HL Deb 01 August 1872 vol 213 cc232-44
THE EARL OF LEITRIM

I feel some difficulty in undertaking the task which I have imposed on myself in bringing so vast a subject under the notice of the House, and asking your Lordships to consider not only the Report of the Committee, but also the working of the Landlord and Tenant Act of 1870. A discussion took place in this House on the 3rd of June, in which I took no part, and the result of that debate was that a Committee of your Lordships' House was appointed to inquire into the working of the Landlord and Tenant Act, 1870. I have a copy of the Report of that Committee, which was ordered to be printed on the 18th of July. I understand that the Appendix is not yet printed, and I regret that I have not an opportunity of referring to the evidence before your Lordships' Committee. No doubt, there may have been some very valuable testimony collected with reference to this Act, as it appears that members of the Judicial Bench and Chairmen of the Quarter Sessions were examined; but whatever were the labours of your Lordships' Committee, I believe that all will agree that the offspring is the very smallest that any mountain in its labour ever produced after so many weeks trial and sorrow. I observe that amongst other information they obtained Returns from the Clerks of the Peace, and if they prove to be worth the expense of printing, I shall be very much surprised. I cannot conceive that they will show anything more than a schedule of the cases brought to the Quarter Sessions, and an index to the cases of all kinds tried under the Act of 1870. The Committee state that they confined their inquiry solely to the working of the Act, not to its defects. I apprehend that they must have had some difficulty in avoiding the defects, if they properly examined into the working of such an imperfect machine. They must be a very peculiar body who could examine the working of an engine without observing the faults and imperfections in its construction, and finding it to be their duty to make them known, and report its improper construction, its want of connection between its several parts, and the destruction to property that it was calculated to create in the progress of its work. The Committee, however, admit that they found it impossible to close their eyes to the obscurities of the Act, and that their vigilance detected some few defects, some two or three of which they approach with the timidity of the youngest and gentlest of the softer sex. Their first objection is the primary Tribunal for hearing land cases, and they are of opinion that the Court of the Chairmen of Counties is unsatisfactory. They were no doubt right in entertaining that opinion; but the Committee came to the peculiar conclusion that although it is not satisfactory they do not think it expedient to make any change in the construction of the Tribunal. They subsequently, however, put a postscript to their Report, and recommended that the Chairman should be empowered to reserve a case on a point of law directly for the Court of Land Cases Reserved. This modest recommendation is some little change in the Tribunal of First Instance; but I cannot understand why the matter of fact should not be sent to the Court above as well as the matter of law; and as the matter of law may depend very much upon the matter of fact, it would appear a more just course to allow the whole case to come to a new hearing in the superior Court, and I do not think that the owners of property in Ireland should be satisfied with less. Hitherto, the Chairman of Quarter Sessions was limited in his jurisdiction to sums not exceeding £40; any matter which involved a question of title, no matter how small, was entirely outside his jurisdiction, and he could not entertain it. The Act of 1870 places the Chairman in quite a new position—as new as that of the owner of an estate and his tenant. The Chairman is now entrusted to adjudicate on matters of title of the most peculiar and novel character, and required to define title the most difficult and subtle that can be well imagined. They are empowered at their will to confiscate the estate of the landlord, and to hand over to the tenant more than the value of the lands. Under these circumstances, it behoves your Lordships to examine into the nature of the Court of Quarter Sessions, and the character of that Tribunal. The Chairmen are appointed by the Government, at salaries varying from £700 to £1,100—thus there are 8 at £700 a-year; 10 at £900 a-year; 15 at £1,100 a-year; total 33, at £31,000. These 33 gentlemen preside over 151 Courts of Quarter Sessions in various parts of Ireland, and in some of these towns there is not accommodation for the litigants, who must in consequence travel considerable distances every day of the sessions. The Chairman is rarely assisted by any other than local attorneys, and consequently it frequently happens that he is obliged to postpone a case at trial, until he returns to Dublin to consult the authorities. It is to a Court of this character that the Legislature has entrusted the disposal of the land in Ireland, and to decide if it is to belong to the land-land or to the tenant. It becomes necessary, therefore, to inquire what the Act of 1870 has directed shall be done in respect to this primary Tribunal? The 22nd section directs—"That for the purposes of this part of this Act the Court shall mean—the Civil Bill Court, &c." The 23rd section gives the Chairman authority to administer an oath, &c.; the 24th section provides for an appeal; the 31st section empowers the Judges to make rules for the proceedings—1st, in the Civil Bill Courts; 2ndly, for proceedings in appeal; 3rdly, for proceedings in land cases reserved; and 4thly, as to any other matter or thing, whether similar or not to those above-mentioned. These rules, when made, have all the force of an Act of Parliament. The Judges have made rules, and they have ruled— That all applications and disputes under the Landlord and Tenant Act, 1870, in the division of the county where the land, or some part thereof, is situated. This rule I think highly inconvenient not only to litigants, but also to the administration of justice, in consequence of the very great number