Part I. the Fair Rent Acts and the Land Purchase Acts.(121)

Two Classes of Occupiers of Land in Ireland—Economic and Uneconomic.

The occupiers of Irish agricultural holdings are of two classes—those whose farms are economic, and those whose farms are uneconomic. By an economic holding is meant one of sufficient productive capacity to support a family at a reasonable standard of comfort without help from outside sources. One class holds land of a fertility, quantity, and situation that enables the occupier to live at a reasonable standard of comfort out of the produce, and pay a rent. The other class also lives on and partly out of land, but land of a character, quantity, or situation that will not support a family at a proper standard of living without extraneous help. In the case of the first class, the fairness of the rent is the most important consideration; in the case of the second, the land and rent are often minor elements in the struggle for existence. The land is either so limited in amount or of so unproductive a character that, without outside help such as the wages of labour, or help from friends and relations, the income of this class would sink below the line necessary for subsistence, and actual starvation would ensue. It has often been pointed out that agricultural rent is in many cases paid in Ireland for farms out of which no true economic rent is earned. This means, as every economist knows, that, were the ordinary and necessary cost of production, including the remuneration of labour, deducted from the returns from the cultivation of land, no surplus would remain for the payment of rent. Consequently, the rent paid for such land is not true agricultural rent. It is more of the nature of house-rent paid by working men in towns, who, out of the wages that they earn in their various employments, spend certain portions in food, clothing, and shelter. But the Irish peasant, who tries to support his family on an insufficient farm, has not the advantage of having a demand for his labour at hand. He has either to emigrate, to migrate, or to live below the proper standard of decency and comfort. Consequently, he is neither in the position of the farmer nor of the labourer. He is the occupier of a piece of land on which he builds his cabin, and pays a rent which is supposed to be agricultural, but which is really not earned out of the land, but is paid out of whatever other supplementary income he is able to obtain by working for wages in other countries; or by contributions from outside sources. The Irish Fair Rent Acts are supposed to deal only with agricultural holdings. The rents fixed under them are intended to be agricultural and economic rents. It is evident to anyone who has examined the circumstances of the small holdings of the West of Ireland, that the rents assessed on them under the Land Acts in many cases are not agricultural rents, but are payments more of the nature of site rents, or the rents of non-agricultural holdings, which were not supposed to be subject to the provisions of the Irish Fair Rent Acts at all. Were the Land Acts strictly administered, unquestionably the greater portion of the small holdings on the western seaboard and other parts of Ireland would have been excluded, and applications to fix agricultural rents on them would have been dismissed.

Confusion of Treatment of Occupiers of Economic and Uneconomic Holdings.

The importance of the view here put forward lies mainly in the fact that until the passing of the Act of 1891, under which the Congested Districts Board was created, no attempt was made to distinguish between the two classes of occupiers of Irish land. The occupiers of economic and uneconomic farms were subject to the same laws, and were treated in the same manner. No attempt was ever made to distinguish between the man who could make his rent out of his land and the man who could not. Both were included in the Fair Rent provisions of the Act of 1881, as it was administered, and a rent was assessed on what was practically the site for a cabin as if it were a farm. This confusion of treatment of two different problems renders it necessary to trace the evolution of the Irish Land Acts if we are to understand intelligently the problem that presents itself in dealing with congestion in Ireland, and it is accordingly proposed to sketch shortly the steps by which Irish land legislation has advanced, and how it at present deals with the various classes of holdings that have to be taken into consideration.

Special treatment for the congested districts was not thought of in the earlier remedial Land Acts. The Act of 1881, if strictly administered, as we have seen, would have excluded most of the holdings in such districts. After twenty years’ experience of this Act it was found that its provisions, even though amended repeatedly, did not meet the special difficulties. The Congested Districts were not withdrawn from the operations of the various Land Acts—merely additional powers were given for ameliorating the condition of the people in the defined localities.

The Land Act of 1881 is naturally regarded in Ireland as the sheet-anchor of the peasant—as the Magna Charta of his rights. On the other hand, it has been looked on by many land-owners as an unjustifiable invasion of their rights, and it has often been blamed for results which it recorded rather than caused. To justify that Act of 1881, we must understand the preceding conditions that governed the tenure of land in Ireland.

