§ Order for Committee read.
§ MR. M'MAHON
said, he would withdraw a Motion of which he had given notice in favour of the assimilation of the statute law of Ireland with regard to ejectment to that of England, as he understood an Amendment to this effect could be moved in Committee without any previous Instruction being adopted.
§ MR. KNIGHT
, who had given notice of a Motion to defer the Committee for a week, said, he was one of those Members who abstained from speaking on the second reading in order to facilitate the introduction of the Peace Preservation Bill; but he wished to make a few remarks which, as they affected only the principle of the Bill, could not be made in Committee. One thing which had not been noticed in the debate was that England and Scotland had been placed in a position similar to that of Ireland with regard to clearances. In Scotland matters had been settled simply by clearing everyone from the land and sending the people to America; but clearances had been stopped in England, by measures to which attention might be called before a decision was come to in the case of Ireland. For several reigns after the breaking up of the feudal system, the state of England was similar to that of Ireland, except that the English were more violent than the Irish. During the reigns of the Henries, of Elizabeth, and of the Stuarts, the country was devastated by clearances, in precisely 731 the same way Ireland had been for the last 150 years. In Sadler's work upon Ireland we were clearly informed, upon authority which was given, that for 150 years these clearances had been the cause of all the rebellions and local risings that had occurred. In the reign of Elizabeth, and, indeed, for several reigns, similar events happened in England; clearances were made in all directions, and repeated Acts of Parliament were passed with the object of preventing them. Those who had pulled down houses were ordered to re-build them; persons were forbidden to keep more than a certain number of sheep; and everything that could be done to stop clearances was done without effect. In every county there were many hundreds of able-bodied vagabonds who lived by theft and rapine, and plundered the country in large gangs—nothing was safe; sheepfolds had to be watched night and day, magistrates were afraid to do their duty, and the country was in a worse state than Ireland is in now. This state of things was stopped by the Settlement Law of Charles II. For ninety years, ever since the relief of the poor had been made a legal charge by the 14th of Elizabeth, every man had had a right to relief, but that right had been inoperative. The Preamble of the Settlement Act stated that the poor were constantly increasing in numbers, that they were perishing from want in all directions, and that hitherto the Poor Law had been inoperative; but from the passing of this Act clearances ceased in England, the application of the Poor Law was extended, the people became quiet and satisfied, and there had followed a long era of self-government without coercion by soldiers or police, which would not otherwise have been possible. The reason why the Irish had never been satisfied with the English law was because those English laws, which gave something to the poor in sickness and starvation, had not existed in Ireland. The law gave no proper support to the Irishman in poverty, and consequently the only way of keeping him in order was by English bayonets. In 1838 a Poor Law was bestowed, upon Ireland; but there was no Settlement Law in connection with it—that having been opposed by the landlords—and without a Settlement Law the right of the poor to relief became a merely in- 732 definite right, for having a right everywhere meant having it nowhere. Since the passing of the Irish Poor Law the work of clearance had gone on even more rapidly than before. The Settlement Law of England had been greatly misrepresented. It was intended to supply the gap left by the abolition of the feudal laws, and the moment it was passed it became impossible for employers to turn their people out of their houses. Its effect was indeed to force employment, and the result had been that England had been brought into its present highly cultivated state. In Prance the same state of things existed, and the consequence was that the whole of the poorer classes there were ready to rise in a moment if they had the opportunity. The Code Napoleon was excellent as between those who had something to lose, but it did nothing for the poor, and the result was discontent and dangerous communism. He believed that Irish clearances would never be effectually stopped until there was in that country a similar Poor Law to that existing in England. He believed that if they had established a Law of Settlement in 1838, and thus stopped clearances with a strong hand, Ireland would have been in a very different state from what it was now. As it was, there was only one moment in the history of Ireland when rebellion was impossible, and that was the moment when Smith O'Brien tried in vain to raise one. Through the wise policy of Lord Clarendon at that time of famine, the system of out-door relief was extended to the whole people; they felt that they were living on the English law, and the consequence was that a miserable scrimmage in a potato garden was all that could be raised in answer to the call to insurrection. If, after that, out-door relief had been regulated instead of being altogether stopped—if when the poor of Ireland asked bread, they had not been offered what they would not accept—the workhouse; or if the workhouse had even been more tolerable than it was—for a nobleman now in India, formerly a Poor Law Commissioner in Ireland, once said that the sending of a child under six years of age into the workhouse was a sentence of death—if they had offered to the poor of Ireland the Settlement Act passed for England in the reign of Charles II., the poor would have felt they had a hold on 733 the land in their necessities, and the present Bill would have been unnecessary. The hon. Member here quoted a passage from Archbishop Manning's letter to Earl Grey, in approval of the Settlement Law, and proceeded to say that the passing of the Settlement Law had had so beneficial an effect in keeping England in a state of quietness that since the period of its adoption there had been no cause of alarm for any serious outbreak on the part of the people, except at the time of the first French Revolution, when, concurrently with that event, there occurred a very great rise in the price of provisions, and the mob shouted—"No King, no Pitt, but bread." The latter was the real cry, and the Parliament met it by providing largely-increased relief from the poor rates, from which increase no danger had accrued to property, which had doubled in value during the next few years—more recently the late Sir Robert Peel broke up the great Chartist organization simply by the allowance of out-door relief to large classes of the poor. The Bill before the House had, in certain portions of it, great merit; and he believed that had Lord George Bentinck lived the tenant farmers-would have long ago got all they were entitled to—namely, compensation for all unexhausted improvements they put on the land. But this Bill went further; it gave the tenants not only their own improvements, but a portion of the fee-simple of the landlords, and so far from doing anything for the poor, it legislated against them. The Bill would break tip the whole status of property; but it would do nothing to settle what was called "the Irish question." Hitherto the poor man who was prudent, thrifty, and industrious, had a chance of rising from the position of a day-labourer to that of a tenant-farmer and occupier of land. On his own estate he had sixteen tenants paying £1,270 a year rent, everyone of whom, with the exception of two, were day-labourers, and the fathers of these two were labourers. Their rents varied from £17 a year up to £200; and similar instances were common on the borders of North Devon and Somerset. If they had been brought under the operation of such a Bill as this, it would have been impossible for them to got possession of a holding. If this Bill passed into a law the bulk of the Irish 734 people would still not only be in as bad, but in a worse, state than at present. Now, no matter how poor, they had the hope of obtaining land; but, if the Bill passed, no poor man could entertain such a hope, because no poor man could afford to pay the tenant-right compensations which it would create. A tenant-right that represented a house or a fence might be perfectly well appreciated by the incoming tenant, and he might pay for it; but when he had to pay more than one-third of the fee-simple for coming in, no poor man could do it. Passing this Bill they would degrade and set their foot on the whole of the real poor in Ireland. In the county where he resided a very large part of the population had risen from the plough-tail. They were a trustworthy and intelligent set of men, who knew their business well—men who, once they went forward, never went backward in the world. The parishes around whore he lived—in North Devon and Somerset—were full of such men. They had been absolutely agricultural labourers; but all such men would be excluded from land in Ireland. Would Ireland be satisfied? No, it would still be necessary to do what he now called on them to do—to make the Poor Law what it ought to be. Let them in this way satisfy the poor, and the tenant-farmers would be glad to take what was due to them without asking for a share in the fee-simple of their farms. The tenant-farmers were enabled to frighten the Government, because they had a miserable population under them with an inadequate Poor Law. If Government would show the poor that the English law had something for them in their misery, they would divide the two classes and be able to deal with them. The Government proposal was like attempting to stop a mutiny in a regiment by bribing the non-commissioned officers as against the officers, while they took no account whatever of the rank and file. In conclusion, the hon. Gentleman declared that if a change of the Poor Laws of the two countries took place—the Irish law established in England and the English law in Ireland—the experience of a single winter would show England a more disturbed and rebellious country than Ireland now was, and Ireland perfectly tranquil.
§ MR. NEWDEGATE
said, he did not believe that the course of legislation on which they were about to enter would tend to the real pacification of Ireland. The speech they had just heard deserved far more attention than it had received. His hon. Friend had quoted the authority of Dr. Manning in favour of a Poor Law for Ireland, including a Law of Settlement. Lord George Bentinck, over and over again, did, in concert with Mr. Augustus Stafford, endeavour to reduce the area within which the Poor Law should be administered in Ireland, so as to approximate to the Law of Settlement in England. But, unfortunately, at that time they adopted a course of legislation which, on these matters, was not national, and they lapsed into a system for Ireland approximating more to the Continental than the English system. On the authority of Dr. Manning the legislation now adopted would not satisfy Ireland. The Roman Catholic hierarchy had opposed the establishment of the Poor Law system and the introduction of the Law of Settlement into Ireland. Why? Because the Roman Catholic Church was hostile to the principle of self-government. The English Poor Law had originated in the break up of the monastic system; and when the monasteries were first closed it was found that there were attached to them gangs of what were called staff-stickers, who went through the country committing agrarian outrages and acts of violence of every description. The Parliament of Edward VI. adopted severe repressive measures, and hanged these men; but in the Tudor period those legislative measures were adopted which Dr. Manning condemned in his letter as inapplicable to Ireland. The present Land Bill was directly in accordance with Dr. Manning's suggestions, and he agreed with Dr. Manning that it was one which would altogether fail to give contentment to the people of Ireland. Under it the tenantry of Ireland were to be given a share in the property of the landlords, but upon conditions which would for ever keep down the labouring class in Ireland, and prevent them from rising into the condition of tenant-farmers. In 1848 a Committee upon the agricultural customs of England was appointed on his Motion, and the Report of that Committee had ever since been viewed as a just exposition of the con- 736 dition of the English tenant-farmer. Evidence was given that the custom of Lincolnshire, which was the model custom of agriculture in England, was based upon written contract between the landlord and tenant; and therefore it was directly opposite in principle to the provisions of this Bill. In Surrey, Sussex, and some of the other southern counties, a form of tenant-right existed very nearly equivalent to that which the present Bill proposed, and its operation did not tend to the improvement of agriculture, while perpetuating a monopoly among the tenants. It was clearly shown that in the course of years this tenant-right became so exaggerated that every tenant coming in was impoverished before he began to farm the land. For that very reason he conceived the principle of the Bill to be erroneous. It created a tenant-right, not based on contract, but resulting from legislation, and the amount of which must increase with the devolution of tenancies. But the House, he saw, was determined to proceed with this legislation; and, therefore, having adduced the reasons which appeared to him sufficient to warrant a different conclusion, he would not trespass further on their attention, merely expressing his belief that the passing of this Bill would not really do anything for the advantage of the tenant, but would effectually prevent poor men from bettering their position. The Bill was eminently fitted to perpetuate discontent.
§ Bill considered in Committee.
§ (In the Committee.)
§ Clause 1 (Legality of Ulster tenant-right custom).
§ MR. PIM
said, he would suggest that time would be saved by postponing this and the following clause, which related to the Ulster and other customs, until the remaining clauses of the Bill had been considered and dealt with. Notice had been given by hon. Members of various Amendments raising questions connected more or less directly with the subjects dealt with by these clauses, and he believed that a satisfactory solution would be promoted by the course which he recommended. The third was the principal clause, the keystone, of the Bill, and should, therefore, be taken first. Besides this, a great number of the Amendments proposed in the latter part of the Bill would, if carried, affect 737 the 1st and 2nd clauses; he therefore proposed that the 1st clause be postponed, but would not press his Motion against the wish of the First Lord of the Treasury.
said, he could not accede to the Motion, because the clauses had been arranged, after much deliberation, in what the Government believed to be the best possible manner; the questions, relating to custom were first disposed of, and after these entirely new ground was taken. He was not himself prepared to say which was the most important clause; but it was not the practice in Committee to take the most important clause of a Bill first.
