THE EARL OF DONOUGHMORE
moved the Second Reading of the Leasing Powers (Ireland) Bill, and the Landlord and Tenant (Ireland) Bill. His Lordship said, he thought he should best consult the convenience of their Lordships if, in explaining 3 the nature of those two Bills, he should not address to them any lengthened observations on the question of landlord and tenant in Ireland. The subject had often occupied the attention of both Houses of Parliament. It was not only in the present and more recent times that this important subject had occupied the attention of public men; but in ancient times, ever since the great Revolution, the Irish Statute-book bore continual witness to attempts made to remedy the evils which had always been felt to exist in reference to the state of relations between landlords and tenants in Ireland. There was scarcely a Session of the Irish Parliament, from the accession of William III. down to the Union, in which efforts had not been made to ameliorate the relationship between landlord and tenant in that part of the kingdom; he could not but admit that those attempts had not been attended with any great result. They had been made in a desultory manner to meet grievances and evils as they arose, without any general plan, and with an almost superstitious reverence for those feudal maxims of law which we now admitted to be utterly unsuitable to agricultural countries. Since the Union, other measures, having the same end in view, had from time to time been brought before the English Parliament, down to the present day, and still the grievances complained of remained unredressed. All parties in that and the other House of Parliament seemed to think that the law of landlord and tenant required revision, and those who, like himself, endeavoured to suggest remedies for the existing evils were merely following the example of the leaders of the political parties on both sides of the House. In considering this subject, very great attention had of late years been paid to the Report of the Devon Commission of 1844—a document which had been drawn up with great care; but, in connection with that circumstance, their Lordships ought to recollect that the state of Ireland in 1844 differed materially from the state of Ireland in 1854. In the interval that country had passed through a period of great trial and suffering, and many of the conditions of things which were most remarkable at the former date had now ceased to exist. On that account he thought that, in legislating on this question at the present time, they were not bound to follow explicitly the recommendations of that Report. Although in many respects it was entitled to great attention. 4 In the last Session a Parliament his right hon. Friend the then Attorney General for Ireland (Mr. Napier) introduced four measures on this subject into the other House. The plan which he proposed to pursue was, in the first place, to consolidate the law. It was not only in respect to this branch of the law that consolidation had been found desirable, but it had already been had recourse to, with great success, by the noble and learned Lords the present and previous Lord Chancellors; and a measure for the consolidation of the law was introduced into Parliament, and passed into an Act, last Session with respect to common law procedure in Ireland. The next point to which the right hon. Gentleman's Bills referred was the reform of the law in certain matters in which such reform was manifestly necessary. The compensation of tenants for improvements was the next feature. Upon that question there could be no doubt of the abstract equity of the proposition that every tenant who, bonâ fide, laid out his money in the improvement of the soil should receive compensation for that improvement by the occupation and enjoyment of such improvement; or, if that enjoyment was curtailed, and curtailed not by his own fault, but by the act and will of his landlord, that something should be done to compensate the tenant. On that point he wished it distinctly to be understood that his wish was to compensate the honest tenant for his outlay, and that he had no sympathy whatever with the absurd claims that had been put forward in Ireland by the tenant-right party. He should be glad to see some scheme proposed to effect the object of giving compensation for improvements; but he should oppose any system which did not give the landlord perfect security against unjust claims of dishonest tenants, at the same time that it secured to the honest tenant all his just demands. The improvements in land might be considered under two aspects—first, those improvements which now existed, and which might be called past improvements; and, secondly, those which might be hereafter made, and which might be called prospective improvements. From various causes the landlords of Ireland had been in the habit of letting land simply, and not farms. The English landlords, on the contrary, were accustomed to let land in good arable condition, fully fenced and gated, with buildings, outhouses, and every other convenience fit for the occupation of the tenant; and it being 5 the habit in Ireland for the landlord to let land without any of those necessary adjuncts, the consequence was, that in a large portion of the country the tenants had erected the necessary buildings for themselves. It might be said that this was an outlay of money on a security which the tenants knew to be bad, and that they had no right to come now to this House to ask that they should be relieved from the consequences of their own carelessness. He did not, however, think that their Lordships would receive their complaints in this spirit, but would rather have regard to the peculiar concurrent circumstances which had in a manner forced a large class of the occupiers of the soil in Ireland to lay out their capital on defective titles. The apathy of the former race of landlords, the universal custom of the country, the absolute necessity of providing some buildings to carry on agricultural operations obliged tenants to take this course. And the actual condition of things resulting from it, now forms the main difficulty of the Irish landlord and tenant question. He hoped, therefore, if anything could be done to relieve this class of tenants, that their Lordships would grant such relief; but he must say that he would be the last man to advocate any measure which would in the least affect the rights of property. With respect to past improvements, therefore, he submitted that their Lordships ought to see, in a Select Committee, whether something could not be done, consistently with the rights of property, to relieve this large class of persons, who had, many of them, laid out their capital on bad titles. With regard to future improvements, he asked their Lordships to put an end to the causes which had brought about the present state of things, and to provide machinery to regulate the relationship between landlord and tenant for the future. The two Bills which he had to introduce to their Lordships, and the second reading of which he now moved, were almost the same as the two that were laid on their Lordships' table towards the end of the last Session, though they differed in some minor details. There was a third Bill which came up from the other House of Parliament at the same time, called the Tenants' Improvement Compensation Bill, by which it was originally intended to give compensation for improvements, whether past or future. The origin of the present unfortunate state of things in Ireland with respect to this 6 question, was the fact that the tenants had been accustomed to invest their money in the improvement of the landlord's soil, without having sufficient security for it; and any measure which tended to perpetuate instead of putting a stop to that evil was very much to be regretted. The Leasing Powers Bill was intended to provide machinery for the execution of those improvements by the tenant, with the concurrence and consent of the landlord, which was the only true and equitable principle on which such improvements should be made. He did not think that House, which might be considered the special guardians of the rights of property, ever would consent to give compensation for retrospective improvements inconsistent with those rights. If it were possible to frame a measure which would give relief to those persons who had laid out their money in the way he had described, he should be willing to support it; but he could not see that it was possible to frame any measure which would generally give compensation for past improvements, and which would at the same time guard the rights of property. Mr. Sharman Crawford, a most valuable authority on this subject, had stated, in a letter which appeared in the public press a few days ago, that a Tenants' Compensation Bill was utterly useless without it was retrospective. If their Lord ships were called on to make a sacrifice of their opinions for the purpose of consulting the wishes of any party on this subject, he would ask them to consider whether they were willing to make the compensation retrospective; because, if they were not, they would be merely "throwing pearls before swine," and encouraging an useless agitation on the subject. He thought he had a right to say, in reference to the Bills that had been introduced by the Government towards the end of the last Session, that neither the noble Duke opposite (the Duke of Newcastle) nor any subordinate member of the Government had given this subject a reasonable amount of consideration. There was, for instance, a clause originally in one of those Bills relating to the distraining of growing crops, which was afterwards struck out, while another clause, wholly dependent upon that and referring to it, was allowed to remain, which made the Bill perfect nonsense. But the extraordinary fact was, that the noble Duke had laid that Bill again upon the table with that blunder uncorrected, and still staring him in the face. 7 Moreover, it happened there were other clauses which were identical in force with certain clauses in a Bill for the reform of procedure at common law which had been introduced by the late Solicitor General for Ireland. That Bill, which was passed into law last Session, contained clauses identical with the enactments of the Landlord and Tenant Bill—and yet no Member of the Government had taken the trouble to strike them out of the latter, though it was obviously unnecessary to re-enact in 1854 what had already been enacted in 1853. He did not exactly understand why the noble Duke (the Duke of Newcastle) was so extremely anxious to pass these measures; because it was a curious thing that, when these Bills were introduced into the House of Commons last Session, the noble Duke's intimate Friends did not seem to express any particular approbation of them; indeed, the Solicitor General for Ireland was reported to have said that one of the Bills was rank nonsense; and another particular Friend, Mr. John Sadleir, described one of them as being a measure to which there could be no difficulty in saying, that the Irish Members would offer an honest opposition. In going through the Landlord and Tenant Bill, which he (the Earl of Donoughmore) proposed to submit to their Lordships' consideration, he should not particularly refer to those provisions in it which were merely a consolidation of the present law, but would simply point out the reforms which it would introduce and the points in which it differed from the Bill proposed by the noble Duke the Secretary for the Colonies. The third clause of his Bill made an important alteration in the law by enacting that the relation between landlord and tenant should in future be deemed to be founded upon contract expressed or implied, and not upon tenure or service; this, he believed, would be found a great improvement, as doing away with the great inconvenience which often arose from the complexity of the feudal law of tenure. The latter part of the clause, too, rendered the subsistence of a reversion no longer necessary to the existence of the relation, in order to enable the landlord to exercise the power of distraint and of ejectment under the Statute. The fifth clause enacted that, when the tenant held over after the expiration of his term, he should do so subject to the conditions of the original lease. The next clause related to the commencement of the term of holding, and enacted that, in the absence of 8 proof to the contrary, the tenancy should be taken to have commenced on the 1st of November. Two clauses in the noble Duke's Bill, relating to the custom of conacre, had been omitted from his (the Earl of Donoughmore's) Bill, he was bound to admit that the Devon Commissioners were of opinion that the custom of Conacre should be tolerated, and that some arrangement should be made for its regulation; but he was happy to learn, on the authority of those best acquainted with the southern counties of Ireland, that this custom, so injurious to good agriculture, was now very much on the decline; and it was therefore not thought expedient to give it any legislative encouragement. The noble Duke's Bill contained a number of clauses providing for a registration of leasehold interests. These clauses were introduced for the purpose of providing machinery for carrying out the provisions of the Leasing Powers Bill, and also in connection with the Irish practice of notice in ejectments. In Ireland it was necessary to serve notice of ejectment, not only upon the lessee, but upon every one interested, however remotely, in the lease. It was thought advisable to restrict this, and it was accordingly provided in the Bill introduced last Session that no notices should be required to be given except to persons whose claims were registered. He (the Earl of Donoughmore) had, however, struck out the provisions with respect to the registration of leasehold interests, after consultation with a high legal authority, who was of opinion that it was not advisable to have another registry of leasehold interests, in addition to that already in force in the superior courts in Dublin; and also that, even if it were, the offices of the clerks of the peace were not suited to the purpose. He came next to the clauses relating to fixtures. The law on this point was, he believed, the same both in England and Ireland, and was admitted to be in a most anomalous condition. The original doctrine of the law on this point was, that whatever was attached by the tenant to the freehold during his term became a part of the freehold, and the property of the landlord. He would read a passage from one of the most esteemed works on the law of landlord and tenant, to show the opinion entertained by legal men on this subject:—The general rule of law respecting fixtures, so far as the relation of landlord and tenant is concerned, is, that whatever is fixed to the freehold 9 becomes a part of it, and is subjected to the same rights of property as the land itself; and most of the difficulty which has arisen upon the subject will be found to have proceeded from the general rule having been preserved, though its acknowledged injurious effects have induced the courts to avoid it, whenever possible, by subtle and numerous distinctions. Thus the courts have affirmed that the exceptions from the rule have a different extent, in the different cases of landlord and tenant, executor of tenant for life or in tail and remainder, than in those of a reversioner, and executor of tenant in fee of the heir; and yet, the limits within which the privileges of these parties are respectively confined, are nowhere pointed out; neither have any satisfactory reasons been assigned by the courts for the distinctions thus laid down, from a consideration of which the rights of these several classes of individuals might be inferred. The intricacy, indeed, of the doctrine, and the uncertainty of the law upon almost every point that arises concerning fixtures, which necessarily must exist where each case is professedly decided according to its own particular circumstances, and where a general principle is held up only to be departed from, will justify the animadversion—that it is a reflection upon the jurisprudence of the country, that a rule of law, which is productive of so much inconvenience to the public; should have no better foundation than the motives of feudal policy."