§ Where, on an application to fix the fair rent for a holding, it is proved to the court that the tenant of the holding, by virtue of his tenancy, has, by the permission of the landlord, whether with or without payment, been accustomed to exercise any profit a prendre, easement, privilege of turbary, or other privilege over land belonging to the landlord, and it appears to be necessary for the reasonable enjoyment of the holding that he should not be deprived of what he has so exercised, the court may, after giving the landlord and tenant of the holding and any tenant of the land an opportunity of being heard, make an order for securing the profit, easement or privilege to the tenant of the holding, upon such terms and in such manner as the court think just, and such order shall be binding on all estates and interests in the said land.
§ MR. T. M. HEALY moved to omit the words "fix the fair rent for a holding," in order to insert instead thereof the words "the Court." When 205 the Land Act of 1881 was introduced by Mr. Gladstone it contained no provision whatever to enable the landlord to interfere with the tenant's right of turbary. The provision to that effect which the Act contained was subsequently inserted by the landlords, and, following it up, he got an Amendment accepted to secure to the tenant the right—which he had at common law—to the use of turf necessary for his holding. But the moment the Act became law, the landlords—despite his Amendment—began a series of operations to deprive the tenants of their turf. The Government now proposed to remedy that defect in the Act of 1881, but their proposal only allowed a tenant, sought to be deprived of his turbary, the protection of the Land Court when he applied to the Land Court to have a fan-rent fixed. That was to say that tenants whose turbary had been taken away from them then were without a remedy until the expiration of the present statutory term, and they came again to apply to have fair rents fixed. The question of turf was as important to the tenant as the question of clothing, or even of rent, and it was not sufficient to give the tenant the protection of the Court in such an important matter once in 15 years only, when the landlord could at any time assail the tenant's right to turbary by an application to the Court of Chancery for an injunction. He would be satisfied if the Government consented to allow the tenant, at any time he was assailed in the Common Law Courts, the protection of the Land Commission Court.
§ MR. GERALD BALFOURsaid that the Amendment would practically allow the Land Court to secure to the tenant rights of turbary on holdings in regard to which no fair rents could be fixed at all.
§ MR. GERALD BALFOURThat may not be the intention of the hon. Member, but it is the interpretation of his Amendment.
§ MR. GERALD BALFOURsaid that, as to the intention of the hon. Member, he admitted that there was a good deal to be said in favour of the Amendment; 206 but if this right was given to all tenants the effect would be that tenants who had fair rents fixed already would be entitled to go into Court and have the whole circumstances of their holdings again inquired into in order practically to have a fair rent fixed on turbary. The evils were not so serious as to justify the Government taking the course suggested, which would undoubtedly lead to great litigation.
MR. T. M. HEALYsaid the Government ought to adopt one of two courses. Where the landlord had initiated litigation in regard to turbary by an injunction in the Court of Chancery, the tenant should be allowed to repair to the Land Court for protection. Or, better still, injunctions in regard to turbary on holdings where fair rents were to be fixed should be tried, not in the Court of Chancery, but in the Land Commission Court. One or the other of those courses should be assented to by the Government if this clause was to be of any value.
§ MR. CARSONsaid the far-reaching effect of the Amendment would be seen when he explained that it proposed to abolish the power of the Court of Chancery to issue injunctions when rights were infringed. That was the cool proposition brought forward with a view to remedy the defects of the Land Act of 1881. If the tenant had taken a holding to which there were turbary rights attached, or any other privilege, he was by this proposal entitled to effectually maintain as against his landlord any injunction. The cool proposition of the hon. and learned Member, for which he was sorry to hear the right hon. Gentleman say there was a good deal to be said, was, that if the landlord wished to withdraw that which had been granted as a mere matter of grace or favour, and not as a contract at all, and the tenant persisted in acting in such a way as if the favour were still to continue, the landlord was to have no power whatever of enforcing the rights upon his own property. If this was to be the line of concession, as seemed to be indicated, it would be better to say that from and after the passing of this Act the landlord in Ireland should have no authority whatever, not only in relation to the holding which was let to the tenant, but in relation to any other property of 207 his at all. The hon. and learned Member would prefer that the jurisdiction of the Court of Chancery in this matter should be transferred to the Land Commission Court, but if so, there was no reason why they should not abolish the Court of Chancery altogether.
§ MR. VESEY KNOX (Londonderry)said there was no form of legislation which had been so frequently abused in Ireland as this form of jurisdiction before the Court of Chancery. He ventured to say that if the right hon. Gentleman was desirous to avoid the expense of litigation, he would accept the suggestion of the hon. and learned Member for Louth. Application to the Land Court was a cheaper, readier, and better remedy for the landlord than was the Court of Chancery.
§ COLONEL SAUNDERSONsaid that "an injunction before the Land Commission Court" seemed to be the euphemistic phrase for "stealing my turbary," or "cutting my turf." It astonished him that the right hon. Gentleman should have said that there was a great deal in this contention. He had given easements of different kinds to his tenants hundreds of times, but it was an extraordinary thing that the House of Commons should be asked to force the landlords by law absolutely and at once to surrender the property which always belonged to them, and for which the tenants had never paid anything at all.