§ Motion negatived.
said, that after a minute examination of the 1st and 2nd clauses, he had come to the conclusion that the intention of Parliament would not be made clear them; that the tenant would interpret them in one way, the landlord in another; and, as a natural consequence of this uncertainty, disappointment and vexation would result, instead of peace and contentment. It was absolutely necessary the tenant should know precisely what Parliament would grant and what it would not. He believed it would have been quite as well to leave the Ulster custom to take care of itself; indeed, there were many arguments in favour of such a course; but as it was dealt with, he insisted on the importance of making the rights and remedies so clear that he who ran might read. The Bill did not proceed upon the assumption that tenant-right was universally prevalent throughout Ulster, and, in fact, the custom prevailed only in particular holdings; consequently, a tenant would have to prove, first, that his holding was in the Province of Ulster; and, secondly, that it was subject to the custom. Moreover, the natural tendency of the Bill would be to increase the number of holdings not subject to the custom, and the example of Lord Dufferin, who had bought out the custom at considerable expense, would be largely followed. But it appeared from the 2nd clause that the same usages prevailed in other parts of Ireland; and he asked upon what principle the provisions made applicable to holdings subject to the custom locally situate in Ulster were withheld from holdings subject to the same custom locally situate in other 738 parts of Ireland? This was clearly the case as the Bill now stood, for the 2nd clause provided only for cases where a tenant was disturbed by the act of his landlord; but that condition did appear in the 1st clause. This distinction would give rise to a feeling of injustice. A tenant in Antrim, leaving of his own accord, say, to go to America, would be entitled to all the benefits of the Ulster custom; but a tenant in Leitrim or Louth, holding a farm under precisely the same custom, leaving under the same circumstances, would be excluded from those benefits. Again, the tenant in Leitrim or Louth would have his rights modified by three separate provisoes in Clause 3, which might be good or bad in themselves, and the tenant in Antrim would be untouched by them. Could the Committee, under these circumstances, be surprised at the jealousy arising between the tenants of one district and another? There was no reason why, if the House legislated at all, they should not make the same legislation apply to the whole of Ireland. Any other course of action would be sure to produce discontent; and he had learnt that already in various parts of Ireland people had complained of the restriction, and were urging that one law should prevail generally throughout Ireland, and apply to every holding on any estate where it could be shown that any custom of the nature of tenant-right existed. The words in the clause, that the Ulster tenant-right custom "is hereby declared to be a legal custom," appeared to him to be open to two objections—first, that such words encouraged the most unfounded hopes and expectations, and led people to believe that some substantial good was conferred by them; and, secondly, that, assuming it to be true that there was any such advantage to be derived from them by the people of Ulster, the Government were not justified in excluding the occupiers of other parts of Ireland from similar benefits. With respect to the first point, he would remind the House that the tenant-right of Ulster was legal at present; no Court had ever pronounced it to be void as against public policy; but it was not obligatory, and the arrangement that an incoming tenant should pay a sum of money to an outgoing one could not be enforced at law. If any substantial benefit could be derived from declaring the legality of the tenant-right custom, the House ought to know 739 distinctly what it was, with which object the hon. Member for Belfast (Mr. Johnston) had given notice of an Amendment to define that custom in these words—The usage prevalent in the Province of Ulster, commonly known as the Ulster tenant-right, which is to be deemed and taken to be the right of continued occupation by the tenant in possession, subject to the payment of the rent to which the premises held by him are liable, or such change of rent as shall be settled from time to time.He wished the Solicitor General for Ireland to explain whether any right of action was to be given to a tenant if the landlord did not admit to possession the man to whom the outgoing tenant sold his tenant-right? Might an outgoing tenant apply to the Court of Chancery to compel the landlord to consent to the sale of the right of occupation to a particular person? If it was intended to give such powers, there ought to be clauses in the Bill distinctly stating them, for it was only by such means that hon. Members could argue the question. It appeared that at meetings which had been held in Ulster the clause was assumed to confer upon a tenant the right of enforcing this custom against his landlord. But he believed the words declaring this custom to be legal would not have the slightest effect. If, however, tenants in Ulster were to have the right of enforcing this custom against their landlords, it would be monstrously unfair not to extend the same right to tenants in other parts of Ireland where this custom existed. But the objection went further; for if the tenant-right custom of Ulster was declared to be legal, it was necessarily to be inferred that the custom was not to be legal elsewhere, and the enactment of it, as it now stood, would, therefore, alter the position of the Leitrim or the Louth occupier. If in a Bill applying to England it was enacted that the law of gavelkind should be a legal custom in the county of Surrey, it would therefore be implied that it should not be legal in Yorkshire, and a similar implication must necessarily arise by confining the declaration of the legality of tenant-right to Ulster. The clause further stated that the prevalent usage should "be enforced in manner provided by this Act," the meaning of which could only be understood if the Bill contained provisions for such enforcement. He, however, did not find any subsequent section which took up 740 the subject, and enacted in what manner the custom was to be enforced, and, consequently, the words to which he called attention were vague, illusory, and uncertain. The Bill contained a series of clauses headed "Proceedings to obtain compensation," and he should like to know from the Solicitor General for Ireland whether proceedings to enforce a tenant-right were to be taken under those clauses, for if they were not there was nothing in the Bill relating to the enforcement of such a claim. Supposing, however, that the proceedings were to be taken under those clauses, the claimant of a tenant-right would be put in the same position as the man who claimed compensation for a house which he had built—two claims which were totally different in their nature. Assuming still that such was to be the mode of enforcing a claim to tenant-right, the effect he contended would be to give to an occupier a right, which he did not now possess under the Ulster custom, to make a claim upon his landlord when his tenancy was determined, a system which might be carried on to a very considerable extent, for it was declared by the 17th section that—A tenant who may be decided by the Court to be entitled to compensation to be paid by any landlord shall not be compelled by process of law to quit his holding until the amount of compensation due to him has been paid or satisfied, and any amount payable shall be deemed to be a debt due to him from such landlord, and the tenant may set off such debt against any rent for the time being due from him to such landlord in respect of his holding.If this clause really did apply to tenant-right then it might be expected that a landlord, paying all that was due in virtue of this tenant-right, would thenceforward have his land freed and discharged; but the Act did not provide that a landlord who paid to his tenant what was due should be discharged from his obligation, and thenceforth have his land free from the custom; whereas if a house were built by a tenant, and compensation were claimed for it, the landlord, on paying compensation, would be free from any future claim for the same house. He asked the Government to express this matter clearly in the Bill, and to provide against the possibility of a landlord being called upon to pay for tenant-right over and over again in successive years. He objected to the clause, first because it was a most harsh and unfair thing that a custom should be adopted which would 741 operate differently in different parts of Ireland; secondly, because it did not provide any mode by which the land could be cleared and freed from the operation of that custom; and, thirdly, because of the exceeding vagueness and uncertainty of the wording of the clause. In substitution for a portion of the clause, he proposed to insert words providing that where the landlord and the tenant could agree upon the sum to be paid the former should have the power given him, in the clearest possible manner, to buy up the right of the tenant, and that whore such power was exercised by the landlord the land should be freed and discharged for ever from such usages. He also proposed to provide that in cases where before the passing of the Act the land had been discharged from such usages by money being paid by the landlord to get quit of them, the landlord should be entitled to hold his land free and discharged from such usages for ever. He further proposed to provide that where these usages remained in force they should only have effect to the extent that a future part of the Bill should determine. Such a provision would make it clear to the Ulster tenant that he was to look into the Act to ascertain the rights conferred upon him, and would tend to check any vague and wild notions that might arise in his mind with reference to the extent of those rights. It might be objected that his Amendment presupposed the possibility of the eventual extinction of the Ulster tenant-right, and hon. Members might think that if the Bill were to be framed upon such a presupposition, it would not be a popular measure. Was it not the duty of the House, however, to tell the Ulster people the truth plainly and fearlessly? He did not doubt for a moment that the maintenance of the custom was exceedingly desirable in the eyes of the Ulster tenants. It would be extraordinary if that were not the case. The present tenant under the Ulster tenant-right had paid a large sum of money for his holding—in many cases he had paid many years' purchase of the land—and he had not the slightest title-deed to show for it. He possessed a quasi property in the land; but he had no record, or registration, or document of any kind, which would enable him to recover, in the event of his being evicted, the money he had paid, and he therefore had the deepest interest in the maintenance of the cus- 742 tom of tenant-right. That custom was so shadowy and indefinable that the tenant was naturally sensitive and tenacious about it, feeling in the matter very much the same as an officer in the Army felt about the purchase system. The tenant was therefore timid and afraid of any legislation, or of anything which might be done to throw the least doubt or discredit upon the validity of the existing custom, and no doubt it would be very unfair to destroy that custom without having a due regard to vested interests. When, however, the Committee had taken care that the Ulster tenants were secured all to which they were either legally or morally entitled, they would have no right to complain if the Committee took a wider view, and proceeded to inquire into this custom with the view of ascertaining whether it was a usage calculated to operate beneficially for the cultivation of the land, to establish graceful and amicable relations between the landlords and their tenants, and to contribute generally to the prosperity and the welfare of the country. He was of opinion that it was for the good of Ulster and of the Irish people generally that some stop should be put to the growth of these customs. The Ulster custom rendered it mathematically certain that the tenant would be rack-rented to the very highest possible amount; for he had to pay, first, the interest on the money he had paid on entering upon his farm. He had to pay, secondly, the rent to the landlord, and these two put together would make up, in most cases an exorbitant rent. It was much the same as if in England the landlord went into the market and let his land to the highest bidder. They often heard of the almost insane competition for land in Ireland, and yet in that country the Ulster tenant-right custom rendered it certain that the tenant should pay the largest sum for the occupation of land that could be obtained in the open unrestricted market. Some time since he had endeavoured to ascertain upon what basis this custom rested, and he had asked the managing man of one of the great City companies whether sums paid under it were calculated upon a certain number of years' purchase, or upon the value of the improvements effected by the tenant, or upon any lucid principle whatever. The answer he had received was, that the amounts paid under the custom de- 743 pended upon no such considerations whatever; but that, as a general rule, the incoming tenant paid the outgoing tenant "all that he had got." And not only was that statement generally not far from the truth, but in some cases it did not go far enough, because an incoming tenant often paid his predecessor more than he had got, having to borrow money to make up the difference. Was such a system calculated to operate beneficially upon either the tenants or the landlords? It rendered it a matter of absolute certainty that the tenant would be highly rack-rented, while it prevented the landlord from showing leniency to the tenant, because, in consideration of that very leniency, the sum the next tenant would have to pay to obtain possession would inevitably be increased. The effect of such a system upon the cultivation of the land was most disastrous, and thus, not only the landlords and the tenants, but the State generally, was injured by it. Under these circumstances, the sooner it was done away with, in a manner that would be fair and just to all parties, the better it would be for the country. It had been said that it was impossible to define the custom; its operation, as far as the tenant was concerned, was, however, most certain, because it acted as a prohibition to a tenant to occupy land unless he invested on the land a sum of money, which during the whole period of his occupation remained unproductive, and which he had to take his chance of getting back at the expiration of his tenancy. Its operation as regarded the landlord was also certain, because it put him in a state of permanent antagonism to his tenant and induced him to become an absentee. Whatever course the Committee might think it right to adopt with regard to this matter, let them, at all events, state their determination in clear and precise terms. That would be a manly and straightforward course for them to adopt, and it was only due to the Ulster tenant that there should be no vagueness in the language of such a Bill as this. In conclusion, he begged to move the following Amendment:—
Clause 1, leave out lines 10 to 20, inclusive, and insert,
Whereas frequently in the Province of Ulster, and occasionally in other parts of Ireland, certain usages have prevailed, under and by virtue of which tenants upon the determination of their occupation have been accustomed to receive sums of money from the incoming tenants; and whereas
it is desirable that all fair claims arising from such usages should be duly paid and discharged, but that such usages should continue no longer than is necessary for such discharge and payment, be it Enacted, That it shall be lawful for the landlord and tenant of any land subject to any of such usages to contract for the freedom of the land therefrom, and if they shall agree upon the sum to be paid by the landlord for such discharge, then upon the payment of the sum agreed upon a memorandum to that effect may be registered in the Landed Estates Court, and thereupon the land shall be freed and discharged for ever from such usages; but that until such a memorandum is registered such usages in respect of such land shall be deemed lawful, and maybe enforced to such an extent and in such manner as are hereinafter provided:
Whensoever before the passing of this Act land which had at one time been subject to any such usages has been discharged therefrom by agreement between the landlord and tenant, it shall be lawful for the landlord to apply to the Landed Estates Court to have a memorandum for such discharge recorded, and the Court upon due proof of such agreement, and duo notice to the tenant, shall order such memorandum to be recorded, and generally whensoever the landlord of any land subject to such usages shall pay, whether by agreement with the tenant or in accordance with the decision of the Court, the whole sum to which the tenant is entitled for or in respect of such usages, the landlord shall be entitled to hold the land freed and discharged from such usages for ever, and to have a memorandum to that effect recorded in the Landed Estates Court."—(Mr. Headlam.)
§ SIR ROUNDELL PALMER
said, that as the right hon. Gentleman's Amendment proposed to omit a large portion of Clause 1, it would, if proceeded with, at once preclude any discussion upon Amendments proposed to be inserted in the portion of the clause he proposed to omit.
