So much for the scope of the Bill and the classes of tenants to which its benefits were to extend. A most important change was made in the measure, which contained, originally, nothing of the kind; this has been attended with far-reaching results. As we have seen, tenants were to be compensated for their improvements,under the Act of 1870; but the compensation was to be paid only when they were leaving the land; Mr. Healy, one of the ablest of Parnell’s lieutenants, induced Parliament to accept a provision exempting tenants’ improvements from rent, when the adjustment of ‘fair rent’ was to be made. However equitable in principle this might appear to be, it was, in the peculiar state of Irish land tenure, unjust in the extreme to landlords, as I shall endeavour to point out afterwards; and it has been a source of litigation, as mischievous and demoralising as can well be conceived. The Bill, like the Act of 1870, prohibited the subdivision and subletting of farms—an inveterate evil practice of the Irish peasant—under conditions possibly rather too strict; and it made changes, in that statute, which require attention. It added weight, so to speak, to the law, in the tenant’s interest; it increased the amount of compensation in respect of disturbance; it limited the power of ‘contracting out,’ to a smaller class of tenants than had been the case before, in fact, to large capitalist farmers; and it provided that tenants, who had accepted leases excluding them from the benefits of the Act of 1870, through illegitimate conduct on the part of their landlords, should be exonerated from such unfair contracts. It thus greatly amended the original Land Act; but it left many of its defects untouched; it is only right here to add that despite the lying clamour raised by the subsidised Press of Parnell—lying has ever since been part of its stock-in-trade—the instances were exceedingly few in which ‘forced leases,’ as they were called, were set aside by the Courts. A remarkable feature of the Bill has yet to be noticed: Mr. Gladstone, as was the case eleven years before, had still the wish, so characteristic of British statesmen, to assimilate Irish to English land tenure; for this reason, as I said, he deprived ‘future tenants’ of the advantages of the Bill; these were to hold their farms on the footing of pure contract. This was a shortsighted andbad arrangement; it tempted directly ill-conditioned landlords to dispossess tenants, whenever a chance offered, and to create ‘future’ tenants so as to discharge their estates from a burden; it revealed marked ignorance of the affairs of Ireland. The Bill dealt, also, with the land on the side of ownership; it gave additional facilities to tenants to purchase their holdings; the State was empowered to advance three-fourths of the moneys; but the tenants were to find the remaining fourth; the transaction was to be still a purchase, and not in the nature of a gift.[76]
The Bill became law, with very little change; the House of Lords, though fully alive to its evils, did not amend it in any important respect; the Peers had in mind, perhaps too much, what had followed the rejection of the Bill of the year before. Mr. Gladstone and his followers maintained at the time, and the statement has been ever since repeated, that the Land Act of 1881, its popular title, was but a natural development of the original Act of 1870; but this assertion is not only untrue, but absolutely contrary to the truth. The Act of 1870, no doubt, considered as a whole, annexed a large tenant right to the estate of the landlord, and to that extent placed a burden on it; but it preserved for the landlord the ownership of the land; it did not interfere with his rent, his first proprietary right; above all, it was, in the main, in accord with fact, and just. The Act of 1881 was almost the exact opposite; it deprived the landlord of the ownership of his land, and nearly converted him into a mere rent-charger; it created against him a perpetuity at a State-settled rent; it really all but made the tenant the owner of the land; it was, in short, inconsistent with fact, and essentially unjust. The Act of 1881, too, established a principle, never heard of before in civilised countries, that tribunals of the Statewere to fix the rate of rent; this not only annihilated the most important of landed contracts, entirely to the landlord’s detriment, it inevitably tended to cut down rents wholesale, as Judge Longfield had predicted would be the case. ‘It is probable,’ wrote that great authority, ‘that the value of land, as fixed by any tenant-right measure, would be less than half the rent, which a solvent tenant would be willing to pay;’[77]the prediction has been too well verified. The Act of 1870, in a word, was a remedial law, fairly adjusting the rights of landlord and tenant; the Act of 1881 was a socialistic law, despoiling the landlord of his property wholesale, and handing it over to a dependent who had no claim to it; it was sheer confiscation hardly disguised; and it should be added that the exemption of tenants’ improvements from rent, as affairs stood in Ireland, was a grave wrong to the landlord. The Act of 1881, to speak plainly, transformed the Irish land system iniquitously for the benefit of a single class; and it directly promoted litigation of the very worst kind, on an enormous scale, embittering, and still further dividing, the classes connected with the land. The evils of this legislation, a monument of reckless unwisdom, were at once manifest to well-informed persons; the Duke of Argyll and Lord Lansdowne resigned office rather than take part in a measure of the kind; Lord Ashbourne, the present holder of the Great Seal in Ireland, caustically remarked that Parliament would do much better should it deprive Irish landlords of a fourth part of their rents on the spot. The verdict of enlightened and impartial opinion in Ireland was very much the same.
I shall comment on the administration of this law in another chapter; enough to say here that what was bad was made, by many degrees, worse. The conduct of Parnell, as regards the measure, was characteristic; he assumed an attitude of moderation, and proposed to make‘a trial of the Act by test cases;’ he wrote to his Fenian friends in the Far West that the Act was a mockery; he allowed the Land League to riot in lawlessness as before. Mr. Gladstone, always incensed when his will was crossed, shut him up in prison under the recent statute, with several prominent leaders of the League; the reply was a manifesto against the payment of any rent, unhappily obeyed in some districts, though every symptom of exceptional distress had passed away. A brief but violent struggle was the result; the peasantry refused to pay a shilling in several counties; and as the principal agents of the League were within four walls, flights of viragoes, like those of the French Revolution, were let loose to preach, far and near, the evangel of ‘no rent.’ This conflict, however, was not lasting; agrarian crime and disorder, indeed, still continued frequent; but the Government was too strong for the ‘Ladies’ Land League;’ by the spring of 1882 its triumph appeared to be certain. But Mr. Gladstone, ‘unstable as water’ in view of what he deemed popular movements, would not steadily persist in vindicating the law; the imprisonment of the chiefs of the conspiracy and their subordinates, in large numbers, seems to have made him feel sore if unworthy misgivings; he surrendered to the enemies of the State, for the second time, and entered with Parnell into the famous ‘Kilmainham Treaty,’ as shameful as the Glamorgan Treaty which cost Charles I. his head. The ‘Suspects,’ as they were called, were set free in scores; the Lord-Lieutenant and the Chief Secretary indignantly left their posts; a new Government for Ireland was formed, charged to carry ‘conciliation,’ as the phrase was, out, that is, to make fresh concessions to Parnell and his creatures. But the auspicious prospect was suddenly darkened by the frightful assassinations of the Phœnix Park; these cannot be justly laid to the charge of the League, indeed were against Parnell’s interest, for it was generally expected hewould obtain high office; but two agents of the League were implicated in the crime; and the Press of the League began soon to plead for the murderers. The mind of England was now thoroughly roused; Mr. Gladstone, bowing at once to England’s will, carried through Parliament the severest repressive measure that has ever, perhaps, been applied to Ireland. The battle with the League was soon brought to a close; the conspiracy indeed resisted for a time, and crime, as always, was attendant on it; and the Clan na Gael gave it all the assistance it could, in large subsidies which had never ceased, in the dissemination in Ireland of its incendiary journals, and especially by ‘carrying the war into England,’ and fulfilling its threats to attack her chief towns by fire and dynamite, outrages, however, that really came to nothing. But ‘coercion,’ as has been invariably the case in Ireland, produced its effects; agrarian crimes, which, in 1882, if less than those of the year before, were, nevertheless, three thousand four hundred and thirty-two in number, had fallen to eight hundred and seventy in 1883.[78]
The Land League was paralysed, if not destroyed; its organisation was, in name, suppressed by its framers. It reappeared, however, at once, in a new form; the skill of Parnell in masking a conspiracy was never more fully displayed. He felt that the Land League could not cope with the law; that the crimes of violence and blood, which attended its course, gave the Government opportunities to put it down; that its openly avowed purposes were a danger to it. He set up, therefore, the ‘National League’ in its stead; the professed object of the association was to promote ‘Home Rule,’ while it upheld the rights of the occupiers of the Irish soil, and kept the Irish land, so to speak, in view; it was thus apparently a mere centre of a constitutional movement. Through these means, and under these pretences, the astute and able plotter sweptinto his net thousands who had held aloof from the Land League; many of the middle classes joined the National League, notably hundreds of the clergy of the Catholic Church in Ireland; the peasantry gave it increased support; its influence spread beyond its predecessor’s limits. The National League, however, was only the Land League under another name;[79]its leaders and officials were the same men; its ‘branches’ were those of the League it replaced; its real objects were exactly the same, the overthrow of British rule in Ireland, and the annihilation of the Irish landed gentry. But the methods it employed to work out its ends were, to a great extent, different; open agitation was kept down; public meetings, likely to be violent, were not held; the perpetration of agrarian crime was not encouraged. The movement, in a word, was comparatively secret and below the surface; but it was essentially the successor of the Land League in its aims; we may say of it, with a slight change, in the words of the poet—
‘Facies non una sororum,Nec diversa tamen.’