of Courts of Quarter Sessions and the peculiar and varying arrangement of the districts; so that in many instances the Court is held in one town, and at another period in another town of the same district, and occasionally adjourned from one town to another. In considering this matter, I must observe—and I wish Her Majesty's Government to take notice—that the 62nd section of the Act has not been brought into operation. By that section, it was enacted— For the purpose of carrying into effect the provisions of this Act, the Judges of the Civil Bill Courts in Ireland shall, in addition to the Civil Bill Courts now by law directed, hold such Courts, in such places, within their respective jurisdictions as may be prescribed by the Privy Council in Ireland. That provision has been altogether neglected, and the Judges have, by their rules, most imperfectly provided for this serious and flagrant omission by their 2nd rule; directing that— At each ordinary Sessions, now held in each year, there shall be for each division of the county in one town in such division a separate part of such Sessions for the disposal of business under this Act to be termed the Land Session. This arrangement is most objectionable, and how far the Judges are justified in making this rule, in the absence of the action of the Privy Council, it is for your Lordships to consider. But I think that it would be highly desirable that the Privy Council should be put in motion, and that the Court for hearing and determining land cases under this Act should be held in the county town apart from all other business, or of an ordinary Civil Bill Court, and that every opportunity should be afforded for the attendance of the members of the Bar, to assist the Chairman and to protect the interests of the litigants. It is a matter for consideration, if ejectments on title should not be heard at such Land Sessions, and if such an arrangement would not save expense. I now come to the second appeal objection taken into consideration by the Committee of your Lordships' House—namely, the appeal to the Judge of Assize, and in this I regard the Act as exceedingly defective, inasmuch as the 24th section gives to the county of Dublin an appeal to two Judges of the Superior Courts of Law. To the other counties of Ireland it gives the appeal to the Judges of Assize; then the Act further states that such appeal may be heard by one of said Judges; but in case any question of law shall arise upon such appeal, the Judge before whom such question arises may, if he thinks fit, require that the same shall be heard and determined by both the said Judges, and thereupon such question shall be heard and determined by both the said Judges, who shall, for such purpose, sit together. This section proceeds to provide for a further appeal to the Court of Land Cases Reserved thus—"the Judges to whom any such appeal may be made, may, where they deem it expedient, reserve any matter or question arising upon such appeal by way of case stated for consideration of the Court of Land Cases Reserved in Dublin." Thus, your Lordships will observe that, in matters of appeal from one Judge at Assize, the Judge may, "if he thinks fit," require that the same be heard before both Judges, and the two Judges "may, when they deem it expedient, reserve any matter or question arising upon such appeal by way of case stated for the consideration of the Court for Land Cases Reserved at Dublin." It is clearly intended by the Legislature that this should be a very effective Court of Appeal; that in all difficult cases the two Judges should sit together; and that if any peculiarity in the case should appear, that the Judges should "reserve such matter or question" for the consideration of the Court for Land Cases Reserved at Dublin. It appears from a Return that has been made to the House of Lords, upon an Order bearing date the 10th of May, 1872, that there have been two instances only in which the Judge of Assize has refused to allow of the case being sent to the Court of Land Cases Reserved—one, that of William Fleck, claimant; The Baron O'Neill, respondent. It appears, in that case, that the Chairman awarded to the claimant £100, and that, on appeal, the Judge increased the award to £125 7s. 2d.; but on what grounds it is not shown, or why the appeal to the Court of Land Oases Reserved was refused. With respect to the second case we are better informed. It is that, now notorious case, of Hugh Friel, claimant; The Earl of Leitrim, respondent. As this case is now a matter of history, the law has taken its course, and the decree satisfied—the land surrendered, and the cabins on it levelled to the ground. I apprehend that I have just as good a right to refer to this case as any other matter of history, or as to any other case in which any other persons might have been concerned, or as if the case had occurred 50 or 100 years ago. At the same time, I wish it to be clearly understood that I wish to speak with the greatest respect of Mr. Justice Lawson; and, although I object to his views, his Judgment, and his acts, I shall argue the matter—or endeavour, to the best of my skill, to do so—without imputing any improper motive to the Judge; but, on the contrary, presuming that he would come to the same conclusions. Supposing the case were that of any noble Lord who now hears me—and it is because I think that Mr. Justice Lawson's acts are dangerous and subversive of the rights of property that I ask your Lordships' attention to his own explanation, given in a letter to a noble and learned Lord not now present (Lord Romilly), and published in The Times newspaper of the 4th of June. He first states that the award was £235. That is an error. It was £250, and is so stated in the Return to your Lordships' House. He states— That the claimant proved that he paid £180 to his brother Patrick for the tenant-right of part of this farm, and that this payment was made with the sanction and approval of Mr. Wray, who was the agent over the estate at the time. This evidence was wholly uncontradicted. The claimant did not produce Mr. Wray to corroborate this statement, though Mr. Wray was summoned by him to the Land Sessions; and it was proved that neither the claimant or his brother