§ MR. CHICHESTER FORTESCUE
Sir, in reference to all the latter part of my right hon. Friend's Amendment, I would submit to the Committee that it is not our business to decide for the landlords and tenants of Ireland whether the Ulster custom is a good custom or not. I know it is a custom of a peculiar character which has grown up under peculiar and exceptional circumstances, and it is one on which Gentlemen in this House, especially those who are not practically acquainted with the circumstances of Irish life, may entertain very various and, perhaps, very unfavourable views. But, for myself, I cannot help saying that I do not entertain views similar to those expressed by my right hon. and learned Friend. Judging of the custom not by some ideal standard, or by the practice of happier countries, but by Irish experience—taking the 745 tenancies - at - will which enjoy the protection of the Ulster tenant - right, and comparing them with the tenancies-at-will which enjoy no privilege and no protection whatever except the naked law, I maintain, with the utmost confidence, that the tenancies of Ulster, guarded as they are by their customs, have proved far more beneficial for the interests of landlord and tenant and of the community at large, than similar tenancies which do not enjoy such protection. But with this kind of approbation based, not upon theory, but upon practice, I must say at once that it is not our business here to decide upon the merits of the Ulster custom. Our business is to decide—and I believe we have already decided—as to whether there is in Ulster a custom existing by the understanding of landlord and tenant which we should guard, protect, and enforce by law, instead of leaving it to the tender mercies of individual caprice, controlled merely public opinion. I shall be very much mistaken if the Committee is not of opinion that it is our duty, however late, to give to this custom the sanction and protection of law. When my right hon. Friend made the observations which we have listened to, for the purpose of heaping odium upon the custom, his animus and absence of impartiality in dealing with the question were very evident. He talks of the hostile relations of landlord and tenant, and of absenteeism, as if they were the result of the Ulster custom. Does he not know that of all parts of Ireland the relations of landlord and tenant in Ulster are the best, and that instead of being hostile, it is the glory and pride of Ulster that they are of the most friendly and cordial character? I believe the Ulster custom to be one of the causes of these good relations. As to absenteeism, we all know that there is less of that in Ulster than in any other part of Ireland. Does my right hon. and learned Friend know that the landlords of Ulster, so far from having suffered from this custom, have been materially benefited by its existence? The best of them have told us, on the most public occasions, that they will stand by their custom, that they are proud of the relations between themselves and their tenants, and that in every respect—morally, socially, and materially—that custom has contributed to their own interests. But the most 746 practical refutation of my right hon. Friend's views is conveyed by the fact that land in Ulster sells for several more years' purchase than land in any other part of Ireland. The rental, also, there is higher than anywhere else—my right hon. Friend would say in spite of the custom, but I say in consequence of it. And that arises from a cause which it is very easy to understand—the security, which is the essence of the Ulster custorn, and which is the one thing of all others that the Irish tenant from year to year most desires, creates a larger production from land in Ulster than from land of equal quality in any other part of Ireland, and both landlord and tenant participate in the benefit of that increased production. My right hon. Friend's main objection to the clause as it stands is, that under it we do no good to the tenant of Ulster, and that we provide no means of getting rid of that which is of an obnoxious character. But I should like to refer him to the tenants themselves for their opinion, and if he were to canvass them all, from one end of Ulster to the other, and take the votes by ballot or in any other manner, I am sure he would not find one to agree with him in the view that this Bill will do them no good. The custom at present depends, in a great degree, upon the will and pleasure of the landlord, and is under the protection of his character and honour. For the most part that is, undoubtedly, sufficient security; but it must be borne in mind that the custom is liable at any moment to be violated or extinguished by unscrupulous persons who do not regard their true obligations in the matter, and who are indifferent to public opinion; and to say that you I will confer no benefit on the tenants by putting the custom under the guardianship of the law, and enforcing by law what is now only enforced by honour and morality, is one of the most extraordinary statements I ever heard. The tenants of Ulster deeply appreciate the proposal made by the Government, and they know it will make a vast difference in all their calculations and hopes for the future, whether their interests under the custom shall depend on the law of the land, or merely upon the will and pleasure of their present or some future owner of the property. My right hon. and learned Friend says we have no proper means for getting rid of this 747 obnoxious custom; but I submit that it is not our business to provide for that. [Mr. HEADLAM: I did not say that.] Well, if my right hon. Friend does not mean to provide means and facilities and machinery for getting rid of it, I do not know what he does mean. My contention is that we have done quite enough when we say that so long as a holding in Ulster can be proved to the satisfaction of the Court, which will examine into these matters, to be subject to the Ulster custom in any of its forms, the Court shall enforce that custom, taking the custom as applied to that farm to be the understanding in reference to which the parties have covenanted—to be, in fact, the virtual covenant between the parties; and that, on the other hand, wherever the Court finds that the farm or holding with which it has to deal—as we know is sometimes the case in Ulster—is not subject to the custom in any of its forms, the Court shall not enforce the custom in regard to a holding to which it was not applicable. The 1st clause says that where-ever the custom has been bought up it shall not be enforced in future—a provision which may itself be open to the charge of surplusage. But to go beyond that and provide a machinery to facilitate the process of extinguishing that custom is, I submit, not the duty of Parliament. That would imply an assumption with respect to the Ulster tenant-right custom which I do not think it is our business to imply, and in itself it is not essential for the purpose, because wherever the parties have mutually agreed to that effect, and are able to prove to the Court that the holding is not subject to the custom, the Court will not enforce it. In respect, then, to this and to many other Amendments which were to follow it, I maintain that it is not the province of the Committee to dictate to the Court as to all those details and incidents of the custom, but to leave the Court to find out in each case that comes before it the facts and equities with which it will have to deal. My right hon. and learned Friend proceeded to say that we were deceiving the people of Ulster because we had not sufficiently denned what their custom was. Now, that is just what we have advisedly refrained from doing. We are of opinion that we should gain no good whatever by any attempted definition.
What I complained of was that, while declaring it to be a "legal custom," you do not give the tenant any actual redress.
§ MR. CHICHESTER FORTESCUE
I confess I have great difficulty in comprehending what my right hon. Friend means. Does he not know that the tenants of Ulster attach the greatest possible importance to this custom as it stands in all ordinary cases—in all cases except where it has been ground down by the action of the landlord in a manner that has made it no longer fair to the tenant? The Ulster tenants consider it to be a matter of the most vital interest, and they ask for nothing else than that the custom should be safe by receiving the protection and guardianship of the law. And yet my right hon. Friend tells us that the clause will do no good and will prove of no benefit to the people of Ulster. All I can say is that if my right hon. Friend had only taken the trouble to acquire some knowledge of Ulster before this land question came before the House, and to become acquainted with the feelings and opinions of that Province, he would have found that what we are proposing to do is the very thing which the people themselves most desire. I am quite aware that the clause under discussion has given rise to some suspicion, both on the part of the landlords and the tenants, because each party imagines that some incidents of the custom, favourable to their interests, will not receive the sanction of law, not being specified and defined in the Bill. Our desire, however, is that the custom should be enforced by an impartial Court as the Court finds it; and in that case it will be found that there is no ground for these suspicions. We have no desire whatever either to extend or impair that custom; but we think that both parties will find that with an impartial Court to enforce the custom they will have far more security and safety than could be produced by the most elaborate legislation on the part of this House.
§ SIR FREDERICK W. HEYGATE
said, he might refer the right hon. and learned Gentleman who had introduced the. Amendment (Mr. Headlam) for an explanation of the origin of the Ulster custom to the Report of the Devon Commission of 1845, in which it was described as dating from a very early period, and as 749 having probably sprung up as a natural consequence of the manner in which landed property was granted and dealt with in that Province. The right hon. and learned Gentleman wished to know some of the advantages arising from the Ulster custom. Well, they had it, on the authority of the late Mr. Senior, that where tenant-right prevailed there great security existed; that there was no such thing as agrarian murder there; that the people were practically bound over to keep the peace by the custom, because if crime and outrage prevailed the value of the tenant-right would fall. It should be remembered that a great difference existed between the Northern part of Ireland and the rest of the country. In Ulster the people were of a very saving disposition and accumulated money, and, there being few investments open to them, they would not be satisfied with the small interest given for deposits, but put their money into tenant-right, believing they were perfectly certain to obtain its return when required. He was now only offering an explanation; he was not by any means advocating unrestricted tenant-right. On the contrary, he thought the abuse of the custom had led to a great many of the evils that had been complained of. Another good result of the system was this—in a country where there were so few proprietors, it was obvious that any measure which gave a larger number of persons an interest in the institutions of their country must be attended with great advantage. He had himself looked closely into that question of tenant-right, and when he first went to Ireland he entertained much the same opinion as the right hon. and learned Gentleman; but his views on the matter had changed, and he now thought that as long as the Ulster custom was confined within moderate limits, as long as it did not eat up too much of the tenant's capital, and did not give to the tenant—what unrestricted tenant-right was apt to give him—every advantage arising either from the constant and steady increase in the prices of agricultural produce, from the introduction of communication by railways and by steamers, or more or less also from the deterioration in the value of gold, with all of which the tenant had nothing to do—as long, he said, as tenant-right was confined within moderate bounds, and secured proper compensation to the te- 750 nant for the improvements he had made, he believed it had conferred great benefits on that Province. Ulster was peculiarly situated; it had a thrifty and an energetic race of farmers; and he would not now enter into the question whether or not it would be wise, right, or even possible to extend the Ulster custom to other parts of the country. The right hon. and learned Gentleman said the Ulster tenants were rack-rented. ["No!"] At least he understood him to say they were very highly rented, higher than in any other parts of Ireland. Rents in some particular parts of Ulster might, from peculiar circumstances, be rather higher than elsewhere. The proximity of manufacturing towns, for example, must operate, to some extent, to raise rents; but, generally speaking, the Ulster tenants were not higher rented than other tenant. He would conclude by saying that it was a great pleasure that on one occasion in his life he was able to thank the Chief Secretary for Ireland for the generous words he had spoken with regard to Ulster.
§ MR. SYNAN
said, the assumption which underlaid the Amendment of the right hon. Gentleman (Mr. Headlam) seemed to be this—that because a tenant was allowed to sell his right of occupation, there was so much added to the rent and taken out of the pocket of the landlord. But the Committee might imagine a state of things in which both landlord and tenant would be benefited, and conclusive evidence of such benefits was to be found in the fact that rents were better paid and higher, while property sold for five years' purchase more, in the North than in the other parts of Ireland. Then it was objected that legalizing tenant-right in Ulster would produce inequality; but the answer to that was that there was an Amendment on the Paper that tenant-right should be extended to the rest of Ireland. The right hon. Gentleman had also urged that the landlord had no light to purchase; but the custom was that if the landlord wished to pay what a stranger would give, he had a right to pre-emption. That being a part of the usage, it was legalized by the clause, and therefore the landlord would have the right of purchase under the Bill. As to the objection to the vagueness of the clause, he admitted that the custom was vaguely referred to, but the hon. Member for 751 Belfast (Mr. W. Johnston) proposed to define it. Parliament was bound, in justice, to legalize the custom, for this reason—that purchasers in the Landed Estates Court were in the habit of raising the rent, and thus undermining the custom. Indeed, the courts of law ought to have legalized it long ago. When discussing the 12th clause, he thought it would be necessary to extend its machinery to the case of the Ulster custom in the North of Ireland, and show the tenant how to go to the court to deal with a landlord, who would not allow him to sell.
