Irish History And The Irish Question Part 8

In spite of a good deal of opposition, government succeeded in placing two important measures on the Statute Book, viz.: the Landed Property (Ireland) Improvement Act, 1860, and the Landlord and Tenant Law Amendment Act (Ireland) of the same year. By the former limited owners were enabled, subject to judicial sanction, to charge the inheritance with the cost of specified improvements, and to bind their successors for stated periods.

Agricultural leases for a period of twenty-one years or less could be given by the limited owners without judicial intervention, but every improvement lease required the sanction of the chairman of the county in which the lands were situated.

To tenants the right of compensation was granted for certain specified improvements made by them, provided that before entering on the improvements they made them the subject of an agreement with the landlord, or had given notice of his intention to improve, and the landlord had not notified his objection within a period of three months from receipt of the notice. The principle of retrospective compensation was not, as yet, admitted.

The second act consolidated the existing law of landlord and tenant, and made some important changes in procedure.

The relations.h.i.+p of landlord and tenant, hitherto based on _tenure_, as in England, was henceforth to be founded on _contract_.

Before proceeding to examine its provisions, it might be well to point out that the common law rights of Irish agricultural tenants were in the absence of special customs governed since the reign of James I. by English common law rules. The English system of land tenure was imposed upon the country by virtue of conquest. But the circ.u.mstances of the two countries were entirely different.

In England the landlord owned the soil and everything on it. The dwelling houses and out-offices, the farm roads, the drainage, were built by him or his predecessors. He let a holding to a tenant as a going concern, and for the holding so equipped he received rent. The relations between landlord and tenant in England rested on a business footing. If the tenant did not feel satisfied with his farm or his lot, he moved on. There were none of the ties there, either of attachment or of interest, that existed in Ireland. In Ireland the tenant or his predecessor provided, by his labours or his savings, the whole equipment of the farm. His family for generations back occupied the same plot, and he dearly learned to know and love every stone and hedge about the place. In England the improvements were effected by the landlord out of the rent paid him by the tenant, and, of course, were legally his by the law of the land. In Ireland the improvements, almost universally made by the tenant, became at common law the property of the landlord, who was under no _legal_ obligation to compensate the tenant for them on ejecting him from his holding. The following extract from the report of the Devon Commission contrasts the practice in the two countries very well. "The Commission finds on all hands, it is admitted, that, according to the general practice in Ireland, the landlord builds neither dwelling-house nor farm-offices, nor puts fences, gates, etc., into good order before he lets his land to a tenant.

The cases in which a landlord does any of those things are the exceptions.

The system, however, of giving aid in these matters is becoming more prevalent. In most cases whatever is done in the way of building is done by the tenant, and in the ordinary language of the country dwelling-houses, farm-buildings, and even the making of the fences are described by the general word 'improvements,' which is thus employed to denote the necessary adjuncts to a farm, without which in England or Scotland no tenant would be found to rent it."

What I have said represents the general, but, I should add, not the universal, condition of things in Ireland at this time.

In parts of the country, especially in Ulster, certain customs prevailed which recognized that a tenant was something more than a rent producer.

They denied the right of the landlord to raise rents by reason of any value added to the soil by the tenant's outlay. They recognized a right of continuous occupancy by the tenant at a fair rent. This right, called tenant right, became on some properties of immense value, and was often sold by an out-going tenant at a price exceeding in value the fee simple purchase of the holding. In Ulster more than anywhere else in Ireland the custom was very widely prevalent, but was as yet without the sanction of the law.

But I have digressed from the Act of 1860. In dealing with the Act of 1870, what I have just said will be of importance. The Landlord and Tenant Act, 1860, otherwise known as "Deasy's Act," is a voluminous measure of one hundred and five sections which may be conveniently grouped into three sections. The first deals with the _Contract of Tenancy_, the second with _Surrenders and a.s.signments_, and the third with the _Methods of Procedure_. Section three enacts that "the relation of landlord and tenant shall be deemed to be founded on the express or implied contract of the parties." The conduct of the parties may imply a contract of tenancy, payment of rent being evidence, but not irrefutable evidence, of its existence.

