‘Did they get an equal portion? was it divided into halves?—Into halves, and paid an equal rent.
‘Before the Act of 1881?—Before the Act of 1881.
‘And was the land of uniform quality?—Yes.
‘Had one of these men, before he went into Court, greatly deteriorated the land?—Yes.
‘Had the other attended to it?—He had attended to it; he looked after the land very well indeed.
‘What reduction did the man who had deteriorated his half get?—The man who had deteriorated his half got 17½ per cent, reduction.
‘What did the other get?—The other got 7½ per cent.
‘The industrious tenant got 7½?—He got 7½.’[104]
This was obviously gross and crying injustice; but two apologies have been made for acts of this kind. It is said that were a deteriorated farm rented as if it were in a normal state, the tenant could not afford to pay the ‘fair rent,’ in other words, the landlord is to be despoiled for the tenant’s neglect. It is said again that the Sub-Commissioners are bound to value the land as they find it, and cannot estimate it at its intrinsic worth, that is, they are under no obligation to ascertain the truth, and do their duty. Yet this sophistry has been gravely put forward as a justification for palpable wrong, through which the property of landlords has been filched away wholesale: ‘The land to this day has suffered a very serious deterioration in value; but we did not deal with that as against the present tenant ...’[105]‘Have you frequently asked the Sub-Commissioners why they do not attach sufficient importance to deterioration?—No, but I heard them saying one reason was that if they put the rent of the farm as if it had been fairly treated, the tenant would not be able to pay that rent now in the deteriorated state.’[106]The general result of these proceedings as regards exhausted farms has been thus described: ‘My view with reference to deterioration is this. Bad tenants, who had ill-treated and worn out their land, undoubtedly, in my opinion, have obtained larger reductions than they would have got had they farmed well. Probably the reason is that were the Land Commissioners to put a rent on the land according to its natural capacity, before a deterioration, it would bean impossible rent for a broken-down bad tenant to pay. This stereotypes the rent in such cases at a figure unfairly low to the landlord; tends to lower the standard of fair rent generally; is a premium on bad farming; and places tenants under a serious temptation to ill-treat their land, so as to secure a larger reduction from the Land Court than otherwise could be obtainable.’[107]
The Sub-Commissions appear to have disregarded the just rights of landlords in another important respect. Unquestionably, in the great mass of instances, as is inevitable when the land is held in small farms, the Irish tenant had made the improvements on his holding; but the landed gentry, as I have pointed out, had done a good deal since the Great Famine. There is nevertheless cogent evidence that, in ‘fixing fair rents,’ the Sub-Commissions took hardly any account of the expenditure of landlords under this head. In the case of the estate of the late Mr. Talbot Crosbie, one of the best breeders of prize stock in the Three Kingdoms, and a country gentleman of parts and intelligence, these significant facts were conclusively proved: ‘Table E gives the cases of eight holdings upon which there was an expenditure by the landlord of £1936?—Yes.
‘The old rent was £688?—Yes.
‘That was reduced by the Sub-Commissioners to £493?—Yes. A reduction of about 30 per cent.
‘Notwithstanding the outlay by the landlord in the interval of nearly £2000?—Yes, that is it.
‘Table F is a list of eleven farms, on which there was practically no expenditure by the landlord?—Quite so, no recent expenditure. That is, between 1863 and 1887?—There was a good deal done in the famine time, but I did not take account of that.
‘You had no evidence in these eleven cases of expenditure for many years prior to the fixing of the rent?—No. In these cases the old rents tot up to £361?—Yes. And the reductions only brought them to £280?—A reduction of 18 per cent.
‘In other words, on the unimproved farms the reductions only average 18, while on the improved farms they went as high as 30 per cent.?—Quite so.
