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The Crofters Act in Shetland
From the Scottish Review (1890)

NOW that the Crofters Commission have issued their Parliamentary Report upon last year's work in Shetland, we propose to summarise the results of their visit to the island, and to point out the effects which the Crofters Act has had, and probably will have, upon the relations of proprietors and tenants, upon the circumstances of the latter, and upon the prosperity and progress of the island. According to the Report the Commission dealt with 1330 applications to have fair rents fixed, embracing 7057 acres of arable land, 15,031 acres of outrun or cow's grass, and 123,420 acres of hill pasture, with the result that a gross rental of £6917, payable by 1328 Crofters, has been reduced to £4990,—a reduction of over 27 per cent.; while arrears of £6438 have been reduced to £2323,—a reduction of over 63 per cent. A discussion of the merits of these decisions, incongruous as some of them appear, would serve no good purpose, as the Commission give no reasons for any of their decisions, and we prefer rather to enquire, what, now that the general result of the Commissioners' visit is known, is the effect likely to be produced by their action.

To rightly appreciate this, one must first consider the nature of the right of a Shetland Crofter, his manner of life, and his means of livelihood in the past. The 'Holding' of a Shetland crofter consists of three distinct items—first, his house and patch of arable land, (sometimes enclosed but more often not) upon which he raises his grain crop, potatoes, and cabbages. Of the quality of the grain, little can be said, but it must be borne in mind that the statements of the crofters, that in many years they make no meal from their crops, are quite misleading to one not acquainted with the island. These crops, although in some cases used as human food, are in the main not grown for any such purpose, but in order to be used as fodder for the stock through the winter. Next comes the ' outrun ' or cow's grass, which may be separately enclosed, but more often is simply a portion, well-known by its own boundaries, of a general outrun pertaining to a township of from two to twenty or more crofts, the whole of which is enclosed into the township by a fence, or by the old ' hill-dyke,' built of turf and renewed from year to year. Lastly comes the 'scattald right' or right of pasturage over a large tract,—it may be thousands of acres, of rough hill pasture lying outside the hill dykes, in common not only with his fellow crofters of the township, but with those of other townships bordering on the scattald, and, it may be, belonging to different proprietors. Upon this scattald the crofter may keep a stock of sheep and ponies all the year round; and in summer he may use it partially for his cattle and for flocks of geese fattening for the Christmas market. The peculiarity of this right was that it was entirely vague and undefined as regarded the number of sheep or ponies which each crofter might pasture, and gross inequalities existed; such as that one of two crofters paying similar rents had one hundred or two hundred sheep, while his neighbour had only ten or a score. In some cases, a slight attempt at regulation had been made, but of the estates dealt with by the Commission, on only one, that of Lunna, had an actual allotment and limitation of stock been made and enforced. The reason of this is twofold. In the first place, by the traditions of Norse law, still handed down in the island, the free use of the scattald is said to be the inalienable right of the occupiers, and all attempts at limitation of that right have been invariably objected to by them; and, in the second place, the expense necessary for effective regulation is so great as to act as a deterrent. Because, before anything of the kind is possible, the 'common rights' of several proprietors over the whole scattald must be converted by the Court of Session into absolute and exclusive rights to each proprietor, over a definite share set apart to him by an expensive process of division, and thereafter his absolute right thus ascertained must be protected by, perhaps, miles of wire fencing. Thus it happened that over nearly the whole of Shetland the crofter's scattald right was at the passing of the Act quite indefinite, or limited only by the ability of the crofter to acquire stock on the one hand, and the right of the proprietor to raise the rent upon, or to evict, a large stock-holder upon the other.

