THE DUKE OF ARGYLL,
in moving that the house go into Committee upon the Law of Landlord and Tenant (Ireland) Bill, said, he thought it would be more respectful to the House to make a short statement of the manner in which this Bill and the other Bills on the same subject, had been dealt with by the Select Committee to which they had been referred. The House would recollect that when the second reading of the Bills was moved some weeks ago, a strong feeling was expressed by several Members on both sides of the House with respect to some portions of them. He could now sincerely say, after the discussions which had taken place in the Select Committee, that while on the one side there was a firm determination to maintain that great doctrine in regard to property on which must depend all agricultural and other improvements, on the other, an earnest disposition was shown not to let any pedantic adherence to the abstract principles of right stand in the way of substantial justice. There were no less than eight bills referred to the Committee, but some of these were duplicates of others. The plan adopted by the Committee in respect to two of these Bills, the Law of Landlord and Tenant 514 Bill and the Leasing Powers Bill, was to take these Bills and to endeavour to engraft upon them the improvements which were suggested in the other proposed measures. It would be recollected that the whole discussion in that House had arisen on the clauses relating to compensation; but it would be a great mistake to suppose that there was nothing important in the Bills except those clauses. For his part he unreservedly adhered to the great fundamental principle that the relation of landlord and tenant ought to rest solely upon contract, and that any invasion of that principle would be injurious to one or the other of the parties. But at the same time it was evident that it was perfectly consistent with a firm adherence to this principle to make legal enactments to provide for cases where there was no agreement, or where the agreement was silent. Under the existing law of fixtures, all houses or permanent buildings erected on the soil belonged to the proprietor of the soil, even although built by a tenant at his own expense. In 1851, an Act was passed which operated a material change in this state of the law. By the provisions of this Statute, which extended to England, Scotland, and Ireland, a landlord might empower a tenant, by written agreement, to erect houses at his own cost, to be paid for by the landlord at the end of the lease, if he should so choose, or to be taken down and removed by the tenant at that period. This was the principle on which the Landlord and Tenant Bill was founded. It was simply a re-enactment of the law of 1851. But the question naturally occurred, can you do nothing to extend this fair and legitimate principle to the case of tenants who have already erected houses at their own expense and with the consent of the landlord? He admitted that there was some difficulty in dealing with ex post facto legislation, but there were circumstances in this particular case which were worthy of great consideration. It had been sometimes argued, and with perfect correctness, that there was a very rapid change going on in Ireland in regard to the relations between lnndlord and tenant—and that the habits which had obtained during the previous generation were now happily on the wane. Time conclusion was, that the agitation on the subject of the relations between landlord and tenant was likely to subside, and that there was therefore no necessity for dealing with that subject for the purpose of soothing that agitation. 515 He should never recommend their Lordships to adopt any Bill for the mere purpose of calming agitation; but he would ask them, whether the facts which had now been referred to with regard to the change in the relations in question did not lead to a different conclusion? He believed it was universally admitted that the previous habit and practice in Ireland was not that the landlord should build at his own expense, or should share the expense with the tenant, but that buildings should be erected at the sole expense of the tenant. That practice was now changing rapidly, and it was becoming the system that the landlord should erect the buildings at his own expense, or by a mutual agreement between the landlord and tenant as to how much each should pay. He greatly rejoiced at this change; but in the process of the transition immense hardship was likely to arise to the existing tenantry. Many tenants who had erected buildings at their own expense would be left exposed to sudden evictions without any compensation whatever, and this might be more rapid in consequence of the change itself. He thought it was a point of policy to endeavour to ease that period of change—to endeavour to provide for the case of tenants who had erected buildings under customs which were now passing away—some principle under which, during that period, tenants might be compensated for any sudden change. This was the principle on which the clause had been drawn up by the Committee, and a certain retrospective action given to it. The principle was that, where tenants had erected buildings solely at their own expense, those buildings were to belong to the tenant, and might be removed by him at the termination of his tenancy, subject to a right of purchase on the part of the landlord. Great caution had been used to prevent any abuse of this principle. When the Landlord and Tenant Bill came up to their Lordships' House, the principle that buildings erected by a tenant should belong to him was adopted; several Members of the Committee, however, started the objection that where a tenant under a long lease had erected buildings he was amply compensated by the length of his enjoyment, and that in such cases it would be unjust to oblige a landlord, who, perhaps, bad been kept a long while out of possession of his