§ MR. DENT
said, he could not help thinking that his right hon. and learned Friend (Mr. Headlam) had been somewhat unfairly misrepresented. His right hon. Friend was quite prepared to recognize the Ulster custom; but his Amendment embodied the opinion that tenant-right was a disadvantage, and that, as soon as possible, it ought by any means to be redeemed, and when once redeemed to cease. Proprietors from the North of Ireland seemed to have a very different opinion on this subject from English proprietors; for the latter could hardly conceive a worse thing than that a tenant should expend nearly the value of the land in the purchase of the goodwill, for that seemed nothing short of taking from the tenant capital which he ought to have for the cultivation of his farm. Therefore, although they were bound to recognize the Ulster tenant-right now existing, and not to leave people in a state of uncertainty and doubt, they were also bound to say that they did not wish to encourage such a custom, but to see it redeemed as soon as possible. The Chief Secretary for Ireland was, therefore, unfair in saying it was not the duty of the Committee to express an opinion on the subject. As to the Ulster tenant-right being a security for life and property, he would only say that in England and Scotland they required no such security. And if the Ulster tenants were a saving race, and liked to invest their money in so unremunerative a way, that only showed they were not so wise as could be wished. He would certainly support his right hon. Friend if he went to a division.
said, he would submit to the Committee that there was no advantage whatever in discussing at the present time the general merits of 752 the Ulster custom, and for this reason—that the Ulster custom was legalized not only by the clause, but by the Amendment. And as to the alleged economical and social evils of the custom, what his right hon. Friend (Mr. Headlam) called upon the Committee to do was to condemn the principle, while, at the same time, he affirmed it, under certain conditions, in practice. Now he (the First Lord of the Treasury) affirmed, without fear of contradiction, that it was not expedient to deliver a condemnation of any principle unless they were prepared to follow such condemnation by some practical action. If this custom was exceedingly dear to the tenant-farmers of Ulster—and the Committee knew they had £20,000,000 sunk in it—it would be exceedingly annoying and offensive to them to have such language used in disparagement of it; and though he would not say they ought not to use such language if they had a practical object in view, his right hon. Friend had no such object. In fact, his right hon. Friend made less provision for the extinction of the custom than the Bill did, for the Bill, as it stood, left it perfectly free for the landlord and tenant to covenant for its extinction, and consequently a landlord could extinguish the custom exactly in the way that Lord Dufferin said he had done, either by settling with his tenant beforehand or by giving him, at the expiration of his tenancy, whatever he had a right to obtain. If the landlord bought up the claim of the tenant, he would be free to let his land altogether exempted from the custom. But no man could put an end to the custom under the Amendment of his right hon. Friend without going through the additional formality of a registration. He must, therefore, oppose the Amendment.
§ COLONEL BARTTELOT
said, he wished to know when they were to discuss this question of Ulster tenant-right? If they did not discuss it now, they might be told by-and-by they were out of court, and could not discuss it at all. He should like to ask the right hon. Gentleman at the head of the Government whether, in bringing in this Bill, he was looking to the future amelioration of the Irish people, and the improvement of Irish farming, because that point ought never to be lost sight of. If they were going to perpetuate a custom which, to the people of Ulster, might seem good, and which 753 might, up to a certain point, have resulted in good to landlords and tenants in that part of the country, but which could be shown in an improved state of agriculture to be an evil, then on that ground they ought to discuss the whole question very fully. His belief was that if they passed this clause, they would perpetuate the custom. But supposing a better state of things in Ireland, and that in time to come the Ulster tenant-farmer thought he could invest his money better by laying it out on the soil than by buying a precarious thing like tenant-right. If hereafter it should happen that he had to borrow money to cultivate the land under certain conditions which he (Colonel Barttelot) hoped yet to see put in the Bill, for the mode of cultivation now adopted was notoriously bad, then it would be most mischievous if they were to pass this clause. It was perfectly true—although the right hon. Gentleman (Mr. Headlam) had denied it—that good feeling existed at present between the Ulster landlords and their tenants; and there was no likelihood of the landlords seeking to injure their tenants by harshly and suddenly abolishing tenant-right. With reference to the intended purchase of the Waterford estate by the tenants, which had been referred to by the right hon. Gentleman the other evening, he might remark that that was not a good instance. The tenants of the Marquess of Waterford were anxious to purchase their holdings, because the property had been very badly managed. The tenants had been allowed to pay exorbitantly for their tenant-right—in fact, they had paid as much, or nearly as much, as would have sufficed to purchase the fee-simple of the land they occupied, while the landlord had not been paid the amount of rent that he ought to have received. If such a state of things was allowed to continue, the tenants would not be able to cultivate their land in a proper manner. He contended that in what they did they ought to have regard to the interests of Irish agriculture, and to diminish, as far as possible, the burdens of those by whom the land was cultivated, so as to enable them to cultivate their land properly, fairly, and honestly.
said, in answer to the hon. and gallant Gentleman (Colonel Barttelot), he thought it clear 754 that the time for discussing the question of the Ulster tenant-right in principle would be when the question was put for passing the clause.
§ MR. G. B. GREGORY
said, he thought that some words should be inserted providing that any tenant, where the tenant-right had been purchased, should be debarred from obtaining compensation under the other clauses of the Bill.
§ MR. CORRANCE
said, he agreed with his right hon. Friend (Mr. Headlam) in thinking that a division would be hardly satisfactory until a more complete explanation had been obtained of the nature of the clause and the effect of the Amendments. As Englishmen they were considering the question under some disadvantage, because the Ulster tenant-right was utterly opposed to all their practice and their ideas of political economy. They were inclined to regard the matter with some disfavour, and were surprised to find that tenants in Ulster were willing to give twenty, thirty, and even forty years' purchase for a temporary occupation, when they could buy the fee-simple of the farm for the same amount. It seemed monstrous that a tenant should be willing to purchase at such a rate the privilege of having a landlord, and in fact, as Lord Dundreary would say, it was a thing "no fellow could find out." An Irishman once suggested, as an explanation of this extraordinary state of things, that perhaps the tenant liked to have a landlord to shoot; but that did not meet the case, because, as our Irishman observed, if the man bought the farm he would be at liberty to shoot himself. The matter was not only unintelligible, but it was undefinable; and even the learned and jocular Solicitor General for Ireland had been unable to define it in terms. He could understand the purchase of the goodwill, or of improvements; but with regard to the other points, he thought, with the hon. Member for the City of Dublin (Mr. Pim), that the consideration of this clause should have been postponed until the 3rd clause had been discussed. He was prepared to admit that the tenant-right in Ulster had been attended with great advantages; and that it had, in an imperfect and rudimentary fashion, supplied what was provided in a much better manner in this country. It was a conditional circumstance applied to a con- 755 ditional state of things; but upon its own merits simply it would not bear a moment's examination. It was costly to the tenant, and onerous to the landlord; and it absorbed the capital of the tenant, giving him the doubtful privilege of recovering it at the end of the term when he might want to go to America. If, however, he had, in the first instance, purchased the fee simple, he need not go to America at all. Mr. Thompson, late President to the Royal Agricultural Society, ably summed up the matter by describing the Ulster tenant-right asAn ingenious device which takes from the landlord without giving to the tenant; and whilst ostensibly conferring a benefit on the cultivator of the land really robs him of his capital so long as he has any land to cultivate.He confessed, however, that it was a necessity. It was an appalling fact that out of 500,000 occupiers in Ireland 250,000 possessed holdings under fifteen acres each. Such a condition of affairs represented a system of beggary. Hon. Gentlemen sometimes talked of the miserable condition of the English labourer; but his earnings were of greater annual value than those of the cultivator of a holding of that extent. The English labourer might make, with 12s. a week and £5 harvest money, £37 per annum; but the utmost a man could hope to gain from fifteen acres of miserable land was £28 or £30 a year. The laws of political economy hardly extended to such an arrangement; and, therefore, he was willing to apply such provisions as this Bill contained, provided they were temporary. The Amendment proposed to give an opportunity to the landlord to free both himself and his tenant from their heavy burdens; but it was hardly sufficient for the purpose. He believed the effect of the Amendment would be to extinguish the obligation which under the 12th clause was to be imposed upon the landlord. He entirely objected to its being a matter of contract between the two tenants. It was necessary to provide that when the landlord had by an equitable arrangement recouped the tenant he should not be subject to a still more onerous obligation. He might purchase this right at ten, twenty, or thirty years; but, when he had done that, he would be liable, under the 3rd section of the Act, to a further tenant-right amounting to between three and seven years' purchase. That would not be so much a tax upon 756 the landlord; because any practical man would direct his agent to make such a contract with his tenant as would place full security in his hands for the entire amount of the right to be created. The only limitation would be that he might not be able to find anybody to do it. Still, it must not be forgotten that in Ireland there existed a passionate desire to possess land; it was admitted that there was so great a demand for land that a landlord could readily find forty persons who would be glad to become his tenants upon any conditions he liked to impose. This suicidal mania, prevalent amongst Irish tenants, showed that they required protection against themselves, and the Bill did not meet that want. Having made these observations on this question, it would not be necessary for him to address the House at any length when he moved the Amendment of which he had given notice. He should give his support to the Amendment of the right hon. Gentleman (Mr. Headlam), because it did not perpetuate the evil to which he had referred. He hoped that hon. Gentlemen would not consent to deprive the landlord of any power which he might have of freeing both himself and his tenant from the obligations which pressed so heavily upon them.
§ MR. W. H. GREGORY
said, that as almost every remark tending to depreciate the Ulster custom of tenant-right had been received with expressions of approbation, he was rather afraid there was a possibility of the Amendment being carried. ["No, no!"] He was much reassured by the murmur which proceeded from below the Gangway, because he believed that nothing could be more dangerous than that there should be embodied in the Bill, or that there should appear to be a general desire to embody in the Bill, such words as—It is desirable that all fair claims arising from such usages should be duly paid and discharged, but that such usages should continue no longer than is necessary for such discharge and payment.The mere fact that such a clause as this had been seriously entertained would give rise to feelings of the greatest resentment in Ulster, and, in consequence of the clause having been entertained, hon. Members had been obliged to comment at the present moment to a certain extent on the effects of tenant-right instead of reserving the discussion on that 757 subject till they came to the end of the clauses. With regard to tenant-right he would merely repeat what had been stated so often before—that in Ulster landlords got a higher amount of rent than could be obtained in other parts of Ireland for land of the same quality; that the land was bettor cultivated, and that it yielded more produce that in other provinces. There might be many theoretical objections to the Ulster usage, but, after all, they were merely theoretical; but if hon. Gentlemen would consult the Reports of the Poor Law Inspectors, which had been recently delivered to the House, they would find that wherever the Ulster custom had been extended to other parts of the country it had brought with it all the blessings it conferred in Ulster—namely, a contented population, improved cultivation, and better relations between landlord and tenant. In a recently-published pamphlet Mr. Russell, a Scotch gentleman, said in reference to the small holdings so common in the North of Ireland that one of the things which struck him most was the perfectly easy manner in which the agents could collect the rents, and he went on to mention how aghast he felt in passing from Ulster into Connaught, at the appearance of the miserable hovels in Leitrim, held under tenancy-at-will, as compared with the Ulster cottages. It was comfort and independence in the one, squalor and misery in the other. Moreover there was a feeling of irritation in Ireland at the name of Ulster being introduced into the Bill, as it was thought there ought to be no discrimination between one part of Ireland and another, and he certainly thought it would be desirable not to make any special allusion to Ulster in the Bill.
§ MR. GOLDNEY
said, he differed from some of his hon. Friends in regard to this question, which, in his opinion, had been looked at rather from an economical than an Irish point of view. As regarded the comparison between the number of years' purchase given for the tenant-right and the value of the fee simple of the land, it ought to be borne in mind that there was no chance of buying freehold land in Ireland in small quantities, and that, consequently, the occupier, by buying the tenant-right, got a status which was obtainable in no other way. He likewise got a dwelling- 758 house, and it was well known that in many parts of Ireland it was very difficult to get a piece of leasehold ground to build upon. One great advantage of the tenant-right system was that from the very commencement of the tenancy the landlord had an absolute guarantee for the payment of the rent, for he knew that the tenant had invested a sum which he hoped to got back when he left the holding, and that when the goodwill was purchased all arrears of rent would be paid. The purchase of land was not the best of investments in England; but the fact that higher interest could be obtained in other ways did not deter persons in this country from devoting themselves to agricultural pursuits. It appeared to him that the original clause in the Bill gave everything asked for by the Amendment. At all events, he thought they ought now to confine their attention to the particular point raised, and not go into the general merits of the Ulster custom, when only an Amendment to the clause was before the Committee.
THE MARQUESS OF HAMILTON
said, he wished, as an Ulster Member to say a few words in favour of the custom of that Province. He thanked the Chief Secretary for Ireland for the manner in which he had spoken of the tenants and landlords generally in Ulster. Objections had been raised to the theory of tenant-right, and though some of these might hold good, especially in cases where the incoming tenant had been impoverished, yet he maintained that in practice the system worked in the most satisfactory manner. It had been the means of giving to the Ulster tenant that independence of circumstances and of character which so distinguished him, and moreover it had tended to promote that friendly and social intercourse between landlord and tenant which did not exist to the same degree in the rest of Ireland. As the Irish farmer generally was attached to the soil, so the Ulster tenant was wedded to this custom; and he might almost say that the son of every tenant in Ulster was born with tenant-right round his neck. Then it gave the tenant an interest in the soil he occupied, for he knew that the money he laid out upon it would be repaid to him at the expiration of his tenancy. The right hon. and learned Gentleman the Member for Newcastle (Mr. Headlam) 759 was, he thought, rather severe on the Ulster tenant-right custom—at all events his remarks went to the extent of stating that the legalizing of the custom would not confer any substantial benefit upon the Ulster tenant. To this observation he should merely reply that if they removed the custom they would inflict a substantial wrong. As one of the main principles of the Bill was to do justice to the Irish tenants, one of the first objects of the Bill would be defeated by adopting the Amendment.
