HC Deb 05 May 1882 vol 269 cc299-313
MR. HEALY

said, he wished to call the attention of the House to a remarkable legal decision given by a County Court Judge in Ulster under the Land Act. As there was some intention on the part of the Government to amend the Act, he brought the case before the House for the purpose of illustrating the manner in which it was now working. The Land Act provided that a tenant might sell his tenancy for the best price he could obtain for it; but, unfortunately, there was a condition that the landlord had the right of preemption, and that where there was a dispute between the landlord and tenant, the Court might interfere and fix the rent and price of the holding. The case he referred to came before the County Court in Monaghan, and was between the Earl of Dartrey and a tenant named Jebb, who desired to sell the value of his holding for £120. The new tenant entered into possession; but no sooner did that take place than the Earl of Dartrey served a notice upon him, to the effect that he was not his tenant, because he, the landlord, had not received notice as prescribed by the Land Act. The prescribed notice of the intention of the original tenant to sell was, therefore, served upon the Earl of Dartrey; whereupon, although the sale was practically made in open market, the noble Earl served notice upon the tenant who had entered into possession, bought seed, and ploughed the land, that he did not agree to the sale, and that he should apply to the Court to have the true value of the tenancy fixed. The noble Earl accordingly took the tenant before the County Court Judge, who, it would seem, was an official of peculiar ideas, for, not very long ago, he had sentenced a man to be hanged for stealing a goat. The Judge was Mr. Newell Barron. The House would bear in mind that the transaction by which £120 had passed for the farm had taken place. Nevertheless, Mr. Barron said to the new tenant—" You shall not pay £120 for the farm; "and to the old tenant—"You shall not have £ 120 for the farm. I fix the true value of the tenancy at £66, and you must lose £54." If that was free sale, the principle that a tenant might sell his tenancy for the best price he could get was illusory. So far as this clause was concerned, he (Mr. Healy) himself was entirely free from any difficulty, for he had never given it any confidence whatever. He was almost the only Member of his Party who had voted against it; and he opposed it, followed by the hon. Member for Cavan and one or two other Members, because, as a whole, instead of being any benefit to the tenant, it took away from them something which they already possessed. If a man had fixity of tenure and a fair rent, free sale followed as a natural consequence without any legislative enactment whatever; for if he had a farm at £100 a-year, and had the right to stop in it as long as he liked, it followed, without any legislative enactment, that he could part with that farm, and sell it in the open market. Therefore, he contended that the 1st clause of this Act was actually useless and prejudicial to the tenant, because, as anyone who looked into the Act would see, the conditions which a tenant had to fulfil when he sold his farm were very onerous. The tenant must give a prescribed notice, and on the receipt of such notice the landlord had a right of preemption, and might object to the sale of a tenancy to some other person. He should scarcely have objected if this extraordinary proceeding on the part of Judge Barron had occurred in the case of a statutory tenant who had taken advantage of the Act and invoked its benefits; but this was not the case of a statutory tenant, and that made it all the more grievous. He had put down an Amendment which would have excluded tenants other than statutory tenants from the benefits of the Free Sale Clause, because why should a man who was not obliged have these alleged benefits thrust down his throat? No one was compelled to go into Court to get a fair rent, and why should this clause be forced on a man? Until tenants applied for statutory conditions, this Free Sale Clause ought not to be imposed upon them. If a tenant went into Court and invoked the protection of the Act, he must take it, good or bad; and in the case of a statutory tenant the same grievance did not exist, because he had invoked the benefits of the Act, and he must take the bad conditions with the good. Under the ancient Ulster tenant right a tenant had a right of free sale without the intervention of Judge Barron, or anybody else; and what had now been done was wrong. If a tenant was a statutory tenant, he would know that he must be subject to the accidents of judicial decisions, and so on; and, therefore, it was all the harder that statutory conditions—and especially this 1st