‘Boycotting’ was now made the chief weapon of the reformed conspiracy; ‘National League Courts’ were held regularly in many districts, at which this barbarous interdict was systematically pronounced on persons violating ‘the unwritten law’ of the old League; the persecution against landlords, agents, ‘land-grabbing’ peasants who were ‘disloyal and traitors,’ and traders suspected of dealing with ‘rotten sheep,’ was carried on with a pertinacity and ingenuity hardly known before; the number of derelict farms augmented; and the Government found it far from easy to deal with these crimes. At the same time, ‘the Nationalist Press,’ as it had been named, fullyrevealed the purpose of the conspirators; trusting to impunity, under the law of libel, which depended upon the will of juries, it was even more treasonable and seditious than before; and it gave infamous license to defamation of personages in high places, worthy of the abominations of the Père Duchesne.[80]Ireland, however, remained in comparative peace while the recent measure of repression continued in force; but this was injudiciously allowed to expire in 1885—a strange act on the part of a Conservative Ministry; and in a short time agrarian disorder broke out afresh. Crimes of this class had fallen, in 1884, to seven hundred and sixty-two in number; they were one thousand and fifty-six in 1886; and ‘boycotting’ had increased fourfold.[81]
The National League remained quiescent, while Mr. Gladstone was making another surrender, and endeavouring to carry Home Rule through Parliament. Upon the rejection of the measure of 1886, its activity was renewed; and it found considerable support from the American Fenians, who, from first to last, had been its chief paymasters. I have referred to the Convention at Chicago graced by Parnell’s envoys, and to the wild boast that the English ‘government of Ireland was to be made impossible;’ the treasonable aspect of the conspiracy became at once manifest. The League was assisted by another season of distress, from 1886 to 1888; the number of its adherents greatly increased; it began, like its predecessor, to defy the authority of the State. I have already dealt with this movement on its political side; I shall not repeat what I have already written: how the League endeavoured to stir up disorder in Ireland; how it declared open war against the Castle; how it tried to terrorise the ministers of the law; how it made ‘boycotting’ more effective than it had ever been; how, if responsible for many grave deeds of blood, it mainly relied on this malign influence, which tortured hundreds of victims in many districts, and was fitly compared to ‘the pestilence that walks in darkness;’ how Mr. Gladstone and the Opposition, to the disgrace of both, gave the conspiracy their support and excused its crimes; and how it was ere long put down by Mr. Balfour strongly seconded by Rome. But I must say a word on the agrarian side of the movement; for this illustrated the increased ingenuity of the League. Some of its leaders issued a mandate against the payment of rent, except upon reductions to an enormous extent; should the landlords refuse, the tenants, on every estate, were to lodge their rents into what was called the ‘War chest,’ a common fund to be held in trust; the object of this being to prevent the secret payment of rent, which had repeatedly, we have seen, taken place, and to put a stop to ‘defection from thecause.’ The ‘Plan of Campaign’ as was its name, was thus ushered on; it was a criminal plot of the very basest kind; but though it proved successful in some instances, and it caused much agrarian disorder and crime, it was, on the whole, a comparative failure. The peasantry, close-fisted and shrewd, distrusted the so-called ‘trustees of the War chest;’ they generally declined to put their money in it; the ‘Plan’ was only carried out on few estates, though it compelled many landlords to make reductions of rent; it is remarkable that Parnell did not approve of the swindle. Long, however, before the defeat of the League, there had been a thousand instances of agrarian crime: five thousand miserable beings had been ‘boycotted,’ in many cases with frightful results; a thousand had been placed under the protection of the police. As had happened during therégimeof the Land League, these victims were nearly all of the humble classes.