land, to purchase the buildings which might have been erected. Even as the clause stood when the Bill came up to their 516 Lordships' House, it stipulated that a certain length of enjoyment should compensate a tenant who had erected buildings, but the period of enjoyment was not specified—it was to be determined by the judge before whom the particular case should be brought on a view of the whole circumstances. Taking into consideration the various objections which were made, considerable modifications had been made in the Select Committee to whom the whole of these Bills had been referred. He would briefly state to their Lordships what was the principle of the retrospective clause as it now stood. A list of cases had been drawn up, in which, firstly, all claim on the part of the tenant was absolutely barred; and in the second place, another list of cases, where, though not absolutely barred, his claim was limited. His claim was absolutely barred, first, where the houses had been erected in pursuance of any agreement with the landlord; second, where they had been already compensated for by allowances or abatements of rent or in any other way; third, where they had been erected in violation of any covenant; and lastly, where they had been enjoyed for twenty-one years. Again, the tenant's claim to compensation, though not absolutely barred, was yet limited in amount, first, by the value of the building to the soil, as tested by the willingness of the landlord to purchase; second, by the length of the period of enjoyment within twenty-one years—his claim, for instance, would be nearly exhausted if he had enjoyed the buildings for nineteen years;—lastly, the claim would be abated by evidence brought forward by the landlord of compensatory advantages and profits gained by the tenant, and also by claims for arrears of rent and dilapidations. These were the principles upon which the compensatory clauses were founded; and the Select Committee, after having considered the Leasing Powers (Ireland) Bill, directed their attention to the Tenants' Compensation Bill; but, having just adopted one principle, they could hardly go on and adopt another and a different one. The Tenants' Compensation Bill had been originally introduced into the House of Commons during the administration of the late Government, by Mr. Napier, and there was at first a very considerable list of improvements specified—improvements, not only above the soil, but also under the soil, for which compensation might be claimed. By the time, however, 517 that that Bill came before their Lordships, that list had been materially changed, and the improvements under the soil had been totally excluded. The Committee did not think it necessary, having approved of the Bill regarding buildings, to have a separate Bill on the subject of roads and fences. These were the general principles upon which the Committee had dealt with these Bills, and the result of their investigation had been that they had reported in favour of the Landlord and Tenant Bill, and the Leasing Powers Bill, and against the Tenants' Compensation Bill.
§ House in Committee.
§ On Clause 1,
THE MARQUESS OF CLANRICARDE
congratulated their Lordships, and more particularly those noble Lords connected with Ireland, that they had escaped from the hasty and crude legislation that had been proposed last year, and which might have passed into law but for the prudence and discretion which the Government had evinced. He wished in the next place to bear witness to the fair and conciliatory manner in which the Government, and more particularly the noble Duke who presided over the select Committee, had entered into the consideration of the question. It would, he was bound to say, have been impossible to deal with the subject in a more candid or more impartial manner; but, he was sorry to say, that he was compelled still to object to these Bills on account of the principle on which they were founded, which he believed to be essentially mischievous. The principle of these Bills would violate every contract, every deed or instrument, every agreement, written or unwritten, with respect to landed property throughout Ireland. He did not mean to say that the mischief done would be extensive, because the principle was so emasculated that it would be inoperative; and the Select Committee, apparently aware of the mischievous nature of the principle, had so framed the Bills that but little injury could result from them. With regard to the Leasing Power Bill, it showed a total disregard for settlements and deeds affecting land and landed securities in Ireland. It was said last year that in Ireland every settlement, every mortgage, every judgment stood in the way of making leases. Now, if that statement were true, he would adopt it at once as a ground upon which to object to the principle of this Bill, which would affect the securities upon which persons had ad- 518 vanced money. For every one of these settlements there was valuable consideration given; every mortgagee who stood in the way of a lease had advanced his money on the land; every judgment entered against the land in that country was entered by persons who had advanced their money on the security of the land, and if they overthrew the securities which fenced every mortgage, settlement, and judgment, they would effect a change which should not be made unless there was reason for it. On the whole, throughout Ireland, there had been infinitely more mischief done by long leases granted years past than good prevented by the want of leasing powers. But the Landlord and Tenant Bill contained a principle which he thought was even more vicious, and would violate every contract and every lease in Ireland. It was herein held that a tenant should receive compensation for buildings which he might erect at his own expense; but he could tell their Lordships that tenants in Ireland were not the fools they had been represented to be, and that there