§ Bill considered in Committee.
§ (In the Committee.)
§ Clause 4 (Compensation in respect of improvements).
§ DR. BALL
said, he rose to move an Amendment placed on the Paper by the hon. Baronet the Member for West Essex (Sir Henry Selwin-Ibbetson); but he did not wish to revive the question already decided as regarded the future, and he therefore would propose some variation in the wording of the Amendment to confine its operation to the past. He found that the number of leases for terms between 21 and 31 years was about 22,000, the number for lives was 28,000, and the number for lives or years was about 30,000. Under these circumstances, it would be grossly unjust that the leaseholders for 31 years should be dealt with differently from holders of leases for lives, which had extended in actual duration to the very period fixed upon by the Government. He therefore proposed that the exemption under this clause as regarded the past should extend not merely to cases of 31 years' leases, but also to cases of lives where the tenure had continued during 31 years. With this Amendment, if the life died before the end of 31 years, the landlord would have to pay for improvements; but if the life lasted for 31 years, the unexcepted improvements would be presumed to have been exhausted. He moved, therefore, in page 5, line 36, after "thirty-one years," to insert—Or in the case of leases made before the passing of this Act for a term of a life or lives, with or without a concurrent term of years, and which shall have existed for thirty-one years before the making of the claim.
§ MR. CHICHESTER FORTESCUE
said, he thought the right hon. and learned Gentleman had hit upon a case of omission in the Bill with respect to the past. He would at once accept the Amendment, if the right hon. and learned Gentleman would consent that the Amendment would read, "a term of lives," instead of "a term of a life or lives;" because the ordinary equivalent for 31 years' leases in Ireland was three lives.
§ Amendment, as amended, agreed to.359
§ MR. PIM
moved in sub-section 4 to leave out "upon such terms as the Court may deem reasonable," and insert "as hereinafter provided for." The object of his Amendment, as carried out by words he intended to propose hereafter, was to lay down specific rules in the statute, by which the terms imposed by the landlord in giving permission to the tenant to sell his interest in the improvements should be adjudged reasonable or unreasonable, instead of leaving it to the discretion of the Court.
§ MR. CHICHESTER FORTESCUE
thought the dangers which his hon. Friend anticipated were purely imaginary, and opposed the Amendment.
§ Amendment negatived.
§ Other Amendments moved, and negatived.
§ DR. BALL
said, his right hon. Friend the Member for Buckinghamshire had given Notice to propose in page 6, line 22, after "claim," to insert "for improvements effected before the passing of this Act." Doubts were expressed by his right hon. Friend on the second reading on this subject, and he had given Notice of similar Amendments on the 2nd, 3rd, and 4th clauses. The propriety of bringing forward the subject was now under consideration. It was not intended to move the proviso at present; but it might he expedient to propose these Amendments on the Report.
§ COLONEL BARTTELOT
said, he wished to know whether, in the case of leases under this clause, it would be both retrospective and prospective; and, if so, whether the case he put last night would come under this Bill?
§ THE SOLICITOR GENERAL FOR IRELAND (Mr. DOWSE)
said, that the observations he made on the case put last night were equally applicable tonight.
§ Clause, as amended, agreed to, and ordered to stand part of the Bill.
§ Clause 5 (Presumption in respect of improvements).
§ MR. PLUNKET
said, that although he attached great importance to the Amendments proposed to be made in this clause by the Chief Secretary for Ireland, he and others felt bound, in the absence of the hon. and learned Member for Richmond (Sir Roundell 360 Palmer), to press the Amendment which stood in the hon. and learned Gentleman's name—namely, after "holding," to insert "under a tenancy created after the passing of this Act." The effect of the clause as it stood would be that whenever a case was about to be tried in which a tenant claimed compensation for improvements, which he asserted he had added to the value of the property, as soon as he had proved that an amelioration had taken place the law would presume that this improvement and every part of it had been made by the tenant. The Court would then be bound to give him the full value of that improvement, and to conclude that all the necessary money had been paid and all the materials provided by the tenant. The clause comprehended improvements made both before and after the passing of the Act, and the object of the Amendment of the hon. and learned Member for Richmond was to separate the operation of the clause in regard to the future and the past. With regard to the improvements made after the passing of the Act, the question mainly involved political considerations. As regarded the past, the effect of that section, even as it would be modified by the Amendments of the Chief Secretary for Ireland, would, as far as it had any operation, be very injurious and very unjust, and that towards the very class of landlords who, in their dealings with their humbler tenantry, had been liberal, open-handed, and unsuspicious, and who had taken no trouble to preserve any record of the assistance they had given. The main arguments used in support of that clause had been put forward by the right hon. Gentleman at the head of the Government and also by the Chief Secretary for Ireland. When he introduced the Bill to the House the right hon. Gentleman (Mr. Gladstone), speaking of that part of the measure, said that what they proposed to do was—To reverse the presumption of the present law; that the law as it stood absolutely gave the improvements to the landlord, and presumed them to have been his work."—[3 Hansard, cxcix, 374.]That statement was founded on a slight misapprehension. The right hon. Gentleman had dealt with the subject as if there existed in law a presumption of evidence in favour of the landlord; but there was nothing of the kind, and it was impossible to reverse what did not exist. Again, it had been argued by others that 361 as in England, where the improvements were generally made by the landlord, the presumption of evidence was with him; so in Ireland, where the improvements were generally made by the tenant, the presumption of evidence should be with the tenant. There was, of course, a maxim in the law of real property, both in England and Ireland, which gave the landlord the improvements on his land; but what the Government had done was not to reverse that maxim. That was what no Government would dare to propose, for it would be to make it not a question of evidence as to who made the improvements, but to hand over the value of them to the tenant, no matter who had made them. There was, therefore, no inference to be drawn é converse. The right hon. Gentleman (Mr. Gladstone) had further urged, and with plausibility, that the Government proposed to cast the burden of proof on him who was best able to bear it; and the Chief Secretary had explained that they threw the onus of proof on "the stronger party," who, in that instance, the Chief Secretary said, was