§ MR. GERALD BALFOURthought the Committee had wandered somewhat from the point. The Court would have to judge whether it was necessary that the privilege once given should be maintained. If an order had already been made by the Land Commission on fixing a fair rent, then any question arising in connection with the order would be heard and decided by the Land Court; but if the hon. and learned Member desired that the Land Court should be the Court to be appealed to for an order which had been made under this section, it appeared to him to be practically asking what the Government could not grant. He admitted that if it was desirable to decide these matters when application to fix a fair rent was made, there was something to be said for allowing the question to be decided at other times, but it appeared to him distinctly that the balance of argument was against 208 it. He thought the hon. and learned Member would see that it might be a very serious matter if the tenant was entitled to go to Court on the question of turbary alone, as it might increase the business of the Land Commission very seriously, and it was on that ground that they could not consent to the Amendment. But as far as the principle of the Amendment was concerned it seemed to him that it was the same as that of the clause itself.
§ MR. MAURICE HEALY (Cork)said he understood his hon. Friend referred to the privileges a tenant enjoyed during the course of his statutory term, and which this section enabled the Court to give him—privileges which were only necessary for the reasonable enjoyment of the holding. When a landlord took a tenant into the Court of Chancery to prevent him from exercising the rights which were necessary for the enjoyment of the holding, it ought to be competent for the tenant to go to the Land Commission and ask that the original order should be amended so as to secure him those rights. The tenant required protection in respect of the privileges on his holding as well as of those outside. It had always been held in Ireland that where a tenant had a turf bog on his holding he had a right to cut turf for his own use, even where there was a clause in the lease reserving turbary. But the Court of Appeal had decided that a landlord might restrain the exercise of such a right, and that was a monstrous state of things. He hoped this question would be considered before Report. There was nothing revolutionary in the Amendment. The Act of 1891 contained an extraordinary clause enabling the Land Commission, on the mere application for purchase, to settle disputes of this kind.
§ COLONEL WARING (Down, N.)said he would like to know the exact circumstances under which the landlord resisted the cutting of turf by the tenant. No reasonable landlord would raise that question, unless upon the ground that the turf was being cut so low that it would be impossible to drain the land afterwards for agricultural purposes. That was the invariable practice of tenants where they were uncontrolled. But this clause did not relate to turbary alone; it included any other privilege. 209 For instance, he allowed his tenants to pass through his yard to church on Sundays. If the clause was passed, that privilege would become a right.
MR. T. M. HEALYwould not press his Amendment, but he would bring it up in another form—either in the form of a new clause or on the Report stage. His Amendment simply provided for the time when the clause should be brought into operation. The hon. and learned Member for Dublin University said that they might as well bring in a law to abolish Irish landlordism. In 1881 he heard the same arguments, the same phrases, the same contentions raised by the present Lord Ashbourne, until in the end Mr. Gladstone got up and compared them to a jealous and haughty beauty. He hoped that the Government would not be deterred by the haughty and jealous beauty behind them from giving consideration to the arguments addressed to them. They knew that hon. Gentlemen opposite were to a large extent only play-acting, but the Irish Members who were fighting the tenants' case were dealing with realities. They addressed arguments to the Government in a reasonable spirit, and those who pretended to be supporters of the Government ought not to waste that most precious of the Government's commodities—its time.
§ Amendment, by leave, withdrawn.
§
MR. CARSON moved an Amendment providing that where, on an application to fix the fair rent for a holding, it is proved to the Court that the tenant of the holding "as appurtenant to" his tenancy, has, by the permission of the landlord, been accustomed to exercise the privilege of turbary or other easement, the Court may make an order securing the privilege to the tenant. The Amendment, he said, would show what was the difference between the Chief Secretary and himself and his hon. Friends. The law at present was that if a tenant had turf on his holding, or other easement, it would attach to him if the words he proposed were inserted. In the matter of contract no question would, of course, arise, but on the question of turbary, in addition to the rights the tenant would have under his contract, whether the turbary was on his holding or off his
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holding, it was attached to the tenancy as an appurtenance which he would retain under the Amendment. But the Bill provided that if the tenant had enjoyed anything by virtue of his holding a tenancy, it was to be included as a matter of right to the tenant apart altogether from the question of contract. The words "by virtue of his tenancy" were utterly unknown to the law as creating, or which could create, any rights whatever. If the tenant had a holding, and the landlord gave him anything as a matter of grace or mere privilege because he happened to be his tenant, that was something which was obtained by virtue of his holding. What the Government proposed to do was, not to preserve to the tenant the rights which he got under his contract, or the right which he got as an appurtenant to his holding, and as practically forming a right which was connected with the letting of the holding; but by this proposal it was proposed to turn what had been a matter of mere favour and grace on the part of the landlord into an absolute right on the part of the tenant. That was a wide, far-reaching matter, not as an Amendment of the Act of 1881, but as one of those matters which he had to protest against more than once throughout these Debates—namely, another transfer of a slice of the landlord's property to the tenant. The clause said that they were dealing with these favours and privileges whether there had been payment or not. Take this privilege of turbary as an example. A landlord had a bog upon which he was accustomed as a matter of favour to allot banks yearly to his tenants because they had not on their holdings any turbary of their own; and it was a convenience to the tenants that he should give them it. There were many estates in Ireland which were managed in that way. The not having these turf banks used so as to exhaust them prematurely on the holding was very often the reason why the landlord refused to let the tenant have the right. How were these turf banks managed? A system was laid down by the landlord by which the tenants were shifted from one place to another, and if a landlord found that a tenant acted unreasonably, or treated the turf bogs in a manner detrimental to the whole estate, he had the power—and he ought to have the
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power—of saying, "I shall not give you the right of turbary in this bog at all." They proposed under this Bill to take away that right from the landlords. If the tenant merely showed that he had been accustomed to get this turf for a number of years, all he would have to do would be to go to his landlord and say:—
You have made regulations, you have been my master in the past in the regulation of your turf, but in the future I will he your master, and it will he for me to insist upon getting any turbary, and it is for you to say whore I am to take it. It is my right, however, absolutely to take it.
