THE QUESTION OF THE IRISH LAND (_continued_)--THE ADMINISTRATION OF THE
IRISH LAND ACTS
The administration of the Land Act of 1870 in the main
good--Difficulty about claims for tenants' improvements--The
administration of the Land Act of 1881, and of its supplements--The
Land Commission and its Sub-Commissions--Allowances to be made for
these tribunals--Principles which the Land Commission should have
adopted in fixing 'fair rents'--The procedure and practice it ought to
have established--It made mistakes as to both--The nature of the
Sub-Commission Courts--This was objectionable in the highest
degree--These Courts have, however unconsciously, done grave wrong to
Irish landlords--Causes of this--Characteristics of their
proceedings--They disregarded the principles they ought to have
followed, and adopted faulty and erroneous methods--Different
illustrations of these grave mistakes--The Land Commission and appeals
as to 'fair rent'--Importance of this subject--Faulty procedure of the
Land Commission in appeals--Valuers--The second Land Commission--Its
procedure worse than that of the first--Theory of occupation
right--This another wrong done to landlords--The Fry Commission and
its report--Confiscation of the property of Irish landlords--The
proofs of this--Apologies made for the Land Commission--The
administration of the Land Purchase Acts.
I turn to the administration of the new Irish Land Code, of which I have
described the distinctive features. The County Courts of Ireland, I have
said, were entrusted with the task of carrying out the Land Act of 1870;
the principal duty of the judges was to determine rights, under the Ulster
and analogous Customs in the south, and to declare the sums to be paid to
tenants, when leaving their holdings, for compensation for improvements,
and in respect of disturbance. As evictions were by no means frequent, in
the period between 1870 and 1879, the litigation before these tribunals,
under these different heads, though by no means trivial, was not
excessive; the applications on the part of tenants were not very numerous;
there was ample time to consider the law, whether in the subordinate or
the appellate Courts; and though there was much difference of opinion as
to the amount of compensation to be given to suitors, the administration
of the Act was not seriously impugned,[88] and, on the whole, was
reasonable and just. The most remarkable circumstance in the inquiries
held before the Courts was, certainly, the extravagance of the claims put
forward, on account of tenants' improvements, circumscribed as these were
by the limitations of the law; everything in the nature of an agricultural
work was called an improvement, from repairing an old fence to cleaning an
old drain; hours and days were lost in endeavours to disentangle the
truth, and to arrive at sound and legal conclusions. I could fill scores
of pages with descriptions of demands of this kind, usually pressed with
reckless and hard swearing; they ought to have been a warning, as
unhappily they were not, not to break down the restrictions contained in
the Act of 1870, and not to extend legislation, in this direction, against
the rights of the landlord. I confine myself to a single example: I tried
a case, in 1895, in which a tenant's claims, under the Act of 1870, were
£1130; I cut these down to £164; after deducting £155 found due to the
landlord, I adjudged to the tenant a sum of less than £10; and there was
no appeal from the decision I pronounced.[89]
The Land Act of 1870 has been well-nigh superseded by the great measure
of 1881, and by the legislation which has been its supplement. The
administration of this part of the new Land Code, by many degrees the most
important, was given, as I have pointed out before, to a wholly new
tribunal, the Land Commission, and to Sub-Commissions dependent on it; a
concurrent jurisdiction was given to the Irish County Courts; but they
have had very little to do in this province. The principal work of the
Land Commission has been to fix 'fair rents,' and to make statutory
leases, 'fixity of tenure,' in a word, in a kind of disguise, and thus to
give effect to the policy adopted by Mr. Gladstone in 1881. The three
original members of the Land Commission, in all respects its directors,
were the late Mr. Justice O'Hagan, the late Mr. E. F. Litton, and the late
Mr. John E. Vernon; Lord Salisbury denounced these appointments in
emphatic language, as being against the just rights of Irish
landlords;[90] the charge was not without plausible grounds at least, for
Mr. Justice O'Hagan had been one of the 'Young Ireland' party, and Mr.
Litton had been a strong tenant-right advocate. These two gentlemen,
nevertheless, were most honourable men, and capable, if not very
distinguished, lawyers; Mr. Vernon was an excellent and experienced
country gentleman, if, in politics, of the Liberal faith; and as all three
have long ago passed away, it would be unjust to make charges of
illegitimate conduct, even if they may not have been wholly free from
unconscious bias. Great allowance ought to be made, in common justice, for
the Commissioners in the situation that had been made for them, and regard
being had to their most arduous duties. To fix 'fair rent,' even
approximately, was difficult in the extreme; as Judge Longfield predicted
many years before, and every well-informed Irishman knew, the adjustment
of rent, through the agency of the State, would inevitably cause a general
lowering of rents. Again, the Commissioners were, from the outset,
harassed by a rush of applications to fix 'fair rents;' these came in,
within a few weeks, in thousands; they were tempted, therefore, to set
about their work at once, without taking the careful precautions, or
entering into all the considerations, the nature of their duty required.
Two circumstances, also, no doubt, had effect on their minds; the Land
League was creating a Reign of Terror, and destroying the property of the
Irish landlords; the Commissioners probably hoped that they would weaken
the power of the League, by, so to speak, bidding against it, and cutting
rents down. Above all, the Land Commission, like the Encumbered Estates
Commission, was a tribunal set up to carry out a policy, that is, in word,
to abate rents; and all experience, Irish experience notably, proves that
such a body of men usually fulfils its mission.
Mr. Gladstone, we have seen, had expressed a belief that 'fair rents,' as
a rule, would be fixed by contract; that the Act of 1881 would produce
this result; and that this part of the work of the Land Commission,
accordingly, would not be very great. Unquestionably, too, with his
leading followers, he was convinced that rents in Ireland would not be
largely reduced;[91] it is important to bear this distinctly in mind,
regard being had to subsequent events. These anticipations were to prove
vain; but the Land Commissioners possibly may have shared his views, and
may have resolved to act upon them, before they first addressed themselves
to the task of 'fixing fair rents.' After experience, it is easy to be
wise; but we can now clearly discern what they ought to have done,
considering the heavy work they were soon to find imposed on them. Their
first duty should have been to establish some standard, which would make a
reasonable criterion of rent; the means to accomplish this end were not
wanting. Mr. Law, the Irish Attorney-General of Mr. Gladstone, one of the
most distinguished lawyers of his day, and afterwards a holder of the
Great Seal of Ireland, had made a definition of 'fair rent' in the House
of Commons; 'a fair rent was to be a competition rent minus the yearly
value of the tenant's interest in the holding; that was what was intended,
and anything else would be monstrously unjust.'[92] For some reason that
has not transpired, this definition did not find a place in the Act; but
the authority of its framer was great; it must have been known to the Land
Commissioners; had they adopted it, and based their decisions upon it,
things would have been very different from what they are at the present
time. But there were other tests to indicate a standard of rent, to be
regarded at least, if not conclusive. The valuation of the lands of
Ireland made for the assessment of rates, Griffith's valuation, as it was
commonly called, which Parnell had made a measure of 'fair rent,' would
certainly have been of real use, though it varied greatly in different
counties; and the Commission appointed by Mr. Gladstone, only a few months
before, had, I have said, reported, that Ireland, as a whole, was in no
sense an over-rented land. There was another consideration, as regards
Irish rents, which the Land Commissioners ought to have borne in mind. The
rents on the estates of the great landlords, and of the gentry of old
descent, were, as a rule, low; the rents of the purchasers under the
Encumbered Estates Acts were high, nay, excessive, in not a few instances.
