§ In the construction of the ninth section of the Land Law (Ireland) Act, 1887, the word "agricultural" shall he construed to mean agricultural or pastoral, or partly agricultural and partly pastoral.
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§
*LORD MACNAGHTEN moved to omit Clause 5. Of all those interested in the matter in the county from which he came, no one wanted the clause so far as he could ascertain; of the witnesses examined before the Morley Committee, one, and only one, expressed a desire for it. Of course, that might not be a sufficient reason for standing in the way of the Government, if they desired to "tinker harmlessly with the Act of 1881; but he was bound to say—and he said it with all the responsibility of a person occupying a judicial position—that if the clause were carried the whole of the town parks in Ireland would be destroyed. ["Hear, hear!"] He found his Amendment described in the Press that morning as utterly bad, and himself as a ringleader of people. He was not a leader of anybody. He did not know that he had any influence even with his friends. Indeed, it was with the greatest reluctance he intervened in the Debate. He thought a person in his position ought not to interfere in political Debates. But he did not think any man ought to desert his friends when he found them hardly treated. [Cheers.] Three conditions had to be regarded, as the Act of 1881 stated, in deciding whether a holding was a town park. It must be a holding, ordinarily termed town parks, adjoining or near to any city or town: it must bear an increased value as accommodation land, over and above the ordinary letting value of land occupied as a farm; and it must be in the occupation of a person living in the city or town or a suburb thereof, at the date of the passing of the Act. No doubt there was a good deal of dissatisfaction with the Land Act of 1881 for its provisions in regard to town parks. He did not think that anybody knew more about it than he did, for he was at the time Member for the county of Antrim, where the subject was a burning question. Of course, every shopkeeper in a town who had a little piece of land would have been very glad if the fee simple value of that land had been presented to him. But he pointed out at meeting after meeting during the elections of 1885 and 1886, when he stood successfully for the Northern Division of Antrim, that they must
1629
really consider the accommodation of their fellow-townsmen. It was then said that there were thousands and thousands of people who were ordinary farmers and who were kept out of the Land Court because their holdings were town parks. That seemed to him a very reasonable point to take, and he said at the time that if he ever got the opportunity he would do his best to amend the law. He thought it very unreasonable indeed that any bonâ fide farmer should be kept out of the Land Court because his holding was a town park. Well, in 1887, a Land Act came up from the House of Commons with a provision as to town parks, fixing a population limit. Everybody now admitted that that was a mistake. Their Lordships rejected it, and he moved the provision which now stood part of the Land Act of 1887 that a fair rent might be fixed, for a piece of land although a town park, if it were let and used as an ordinary agricultural farm. Next came the Morley Committee. The bulk of the evidence taken before that Committee was undoubtedly in favour of retaining town parks as they were now under the Act of 1887. The only gentleman who gave evidence before that Committee in favour of the action which the Government had taken was Mr. Justice Bewley, an excellent Judge, indeed, but not sound on the subject of town parks. At any rate, he was very unfortunate, He first adopted a population limit. He was overruled in that lie then expressed the singular opinion that the words their Lordships inserted in the Bill of 1887 had no particular meaning, and he was overruled in that. It was the case of "Macnamara v. Macnamara," which related to a town park at Ennis, which was a considerable town in County Clare. A Mr. Macnamara was the landlord. The tenant was a Mr. Talbot, who managed the town park in a peculiar way. He inaugurated a rotation of crops, simple, economical and remunerative. His holding was 10 acres in extent, and for that he paid £30 a year. Every alternate year, regularly, he let the town park in conacre or muck ground, as it is called in Clare. For every acre he got £6, so, for letting the land in alternate years he got double the rent. In alternate years he grew wheat on it. He had no manure to
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pay for, and was only at the expense of seed and labour. No doubt the system was profitable, for he continued it for a good many years. In process of lime he died, and his wife carried on the town park exactly according to the system of rotation he had followed. Then a country attorney named Macnamara picked it up—country attorneys generally picked up the best things going. [Laughter.] He did not carry on the same system. Apparently he had sheep farms in several places, and he used the town park to feed his sheep. The Act of 1887 was then passed, which was intended for bonâ fide, farmers, and he took his landlord into the Court, and the Sub-Commissioners promptly reduced his rent to £20 a year. They thought it was an ordinary agricultural holding, and had been used as such. The landlord appealed to the Chief Commissioner, and Mr. Justice Bewley also thought that was the ordinary way to treat an agricultural farm. Then the landlord appealed to the Court of Appeal, and he would read an extract or two from the Judgment of the Court, because it presented his argument more clearly and in better words than he could present it. Chief Baron Pallas, who was as sound a lawyer as could be found in Ireland or in England said:—
Neither is the user by Macnamara within the section unless we read the words 'ordinary agricultural farm' as capable of including holdings pastoral in their character. It is not possible to do that. In Section 58 of the Act of 1881 agricultural and pastoral holdings are distinguished from each other. That section is amended by Section 9 of the Act of 1887, and the two sections must be read as dovetailed into one another. It would unsettle foundations
That was an argument the Government did not pay much attention to nowadays. [Laughter.]
