HC Deb 12 November 1830 vol 1 cc486-91

On the motion of Sir Henry Hardinge the Subletting Act (7 Geo. 4. c. 29.) was read. He then observed that after the animated and able discussion the subject had last night received, he should not trespass on the time of the House further than to state, on the part of his Majesty's Government, that it was actuated in bringing forward this bill by no other motive, personal or political, than the strictest wish to act impartially by all parties interested, and to do what was right and proper between the landlords and their tenantry in Ireland. When the bill was printed and laid on the Table, he hoped it would be found to be framed in this spirit, and he invited the assistance and co-operation of all persons interested in the subject to render its enactments in every way suitable to the wants and wishes of the people of Ireland.

Mr. O' Connell

wished to inquire whether it were intended to introduce any clause to give the landlord power to cancel the lease on account of sub-letting, when the lease itself was silent upon the subject. In the bill of last Session, for mitigating the severity of the Sub-letting Act, there was a clause of this kind, and, if a similar one were inserted in the present bill, he should give it every species of opposition, for it

Flour or meal, not of wheat Duty free
Peas, Beans, rye, calavances, oats, barley, Indian corn Duty free
Rice Duty free
—Live Stock Duty free
Lumber Duty free

would considerably aggravate the mischief it was intended to cure.

Mr. Doherty

replied, that every consideration had been given to the bill, to accommodate it as far as possible to the views of all parties.

Mr. Spring Rice

asked if it were the same bill that was brought in last year? [Sir Henry Hardinge replied no.] Then the House could not be aware of its nature. He was against the proposition for repealing the Sub-letting Act, because as far as the principle of binding both parties to their engagements went, it had his entire concurrence; but he also concurred in the necessity of amending the Act, and he would mention two points in which that was requisite. In the first place nothing could be more absurd than the clause respecting devises, which enabled a man, by will, to violate a contract after his death to which he was bound during his lifetime. The other point was the objection, and the only one entitled to a moment's consideration—that the Act had a retrospective effect, although that was a point on which the learned Gentlemen on the two sides of the House were not exactly agreed. As a landlord and a friend to the principle of the bill, he asked no more than that contracts entered into before the passing of the bill should not be affected by it, whilst those made since should come under the operation of the law. There was great weight in the objection made by individuals who had leased property under the law of waiver as it stood before the passing of the new enactment. If these two questions were set at rest, he was convinced that, on all sides, there would be an entire concurrence in the principle of the bill. [Mr. O'Connell intimated his dissent.] From what the hon. and learned Gentleman said the other evening he thought that such would be his opinion. He understood him to say that if all contracts entered into previously to the passing of the bill were left under the former state of law, and to the protection which the tenant had, by the doctrine of waiver, as then interpreted, there could be no possible objection to giving the landlord and tenant the protection of the Subletting Act, as to contracts made since it was passed. That was the argument used by the hon. Gentleman the other night, and it would certainly be a fair principle to act upon. The object of this bill bad been much misrepresented in Ireland, and misunderstood, even by many of those whose interests were affected by it; but he had consulted some of those with whom he was connected, and they agreed in the vote he gave last night, as well as concurred with him as to the necessity of amending the law. He hoped that the right hon. Gentleman opposite had borne these two points in mind in framing this bill. He could not sit down without thanking the Solicitor General for Ireland for the best exposition of the details, and most satisfactory explanation of the principles of that law he had heard.

Mr. Jephson

was favourable to the principle of the Subletting Act, though he thought amendment was necessary. The attempt made last Session was not at all a successful one; but if the right hon. Gentleman should bring in a fair Bill, his humble assistance should be heartily at his service.

Mr. Campbell

thought, that the Bill should be so framed as to make it applicable to both parts of the United Kingdom, for the law of England was as defective on this subject as possible. In the time of Elizabeth, a case was argued, called the Tempest case, reported by Lord Coke, in which the Judges came to a decision, not since overturned, under protection of which contracts had been repeatedly evaded, and the intention of the law defeated. If it be stipulated between the landlord and the tenant, that the latter shall not assign without the leave of the former, the law said, that if the landlord once give leave to assign, afterwards the tenant shall have the power of assigning to whom and as often as he pleases. This operated unfavourably to the tenant, because it prevented his landlord from granting him indulgences he might otherwise be inclined to grant. The state of the law had been complained of by that great Judge, Lord Eldon, as well as by many others, and the sooner it was amended the better. He wished, therefore, that the law should be made applicable to both parts of the United Kingdom. It was not intended by it to give any advantage to the landlords of Ireland which those of England did not possess.