Other circumstances, moreover, of great importance, ought to have been
taken into account, with respect to this subject. The rental of Ireland
was not as high as it had been before the Great Famine; where rents,
therefore, had not been increased, and had been regularly paid for a long
series of years, there was the strongest possible presumption that these
would be 'fair.' Again, the material progress of Ireland had been great
during the forty preceding years: the wages of labour had, indeed, risen;
but owing to the introduction of good farm machinery, the cost of
production, in agriculture, had diminished; the extension of the railway
system had opened new markets, and had brought even Connaught within a few
hours of Great Britain; steam navigation had multiplied and improved; the
modes of husbandry and the breeds of stock of all kinds had become
infinitely better than they had been; and prices of late had been very
high. These were all elements to be regarded in the determination of 'fair
rent;' they ought to have been examined with care; and inquiries on these
matters should have extended over a long space of time. Moreover, as the
Land Act of 1881 discharged improvements made by tenants from rent, as
these were defined and limited by the Act of 1870, the greatest pains
ought to have been taken that claims for exemption should be strictly
dealt with, and not permitted to run riot, especially as it was notorious
that demands of this kind, made under the law already in force, were
usually excessive, supported by untrue statements, and by no means easy to
resist and disprove. Another fact, also, of the gravest moment, ought to
have been thoroughly considered, as regards this question. As improvements
made by tenants were not to be charged with rent, it was but equitable
that the lands they might hold should be valued as if in their normal
state; that if these had been deteriorated, either through wilful
misconduct, or gross neglect, their occupiers were not to make profit of
their own wrong; that deterioration, in a word, was not to be allowed to
work rent down, and was to be taken into account, in adjudicating upon
'fair rent.' This was the more necessary because it was well known that
numbers of farms in Ireland had been more or less run out; and especially
because, as in the case of the ryot of Bengal, under the Permanent
Settlement of Lord Cornwallis, an Irish tenant would be strongly tempted
to injure his lands, if he believed that, when 'a fair rent' should be
fixed on them, he would be permitted to take advantage of his own default.
It should be added that, in the fixing of 'fair rents,' the large sums
which, in many instances, Irish landlords had laid out in improving their
estates, notably since the years that succeeded the Famine, ought, as a
matter of course, to have been kept in mind.
These were the general principles which should have guided the Land
Commission in approaching the question of fixing 'fair rent.' There was
nothing in the Act of 1881 to prevent the Land Commissioners, as a Court
of first instance, adjudicating directly in cases of this kind, or to
compel them to refer these to their Sub-Commissions; indeed the plain
intention of the law was in a contrary sense. Had the Land Commissioners
adopted this course--and this, I venture to say, was their obvious
duty--they would, no doubt, have considered the questions before them at
length, and with close attention; have made their inquiries go back many
years, and have laid down, in elaborate judgments, the maxims and rules to
be applied in the fixing of 'fair rent.' The evidence that would have
come before them would have been of two kinds: that which depended upon
the statements of valuers, on the side of landlords and tenants alike;
this, of course, would be of great importance; but it should have been
borne in mind that it would be biassed evidence; and that, in the existing
state of Ireland, and of Irish opinion, the statements of tenants' valuers
would require to be strictly watched. The other head of evidence was of a
much more trustworthy kind; it was indicated by the circumstances of the
cases being heard, and was necessarily suggested by the inquiries
themselves. This class of evidence would be desired from a consideration
of the rate of rent in the neighbourhood or even of adjoining lands, in a
word, of what may be called the market price of rent; from an examination
of what a reasonable rent would be, payable by a solvent tenant to a
fair-minded landlord; and even from a review of rent fixed by the
competition of bidders for land, these circumstances, in every given case,
being, of course, controlled by a due regard being had, in the words of
the law, for the 'tenant's interest.' There was another and very important
test; the sums paid in Ulster and elsewhere on the transfer of farms were
usually large, sometimes not less than a third or even a half of the value
of the fee simple; and as these sums were always subject to the existing
rents, the first charges on the lands being sold, this would afford a
strong presumption that such rents would be 'fair.' No doubt the Act of
1881 declared that such payments were not to be taken into account, _per
se_, and apart from other considerations in the actual fixing of rent, so
far as regards a given farm; but the law certainly allowed--and it has
always been so held--that payments of this kind might be kept in view in
forming, generally, an estimate of what a 'fair rent' should be.[93]
The Land Commissioners, but from a different point of view, might have
learned something from Parnell in this matter. They were, no doubt,
harassed by the prospect of the task before them; but had they taken a
certain number of 'test cases,' and investigated them as a Court of first
instance, they would have laid down principles to be followed in the
fixing of 'fair rent;' have explained these in well-considered judgments,
going over the whole field of inquiry; and, so far as in them lay, have
tried to do justice. Even if they had not adopted this course, one of
their members, as the Act of 1881 provided, might have taken part for some
time with their subordinates in the adjustment of rent; this would have
been in accord with Mr. Gladstone's assertions that the Land Commission
was to be the real arbiter of rent. Unfortunately the Commissioners acted
quite otherwise; their conduct, palliate as you may, was an abdication of
a plain duty, on the plea that they were overwhelmed by the work before
them. Not one of them ever sat in a Court of first instance to fix 'fair
rents;' they delegated this the most important of all their functions to
their Sub-Commissions, to which they thus committed the charge of
adjusting rent throughout the whole of Ireland. These Sub-Commissions
formed Courts, each composed of three members, one a legal Commissioner
and two laymen; the Sub-Commissioners were nominees of the Government,
whether appointed on the recommendation of the Land Commission or not is
not certain; the only qualifications for the legal Commissioners were that
they should be barristers or solicitors of six years' standing, and for
the lay Commissioners that they should have some knowledge of land. These
were strange tribunals to deal with property worth hundreds of millions;
but this was only a part of what must be called a scandal most
discreditable to those responsible for it. The Sub-Commissioners, one and
all, were much underpaid; their salaries were inadequate to secure fitting
men; and, one and all, they were at the sufferance of the men at the
Castle, liable to be dismissed at a moment's notice, and without the
independence which is the best guarantee of justice. Some of the