if we were to hold 'ordinary agricultural farm' in the amending section to include pastoral holdings when the amending section treats pastoral as distinguished from agricultural holdings. Reading the two sections together, it seems to me that the legislature has purposely omitted pastoral holdings from the later section. There may be good reasons for this. I can quite understand that land that afforded grass for a cow in the neighbourhood of a town and a tillage farm in the same locality should be subject to different incidents. However, we have nothing to do with the motive that actuated the legislature.
About the same time there was another case in which Lord Chancellor Walker
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and Lord Justices Fitzgibbon and Barry agreed. Lord Chancellor Walker expressed his opinion as follows:—
It will be observed that 'town park' in Section 58 is excluded, although it is agricultural or pastoral, or partly both, because if not such it would be excluded by other provisions of the Act, and further it was difficult to imagine any town park which does not, in the course of management, receive use similar to what a farm received. The growth of oats, feed of cattle, are the ordinary uses of a town park or farm, and when, therefore, the legislation in 1887 superadded to, found an exclusion from an exclusion, it must be assumed that they intended to describe a character of holding which would not only have the incidents already common to town parks, but be facts of its tenure and use, something different from the subject matter which was tenure and use with townsman accommodation which even the Act of 1887 carefully preserved. It may not be easy to give a definition of what is an 'ordinary agricultural farm.' The onus in each case is on the tenant to show his holding comes within the words, and I think it is impossible to leave out of sight all the circumstances, including the personalty of the tenant when you have to ascertain the character of the letting and use.
It would he impossible to find the intention which the House had in view when they passed the Act of 1887 Letter expressed than it was in these Judgments. Then came Mr. Morley's Committee. Two gentlemen on the Committee were not friendly to town parks. They persecuted them from beginning to end, and never began a series of questions about them without talking of the "vexed question," the "money question," the "very difficult question" of town parks. These gentlemen expressed themselves as unfavourable, as might have been expected, to the Act of 1887. He was not surprised that Mr. T. W. Russell did, because he was very angry when the House of Commons in 1887 adopted the section which their Lordships had sent down. Mr. Russell was a great advocate of temperance—in everything except the use of language. [Laughter.] For his own part he was rather fond of strong language, especially when it meant nothing. Mr. Russell declared in the House of Commons that if this section and another which they sent down with it were adopted, there would be a blaze in Ulster which would not be put out for a long time. The result was that there was not blaze enough to light a farthing candle. Let him tell their Lordships how the remnants of Mr. Morley's Committee went on after
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the most sensible members had left it, because they thought the proceedings of that Committee were not exactly in accordance with their opinions of fairness. The Committee in their Report made some very disparaging remarks on the Land Act of 1887. They said that it had given rise to further litigation, and then they came to this passage, which, he must say, was delightful reading to him. They said they had "spent some time in trying to reconcile the various decisions." It was rather the practice when he was a young man for Judges to employ themselves on that very futile operation, but for half-a-dozen intelligent laymen to spend much time in trying to reconcile the decisions of the Courts of Law seemed to be absolutely absurd. He did not forget there were some lawyers among the remnants of that Committee. There was his learned Friend Sir Robert Reid, but he was a wise man, and, so far as he could see, took very little interest in the proceedings of the Committee. He was not there half the time or anything like it, and was not there when this wonderful paragraph got inserted in the Report. He also did not forget that there was Mr. Healy, who was an extremely acute and able lawyer, but a deal too wise, he thought, to spend his days in a pastime of that sort. Besides, he was not by any means sure that Mr. Healy would consider it his mission to reconcile differences of any sort, either in decisions of law or in the section of the party to which he belonged. That being so he wanted to know what it all meant? It was rather hard to find words to protect bonâ fide farmers and exclude other people, but their Lordships in 1887 were successful. The Government now proposed to add words to the effect that in the construction of the 9th section of the Act of 1887 the word "agricultural" should be construed to mean agricultural or pastoral, or partly agricultural and partly pastoral. There were some people in that House, and he believed the noble Marquis was one, who objected to one word, which had a definite and known meaning in English, being declared by Parliament to mean something quite different. Why the Government should declare that agricultural meant pastoral he could not conceive. If the Government had any meaning at all in view, surely they could
