CHAPTER IV. The Land Question

THE LAND QUESTION

"I can imagine no fault attaching to any land system which does not attach to the Irish system. It has all the faults of a peasant proprietary, it has all the faults of feudal landlordism, it has all the faults incident to a system under which the landlords spend no money on their property, and under which a large part of the land is managed by a Court; it has all the faults incident to the fact that it is to the tenant's interest to let his farm run out of cultivation as the term for revising the judicial rent approaches."

--A.J. BALFOUR, on the Second Reading of the Land Bill, May 4th, 1903.

The reason for the importance of the system of land tenure in the social conditions of Ireland is to be found in the manner in which the restrictions on Irish commerce in the seventeenth and eighteenth centuries drove the population to secure a livelihood in the only direction left open to them--namely, agriculture. The results of this are to be seen to-day in the fact that there are 590,000 holdings in the island, and that out of a total population of four and a half million people it is well within the mark to say that three and a half million are dependent, directly or indirectly, on the land for their means of existence.

The system of tenure in Ireland was as different as possible from that existing in Great Britain. The gist of the difference lay in this, that in England and Scotland landlords let farms, while in Ireland they let land. "In Ireland," wrote an English observer more than a hundred years ago, "landlords never erect buildings on their property, nor expend anything in repairs." This feature, which was the result of historical reasons, was due to the fact that Irish land-owners were the descendants of settlers intruded on Irish land, who brought with them English notions of tenure, but had not the capital to render economic the numerous small holdings situated on their estates. Hence it came about that the provision of capital by an English landlord for the equipment of farms with cottages, outhouses, fencing, and a drainage system, which results in a sort of partnership between landlord and tenant, was, to a large extent, a thing unknown in Ireland, where, as was aptly said, tenants' improvements were landlords' perquisites, and where point was lent to the differences by the fact that the few properties on which the equipment of the holdings was provided by the landlord were known as "English-managed estates," and the number of these, Lord Cowper told the House of Lords in 1887, could be counted on one's fingers.

Irish landlords have been compared, not to English squires, but to the ground landlords of London, bound to the occupiers only in so far as they received from their tenants a rent-charge liable to increase as the tenant improved the holding, or as competition arose with the growth of population.

The reasons for this state of things are to be found in the number and the small size of the Irish holdings, but more than this in the fact that from the first landlords came there in a business capacity.

"Les uns comme les autres," says a French writer, M. Paul-Dubois, "ils n'ont vu dans la terre Irlandaise qu'une affaire, et non une patrie. Ils sont restés conquérants en pays de conquête. De là cette conséquence que, conscients d'être des étrangers, des intrus, ils se sont crus libres et quittes de toute dette envers le pays, de tous les devoirs de la propriété."

Planted on land which was confiscated, and, as a result, insecurely held, to risk the expenditure of money would have been unnatural, the more so since the expenditure which, in the circumstances, fell upon the tenant in the matter of improvements, provided the best possible security to the landlord by making the tenant all the more anxious to remain on the holding on which he had sunk what little capital he possessed, and in consequence virtually obliged, at risk of ejection, to submit unwillingly to periodical enhancements of rent.

In addition to the few English-managed estates it was only in Ulster that matters were otherwise, owing to the existence of the custom--an embryo copyhold, Lord Devon called it--known as tenant-right. On the various confiscations of land, grants of which had been made to the "undertakers," many of the latter were either public bodies, such as the great City Companies, others were landlords who, even if not resident at a distance, had neither the means nor the inclination to spend the necessary money on their estates. This was provided by the tenant, who, without aid from the landlord, made improvements on his holding by his own labour; and in Ulster, where the tenants were settlers from England and Scotland, there arose an equitable proprietorship vested in the occupier, by which, on quitting the farm, he was entitled to claim from the new tenant a sum of money partly in compensation for the money and labour he had invested in the holding and partly as a price paid for the goodwill or possession, which the new tenant would have no other means of acquiring. The nature of this "Ulster Custom," which, until 1870, had no sanction or protection from the law, was clearly defined by the Master of the Rolls, in the case of M'Elroy v. Brooke, in the following words:--"The essentials of the custom are the right to sell, to have the incoming tenant, if there be no reasonable objection to him, recognised by the landlord, and to have a sum of money paid for the interest in the tenancy transferred." The English system we see then, with its competitive rent fixed by contract, and subject to the laws of supply and demand, did not exist; the social and prescriptive ties which in England bound the owner and the occupier to each other never arose under this state of things, and in their absence did not arise one of the strongest inducements to a landed gentry to live on their estates and to concern themselves in the welfare of their tenants, a social system which, by the interchange of kindly offices wherever in England the proprietors live on their property, does much to make the countryside attractive to the poorer classes and to check migration.