Section four requires that "every lease or contract, with respect to lands whereby the relations of landlord and tenant is intended to be created for any freehold estate or interest, or for any definite period of time, not being from year to year, or any lesser period, shall be by _deed_ executed, or _note in writing_ signed by the landlord or his agent." It is further provided that a tenant may, if there be no agreement to the contrary, remove his fixtures within two months of its determination by an uncertain event. Two covenants are implied in the contract of tenancy by each of the parties thereto. The landlord by his lease implies an agreement on the part of himself and his successors that he has a good t.i.tle to make it, and that the tenant shall have quiet and peaceable enjoyment of his holding.

The tenant agrees to pay rent, taxes, and impositions payable by the tenant, and to keep the premises in good and substantial repair and condition; and, secondly, to give up peaceable possession of the demised premises in good and substantial repair and condition on the determination of the lease, subject to any right of removal or of compensation for improvements that may have lawfully arisen in respect of them, and to any right of surrender in case of the destruction of the subject-matter of the contract.

_Surrenders and a.s.signments_ may be made (1) by deed, (2) by a note in writing, or (3) by operation of law.

Sections forty-five to one hundred and two deal with actions for the recovery of rent and actions of ejectment. The most important provision is that which provides that if a tenant has had a decree given against him in an action of ejectment, he may be restored to his holding on applying to the court within six months, and paying the rent with arrears and costs.

Such are the main features of Deasy's Act. Beyond consolidating and regularizing the existing law it achieved nothing. A decided advance, however, was made in the Landlord and Tenant (Ireland) Act, 1870, which was restricted in its operation to agricultural and pastoral tenancies. We have seen how there existed in Ulster and other parts of the country certain customs favourable to the tenant. To the Ulster custom, as it was called, Ulster was indebted for exceptional prosperity.

The contentment of its agricultural population was in strange contrast to the seething discontent of the other parts of the country. Much of the thrift and plenty that exists in parts of Ulster to-day can be traced back to the exceptional treatment accorded to the tenants of Ulster long before legislation came to the aid of their less fortunate brethren south of the Boyne. The aim of the Land Act of 1870 was to place the latter cla.s.s in a similar position to the Northerns. The act legalized the Ulster custom and similar usages. It gave tenants not subject to these a right to be compensated for their improvements on quitting their holdings, and guaranteed a measure of security by providing compensation for disturbance. What is "disturbance" is a question for the court, and must be decided on the facts of each particular case.

Agreements not to improve the holding, or not to claim for improvements, are declared void. If the holding be subject to the Ulster custom, there is a general presumption that the improvements belong to the tenant.

The term "improvements" shall mean in relation to a holding (1) any work which, being executed, adds to the letting value of the holding, on which it is executed and is suitable to such holding; and (2) tillages, manures, or other like farming works, the benefit of which is unexhausted at the time of the tenant quitting his holding.

We have not proceeded far before it becomes apparent that to secure to the tenant the full enjoyment of his own property was the line along which land legislation was travelling. The Act of 1870 went some distance in this direction. But the great advance was not made till ten years after, when Gladstone proposed to establish a tribunal which would a.s.sess and fix the property of the two partners in the dual owners.h.i.+p of land in Ireland.

The act recognized and legalized dual owners.h.i.+p. It created a partners.h.i.+p between two parties whose interests were hostile. It was a great act, and did incalculable good, but many years were not to elapse until it became evident that a return to single owners.h.i.+p--but this time by the tenant--was absolutely necessary. The endeavours to work dual owners.h.i.+p irretrievably broke down.

Both parties had little confidence in the Land Court established by the Act of 1881.

The landlord complained that his property was being confiscated; the tenant believed that he was still paying rent on his own improvements. The act was meant to give tenants fixity of tenure, fair rent, and free sale.

A new judicial body, the Irish Land Commission, with jurisdiction to hear and determine all matters of law or fact arising under the act, was established. The commission consists of three commissioners--one a judicial commissioner and numerous a.s.sistant commissioners appointed by the lord lieutenant for the time being with the approval of the treasury.

