§ 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, and that the interests of the landlord in portions of his estate other than that in which the said profit a pendre, casement, or privilege is to be exercised will not be thereby injuriously affected, 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, as to rent or otherwise, and in such manner as the court think just, and such order shall he binding on all estates and interests in the said land.
§ *MR. LECKY (Dubin University) moved the omission of Clause 6. If turbary was tolerably clear, the other privileges alluded to in this clause were as vague as could be conceived. They had heard during the discussions in Committee a good deal about them, and they appeared to comprise such things as the right of way through the landlord's park, the right of cutting firewood and brushwood in it, of digging gravel, of grazing cattle on the mountain lands, but the Attorney General was totally unable to specify the greater number of them. There was no question here of disputed right. The present legal and complete authority of the landlord, which was being taken away was undoubted, and there was no question of abuse of rights. If the landlord had not chosen to give these privileges the law would not touch him. It was because of his own free will and generosity he had chosen to grant them to the tenants that they were to be taken away from him for all future time, and he was to lose all power of supervision and control. It was difficult to conceive a more direct and absolute violation of the rights of property than this. A plain legal right was plainly taken away by a party that professed to be especially the party representing property, by the party whose leaders had told them that they would be no parties to any further predatory legislation about 900 Irish land, to any attempts to take any more from the diminished property or the attenuated rights that still remained to the Irish landlord. He did not wish to use any exaggerated or violent language, but he must say that if this clause passed into the Statute-book it would create a precedent which was certain to grow, and the fact that it had been proposed by a Unionist Government had left an impression on the minds of many of their supporters which was not likely to be effaced.
§ MR. GERALD BALFOUR
said he could not help thinking that his hon. Friend approached the consideration of this clause with such a prejudice against the principles of the Act of 1881 as to make him really incapable of judging the present position. They had to start from the Act of 1881. They had undertaken, so far as they could, to carry out what they believed to be the spirit and intention of the authors of the Act, and to smooth away as far as possible its ragged edges. That Act conferred on the tenant in regard to his holding the right to have a fair rent fixed and the right of fixity of tenure. They had then to consider whether what were no doubt called privileges in this clause were not such as should be practically included in the holding when a fair rent was fixed. If they did not take that course they ran the risk of undoing everything the Act of 1881, in regard to these holdings, intended and purported to do. His hon. Friend had asked the House to consider whether it was not, by this clause, taking away privileges which landlords had freely given to their tenants, and which they might freely take away, But his hon. Friend, like others who had criticised that clause, had carefully avoided calling the attention of the House to its guiding and dominant words. Those words were that the privileges "are to be necessary for the reasonable enjoyment of the holding." Those words were all-important. ["Hear, hear!"] In this matter they were not dealing with privileges which the landlord gave one day and could take away the next. If the landlord took them away it would be practically equivalent to giving the tenant notice to quit, because the holding could not be usefully enjoyed without them. ["Hear, hear!"] He would ask the House 901 once more to note how carefully the clause was drawn. In the first place the privileges referred to were to be enjoyed by virtue of tenancy; next, the permission of the landlord must have been customary; then, the privileges must be necessary to the reasonable enjoyment of the holding; and, lastly, the privileges were not to be secured to the tenant for nothing. The terms upon which the privileges were secured to the tenant had to be fixed. The hon. Member had spoken of the Government taking away that which belonged to the landlord, but there was no unjust action of the kind in this case. There was no robbery in this case. ["Hear, hear!"] The Act of 1881 might have been wrong from the beginning, but it would be generally admitted that the Government had no option but to take that Act as the foundation of their action; and, that being so, he could not see that they were open to the strictures which the hon. Member and other hon. Members had showered upon them. ["Hear, hear!"]
§ COLONEL SAUNDERSON
said that they had fought this clause more strenuously than any other clause in the Bill, and he thought the opinion of the majority of the House, so far as he could gather it, was that, athough they lost the Division, they WON the day in argument against the clause. Although they had been in a minority, yet the sense of the House was with them. Members opposite did not admit the landlords had any rights except to pay the Poor Rate—[laughter]—but he could not conceive a party mainly composed of Conservatives, which had always held to the principle of the rights of property, taking away from the Irish landlords lights and privileges which they had always enjoyed, without rhyme or reason beyond showing that the Act of 1881 was a bad Act, and that it might be made a little worse. [laughter.] The clause was likely to bring about evil results. It dealt with privileges conferred for nothing on Irish tenants by their landlords—["No, no!"]—but because these rights of cutting wood and turf had been freely conferred in times past they were now to be lost, and by the law of the land these things were to be conferred on the tenant or whoever the tenant sold the land to. It was a monstrous proposition, and he had no Parliamen- 902 tary word that would fitly apply to it. If the power of the Irish landlords to deal with turf was to be obliterated, the Bill would create more confusion and bloodshed than anything up to the present time. ["Oh, oh!"] The Irish people had had their firing for nothing from time immemorial, and this wanton interference would bring in an element of hopeless confusion. Therefore, he declared the clause bad from beginning to end, and without a redeeming feature. ["Hear, hear!"]