the landlord. That was exactly the question to be considered, and it was for the Committee to say, after due discussion of the point, whether for that particular purpose, as to the claim for improvements made before the passing of the Act, the landlord was really the stronger party. The landlord was, of course, the stronger party in the sense that he was stronger in wealth, in intelligence, in education and in station, and that he had agents and books, where such had been kept to refer to—all which might be reasons for making the presumption to be against him in future. But, as to the past, the question was, which party was the stronger in respect to the possession of evidence. The landlord had been encouraged by the existing law to discard documentary proof, and would have no such evidence as he could bring into Court to rebut the proposed presumption. For the meaning of the presumption being in favour of the tenant was, that the Court should presume that there had been a case, most complete, most cogent and coercive, made for him, and unless the landlord could produce full and formal proof to overthrow that case the presumption in favour of the tenant must prevail. What would be the position of the landlord under this clause even after the Amendments 362 of the Chief Secretary had been adopted? The object of the Amendments proposed by the Chief Secretary was to exclude from the operation of that presumption of law certain classes of cases in which compensation was claimed in respect of improvements made before the passing of that Act. The first of those classes of cases was, where such improvements had been made previous to the time at which the holding in reference to which the tenant claimed had been conveyed on actual sale to the landlord, or those through whom he derived his title. Obviously, the object of that Amendment was to meet the glaring injustice that would otherwise arise owing to a large portion—one-sixth—of the landed property of Ireland having changed hands within the last 20 years in the Landed Estates Court, with that change of hands all possibility of getting evidence, to rebut the presumption in favour of the tenant, having in nine cases out of 10 gone from the landlord. The Amendment, no doubt, met the case of purchasers; but while it prevented one glaring injustice, it admitted the whole principle for which he contended,; for how could they distinguish between the instance of a landlord who had bought the land and been thus deprived of the possibility of rebutting the presumption in favour of the tenant, and the analogous case in which the landlord's agent had been changed or was dead? He, however, thankfully accepted that part of the Amendment of the Chief Secretary. The second part excepted claims made by tenants under lease; and the third excepted improvements made 20 years or upwards before the passing of the Act. That was a very fair Amendment; but he thought it gave up the strongest ground on which that section could possibly have been defended. For it might, perhaps, have been argued that, in instances where the date of the improvement was remote, and neither party could adduce legal proof, the landlord would, in the absence of the presumption of evidence, get all by force of the maxim of law. The fourth and last part of the Chief Secretary's Amendment excepted cases in which the holding was of more than £100 of annual value. And there again, although he was very glad to have the Amendment, he must say it exactly covered the class of cases in which it was least wanted; for in that class of 363 large holdings the improvements made by the landlord were generally of a very palpable character, such as houses, buildings, main drainage, and the like, which could be easily seen and recollected, and some trace of which might possibly be found in the records of the estate. But where the landlord was the proprietor of acres occupied by a number of small tenants the injustice of the section would be very great, and especially if he had been kind and unsuspicious. Year after year he would probably have given slate, timber, and other materials to his tenants, who, coming to him with a poor mouth, asked him to do so. In those cases, and they were very numerous, the tenant contributed only his labour to the improvements. He thought the tenant should be remunerated for that labour, if he had not enjoyed the fruits of it while in occupation; but, on the other hand, he did no-think the landlord should be made to pay for what he had himself contributed. In 99 cases out of 100 no account had been kept of such contributions of materials, and the landlord would have very great difficulty in meeting the claim of the tenant. In what position would the landlord be when he came into Court? The tenant having shown on the testimony of his friends that the improvements did not exist at the time covered by the provision proposed by the Government, he might remain with closed lips. Then the landlord came to prove his case. He asked hon. Members, who knew Ireland, how far could the Irish tenantry generally be expected to prove a case for Irish landlords? There were, in ordinary cases, two ways of meeting a claim if it were not founded in fairness. You might either bring forward contradictory evidence or cross-examine the claimant; but the effect of this 5th section would be, in many instances, to deprive you of cross- examination. He objected to the proposal of the Government because it was not necessary, and also because it was not just. The true principle of the law of evidence to be applied to his argument was that, whenever the subject-matter to be proved lay peculiarly within the knowledge of one of the parties rather than within that of the other, that such subject-matter should be proved by the party having that peculiar knowledge of it. Now, the history of those small improvements was not 364 likely to be within the recollection of the landlord. His attention was not concentrated on any one farm, and he had other interests to engage it. But the tenant who was adscriptus glebœ watched everything that was done to a hedge or a ditch on his small patch of land. These things constituted the history of his unfortunate and circumscribed life, and they were recorded on his mind. The provision was unjust to the landlord, because it was retrospective; and past custom and established law had not only afforded him an excuse for not keeping any record of his contributions to improvements, but had invited him to disregard doing so. The apprehensions to which the expectation of a Land Bill had given rise prevented English capitalists from lending money to Irish proprietors. Persons justly thought there would be no security for money on land which was covered with small tenants, who might fight their landlord over every hedge and ditch with the advantage of having this presumption of law in their favour. The clause would be injurious to the tenantry also, because it would act as an incitement to them to bring forward unfounded claims. It was an invitation to them to press unjust demands freed from the penalties of perjury; for their claims would, in many instances, not involve the sanction of an oath. The clause would hold out inducements to the tenantry to indulge in just that kind of litigation which must produce discord and bitterness between them and their landlords. The hon. and learned Member concluded by moving his Amendment.