Of modes of life among Shetland crofters there are two distinct varieties,—that of the seafaring man, who goes from home to the different fishings at the proper season, or, as is quite common, on a voyage to a foreign port; and that of the man who stays at home, attending to his croft and stock, and only fishes occasionally from a small boat, or takes up some such local trade as carpenter or mason. The former depends upon the sea for his livelihood, and holds a croft principally as a home for his family, though, by himself, or his grown-up children, he may raise small crops and keep cows and a small sheep stock. The latter, of whom the number is comparatively insignificant, devotes his attention mainly to the croft and scattald, and derives his living from the sale of cows, sheep, ponies and geese reared thereon, as well as of woollen goods or Shetland tweed, grown and spun, and knitted or woven at home, all by members of his own family. The fishing he looks to more as a means of procuring food, though he may also earn considerable sums by the sale to local dealers of his fishes. What effect then will the reductions of rent made by the Commission have upon the circumstances of these crofters ? The answer must be that it will be very slight. If it had been the case that the average crofter depended for subsistence upon the produce of his croft only, the reduction of rent would have borne such a ratio to his income as might have created the difference between hardship and a reasonably comfortable existence. But, as every one acquainted with Shetland knows, the sum in question, when compared with the sums earned by the average crofter and his family, and spent upon food, clothing, and luxuries, is of no practical significance. The man who was comfortable under the old rent will have a larger sum to spend; the man who was poor will be poor still.

But the effects of the Act are further reaching than the mere matter of rent. It alters the relations of landlord and tenant in many important particulars, aud it is with this alteration that we propose to deal. Prior to the passing of the Act, the landlords had in their hands an almost unlimited power over the tenants; and exercised, whether for good or ill, a species of patriarchal government; its sanction being the power to evict and remove from the district any crofter who disputed his landlord's authority. The Crofters Act abolishes this power of eviction : and now behind his security of tenure, the crofter laughs at all regulations made by the proprietor., except such as the law expressly forces him to observe. Many and deep were the complaints before the Commission of the manner in which landlords had in the past exercised their powers, and, it must be admitted, not without foundation in some instances. As the Crofters' Agent, in his opening speech before the Commission, put it—' Shetland, the chosen home of the Truck system in its worst and most oppressive form, is likewise the last resort of the exploded doctrine of the divine right of landlords. Practically there has been a state of semi-serfdom. While the Crofters Act operates in other counties as a measure of agricultural relief, in Shetland it is in reality an Act of emancipation.' And certainly were the evidence given before the Commission to be accepted as correct, the statement was not too absurdly exaggerated. But after perusal of the whole evidence, as reported almost verbatim in the local papers, one is forced to the conclusion that though the crofters were ruled with a stern hand, only a few cases of hardship or oppression have been established, and that upon the whole this patriarchal government has been for the good of the people themselves as well as for that of the proprietor. Never, perhaps, was it more necessary at the close of a judicial inquiry to keep in mind the maxim, Audi alteram partem. The object of the inquiry was to fix fair rents, and the proprietors' agents appeared in court for this purpose only. They had no knowledge of what complaint or grievance might be brought up by any crofter, and could only contend to the court, though as it proved in vain, that evidence of events occurring thirty or forty years ago was quite irrelevant to the questions before it. So far as the local reports show, no proprietor took the trouble to lead counter evidence upon these matters, but in many' cases a cross-examination of the witness entirely changed the whole bearing of his story. Thus at a sitting upon the Busta Estate at Brae, a crofter complained that he had been forbidden, on pain of eviction, to fish for haddocks in the voe or bay opposite his croft, putting this forward as a monstrous example of landlord oppression, and also as an explanation of his inability to pay rent. On cross examination this man admitted that the prohibition was against ' long line' fishing, and had been issued by the factor on the estate, at the request of his own neighbours. They desired the fishing in the sheltered voe to be preserved, as it always had been, for 'hand line' fishing by the old men of the township for food, and objected to its being ruined by crews fishing for the market, whose boats were able to go out to the regular fishing banks. Moreover, it appears that the prohibition was only the enforcement of the old 'County Acts' of Shetland, chapter 33 of which enacts ' That none fish with haddock lines within voes from Belton (Whitsunday) to Martinmas, or as long as they can draw haddocks on hand lines, under the like pair; of ten pounds Scots.' Again, many complaints were directed against the system of monopoly of trade and fishing which formerly existed, an example of which we may give from the report in the Shetland News of the evidence of Gilbert Stout, an old man of about seventy, examined at Yidlin on the estate of Luuna.