§ MR. W. FOWLER
said, he hoped the Amendment would not be pressed to a division. He looked upon the Ulster tenant-right system as being in theory a great mistake. The people of Ulster, however, evidently liked it, and it would be a very serious thing to come to the conclusion that it was an absurd custom and ought therefore to be got rid of as soon as possible. That being his opinion, he was not prepared to vote with the right hon. and learned Member for Newcastle (Mr. Headlam). There was, at the same time, some obscurity in the clause itself, with respect to the machinery for carrying it out, which it would be well to have cleared up.
§ MR. M'LAGAN
said, he was no admirer of tenant-right custom, or of many of the agricultural customs of England. Such undefined and undefinable laws were, he thought, not beneficial to agriculture. If the Amendment were passed, it would be useless, because it would provide nothing more than was provided for by the clause as it stood. Its operation might, indeed, be mischievous by giving rise to a spirit of dissatisfaction and discontent. When he last visited Ulster, he found that the farmers there were very much attached to tenant-right, and the Committee ought not, in his opinion, to act in opposition to that feeling.
§ MR. BOURKE
said, he wished to know why it was that the other usages of Ireland were treated differently from the Ulster usage. He also thought that before they proceeded further, the Solicitor General ought to explain how the usages of Ulster were to be enforced, for it was said that they were to be enforced "in manner provided by this Act."
said, he could not see that any satisfactory reason had been given for legislating for Ulster in a different manner from that in which they legislated for other parts of Ire- 760 land. Under the terms of the clause legalizing the custom, no right of action was conferred upon the tenant. He admitted that the people of Ulster liked the custom; but what he objected to was the use of general words in the Bill calculated to raise expectations on their part which there would be no means of realizing. The use of such vague language must operate prejudicially.
§ THE SOLICITOR GENERAL FOR IRELAND (Mr. DOWSE)
said, the effect of the clause, if carried, would be that the Ulster custom would have a legal foundation which it had not at present. There was a great difference between a wrong with and one without a remedy. The mode of enforcing the remedy in the case of the Ulster tenant-right would be pointed out at the proper time. He thought there was no use in discussing the whole principle of the clause upon a single Amendment. As the object of the Bill was to do justice to the Irish tenant, one of its main purposes would be defeated if something like the present clause were not passed.
§ Amendment negatived.
said, he could see no reason why a distinction should be drawn between the Ulster custom and the customs prevailing in other parts of Ireland. It appeared invidious; it would awaken a suspicion that a preference was given to the North over the South; and, unless it was absolutely necessary to retain them, all such distinctions should be effaced from the Bill. He therefore desired that Clause 2 should be expunged, and that all customs should be treated under one and the same clause, and in one and the same way. Whatever was the extent of the customs other than tenant-right they should be acknowledged, and acknowledged without limitation. In Ulster the tenant-right custom was infinitely various, and carcely extended beyond a limited area, comprising the counties of Down, Antrim, and Armagh; but, according to the Reports of nearly all the Poor Law Inspectors, the custom prevailed to a certain extent all over Ireland, especially in Leinster and Connaught, and was reported to be gradually gaining ground under the influence of public opinion. He believed that the aggregate of the estates upon which the custom, or analogous customs, prevailed, in the other 761 Provinces was as extensive as in Ulster. He hoped, therefore, that the Committee would accept his Amendment, and would treat all these customs without any distinction or limitation—except that which inhered in the custom itself.
In page 1, line 10, after the first word "the," to insert the words "usages relating to the transmission of a holding by tenant, and to the compensation to be made to or on account of an outgoing tenant of a holding, including the usages commonly known as the Ulster tenant-right custom, are hereby declared to be legal customs, and shall, in case of any holding proved to be subject to any such usages, be enforced in manner provided by this Act."—(Mr. Samuelson.)
§ MR. COGAN
begged to express his entire concurrence in the views expressed by the hon. Member for Banbury (Mr. Samuelson), and he awaited with great anxiety the reasons of the Government for the course which they had adopted in this matter. After giving the subject the best consideration in his power, he could not conceive why they should separate Ulster from the other parts of Ireland. If the Ulster custom was only partial, even in Ulster, and if the other customs of the country had the same characteristics, why should it be necessary to have two clauses to deal with them instead of one, when the intention was to legalize the customs, with all their variations, as existing facts? If a custom existed on the Earl of Portsmouth's estates in Wexford, or in any county, by which compensation was given to an outgoing tenant free from any of the limitations mentioned in the three provisoes of the 2nd clause, why were they not to legalize this custom, and why were they to apply to a custom that prevailed outside Ulster special restrictions that did not attach to the custom of Ulster? If the restrictions existed out of Ulster, legalizing the customs as they exist would answer every purpose without inserting the restrictions in a clause. If the intention were to create new restrictions that would not be dealing in a fair and uniform manner with the whole of Ireland.
§ MR. POLLARD-URQUHART
said, he would appeal to the Government not to reject the Amendment of the hon. Member for Banbury (Mr. Samuelson). He failed to see why a custom existing in any of the other Provinces should not be legalized as well as the custom of Ul- 762 ster. If these customs were not legalized, great injustice would be done to many tenants, who, through the gradual rise in the value of agricultural produce since the Crimean War, had acquired considerable beneficial interest in their holdings, which had passed from one to another at considerable premiums, generally speaking with the consent of the landlords; for the old landlords, generally speaking, had not taken advantage of the improved agricultural prospects; but when the property had changed hands, new landlords were too often indisposed to concede the benefit thereof to tenants. The landlord lost nothing by allowing tenants to sell their interests, if he was willing to let his ground to a small farmer at the same acreable rent that a large capitalist farmer would give for it; for the profits of stock were greater in the case of the small farmer who worked himself, than in that of the large farmer, who hired labourers, and the purchase-money represented the capitalized difference between the profits of the former system over the latter system. He believed that if the custom were abolished the small farmers would be evicted and reduced to the condition of Lincolnshire; gangers—evidence of whose state had been laid before the House—or have to emigrate to Sheffield there to blow each other up.
§ MR. BRADY
said, he would support the Amendment. He believed that the custom of Ulster had made that Province what it was. He had listened with much gratification to the remarks of the noble Marquess the Member for Donegal (the Marquess of Hamilton). The noble Marquess had been brought up in a county where the advantages of Ulster tenant-right were apparent, and what he said was therefore deserving of the consideration of the House. Though it was not easy to make a custom, it might be worth while attempting to foster generally a custom which had proved such a blessing to one Province.
§ MR. PIM
said, he rose to express his hope that the Government would see it right to accede to the wishes which had been so generally expressed. He could not think that special legislation for Ulster would satify the other three Provinces. In those Provinces there would, under the 2nd clause, be no claim by the tenant unless he were disturbed in his holding, and he would not have the power to sell his 763 tenant-right to a new tenant. He would again direct attention to a passage in the Report of Mr. Hamilton, Poor Law Inspector, who said—In Fermanagh the Ulster tenant-right custom exists upon many estates in a modified form, restrictions being imposed which are almost unknown and would hardly be tolerated farther north.From this it was evident that there were many parts of Ulster in which the custom of tenant-right was, in fact, not so well observed as it was on several estates in the three Southern Provinces. He knew it might be said that this was only a sentimental grievance; but it was for a sentimental grievance that the Irish Church was disestablished, and it would be blowing hot and cold to disregard in the present case a sentimental grievance.
§ MR. GOLDNEY
said, he thought that the hon. Gentlemen who had spoken in favour of the Amendment were now very hard on Ulster. That Province had before been lauded up by them as the happiest Province, because it had this usage of tenant-right, and when the Government proposed to legalize the usage those hon. Gentlemen objected unless customs in other Provinces were legalized also. Surely they might deal with the Ulster custom as it existed, and it would be quite competent for hon. Gentlemen, when they came to the 2nd clause to say that all the rest of Ireland should have the same thing done for it.
THE ATTORNEY GENERAL
said, he thought the Committee would see that it was impossible to agree to the Amendment as it stood; and when they came to the 2nd clause, it would be quite right to consider whether it required amendment. The adoption of the Amendment would be a declaration by the Legislature that every conceivable custom in Ireland, relative to the transmission of a holding by a tenant, was a legal custom. That would be going further than the Legislature was justified in going, and further than it would go in respect to England, where there prevailed a variety of customs, some reasonable or legal, and some unreasonable or illegal, and it was left to the courts of law to determine which of those two characters attached to them. But, as the Ulster custom was not recognized by the courts of law it was now proposed that it should be recognized by them; and this was proposed on well 764 understood grounds. They knew what the Ulster custom was; but it was quite another question whether it was desirable to give a complete definition of it in an Act of Parliament. He repeated that they knew substantially what the Ulster custom was, for it had been acted upon and recognized by landlords and tenants, and by writers in the Press, and others. No doubt there were several usages in reference to the Ulster custom; but they were substantially understood, and in declaring the Ulster custom legal Parliament recognized that which was understood. To say, however, that every conceivable custom, whether they knew or did not know what it was, should be legal, would, as he before said, be going further than the Legislature had any right to go, and the words of the Amendment would, in fact, commit them to "a leap in the dark." Suppose it had been the custom in some part of Ireland that tenants might be ejected without notice, such a custom would be declared legal by this Amendment, as would every other custom, whether it were in favour of the landlord or of the tenant. He agreed that it might be desirable to define the Ulster custom as far as they could define it, and that point would be raised on an Amendment given notice of the right hon. and learned Member for Dublin University (Dr. Ball), after which it would be competent for the Committee to consider whether the other customs of Ireland could be dealt with in a manner different from that proposed in the 2nd clause of the Bill.
§ MR. O'REILLY
cordially supported the Amendment of the hon. Member for Banbury (Mr. Samuelson). The avowed object of the Government when introducing this Bill was to legalize the custom of Ulster in regard to the tenure of land, where and as it existed, without attempting to define what that custom was. Well, they proposed to do so by the 1st clause, but in the 2nd clause their object was to legalize the land customs in regard to other parts of Ireland. Now, what the hon. Member for Banbury, and the great majority of Irish Members, wanted was to obtain those two objects by the one clause. If the objects of both clauses were the same, why should they not be attained by identical legislation? Why import into the Bill any limitations in regard to the land customs out of Ulster that were not 765 imposed in regard to the custom of Ulster? The Attorney General asked the Committee to settle this question regarding the Ulster custom first, and then they could consider the other customs. He (Mr. O'Reilly) should be happy to assist in doing so if the one question was not involved in the other. He was very glad to hear the hon. and learned Gentleman say that they knew exactly what the Ulster custom was, but they did not know precisely what the other customs were. The Government, however, did not attempt to define the Ulster custom, but left it to the Courts to determine it, for the reason that though it was in some measure identical it varied upon some points. And yet whilst they declared they did not know precisely what the land customs in other parts of Ireland were they proposed limitations and restrictions respecting them. Why did they not leave them to be determined by the same test as that to which the Ulster custom was to be submitted? He hoped that their legislation would be made identical throughout the whole of Ireland.