clause—should be imposed on the people who had not applied for them. Above all, there was an exceptional grievance in the case of the Ulster tenants. They had at all times, where the custom prevailed, had a right of free sale; but what had now been done? He did not profess to speak with great authority, because this Act was so voluminous and extraordinary that a man could not keep it in his head; but the Ulster tenant had a right to sell his tenancy subject to the custom or usage, but he was now compelled to apply for a statutory term. He would like to know from the Government whether an Ulster tenant who enjoyed the Ulster tenant right, and was told that he might sell his tenancy under his own usage, or under the usage prescribed by this Act, was to be compelled to accept the decision of a man like Judge Barron? Was a landlord to have the power of saying—"Although you might have sold your right under the Ulster Custom, I should, under this Act, compel you to come in and sell in the Court?" Articles had been written in several Ulster papers upon this matter; and he was very happy to see that the hon. Member for Monaghan (Mr. Givan), to whom he had spoken upon the subject, had put a Notice on the Paper, in the form of a Question upon the matter. The hon. Member was now present. The right hon. and learned Gentleman the Attorney General for Ireland was in possession of the facts of the case; and he should, therefore, like to know what the view of the Government was? He would show the House the spirit in which the County Court Judges dealt with the Act. When this claim came before the Court, in order to prove that there was no collusion between the seller and the assignee, the vendor called in the auctioneer—a Mr. John Treanon. He was examined, and proved that he sold the farm in question. There was a good competion, but Mr. Caldwell was declared the purchaser. Witness received the purchase money, and handed it over subsequently to Henry Jebb. Then the Judge—and to this he invited the attention of the House, and especially of the right hon. and learned Attorney General, who, he believed, exercised some jurisdiction over the County Court Judge—asked— Do you undertake to give legal advice? Mr. Treanon: I do not, my Lord. I considered myself justified in telling the people that freedom of sale existed now; but I do not think that legal advice. His Lordship: You should not be proclaiming dangerous doctrines. That was to say that, under the Act of 1881, in the first lines of which the Prime Minister said the tenant might sell his tenancy for the best price he could get, nevertheless Her Majesty's County Court Judge said that was preaching a dangerous doctrine. Was that the view of the right hon. and learned Attorney General; and, if not, what notice was to be taken of this extraordinary decision by Judge Barron? Then mark the animus all through that statement. Mr. Treanon went on to say— It cannot be a very dangerous doctrine to tell the farmers that they have free sale under the new Land Act. His Lordship: Well, stick to your auctions, and leave the law alone. He (Mr. Healy) should think that man would be strongly inclined to let the law alone, if it involved a loss of nearly £60, and when the Court came in and acted as auctioneer, and cut down the market value of the tenancy from £120 to £66. It could not be said that the Government were not fairly warned of what would happen when this clause was under consideration. He (Mr. Healy) had endeavoured to minimize it as much as possible, and put down an Amendment, declaring that the landlord, where he reserved the right of preemption, should give as high a price as anyone else. What was the answer of the right hon. and learned Gentleman the Attorney General for Ireland? That it would expose the landlords to the action of the "puffers"—or, as the hon. Member for Cavan (Mr. Biggar) called them, the "sweeteners"—who would put up the price. He therefore withdrew the Amendment, and proposed that the words "market value" should be inserted; but the Government refused to agree to that, and adopted the words "true value." Twelve months after that, what was declared in the open market to be worth £120 was declared by the County Court Judge to be worth only £66. That was a very extraordinary decision, and was certain to cause a considerable amount of dissatisfaction; and, as the Government had now in view some amendment of the Act, he trusted they would include some amendment of this clause, even if they did not repeal it. He objected to it as delusive and illusory. He was sorry to find that his prediction had been too well verified; while the Government had not been justified in their prophecies, on the strength of which they had refused the reasonable Amendments which were proposed from his side of the House.