In page 6, line 36, after the word "holding," to insert the words "under a tenancy created after the passing of this Act."—(Mr. Plunket.)
§ MR. MAGUIRE
said, he believed that the want of a settlement of the Irish land question, and not the apprehension of a Land Bill, had made persons reluctant to advance money on Irish property; but he was not one of those who thought that the introduction of English money was a great desideratum for Ireland. There was a great deal of money laid up in Ireland. The hon. and learned Gentleman who had just sat down assumed that the perjury of the Irish tenant would prevent justice being done to the landlord; and the hon. and learned Gentle- 365 man also assumed that so much of the land of Ireland had changed hands that all record of improvements by landlords had passed away. Now, the fact was only one-seventh or one eighth of the land of Ireland had changed hands [Mr. PLUNKET: I said one-sixth], so that the difficulty the hon. and learned Member had assumed did not exist. It was idle to say that the landlord was at a disadvantage as compared with the tenant in the matter of records, for, while the tenants were comparatively uneducated, the landlords were rich and intelligent, and most of the landlords, through their agents or sub-agents, kept books in which every transaction was entered, and which could be produced in Court; so that, if an improvement had been made by the landlord, or with the assistance of the landlord, the fact was susceptible of proof. He could not understand what his hon. and learned Friend meant by saying that if a claim were made by the tenant, the tenant was not liable to cross-examination. Any tenant would be liable to cross-examination in such a case. The Committee need, therefore, have no fear that wrong would be done by false swearing on the part of the tenant or by the want of evidence on the part of the landlord.
§ THE SOLICITOR GENERAL FOR IRELAND (Mr. DOWSE)
said, he hoped the Committee would not accede to the Amendment. There had been, and could be, no difficulty in understanding what was meant by the clause. Under the present state of the law the tenant from year to year had no property in his improvements when the tenancy was terminated by a notice to quit, and he knew a case in which a tenant had built, at a cost of £3,000, a house which would become the landlord's if the tenancy were terminated by the usual notice. Even under a lease the improvements of the tenant, unless they were made under a contract allowing him the benefit of them at the expiration of that lease, became the absolute property of the landlord. This was a question, not of presumption, but of property; there was no more presumption in the matter than there was in saying that a man's watch was his own. That being the state of the law, it was admitted that it required a remedy; and if the proposition of the Government were not acceded to the tenant would, to a great extent, be de- 366 prived of the advantage which it was intended to confer upon him. The Bill gave the tenant compensation, to be paid by the landlord, in respect of all improvements of the holding made by the tenant or his predecessor in title, and in that respect it put the tenant in a fair condition; but it was not intended to give the tenant anything he was not honestly entitled to, and Clause 5 only regulated the evidence by which the tenant would be able to prove his case. If there were to be any prospective limitation, the probability was that in 40 or 50 years landlords and tenants would again be in the same position that they were now, and the arguments that had been used now would be repeated. The clause, if it became law, would enact that the presumption should be in favour of the tenant, and why should it not be? He submitted that it was easier for the landlord than for the tenant to prove the expenditure incurved in making improvements. Landlord's improvements wore generally made upon a largo scale, and upon some sort of a predetermined plan; a landlord would have books and vouchers, which he could produce; and a landlord could have no difficulty in proving his case. Another argument in favour of the clause was that the hon. and learned Member had taken up the Amendment which had been placed on the Taper but afterwards abandoned by the hon. and learned Member for Richmond (Sir Roundel Palmer), who had carefully weighed all the clauses of the Bill, and had brought to the consideration of each a philosophic and lawyer-like mind, and that traditionary respect for the laws of property which a study of English law was calculated to engender. Further, he had the opinion of Viscount Lifford, a Conservative in politics, one of the most experienced of Irish noblemen in matters, respecting land, who had stated that the difficulty of distinguishing between landlords' and tenants' improvements should be avoided by presuming that all improvements were made by the tenant unless the contrary was proved—an opinion which had been embodied in the 5th clause by the Government. To allow that presumption, he contended, was just, because it was the duty of the Legislature to protect the weak against the strong, and he deemed the landlord to be the strong party and the tenant the 367 weak one. The clause, however, admitted exceptions, because it might happen that a landlord purchased an estate, knowing little or nothing about it, in which case the presumption would not be allowed to the tenant, whose claim would be decided according to the ordinary principles of law. He submitted that the clause as it stood, coupled with the exceptions, would be fair to both landlord and tenant, and promote a better understanding between them. With regard to the evidence that was given in Irish Courts, the style of cross-examination, which had been described, was only one of those forensic tricks to which occasionally both English and Irish lawyers had recourse, and it was hardly fair to base on that an argument against this clause. If the clause had provided that the presumption was in favour of the landlord, the tenant might still bring in his false witnesses; but as the clause stood the landlord would be entitled to obtain the tenant's testimony, because when a tenant made a claim and alleged the presumption to be on his side, it would be in the power of the landlord to dispute it and inquire into it. And was an Irish landlord unable to protect himself in such a case? Why the hon. and learned Member for Cork (Mr. M'Carthy Downing) could plead for a landlord as well as for a tenant, or an attorney for the landlord might call the tenant into the witness-box, and, treating him as a hostile witness, cross-examine him as to his claim; so that after all the question resolved itself into one of evidence, and the Chairmen of the Courts before which such cases would come, were quite capable of dealing with Irish witnesses and of ascertaining on which side the truth was told. He submitted that the Committee should pass the clause, subject to the Amendments of which Notice had been given by the Chief Secretary for Ireland.