In 1887 another change was made in the Irish land system, essentially a development of the Land Act of 1881. That measure, I have said, applied to tenants at will only, that is, liable to be dispossessed by a notice to quit; it did not apply to tenants under leasehold tenures. A sharp distinction, therefore, was drawn between the two classes; a farmer, with land on one side of a ditch, could secure the advantages of the ‘Three F’s;’ his neighbour, on the other side, could not; the distinction was so palpably harsh, that many landlords in Ireland saw its injustice, and enabled leasehold tenants to obtain the benefits of the law. An Act, prepared by Lord Salisbury’s Government, brought ordinary Irish leaseholders within the Land Act of 1881; these were given a right to have ‘fair rents’ fixed, and ‘fixity of tenure’ and ‘free sale’ under certain conditions. The Act of 1887, also, empowered the Courts to set aside perpetual leases unfairly obtained; and it relaxed the restrictions of the Act of 1881 with respect to subletting and subdivision, and the exclusion of ‘town parks.’ Itimproved, moreover, the law of ejectment, facilitating the vindication of the rights of the landlord; and—a strange provision—it enabled a middleman, in certain events, to creep out of his contract, and to free himself from the rent due to his superior landlord. In consequence of the fall of prices that had lately occurred, and the depression of agriculture that had been the result, the Act, too, reduced, for a short period of time, ‘fair rents’ that had been already fixed; and it contained other enactments wholly in the interest of the occupier of the Irish soil. Regarded as a whole, something was to be said for the measure, on the principles of the legislation of 1881; but the liberation of the middleman from the payment of a debt has been attended with grave wrong, and was an ominous precedent leading to others of the kind. The new law was, of course, another inroad on the rights of the Irish landlord, another innovation made against his interests; it has certainly strengthened his claim to compensation for the loss of his property, acknowledged by Mr. Gladstone to be unquestionable, should it be reasonably made out. For the rest, the National League made a boast that the Act had been wrung by its efforts from a foreign Parliament; the Act certainly, like that of 1881, was a concession, derogating from the rights of a powerless class, in the hope of weakening a conspiracy against the State, by detaching from it large classes supported by it, and handing over to these what had belonged to the Irish landed gentry.[82]
The Land Act of 1887, it has been alleged, was the principal cause that disorder in Ireland was suppressed, and that comparative peace was restored. The measure may have had effects in this direction; but these assuredly were not great; the number of leaseholders was not large; the reductions made in ‘fair rents’ were temporary andsmall. In truth, as agrarian war, stirred up by the Land League, did not diminish when the Act of 1881 was passed, but was brought to an end by what is called coercion, the agrarian war, stirred up by the National League, was quelled, not by the Act of 1887, but by resolute government, assisted by a repressive measure infinitely less stringent than that of 1882, and, in some degree, I have said, by Rome. It is worse than unwise to ignore plain facts; grave outbreaks of disorder and crime in Ireland can only be put down by severe means, and invariably have been put down by these; that ‘force is no remedy’ is mere false sentiment. The violence, nay, the power, of the National League decreased rapidly and greatly after about 1889; the conspiracy seemed well-nigh to have dwindled away. This was partly because Parnell, negotiating with Mr. Gladstone, in the hope of obtaining Home Rule, discouraged agitation of every kind in Ireland, and in order to hoodwink the English people, and to bring about the ‘Union of Hearts,’ represented, with his followers, that Ireland was at perfect peace, and only awaited ‘self-government’ to be completely happy. But infinitely the most potent reason was that the fall of Parnell almost broke up the League; his creatures split into angry factions, exasperated against each other by furious discord; as the result the organisation of the League was shattered; the peasantry and the Catholic priesthood fell away from it. At the same time the Fenians in the United States, much its best supporters, withdrew the subsidies they had hitherto lavished; the League became penniless and almost powerless. By 1895 the conspiracy showed scarcely a sign of life; agrarian crime had sunk to a very low ebb; there was no sign of a movement against the payment of rent; order prevailed, it may be said, throughout the community. The conspiracy, nevertheless, was not dead; its leaders, if quiescent, had not disappeared; well-informed observers knew that the end had not come. I havedescribed in another chapter, by what means, and through what conditions, it revived gradually under Lord Salisbury’s third Government, and acquired strength that may be on the increase; it is not yet formidable, in any real sense, and its leaders are not to be named with Parnell; it is not receiving funds as yet from America; but the United Irish League is its true successor; and this commands eighty votes in the House of Commons. Time only can show if a period of agrarian strife and crime may not be about to open again for Ireland; it is foolish optimism to assert that this is impossible, or to contend that the agrarian legislation of the last twenty years, as regards the Irish land, will necessarily, or even probably, produce this fortunate result.
In 1891 another change was effected in Irish landed relations, as usual in the interest of the tenant, and against his landlord. Middleman tenures had well-nigh been extinguished; but some hundreds, probably, were still to be found; and as a middleman, through the legislation of 1887, was enabled to repudiate his contract, in certain cases, and to escape the payment of rent to his superior landlord, he was now to obtain an advantage in other instances. The large majority of this class of intermediate owners, originally created in the eighteenth century, held, at least, in present times, by perpetual leases, which had long ago, as a rule, been converted into estates in fee farm, that is, estates in fee, subject to a perpetual rent; Parliament passed an Act in 1891, enlarged and amended five years afterwards, declaring that, in cases in which tenants of this kind were ‘inbonâ fideoccupation’ of lands, under rents which, in the judgment of the Land Commission, should be ‘a full agricultural rent,’ they might either agree with their landlords to redeem the rent at a price to be determined by that tribunal, or, should the landlords refuse their consent, might have ‘fair rents’ fixed as in the instance of common farming tenants.[83]Theapplication of this law could not extend far, for tenants of this description were very few; but it asserted a strange, and, I think, a most vicious principle. The Act practically forced a superior landlord, often a poor man, either to accept a price assessed by a Court over which he had no control, in lieu of a rent, in all probability reasonably well secured, or, as an alternative, to submit to have a ‘fair rent’ fixed on the land, the rent to be discharged from improvements made by the tenant. If, therefore, a tenant of this kind had built, say, a valuable house, on his holding, which would thus largely add to the security for the rent, this—at least, so it is generally believed—was not to be taken into account in fixing ‘the fair rent;’ and this principle, it may confidently be predicted, will be extended further. Should a tenant, at a ‘fair rent,’ in this predicament, be evicted for the failure to pay the rent, a law, in all human probability, will be made, to obtain for him compensation, under the Act of 1870, from the benefits of which he would be, as affairs stand, excluded. The result might be that if, as would often happen, the improvements he had made were of great value—his interest, in the land, being a perpetual interest—the sum the landlord would be adjudged to pay, might swallow up the whole value of the rent, and practically confiscate his whole property.[84]