‘Sir E. Fry: Were these two sets of farms different classes of farms?—They were practically of the same class.’[108]In the same way, in the case of the estate of Lord Leconfield, a great and excellent landlord in the County Clare, the Sub-Commission made no real allowance for a sum of £20,500 expended on twenty-seven farms. ‘Am I right in saying that from 1852 to 1881 there was spent by Lord Leconfield £20,500 in these twenty-seven cases?—The return speaks for itself. That is the result of it.’ ‘No. 4: As an example of the reductions of the Sub-Commissioners were the rents put back to what they had been in 1852?—Very nearly. There is a difference, I think, of about ½ per cent.?—About ½ per cent. The rent in 1852 was £2524, and the judicial rents on these farms was £2632.’[109]
I pass on to the methods pursued by the Sub-Commissioners in actually fixing ‘fair rents.’ As I have said, they usually heard the cases at length in Court; they usually devoted attention to them. I do not think they set much store on the reports of valuers, on the part either of landlords or tenants; they formed their decisions, as a general rule, on the inspections made by the lay Commissioners of the lands they visited. This was a much better method, as I shall point out afterwards, than that adopted by their superiors; but obviously inspections of this kind made by officials without local knowledge of the farms, which theyexamined and valued, could not be a sufficient, or a satisfactory, way to fix ‘fair rents.’ The great error, however, made, in this matter, by the Sub-Commissions—and in this respect they had the countenance of the higher tribunal—was that they had little or no regard for the evidence which in adjusting rent was assuredly of the greatest importance. They rejected, we have seen, the principle of competition in adjudicating on rent; in fixing the ‘fair rents’ of holdings before them, they refused to consider the rents of the neighbourhood and of adjoining lands, that is, to consider the price of the market. Yet this was but a trifling compared to their capital mistake, one that, indeed, can hardly be explained: in investigating the subject of ‘fair rent,’ they would not take into account sums paid on the transfer of farms, that is, their tenant right, in other words, as an indication of what ought to be their ‘fair rents.’ If we bear in mind, as I have said before, that these sums were given subject to the existing rents, which always formed the first charge on the lands, it is most difficult to understand, as we have seen, how this circumstance did not create a very strong presumption that the rents in question must be ‘fair’ from the very nature of the case, assuming the Irish tenant to be a rational being. The sums paid for this tenant right were sometimes enormous, not uncommonly equal to one-third or one-half of the value of the fee; I illustrate my meaning from the evidence, taken with reference to the estate of Lord Downshire, one of the largest and best managed in Ulster: ‘What would you say the tenants’ interest would be worth on the Downshire estate?—Well, judging from the average prices obtained by tenants on transfers, my opinion is that the tenants’ interest would be worth £1,000,000.
‘On the Downshire estate alone?—Yes.
‘Now, could that value in the tenants, or that interest in the tenants, exist, unless the rents at which they were holding were low rents?—No, the prices of tenant right areincompatible with high rents. Does it in your opinion point to their being lower than the commercial rents?—Yes, they are lower.’[110]And will it be believed that on this very estate, in the case of thirteen farms, held at the rents fixed by the landlords, the tenant right realised £7296, and yet the Sub-Commission reduced the rents more than 20 per cent.? In other words, they declared that the old rents were not fair, though these lands, when transferred, fetched £7296 paid by their purchasers, subject to the rents in question![111]
The Downshire was only one of many scores of estates in which the tenant right was exceedingly high, that is, the sums paid, at existing rents, on the transfer of farms, were very great, yet in all these instances this striking fact was not taken into account. It cannot cause surprise that, at a judicial inquiry held afterwards to review the subject, tenants’ advocates endeavoured to exclude the evidence which, in the judgment of plain men of sense, affords almost a decisive indication as to whether given rents are ‘fair.’ It has been argued, however, that the price of tenant right, that is, the sums paid by incoming to outgoing tenants, on the sale of farms, at the current rents, ought to form no element in the fixing of ‘fair rent;’ it is only just to set forth the reasons. Mr. Bailey, the able legal Sub-Commissioner, referred to before, has explained them in this passage: ‘Do you attend to tenant right in considering the fair rent?—No, we do not. The view we take of it is this. The tenant right paid for land is paid for something of an altogether different character from the rent of the land.... When a tenant sells his interest in his holding, he sells two things, first, the improvements on the holding, and secondly, his goodwill or share of the gross product of the holding.... When you put these two items together, viz. improvements and goodwill, it seemsto me that the prices paid for tenant right are not at all remarkable. Then your view is that the price paid for tenant right throws no light on what the fair rent ought to be?—No, no light at all.’ Mr. Bailey has added these significant words: ‘The tenant does not buy at the rent which the tenement at present stands at, but he buys with a possible increase or reduction of the rent?—Quite so. And in latter years with the fall of prices he was buying with the expectation of a very considerable reduction?—Undoubtedly.’[112]