said, he doubted very much, from the speech of his hon. Friend who had just sat down, whether he completely understood the view with which the Government made their proposal to the House, and the ground on which they resisted the Amendment of his hon. Friend the Member for Banbury (Mr. B. Samuelson). The Attorney General for England stated that the Government knew the meaning of the Ulster custom. Well, he (Mr. Gladstone) thought they did in this sense. Without entering into its specific varieties, the essential distinction of the Ulster custom was this—that it rested on the consent of the landlord, and was so established by practice and tradition that they were entitled to assume it to be part of the covenant under which the tenant took his holding. That was the essential distinction of the Ulster custom, and upon that arose this question—first, was there any Ulster custom beyond Ulster? Secondly, was there any other customs out of Ulster of similar authority; and, if so, did they, or did they not, deserve any recognition from Parliament? With regard to the Ulster custom, what he observed was this. There was a great deal of latent misgiving in the Committee—there was no denying it—in the minds 766 particularly of English and Scotch Members, who, perhaps, did not enter into the circumstances of Ireland with that attention which it was the duty of the Government to bestow upon the subject, as to the soundness of the Ulster custom at all. Under those circumstances—while that misgiving existed, and before the Committee committed itself to the Ulster custom—his hon. Friend the Member for Banbury proposed to import into the clause a general recognition of all the customs that prevailed in Ireland in regard to the holding of land. Now, if his hon. Friend wanted to get the Ulster custom overthrown, he (Mr. Gladstone) could not conceive a better mode of effecting that object than to load this clause, or he might say, overload the vessel, with such a miscellaneous cargo. The ground upon which the Government stood, and they took that ground boldly, was this—They did not wish to blame the Irish Courts for the course they had taken in this matter; but they said the Ulster custom was a custom of such a nature that it ought to have been recognized as a part of the covenant. It had not been recognized, and justice required that it should be so recognized. Their proposal, then, was this—first, let this question be discussed—it was a broad proposition, well deserving the most serious and careful separate consideration—whether that which had heretofore been repudiated by the Courts, but which they contended had, nevertheless, authoritatively prevailed throughout by far the greater part—nearly the whole—of the Province of Ulster, had acquired such a standing and hold, that in equity and in good faith Parliament was bound to recognize it, and give it the force of law. The Government said it ought to be so recognized; but, still, that was a proposition which he thought was not a self-evident one, and it well deserved a minute and careful examination. It appeared to them, without at all pretending to rule what the final judgment of this Committee should be on customs other than Ulster customs, that by far the best way in difficult legislation of this kind was first to go to the point to which they had at length seen their way clearly; when they had reached that point, it was probable that they might see their way a little further. What they said was, that the Ulster tenant was clearly entitled to 767 have his custom recognized. He believed—and he spoke under instruction—that there was no doubt that the moment the Legislature declared that this was a legal custom it invested the Ulster tenant with a right to have it recognized and acted upon by the Courts. The words in the Bill, which said that the question should be decided in the manner prescribed by that Act, merely meant that they were going to set up special courts exclusively to entertain these questions. Without those words, the settlement of the Ulster right might go into the existing courts; but the Government wished to provide a court in which the landlords and tenants might settle their differences. "In manner provided by this Act," therefore meant the cheap and easy machinery which the Act supplied. He would not pretend to rule the question of principle involved in the Amendment; but he did say that if, as he understood his hon. Friend to mean, there were customs which had the same weight, force, and authority in equity in other parts of Ireland as the customs in Ulster, they should be subjected to the same treatment. But after long labour he found the subject a difficult one to get at the bottom of. He hoped discussion would throw light on it, and if there were customs out of Ulster entitled to the same recognition as those in Ulster, by all means let them have it. But this was quite plain—that there was no district in Ireland where the landlord was morally bound, independently of his own will and judgment, to acquiesce in those customs except in Ulster. There was no district in Ireland where the same force and weight of opinion could be said to exist, and where landlords felt that they would be guilty of a breach, to a certain extent, of moral obligation if they declined to obey the custom. This was a most important point, and he felt bound to own that he had been himself to blame in this matter; for he ought at the outset, on introducing the measure, to have called the attention of the House to a provision in the Bill with respect to the case out of Ulster which approximated most closely to the Ulster usage—namely, where the tenant had paid a sum on becoming tenant of his farm. That case was provided for in Clause 6, which enacted that wherever a tenant had paid a sum on coming into a farm with the consent 768 of the landlord—that was the essential feature that brought it substantially into the same category with the Ulster custom—he should be entitled to obtain a judgment of the Court in respect of the amount he had so paid, unless the landlord permitted him to dispose of his interest—which was the Ulster custom. These questions were in the rest of Ireland matters of extreme difficulty. The Devon Report, Messrs. Ferguson and Vance's Report, all the authorities on the subject of custom of tenant-right, in other parts of Ireland than Ulster, proved this. He ventured to say that there were very few questions of fact that were more difficult to dispose of. It was a very serious matter to carry the Ulster custom beyond Ulster. He did not give an adverse judgment in this matter; but he said distinctly that it was a question that deserved most serious consideration. They had in Ulster a state of things that existed nowhere else—could the hon. Member show him a county or a large part of a county throughout the whole of which it was a matter of honourable obligation on the part of the landlord to recognize the Ulster custom? No one had gone nearer to constituting an Ulster custom than the Earl of Portsmouth. He had gone to the extreme of liberality and equity towards his tenants, and he (Mr. Gladstone) believed another gentleman had followed his example. These two gentlemen, by their own individual acts of liberality, not constrained by any prevailing opinion or custom or tradition, had said to their tenants—"You shall dispose of your interests when you quit your holdings; you shall do it not only when you are tenants from year to year, but at the end of your lease." But it was not a conclusion to which they should jump in a moment that upon the Earl of Portsmouth, who had acted with this personal liberality, there ought to be saddled this legal obligation in precisely the same way as if he took the estate subject to a traditional bond he could not shake off. He did not wish to press his opinion on this point; but he said there ought to be a separate consideration of this point. Let them have distinctly set out in evidence the prevalence of customs equivalent to the Ulster custom out of Ulster, and where it existed. Where there was a custom equivalent to the Ulster cus- 769 tom, and where there was the consent of the landlord to the custom—not the mere act of his own liberality, but settled by the fixed tradition of the district—let them give to the man out of Ulster every advantage which he could have in Ulster. These he thought were fair terms. It would be most exceptionable to adopt the Amendment of his hon. Friend; for, not satisfied with providing prematurely for cases analogous to the Ulster custom, he took up a great armful of those usages—more than anyone could carry—relating to the transmission of a holding by a tenant, and proposed to give them all the force of law. A great multitude of these usages had not the consent of the landlord; a great portion of them were underground usages. It was a very strong measure to say of the whole of these in a lump—"We will at once give them the force of law making them binding on the landlord," who, in many cases, perhaps knew nothing about them. He thought his hon. Friend should accede to his proposal. The proposition, whether it were a sound or an unsound one, deserved separate and careful consideration. It would not be wise to mix up matters so promiscuous in character, and admitting of so many diverse views, with that which was clear and simple in principle and form—namely, the title of the Ulster tenant to have recognized by law the virtual covenant under which for generations he had been acting. When they came to the 2nd clause they would have an opportunity of considering whether those less authoritative customs which prevailed in different parts of Ireland, without the systematic favour or consent of the landlord, should have a separate consideration or not, and whether the Ulster customs prevailed elsewhere or not. If they did, he said let them give effect in any way to the principle of equality; but he thought it would be unwise of the Committee to set a legal stamp or seal in a wholesale and miscellaneous manner on all customs, whatever their authority, and whether the landlord had heretofore been morally or honourably bound by them or whether he had not.
§ DR. BALL
said, he was opposed to the Amendment, because he thought that the qualifications provided by the 2nd clause were only reasonable and just. The first of those qualifications was that, out of any moneys payable to 770 the tenant under the section, all sums due to the landlord in respect of arrears of rent or of any deterioration of the holding arising from non-observance of the covenants and agreements should be paid to the landlord; the second was one by way of penalty against subletting and subdividing; and the third was one providing that a thirty-one years' lease should be an answer to any demand under the section. He was not aware of any single estate out of Ulster on which the Ulster custom prevailed, except that of the Earl of Portsmouth. The facts in connection with the origin of the custom on that estate were these—The Lord Portsmouth before the last was for many years a lunatic under the English Court of Chancery, which court had no power to grant leases in Ireland. Accordingly, as long as that Lord Portsmouth lived no leases could be granted on his Irish estates; but the tenants on his Enniscorthy estates were an enterprizing body of men, and trusting to the honour of his Lordship's descendants they spent money on buildings and other improvements. They were not deceived. Here, then, was the case of a nobleman who acted generously to his tenants by acting on the principle of the Ulster custom, though there were no old traditions nor long usages to bind him even in honour to do so. But was that a reason for sweeping out of the 2nd clause the qualifications to which he had just referred? Why were those qualifications not required in Ulster? Because the Ulster custom was already limited and qualified by the usage of localities. It did not exist as an abstract and uniform system. On the contrary, it was various and flexible; modifications had been introduced adapting it to different localities. The case was quite different with the customs which would come under Section 2. They had not existed long enough for qualifications suitable to various localities to have annexed themselves to the essential attribute, and this Bill most properly introduced qualifications. Under these circumstances, he hoped the hon. Member for Banbury (Mr. Samuelson) would not press his Amendment.
§ MR. SYNAN
said, he was astonished at the assertion of the right hon. and learned Gentleman who had just sat down that the Ulster custom was not to be found on any estate out of Ulster 771 except that of Lord Portsmouth. It was clear that the right hon. and learned Gentleman had not read the Reports of the Inspectors, which clearly showed that customs existed outside of Ulster similar in every respect to the Ulster tenant-right. According to the Reports of Mr. Robinson and Mr. Burke, the custom existed in Wicklow, Carlow, Kildare, Kilkenny, Queen's County, Wexford—none of which were in Ulster. It varied in Ulster, and it varied also in those counties; and on some estates it was recognized and sanctioned by the proprietors. A practice in some way resembling the Ulster tenant-right had prevailed in the South for a considerable time—in parts of Cork, Kerry, and Clare—and almost the whole of Limerick.
§ MR. M'CARTHY DOWNING
said, he was not aware of any system existing in the county of Cork under which a tenant could dispose of his tenant-right and the interest in his farm; but he knew of a case where the tenant might come to the landlord and say—"I want to leave; if you have no objection I shall sell my interest;" but that was not the custom of the North. It was not known in the South, except on one estate in the county of Kerry—the estate of an absentee nobleman, the Marquess of Lansdowne, on which it had existed for 200 years, though he regretted to say, it had been of late very much evaded.
said, his opinion had been so far modified by statements made in the course of the discussion, that he would acknowledge the words of his Amendment to require revision; but he still thought that the clause was not satisfactory. He would consent to withdraw his Amendment if the Solicitor General for Ireland would promise to redraw Clause 2, so as to give full scope to all reasonable customs in other parts of Ireland than Ulster. He desired that the tenants in other parts of Ireland should be dealt with as far as possible as the Ulster tenants were dealt with, and that all their reasonable customs should be recognized without qualification.
THE O'CONOR DON
said, he hoped the hon. Member (Mr. Samuelson) would not withdraw his Amendment. He should certainly vote for it if a division took place. In his own county (Roscommon), not in the Province of Ulster, a custom of this kind was in existence. It was 772 existing on his own estate, and tenants had paid for the right to enter on the holdings before his time. He could not understand on what principle this general custom was to be recognized in Ulster just as it existed, but was to be curtailed in other Provinces by the restrictions contained in the 2nd clause.
§ THE SOLICITOR GENERAL FOR IRELAND (Mr. DOWSE)
said, he could assure the Committee that the Government had not the least intention of depriving hon. Gentleman of the opportunity of discussing this question in its proper place—namely, on the 2nd clause of the Bill. The Bill dealt with a large question in a bold and comprehensive manner, and he doubted whether those hon. Gentlemen who wanted to weld the two clauses together would be able, if they set to work, to draw a clause which would settle the matter. The task of criticism was infinitely easier than that of construction, and it would be inconvenient to upset the whole plan and scheme of the Bill by fusing together Clauses 1 and 2; they should let Clause 1 be properly discussed, and then they would be able to come to the consideration of Clause 2. The Attorney General was right in saying that they had obtained a broad and well-defined notion of the Ulster tenant custom as compared with the customs referred to in Clause 2, which varied from each other in every county, if not on every estate. He did not think that his right hon. and learned Friend the Member for the University of Dublin (Dr. Ball) was fairly dealt with by the hon. and learned Member for the county of Limerick (Mr. Synan). Statements from the Repotrs, to which the hon. Gentleman had alluded, showed that although a custom had grown up in some parts similar to the Ulster custom it existed, in many cases, surreptitiously. Practically speaking, although Clause 2 did not give the force of law to every custom which might have grown up in every part of Ireland, with or without the consent of the landlord, it gave to every tenant in Ireland, who held under a custom similar in its essential features to the Ulster custom, all that the Ulster custom gave those who held under it.
§ MR. COGAN
said, that many persons were competent to discuss the provisions of a Bill without being able to draw a clause; and, as the hon. and learned Gentleman (the Solicitor General for 773 Ireland) had referred to the drafting of this Bill, he would remark that, all things considered, it was not so perfect a specimen of drafting as to be entitled to great praise. If the limitations contained in Clause 2 were necessary for other parts of Ireland, why were they not made to apply to Ulster also, when it was the avowed object of the Government to legalize all existing customs?