'He had brought ashore 17½ tons of ling in one season, and he could have had 7s. per cwt. paid down every voyage when he came ashore with the fish, but when he came to settle at Martinmas Mr. Robertson's (the tacksman of the store and fishing station) offer to him was 5s. That was when they were bound to fish for Mr. Robertson. When they went to sea they were from one to three nights off, in a boat 18 or 19 feet keel, and sometimes 40 miles off. They had no food but a little meal and water, and when they came on shore they would be so bad that they would have to help each other out of the boat. They could not take so much fish out of the boat as could save life.'

The Chairman. ' Do you mean to say that when you came ashore from the fishing exhausted, having had nothing to eat but meal and water, you were not allowed to take a few fish?'

Witness. 'No I was not allowed to go out of the boat for fear of my warning.'

No questions were asked of the witness, but the Mr. Robertson referred to on hearing of the accusations made against him, lodged with the Commission an affidavit in which he states: 'The deponent never paid a lower price for his fish than others. He always paid the "currency" that was fixed at the end of each season. In conformity therewith the deponent invariably paid his fishermen the same 'prices as were paid by the leading curers in Shetland.' It further appears that at no time were fishermen prohibited from taking fish for food for themselves and their families, and Stout himself afterwards explained that by the expression ' So much fish as could save life' he meant so much as would buy some whisky or gin to revive themselves—a very different thing. Again, Alexander Lawrenson complained that he had been oppressed to pay up a debt of £22 due by his deceased father.

'There was £6 allowed by the Shipwrecked Mariners Society, and he (Mr. Robertson) got that too. He was agent here and took it. He would not allow my mother a single penny. She asked for a pound to buy meal with, and he would not give it. He offered her a shilling when she went out, and she would not take it. We never thought of making any complaint. She was a widow and I was a young boy at the time, and what could we do?'

On the following clay this witness was recalled and confronted with Mr. Robertson's ledger, which showed £1 actually paid out of the fund to the widow. Being pressed to explain how he came to make such an erroneous statement his only explanation was 'He could say nothing but what his mother said, and it had slipped by her mind.' From these and similar instances it is clear that the oppression of which the Crofters complained was grossly exaggerated, but allowing for this, there is no doubt that in many cases they were ruled with a severity not to be tolerated in the South. As we have said, all this is now a thing of the past, having fallen with the fall of the power of eviction. No proprietor can now enforce any regulations save such as the Crofters' Act or the Common Law allows.