The first of these arguments appears to me to be wholly irrelevant to the real question. Undoubtedly the tenant right of a farm represents the tenant’s improvements and his interest in the land, and is completely distinct from the rent; and this is acquired on a sale by an incoming tenant. But the purchaser buys the tenant right, subject to the first charge, the rent; if the rent were excessive, or even high, either he would not buy at all, or he would pay a low price; when, therefore, we find the tenant right commanding very large sums, the conclusion is inevitable, that, taking human nature as it is, the rent must be in the nature of a ‘fair rent.’ The Sub-Commissions rejected a plain inference they ought to have drawn; that they refused to give weight to an all-important fact cannot be justified in any sense; and the result has been that in hundreds of cases they have done grave wrong to landlords. As for the second argument, it is very probable that in many instances tenants purchased farms in the anticipation of a reduction of rent; they speculated—a significant fact—that the Sub-Commissions would ‘bear’ the market; but even, on that supposition, this can hardly explain the huge sums paid for tenant right while the existing rents were current. For the rest, I refer to part of my own evidence given on this subject at the same inquiry; readers of ordinary intelligence may judge for themselves: ‘Thefirst question I ask the tenant is, “How much will you take for the land, £100, £200, £300; ten, fifteen, twenty, or forty years’ rent?” But I never can get an answer. They say, “Oh, your honour, I am here to look after a ‘fair rent,’ and I am not going to tell your honour what I am going to ask for the land.” However, I have a very shrewd notion.... You take into consideration in fixing the fair rent the price paid by the tenants?—Yes, the price which an incoming tenant would give, because I am not one of those who think that the Irish tenant is a fool; and when I find an incoming tenant giving ten, fifteen, twenty, and thirty years’ purchase for a farm, I have a very shrewd suspicion that the rent is right.’[113]
It was under these conditions, and by proceedings of this kind, that the Sub-Commissions, bodies of ill-paid men, dependent upon the will of the Government, and constituted to give effect to a policy, were sent throughout Ireland to ‘fix fair rents.’ They had no assistance, we have seen, from the Land Commission; they often entertained very different views; but their uniform course was in the same direction; they indiscriminately abated rents, as they would abate a nuisance. In fact, they might have joined in the chorus of the doctors of Molière: ‘Et saignare, et purgare, et clystériasaire;’ they applied the same remedies to all their victims, and brought them nearly all into the same weak and low condition. But there was a right of appeal from the Sub-Commissions to the Land Commission; and this tribunal, certainly designed to have absolute power in the determination of rent, ought surely to have been expected to redress injustice. I approach a part of the subject on which the plain truth must be told, without making personal imputations of any kind. Appeals from the Sub-Commissions were numbered by many thousands; and, as I have said—an iniquitous provision of the Act of 1881—the decisions of the Land Commission on the subjectof ‘fair rent’ was made final, at least as regards the rate of rent; there was to be no further appeal to a higher tribunal. I quote these significant remarks on this restriction: ‘In an ordinary case, I need not tell you, sir, who are conversant with the procedure of Courts of Justice, a litigant, in a civil case, no matter how much the issue may be involved, has the right, if he thinks fit, of taking the case from one Court to another, until he reaches the highest tribunal of the land, the House of Lords. And as you know, there is a well-known case, which the House of Lords had to decide, in which the amount involved was one penny, an alleged overcharge on a railway ticket; but in these land cases, where there may be, and often is, a sum of £200, £300, or £400 a year involved, because in some of the large farms in this country there have been reductions of £300 and even of £400 in the rent, under the Act of Parliament they cannot go beyond the Head Land Commission, upon any question of value. That is the Act of Parliament whether it be right or wrong. There it is, and I am not here to discuss the policy of the Act. But when a rehearing is given by the Act of Parliament to the Land Commission, and when the Land Commission are constituted the final judges in such large and important matters, it is obviously of great importance that the final rehearing should be full, and in every respect what the Act of Parliament says it is to be, namely, a rehearing.’[114]
The Land Commission sometimes heard these appeals at length, though usually their proceedings were summary in the extreme. The Commissioners occasionally pronounced well-considered judgments, on the difficult questions of law that came before them, especially as regards the exemption of tenants’ improvements from rent; in several instances the results were curious. The lay Commissioner now and then dissented from his legal colleagues; his plain common sense rejected theories intenants’ interests; his decisions were more than once confirmed, on these points of law, by the highest Court of Appeal in Ireland, a circumstance of no slight significance. Nineteen-twentieths, however, of these appeals were conversant only with the amount of ‘fair rent,’ as to which the conclusions of the Land Commission could not be challenged. The Land Commissioners undoubtedly heard these cases, and sometimes had much evidence brought before them; in tolerably many instances they varied the ‘fair rents’ fixed by the Sub-Commissions, if these variations were seldom important. But the Land Commission practically adopted, with scarcely a single exception, the errors of principle and the faulty methods which had marked the practice and the proceedings of the Sub-Commissions.[115]They excluded the element of competition from the subject of ‘fair rent;’ they never attempted to define ‘fair rent,’ or to establish a standard by which to gauge it; they disregarded, to a considerable extent at least, the distinction between the rentals of the old and the new landlords; they paid little or no attention to the fact that rents had been paid for many years without an increase; they hardly ever took deterioration into account, or the expenditure made on their estates by landlords. And in the actual fixing of ‘fair rents’ they virtually followed in the wake of their inferiors; they rejected, as a rule, the evidence that was most relevant; they refused to consider the rents of adjoining or neighbouring lands, in a word, the price of the market, in determining rent; above all, they gave scarcely any heed to the enormous sums paid for the tenant right of lands, as an indication that their rents were ‘fair.’ On all these particulars, in a word, supremely important as they were, they almost said ditto to the Sub-Commissions; in these respects the appeals were well-nigh useless. It should be added that theanimus of the head of the Land Commission was significantly exhibited on one striking occasion. When opening the proceedings of the Land Commission, Mr. Justice O’Hagan pointedly laid it down, that the object of the Act of 1881 was ‘to make tenants live and thrive;’ in other words, as Lord Salisbury indignantly remarked, to compel rent to gravitate to the level of the most indolent and worthless Irish peasant, and practically to discourage industry.
