TENURE OF LAND IN IRELAND.
ACAREFUL perusal of the evidence taken by the Committee of the House of Commons which sat last year, to inquire into the state and possible improvement of the system of land tenure in Ireland, leaves upon the mind the same general con- clusion which is forced upon it by every fresh investigation into Irish grievances and Irish wretchedness, viz., that what is needed is not so much an alteration in the law, or even in the administra- tion of the law, as a radical change in the character, the notions, and the habits of the people. The Committee was impartially con- Stituted ; the witnesses they examined were many of them men of experience and capacity ; the desire to devise a remedy, if a remedy can be suggested, was strong and sincere on nearly all sides ; the sense of the thoroughly unsatisfactory state of agricul- tural matters at present was felt by all,—and yet the utter futility and injudiciousness of nearly every proposal, confidently and vehe- mently urged, was distinctly shown, and the Committee concluded by recommending merely a very alight and obvious modification in one of the details of the existing law, and admitted that nothing else could be attempted with any prospect of advantage. And we think
it is impossible to read the evidence with an open mind and not come to almost identically the same conclusion, whatever be the prepossessions with which we set out. The only comforting re- sult to be derived from the perusal of the Blue-book is this, which was universally admitted—that, backward as agriculture is in Ireland, it is very distinctly better than it was, and that the progress already made has every prospect of being secured and augmented.
The general though vague demand is, as every one knows, for the establishment of what is termed " Tenant-right." Now three entirely distinct things are meant by this phrase, according to the position and locality of those who use it. In the mouths of the native Irish as a rule it means " fixity of tenure ;" in Ulster it means the prevalent custom, in virtue of which the incoming tenant pays to the outgoing tenant a sum of money for the " good- will" of his farm ; in the minds of landlords, members of Parlia- ment, and educated men generally, it means a right on the part of the tenant to claim from his landlord, at the termination of his tenure, compensation for unexhausted improvements effected by- the tenants' outlay. To get to the bottom of the subject—which after all is very simple, whatever practical difficulties may attend the detailed application of a sound system—we must look at each of these three significations of the phrase in succession.
Fixity of tenure, the only concession which would in the least degree satisfy the Irish, is what of course no one would dream of conceding, and would demonstrably be the greatest conceivable curse to them if conceded. At the root of all Irish difficulties lie the peculiar notions entertained by the Irish peasant and small farmer as to property and right in land—a fact which has not been as distinctly recognized as it should have been. These notions— half -Maori, half -Hindoo, as we described them in a former paper— are the ultimate cause of nearly all the agrarian disturbances and out- rages in Ireland. The cottier and tenant does not deny the ownership- of the land to the legal and recognized proprietor, but he considers that the occupier has a right to remain undisturbed upon his holding as long as he pleases, and in despite of the proprietor. He does not consider merely that he has a right thus to remain so long as he cultivates the land decently and pays the stipulated rent, but that his right is indefeasible, however he may neglect or misuse the land, and whether he pays the stipulated rent or no. He admits that he ought to pay the rent if he can, but he thinks- that the landlord ought to excuse it or wait for it if he cannot. Sometimes he will admit his landlord's right to distrain if he is very- much in arrear, though he regards the proceeding as a harsh one, but under no circumstances does he in his heart acknowledge that the proprietor is entitled to turn him out for non-fulfilment of hie bargain, or that any other tenant is entitled to succeed him with- out his permission. The popular idea of fixity of tenure goes this length, and is often put into as plain words. It is not worth while to go into a discussion as to the origin of it ; probably it is. half historical and half irrationally logical. The old native chiefs never dispossessed their tenants, who were their clansmen or their vassals, and the people cannot conceive why the incoming con- querors who seized their lands should do so either. For generations- past, moreover, eviction from his holding, in a purely agricultural country like Ireland, meant ruin and starvation, and the Irish cottier could not perceive that this was a just penalty for mere inability to pay rent. But however the notion arose, the notion is there, and governs the feelings and views of the peasantry ; the notion is an inadmissible and practically a most pernicious one,. and every law or measure which at all connives at or appears to imply or adopt the notion must be pro Canto mischievous. Now it is obvious that Judge Longfield's proposal that the tenant should be allowed to make whatever so-called "improvements " he pleases on his holding in spite of his landlord, and then to claim compen- sation for them, does confirm this prevalent erroneous idea, and makes the tenant in a measure co-proprietor with his landlord— which is the first objection to it.
