LAW OF LANDLORD AND TENANT (IRELAND) BILL. (Hansard, 26 May 1854)

THE EARL OF CLANCARTY
In rising to move the omission of the 37th clause from the Bill to which you have just given a third reading, I beg to assure your Lordships that I have no desire to impede legislation upon the important subject which gives the title to the Bill—far from it. I am, on the contrary, most desirous that the measure you are about to send down to the other House should be in all respects so framed as to commend itself to the acceptance of the representatives of the people, and to the approval of the country—that it should be commended as well by the soundness of its principle as by the beneficial tendency and practical usefulness of its enactments—not as a one-sided and partial measure, serving one party and not serving another, still less as serving or pretending to serve one party at the expense of another, but as a measure improving and simplifying in matters of detail the very important relations of landlord and tenant in Ireland. Some, I am aware, are of opinion that legislation is not desirable; that, agitation having passed away, and landlords and tenants drawing well together, the cultivation of the land every day improving, it would be better to leave things to take their course; but although the fact is happily so, and the argument has therefore considerable force, I am of opinion, nevertheless, that legislation on the subject may with advantage, and ought now, to take place. The attention of the public has now for the 991 last ten years been directed to the subject, and successive Cabinets have, by the introduction of Landlord and Tenant Bills. and by the declarations and pledges of leading statesmen, raised an expectation which the contents of these Bills in a great measure warrant that greater facilities and encouragement than at present exist can be and will be given for a beneficial occupation of the land in Ireland. It is undeniable that great labour and learning have been given to the subject by men of the highest legal eminence, and that the fruits of their, labours have, from time to time, been brought under the consideration of Parliament and of the public in a manner that, while it has tended to a better understanding of the question, has produced agreement upon many important matters relative to the future tenure of land; and I think that credit should not be withheld from those to whose labours we are indebted for the simplified form in which we are now enabled to deal with the subject. Such acknowledgment I consider to be especially due to my right hon. and learned Friend Mr. Napier. To him I think it is greatly due that the crude and wild legislation of the Tenant League has been made to give way to the consideration of measures more in harmony with the rights of property, and promising of more practical advantage to the community. To that learned Gentleman was assigned, when agitation was at its height, the task—one of no small delicacy and difficulty—of drawing up those Bills which are now in substance under your consideration. Although I could not concur in all that he proposed, neither can I overlook the fact that the opinions that then prevailed both in and out of Parliament, and that had been countenanced by the leading statesmen of both parties, in favour of retrospective legislation in the matter of tenant compensation, rendered it almost necessary, in order to a full consideration of the subject, that the question of retrospective legislation should be included. I regret that it was so, and hope that sounder views now prevail; but be that as it may, the whole subject has been dealt with by the learned Gentleman in a manner that acquired for him the highest commendations, including that of the noble and learned Lord the late Lord Chancellor of England (Lord St. Leonards); the confidence of both the late and present Government; and, lastly, the acknowledgment of the noble Duke (the Duke of Argyll) of the valuable services he had rendered to the 992 Select Committee, in the consideration of the Bills that are now before the House. Seeing, then, my Lords, that much real attention has been given to the subject, and that many valuable and well-considered enactments are embodied in those Bills, I trust they will become law. But while I desire to see enacted all that may be for the public advantage, all that the Committee has concurred in recommending as really desirable, I must call upon your Lordships to withhold your consent from that part of the Bill, the 37th clause, which involves a violation of a fundamental principle of property, by arbitrarily transferring, by a retrospective enactment, from landlord to tenant that which is at present the landlord's property, if he chooses to take possession of it. I do not say that it is not competent for the Legislature to interfere with private rights, if some great public object, not otherwise obtainable, should render such a step necessary; for it accords with the fullest respect for the rights of property to say, that the laws by which they are secured and upheld were framed, not for the advantage of individuals or of classes, but the benefit of the community. But the clause to which I object does not come recommended by any compensating advantage whatsoever, public or private. Now, although there are in this House many noble Lords of great learning and legal authority, I trust I may, without undervaluing their opinions, quote in support of my argument from the writings of Judge Blackstone, no mean authority on the principles of the law. He says in the chapter "On the absolute rights of individuals"— So great is the regard of the law for private property, that it will not authorise the least violation of it—no, not even for the general good of the whole community..