Sub-Commissioners, indeed, were only paid for the job, by the day; they
had, therefore, a direct personal interest to reduce rents, in order to
make work for themselves and to retain their places. Even in Ireland such
tribunals were never set on foot, since Cromwell assembled his Courts of
Claims to give their sanction to his huge forfeitures; that they were ever
thought of is one of the many proofs of the disregard shown to property in
land in Ireland. No wonder that it was significantly remarked: 'The whole
spirit of our judicial institutions suggests that officers with such
extensive powers should be selected with the greatest care and with
reference to their possession of high qualifications, and that they should
be placed in a position of independence, and should, so far as possible,
be lifted above the suspicions that surround them.'[94]
Sixty or seventy officials of this type--the number was afterwards largely
increased--were thus, in the significant words of one, 'let loose over
Ireland' to deal with estates; it is very remarkable that they have never
received instructions from the Land Commission how to perform their
duties. The procedure of the Courts of the Sub-Commissions was, under
existing conditions, as well devised as could be fairly expected. The
three Commissioners, who formed a Court, nearly always sate together, and
heard the evidence brought before them as to what were 'fair rents;' the
legal Commissioner decided questions of law; and, this evidence having
been taken, the two lay Commissioners inspected the farms, the subjects of
the previous inquiries, and having conferred with their legal colleague,
determined with him what should be their 'fair rents.' This was the
ordinary if not the universal practice; if some deviations have been made
from it, these cannot be deemed of very great importance. Grave complaints
have been made, in not a few instances, of the lay Commissioners, when
engaged in examining lands; it has been said that they often neglected and
'scamped' their work; but these charges have been hardly, if at all,
sustained; my own experience--and it is tolerably large--is that the
Commissioners performed their functions with diligence and care, and
sometimes gave proof of real knowledge of husbandry.[95] But it was
utterly impossible that tribunals of this kind, not composed of experts of
a high order, dependent upon the breath of the Castle, without regulations
to direct their conduct, and acting, without concert, in many districts,
could adjust rent in a satisfactory way, and in conformity with true
methods, especially as the work they had to do was excessive; indeed, they
sometimes fixed 'fair rents' by dozens in a day. It was equally impossible
that the Sub-Commissions--and to do their members justice they never made
the attempt--could take into account all the manifold and far-reaching
elements which enter into the question of 'fair rent,' and could set
forth, in exhaustive judgments, the principles applicable to a most
intricate problem. On the contrary, as a rule, and no doubt wisely, they
avoided topics which might have tasked the highest judicial powers; they
decided the cases before them summarily, and with little reflection,
certainly without the protracted examination required to establish settled
rules and doctrines. And the result has been that they disregarded, and
even set at nought, a whole series of considerations, of supreme
importance, with reference to the fixing of 'fair rent;' and, however
unconsciously and innocently, they have been the authors, in the first
instance at least, of the gravest injustice, and of wrong, done wholesale,
to the landed gentry of Ireland.
To make this plain, let us glance back at the principles which assuredly
ought to have been kept in view, in coming to sound conclusions on the
subject of 'fair rent.' It will be seen that the Sub-Commissioners either
gave little or no attention to these, or directly violated them in,
perhaps, tens of thousands of cases. They have never attempted to
establish some kind of standard, which would form a general measure of
'fair rent;' they have completely ignored the definition of Mr. Law,
precise and most valuable as it was; they have treated 'Griffith's
valuation' as though it did not exist; they have regarded the Report of
Mr. Gladstone's Commission, declaring that Ireland was not excessively
rented, as mere waste paper; they have apparently taken hardly any account
of the well-known distinction between the low rentals of the great and old
landlords, and the rack-rents too often exacted by purchasers under the
Encumbered Estates Acts. So, too, it would seem, they have refused to
consider the strong presumption that rents would be 'fair' if not raised
during a long series of years, and if reasonably well paid, within that
period; and they certainly have given no real weight, as an element in
adjusting rent, to the agricultural progress made by Ireland since the
Great Famine. Innumerable complaints have been made against their
decisions as to the exemption of tenants' improvements from rent; but my
belief is that they gave great attention to this subject; the wrong that
has been done was owing to the difficulty of the law, and of its
application to given cases; and the law, besides, was not, I think, just.
On the correlative and most important question of the deterioration of
farms through the default of tenants, they have hardly ever inquired into
this; they have repeatedly done the landlords wrong; they have made grave
and palpable mistakes; and in many instances they have made no allowances
for the expenditure of landlords upon their estates. Having thus refused
to follow the principles which ought to have been their guide, they have
widely deviated in the actual fixing of 'fair rents' from rules and
methods they should have observed and made effective. They have given too
much weight to the class of evidence that was least important and most
open to question; they have attached little and sometimes no value to the
class of evidence by far the most trustworthy, and that ought to possess
the greatest influence. This has especially been the case, as we shall
see, with respect to the sums paid on the transfer of farms, the strongest
possible indication that their rents must be 'fair,' on the ordinary
principles of human nature, and giving the purchasers credit for the
simplest common sense.
These are grave charges against quasi-judicial bodies; let us see if they
are not completely justified. The Sub-Commissioners, I have said, have
taken no heed of Mr. Law's definition of 'fair rent;' but they have acted
as though they set it at defiance; they have ignored the principle of
competition in fixing 'fair' rents. Unquestionably, as Mr. Law pointed
out, a deduction should be made from a competition rent, regard being had
to 'the tenant's interest,' that is, to his rights in respect of
improvements, and perhaps to his rights on account of his tenure, a lease
renewable every fifteen years, when a 'fair rent' is being fixed on his
farm; but why the very idea of competition, that is, of market value, was
to be excluded as an element in estimating 'fair rent,' is what men of
common sense have never understood. This, in fact, was a portentous
mistake, with consequences of a far-reaching kind; you might as well argue
that because two partners had an interest in a fee simple estate, or two
peasants had each a share in a cow, the price of the land or the cow was
not to depend on what would be given for it at an auction mart or a county
fair. Yet this was a position the Sub-Commissions have always taken; they
have always insisted that competition had nothing to do with 'fair rent.'