Patrick were tenants at the time that this payment was stated to have taken place, neither could the claimant show how the money was paid. Mr. Justice Lawson proceeds to state— The claimant was served with notice to quit because he had given shelter to his brother after he was evicted. This statement is inaccurate. I stated in my evidence that several attempts had been made to murder my servants, and that it was in consideration of these outrages that I caused a notice to quit to be served on the claimant, and it was on account of my desire to protect my servants' lives from such murderous attacks—when the police and the laws of the country had failed—that I wished to remove this family, who have been now rewarded under the provisions of the Landlord and Tenant Act of 1870. I was indignant at an act taken by me for the protection of my servants having been thus misrepresented, and I wish to point out that similar cases are likely to occur, and to take the liberty of challenging the mode of procedure in regard to the provisions of the Act of Parliament. Only a few days since the same Judge tried a criminal case in the same county. A Presbyterian clergyman wishing to sell his holding, the permission to do so was withheld, and thereupon came a man, who came from America, with a revolver, and avowed his intention to shoot somebody; but whom he wanted to shoot did not appear to be known. Two policemen who were on duty arrested a man who was intoxicated in the town of Milford. The man who came from America interfered, together with two of his brothers. He fired at the policemen, missing one, and mortally wounding the other in the back. An attempt to rescue the murderer from the police was made by his two brothers, and it was only by the interference of a gentleman, who had witnessed the latter part of the transaction, that he was secured. But there was no conviction for murder, for the man was merely found guilty of manslaughter, and the aiders and abettors of the crime only received 12 months' imprisonment. Of course, if that kind of government were to continue in Ireland, murder would increase to such an extent that people in the upper classes of society in that country would have to take to shooting those inclined to attack them, and perhaps nothing but the shooting of one or two persons in that way would put an end to this very Liberal system of Government. Mr. Justice Lawson states that a respectable surveyor swore that the profit rent of the claimant's farm was worth £19 7s. 6d., and that the tenant-right would sell for £278; and it appears by Mr. Justice Lawson's letter to Lord Romilly, and used in debate in your Lordships' House, that it was on this fictitious value given in evidence that the learned Judge thought proper to take from me my estate, and compel me to pay to an objectionable tenant more than double its value for a holding on the top of a rocky mountain, unfit for tillage, incapable of any important improvement, consisting of 32 statute acres, let at the rate of 3s. 9d. per acre for the yearly rent of £6 to the claimant as a tenant from year to year so recently as the year 1860, when the claimant became a tenant for the first time on the estate without the payment of any fine or reward to any person whatsoever. It is desirable to bear in mind that this Judgment carries with it the two-fold evil, of an encouragement to the fabrication of a fictitious value, and a strong inducement to great exaggeration; and, secondly, a great discouragement to the owner of lands to let land at a moderate rent, as in the event of his giving it at a low valuation, or in any other way improving the value of the holding to the occupier, he must himself become a loser if he should wish at any future time to resume the possession of the lands thus underlet. Mr. Justice Lawson is good enough in his letter to the noble and learned Lord to express very small consideration for my evidence in this case; nevertheless, I produced the lease of the lands of the date of 1767, which did not expire until the year 1830, or thereabouts. The settlement of the estate dated 1800. It was proved that the lease expired during the lifetime of the tenant for life, and that I, his heir, succeeded to the estate in the year 1854; that the Mr. Wray who he refers to acted as my agent for only two years after my succession to the estate; and that I was not in possession of the estate at the time of the transaction which Mr. Justice Lawson refers to. The accounts of the estate were produced, and it was shown that the widow Grace Friel was the tenant of the holding up to 1860; that she being under a notice to quit surrendered the holding, and a new letting was made in 1860, the holding being divided; part was let to Grace Friel, part to John Friel, and part to Hugh Friel, the claimant; that Grace and John were evicted before the passing of the Act of 1870, and that Hugh Friel never was a tenant until the year 1860. It was upon an observation from Mr. Justice Lawson that my counsel—who, though a junior, is a most able and learned lawyer and an honour to his profession—reminded the Judge that the claimant did get notice that no tenant-right was allowed on the estate by the eviction of his brother John, who got no compensation on eviction; and it was proved that for 16 years or thereabouts prior to the passing of the Act of 1870 no tenant-right had been allowed or claimed, and that it was not the custom prevalent on the estate at the time of the passing of the Act. Mr. Justice Lawson entertained such confidence in his own judgment in this difficult case that he did not think fit to require that it should be heard before both Judges of Assize as provided for under the 24th section; neither did he deem it expedient to reserve any matter or question for the consideration of the Court of Land Cases Reserved at Dublin; although it appeared that there were several points of law not as yet decided—for instance, 1st, Does a period of 16 years prior to the passing of the Act of 1870 constitute a sufficient period by which the usages prevalent on the estate according to the 1st section of the Act should be governed, or does it not? 2ndly, Does a change of tenancy created before the passing of the Act of 