… The public good is in nothing more essentially interested than in the protection of every individual's private rights as modelled by the municipal law. In this and similar cases the Legislature alone can, and indeed frequently does interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner, but by giving him a full indemnification and equivalent for the injury thereby sustained."—Blackstone, vol. i. p. 139. The authority of Judge Blackstone, I think your Lordships must admit, is clearly opposed to the 37th clause of this Bill. Further, my Lords, the clause is not in any way necessary to it, but rather calculated to create dissatisfaction with its other provisions. It purports to confer a boon 993 upon tenants in occupation by giving them a property in that which at present by law is the property of the landlord. The tenantry will naturally inquire, as I think the landlords have a right to demand, the reason of this arbitrary transfer of one man's rights to another; and the very fact that no reason has been, or can be given for it, will necessarily awaken suspicion in the minds of the tenantry, that the Bill must elsewhere contain provisions adverse to their interests to compensate for the injustice done to the landlord. Besides, the clause has been termed "a compromise," which would seem clearly to imply that there was a kind of bargain of mutual concession. But if the other clauses of the Bill be examined, I think it will be admitted that they have no partial action; certainly none in any degree adverse to the tenant's interests, but that the common advantage has alone been consulted. Why then damage the character of this Act by a wanton violation of rights! Has the Select Committee, in submitting this Bill for your consideration, pointed out any necessity for this objectionable clause? In the absence of any special Report in favour of a principle of legislation so much at variance with the principles which usually govern the councils of this House, your Lordships should, if you do not at once expunge the clause, at least inquire what are the opinions of individual Members of the Select Committee upon it. I do not think that you will find in their opinions, as far as we can judge of them, anything to warrant its retention in the Bill. The noble Duke who brought up the Report, while he explained the general character of the measure, and adverted in particular to this clause, appeared to me to guard himself against becoming in any degree the advocate of the principle it involved. He explained how, during the period of the late famine in Ireland, when so many had to give up their lands, they lost the benefit of the fixtures they had created upon them; he showed the propriety of the change that was made in the relations of landlord and tenant in 1851, with regard to fixtures, but made out no case to call for retrospective legislation upon the subject. The general tenor of his observations was altogether opposed to interference with existing rights; he would yield nothing to agitation, and would rest the mutual engagements of landlord and tenant upon the principle of contract. My noble Friend the late Postmaster General 994 (the Marquess of Clanricarde) was the next that delivered his sentiments, and certainly his opinion was not in favour of the clause. Language could not have been used stronger than that in which he expressed his reprobation of it. His opinion was echoed by my noble Friend the late Under Secretary for the Colonial Department (the Earl of Desalt), by the noble Baron opposite (Lord Beaumont), and by the noble Marquess on this side of the House (the Marquess of Bath), who moved, but afterwards withdrew, his Motion for expunging the clause. Then, my Lords, the sentiments of the two noble and learned Lords, who served upon the Committee, and in whose wisdom, learning, and discretion the House so much confided, for advising upon this landlord and tenant code, were given to your Lordships. The noble and learned Lord Chief Justice not only expressed his entire disapprobation of the principle of the clause, but declared his conviction that it would be unproductive of any good, and would rather produce division and strife between parties who are now drawing well together, and yet, with strange inconsistency, he declared that he should not oppose its adoption. The other learned Lord, the late Lord Chancellor, expressed his disapproval of the clause in language not less forcible, and of peculiar weight as coming from one of such high authority, but with like inconsistency recommended your Lordships to adopt it as "a compromise." Such a proposition, coming from such a quarter, I certainly heard with no little surprise, and with the greater regret as it appeared to have influenced the noble Earl opposite, the late Colonial Secretary (Earl Grey), whose disapproval of the principle of the clause was otherwise quite as decidedly expressed as that of any Member of the Committee. The noble Lord on the back bench opposite (Lord Dufferin), who, on the first introduction of these Bills to the notice of your Lordships, so ably explained the nature and evils of the tenant right system of the north, and who was, moreover, the proposer of one of the tenant compensation Bills which the Committee felt it necessary to reject, acquiesced in, but did not approve of, the clause in its details. And the noble Earl below him (the Earl of Wicklow), although equally dissatisfied with its details, gave the clause his support, as a concession