§ On the clause providing "that every assignment or sub-letting, and every lease, deed, and instrument, or other agreement or proceeding, whereby such assignment or sub-letting should be made without the consent of the landlord, shall be, and be deemed, wholly null and void, to all intents and purposes,"
said, some clauses in the Act which it was proposed to amend were liable to many and serious objections, because they went to establish a principle of difference and disseverance between the two countries. The Bill interfered with the just rights of the tenants under the common law, and gave undue power to the landlord. It tended to establish a new principle, affecting the whole body of the Irish tenantry—a principle, in every respect, most injurious. It would throw into the hands of the Irish landlords a vast power, and subject the tenant to infinite oppression. On these grounds, he objected to the principle of the Bill; and, before it passed, he begged to call upon the House to deliberate whether this was a time in which it could be justified in enacting any law by which discontent and disaffection would be created in that country? The benefits expected by its supporters were not at all likely to be realized; but even if there was the strongest probability that they would be, was it proper, at a time like this, to establish a principle of disseverance: to have one law for one country, and another law for the other? Nothing could be more unwise, than at such a time, to establish such a principle. Nothing could shew the feeling prevailing on this subject more than the fact that the people of Ireland were ready to cry out against this measure as one body. It might be said, that by it 571 they were only deprived of the common-law privileges which were enjoyed by the people of England. Why, that was depriving them of some of the most valuable benefits of the common law; and it left the Irish peasant open to the oppression of his landlord. It was one of the worst features of the Sub-letting Act, that it gave an undue power to the landlord of entering for his rent on the resident tenant's land; it was opening a breach, of which he might avail himself, to the injury of the tenant; which injury, it was the province of the common law to protect him from. Circumstances might arise when the landlord could take advantage of that breach, which he had created and contrived, for his own benefit. They ought, therefore, in justice and fair dealing, before those clauses were passed, to look well at the consequences which must inevitably follow, before they deprived the tenant for ever of that protection, which, by the common law, as it now stood in both countries, he was entitled to receive. If this law passed, the landlord contemplating the improvement of his estates, might look forward to the period when the improving tenant might make the land more valuable; and when he saw the day that he could reap a profit, then, and not till then, might the landlord take possession of the property of his tenant. He asserted, that the landlord, if this clause passed into a law, would have the power, amongst other evils, of maltreating and defrauding his tenants, the contract not being binding, except when given in writing. If this Bill passed into a law, the tenant, relying on that permission which his landlord might have given by parole, would find himself, at an unlucky moment, at the mercy of his landlord, who, if it suited his convenience, might avail himself of the breach which he had aided in making. He had minutely considered it, with the alterations proposed, and he challenged his hon. friend, the Solicitor General for Ireland, to show that he had mistaken the law and character of the clause. He was aware that the higher class of landlords were far above the possibility of committing any fraud, even if this Bill was carried, but there was a class of landlords from whom everything was to be feared. He alluded to the middle-men, who were not under the influence of those high feelings of honour, which was possessed in so eminent a degree by the higher class of landlords. Those persons had the power 572 of sub-letting, and their sub-tenants would be the sufferers under this Bill. They would have it in their power to set the people of Ireland in opposition to the landlords by this clause, and that power ought not to be given them. It had been said, that this clause would tend to enforce the performance of covenants, which would be of great service in Ireland, and would prove beneficial both to landlord and tenant. But he could not consent to this prospective advantage being purchased at such a price as that of leaving a tenant exposed to frauds without redress. If anything could conduce to the benefit of the tenantry of Ireland, and not prove injurious to the landlord, nor so strengthen the landlord's right as to have the effect he had described, he should be ready to support a measure of the kind. But he thought such a benefit ought not to be purchased at the price of laying the tenantry prostrate at the feet of the landlord. It might be said this clause could be amended; but he defied his hon. friend to make any amendment without giving up, virtually and substantially, the point he had stated, which would, in its effects, destroy the principles of the Bill. Nothing could be done, which could amount to a waiver, which would not have that result. It was said that, in the existing state of Ireland, a very strong remedy was required to protect the landlord, and to support him in the maintenance of existing covenants, and that the juries of Ireland shewed a prejudice against him. But he believed that was