was no such thing as a tenant building proper houses at his own expense, except upon some specified understanding with the landlord, or without a lease proportionate in value to the sum he laid out. It was a dangerous principle to pass an Act, which would make what was the property of one man on one day the property of another man on the next day. But even if its principles were not so dangerous as they were, he objected to these Bills as being contrary to the spirit which had prompted all their legislation during the last fifty years. They had no precedent for this kind of legislation in any country in the world. Let them go to the Lowlands of Scotland—let them go to the midland counties of England, and try and ingraft the English or Scotch law upon that of Ireland, instead of introducing a new system such as never had been applied to any country at all. He acknowledged that the feelings and habits of the population of the two countries were to some extent different; but how were they ever to make the ideas and habits of the inhabitants of different parts of the empire alike except by the establishment and working of similar laws? How had Parliament acted with regard to the Irish Church and the question of tithes? Did they say that the feelings of the people of England and Ireland were so different that they would legislate differently upon that subject? No! 519 Though there was some slight difference with respect to the treatment of English and Irish tithes, Parliament had kept in view the main question, that the grant to the Established Church in Ireland was a grant to the Established Church of England and of Ireland, and they had bound the land to support that grant. The same course had been followed as regarded the Irish Poor Law, because Parliament said it was desirable and necessary to assimilate the law of Ireland and the law of England on account of the increase of communication between the two countries and the general assimilation between their respective legislation. Yet, at this time, when the intercommunication between England and Ireland was most frequent and most rapid, when the ideas of the two people were more blended together, when the system adopted in the one kingdom was better understood in the other—the Government chose to introduce into Ireland a principle entirely different to any principle which they had ever adopted for any part of Great Britain. The noble Duke had referred to the proceedings of the Select Committee appointed to consider this subject; but he (the Marquess of Clanricarde) thought their Lordships were legislating very much in the dark at the present time. The Select Committee had refused to go into evidence with respect to the supposed necessity for any legislation on the subject, although once or twice he had ventured to whisper the proposition, that it would be highly desirable to have evidence as to what changes were really wanted in the law of landlord and tenant in Ireland before proceeding to consider that subject. Upon this a noble Lord had said, "Why, that would be making us a Committee on the state of Ireland." Well, that was exactly what he wanted; this point was exactly what their Lordships did not know, and what not one of them could tell him. When they talked of the Devon Commission and the Commission of 1834, they might just as well talk of the Doomsday Book; because the whole state of things described by these Commissions had passed away, and because, although the individual landlords and tenants were not everywhere changed, yet their management and the relations between them were entirely altered. He was very frequently in Ireland, and was in constant communication with persons engaged in the management of lands and estates and matters involving the 520 law of landlord and tenant; but he ventured to say that, if he had to explain to their Lordships the general system which prevailed throughout that country at present, he should find himself at a total loss. At all times the customs were different in different parts of the country, and never had there been such a difference as at this moment. There were just now a great number of new proprietors, with large capitals, who had introduced different systems to those previously known in Ireland; a total change was going on; emigration had not yet stopped; the demand and supply of labour were not regulated; there was, again, he feared, too great a demand for land; to the most casual observer things were in a transition state in Ireland; and yet Government brought in a Bill which was intended to give a new and permanent tone to the relations between landlord and tenant, and containing monstrous principles, which were carried out so weakly that they would have no effect at all. He did not deny that there were improvements in the Statute law which might be wisely made, but they were all of a nature which would be better touched upon in a Petty Sessions, or a Summary Jurisdiction Bill, such as he had had the honour to pass through this House, but which was rejected by the other House of Parliament last Session. He had not ventured to frame the schedules of those Bills, but they would recollect that his Bill was intended to be an entirely new code. Now, the present Bill professed to be a Bill to consolidate the law of landlord and tenant in Ireland. He believed that there were no less than 200 Statutes in existence on that subject, while these Bills repealed only 39 Statutes, and partially repealed—that was, repealed different sections in—25 other Bills. If this calculation were correct, no fewer than 161 Statutes would remain added to the two Bills which their Lordships were called upon to pass as the consolidated law. According to another calculation made, there were 160 Statutes in existence upon the subject, which would leave only 121 Statutes when these Bills were passed. This could not be called a consolidation of the law, and its only result must be to make the law more