In 1896 another inroad was made on the rights of Irishlandlords, and another dole given to the tenant class in Ireland; the descent to Avernus had proved easy; a Conservative Government had followed it since 1887. This fresh legislation was mainly in the interest of the Presbyterian farmers of Ulster, who had supported the Union almost to a man, and possessed no little political weight; but who, always separated more or less from their landlords, had shown dissatisfaction with the fixing of ‘fair rents,’ and had begun to cry out for what is called ‘the compulsory purchase’ of the estates of their landlords, a policy on which I shall comment afterwards. The Bill contained just and well-devised provisions; it improved the procedure for fixing ‘fair rents,’ if not nearly as thoroughly as it ought to have done; it protected the leases creating ‘fixity,’ under the new tenure—Mr. Gladstone, flying in the face of the ablest lawyers, had passionately declared that these were sacrosanct—in instances in which these might have been annulled; it proposed, what I had always considered right, that old arrears of rent ought not to be allowed to hang over the heads of tenants, and that rent could not be recovered on eviction, if due for upward of two years.[85]But the Bill abounded in principles dangerous and false; it was, taken as a whole, a mischievous measure; it was another mine sprung upon the Irish landed gentry. Lands hitherto excluded from the benefits of the ‘Three F’s,’ under the Acts of 1881 and 1887—that is, demesnes, town parks, residential, and pastoral holdings—were largely brought within the scope of the Bill, that is, they were made subject to ‘fair rents,’ and, if held by tenants, were practically taken away from the landlords; the provisions of the Bill, as to demesnes, were especially harsh; many amansion and demesne, which might happen to be let, would really become the property of the tenant, the owner being put off with a rent-charge. The worst proposals of this measure, however, were those relating to improvements made by tenants, exempted from rent, we have seen, by the Act of 1881. The Courts of Justice in Ireland had rightly declared with one voice, that improvements of this kind were not to be discharged from rent, unless they were the improvements treated by the Act of 1870, that is, rents might be charged on tenants’ improvements, if these did not fall within the definition laid down by that law, or if they were outside the limitations it had imposed, in order to shut out obsolete and unjust claims, which might harass and do grievous wrong to landlords. All this was completely changed by the new measure; the definition of improvements was wholly altered, in order to secure their being exempted from rent; the restrictions in point of time, and many other matters, as regards claims for improvements, were largely swept away, and the power of ‘contracting out’ of such claims was still further abridged. The whole law, in a word, as to tenants’ improvements, as these were to create exemption from rent, was placed on altogether a new basis; this was detrimental in every respect to the landlord, and gave advantages to the tenant, in my judgment, utterly unjust.[86]
The Bill contained other provisions, all in the same direction, that is, for the advantage of the Irish tenant, and to his landlord’s loss, especially one relaxing the law as to the subdivision and subletting of farms, an inveterate and very pernicious practice. It introduced, also, a new principle, on which I shall say some words afterwards, with respect to another experiment on the Irish land, that is, what is called Land Purchase, under conditions, notthought of before, until they were laid down by a Conservative Government. The measure was hustled through the House of Commons with such indecorous haste, that Sir Edward Carson, now a law-officer of the Crown, walked out of that Assembly to express his disgust; it narrowly escaped defeat in the House of Lords, loyal as the Peers to Lord Salisbury are; indeed, though hardly debated, its vices were soon made manifest. It is unnecessary to point out what the general character of the Act is; it enlarged very considerably the sphere of the ‘Three F’s,’ greatly increasing the wrong done to the Irish landlord, by doing away with the restrictions, placed by Mr. Gladstone, in 1870, on illegitimate claims in respect of improvements; its direct tendency was to reduce rents wholesale, and to promote more litigation between landlord and tenant; and if it encouraged tenants to make improvements on their farms, its plain effect, I will not say its purpose, was to ‘improve the Irish landlords out of their estates,’ the contemptuous phrase of a great master of Equity. Its mischief, however, went a great deal further; tenants making improvements are only exempted from rent, in respect of these, by this Act; they are not within the protection of the Act of 1870, if improvements of any kind are excluded by it; if a tenant, therefore, makes an improvement on his farm, which is not ‘suitable’ to it in a real sense, say, builds a mansion upon a petty holding, he will not be entitled to compensation, should he quit it, even though dispossessed for non-payment of his rent. But tenants, in these circumstances, like those I have referred to before, would assuredly proclaim that they had here a great and real grievance; and they would be relieved from it, doubtless, by another law, giving them compensation, perhaps, to their landlord’s ruin. A dangerous principle is thus hidden within the Act; this will probably be asserted against the owners of ground rents, not only in Ireland, but in England and Scotland; and the law,taken as a whole, has strengthened the claim of the Irish landed gentry to be indemnified, as was solemnly promised, for what they have suffered from the legislation begun in 1881.
While the Irish land system was thus being dealt with, on the side of occupation, during many years, experiments were made on it, likewise on the side of ownership. Resenting the legislation that had produced the ‘Three F’s,’ Conservative politicians took it into their heads that Mr. Gladstone had ‘created’ ‘dual ownership,’ as they gave it the name, in Ireland; they insisted that this was simply an intolerable thing. Unfortunately Mr. Gladstone had no more ‘created dual ownership’ than he had created the mountains and lakes of Ireland; he had only developed the joint ownership, which the Irish tenant possessed in his holding, in thousands of instances, if he had developed it under the very worst conditions. This theory, however, at which Burke would have laughed with contempt, and which revealed the incapacity to understand Irish land tenure, ingrained, it would appear, in the English mind, was eagerly taken up and found much support; it was resolved to extend the process of converting tenants in Ireland into owners of their farms, by a method hitherto untried, and unknown in any part of Europe. Under the Church Disestablishment Act, and the Land Acts of 1870 and 1881, the State had advanced money to the occupier of the Irish soil, in order to enable him to acquire his farm; but it had made it incumbent on him to contribute part of the price; the transaction, therefore, was, in a real sense, a purchase. This, the only security for honesty and thrift, was taken away in 1885; Parliament passed an Act enabling the Irish tenant to become owner of his holding without paying down a shilling; the State was to advance the whole price; and the State was to be repaid by a terminable annuity, charged on the land, and extinguished at the end of less than half a century. Thisterminable annuity was to be much less than a true rent, or even than a ‘fair rent’ adjusted by the State; the transaction, therefore, was not a purchase, but a gift, akin to a bribe, another largess bestowed on the tenant class in Ireland, and another injury, as I shall prove, inflicted on the Irish landed gentry. This ‘Land Purchase,’ as it was falsely called, was to be voluntary on the part of landlord and tenant; it was to be conducted on the footing of free contract, as had been the case under the preceding statutes; the State was to obtain a guarantee from the landlord; and Parliament voted £5,000,000 to carry out this policy.
Exactly as had happened in the case of the Encumbered Estates Act, this scheme of ‘Land Purchase’ was pronounced successful; some scores of landlords sold land, some hundreds of tenants bought it; the real nature of the proceeding and its inevitable results were ignored; it was even boasted that ‘dual ownership’ would be got rid of, nay, that the Irish Land Question was being finally ‘settled.’ But when the first sum of £5,000,000 had been expended, and Parliament was asked to vote a second sum, it began to hesitate as to this dealing with the Irish land; the British taxpayer demurred and growled; with a true instinct he disliked the security; it was found very difficult to procure the funds required, large as the majority was of Lord Salisbury’s Government. His Ministry, however, adhered to the new policy; and Parliament enacted a measure in 1891, which I have always thought unconstitutional in the highest degree, not to speak of the evils it was certain to produce. By this Act a sum of about £30,000,000 was made forthcoming to facilitate ‘Land Purchase,’ to abolish ‘dual ownership,’ and to change Irish tenants into owners of land; this sum was to be secured by the methods before referred to, that is, by terminable annuities less than any equitable rent, and by guarantees on the part of selling landlords; but, furthermore, a whole series of funds, devoted to Ireland, for Irish purposes, andabsolutely essential to her most important needs, were appropriated to make good any default on the part of ‘purchasing’ tenants, in the payment of annuities charged on their farms; and even the Irish counties were rendered liable in the last resort. Should, therefore, tenants in Ireland, who had acquired the ownership of their farms, refuse to pay those annuities on any pretence, say, through an appeal made by a Land League conspiracy—the manifesto against all rent cannot be forgotten—this extraordinary spectacle would then be seen: the State would have a right to seize upon the grants made for National schools and lunatic asylums throughout Ireland; these institutions would be shut up; children and madmen would be let loose through the country; and the owner of an Irish estate would have to pay for the dishonesty perhaps of his former tenants. The late Lord Randolph Churchill severely condemned this scheme; I agree with him it was utterly unjust, and but too characteristic of the contempt of the rights of Ireland, unhappily often displayed by British statesmen.