—[Woodfall's Law of Landlord and Tenant, book ii. ch. 4, p. 364.]Further on he states:—The general rule as to annexations made by a tenant during the continuance of his term is the following:—Whenever he has affixed anything to the demised premises during his term, he can never again sever it without the consent of his landlord; the property, by being annexed to the land, immediately belongs to the freeholder, and the tenant, by making it a part of the freehold, is considered to abandon all future right to it, so that it would be waste in him to remove it afterwards; it therefore falls in with his term, and comes to the reversioner as part of the land. It should, however, on the outset, be remarked that a tenant may, in all cases, so construct any erections he may make that they shall not become affixed to the freehold; thus, if he erect even buildings—as barns, granaries, sheds, and mills—upon blocks, rollers, patter's, pillars, or plates, resting on brickwork, they may be removed; for, unless they be affixed to the freehold by being let into it, or are, by means of nails, mortar, or the like, united to it, they remain merely movable chattels."—[Ibid. p. 465.]Various exceptions to this rule had, however, been made, but much more frequently and liberally in favour of fixtures erected for purposes of trade than in favour of agriculture. If an agricultural tenant put a whole set of buildings on his farm without the assistance of his landlord, and not at all in pursuance of any covenants in his lease, he has no right or power to remove them at the expiration of his term. By the Roman law tenants were entitled to receive compensation from their landlords for improvements which they might have 10 made upon their farms. The foreign law, too, the law of France, of Sardinia, of Naples, of Holland, of Prussia, but particularly that of Austria, gave more or less compensation to the tenant for the value of the fixtures he might erect upon his holding; the law of England alone gave him none. Now, he certainly could conceive nothing better adapted to stop agricultural improvement in Ireland than the present state of the law upon this subject. Mr. Pusey, who was much respected by English agriculturists, and who had for many years laboured to obtain a reform in the law of landlord and tenant, had introduced several Bills, the provisions of which were nearly identical with those which he had now the honour of proposing. In 1849 there was a Committee upon agricultural customs, which reported strongly in favour of an alteration in the law on this point. He would read the two last paragraphs of their Report:—17. That the law, with respect to things affixed to the freehold, is different and more beneficial, as regards those annexations made for the purposes of trade, than those made for the purposes of agriculture, an outgoing tenant being permitted in many cases to remove the former when erected by himself, but not the latter.18. That this distinction does not appear to be supported by any sound reason, and your Committee are of opinion that the tenant's privilege of removal with respect to fixtures set up for trading purposes, should be extended to those erected for agricultural objects.These were English authorities; he would only trouble their Lordships by referring to one Irish one. Mr. Hancock, formerly Professor of Political Economy at Trinity College, Dublin, a gentleman remarkable for his great attainments, and an original and powerful thinker, in commenting upon the difference in the law as it related to fixtures erected for trading, and those for agricultural purposes, asked,Can anything be more unscientific than the established distinction between agricultural and trade fixtures—as if the freedom of removal necessary and beneficial in the latter cases must not be equally so in the former? Can anything be more impolitic than to leave the law in its present unsatisfactory and complicated state, when the Judges are driven to the special facts of each particular case, instead of having a broad general principle to guide them in their decisions?"—[Economic Causes of Present State of Agriculture in Ireland, part iii. p. 9.]The object of the clause which he proposed to introduce was to remedy this defective state of the law. Its principle was, that when an agricultural tenant erected on his farm at his own cost, and not in conse- 11 quence of any agreement to that effect in his lease with his landlord, fixtures of any description, they should be deemed the property of the tenant, and should be removable by him—unless the landlord elected to purchase them—during the continuance of the tenancy, and for a period of two months after its termination. There was then a proviso, that the landlord should have the power to buy the fixtures, their value to be settled by arbitrators. There was no question of compensation involved in this clause—there was no compulsion on either side; it merely declared that what a man put up with his own money and his own labour should be his own property; it was impossible to say that such a provision would at all interfere with the rights of property; if he thought that it would, he should be the last man to bring it forward. The next point to which he should call their attention was Clause 55, with reference to distress. The law of distress in Ireland was not at present in a very satisfactory state. Some persons thought it would be best to abolish it altogether; but the Devon Commission had reported, and he agreed with them, that it would be impossible in the present state of Ireland to do without the power of distress in some form or other. It was, therefore, desirable to reform the law as it stood. The first reform which he intended to propose was, that the distress should not be for more than one year's rent; and the second, that no distress should be made without an affidavit that the rent claimed was due, being sworn before a magistrate, either by the landlord or his recognised agent, as the foundation for the warrant. By this means it was hoped that a check would be put upon the improper issue of distresses by the lower class of landlords in Ireland. With respect to replevin, it was proposed to abolish that altogether, and to give to the sheriff or sub-sheriff a kind of equitable discretion to decide the only real question at issue, namely, whether rent was due or not. It was objected to this clause last year that the sub-sheriffs in Ireland were not generally a set of men to whom these great powers could be safely confided. He believed, however, that they were most respectable men; and when it was considered that they gave very heavy securities, he thought there could be no doubt that they would be sufficiently independent judges to decide the matters of fact which would be submitted to them. The 91st clause 12 of the Bill was directed to the facilitation of proceedings in courts of law. At present no civil Bill could be verified in the assistant-barrister's court without the actual presence of the party preferring it. This was often productive of great inconvenience, and it was now proposed to allow the Bill to be verified at any place. He next came to a series of clauses referring to cottier tenancy. The miserable hovels in which the poor of Ireland dwelt had long been made a reproach to the country, both by the English and foreigners who visited it, and none could doubt the propriety of doing something, if it were possible, to remedy the evil. It was proposed by this Bill, that every cottier tenant, that was, every person who held a house with land not exceeding half an acre, and for a rent not exceeding 7l. per annum, without any lease or agreement in writing specifying the term or period of tenancy, should, if the tenant and landlord thought proper, hold by a monthly tenancy to be determined by a month's notice by either party; and also that the obligation of keeping the building in tenantable condition and repair should be imposed upon the landlord. The remaining clauses of the Bill referred to matters of a dry legal nature with which he would not trouble their Lordships. The other Bill which he asked the House to read a second time was the Leasing Powers Bill, the object of which was to carry into effect a suggestion of the Devon Commission, that it would be desirable to extend the leasing powers of tenants for lives, and of Boards and Corporations, whose powers were now restricted. The effect of the Bill was to give a general statutory power of leasing; not so much with a view to increase the leasing powers which tenants for life might have under their settlements, as to give the tenant a general statute on which he might rely for security, instead of having to depend upon the particular private rights of the settlements of the landlord under whom he might take his lease. He would mention a case, to show their Lordships the evils that might arise under the present system. A gentleman in the neighbourhood of Limerick had leased some unprofitable land to a person who laid out a very considerable sum of money in its improvement. When it was taken by the tenant it was not worth 60l. a year, and it was sworn in evidence that its value was increased by the tenant to 500l. or 600l. a year. The original lessor died, and 13 his successor discovered an objectionable point in the lease, which caused him to bring an action of ejectment against the tenant; and the end of the lawsuit was this, that the jury could not agree as to whether the lease was good or bad, but the counsel of the defendant, fearing that his client's interests would be injured by further litigation, proposed to the jury to say how much the defendant should pay to the plaintiff for confirming the lease; and the unfortunate man, who had laid out 5,000l. on the property, was obliged to pay 1,500l. to get the lease confirmed by the successor of the original landlord. He did not say that many cases like that occurred; but it was impossible to estimate the amount of discouragement they occasioned among those classes who would be inclined to invest capital in leasehold property, and they prove the necessity of a general statute that would be a security for the tenant. If that security were given, there was no doubt that there was an enormous amount of capital in Ireland that would be laid out upon land. There was no greater fallacy than to suppose that the evils of Ireland arose from the want of capital. This might be considered by some of their Lordships to be a startling assertion; but Mr. Hancock, having given a great deal of consideration to the subject, had proved that, so far from Ireland wanting capital, they had more capital in Ireland than they knew what to do with. He stated that the amount of money imported into England from Ireland and invested in the public funds, from 1840 to 1849 inclusive, was at the rate of 800,000l. a year. That showed that there was 800,000l. saved annually in Ireland, for which the inhabitants could not obtain so advantageous an investment as the English funds. But when the Encumbered Estates Court came into operation, and a Parliamentary title was offered to purchasers of land, the current turned in an opposite direction, and the importation of money to Ireland from England had been at the rate of 600,000l. a year. It was manifest, therefore, that, by giving a Parliamentary title, a vast amount of idle capital had been attracted to the purchase of laud. Give the tenants security, and they will invest their capital in its improvement. He knew he should be met by noble and learned Lords with the observation that this Bill would abrogate existing rights, and interfere with existing settlements, and that it in- 14 creased the powers which persons had conferred upon one another by solemn engagements between themselves; but in answer, he could say that, whenever it had been shown that public policy required that private rights should be interfered with, Parliament had never any hesitation in interfering with them. Every day houses and lands were taken, and handed over to railway companies; there were numberless other instances where private rights were interfered with, on grounds of public policy. Such interference had taken place in Ireland itself long before the Union. In Ireland, by the Act of 8 Geo. I., persons with limited estates were empowered to make leases of mines for thirty-one years, although their settlements might prohibit them from doing it. That power was extended by the 15 Geo. II. and by the 1 Geo. III.; so that, so far as the principle was concerned, of over-riding settlements by a general public measure, it had been done whenever it was found necessary for the public interest. There never was a case more strongly illustrative of this principle than the Scotch Act, commonly called the Montgomery Act. The 10 Geo. III. expressly recited an Act of the Scottish Parliament in 1685, which declared positively that the entails made after that Act, and in accordance with its provisions, should be for ever indisputable; and yet the Act of Geo. III. enacted that, for reasons of public policy, certain parts of the Tailzies Act should be repealed, and that the owners of lands entailed should have the power to make leases for a life or fourteen years, or for two lives or thirty-one years. That system had worked so well that it was followed up by two Acts of Parliament in the present reign; and he appealed to the noble Lords who were connected with Scotland whether it had not been found that the change in the law of entail had been most beneficial. This Bill simply proposed to increase to a certain extent the powers of the tenant for life, but the interests of the successor would be sufficiently secured; and he was sure that the change, as in the case of Scotland, would lead to a very great improvement. He had struck out of this Bill a clause which was contained in that of the noble Duke, giving the power to make leases to incumbrancers in possession. It scarcely ever occurred in Ireland that a mortgagee entered into possession. In Ireland a petition was presented to the Court of Chancery, and a 15 receiver was appointed. The clause would, therefore, be inoperative, and he thought it better to strike it out. The second part of the Bill was the machinery to be used for the purpose of ensuring compensation to the tenants. It was proposed that compensation should be given whenever improvements were made upon the mutual agreement of the landlord and tenant; and he did not apprehend that any of their Lordships would object to a reasonable measure of that kind. These were the chief provisions of the second Bill. He believed that, if those two Bills should pass their Lordships' House, and should be approved of by the House of Commons, they would confer a very great benefit on the agricultural interest of Ireland. He might be told that there was no necessity for legislation on the subject—that they were getting on very well without it; but in answer to that he would remind their Lordships that every public man in every Government and in every Opposition had for the last seven or eight years admitted that such a measure was required. It had been admitted by the noble Duke opposite (the Duke of Newcastle), and by the noble Earl behind him (the Earl of Derby). He thought a proper opportunity had arrived for settling the question without injury to the rights of property, and he trusted that opportunity would not be lost. He had heard another objection to the measure, to which he would refer. Noble Lords connected with England thought that, because they were going to introduce a reform of the system of landlord and tenant in Ireland, they were also going to alter the system in England. He was an adherent to the old Conservative doctrine that they ought to reform only where reform was proved to be necessary, and not merely for the sake of change; but in Ireland it was admitted that reform had long been required, and every evidence which could bear upon the relation of landlord and tenant in that country had been collected with foresight and prudence, and tended to confirm that opinion, while in England no reform was at present required. There was not, however, a single provision in these two Bills which he did not believe to be just and equitable, and which, if the state of circumstances in England should require reform, he should not be perfectly ready to advocate for the one country as well as for the other. He must now apologise to their Lordships for the very long time he had occupied in his statement and for having 16 brought forward such an important subject, when many of their Lordships were so much better able to deal with it than himself; but his principal ground for bringing the subject under their Lordships' notice was that he had for some years been in the habit of attending personally to the management of his landed property in Ireland, and, in every endeavour that he had made to improve his estate and the condition of those who occupied it, and of the agricultural population, he had discovered from experience the faulty state of the present law, and therefore earnestly desired that a just and fair reform should take place.