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put it in ordinary English. The words partly agricultural and partly pastoral had no meaning, because every agricultural farm had grassland or pastoral land within it. It did not lose the character of an agricultural farm because part of it was in grass. They had had discussions that night about pastoral holdings, and he hoped he might be fortunate enough to learn what an ordinary pastoral farm of one or two acres was. He did not believe there was such a thing in Ireland. Fortunately or unfortunately for Ireland, agricultural farms were of all sizes. They had large farms, and farms not much above one acre or two acres. They had agricultural farms down to the smallest parcel of ground that a bonâ fide, farmer could cultivate, but they never heard in Ireland of an ordinary pastoral farm of two acres. The thing was absurd. It was for a person occupying a piece of ground of that sort, and for such a person only, that this clause was inserted. The framers of the clause had done what they had sometimes to do in rating cases, they had constructed what might be called a hypothetical tenant who lived in a a town, who had all the pleasures of a town, without anything else to do but occupy an acre or two of land outside where he kept a cow. Was there such a person? In nature or reason was it possible to find a man who lived without any occupation at all, except looking over a gate and watching a cow feeding on the grass? He did not think such a person was to be found, or that, if found, he would be a very desirable person. He thought he would be a man who would spend most of his time, when not looking at the cow, in the public-house, and he was quite certain, if their Lordships gave him the fee-simple of that farm, or more than the fee-simple of it, by admitting him to the Land Courts, the greater part of the purchase money would find its way into the pockets of the publican. He had looked at the evidence given before Mr. Morley's Committee in order to see whether there was any such person, and in the whole course of the evidence he had not been able to find one. It seemed to him the Act of 1887 provided for everybody who ought to be provided for. They would no doubt learn from the
1634
Lord Chancellor of Ireland where the particular cases were that this clause in the Bill was intended to provide for. He had searched everywhere to find such an instance, and he was bound to say he could not find a trace of it. This was, it seemed to him, a policy of attempting to tinker with a thing that had been settled to the satisfaction of everybody but those persons, of course, who desired agitation, and he implored their Lordships to strike out this clause.
§ * THE MARQUESS OF LANSDOWNEsaid he would merely state as clearly as he could what were the reasons which had led the Government to include this clause in the Bill. The noble and learned Lord told the House that a town park within the meaning of the Act had to fulfil three conditions—(1) that of proximity to a town or village; (2) that it must have increased value as accommodation land; and (3) that the occupier should be resident in the town or village or in the suburbs in 1881. Then came the Land Act in 1887, which extended the definition given by the earlier Act, and Clause 9 of that Act admitted to the benefits of a fair rent any holding which, although complying with the above conditions, was used as an ordinary agricultural farm, and with the other condition if it could be so admitted without injury to the development of the town. The question that arose was, what was the intention of the word "agricultural" in that Clause 9. He believed it was the case that it was interpreted by the Land Commission as meaning an ordinary farm—that was equivalent to what, in the language of the Land Acts, was described as a farm agricultural or pastoral, or partly agricultural and partly pastoral. The Court of Appeal held that the word "agricultural" was to be interpreted in the much more restricted sense, that an agricultural farm was to be held to be not an ordinary agricultural farm in the sense of the Land Acts, but a tillage farm. What had the result of that been? It was that a holding which, in other respects, fulfilled the conditions of a town park—a holding that was within what might for the sake of convenience be described as the town park zone—and was held by a bonâ fide farmer living in the town and used principally as a dairy farm or for 1635 grazing, was excluded from a fair rent. That distinction seemed to them an unreasonable one. Such tenants, if residing elsewhere, could go into Court and get a fair rent fixed, and the Government were unable to see why they should be, because they were within the town park zone, excluded from the benefits of a fair rent. There was one very important point to which he should like to call their Lordships' special attention. That was that, under the amended clause they proposed to introduce, the tenant could not be admitted to Court on an application for a fair rent if it could be shown that the land was necessary for the development of the town or for the accommodation of its inhabitants. That was a very important safeguard, which would be maintained in their clause, and with that safeguard he confessed he failed to see why there should be any serious objection to the clause which they had proposed. ["Hear, hear!"]