confused. The noble Duke who introduced the measure did not state any reason for the Bill except in reference to one clause, which it might be thought would operate injustice, and which he thought it necessary to defend; but the 521 real reason, he believed, was stated by the noble Duke (the Duke of Newcastle) who introduced the four Bills which were before the house last year. It was stated, then, that a great clamour had been raised in Ireland by the Tenant League Association. Now, he must say that if Parliament wanted to promote agitation and anger, which did not prevail at this moment, these Bills were exactly calculated to produce that effect. At present there was no agitation on this subject in Ireland. A small knot of persons were indeed endeavouring to get up and keep alive an agitation; but it was quite notorious they had totally failed in doing so. There was no distress among the tenants, and no anxiety among the landlords, except to escape from the legislation of Parliament and to know what the law affecting them really was. He could imagine the fury of these persons when they saw the 37th clause of this Bill, by which Parliament acknowledged the principle of compensation without reference to lease or tenure—and then they gave the tenant a barren gift, for they said he might take away the walls and stones if he could not come to an understanding with his landlord. Such a clause would produce a great deal of vexatious litigation and a great deal of ill will. It was not true to say that the tenants of Ireland had been in the habit of building houses upon their land, as a general custom, without a lease. What had been the case constantly within his own knowledge was, for the landlord to agree with the tenant to give him assistance, and the house, where it was worthy to be called a house, was built conjointly by them. Of course there would now be litigation on this subject between the two; and the point in dispute as to by whom the building had been erected would be a matter of hard swearing, in which the long purse of the landlord would be pretty sure ultimately to prevail. He would not trouble their Lordships to divide upon the Bill; but there was one subject to which he wished to call their particular attention. If these Bills were sent down to the House of Commons now, it could hardly be supposed that there would not be some alterations made in them, and he trusted there would be a clear understanding that if the Bills were returned to this house at the close of the Session, any alterations—perhaps justly, perhaps erroneously made—were not to be hastily accepted without giving their Lordships full time for consideration. The Bills, such as 522 they were, would, he believed, be productive of mischief in Ireland, but they might be made much more dangerous Bills by a very slight alteration.
THE EARL OF WICKLOW
said, that so far from agreeing with the noble Marquess that it was a matter for congratulation that their Lordships had not at once agreed to consider these bills, he regretted that their Lordships had not entered into the subject when it was formerly proposed to them. He would infinitely prefer that the Bills should have been passed in their integrity in the manner they came to their Lordships' House, than that they should have been treated in the manner they were. The Bills were framed to give satisfaction to the country, and they had lost the opportunity of giving that satisfaction which they might have given in the course of the last Session. The noble Marquess had said, there was no agitation in Ireland on the subject, and he would tell him the reason—because the country was looking to their Lordships' decision upon the subject, and were waiting to see what measures Parliament would send to them. But let them reject these Bills and disappoint the expectations of the country, and then they would see whether there would be agitation or not. It was no answer to him to say there was no agitation; he cared not as regarded legislation whether there was or not; his object was, not to satisfy agitation, but to do what was right and just; and whether there was agitation or not, he trusted their Lordships would persevere in so doing. He was surprised at the conclusion at which the noble Marquess had arrived, for, although he had never heard a measure more strongly condemned than these Bills had been in the speech to which they had just listened, yet the noble Marquess concluded by saying that he did not intend to offer any opposition or to divide the Committee. He confessed that, after this, he was at some loss to understand the ground taken by the noble Marquess. If they could introduce into Ireland the practice of England and Scotland, no man would be more ready to join the noble Marquess than he would; but it was because the practice in those countries was so different from the practice in Ireland that they were bound to attend to the just petitions of the people of that country with regard to alterations of that kind. He had the gratification of telling the noble Earl opposite (the Earl of Derby) that those Bills were very similar to those 523 which his own Government had intended to pass, and he hoped the noble Marquess, through regard to the feelings of his Colleagues, would be disposed to give a favourable consideration to them. He was not very sanguine on the subject; but he trusted that these Bills would be received with favour in Ireland, though he could hardly anticipate for them a reception so cordial as would probably have hailed the measures of last year. He hoped that, considering the extensive alterations that had been made by their Lordships in the Bills that came up from the Commons last year, their Lordships would give a favourable reception to any alterations in the present Bills which the other House might feel it necessary to make. At any rate, he trusted that another Session would not pass away without these Bills being carried into effect.
