§ Where, on an application to fix the fair rent for a holding, it is proved to the Court that the tenant of the holding, by virtue of his tenancy, has, by the permission of the landlord, whether with or without payment, been accustomed to exercise any profit a prendre, easement, privilege of turbary, or other privilege over land belonging to the landlord, and it appears to be necessary for the reasonable enjoyment of the holding that he should not be deprived of what he has so exercised, and that the interests of the landlord in portions of his estate other than that in which the said profit a prendre, easement or privilege is to be exercised, will not be thereby injuriously affected, the Court may, after giving the landlord and tenant of the holding and any tenant of the land an opportunity of being heard, make an order for securing the profit a prendre, easement or privilege to the tenant of the holding, upon such terms, as to rent or otherwise, and in such manner as the Court think just, and such order shall be binding on all estates and interests in the said land.
§ *THE EARL OF BELMORE moved to leave out Clause 8. There were parts of Ireland where there were no turf bogs; but, on the other hand, there were large districts of the country where turf bogs 1644 were numerous, and where tenants and landlords alike had to depend in a large measure upon them for their fuel. Therefore the question of turbary was very important. The effects of the clause would be to turn the cutting of turf, which was now a matter of privilege enjoyed by the tenant without any payment at all, or with some moderate payment, into an absolute right, and to deprive the owners of the bogs of the control of the bogs. The question of turbary was one of the most difficult and troublesome that landlords or agents had to deal with, and was often the cause of very expensive litigation between tenants. With regard to what Lord Lansdowne had said, he had never personally known of a case in which a landlord whose rent had been reduced indemnifying himself by raising the price of turf to his tenants. As to the effect of the clause on the purchase and sale of land to tenants, he had generally arranged that when a tenant had been buying his estate he should have a certain quantity of bog thrown in in proportion to the amount of rent, and if he wanted more he must buy it. There was nothing about which tenants were more inclined to quarrel than turf bogs. On his estate two adjoining farmers wanted to buy their farms, but each claimed the same piece of bog, and as they could not settle the difference, the agreement to purchase their farms had never been signed, although the matter arose a good while ago. He believed he had said enough as regarded turf bogs to show that it would not be desirable to deprive the landlord of the right to manage his own turf bogs. County Court Judge Waters, who had not much sympathy with landlords, in an action at Manor Hamilton regarding the cutting of turf bogs, gave a poor man a decree for £5 compensation when he Had lost his turf by a neighbour claming an exclusive right over the landlord's bog; and he said he hoped the time would never come when the landlords would be unable to manage their own bogs. He believed that what he had said justified him in moving the omission of the clause, because he did no see that they were in a position to amend it in a satisfactory way. In a different state of circumstances another proposal might be made. If they had a Board of Agriculture in Ireland a scheme might be arranged by 1645 which the board might acquire turf bogs and manage them by means of a local committee. Possibly that power might be extended to purchasing turf bogs on voluntary lines from the landlords, who often had much more of it than the required, and which might be worked for the benefit of the neighbourhood. He thought it would be much wiser to wait until the Board of Agriculture—which they were told was to be established—was in operation, when the matter could be considered carefully and not in a hurry as would be the case by passing this clause, which might also tie their hands from possibly doing something in the near future, which might otherwise be done. He begged to move the omission of the clause.