§ LORD MONTEAGLE
said, that the Bills were introduced at such a late period of the last Session that it was utterly impossible for their Lordships to give that time to them which the subject required. He had urged against the principle contained in the Bills many objections, and at the general wish of their Lordships, they were postponed, for the purpose of being again introduced this year. This was the general feeling of the House, and, therefore, he would not now raise any objection to the Bills being read a second time, and referred to a Select Committee. So far as that went, it was making no concession; it took up matters as they were left in the last Session, and only affirmed that the law of landlord and tenant in Ireland was a fitting subject for Parliamentary consideration; but he could not acquiesce, even formally, in the second reading of those Bills, without calling their Lordships' attention to some of the principles which they involved, and against which he would now take the liberty of protesting. He felt convinced that those Bills could not be submitted to the calm and dispassionate examination of a Committee up-stairs, without calling forth many objections, aided, as he hoped that Committee would be, by the professional knowledge and ability of the legal members of their Lordships' House, without which such Committee would be insufficient for the purpose of pursuing the inquiry. He must make an exception, moreover, in favour of the noble Lord who had just spoken. Though not a professional man, his noble Friend had, by the clearness of his explanation, and the precision with which he had gone through details of these very complicated measures, 17 done as much as a non-professional Peer could well do to recommend measures in themselves objectionable to the favour of their Lordships. He (Lord Monteagle) would be the last person to look with disfavour on these Bills, in reference to the right hon. Gentleman (Mr. Napier), from whom they mainly proceeded, for, although he differed, and would show grounds for differing, with him on some of their provisions, he must render his humble tribute of praise to Mr. Napier, for his disinterested zeal, public spirit, and ability, and for the labour he had bestowed upon a subject one of the most difficult and embarrassing that could be undertaken. Still he felt bound to object to some of the provisions contained in those Bills, and to invite the consideration of noble Lords to certain strange and unexampled propositions which those Bills contained. The noble Earl had said that those Bills were introduced for Ireland, because in Ireland special evils were admitted to exist, for which he considered a special remedy ought to be found; while in England, the noble Earl said, no such evils existed, and no such remedy was required; but facts to which his noble Friend himself had adverted contradicted that statement. The relation between landlord and tenant had been made the matter of investigation in England, and attention had been called to it in both Houses of Parliament almost as frequently as in Ireland, although there was no out of-door agitation, as there was in Ireland. The noble Earl had referred to Mr. Pusey's Bill, and he would recall to their Lordships' recollection how completely—although prepared by a man of the highest possible ability to deal with the subject, and recommended by one whose character and acquirements gave him a particular right to address their Lordships on the subject—he referred to Lord Portman—how completely that Bill had been demolished in the course of half an hour's discussion, and how resolutely and unanimously their Lordships felt it to be their duty to reject it. In Ireland they had been doing nothing since the reign of George III. up to the present moment, but passing Bills of this description. Sixty Bills had been passed, with the object of regulating the relations between landlord and tenant in Ireland, and the result was the mischief and expense well described by the noble Earl. The noble Earl was an improving landed proprietor, but he admitted that, in many instances, his good wishes for his 18 tenantry, and his desire to improve their condition, had been impeded by the network of legislation with which Parliament had surrounded him. The noble Earl might look upon the present Bills with parental affection, and might think, that, although all parties had hitherto failed in dealing with the subject, he and his learned Colleague in the other house might succeed. He (Lord Monteagle), however, thought the difficulty was one of principle; he believed that every attempt that had been, or could be, made to devise legislative contracts between parties who stood in the relation of buyers and sellers would be infinitely more prejudicial to their real interests than if Parliament left them perfectly free and unfettered to make their contracts as they thought proper between themselves. He would appeal to those of their Lordships who had property in various parts of England, whether it would be possible to introduce any measure regulating the covenants between landlord and tenant which, if applicable to Northumberland, would be applicable also to Dorset or to Sussex? There were customary relations which had sprung up between landlords and tenants, which were accommodated to the peculiarities of place and condition, which would be inapplicable and mischievous if established in another part of the country; for instance, the customary relations which existed in a grazing county would be absolutely mischievous in a county of another description of husbandry. His noble Friend (the Earl of Donoughmore) had referred to the question of contract. His noble Friend the Lord Chief Justice had called attention a few days before to the difference between a contract made obligatory by law and one left to be arranged between party and party; this last was the principle which he (Lord Monteagle) wanted to maintain, and he would proceed to show their Lordships that it was superseded by these Bills. His noble Friend said truly that the provisions of the Bill were not applicable to England, but the principle of the Bill, if it were defensible, was surely as applicable to one side of the Channel as to the other; but England would never submit to a measure in which the rights of property were so absolutely sacrificed and trampled under foot as they were by certain parts of the Bills now before their Lordships. He was not, indeed, prepared to say that he would not, under any circumstances, legislate on the subject of landlord and tenant; he 19 was ready to legislate where it was shown to be necessary to do so; but he would not legislate in the manner in which it was now proposed to proceed. He would deal with all the Bills relating to the subject as a whole, and, although his noble Friend did not bring in the Bill relating to compensation to tenants, they had it on the table recommended by the Government. He would advert not only to the principle contained in the Bills introduced by the noble Earl, but would refer also to the principle contained in the Bills which had been introduced by the noble Duke (the Duke of Newcastle). He would first show the gross injustice of its ex post facto operation. Suppose a man was a purchaser under the Encumbered Estates Act in Ireland, who, on making his purchase, was told that the land was in good order, that the farmhouses were in good repair, and the fences good, and that, consequently, independent of the value of the ordinary land income, the property was worth 2,000l. or 3,000l. additional, created by these improvements. He purchased the property, and paid the money to the owner of the estate. He got a Parliamentary title, it was said, against the world—but this Bill would teach him that he got no Parliamentary title against Parliament itself. For what would this Bill effect? Parliament would step in and tell the purchaser, who had paid his 3,000l. additional in consideration of all these improvements, that by an ex post facto law he was compelled to pay 3,000l. additional to somebody else for the very improvements which he had already paid for. He would be compelled to pay this additional sum, not in virtue of a contract of his own, or engagement of his own, but by virtue of an Act of Parliament subsequently passed, and which says that this injustice must be so. Was the proposition sustainable according to right or reason, that a man who had already paid a price for that estate should be afterwards taxed by an Act of Parliament of which he could have had no anticipation, and be then obliged to pay twice over for the same thing? The noble Earl would say that was not contained in his Bill—it was the Bill of the noble Duke. But he would refer to his noble Friend's Bill, and give an illustration of what injustice it would produce. He would refer to the fixture clause, to which his noble Friend had adverted. Amongst other that matters that were made tenants' fixtures were all walls, whether of brick or stone, that might be built by the tenant on the 20 estate. At the present moment a wall was a landlord's property, and not a tenant's movable, in Ireland; but if the noble Earl's Bill should pass, the "wall" would turn out to be "moonshine." Nothing had been more common in ancient times under a ruder system of agriculture than now prevailed, than the division of lands by enormous banks of earth, whereby a great quantity of the land was wasted, and there was also a waste of soil which was contained in the earth rolled up for centuries in those immense embankments. Consequently, in more recent times, the tenants, as a matter of personal grace and favour, had frequently obtained leave from their landlords to break up these great embankments, and spread the earth over the land by way of manure or top-dressing, on condition of their supplying the place of the embankments by walls or fences, which occupied but a small space. These walls were fixtures on the land, but it was proposed that those walls should now be converted into the property of the tenant, who might take them down or compel the landlord to buy them. The tenant, when his lease expired, might prostrate every wall and fence, and deliver the land up in the condition of a common, unless he was paid by the landlord what he claimed as the value of the change he had made. It was also proposed to make the state of repair of a cottage the condition on which it should be open to the landlord to recover possession of the tenement. Was there ever such a proposition? They were to reserve to the landlord the power to recover the land if the contract between him and the tenant were not kept; but his power of recovering his rent was made dependent upon the state of repair of the house, although it was known that the condition of the repair of the house must depend on the care of the tenant himself. A storm might blow down the chimney, or some mischief might occur, but wilful damage might also be done by the tenant; even in the latter case the state of repair of the cottage was to be made a condition to bar the landlord from recovering his rent. He thought their Lordships would see that this provision would introduce something of novelty and more of litigation into the law of landlord and tenant. The noble Earl had anticipated, to a certain extent, one of the objections that would necessarily be raised by those who felt the danger of this measure. That difficulty was conclusive, and he (Lord Monteagle) should urge it notwithstanding 21 the answer by anticipation that had been received. It was a most consolatory fact, that out of the enormous evils and the miseries through which Ireland had gone she was now in a progressive state of, he hoped, real and substantial improvement. Proprietors were now, in almost every part of Ireland, passing from a bad system of managing landed estates into a better, a more improved, more generous, and more satisfactory mode of dealing with their tenants. If that were the case, he called upon their Lordships to hesitate before they passed a measure, the tendency of which was to interfere with all the natural and progressive and safe reformations which were going on. It was impossible to legislate on evidence solely applicable to the past. Let them not think of making the Devon Report the foundation for their present legislation. They might as well take the foundation for legislation on the subject from the Doomsday Book. At time of the Devon Report they had a system of miserable cottier tenants, and, whatever was the disposition or generosity of the landlords, it was impossible at that time to put their estates in a condition which would enable them to look at them with comfort and satisfaction; but that system had to a great extent passed away. They were told that there was a necessity for interference, owing to the state of the population; but the state of the population was now no longer what it was. The Report of the Devon Commissioners stated that, in 1841, the number of holdings under five acres was 310,000; at present it was only 88,000. The third Report of the Commissioners on the Irish poor stated that, out of 1,100,000 agricultural labourers in Ireland, there were about 550,000 who were, generally speaking, thirty weeks in the year out of employment. Their Lordships knew that a very different state of things now prevailed in Ireland. In ten years the population had been reduced to the extent of one million and a half. A new race of tenantry was arising. Did they think that a Scotch agriculturist from the Lothians, settling in Mayo or Galway, investing his capital and endeavouring to found a new family in that country, would choose to be hampered by clauses and provisions of the kind contained in this Bill? No, he would wish to be left free to make such contracts as his view of his own interest would dictate. Why assume, as the Bill did, thirty-one years, or any other onger period, as the proper term 22 of a lease? It might be said that leases of thirty-one years were better than leases of nineteen or twenty-one years, and that might be so; but that was no reason why the parties concerned should not be left to enter into such leases if they thought proper, without any interference by legislation. In the whole history of legislation there was scarcely any example of violation of principle like that presented by the Bills before the House. He would not, however, object to these measures going before a Committee upstairs, because he believed that all injurious obstacles to the application of capital to land ought to be removed, leaving all contracts between landlord and tenant perfectly free, but giving the easiest, simplest method of enforcing those contracts to both parties. This he believed was the principle on which all commercial arrangements for the purchase and sale, as well as for the occupation of land, ought to be based. This subject had been considered by that very useful body the Society for the Promotion of Law Reform, who recommended that if there was a covenant which was thought better than another, it should be made known by the Legislature to the parties, and even made binding in default of other agreements, but that it should be made optional with them to adopt that covenant or not, as they saw fit. To this suggestion he (Lord Monteagle) saw no objection; but that was very different from the principle of the Bill. He hoped, when these Bills went before the Select Committee, that the noble and learned Lords in that House who had professional experience on such subjects would not refuse to lend their able and indispensable assistance in examining their various provisions, and rendering our proposed legislation wise and effectual.