These considerations indicate, to some extent at least, the nature and especially the value of these appeals. But this was not all, or nearly all; there was a grave miscarriage of the simplest justice in this important province. Appeals, I have said, came in, in thousands; the work thrown on the Land Commissioners was immense; as one of their present successors remarked, ‘If proper consideration’ (had been) ‘given to all the appeals you would’ (have) ‘wanted ten Appeal Courts to do it;’[116]as was said again substantially, ‘Appeals would have crushed the Land Commissioners, had they not been crushed by them.’[117]In this position of affairs, the Land Commissioners, no doubt with no bad or sinister purpose, adopted what must be called a device, to enable them quickly to dispose of appeals, nay, almost in a summary way. They were empowered, under the Act of 1881, to appoint ‘independent valuers’ to examine lands, and to report on the subject of their ‘fair rents;’ it was never contemplated that statements of this kind were to dispense with the duty of hearing appeals in detail, and pronouncing solemn judgments upon them; but, practically, the Land Commissioners, in the great mass of instances, when adjudicating on appeals, as regards ‘fair rents,’ almost wholly relied on the reports of these valuers, who, be it observed, were in no sense witnesses, and were not subject to examination on thepart of the suitors before the Court. In a word, the Land Commissioners did not exclude other kinds of evidence; but unquestionably the dicta of the valuers, as a rule, determined the decisions they made on ‘fair rent.’ This expedient greatly accelerated appeals; but it reduced the right of appeal well-nigh to a sham; and this procedure was by many degrees more repugnant to justice than that of the Sub-Commissions. In an inquiry held before the House of Lords in 1882, an eminent member of the Irish bar remarked, ‘It was the most unsatisfactory tribunal that I ever was before. What occurred was this: they took up the figures of the old rent, which we will say was £100, and the valuation £70, and the new rent £80. Then they took up the valuer’s report, which was a document concealed from the parties. It was entirely for the information of the Court, and they turned round to me, as the landlord’s counsel, the landlord being the appellant, and said, “Can you go on with this appeal in the face of this document?” and they would show me the document.’[118]And in the inquiry I have often referred to before, another distinguished lawyer has said, ‘I have been in cases where, in order to overcome the difficulty, I marshalled a perfect phalanx of witnesses, for the landlord, but it was all no use. They listened to them, I admit,—they suggested that I was wasting time, but I am not stating they did not hear them,—but in the end, in the morning, the announcement was made that the judicial rent was confirmed.’[119]
As the general result these appeals, as it has been said, ‘were strangled;’ in thousands of instances they were withdrawn, the decisions of the Land Commission being final; expedition was attained; but it was only attained at the cost of gross wrong done to the landlords, a singular exhibition in a Court of Justice. I quote the following—and it should be borne in mind that the Land Commissionershave never attempted to explain this conduct, though the amplest opportunity was afforded, a few years ago: ‘The extraordinary and anomalous state of things is that the valuers, not being assessors, do not sit with the Commissioners, and do not hear the evidence, and yet they are not witnesses in the proper sense of the term, because they are neither examined nor cross-examined. Common sense and justice revolt at the idea, when it is the duty of the Land Commissioners, upon the rehearing of a case, to sit and go through the proceedingsde novo, that they should receive the evidence of valuers, which is not laid before the parties, and that those valuers should not be examined and cross-examined in the regular way. There is another matter to which I would refer. You will find, what is, indeed, what you might expect, that when the Commissioners go to Dublin, or Cork, or elsewhere, with a list of two or three hundred cases to be heard by them, involving, it may be, thousands of pounds a year of rent, that list is gone through in two or three days, and why? Because all the parties present know that they are taking part in what really is a solemn farce, and that what will happen in the morning after the hearing of their case is just this: John Brown, landlord, James Fogarty, tenant; judicial rent affirmed; John Robinson, landlord, James McNorth, tenant; judicial rent affirmed.’[120]
