[BILL 84.] SECOND READING. (Hansard, 2 May 1876)

§ MR. MULHOLLAND,

in rising to move that the Bill be now read a second time, said: I will detain the House but a short time in giving an explanation of its purport. No one can be more sensible than I am of the infinite injury inflicted upon Ireland by the perpetual agitation of the question of land tenure, and I will say at the outset that this is not an attempt to re-open the Irish land question. I have no desire to interfere in any way with the settlement of that question so recently concluded, and which I hope may be considered final. I trust that in this respect the assurance given by the right hon. Gentleman, then Prime Minister, may be verified, when, in introducing the Irish Land Act in 1870, he declared" that it was his intention by that Act to close and seal up for ever that great question." Neither will I discuss in any way the principles upon which that Act was founded, nor the amount of success it has achieved. It is enough to say that it has been accepted loyally even by those who questioned the wisdom or expediency of so great an interference with the rights of free contract, and that the Bill now before the House, originating as it has done with the landlords of Ulster, is a proof, if one is needed, that they desire the Land Act should be fairly carried out—carried out not merely in the letter, but in the spirit. If there has been a complaint from those landlords, it has been this, that the section of this Act relating to their province should have been so vague and undefined. That first section virtually comprised the entire legislation with respect to Ulster in the sentence "The usages prevalent in Ulster known as the Ulster Tenant Eight Custom are hereby declared to be legal." Whatever may have been the intention in making this section, so meagre and unfashioned, the result was inevitable, and it was pointed out by some Members of this House during the debate upon the Bill that some would attach one meaning to these words, and 2041 others another meaning, and that the explanation and definition from which the Legislature shrank would have to be sought for in the Courts of Law, thus cruelly forcing both landlords and tenants into an attitude of apparent, though involuntary antagonism. The right hon. Gentleman to whom I have already referred in introducing the Bill and explaining the first section alluded as a probable source of the Ulster Custom of tenant-right to "the happy political relations existing in that province between the owners and the occupiers of the soil." It was hard upon these owners and occupiers, although, perhaps, not displeasing to their political opponents, that a custom arising out of such happy relations should have been made by any imperfection in legislation a lever to disturb them. The difficulties arising from this vagueness of the first section became early apparent, and on such points as the relation between that section and certain subsequent sections, the definition of the word "usage," the extent of area, and the length of use required to develop an estate rule into a "usage," there were the most conflicting decisions, resulting in a general feeling of uncertainty. The subject having been brought before the notice of Parliament, a Select Committee of the House of Lords was appointed in 1872 to inquire into the working of the Act. That Committee reported—"That difficulties had arisen in the working of the Act on certain points," which it proceeded to specify. Some of these points have been since settled by judicial decisions, and I believe that their settlement has been satisfactory, at least to the reasonable and moderate men, who form the great bulk of the community. The first and most important, however, of the "difficulties" alluded to in that Report, continues to excite the public mind in Ulster, and has given rise to a feeling of dissatisfaction among the most respectable and upright of the tenantry of that province, while at the same time it has been made the pretext for agitation by those who, I fear, desire nothing so little as that that tenantry should be satisfied and contented. The difficulty to which I refer is stated by the Select Committee to be—"whether at the expiration of a lease the Ulster Custom is to prevail over the covenant of surrender in the lease." With re- 2042 spect to this point, there are still doubts, or, where there are not doubts, there is dissatisfaction. After a number of conflicting decisions it may now be taken to be almost settled as a question of law "that if the tenant can prove that it has been a special usage on the estate to allow the benefits of the Tenant-right Custom on the expiration of the lease, such usage will override the covenant of surrender;" in other words, "it is the legal presumption that the covenant of surrender does prevail over the Tenant-right Custom until the tenant shall prove a special usage to the contrary, not a usage in the ordinary cases of yearly holdings, but a usage in the special case of expired leases." This is probably a fair construction of the Act, but it leads in practice to anomalies and injustice; for it is in most cases impossible for a tenant to prove such a usage, where, from the nature of the case, an occasion for the assertion or exercise of that usage has most probably never occurred; and yet nothing can be more certain than that, where the Ulster Custom existed, it did generally attach with equal and undiscriminating force to lease holding as to yearly tenancies. I will not now attempt to detain the House by any detailed proofs of this proposition; sufficient proofs will be found in the evidence before the Devon Commissioners of 1844, given by witnesses from every county in Ulster, and which was truly expressed by Mr. John Vauddens Stewart, one of the witnesses who, speaking of his part of the County Donegal, said, "lease or no lease makes no difference. The tenant-right is considered the tenure." In fact, the growth and