§ THE DUKE OF NEWCASTLE
My Lords, I should certainly regret if any other course were to be taken with regard to the Bills now before us than that which my noble Friend (Lord Monteagle) proposes. I am sure that all your Lordships join with me in regretting the absence of my noble Friend (the Marquess of Clanricarde), not only because we have not the advantage of his assistance in this debate, but from the lamentable cause which prevents his attendance this evening. I therefore wish all these Bills to be referred to a Select Committee, in order that they may be made the subject of the same inquiry. I rejoice that my noble Friend 23 (Lord Monteagle) has expressed his willingness that they should be so referred, although I am not quite certain that if I could feel the strong objections to the principles of the measure which he has stated I would follow the course which he is now about to adopt. I concur, undoubtedly, in much that has fallen from my noble Friend as regards the principle of legislation in connection with the law of landlord and tenant. I entirely agree with the general principle which he laid down, that all these contracts relating to the hiring and the letting of land resolve themselves into the category of ordinary commercial transactions, and are much better left as far as possible to be decided between the two contracting parties. But when my noble Friend draws a picture of a Scotch tenant from the Lothians going into the county of Mayo or Galway, and taking land there, and states the impression that he would be greatly deterred from taking land by the provisions of one of these Bills, supposing them to become law, I must remind my noble Friend of the position that the Lothian farmer would stand in if he went to Ireland at the present moment. Does he find his relation with his landlord a simple matter of contract and bargain between him and the landlord from whom he is about to take the land? By no means. The principle has been violated for centuries, and there are on the Statute-book at this moment upwards of 200 statutes legislating for landlord and tenant, all affecting the question of contract more or less directly, and infringing that principle which, in the abstract, I entirely agree with my noble Friend is right. I say then that we are not now in a position to discuss whether any legislation is right or wrong, but whether we cannot amend the legislation which already exists. My noble Friend objects to legislation on the subject of leasing powers with regard to the period for which leases should be granted, and thinks it wrong to lay down as a general rule that the landlord may, under certain circumstances, give a lease of thirty-one years to the tenant. Why, the Bills of the noble Earl (the Earl of Donoughmore), and the Bills which came up from the House of Commons last year, are not dealing de novo with this subject. The law of Ireland regarding leases is in a most anomalous and ridiculous position—in so absurd a position that one class of landlords may give leases of two or three years, and another class of landlords, under precisely similar circum- 24 stances, except that their title is different, may give leases of a much longer duration. I think that every species of dignitary in the Church is now enabled to grant leases of varying durations; and, in fact, the law of Ireland at this moment is not only in the most ridiculous, but in a most inconvenient and prejudicial condition. Now the noble Earl opposite (the Earl of Donoughmore) has certainly saved me from the necessity of troubling your Lordships with any lengthened observations on this occasion. I took the liberty of trespassing at some length on your Lordships' attention, on the second reading of these Bills, when they came up from the House of Commons last Session, after the most careful deliberation in that House. I then stated the nature of the Bills to the best of my ability; but certainly, if I was not sufficiently sensible of the inadequacy of my explanation on that occasion, I am more sensible of it now, after the speech of the noble Earl, who has to-night supplied the deficiency in my explanation; but as a great portion of his observations apply to the provisions both of the Bills which he has himself introduced and of the Bills which came up from the House of Commons last year, and which I have reintroduced on this occasion, it is quite unnecessary for me to go over the ground again. The noble Earl, however, must not suppose that, because I have introduced two of these Bills in the same form as they came up from the House of Commons, I therefore consider any alterations in his Bills otherwise titan as amendments. I have brought them in as they stand simply because I considered, under the engagement into which we entered last Session, that that was the most convenient mode of fulfilling it; and if we are ever to arrive at a satisfactory conclusion on the subject, there is an advantage in starting in the Committee with the Bills in the same form as the House of Commons, after a careful deliberation of some months in a Select Committee, constituted of representatives of all parties, without distinction of politics, sent them up to your Lordships. I am not prepared to deny that some of the alterations made by the noble Earl are improvements. The noble Earl instanced a clause in one of the Bills which I introduced that he says he has omitted, namely, a clause giving power to the encumbrancer in possession to grant leases under certain circumstances; and I myself think it desirable that that clause should be omitted; and if I am able, in 25 Committee, I shall certainly vote against that clause. There is another clause which the noble Earl proposes to omit, to which I cannot so entirely assent. He proposes to introduce into his Bill a clause that was rejected by the Committee of the House of Commons after very mature consideration, namely, the revival of the power of distraint over growing crops. I think that the other House came to a right decision in leaving out that clause. The law in Ireland gave the power of distraint over growing crops up to the year 1846; but in that year it was repealed by a Bill which I myself introduced into the other House, being then Secretary for Ireland. My Lords, I believe that, if it was right to repeal that measure, it would be wrong to re-enact it now. I felt at the time that the Bill was introduced, in 1846, that this repeal would be not unattended with inconvenient consequences to the landlord; but it was after deliberate examination of the question, and after the inquiry it underwent before the Devon Commission, and the unanimous opinion of the five Commissioners that this alteration should be made, that I introduced the measure to which I have referred. If I felt then that there were objections to this repeal, those objections are removed now. I rejoice, in the altered condition of Ireland, that the power is no longer continued; and I should witness with regret the introduction of a provision which I cannot help thinking would be attended with much heart-burning and great discontent. It is unnecessary for me to go into the discussion of two of the Bills of the noble Earl, which are so very similar to those that came up from the other House last year, and which I have reintroduced on this occasion. The noble Earl has stated the reasons which induced him not to introduce the third Bill—the Tenants' Improvement Compensation Bill. He stated, and stated correctly, that, as regards prospective compensation, there are provisions in the Bills which he has introduced, and that he believes these provisions will be satisfactory and sufficient for that purpose. I am not quite certain that I can quite agree with him in this respect; but at any rate the noble Earl does admit the principle of compensation for future improvements. Now, my Lords, I cannot think that it would be so simple a matter to omit altogether from our legislation all compensation of a retrospective character; and I believe the noble Earl himself indicated that he had considerable 26 misgivings on this point when he said—and repeated it several times—that if these Bills went to a Committee, he, for one, would rejoice if a plan were devised which would give to the tenants that compensation to which he felt they had an equitable claim. I entirely participate in that feeling, and believe that, as regards the law, in Ireland especially, you will not be able to pass a satisfactory measure on that question without in some way or other touching the question of retrospective compensation. I anticipate that, when the Bills come to be considered in Committee, much information will be elicited; and if my noble and learned Friend beside me (Lord Campbell), and the noble and learned Lord the late Lord Chancellor of England (Lord St. Leonards), and who for five years, with great credit to himself, and satisfaction to Ireland, held the post of Lord Chancellor of Ireland—if such noble and learned Lords should consent to serve on the Committee, I do hope that this question may be finally set at rest. But we must not lose sight of this fact, that the position of the north of Ireland is very peculiar as respects the question of retrospective compensation; and if the noble Earl refuses to legislate altogether on this subject, he must not tell us that he proposes simply to give compensation for prospective improvements, but he must also exempt the tenants of Ulster from the operation of the measure. If this exemption is not made, a very great injury will be inflicted on those who have enjoyed, rightly or wrongly, by long custom, a privilege which they greatly value, and which, I believe, the landlords of that district are by no means desirous to deprive them of. The noble Earl said that the retrospective compensation clause was altered in the Committee of the House of Commons. It was so, certainly; but it was altered in the sense of a reduction of the interest of the tenant. The noble Earl said, and truly, that all the provisions affecting improvements made in the soil were entirely erased in the Committee, and that no provisions remained excepting those relating to permanent improvements made upon the soil, the principle no doubt being that which was felt in the course of the discussion, namely, that improvements on the soil, such as buildings and so forth, are visible and tangible; whereas other improvements, such as even that most important improvement of drainage, are invisible and extremely difficult to calculate, and ought 27 not to be taken into account. The provision originally introduced into the House of Commons for retrospective compensation was based upon the two principles of the restriction of time and restriction of value—that was to say, that no compensation should be claimed by the tenant beyond a certain amount, and that it should vary in amount according to the anterior period at which the improvements had been effected. That principle was altered in Committee of the House of Commons before the Bill was passed in that House; and as the Bill now stands, it remains, at any rate, in a more simple form, namely, there is no restriction as to amount, and no restriction as to time; but it provides that for visible improvements made on the soil compensation shall be given by valuation, and that that valuation shall be made by a public authority, namely, the assistant barrister. My noble Friend (Lord Monteagle) has just now complained of the hardship to persons who, under the Encumbered Estates Act, have purchased property without any liability of this description being now exposed to claims for compensation, which they had no idea would be attached to the land they had bought. It is impossible to deny that there is some force in the objection of my noble Friend; but at any rate the objection is greatly restricted and the evil much mitigated by the 14th clause in this Bill, which provides that every claim for retrospective compensation must be made within twelve months after the passing of the Act, and registered accordingly; so that no claim subsequently to this twelve months can be preferred; and any litigation which may take place on such a subject must be limited to claims made within the first twelve months after the passing of the Act, and notice must be given by the tenant of his intention to claim any such compensation; and it will be within the power of the landlord to litigate the point with the tenant, if necessary; and when once the question is decided the claim cannot be renewed; so that the landlord will be at once made aware of the demand to which he will be subject. My Lords, I promised not to detain your Lordships long, and I wish to keep my word, and more especially, as I must again repeat, the noble Earl has left me little explanation to offer in regard to these Bills. I sincerely trust that your Lordships will refer the whole of the Bills, including the one proposed by my noble Friend behind me, who is connected with the north of 28 Ireland, to a Select Committee, in order that persons representing all parts of that country may combine, and, if possible, come to the same conclusion, aye or no, on the question of compensation to tenants. As regards the other two Bills, they are more consolidations of the law than new enactments; and I cannot but believe that, under the superintendence of the noble and learned Lords, they will be made sufficient for their purpose, and invaluable to Ireland; and I only hope that an earnest endeavour will be made by all parties to devise the means by which compensation for retrospective improvements can be given to the tenant consistently with the principles and the rights of property, which I can assure your Lordships I am as anxious as any one amongst you to maintain, not merely in this country, but also in Ireland.