After this it would be absolutely impossible for any landlord to regulate the right of turbary on his estate. This Bill, and the Act of 1881, certainly gave the landlord any amount of opportunity to institute legal proceedings. He had been sometimes asked by his friends near him whether there was anything in the Bill in favour of the landlords, and he replied, "Yes; they may have any amount of law." That was their only privilege from beginning to end of that Bill. ["Hear, hear!"] There was another point. If this clause stood, not only would it be impossible for a landlord to regulate his turbary, it would be utterly impossible for him to deal with his property under the Purchase Act for the purpose of sale to his tenants, because he would have no power over the regulation of the bogs. The landlord would have to part with the right of control over these bogs; nothing would remain to him of the right he previously exercised. He did not agree with the Chief Secretary on this point, nor did the decisions of the Sub-Commissioners tend to make him agree with him. ["Hear, hear!"] But, be that as it might, here was granted an absolutely new right—a new suggestion made by a Unionist Government, to deprive the landlord of this portion of his property hitherto held by him. But the right as to turbary was only one put into the middle of the clause. There was the case of litter for cattle which might afterwards be used as manure. He knew a case in the county Galway where the landlord had allowed his tenant for years to go in and cut underwood for the convenience of his cattle, and afterwards to be used as manure.
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That was reasonable enough to be granted by the landlord for the enjoyment of the holding, but under the Bill the tenant would be able to say:
What right have you to deprive me of this right? You must recollect I am the tenant, I am the one upon whom the Unionist Government has conferred these privileges.
§ MR. CLANCYrose to order. Was the hon. and learned Member arguing his own Amendment or the clause?
* THE CHAIRMAN OF WAYS AND MEANSconfessed that idea had occurred to him. He hoped the right hon. and learned Member would confine himself as much as possible to the Amendment.
§ MR. CARSONsaid he should certainly do so. What he was endeavouring to show was the effect of keeping the words "by virtue of" in contradistinction to the words "appurtenant thereto." Take the case of an easement. He recollected a case in county Limerick where the landlord had allowed the tenant to drive his cattle up the avenue of the demesne as a short cut to his holding. The tenant went into the Court and had a fair rent fixed, and he not only continued to drive the cattle up the avenue, but on every opportunity he had, if the landlord happened to be driving down, he put him to all the inconvenience he possibly could. The law enabled the landlord to stop this interference with his rights, but if the present clause was carried what remedy would the landlord have? The tenant would say he had an easement right to drive his cattle up the landlord's avenue, that the landlord could not say it was not necessary to the tenant's enjoyment of his holding, as he had given him this right for the last 10 or 15 years, and that the best proof that the landlord himself deemed it necessary within the words of the section would be that he had given the tenant this very permission. The Court would say that the easement must continue, and would make an order that for all future time the tenant was to drive his cattle up the landlord's avenue. He did not know whether the right hon. Gentleman thought that this was a matter which was likely to lead to more friendly personal relations as between landlords and tenants in Ireland. That was only 213 one instance of an easement, but there were many others which he might suggest. But having granted the tenant the right to take from the landlord all these matters given by the latter's permission, as if that were not wide enough, and for fear that anything might be left to the landlords, the words were added "or other privilege" so that, besides that of cutting turf, any other privilege the tenant could show he had had, not as appurtenant to his holding, but as a favour of his landlord and without payment, the Sub-Commissioners had jurisdiction over, and could attach it for all future time to his holding. So far as any turbary or other easement was upon the holding or appurtenant to it, or so far as any of these rights existed and could in any sense be looked upon as the property of the tenant, he would still have them; but what those in favour of this Amendment asked was that what was a voluntary favour on the part of the landlord should not be turned into a right for the tenant, and the landlord thus deprived of some of the solitary properties left to him under previous legislation. He begged to move the Amendment.
§ MR. GERALD BALFOURremarked that his hon. and learned Friend had made a long speech upon an Amendment which, he observed, was the first of five, and he trusted he was not going to make an equally long speech on the other four. ["Hear, hear!"] It appeared to him that almost the whole of that speech might more properly have been delivered on an Amendment to leave out the clause altogether. ["Hear, hear!"] His right hon. Friend was wrong even in his criticism of the words "by virtue of." He said it was not a legal term, but Clause 17 of the Land Act of 1881, which dealt with the rights of turbary just as the present clause did, contained the very same expression. ["Hear, hear!"] The right hon. Gentleman had said that if the clause was limited to cases where the tenant had a legal right to these privileges, he was perfectly ready to concede that the Court might interpret that right in the manner laid down by the clause. But surely, if it was a legal right, the Court did that already. ["Hear, hear!"] There was not the slightest necessity to put anything 214 to any Bill to secure the tenant a legal right which was already recognised by the Court. ["Hear, hear!"] It would therefore have been far more reasonable if the right hon. Gentleman had simply moved his Amendment to omit the clause altogether, rather than that he should endeavour by a series of small Amendments—upon every one of which he presumed he was going to deliver a speech—to alter it in such a way as to make it exactly identical with the law which at present existed. With regard to the clause generally it had been violently attacked by his right hon. Friend, but he had studiously avoided giving proper weight and emphasis to the words which the Government considered would prevent any injustice being done to the landlords. Those words laid it down that the Court was not to intervene unless it appeared to be essential for the reasonable enjoyment of the holding that the tenant should not be deprived of the privileges which it was necessary for him to exercise. He had heard a great many things said in depreciation of the Land Courts, but he had never heard any charge so ridiculous brought against them as that suggested by the right hon. Gentleman, that the mere fact that a tenant might have been allowed by the favour of the landlord to drive cattle up the landlord's avenue should be interpreted by the Court as a privilege necessary for the reasonable enjoyment of his holding. He could not conceive that the Courts could really be so unreasonable as to interpret the clause in that sense. ["Hear, hear!"] The clause only gave these powers to the Court after hearing all the parties concerned.