Let us see what will be the result of the changed conditions. First and most important, perhaps, is the removal of the monopoly of trade, constantly held up to the Crofter as an immense boon conferred by the Act. The very idea of a landlord-created Store from which, under pain of eviction, all goods must be bought, and to which all produce for sale must be taken, is repugnant to Southern ideas of freedom, but much is to be said in its favour as suited to the peculiar circumstances of Shetland. Take the case of the Store at Yidlin, of which the complaints before quoted were made. Prior to its erection the Crofters in the district were from twenty to thirty miles from a market at Lerwick without regular means of communication, and for their supplies were dependent on a Store at Voe, some five miles distant from Yidlin, and twelve miles from the furthest point of the Yidlin district. For the good of the neighbourhood the proprietor erected, at a cost of several hundred pounds, a commodious place of business, and arranged for a substantial tenant, who could afford to keep proper supplies, and would encourage fishing industry by purchasing and curing fish on the spot. Such an undertaking could only be successful if it drew to itself the whole trade of the district, and so a monopoly in its favour was created by the simple means of threatening those dealing elsewhere with eviction. This power of eviction having been abolished, as a consequence small shops are being opened in crofters' houses all over the district, and travelling vans with groceries are seen throughout the country ; while the fishermen carry their catches to any dealer who appears in the district promising (but as they have already found out to their cost, in at least one instance, only promising) higher prices than the 'currency,' that is, the average price struck by the principal dealers at the end of the season. In the meantime this competition benefits the crofters and damages the store; but a different story will be heard should a poor harvest be followed by a severe winter. Then, as formerly, the crofter will repair to the store for goods on the credit of his cow to be sold next summer, or the- fish to be delivered in the spring, only to find credit refused; because the merchant has no security as he formerly had, that the cow or the fish will not go into other hands than his, and he has no desire again to see what has been too often seen already, customers deep in his books for winter supplies on credit crowding round a travelling van or into a crofter's shop with their ready cash. Few of the crofters in outlying districts can get through the winter without credit, and it will be a bad day for them if the stores held by substantial men are closed owing to the competition of small traders, who in prosperous times may tempt them with apparently, and for the time probably in reality, better value, but who will certainly disappear whenever the pinch of an adverse season is felt. The commissioners, somewhat out with their province, have set their faces steadily against these monopolies and have encouraged the crofters everywhere to break them down and establish free competition, but competition by half a dozen traders in a district with resources only for one is a process with a too certain conclusion, and the crofters may find the privilege of being free to deal where they please only too dearly purchased in the result. Meantime (a matter of no concern to the Commission) the store tenants cannot out of their diminished business pay then' rents, and the proprietors are deprived of a reasonable return upon their capital expended for the good of the crofters, while in no case have the Commission imposed a shop-rent upon a trading crofter.

The second consequence to be noticed is the abolition of the proprietors power to regulate the use of the scattald or take measures to prevent its deterioration and destruction by excessive stocking. As has been already stated, the crofter's right of pasture, at the passing of the Act was an indefinite one and not much interfered with, but still the proprietor had the control by means of his power of evicting, or raising the rent of the offending tenant. The circumstances of each tenant and the benefit got by him from the scattald were known to the proprietor or his factor and considered in fixing the rent, so that, although discrepancies undoubtedly did exist, the rough result was reached that the tenant with a large croft and paying a large rent had more sheep and consequently a larger share of scattald than his neighbour of the small croft and the small rent. As the Act had destroyed this power, certain of the proprietors applied to the Commission to have the tenants' scattald rights defined so that it might be known what exactly was the ' holding' including scattald for which a fair rent had been fixed by them, and urged this as imperatively necessary, because otherwise the proprietor could have no check upon an over-pasturing tenant. This application the Commissioners refused, and in their decision they ' Declare that in fixing the fair rents, due regard was had to the amount of stock which the scattald could probably cany, and that the right of each tenant was apportioned in equal shares.' What that 'equal share ' for which rent is being paid may be, depends entirely upon the quantity of stock the pasture can properly carry, a point upon which probably no two men would agree; and if a proprietor attempt to limit a tenant's stock on the ground that he is exceeding his proper share, the tenant may retort that that is a matter of opinion ; he thinks he is not exceeding it, and his opinion is as good as the proprietor's. In this state of matters it is difficult to see what legal remedy the proprietor can have short of a formal action in Court against all his crofters, to have it declared what is the extent of each crofter's right in the scattald, for which a fair rent has been fixed by the Commission ; in other words, to have it judicially declared what number the Commissioners had, or ought to have had in their minds in fixing the rent; certainly as peculiar an action in Court as one could well imagine. Some number they must have had in view in making their valuation, and why they should have declined to make this number known is not very apparent. It is understood that the Commissioners so acted because they were of opinion that the terms of the Act precluded their interfering with the crofters' rights of pasture as they found them. But that is exactly what they have done. As we have pointed out, the seafaring man, with almost no stock, had his rent fixed upon that basis by the proprietor. Now, whether he wish it or no, the Commission say he has an ' equal share' in the scattald with his neighbours, and presumably they have in the fair rent made him pay for this increased pasturage, which he will never use and cannot sub-let. So that, as matter of fact, they have completely dislocated existing arrangements without giving any compensating advantage, such as would have resulted from their fixing the number of stock which each crofter should be entitled to keep. Neglect of the pasture is certain to follow ; the landlord has neither interest nor power to interfere, and confusion worse confounded is all that may be looked for in present circumstances. The larger tenants will crowd out the smaller, and pasture and stock will deteriorate; until, by a severe winter, Nature herself will 'regulate' the number of stock in a manner disastrous to its owners.