How great a curse " fixity of tenure " would be to Ireland if it were possible it should be listened to for one moment is dis- tinctly and most forcibly shown in the evidence of Lord Dufferin, at once one of the most sensible and logical Irishmen ever met with, a most benevolent, liberal, and industrious landlord, and a strong advocate for " tenant-right " in the sense of compensation for real, legitimate, and unexhausted improvements. It happens that on his property are two considerable areas which 120 years ago were let in perpetuity,—that is to say, fixity of tenure was granted to the then tenants, and all control over the land passed away from the nominal proprietor, who merely receives the stipulated rent. Well, what is the result? That this land is the worst cultivated, the most subdivided, and the most rack-rented in the district. The first of these areas was originally let to six tenants, —it is now split up and sub-let to twenty-five. The rents paid by these sub-tenants vary from 31s. to 35s. an acre, while the rent of adjoining land of the same value held directly from Lord Dnfferin by tenants-at-will is only 25s. The second area was originally held in seven farms,—it is now divided into twenty- seven, and the rents exacted from the holders of these are 27s. to 31s., the ordinary rents of the adjacent lands being only 25s. The concurrent testimony of the witnesses examined goes to prove that wherever an Irish tenant held on secure tenure more land than he needed for his bare support, or more than he could cultivate him- self, he invariably sublet it, became himself a landlord, and the hardest and most exacting of all landlords. Lord Dufferin sums up one part of his remarkable evidence thus :—" However impro- vident or oppressive the present proprietors of land may be, were their proprietorship to be transferred, as I have seen it proposed, to the present tenantry, the result of such a transfer would be the creation of a class of landlords still more improvident, and, judging from the rack-rent demanded in the cases I have cited, still more oppressive." " Tenant-right," as it exists and is understood in Ulster, when analyzed and traced home, is simply this :—a comparatively good understanding has, from generation to generation for a long time back, subsisted between the owners and occupiers of the soil; leases are very rare, and seldom wished for by the tenants, but decent holders are scarcely ever dispossessed as long as they can pay up, and a certain feeling of security has been thus engendered ; and the rents demanded are considerably lower than might be exacted, and would willinglybe paid. Thus nearly everyfarm is worth more to the occupier than he pays to the owner in the shape of rent,— and he is therefore willing in addition to give his predecessor a certain sum for liberty to succeed him, i. e., for the good-will of the farm. This is not a practice sanctioned or enforceable by law ; it in simply a custom, but one so established by long usage that no one disputes it, or wishes to upset it, and it is practised with the full knowledge and consent of the landlord. In fact the in- coming tenant covenants to pay a certain yearly rent to the pro- prietor and a certain lump sum to his predecessor, and he pays this sum to him, not, as is sometimes alleged and believed, for un- exhausted improvements, but simply and solely because the farm is worth more to him than the rent he has to pay to the landlord. "In fact" (as Lord Dufferin puts it) "this lump sum is nothing more than so many years' purchase of the difference between a fair rent and a rack-rent. My rent of 25s. an acre• being 35 or 40 per cent. lower than the competition rent of 35s. an acre paid on the adjoining area, a man who surreptitiously handed to my out- going tenant 1001. for the good-will of a ten-acre farm would be in no worse a position than the adjoining tenant, who pays a rack- rent of 35s. an acre. Thus the custom under which these good- will payments are made is the exponent and result, and not the cause, of the landlords' moderation." In truth the incoming tenant, instead of paying all his rent to the landlord, pays virtually about a third of it to the occupier who surrenders the farm to him. He purchases from the previous tenant the right to hold under the landlord, and to pay rent to him. The tenant is no gainer (pecuniarily) by this custom, but the landlord is the loser. Indeed so clearly and truly is he the loser, in money value, by a practice which springs solely out of the comparatively low rent which he demands—out of his own moderation, in a word—that on several occasions when the owner has wished to take a farm surrendered by the tenant into his own hands, he has had to pay a large sum, often ten years' rent, to the out-goer, merely because he had habitually accepted from him a lower rent than competi- tion would have obtained for him,—has had, as Lord Dufferin ex- pressed it, "to pay a heavy fine for his own and his forefathers' moderation."