SIR ROBERT PENROSE FITZGERALD (Cambridge)rose to order. He wished to know whether the Committee were now discussing the clause or the Amendment.
* THE CHAIRMAN OF WAYS AND MEANSsaid he had given a great deal of latitude to the right hon. Gentleman the Member for Dublin University, and he could hardly refuse the same indulgence to the right hon. Gentleman.
§ MR. GERALD BALFOUR, continuing, said that if any powers were to be given to the Land Commissioners at all, it appeared to him that this was one which should be given. The clause did 215 not merely provide that these privileges should be given; but it provided that they should be given on such terms and in such manner as the Court might think just. Thus it was carefully secured that the Court should lay down the conditions on which these privileges were to be enjoyed in such a way that injustice would be done to none of the parties concerned. This was not a question of taking away any of the property of the landlords. The whole question at issue was this. Where it was found that, certain privileges were necessary for the reasonable enjoyment by the tenant of his holding, they were to be treated practically as a part of his holding, on which the Court was to fix a fair rent on such terms and in such manner, having regard to the interests of all parties, as was just. ["Hear, hear!"]
§ * SIR J. COLOMBsaid that the words "by virtue of his tenancy" in Clause 17 of the Act of 1881 had reference to the exercise of a right. It appeared by the words of the clause that, if a privilege were given by a landlord to his tenant out of personal regard for the man, he would be able to insist on the right in the Court.
§ MR. T. HARRINGTON (Dublin Harbour)pointed out that these privileges and easements were granted by the landlord when he had the power of fixing the rent at whatever figure he pleased. The clause merely gave the Court the power of considering, in fixing the rent, whether these easements and privileges, from which he had probably extracted a profit, had been granted by the landlord.
§ MR. HERBERT ROBERTSON (Hackney, S.)contended that to compel a man to give something at a price fixed by the Court was undoubtedly to takeaway his property. He would like to give the Committee an example known to himself of the difference between the words "by virtue of" and "appurtenant to." In his own neighbourhood there was a nobleman with a large estate which contained a bog, which undoubtedly belonged to him. He did not think there was another bog anywhere near. Out of consideration for his tenants the landlord only sold the turf to them. Surely that was not an act for which he should be punished by Act of Parliament. This Bill proposed that because he was good 216 enough to sell the turf only to his tenants, in future they should have the absolute and sole right of buying that turf from him. It was unquestionably a privilege the tenants had been enjoying by virtue of their holdings, and now this Bill, at the suggestion of a Unionist Government, actually proposed that this landlord should in future be deprived of his bog. What was the landlord to do when he was deprived of his bog?
§ MR. DENIS KILBRIDE (Galway, N.)Could you tell us where this particular bog is?
§ MR. HERBERT ROBERTSONcontended that if the words "by virtue of his tenancy" were retained, this privilege which the tenants had enjoyed would become a right; whereas if the words "appurtenant to" were substituted, they would not have that right.
§ MR. CARSONsaid, by the particular section to which the right hon. Gentle-nian referred—the 17th section of the Act of 1881—it was quite clear that it referred to something which was included in the holding as part of the contract. In the section he was dealing with his hon. Friend would find that it dealt only with matters on which the Sub-Commissioners fixed a fair rent. But he did not think it was a matter of words as between his right hon. Friend and himself. What he had attempted to point out was that if the words "pertain to" were used, the tenant would have the turf upon his holding, or which he had enjoyed, as a legal adjunct to the holding. What his right hon. Friend wished was to give him something, which he now enjoyed as a matter of grace, as a matter of right.
§ MR. FLYNNassured the hon. Member for Hackney that they on that side of the House had some experience of turbary. In his constituency a short time ago a considerable property was sold, in which the question of turbary entered very largely into consideration. In many parts of Ireland turf was as much a necessity of life as potatoes, or oats, or anything else.
§ Amendment negatived.
§ MR. CARSON moved, after the words "his tenancy has," to insert the words "at the date of the application." He 217 said it was quite plain that, upon the construction of the section as it at present stood, if a tenant was able to show that at any time, during the currency of his tenancy he had enjoyed, or was accustomed to enjoy by permission of his landlord, the various privileges to which he had referred on a previous Amendment, he would be able to make a case before the Commissioners. It would be manifestly unfair, in oases where that permission had ceased before the time the tenant had made his application to the Court, that a tenant should ask the Court to consider some antecedent state of circumstances under which the landlord had given him permission and had allowed him to exercise these wide rights. What he proposed by this Amendment was that the Commissioners should only have the power to deal with what were existng circumstances at the time when the application was made.
§ MR. GERALD BALFOURsaid he quite admitted it would be extremely unreasonable, if the permission to enjoy these privileges had been dormant, as it might be, for a considerable number of years, to call it again into existence by this clause. But he submitted that this could not be done for the simple reason that, if it had not been enjoyed for a considerable number of years, nobody could claim that it was "reasonable enjoyment of the holding." After this clause was passed, a landlord, in order to prevent a tenant from having these privileges secured to him, might withdraw the permission, and the result might be that, in consequence of that permission being withdrawn, a tenant might be deprived altogether of the privileges which, if the Act had not passed, he would have continued to enjoy.