MR. GIVAN

said, the effect of this decision had been to rob a respect- able farmer of nearly £60, and that had created widespread dissatisfaction throughout the North of Ireland. The importance of the matter could not be exaggerated. They must bear in mind, when they came to consider the conduct of the County Court Judge in this case, what the County Court Judges did, under the Act of 1870, in assessing the value of tenant right. A tenant proved that a certain sum had been offered by a certain purchaser; and, notwithstanding evidence that the offer was bonâ fide, and the purchaser could not reasonably be objected to, the County Court Judges rarely in such cases gave the out-going tenants anything for their improvements. That conduct induced many hon. Members last year to object most strenuously to throwing the tenants under the new Act into the hands of the County Court Judges, and to insist on the establishment of a separate Court for the administration of the law between landlord and tenant. But now the County Court Judges had commenced the same operation as under the Act of 1870; and the hon. Member for Wexford (Mr. Healy) had omitted to mention one circumstance which, more than any other, had deprived tenants of the benefit of the Act of 1870, and to prevent the perpetuation of which several Amendments were proposed by hon. Members opposite last year—namely, the introduction of usage. The County Court Judges had declared that usage under the Act of 1870 included the local usages set up by agents in the management of their estates. In the case of one estate, he had heard the agent admit that he was aware much larger sums were given sub rosa, yet he could only obtain in the Court the £10 per acre under the office rule, which was the maximum amount the out-going tenant could get. He thought it was important that the House should take notice of the matter to which the hon. Gentleman the Member for Wexford (Mr. Healy) had properly drawn attention, and that the Law Officers of the Crown should express in the House their condemnation of a proceeding which was utterly unjust and unjustifiable, and without any foundation whatsoever. That the sale was bonâ fide was not questioned; there was no objection to the purchaser, and no reason was assigned for this act of gross injustice.

MR. BULWER

said, he had not intended to take part in this discussion; but he rose to express a feeling which he hoped was shared by many hon. Members of the House. Hardly an opportunity ever arose in the House to call attention to any matter connected with Irish administration, but it was taken advantage of by Irish Members to bring forward accusations of the most offensive character against some gentleman or other behind his back. The Judge complained of had no notice that the hon. Member for Wexford (Mr. Healy) intended to bring these accusations against him which had now been heard; and his (Mr. Bulwer's) feelings revolted against that gentleman's name being introduced into the House of Commons for the purpose of holding him up to ridicule and contempt, without any notice being given him, and probably without any person being in the House who knew anything about the case and able to stand up and defend him. The decision complained of might be right or it might be wrong. If right, it afforded fair ground for argument that the Act which permitted it should be amended. If wrong, it would be set right on appeal. But whether right or wrong, what justification, was there for making an abusive personal attack upon the Judge? In all probability that decision had been appealed against. [Several Irish MEMBERS: No.] Then he presumed the man had acquiesced in the decision; for if he had not, he did not believe that the Court could give an unjust decision without there being some means of remedying it. Then the hon. Member had told them that this County Court Judge had sentenced a man to be hung for having stolen a goat, and this simply in order to bring the Judge into contempt before the House, and before those amongst whom he administered justice. And what authority, he should like to know, was there for saying that any such occurrence ever took place? He had followed the remarks of the hon. Member for Wexford as closely as he could, and noticed this observation—that a tenant who wanted to sell his tenant right ought to be allowed to get any sum he could for it. That, in the tenant's case, the hon. Member called free sale. He (Mr. Bulwer) believed that no hon. Member had listened with greater weariness than himself to the interminable contention by hon. Members below the Gangway on that (the Opposition) side of the House, that while a tenant should be allowed to get the best price he could by a sale of his interest, even to the prejudice of the landlord, the landlord, on the other hand, was not to be allowed to get the best price he could for his interest. There was to be freedom for the tenant, but chains for the landlord. However, he had risen now for the purpose of entering his protest against a practice which seemed to prevail in the House—namely, of bringing forward Motions, and, under cover of them, attacking gentlemen who had no opportunity of defending themselves.