The evidence on this subject is conclusive; I can only take a few samples
from the statements of a cloud of witnesses, who really seem to make a
boast of their faith. Colonel Bayley, a Sub-Commissioner of large
experience, has laid it down that the 'difference between a competition
rent and the fair rent would be more than 20 per cent.; it would, I
think, be more than that; there would be between 30 and 75 per cent.
difference between the fair rent and the competition rent.'[96] Mr.
Roberts, another Sub-Commissioner, has deposed to much the same effect:
'Decidedly, I believe that if the land was put in the market it would
bring 25 per cent. more than the rent I put on.'[97] So, too, Mr. Bailey,
a legal Sub-Commissioner, very much respected, has alleged: 'It would be
most misleading to take the evidence of letting value in the
neighbourhood, thus bringing in competition value, which we rigorously
exclude in fair-rent cases.'[98] Mr. Bomford, a well-known
Sub-Commissioner, has said, in much the same sense: 'We do not take the
competition rent, and cannot take it into consideration, when fixing what
the fair rent should be. Then you utterly exclude, when you come to the
fixing of the fair rent, the element of competition?--Yes, except in one
matter, when we have town parks.'[99]
Let us now see what distinctions, in fixing 'fair rents,' the
Sub-Commissioners have drawn between landlords whose rentals were low and
landlords whose rentals were really high; and how they have dealt with
rents, paid for a long space of time, without having been raised; this is
a fair index of the equity of their proceedings. It should be remarked, at
the outset, that it soon appeared that rents had only been increased in
comparatively few instances, going back over a series of years; yet, as a
rule, nearly all rents were indiscriminately reduced. No attempt has been
made, by any official of the Land Commission, to answer this damaging
charge made, in 1897, at a judicial inquiry held upon the subject: 'The
result of that calculation, the accuracy of which cannot be challenged,
shows that, as the result of all the cases that were heard, in only 8 per
cent. of them was any increase of rent for many years prior to 1881
proved. But whether the Sub-Commissioners are dealing with an estate on
which for centuries the rents had remained unchanged, and on which the
tenants had been fairly treated, or whether they were dealing with estates
that had come into the hands of speculators by purchase in the Landed
Estates Court, in all cases the average result was the same. They deducted
something between 15 and 20 per cent. from the existing rent, no matter
how long it had existed, and no matter upon what estate it was being
paid.'[100] This significant evidence, too, points to the same conclusion:
'There is nothing to justify the reductions that have been made in the
rents of good landlords, who did not raise their rents in the good years.
In fact, the landlords who did raise their rents got off a great deal
better, at the hands of the Sub-Commissioners, than the good landlords who
did not raise them.'[101] And Mr. Lecky, a calm-minded observer, if there
ever was one, has added these striking and pregnant remarks: 'The
landlords who have suffered least have probably been those who simplified
their properties by the wholesale evictions, the harsh clearances, that
too often followed the Famine. Next in the scale come those who exacted
extreme rack-rents from their tenants. These rents had been received for
many years, and though they were ultimately reduced more than rents which
had been always low, they still, in innumerable instances, remained higher
than the others. The large class who regarded land simply as a source of
revenue, and, without doing anything harsh, or extortionate, or unjust,
took no part in its management, have suffered very moderately. It is the
improving landlord, who took a real interest in his estate, who sank large
sums in draining and other purposes of improvement, who exercised a
constant and beneficent influence over his tenants, who has suffered most
from the legislation that reduced him to a mere powerless rent-charger,
and, in most cases, rendered the sums he had expended an absolute
loss.'[102]
The Sub-Commissions dealt with the subject of the exemption of tenants'
improvements from rent, on the whole, as fairly, I think, as could be
expected; and on the different questions of law that arose, appeals ran
from them to the Land Commission, which usually investigated these cases
at length. But this part of the law, really an excrescence on the Act of
1881, was unfair to the landlords, in the circumstances in which they were
placed; they were confronted by innumerable and often obsolete and
worthless claims, which they had only seldom the means of refuting; and if
the demoralisation and false swearing under the Act of 1870 was bad, they
were infinitely worse under the Act of 1881. A witty Irishman, indeed,
once said that he could wish no severer punishment for Mr. Gladstone than
to see him in a Sub-Commission Court listening to those wrongful
statements; the mischief has, of course, been aggravated since the Act of
1896 has made the basis for the exemption larger and more ill-defined. The
Sub-Commissions, I have said, were gravely in error, almost, as a rule,
with respect to the deterioration of land, as an element to be considered
in fixing rent; in this respect gross injustice has been done to
landlords. There is scarcely any proof that, even in a single instance,
the Sub-Commissioners valued land 'for fair rent,' as in its normal state;
and yet, assuredly, this was what ought to have been done, if a premium
was not to be put on misconduct, and because farms had been injured and
exhausted in hundreds, throughout Ireland. The deterioration was usually
of two kinds--wilful waste committed in order to work down rent, and
passive waste caused by negligence and bad farming. Out of many
instances, under the first head, I shall refer to one; the
Sub-Commissioners usually gave little or no attention to wrongs of this
kind; in this instance they enabled the tenant to make money by his own
misdeeds; they reduced the rent nearly 30 per cent.: 'The dykes were full
of stuff and choked, and the sluice-gate, which we had repaired at our own
expense, was all choked up, and the water had been left on the land as
long as it could stay on it. I complained and remonstrated with the
tenant. I sent for Madden, and in Mr. Lyle's presence I stated this to
him. His answer to me was that he was not such a damned fool as to have
his land looking well when the Commissioners came to look at it.
'SIR E. FRY: Did that case come before the Sub-commissioner Court?--It
did.
'Did you give evidence of what the tenant said?--Yes, sir....
'MR. CAMPBELL: I will tell you, sir, what they did.