said, that, having been appealed to in the course of the discussion, he would make a few observations; but they should be very few, because he felt that it was in Committee that the law Lords could render real service in regard to these Bills. No one felt more than he did the great importance of the object they had to attain by the legislation which was now proposed to them. That object was not only the improvement of agriculture in Ireland, but it was still more—it was to cultivate harmony between the landlords and tenants of Ireland. Both those great objects should be always kept in view, when considering such legislative measures. These Bills had come before their Lordships with the highest recommendations. He had no doubt that Mr. Sharman Crawford was well qualified in every respect to form a judgment upon the subject, and he knew that his learned Friend, Serjeant Shee, had been most sincerely desirous to benefit his country, and to respect the rights of all who were interested in it. He need not say that anything which his right hon. and learned Friend (Mr. Napier), who was an honour to his profession, and who was possessed of the most splendid talents, recommended, was entitled to the most respectful attention. The subjects of the Bills which were before their Lordships might be classified under three heads—the first, the subject of the powers of leasing; the second, the general relations of landlord and tenant; and the third, compensation for improvements. With regard to the power of leasing, he had no hesitation at all in assenting to the 29 principle of that measure. He believed that it might be done with perfect safety, and that the rights of all parties claiming under settlement would be amply protected, while great benefit might accrue by giving the immediate landlord power to grant leases at properly ascertained rents, so as not to prejudice the rights of individuals under the settlement. The soil of Scotland had been converted from barren moors into one of the richest countries in Europe by a system of long leases, and the power to lease for nineteen or twenty-one years had been given to persons having partial interests in the land; and he believed that, if a similar system were introduced into Ireland, it would effect as good a result there as it had done in Scotland. Everything should be done to encourage the practice of leasing in Ireland, because where leases existed, there were always written contracts, in which the rights of the parties were defined, to which parties might always refer, and by which disputes might be adjusted. With regard to the Bill for the amendment of the law of landlord and tenant, he thought it a most legitimate subject for legislation. It would, no doubt, be a great improvement in the law of Ireland. Its first effect would be to sweep away no less than 150 Acts of Parliament which had been passed on the subject. They would be beginning de novo, and they would have a tabula rasa, so that they would be able to see what enactments were proper to be introduced. He highly approved of the attempt to do away with the distinctions which were now made by the common law respecting fixtures erected by the tenant for agriculture and for manufactures. A farmer was a manufacturer of wheat, barley, and oats, and of beef, mutton, and pork, and if he had occasion to build houses for carrying on his trade, he ought to have the same liberty of removing them as the cotton spinners had. He believed the principle of the Bill was sound, and he should most readily concur in endeavouring to improve it. But when he came to the third Bill, which the noble Earl (the Earl of Donoughmore) had said he had not the courage to bring forward, but which the noble Duke appeared to advocate, he (Lord Campbell) thought it would neither promote agricultural improvement, nor add to the prosperity of Ireland, and much less would it tend to cultivate harmony between landlord and tenant. He had no personal motive in speaking on the subject. It 30 was true he had the honour of being an Irish proprietor, but he had never had, nor was likely to have, any dispute with his tenants. He believed the noble Duke would hardly have the courage to say that a retrospective clause did not intrench upon the rights of property. A person might have bought land under the Encumbered Estates Act, with a Parliamentary title, and with no claim upon it which was not set out in the conveyance; but here they proposed to give the tenant a claim against the proprietor for any improvements he might have made. The noble Duke said, the evil was mitigated by limiting the power of the tenant to make the claim as to time; but still that would not remove the objection to the principle. He (Lord Campbell) thought that the effect of granting compensation for retrospective improvements would probably be to drive capital away from Ireland, instead of attracting it to that country. The noble Earl who opened the discussion thought prospective improvements were not so objectionable; but these improvements also seemed to him (Lord Campbell) to be the fit subject of contract, and not of legislation. If a power of leasing were given, whether for one year, for seven years, or for twenty-one years, why should not the terms of the contract be reduced to writing, and the conditions on which the tenant held the land be put down in black and white? If that were done, what necessity would there be for this legislation? The proposed clause, if enacted into a law, would either intrench upon the rights of property, or it would be an absurdity. Wherever there was a lease existing, although the tenant might send a notice to his landlord that he wished to make a certain improvement, and the landlord might not choose to make it, still, if the lease, whether by deed, or by simple contract, gave the tenant the right of improvement, he might make that improvement, and claim compensation for it. But, if the lease did not confer any such right on the tenant, then an Act of Parliament which interposed between the landlord and the tenant, and said that the tenant should be at liberty to make such improvement, and claim compensation from the landlord for it, was unquestionably an intrenchment on the rights of property. But if, on the other hand, there were no lease existing, which, he was sorry to say, was generally the case in Ireland, then such a retrospective law would be an absurdity, because, in that case, the tenant 31 would only be a tenant-at-will, and if he should give his landlord notice of his intention to make certain improvements, and the landlord should object, the landlord would only have to say to the tenant, "You are but a tenant-at-will, and I give you notice to quit." The Bill, therefore, as it stood, would be wholly nugatory, because either the landlord would give the tenant notice to quit, or he would require the tenant to enter into a written agreement which should exclude him from giving any notice for improvements. He thought the Government had done well in allowing the introduction of these Bills; and, as it appeared to be the unanimous opinion of their Lordships that the Bills should be read a second time and referred to a Select Committee, he should give the Motion his concurrence.
THE EARL OF CLANCARTY
My Lords, inasmuch as it is proposed that the Bills now before the House should be referred to a Committee upstairs, and that, in giving them a second reading, the House is not to be taken as implying an approval of their provisions, but only as complying with a necessary preliminary to the full consideration elsewhere of the important subject to which they relate, I shall not detain your Lordships by many observations upon them. I cordially join with the noble Duke opposite in hoping that the result of the labours of the Committee may be a consolidation and improvement of the laws relating to landlord and tenant in Ireland, that may be approved of by the House, and be productive of permanent advantage to the country, and I look with the more confidence to this, as the noble Duke towards the conclusion of his speech appeared to confine his expectations to the provisions contained in the Leasing Powers Bill and the Landlord and Tenant Bill. The noble Duke, though speaking generally with approbation of alterations in the latter Bill, introduced since it was last before Parliament by my noble Friend who moved the second reading, is opposed to one of those alterations which to me appears to be of great value, I mean the restoration of the power of distraining growing crops. It is true that, on the recommendation of the Devon Commission, that power was taken away. It was liable to abuse, and probably had been abused, but the taking of it away has been productive of an evil no less requiring to be provided against. The abuse of the power on the part of a landlord consisted 32 in either the sale of the tenant's crop before it was fit for cutting, or the subjecting him to the cost of having keepers put over it until ripe. The abuse on the part of the tenant is that, in order to defraud the landlord of the security for his rent, the crop is sometimes cut and carried away on Sundays beyond the landlord's reach. Now the Bill of my noble Friend, as now amended, while restoring the power of seizing growing crops, restrains the landlord from cutting them before they are fully ripe, and restricts the costs of keepers as against the tenant to fourteen days. The Bill further guards against any possible abuse of the power of distress by requiring affidavit to be sworn in every case of the sum claimed as due, and, by restricting the power of distress to the two last gales of rent, is well calculated to do away with one of the greatest drawbacks to the improvement of Ireland—namely, what is called an indulgent landlord, that is to say, a landlord who, slovenly and irregular in his own accounts, allows, and by his example encourages, his tenants to become so in theirs, by falling into arrear with their rents, for thus they lose all independence of character, and, incurring an amount of debt that they cannot fully discharge, their endeavour is wholly to evade it. Hence those newspaper paragraphs, headed "good land," by which the public are informed that four or five years' rent has been forgiven on the condition of one being paid, a liberality for which great credit is taken, but which is but a compromise on the part of the landlord to avoid losing all. The importance of short accounts between landlord and tenant, and of promoting habits of punctuality, where habits of a contrary kind have long so injuriously prevailed, is fully recognised in this Bill, by limiting the power of the landlord to enforce payment of rent by a distress, to the rent due for the previous year. Another great evil in the existing law is remedied by this Bill. At present the power of letting small tenements by the week or month is limited to towns. A landlord in the country cannot let a cottage, with or without garden, to a labouring man for a shorter term than a year, and should he wish to regain possession of it, he must give a six months' notice prior to the corresponding period of the year to that at which the tenancy commenced. On the other hand, the tenant, however desirous he may be to remove elsewhere, cannot do so without serving a like notice upon the landlord. Under so inconvenient 33 a state of the law it cannot be matter of surprise that suitable dwellings for the agricultural labourers are so seldom built in Ireland. The Bill proposes to recognise the letting of small tenements to monthly and weekly tenants, with the same powers of recovery as are enjoyed by the lessors of small tenements in towns. The advantages of such a provision are obvious as regards the interest both of landlords and occupiers. The landlord will be encouraged to build dwellings suitable to the wants of this humble class of his tenantry, by the security of being enabled to resume possession within a reasonable time, and without an expensive process of ejectment from any tenant he may object to; and the tenant, if not satisfied with his tenement, or, if desirous as an artisan or labourer to carry his labour to some better market, can at once surrender the holding to his landlord. Such a change in the law, some time ago, would have saved the poor of Ireland from much suffering, for, on the expiration of an old lease, or on the ejectment of a non-paying middleman, lands have been from time to time thrown upon the hands of landlords covered with a helpless and ignorant population of under-tenants, with dwellings unfit for human habitation. Landlords in such cases have often been obliged, in taking up the land, to pull down the cabins, leaving the dispossessed population to the relief provided by the Poor Law. Without capital or capacity for farming the land, the head landlord could not reinstate them as his tenants, for he must turn the land to account if only to meet the poor-rates and taxes upon it. Had he been enabled, as by the proposed amendment of the law he would be, to have retained them in their