to popular demand, regretting only that the Bills last year sent up from the other 995 House had not been adopted in their integrity. These two noble Lords, but these only, of the Members of the Committee I have noticed, must undoubtedly be regarded as the advocates of the retrospective legislation now proposed. Of the other Members of the Committee, as none addressed the House since the Report was brought up, we have not the advantage of knowing what exactly are their opinions on this clause; but of one we may with some certainty believe that he is opposed to it—I speak of my noble Friend on the cross-bench, formerly Chancellor of the Exchequer (Lord Monteagle), as he in the strongest manner denounced it, on the original introduction of the Bills; and if he had changed his mind, he would not have failed of explaining his altered views. Thus, my Lords, as far as the individual opinions of Members of the Committee can be inferred, from what they have addressed to the House, they are as nine to two against the principle of retrospective legislation; and yet the proposition is submitted to your Lordships' acceptance. The Committee, no doubt, thought that in discarding six out of the eight Bills referred to them, including the Bills under the specious titles of Tenant Compensation Bills, they had done much, and desired that the House should take its share of responsibility by dealing with the 37th clause of this Bill. It may be in your Lordships' recollection that I objected to the original constitution of the Select Committee, as including an undue proportion of English Peers, to the exclusion of the representative Peers of Ireland. I was answered that, although the Bills were exclusively Irish, the great object of maintaining the principles of private property in harmony in all parts of the United Kingdom, rendered it important that the Committee should be composed, in large proportion, of English Peers. Now, I would ask, are we to take it as the recommendation of this Committee or not, that we should interfere with vested rights? If such is the Committee's recommendation, I think, although unhappily we do not number any law Lords among the Irish Peers, that an exclusively Irish Committee might have dealt with the subject quite as successfully. But I find that, in noticing the opinions of the individual Members of the Committee, I have omitted that expressed by my noble Friend near me (the Earl of Donoughmore). He certainly stood up for the clause, and must be re- 996 garded as its most strenuous advocate; and if I could believe, with him, that it was to be defended upon the ground of justice, I should not object to it; that would be reason enough for its enactment. But where is the justice of it? Is there a wrong to be remedied? If so, your remedy is worse than the wrong, for, besides violating a principle, you inflict a wrong upon the landlord, and, in reality, confer no benefit whatever upon the tenant. What is the wrong for which this clause is proposed as a remedy? A tenant who has made improvements upon the land, without the consent of his landlord, has no legal right to recover his outlay if dispossessed. Well, he knew that before he made them. He, therefore, probably improved his farm, in full confidence in the equity and liberality, or in the good sense of his landlord, that he would not dispossess an improving tenant, or that, if he did so, he would compensate him for his outlay. If the landlord had not been confided in, the improvements probably would not have been made without the security of a lease, or the consideration of some abatement of rent, or other advantage. What wrong, then, is there done to any one by leaving the fulfilment of that covenant to take place as heretofore? Your interference is a wrong done to the landlord, and would not better the position of the tenant. It can only promise the harmony and mutual confidence, and good-will that subsisted between the parties; and the dispossessed tenant, instead of being freely compensated by the landlord for whatever improvement he may have made, will, by preferring his legal claim under this enactment, be left to his legal remedy, namely, of carrying away the stone, mortar, and timber, of which his house or other fixtures may have been constructed. Is not this a most unsubstantial boon to confer upon the tenant class; and will it not be regarded as a mere delusion by those whom you hope to satisfy with it? But, my Lords, there is a class of very humble occupiers by whom the operation of this clause will be severely felt—I allude to the very small farmers, the occupants of from four to sixteen acre farms, to be found for the most part in great poverty upon the encumbered and generally mismanaged estates that are being daily disposed of to English and Scotch speculators in land. With these new purchasers it is a very common practice to get up the possession of the lands, for the purpose of 997 creating large farms. Hitherto it has been the practice, when so doing, to make the outgoing tenant very full compensation for the value of the miserable dwelling that is to be taken down; but, under that clause of your Bill, the landlord who is thus desirous of clearing his lands will be enabled, if he pleases—and you should not afford him a legislative sanction for so doing—to tell the outgoing tenant that, by the tenant compensation clause of this Bill he is entitled, and at perfect liberty, to carry away the materials of his dwelling, but that he has no further claim. My Lords, for the tenants as well as for the landlords I would say that this clause ought to be omitted; and I would beg to remind my noble