There is no more erroneous idea than to suppose, as do some people, that there was a large body of resident landed proprietors in Ireland until the land war drove them to seek safety across the Channel. As a matter of fact, long before this had begun there existed an absentee aristocracy dependent on middlemen or agents--"the vermin of the country," Arthur Young called them--who constituted a mere mechanical medium for the collection of rent, and as such were the worst exponents of the amenities which, in happier circumstances, are supposed to subsist between owners and occupiers of agrarian land. At the beginning of the nineteenth century the increase of population in the island and the high prices resulting from the war led to a very great sub-division of holdings, while the exercise of the franchise by the forty shillings freeholder until the year 1829 provided an additional inducement to the landlord to multiply the number of tenants on his land, since by doing so he increased the number of votes under his control, and, pari passu, his political influence.

After the famine, when it was found that one-third of the Irish landlords were bankrupt, the Encumbered Estates Court Act was passed to cope with the situation which had arisen of a country full of numerous landlords saddled with land which, owing to mortgages, debts, and incumbrances, was inalienable. Under the Act the Court was empowered, on the petition of any person sufficiently interested, to sell the encumbered estate and give an indefeasible title, so that persons who before had a claim on the estate should now have a claim only on the purchase-money. It was a piece of strong legislation in its disregard of vested rights and in the manner in which it set aside express contracts under which creditors had a claim on the land which could only be disturbed by paying off that claim.

In the event the rush of creditors to this Court--created to afford relief from the delays of Chancery in effecting alienation--was so great that, as a result of the consequent fall in prices, land became a drug in the market, and properties in many instances did not realise enough to meet the mortgages. To the landlords ruined in this manner succeeded a new class, who bought up bankrupt estates, often with borrowed money, as a commercial speculation, and caring nothing for the tenant or his welfare, looking only on the business side of the transaction, raised rents arbitrarily to such a pitch that the tenantry were unable to meet their liabilities. Wholesale evictions ensued, and in this wise arose the condition of things in which the Times--never an unfriendly critic of the landed interest--was constrained to admit in 1852 that "the name of an Irish landlord stinks in the nostrils of Christendom."

By an Act of 1858 the Encumbered Estates Court was replaced by the Landed Estates Court, which had power to carry out the sale of, and give an indefeasible title to, any interests in land, whether hypothecated or not, and after the passing of the Judicature Act of 1877 the name of the Court became the Land Judges' Court.

The disfranchising clauses of the Emancipation Act, and the consequent disappearance of the advantages accruing to the landlords from a multiplication of holdings on their estates, the miserable poverty resulting from the famine, the anxiety of the proprietors to escape the burdens of the remodeled Poor Law, and the demand by the new class of land speculators for large grazing or tillage farms, to form which the consolidation of existing holdings was demanded, were the factors which resulted in the clearances of 1849 and the subsequent years. "Notices to quit," in a historic phrase, "fell like snowflakes," at a time when it was truly said that an eviction was equal to a sentence of death. In a few months whole counties, such as those of Meath and Tipperary, were converted into prairies; cabins were thrown down, fences removed, and peasants swept off, and in ten years nearly 300,000 families were evicted from their homes, and a million and a half of the population fled across the Atlantic. "I do not think," said Sir Robert Peel--and his verdict has been endorsed by the judgment of history--"I do not think that any country, civilised or uncivilised, can offer similar scenes of horror."