The first set of Land Commissioners passed away; they were succeeded by a second Land Commission, the president of which was Mr. Justice Bewley, an accomplished, if not a very eminent, lawyer. This Commission, like the other, was composed of honourable men; it is only just to remark that it was bound by the bad precedents made by the tribunal which it had replaced. The procedure of the Sub-Commissions was, in some degree, improved; but the methods of the second Land Commission differed for the worse where they differed from the methods of itspredecessor. The Land Commissioners appear to have not at all regarded the general principles in fixing ‘fair rent,’ which ought to have had effect on their judgments; they gave less weight, than Mr. Justice O’Hagan, and his colleagues did, to the most important evidence, in this province, to which I have adverted before, and laid too much stress on the least important evidence. As has been truly remarked, ‘We believe that much more attention was paid in the early days of the Land Commission to the remaining kinds of popular evidence than has been the case of late years; and we are assured by one of the head Commissioners that the Act of 1896 has made a great change in the fixing of fair rents by placing an emphasis on the technical evidence, and throwing the popular evidence into the background.’[121]The Commissioners, too, followed the bad example of the first Land Commission, in the province of appeals; they practically disregarded almost everything but the reports of their valuers, unchecked statements made by men who were not even witnesses, were not sworn, and were not examined—a procedure worthy of the Council of Ten at Venice; as before, the result was that appeals were made all but fruitless, in the Court of which the decisions were, in this respect, final.
There was, too, another grave miscarriage of justice caused, perhaps, by a mistake made by the head of the second Land Commission. The Act of 1881 provided that ‘fair rent’ should be fixed, having due regard to the ‘interest’ of the tenant on the land, that is, to his improvements, and perhaps to the mode of his tenure. Mr. Justice Bewley seems to have decided that another element ought to be taken into account, and should effect a reduction of rent; the tenant had ‘an occupation right’ in his favour, over and above the ‘interest’ the law gave him; by reason of this he had a right to have his rent cut down.The only plausible ground alleged for this doctrine was that landlords would usually accept a lower rent from a ‘sitting’ tenant in possession than from an incoming tenant; in other words, their good nature was turned against them, and was to be made a pretext for their being despoiled. It is just to observe that Mr. Justice Bewley’s colleagues dissented from this curious view of the law; and the claim for ‘occupation right’ has since been blown to the winds in the superior Courts of Ireland. But though many faint denials were made, some of the Sub-Commissioners acted upon Mr. Justice Bewley’s doctrine; the evidence is conclusive that this imaginary right was made the means of considerably reducing rent. Mr. Justice Bewley candidly admitted: ‘From the commencement, apparently, a number of the Sub-Commissioners have acted on the principle that there is a certain occupation interest, which every tenant has, varying according to circumstances, not any fixed amount, but varying, and that that is to be taken into account in fixing the fair rent.’[122]This statement has been confirmed by a host of witnesses by no means willing in not a few instances. ‘Would you make a difference between the assessment of the fair rent in the case of a sitting tenant, and in the case of an incoming tenant—a stranger? Certainly. Can you give us any idea what that difference is, expressed in percentage?—I could not very well answer that question. It is a mental calculation, and a good deal would depend upon the length of the tenure of the tenant.’[123]And again: ‘In your experience of the Land Commission Court, do you find the “occupation interest” has been taken into account in fixing the fair rent?—Yes, I cannot account for the reductions that have been made, except on that supposition.’[124]And again: ‘As far as your experiencegoes, do they invariably value the holdings on the principle of giving an occupation interest to the sitting tenant?—Yes, the tenants’ valuers, as a rule, give 40 or 50 per cent. as the interest of the sitting tenant.... Do you find that the Sub-Commissioners fix the rent on what the valuers state?—Well, no; that would be going too much out of the way.’[125]And again: ‘Have you any doubt that the rents are fixed on the basis of the occupation interest in the sitting tenant?—I have none. I do not know how else the rents could have been arrived at.’[126]And once more: ‘Did the Sub-Commissioners invariably take the occupation interest of the sitting tenant into account?—I think so.’ I conclude with these remarks of Mr. Barnes, one of the best and most impartial of Irish valuers: ‘When I came to give evidence in Court I found that nothing else would be accepted as evidence unless based on occupation interest. It was almost the first question.... Whenever there was an answer made that the valuation was based on what the landlord would get for the land in his own hands, it was discounted at once.’[127]No wonder that it has been alleged by the highest authority with respect to this claim, since proved to have been unfounded, guarded and cautious as the language is: ‘There is, however, reason to believe that this notion of an occupation interest existed in the minds of some of the early valuers, and did, in fact, influence them, and it is very possible that some cases in which the reductions there made appear startling, may be, in part, attributable to this doctrine.’[128]