MR. SEXTON

thought the House would have lost very little if the hon. and learned Member for Cambridgeshire (Mr. Bulwer) had not interposed between the hon. Members for Wexford and Monaghan and the Law Officer of the Crown, who was about to reply to them. Such hon. Members might have a knowledge of England; but they had not, nor could they be expected to have, a knowledge of Ireland and the provocation that was given in that country for charges of this kind. It was as painful to the Irish Members to lay under the necessity of having continually to call attention to the conduct of officials in Ireland, as it was for the hon. and learned Member to have to listen to these complaints. The best proof of the utility and effectiveness of these repeated complaints was to be found in the admission laid on the Table of the House by the First Minister of the Crown, in answer to the hon. Member for Longford County; and until the ranks of officialism in Ireland were cleared of such men as Judge Barron, no advance could be made there in the cause of good government. When an hon. Member made such a complaint as that they had heard from the hon. Member for Wexford, he should be protected against such attacks as that of the hon. and learned Gentleman. The hon. Member for Wexford had availed himself of his right as a Member of that Supreme Legislature, and had done nothing more than his duty, and nothing more than was done by every newspaper in the country. When a public official, who was public property, gave a judgment in open Court, why should a Member of the House of Commons, of all Bodies in the world, be debarred from criticizing it? Every newspaper in the country was at liberty to criticize it. It was absurd to suppose, moreover, that before the conduct of public officials was called in question, notice of such intention should be given to those officials, in order that they might prepare replies—replies which, in all probability, would not compare favourably with the charges made. He (Mr. Sexton) claimed the right in that House of calling in question the conduct and language of any public functionary, without going to the trouble of giving the individual complained of notice of his intention. He acquitted the hon. and learned Member (Mr. Bulwer) of the charge of bad taste, partly because of his ignorance of Ireland, and partly because of the tenderness of his nature, which induced him to hasten to the assistance of people who were attacked; but, at the same time, he must say that the hon. and learned Member had imposed on the House an interlude which might have been well spared. Tenants who did not enjoy the advantages of the Act should not be put under its disadvantages. He hoped the right hon. and learned Gentleman the Attorney General for Ireland would be able to tell them that the 1st clause of the Land Act was not a delusion and a snare; that the tenant was entitled to what the Land Act declared to be his right; and that no County Court Judge should interpose between him and that right.

THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)

said, he was sure the hon. Member who had brought forward the subject (Mr. Healy) had only suggested that the Act should be amended by way of a joke; and as for the stern observations he had used they were hardly called for. No one denied that it was not the right of an hon. Member to call attention to the conduct of a public official; but it was always desirable that an opportunity should be given to the individual complained of to make an explanation, especially when the complaint made was calculated to throw discredit upon an important body of gentlemen. He himself (the Attorney General for Ireland) was not always quite so free from joke as, perhaps, he ought to be; and it was probably natural for others to be the same. But, getting over this point as they best could—for it was entirely beside the question—he would point out that the County Court Judge was not by any means one of the official administrators of the Act; neither was he—so much the better, of course, for him—subject to the jurisdiction which the Attorney General for Ireland exercised over some officials, and sometimes, he was afraid, with a little severity. He could not admit that any official statement had been made by the Prime Minister which should lead to the conclusion that, as the hon. Member had said—"Nothing in the shape of good government could be done until officialism has cleared of such people as Judge Barron." But, to come to the question before the House, what he understood the hon. Member (Mr. Healy) to do was to take as his text a case which had appeared in the newspapers. Assuming for the purposes of that discussion that that case was correctly reported, it was not to be expected that a tenant, especially if he was a stern and sturdy tenant from the black North, would sit quiet under the grievance of losing what, for practical purposes, might be said to be half the value of his property. It must be remembered that though the decision of the County Court Judge in these matters was not subject to appeal to the Judges of Assize, it was subject to appeal to the Land Commission, which was a Court peculiarly capable of dealing with this subject, which formed a special and distinct branch of what he might call jurisprudence. No one could express too strongly the view that every tenant in Ireland, whether in Ulster or out of it, under the Act of 1881 possessed in the most ample degree the absolute power of free sale—of selling his tenancy for the best price he could get for it. The Ulster Custom might—and did in some cases—subject the tenant to a great many fetters. There were the office rules, and other things which had grown up, to regulate the value of the Ulster tenant's interest in his holding; therefore, there was a section securing to the tenant his rights under this custom. But as there were other parts where the custom did not prevail, there was a section inserted giving the tenant the utmost amount which could be realized by him as fair purchase money of his interest. The tenant had the option of selling under the Ulster Custom, or under the Free Sale Clause, which conferred a full right upon every tenant in Ireland. He did not think it would be possible to express this in language clearer than that contained in the Act, or that it would be possible to amend the section by any words with which he, at any rate, was acquainted, to confer more distinctly on the tenant the legal right which the Statute intended to give him. That section, which everyone knew by this time was the 1st section, commenced with the declaration that the tenant of any holding not especially exempted might sell his tenancy for the best price he could obtain for it. [Mr. HEALY: Read the 3rd sub-section.] He was coming to that. The regulations by which the tenant was controlled followed afterwards, and the intermediate sub-section was inserted because it was considered right—he did not think the matter went to a division—that the landlord should have the power to go into the market, in the same way as if he were an ordinary purchaser, and exercise the right of pre-emption if the tenant was not prejudiced thereby. The Land Commission was, for this reason, authorized to make rules requiring that the landlord should have a fortnight's notice of the intention of the tenant to sell. Accordingly, when a tenant wanted to sell, he had to serve a fortnight's notice on the landlord, on a simple form prescribed. In the case pointed out this had not been done; but the tenant sold in the open market for £120, and he had been informed—and had no doubt it was true—that the sale was a bonâ fide one. The tenant, it was said, had been offered £115 by another purchaser; therefore, it was not a fancy price that a person was about to give. He was told—and, for the sake of argument, he would assume it was a fact—that the purchaser was described thus—"A respectable man; he was industrious; his character was exemplary; and he was in religion"—and this, he presumed, would be esteemed a qualification in that part of the country—"a Protestant." The man was considered an exceptionally good purchaser; but the landlord had his right to pre-emption, and to sell without giving him notice was an injustice to him.