Only a sum, it will be observed, of about £40,000,000, that is, two of £5,000,000, and some £30,000,000 more, has thus been made available for ‘Land Purchase;’ this obviously could not transfer even a fourth part of the Irish land, valued, we have seen, by Mr. Gladstone at £300,000,000—in a remarkable speech in reply to Lord George Hamilton—and almost certainly worth from £150,000,000 to £200,000,000. The process of doing away with ‘dual ownership’ and making tenants in Ireland owners of their farms, having been pronounced by its authors slow, the Act of 1896, referred to before, enabled the landlord’s guarantee to be dispensed with, and provided that, in the case of hopelessly embarrassed landlords, whose estates were being offered for sale in the Courts, the tenants should virtually have a right of pre-emption, thus asserting a principle, on which I shall dwell afterwards, and known as the ‘CompulsoryPurchase’ of the Irish land. I shall point out, in another chapter, the present and the inevitable future results of this policy of so-styled ‘Land Purchase;’ suffice it to say here, that, in my judgment, it betrays utter ignorance of the Irish land system, and of the customs and inclinations of the Irish peasant; that it proceeds on an essentially immoral principle, the bribery of a class to promote its welfare; that, from the very nature of the case, it cannot abolish ‘dual ownership;’ that, human creatures being what they are, it cannot, as is being already proved, establish a thriving body of occupying owners on the Irish soil; that it must create sharp and unjust distinctions in Irish land tenure, iniquitous to the landlord and to every tenant, who may be excluded from its benefits; that it must directly tend, as it is even now tending, to arouse a cry for a wholesale confiscation of Irish estates, the most shameful and wrongful Ireland has yet witnessed; and that so far from settling the Irish Land Question, it must necessarily unsettle it from top to bottom. As respects the legislation I have briefly described, on the side of the occupation of the Irish land—by many degrees the most important—I shall also comment upon its results in a subsequent chapter, after examining its administration by the tribunal it has set up. But a word may be said, in this place, on its essential character: from 1881 to the present time, it is absolutely without a precedent in civilised lands; it has trampled on economic science and the truths it teaches, as, indeed, its chief author made his boast; it has created a mode of land tenure in Ireland not in accord with fact, which has virtually deprived the Irish landlord of real ownership in his estate, has turned him into a kind of annuitant, and has virtually changed the Irish tenant into a kind of owner, but under conditions absolutely bad; its inevitable tendency was to cut down rents wholesale, without regard to the simplest justice; it established a system of mischievous litigation between landlord andtenant, demoralising and increasing the division of classes; it exhibited, on an enormous scale, characteristic contempt of Irish rights of property; and finally, if Parliamentary pledges are to be fulfilled, and gross wrong is not to be consecrated by law, it has given the Irish landlord a great and legitimate claim to compensation from the State. As we survey this unwise and destructive medley of law, we are forcibly reminded of the words of Burke:—‘I am unalterably persuaded that the attempt to oppress, degrade, impoverish, confiscate, and extinguish the original gentlemen, and landed property of a whole nation, cannot be justified under any form it may assume.’[87]
THE QUESTION OF THE IRISH LAND (continued)—THE ADMINISTRATION OF THE IRISH LAND ACTS
The administration of the Land Act of 1870 in the main good—Difficulty about claims for tenants’ improvements—The administration of the Land Act of 1881, and of its supplements—The Land Commission and its Sub-Commissions—Allowances to be made for these tribunals—Principles which the Land Commission should have adopted in fixing ‘fair rents’—The procedure and practice it ought to have established—It made mistakes as to both—The nature of the Sub-Commission Courts—This was objectionable in the highest degree—These Courts have, however unconsciously, done grave wrong to Irish landlords—Causes of this—Characteristics of their proceedings—They disregarded the principles they ought to have followed, and adopted faulty and erroneous methods—Different illustrations of these grave mistakes—The Land Commission and appeals as to ‘fair rent’—Importance of this subject—Faulty procedure of the Land Commission in appeals—Valuers—The second Land Commission—Its procedure worse than that of the first—Theory of occupation right—This another wrong done to landlords—The Fry Commission and its report—Confiscation of the property of Irish landlords—The proofs of this—Apologies made for the Land Commission—The administration of the Land Purchase Acts.
The administration of the Land Act of 1870 in the main good—Difficulty about claims for tenants’ improvements—The administration of the Land Act of 1881, and of its supplements—The Land Commission and its Sub-Commissions—Allowances to be made for these tribunals—Principles which the Land Commission should have adopted in fixing ‘fair rents’—The procedure and practice it ought to have established—It made mistakes as to both—The nature of the Sub-Commission Courts—This was objectionable in the highest degree—These Courts have, however unconsciously, done grave wrong to Irish landlords—Causes of this—Characteristics of their proceedings—They disregarded the principles they ought to have followed, and adopted faulty and erroneous methods—Different illustrations of these grave mistakes—The Land Commission and appeals as to ‘fair rent’—Importance of this subject—Faulty procedure of the Land Commission in appeals—Valuers—The second Land Commission—Its procedure worse than that of the first—Theory of occupation right—This another wrong done to landlords—The Fry Commission and its report—Confiscation of the property of Irish landlords—The proofs of this—Apologies made for the Land Commission—The administration of the Land Purchase Acts.
I turn to the administration of the new Irish Land Code, of which I have described the distinctive features. The County Courts of Ireland, I have said, were entrusted with the task of carrying out the Land Act of 1870; the principal duty of the judges was to determine rights, under the Ulster and analogous Customs in the south, and to declare the sums to be paid to tenants, when leaving theirholdings, for compensation for improvements, and in respect of disturbance. As evictions were by no means frequent, in the period between 1870 and 1879, the litigation before these tribunals, under these different heads, though by no means trivial, was not excessive; the applications on the part of tenants were not very numerous; there was ample time to consider the law, whether in the subordinate or the appellate Courts; and though there was much difference of opinion as to the amount of compensation to be given to suitors, the administration of the Act was not seriously impugned,[88]and, on the whole, was reasonable and just. The most remarkable circumstance in the inquiries held before the Courts was, certainly, the extravagance of the claims put forward, on account of tenants’ improvements, circumscribed as these were by the limitations of the law; everything in the nature of an agricultural work was called an improvement, from repairing an old fence to cleaning an old drain; hours and days were lost in endeavours to disentangle the truth, and to arrive at sound and legal conclusions. I could fill scores of pages with descriptions of demands of this kind, usually pressed with reckless and hard swearing; they ought to have been a warning, as unhappily they were not, not to break down the restrictions contained in the Act of 1870, and not to extend legislation, in this direction, against the rights of the landlord. I confine myself to a single example: I tried a case, in 1895, in which a tenant’s claims, under the Act of 1870, were £1130; I cut these down to £164; after deducting £155 found due to the landlord, I adjudged to the tenant a sum of less than £10; and there was no appeal from the decision I pronounced.[89]
The Land Act of 1870 has been well-nigh superseded bythe great measure of 1881, and by the legislation which has been its supplement. The administration of this part of the new Land Code, by many degrees the most important, was given, as I have pointed out before, to a wholly new tribunal, the Land Commission, and to Sub-Commissions dependent on it; a concurrent jurisdiction was given to the Irish County Courts; but they have had very little to do in this province. The principal work of the Land Commission has been to fix ‘fair rents,’ and to make statutory leases, ‘fixity of tenure,’ in a word, in a kind of disguise, and thus to give effect to the policy adopted by Mr. Gladstone in 1881. The three original members of the Land Commission, in all respects its directors, were the late Mr. Justice O’Hagan, the late Mr. E. F. Litton, and the late Mr. John E. Vernon; Lord Salisbury denounced these appointments in emphatic language, as being against the just rights of Irish landlords;[90]the charge was not without plausible grounds at least, for Mr. Justice O’Hagan had been one of the ‘Young Ireland’ party, and Mr. Litton had been a strong tenant-right advocate. These two gentlemen, nevertheless, were most honourable men, and capable, if not very distinguished, lawyers; Mr. Vernon was an excellent and experienced country gentleman, if, in politics, of the Liberal faith; and as all three have long ago passed away, it would be unjust to make charges of illegitimate conduct, even if they may not have been wholly free from unconscious bias. Great allowance ought to be made, in common justice, for the Commissioners in the situation that had been made for them, and regard being had to their most arduous duties.To fix ‘fair rent,’ even approximately, was difficult in the extreme; as Judge Longfield predicted many years before, and every well-informed Irishman knew, the adjustment of rent, through the agency of the State, would inevitably cause a general lowering of rents. Again, the Commissioners were, from the outset, harassed by a rush of applications to fix ‘fair rents;’ these came in, within a few weeks, in thousands; they were tempted, therefore, to set about their work at once, without taking the careful precautions, or entering into all the considerations, the nature of their duty required. Two circumstances, also, no doubt, had effect on their minds; the Land League was creating a Reign of Terror, and destroying the property of the Irish landlords; the Commissioners probably hoped that they would weaken the power of the League, by, so to speak, bidding against it, and cutting rents down. Above all, the Land Commission, like the Encumbered Estates Commission, was a tribunal set up to carry out a policy, that is, in word, to abate rents; and all experience, Irish experience notably, proves that such a body of men usually fulfils its mission.
