neighbours. The next year I did not find out where he bought it, and the fourth year he bought it from another acquaintance of mine. He paid none of us anything. After I had given him two years' credit, I handed his account to a man of business, who got decreet against him; but his factor immediately hypothecated him, and he is going on farming still and paying nothing. On inquiry I found that he had just about as much as would pay the rent he was due, leaving nothing for the creditors. The farmers in the district generally do not pay ready money for their manures; and there are cases in which we are deceived, and the landlord steps in and takes all. If the law of hypothec did not exist, the landlord could demand what security he pleased; he would first ascertain whether the tenant was worthy of credit or not, or could say that he would take a less rent, and have it paid on entry. No doubt the landlord enters into a lease for nineteen years ; but if the tenant does not pay the rent, he can be ejected. I never knew any difficulty in getting quit of a tenant. Q. Then you don't think that a man who lets his land for nineteen years ought to have any better security than a manure merchant who deals from day to day ?—A. No. The term of entry is at Whitsunday, and for the first half-year the tenant has only the pasture and the houses. During that time he buys his ploughs and all his implements, and he puts manures and seeds in the land. Even supposing he has paid for his seeds and manures, they are still in the land, and the landlord has the advantage of the security of these. The only thing the tenant has to get the rent out of is the following crop, which the landlord could seize to pay his rent. When a tenant fails, the landlord very often gets back his land in as good a condition as it was when he let it. I don't think landlords are particularly careless in their selection of tenants. I think they would take the best man if he would give the same rent; but there is a tendency, more particularly in the small farms, to take men who bid the highest rent, though they have not ample means. Some of the tenants who are selected are farmers, and others belong to different professions. Of those who come from other professions, I think there are as many successful as unsuccessful. My opinion is that arable land is let too high in our district at present prices. I don't think farmers are making their own within the last few years, and it is that to which I attribute the failures, except in cases where they are working with stock as well as grain. Small farmers, paying £100 a year of rent, cannot pay their rent off grain. There are a good many small farms in Kirkcudbrightshire—I mean farms under £150 a year. They pay fore-rents the same as the others. A few of these farmers are men who have risen from being farm-servants. I don't think they are prospering; and I attribute that to want of capital, and to their having to pay their rents off grain. They do not get the advantage of cattle and sheep, their farms being too small. I don't think it would be an advantage if their farms were back-rented. They would just get the farther behind.

To Mr Carnegie.—It is owing to the present grain prices that they are doing so badly. Farmers with from 200 to 400 acres have not suffered so much by the bad years, because they keep cattle; but the small farmers suffer greatly.

To Mr M’Lagan.—We had at one time very few dairy-farmers in Kirkcudbrightshire. The dairymen came generally from Ayrshire. Small farmers in our district keep Galloway cows, and breed their own cattle, and sell them. The cattle have been selling pretty well; but they have not been paying so much as sheep. There are two systems of rotation on our farms. In the five-year rotation they have two-fifths in white-crop, one-fifth in turnips, one-fifth in hay, and one-fifth in grass. Some farmers sow out in seeds, taking a crop of grass in place of the grain, and grazing the sheep.

To the Chairman.—There has been a good deal of talk about the law of hypothec in our county since this Commission was opened, but not before. Till very lately we had almost no failures. For twenty years I did not make £400 of bad debts, and there was nothing to call up the question. When I took my farm in 1844 on a nineteen years' lease, I paid £185 of rent; and interest on drains, £11, 2s. The adjoining farm was rented at £110, and £35 for interest on drains. These two farms form my present farm of Grange, of which the rent is £487. I consider that, since the introduction of artificial manures in 1829, farmers have been gradually getting into a better position. Five years ago the law of hypothec was not spoken about, because there was no occasion for doing so. But since then manure and tile merchants, finding that grain farmers were getting weak, thought that it was unfair that they should supply the very articles which enable the farmer to pay an advanced rent to the landlord, and that, in case of a tenant's failure, the landlord should take everything. Q. Can you not avoid that loss by being cautious with the people you deal with? – A.. If I sell on credit to any man, I run the risk of losing, and I don't see why the landlord should not do the same. I don't see why he should be protected at the risk of other merchants, when he can sell on his own terms. I can sell my manure for cash, or at six or twelve months' credit; and if I take the higher price for the greater risk, the fault is my own. A landlord is in a precisely similar position. He can demand the rent the day the tenant enters (and a great many of our farmers could pay at that time); or he can demand it six months afterwards, making the rent a little higher; or if he does not ask it for twelve months, he will get a still higher rent. I do not think it would be for the benefit of agriculture if landlords did not grant leases; and I am sure landlords would not refuse to grant leases even if the law of hypothec were abolished, because they would get less rent without them. A landlord grants a lease in order that he may get a higher rent.

To Mr Hope.— Inour district, farmers pay the whole year's rent before they get any advantage at all. We enter at Whitsunday to the grass land, which is very little. If it is a five-years' rotation, the grass is only one-fifth; or, if it is a six-years' rotation, only two-sixths. Then we get the fallow land, for which we have to buy the manure, and we have to work it. We have to buy the former tenant's crop; and we put in another crop the following spring, which is not reaped till autumn. Generally speaking, the landlord is bound to take the waygoing crop at a valuation. Q. Then the tenants, seeing that they have paid the rent before that, will generally leave the farm with a considerable sum of money?—A. Yes, of course. Q. And you run less risk in selling manure to tenants in that position than where they are back-rented ?—A. No doubt of that.

To Mr Curror —Out of eighty farms in the parish of Urr, only seven have descended from father to son. Unless in the case of large proprietors, when a farm is out of lease it is generally advertised, and the highest rent taken. I don't say that is always done. An inferior tenant with less capital is often preferred if he offers a higher rent.

To Mr M'Lagan.—I think the farmers in our district were in a prosperous condition up to 1859.

To Mr Curror.—There is scarcely a farm advertised but there are ten or twenty good men offering for it, to whom it would make little difference if they paid rent the day they entered. There are several Ayrshire men amongst us. What keeps up the competition is this,—that a good many small farmers' sons go into England, take up another line of business, and, on their return to their own district, they take a farm, which causes a change of tenants.

To the Chairman.—A great many of these men make good tenants. They are farmers' sons, and come back to the vocation which they followed originally.

To Mr M’Lagan.—It would make exceedingly little difference in our district whether there was a law of hypothec or not. As to all farms above £300 of rent, I believe it would make no difference, except the interest of the rent if it was paid half a year sooner. The landlord might think prepayment necessary if the law were abolished.

To Mr Curror.—The reduction of rent, in consequence of the earlier payments, would not amount to more than from 5 to 7 per cent. On small farms it would make a difference, because they go in with less capital; but I have very seldom seen that a man in my neighbourhood, with too little capital, did any good to himself, the landlord, or the nation, because he never fully develops the resources of the soil. There are a good many £50 and £100 farms, though they are rather diminishing. One or two of the parties included in my list of bad debts were in Dumfriesshire, but most of the debts were due in Kirkcudbrightshire.

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