Sir Henry Hardinge

had no doubt that the suggestion of the hon. and learned Gentleman might, with great propriety, be adopted; but he was not sufficiently acquainted with the law of the two countries, to say at present that they ought to be assimilated. With regard to the observations of the hon. member for Limerick, respecting the retrospective effect of this law, it was not intended to make any part of the Bill retrospective; that is to say, that leases waived previous to 1826, by any act done before that period, would not be vitiated; but if the covenant were violated after 1826, the landlord ought to have some protection. He was ready to admit, that the principle ought to be prospective; but there was this to be said in favour of a lease which had not been broken previous to 1826, that the landlord having vigilantly guarded all his interests up to that period, if the tenant afterwards vitiated his lease, the landlord ought to have the benefit of the Subletting Act of 1826. That was his view of the subject; but he admitted that the principle; ought to be prospective. With regard to the clause respecting devises, it was to be absolutely repealed, and the exceptions originally put in were to be done away. It was further proposed, that if the landlord did not choose to put a written covenant to restrain his tenant from subletting into the lease, and the tenant should afterwards sublet, the lease shall not be vitiated, as was now the case. The landlord was supposed to be the more intelligent and instructed party, the tenant comparatively ignorant and uninstructed—the one comparatively powerful, the other weak; and, therefore if the Irish gentry wished to protect their lands from the effects of subletting, it would in future be their duty to have a covenant to that effect put into a written lease. That was his view of the subject; but as it was a new one to him he was perhaps incorrect. The object of the Government, in making this amendment of the law, was, to consult no interests but those of fair dealing and justice; and if it could frame a Bill that would do justice between landlord and tenant, its wishes would be attained.

Lord Althorp

said, that if the law were applied at all to leases existing in 1826, it would have a retrospective effect, and it ought only to operate upon contracts made after the passing of the Act. If that were done, he could not conceive on what principle any man could say an injustice was committed; for it was saying that, two parties entering into a contract, it would be unjust to enforce that contract. All they ought to see to was, that the contract be enforced according to the meaning of the parties at the time they made it; and if at the time they made it a constructive waiver would not have vitiated the lease, so ought it to be, after passing the law, whenever such constructive waiver should occur. He was one of those who thought the Subletting Act a good one; for the want of power on the part of the landlords to enforce the covenants of their leases was the cause of great mischiefs, and therefore he objected to its total repeal.

Mr. O'Connell

wished to correct a mistake. He did not say that he should disapprove of this law if its operation were to be purely prospective. His objection was, to a law compelling a deviation from a legal contract when made. Prospective contracts, he admitted, were a legitimate subject for legislation, but not contracts already made. If the law were only to operate prospectively, then every man would be put on his guard, and could make such contracts as he wished, and as the law prescribed; but nothing could be more unjust than to make a law giving an effect to existing contracts different from that which they had when first entered into. He had no objection to make the law as strict as possible for the future. The hon. member for Limerick did not seem to understand the Act; and certainly he had not understood his (Mr. O'Connell's) objection to it; which was, that the measure did not allow parties to make contracts as they wished. If the landlord chose to give up his remedy by distress, he might sublet, but, not otherwise. The waiver by parole, as it is called, was also taken away. He admitted, that the original contract ought to be strictly performed; but at the same time the landlord ought not to be prevented from underletting. The question he had put had been fully and satisfactorily answered. The spirit, too, in which it had been answered induced him to hope, that when the House came to investigate the details of the measure, it would be able to make it satisfactory to the country. He trusted, however, that it would not be passed in the spirit of a restrictive law.

Lord Killeen

wished to express his satisfaction that the Bill was not to have a retrospective operation.

Mr. Ruthven

suggested, that if a man had a large farm, he would require some persons to assist him, and some means should be devised to enable such a person to give his cottier tenants a small portion of land, say an acre or two of garden ground. With reference to what had been said by an hon. and learned Member, it would be only reasonable and satisfactory to the people of Ireland, to know that such a law was not made for them which would not be fit for another country.

Bill ordered to be brought in.