Friend that the clause he is defending is not part of his own Bill, which I considered in many respects, and especially with reference to the fixture clause, a much better one than this, but it is a clause exclusively retrospective in its action, and of no importance whatever to the working of the remainder of the Bill. I cannot but view it, my Lords, as a remnant of the worst fruits of the Tenant-League agitation—it is a compromise for popularity. But the popularity of this House can only be founded upon the respect with which your proceedings are regarded, upon your faithful guardianship of the great principles of our laws, and not upon any sacrifice of those principles. The House of Commons may be excused if, under the influence and pressure of popular constituencies, they propose concessions which sound judgment may not always justify; but you are not at liberty to do so. True, there were in the last Session Bills sent up to you, and to which your assent was asked, involving concessions to popular clamour that would have been in violation of private right, but that will not justify you in assenting to such concession. Popularity so earned is for you forbidden fruit. Adam was not excused when he said, "She gave me of the tree, and I did eat." Your Lordships should also remember that this is not a Government but a House of Lords measure. The Bill is not from the Cabinet, but from a Select Committee of this House. Let it not, then, go down to the other House with any unsound matter in it calculated in any degree to abate the respect with which the conservative character of your proceedings is commonly regarded. Let the obnoxious clause be struck out, and if the House of Commons is enamoured of retrospective 998 legislation where it is unnecessary, let it rest with them, and not with this House, to propose it. Hitherto improvements have been carried on by the mutual accord of landlord and tenant; it has, doubtless, not been a sufficient stimulus for improvement; but let not what has been done be interfered with, and let your legislation confine itself to a better provision for the future. I regret that it has not devolved upon some other noble Lord to advocate what I have endeavoured to recommend to your Lordships; but I trust your Lordships will, notwithstanding that they come front so uninfluential an individual, weigh the arguments I have taken the liberty of urging, in support of my Motion for omitting the 37th clause from the Bill to which you have just given a third reading.

THE EARL OF DONOUGHMORE
said, the Bill undoubtedly had many provisions —those particularly in relation to distress—which were highly favourable to the tenant; but neither could it be denied that it was a Bill also highly favourable to the landlords. He was not an advocate for compensation to the extent agitated by the Tenant-right League; but the tenant had by the existing law a right to protection; and, therefore, though in point of law the tenant had no relief, in point of fact he was protected in such a way that it was often worth the landlord's while to compensate him. The Bill placed the laws upon a fair basis in that respect. The present system inevitably led to great fraud; and it was only justice that something should be done to protect the tenant. If the clause were rejected, then the Bill would be regarded by the House of Commons as purely a landlord's Bill; as such it would certainly be rejected; and by that means the many valuable provisions which it contained would be lost for the present Session. He admitted there might be difference of opinion among the Members of the Select Committee; but their Report was the foundation of the measure.

THE EARL OF DESART
said, he certainly could not support the Amendment, though he was opposed to giving retrospective rights over any man's property without his consent. Having, however, witnessed the divisions, and listened to the deliberations of the Select Committee on the construction of the Bill, and having seen that the object of the Committee and the House was to arrive at a just and 999 equilable settlement of a question, which was considered, though erroneously, he believed, as agitating all Ireland, he was of opinion that they had conscientiously adopted the measure as being the best suited for that object. At the same time, however, the Committee had not neglected its duty; and in considering the 37th clause, which involved, most certainly, the dangerous principle of the Bill, they had fenced that principle round with safeguards which he hoped would be sufficient to obviate any evil results of a serious nature. He could not, therefore, support the Amendment, though he was bound to state that less agitation on the subject existed in Ireland than was supposed. In the southern and western districts the agitation on this question, notwithstanding the vigour with which it had been promoted and the auspices under which it had been conducted, had fallen flat upon the minds of the people, who felt that their interests were safer in the hands of their natural protectors than in those of agitators, in whom they could not place the same reliance. He hoped that if the safeguards with which the Committee of that House had felt it their duty to fence the clause should be diminished by the House of Commons, any Amendments with such an object would not receive the sanction or support of Her Majesty's Government. As regarded the north, he trusted that he concessions now made would have the effect of quieting the agitation in that part of the country, and that they would be received in the spirit of conciliation in which they were offered—with gratitude.