What amount of the rental of Ireland was unlawfully cut down owing to the theory of ‘occupation right,’ it is, of course, impossible to ascertain. Reductions of rent, too, were probably unjustly made through the ignoranceof the Land Commission as to agricultural matters. I refer to a grotesque instance of this: ‘You have marked a passage there in the judgment, which, according to you, shows that owing to their ignorance as experts they entirely mistook what six-course rotation meant?—Yes. The fact is they took it to be the same crop in the whole seventy acres, that instead of having so many different crops in this portion of the ground, it was to be put into one crop for the year, and that is what they call “rotation” in the Court of Rehearing.... It is plain enough, from the authorised report of the judgment, that they made that mistake?—It is clear as possible, and it was upon that that they threw me out. The tenant himself knew that it was all absurdity and mistake.’[129]
A remarkable incident occurred in 1897 which threw a strong, if not a complete, light on the proceedings of the Land Commission and its Sub-Commissions in the adjustment of rent. In 1896 the time had come for renewing the first statutory leases, under the Act of 1881; the Commissioners suddenly made such enormous reductions of rent that persons who knew Ireland were simply astounded. The Irish landlords naturally were indignant; after some hesitation, and with plain reluctance, the Government gave its consent to a very imperfect inquiry. A Commission, presided over by Sir Edward Fry, a judge of the highest eminence, retired from office, and composed of four additional colleagues, two being well-known agricultural experts, was appointed to investigate the subject on the spot; but the scope of the inquiry was limited in the extreme; it was confined, in this respect, to examining the procedure and practice adopted in fixing ‘fair rents;’ it did not extend to the conduct generally of the Land Commission and its dependent tribunals. The Commission was engaged nearly three months in its task; it held its sittings in different parts of Ireland; it had beforeit 183 witnesses; and restricted as it was in this province, it pronounced, in grave and judicial language, a marked censure on the methods that had been followed in fixing ‘fair rents’ in Ireland. In fact, Sir Edward Fry and his colleagues confirmed, in many respects, the charges which I have made with regard to this whole system. No doubt they reported, in very guarded words, ‘that they were unable to conclude that the machinery of the Land Statutes has been uniformly worked with injustice towards landlords;’[130]but as they pointedly refused to rehear a single case, in which the Land Commission and the Sub-Commissions had fixed a ‘fair rent,’ this statement, ambiguous as it is, is of no real importance. In other particulars the expression of these opinions cannot be mistaken; to impartial minds it will appear decisive. They evidently thought that such wrong had been done to landlords owing to the want of a definition of ‘fair rent,’ that they actually framed a definition of their own, in order to establish some kind of standard; this did not widely differ from that of Mr. Law, which, I have said, would have made things very different had it been adopted.[131]They pointed out that the Land Commissioners should have assisted the Sub-Commissions in fixing ‘fair rents,’ and should not have left them ‘like ships without a rudder or a compass on a stormy sea;’ it is ‘a subject of regret,’ they reported, ‘that in the early days of the system the Land Commissioners were unable to take a part in the tribunals of first instance; and that the whole original business was left to Sub-Commissions.’[132]They strongly condemned the nature of the Sub-Commission Courts, as being composed of members inadequately paid and mere tenants at sufferance; and they put forward an elaborate scheme to make the administration of justice in these tribunals more above suspicion.[133]They evidently believed that the Land Commission and the Sub-Commissions did not give due weight to the class of evidence that was most important, and gave too much weight to that which was the least; and they made significant observations on this subject.[134]On the whole, they arrived at the conclusion that the fixing of ‘fair rents’ ‘gives opportunity for dissatisfaction, and leaves much more for improvement; ... and that the settlement of fair rents has been effected in an unsatisfactory manner, with diversity of opinion and practice, sometimes with carelessness, and sometimes with that bias towards one side or the other which exists in many honest minds.’[135]But their strongest animadversion was found in the system, through which, I have said, the Land Commission really ‘strangled’ appeals, though in this province its decisions were final: ‘An almost universal dissatisfaction is expressed with regard to these appeals, a dissatisfaction felt by some at least of the Commissioners themselves. No witness, with, perhaps, a single exception, spoke in favour of the existing system.’[136]