§ THE FIRST LORD OF THE TREASURY
said his hon. and gallant Friend had spoken with great warmth, and no doubt he felt strongly. They were told that they were interfering with the convenience, the safety and even the lives of the Irish tenants if the clause was passed. He did not regard that as a necessary consequence. Probably, in the great mass of cases, the bogs would be left precisely as they were. ["Hear, hear!"] The first argument of the distinguished Member for the University of Dublin was that they were taking away what was an act of liberality, and his second argument was that they were interfering, not only unjustifiably but unnecessarily with the existing rights of property. No man would regard more jealously than he any attempt to stop the fountains of liberality, and to punish those who were liberal by turning what was an act of grace into a rigid and inevitable law, but He denied that this clause would have that effect. The principal argument of his hon. Friend was that this was a new interference with the rights of property, and his right hon. Friend near him had been taunted with having "aid that this was a corollary of the Act of 1881. What his right hon. Friend desired to convey was that the benefits given, rightly or wrongly, to the tenant by the Act of 1881 might in certain cases be rendered absolutely nugatory unless a clause somewhat on these lines was passed into law. ["Hear, hoar!"] To show that, he would take an extreme case, because an extreme case was the best illustration in such matters. He would suppose the case of a holding where the only supply of turf available was in the hands of the landlord, and on his estate; in such a case to state that they were giving fixity of tenure and fair rent to the tenant, while it was in 903 the power of the owner of the soil to make those two advantages absolutely of no effect whatever, was a proposition which the House ought not to sanction. The Act of 1881 had been carried. He hoped they would do all they could to introduce a better system, but while that Act existed they should not pretend to give with one hand to the tenant what they took away from him with the other hand. [Nationalist cheers.] It was admitted that the pecuniary interests involved were absolutely trivial, and those who voted against this clause for the arguments he had stated had mistaken its object and effect. It was one that did not touch property at all, that did not check the liberality of the landlords in giving that which was not necessary to the holding, and he earnestly hoped the House would support the Government in the retention of the clause.
§ MR. W. REDMOND) (Clare, E.
said all the row was really about a few sods of turf, and the spectacle presented to the House of the Irish landlords striving to deprive the people of their fuel, explained why it was that landlords and tenants did not get on well together in Ireland. He was not surprised that the hon. Member for Armagh should grudge the tenants a few sods of turf, but it was astonishing to find a gentleman so distinguished as the hon. Member for Dublin University adopting such an attitude.
§ * SIR JOHN COLOMB
said he did not know of any landlord who denied his tenants fuel. The Chief Secretary had repudiated the idea that this provision would lead to waste of turf, because the right hon. Gentleman said the Land Commission would lay down regulations under which tenants would cut turf. Were the Land Commissioners to be made bog-rangers? This was a proposal to give to the Land Commission powers over property on which there were no tenants at all. Another practical point was that under the proposal they would have an, army of Sub-Commissioners under the Land Commission planted down at the public expense on the landlord's bog, that had never belonged to any tenants.
§ MR. TULLY
said this was one of the clauses of the Bill which stood in danger in another place. Members opposite had spoken as if turbary was property taken from the landlords. 904 He could mention some instances to the contrary derived from the estate on which he lived. On that estate, before the Land Acts came into operation, the bogs were the property of the tenants; at all events, they were regarded as valueless and rent was never charged upon them. A new landlord appeared on the scene and conceived the idea of giving the tenants bog-tickets at 1s. per year. This went on, and the tickets were increased in price to 2s. 6d., and, when the tenants went to the court to get a fair rent fixed, for every pound taken off the landlord's rent, he recouped himself by charging the tenants at the rate of £80 an acre for the bog which was previously reported as valueless. He had known an instance, too, where, because a poor man voted against a landlord in an election for poor-law guardians, he had been deprived of his bog and made to shiver through the winter. He hoped the Government would stick to the clause in another place.
§ Question put, "That the words of Clause 6 to the word 'and,' in line 6, stand part of the Bill."
§ The House divided:—Aves, 141; Noes, 34.—(Division List, No. 356.)
§ The result was received with ironical cheers from Nationalist Members.
MR. T. M. HEALY moved at the end of the clause to add:—
(2) Where a statutory term has commenced before the passing of this Act or where no order under the foregoing section has been made, and the landlord during the currency of a statutory term takes proceedings to restrain the tenant from exercising the privileges in the preceding section mentioned, the tenant may apply to the Court in the prescribed manner, and thereupon the Court shall have the same powers as upon an application to fix a fair rent, and the proceedings commenced by the landlord may be stayed pending the decision upon the application under this section.
He said that the Amendment had been accepted in substance by the Government in Committee. At the time of the Settlements in Ireland, in every conveyance by the Crown to the settlers, waste, bog and mountain were excluded from the grant by the Crown. Quit rents were never put on the bog. He recalled a remarkable expression in one
of Mr. Lecky's books that the whole of the Whiteboy troubles in the hast century were due to the enclosures of commons in Ireland, which included bogs.
§ Amendment negatived.
§ Clause 7,—