Now is this custom of tenant-right in Ulster a good thing or a bad thing? (Let it be clearly borne in mind that it is not really in any correct sense a compensation for unexhausted improvements, since it is invariably heaviest in proportion for the most unim- proved lands or the worst farms, simply because, these being the smallest, there is most competition for them.) We believe it is on the whole a bad thing, though perhaps not without a certain advantage; this conclusion at least appears to be the net result of the Committee's investigations. It is admitted that agriculture in Ulster is more advanced than in other parts of Ireland where this tenant-right does not exist, but it seems probable that this superiority is to be traced to the better feeling which exists between landlords and tenants, to the sense of security which this feeling creates, and which tenant-right does not directly affect one way or the other (since a man may be turned out any day, and would then only get back what he had himw'lf paid), and more than all, to the fact of the people being in a great measure of a different race, both landlords and tenants having a larger admixture of Scotch and English blood, and both being also as a rule less impoverished. The custom of tenant-right, as we have explained it, operates injuriously in two ways ; first, the landlord looks to the lump sum received by the out-going tenant to secure him payment for all arrears of rent, and is therefore less vigilant than he might other- wise be as to the solvency of the tenant he accepts ; and secondly (and this is an incomparably more serious consideration), the in-comer is usually obliged either to borrow the money he has to disburse, and thus enters on his farm an embarrassed man at the outset, or to spend on that preliminary payment the capital which he needed to cultivate the farm with advantage, in which case he is hampered for life in all his agricultural operations. A poor man and an indebted man can seldom be a good farmer; and it would probably be far better for all parties for the tenant to keep his 1001. for improvement and for stock, and to pay a higher yearly rent to his landlord. We doubt whether any sagacious man would prescribe the extension of " Ulster tenant-right," any more than "fixity of tenure," as a remedy for the agrarian evils and wants of Ireland.
It is admitted on all hands that the principal portion of the " improvements " effected—that is, farm buildings, drainage, manuring, clearing, and fencing—are in Ireland done by the tenant, and that the tenant does them not so well as, but cheaper than the landlord, because, as Lord Dufferin explained, he does them " at odds and ends of time, and with odds and ends of materials." There appears to be no general wish to alter this state of things, rather the contrary ; but it is desired and admitted on all hands that the tenant should be secured a fair compensation for all " unexhausted improvements," that is, for all capital laid out by him of which he has not reaped a full recompense before the termination of his occupancy. Thus far all parties may be said to agree. There is a recent Act, passed in 1860, and known familiarly as Mr. Cardwell's Act (Act 23 and 24 Vict., c. 153), for securing this compensation to the tenant ; and every one is agreed that this Act ought to be amended by awarding the compensation fixed upon in the form of a lump sum, instead of an annuity. Thus far, again, all is clear and simple, and there is no difference of opi- nion worth noting among any persons conversant with the subject. But Judge Longfield, the ablest and most determined of the advo- cates of an extended tenant-right, and one or two less important witnesses, propose to go somewhat further ; to give the tenant a legal claim to compensation for all outlay which the landlord did not abso- lutely veto, even where the outlay might be no real " improve- ment" to the property at all, and to empower the tenant, where he wished to lay out money in opposition to the landlord's desire, to appeal to the county magistrates in session, and if they decide in his favour to make the projected outlay, and to claim compen- sation for it. We are compelled to say that the arguments by which Mr. Longfield supported this last proposition were feeble in the extreme, and altogether broke down on cross-examination. He was forced to admit that he knew of no case of a landlord refusing to allow a tenant to make a really improving outlay in order to avoid giving compensation for it, though he " could imagine " such a case ; that in case of such a refusal, his proposed right of appeal would probably be useless, because the bench of magistrates would be certain to decide in favour of the landlord ; that "improvements" proposed by the tenant (usually small tenements or farm buildings) would often interfere with the land-
lord's much wiser and honestly projected improvements in the shape of the consolidation of those small holdings which are now