§ LORD ST. LEONARDS
said, he thought it a matter of congratulation that the Bills of last Session on this subject had not been passed into law, because in their original shape they were open to many grave objections, and could not have received that careful consideration which the nature of the case demanded. The Government, therefore, deserved credit for postponing these measures, which, in their present form, had assumed a very different aspect from what they at first bore. To the first Bill, relating to landlords and tenants in Ireland, although he thought some of its details objectionable, he was ready to give his assent. He believed it would be a useful measure, by doing away with the vast mass of separate Statutes bearing on this question, and placing the whole law of landlord and tenant in Ireland on the face of this Bill. There was one clause, providing compensation to the tenants for past improvements, which was of a very serious nature, because it might be made the means of giving away the landlord's property. At the same thee he admitted that the question involved in the clause was one of very great difficulty as regarded the rights and interests of both the landlord and the tenant; and if this provision were adopted, it could only be adopted as a compromise. By giving way on this point their Lordships must break in upon a sound and acknowledged principle of legislation; and they must be prepared to look the evil in the face. They had been disposing of a vast extent of landed property in Ireland, amounting to millions, through the agency of the Encumbered 524 Estates Court, and they had invited persons to purchase land under the law as it stood when they bought the property; and now they proposed by ex post facto legislation to make the purchasers pay for the buildings and improvements upon that land. The Government of his noble Friend (the Earl of Derby) had certainly intended to introduce a measure of this kind. Now, he (Lord St. Leonards) never did agree to this principle, and never could agree to it; yet he admitted that necessity and expediency might compel them, at the sacrifice of abstract and individual principle, to give way to a certain extent, but beyond that limit he could not go. If they did not deal with the subject now, the evil would only be aggravated by delay, and therefore, although not at all agreeing with the principle of the measure, he would not oppose the passing of this Bill. The other measure, the Powers of Leasing (Ireland) Bill, was of a totally different nature, and there was no demand for it on the part of the tenantry in Ireland. He disapproved of nine-tenths of this Bill, and he said that, if it was a proper measure, it ought to be extended to England as well as to Ireland. To do justice to Ireland we must cease our partial and particular legislation for her, and treat her as an integral part of the same empire. There ought to be no difference between the law of property in Ireland and in England. Why should we give to Irish landlords powers not given under settlement, when we denied the same powers to landlords in England? He could not but see the contrast between what their Lordships were doing in England as compared with what they were about to do in Ireland. A noble Earl, a friend of his, a tenant for life, with an infant son who was tenant in tail, and a remainder over, actually possessed powers for granting building leases, and had acted upon his powers to a great extent; but when he wished to obtain some little extension of those powers, he had to come before Parliament Session after Session, and he experienced great difficulty in attaining his object. By the present Bill, however, it was proposed that every man who was a tenant for life, or for a term of years, although there were not two months of his term unexpired, should have powers to grant the following leases:—For agricultural purposes, 31 years; for improvement purposes, 41 years; for building purposes, without limit, 99 years; and for general purposes, 999 years. Thus the life tenant would have the power of giving 525 leases that would be most burdensome to his successors. Nobody asked for such extensive and dangerous powers in England, which had prospered as an agricultural country without them, and he saw no reason, therefore, why they should be conferred upon landlords in Ireland.
§ EARL GREY
said, they were now in Committee on the Landlord and Tenant Bill, and if they did not keep the two Bills separate in the discussion, they would never arrive at a satisfactory result. A debt of gratitude was due to the noble Marquess (the Marquess of Clanricarde) who had been mainly instrumental last year in preventing these Bills from being passed in their former state; for, having been a Member of the Select Committee which sat this Session, he (Earl Grey) was sure that in their original shape the Bills would have worked injustice, and have introduced principles of a most objectionable nature. They were much indebted also to the noble Duke who had presided over the Committee (the Duke of Argyll), for the great care and attention he had devoted to the subject. He (Earl Grey) admitted that for Parliament to interfere in the bargains of private individuals by ex post facto legislation would be a course attended with great danger; but he was glad to find that the noble and learned Lord (Lord St. Leopards), although objecting in the abstract to the principle of the Bill, even in its modified shape, yet agreed with him in thinking that, on the whole, under the circumstances of the case, there were sufficient reasons for proposing such a compromise as this. The Bill would have the effect of doing substantial justice, or rather of preventing a great deal of substantial injustice from being committed. The noble Marquess (the Marquess of Clanricarde) also admitted that the principle, although open to objection, was yet so guarded by checks, that it could not work any serious mischief; and he (Earl Grey) therefore trusted that this Bill would be at length passed into law.
would not oppose this Bill, although he disapproved of the objectionable parts of it that had been pointed out by the noble and learned Lord. The compensation clause was contrary to all sound principle, and not calculated to benefit agriculture; whilst, if acted upon, it was likely to sow discord and animosity between landlord and tenant, instead of fostering good feeling between them. He (Lord Campbell) must therefore be go- 526 verned by faith and not by reason in this instance; and whilst deferring to the high authorities in favour of the measure, distinctly wash his hands of all responsibility connected with it.