§ MR. CARSONasked if his right hon. Friend would accept the words "at the date of the passing of the Act," or "at the introduction of the Act."
§ MR. GERALD BALFOURsaid the difficulty in connection with that would be that they might have a fair rent fixed a considerable number of years hence, and were they then to go back to the commencement of this Act? It appeared to him that the whole of these matters must be left to the discretion of the Land Court.
§ MR. HERBERT ROBERTSONcould hardly imagine that the Government would refuse such a simple Amendment as this. He ventured to think that the way in which the Chief Secretary was receiving Amendments moved from that side of the House was certainly not calculated to make the Bill go through. He would ask the right hon. Gentleman whether he could not assent to the insertion of some form of words to meet the object in view—namely, that the peasant should only get those rights which he exercised at the date of the passing of the Act, or immediately before application was made.
§ Amendment negatived.
§ MR. CARSON moved to leave out the words "the permission of," and to insert instead thereof the words "contract with." He said he moved to omit the words by permission of the landlord, because this question again raised the objection they entertained—that the clause as it stood would turn into matters of right what had been only matters of permission hitherto. Then, if the words by contract, or under contract, with the landlord were inserted, everthing to which the tenant could be possibly entitled would be secured to him. Anything which a tenant could show that he had enjoyed for a large number of years—that was by contract, whether implied or expressed, and which was necessary for the exercise of his holding, would be secured to him by the Amendment. Surely it was not intended that the tenants should have as a matter of right all the privileges they now enjoyed from the landlord regardless of circumstances.
§ MR. GERALD BALFOURsaid the points raised upon this Amendment had just been discussed, and the Government could not accept it.
§ COLONEL WARINGasked the right hon. Gentleman whether he thought any landlord would continue to permit the privileges to be enjoyed by their tenants, if this clause was passed as it stood? No; they would withdraw them before the Bill came into operation, and would do so in their own defence. ["Hear, hear!"and laughter.] He confessed that he himself should be tempted to do so. The words of the 219 clause were so comprehensive that unless some limitation was put to them, the result would be very unjust to a large number of landlords.
§ MR. GERALD BALFOURsaid that if the landlords intended to take any such course as the hon. and gallant Member intimated—and he hoped not—and stuck to that intention, the fact would be the best possible defence of the clause that could be made. ["Hear, hear!"]
§ MR. J. J. CLANCY (Dublin Co., N.)said that if the Amendment were adopted it would give the Land Commission Court power to set aside a right which the tenant enjoyed. [Mr. CARSON: "Why?"] Because, if there was a matter of contract, then the clause gave the Land Commission Court a discretionary power to deny that right. ["Hear, hear!"]
§ MR. CARSONsaid the hon. Member was under a misapprehension. If the matter was one of contract the Land Commission could not interfere with it.
§ MR. M. MCCARTAN (Down, S.)understood that under the Bill it would not be open to the hon. and gallant Member for North Down to withdraw a permission. The hon. and gallant Member said no reasonable landlord would wish to withdraw a permission he had given.
§ COLONEL WARINGCertainly.
§ MR. McCARTANasked if the hon. and gallant Gentleman desired to become an unreasonable landlord?
§ COLONEL WARINGCertainly not.
§ MR. MCCARTANwas glad the hon. and gallant Gentleman had no intention of withdrawing a permission, because there were a good many tenants in North Down.
§ COLONEL WARINGI care nothing about the tenants in North Down.
§ MR. MCCARTANwas glad the hon. and gallant Gentleman had given expression to that feeling. No doubt the tenants of North Down would take care of it.
§ Amendment negatived.
§ MR. CARSON moved to omit the words "whether with or without payment." He said he would not take up the time of the Committee by arguing the question at length. He only wished to focus the attention of the Committee on the fact that, although it was proposed to transfer the property of the landlord to the tenant, the landlord was not to receive a single sixpence.
§ Amendment negatived.
§ COLONEL SAUNDERSON moved to omit the words "profit a prendre easement." He objected to the clause because it tended to put the relations of landlord and tenant on a cast-iron basis. In most cases, hitherto, those relations had been of a most friendly character. Landlords had allowed their tenants easements and privileges, but now they were to do so by law. The hon. Member for South Down could not see the difference between allowing a thing and being made to allow it. He might ask a man to drink, but he would not like to be forced to ask him. There was an immense difference between the two. He saw a great difference in the relations that would inevitably exist between landlord and tenant when the law stepped in and forced the landlord to do certain things. But, if he were a betting man, he would lay a great deal that in another place the words he proposed to omit would not be allowed to stand.
§ MR. VESEY KNOX (Londonderry)doubted whether the words proposed to be left out would benefit the tenant.
§ MR. CARSONobserved that, as the hon. Member was of opinion that the words would tell against the tenant, and the Irish Unionists were certain that they would tell against the landlord, the Government might satisfy both parties by leaving them out. What, he wanted to know, did the Chief Secretary think was going to be taken from the landlord 221 under these words? What were the privileges which the tenant had been enjoying as matters of favour which were now to be converted into matters of right?
