Democracy and Liberty. William Edward Hartpole Lecky
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was easily procured), might become the purchaser of the depreciated property. ‘By this new process,’ writes a very competent lawyer, ‘estates were sold to the amount of many millions, during the years 1849, 1850, 1851, and 1852, for less than half their value, and less than half the prices which the same estates would bring had the sale been deferred till the end of 1863. Some of the most ancient and respected families in the country, whose estates were not incumbered to much more than half their value, were sold out and beggared; thousands of creditors whose demands would have been paid if the sales had not been accelerated were not reached, and lost the money which they had lent upon what was ample security at the time it was lent, and would again have become sufficient security had the property not been ruined by the poor law and sold in that ruined condition, in a glutted market, under an enactment devised for the professed purpose of improving the condition of Ireland. The law's delay, which in ordinary circumstances is a grievance and a vexation, would have had a salutary and a just effect in those calamitous times. There was no justice in exonerating the early incumbrancers from all participation in the effects of the visitation which had come upon the country, and every feeling of humanity and every principle of equity demanded temporary indulgence from them. There was cruel injustice in turning a destructive visitation of Providence into an advantage to them which they could not have had if the law had been left as it stood when they made their contracts and took their securities, and as it still stands in England.′24
This measure, however, was at that time put forward by the Whig party as the supreme remedy for the ills of Ireland. It was pushed on against all remonstrances, and with many insults to the broken and impoverished landlords, who were now fast sinking into the shades of night. Political economy, it was said, was vindicated, and with a chorus of self-congratulation the Whig leaders proclaimed that Irish property was at last placed on its true basis, that all feudal superstitions had been effectually exorcised, and that a new and energetic class of landlords would replace the old thriftless, apathetic landlords of the past. During the last twenty-five years the main object of the leaders of the Liberal party has been to undo the work of 1849.
Let us now look at the Incumbered Estates Act from another side. The purchaser purchased from the Government, and at the invitation of the Government, the complete and absolute ownership of the estate, subject only to the existing contracts under which it had been hired out to the tenants. He bought every acre of the land, every stone of the buildings. If there were improvements on the land, these improvements were specifically mentioned in the printed advertisements that were issued by the Land Court, and they were sold to the purchaser by a judge who was appointed by the Government, and under the direct sanction of the Imperial Parliament. If the property was let on very easy terms; if the leases were soon to expire; if there was a possibility of making a considerable rise of rents, these facts were constantly put forward by the court as inducements to the purchaser, and they entered largely into the price which he gave. He was guaranteed the complete and absolute possession of the land and buildings on the termination of the tenancies in the schedule, the full legal right of determining the existing yearly tenancies. One of the special advantages attributed to the Act was, that it was perfectly clear; that the title which it conferred was absolutely indisputable. It was a parliamentary title, and highest known to English law; a security of the same kind and of the same force as that by which the fundholder or other Government creditor is guaranteed the interest of his loan. Between 1849 and 1870 more than fifty-two millions of pounds had been invested on this security in the purchase of Irish land. About an eighth part of the soil of Ireland is said to be held under this parliamentary title.
Let us now pass for a moment to the position of the existing landlords as it is established by the legislation of Mr. Gladstone. In the first place, the improvements which had been purchased under the Incumbered Estates Act have, by a naked act of confiscation, and without the smallest compensation, been taken from the purchaser, and are now the property of the tenant. A great part of what the State had sold to him, and what the State had guaranteed to him, is no longer his; and it has ceased to be his, not by an act of honest purchase, but by an act of simple power. In the next place, his clear and indisputable right to resume possession of his land when the tenancies upon it had expired has been taken from him. The tenant who was in possession when the Land Act was passed has acquired fixity of tenure. Subject to the periodical revision of rents by the Land Court, and the fulfilment of certain easy statutory conditions, he cannot be removed unless the landlord should purchase from him, by permission of the Land Court, and on conditions which the court prescribes, that right of resuming possession of his land which before the new Act was indisputably his own. The landlord has ceased to be the owner. He has become merely a rent-charger. Again and again in the debates of 1870, when the question of fixity of tenure was raised, the leaders of the Liberal party acknowledged the very obvious truth that such a provision simply amounted to the transfer of the ownership of the soil from the landlord to the tenant, and that such a transfer could only be honestly effected by paying for it in money. ‘By such a provision,’ said Mr. Gladstone, ‘the landlord will become a pensioner and rent-charger upon what is now his own estate. The Legislature has, no doubt, the perfect right to reduce him to that condition, giving him proper compensation for any loss he may sustain in money.’ ‘Inasmuch as perpetuity of tenure on the part of the occupier is virtually expropriation of the landlord, and as a mere readjustment of rent according to the price of produce can by no means dispose of all contingencies the future may produce in his favour, compensation would have to be paid to the landlord for the rights of which he would be deprived.’25 I shall not go into argument on that subject,’ said Sir Roundell Palmer when speaking of this proposal, ‘because that point was exhausted by the Head of the Government when he spoke of fixity of tenure, which, in plain English, means taking away the property of one man and giving it to another. My right honourable friend said that, according to the principles of justice, if we transferred property in that way we must pay for it. No doubt we may take a man's property, but in that case we must compensate him for it.’26
These principles appear to me perfectly true, and indeed self-evident; but they did not prevent the legislators of 1881 conferring fixity of tenure on the present tenant without granting compensation to the landlord, and from that time the first principle of much reasoning in Parliament about Irish land has been that it is a dual ownership; that the landlord is nothing more than a partner, or, as it is now the fashion to say, ‘a sleeping partner,’ in a joint possession, whose interests in every question of dispute should be systematically subordinated to those of the other partner. And this phraseology represents with much truth the position which the holders of land under parliamentary or other title in Ireland now hold.
In the last place, the Legislature has deprived the landlord of the plainest and most inseparable rights of ownership— the power of making contracts, offering his farms at the market price; selecting his tenants; prescribing the period and the terms for which he will let his land. A court is established with an absolute power of deciding the amount of rent which the tenant is to pay, and the landlord has no option of refusing, or seeking another tenant. It is often argued that the reduction enforced by the Land Courts is, on an average, somewhat less than that which has taken place in England, and that the Irish landlord has, in consequence, no reason to complain. There is, however, a great difference between a country which is mainly pasture and a country which is in a large degree wheat-growing; between a country where farms are constantly thrown into the hands of the landlord, as no tenant will take them, and a country where the average price of tenant-right is more than ten years’ purchase of the existing rental. There is also a clear difference between a reduction imposed by an act of mere power, and a reduction which is the result of the free bargaining of two contracting parties.
It might have been supposed that a legislature, in conferring this tremendous power upon a new court, would take great care at least to minimise its injustice by strictly defining the principles on which it was to act, and insisting that the reasons for its decisions should be clearly and fully given. Mr. Gladstone, however, with great skill, succeeded in persuading Parliament to abstain from giving any definition or any approximation to a definition of a fair rent, leaving this matter completely, or almost completely, to the arbitrary and unregulated action of the court. The single exception was a provision that no rent must be allowed for improvements made either by the tenant or by his predecessor in title. The one real test of the