§ LORD BEAUMONT
said, this was a Bill involving the utmost difficulty, and calculated to effect a complete revolution in the relations between landlord and tenant in Ireland. Yet a Bill of that importance had been sent to a Select Committee where no law Lord attended to represent the Government, to guide the laymen who were Members, and who had, therefore, to settle all the nice points of law by themselves. Now that the Bill had come out of the Committee, how did the question stand? Why, almost every Peer who had spoken condemned its principle. They did not know if the Government itself adopted the principle of the measure. The whole case, in fact, was involved in such a mass of complexity and obscurity, and they were all in the dark regarding the origin of these Bills and as to who was answerable for them, that he (Lord Beaumont) wished to divest himself of all responsibility attached to recommending these Bills, which might be thrown upon him from the circumstance of his having been a Member of the Select Committee, and he was anxious that it should be understood that he had been no party to recommending them. Although he admitted the necessity for legislation, and that there were some very excellent provisions in these Bills, he would rather see these Bills thrown out and others brought in under the responsibility of the Government, under the care and advice of the noble and learned Lord on the woolsack; because then he (Lord Beaumont) might be able to say, like the noble and learned Lord (Lord Campbell), that he would vote for them by faith, and not upon his own reason.
THE LORD CHANCELLOR
thought it was somewhat irregular, when their Lordships were in Committee on one Bill, to discuss the principle of that Bill and of another measure which was not at the moment before them. The noble Lords who had spoken had, almost without exception, treated this Bill as if it had only one object—the enactment of the 37th clause—while the Bill contained no less than 140 clauses. Even assuming the 37th clause to be ever so objectionable, that was not the proper time for its discussion. He considered that this Bill was a most excellent measure, its object being 527 to consolidate, and to reduce into an accessible form, the laws relating to landlords and tenants in Ireland. He was unwilling, at that stage of the proceedings in Committee, to make any observations with respect to the objectionable clause—the 37th. He might remark, however, that no one could be enamoured of retrospective legislation. When such legislation was necessary, every one felt that it was a violation of general principles which nothing but the most urgent necessity could justify. The question was, then, whether in this case, such a necessity did not exist, and, if so, whether that necessity had not been met in the least objectionable mode, and to the least objectionable extent?
THE EARL OF CLANCARTY
observed, that the subject of this Bill was one which affected most seriously the interests of landlords and tenants in Ireland, and yet several Members of the Committee to whom the consideration of the question had been referred had successively expressed their opinions of the measure in terms which showed that it did not receive their cordial approbation. Even those who did recommend the Bill recommended it on the principle of a compromise. He had hoped, however, that when the Government came forward with a measure which called upon their Lordships to violate the great fundamental principle of property, it might have been advocated on more satisfactory grounds than as a mere compromise. He greatly regretted that the labours of the Committee had resulted in the proposal of a Bill with regard to which so little unanimity seemed to exist among the Members of that Committee; but he also felt bound to say that there was great ground for congratulation as to what had been done. There had for some time past been great agitation in Ireland as to the relations between landlords and tenants; and, although he believed the expectations of those by whom that agitation had been fostered had been egregiously disappointed, he thought it was a matter of congratulation that the agitation had led to the more general diffusion of information the subject. The Government itself had acknowledged that by withdrawing their Bill of last Session, which was nothing more nor less than a Bill for the confiscation of property. He trusted that their Lordships would not give their assent to the objectionable provisions of this measure.
THE EARL OF DESART
said, the state- 528 ment of the noble Marquess of the inoperative character of the objectionable clause, protected as it was by so many checks, would, cause it to be rejected from the Bill.
§ Clause agreed to; Clauses 2 to 36 agreed to.
