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Subletting Act

{Nov 11}

Ireland.

390

Ireland which required that the law of ment, without which the man could not landlord and tenant in the two countries prosecute his just claims. Was it not should be different. This he thought he quite as great a hardship to make a man could show by authorities of a very high send from Cork or from Waterford to character; but in saying this, let it not be Dublin for the like piece of parchment? supposed that he was insensible to the Applying that principle to the law of propriety of generally assimilating, as ejectment, a worthy and hon. Baronet, nearly as possible, the laws of the two whom, he believed, he saw in his place countries. He thought it would have [Sir J. Newport bowed], introduced a bill, been better if this motion of the hon. and by which the County Courts had authority learned Member had been postponed. to determine cases of ejectment. That The noble Lord (the late Secretary for Act might be said to be a boon to the Ireland) had given notice of a measure for landlord, but it was a gain to the tenant. the Amendment of this Act in the last It was said, indeed, that nothing was to Session; and in the present Session his be got from the Irish tenant. Yes, someright hon. friend (the present Secretary for thing was to be got-his liberty; for his Ireland) had given notice of a similar person might be seized for the costs, motion. The House must see, therefore, which, to gratify his own obstinacy, or in that the Government intended that the accordance with the artful suggestions of a Act should not remain as it was; and he knavish attorney, he had had the temerity thought that much time and discussion to incur. As to the Act which allowed might have been saved, if the hon. and distress on growing crops in Ireland, that learned Member had waited till he had was an assimilation of the law in the two seen how the Act would stand when it countries; such a law having existed in should have received the contemplated England since the reign of George 2nd; amendments. However, the hon. and and as the hon. and learned Member had learned Member was opposed to the contended for assimilation, he did not see principle of the Act, and the present was, with what consistency or reason the hon. of course, as convenient a time as any and learned Member had found fault with other for discussing that principle. He that Act. Now, as to the Subletting Act, did not think that, in dealing with the the subject of the hon. and learned principle of this Act, the hon. and learned Member's motion, the history of that Act Member need have arraigned the whole of would perhaps furnish the best vindication the legislative enactments on the subject of it. In 1824 and 1825 two Select of landlord and tenant which had passed Committees were appointed to inquire into since the Union; and he must confess the state of Ireland. All the hard-hearted that it was with the greatest surprise that and unfeeling persons, to whom the hon. he had heard the hon. and learned and learned Member had referred-all the Member, who had so often boasted him- witnesses who had been examined before self to be a legal reformer, and an advocate those committees, and many of them were for cheap law, find fault with those Acts men of talent and integrity-agreed that the which had made law cheap in Ireland. That poor of Ireland were sadly and unnaturally was the object of some of the Acts which the depressed: all of them applied their hon. and learned Member had condemned, talents and experience to the discovery of and he himself had, on a former occasion, the means by which the condition of the admitted that by one of these Acts the ex- peasantry of Ireland might be improved. penses of an ejectment had been diminished All of them, too, whatever other differfrom 177. to 11. 2s. 6d. Where the land- ences of opinion there might have been lord had a clear right, it was thought that among them, agreed upon this one point; he might be allowed to seek his remedy in namely, that the chief cause of the the County Courts, which, in Ireland, evils of the poor of Ireland was the almost were above suspicion. This was a princi- unlimited subdivision of property in that ple which the hon. and learned Member country. In that opinion he concurred, had himself advocated in speaking of and was ready to contend that the inlegal reform; upon one of which oc- finite subdivision of land in Ireland had casions the hon. and learned Gentleman been one of the main causes of the evils had insisted upon the hardship of making under which that country laboured. All a man send up from a remote part of the witnesses agreed in describing the England to London for a piece of parch-rooted obstinacy with which the great

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ble, I think (I express myself strongly), it would be extremely difficult to have any. thing worse. The houses are not even called houses, and they ought not to be: they are called cabins. They are built of mud, and covered with thatch partly, and partly with a surface which they call scraws, &c.

body of the people fastened themselves
on the land as their sole means of support.
Farms that had been let of a size sufficient
for good husbandry, and in proportion to
the capital a man might be expected to
employ on them, had been divided by
their first occupants among their sons and
daughters, who had subdivided their por-
tions again among their children, till the
land was so parcelled out that no one
portion of it could possibly supply more
than the bare necessaries of life, to its
wretched occupant, whose condition was
reduced to a level with that of the beasts
which perish. That was the opinion uni-
versally expressed by the several respect-

able witnesses examined before the com-
mittee on the state of Ireland in 1825.
He had thought it his duty to look at their
testimony and he found none more touch-
ing or more conclusive than that of the hon.
and learned member for Waterford himself.
The learned Member; in his evidence be-
fore that committee, gave a most appal-
ling description of the miserable and
wretched condition to which the Irish
peasantry had been reduced; and but that
he feared to fatigue the House he would
read some of that hon. and learned Mem-
ber's testimony ["Read, Read."] As it
was the wish of the House, he would read
a portion of it. He found the following
passages in that hon. Member's evidence
before the Committee.