The Devon Commission, the Report of which was issued in 1845, recommended that in future compensation should be given to Irish tenants for permanent improvements effected by them. Bills to carry out the recommendation of the Commission were introduced in 1845 by Lord Stanley, in 1846 by Lord Lincoln, and in 1852 by Mr. Napier, the Attorney-General for Ireland. But it was not until the Act of 1870 was passed--a quarter of a century after the Report of the Commissioners had been issued--that its recommendations were embodied in an Act of Parliament. So far was this from being the case with the next statute dealing with Irish land--Deasy's Act, passed in 1860--that it aimed at the substitution of the commercial principles of contract for the equitable principles of custom in the relations between landlord and tenant, in this respect that it refused to allow compensation to the tenant for improvements other than those made with the landlord's consent. The object of this Act--the last word of the Manchester School on the Irish Land Question--was, therefore, to destroy any claim by a tenant in respect of future improvements, unless under the terms of some contract, express or implied. In point of fact, the Act proved almost a dead letter, and the one result which ensued from its passing into law was to make the position of the tenant less secure, in so far as it made the process of ejectment less costly and more simple, and enabled the landlord in many instances to confiscate improvements.

Twenty-three Bills in favour of the tenants were thrown out in the forty years which followed Emancipation. The struggle between landlord and tenant was occupied with the attempts of the latter to enforce the custom of tenant-right in Ulster, and secure its application in the other provinces. The Land Act of 1870, for the first time, gave legal sanction to this principle by giving the tenant a claim to compensation for disturbance. It gave its imprimatur to the doctrine that an Irish tenant does not contract for the occupation of a farm, that Irish land is not the subject of an undivided ownership, but of a simple partnership. The pecuniary damages to which a landlord was liable under its provisions was a blow aimed at wanton evictions, and with the curtailment of the power arbitrarily to effect these, the threats by which landlords had been able unjustly to raise rents were robbed of much of their force.

The tenant under the Act secured a recognition of his property in the land and of his right to occupy it, provided he complied with certain conditions, and, in addition, he obtained compensation, albeit inadequate, for disturbance for non-payment of rent, in cases in which the Court considered the rent exorbitant, and in which failure to pay was due to bad seasons. Thus tenant-right, which Lord Palmerston had dismissed with epigrammatic flippancy as landlord wrong only a few years before, received the sanction of law from his own party.

In actual practice under the Act the landlords recouped themselves for the compensation which they had to pay to an evicted tenant by raising the rent on his successor in the tenancy in the comparatively few cases in which the evicted tenant could afford the legal costs which the filing of a claim for compensation entailed, but this much at least had been secured, that the virtual confiscation of the tenants' improvements had been stopped. The Act of 1870 had been passed to prevent arbitrary evictions and to secure to the tenant compensation for improvements, and in certain cases for disturbance. It succeeded only in making arbitrary evictions more costly for the landlord, it gave the tenant no fixity of tenure since the compensation for disturbance was inadequate. To remedy this Isaac Butt in 1876 introduced a Bill based on the "three F.s"--fair rent, free sale, and fixity of tenure--but it was rejected by 290 votes to 56, and several other amending Bills were thrown out by the House of Commons between 1876 and 1879. In 1880 the Government were at last stirred to action in the introduction of the Compensation for Disturbance Bill, which caused the retirement of Lord Lansdowne from the Cabinet, and was followed by threats of resignation on the part of the Duke of Argyll. Under the Act of 1870 only those occupiers were entitled to claim compensation for disturbance whose rents were not in arrear. By this Bill it was proposed to extend the right to that claim to all those who were unable to pay as a result of bad harvests, and who were willing to hold their farms on just and reasonable terms, which the landlord refused.

After passing through the House of Commons, in spite of Lord Randolph Churchill's denunciation of it as the first step in a social war, the Bill, although there had been a large majority in its favour in the lower House, was thrown out by the House of Lords at a time when the need for remedial legislation was illustrated by the presence in Ireland of 30,000 soldiers and 12,000 policemen for the protection of life and property.

The Royal Commission, under the chairmanship of Lord Bessborough, which was then appointed, reported in the following year that the Land Act of 1870 afforded no protection to the tenant who remained in his holding, since compensation for improvements could only be claimed on giving up a tenancy. The Commissioners, by a majority of four to one, declared themselves in favour of the "three F.s," which the leader of the Opposition denounced as "Force, Fraud, and Folly," and the Commissioners justified their attitude by this statement, which was echoed by the Richmond Commission, which reported soon after,--"freedom of contract, in the case of the majority of Irish tenants, large and small, does not really exist," the reason being that tenants in occupation were ready to pay any rent rather than sacrifice the capital and labour they had sunk in their holdings. The good seasons after 1870 had made this rise in rent possible, but with the bad winter of 1880 the results became disastrous.