Mr. Justice Bewley has retired from office, and has been replaced by Mr. Justice Meredith, a capable and experienced lawyer. He has done, probably as much as in him lay, to alleviate some of the wrong done to Irish landlords; and for this he has been subjected to violent abuse, especially on the part of an advocate of Ulster farmers, whose tongue is at odds with his trade in temperance. But he is bound by the precedents set by those who have gone before him; and though the work of the Land Commission is now better done than it was before the Report of the Fry Commission appeared, and its general procedure has improved, little change has been effected in the reduction of rent in Ireland. The Government, as I have pointed out in a preceding chapter, has made a fewadministrative reforms in the composition and the arrangement of the Sub-Commissions; but it has not taken a single step to give effect to the recommendations made by the Fry Commission, so far as these are of real importance; it has refused to legislate on the subject, and to bring in the measure that was required; it has even refused to set a further inquiry on foot. The general results of the labours of the Land Commission and of its subordinate tribunals in fixing ‘fair rents’ may be summed up in a very few sentences. According to the Report of the Fry Commission, the tenants of rural holdings in Ireland are about 486,000 in number; 328,720 of these have had ‘fair rents’ fixed, between August, 1881, and the end of March, 1900.[137]The tenants, who have not had ‘fair rents’ fixed, are probably either tenants of lands not within the Land Acts, or ‘future tenants’ since 1881-82, or tenants too poor to pay law costs; but these, perhaps in nine cases out of ten, have indirectly had the benefit of the law, and have had their rents reduced like those of the large majority, by voluntary concessions on the part of landlords. The great mass of ‘fair rents’ has been fixed by the Land Commission and its dependents, and the proceedings of these tribunals have, beyond question, formed a standard for the adjustment of rent; whether ‘fair rents’ have been fixed by the County Courts,[138]or by agreements between landlord and tenant, they have, in the main, conformed to the measure established by the Courts set up in 1881. The reductions of rent made, in every way, in the first statutory leases, were, on an average, rather more than 20 per cent. on the old rental;[139]but those on the second statutoryleases have been 22 per cent. more,[140]that is, the fixing of ‘fair rents,’ so far as it has gone, has reduced rents rather more than 42 per cent. It may be asserted, with some confidence, that through the operation of the new Irish land code, taking in tenancies of all kinds, Irish rents have been cut down nearly 40 per cent.; little doubt can exist that they are now lower than they were in the day of Wakefield, and in some instances in the day of Arthur Young, when the price of Irish agricultural produce was less than half what it is at the present time.[141]
The agricultural rental of Ireland, therefore, in all probability, has been reduced almost 40 per cent., or will be in a short space of time; and as long as the present system of fixing ‘fair rent’ continues, however it may be lowered, it will certainly not be raised. The Act of 1881, I have already said, would, by itself, necessarily reduce rents; but the faulty administration of it, on which I have dwelt, has reduced them far more than ought to have been the case. In fact, disguise it as you may, an immense confiscation, gradual, indeed, and veiled, but not the less real, has been made of the property of Irish landlords, even on the principles of a bad law; the evidence of this is, I believe, conclusive. Rents have been cut down indiscriminately in the great mass of instances; for example, rents in country districts only opened to good markets of late years, have been reduced quite as much as rents around Dublin, which had almost a monopoly of the best market until about 1855-60. But the proof of this spoliation is made most apparent by taking into account a single fact, and drawing the natural inference from it. The value of the landlords’ interest in the land, before 1881, was from 20 to 25 years’purchase; it is now between 15 and 18; at the same time the value of the tenants’ interest has, in thousands of cases, enormously increased. I refer to a few examples out of scores to be found in the evidence given to the Fry Commission. I take first an estate in Ulster: ‘I only remember one case of a holding before 1881 that went up (in a sale of the farm) to anything like 20 years’ purchase of the rent, and I have several cases since then that have gone beyond it. I remember one case that struck me very forcibly because of the great amount the man got—20 years’ purchase. Since then I have known, 29, 35, 36, 34 years’ purchase to be given.’ I turn now to two estates in the south of Ireland: ‘Charles Bolster, 112 acres; rent £79 5s.; sold for £570 in 1889. Daniel Buckley, 9 acres, at rent of £3 3s.; sold in 1889 for £45. Christopher Crofts, 131 acres; old rent, £86; judicial rent fixed in 1893, £80; sold in 1889 for £120. Timothy Reefe, 5 acres; rent, 29s.; sold in 1891 for £47.’ I pass on to the second estate: ‘Next case, 65 acres; old rent, £60; judicial rent, £56 14s., fixed in 1883 by agreement; sold in 1883 for £330. Next, 76 statute acres; old rent, £115; judicial rent fixed in 1885 at £108; sold in December, 1885, for £1600.’[142]
