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 any other cause than non-payment of rent. This Bill was thrown out by a large majority.17
It is probable that the Act of 1870 would have been more successful if it had been less ambitious, and had aimed at a smaller number of objects. The difficulty, however, of the task was extremely great, and much allowance must be made for the statesmen who framed it. The two features of the old Irish land system which made the position of the Irish tenant most precarious were the general absence of leases, and the custom of the tenant, not the landlord, making most improvements. Neither of these points was, in most cases, a matter of much dispute between landlord and tenant. Those who are best acquainted with the conditions of Irish land before the recent legislation will I believe, agree with me that the majority of smaller tenants preferred a yearly tenancy, which was rarely changed, to a definite lease, which usually involved stricter covenants, and was likely when it expired to be followed by a revaluation and rise of rents; and that they preferred making their improvements in their own economical, and generally slovenly, way, rather than have them made in the English fashion by the landlord, who compensates himself by adding a percentage to the rent. If the rent is sufficiently low, and the tenure sufficiently long to compensate the tenant for his outlay, there is nothing in this system that is unjust; nor is it unjust that, after the tenant has been so compensated, the land should be rented according to its improved value. But it is easy to understand how this custom strengthened that notion of the joint ownership of the soil which had such a deep root among Irish ideas. In many of the poorest parts of Ireland the cabin built by the peasant, the clearing of stones, and the erecting of fences, constituted much the greater part of the value of the farm. These little farms of barren land were, indeed, essentially unsupporting. They furnished the small tenant with shelter and with potatoes for his subsistence. His rent, which was usually not more than about 4l. a year, and very irregularly paid, was earned sometimes by fishing, more frequently as a migratory labourer, and often by harvest-work in England or Scotland.
In the fertile districts the conditions were different and very various. Probably the greater number of the original improvements had been made under the old system of very long leases at very low rents. In many cases the erection of certain buildings was expressly stipulated in the lease, and was one of the elements in regulating the price. A great part of the cost of drainage which has been made under Government loans has been paid by the landlords, and in very many cases they have contributed a proportion to the cost of buildings; but, as a general rule, the improvements