Complaints against Irish rents are not confined to recent years or to the last century. A continuous stream of emigration of Protestant dissenters from Ulster went on during the early part of the eighteenth century, and the Irish Government of the day was much concerned at losing so many of their most loyal citizens. In 1729 the Lord-Lieutenant forwarded a report on the subject to the King, which states:

“One great reason given by the people themselves for leaving the Kingdom is the poverty to which that part of the country is reduced, occasioned in a great measure, they say, by raising of rents in many places above the real value of land, or what can be paid out of the produce of them, if any tolerable subsistence be allowed to the farmers using their utmost industry.”

Complaint was also made of the uncertain tenures, the short leases, and “the usual method of late when lands are out of lease,” which was “to invite and encourage all persons to make proposals and set them to the highest bidder without regard to the tenants in possession.”

Relation of Landlord and Tenant in Ireland prior to 1860.

The relation of landlord and tenant in Ireland was, down to the year 1860, based on tenure, not on contract. The old feudal tenures imported from England were, during the last two or three centuries, modified and altered by the existing Irish customs. The result was that a period of much doubt and confusion arose, and an extraordinary collection of Acts dealing with land was placed on the Irish Statute Book. In the reign of George III. upwards of sixty of these Acts were passed for Ireland, while six sufficed for England. The following reigns were equally productive in agrarian legislation, and the condition of the occupiers became more and more unsettled and unsatisfactory, and “wild doctrines,” to quote the words of the eminent authors of a standard work on Irish Land Tenure, published in 1851, were agitated, including “extravagant demands for fixity of tenure and compulsory valuation of rents.”

The relation of landlord and tenant, based on tenure that prevailed down to the year 1860, gave no security of occupation to the tenant, and did not protect his improvements, but the cost of ejectment and the legal difficulties of proof that accompanied it exercised a powerful restraining influence in preventing capricious eviction.

Position of Tenants under the Common Law as regards Eviction—in the case of Leaseholds.

During the eighteenth and early part of the nineteenth centuries, while many Irish tenants held under leases or written contracts the great majority were tenants from year to year. Under the Common Law both in England and Ireland, the right of the landlord to recover possession of the land in the case of a lease or written contract depended on the covenants and conditions in the contract, and no ejectment could take place unless for “a condition broken.”

In the Case of Yearly Tenancies.

In the case of tenancies not created by writing—tenancies from year to year—there was no power of eviction for non-payment of rent under the Common Law. The tenant of such a tenancy could only be ejected by a notice to quit, which notice must expire with the termination of the year of his tenancy. This system caused much difficulty to the landlord, as the onus lay on him of proving the commencement of the tenancy, and, frequently, even where the tenant had failed to pay the rent, eighteen months passed before possession could be obtained.

The Common Law of England and the tribunals that administered it discouraged the forfeiture of tenants’ interests, and the landlord was held strictly to the technical proofs required by law.

The Irish Ejectment Code—how it Pressed against the Tenant.

In Ireland a different course was followed. The Irish “Ejectment Code,” which originated in the reign of Queen Anne, had for its object, to quote an eminent Irish lawyer, the expediting and facilitating the eviction of the tenant. It got rid of every formality by which the old Common Law delayed and obstructed the forfeiture of the tenant’s estate. Statute after Statute was passed for this purpose. The whole principle of the Common Law was reversed. Chief Justice Pennefather judicially declared that it was a code of law made solely for the benefit of the landlord, and against the interest of the tenant, and that it was upon this principle that judges must administer and interpret it.

Facilities given for Evicting Leaseholders.

The landlord who sought to evict a tenant holding under lease was, down to the year 1816, obliged to proceed in one of the Superior Courts of law, a practice which caused much expense and delay. When the European peace came in 1815, after the Battle of Waterloo, the fall in agricultural prices rendered it difficult, if not impossible, for tenants to pay the high rents which had been fixed while war prices ruled. An Act was immediately passed (56 George III., c. 88) which enabled an ejectment to be obtained in the County Courts at a small cost, and without delay. In this respect Ireland was forty years ahead of England, as a similar jurisdiction was not given to the English County Courts until 1856.