§ On Clause 37,
THE MARQUESS OF BATH
said, he was anxious to address a few words to their Lordships with regard to this clause, which was the most important contained in the Bill, and deeply affected the interests of the landed proprietors of Ireland. The effect of the clause would be to enable the tenant to claim compensation from the landlord for buildings he might have erected on his farm, uncovenanted for by his lease and without the consent of his landlord. What was this in effect but taking the property from one man and giving it to another? That which was the landlord's to-day would, on the passing of this Bill, become the property of the tenant; and he appealed to their Lordships, therefore, whether this was justice or law. It was said that one consequence of the measure would be the immediate suppression of the agitation in Ireland for tenant-right, and that a small sacrifice was advisable to obtain so great a benefit. But if the injury to the landlord was really so small as had been represented, would not the advantage to the tenant be equally small? So far from preventing, he believed the Bill would encourage agitation—that it was a direct encouragement to the orators of the tenant league and the Popish priests to go forward in their advocacy of tenant-right. He thought that their Lordships, by accepting this clause, would destroy the only ground upon which a stand could be made in opposition to Socialism and Radicalism. But it was not too late, even at the present moment, to reject the clause upon the high principle which formed one of the greatest features in the English Constituion—respect for private property. Let the Bill, with this clause in it, become law, and it was not alone the landlords of Ireland that would suffer, for there was no argument that could be adducted in favour of the clause that did not apply with equal, if not greater force, to England or Scotland; and how, he should like to know, would the House receive such a measure for either of those countries? Indeed, the arguments for the introduction of such a clause would apply with double force in this country; for whereas in Ireland they 529 had a wretched, pauperised, unimproving, and unintelligent tenantry, here in England they had respectable, conscientious, and good men, with capital, energy, and industry, to cultivate the soil; and if there were any body of men deserving indulgence it was they, and not the Irish tenantry. But were noble Lords who talked of this Bill as if it would put an end to the tenant-right agitation in Ireland, aware of what that agitation was designed to attain? He had recently received a newspaper which contained the report of a tenant-right meeting in the county of Down, at which a resolution was unanimously adopted, setting forth, as the basis on which that agitation was founded, that whereas the land in Ireland was originally granted by the Crown to persons whose representatives the present landlords were, and all the improvements that had since been made on the land in that country had been made by the tenant with his capital and labour, and not with the capital or labour of the landlords, therefore the tenant was entitled to all the improvements and all the wealth that his capital and labour had created, whilst the landlord was entitled only to a rent-charge equivalent to the value of the property originally granted to him. He asked their Lordships were they prepared to assent to such a principle as that? They must pursue no middle course: Parliament must either take its stand on the principles of justice, of law, and the Constitution, or, by making such a concession as this, place fresh powers in the hands of the tenant-right agitators, who, he believed, would never rest satisfied until they had obtained the whole extent of their demands, which were the absolute confiscation of the land of Ireland. They would consider this Bill a mere trifling with their just rights, and as ridiculing their pretensions; but they would accept with joy the concession of the principle involved in this clause. It would be to them a justification for future and renewed agitation upon the same subject. And regarding the clause as fatal in its principle and disastrous in its results, he begged to move its omission from the Bill.
THE EARL OF DONOUGHMORE
admitted that the clause was indefensible in point of law, and opposed to the dicta which had long been regarded as sacred by noble and learned Lords in that House. But he denied altogether that it was contrary to justice. Nay, in his opinion, it was not only just, but scarcely just enough; 530 for it did not go the length he wished to see it, in securing to the tenant either the enjoyment or the value of the improvements he had effected without any consideration on the part of the landlord. It was a maxim of law that whatever was annexed to the freehold went with the freehold; but no man who nourished in his breast the principles of justice and equity but would admit that whatever a man had made or created by means of his own money, skill, and industry, ought to be his property. The endeavour of the Committee in drawing that clause had been to reconcile that principle as far as they could with the common law of the land; so strictly, indeed, had they guarded this principle, that his only regret was that it was so narrow that there were cases of justice and of right that it would not meet. His noble Friend (the Marquess of Bath) had alluded to the tenant-right agitation in Ireland. Now that agitation was generally admitted to be of two kinds, and proceeding from two different sources. One of these was promoted by the tenantry of the north of Ireland, the greater part of whom consisted of persons professing the Presbyterian religion, and the movement was headed in some measure by ministers of that faith. The other was set on foot by the Roman Catholic priests, supported by a not very large or respectable body of the farmers of the south and west. He quite agreed with the noble Marquess that no legislation regarding property which this House could ever sanction would satisfy the latter class of agitators. Their object was not to obtain justice or right for the tenant, but to give to the tenants who were members of their flocks such a hold on the land as to prevent emigration and keep them at home, and thus maintain their own power and influence; and that object could only be attained by making the landlord a rent-charger on his own estate, and giving perpetuity of tenure to the occupier. The other class of persons who agitated for tenant-right were of a very different character, and proceeded upon totally different grounds. They had vested their capital in the improvement of the soil upon a kind of customary right, the nature of which was vague, little understood, varied in different counties, and even in different parishes and towns, and was not recognised by law. That right, however, for a very considerable time, had had a substantial existence; and when the famine of 1846 occurred, and 531 Ireland was plunged into great distress, these persons fancied they saw that they had lost the security for their holdings. They, therefore, agitated, and he did not wonder that they did so, for the purpose of obtaining a legal recognition of this customary right. Now, this party, he believed, would be satisfied with the present measure, and for this reason—they knew that their claim had been solemnly submitted to a Select Committee of their Lordships' House, and that it had been carefully and conscientiously inquired into for a considerable period; and they would be satisfied that the customary right which they had enjoyed, and still enjoy, and which the Bill did not diminish, could never, from its very nature, be made legal. They would be satisfied at their Lordships having shown a disposition to inquire into the subject, and, seeing that a Select Committee had decided that it was impossible, with a due regard to the rights of property, to render that customary right legal, they would be contented with the clause which was now under their Lordships' consideration, and at once abandon the agitation.