a slander against the Juries. The Juries of Ireland were not more liable to lend themselves to the infringement of those covenants than the Juries of England. He was willing to admit that, in contests of this kind, Juries had frequently found for the tenants, and against the landlords, but the probability was, that the verdict of the Jury was consistent with both law and justice, and was founded on some Act whereby the landlord had waived the covenant, or had created the breach he sought to avail himself of. There were very few instances where the verdict had been given against the evidence, or where, when the verdict was against the landlord, it was not manifest that the landlord was not the aggrieved party. But admitting the argument that Juries might, in some instances, have given a verdict contrary to evidence—was not the party able to bring the case before the Court above, which had 573 always the power of correcting this evil, by setting aside the verdict? He did, therefore, respectfully submit, that where there was such a remedy, any argument that might be advanced on this part of the subject, might be considered as of no weight. But he begged still further to observe, that, these were no sufficient reasons why the tenantry of Ireland were to be deprived of the benefit of a trial by Jury, because Juries sometimes gave a verdict contrary to law? The passing of this measure would give a new stimulus to the cry raised in Ireland for a repeal of the Union; and, nothing ought to be done to justify those who desired a separation.
felt it unnecessary to detain the Committee many minutes in explaining the merits of the present Bill, and of the clause then before the Committee. The evidence of several Committees went to show that a source of the impoverished condition of Ireland was the habit of splitting up farms into endless subdivisions. To check that practice, therefore, would be, to remedy a great evil, and produce a great good. Accordingly, the Sub-letting Act was introduced with the sanction of a large majority of both houses of Parliament. It being, however, found that that Act pressed rather severely upon the tenant to the advantage of the landlord, a remedial measure was introduced, under the special consideration of the present noble and learned Lord who held the Great Seal in Ireland the basis of which was the protection of the interests of the poor tenant. It was quite true, as the hon. and learned Gentleman had stated, that if this clause fell, the Bill itself would fall with it. He should much regret, that such an event should happen, for then the evils which the peasantry of Ireland suffered from the minute subdivision of land would be without a check, except that which was imposed by the present Sub-letting Act, against which so many complaints had been made. The present Bill retained all that was good in the Sub-letting Act, while it corrected the errors into which the framers of that measure had fallen. One of these was, that the common-law rights of the tenant, were taken away—by the present Bill it was proposed they should be restored. By the Act at present in existence, the mere non-permission to alienate was held to be an actual prohibition. This Bill went to declare that that construction put upon a non- 574 permission should be at an end. It said to the landlord, that if he allowed his tenant to assign, his remedy for rent should be against that tenant, and not against the sub-tenant; and it said to the tenant, that if he sub-let the lands against his landlord's prohibition, or without his landlord's permission, his remedy against the sub-lessee should be gone, and the landlord alone should have the right of distress against the sublessee and occupying tenant. These provisions were intended to secure the poor tenant from having his last farthing or his last bit of goods taken from him to satisfy the debt of another man—they were intended to protect him from the dreadful system of repeated distresses which several middle men, each in his turn, had had the power of issuing against the wretched occupier of a single acre of land. No doubt the present transition stage from the subdivision to the consolidation of farms was and would be attended by cases of personal hardship, but he believed not a single tenant had been ejected in Ireland under the Sub-letting Act. Many poor tenants he knew were ejected, under the process of clearing farms—that is under the extraordinary powers with which the existing law armed the Irish landlord—but none, he believed, under the Subletting Act. That Act, and the present measure had been denounced as inhuman and tyrannical in principle, as if, forsooth, protecting the poor tenant against oppression and tyranny was not the very reverse. At present, land was let in Ireland five and six deep, and the wretched occupant of a cabin with its acre, was ground to the earth to eke out the profits of these six landlords upon landlords. Was it inhuman to protect him against this oppressive weight, by making him responsible to one landlord only, and by preventing the frauds of the other intermediate landlords from being visited upon him? The present Bill he repeated, remedied the evils of the Sub-letting Act; for it restored the tenant to his common-law right, and it restored to him, too, the power of devising. The only restraint was that which he had mentioned; and the Bill declared, that no Act. of one or the other of the parties, except by something of as solemn a nature as the contract they had originally entered into, should do away with a written lease, which both of them could understand, and which neither of them ought to violate.