Facilities given for Evicting Yearly Tenants.

The Irish Ejectment Code applied only to tenants holding under leases or written contracts. As the country advanced, landlords gradually ceased to give leases, and the great majority of small tenants held from year to year. To meet this state of things the Civil Bill Court Act of 1851 extended the ejectment for non-payment of rent to tenancies from year to year. Under the English statutes no similar power was given, and the English landlord was obliged in the case of non-payment of rent to first serve the tenant with a Notice to Quit, and then proceed to evict him by the slow and costly process of an action in the Superior Courts.

The Land Act of 1860 (Deasy’s Act).

From this sketch it will be seen that the law governing the relations of landlord and tenant in Ireland became more and more favourable to the owner. This tendency culminated in 1860, when, by “Deasy’s Act” (23 & 24 Vic., c. 154)—which was passed through Parliament without amendment—the relation between landlord and tenant was defined as founded on contract and not upon tenure. The Act proceeded on the assumption that the land is the exclusive property of the landlord, and that the tenant’s interest is nothing more than that of a person who has agreed to pay a certain remuneration for the use of the soil for a limited period. It simplified and increased the remedies of the landlord for recovering possession of the land, and rendered efficient the law of ejectment for non-payment of rent and on notice to quit. Thus a default in payment of one year’s rent entitled a landlord to evict the tenant and get possession of the land, with all improvements on it, even where such improvements many times exceeded in value the amount due. So also, by serving a Notice to Quit, the landlord could similarly get rid of the tenant without cause, and take possession of the holding and all its improvements, no matter how valuable these might be, and without having to pay any compensation. The governing principle of the Act was that whatever attached to the freehold became part of the freehold.

Position of the Irish Tenant from 1860-1870.—The Devon Commission reported (1844) that farm Improvements are made by the Tenants.

During the ten years after the passing of “Deasy’s Act” the position of the Irish tenant reached its nadir. He had no right of any kind, except such as the contract under which he held gave him. Almost all the improvements which rendered the land capable of being worked were made by him. He had built the houses, erected the fences, made the roads, drained and manured the land, reclaimed it from bog or mountain—generally at a cost out of all proportion to the return—and yet he could be turned out without compensation at the will of the owner, either by the service of a Notice to Quit or by ejectment for non-payment of one year’s rent. That the tenants in Ireland made the improvements was universally admitted. The Devon Commission (presided over by a leading Irish landlord) in the year 1844, reported:

“It is well known that in England and Scotland before a landlord offers a farm for letting, he finds it necessary to provide a suitable farm-house, with necessary farm buildings for the proper management of the farm. He puts the gates and fences in good order, and he also takes upon himself a great part of the burden of keeping the buildings in repair during the term; and the rent is fixed with reference to this state of things. In Ireland the case is wholly different. It is admitted on all hands, that according to the general practice in Ireland, the landlord builds neither dwelling house nor farm offices, nor puts fences, gates, &c., into good order, before he lets his land to the tenant. The cases in which the landlord does any of these things are the exception. In most cases whatever is done in the way of building or fencing is done by the tenant, and in the ordinary language of the country—dwelling houses, farm buildings, and even the making of fences, are described by the general word improvements, which is thus employed to denote the general adjuncts to a farm, without which, in England or Scotland, no tenant would be found to rent it.”

Effects of Political and Economic Changes on the Relations between Landlord and Tenant during the Nineteenth Century.

In the early part of the last century the landlords, for political as well as commercial reasons, encouraged the increase of the tenantry. The political system that prevailed gave the landlord who had a large number of tenants considerable power. The economic conditions of the time made small tillage farming productive, and the demand caused by an ever-growing agricultural population increased the competition for land, and enabled the rents to be raised. About the middle of the century all these conditions altered. The combined influence of the Famine and of the introduction of Free Trade made it the interest of most landlords to get rid of their small tenants as expeditiously and as completely as possible. Now came the era of pasture and larger farms. Although the population rapidly decreased, the consolidation of farms kept up the competition for land, and rents rose rapidly. The clearances so common from the Famine to 1870 were made in many cases quite irrespective of the non-payment of rent.