existence of the Ulster usage were coincident with the general prevalence of leases in the early part of the present century, and the leases themselves were seldom contracts in the ordinary sense; they were not entered into with reference to, or after consideration of, their covenants, which, indeed, were seldom, if ever, used by either landlord or tenant. Not only have we on the subject historical and traditional proofs, we have the custom as it exists at this day on the great and leading estates in the province. On these it is not usual to put a tenant at the expiration of an ordinary agricultural lease on any different footing from his neighbours holding from year to year. It would be invidious to select 2043 any special instances for mention, where this usage is so general; but I may call the attention of the House to the names on the back of this Bill as a proof that the custom is as I describe on the estates of the Duke of Abercorn, the Marquess of Down shire, Lord Edwin Hill-Trevor, and Lord Belmore, but, for the necessity of limiting the number of names on the Bill, the same guarantee might have been afforded as to the other Ulster landlords in this House. But general though it may be, if the onus is thrown upon a tenant of proving such a usage as the existence of tenant-right at the expiration of a lease, I ask the House to consider the difficulty of the task. What did exist may be described as having been a dormant usage, for unless a previous tenant on the estate had desired to give up his tenancy at the precise moment when his lease expired, and had claimed and been allowed the privilege of selling his interest before he had contracted a new tenancy, there had been no Act capable of being cited as a proof of the particular point at issue—To adduce proofs of a sale by a tenant on the estate before the expiration of his lease is not sufficient, because that sale may be considered to have been a sale of the unexpired portion of the lease. To adduce proofs of a sale a year or two after the expiration of the lease is not sufficient, because a new tenancy having been thus created it may be said that the sale was the sale of the new tenure. It is not disputed that it has been the custom to allow tenants at the expiration of their leases to continue in their holdings at a reduced rent, and after having entered upon such new tenancy to allow them the benefit of the tenant-right usages of the estate. But even as the law now stands, under the Act of 1870, the same rights would be acquired under similar circumstances. The question is not whether under certain circumstances a lease holding tenant may acquire a right to the benefits of the usage, but whether at the expiration of his lease he may be deprived of them. As the Act of 1870 is now construed, it is no doubt possible that he may be so deprived of them, unless he can prove what, as I have said, is almost incapable of proof. Before the Act of 1870 there would have been little risk of any interference with the usages; but since the elasticity of the custom has been re- 2044 placed by the hard-and-fast line of law, nothing outside or beyond that law can be reasonably expected, much less can it be considered secure. The lease holding tenant, therefore, now finds himself in a worse position than he was in before the Land Act—a state of things most assuredly not contemplated, nor desirable to be continued. The present Bill is intended to remove that defect, and in doing so it keeps rigidly within the lines of the original Act, and opens no new ground whatever. It is brought forward to carry out the intention and design of that Act in this one important particular, where in practice it has proved defective, and to include among the usages it legalized this one usage now practically excluded, but not less general, nor less valued than the rest. The question to be decided is simply this—was the existence of tenant-right at the expiration of a lease on estates otherwise subject to the custom a usage prevalent in the Province of Ulster, or was it not? If it were so, it was the intention of the Act of 1870 to give it legal force. My belief is that it was such a prevalent usage. I have given some of my reasons, I hope enough to convince the House; but, if necessary, it will be easy to prove this with more detail. It is now, therefore, proposed to enact by this present Bill that, if a tenant whose lease may have expired, shall prove that had his building been from year to year, he would have been entitled to certain tenant-right usages, he shall be so entitled to them, notwithstanding the ordinary covenants in his lease. Proof must, of course, be given as under the original Act that he would have been entitled to the benefits of the custom had he been a yearly tenant, otherwise he does not come under the 1st section of that Act, but such proof is not required for the particular holding, but only as to the estate of which it forms a part. This is the entire enacting portion of the Bill. What follows are certain provisions necessary to provide for exceptional cases, and they are borrowed in form and substance from the other sections of the original Act, where with reference to leases they deal with analogous exceptions. The hon. and learned Member for Limerick (Mr. Butt) a few days ago took an opportunity when doing me the honour of meeting a speech 2045 of mine in this House upon another subject to say that I had not succeeded with, respect to this Bill in winning the approval of the tenant farmers of Ulster, whose protests against it he said covered the Table. Well, no doubt, hon. Members have received these circulars to which he referred—I have received them myself—but they all bear the impress of common origin, and we are aware in this House how documents of that kind can be multiplied indefinitely to order where there is an active central committee, and a sufficient organization. I do not deny that a moderate and reasonable proposal, such as I now make, appears