§ Mr. Leader
was rather surprised at the 575 argument of the right hon. Gentleman. If the new law was so good, why not make it also the law of England? The right hon. Member contended, that the principle of the Bill was the same with that of the Sub-letting Act, and that hon. Members had admitted that the principle of that Bill was good. He must enter his protest against such an assertion. He should much prefer leaving land in Ireland as it was before the adoption of the Sub-letting Act; that was, to be let and relet according to common-law usage. That Act was passed at the instance of the Irish landlords, for their own sordid purposes, and should not receive the support of any man anxious to rescue the Irish poor man from the thraldom of the great landholder. For twenty or thirty years, during which it was prosperity and sunshine with the Irish landlords, when, to indulge their own unconstitutional and most sordid purposes, they fabricated 40s. freeholders ad libitum, and when the war-price of grain enabled the farmer to pay enormous rents,—no complaint was to be heard of the sub-letting system, but, on the contrary, loud praise. But when it became no longer a profitable trade to cut up land in 40s. freeholds, and when low prices led to low rents, the Irish landlords, for their own sordid purposes, turned round on their own long-cherished usages, and cried out for no subdivision—"let us have nothing but large farms." The evil of Ireland was, want of the application of knowledge-directed labour to its soil; and as a means to attain that most desirable end—indeed the only practical means within the reach of the industry of Ireland—the subdivision of land was absolutely essential; and, until that subdivision be freely permitted, there would be no peace or prosperity in Ireland.
Sir John Bourke
would vote for the present clause, if he could persuade himself that its tendency would be protective of the interests of the tenant; but, as he very much feared that such would not be the result, he would move as an Amendment that the words "shall be in future" be substituted for "are" with respect to "lands and tenements" contemplated by the clause.
§ Mr. Lambert
was unwilling the tenantry should, in any instance, be treated with harshness; but he thought that they should not be suffered to violate a covenant on account of a mere breach of form 576 on the part of the landlord. He should only add, that the present Bill met with his approbation upon principle.
said, that with respect to the clause more immediately before the House, he trusted, that although it might be decided that the covenants should be held to be null and void, against the head landlord, if he thought proper to enforce the prohibitory clause in the original contract, yet such contracts ought to be considered valid between the lessee and the sub-tenant, or there would be very frequent collisions between them, each desiring to take advantage of the other whenever circumstances would admit of it. He knew from experience the opportunity which this Act gave for such acts of fraud and injustice, and he, therefore, was decidedly of opinion such contracts should be mutually binding.
§ Mr. James Grattan
observed, that successive Secretaries for Ireland had found this a question of very great difficulty, and he was therefore apprehensive that the right hon. Gentleman would be disappointed with the working of his measure. He was of opinion, that the subject should be fully investigated before a Committee.
considered one of the provisions of the present Bill, a great improvement upon the former, for it abolished that unjustifiable interference with the right of property which the existing law tolerated; but still he had objections to parts of it. By the exception allowed to lands possessed by cities and boroughs, the effect would be, to exempt, in the county of Cork alone, 50,000 acres of land from its operation.