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. J. ATKINSON,) Londonderryreplied that there were profits a prendre which were enjoyed in various parts of Ireland, and without which holdings would be of little or no value. The most familiar example was the use of seawrack, and other examples were the privilege of cutting heather on the landlord's property and the privilege of digging for gravel. Why should not the tenants continue to enjoy these privileges, the Land Commission being empowered to impose just and reasonable terms?
§ Amendment negatived.
§ COLONEL SAUNDERSON moved to omit the words "or other privilege." He was anxious to know what were the other privileges over the landlord's property which were to be conceded. The tenant was to be allowed to quarry the ground for gravel, to drive cattle up and down the landlord's front avenue, to cut his heather, and probably to eat the grouse thereon. [Laughter.] The only remaining privilege to be conferred on the tenant that he could think of was the privilege of not paying any rent at all; or was the tenant to have the privilege of dining with his landlord? Was it that the landlord might find his tenant's bull wandering among his rhododendrons? [Laughter.] He asked merely in the character of a curious Irishman—[ironical cheers and laughter]—contemplating the future condition of his country. What were the "other privileges "which the gentlemen who had once been his tenants, and accustomed to pay rent, would enjoy when this Bill became law?
§ MR. CARSONpressed for an answer to the questions that had been raised. 222 Every conceivable favour that could be granted to the tenant had been turned into a legal right. What other privilege had the Government in mind; or were they leaving it to the ingenuity of the Sub-Commissioners to invent another privilege? Perhaps they would even now say what they meant by their own Bill. It would be a consideration to some Irish landlords, and to some English landlords also, who had the prospect of this legislation being extended to them. [Cheers.] He heard a distinguished Irishman say that the Land Act of 1870 put the landlord and the tenant in the same bed, but that the Act of 1881 gave the tenant the liberty to kick the landlord out. [Laughter.] This Bill was not only kicking the landlord out, but, providing that if the landlord had been accustomed to pay 5s. a week for bed, he was to go on paying while the tenant kept the bed himself. [Laughter.]
MR. T. M. HEALYsaid that if the words "or other privilege" were cut out the clause would be deprived of its chief value, simply because of the difficulty of getting legal definitions. It was questionable whether all the privileges enumerated in the clause were not already enjoyed by the tenant as of right. Did the tenant require this Bill to give him the enjoyment of an easement? But there were such privileges as the taking of spring water.
§ COLONEL SAUNDERSONIrishmen do not drink spring water. [Laughter.]
MR. T. M. HEALYIrish landlords drink very little of it, as is sometimes proved in this House. [Laughter.] The hon. and learned Member for Trinity College was simply practising on the House. He would not have dared to address the arguments he had used to any tribunal.
§ MR. CARSONNot if the hon. and learned Member were the Judge. ["Hear, hear!" and laughter.]
§ * SIR J. COLOMBsaid that he wished a distinct answer from Her Majesty's Government whether, in the case of demesne 223 lands being surrounded by tenants' holdings, and that the landlord had been in the habit of permitting some of the tenants in time of drought to draw water from his well in his backyard, the tenants would, under the provisions of this Bill, be enabled to claim that permission as a right. It was most unfortunate that the Government would not answer the questions that were put to them from hon. Members sitting below the Gangway on the Unionist side of the House. ["Hear, hear!"] In some cases, landlords having demesnes situated near the sea and including the foreshore, had permitted the women and children of their tenants every year during Lent to pick up cockles and mussels on the shore. Were the tenants now to have that permission to pick up cockles and mussels transferred into a right to do so? He protested against the action of the Government in not giving answers to the questions that were put to them on these subjects, and leaving it to the Members of the Opposition to answer them. ["Hear, hear!"]
§ THE ATTORNEY GENERAL FOR IRELANDsaid that the Government had no power to prevent hon. Members opposite from answering questions put by hon. Members below the Gangway. The hon. Gentleman who had just sat down seemed to be greatly exercised in his mind on the subject of the right of a tenant in a time of drought to draw water from the landlord's demesne. Of course the tenant would have such a right if it were necessary to his enjoyment of his holding that he should do so, and he should be greatly surprised if any Irish landlord should refuse him permission to do so in time of drought. ["Hear, hear!"] The Bill did not say that the tenant should have such a right without payment for the privilege.
§ * SIR J. COLOMBsaid that the words of the clause were "with or without payment." That left it open to the Court to convert the permission into an absolute right.
§ THE ATTORNEY GENERAL FOR IRELANDsaid that the tenant was to have the right upon such terms as the Court might think fit. The Court might order the tenant to pay for the privilege. He thought, however, that it would be unjust and unreasonable if the landlord were to exact payment for water drawn from the demesne in time of drought. ["Hear, hear!"] He thought that, where the holding was situated near the sea, it was only a reasonable enjoyment of their holding that tenants should be permitted to gather cockles and mussels upon the foreshore of their landlords. ["Hear!"]
§ MR. CARSONsaid that he wished to protest against the action of the Government in pretending to answer questions which they did not desire to answer. The solution of the difficulty in which the Government were placed was to be found in the fact that the right hon. and learned Gentleman the Attorney General for Ireland had gone down to his constituency and declared that the Government were going to carry out the policy of Mr. Isaac Butt. The Government were now suffering from the consequences of the very extravagant speeches which the right hon. and learned Gentleman had delivered in the north of Ireland previous to the last General Election. The Government had provided for profits a pendre and easements, and the privilege of turbary, and they asked, and they had a right to know, what they meant by "or other privilege." If the Attorney General for Ireland thought he had not put the matter in a sufficiently calm, quiet way, as a supporter of his own, might he humbly request—[Nationalist laughter]—that he would kindly tell him, as a matter of grace and favour—which they would not turn into a legal right—[laughter—what was the meaning of the words "or other privilege. "He only asked that before they passed these words in order that they might have some intimation what they meant.