to some disadvantage beside the sensational Bill of the hon. and learned Member. A proposal to give tenant-right at the expiration of a lease cannot be expected to compete in attention with a proposal to transfer the ownership to the occupier; but I think the reception which the Bill of the hon. and learned Member has met with not only in this House, but over the entire Kingdom, will tend to open the eyes of any that were credulous enough to believe in its possible success, and that even they will not drop the substantial benefit now offered to them that they may grasp at a shadow. No doubt, most energetic and persevering attempts have been made to excite distrust of this Bill among the tenant-farmers, and the most unfounded statements have been made with respect to the nature of the Provisoes referring to exceptional cases, their scope and meaning. I will not now take up the time of the House by referring to these at any length. I imagine that this can be better done in Committee. I will only say that the exceptional cases provided for are simply in the first place:—1st. Those cases where the landlord shall prove a usage to the contrary so as to negative the presumption that leases do not affect the custom. In an Act whose whole foundation is "usage" it would not surely be possible to incapacitate a landlord from offering proof as to the existence or nature of that usage. The complaint now is that the tenant has to adduce the proof, and that this is impossible. Well, we shift this onus upon the landlord, and, if there be a difficulty, it will still remain, but will remain for the landlord. To this surely no reasonable tenant can object. 2nd. The 2nd Proviso refers to cases 2046 where the lease may have contained an express agreement to forego the custom. Some of the arguments I have used as to the general nature of the ordinary Ulster agricultural lease, apply to such exceptional cases of express contract, and it would be unjust not to provide for them as exceptions. I may also state that there is a similar provision in the original Act, where in the 4th section it deals with claims for improvements at the expiration of leases. 3rd. The third and last provision is, that, in awarding compensation, regard shall be had as to the length of the lease and the rent at which it has been held. This was intended to apply to cases where long leases had been given, sometimes of considerable tracts, at low, often at mere chief rents; it was not intended to apply to ordinary agricultural leases, but I shall propose in Committee that it shall be narrowed so as to express this meaning more clearly. It is the intention that the Bill shall fairly and fully carry out its avowed object, and shall afford the relief which the lease holding tenants of Ulster have claimed. If it receives, as I hope it will receive, the assent of the House, it will give a feeling of security in the enjoyment of a cherished custom to an important and deserving section of the tenant-farmers of Ulster, who now find themselves in an exceptional and uncertain position, and it will, I trust, in so doing, diffuse that contentment and satisfaction which it was hoped the Land Act would produce, but which in Ulster has not been attained, owing mainly to the fault which it is now desired to remedy. In what I have said I have directed myself to convince and conciliate those who might naturally have been expected to view with suspicion a proposal to interfere with the covenant of a lease. But it is not from such a quarter or on such grounds that opposition is threatened to the Bill, and, from the unexpected source from which it comes, hon. Members will not fail to see the true character of that opposition. What are the facts of the case? There are, it is said, over 30,000 lease holding tenants in Ulster, as to whom at the expiration of their leases, as the law now stands, it will be legal presumption that the covenant of surrender has deprived them of the benefit of the tenant right usages, to which they would otherwise have been entitled. A 2047 great and widely spread dissatisfaction has ensued, and a Bill is brought forward to afford redress. To remove that legal presumption, and to declare that unless the contrary shall be proved, a lease shall not be taken to have deprived a tenant of the benefits of the custom. And who is it that comes forward to oppose that Bill? An hon. Member who professes specially to represent the interests of the tenant-farmers. I believe that in taking such a course the hon. Member has made a great mistake, although, no doubt, the temptations to it were obvious. The removal of a grievance, especially if by the hands of others, might not suit the purposes of the hon. Member, nor the active and clever Committee who undertake to organize agitations among the tenant-farmers of Ulster. This fear was natural that, if this Bill should become law, their craft would be in danger. But if the hon. Member should succeed in obstructing the passing of this Bill during the present Session, I doubt whether it will excite the gratitude of those lease-holding tenants whose leases may expire during the next 12 months, that when their interests were in the balance, personal and party considerations should have been allowed to outweigh them. The hon. Member has himself brought forward another Bill on the land question, a Bill which, as it seeks to introduce novel principles into legislation, and to create usages by statute, is not likely to receive the sanction of this House, an opinion probably shared by the hon. Member himself, as I notice that, when at the opening of the Session, he had to select a day for the second reading, he selected the 21st of June! The present Bill, if more modest in its character, has at least this merit—it is one that it is hoped and expected by its promoters may become law, and it is one 2048 that is intended not to foment discontent and agitation, but to allay them. I beg to move the second reading of the Bill.