cabins as monthly or weekly tenants, he might have found for them profitable employment in restoring the lands to a healthy condition, and the gradual removal of so many as were in excess of the means of permanent employment might have been effected with advantage to all. One of the most important provisions in the Landlord and Tenant Bill is the clause respecting fixtures, which, from the consideration it has received, and the equitable principle and sound policy upon which it is founded, will, I hope, become law. It appears that the tradesman is already secured in the property of whatever he has erected appertaining to the business of his trade; the reason for securing in like manner to the farmer a property in what he has con- 34 structed or erected at his own cost for the business of the farm is equally strong. I would go further, however, and secure to the tenant his property in ornamental improvements. It appears hard that a tenant who has, at his own cost, put up a chimney-piece or other ornament of a like kind, should lose his property in them when he quits the tenement, because, being bedded in stone, brick, or mortar, they have become part of the freehold. My noble Friend on the cross-bench (Lord Monteagle), in objecting to the fixture clause, quoted in support of his argument an anecdote of Sir Boyle Roche. My noble Friend will permit me to quote, in support of my argument in favour of an extension of the fixture clause, an anecdote drawn from the humorous Memoirs of Sir Jonah Barrington, quite as pertinent to the subject. Such of your Lordships as have read the Memoirs of Sir Jonah, will readily call to mind the scene at the newly-built hunting-lodge, where two of Sir Jonah's friends having fallen asleep after a drunken carouse the evening before, with their heads reclined against the damp mortar of the newly-plastered wall, found themselves, when awakened, fast bedded into the cement, which had been dried by the warmth of their heads. In strictness of law those gentlemen had become part of the freehold, and ought not to have been severed from it. I quite agree with those noble Lords who have spoken in condemnation of the Tenants' Compensation Bill. Such a Bill ought not to have been brought forward by the Government. Its title would imply that the interest of the tenant was overlooked in the other Bills, and is, therefore, calculated to interfere with an adjustment of the question mutually advantageous to landlord and tenant. I can only regard it as an unjust and mischievous interference with the rights of property, calculated to place landlord and tenant in a constant state of antagonism, and to beget endless and wasteful litigation between them, without really securing any advantage whatever to the tenant that is not much better secured to him by the fixture clause in the Landlord and Tenant Bill; and, among the consequences of such an Act being passed would undoubtedly be a very general endeavour on the part of the owners of land to take it up from their tenantry, reducing the latter to the condition of farm-servants and labourers, for no landlord would willingly subject himself to the constant interference of arbitrators and 35 assistant-barristers between himself and his tenants. The retrospective operation of the Bill seems to have been directed especially against those landlords who have encouraged their tenants to improve. Where the landlord has taken no interest in the improvement of his estate, or inspired no confidence in his tenants to improve, it is probable that no tenant could set up any claim for compensation. But the landlord who has countenanced and encouraged improvements, and been hitherto confided in by his tenants, would, under the operation of this Bill, be besieged with claims for compensation of which he is no longer to be, as heretofore, the judge, and which are thenceforth to be established against him as debts that he is bound to pay. I cannot believe that the Government seriously intend to press such a Bill upon the acceptance of the house. It will have, however, to be reported upon by the Select Committee, and I trust that the whole subject will be so considered that the labours of my right hon. and learned Friend (Mr. Napier) in the investigation of the existing laws relating to landlord and tenant, and in simplifying and amending them with a view to their better adaptation to the present circumstances of the country, may be turned to account in a definitive and satisfactory settlement of the question.
THE EARL OF DESART
was of opinion that, whether legislation on the subject was requisite or not, the present moment was inopportune for that purpose. The state of Ireland was at present a state of transition, and legislation would, therefore, necessarily be based upon theory, not upon fact. If contracts were to be touched, and the relation of landlord and tenant were to be bound by legislative quibbles, transactions at present difficult of comprehension would be rendered still more difficult, and still more incomprehensible; and thus there would be an additional obstacle thrown in the way of those whom it was desired to help. He trusted, therefore, that the House would think twice before it proceeded to pass Bills involving legislation upon the subject of contracts as between landlord and tenant in Ireland. It was always a difficult thing to interfere with private contracts in commercial transactions; the landlord and tenant were in the position of contractors in a commercial transaction, and the House should not, therefore, deal with them as if they were children or idiots, incompetent to the ma- 36 nagement of their own concerns. There was no need of legislation now, because there was now no pressure upon the land in Ireland. When the tenant was seeking a bare existence in the face of competition such as was never known, he had to give any terms that were asked by the landlord; but all that was different now. Ireland was in a state of transition, and, therefore, the Legislature should be cautious how it proceeded to forge legislative fetters for the future in that country. The great fact, however, should never be lost sight of—namely, that the land was the property of the landlords, and that Government was bound to protect all private property in its disposal and in its management, so long as either were not rendered injurious to the general interest. There was no proof that the management or disposal of their property of that kind by the Irish landlords had been injurious to the country; on the contrary, he (the Earl of Desart) believed that on the whole they had been beneficial to it; and, therefore, it was clearly essential that the enjoyment of their rights should continue to be protected as essential alike for the good of the country and for the advantage of landlord and of tenant. In considering the question, consequently, care should be taken that the rights of property were not trespassed upon too far, and that there should be no petty restrictions placed upon landlords in disposing of their land on such terms as they chose, consistently with the general interest.
* I am quite ready, my Lords, to give my consent to the second reading of these Bills, upon the understanding that they are to be referred to the consideration of a Select Committee. I believe that the time is come when it is absolutely necessary that we should enter upon a revision of the whole body of laws by which the relationship of landlord and tenant in Ireland is regulated. It is quite out of the question that we should any longer transact our affairs in that unbusiness-like and slipslop manner in which both landlord and tenant have been in the habit of indulging; it is absolutely necessary that a distinct understanding should be come to with respect to the rights of each, and that the nature of their connection should no longer be enveloped in that haze of uncertainty which has hitherto been the cause of so much mismanagement and contention. I believe that the Bills of the noble Lord are, in the main, good Bills; that they contain many excellent provisions; that in their ope- 37 ration they will be beneficial to the country. But, my Lords, I must venture to remind the House of one most important consideration. Before any attempt is made to introduce a sounder system of management with regard to the land in Ireland, an important preliminary step is first absolutely necessary. It is necessary, my Lords, that we should arrive at a settlement with regard to the past; unless a satisfactory settlement is arrived at with regard to the past, all our attempts to introduce an improvement for the future will, I fear, be greatly impeded.
Now, my Lords, I am sorry to be obliged to say that a great deficiency is to be found in this respect in the scheme of the noble Earl (the Earl of Donoughmore). The great difficulty lies in the past; but with that difficulty the noble Earl has but imperfectly attempted to grapple. I consider it to be a great subject of regret that the noble Earl—so well qualified, both on account of his ability as well as on account of the attention he has paid to these subjects—should not have endeavoured to deal with this difficulty in a more explicit manner. There is, indeed, in his Landlord and Tenant Bill a retrospective clause; but I fear its operation will not be very effectual. In principle it accords too much, and practically it accords too little to the tenant. In principle it asserts that all improvements, &c., executed by the tenant, are to be considered the property of the tenant; and that it shall be competent for him, at the expiration of his occupancy, to demand their value from his landlord—thus manifestly contradicting that most indisputable of all dogmas—namely, that a tenant's interest in his improvements, whatever may be their nature, must necessarily lapse with the effluxion of time; that at the expiration of an occupancy of thirty years a tenant cannot have the same claim to compensation as at the expiration of an occupancy of three years; while by leaving to the tenant, in case his landlord should not elect to purchase these improvements, no other alternative than to pull his house down, and carry away the loose stones in his pocket, the concession made on the tenant's behalf, at the commencement of the clause, is virtually emasculated.
Now, my Lords, I feel that an apology is almost due from me to the House for venturing to express a decided opinion upon one of the most difficult questions that have ever been submitted to your Lordships' consideration; but it is impossible for any one 38 connected with Ireland, let his ability be what it may, not to have imbibed some information on this subject; it is impossible for any one who has passed three or four years of his life amid the endless embarrassments attendant upon the management of Irish property, not to perceive that at present the relationship of landlord and tenant in that country is almost of a barbarous character, and not to desire that their connection should assume a more satisfactory aspect.
Under these circumstances, I trust that I may claim your Lordships' indulgence for a few moments, while I endeavour to point out where the difficulty really lies, and what it is that principally impedes the introduction of a sounder management of landed property.
As most of your Lordships are aware, the majority of Ireland's misfortunes may be traced to this fact—namely, that a prolific and indolent people have been confined within an island, upon the produce of whose soil alone the inhabitants were in the habit of depending for subsistence. In a country without manufactures, without commerce, without emigration, and without a poor law, if you cut away the land from beneath a peasant's feet, his next step must be into—space, or, at best—into the limbo of beggardom. To each man the possession of a patch of land becomes absolutely necessary to existence.
Out of this miserable peculiarity arose those two great evils, from which most of the crimes and misfortunes of Ireland may be deduced—namely, so intense a competition for land as to make its owners the absolute lords of the market, and leave to the occupiers no alternative but to submit to whatever conditions the former chose to exact. My Lords, I believe in no free country has the produce of the soil ever been so unequally divided. I do not mean to say that the money-rent has been higher in Ireland than in England; I believe it has not been near so high, because the gross produce has been comparatively less; but of that gross produce an infinitely larger share was obtained by the Irish than the English landlords. The other great evil consequent upon the habit of the Irish people to depend upon the soil alone for subsistence, and the natural corollary to an intense passion for the acquisition of land, was the subdivision of the land into almost infinitesimal quantities. Now, my Lords, it is unnecessary to enumerate all the bad consequences which may be di- 39 rectly deduced from this subdivision of land. To one of them alone need I now call your attention.
