Democracy and Liberty. William Edward Hartpole Lecky
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Government, affirmed in the clearest terms that the relations of landlord and tenant in Ireland rested solely ‘on the express or implied contract of the parties, and not upon tenure or service;’ but it at the same time provided that the landlord could bring no ejectment for non-payment of rent till a year's rent under the contract of tenancy was in arrear; and that, even after the ejectment had taken place, and the landlord was in possession of the farm, the tenant might apply to the court for his reinstatement if, within six months after his ejection, he paid his rent and costs. A clause which appears to have been imitated from the French Civil Code15 authorised the tenant to remove ‘all personal chattels, engines, machinery, and buildings accessorial thereto affixed to the freehold by the tenant at his own expense,’ provided this could be done without injuring the freehold as it existed when he first received it; and another clause established the right of the tenant to cut turf, in the absence of any express agreement to the contrary, on any unreclaimed turf bog on his tenancy. It may be added, that Acts of the old Irish Parliament had long since given the leaseholder a right of property in the trees he had planted, provided they were duly registered.
The very comprehensive and elaborate Act of 1870 went much further, and it was inspired by an evident desire to do justice to all parties; though, in the vast range of its provisions, there were some which have proved prolific in dangerous consequences not, I believe, clearly foreseen by its authors. One valuable portion of the Act followed and extended the policy, which had been adopted in the Church Act, of endeavouring to create a peasant proprietary. It authorised advances not exceeding two-thirds of the purchase money, and repayable by an annuity of 5 per cent. in thirty-five years, to any tenant who desired to purchase his holding. Another portion recognised, in the largest and fullest terms, the right of the tenant to compensation for his improvements, which are defined as works adding to the letting value of the holding, and suitable to it, and also to his crops and his unexhausted manure. This right was not destroyed by an ejection for non-payment of rent. It was not confined to improvements made subsequent to the Act. With certain clearly defined exceptions, it applied to all improvements made by the tenant or his predecessors in title. In the case of permanent buildings and reclamation of waste land there was no limit of time. In the case of other improvements there was a limit of twenty years. It was enacted that improvements, except in certain specified instances, should be deemed to have been made by the tenant or his predecessors, unless the contrary had been proved, thus reversing the old legal presumption that whatever is added to the soil belongs to the landlord. Durable and written contracts and tenant-right were encouraged by clauses limiting the improvements for which a landlord was liable whenever he granted a long lease, and permitting a departing tenant to dispose of the interests of his improvements to an incoming tenant on terms that were approved of by the court.
The Ulster tenant-right—or, in other words, the right of a tenant to sell his interest in his farm—received the force of law, and it was extended to all parts of Ireland. In Ulster the existing tenants had purchased their tenant-right, and they only obtained legal security for what was already theirs by usage. In the other parts of Ireland a saleable property which they had not bought was conferred upon them. One consequence of this was, that the boon was a much greater one to the first generation of tenants, who received it as a gift, than it was likely to be to their successors, who would in due course purchase their tenant-right. Another consequence, which was probably not foreseen, was that the tenants borrowed largely on their new security; and it was from this time that the ‘gombeen man,’ or local usurer, obtained his great prominence in Irish life. A provision, to which, I believe, there was then no parallel in the legislation of the world, provided that a tenant who had accepted a tenancy from year to year could not be removed, except at a ruinous cost, at the date at which his tenancy was terminable. Except in case of non-payment of rent, bankruptcy, or violation of specified conditions of tenancy, the landlord had no power of resuming possession of his land without paying the tenant a fine for ‘disturbance,’ which might, in some cases, amount to seven years’ rent. It will be observed that this ‘disturbance’ was not an illegal act. It was simply the enforcement by the landlord of a plain and incontestable right secured to him by the contract under which he freely parted from his land. As Judge Longfield has observed, it was possible for a landlord under this law to put a tenant in possession as tenant from year to year, to leave him in the enjoyment of it for five years, and then to be obliged to pay him seven years’ rent as a fine for removing him from it.16 This compensation was quite distinct from that given for improvements in the shape of permanent buildings or reclamation of the soil. A landlord might, however, free himself from this claim by giving a long lease.
The statesman who introduced the Act very clearly stated that it was not intended to give the tenant at will a proprietary right in his holding, but the provisions relating to disturbance plainly and unquestionably had this effect. Some faint and distant analogy may be discovered between this legislation and the English tenure of copyhold, which grew out of tenancies at will that had existed undisturbed in the same families for many generations, and which the law at last recognised as a permanent tenure, to be enjoyed by the tenants and their heirs, subject to the conditions prescribed by immemorial custom in the manor. The Irish law, however, applied to the newest as well as to the oldest tenancies. It was defended, partly on the ground that usage in most parts of Ireland made a yearly tenant secure that he would continue undisturbed in his tenancy as long as he paid his rent; partly as a measure intended to discourage the great political evil of unnecessary evictions; partly on the ground that it was likely to be beneficial to both landlord and tenant, by giving the tenant strong additional reasons for punctually observing the conditions of his tenancy. It was said that it merely gave the tenant of a bad landlord the security which the tenant of a good landlord already enjoyed, and that, in the case of small farmers, an increased stability of tenure would be not only a great political advantage, but also a great incentive to better agriculture. Even eviction for non-payment of rent might be deemed a ‘disturbance’ establishing a claim for compensation if, in the opinion of the Land Court, the rent was an exorbitant one, or if the arrears that were demanded had not wholly accrued within the previous three years. The right of compensation for disturbance applied to all tenancies from year to year, or held on leases for less than thirty-one years created after the Act had passed, and also to all tenancies from year to year existing when the Act was passed which were under the value of 100l. a year.
The Legislature considered, with some reason, that the smaller tenants were too poor to make their own bargains. Agreements between landlord and tenant, under which the latter gave up their rights to certain privileges granted by the Act, were in a large number of cases made null and void. These clauses prohibiting grown-up men from making their own bargains have been the fruitful parents of much later legislation. The principle passed into England in the Ground Game Act of 1880, which made it impossible for an English tenant to divest himself by agreement with the landlord of the right of killing hares and rabbits; and a tendency to introduce the same principle of compulsion into the largest possible number of contracts relating to land and trade seems fast becoming a distinctive feature of advanced English Liberalism.
The Irish Land Act of 1870, in its consequences, was certainly one of the most important measures of the present century. It appears to me to have been introduced with much integrity of motive, and in many of its parts it proved very beneficial. The recognition of a tenant's right to the improvements he had made; the recognition of the Ulster tenant-right; the encouragement given to the substitution of written leases and contracts for the system of tenants at will; the measures taken to create a peasant proprietary, were all marked with much wisdom. Capricious notices to quit, or notices to quit given for the mere purpose of accelerating the payment of rent, were discouraged by the imposition of a stamp duty, and there was a useful provision granting loans of public money for the reclamation of waste land. I cannot, however, reconcile with the rights of property the retrospective clause making a landlord liable for improvements made by tenants at a time when no such liability was recognised by law, and with a clear knowledge of that fact; and the clause giving a yearly tenant compensation for simple disturbance if he was removed at the end of the year seems to me essentially dishonest, and the germ of much evil that followed. It was not altogether a new importation into Irish politics. In 1866, Sir Colman O'Loughlin brought in a Bill for discouraging annual letting and precarious tenancies, and one of its clauses gave compensation to a yearly tenant if he was ejected for