In this manner the "three F.s," which the Land League demanded, and which were secured by the Act of 1881, were conceded against the will of the Government by sheer force of circumstances. A rumour which gained currency early in 1880, that the Bessborough Commission would report in their favour, was stigmatised by Mr. Gladstone as incredible, and the adoption of the principle enunciated by the Commissioners resulted in the resignation from the Cabinet of the Duke of Argyll. The demands which had been made in 1850 by the Tenant League, the first concerted action of North and South since the Union, were repeated. They included a fair valuation of rent, the right of a tenant to sell his interest at the highest market value, and security from eviction so long as he paid his rent. Their claims were scouted in 1870, and it was not till eleven years had passed that in 1881 these "three F.s"--fair rent, free sale, and fixity of tenure, the notion of which had so recently been repudiated by Mr. Gladstone--were secured by the Land Act of that year, which recognised to the full the dual ownership of Irish land by occupier and landlord. Under this Act also was created a Court to fix fair rents for judicial periods of fifteen years.

Mr. Gladstone himself had admitted that the Land Act of 1870, which a Conservative member, destined to be a future Chief Secretary--Mr. James Lowther--described as "pure Communism," together with the Church Act of 1869, was the outcome of the Fenian agitation of the sixties, which drew the attention of English statesmen to the Irish question. In the same way the passing of the Act of 1881, which made a far more active assault upon their prerogatives, secured from a house of landlords through fear that which they denied on grounds of equity. "In view of the prevailing agitation in Ireland," said Lord Salisbury of this measure which assailed every Tory principle as to the sacredness of property, "I cannot recommend my followers to vote against the second reading of the Bill." What Fenianism had effected in 1870 the Land League secured in 1881. "I must record my firm opinion," said Mr. Gladstone ten years later, "that the Land Act of 1881 would not have become the law of the land if it had not been for the agitation with which Irish society was convulsed."

The Bill was denounced by the Tories as one of the most unquestionable and, indeed, extreme violations of the rights of property in the whole history of English legislation. Lord Salisbury declared that it would not bring peace, and that henceforth the Irish landowner would look upon Parliament and the Imperial Government as their worst enemies. The Earl of Lytton declared that it was revolutionary, dangerous, and unjust; that it would organise pauperism and paralyse capital; yet for all that he warned their lordships that its rejection might be the signal for an insurrection, of which the whole responsibility would be thrown on the House of Lords. But perhaps Lord Elcho expressed the feeling which predominated in the Gilded Chamber when he expressed the opinion that the Bill was the product of "Brummagem girondists." In the event, as we have seen, Lord Lytton's warning bore fruit, and the Bill was passed. "There is scarcely a less dignified entity," as Disraeli had said in Coningsby thirty years before, "than a patrician in a panic."

Under the Act, let me repeat, for the first time was frankly recognised the legal partnership between the tenant who provided the working gear and the landlord who provided the bare soil. The latter could only evict the tenant on default, the tenant was at liberty to sell his occupancy interest at will without the leave of the landlord, and the rent payable by the tenant to the landlord was to be fixed by a judicial tribunal--the Land Commission--the establishment of which was but the carrying out of a suggestion made three years before by Parnell. The results of the agitation which had brought about the passing of the Act were seen when the Court decreed an average reduction of Irish rents by 20 per cent., knocking off no less than £1,500,000 at one stroke from the rack-rentals of the country.

The Act was not applicable to tenants whose rent was in arrear--those, that is to say, who were in the poorest circumstances--and a Bill introduced by Parnell in 1882 to wipe out these arrears by a grant of public money, was thrown out, being denounced by Lord Salisbury as a dangerous precedent of public plunder to mislead future generations.

As ballast to lighten the Act of 1881 the leaseholders were thrown overboard. For this exclusion from the benefits of the Act there was, on principle, no excuse. A Bill of Parnell's to remedy it was thrown out in 1883 by a majority of four to one, and the 35,000 tenants who suffered from it were not entirely accorded the privileges of the other tenants until the passing of the Rent Redemption Act of 1890. The average reduction in rent effected for this class of tenant has amounted to 35 per cent.

One further fact in connection with the Act of 1881 deserves mention as showing that though Parliament may propose a remedy for an admitted grievance, the Courts of law are able to dispose its application by their interpretation in direct contravention of the intentions of the legislature.