On an estate applotted out to a conglomeration of small farmers, it became simply impossible to follow out the English system; and for the landlord himself to put upon the farm the more enduring improvements, it would have been madness to have made the attempt. It would have been ruinous for the landlord to erect over every ten or fifteen acres of his property a separate farming establishment, where on every 500 acres one such establishment would have been amply sufficient for all agricultural purposes. Consequently, it became the custom in Ireland for the tenant, at his own expense, to erect those buildings, and to execute those improvements elsewhere provided by the capital of the landlord, thus, my Lords—and to this point I wish particularly to draw your Lordships' attention—manifestly creating on behalf of the tenant a more permanent interest in his holding, than if he had only executed such improvements as in their very nature were calculated to make a profitable return within a more limited period; for your Lordships will readily understand that while a tenant, at the expiration of a tenancy of fourteen years, may have amply compensated himself out of the land for money sunk in draining, manuring, &c., he could hardly be supposed to have been recompensed for the 300l. he may have sunk in building his house, farm-offices, &c. Thus, my Lords, when prematurely compelled to surrender possession of his farm, upon which he may have but five or six years before erected such permanent improvements as the foregoing, no reasonable man can blame a tenant for considering that he is equitably entitled to some claim for compensation on behalf of the house, &c., he cannot carry away on his back with him. And, my Lords, above all things it must be remembered, that, in the first place, it was by the advice and with the strenuous encouragement of his landlord that he has been induced to build his house, &c.; and that, in the next place, from the method in which the management of estates was conducted in Ireland, upon some of which the tenants were kept under a permanent notice to quit, served annually, as well as from the strict nature of entails, in nine cases out of ten, it was impossible for him to get any lease at all by way of protection; while, above all, no ordinary lease, nothing but a long lease, one which approached to the nature 40 of a building lease, would have been sufficient to afford him protection. As I perceive, by what has fallen from noble Lords during the course of this debate, that this admission on my part of the fact that the tenants have had the imprudence to erect buildings, &c., on their farms without previously insisting upon making a bargain with their landlords, and protecting themselves by a contract, will be sufficient, in the opinion of many persons, to vitiate at once all their claim for compensation, I may as well say a few words with regard to that point.
No one is more ready than myself to admit, as one of the most sacred elements of good government, the principle that matters of private contract ought not to be subjected to legislative interference; that should a man make a bad bargain, the law cannot step in to release him from it; and that, without let or favour, each man must be allowed to do the best he can for himself. My Lords, I know no commercial doctrine more essentially necessary to be always remembered; but, my Lords, I confess that I am not one of those prepared, with stony inflexibility, to apply every abstract principle I may hold to the affairs of men. I believe more mischief has been occasioned by a pedantic and prudish passion for the universal application of abstract principles, than even by an occasional lax observance of them. Our English Constitution works better than any other in the world, and yet I scarcely suppose one exists, as it were, so logically inexact—it is full of inconsistencies. The imperfections of human nature oblige us to be inconsistent; and, in fact, my Lords, it is because I consider the soundness of such a principle so perfectly unassailable, that I do not fear the consequence of a precedent in an opposite sense. Moreover, my Lords, I would urge, in reply to what has been said by the noble and learned Lord, with regard to the indefensible nature of all claims not supported by previous contract, that the very term contract implies the mutual independence of the contracting parties; and yet no one, I should think, would be bold enough to assert that the Irish tenants of former days were in an independent position: between them and their landlords a bargain, in the English sense, a contract, a stipulation, was out of the question. Such a matter was not mentioned; it was unknown to the practice of the country; the one did not propose, but dictated terms; the other did not accept, but submitted to them. And 41 therefore, my Lords, I trust that because it is not to be found in the bond, your Lordships will not at once refuse to entertain the possibility of reasons existing, which may justify a departure from such a principle on a particular occasion.
But, my Lords, it is not even upon these grounds that I rest my ease; I can go further. I am prepared to prove that, although in individual agreements there was no express stipulation respecting this class of improvements, a tacit understanding, nevertheless, did exist between the landlord and the tenant; whereby the latter felt assured, when embarking in these expenses, that, although protected by no lease, his tenancy would be sufficiently prolonged to enable him to reap the benefit of his investments; and that even where, as in the north of Ireland, a different mode of dealing with the difficulty was adopted, a certain custom did and does prevail which, bad as I consider it in some respect to be, had, at all events, this advantage, that the outgoing tenant's claim to compensation for improvements of a certain character was recognised, and that, independent of his lease, or of any express stipulation whatever, on removal from his farm, he was not compelled to leave behind him that portion of his capital from which he bad not had time to obtain a free return. My Lords, I allude to what is called the custom of the Tenant-Right of Ulster.
Now, my Lords, as I fear the nature of this custom is most imperfectly understood—as it has been made the subject of very gross misrepresentation—as upon those misrepresentations very mischievous and absurd pretensions have been founded—perhaps I may be allowed to attempt to describe to the House its real character.
The custom of tenant-right in Ireland was that custom under which, at the termination of his occupancy, the outgoing tenant was in the habit of selling to the incoming tenant what was called "his interest in the farm," that is, those permanent improvements, such as houses, &c., which the one had erected, without having had time to repay himself for his outlay, and into the enjoyment of which the other was about to enter. The price was determined by competition, or private agreement, or, though not till lately, by the arbitration of the landlord or his agent.
My Lords, I know no better way of further illustrating the nature of the transaction, than by comparing it to a system 42 which will be familiar to as many of your Lordships as have had the good fortune of having been members of either University. Your Lordships will doubtless remember how every freshman, on entering into the possession of his rooms, had to pay to the late occupant, in consideration of the furniture to which he succeeded, a certain sum, technically denominated "thirds." Those "thirds" were analogous to the sums paid by the incoming tenant to his predecessor, under the custom of tenant-right.
Though what I have stated is an exact description of the custom, I do not mean to say that its philosophical theory was everywhere thus understood. The custom itself was a remedy arrived at, as it were, by the "instinct" of the people, to obviate the inconvenience entailed by the practice of the tenant putting upon the farm the two classes of improvements—namely, those immediately reproductive, such as draining, manuring, &c., and those requiring a longer term of occupancy to become remunerative, such as houses, offices, roads, &c.—the vis medicatrix natureœ, as it were—which arose as the antidote to the original vice of a system of small farms and impoverished landlords. Moreover, a relict of barbarism, called the "goodwill"—that is, the privilege of peaceable succession—was also understood to be conveyed with the land by the departing occupant, in consideration of the sum his successor then paid, and further obscured the meaning of the transaction. This element of value, however, my Lords, we may, I think, suffer to lapse out of our consideration, and confine our attention to that part of the operation which was understood to convey to the incoming tenant the residuary interest in the farm of his predecessor. Now, my Lords, I am prepared to say, that if this machinery could have been properly worked, it would not have been altogether a bad means of helping out the defective system I have alluded to. If the price thus paid had really borne any relation to the value received—if the improvements left on the farm by the one had been always value for the sum paid by the other, no great harm could have been done; but, unfortunately, a disturbing force here intervened, sufficient entirely to vitiate the soundness of the original operation. I have already alluded to the immense competition for land in Ireland, and shown how completely it placed the tenant at the mercy of his landlord; 43 how, in fact, what were known as rack-rents were the result.
But it is a great mistake to suppose that this system or rack-renting was universally prevalent in Ireland. In the south and west, indeed, it was only too prevalent; and the landlords of to-day are still reaping the whirlwind their fathers sowed. But in the north, from various causes sufficiently obvious, into which there is no reason I should now enter, a system of extortionate rents was never introduced. The landlords of the north felt that it was, in the main, against their interest to squeeze from their tenants the utmost that could be obtained. It was very rarely that the rent demanded was equal to the competition price. As in a court of justice, when the accused has no defender, the Judge himself becomes his counsel, so the Ulster landlords thought it to be their duty and interest to protect the tenants against themselves, and instead of fixing the rent at what the tenant proposed to give, they cut it down to what the land could fairly pay. But, my Lords, unhappily, partly in consequence of the vicious system by which the relations of landlord and tenant in Ireland were regulated, partly in consequence of the want of foresight of former generations, the benefits which the landlords of Ulster were thus anxious to provide for their tenants has been only partially secured; for, my Lords, that passion for the acquisition of land, that extravagant competition which was its result—curbed in one direction by the moderation of the landlords—worked out for itself a new channel, through which it could rush to the utmost limits of indulgence.
When the offer of an enormous rent upon the part of a tenant anxious to obtain a farm, was not found sufficient to secure for him the preference of the landlord to the prejudice of the other applicants, the payment of the outgoing tenant of an exorbitant sum, nominally in consideration of his improvements, was found to be more successful. The mischief resulting from the introduction of such an exaggeration of value was not immediately apparent. The landlord did not like to stand in his old tenant's way, when thus making a good bargain; it reconciled the outgoing man to the removal from his farm (always such a difficulty in the path of the landlord in Ireland), while, above all, the larger the sum thus paid, the more ample became the fund out of which the landlord was able to repay himself the whole of the arrears, 44 which his agent's mismanagement or neglect had suffered to accumulate on the farm during the late tenant's occupancy. Thus, an outgoing tenant, on the termination of his occupancy, may have been fairly entitled to the sum of 50l., in consideration of some farm-office he may have lately built—the arrear, however, due by him to the office amounts to 100l.—the incoming tenant has been mad enough to offer 150l. for the farm, and the landlord approves of the bargain, inasmuch as he intercepts 100l. of the purchase-money as due to himself for arrears, while 50l. still remains to satisfy the ejected occupier, and divert his mind from all thoughts of exacting summary vengeance on his landlord for turning him out upon the world.
Thus, in a short time, partly in consequence of the foolish desire for the acquisition of land on the part of the tenant—partly, in consequence of the short-sighted policy on the part of the landlord, did the sum received by the outgoing tenant from his successor lose all relationship whatever to the real value of the improvements, for which it was supposed to be the equivalent. The theory of the transaction was lost sight of, and nothing but the custom remained, under which it was considered, in many parts of the country, that the tenant had a right to sell his interest in his holding to the highest bidder; and that it was an infraction of the custom of tenant-right for the landlord to attempt to modify the competition, or exercise any choice among the competitors for his own land.
Now, my Lords, having paid great attention to the subject—having studied its working painfully and earnestly for some years—I have no hesitation in saying, upon my honour and conscience, that a more unbusiness-like or mischievous system, both as regards the landlord and as regards the tenant, could not have been invented. All the benefit arising from the moderation on the part of the landlord was entirely counteracted; the margin of profit he bad been desirous to leave to the tenant was completely swallowed up—his very indulgence and kindness aggravated the mischief, for it made men more desirous to become his tenants, and stimulated competition—his very virtues thus becoming an element of value as against himself; while he found that, notwithstanding all his endeavours to let the land at a fair rate, every tenant on his estate was paying, one way or another, a most exorbitant rack-rent. For, my Lords, I think your Lordships will easily 45 perceive, that if on his entry into a farm, for which he is charged a fair rent, a tenant shall have to spend, we will say, five, eight, or ten pounds an acre besides in purchase-money (and such, my Lords, to this day is no uncommon price to be paid for the mere occupation of land on which the improvements are absolutely scarcely worth anything), he is but paying up beforehand so many years' purchase of the yearly difference between a fair rent and a rack-rent. Moreover, my Lords, it must be particularly remembered, that in order to pay this enormous sum, amounting to sometimes from 200l. to 500l., the tenant had to go to the money lender and borrow at the rate of ten, twenty, nay, fifty per cent; and thus he entered upon the prosecution of his enterprise, not only destitute of capital, but saddled with an enormous debt, the interest of which he had to provide every year with more unfailing exactitude even than his rent.