1870 destroy a right which an individual may have enjoyed prior to that change, on different lands, and under different circumstances, or does it not? 3rdly, If the acts or omissions of a tenant-for-life under settlements made prior to the passing of the Act of 1870, the estate having passed to the next heir prior to the year 1870, bind the heir as regards the usages prevalent in the province of Ulster, or otherwise? These important points of law Mr. Justice Lawson deemed it to be inexpedient to reserve for the consideration of the Court for Land Cases Reserved at Dublin, and he expected me to prove a negative to an assertion by the claimant that he had paid a sum of money to his brother, at a time when neither claimant or his brother were tenants on the estate, and before I was in possession of the estate, or able to exercise any control over it. Mr. Justice Lawson states that the Ulster custom of tenant-right had always existed on the estate, and on all the estates in the district, notwithstanding that it was proved and admitted that it had not existed for 16 years or thereabouts prior to the year 1870; and although it was proved that the estate was held in Rundale up to the year 1848, when the lands were divided without any compensation being made to the tenants. I have found it necessary to state this case thus fully to your Lordships as a most important matter for your attention and consideration as regards other estates in Ulster, and in Ireland generally. If the property and the estates of the landlords of Ulster are to be confiscated in this way, the sooner they are informed of the fact the better. The Act has already made over to the tenant all the improvements on the holding, which the landlord is unable to prove were made by himself; and as the Chairmen of Quarter Sessions are given the power to legislate and dictate how far the estate shall belong to the tenant, and not to the lessor, the only safeguard that the landlord can have is that of appeal from the arbitrary decision of the Inferior Court to a higher. If that right of appeal is in any way interfered with either by the will of a Judge or by any other cause, it is very much to be feared that the property in an estate will be of little value to the person who was regarded as the owner up to the year 1870. The difficulty which exists in defining what was or was not the usages prevalent in Ulster at the time of the passing of the Act are so great, and the opinions so various, that nothing but further legislation can suffice to prevent the most disastrous consequences and endless litigation and ruin. The longer that the Government delay taking action in this matter in order to remove these doubts as to the intention of the Act, the greater will the difficulties become. I do not see how this difficulty can be properly settled by the Irish Bench, or why the Judges should be called upon to undertake a task which it is the duty of the Legislature to perform; and if the Legislature abdicates its authority in this instance, why should not their determination be made known, and some other form of Government provided other than that of constituting the same persons the makers and the administrators of the laws as regards the rights of property? It may be prudent to appoint a Royal Commission to consider and report upon the extent to which the Ulster tenant-right should be admitted; what should be the maximum award that should be paid to a tenant on his quitting his holding by the act of his landlord; to what extent the usages should apply; whether the custom should apply to an estate, to a particular holding, to a town land, to a barony, or a county. These several areas have been a matter of dispute as to which constitute that which should be the subject of the Ulster custom. The 2nd section would rather tend to the view that it should be the particular holding. That alone should be the subject of contention in the Land Court by a claimant. As that section contemplates, the landlord either may acquire or purchase from the tenant the benefit of the Ulster usage, and that thenceforth such holding shall cease to be subject to such usage. But if the Legislature intended that a particular holding should be excluded from, and cease to be subject to, the usage in one case, the landlord having acquired the right by possession in that case, how can it be properly held that any district can be subject to the usage when there may be numerous instances within that district where the reverse is the fact, and which do not come before the Judge, and ought not to be taken into account when trying the claims of an individual tenant? I believe the object of the Act is to throw the land into large farms. Such a result will be objectionable in the highest degree; for a very considerable portion of the lands of Ireland, hitherto under cultivation by spade labour, are quite unfit to be thrown into large farms, or to be tilled by the plough. Nevertheless, it appears that the only mode by which the landlords can extricate themselves from the difficulties and dangers by which they are surrounded, by the various traps which have been set for them by this Act, is to let no land unless the holding can be formed so that the rateable value shall not be less than £50 a-year. That is a deplorable state for a country to be thrown into. The result must be that a great extent will be thrown out of cultivation, and the population will be considerably decreased. It was truly said that the tenant ought to have security for his outlay on his holding, and it is just that he should enjoy that security; but that is quite another thing from giving him the estate, or taking away the property of the lessor, and confiscating his estate for the benefit of an objectionable tenant. There ought to be a distinct and equitable line drawn, and wrong should not be done to the lessor, or more than right given to the tenant. I hope that this matter, which involves the rights of property not only in Ireland, but in England also, will meet with careful consideration of Her Majesty's Government during the Recess, and that before Parliament meets again a measure will be prepared, explaining and amending the provisions of the Landlord and Tenant Act of 1870.