MR. HEALY

said, the tenant had a right to sell under the Ulster Custom, under which it was not necessary to give the landlord notice of intended sale.

THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)

said, that in this case the tenant was unable to sell without notice, owing to the office rules to which notice had been drawn. The 3rd sub-section provided that— On receiving such notice the landlord may purchase the tenancy for such sum as may be agreed on, or, in the event of disagreement, may be ascertained by the Court to be the true value thereof. Now, he apprehended that it would be impossible to express in the English language, or any language he was acquainted with, or in any words he was acquainted with, more clearly the real measure of price which ought to be given by the landlord to a tenant. The price was not to be an inflated one; and in a case of this kind, where no notice of sale was given to the landlord, the price given might have been a fancy one, and therefore an unfair one, and to fix the landlord to that might have been an injustice. He understood that to be the true price which was as much opposed to an inflated price on the one hand as it was to a depreciated price on the other. He could not understand how any reasonable person—it did not, in his opinion, require a Judge to fix it—could hesitate for one moment in giving what was a fair price, when he had to decide as between vendor and purchaser. Therefore, he could imagine that it was necessary to amend the Act, and he repeated that probably the hon. Member was joking when he suggested that that course should be adopted. Even supposing that the decision in question was an incorrect one, it was, at any rate, an isolated one; and surely an isolated decision could not call for amendment of the Act any more than that one swallow would make a summer. As the hon. and learned Member for Cambridgeshire (Mr. Bulwer) had observed, the decisions of all Judges were subject to an appeal; and the Act, in order to prevent any injustice being done, provided, in the 47th section, in the plainest terms, that anyone who felt aggrieved by a decision of a Civil Bill Court might appeal to the Land Commissioners, who were invested with most ample powers, not only to affirm or reverse, but to modify that decision. Therefore, he apprehended that if a decision had been given by which the true value—"real" value it had been proposed to insert in the Bill, but it was thought that no more correct description than "true" value could be found—was not awarded, but reduced from £120 to £66, the decision ought to be appealed against; and he had no doubt it would be appealed against, if the tenant's legal adviser thought he had any chance of getting his costs in the case. The auctioneer in this case differed from the Judge; but the auctioneer had an interest in the case. It was said—and, no doubt, it was the fact—that the auctioneer was paid a percentage, and that his fee, which, otherwise, would have been £6, was cut down, by the reduction of the price of the tenant's right, to £3. No doubt, the auctioneer, like all professional gentlemen, wished to get his price as honestly as he could. He was one of an industrious class, who were a credit to the country; but a little law was always a dangerous thing. It would be very hard for the House to visit with censure a Judge who had given a very fair interpretation of the Act. It was not possible for any reasonable man on the Bench or off it, in this House or out of it, to doubt what the Statute conferred on every tenant. It conferred on every tenant in Ireland the right to sell his holding or his estate for the best price—not an inflated one, on the one hand, nor a depreciated one, on the other. It left to the tenant the option of getting the price by the Ulster Custom, if he thought he could secure a better price that way, or under the Statute. Surely they could not do more for the tenants of Ireland than give them this option. No doubt, if a grievance had been suffered, he who was aggrieved, if he thought he could get his costs, would appeal; and if he was successful, no doubt the triumph he would achieve would amply compensate him for any inconvenience or loss of time he might have suffered.

