7 MAY 1881, Page 9

CUSTOMARY TENURE AND THE IRISH LAND BILL.

TO those who, like ourselves, have constantly insisted on the fundamental distinction between England and Ire- land in the matter of landholding, there is a peculiar interest in the Irish Land Bill. For the Bill amounts to a confession that the usual English panacea for all diseases of the body politic,—the application of English law and English notions of what is expedient, has proved a failure in Ireland ; and that, if we wish to do justice, we must humbly endeavour to understand what Irish views and habits are, and endeavour to make our legislation square with the facts of the case. The Land Act of 1870, excellent as it was in many respects, and strongly indicative of the desire to remedy injustice, was want- ing in this frank recognition of past mistakes, and hence, as is now coming to be generally admitted, its failure to appease discontent, notwithstanding the advantages it unquestionably conferred upon small occupiers ; arid, therefore, though pos- sibly a necessary preparative, that Act cannot be classed in the same category with the present for statesmanlike design,

or for its intrinsic interest as a specimen of legislation of the highest order. For it cannot be too often repeated, the real grievance is this,— that the facts of the Irish system of land-holding are not in har- mony with the doctrines of the law. In fact, the groat majority of Irish tenants hold their lands, and always have held their lands, by a tenure which in reality, though not in law, is regu- lated by custom ; the chief incidents of that custom being, that the tenant erects his own buildings, does his own repairs, and executes all the improvements, however permanent their character, such as the draining of bogs or the reclamation of stony ground ; while, on the other hand, he and his family, from generation to generation, are left in undisturbed posses- sion of their holding, and pay a rent which is not absolutely fixed, but, though sometimes varied, never attains the full com- mercial price payable for the hiring of the land in its improved condition. Any one who doubts the truth of this statement should read the report of Mr. Kavanagh, a landlord and a Con- servative, and so far independent in his views that he declined to join his colleagues on the Bessborough Commission in their joint Report, but preferred to present a separate statement of his own. Or lie may turn to the calm and judicial dis- cussion of the Irish Land-laws by Professor Richey, who certainly does not take sides with the tenant, but protests throughout against the assertion that the law even before 1870 was, viewed in the abstract, unduly favourable.to the landlord.

Speaking of the smaller tenancies from year to year existing in 1870, the writer says, " No landlord could let the holding, nor could a tenant be found to take it, were there not a tacit` understanding that the landlord would not arbitrarily exercise his rights ; and that unless some extraordinary and unforeseen event occurred, ho would allow the tenant to remain in possession, so long as he paid the stipulated or a fairly in- creased rent." But, notwithstanding this admission of an Irish lawyer, what is the actual law on the subject ? Apart from the provisions of the Land Act of 1870, the Irish tenant from year to year was liable to eviction at the end of any year of his ten- ancy, upon six months' notice ; and was also liable to ejectment whenever a year's rent was in arrear, subject to a right of restitution within six months. In either ease, he had no claim whatever for any improvements which he had effected or buildings he had erected, although the holding might have been transmuted from a parcel of bog into a farm and residence. And, of course, as the greater includes the less, he had no protection against an almost yearly increase of his rent, until he was paying not only for all the value which his own industry had put into the land, but perhaps a premium for not being dispossessed of the holding of his ancestors', creation and turned adrift,--" a farmer without a farm," in a state of society in which there was nothing for him but to become a labourer ; or perhaps, as so calm an observer as Professor Richey says, to starve and die. To talk of freedom of contract between an Irish landlord and the majority of his tenants was, of course, nonsense. There never had been any contract at all, in the sense which the law put upon the transaction ; the tenure of the Irish farmers was well understood by themselves and by good landlords amongst them, but it was not the tenure which the law said the parties had contracted for.

In the face, then, of this glaring inconsistency between the position of the Irish tenant in fact and the posi- tion assigned to him by the law, what, as we have always urged, is the obviously just and wise course of legis- lation ? Naturally, to make the law agree with and support the facts. But the Act of 1870 did not venture so far. It did not say to the tenant, "You shall be protected in your holding, while you fairly comply with those con- ditions which custom has annexed to it." But it said to the

landlord, " The Legislature does not think it right in you to take advantage of the law as it stands, and, if you do, you shall be put to some inconvenience and trouble}possibly, to some loss.

Therefore, if you evict a tenant, you shall, except where the cause is non-payment of rent, or breach of certain well-defined conditions, compensate him for disturbance, according to a cer- tain scale varying inversely with the value of the holding ; and you shall, in every case, give compensation for improve- ments effected by the tenant or his predecessors in title."