§ MR. GERALD BALFOURsaid that "other privilege" was a phrase common in drafting, and well understood. It was unreasonable to ask what privileges were covered by these words, as they did not know exactly.
§ MR. CARSONsaid that when the right hon. Gentleman admitted that he did not know what privileges he was transferring—a thing so perfectly and entirely what he expected—he accepted his explanation. ["Hear, hear!"]
§ Amendment negatived.
§
MR. KILBRIDE moved to omit the following words from the clause, to give the Government an opportunity of explaining what they meant:—
And it appears to be necessary for the reasonable enjoyment of the holding that he should not be deprived of what he has so exercised.
The Attorney General for Ireland had been telling them that he feared that the wording of the clause meant the striking off of another slice of the landlord's property. He himself feared that the retention of the words meant the striking off of another slice of the tenants' property, because, in many cases the rent was not made out of the holding, in consequence of the inferior qualities of the soil, but the holding largely consisted of bog, and the tenant had the right of cutting turf, not only for household use, but for sale. He wished to know whether, if the words were retained, it would be within the power of the Sub-Commissioners, in hearing these cases—probably a small number—to prohibit the cutting of turf for the purposes of sale.
§ MR. DILLONdid not think that any injury could be inflicted on the landlords under the clause if the words proposed to be left out were omitted. On the other hand, if the words were unnecessary, they ought not to remain, because they were dangerous to the tenant, as there was no security that the Sub-Commissioners 226 would give them their proper interpretation.
§ MR. GERALD BALFOURsaid the words proposed to be left out were absolutely essential to the clause. They were safeguards for the landlord, and if they were not inserted some of the exaggerated fears of his hon. Friends behind him might possibly be realised. The Government could not, therefore, accept the Amendment.
§ Amendment negatived.
§
MR. CARSON moved, after the words "has so exercised," to insert the words
and that the interests of the landlord in portions of his estate other than the said holding will not be thereby injuriously affected.
If the Government were in any humour for accepting any Amendment at all, there would be some chance of carrying this one, because, in its effect it would take care that in the transfer of the rights from landlord to tenant proposed by the clause the other portions of his property which, by this gracious goodwill of the Government were left to the landlord, should not be injuriously affected. What the Government had carried up to that by virtue of their majority would undoubtedly injure the landlord in relation to the holdings in regard to which those easements and privileges had been filched from him. But if the Government had still slumbering in their minds any idea of the rights of property, they would see that the interests of the landlord in the remnant of his property that was still left to him were not injuriously affected by those concessions to the tenants.
§ MR. GERALD BALFOUR, who was indistinctly heard, deprecated the language used by the right hon. and learned Member. He suggested that the Amendment might be modified.
§ MR. CARSONregretted if he had offended the right hon. Gentleman by 227 any language which he had used. He admitted that he felt strongly in regard to the Bill, and it was not easy, as there were such a number of matters to go into, to make studied speeches. He maintained that, to take away from the landlord what had never as a matter of right belonged to the tenant, would injuriously affect not only the landlord but the tenant. He would be willing to move modifying words as an Amendment to his own Amendment.
§ THE ATTORNEY GENERAL FOR IRELANDsuggested that the original Amendment should first be withdrawn.
§ MR. CARSONasked leave to withdraw his Amendment.
§ Amendment, by leave, withdrawn.
§
MR. CARSON moved to insert the following words after the word "exercised "—
and that the interests of the landlord in portions of his estate on which the a prendre easement, turbary or privilege is to be exercised will not be thereby injuriously affected.
§ Amendment agreed to.
§ On the Question, "That the clause as amended stand part of the Bill,"
§ COLONEL SAUNDERSONsaid this was one of the clauses which, as he had said on the Second Reading, would deplete the pockets of both landlords and tenants, and place the proceeds in those of the attorneys. That was a minor reason why he objected to this clause; the real objection he had to it was the way it dealt with turbary. The question of turbary was one that affected tenants all over Ireland. There were instances, he knew, in which landlords in Ireland derived profit from their farms, but as a general rule landlords had not claimed rent for their bogs. It was of vital importance in Ireland that bogs should be properly worked; if they were not properly worked and supervised, there was nothing which led to so much strife and confusion in Ireland. The two great 228 causes of crime in Ireland were turf and whiskey. A large number of the murders and the criminal assaults that had taken place had been in many cases connected with the question of turf. The Government proposed by this clause to take away from the landlords in future the power of regulating the bogs that formerly belonged to them. One great object of the landlord in dealing with bogs in Ireland had been to prevent them from being improperly worked out. On the property of Lord O'Neill in the north of Ireland there was a bog of several thousands of acres. There were 4,000 bog tenants, and the rent derived was £1,100 a year. Now what would happen if this clause became law? Would the bog be kept open; would the roads and drains be made by the tenants? He was convinced that the real losers would be the tenants who worked these bogs for their benefit, and who now got their fuel for nothing or very near it. ["Hear, hear!"] He said that this clause would be injurious to the tenant. Of course it would be made out that he was opposing this clause on behalf of the landlords. He could assure the Committee that the passing of this clause would not affect the pockets of the landlords in the slightest degree. He must say that the man who would be would be the landlord who had always dealt generously with his tenants. There were some cases in his own neighbourhood to which he might refer in proof of this, but he did not wish to go into details. With regard to his own tenants, they fully enjoyed the privilege of turbary, but the clause removed from him the right of granting it to them. The right was absolutely removed. ["No!"] Certainly they did take away his right to watch over the bog.