'How much did they reduce the first judicial rent?--They reduced the first
judicial rent; they cut it down from £70 10_s._ to £51.'[103]
As for passive waste, that is, the bad cultivation of farms, the proof is
conclusive that it has been seldom, if ever, considered by the
Sub-Commissions in fixing 'fair rents.' If we bear in mind that many
thousands of acres in Ireland have been well-nigh destroyed by the burning
done by tenants, and that hundreds of thousands have been run out by
slovenly farming, the injury thus done to landlords has been enormous,
especially as tenants' improvements have been exempted from rent against
them; the 'candle,' it has been justly said, 'has been melted down at
both ends.' I cite two instances, out of hundreds, of the injustice thus
done; it has been proved over and over again that, in the case of two
adjoining farms, in all respects of the same natural quality, the rent on
that which was deteriorated was fixed at a much lower rate than the rent
on that which was in good heart; in other words, the landlord was
despoiled of the difference, and the tenant had the benefit of his bad
husbandry. I take, almost at random, a case in Ulster: 'The Commissioners
always value the land as they see it. I have two cases on my property in
one townland. One tenant was an industrious, hard-working man, who had his
farm in very good order. The second tenant, his wife had died, he was in
poverty, with a lot of young children, and he himself was not quite "all
there." These two holdings came at the same time before the
Sub-Commissioners, and the rents were cut down in each case. When the
thing was over, I said to Quinn, who was one of the tenants, "Are you
satisfied with your reduction?" "How can I be satisfied," he said, "when
my rent is at the same rate as Hurson's rent?" I looked at the return and
saw he was quite right.... The deteriorated farm was cut down considerably
more than the cultivated farm.' Another remarkable case occurred in the
west: 'I had a case, I think decided this year; a farm that was divided
between two sons fifteen or twenty years ago; the father divided the land
before I came into the management of the property.
'Did they get an equal portion? was it divided into halves?--Into halves,
and paid an equal rent.
'Before the Act of 1881?--Before the Act of 1881.
'And was the land of uniform quality?--Yes.
'Had one of these men, before he went into Court, greatly deteriorated the
land?--Yes.
'Had the other attended to it?--He had attended to it; he looked after the
land very well indeed.
'What reduction did the man who had deteriorated his half get?--The man
who had deteriorated his half got 17-1/2 per cent, reduction.
'What did the other get?--The other got 7-1/2 per cent.
'The industrious tenant got 7-1/2?--He got 7-1/2.'[104]
This was obviously gross and crying injustice; but two apologies have been
made for acts of this kind. It is said that were a deteriorated farm
rented as if it were in a normal state, the tenant could not afford to pay
the 'fair rent,' in other words, the landlord is to be despoiled for the
tenant's neglect. It is said again that the Sub-Commissioners are bound to
value the land as they find it, and cannot estimate it at its intrinsic
worth, that is, they are under no obligation to ascertain the truth, and
do their duty. Yet this sophistry has been gravely put forward as a
justification for palpable wrong, through which the property of landlords
has been filched away wholesale: 'The land to this day has suffered a very
serious deterioration in value; but we did not deal with that as against
the present tenant ...'[105] 'Have you frequently asked the
Sub-Commissioners why they do not attach sufficient importance to
deterioration?--No, but I heard them saying one reason was that if they
put the rent of the farm as if it had been fairly treated, the tenant
would not be able to pay that rent now in the deteriorated state.'[106]
The general result of these proceedings as regards exhausted farms has
been thus described: 'My view with reference to deterioration is this. Bad
tenants, who had ill-treated and worn out their land, undoubtedly, in my
opinion, have obtained larger reductions than they would have got had they
farmed well. Probably the reason is that were the Land Commissioners to
put a rent on the land according to its natural capacity, before a
deterioration, it would be an impossible rent for a broken-down bad
tenant to pay. This stereotypes the rent in such cases at a figure
unfairly low to the landlord; tends to lower the standard of fair rent
generally; is a premium on bad farming; and places tenants under a serious
temptation to ill-treat their land, so as to secure a larger reduction
from the Land Court than otherwise could be obtainable.'[107]
The Sub-Commissions appear to have disregarded the just rights of
landlords in another important respect. Unquestionably, in the great mass
of instances, as is inevitable when the land is held in small farms, the
Irish tenant had made the improvements on his holding; but the landed
gentry, as I have pointed out, had done a good deal since the Great
Famine. There is nevertheless cogent evidence that, in 'fixing fair
rents,' the Sub-Commissions took hardly any account of the expenditure of
landlords under this head. In the case of the estate of the late Mr.
Talbot Crosbie, one of the best breeders of prize stock in the Three
Kingdoms, and a country gentleman of parts and intelligence, these
significant facts were conclusively proved: 'Table E gives the cases of
eight holdings upon which there was an expenditure by the landlord of
£1936?--Yes.
'The old rent was £688?--Yes.
'That was reduced by the Sub-Commissioners to £493?--Yes. A reduction of
about 30 per cent.
'Notwithstanding the outlay by the landlord in the interval of nearly
£2000?--Yes, that is it.
'Table F is a list of eleven farms, on which there was practically no
expenditure by the landlord?--Quite so, no recent expenditure. That is,
between 1863 and 1887?--There was a good deal done in the famine time, but
I did not take account of that.
'You had no evidence in these eleven cases of expenditure for many years
prior to the fixing of the rent?--No. In these cases the old rents tot up
to £361?--Yes. And the reductions only brought them to £280?--A reduction
of 18 per cent.
'In other words, on the unimproved farms the reductions only average 18,
while on the improved farms they went as high as 30 per cent.?--Quite so.
'SIR E. FRY: Were these two sets of farms different classes of
farms?--They were practically of the same class.'[108] In the same way, in
the case of the estate of Lord Leconfield, a great and excellent landlord
in the County Clare, the Sub-Commission made no real allowance for a sum
of £20,500 expended on twenty-seven farms. 'Am I right in saying that from
1852 to 1881 there was spent by Lord Leconfield £20,500 in these
twenty-seven cases?--The return speaks for itself. That is the result of
it.' 'No. 4: As an example of the reductions of the Sub-Commissioners were
the rents put back to what they had been in 1852?--Very nearly. There is a
difference, I think, of about 1/2 per cent.?--About 1/2 per cent. The rent
in 1852 was £2524, and the judicial rents on these farms was £2632.'[109]
I pass on to the methods pursued by the Sub-Commissioners in actually
fixing 'fair rents.' As I have said, they usually heard the cases at
length in Court; they usually devoted attention to them. I do not think
they set much store on the reports of valuers, on the part either of
landlords or tenants; they formed their decisions, as a general rule, on
the inspections made by the lay Commissioners of the lands they visited.