Attempts at Reform.—Land Act of 1870.

This state of things led to outrage and constant agrarian disturbance. Various suggestions for reform of the Land Laws were made, but such proposals were usually denounced as confiscatory. Mr. Butt’s proposal in 1866 that sixty-three years’ leases, with power to the landlord of varying the rent, when any accidental circumstances increased the value of the land, should be given by every landlord to his tenants, was described by Lord Dufferin as “communistic” and “as subversive of the rights of property.” Mr. John Stuart Mill, speaking on a Land Bill introduced by Mr. Chichester Fortescue (May 17th, 1865), denounced the policy of clearing away the small tenants to make room for capitalist farmers. “You cannot,” he said, “evict a whole nation.” Various attempts to alter the law were defeated, until at length, in 1870, Mr. Gladstone took the matter in hand, and passed his Landlord and Tenant Act—the beginning of a new Land Code.

The justification for the Act of 1870 was the same as for the Act of 1881, which followed it. The tenant had made all the improvements on the land, and yet had no legal property in them. He was liable to capricious eviction from a holding, the value of which was often mainly due to his labour, and he was subject to arbitrary increases of rent.

The Act of 1870 did three things: (1) It gave compensation for disturbance; (2) it gave compensation for improvements; and (3) it legalised the Ulster Tenant Right Custom.

Compensation for Disturbance.

I.—Compensation for disturbance was strictly limited to such loss as “the Court shall find” to have been sustained by the tenant. The loss was often held to be the less the higher the rent. The amount of compensation could in no case exceed £250, and was limited to tenancies created after the passing of the Act. No compensation was to be given to tenants who had sublet or subdivided their holdings without the consent in writing of the landlord, or to any tenant under a lease for thirty-one years or upwards, and the landlord had a right of deduction from the amount awarded, for deterioration, &c.

Compensation for Improvements.

II.—The right to compensation for his improvements to be awarded to a tenant when quitting his holding was subject to so large a variety of exceptions as to greatly limit the number of tenants able to take advantage of the provision.

Even when compensation was awarded, the landlord could deduct from the amount any arrears due for rates and taxes and for the loss due to the non-observance of express or implied covenants or agreements, and the Court in awarding compensation was required in reduction of the claim of the tenant to take into consideration the time during which the tenant had enjoyed the advantages of such improvements, and also any other benefits he had had.

Ulster Custom.

III.—The legalization of the Ulster Custom did not prevent the landlord from increasing the rent from time to time so as almost to destroy the tenant’s interest. The Act did not define the custom, and the onus lay on the tenant of establishing that the particular usage under which he held was within it.

The three great reforms introduced by the Act of 1870, namely: (1) The right to compensation for disturbance; (2) to compensation for improvements; and (3) the legalization of the Ulster Custom—could only be brought into operation by proceedings before the County Court Judges, who were thus entrusted with the administration of the Act.

Failure of the Act of 1870, Causes of.

The Act of 1870 failed in its object mainly for three reasons:

(1) The great variety and complexity of the exceptions from the benefits of the Act.

(2) The principle of administration which, as a rule, tended to reduce the compensation to as low a figure as possible.

(3) The insecurity of tenure of the tenant, and the right the landlord still had of raising the rent at his pleasure. Thus the legalization of the Ulster Custom was of little use, as the landlord could practically destroy all the tenant’s interest under it by raising the rent. The only remedy was to surrender the holding and go before the County Court Judge for compensation, which was usually much less than the tenant-right would fetch if sold in the open market.

To protect the interest and property of the tenant in his holding and in his improvements, both of which had now legal recognition—it was necessary to give him: (1) Security of tenure at a fair rent; and (2) a special and expert tribunal to decide on the amount of the rent at which he was to hold.

The Land Act of 1881.

The Act of 1881 effected these reforms. It gave the tenant the right to sell his interest in his holding—subject to the landlord’s right of pre-emption—it gave fixity of tenure at a fair rent—subject to a fifteen years’ re-valuation—and it established a special tribunal to fix the rents.