almost universally admitted to be the curse of Ireland, and that in these instances it would be monstrously unjust to make the landlord remunerate the tenant for what was not an improve- ment, but an injury, or at least an impediment,—a needless erection, which sooner or later he would be put to the expense of removing. It was further pointed out (we believe by Lord Dufferin) that this sort of appeal to other parties, neigh-
bours and fellow landlords or occupiers, would operate nox- iously even for the tenant in three ways,—first, it would tend to foster that dim notion of his being a sort of co- owner of the soil, which we have already specified as lying at the root of most of the agrarian difficulties of the country ; secondly,
it would promote and increase that want of harmony and kind feeling between landlord and tenant which is already doing in- calculable mischief, since nothing could be more irritating to the
proprietor than to be called upon to discuss with third parties the mode in which he is to deal with his own land, and nothing could be more irritating to the occupier than to have his litigating appeal constantly decided against him (as the Judge admitted would be the case); and thirdly, it would go a long way to pre- vent men of capital and enterprise purchasing estates in Ireland, when they would be liable to be thwarted and interfered with in their operations by stupid tenants and incompetent country gentlemen,—the great and precise desideratum of Ireland being the influx of these rich and enterprising purchasers, whom Mr. Longfield would thus unintentionally deter. In short it was made pretty clear that a suggestion more pernicious in every way could scarcely have been made with bona fides.
There remained therefore literally only one other point for practical deliberation,—a point which shrank to smaller and smaller dimensions the longer it was discussed,—the question, namely, whether a tenant should be entitled to claim compensa- tion for all unrepaid outlay which his landlord had not distinctly forbidden, as well as for all which he had distinctly autho- rized. The conclusion appeared to be that he ought, and in this we fully concur. But it did not seem probable that any modification of the law in this direction would produce much practical effect, inasmuch as the landlord, or his agent, is usually col;niztuit of whatever the tenant is doing, and is consulted about it. The real point of importance is the establishment of some tribunal, easy of access, and enjoying the confidence of both par- ties, which should be able, promptly and competently, to value improvements, and award compensation. This, the one thing wanted, and the only thing that would be really and beneficently operative—curiously enough, but strictly according to national precedent and habit—has never, so far as we can learn, been demanded by the complainants, and was left to be suggested to the Committee by an Irish landlord. Lord Dufferin says :— " I think that one of the great misfortunes of our condition in Ireland arises from the difficulty of finding persons competent to give an opinion upon those points [unoxhausted improvements, &c.], who at the same time would possess the confidence of the two parties concerned ; in England almost constantly disputes of a similar nature are settled without any difficulty by the arbitration of some third person, whom each of the contending parties agree to call in, and in whom they both have equal confidence, but in Ireland, at all events so far as disputes arising between landlords and tenants are concerned, there is not the same facility, because in Ireland unfortunately there does not exist an independent class whose interests are so entirely distinct from either those of the landlord or of the tenant as to enable them to act as arbi- trators upon such occasions ; in fact, the only skilled person in an agricultural district would be either a farmer or an agent ; the landlord would have no confidence in a valuation made by a tenant, and the tenant would have no confidence in the arbitration of an agent I think that one of the great difficulties in the way of arriving at a satis- factory adjustment of those claims [for compensation] proceeds from the absence of any independent authority to whom the landlord and the tenant could both refer a matter in dispute between them with equal confidence, and it certainly has occurred to me that if the Government were to establish, perhaps as an experiment, in two or three of the chief centres of Ireland, arbitrators of their own, men of recognized profes- sional ability, and well acquainted with the practice of agriculture, and were to pay them such salaries as would enable us to secure the services of really eminent men, and that if those salaries were further to be aug- mented in proportion to the number of cases which they might decide, so as to make it an object with these arbitrators to give satisfaction in their decisions, both to landlords and