This was a much better method, as I shall point out afterwards, than that
adopted by their superiors; but obviously inspections of this kind made by
officials without local knowledge of the farms, which they examined and
valued, could not be a sufficient, or a satisfactory, way to fix 'fair
rents.' The great error, however, made, in this matter, by the
Sub-Commissions--and in this respect they had the countenance of the
higher tribunal--was that they had little or no regard for the evidence
which in adjusting rent was assuredly of the greatest importance. They
rejected, we have seen, the principle of competition in adjudicating on
rent; in fixing the 'fair rents' of holdings before them, they refused to
consider the rents of the neighbourhood and of adjoining lands, that is,
to consider the price of the market. Yet this was but a trifling compared
to their capital mistake, one that, indeed, can hardly be explained: in
investigating the subject of 'fair rent,' they would not take into account
sums paid on the transfer of farms, that is, their tenant right, in other
words, as an indication of what ought to be their 'fair rents.' If we bear
in mind, as I have said before, that these sums were given subject to the
existing rents, which always formed the first charge on the lands, it is
most difficult to understand, as we have seen, how this circumstance did
not create a very strong presumption that the rents in question must be
'fair' from the very nature of the case, assuming the Irish tenant to be a
rational being. The sums paid for this tenant right were sometimes
enormous, not uncommonly equal to one-third or one-half of the value of
the fee; I illustrate my meaning from the evidence, taken with reference
to the estate of Lord Downshire, one of the largest and best managed in
Ulster: 'What would you say the tenants' interest would be worth on the
Downshire estate?--Well, judging from the average prices obtained by
tenants on transfers, my opinion is that the tenants' interest would be
worth £1,000,000.
'On the Downshire estate alone?--Yes.
'Now, could that value in the tenants, or that interest in the tenants,
exist, unless the rents at which they were holding were low rents?--No,
the prices of tenant right are incompatible with high rents. Does it in
your opinion point to their being lower than the commercial rents?--Yes,
they are lower.'[110] And will it be believed that on this very estate, in
the case of thirteen farms, held at the rents fixed by the landlords, the
tenant right realised £7296, and yet the Sub-Commission reduced the rents
more than 20 per cent.? In other words, they declared that the old rents
were not fair, though these lands, when transferred, fetched £7296 paid by
their purchasers, subject to the rents in question![111]
The Downshire was only one of many scores of estates in which the tenant
right was exceedingly high, that is, the sums paid, at existing rents, on
the transfer of farms, were very great, yet in all these instances this
striking fact was not taken into account. It cannot cause surprise that,
at a judicial inquiry held afterwards to review the subject, tenants'
advocates endeavoured to exclude the evidence which, in the judgment of
plain men of sense, affords almost a decisive indication as to whether
given rents are 'fair.' It has been argued, however, that the price of
tenant right, that is, the sums paid by incoming to outgoing tenants, on
the sale of farms, at the current rents, ought to form no element in the
fixing of 'fair rent;' it is only just to set forth the reasons. Mr.
Bailey, the able legal Sub-Commissioner, referred to before, has explained
them in this passage: 'Do you attend to tenant right in considering the
fair rent?--No, we do not. The view we take of it is this. The tenant
right paid for land is paid for something of an altogether different
character from the rent of the land.... When a tenant sells his interest
in his holding, he sells two things, first, the improvements on the
holding, and secondly, his goodwill or share of the gross product of the
holding.... When you put these two items together, viz. improvements and
goodwill, it seems to me that the prices paid for tenant right are not at
all remarkable. Then your view is that the price paid for tenant right
throws no light on what the fair rent ought to be?--No, no light at all.'
Mr. Bailey has added these significant words: 'The tenant does not buy at
the rent which the tenement at present stands at, but he buys with a
possible increase or reduction of the rent?--Quite so. And in latter years
with the fall of prices he was buying with the expectation of a very
considerable reduction?--Undoubtedly.'[112]
The first of these arguments appears to me to be wholly irrelevant to the
real question. Undoubtedly the tenant right of a farm represents the
tenant's improvements and his interest in the land, and is completely
distinct from the rent; and this is acquired on a sale by an incoming
tenant. But the purchaser buys the tenant right, subject to the first
charge, the rent; if the rent were excessive, or even high, either he
would not buy at all, or he would pay a low price; when, therefore, we
find the tenant right commanding very large sums, the conclusion is
inevitable, that, taking human nature as it is, the rent must be in the
nature of a 'fair rent.' The Sub-Commissions rejected a plain inference
they ought to have drawn; that they refused to give weight to an
all-important fact cannot be justified in any sense; and the result has
been that in hundreds of cases they have done grave wrong to landlords. As
for the second argument, it is very probable that in many instances
tenants purchased farms in the anticipation of a reduction of rent; they
speculated--a significant fact--that the Sub-Commissions would 'bear' the
market; but even, on that supposition, this can hardly explain the huge
sums paid for tenant right while the existing rents were current. For the
rest, I refer to part of my own evidence given on this subject at the same
inquiry; readers of ordinary intelligence may judge for themselves: 'The
first question I ask the tenant is, "How much will you take for the land,
£100, £200, £300; ten, fifteen, twenty, or forty years' rent?" But I never
can get an answer. They say, "Oh, your honour, I am here to look after a
'fair rent,' and I am not going to tell your honour what I am going to ask
for the land." However, I have a very shrewd notion.... You take into
consideration in fixing the fair rent the price paid by the tenants?--Yes,
the price which an incoming tenant would give, because I am not one of
those who think that the Irish tenant is a fool; and when I find an
incoming tenant giving ten, fifteen, twenty, and thirty years' purchase
for a farm, I have a very shrewd suspicion that the rent is right.'[113]
It was under these conditions, and by proceedings of this kind, that the
Sub-Commissions, bodies of ill-paid men, dependent upon the will of the
Government, and constituted to give effect to a policy, were sent
throughout Ireland to 'fix fair rents.' They had no assistance, we have
seen, from the Land Commission; they often entertained very different
views; but their uniform course was in the same direction; they
indiscriminately abated rents, as they would abate a nuisance. In fact,
they might have joined in the chorus of the doctors of Molière: 'Et