But as it was to be supposed, my Lords, this system so vicious in principle, so ruinous in practice, has on the first emergency completely broken down. The potato failure came in 1846; and in exactly the same manner as the proprietor of an encumbered estate found the narrow margin of his income which remained, after the annual charges had been paid, suddenly disappear beneath the pressure of the times, so did the unfortunate tenant-farmer of Ulster discover, when too late, that it was no longer possible for him to pay from the margin left, after the landlord's rent had been deducted, the interest of the debt, which at the commencement of his occupation he had contracted. My Lords, since 1846, upwards of sixty tenants have left my estate: in nine cases out of ten, these unfortunate persons were driven to the wall, not by any proceedings on my part, but in consequence of the persecution of those creditors from whom twenty, thirty, or forty years before they had borrowed the purchase-money to pay for their farms, and between whose prosecutions and themselves they actually entreated me to interpose my prior right of distraint.
Such, then, my Lords, was the famous custom of the Ulster Tenant-Right. I have dwelt at some length upon it, as being anxious to confute the monstrous misrepresentations of which it has been the subject, and to show how untenable are the pretensions which have sometimes been founded on it.
But, my Lords, at the same time, bad 46 and unfortunate as the results of such a practice may be, I trust—I am sure, this House will have impartiality enough to perceive, that the difficulty for which the custom of tenant-right was a clumsy and ineffective remedy, still exists, not only in Ulster, but all over Ireland; and we must remember, my Lords, that it is not for a mere province, but for the whole island, that we are going to legislate, and that the very fact of a necessity having arisen for revising the body of laws by which the relationship of landlord and tenant are regulated, compels us more inevitably to deal with this difficulty, and to recognise this element in the case. For, my Lords, however we may argue in the abstract, the actual state of things is simply this—within the last few years, most of the occupiers of land in Ireland have spent large sums in executing improvements of a permanent character on their farms, on the strength—not of a contract, into which no opportunities were given them to enter—but on the faith of a custom established and acted under with the consent of the landlord, or else on the faith of that semi-feudal feeling, which, till the famine swept the old world away, made each respectable tenant feel sure that he would be allowed to remain in the uninterrupted enjoyment of his land and the improvements he had introduced upon it, until he should have had opportunities of reaping a profit from his investments. The question, then, that I would venture to submit to your Lordships is simply this—Ought not, under these circumstances, something be done to secure to the outgoing tenant the repayment of so much of his money sunk in the improvements of his farm, as the value of those improvements may justify, the return which he may already have obtained from them during his occupancy being fully allowed for? How, otherwise, my Lords, can we hope to remedy the present disjointed system? Shall the landlord, as in England, be called upon to make the improvements? My Lords, unless each proprietor has a million of money, and a heart of stone—unless he is content to make his estate a tabula rasa—unless he has the courage to reduce the number of his tenants from 2,000 to 200, the English system could not be introduced during the next half-century into Ireland; and I confess I am not altogether an ardent admirer of that spirit of improvement not entirely unknown to history—Solitudinem faciunt, et pacem appellant.
47 By legalising the custom of tenant-right?—I think I have said sufficient to show how impracticable would be that remedy.
By leaving things as they are, and trusting to the good feeling of the landlords to leave the tenants in the uninterrupted enjoyment of their improvements, and to see that justice is obtained on the expiration of their tenancy?
My Lords, I am perfectly aware that such an alternative would be the one most congenial to this House; your Lordships, judging by your own feelings, by your own sense of honour, reflecting on what is your own practice on such occasions, will have difficulty in conceiving the possibility of such injustice being perpetrated as that against which I believe it is necessary to guard. But, unfortunately, my Lords, your Lordships are not the only proprietors in Ireland; there are men possessing property in Ireland, in whose honour, in whose sense of justice, in whose compassion, I, for one, my Lords, have no confidence whatever. Why, my Lords, doubtless, none of your Lordships would have acted after this fashion:—The proprietor of a large estate in the west of Ireland, from which he is a constant absentee, received a communication from his agent to the effect, that the harsh and rigorous measures of which he had become the unwilling instrument had resulted in his receiving several threatening letters, and that, therefore, he wished to know what, under these circumstances, he was to do;—the poor gentleman wrote in great trepidation, for in those times, and in that part of the country, a threatening letter was a document pregnant with meaning. In reply, the principal dates from his club in London this Spartan response:—"Sir, you will have the goodness to make the tenantry on my estate clearly understand, that their shooting you will not have the slightest effect in intimidating me." Now, my Lords, although I do not suppose any of your Lordships would have been disposed to exhibit this kind of vicarious courage, yet, because your Lordships are disposed to do justice, and more than justice, to your tenantry, it is no proof that others may not be capable of performing acts of baseness, which this House may, perhaps, conceive to be incredible. Moreover, my Lords, in matters of business, it is best for all parties that as little as possible should be left to what is called good feeling. A statesman should take it for granted, in regulating the relation of par- 48 ties having conflicting interests, that each man is likely to insist upon whatever he is legally entitled to, without too conscientious a consideration of the equitable claims of others, and, therefore, in my opinion, it is best for all parties that the tenant should have some more tangible security than an indefinite custom, or a tacit and too easily violated understanding.
My Lords, during the course of this debate, frequent allusion has been made to the state of transition in which Ireland now finds herself; this state of transition has been adduced as a reason why we should not interfere. My Lords, I would insist upon the fact of our being in a transitory state as one of the most urgent reasons which renders interference absolutely necessary. A great change is taking place in the proprietary of Ireland; and though an understanding did once exist between the landlord and his tenant, this understanding is no longer sufficient to afford to the tenant the required security.
Old families are disappearing—new men have purchased their estates, with business-like habits and advanced views respecting the management of property—who look, as they ought to look, to making their estates pay. Pharaohs are everywhere rising up who know not Joseph—who cannot be expected to consider themselves bound by such tacit and unusual understandings—who naturally will consider no claims but what are guaranteed by parchment and law—and who must be expected at once to deal summarily with all interests, claims, &c., in support of which the tenant can only plead an ill-defined, ill-understood custom, or the careless good-natured assurances given by one, who was some time, indeed, his landlord, but has since himself become a ruined outcast on the face of the earth.
The argument, then, which I would venture to urge in support of the tenant's claim for legislative interference, is simply this: from circumstances, over which the tenantry of Ireland had no control, and for which they were not responsible, it became necessary for them to execute improvements on their farms of a permanent character, without being able previously to protect themselves by any adequate contract. To a certain extent, however, a degree of security, almost tantamount to that guaranteed by a contract, was afforded to them by an understanding or custom, which, though differing in its modus 49 operandi in different parts of Ireland, was, nevertheless, in one shape or another, almost universally prevalent.
Latterly, however, in consequence of the great revolution, and the breaking up of the old state of things which has taken place, these semi-feudal and ill-defined understandings, which once existed between a former race of landlords and their tenants, is no longer found to give the necessary security, and the tenantry are, therefore, anxious to substitute for an equitable right under an uncertain custom, a legal right under a definite law.
In order to meet this case, then, my Lords, I have ventured to lay upon the table of this House a Bill, whose operation is solely confined to the past—whose sole object is to effect a settlement with regard to the past, in order to pave the way for the introduction of a sounder system for the future. The only sure foundation upon which the relationship of landlord and tenant ought to depend, is the foundation of contract, and, therefore, the character of this Bill is simply retrospective: it recognises as a principle, that with the effluxion of time the tenant's interest in his improvements doth necessarily lapse; and that the duration of the term over which a claim for compensation may run, should vary with the class of improvements for which compensation is claimed.
I feel that I ought to apologise to your Lordships for occupying your attention at so great a length, but I am sure this House will look with indulgence upon what has been only an attempt to fulfil that which I considered a duty.
THE LORD CHANCELLOR
said, he did not wish to trespass for any time on the attention of their Lordships, but he rose to say a few words in consequence of an appeal which had been made indirectly to himself. His noble Friend on the cross benches (Lord Monteagle) had made an appeal to those Members of their Lordships' House who were commonly called the "law Lords," to take care that nothing was done in these Bills which would lead to the perpetration of private injustice. It was not more certainly, though perhaps more obviously, the duty of those noble Lords who owed the honour of their seats in their Lordships' House to the share they had taken in the administration of the law, to watch over such measures, than it was the duty of the rest of their Lordships; for himself he could only say that, unless he was satisfied 50 that there would be nothing in the Bills when they had gone through the ordeal of the Committee calculated to do injustice, he should feel himself bound to oppose the second reading. He felt satisfied that no injustice need be done. He was quite at issue with his noble and learned Friend the Lord Chief Justice when he said that a compensation Bill must be either unjust or absurd. It must be absurd, the noble and learned Lord said, because, if there were no contract, the tenant might be turned out at a moment's warning; or unjust, because if there was a contract they would make people pay for that in respect of which no agreement was made. He agreed with his noble and learned Friend that great benefit would arise if the relations of landlord and tenant in Ireland were always founded upon clear and well-defined contracts. The true mode of legislating on this subject, as well as the most safe and efficacious, was to give the greatest facility for contracts, and the greatest facilities for enforcing them. When that was done by Parliament, Parliament had done nearly all which legislation could effect. He thought his noble and learned Friend kept one point out of mind when he asserted that any enactment for prospective compensation must be absurd where the parties had not contracted to that effect. It was this—that when people entered into contracts they rarely foresaw all the contingencies that might arise. The relations of life presented many such instances, and particularly in those between landlord and tenant, and therefore in numberless instances the law laid down what should be the relation between parties in the absence of express contracts. He might refer, amongst other things, to what were called in law "emblements," and to the customs of the country. These were admitted in different contracts, and depended upon a variety of conditions; so that, in view of them, he could not agree with his noble and learned Friend that there was any absurdity in making provision for prospective compensation where the parties had not stipulated for themselves. Retrospective compensation stood upon a very different footing; and he confessed he looked upon this portion of the noble Earl's measure with some trepidation. At the same time, he did not pretend to say there might not be cases in which it might not be just that some such compensation should be made. In particular 51 districts, for example, or at particular places, the custom might prevail so commonly that it would be an injustice not to permit it to be enforced. But the noble Earl's measure went a great deal beyond what was just. In conclusion, he had no hesitation in agreeing to the second reading of these Bills, not meaning thereby to pledge himself to do anything calculated to do injustice. The objection of injustice applied mainly to the Landlord and Tenant Bill. As to the power proposed to be given to tenants for life by the Leasing Powers Bill, he could not admit that the question of justice or injustice applied, because every country had a right to say the land should be held and enjoyed under such regulations as were best adapted to the social wants of the community. Once establish that it would be for the social interest of Ireland that extended powers of leasing should be given, and no man would be permitted to enter into contracts which would militate against the general interest. He had authority from Lord St. Leonards, who was unable to attend, to say that, though he was a party to some of the Bills before the House, yet he wished to guard himself against being understood to support anything in them that might be found to be inconsistent with strict justice.
§ Motion agreed to; Bills read 2a; as also Law of Landlord and Tenant (Ireland) Bill, Powers of Leasing (Ireland) Bill, Tenants' Improvement Consolidation (Ireland) Bill, Compensation for Tenants (Ireland) Bill; and Bills referred to a Select Committee.
§ House adjourned to Thursday next.