§ * LORD MACNAGHTENsaid it was very desirable that Parliament should lay down that that was the principal object in preserving town parks, but in an individual case the noble Marquess would readily believe that it was little or no protection whatever. He was sorry to see that the noble Marquess, in his attempt to construe an Act of Parliament, followed exactly the line which the Chief Commissioner and the Sub-Commissioner followed. In construing that Act, the noble Marquess struck out the most important word of the compound expression by which their Lordships pointed that these were to be reserved for bonâ fide farmers. If he treated language in that way when he proposed to construe it, he could not wonder that the noble Marquess arrived at the same conclusion as Mr. Justice Bewley—a conclusion reprobated by the Court of Appeal in very clear and distinct language. The noble Marquess pointed out that this definition excluded bonâ fide farmers from going into Court and getting their rents settled. Was there the slightest trace of any such exclusion? He had hoped the noble Marquess would have told him exactly the sort of person he wanted to bring in, but here again they were called upon to act in the dark and to tinker with settled Acts of Parliament on the belief of the noble Marquess and the other Members of the Cabinet.
§ LORD HERSCHELLsaid his noble and learned Friend's argument assumed that the judgment of the Court of Appeal was right and that Mr. Justice Bewley was wrong in saying that land held as an ordinary agricultural farm under the Act of 1877 was necessarily confined to a farm held for tillage purposes only, and that the words could not apply properly to a farm that was held for tillage and pasturage purposes.
§ * LORD MACNAGHTENI did not say anything of the kind. The noble Lord was not present when my argument was addressed to the House, and I do not wonder that he has not got an accurate notion of it.
§ LORD HERSCHELLsaid he heard his noble and learned Friend's speech just now, and he understood from him distinctly that that was the distinction that was drawn in the Court of Appeal, and that that was the ground upon which they reversed Mr. Justice Bewley.
§ LORD MACNAGHTENsaid they let Mr. Justice Bewley down very easily because they said he had not heard the argument.
§ * LORD HERSCHELLsaid that might be so, but their letting down Mr. Justice Bewley easily did not touch what was the point they were now discussing. He understood the question that arose was the proper construction of the words "an ordinary agricultural farm." The clause that was now objected to was one which said "agricultural shall be construed to mean agricultural or pastoral, or partly agricultural and partly pastoral." His noble and learned Friend proposed to leave out that clause, and the effect of that omission would be to assert that a farm which was partly agricultural and partly pastoral was not an ordinary agricultural farm.
§ * LORD MACNAGHTENsaid he endeavoured to explain that that was not so.
§ LORD HERSCHELLsaid that if he was wrong as to the effect, he did not understand why his noble and learned Friend was so eager to omit the clause.
§ * LORD MACNAGHTENsaid his noble and learned Friend would have heard him give the reason had he been present.
§ LORD HERSCHELLsaid that no doubt he was deprived of the advantage 1637 of hearing his noble Friend's speech, but he had got Clause 5 and he had got the Amendment, and he could see what the effect of the Amendment would be.
§ * LORD MACNAGHTENsaid his noble Friend had not followed his argument.
§ * LORD HERSCHELLwas not dealing with the argument, but with the clause, and the Amendment.
§ * LORD MACNAGHTENsaid he stated that the clause was very innocent to look at, but it required some knowledge of the Act, which he did not think his noble Friend possessed, to see the hidden meaning of it.