This is not the place to examine the provisions of this complicated measure minutely, but as it is the foundation of much of the land legislation that followed, it is important that its main provisions be understood.

The act distinguishes between "present" tenancies and "future" tenancies, a "present" tenancy being "a tenancy subsisting at the time of the pa.s.sing of the act, or created before the first day of January, 1883, in a holding in which a tenancy was subsisting at the time of the pa.s.sing of the act, and every tenancy to which the act applies shall be deemed to be a present tenancy until the contrary is proved."

A "future" tenancy means a tenancy beginning after the pa.s.sing of the act.

The act applies only to agricultural and pastoral holdings. It gives qualified powers to both "present" and "future" tenants to dispose of their holdings for the best price they can get, or to mortgage them if they think fit.

Fixity of tenure was secured by enabling a tenant to convert his interest into what is called in the act a _statutory term_. Such a term may be created by an agreement between the landlord and tenant for an increased rent, or by having a fair rent fixed, or by filing in court an agreement for a judicial rent. A _statutory term_ can be created only in respect of a "present" tenancy except when in regard to a "future" tenancy the tenant has agreed with the landlord to an increased rent. The provisions as to the fixing of a fair rent apply only to "present" tenancies. Section three of the act gives a tenant power to dispose of his holding by bequest.

Perhaps the most important provisions of the act are those enabling a landlord or tenant to have a "fair rent" fixed.

Either party may apply to the court to have the rent made a _judicial rent_. The court fixes this rent after considering all the circ.u.mstances of the case, holding, and district, and having regard to the interests of both parties. No rent shall be payable in respect of improvements made by the tenant unless he has been already compensated for them by the landlord. In the administration of the act the word "improvements" has given rise to endless litigation. In the now famous case of Adams _v._ Dunseath it was held that "improvements" meant improvement works and not increased letting value. It was also held in a case affecting the same holding that a tenant is ent.i.tled to "a fair return by way of annual allowance in respect of the present capital value of his improvement works which may be estimated by way of percentage on such capital value; and if after making this percentage there is still a surplus of increased letting value, it is within the exclusive jurisdiction of the Land Commission to determine whether, and in what proportions, such surplus shall be divided between landlord and tenant." It was further laid down that the Land Commission was to treat "the latent and dormant resources of the soil, as let by the landlord to the tenant, as the property of the landlord, and the development of those resources by the tenant as the act of the tenant."

This act was undoubtedly a great charter for the tenants and created something like a revolution in Ireland. It contained many defects, and was marred by many blemishes, but on the whole it was a masterly attempt to settle the question. Like much of the land legislation for Ireland, most of its shortcomings were due to a reckless disregard on the part of British ministers for Irish opinion. Indeed, this was the cause of most of the amending legislation that followed.

Under the Act of 1881 "fair rents" were fixed for periods of fifteen years, when they were again ripe for revision. Roughly speaking, the old non-judicial rents were reduced by twenty per cent on an average to convert them into first term rents. These again were further reduced by twenty per cent on an average for the second term. This, of course, played havoc with the landlord's income, and did not materially benefit the tenant, the prices of the produce of whose farm was falling with even greater rapidity. The experiment of dual owners.h.i.+p had been tried and was found wanting; a return to single owners.h.i.+p was sought for by the series of acts known as the Land Purchase Acts.

It was not till 1885 that the experiment of land purchase was seriously tried in Ireland, but it is right to say that the question first came before the public in a practical form so far back as 1869 in the discussions on the disestablishment of the Irish Episcopal Church. At that time Mr. Bright proposed to increase the number of owners of land in Ireland by allowing the glebe tenants to purchase the property attached to the glebes. The idea was embodied in the Irish Church Act, and over six thousand occupying owners were thus created. Under this act three-fourths of the purchase money was advanced by the State, and the balance paid in cash by the purchasers. The money was advanced by the State for thirty-two years, the shortest period allowed by any of the acts. From the tenant's point of view this act cannot be said to have been an unqualified success. The price of land was high at the time, and the purchasers having bought high sustained the whole burden of the sudden fall in the prices of produce which almost immediately succeeded the conclusion of their bargains. In 1870 and in 1881 there were embodied in the acts of these years provisions to enable tenants to purchase their holdings; but the procedure to be followed was made so complicated that the tenants did not avail themselves of the purchase clauses to any great extent. The insignificant number of sixteen hundred sales were completed under the two acts.