LORD DUNSANY

thought his noble Friend (the Earl of Leitrim) had made out a strong case for some examination. It was true that there had just been a Committee to inquire into the matter. A new crop of difficulties was arising according to the news received that morning. He saw a report of an appeal taken from the judgment of a Chairman of Quarter Sessions, and the Judge took a different view from the Court below, holding that the only case in which there could be maximum penalties inflicted was "capricious eviction." Now, he (Lord Dunsany) confessed that he could not understand the meaning of that term. It was one which had, he believed, been invented by Mr. Gladstone, and nobody was, of course, better able than that right hon. Gentleman to explain its meaning. Some precise definition was, however, he thought, required of a word on which so much was made to turn. It ought to be construed as meaning something for which no reasonable or just cause could be assigned. He would only add that the working of the Irish Land Act should be carefully watched, and that it should be as far as possible improved before its principles came to be applied, as he supposed they would be, to England.

THE EARL OF KIMBERLEY

was sure he would be excused for following up at any length the statements just addressed to their Lordships. He did not think that that was the place to try a case, or to give his own view of Mr. Justice Lawson's decision. They all knew him to be a learned and most excellent Judge. He (the Earl of Kimberley) was very glad that the noble Lord had called attention to the Report of the Committee of their Lordships' House, as it was of such a nature as would dispel many doubts which were entertained on the subject. It had not found fault with the working of the Irish Land Act. On the contrary, it expressed a decided opinion that it was not desirable to make any change in the present Courts of First Instance. That decision was arrived at unanimously, and he (the Earl of Kimberley) thought that when their Lordships read the evidence, they would be of the same opinion too. On other points, however, there were serious differences of opinion amongst the Members of the Committee. The recommendation, for instance, that there should in all cases be an appeal from the Judge of Assize to the Court of Land Cases Reserved was only carried by a majority of 1. There was no other very material point in the Report, the Committee rightly deciding that, as only one case had yet come before the Court of Land Cases Reserved, it was premature to entertain any question as to that tribunal. As to certain doubts expressed in the Report with respect to the working of the Act, he (the Earl of Kimberley) was of opinion, with the minority of the Committee, that it was inexpedient to say anything on that subject. It was, at all events, premature to deal with these or any other points noticed by the Committee at present. He could only say that the Report would receive the best consideration of the Government during the Recess; but he was not then prepared to say whether they would next year introduce any measure for the amendment of the Irish Land Act.

THE EARL OF LEITRIM

intimated that in the event of the Government taking no action next year, he should bring in a measure for the amendment of the Act himself.

Moved, "That the House do now adjourn."

After short debate, Motion agreed to.

House adjourned accordingly at a quarter past Eight o'clock, 'till To-morrow, a quarter before Five o'clock.