§ MR. G. B. GREGORY
said, the clause gave the tenant a primâ facie right to all improvements, and threw upon the landlord the onus of proof to the contrary, and there could be no doubt that the result would be that which had been described by his hon. and learned Friend (Mr. Plunket). A tenant would merely have to call evidence to show that buildings or other improvements had not been made 20 years before, in 368 order to give him a right to claim for all such matters upon the landlord, who would have to pay the compensation if he could not disprove the testimony of the other side. And how was he to do that? The hon. and learned Solicitor General for Ireland said he might call the tenant; but he (Mr. Gregory) never heard of a claim being rebutted by a hostile witness. It was said, however, that a landlord might call his agent; but many cases would occur in which the agent either had no books or had lost them. The management of an estate was a series of improvements which were done by dribblets, and the cost was sometimes allowed from the rent, at others paid by the landlord, and at others by the tenant; it would therefore be impossible in half the cases that would arise for a landlord to show what improvements he had made during a period of 20 years. To a legal mind this was one of the most objectionable clauses of the Bill, because it altered the general law of evidence, which threw upon a person making a claim the onus of proving it. Here the principle was to be reversed, the only reason for it being that the landlord was supposed to be stronger than the tenant. But was this principle carried out in English jurisprudence? Was it there provided that the first issue for decision was as to who was the stronger party, and that then the onus of proofs should be thrown upon him? The provisions of this Bill would militate against the employment of English capital in Ireland. Already there was a prejudice against investments in that country, and wills and settlements were constantly drawn with provisions guarding against such investments. He feared that, under the Bill, provisions of this nature would be increased, and English capital already invested in Ireland would be withdrawn wherever this was possible.
§ SIR ROUNDELL PALMER
said, that as he had given Notice of the Amendment now before the Committee, he thought it right to explain the view he took of the position in which they were placed by the Notice since given by the Chief Secretary for Ireland. Throughout the proceedings on this Bill he had felt, and strongly felt, that it was much better to waive abstract views than attempt to force them upon the Government in preference to such an approximation to them 369 as the Government themselves might be willing to accept. Beyond all doubt anything which they were able to do with the concurrence of the Government would be much more likely both to be accepted by the House and, at the same time, to be received with satisfaction out-of-doors, than anything which might appear to be the result of hostile or adverse criticism. Holding this opinion, he had thought it his duty to be prepared to waive the precise form in which he should have preferred to see particular clauses in the Bill, whenever the Government wore willing to do that which would substantially accomplish what seemed to him to be the just objects at which they ought to aim. Now, as this clause originally stood, it was open to the serious objection that it inverted indiscriminately the burden of proof with regard to all improvements whatever, and, under whatever circumstances, threw it upon the landlord to show that he had made improvements if the fact were so. Such a provision could not be right with regard to the large class of valuable and important improvements, especially upon the larger tenancies, as to which there was abundant evidence that the landlord had constantly made or had largely contributed to them. On the other hand, no one could have studied the copious literature of this subject without seeing there was at least equally abundant proof that, upon the small holdings, the improvements, such as they were, had usually been made by the tenants. That being so, it appeared to him that, looking candidly and reasonably at the proposal of the Government, although there might be some exceptions in which the burden of proof might still lie upon the party who had actually made the improvements, and, possibly, cases of difficulty and hardship might thus arise, yet, upon the whole, the safeguards now proposed would leave the burden of proof very much in each case where the actual evidence applicable to the subject taught us it might be fairly left. For example, the proposal of his right hon. Friend, still left the burden of proof upon the claimant where the property was above the annual value of £100; and in his evidence before the Committee, Lord Dufferin, one of the best witnesses on the whole subject to whom one could refer, said that, according to the Ulster system, it would be 370 rarely for the landlord's interest to make the improvements in tenancies of a lower value than that here indicated. Then the Amendment provided for the case of sales under the Encumbered Estates Act and all other sales, and would not throw upon a person who had bought an estate the burden of proving who made the improvements existing before the purchase. Again, the 20 years' limit seemed sufficient to exclude all, or almost all cases where the memory of living men was not likely to be able to throw light upon the matter. When such provisions were made to meet the particular cases in which the clause, as originally framed, might probably have had an unjust operation, he felt it would not become him to press the more extreme form of the proposal he had submitted, more particularly as his proposal was open to the objections that it spoke of tenancies entered into before the passing of the Act, and not of improvements. Improvements made, under tenancies now existing, after the passing of the Act would be covered by the form of the Amendment; and with regard to the future, it was not unreasonable to throw the burden of proof upon the party on whom the Legislature thought it might most conveniently rest, and who would then preserve the necessary evidence of these improvements. He would now suggest, for the consideration of the Government, an additional safeguard which he should be willing, if he received any encouragement from them, to put into shape in a later stage of the Bill. Every Member who had received communications respecting this Bill must know that great numbers of persons wore anxious that, in some form or other, provision should be made for the registration of improvements. Now, the Committee had heard from the head of the Government yesterday—and he was not surprised to hear it—that anything like compulsory provision for the registration of improvements, or provisions which might make the relief given by the Bill to the tenant depend upon registration, was considered open to such grave objections as to be inadmissible. Probably, however, the Government would take a different view of a suggestion for a mere power of registration, which, if adopted, would greatly mitigate the incidence of the clause. He thought there should be a provision by which, if either the landlord 371 or the tenant desired to preserve a record of improvements made by him or Ms successors either before or after the passing of the Act, he should be at liberty to register a schedule specifying these improvements in the Landed Estates Court, subject to the condition that he should, give notice to the other party before doing so, and that the other party should be at liberty, within a reasonable time, to state whether he disputed the improvements or not, and if he did, then the matter might be brought by either party before the County Court, and no registration be made except upon the allowance and certificate of the Court. It appeared to him that a permissive power of registration of that kind could not work any injustice upon any party, and would greatly tend to mitigate the uneasiness and alarm felt by many persons in Ireland, whose views were well worthy of consideration, as to the indefinite nature of the burden of proof, which might be held in suspense for a long period of time before any claim was made. He thought that compulsory registration should not be pressed; but he hoped the Government would favourably consider this suggestion for permissive registration.