MR. LEA

said, he wished to make just one observation before the matter dropped. When the Land Bill was before the House last year, they had several Amendments on the Paper to make this portion of it as clear and as plain as possible. He had had an Amendment down bearing on this very point. He had moved that the words "fair market value" should be inserted in the measure, in order that they might avoid any mistake, such as that which had been mentioned by the hon. Member for Wexford (Mr. Healy). Unfortunately, hon. Members would not accept the opinion of Irish Members, and followed the Government into the Lobby; but he would undertake to say that if his words had been inserted, the County Court Judge who had been alluded to would not have made the error complained of. He hoped they would shortly have before them a Bill to amend the Land Act, and that the Government would take care that the language of the measure was as plain as possible. He trusted also that in that future legislation the Government would not be too proud to accept Amendments, moved by their supporters, to avoid mistakes of this kind, which not only damaged their legislation very much, but created distrust and want of confidence on the part of the tenantry in Ireland.

MR. WARTON

said, he only wished to make one short observation. He had listened, as he always did, with pleasure to the statement of the right hon. and learned Gentleman the Attorney General for Ireland; but, at the same time, he did not think that any statement that could have been made could have been more decidedly against the County Court Judge. The thing should have been dealt with as a plain matter of law.

MR. P. MARTIN

said, he agreed with the hon. Member for the County of Donegal (Mr. Lea) that the mistake which, if the statement was correct, the County Court Judge had, in his opinion, committed, was, in great measure, occasioned by the clumsy drafting of the clause contained in the Act. Like many other sections, the 1st section of the Land Act was most inartistically worded, and likely to create confusion or perplexity on construction. The hon. Member for Wexford (Mr. Healy) had pointed out that the right the tenant was entitled to under the Act was the right he was entitled to at Common Law—namely, to obtain the best price for his holding that could be secured by sale. The Act accordingly used the words "best price;" but in the 3rd section the words "true value" occurred, which apparently showed that the Legislature contemplated something entirely different from that they had in their mind when framing the preceding part of the scheme. In another part of the Act "true value" and "fair value" were used, showing clearly that there were different interpretations put upon the value. Under the circumstances, as it was determined that they were to have an amendment of the Land Act this year, and as the Prime Minister had said that the subject should shortly be brought under the notice of the House, he did think he was entitled to point out that it was a matter of paramount importance to the tenantry in Ireland that what was so obscure in the clauses of the Act of Parliament should be made clear. The principle of the Act was right; but let not the right hon. and learned Gentleman the Attorney General for Ireland imagine for one instant that this which had been pointed out was the solitary instance of the difficulty, in regard to the construction to be placed on the words of the section. Unless there had been some confusion as to the meaning of the words, he did not see how the Judge could have come to the decision at which he was stated to have arrived. The decision had inflicted on the tenant a loss—and a most serious loss it would be to a man in his position—of some £60. He might remind the House, not in this section merely, but throughout the Act, most serious difficulties in ascertaining the true meaning of the Legislature had been felt, especially in a matter most material—namely, setting a specified value on the tenancy under the Act. Many of the gentlemen acting as Land Commissioners had pointed to the difficulty they experienced in attaching a true legal meaning to those words. The right hon. and learned Gentleman the Attorney General for Ireland had treated the matter very lightly. It would be well for the right hon. and learned Gentleman to make up his mind to apply himself, when the new Bill was presented to the House, to getting rid of the difficulties and obscurities which, unfortunately, existed in this Act of Parliament.

Motion, by leave, withdrawn.

Committee deferred till Monday next.