The fact is, and every day is shewing it more clearly, that the Act has been framed without anything like clue consideration of what its effects would be, and without even knowledge on the part of its framers of the circumstances and economy of the districts which were to come within its scope. Conclusive proof of this is found in the third consequence to be noticed. The Act assumes that the houses and out-buildings upon the crofts have been put there by the tenants ; and imposes upon them the duty of maintenance and up-keep under penalty of eviction. Such a condition is natural and proper enough to the ordinary croft in the Highlands of Scotland, where the proprietor has simply given off a patch of land, and left the tenant, with the assistance of his neighbours, to put up dwelling-house, outbuildings, and dykes, all of the meanest description, and, in fact, to ' make the place,' such as it is. But it is entirely unsuitable to many districts in Shetland, where the custom has been for the proprietor to contribute more or less to the erection and repair of the dwelling-houses. Thus it was proved, again and again, before the Commission, that the proprietor had paid for skilled mason work, and provided couples and boarding for the roofs, and lime for the walls, while the crofter had given merely his unskilled labour, in carrying stones and cutting and preparing the turfs or 'pones' placed on the roof under the thatch. The most striking case, however, was the estate of Lunna, where within the last forty years, almost every house had been entirely rebuilt at the expense of the proprietor, and rebuilt in an improved style, with proper rooms, windows and fire-places; every scattald had been divided from adjacent properties by authority of the Court, and had been enclosed to its own townships by miles of expensive wire fencing; while many of the townships themselves had been completely fenced in. Upon these and other improvements it was shown that a sum of over £12,000 had been expended, besides an average annual sum of £130 upon current repairs. In fact, it is not too much to say that many of the crofters there are better housed than small Lowland farmers. By the Act, all this is stopped. On the one hand the rents have been reduced some twenty-six per cent., depriving the proprietor of any fund for repairs, and on the other hand, the burden of maintenance is laid on the tenant. Let any proprietor who takes an interest in his property think what that means. No doubt the Act is stringent in its penalties for dilapidation of buildings, but it is idle to suppose that crofter tenants, under any pressure whatever, will keep up the buildings in their present condition, and the inevitable result will be that the proprietor must stand idly by and see his property, as he has already seen his rents, revert to the condition of 40 years ago; the scattald again open to trespassers from all quarters, the house gables composed of loose stones and turf,—a tragic result, surely, of Liberal legislation.

The fourth consequencc to be noticed is that a limit has been put to the creation of small farms. Hitherto it has been a common practice as opportunity offered to throw three or four crofts into one, and enclose off to them a proportion of the general Scattald to be occupied by some industrious Crofter as a small farm at a rent varying from £10 to £40. These graduated farms formed stepping stones to greater things, and the present position of many a large farmer now paying rent in hundreds of pounds is owing to their existence. They offered to every Crofter the chance of bettering his condition, and the prospect of obtaining a farm formed an inducement to industry and good cultivation. Now, however, no enclosing hand can be laid upon the scattald which belongs to the Crofters in perpetuity, and the Act has stopped the creation of these very holdings for which outcry is being made.