§ COLONEL SAUNDERSONsaid his contention was that they were attempting 229 to take from him that which was as much his property as his coat on his back. [Cheers.] Not only that, after taking it away from him they were going to give it to another person who had done nothing for it. One effect of this would be to strain the relations between landlord and tenant in Ireland, and another effect would be to interfere with and change the relations between landlord and tenant which had existed from time immemorial. His tenants had no grievance on this subject. They were quite willing to pay their 1s. a year, for they knew that the bog would be properly managed. Let them pass that clause, and they would have endless claims all over Ireland. The clause, as it stood, opened up the prospect of a long vista of endless litigation, turmoil, and confusion. He had no desire to injure the Bill, but he wanted it, if it was to pass, to be a success; and it was because he believed that the clause which altered the management of bogs in Ireland, and changed the relations on these points of easement which existed between landlord and tenant would be absolutely injurious to the prosperity and peace of that country that he opposed it, and asked the decision of the Committee upon it. ["Hear, hear!"]
MR. T. M. HEALYasserted that the clause would leave the question of the management of bogs exactly where it was. He was anxious that no tenant should be allowed to waste or steal bog, and any Amendment the hon. and gallant Gentleman put down on the Report stage to prevent such a thing should have his hearty support.
§ MR. J. PINKERTON (Galway)remarked that, so far from landlords only charging 1s. a year for bog, they were in the habit of letting it at the rate of £1 per rood. He stood there as a tenant-farmer. When he paid his rent to his landlord he paid him for bog and other privileges. In spite of all the land laws that had been passed, in spite of all the talk about robbing the landlords of their 230 last crumb, at the present moment the tenants of Ireland were on the verge of bankruptcy, and yet were paying more rent than any tenants in England or Scotland. This was simply play-acting on the part of the Member for Trinity College and his Friends. They were only-trying to obstruct this Bill. The privilege the landlords exercised in Ireland was that of gathering where they had not strawed. There was not a landlord in County Down or County Antrim who had ever expended a solitary penny to benefit the county to which he belonged.
* THE CHAIRMAN OF WAYS AND MEANSI do not think the remarks of the hon. Member are relevant to the question before the Committee.
§ MR. PINKERTONsaid that one thing he must say, and he thought he was perfectly within his rights in saying it. Nearly every county road had been largely created by the expenditure of the tenant's money.
§ MR. GERALD BALFOURthought the Committee pretty well understood the arguments for and against the clause. His hon. and gallant Friend had given three general reasons why the clause should not be accepted, namely, that it would increase litigation, that it would alter the relations between landlord and tenant, and that it would injure the management of bogs. He would point out that the clause only dealt with one of these matters, and that would only arise when an application to fix a fair rent was made. He confessed that, after the legislation which had taken place since 1881, he was surprised at the objection which was taken that this small clause would damage the relations between landlord and tenant. As to the clause interfering with the management of bogs, he did not see why it should do anything of the kind. He reminded the Committee that, by Section 17 of the Act of 1881, the 231 Land Commission had already the right and the power to restrain tenants in this matter. His own belief was that, in regard to the right of taking turf, the clause would make no difference whatever. ["Hear, hear!"]
§ * MR. LECKY (Dublin University), as a small landlord, but a representative of a Corporation which was the largest landowner in Ireland, desired to say a few words on the subject. There could be no doubt that the effect of this clause was to take away from the landlord, without his consent and by force of law, a number of valuable property rights which are at present indisputably his, and to do so, not because he had abused his power or acted ungenerously to his tenants, but simply because of his free will he had been allowing them to do things which he might have forbidden. In Irish agrarian legislation they were quite accustomed to such things, but it was somewhat remarkable that this was the proposal of a Unionist Government. ["Hear, hear!"] No doubt the Government had the power to do it if they were determined to use their power. He did not know whether this would add to their popularity; he was quite sure it would not add to their credit. ["Hear, hear!"] Of one thing he was quite certain. It was that such methods of legislating about property would not be permanently confined to the other side of St. George's Channel. He objected to this legislation specially because it was directly calculated to kill that policy of purchase which the Unionist Party believed—he thought with good reason—to be the one solution of the Irish Land Question. From the beginning of recent Irish land legislation there had been two tendencies. One set of provisions were intended to induce tenants to buy their farms. Another set transferred to them so many of the property rights of the landlord that they made it better for them to be tenants than owners. Very naturally these conflicting policies failed. Every step which was taken in the 232 former direction; every step which transferred new landlord rights to the tenants; every step which tended to unsettle contracts, and tamper with property, and raised hopes of further concession, was a step in opposition to the Unionist policy of purchase. For his part he believed that the purchase clauses were by far the most valuable in the Bill, and he hoped that whatever else was dropped, this at least would remain. Another consideration was that of deterioration. There was no part of Irish property which was more valuable than turbary, and there was none more easily deteriorated. Everyone who knew anything of land in Ireland knew that, if turbary was cut in a careless and improvident manner the powers of reproduction were destroyed, and the bog would become flooded with water, to the great disadvantage of the landlord and tenant alike. The great protection against this had been, and was, the supervision of the landlord, and it was that supervision that the Bill would take away. ["Hear, hear!"]
§ Question put, "That Clause 6, as amended, stand part of the Bill."
§ The Committee divided:—Ayes, 194; Noes, 49.—(Division List, No. 340.)
§ Clause 7,—