§ LORD HERSCHELLsaid it was difficult to deal with the hidden meaning, and he was only dealing with the obvious and natural and ordinary meaning of the clause. As regarded knowledge of the Act, he doubted whether any noble Lord had more knowledge of the Act of 1881 than he had. He could not see that the clause would do more than provide that an ordinary agricultural farm should include a farm which was not of tillage but was partly agricultural and partly pastoral. If that be the effect, was there anything wrong?
§ * LORD MACNAGHTENexplained that, before a thing was a town park at all, it must be either agricultural or pastoral, or partly agricultural or partly pastoral. That being the general definition, and the whole of the town parks coming under that definition, they must be agricultural or pastoral, or partly agricultural or partly pastoral, and then came the town parks section and took the words out. His noble Friend proposed at the end of the clause to put the words back again. The only person the Amendment could bring in was a person who was not a bonâ-fide farmer, and the intention of the House was that a bonâ-fide farmer, though holding a town park, should be admitted.
§ THE LORD CHANCELLOR OF IRELANDasked if it would surprise their Lordships to hear that this clause passed the House of Commons nemine contradicente. Nay, more, when a wider clause dealing with town parks was under the notice of the House of Commons his friend, Mr. Carson, picked out this particular part of it as being the part of the clause that he hoped would pass unanimously, because it was to cure what 1638 was regarded as a casus omissus by some people in Ireland. He trusted their Lordships would not assent to the proposition of his noble and learned Friend. To accept the Amendment would be an unwise and retrograde step in legislation.
§ * LORD MACNAGHTENsaid he had a letter from Mr. Carson in which that gentleman said:—
When I said in the House of Commons I had no objection to the word agricultural in the town parks section of the Act of 1887 being held to include pastoral, I was quite under the impression that the word pastoral had been omitted from the Act of 1887 by an oversight. The matter arose in the House without any notice. I have, however, now looked into the matter, and I think it is quite clear that in 1887, when the Legislature were admitting ordinary agricultural holdings, it was purposely intended to exclude grazing fields near the towns, and for this reason pastoral was omitted. I fear, if the Bill now before the House of Lords was not altered, it will in effect destroy the last remnant of town parks, and cause great inconvenience to those in the towns who require the pasture fields most frequently in connection with their business.He (Lord Macnaghten) read that letter in answer to what he would not call the sneer of his noble and learned Friend, but something approaching to a sneer.
§ THE LORD CHANCELLOR OF IRELANDI repudiate that, I used it as a perfectly legitimate argument. It was said in my presence that this was a part of the Bill that was non-contentious.
§ * LORD MACNAGHTENIt was in the early hours of the morning. [Laughter.]
§ THE LORD CHANCELLOR OF IRELANDI heard it at seven o'clock, before dinner. [Laughter.]
§ The Committee divided on the Question that Clause 5 stand part of the Bill:—
| CONTENTS | … | … | 77 |
| NOT-CONTENTS | … | … | 96 |
| DIVISION LIST:—CONTENTS. | |
| Halsbury, L. (L. Chancellor.) | Norfolk, D. E. Marshal.) |
| Devonshire, D. (L. President.) | Bedford, D. |