This great fall in the value of the fee simple in the Irish land, and this great rise in the value of the tenant right, coinciding with the general fixing of ‘fair rents,’ distinctly point to a plain conclusion: the interest of the Irish landlord has been enormously reduced, a result never contemplated by the author of the Act of 1881. In truth, there has been little or no decline in the market price of land in Ireland; but property that ought to belong to the landlord has been improperly taken from him, and has been transferred to the tenant who had no right to it. Excuses, however, have been made for this wholesale abolition of rent; they are worthless, but may be briefly noticed. Ireland, it is said, is suffering, likeEngland, from the agricultural depression of late years; and rents in Ireland have not been cut down more by the act of the State than they have been reduced in England by the voluntary acts of landlords. But agricultural depression in Ireland, a land of small holdings, and of pasturage, to a considerable extent, is not, by many degrees, as severe as in England, a land of large farms and largely of cereal culture; a signal proof of this is that, while in England, tenants have, in hundreds of instances, thrown up their farms, there has hardly been a case of the kind in Ireland, as appears from the Report of the Fry Commission. Besides, if agricultural prices have fallen in Ireland, compared to what they were, say, twenty-five years ago, they are higher than they were in the years, say, 1850-55, not to take into account the progress made by Ireland, in the last half-century, in crops, farm machinery, and the breeds of farming animals. As to the reduction of rents in England and Ireland, the supposed analogy completely fails. The rental of England rose greatly from 1850 to 1880; there was no corresponding increase in Ireland; there was thus a margin for reduction, in the greater island, which in the lesser did not exist. Again, no comparison can be made between State-settled Irish rents and English rents lowered by the voluntary acts of landlords. ‘Fair rents’ have practically been reduced for all time; the reduction of English rents is temporary, and can be at once annulled; this difference makes a supposed resemblance a very striking contrast. As to the argument that the Courts which have fixed ‘fair rents’ have been composed of honourable men, and that it is extremely invidious to make charges against them, mere leather and prunella may be brushed aside. No one disputes the honour of the Land and the Sub-Commissioners, but it does not follow that they have not done injustice; no one has disputed the honour of the Commission which carried out the Encumbered Estates Act,and yet it repeatedly sold estates at less than half their value.
The Irish landlords, I repeat, have been iniquitously despoiled; a huge confiscation has been made of their property. If the simplest right is to be done in this province, their claim to compensation has been rendered complete—apart from the utterances of Mr. Gladstone; should this be disregarded, Parliament will have been chargeable with a grave breach of faith, and a precedent will have been set from trampling on the just rights of property in the Three Kingdoms, which will be dangerous in the extreme. I pass on to consider the Irish land on the side of ownership, and the administration of the system of so-called ‘land purchase.’ Of the total of £40,000,000 alone available, some £20,000,000 appear to have been expended; some 50,000 tenants have been made owners of their farms, without having paid a shilling of their own, that is, rather more than one in ten of the whole tenant class in Ireland. The politicians who declared against ‘dual ownership,’ that bugbear of self-sufficient ignorance, can find little consolation in these figures; I shall comment afterwards on what this state of things has produced. The Government of Lord Salisbury still proposes to seek to accelerate ‘land purchase’ of this kind; and loud complaints have been made of the law’s delay in not having made the process more speedy. I have had no experience in this matter, and shall, therefore, give no opinion on it; but it appears to me that there has been some want of care in making advances to these so-styled ‘purchasers;’ not a few were insolvent when they acquired their farms, and many are now on the verge of bankruptcy. This, however, was perhaps inseparable from the system that has been pursued; it is only an additional proof of its essential vices.
THE QUESTION OF THE IRISH LAND (continued)—PROPOSED REFORM OF THE IRISH LAND SYSTEM