This device failed. The landlord in some cases did not mind the expense cast upon him by the Act in obtaining pos- session of the tenant's holding ; in other cases, he found it to his pecuniary interest to obtain such possession even upon the new terms ; and in still more numerous instances he exercised his power, left untouched by the Act, of raising the rent, trusting to the known wish of the tenant to remain in his holding, rather than to receive any amount of compensation for quitting it. The indirect means adopted by the Act did not attain the end really desired,—the legalising of that customary system of holding which in fact existed, though unwarranted by law. Tho great excellence of the present Bill is, that it aims honestly and directly at the real desidera- tum. It enables any tenant of a tenancy existing at the pass- ing of the Act to apply to the Land Court to fix a fair rent, and immediately upon the fixing of such rent the tenant is secured in his holding at that rent for fifteen years, subject only tcl the fulfilment of those conditions which are implied in the customary system,--namely, the payment of rent, the due preservation and cultivation of the holding, the ad- mission of the landlord to the premises for certain reasonable purposes, and the continuance of the holding undivided and in solvent hands. At or within twelve months of the expiration of the fifteen years, the tenant may again apply to the Court, and obtain a renewal of the term, upon a revision of the rent with a view to its fairness under the possibly changed circum- stances of the day, but otherwise upon the same conditions as before. During his tenure the tenant may sell his holding, sub- ject only to the condition that the landlord has a right of pre- emption, and that in the case of purchase by the landlord the price is to be fixed, in the event of disagreement, by the Court. But lest the landlord should exercise this right merely for the purpose of freeing himself from the incidents annexed by the Act to existing tenancies, it is provided that in the case of a reletting within fifteen years to another tenant, the holding shall be subject to the same provisions as to fixity of tenure and fair rent as before the purchase.

This is the salient feature of the Bill, and it will be seen that it does practically bring the law into accord with the view upon which both tenants and landlords have for the most part acted,—that custom of the country, which has, in fact, regulated its agricultural system. For it seems to be the universal testimony that it is not an increase of rent in itself which the tenant objects to, so long as the increased rent leaves him a fair living profit, and does not trench upon the value of his interest in the holding ; but what he does object to, and always has objected to, is subjection to his landlord's caprice, whether it takes the form of absolute eviction, or of repeated rent-raisings, making it impossible to carry on the business of farming on any intelligible basis, and depriving him of what he fairly, under the circumstances, considers his property in the holding.

Now, in all this there appears to be quite a singular analogy to what happened some three centuries ago in the case of English copyholds. No doubt, many technical distinctions may be drawn between the two cases, but in substance there is great similarity. The copyholder had, in the eye of the law, no estate whatever in his land. He was a mere tenant at the will of his lord, -whose serf he originally was. But, in fact, he had a great interest in his holding. He built his house, he kept it in repair at his own expense, and so far as any draining or other work of improvement was effected in those days, it was effected by him. In very many cases, no doubt, he, like the Irish tenant, had reclaimed his holding from the waste. The copyholder, again, paid rent,—his services were gradually commuted for money payments; but his rent never represented the commercial letting value of his land. At the same time, this value was not altogether left out of account ; froni time to time, as holdings changed hands, he was made to pay a fine to the lord,

which, in theory quite arbitrary, no doubt, long before it was regulated by law, had in custom come to be assessed with reference to the annual value of the holding. Thus, as in the present case, there was, on the one hand, a well understood custom, according to which, so long as certain dues were performed and conditions observed, a copy- holder was left quietly in possession ; and en the other, a law which gave him no legal status whatever, not even that of the Irish tenant before the Land Act of 1870. From the drily technical point of view, the legalisation of the system of customary holdings, in the case of English copyholds, must have been a far more violent attack on the rights of the lord of the manor, than any interference with the Irish landlord proposed by the Land Bill ; for the legal interest of the copy- holder was far less than that of the Irish tenant, while that of the lord of the manor was to the same extent greater than that of the landlord. But substantially what was done by

the Law Courts of the fifteenth century is what Parliament is asked to do now, namely, to recognise a system outside of and anterior to the common law, and more powerful, in fact, than

that law in " regulating " the relations of man and man, and to relieve from the intolerable injustice which would ensue from pushing to its logical conclusions the law of statute and text-book, without reference to the customs of the country. But, no doubt, it requires a greater effort in the statesman of to-day than in the Judges of our early history to recognise such a customary system outside the law ; for while, on the one hand, the law must in those days have been more fluid and capable of adaptation than at present, on the other, the modern idea of freedom of contract in respect of land had then hardly dawned. That it is possible in the nineteenth century to propose for serious legislation a measure of the character of the Irish Land Bill, is due, we venture to think, not less to the marvellous strides lately taken in the study of early states of society—the application of the Baconian method to a class of facts hitherto left outside its pale—than to the good-fortune of the country in possessing a Premier of singular capacity at once for accepting new ideas, and for applying them, with nice regard to justice and equity, to the complicated details of existing problems.