§ MR. C. S. READ
said, that, as he understood the clause, it simply proposed to throw the onus of proof, which now rested with the tenant, upon the landlord, who was supposed to be the stronger party. In his opinion, however, it would be impossible for the landlord to furnish the required proof so far as retrospective improvements were concerned. He hoped he would not be considered egotistical if, in illustration of the justice of that view, he referred to his own experience. He had within the last few months made some of the ordinary improvements in a farm, such as grubbing fences, claying, draining and bringing water into the yards, at a cost of £60 or £70, and he maintained that it would be utterly impossible for his landlord to prove those improvements, inasmuch as he believed he knew nothing whatsoever about them. Unless a landlord had notice that he should have to pay for improvements he would not, as a matter of course, look after them. As to improvements made after the passing of the Act, he quite concurred in the view that the presumption should be in favour of the tenant, 372 because it would serve to make the landlord more thoroughly acquainted with every holding on his estate, and if he looked after his property more closely it would be all the better not only for himself but for the tenant. To return to his own case, it might be argued that he was in a position to keep books and to produce records to show the amount of money which he had expended on improvements; but would not the fact that the Irish tenant, who, in all probability made his improvements with his own hands, be more likely to make a greater impression on his mind than the mere payment of a certain sum of money for the purpose. It was impossible, he would repeat, for the landlord to prove retrospective improvements, while, on the contrary, it would be very easy for a tenant to substantiate his claim.
§ MR. SHERLOCK
pointed out that the claim for improvements would not always be made by the identical man by whom those improvements had been effected, who might have emigrated to Australia or America, or sold his interest in his farm to someone else. He must, however, confess that he did not attach much importance to the clause. The result of his experience led him to the belief that, presumption or no presumption, if a case could be proved, persons would come forward to prove it, and that the question was likely to be settled in accordance with the right of the party who had right on his side.
§ MR. BRODRICK
said, that exceptional privileges having been conferred on the Irish tenant—hetsaid exceptional, because at present they were unknown to English or Scotch law—by the previous clauses of the Bill, it was by the clause under discussion proposed to advance a step farther, and throw the onus of proof with respect to the making of every single improvement on the landlord. Now, he utterly denied that it was in the power of the landlord to prove to the full extent what were or were not the improvements towards which he had contributed. He frankly admitted that on large properties in Ireland which were managed through the medium of agents, provided those were the same agents who had managed the estates for 20 years, and that there were regular offices and books carefully kept, there might not be any great difficulty—though there were many exceptions 373 even to that rule—in proving the nature of the improvements made. But large properties were far from being universal in Ireland, and especially in the great county of Cork, with which he was best acquainted, there was a great number of small properties, sometimes managed by their owners, sometimes by small agents residing in adjoining counties. Now, he could state, as a fact, that in the case of many of those properties no books of account were kept, and that it would be quite impossible for the owners to prove what were the improvements towards the making of which they had or had not lent their assistance. The clause, he might add, distinctly favoured the estates of absentee proprietors, because, those estates being managed on a business footing, the facilities of proof in their case would be comparatively great. It was only the other day, he might add, that he had been told by a most improving Irish landlord, who had been resident for the last 25 or 30 years on his property, that he could not possibly distinguish the improvements made by his tenants from those which he had made entirely himself, or towards the making of which he had largely contributed. He concurred with his hon. and gallant Friend the Member for Sussex (Mr. G. B. Gregory) in thinking that the proposal of the Government would inflict a great injustice not only on the landlord, but on the tenant, by making the security of land so different from that which it had hitherto been. From his own experience he could say that especially within the last few months hardly a large insurance company in the City of London would lend a 6d. on the security of Irish property, and some of the most respectable and influential offices stated that the result of the present Bill would be to make it impossible to ascertain what the value of property was on which they were asked to advance money. The Chief Secretary for Ireland indeed admitted that it would be unfair to put the provisions of the Bill in force where property was acquired by purchase; but he would ask whether a man who inherited property was not sometimes almost a stranger in blood to his predecessor? He knew a case of a man who succeeded his cousin, and it became necessary to change the agent, who 374 was hostile to the new owner. During three of the five years which would have come within the term of 20 years mentioned in the Bill, the new owner did not receive a 1d. from the estate, having expended for the benefit of the tenants, the whole of the money received. In this ease, however, it would have been next to impossible to prove that anyone of the improvements had been effected by the owner, and not by the occupiers of the land. These were practical difficulties which he desired to lay before the Committee. It was all very well for the hon. and learned Member for Cork (Mr. Downing) to say that he represented a large proportion of the landowning interest of the county. He had frequently heard that hon. and learned Gentleman most admirably represent the sacerdotal element of the country, but he now learnt for the first time that he also claimed to be a representative of the landowning interest, with which he himself was as well, if not better, acquainted than the hon. and learned Gentleman. As long as the Bill contained this clause the landowners of Ireland would feel that neither justice nor equity was conceded to them. He was perfectly willing to give the fullest compensation to the tenant for all improvements which he could prove to have been executed by him; but he protested against the landowners being incessantly dragged, in consequence of this clause, before the new Courts which were about to be constituted. His hon. Friend the Member for Clonmel (Mr. Bagwell) never spoke more truly than when he said there was too much law in this Bill. He was not surprised, indeed, that hon. and learned Gentlemen opposite should not regard this as a defect, but he begged leave to remark, on behalf of those who were to be made the corpus vile of this crucial experiment, that they would prefer to be dragged before the new Courts as seldom as possible. If there was one thing which an Irish tenant understood better than another it was the full value of the land he occupied and the increased value he had given to it by his own exertions and expenditure. Therefore, within the limit of 20 years prescribed by the Bill, every fact would be within his own personal recollection, or he would have learnt it from his father, his elder brother, or whoever else preceded him on 375 the land; and in 99 cases out of every 100 where the landlord had one chance of proof the tenant would have a dozen. Again, the throwing the onus of proof on the landlord would press more heavily on the large owners than on the small owners, who could least afford to lose the money. In conclusion, he sincerely hoped the Committee would pause before they sanctioned a clause which conferred on the tenant exceptional privileges, which could not on grounds of justice or of morality be granted to men who, having deliberately contracted to take one thing, now asked for another.