§ * THE MARQUESS OF LANSDOWNE
observed that many of the provisions of this Bill had been severely criticised, but he did not think any one of its clauses had found greater disfavour than the one they were now discussing. He had observed that that disfavour had been manifested in the most conspicuous manner by gentlemen connected with the management of Irish estates and familiar with the practical aspects of that management. He was bound to admit that any representations made by them, and backed by their knowledge and experience were entitled to most respectful consideration. He hoped he was not wrong in saying that up to a certain point there was no material difference between them. He thought it would be generally conceded that in many cases the value of these privileges and easements to the tenants was very-great, and none of their Lordships would have any wish to see the tenants arbitrarily deprived of the privilege of what they had long enjoyed. (Cheers.) He thought they would also be agreed that, when the tenant's rent had been fixed upon the assumption that he was in the enjoyment of a customary privilege of this kind, it would be an act of the grossest injustice to deprive him of that privilege while he remained liable for the rent. ["Hear, hear!"] He dwelt upon that because there was reason to suppose that in a great many cases these privileges had been secured to the tenants by the action of the Courts without, perhaps, a very minute inquiry as to whether, in the strictest sense of the word, the 1646 Courts were dealing with a legal right, or a mere customary privilege. He had had a paper put into his hand from a gentleman who had given much attention to these matters, Mr. H. Montgomery, who stated that in fixing the rent of a holding, in connection with which the tenant had hitherto had the privilege of cutting turf on the landlord's bog, the Court had always, at least since 1882, asked the landlord whether he wished to have the rent fixed with or without this privilege. The landlord very often said that he would prefer the rent to be put on the holding without the turf, leaving himself at liberty to deal with the turf by free contract. The tenant was then invited to give evidence of the value he set on the turbary privilege, and on this evidence the Court fixed the rent. It was within his own knowledge that this was not at all an unusual method of proceeding when the Court was dealing with the privilege of cutting turf. Turning to the clause in the Bill he thought their Lordships would admit that, whatever its faults might be, the Government had sought, at all events to the best of their ability, to afford to the landlord in cases of this kind an adequate measure of protection. They proposed to enact that the privilege should not be granted to the tenant as a right unless it could be shown that the exercise of the privilege was essential for the reasonable enjoyment of the holding. They proposed that it should be a condition sine quâ non that the exercise of the privilege should not injure the landlord's estate, and finally that the privilege was to be exercised upon terms to be laid down by the Court, which were intended for the protection of the landlord. It was not a new thing that the Court should be called upon to insist upon terms of this kind. There was in the Act of 1881 a clause with reference to the manner in which pastoral and turbary rights were to be exercised by the tenant. That clause laid down that the right might only be exercised, according to the ordinary usages which had prevailed with the expressed or implied consent, amongst the commoners reasonably entitled to exercise the same, and it was beyond doubt that the Courts had been in the habit of insisting upon very strict regulations in the case of tenants having privileges of turf-cutting, or having rights 1647 of turf-cutting, or rights of mountain-grazing, and so forth, exercised under the protection of the Act of 1881. The question was whether the protection which they proposed to give to the landlord was sufficient or not. He knew that in the opinion of the noble Lords from Ireland the clause as it stood did not sufficiently safeguard the landlords' rights. Some of the arguments against the clause as it stood seemed to be entitled to very considerable weight. One was that the effect of the clause would be to place a liberal and good landlord, who had been in the habit of granting these customary privileges to his tenants, in a worse position than the narrower and less generous landlord, who had been in the habit of denying those privileges to his tenants. Another was that the clause as it stood might open very wide opportunities for litigation between landlord and tenant, and he was sure every Member of the House felt that the fewer doors that were opened for litigation in Ireland the better. ["Hear, hear!"] Taking these matters into consideration, they had attempted to recast their clause, and the proposal which they would make to their Lordships would be of the following nature. It was a proposal the object of which was to guard the tenant in whose case a rent had been fixed upon the assumption that a customary privilege had been secured to him, from having that customary privilege withdrawn while he was paying rent for it. That, he thought, was an eminently just and reasonable arrangement to make, and he could not believe that any noble Lord was likely to object to it. The words which they would suggest were somewhat to the following effect—that wherever it should appear that a tenant had been accustomed to exercise any profit a prendre, easement, or privilege of this kind, and it appeared to be necessary for the reasonable enjoyment of the holding that the tenant should continue to exercise those privileges, the landlord should be required to elect whether he would or would not allow the tenant to exercise as of right during the statutory term, and subject to the same restrictions and conditions as heretofore, that which he had previously exercised by permission. If the landlord consented to allow the tenant to exercise the 1648 customary privilege as of right, then that privilege would be secured to the tenant by the order fixing the fair rent during the currency of the statutory term. If, on the other hand, the landlord, on the whole, deemed it inadvisable to secure to the tenant that privilege under those conditions, then he would signify to the effect that the privilege was to be regarded as withdrawn, and the rent would be fixed upon the holding upon the assumption that the tenant was no longer in the enjoyment of that privilege That, of course, left it open to the landlord and tenant to make their own bargain with regard to turf or seaweed, or whatever other privileges might be under discussion. That would, he hoped, commend itself to their Lordships as not an unreasonable attempt to solve the difficulty, and they would bring up a clause to carry out the arrangement he had indicated.