Mr. Cutlar Fergusson
approved of the principle of the Bill, and was of opinion that if a similar law were introduced into this country, it would be an improvement. It was the law of Scotland, and of almost every country that boasted of a system regulating real property. It had been asked whether, by this Bill, it was meant to prevent the tenant from sub-letting the land under any circumstances. It was certainly not so intended—nor had the Act that effect. The meaning of the Act was, that the tenant should not underlet the land against an express covenant in the lease. It put an end to the doctrine of implied waiver, but he admitted that it was an innovation on the common law. By the common law, a waiver of the right of entry on a breach of covenant was 577 implied by the landlord doing anything subsequently which recognized the tenant as still in rightful possession; but by this Act the dispensation, or waiver, was required to be proved in writing, before the landlord should be estopped from entering upon the land for a breach of covenant. If there was one modern improvement of the law greater than another, it was that which was recently introduced with regard to the Statute of Limitations; although a debt was barred, under that Statute, by length of time, yet the debt might be revived by a verbal promise—a doctrine which frequently led to perjury and fraud; but Lord Tenterden introduced a Bill in which it was enacted, that no debt barred by the Statute of Limitations should be held to have been revived, unless there was evidence of a fresh promise in writing. In the present case, this Act said, a tenant should not sub-let, unless he produced evidence in writing that the landlord had assented to it. All that this Act said was, "you, the tenant, may sub-let, and you, the landlord, may waive the covenant, but the possibility of fraud in either case, shall be shut out by requiring evidence in writing showing the landlord's consent to dispense with the covenant." The principle of the Bill was, to destroy the doctrine of implied waiver, by which so much fraud and injustice had been done. The right of entry having accrued, this Bill would require evidence in writing of the dispensation of that right, so that the right should not suffer from those acts which may be construed into an implied waiver.
§ Mr. Ruthven
said, there was no doubt but that the Bill was an improvement in the Sub-letting Act; but still it was a law not called for by the necessity of the case, and it had, besides, the defect of not being distinctly marked as a prospective measure only, and might therefore very much interfere with existing contracts on old leases. It had been defended on the ground that it would prevent the minute subdivision of land at present prevailing; but although he had no wish to see land divided into such small allotments as 40s. freeholds; yet he believed that industry and prosperity were more likely to prevail among small farmers than by having large leaseholders and a number of miserable labourers.
§ Mr. Henry Grattan
had no doubt that the Bill was inexpedient. It would not 578 obviate that great evil—the minute division of land; it had not been called for by the Irish people, nor was it popular amongst them.
said, that subletting had been a very great evil, but, unfortunately, the remedy introduced had also mischiefs concomitant with it, from its retrospective effects. The present Bill was, however, a great improvement on the Act now in force, and it should have his support.
§ Mr. Maurice O'Connell
agreed that this was a great improvement on the former Bill. The right hon. Secretary for Ireland had, however, committed a serious mistake in seeming to throw the middle men of Ireland overboard. It was to be borne in mind, that the middle men held under great proprietors who never visited the country, and that the great majority of the resident gentry of the country consisted of that class.
§ Mr. Crampton
said, that hon. Gentleman appeared to be arguing the question upon the supposition that the Bill was opposed to sub-letting, but that certainly was not its intention. Its object really was, to make the contracts between landlords and tenants binding, and to provide against their being violated by fraud.
repeated his objection to the clause before the Committee, as depriving the tenant of the Common-law construction of every covenant in his favour, and declared that he should at all events put his name on record against a Bill which invested landlords with powers which might be tyrannically exercised over their tenants.
§ The Committee divided on the Clause: Ayes 111; Noes 10.—Majority 101.
§ Clause agreed to.
§ Mr. Maurice O'Connell
moved, that the Chairman report progress and ask leave to sit again, as the hour was so late that it must be highly inconvenient to proceed.
said, that he could not consent to postpone the other clauses; for so far as discussion produced benefit, they had already been sufficiently discussed, and were the House now to postpone this subject, it would only lead to a revival and a repetition of the arguments which had just then been uttered.
§ The Committee divided on Mr. Maurice O'Connell's Motion: Noes 98; Ayes 6.—Majority 92.
§ The Clauses were agreed to.
§ The House resumed.