Mr. Gladstone, we have seen, had expressed a belief that ‘fair rents,’ as a rule, would be fixed by contract; that the Act of 1881 would produce this result; and that this part of the work of the Land Commission, accordingly, would not be very great. Unquestionably, too, with his leading followers, he was convinced that rents in Ireland would not be largely reduced;[91]it is important to bearthis distinctly in mind, regard being had to subsequent events. These anticipations were to prove vain; but the Land Commissioners possibly may have shared his views, and may have resolved to act upon them, before they first addressed themselves to the task of ‘fixing fair rents.’ After experience, it is easy to be wise; but we can now clearly discern what they ought to have done, considering the heavy work they were soon to find imposed on them. Their first duty should have been to establish some standard, which would make a reasonable criterion of rent; the means to accomplish this end were not wanting. Mr. Law, the Irish Attorney-General of Mr. Gladstone, one of the most distinguished lawyers of his day, and afterwards a holder of the Great Seal of Ireland, had made a definition of ‘fair rent’ in the House of Commons; ‘a fair rent was to be a competition rent minus the yearly value of the tenant’s interest in the holding; that was what was intended, and anything else would be monstrously unjust.’[92]For some reason that has not transpired, this definition did not find a place in the Act; but the authority of its framer was great; it must have been known to the Land Commissioners; had they adopted it, and based their decisions upon it, things would have been very different from what they are at the present time. But there were other tests to indicate a standard of rent, to be regarded at least, if not conclusive. The valuation of the lands of Ireland made for the assessment of rates, Griffith’s valuation, as it was commonly called, which Parnell had made a measure of ‘fair rent,’ would certainly have been of real use, though it varied greatly in different counties; and the Commission appointed by Mr. Gladstone, only a few months before, had, I have said, reported, that Ireland, as a whole, was inno sense an over-rented land. There was another consideration, as regards Irish rents, which the Land Commissioners ought to have borne in mind. The rents on the estates of the great landlords, and of the gentry of old descent, were, as a rule, low; the rents of the purchasers under the Encumbered Estates Acts were high, nay, excessive, in not a few instances.
Other circumstances, moreover, of great importance, ought to have been taken into account, with respect to this subject. The rental of Ireland was not as high as it had been before the Great Famine; where rents, therefore, had not been increased, and had been regularly paid for a long series of years, there was the strongest possible presumption that these would be ‘fair.’ Again, the material progress of Ireland had been great during the forty preceding years: the wages of labour had, indeed, risen; but owing to the introduction of good farm machinery, the cost of production, in agriculture, had diminished; the extension of the railway system had opened new markets, and had brought even Connaught within a few hours of Great Britain; steam navigation had multiplied and improved; the modes of husbandry and the breeds of stock of all kinds had become infinitely better than they had been; and prices of late had been very high. These were all elements to be regarded in the determination of ‘fair rent;’ they ought to have been examined with care; and inquiries on these matters should have extended over a long space of time. Moreover, as the Land Act of 1881 discharged improvements made by tenants from rent, as these were defined and limited by the Act of 1870, the greatest pains ought to have been taken that claims for exemption should be strictly dealt with, and not permitted to run riot, especially as it was notorious that demands of this kind, made under the law already in force, were usually excessive, supported by untrue statements, and by no means easy to resist and disprove. Another fact, also,of the gravest moment, ought to have been thoroughly considered, as regards this question. As improvements made by tenants were not to be charged with rent, it was but equitable that the lands they might hold should be valued as if in their normal state; that if these had been deteriorated, either through wilful misconduct, or gross neglect, their occupiers were not to make profit of their own wrong; that deterioration, in a word, was not to be allowed to work rent down, and was to be taken into account, in adjudicating upon ‘fair rent.’ This was the more necessary because it was well known that numbers of farms in Ireland had been more or less run out; and especially because, as in the case of the ryot of Bengal, under the Permanent Settlement of Lord Cornwallis, an Irish tenant would be strongly tempted to injure his lands, if he believed that, when ‘a fair rent’ should be fixed on them, he would be permitted to take advantage of his own default. It should be added that, in the fixing of ‘fair rents,’ the large sums which, in many instances, Irish landlords had laid out in improving their estates, notably since the years that succeeded the Famine, ought, as a matter of course, to have been kept in mind.
These were the general principles which should have guided the Land Commission in approaching the question of fixing ‘fair rent.’ There was nothing in the Act of 1881 to prevent the Land Commissioners, as a Court of first instance, adjudicating directly in cases of this kind, or to compel them to refer these to their Sub-Commissions; indeed the plain intention of the law was in a contrary sense. Had the Land Commissioners adopted this course—and this, I venture to say, was their obvious duty—they would, no doubt, have considered the questions before them at length, and with close attention; have made their inquiries go back many years, and have laid down, in elaborate judgments, the maxims and rules to be applied in the fixing of ‘fair rent.’ The evidence that would havecome before them would have been of two kinds: that which depended upon the statements of valuers, on the side of landlords and tenants alike; this, of course, would be of great importance; but it should have been borne in mind that it would be biassed evidence; and that, in the existing state of Ireland, and of Irish opinion, the statements of tenants’ valuers would require to be strictly watched. The other head of evidence was of a much more trustworthy kind; it was indicated by the circumstances of the cases being heard, and was necessarily suggested by the inquiries themselves. This class of evidence would be desired from a consideration of the rate of rent in the neighbourhood or even of adjoining lands, in a word, of what may be called the market price of rent; from an examination of what a reasonable rent would be, payable by a solvent tenant to a fair-minded landlord; and even from a review of rent fixed by the competition of bidders for land, these circumstances, in every given case, being, of course, controlled by a due regard being had, in the words of the law, for the ‘tenant’s interest.’ There was another and very important test; the sums paid in Ulster and elsewhere on the transfer of farms were usually large, sometimes not less than a third or even a half of the value of the fee simple; and as these sums were always subject to the existing rents, the first charges on the lands being sold, this would afford a strong presumption that such rents would be ‘fair.’ No doubt the Act of 1881 declared that such payments were not to be taken into account,per se, and apart from other considerations in the actual fixing of rent, so far as regards a given farm; but the law certainly allowed—and it has always been so held—that payments of this kind might be kept in view in forming, generally, an estimate of what a ‘fair rent’ should be.[93]
