purchased with borrowed money and as a commercial investment. Improvements, too, in Ireland were for the most part made by the tenant, and not by the landlord; and although the rents were in general proportionately lower than in England, although on most old estates a long tenure at low rents amply compensated the tenant for his outlay, there were, undoubtedly, cases where the advent of a new proprietor, or a sudden rise in rents or depreciation in values, led to a virtual confiscation of tenants’ improvements. Leases had been for some years diminishing, and tenancies at will became general. The custom of tenant-right was general in Ulster and occasional in other provinces, though it subsisted without the smallest sanction or protection of the law. Usage unsanctioned by law played a large part in Irish agrarian life; and there was a bad custom of allowing rents to be paid, in many parts of the country, with extreme irregularity, according to the good or bad seasons, and leaving the arrears of many years outstanding, not claimed, and not wiped away. It must be added, that the small number of manufactures had thrown the population, to an unhealthy extent, for subsistence on the soil; that political agitation had already done much to inflame class animosities and accentuate class divisions, and that there were grave faults on both sides. Wretched farming; thriftless, extravagant, unbusinesslike habits in all classes; a great want of enterprise and steady industry; much neglect of duty, and occasional, though not, I think, frequent, acts of oppression and extortion, all contributed to complicate the task of the legislator.
In my own opinion, it should have been his object to secure to the tenants compensation for all future improvements; to bring back by special inducements a land system resting on definite written contracts; to give legal character to tenant-right when it was generally acknowledged; and to assist by Government measures in the formation of a peasant proprietary, or, what was politically scarcely less valuable, of a class of tenants holding land for ever at a low fixed rent.
The question of tenants’ improvements especially was of vital importance, and it is one of the most real of Irish grievances that Parliament, in spite of the clearest warnings, so long neglected to attend to it.
Some years before the Famine Sharman Crawford had devoted himself with much zeal to the subject, and had repeatedly brought into the House of Commons a Bill which would have effectually met it. He proposed that when a tenant made improvements which were of a nature to produce an increased rent, and which had not been included in the terms of his existing lease, these improvements should be duly valued; that the tenant, at the expiry of his term, should have the right to claim either immediate money compensation from the landlord or a prolongation of his tenancy; and that, in fixing the new rent, the value of unremunerated improvements should be taken into account, so that the tenant might be repaid for them in the course of the succeeding tenancy.13
The Devon Commissioners, who sat under a commission ordered at the end of 1843, collected a great deal of valuable information on the subject, and treated it in an eminently judicial spirit. They acknowledged that ‘there had not been brought many cases to show that it had been the practice of land-proprietors to take advantage of improving tenants who had invested money without a lease or other security.’ They acknowledged also, that ‘it had not been shown that tenants possessing long and beneficial leases of the lands had in general brought them to a high state of improvement;’ that, in fact, there was evidence ‘that lands let upon very long terms, and at very low rents, were in a worse condition, and their occupiers even more embarrassed, than others.’ On the other hand, they urged that cases of the confiscation of tenants’ improvements had occurred; that a tenant at will or a tenant with a very short lease was always liable to them; that ‘a single instance occurring in a large district would naturally paralyse exertion to an incalculable extent;’ that the possibility and extreme facility of such confiscation in the existing state of the law was a gross injustice to the tenant, discouraged in the most powerful manner a kind of investment which was naturally very profitable both to the tenant class and to agriculture in general, and directly or indirectly contributed largely to most of the social evils of Ireland. They recommended, as of the highest importance to Ireland, a law giving tenants in the future compensation for permanent and productive improvements, and framed upon the following principles. Agreements between landlord and tenant relative to such improvements were to be duly registered, and, in cases where it was found impossible to arrive at such agreement, a tenant was to serve a notice on the landlord of his intention to make suitable improvements. Mutually chosen arbitrators were to report upon them, and the assistant barrister, after such report, and after examination, was to certify the maximum cost, not exceeding three years’ rent. If the tenant was ejected, or if his rent was raised within thirty years, the landlord was to pay such a sum, not exceeding the maximum fixed, as the work shall be then valued at. The improvements were to be completed within a limited time, and the landlord was to have the option of making them himself, charging 5 per cent. on the outlay.14
A Government measure based on this report was introduced by Lord Stanley, in a speech of great power, in 1845, and by Lord Lincoln in 1846. In the first case it was abandoned in the face of very determined opposition. In the second, it fell through on account of the overthrow of the Government of Sir Robert Peel, which had introduced it. Several attempts in the same direction were made in the following years, the most remarkable being the Bill of Mr. Napier, the Irish Attorney-General of Lord Derby's Government, in 1852, which had a retrospective character applying to all past improvements. None of these measures, however, ultimately succeeded, and the advice of the Devon Commission was neglected.
Besides the question of improvements, it was clearly recognised that something must be done to prevent the too frequent evictions, or threatened evictions, and the Land Act of 1860 did something in this direction. This Act, which was passed by a Liberal 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