In 1885 a Conservative government came into power, and though their term of office was of short duration, they introduced and pa.s.sed a measure which, by its marvellous and, I might add, its unexpected success, pointed the direction and paved the way for all future legislation for the settlement of the land problem in Ireland. Back to single owners.h.i.+p was the keynote of the measure. Hitherto the credit or discredit of all legislation on the land problem belonged to the Liberals. They strove to make dual owners.h.i.+p a possibility. Conservative statesmen sought for a settlement in the opposite direction.

In sales under all the purchase acts from 1885 to the Act of 1903 all the purchase money is advanced by the State to the selling landlord, and is charged by the State to the tenant who purchases. The tenant repays the amount borrowed or "advanced," to use the language of the acts, in annual instalments, which instalments clear off not only the original "advance,"

but the acc.u.mulated interest.

Roughly speaking, the procedure is this. The landlord and tenant, having agreed on a price, sign an agreement for sale, and file it with the Land Commission, which body has the carriage, so to speak, of all purchase transactions, as well as all other transactions under the land acts. The holding is inspected by the Land Commission which, having been satisfied that the land in question is security for the "advance," pay the purchase money to the landlord and collect from the tenant the annual instalments necessary to repay it to the State.

The plan of the Act of 1885, better known as the Ashbourne Act from the fact that it was Lord Ashbourne who introduced the measure to the lords, was simple in the extreme, and to this is due, in no small measure, its rapid success. It was easily understood by the people, and so popular did it become that in three years the money provided by it was completely exhausted.

In 1888 a second bill was pa.s.sed under which an additional sum of five millions--this was the amount provided by the Ashbourne Act--was set aside for purchase. Under the two measures 25,368 owners were created.

"Almost from the start," writes Mr. George Fottrell (a gentleman well qualified to discuss the question of land purchase in Ireland) in the _Morning Post_, "the Ashbourne Act was a success. During the first five years of its working, the 'advances' actually paid over by the Land Commission to landlords amounted annually on an average to 1,250,000 sterling. The 'applications' represented a considerably larger sum. By 1887 they had more than exhausted the 5,000,000 which had been voted by Parliament for the Ashbourne Act, in 1885, and thereon a further sum of 5,000,000 was voted. The scheme continued to work well; the 'applications' came in steadily but with no feverish haste, the largest total sum applied for under the Ashbourne Act in any one year being in 1887 when it reached 3,700,000. In each of the next two years it reached just two millions. In 1890 it had dropped to less than a million and a half; in 1891 it was slightly in excess of that amount. By 1891 it was plain that the second vote of five millions had been virtually absorbed, and that Parliament must be applied to for further money. To cool-headed people in Ireland it seemed that the obvious course was to ask for a small grant, say of ten millions, so as to continue to test cautiously the usefulness of an act which had so far worked well, while by the very smallness of the grant keeping in reserve a check on the expansion of the act if it should prove to work mischievously.

"This course was not taken. In 1891 Parliament was asked to make a much larger grant. Over thirty millions were voted, but coupled with conditions which made the money useless."

Mr. Balfour's act, the Purchase Act of 1891, was extremely complicated.

Under it Ireland was ent.i.tled to draw upon Imperial credit to the extent of 33,000,000. The rate of interest payable by the purchasers was substantially the same as under the acts of 1885 and 1888, the period of repayment in the three cases being forty-nine years.

But a change was made in the method of payment to the landlord. Previous to 1891, he had been always paid in cash. Under the Balfour Act he was paid in guaranteed land stock. There were many complicated provisions in regard to the creation of a guarantee fund, an insurance fund, and other safeguards. The complexity of the measure and the procedure under it, and the consequent delays in completing any transactions in a reasonable time, acted as a deterrent to intending purchasers and the act was virtually a failure. At this point it is well, perhaps, to summarize the results of the working of land purchase under the acts already dealt with. We have seen that a total sum of (say) 44,000,000 was made available by the various acts for land purchase. Out of this a total sum of 21,182,268 has been expended, leaving about twenty-three millions still available. Under all the acts up to and including that of 1891, 62,241 tenants purchased their holdings, 6057 under the Church Act, 877 under the Land Act of 1870, 731 under the Act of 1881, 25,368 under the Purchase Acts of 1885 and 1888, and the balance of about 30,000 became purchasers by means of the Act of 1891.