tenants, a better result might follow. Then, in the case of a landlord and a tenant mutually agreeing to refer any matter in dispute between them to arbitration, these gentle- men might, without any difficulty or expense, come to the spot and go into the whole matter ; but the landlord and the tenant having by mutual consent called in the services of an arbitrator, his decision should be binding in law, with perhaps a power of appeal in cases where consider- able value was at stake. I think by this means we shall have done all that it is possible to do in this direction, because I am perfectly con- vinced that our only chance of success in facilitating such arrangements would be by not exciting the jealousy of the landlords, and by not placing the tenants in a position hostile to their landlords, because I regard a tenant who has made improvements on his farm without a lease pretty much in the light of a woman who has made a runaway match without marriage settlements. Tho thing is done and cannot be helped ; and however much you may desire, if her husband treats her harshly, to alleviate her position, yet it is very well known that, generally speaking, interference does more harm than good. Therefore in any measure of this kind, the great thing is to con- trive some scheme which shall be recognized as a boon both to the landlord and to the tenant, rather than as a measure introduced with the view of benefiting one of the parties to the detriment of the other. I think perhaps that if such machinery existed, there are many land- lords who would be ready to avail themselves of it. And I think, cer- tainly in the north of Ireland, that the landlords would be more ready to avail themselves of it than the tenants. In any case the advantage would rest with the just man, whether he was a landlord or whether he was a tenant, because if the tenant makes an unjust claim, the landlord can then apply this test, and say, Shall we go to arbitration ?' If the tenant refuses, the landlord then is in a position to say, 'Your claim can hardly be reasonable, because you have refused arbitration.' If the landlord refuses, the tenant, at all events, can urge the same argument on his own behalf. And in that way public opinion, which I regard as one of the great safeguards of society, and by which in fact some of the principal relations of mankind to each other are regulated, would be to a certain degree brought to bear on the settlement of the question; and I think that this is very important) for the very reason that in Ireland public opinion may be said scarcely to exist."
The irresistible impression left upon the mind by the evidence and discussion of the subject before the Committee whose blue- book we are considering is this,—that the law can do little in the matter, and that one or two modifications of the existing statutes is all that can be safely or hopefully ventured upon. The great want of Ireland is the existence of a better race both of landlords and tenants,—that is to say, landlords with more capital and enter- prise, and tenants with more intelligence and skill. No mere change in the law would give us either, and an injudicious change might easily make matters worse. We need to.entice capital, and sagacity, and experience into Irish agriculture, and we shall not do this by legal contrivances which are not found necessary in Eng- land and Scotland, and which would not entice English and Scotch purchasers or farmers. Some persons conceive that by abolishing the right of distraining for rent landlords would become more careful in the selection of their tenants,—but the law of distraint exists in England ; if it were abolished in Ireland, more frequent eviction for non-payment of rent would necessarily be substituted for it, and would be considered a far harsher proceeding by the occupier. Where so few really eligible and reliable tenants are to be found, and where the competition for the occupation of land is so excessive, it is not easy to see, nor could any witness confidently explain, that landlords could exercise any such free and knowing choice among applicants as to be able to dispense with the frequent practice of either eviction or distraint. In the extinction of those very small holdings (under perhaps 15 acres) on which a tenant cannot live and prosper, in the substitution of culture adapted to the soil and climate for those cereal crops which beat neither, in the transfer of properties from encumbered and impoverished to wealthy and emancipated owners, in the introduction of improved methods of agriculture and of experienced and skilful farmers to work them,—all of them processes, necessarily slow and gradual, and all of them already quietly in operation,—in these measures, and not in empiric legislation, the influence of which it is scarcely possible confidently to predict, is to be sought, and will be ultimately found, the redemption of Ireland and the Irish.
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