saignare, et purgare, et clystériasaire;' they applied the same remedies
to all their victims, and brought them nearly all into the same weak and
low condition. But there was a right of appeal from the Sub-Commissions to
the Land Commission; and this tribunal, certainly designed to have
absolute power in the determination of rent, ought surely to have been
expected to redress injustice. I approach a part of the subject on which
the plain truth must be told, without making personal imputations of any
kind. Appeals from the Sub-Commissions were numbered by many thousands;
and, as I have said--an iniquitous provision of the Act of 1881--the
decisions of the Land Commission on the subject of 'fair rent' was made
final, at least as regards the rate of rent; there was to be no further
appeal to a higher tribunal. I quote these significant remarks on this
restriction: 'In an ordinary case, I need not tell you, sir, who are
conversant with the procedure of Courts of Justice, a litigant, in a civil
case, no matter how much the issue may be involved, has the right, if he
thinks fit, of taking the case from one Court to another, until he reaches
the highest tribunal of the land, the House of Lords. And as you know,
there is a well-known case, which the House of Lords had to decide, in
which the amount involved was one penny, an alleged overcharge on a
railway ticket; but in these land cases, where there may be, and often is,
a sum of £200, £300, or £400 a year involved, because in some of the large
farms in this country there have been reductions of £300 and even of £400
in the rent, under the Act of Parliament they cannot go beyond the Head
Land Commission, upon any question of value. That is the Act of Parliament
whether it be right or wrong. There it is, and I am not here to discuss
the policy of the Act. But when a rehearing is given by the Act of
Parliament to the Land Commission, and when the Land Commission are
constituted the final judges in such large and important matters, it is
obviously of great importance that the final rehearing should be full, and
in every respect what the Act of Parliament says it is to be, namely, a
rehearing.'[114]
The Land Commission sometimes heard these appeals at length, though
usually their proceedings were summary in the extreme. The Commissioners
occasionally pronounced well-considered judgments, on the difficult
questions of law that came before them, especially as regards the
exemption of tenants' improvements from rent; in several instances the
results were curious. The lay Commissioner now and then dissented from his
legal colleagues; his plain common sense rejected theories in tenants'
interests; his decisions were more than once confirmed, on these points of
law, by the highest Court of Appeal in Ireland, a circumstance of no
slight significance. Nineteen-twentieths, however, of these appeals were
conversant only with the amount of 'fair rent,' as to which the
conclusions of the Land Commission could not be challenged. The Land
Commissioners undoubtedly heard these cases, and sometimes had much
evidence brought before them; in tolerably many instances they varied the
'fair rents' fixed by the Sub-Commissions, if these variations were seldom
important. But the Land Commission practically adopted, with scarcely a
single exception, the errors of principle and the faulty methods which had
marked the practice and the proceedings of the Sub-Commissions.[115] They
excluded the element of competition from the subject of 'fair rent;' they
never attempted to define 'fair rent,' or to establish a standard by which
to gauge it; they disregarded, to a considerable extent at least, the
distinction between the rentals of the old and the new landlords; they
paid little or no attention to the fact that rents had been paid for many
years without an increase; they hardly ever took deterioration into
account, or the expenditure made on their estates by landlords. And in the
actual fixing of 'fair rents' they virtually followed in the wake of their
inferiors; they rejected, as a rule, the evidence that was most relevant;
they refused to consider the rents of adjoining or neighbouring lands, in
a word, the price of the market, in determining rent; above all, they gave
scarcely any heed to the enormous sums paid for the tenant right of lands,
as an indication that their rents were 'fair.' On all these particulars,
in a word, supremely important as they were, they almost said ditto to the
Sub-Commissions; in these respects the appeals were well-nigh useless. It
should be added that the animus of the head of the Land Commission was
significantly exhibited on one striking occasion. When opening the
proceedings of the Land Commission, Mr. Justice O'Hagan pointedly laid it
down, that the object of the Act of 1881 was 'to make tenants live and
thrive;' in other words, as Lord Salisbury indignantly remarked, to compel
rent to gravitate to the level of the most indolent and worthless Irish
peasant, and practically to discourage industry.
These considerations indicate, to some extent at least, the nature and
especially the value of these appeals. But this was not all, or nearly
all; there was a grave miscarriage of the simplest justice in this
important province. Appeals, I have said, came in, in thousands; the work
thrown on the Land Commissioners was immense; as one of their present
successors remarked, 'If proper consideration' (had been) 'given to all
the appeals you would' (have) 'wanted ten Appeal Courts to do it;'[116] as
was said again substantially, 'Appeals would have crushed the Land
Commissioners, had they not been crushed by them.'[117] In this position
of affairs, the Land Commissioners, no doubt with no bad or sinister
purpose, adopted what must be called a device, to enable them quickly to
dispose of appeals, nay, almost in a summary way. They were empowered,
under the Act of 1881, to appoint 'independent valuers' to examine lands,
and to report on the subject of their 'fair rents;' it was never
contemplated that statements of this kind were to dispense with the duty
of hearing appeals in detail, and pronouncing solemn judgments upon them;
but, practically, the Land Commissioners, in the great mass of instances,
when adjudicating on appeals, as regards 'fair rents,' almost wholly
relied on the reports of these valuers, who, be it observed, were in no
sense witnesses, and were not subject to examination on the part of the
suitors before the Court. In a word, the Land Commissioners did not
exclude other kinds of evidence; but unquestionably the dicta of the
valuers, as a rule, determined the decisions they made on 'fair rent.'
This expedient greatly accelerated appeals; but it reduced the right of
appeal well-nigh to a sham; and this procedure was by many degrees more
repugnant to justice than that of the Sub-Commissions. In an inquiry held
before the House of Lords in 1882, an eminent member of the Irish bar
remarked, 'It was the most unsatisfactory tribunal that I ever was before.
What occurred was this: they took up the figures of the old rent, which we
will say was £100, and the valuation £70, and the new rent £80. Then they
took up the valuer's report, which was a document concealed from the
parties. It was entirely for the information of the Court, and they turned
round to me, as the landlord's counsel, the landlord being the appellant,
and said, "Can you go on with this appeal in the face of this document?"