THE EARL OF DESART
objected to the clause as being a violation of the rights of property, and as involving a sacrifice of principle without obtaining any good end. It seemed to him that the cases which had been spoken of where tenants had made large improvements under a vicious system were exceptional ones, and that they did not apply to that class of improvers who had recently done so much. Did their Lordships think that capitalists would lay out their capital upon land without taking advantage of those securities which the law allowed, or that they would wish for legislative interference? So far from it, he believed they would much rather be left to make their own agreements and contracts. A tenant who entered upon lands made a bargain, and knew exactly the circumstances under which he was placed, and he, therefore, acted on the knowledge that, after the expiration of the term of years during which he enjoyed his tenure, whatever he had built upon the land—houses, or fixtures of every kind—would be the property of the landlord. But by this clause they gave the tenant a sort of right over what he knew to be the property of the landlord. He thought they would gain little or nothing by the limitations in the clause, and they ran the risk, by in- 532 serting it, of increasing that agitation in which many persons in Ireland were only too anxious to embroil landlords and tenants. He thought a clause which armed tenants with powers such as this did ought not to pass.
Tim EARL OF WICKLOW
said, that, while he gave great credit to the noble Marquess (the Marquess of Bath) for the ability displayed by him in his argument, he was of opinion that the reasons advanced were insufficient to induce their Lordships to reject the clause.
congratulated the House and the country upon the conciliatory spirit in which this matter had been treated both by the house generally and by the noble Lords who opposed the clause. Though he could not entirely approve of this clause, he was prepared to forego his objections, and to consent to its remaining part of the Bill.
THE MARQUESS OF CLANRICARDE
said, he hoped that the noble Marquess who moved the Amendment (the Marquess of Bath) would be induced to withdraw it.
THE MARQUESS OF BATH
said, as it seemed to be the general wish of the House, he would consent to the withdrawal of his Amendment.
THE EARL OF CLANCARTY
said, that though the claim was not recoverable in law, he thought that an equitable claim rested upon the landlord for compensation in particular cases. He, however, thought that the practical operation of the clause would be one of injustice to the landlord. He also thought that the limitation as to time was an injudicious introduction into the Bill. From the time of the Devon Commission down to the present day there had been a damaging agitation carried on upon this subject, which was calculated to give rise to expectations in the minds of tenants which could never be realised. He denied that there ever was an attempt made to wrest from the tenants their legitimate rights.
§ Certain verbal Amendments having been adopted.
§ Clause, as amended, agreed to.
§ Clause 38 to 115 agreed to.
§ On Clause 116, which requires the landlord of cottier tenants to keep the dwelling-house in repair, and provides that in case such dwelling-house should, by the landlord's default, be rendered unfit for occupation, no rent or compensation for occupation during the time it was in such condition should be recoverable.533
THE MARQUESS OF CLANRICARDE
remarked, that by the terms of the clause, if a tenant wilfully put his house out of repair—if he knocked down half a chimney, or a hole in the wall, or took the door off its hinges for a dancing party—he could prevent the landlord from recovering his rent. He never heard before of such a clause being inserted in a Bill.
THE EARL OF CLANCARTY
thought the clause, if agreed to, might have a tendency to induce a tenant to commit wilful damage to the property of the land lord.
THE LORD CHANCELLOR
said, if the noble Earl had directed his attention to the next clause in the Bill he would have found, that so far from giving an encouragement to a tenant to commit wilful damage, it rendered him liable, if he did so, to summary eviction upon the order of two magistrates. These clauses of the Bill gave corresponding advantages and disadvantages. The landlord had more summary powers given to him than he possessed at present; and, on the other hand, before he could recover his rent, he must show that he had performed his duty in keeping the property in proper repair.
§ THE EARL OF MALMESBURY
thought the clause, if agreed to, would lead to extensive litigation.
THE DUKE OF ARGYLL
said, that the only object of the clause, and of the clauses immediately following, was to hold out an inducement to the landlord to keep his tenant's cottage in repair, by giving him, in case of need, a summary power of repossession.
§ On Question, their Lordships divided:—Content 17; Not Content 10: Majority 7.
§ Remaining clauses agreed to.
§ Report of the Amendment to be received on Monday next.