The principles of the present Irish Land Code—which comprises a large number of statutes—are contained in the Acts of 1870 and 1881. The Act of 1870 recognised for the first time that the Irish tenant had a right of occupation and a property in his improvements. But the Act failed because it recognised these rights grudgingly, and left untouched the power of the landlord to fix what rent he pleased. The Land Act of 1881 for the first time safeguarded the property of the tenant, and reversed the policy of the Act of 1860 (Deasy’s Act) by removing the Irish Land system from the domain of contract, and, in a manner, bringing it back to tenure.

Differences between the English and the Irish Land Systems.

To understand the agrarian situation in Ireland it is necessary to keep in mind the fundamental difference between the English and the Irish systems, which was pointed out in the Report of the Devon Commission. In England, speaking generally, agricultural farms are let by the owners fully equipped with buildings, fences, farm roads, and other improvements necessary for the proper working of the holding. The tenant contracts to pay a rent for the farm so equipped, and, if he finds that the particular holding does not suit him, he gives it up at the end of his contract term, and goes elsewhere. Under this system, what Adam Smith termed “the higgling of the market!” is the easiest test of land value, as it is of all other commodities with regard to which competition is free. In Ireland, on the other hand, the landlord, speaking generally, owns only the soil. The equipment of each farm is the property of or has been effected by the tenant, who is practically a hereditary occupier. The houses, fences, drainage, reclamation, farm roads, and other such necessary improvements have been made by the tenant or his predecessors in title. The landlord owns the soil, and the tenant the necessary agricultural equipment. Consequently, the tenant is not free. He cannot walk out at the end of his term and leave behind him his houses, roads, fences, and drains. Besides, if he goes out, he has nowhere else to settle.

The pressure of competition is so great—as is natural in a country in the greater part of which there is no other employment or industry than that of agriculture—that, very large sums, often far in excess of the value of the land, measured by any standard of productive capacity are paid for the mere right to occupy. Again, the nature of the land, in large parts of Ireland, is such as to prevent owners from working it on the English system of equipped farms. In the poorer parts of the country the land can only be made to yield a profit to the owner by being worked by small occupying tenants, who, without any economic return, are willing to expend their labour and that of their families. Were such land to be handed back to the owners to be worked by them without the intervention of tenants no profit could be obtained, and the land would go out of cultivation, being below the margin of economic profit.

Here we have the explanation and the justification of the series of Land Acts from 1870 to 1896. They were an attempt to adjust the law of landlord and tenant to the facts of the case. Before 1870 the law regarded the landlord as the sole owner of the farm, while, in fact, the tenant was the co-owner. The Act of 1870 recognised, to a limited extent, the co-ownership, but gave insufficient relief. The Act of 1881 gave a more complete recognition and relief, and various amendments and extensions were introduced by subsequent Statutes.

Irish Land Purchase and the extent to which it has been carried on by State aid.

Side by side with the legal recognition of dual ownership in Ireland there proceeded a system for the creation of a peasant proprietary by the aid of State loans, when both parties were agreed. The principal Acts under which advances of public money to enable tenants to become proprietors of their holdings were made are:

The Irish Church Act, 1869. The Landlord and Tenant (Ireland) Act, 1870. The Land Law (Ireland) Act, 1881. The Purchase of Land (Ireland) Act, 1885. The Purchase of Land (Ireland) Act, 1891 and 1896. The Irish Land Act, 1903 and 1907. The Evicted Tenant Act, 1907. The Irish Land Act, 1909.

Irish Church Act, 1869.

Under this Act the Church Temporalities Commissioners were empowered to sell to tenants of Church Lands their holdings at prices to be fixed by the Commissioners themselves. If the tenants refused to buy on the terms offered to them, the Commissioners could sell to the public. The Church Temporalities Commissioners were empowered, if they thought well, to take payment, as to one-fourth only, in cash and to leave the other three-fourths outstanding as a legal charge on the holding, to be paid off in thirty-two years by sixty-four half-yearly instalments.

The Commissioners sold in all to 6,057 tenants at an average price of twenty-two and two-thirds years’ purchase of the rents, and the total amount of the money advanced on loan was £1,674,841, which was issued by the Commissioners of Public Works.

The terms of repayment and the rate of interest charged on loans were afterwards altered and reduced under the Purchase of Land Act of 1885,