* VISCOUNT POWERSCOURT
said that no landlord wished to prevent his tenant cutting turf, but it was a well-known fact that, unless there was some controlling influence to confine the tenants to certain places and to regulate the cutting of bog, there would be endless disputes between the tenants, and a whole mountain would be skinned and rendered absolutely valueless, not only to the landlord but to the tenants. As to other privileges which tenants were to be given, were they to understand that if a landlord allowed a tenant to drive through his place that would give a right of way? He did not know whether the Amendment to the clause would commend itself to the House, but he would certainly vote against the clause.
THE EARL OF MAYO
understood that the new clause was intended to take the sting out of the present clause. He spoke for himself, and, he believed, for his friends, when he said it must be clearly laid down that the privileges which the landlord was granting to the tenant were not to be sold or got rid of by the tenant. He had not got an acre of turf bog, but he knew that if the management of such bogs were taken out of the hands of the landlords the most terrible confusion would ensue. There would be a sort of Donnybrook Fair, for the tenants would fight who was to cut this bit and who was to cut that bit. He trusted the 1649 noble Marquess would be able to arrange everything satisfactorily. Until, however, they had the new clause before them they could not arrive at any compromise with the Government. In the House of Commons the Chief Secretary had said he did not know what "other privileges" were, but Mr. Atkinson had said they might include the cutting of heather on a turf bog or a grouse moor. When they were in the middle of a grouse drive, would noble Lords like to see a tenant come and cut heather?
THE EARL OF ROSEBERY
said he did not wish to intervene in the domestic arrangements of the Government and their supporters, but he was able so far to follow the discussion as to ascertain that the clause was withdrawn and there was a promise of a new clause on report. Surely the time to discuss the clause would be when it was presented. ["Hear, hear!"]
THE EARL OF DUNRAVEN
said what he understood was that it was proposed that there should be a modification of the clause or a new clause, the effect of which would be this—when a tenant went to the Court to have his rent fixed, if he had been in the customary privilege of cutting turf, gathering seaweed, or taking gravel, the landlord would be called upon to say whether he would allow the customary privilege to become a right during the statutory period of 15 years. If he agreed, then the fact would be taken into consideration by the Court in fixing what the fair rent was to be. On the other hand, it was quite optional to the landlord to say that he would not allow this privilege to be converted into a right. He thought the noble Lord opposite did not clearly understand that there was this option.
THE EARL OF ROSEBERY
said he must stand to his point. ["Hear, hear!"] No doubt the explanation of the noble Earl was satisfactory to himself, but what they wanted was a statement from the Government. ["Hear, hear!"] Were they going to bring up a new clause on Report? Really, in the interests of the expedition of business, he protested against funeral orations over clauses that were dead, or anticipatory discussions on clauses that were to be brought forward. [Cheers.]
§ * LORD MACNAGHTEN
did not think that the clause which was foreshadowed would be satisfactory. There was not the slightest evidence that any landlord had attempted to put an extravagant rent on bog. The whole thing was a bogus objection.
THE PRIME MINISTER (The MARQUESS of SALISBURY)
Might I reinforce the protest of the noble Earl opposite? It is really a very great waste of time to argue a clause which you have not seen.
§ * LORD MACNAGHTEN
suggested that the best way of meeting the difficulty would be that any tenant who alleged that he had been unfairly treated in this manner should be at liberty, although his rent had been fixed, to go back to the Sub-Commissioners and have his rent revised with regard to that allegation.
§ * THE MARQUESS OF LANSDOWNE
said he felt sure the most convenient course was to hand in a new clause that night, which would be circulated, and in the meantime the clause, as it now stood, would be withdrawn. ["Hear, hear!"]
§ Clause negatived.
THE PRIME MINISTER
Now, I think, the time has come when we may reasonably adjourn till to-morrow.
House resumed; and to be again in Committee To-morrow.