"Have you had opportunities of becoming
acquainted with the condition of the lower
orders of the people of Ireland, in an
extensive district of that country?—I may
venture to say that I have had many, and
long.

"Have you observed
numbers in the districts with which you are
any great increase of
acquainted? Very great; I know many
instances, in the remote parts particularly;
for example, I know of farms upon which
I remember but two dwellings; I speak of
two farms that I have on my mind at this
moment, upon which there is, I believe, at
present, nearly a hundred families.

What sort of furniture have they in those houses?-Nothing that can deserve the name of furniture.

"With regard to their bedding, what does it consist of?-Nothing but straw, and very few blankets in the mountain district.

"Have they blankets put over the straw, sufficient to cover them?-In general, not.

Member's answers were equally explicit.
In another part the hon. and learned

"Have circumstances occurred, within your knowledge, of hardship in respect of distraining for rent ?-Very many.

"Is it a general hardship in the country? -It is a general grievance, very much aggravated by the necessity of sub-letting. There are frequently six or seven between the proprietor of the fee and the actual occupier, and whenever any two of them happen to differ in the state of their accounts, the man who claims more than the other has paid, or is willing to pay, settles the dispute by distraining the actual occupier; and that occurs in many instances where the occupier has paid his own rent to his own landlord.

"Then every superior tenant of the subtenants has a right to distress over the actual Occupier?-Unquestionably."

Such was the hon. and learned member for Waterford's own description of the clearly established his very miserable constate of the Irish peasant in 1825. It dition-it established too the fact of the minute and almost infinite subdivision of of subjecting the wretched occupant of the land, as well as the vexation and grievance soil to be distrained by the many persons who intervened between him and the lord of the soil; and that all the grievances of the peasantry were greatly aggravated by the practice of subletting. He need What. under your observation, is the did not flow from the Subletting Act, hardly observe, then, that all these evils state of the lower orders with respect to their modes of living?-The state of the which, at that time, had not only not lower orders, in my observation, is such, passed, but was not in contemplation, that it is astonishing to me how they preserve unless it could be said, that in Ireland health; and, above all, how they preserve effects preceded their cause. It having been cheerfulness under the total privation of established, on indisputable evidence, that anything like comfort, and the existence of such was the miserable condition of the a state of things that the inferior animals Irish peasantry, he appealed to the heart would scarcely endure, and which they do not endure in this country.

of

every man who heard him, were these "What is the general, state of the habit- things to be suffered so to remain without ations of the lower class? It is impossi- one effort to ameliorate them?

Whatever

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ble to restrain tenants from underletting their lands in Ireland. A gentleman, whose name was not unknown to the Members of that House, and whose zeal and activity for the improvement of Ireland was acknowledged, on being examined before that same committee-he alluded to Mr. Blake, the Chief Remembrancer of the Court of Exchequer in Ireland-in the course of his evidence he pointed out the simple, but effectual, remedies which he would apply to the law; and from his suggesttions Lord Plunkett, the then Attorneygeneral for Ireland, framed this Act of Parliament, which had been so much misunderstood by some, so much reprehended by others, but which, rightly considered, conferred benefits both on the landlord and tenant, and infinitely greater upon the tenant than upon the landlord. On the landlord it conferred the advantage of not having his land underlet without his permission; but it protected the occupier of the soil against an evil, pregnant with ruin and annoyance,--the liability to continued and repeated distrainings, even when he may have paid his rent, for the arrears of all those who might stand betwixt him and the owner of the soil. The first section of the Act provided that no tenant who had covenanted not to underlet should do so without the express permission in writing of his landlord; it did away with the absurdity of implying waivers from acts of the landlord, which never were intended by him so to operate, and it put an end to the still greater absurdity already described as too long established by the rule in Dumpar's case,- —a rule, the exist. ence of which the Judges had more than once lamented, though they had left to the Legislature the credit of overruling it. A subsequent section provided, that when the landlord permits his tenant to underlet, the tenant in possession shall be subject only to be distrained by his own immediate landlord; thus affording an invaluable boon to the real occupants of the land. These were the two great principles of the Act; and such, with some enactments of minor importance, calculated to give them effect, would be the Act when amended in the manner proposed by his right hon. friend the Secretary for Ireland. The Act conferred no power whatever on a landlord to dispossess a tenant; it was a confusion, a mistake, or something worse, to say that it did; indeed, he had not understood the hon. and learned member