§ MR. CHICHESTER FORTESCUE
wished to say a few words in reference to what had fallen from his hon. and learned Friend the Member for Richmond (Sir Roundell Palmer) on the subject of the registration of improvements. The Government fully recognized the distinction he had drawn between compulsory and optional registration. To registration, as a condition of compensation, the Government had strong objections; but with respect to optional registration, as a matter of convenience, the case was different. The Government did not think even optional registration was free from certain difficulties. He therefore would not pledge the Government with regard to it; but, at the same time, he should be sorry to reject the suggestion on the spur of the moment, as it deserved, and would receive, further consideration on their part. The last speaker and several other Gentlemen who preceded him, had looked at this question exclusively from a landlord's point of view. The hon. Gentleman appeared to be shocked at the idea of conferring exceptional privileges on the Irish tenant; but what would have been the state of law in England and Scotland at the present moment if, for many years past, the relations between landlord and tenant had been the same here as they had been in Ireland? Everybody must feel convinced that, if that had been the case, there would have been an end put long-ago to the law which not only raised a presumption in favour of the landlord, as some speakers in this debate had stated, but which gave him absolutely everything he might find upon the land. The hon. Member talked in the same spirit of the hardship of throwing the onus probandi on the landlord, and of the 376 vast difficulties he would experience in proving certain improvements to have been executed by him; but surely those difficulties would be felt quite as much, if not more, by the tenant as by the landlord. The Government proposed to make the presumption in favour of the tenant, subject to the limitation he should presently move, merely because the presumption of proof ought to follow the facts of the case. He should feel greatly surprised if any hon. Gentleman were to deny that, in the vast majority of cases in Ireland, the improvements were the work of the tenant. He would not trouble the Committee with numerous quotations on this point; but would be content to read a very brief extract from an authority which could not be questioned by hon. Gentlemen opposite. Master Fitzgibbon said—It is well known that in Ireland, as a general rule, the landlord spends nothing on the improvement of his tenants' land.A more decided opinion of a more competent and impartial authority, couched in as few words, it would be difficult to quote. The Government simply proposed that, with the important exceptions he should presently introduce, the presumption of law should follow the facts of the case, the difficulties of proof being far greater upon the side of the tenant than upon the side of the landlord. The argument of the hon. Gentleman opposite (Mr. Brodrick) was altogether one-sided, for he shut his eyes to the position and fair claims of the tenant. The terms of this Amendment went far beyond the question of retrospective improvements; for they would apply not only to them, but to all improvements executed after the passing of the Act until a new tenancy was created. He hoped the Committee would feel that the Government had done everything they could to obviate fair objections, and that injustice would be done to the weaker party if this Amendment were adopted.
LORD CLAUD HAMILTON
said, he, on the contrary, regarded this as one of the most mischievous clauses in the Bill. Not only was it a complete discouragement to all improvements in the future, but it worked serious injustice to those landlords—and there were many—who had improved their estates in the past. To show that this was no mere random assertion, he would mention one case 377 within his own personal knowledge. A nobleman had told him that for upwards of 20 years he had made it a rule to spend £2,000 a year in improvements upon his estate. He secured the services of a first-rate Scotch agriculturist; and the improvements which were everywhere visible upon the property had been carried out in perfect harmony with his tenants. The moment he read this clause in the Bill he felt that he had done an injustice to those who were to follow him in the estate. The vast expenditure which for over 20 years he had been making, in the belief that he was thereby improving the value of the estate, would simply be turned into a long bill of costs against his successor, which the latter would have no means whatever of paying. The agent, under whose eye the greater part of this money had been spent, was now no more; and, not expecting that any Government would propose, or that any Legislature would agree to such a proposal as was contained in this clause, the noble Lord told him he had kept no accounts which would enable him to meet claims on the part of the tenants. This was the statement made by one of the best of the Irish landlords; and so impressed was he with the nature of the Government proposals, that he felt it his bounden duty to stop all further improvement and to relinguish the course of action which he had pursued for so many years. As regarded the future, Parliament, of course, might make any arrangements which it thought proper; but what was here proposed was an arbitrary, sudden, and peremptory reversal of the existing law, acting retrospectively for an unlimited number of years. In the revised edition of the Prime Minister's speech it was distinctly stated that "what we propose to do is to reverse the presumption of the present law." Surely this was both uncalled for and unjust! Why not act as had been done in an earlier part of the Bill with regard to the Ulster tenant-right—leave each case to be decided upon the merits, without any presumption at either side? The right hon. Gentleman the Chief Secretary for Ireland asserted that all the improvements were made by the tenant. If that were so, surely there could be no difficulty in proving it. But his experience in the North of Ireland and in the county of Wicklow led him to a totally different 378 conclusion. And in the great improvements which had been made in Ireland during the last 40 years, the initiative, at least, had always proceeded from the landlord. The tenants had such a love for the habits of tillage inherited from their forefathers, that they regarded any departure from these as almost impious. So far from the Irish tenant being inclined for improvements, the great difficulty of the Irish landlords had always been to get their tenants to improve, or to allow them to improve themselves. The improvements that had been effected were the result of years of action on the part of the landlords, who had urged their tenants, both by precept and example, to improve their holdings. Many of the improvements, although actually done by the tenants, were paid for by the landlords; and therefore it was a wrong principle that the tenants should be compensated for them. He did not wish that it should be assumed that the improvements had been made by the landlords; but he contended that each ease should stand upon its own merits. Surely there would be no injustice in this. The value of Irish land was falling in the market, in consequence of the retrospective effect of the Bill. This clause, as it stood, was a great hardship upon those proprietors who had borrowed money on mortgage for the purpose of drainage and other works; and he thought also that there would be gross injustice inflicted upon those who had bought their land in the Encumbered Estates Court, under the belief that their rights would be guaranteed by Parliament. By reversing the presumption of ownership in improvements in land, that House would be creating a state of things in Ireland for which it would be held responsible.