§ MR. MOORE
said, he was much astonished at the speeches of the Attorney General for England and the right hon. and learned Gentleman the Member for the University of Dublin (Dr. Ball), which proved that the most astute could not dispense with some knowledge of the subject on which they spoke, and an acquaintance, however elementary, with the facts on which they undertook to argue. But the speech of the right hon. Gentleman at the head of the Government did not surprise him, because it only showed again that in his case any such knowledge was entirely unnecessary. The Solicitor General for Ireland had shown that nothing could be more indefinite than the tenant-right custom I which prevailed in Ulster, and the Treasury Bench had repeatedly stated, when it was their cue to put forward such a proposition, that in Ulster the custom differed in various parts of the Province, and that various estates differed from each other as much as from the rest of Ireland. All that was now asked was for some custom which should apply to the whole of Ireland, and against that demand he had not heard anything worth calling an argument from the Government side of the House.
§ MR. JESSEL
said, what he understood to be the meaning of the 1st clause was, that the House would give legislative sanction to that to which the Irish Judges ought long ago to have given legal sanction. What he under-derstood to be the principle of the Bill, which had been affirmed by the House in passing the second reading, was this—Whereas the English Judges had always acknowledged the custom of the country as forming part of the implied contract between landlord and tenant, and had always enforced it in every court of law and equity in the kingdom, the Irish Judges, for reasons which it was not difficult to ascertain, had not chosen to follow the example of their English 774 brethren. It had been said that one reason was that, until within a recent period, the Judges in Ireland were chosen from a limited class peculiarly connected with the landlord interest in that country. ["No, no!"] He did not wish to say a word against the good intentions of the Irish Judges; but all who practised in courts of justice knew that Judges were but men, and naturally participated in and sympathized with the feelings of the order to which they belonged. But, whatever the cause might be, the result had been that the law in Ireland had differed in that most important respect from the law in England. Wherever, in England, sufficient evidence had been given of a usage being established for a reasonable length of time, throughout a sufficiently extensive district of country, the Judges had decided that that was a legal custom, and a custom of the country. What the Government intended to do was to rectify what was considered a miscarriage on the part of the law in Ireland—or rather of the administrators of the law—and to give an equal legal sanction to customs or usages of the same character existing in Ireland. To decide what the custom was must be matter of evidence. Though the House might hesitate in the case of districts where the evidence of customs was not sufficient, that was no reason why they should not give their sanction to what was admitted on all hands to be proved by sufficient evidence in regard to Ulster. The promise being given by the First Minister of the Crown that the evidence with regard to other districts should be considered, he hoped the lion. Member for Banbury (Mr. Samuelson) would withdraw his Amendment.
MR. GATHORNE HARDY
ventured to say that the statement which had been made by the hon. and learned Member for Dover (Mr. Jessel) as to the conduct of the Irish Judges was entirely unfounded both in law and fact. He (Mr. Gathorne Hardy) had looked into the Irish law books to see whether what was called the Ulster custom had been before the Irish Courts, and whether was any decision on the subject, but he could not find any, and why? Because, as the hon. and learned Member for Dover knew, the same law existed in Ireland as in England—namely, that wherever a custom was confined to a particular holding or estate it was not 775 recognized by the law. So far from its being a fact that the Irish Judges had neglected to deal with the custom of the country he had ascertained that, wherever they found a custom existing between landlords and tenants, or between incoming and outgoing tenants, in a county or throughout any particular district, they had given legal sanction to it, as the Judges in England had done. But that which was called "the custom of Ulster" was not, in the legal sense of the term, any custom at all. It was only a system of usages which had grown up on particular estates, and did not exist throughout Ulster, nor even over the whole of any county in that Province; and, therefore, he was glad to hear from the Government—who, he hoped, would make the matter perfectly clear—that all they proposed to recognize were such customs as had existed for some length of time, and as to which evidence could be given that they had not been surreptitiously made between an incoming and the outgoing tenant, but had existed with the consent of the landlord, thereby becoming a virtual covenant which the landlord was bound in honour to fulfil. To go beyond that would be to do a gross and cruel injustice. How, then, were these customs to be enforced? The Committee could only legislate between landlords and tenants, and could not deal with the incoming and outgoing tenants, the latter not being within their disposition. Coming to the clauses which dealt with this matter, he found the Government stating that something which they called "the custom of Ulster" was to be made legal, and passing by the technicality of objecting that there was not anything now existing which was a custom in the legal sense of the term, as it was used in England, he would inquire whether, if a tenant wished to leave his occupation, the landlord was to be bound to find an incoming tenant who would repay the outgoing one the money that man paid on entering the holding, or an equivalent; or whether, if such a person could not be found, the outgoing tenant was to have any right to demand his money from the landlord? He apprehended, from the 12th section, that the landlord ought not be bound either to find an incoming tenant or to pay the outgoing one; but that if the outgoing tenant could not 776 find some person who would pay for his tenant-right he must go away without being paid. [Mr. GLADSTONE assented to this proposition.] Since the Government assented to what was just and right, he had nothing more to say.
§ Question put, "That those words be there inserted."
§ The Committee divided:—Ayes 42; Noes 325: Majority 283.
§ MR. ASSHETON CROSS
said, he rose to move, as an Amendment, in page 1, line 10, to leave out from "The" to "Act," inline 16, and insert—The several usages now prevalent in the Province of Ulster, which are commonly known and in this Act referred to as the Ulster tenant-right customs, are hereby declared to be legal customs; and in the case of any holding in the Province of Ulster proved to be subject to any such custom the same shall be enforced against any landlord violating such custom in the manner provided by this Act.He wished the Attorney General for England to give an answer to what he said was so easy—namely, what was the custom of Ulster? The First Minister of the Crown had told them what he understood by it, and he (Mr. Cross) wished I to know the Attorney General's legal definition of it. The usages and customs of Ulster varied in different parts of that Province, and supposing the Judge of one Civil Bill Court gave one decision, and another learned Judge gave a different definition, who was to decide between them? The object of his Amendment was to carry out practically what the Government wished—namely, to include in the custom of Ulster the several usages which prevailed in different parts of that Province. He wished to know from the Attorney General if the clause, as drawn up by the Government, would admit of that meaning? There was another point to which he wished to call the attention of the learned Attorney General. About the end of the clause there were these words—"be enforced in manner provided by this Act." Now, under Section 12, although the landlord might be willing to allow the tenant, according to the understood custom of Ulster, to sell his right, if the latter did not then choose to do so, he might afterwards treat the matter as a debt. His Amendment provided in cases where landlords did not wish to violate the custom, that the tenant should have no claim against the landlord under such cir- 777 cumstances. The hon. and learned Member concluded by moving the Amendment.
THE ATTORNEY GENERAL
said, he agreed in substance with the hon. and learned Member's (Mr. Cross's) remarks, and when he said that the Ulster custom was well understood he did not wish it to be inferred that he thought the customs in Ulster uniform. Some part of the Amendment proposed by the hon. and learned Member would, undoubtedly, be an improvement to the Bill. It was decidedly an improvement to use the word "usages" in the plural. But, on the whole, he preferred the Amendment which stood in the name of the right hon. Member for the University of Dublin (Dr. Ball) which was very much to the same effect. He did not approve the concluding words of the Amendment of the hon. and learned Member for South-west Lancashire; he did not think it well to state that the customs should be enforced against the landlord, he would rather that the Act should say, as in the clause, the customs shall be enforced, so that they would be in force against both tenant and landlord. Under these circumstances, he did not think they would have any serious difficulty in settling the clause.
§ DR. BALL
said, he was comparatively indifferent which Amendment was adopted, whether his own, that of his hon. and learned Friend the Member for South-west Lancashire, or that of the hon. Member for King's Lynn (Mr. Bourke); they all involved the main point—the use of the plural word "usages" for "usage." But an improvement, borrowed from the Amendment of the right hon. and learned Member for Newcastle (Mr. Headlam), had been suggested to him in respect of his own Amendment; and that was, instead of using the phrase "determination of tenancies," to use the phrase "determination of occupancy," because it was the occupation which would cease, though the the tenancy, the right to hold, and the agreement under which the farm was held, might be sold and would continue. In the Amendment of his hon. and learned Friend the Member for King's Lynn he found another phrase, which he much preferred to one in the Amendment in his own name—instead of saying that those usages should be legal, he would say, as his hon. and learned Friend did, 778 that they should have the force and effect of legal customs. It appeared to him that they were legal without the Act of Parliament saying it, and that it was better not to say they were legal customs, because they might be driven into this inquiry—"Have they every incident of a custom?" But if it were declared that they should have the force and effect of custom, then it would not matter whether they were strictly and rigidly customs. However, the main point about which he was anxious was that "usage" should be turned into the plural "usages." That alteration was required to make the clause perfect.
§ THE SOLICITOR GENERAL FOR IRELAND (Mr. DOWSE)
said, he thought they were all nearly agreed as to the form in which the clause should stand; and, after all, the question they were discussing was very much one of verbal criticism. But the Amendment of the hon. and learned Member for Southwest Lancashire (Mr. Cross) would introduce words into the clause which might lead to some misconception. The Government were quite ready to adopt the word "usages" instead of "usage; "but they were not equally prepared to turn the word "custom" into the plural number also. The words "violating such custom" in the Amendment were likewise open to objection, because they might practically cut down the Ulster custom, alter its incidents, and do injury without doing any equivalent good. The late Marquess of Londonderry, a nobleman intimately conversant with the management of large estates in Ireland, stated, in one of his speeches, that, in addition to the tenant's right to sell his tenancy where there was an eligible candidate for it, it was customary in some cases, even if there were no purchaser, and the tenant desired to quit his holding, for the landlord to give compensation upon a fair valuation to the tenant. In most instances the Ulster landlord did not give such compensation, but he allowed the outgoing tenant to sell his interest to the incoming tenant; and if the landlord was reasonably satisfied with, the incoming tenant, matters were harmoniously settled between all the parties. But where it was a custom that the tenant could claim compensation from the landlord, even when the latter did not technically violate the custom, the insertion of the 779 words "violating such custom" might introduce difficulty and complication into the clause. The Ulster custom varied in different districts—in no two counties had it the same incidents; but the description given of it in Ferguson and Vance showed all its varieties to possess the common characteristic of a right on the part of the tenant to sell his interest. He thought it better for the Committee not to attempt to define the custom in terms, and he objected to the definition proposed by the right hon. and learned Member for Dublin University (Dr. Ball), because it was rather a hint at a definition than a definition itself, and might, perhaps, be regarded as a cutting down of the custom. Of the various Amendments suggested on the other side, he thought the best was that of the hon. and learned Member for King's Lynn (Mr. Bourke.) But the Amendment of his right hon. Friend the Chief Secretary for Ireland appeared to him to be better than any of them, subject to the alteration of "usage" into "usages." That Amendment was to the effect that—The usages prevalent-in the Province of Ulster, with reference to the compensation to be made or allowed to or on account of an outgoing tenant of a holding, and which usages are commonly known and in this Act referred to as the Ulster tenant-light customs, are hereby declared to be legal customs, and shall, in the case of any holding in the Province of Ulster proved to be subject to such customs, be enforced in the manner provided by this Act.That would be an elastic clause, providing for all practical purposes; and its result would be that if the usage could be proved it would be decided to be legal by the Court, and they would not attach incidents to it that might exist in one case and not in another, which would have the effect of defeating the very object of the clause.
§ SIR ROUNDELL PALMER
said, he quite agreed with the last speaker as to their having now come to questions of phraseology rather than of substance; and he also very nearly agreed with him, but not quite, as to the way in which the clause should be worded. The argument for the adoption of the plural instead of the singular of "usage" was unanswerable. If they retained the singular only one custom would be contemplated by the Act, and this might lead to considerable difficulty if a case were carried into court. But he could not agree with his hon. and learned Friend 780 that it was best to say nothing about the subject - matter of those usages. Assuredly the words of the Amendment of his right hon. and learned Friend the Member for the University of Dublin (Dr. Ball), "whereby the relations of landlord and tenant upon the determination of the tenancy are regulated," were not words of definition, but were important and useful as regarded the subject-matter of the custom, especially if the word "occupation" were substituted. He could not but think that if they spoke of usages without saying what they were about, except under the denomination of "usages known as the custom of tenant-right," they would be expressing the clause in a very unwork-manlike manner. He did not think they were really in danger of committing a very serious practical error by adopting the suggestion of the Solicitor General for Ireland; but he could see no good reason why they should not, in words which in themselves were clear and unexceptionable, describe the general nature of the custom on the face of the clause.