might be supposed, things could not remain as they were, for each year brought with it a fresh subdivision of the land, and every subdivision diminished the means of supporting the miserable occupiers. It was then inquired, "If these ills be so clearly attributable to the subdivision and underletting of ground, why do not the landlords of Ireland take measures to prevent it?" The landlords replied, that they had done so, but without effect, for they found that some legal difficulty interposed, which took from them the power to restrain their tenants from underletting. Men of great talent and eminence at the Irish Bar, Serjeant Blackburn, Messrs. Blacker and Bennett, were examined before the committee to explain the nature of this legal difficulty. They attributed it to what was called the doctrine of waiver, and the law which had been established by a long train of decisions upon that subject. It would be his duty, if he could hope that the House would bear with him, to attempt the difficult task of explaining this purely professional and technical point: He would merely observe, that it had been established by decisions, that if A make a lease of his land to B, upon condition that if B alienate, assign, or underlet it, A may re-enter and possess it; and if afterwards A gave B permission to underlet it to any one individual then B might underlet that land to thousands and A could never avail himself of the condition which he had, by the permission to underlet to one person, what is in law called "waived." That was the result of the law, as established by what was called Dumpar's case. It was abundantly absurd, but it was, nevertheless, the law. Thus, if a man let a farm to another, relying upon his personal skill and integrity, and added a condition that he should forfeit the farm if he let it to another, and was afterwards induced to grant permission to underlet to some one individual, on whom, perhaps, he had an equal reliance, the tenant could thenceforth be at liberty to underlet it to whom he pleased. Besides this, which was termed an express waiver, many other acts of the landlord had been construed by the Courts to amount to implied waivers the Judges having apparently been disposed to favour subletting, so that between the state of the law, the leaning of Courts, and the prejudices of Juries (more interested as tenants than landlords), it had become practically almost impossi

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{COMMONS}

Ireland.

396

for Waterford to assert, in his place that panied by some measure to afford employnight, that any such effect could be attri- ment or support to the population. He buted to it, as that hon. Member knew full felt deeply the urgent necessity of turning well that no tenant had been, that no immediate attention to the various protenant could be, dispossessed by means of posals which had been made for the this Act. Long before it was passed, the employment or support of the Irish landlords of Ireland began to discover the poor. From the very moment that the folly, not to say the disgrace, of having adjustment of that question of paramount the peasantry on their estates in the most importance-the emancipation of the Camiserable condition, such as had been de- tholics-left the Irish, without distinction scribed; and from time to time, as their of sect or party, at liberty to co-operate farms fell out of lease, they made efforts cordially together-there had been an to consolidate and enlarge them. led to the dispossessing of many persons, condition of the poorer classes in Ireland, This anxious desire to investigate the state and though he trusted it had been nowhere with a view to ameliorate and relieve their done with a harsh and hasty hand, but in present distress. No man who considered the most kind and considerate manner, the important and extensive nature of the It had been necessarily productive, as he suggested measures would recommend admitted, of great suffering, but surely it a precipitate decision, or the adoption was not fair to attribute that to the then of rash or hasty legislative measures in unpassed Subletting Act. It was painful, advancing towards that from which, when God knew, to have to strike a balance as to once reached, no retreat remaned. He the amount of rival and conflicting suffering, would encourage the fullest investigation but one must see, that the misery of the of the merits of all the various measures peasantry, while they were left to increase which had been suggested; but, without and multiply upon the land, was a misery undervaluing them, he might be permitted without a prospect of diminution, or rather to say, that he looked with great confidence with a certainty of increase; but what- for an amelioration of the condition of the ever might be the present sufferings of the Irish peasantry to the feeling and expelled population (and he was far from disposition which had grown up among undervaluing them) beyond the black the Irish landlords. They had no longer cloud that now pressed heavily upon the contented themselves with calling on the country, there was opening the brighter Government and the Legislature to correct prospect of a comfortable, substantial, and ills which were peculiarly within their contented peasantry. No man who heard own power; they no longer resembled the him make that observation would attribute waggoner whose wheel stuck fast in the to him a callousness to present suffering, rut, and who called on Hercules to extri or any want of cordial co-operation for cate it; but aware of the answer which he its alleviation. He would willingly fore-received, they had altogether put their go every pursuit of interest or ambition, if he thought that, by the devotion of his time, he could devise any mode of diminishing the present suffering of the Irish peasantry. In the very valuable Report which had been just laid on the Table, which supplied a rich fund to draw on for future measures adapted for the improvement of Ireland, a distinguished Prelate of the Roman Catholic Church, Dr. Doyle, after coinciding with the views he had laid before the House, as to the wretched condition of the Irish peasantry, as to the ills inseparable from the subdivision and subletting of lands, and expressing his conviction that the misery of the people must, under that system, continue to increase, gave his decided approbation to the principle of the Subletting Act; but added, that it should have been accom