§ MR. POLLARD-URQUHART
said, he believed that the clause would be no injustice to the landlords, while it would do a great act of justice to the tenants. It would be very easy for the tenants and the landlords to prove what improvements they had respectively executed.
§ MR. BOURKE
said, he could not help entering his protest against the principle involved in this clause. It was a well-known principle of both ancient and modern law that he who claimed a right should prove it, and this principle the clause proposed to set aside altogether. It had been said that under the 3rd 379 and 4th clauses of the Bill the old fundamental principle of law was repealed, that whatever was planted in the soil should pass with the soil; but he could not concur in that assertion, because all that was given to the tenant was a right, not to the improvements he had effected himself, but to compensation for them. It was not, because they were going to give the tenant a right to compensation for improvements, that therefore they should presume that the improvements were his, without calling upon him to prove his title to them. He would be the last person to take from the tenant anything justly given to him by the Bill, and if he had placed the improvements on the land he was the person having the best knowledge of what those improvements were.
§ MR. M'CARTHY DOWNING
said, he deemed the observation made by the hon. Member for Mid-Surrey (Mr. Brodrick), to the effect that he (Mr. M'Carthy Downing) was more a representative of the sacerdotal party in Cork than of the landed aristocracy, to be totally uncalled for. The hon. Member said that the proprietors most benefited by this Bill would be the absentee proprietors; in that case the hon. Member should not complain, as he represented a nobleman who was an absentee in the fullest sense of the term, for he not only resided altogether out of Ireland, but spent little, if any, of his income in it. For his own part, he (Mr. M'Carthy Downing) felt he was justified in saying that he was the representative of the landed interest in Cork. He represented the constituency generally, and the hon. Member's relative, the Earl of Bandon, indirectly supported him at the election. With reference to the assertion that had fallen from hon. Gentlemen on the opposite side of the House, to the effect that people would not purchase land in Ireland, all he could say was, that an estate in Ireland was sold the other day, for which 26 years' purchase was paid, and that partly by the tenants in possession. With regard to the proposition of the hon. and learned Member for Richmond (Sir Roundell Palmer), he would not ask the Government to accept it. He recommended the Government to leave the clause as it was, for there could be no difficulty in the Court deciding whether the improvements were made by the tenant or the landlord. It was a 380 mistake to suppose that the landlord kept no record of improvements. One of the first entries in the landlord's book was the sum allowed to the tenant for any specific improvement.
§ MR. BRODRICK
said, he desired to know on what authority the hon. Member stated that the Earl of Bandon gave him the slightest support of any kind at the election.
§ MR. M'CARTHY DOWNING
replied that he had seen a letter from Lord Bandon's brother, the Hon. Henry Bernard, requesting certain electors to vote for him.
§ DR. BALL
said, that he objected to the present clause, because it effected an alteration of the law of evidence in a vital particular. The universal principle of English law was, that he who asserted should prove. As a general rule, it was extremely undesirable to interfere with the law of evidence, except for indispensable purposes, as it was not the creation of statute, but had grown up out of the experience and wisdom of the tribunals charged with the administration of justice, and was founded on an extensive observation of the operation of human motives, conduct, and feelings. He admitted that the Amendments put on the Paper by the Chief Secretary for Ireland narrowed very much the range of operation of this clause; and he agreed with the hon. and learned Member for Richmond (Sir Roundell Palmer) that when the Government made solid concessions in matters not involving a vital principle in questions of compensation, it was better to meet them by not raising captious objections, but what, after all these Amendments, was left of this clause invaded a most important principle of evidence, and therefore it was extremely objectionable. His belief was, that the tenant could have justice without striking a blow at the principles of jurisprudence. It could not be difficult for a tenant to prove what improvements he had made within 20 years. This being so, and the clause being now confined to improvements within the last 20 years, was not persisting in the principle, an uncalled-for and wanton violation of principles of jurisprudence common to every country. It had been said this was Mr. O'Connell's clause; but he had read his evidence before the Devon Commission without finding any trace of such a clause. The 381 fact was, as he had been informed by Mr. Tighe Hamilton, formerly Under Secretary for Ireland, it was the proposal of Mr. Pierce Mahony, an Irish solicitor, formerly a Member of that with surprise to the observations of the House. It was said the clause was to protect the weak; but he had never yet heard there was any necessity for that, because equal attention was paid in a Court of Justice to the evidence given, whether by rich or poor. He did not see why presumption should be called in at all. The tenant should be left to state his case, and take his oath that he believe it to be true. He should support the Amendment.