One other indirect consequence may be noticed, the maintenance of order and good relationship in a district. Under the old system disputes of all kinds were brought to the proprietor or his factor for settlement, and decided by him in an informal manner. If a man proved himself a bad neighbour and created disturbance or annoyance, a notice from the factor was sufficient to restore peace, and even matters of criminal law, such as assaults or petty thefts, were commonly judged by him without the intervention of the law—a species of jurisdiction favourably regarded by the communities as being the remains of the old Norse system of ' Rancelmen' or local keepers of the peace. Here again his power is gone. He may reprimand the culprit as he please; without the power to evict it is a mere brutum fidmen, and now his only answer to complaints is of necessity ' the Law is open let them implead one another.' What that means in a district forty miles from the seat of justice, communicated with by foot roads and open boats, cannot be understood by one living in a land of railways. Many a grievance is endured from inability to obtain redress, and the peace of many a district has been destroyed simply because there is now no authority available to which the well disposed majority may appeal against perhaps one mischief maker. On the other hand the number of cases of petty assault and mischief, arising from disputes among neighbours, tried in the Sheriff Court has visibly increased, and the cost of sending officers of Court to outlying districts, and of bringing the culprits and witnesses long journeys to the county town, swells the rates and increases the burdens of the unfortunate landlords.

What then are the nett results of the Act and its administration. As direct and intended results, the crofter has received two distinct benefits (first) reduction of rent, and (second) security of tenure, which enables him to resist the regulations of his landlord formerly enforced by eviction. As indirect results, (first) by the prevention of monopoly the proprietors are discouraged from the expenditure of capital in developing the resources of outlying districts by the establishment of stores, fishing stations, or the like: (second) they are deprived of all control of their property so far as consisting of scattalds, and the crofters are left to dispute among themselves how the stock on each scattald is to be regulated ; (third) the burden of building and maintaining dwelling houses, etc., has been thrown exclusively on the crofters; and (fourth) the settlement of all local disputes has been taken from the proprietor and left to the decision of the Courts of Law. We are safe to say that were a poll of the whole crofters taken upon the last three matters a conclusive majority would be given in favour of their former position; and as to the first, we have little doubt that a few years' experience of open competition will convince them that though they may have suffered grievances under the old system of monopoly these were as nothing to the hardships under the new. Already they are beginning to express their dissatisfaction, and at a meeting of crofters recently held at North Roe, the following resolution was passed: ' That the present Crofters Act is unsuitable to the islands as evidenced by the decisions arrived at by the Commission ; and, that a petition be drawn up and signed by the crofters and presented to our member of Parliament requesting him to use his influence to have the present Act amended, and therein show reasons why and how the Act is unsuitable for the islands.' On the landlord's side again all is to his disadvantage, and the result, it is to be feared, will be, that he will consider himself absolved from the duties If land-ownership and regard himself more as a creditor having a fixed charge upon the land. A proprietor cannot be expected to take an interest in the condition of an estate, the control of which has been to such an extent taken out of his hands ; nor can blame be attached to one who declines longer to live in a district with tenants who openly defy him, who laugh at his well-intended regulations, and whom he cannot interfere with in the slightest degree. It is not to be wondered at if some landlords, exasperated at their treatment by the legislature, carry out their intention already declared of ceasing to trouble themselves with property which is no longer really theirs, further than to insist upon regular payment of the fixed rent, and of refusing to expend one penny upon management or improvements. Better counsels, however, it is to be hoped, will prevail, and if the crofters, having in open court 'cleansed their stuffed bosoms of that perilous stuff' of old grievances and oppressions, resume their former friendly relations with the proprietors, and set themselves steadily to work to make the most of the crofts now practically their own, in time matters will again settle down.

Meantime, the present dislocation of everything should give pause to eager land reformers, who see no difficulty in 'nationalising' by a short Act of Parliament the whole land in the kingdom. Let them carefully consider the far-reaching results of this comparatively simple Act of Parliament, intended merely to confer fair rents and fixity of tenure, the disturbance it has created in the economic and other relations of the districts affected, and the uncertainty as to the legal rights and obligations of the different parties, and then seriously calculate what, in the same proportion, would be the "effects of a general alteration of the land laws. A system which is the gradual development and embodiment of the habits and customs of centuries of patient and honest life and work, must have its roots deep down in the social fabric of the nation, and only with the utmost diffidence and caution should amending hands be laid upon it, even under pressure of grave and apparently absolute necessity.

W. Kinniburgh Morton.

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