own shoulders to the wheel, and from their exertions he confidently anticipated an amelioration in the condition of the Irish peasantry. They would, he was persuaded, knit and strengthen those ties which had for a time unfortunately been brokenthey would perfect that graduated scale which, in these countries, ought to exist in close and continued contact, from the highest to the lowest, and they would accomplish this, not merely by raising the tenant to meet the landlord, but, when it might be necessary to do so, by the landlord coming down to meet the tenant. In conclusion, he would venture to implore the hon. and learned Member to reconsider this Statute,—to reflect how erroneously the dispossessing of any part of the tenantry had been attributed to it,—to remember that it was introduced into this

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and outrage, and yet they were called upon to-night to repeal an Act which was framed to put an end to the recurrence of such monstrous evils. If the Subletting Act afforded to the landlords security against fraud; on the part of the tenants, it afforded to the tenants a defence against injustice and extortion,

House, and supported by some of the best and ablest friends of Ireland, and to believe that it was eminently calculated for the protection and improvement of the Irish peasant. If the result of further consideration should lead the hon. and learned Member to concur in this view of it, he hoped that he would promulgate his altered opinion; by doing so, he would confer a greater benefit on his country than he could ever hope to be able to achieve for it by other means.

Colonel Beresford observed, that the principle of this Act was the protection of the landlord against the frauds of his tenantry, and in his opinion no one had a right to interfere with a landlord in the distribution of his property. This Act enabled landlords to deal with their land, in a manner most advantageous for all parties. He maintained, that the great misery of the tenants was occasioned by the middle-men, who threw all the blame of their own fault on the landlords. He must beg leave of the House to take that opportunity of defending his noble relative (Lord Beresford) and his agent, from the attacks made upon them out of doors by the learned Member opposite.

Mr. Villiers Stewart recommended a medium course on this occasion. The law required amendment, but he was against its total repeal. He approved of its principle but some of its details required revision. He conceived that much of the excitement that prevailed in Ireland would be allayed, if this law were not to operate upon leases made prior to its enactment; and it appeared to him, that it was better that the landlord should suffer from the imperfect wording of the old law, than that the tenant should suffer from the ex post facto operation of a new law. So far he agreed with the hon. and learned member for Waterford; he wished also to add, that all lands and tenements situated in towns, ought to be exempted from the operation of the Act. That part of the Act which related to devises should undoubtedly be repealed, and if these points were attended to, he conceived there would be no further objection to which the law could be justly obnoxious. In principle, this Act was perfectly equitable both as regarded landlord and tenant. In the Act itself, he saw little grounds for the clamour which had been raised against it. It had been described as an act to facilitate the depopulation of Irish estates, a character it by no means deserved. It warned the tenant that he should receive no benefit from the infringement of his contracts, and it did nothing more than enforce the observance of contracts on both the landlord and tenant. The landlord always had a right to eject his tenant if he thought fit, and the alteration made in the law by this Act was beneficial not injurious to the tenant. It certainly prevented subletting, but that was very beneficial, and he had seen many instances of great advantages resulting from the occupier holding directly of the owner of the soil. The system of infinite and complicated distresses in Ireland, arising out of the subdivision of lands, had been productive of misery, injustice,

Mr. O'Connell rose and said, that he could not well agree to the hon. Gentleman's replying to what he had said out of doors, unless he was to be allowed to satisfy the House of the authority upon which he had made his statement.

Colonel Beresford said, that he could not yield to the learned Gentleman's proposition, and must beg leave of the House to proceed in his statement. [Here the hon. Member read several observations that had been made upon the agent of Lord Beresford by Mr. O'Connell. The substance of them was, that Lord Beresford and his agent had hunted poor people out of their tenements, and had turned their 'holdings' into pasture lands for four-footed animals, to be shipped to England to support his Lordship in greater luxury whilst he was an absentee.] He (Colonel Beresford) had authority to deny every particle of that charge. What Lord Beresford's agent had done had been at his own loss. He had let the lands to tenants without distinction of religious or political opinions. His farms averaged from forty, to sixty acres each. Dr. Doyle had borne testimony to the good conduct of this agent; and he could say, that there was not a tenant about to leave the estate who was not two years' rent in arrear.

Mr. A. Dawson, in reply to the hon. Gentleman who had just sat down, must remind the House that the Subletting Act

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