| Grafton, D. | |
| Cross, v. (L. Privy Seal.) | Marlborough, D. |
| Ailesbury, M. | Burton, L. |
| Bristol, M. | Churchill, L. [TELLER] |
| Exeter, M. | |
| Lansdowne, M. | Crawshaw, L. |
| Northampton, M. | Emly, L. |
| Salisbury, M. | Glenesk, L. |
| Harris, L. | |
| Pembroke and Montgomery, E. (L. Steward) | Herschell, L. |
| Iveagh, L. | |
| James, L. | |
| Lathom, E. (L. Chamberlain.) | Kenry, L. (E. Dunraven and Mount-Earl.) |
| Chesterfield, E. | |
| Clarendon, E. | Kensington, L. |
| Coventry, E. | Kenyon, L. |
| Cranbrook, E. | Kinnaird, L. |
| Dudley, E. | Kintore, L. (E. Kintore.) |
| Hardwicke, E. | |
| Jersey, E. | Lawrence, L. |
| Morley, E. | Manners, L. |
| Onslow, E. | Monkswell, L. |
| Romney, E. | Monteagle of Brandon, L. |
| Rosslyn, E. | |
| Selborne, E. | Penrhyn, L. |
| Spencer, E. | Ranfurly L. (E. Ranfurly.) |
| Stamford, E. | |
| Suffolk and Berkshire, E. | Rayleigh, L. |
| Ribblesdale, L. | |
| Waldegrave, E. [TELLER.] | Rosebery, L. (E. Rosebery.) |
| Rothschild, L. | |
| Llandaff, V. | Rowton, L. |
| Oxenbridge, V. | Saye and Sele, L. |
| Portman, V. | Sinclair, L. |
| Stewart of Garlies, L.(E. Galloway.) | |
| Winchester, L. Bp. | |
| Teynham, L. | |
| Ampthill, L. | Tredegar, L. |
| Ashbourne, L. | Tweedmouth, L. |
| Balfour, L. | Wantage, L. |
| Belper, L. | Welby, L. |
| Boyle, L. (E. Cork and Orrery.) | Wenlock, L. |
| Windsor, L. | |
| Burghclere, L. | Wolverton, L. |
| NOT-CONTENTS. | |
| Abercorn, M. (D. Abercorn.) | Vane, E. (M. Londonderry.) |
| Verulam, E. | |
| Annesley, E. | Winchilsea and Nottingham, E. |
| Bandon, E. | |
| Belmore, E. | |
| Caledon, E. | Bangor, V. |
| Carnwath, E. | Templetown, V. |
| De La Warr, E. | |
| de Montalt, E. | Annaly, L. |
| Essex, E. | Ardilaun, L. |
| Ferrers, E. | Bagot, L. |
| Fortescue, E. | Bolton, L. |
| Hillsborough, E. (M. Downshire.) | Brodrick, L. (V. Midleton.) |
| Ilchester, E. | Carew, L. |
| Kilmorey, E. | Carysfort, L. (E. Carysfort.) |
| Lanesborough, E. | |
| Lucan, E. | Castletown, L. [TELLER.] |
| Mayo, E. [TELLLER] | |
| Portarlington, E. | Chaworth, L. (E. Meath.) |
| Portsmouth, E. | |
| Rosse, E. | Cheylesmore, L. |
| Sandwich, E. | Clarina, L. |
| Clifton, L. (E. Darnley.) | Muskerry, L. |
| Clonbrock, L. | O'Neill, L. |
| Cloncurry, L. | Oranmore and Browne, L. |
| Colchester, L. | |
| Connemara, L. | Ormonde, L. (M. Ormonde.) |
| Crofton, L. | |
| De Freyne, L. | Plunket, L. |
| de Ros, L. | Ponsonby, L. (E. Bessborough.) |
| de Vesci, L. (V. deVesci.) | Rathdonnell, L. |
| Deramore, L. | Rathmore, L. |
| Digby, L | Rossmore, L. |
| Dorchester, L. | Saltersford, L. (E. Courtown.) |
| Dunalley, L. | |
| Dunleath, L. | Seaton, L. |
| Ebury, L. | Sherborne, L. |
| Fermanagh, L. (E. Erne.) | Shute, L (V. Barrington.) |
| Fingall, L. (E. Fingall.) | Silchester, L. (E. Longford.) |
| Grinstead, L. (E. Enniskillen.) | |
| Somerhill, L. (M. Clanricarde.) | |
| Hare, L. (E. Listowel.) | |
| Harlech, L. | Stalbridge, L. |
| Inchiquin, L. | Stanley of Alderley, L. |
| Kenmare, L. (E. Kenmare.) | Stanmore, L. |
| Sudley, L. (E. Arran.) | |
| Kesteven, L. | Suffield, L. |
| Kilmaine, L. | Swansea, L. |
| Leconfield, L. | Talbot de Malahide, L. |
| Macnaghten, L. | Tollemache, L. |
| Massy, L. | Tyrone, L. (M. Waterford) |
| Mendip, L. (V. Clifden.) | |
| Middleton, L. | Ventry, L. |
| Minster, L. (M. Conyngham.) | Wemyss, L. (E. Wemyss) |
| Monck, L. (V. Monck.) | Zouche of Haryng-Worth, L. |
| Monckton, L. (V. Galway.) |
§ Clause 5 accordingly struck Out.
§ Clause 6,—