THE ATTORNEY GENERAL
said, he must remind the Committee that they were dealing only with small tenants and tenants from year to year. They had already enacted provisions of a highly exceptional character in their favour, on the hypothesis that they were so poor, helpless, and dependent, and unable to protect themselves. With respect to this class of tenants they went on to enact that in certain cases, where certain improvements had been made, the presumption should be that they had been made by the tenant rather than by the landlord. This presumption was in accordance with the fact. They must deal with what was usual, not with the exception. Nothing was more clearly admitted than that in Ireland improvements were made by the tenants, not by the landlords; while in this country the reverse was the fact. It was on the recognition of the essential difference in the customs of the two countries that, in some respects, the Bill was based. They proposed that the presumption would be in favour of what was generally found in experience to be the fact. Another presumption, which was equally clear, was that the landlord would be in a better condition to prove his case than the tenant who kept no books, had no record of his improvements, was a poor and illiterate man, and unable to make a contract. Again, where the tenant had succeeded another, it would be almost hopeless to prove his case. This presumption of evidence, however, was only a matter of convenience, not of law, and no solid objection had been shown to the proposed change. He entirely agreed with the able argument of his hon. and learned Friend the Solicitor General for Ireland. He thought this 382 provision would be highly advantageous, and would strongly recommend the Bill to the Irish people.
§ MR. GORDON
said, he had listened with surprise to the observations of the hon. and learned Gentleman (the Attorney General). Nothing was clearer in law than that it was incumbent upon the plaintiff or pursuer to establish his case. It was not just to the landlord to require him to prove that the improvements claimed for by the tenant had not been made by the tenant. Hon. Gentlemen on his (the Opposition) side of the House had submitted to a great deal in the course of the deliberations on this Bill. They were anxious to see the question settled on an equitable basis; but were not prepared to allow exceptional legislation for Ireland to the extent of reversal of universal principles of law.
§ MR. DENMAN
said, it was natural the feelings of Scotch lawyers should be outraged by the clause, because Scotch law was encumbered by a great many superstitions of which we had long since disposed. The principle of law for which hon. Gentlemen opposite contended was not as universal as they made out; even in our criminal law the prosecutor was not in all cases bound to prove every part of his case. Possessors of certain kinds of goods, for instance, had to prove they were honestly in possession. The clause, as it stood, would, he believed, not increase, but check litigation, because if a poor man made a claim which, if not successfully disproved, would be allowed, the landlord would prefer to settle it out of Court by payment rather than allow it to go before a Judge; whereas, if the burthen of proof were on the tenant, the landlord's agent would often advise a resistance to the claim, in the hope of succeeding by failure of the tenant's proof, owing to the enormous cost and difficulty to a poor man, of bringing up the necessary witnesses, perhaps some years after the event.
§ MR. PLUNKET
said, he could not admit the force of the arguments of the hon. and learned Member who had just sat down either in point of policy or of law. In further illustration of the last argument of the hon. and learned Member, and in order to carry it to its legitimate conclusion, he (Mr. Plunket) would observe, that if the tenants of Ireland were presented with all the improvements made on their holdings up to the 383 present time, an entire stop would be put to litigation between landlord and tenant on that account. As to the argument from the analogy of the criminal law, the hon. and learned Member must know that the principle involved in the instance he had cited was very different from that now under discussion. On the question of going to a Division, he must say that, although it was with extreme reluctance he had assumed a duty which the hon. and learned Member for Richmond (Sir Roundell Palmer) had originally proposed to himself, he preferred adhering to the hon. and learned Member's original view rather than following him in his more recent conclusions. The course pursued by the hon. and learned Member left hon. Members on that side in a difficult position; having argued in his place in a way which was perfectly unanswerable in support of the Amendment, he, by some mysterious mesmeric process, came to the exactly opposite conclusion, persuaded, no doubt, by arguments forged in the same smithy, but not exhibited for the consideration of the Committee. He (Mr. Plunket) would certainly not make the old appeal from "Philip drunk to Philip sober;" but he would venture, with all respect, to appeal from Philip mesmerized to Philip as he was before he was mesmerized.
§ SIR ROUNDELL PALMER
said, he had but one word to say. There was neither mystery nor Mesmerism in the course which he had felt it his duty to take. That course was dictated by the simplest and most intelligible principle upon which a man could act—a principle intelligible to every man—that of endeavouring to get all he could, and of taking that which he was able to get.
§ MR. PERCY WYNDHAM
said, he must express his decided opinion that the majority of improvements of any value were in Ireland made by the landlord.
§ Question put, "That those words be there inserted."
§ The Committee divided:—Ayes 132; Noes 191: Majority 59.
Amendment proposed, in page 6, line 40, after "title" to insert—
Except in the following cases where compensation is claimed in respect of improvements made before the passing of this Act:—
§ MR. G. B. GREGORY
said, he wished to point out that these words did not make the smallest difference in the nature of the clause.
§ SIR ROUNDELL PALMER
said, he took an entirely different view. The whole course of argument for the last three hours was, that the general principle of the law threw the burden of proof on the claimant; therefore the claimant must show the improvements in cases to which this clause did not apply. It was clear it was not for the landlord to prove anything about the matter until the burden of proof was thrown on him.
§ MR. CHICHESTER FORTESCUE
said, the clause did not make any reference to the Landed Estates Court; it applied to all sales in which property passed to a stranger.
§ MR. R. TORRENS
said, he must express his entire disapproval of the retrospective nature of the action given to this clause, which would open the door to fraud, and place the landlords of Ireland under so many unnecessary disabilities as to induce him to throw his land to a great extent into large farms.
§ Amendment agreed to.
SIR HERYEY BRUCE
moved to report Progress, so that the clause might be printed, and that Members might have a better opportunity of understanding it than they could now.
SIR HERYEY BRUCE
Then, he would move to report Progress. So 385 great was his objection to the clause in all its principles and all its words, that he could not consent to its going further without seeing what would be the effect of the Amendments that had been introduced in it.
§ Motion negatived.
§ Question put, "That the Clause, as amended, stand part of the Bill."
§ The Committee divided:—Ayes 167; Noes 103: Majority 64.
§ Clause agreed to.
§ House resumed.
§ Committee report Progress; to sit again upon Monday next.