The Land Commissioners, but from a different point of view, might have learned something from Parnell in this matter. They were, no doubt, harassed by the prospect of the task before them; but had they taken a certain number of ‘test cases,’ and investigated them as a Court of first instance, they would have laid down principles to be followed in the fixing of ‘fair rent;’ have explained these in well-considered judgments, going over the whole field of inquiry; and, so far as in them lay, have tried to do justice. Even if they had not adopted this course, one of their members, as the Act of 1881 provided, might have taken part for some time with their subordinates in theadjustment of rent; this would have been in accord with Mr. Gladstone’s assertions that the Land Commission was to be the real arbiter of rent. Unfortunately the Commissioners acted quite otherwise; their conduct, palliate as you may, was an abdication of a plain duty, on the plea that they were overwhelmed by the work before them. Not one of them ever sat in a Court of first instance to fix ‘fair rents;’ they delegated this the most important of all their functions to their Sub-Commissions, to which they thus committed the charge of adjusting rent throughout the whole of Ireland. These Sub-Commissions formed Courts, each composed of three members, one a legal Commissioner and two laymen; the Sub-Commissioners were nominees of the Government, whether appointed on the recommendation of the Land Commission or not is not certain; the only qualifications for the legal Commissioners were that they should be barristers or solicitors of six years’ standing, and for the lay Commissioners that they should have some knowledge of land. These were strange tribunals to deal with property worth hundreds of millions; but this was only a part of what must be called a scandal most discreditable to those responsible for it. The Sub-Commissioners, one and all, were much underpaid; their salaries were inadequate to secure fitting men; and, one and all, they were at the sufferance of the men at the Castle, liable to be dismissed at a moment’s notice, and without the independence which is the best guarantee of justice. Some of the Sub-Commissioners, indeed, were only paid for the job, by the day; they had, therefore, a direct personal interest to reduce rents, in order to make work for themselves and to retain their places. Even in Ireland such tribunals were never set on foot, since Cromwell assembled his Courts of Claims to give their sanction to his huge forfeitures; that they were ever thought of is one of the many proofs of the disregard shown to property in land in Ireland. No wonder that it wassignificantly remarked: ‘The whole spirit of our judicial institutions suggests that officers with such extensive powers should be selected with the greatest care and with reference to their possession of high qualifications, and that they should be placed in a position of independence, and should, so far as possible, be lifted above the suspicions that surround them.’[94]
Sixty or seventy officials of this type—the number was afterwards largely increased—were thus, in the significant words of one, ‘let loose over Ireland’ to deal with estates; it is very remarkable that they have never received instructions from the Land Commission how to perform their duties. The procedure of the Courts of the Sub-Commissions was, under existing conditions, as well devised as could be fairly expected. The three Commissioners, who formed a Court, nearly always sate together, and heard the evidence brought before them as to what were ‘fair rents;’ the legal Commissioner decided questions of law; and, this evidence having been taken, the two lay Commissioners inspected the farms, the subjects of the previous inquiries, and having conferred with their legal colleague, determined with him what should be their ‘fair rents.’ This was the ordinary if not the universal practice; if some deviations have been made from it, these cannot be deemed of very great importance. Grave complaints have been made, in not a few instances, of the lay Commissioners, when engaged in examining lands; it has been said that they often neglected and ‘scamped’ their work; but these charges have been hardly, if at all, sustained; my own experience—and it is tolerably large—is that the Commissioners performed their functions with diligence and care, and sometimes gave proof of real knowledge of husbandry.[95]But it was utterly impossible that tribunals of this kind, not composed of experts of a high order, dependent upon the breath of the Castle, without regulations to direct their conduct, and acting, without concert, in many districts, could adjust rent in a satisfactory way, and in conformity with true methods, especially as the work they had to do was excessive; indeed, they sometimes fixed ‘fair rents’ by dozens in a day. It was equally impossible that the Sub-Commissions—and to do their members justice they never made the attempt—could take into account all the manifold and far-reaching elements which enter into the question of ‘fair rent,’ and could set forth, in exhaustive judgments, the principles applicable to a most intricate problem. On the contrary, as a rule, and no doubt wisely, they avoided topics which might have tasked the highest judicial powers; they decided the cases before them summarily, and with little reflection, certainly without the protracted examination required to establish settled rules and doctrines. And the result has been that they disregarded, and even set at nought, a whole series of considerations, of supreme importance, with reference to the fixing of ‘fair rent;’ and, however unconsciously and innocently, they have been the authors, in the first instance at least, of the gravest injustice, and of wrong, done wholesale, to the landed gentry of Ireland.
To make this plain, let us glance back at the principles which assuredly ought to have been kept in view, in coming to sound conclusions on the subject of ‘fair rent.’ It will be seen that the Sub-Commissioners either gave little or no attention to these, or directly violated them in, perhaps, tens of thousands of cases. They have never attemptedto establish some kind of standard, which would form a general measure of ‘fair rent;’ they have completely ignored the definition of Mr. Law, precise and most valuable as it was; they have treated ‘Griffith’s valuation’ as though it did not exist; they have regarded the Report of Mr. Gladstone’s Commission, declaring that Ireland was not excessively rented, as mere waste paper; they have apparently taken hardly any account of the well-known distinction between the low rentals of the great and old landlords, and the rack-rents too often exacted by purchasers under the Encumbered Estates Acts. So, too, it would seem, they have refused to consider the strong presumption that rents would be ‘fair’ if not raised during a long series of years, and if reasonably well paid, within that period; and they certainly have given no real weight, as an element in adjusting rent, to the agricultural progress made by Ireland since the Great Famine. Innumerable complaints have been made against their decisions as to the exemption of tenants’ improvements from rent; but my belief is that they gave great attention to this subject; the wrong that has been done was owing to the difficulty of the law, and of its application to given cases; and the law, besides, was not, I think, just. On the correlative and most important question of the deterioration of farms through the default of tenants, they have hardly ever inquired into this; they have repeatedly done the landlords wrong; they have made grave and palpable mistakes; and in many instances they have made no allowances for the expenditure of landlords upon their estates. Having thus refused to follow the principles which ought to have been their guide, they have widely deviated in the actual fixing of ‘fair rents’ from rules and methods they should have observed and made effective. They have given too much weight to the class of evidence that was least important and most open to question; they have attached little and sometimes no value to the class of evidence byfar the most trustworthy, and that ought to possess the greatest influence. This has especially been the case, as we shall see, with respect to the sums paid on the transfer of farms, the strongest possible indication that their rents must be ‘fair,’ on the ordinary principles of human nature, and giving the purchasers credit for the simplest common sense.