§ MR. W. JOHNSTON
said, he had heard with great regret that Her Majesty's Government were about to substitute the word "usages" for the "usage" prevalent in Ulster. The clause originally was not received with satisfaction by the tenant-farmers of that Province; but it would be infinitely more unsatisfactory in the form suggested by the right hon. and learned Gentleman the Member for the University of Dublin (Dr. Ball). He (Mr. W. Johnston) held that all these so-called usages were infringements or alterations of what was known in Ulster as the original Ulster tenant-right. Sometimes where a right of unlimited sale had prevailed, the tenant-right, by means of arbitrary increase of rent and other expedients, had been seriously infringed; and if the word "usages" were put in the 1st clause of the Bill, the only effect, in his opinion, would be to legalize all the encroachments of the landlords on the tenant-right. The definition of the Ulster tenant-right, which he had put on the Paper, had been taken chiefly from the Bill of Mr. Sharman Crawford in 1852. He believed if Mr. Sharman Crawford's Bill had at that time been accepted there would be no need of the present measure, for a satisfactory settlement would 781 have been arrived at. He would not dwell on the Amendment which he intended to bring forward, which would be rendered perfectly useless if the word "usages" were substituted. It was generally felt by the tenant-farmers of Ulster that they were treated worse than those of other districts in Ireland, as they were debarred from the alternative compensation left open in other cases, and denied the option of coming in under Clause 3.
§ MR. CHICHESTER FORTESCUE
said, he hoped his hon. Friend would not allow himself to be alarmed by this formidable plural, or to alarm those with whom his voice had so much influence. The substitution of the plural for the singular was made simply because the plural was more in accordance with the facts of the case. The Ulster custom, though the same in substance, differed, as his hon. Friend knew, in its form and also in its amount on various estates. Whereas, for instance, on the estates of that excellent landlord, Lord Lurgan, the tenant knew very well when he entered upon his holding and made a contract with his landlord he would have no right to expect an amount by way of tenant-right beyond a certain number of years' purchase, his hon. Friend would hardly think it equitable that such a tenant should be able to claim a much larger sum because such larger sum might be customarily given in some other districts. His hon. Friend, therefore, need not be alarmed by the substitution of the plural for the singular, far the change was only meant to indicate a fair and honest recognition of the facts of the case.
LORD CLAUD HAMILTON
said, he would appeal to the Government to allow the word "several" or "different" to precede the word "usages." As the custom differed very much in various parts, and as they were now going to give it legal force, they ought to point out that there was not one uniform usage.
§ MR. SYNAN
said, that he had a similar Amendment on the Paper to that of his hon. Friend (Mr. W. Johnston); but had given way to him, as so much better acquainted with the custom of the country. The Chief Secretary for Ireland had said that the usage differed in form as well as in amount. He would take issue with the right hon. Gentleman on that point. It did not differ in form; but it 782 did differ in amount. Mr. Hancock, one of the most experienced land agents of the North of Ireland, in his evidence before the Devon Commission, described tenant-right as the right of continuance in occupation, and of selling the holding at the market price subject to the runt fixed between landlord and tenant, it was certain and fixed with right of occupation and the right of sale; if the landlord interfered, he generally referred it to arbitration or to the Landed Estates Court. On the estate of the Marquess of Downshire it sold for £30 or £40 an acre, on other estates for only £1 an acre; but it was certain enough, for definition except as regarded the amount of rent, and any questions as to that could be settled in the Courts to be established by this Act.
§ MR. PELL
said, he thought the change from the singular to the plural was important, because it recognized the specific variations of a usage prevalent over the whole of a Province; and in admitting these specific variations, they recognized a right which would remain to the landlord of modifying tenant-right on the score of improvements made by himself. On many of the best managed estates in Ulster, where tenant-right was recognized, the compensation to the outgoing tenant was modified by the improvements made by him on the estate, and thus there was an encouragement to good tenants; but on estates less carefully looked after, tenant-right existed without reference to the condition of the land as it was left by the tenant, and thus no direct encouragement was given for the improvement of the soil. He therefore urged the importance of the Amendment from "usage" to "usages."
said, he would suggest to the hon. Member for Southwest Lancashire (Mr. Cross) that the Amendment should be confined to the substitution of "usages" for "usage." The Government had considered the proposal of the right hon. and learned Gentleman (Dr. Ball), and he might refer to the experience of the Cabinet before introducing the Bill. Without aiming at scientific precision, they had tried repeatedly to define the custom; but their failure was signal, and they got so much out of conceit with their own efforts, that they themselves proposed to strike out the words they had at first adopted. On looking, too, at the 783 words of the right hon. and learned Gentleman, he owned he should be afraid to insert them. They were not required for any practical purpose, and no words could possibly be employed to designate the Ulster custom, which would give any information to any one concerned in interpreting it, or to any Judge or arbitrator who would have to deal with it, who knew what the custom was much better than Parliament could inform them by any description of it introduced into the Bill. The practical objection to the proposal—though he had no better words to suggest as a substitute for it—was this—It indicated the custom simply as a custom for regulating the relations between landlord and tenant, upon the determination of the occupation of a tenant. Now, the Ulster tenant had a much higher idea of his right to the soil than this; in general, he had paid a large sum of money, and viewed it as a perpetually subsisting property. He (Mr. Gladstone) did not think it would be desirable to define it in that sense; but it would not be fair to define it by Act of Parliament in a contrary sense. The tenant undoubtedly treated it as a permanent interest; and he thought they would wound the tenant, and cause much misgiving as to the intention of the clause, by inserting words treating the usage as one coming into existence merely at the determination of the tenancy.
§ Clause amended by striking out "usage," and inserting "usages."
§ MR. W. JOHNSTON
said, he desired to move the Amendment of which he had given notice, defining the Ulster tenant-right as a right of continued occupation, subject to the payment of the rent. Tenant-right, as believed in by the farmers of Ulster, was not so much a transaction between landlord and tenant, as between the outgoing and incoming tenant. It was the right of the tenant to his property; and he did not see why they should curtail the property of the tenant, which had become his by long-continued custom, any more than the property of the landlord, which was vested in him by law. The greatest danger to the Ulster custom, next to the infringements of it by new landlords 784 who came in under the Landed Estates Court, was the raising of the rents. He had received letters from various parts of Ulster, mentioning some extraordinary cases in which the custom had been infringed by the arbitrary raising of rents; but he would not now enter into particulars which might be unpleasant to some hon. Gentlemen and noble Lords whose names were mentioned in the correspondence. In settling the Irish land question, something must be done by way of preventing the arbitrary increase of rents. He might mention that two or three years ago the tenant of a farm near Londonderry, on his landlord raising the rent, and refusing to take into consideration the improvements he had effected on the estate, was led to commit suicide by hanging himself. He would not detain the House further, but would move his Amendment.
In page 1, line 10, after the word "Ulster," to insert the words "commonly known as the Ulster tenant-right, which is to be deemed and taken to be the right of continued occupation by the tenant in possession, subject to the payment of the rent to which the premises held by him are liable, or such change of rent as shall be settled from time to time, by fair valuation, in manner hereinafter provided, or (on the surrender or other determination of his tenancy) a right to sell his interest in the said premises to any solvent tenant to whom the landlord shall not make reasonable objection, unless paid by the landlord the value thereof, as if sold to a solvent tenant, is hereby declared to be a legal right, and shall be enforced in manner provided by this Act."—(Mr. William Johnston.)
§ MR. CHICHESTER FORTESCUE
said, the objection of the Government to the Amendment might be very briefly stated. His hon. Friend did not propose, as the Government did, to legalize custom, but to create custom. It would be very easy to say a great deal by way of criticism as to the nature of the custom which the hon. Gentleman proposed to create; and it was evident, on the face of it, that this definition implied a whole system of valuation of rents, and that valuation by public authority, which of course would require a machinery, in regard to which he had offered no suggestion, either in the present or any other Amendment. Without going into the question, however, he submitted that such a definition as was given by his hon. Friend was not necessary, and might be dangerous. Indeed, even if his hon. Friend's view of the Ulster 785 tenant-right were the correct one, the courts which would be established under the Bill would be able to ascertain and enforce it. It was impossible for the Government to accept the Amendment.
§ MR. WHITWELL
said, he was afraid that the alteration of the Government would not be deemed so satisfactory in the North of Ireland as they wished it to be. The words struck out were "compensation to be made or allowed."
pointed out that the question immediately before the Committee was not as to that omission, but as to the insertion of the words proposed by the hon. Member for Belfast.
§ MR. WHITWELL
said, that as the omission bad been previously mentioned he had ventured to make allusion to it. The hon. Member for Belfast proposed to define the custom of tenant-right, and the Solicitor General for Ireland had also quoted a definition of it, which he should like to see introduced into the Bill. There was in that House such a mistiness as to what tenant-right really was, that for the sake of English Members he would endeavour to give a clear notion of it, derived from his experience during a considerable residence in Ireland. He held in his hand an advertisement of a sale by auction on the 7th of February last of a farm, or rather a tenant-right in Ulster. The farm itself contained 23 acres, 1 rood, 16 poles, the rental being £25 per annum, and the tenant-right of that farm sold for £800. He was bound to say, however, that as that farm was situate on the estate of the Marquess of Downshire, the case might be regarded as an exceptional one; but he might mention that on the 26th of January last the tenant-right of another farm containing 18 acres, 3 roods, 24 poles, let at an annual rent of £26 10s., was sold, not by the tenant, but by the landlord. The landlord had intended to put in his steward or bailiff, but subsequently changed his mind, and actually sold the right to the incoming tenant at a profit of £40 over the purchase for the two years during which he held it, after recouping himself for having bought the right from the previous tenant. No more conclusive evidence could be adduced to prove that tenant-right was not a figment, but a fact—not a mere idea, but actual property. Then it was a common occurrence for tenant-rights to be charged with dowry, and he was in- 786 formed the tenant-right had, in certain eases, paid probate duty. But this property of £20,000,000 in value was continually passing by succession without paying any probate duty, except in some few instances. He thought that this was a matter which they ought to define and not leave in doubt; and therefore he concurred in one portion of the Amendment of the hon. Gentleman the Member for Belfast, though he could not go the length of supporting it in its entirety. A definition, such as that referred to by the hon. and learned Gentleman the Solicitor General, would tend to prevent confusion and render the matter clear to the minds of those who lived in Ulster.
§ LORD GEORGE HAMILTON
said, he rose merely for the purpose of relating a circumstance which occurred a short time since in Ulster—a circumstance for the truth of which he could himself vouch—and which would show that the Government were right in not attempting to define tenant-right. An old man held a small highland farm, and died, and after his death he paid £15 a year rental for his farm [Laughter]—that, of course, was before his death—after his death the agent discovered that he had divided his farm between his two sons, who had lived with him. The agent sent to these two sons, and told them that it was contrary to the rule of the estate that the farm should be divided, as it was too small, and suggested that the eldest should, take the whole, giving the other compensation for his share. They looked at each other for a moment, and at last one said—"Ah, sure, Sir, there is the difficulty; we are twins, and were lost in the cradle, and no one knows which is which." He then suggested that they should draw lots, on which one of them said there was no need to do that, and taking £200 out of his pocket, said that he was ready to pay £160 for the half of the farm, for which, of course, the yearly rental was only£7 10s., or he was willing to take £160. The agent said it was high, considering that the established tenant-right of the estate was only five years' rent; but, as they were brothers, he would leave them to settle the matter between them, and the matter was ultimately settled by the outgoing brother receiving £160, being at the rate of twenty years' rent instead of five. He 787 conceived that this showed how impossible it was to define the custom.
§ W. JOHNSTON
desired to say that he had protested against the word "usages" being employed as a substitute for "usage," and could not assent to the alteration.
§ Question put, "That those words be there inserted."
§ The Committee divided: — Ayes 39; Noes 318: Majority 279.
§ On Motion of Mr. CHICHESTER FORTESCUE, the words from "with reference" to "and," in line 12, inclusive, struck out.
§ DR. BALL
said, he thought that what he was about to propose would better carry out the object of the Government than the words of the clause. He begged to move to leave out the words "commonly known, and in this Act referred to as the Ulster tenant-right custom," and insert the words "known as, and are in this Act intended to be included under the denomination of the Ulster tenant-right custom."
§ Amendment agreed to.
§ House resumed.
§ Committee report Progress; to sit again upon Thursday.