Numerous and extensive as these operations were, it is satisfactory to note, and it redounds to the credit of the Irish people, that Mr.

Wyndham, when introducing his Land Bill of 1902, was able to a.s.sure the House of Commons that Irish Land Purchase had this one merit that the State had incurred no loss under it and was exposed to no risk. In no case did an Irish tenant break his bargain. There was no case of bad debt to mention.

One of the first stumbling-blocks to a tenant proposing to purchase under the Act of 1891 was that he was unable to know, or even approximately gauge, what was the actual sum he would have to pay, by way of annuity, each year. This was a serious flaw, and helped more than anything else perhaps to clog the wheels of purchase. This state of things, however, was remedied by the Purchase Act of 1896, by which the maximum sum payable in any year was an instalment at the rate of 4 per cent on the purchase money, no matter at what number of years' purchase of his rent the tenant might buy. Most of the c.u.mbrous restrictions of the Act of 1891 were removed, and once more the applications began to tumble in. In 1895-1896 the applications received numbered less than half a million. In 1897-1898 and in 1898-1899 they reached nearly two millions. A steady decrease then set in, but on the whole purchase proceeded at a satisfactory pace.

A strange condition of things now existed in Ireland, and a condition of things that could not last. Here and there over the country there existed a contented peasantry, the virtual owners of their holdings, paying a reasonable annuity for a definite period to the State. If they had not the sense of complete owners.h.i.+p, they had the very next best thing to it. They knew that if they themselves were not the absolute owners of their holdings during their lives, their children and their children's children would be, and they set to work with a heart and a will to work and improve their farms, knowing full well that the results of their labour would, at last, be theirs, and could not be wrung from them by the whims or exigencies of the landlord. On the other side of the fence, or river, the tenant who had not purchased and, perhaps, could not purchase, for his landlord would not sell, continued to pay a rent sometimes exorbitant, but always higher than his friend the purchaser close by. Such was the position of the tenant's side of the question. Now let us examine the landlord's.

Under the Act of 1896 the landlord was paid in government stock. Between the years 1891 and 1896 government stock rose from 96 to 110. A premium of ten per cent was a strong incentive to the landlord to sell. If he had an estate worth 5000, he received in reality for it 5500, for he was credited with 5000 stock which, sold on change, realized 5500 in cash.

In some cases, where the estate was mortgaged, the gain was even more.

This was gold finding for the landlord until the price of stock fell, which it did and with a vengeance. Stock which in 1897 stood at 113 fell in 1901 to 91. The fall again clogged the wheels, and the question once again became the burning question of the hour. It is right to say here that there were other forces at work which made the landlord anxious to get out, if he could at all, on reasonable terms. The fall in the price of produce continued, and the Land Commission, which had under the Act of 1881 twice revised the rentals, and reduced them each time by twenty per cent on an average, were preparing for the third revision. The landlords looked forward to 1911 with fear and trembling. With their estates mostly heavily mortgaged, and the third revision at hand, they were as anxious as the tenants, if not more so, that Parliament should step in to their mutual aid. It did so in the Land Act of 1903. The introduction of this measure was preceded by a conference of landlords and tenants, representatives in Ireland which met in the Mansion House, Dublin, and after five sittings reported as follows:--

"Whereas it is expedient that the land question in Ireland be settled so far as it is practicable and without delay,

"And whereas the existing position of the land question is adverse to the improvement of the soil of Ireland, leads to unending controversies and law-suits between owners and occupiers, r.e.t.a.r.ds progress in the country, and const.i.tutes a grave danger to the state,

"And whereas an opportunity of settling once for all the differences between owners and occupiers in Ireland is very desirable,