These are grave charges against quasi-judicial bodies; let us see if they are not completely justified. The Sub-Commissioners, I have said, have taken no heed of Mr. Law’s definition of ‘fair rent;’ but they have acted as though they set it at defiance; they have ignored the principle of competition in fixing ‘fair’ rents. Unquestionably, as Mr. Law pointed out, a deduction should be made from a competition rent, regard being had to ‘the tenant’s interest,’ that is, to his rights in respect of improvements, and perhaps to his rights on account of his tenure, a lease renewable every fifteen years, when a ‘fair rent’ is being fixed on his farm; but why the very idea of competition, that is, of market value, was to be excluded as an element in estimating ‘fair rent,’ is what men of common sense have never understood. This, in fact, was a portentous mistake, with consequences of a far-reaching kind; you might as well argue that because two partners had an interest in a fee simple estate, or two peasants had each a share in a cow, the price of the land or the cow was not to depend on what would be given for it at an auction mart or a county fair. Yet this was a position the Sub-Commissions have always taken; they have always insisted that competition had nothing to do with ‘fair rent.’ The evidence on this subject is conclusive; I can only take a few samples from the statements of a cloud of witnesses, who really seem to make a boast of their faith. Colonel Bayley, a Sub-Commissioner of large experience, has laid it down that the ‘difference between a competition rent and the fair rent would be more than 20 per cent.; it would,I think, be more than that; there would be between 30 and 75 per cent. difference between the fair rent and the competition rent.’[96]Mr. Roberts, another Sub-Commissioner, has deposed to much the same effect: ‘Decidedly, I believe that if the land was put in the market it would bring 25 per cent. more than the rent I put on.’[97]So, too, Mr. Bailey, a legal Sub-Commissioner, very much respected, has alleged: ‘It would be most misleading to take the evidence of letting value in the neighbourhood, thus bringing in competition value, which we rigorously exclude in fair-rent cases.’[98]Mr. Bomford, a well-known Sub-Commissioner, has said, in much the same sense: ‘We do not take the competition rent, and cannot take it into consideration, when fixing what the fair rent should be. Then you utterly exclude, when you come to the fixing of the fair rent, the element of competition?—Yes, except in one matter, when we have town parks.’[99]
Let us now see what distinctions, in fixing ‘fair rents,’ the Sub-Commissioners have drawn between landlords whose rentals were low and landlords whose rentals were really high; and how they have dealt with rents, paid for a long space of time, without having been raised; this is a fair index of the equity of their proceedings. It should be remarked, at the outset, that it soon appeared that rents had only been increased in comparatively few instances, going back over a series of years; yet, as a rule, nearly all rents were indiscriminately reduced. No attempt has been made, by any official of the Land Commission, to answer this damaging charge made, in 1897, at a judicial inquiry held upon the subject: ‘The result of that calculation, the accuracy of which cannot be challenged, showsthat, as the result of all the cases that were heard, in only 8 per cent. of them was any increase of rent for many years prior to 1881 proved. But whether the Sub-Commissioners are dealing with an estate on which for centuries the rents had remained unchanged, and on which the tenants had been fairly treated, or whether they were dealing with estates that had come into the hands of speculators by purchase in the Landed Estates Court, in all cases the average result was the same. They deducted something between 15 and 20 per cent. from the existing rent, no matter how long it had existed, and no matter upon what estate it was being paid.’[100]This significant evidence, too, points to the same conclusion: ‘There is nothing to justify the reductions that have been made in the rents of good landlords, who did not raise their rents in the good years. In fact, the landlords who did raise their rents got off a great deal better, at the hands of the Sub-Commissioners, than the good landlords who did not raise them.’[101]And Mr. Lecky, a calm-minded observer, if there ever was one, has added these striking and pregnant remarks: ‘The landlords who have suffered least have probably been those who simplified their properties by the wholesale evictions, the harsh clearances, that too often followed the Famine. Next in the scale come those who exacted extreme rack-rents from their tenants. These rents had been received for many years, and though they were ultimately reduced more than rents which had been always low, they still, in innumerable instances, remained higher than the others. The large class who regarded land simply as a source of revenue, and, without doing anything harsh, or extortionate, or unjust, took no part in its management, have suffered very moderately. It is the improving landlord, who took a real interest in his estate, who sank large sums in draining and other purposes ofimprovement, who exercised a constant and beneficent influence over his tenants, who has suffered most from the legislation that reduced him to a mere powerless rent-charger, and, in most cases, rendered the sums he had expended an absolute loss.’[102]
The Sub-Commissions dealt with the subject of the exemption of tenants’ improvements from rent, on the whole, as fairly, I think, as could be expected; and on the different questions of law that arose, appeals ran from them to the Land Commission, which usually investigated these cases at length. But this part of the law, really an excrescence on the Act of 1881, was unfair to the landlords, in the circumstances in which they were placed; they were confronted by innumerable and often obsolete and worthless claims, which they had only seldom the means of refuting; and if the demoralisation and false swearing under the Act of 1870 was bad, they were infinitely worse under the Act of 1881. A witty Irishman, indeed, once said that he could wish no severer punishment for Mr. Gladstone than to see him in a Sub-Commission Court listening to those wrongful statements; the mischief has, of course, been aggravated since the Act of 1896 has made the basis for the exemption larger and more ill-defined. The Sub-Commissions, I have said, were gravely in error, almost, as a rule, with respect to the deterioration of land, as an element to be considered in fixing rent; in this respect gross injustice has been done to landlords. There is scarcely any proof that, even in a single instance, the Sub-Commissioners valued land ‘for fair rent,’ as in its normal state; and yet, assuredly, this was what ought to have been done, if a premium was not to be put on misconduct, and because farms had been injured and exhausted in hundreds, throughout Ireland. The deterioration was usually of two kinds—wilful waste committed in order to work down rent, and passive wastecaused by negligence and bad farming. Out of many instances, under the first head, I shall refer to one; the Sub-Commissioners usually gave little or no attention to wrongs of this kind; in this instance they enabled the tenant to make money by his own misdeeds; they reduced the rent nearly 30 per cent.: ‘The dykes were full of stuff and choked, and the sluice-gate, which we had repaired at our own expense, was all choked up, and the water had been left on the land as long as it could stay on it. I complained and remonstrated with the tenant. I sent for Madden, and in Mr. Lyle’s presence I stated this to him. His answer to me was that he was not such a damned fool as to have his land looking well when the Commissioners came to look at it.
‘Sir E. Fry: Did that case come before the Sub-commissioner Court?—It did.
‘Did you give evidence of what the tenant said?—Yes, sir....
‘Mr. Campbell: I will tell you, sir, what they did.
‘How much did they reduce the first judicial rent?—They reduced the first judicial rent; they cut it down from £70 10s.to £51.’[103]
As for passive waste, that is, the bad cultivation of farms, the proof is conclusive that it has been seldom, if ever, considered by the Sub-Commissions in fixing ‘fair rents.’ If we bear in mind that many thousands of acres in Ireland have been well-nigh destroyed by the burning done by tenants, and that hundreds of thousands have been run out by slovenly farming, the injury thus done to landlords has been enormous, especially as tenants’ improvements have been exempted from rent against them; the ‘candle,’it has been justly said, ‘has been melted down at both ends.’ I cite two instances, out of hundreds, of the injustice thus done; it has been proved over and over again that, in the case of two adjoining farms, in all respects of the same natural quality, the rent on that which was deteriorated was fixed at a much lower rate than the rent on that which was in good heart; in other words, the landlord was despoiled of the difference, and the tenant had the benefit of his bad husbandry. I take, almost at random, a case in Ulster: ‘The Commissioners always value the land as they see it. I have two cases on my property in one townland. One tenant was an industrious, hard-working man, who had his farm in very good order. The second tenant, his wife had died, he was in poverty, with a lot of young children, and he himself was not quite “all there.” These two holdings came at the same time before the Sub-Commissioners, and the rents were cut down in each case. When the thing was over, I said to Quinn, who was one of the tenants, “Are you satisfied with your reduction?” “How can I be satisfied,” he said, “when my rent is at the same rate as Hurson’s rent?” I looked at the return and saw he was quite right.... The deteriorated farm was cut down considerably more than the cultivated farm.’ Another remarkable case occurred in the west: ‘I had a case, I think decided this year; a farm that was divided between two sons fifteen or twenty years ago; the father divided the land before I came into the management of the property.