and they would show me the document.'[118] And in the inquiry I have often
referred to before, another distinguished lawyer has said, 'I have been in
cases where, in order to overcome the difficulty, I marshalled a perfect
phalanx of witnesses, for the landlord, but it was all no use. They
listened to them, I admit,--they suggested that I was wasting time, but I
am not stating they did not hear them,--but in the end, in the morning,
the announcement was made that the judicial rent was confirmed.'[119]
As the general result these appeals, as it has been said, 'were
strangled;' in thousands of instances they were withdrawn, the decisions
of the Land Commission being final; expedition was attained; but it was
only attained at the cost of gross wrong done to the landlords, a singular
exhibition in a Court of Justice. I quote the following--and it should be
borne in mind that the Land Commissioners have never attempted to explain
this conduct, though the amplest opportunity was afforded, a few years
ago: 'The extraordinary and anomalous state of things is that the valuers,
not being assessors, do not sit with the Commissioners, and do not hear
the evidence, and yet they are not witnesses in the proper sense of the
term, because they are neither examined nor cross-examined. Common sense
and justice revolt at the idea, when it is the duty of the Land
Commissioners, upon the rehearing of a case, to sit and go through the
proceedings _de novo_, that they should receive the evidence of valuers,
which is not laid before the parties, and that those valuers should not be
examined and cross-examined in the regular way. There is another matter to
which I would refer. You will find, what is, indeed, what you might
expect, that when the Commissioners go to Dublin, or Cork, or elsewhere,
with a list of two or three hundred cases to be heard by them, involving,
it may be, thousands of pounds a year of rent, that list is gone through
in two or three days, and why? Because all the parties present know that
they are taking part in what really is a solemn farce, and that what will
happen in the morning after the hearing of their case is just this: John
Brown, landlord, James Fogarty, tenant; judicial rent affirmed; John
Robinson, landlord, James McNorth, tenant; judicial rent affirmed.'[120]
The first set of Land Commissioners passed away; they were succeeded by a
second Land Commission, the president of which was Mr. Justice Bewley, an
accomplished, if not a very eminent, lawyer. This Commission, like the
other, was composed of honourable men; it is only just to remark that it
was bound by the bad precedents made by the tribunal which it had
replaced. The procedure of the Sub-Commissions was, in some degree,
improved; but the methods of the second Land Commission differed for the
worse where they differed from the methods of its predecessor. The Land
Commissioners appear to have not at all regarded the general principles in
fixing 'fair rent,' which ought to have had effect on their judgments;
they gave less weight, than Mr. Justice O'Hagan, and his colleagues did,
to the most important evidence, in this province, to which I have adverted
before, and laid too much stress on the least important evidence. As has
been truly remarked, 'We believe that much more attention was paid in the
early days of the Land Commission to the remaining kinds of popular
evidence than has been the case of late years; and we are assured by one
of the head Commissioners that the Act of 1896 has made a great change in
the fixing of fair rents by placing an emphasis on the technical evidence,
and throwing the popular evidence into the background.'[121] The
Commissioners, too, followed the bad example of the first Land Commission,
in the province of appeals; they practically disregarded almost everything
but the reports of their valuers, unchecked statements made by men who
were not even witnesses, were not sworn, and were not examined--a
procedure worthy of the Council of Ten at Venice; as before, the result
was that appeals were made all but fruitless, in the Court of which the
decisions were, in this respect, final.
There was, too, another grave miscarriage of justice caused, perhaps, by a
mistake made by the head of the second Land Commission. The Act of 1881
provided that 'fair rent' should be fixed, having due regard to the
'interest' of the tenant on the land, that is, to his improvements, and
perhaps to the mode of his tenure. Mr. Justice Bewley seems to have
decided that another element ought to be taken into account, and should
effect a reduction of rent; the tenant had 'an occupation right' in his
favour, over and above the 'interest' the law gave him; by reason of this
he had a right to have his rent cut down. The only plausible ground
alleged for this doctrine was that landlords would usually accept a lower
rent from a 'sitting' tenant in possession than from an incoming tenant;
in other words, their good nature was turned against them, and was to be
made a pretext for their being despoiled. It is just to observe that Mr.
Justice Bewley's colleagues dissented from this curious view of the law;
and the claim for 'occupation right' has since been blown to the winds in
the superior Courts of Ireland. But though many faint denials were made,
some of the Sub-Commissioners acted upon Mr. Justice Bewley's doctrine;
the evidence is conclusive that this imaginary right was made the means of
considerably reducing rent. Mr. Justice Bewley candidly admitted: 'From
the commencement, apparently, a number of the Sub-Commissioners have acted
on the principle that there is a certain occupation interest, which every
tenant has, varying according to circumstances, not any fixed amount, but
varying, and that that is to be taken into account in fixing the fair
rent.'[122] This statement has been confirmed by a host of witnesses by no
means willing in not a few instances. 'Would you make a difference between
the assessment of the fair rent in the case of a sitting tenant, and in
the case of an incoming tenant--a stranger? Certainly. Can you give us any
idea what that difference is, expressed in percentage?--I could not very
well answer that question. It is a mental calculation, and a good deal
would depend upon the length of the tenure of the tenant.'[123] And again:
'In your experience of the Land Commission Court, do you find the
"occupation interest" has been taken into account in fixing the fair
rent?--Yes, I cannot account for the reductions that have been made,
except on that supposition.'[124] And again: 'As far as your experience
goes, do they invariably value the holdings on the principle of giving an
occupation interest to the sitting tenant?--Yes, the tenants' valuers, as
a rule, give 40 or 50 per cent. as the interest of the sitting tenant....
Do you find that the Sub-Commissioners fix the rent on what the valuers
state?--Well, no; that would be going too much out of the way.'[125] And
again: 'Have you any doubt that the rents are fixed on the basis of the
occupation interest in the sitting tenant?--I have none. I do not know how
else the rents could have been arrived at.'[126] And once more: 'Did the
Sub-Commissioners invariably take the occupation interest of the sitting
tenant into account?--I think so.' I conclude with these remarks of Mr.
Barnes, one of the best and most impartial of Irish valuers: 'When I came
to give evidence in Court I found that nothing else would be accepted as
evidence unless based on occupation interest. It was almost the first
question.... Whenever there was an answer made that the valuation was
based on what the landlord would get for the land in his own hands, it was
discounted at once.'[127] No wonder that it has been alleged by the
highest authority with respect to this claim, since proved to have been
unfounded, guarded and cautious as the language is: 'There is, however,
reason to believe that this notion of an occupation interest existed in
the minds of some of the early valuers, and did, in fact, influence them,
and it is very possible that some cases in which the reductions there made
appear startling, may be, in part, attributable to this doctrine.'[128]
What amount of the rental of Ireland was unlawfully cut down owing to the
theory of 'occupation right,' it is, of course, impossible to ascertain.
Reductions of rent, too, were probably unjustly made through the
ignorance of the Land Commission as to agricultural matters. I refer to a
grotesque instance of this: 'You have marked a passage there in the
judgment, which, according to you, shows that owing to their ignorance as
experts they entirely mistook what six-course rotation meant?--Yes. The
fact is they took it to be the same crop in the whole seventy acres, that
instead of having so many different crops in this portion of the ground,
it was to be put into one crop for the year, and that is what they call
"rotation" in the Court of Rehearing.... It is plain enough, from the
authorised report of the judgment, that they made that mistake?--It is
clear as possible, and it was upon that that they threw me out. The tenant
himself knew that it was all absurdity and mistake.'[129]
A remarkable incident occurred in 1897 which threw a strong, if not a
complete, light on the proceedings of the Land Commission and its
Sub-Commissions in the adjustment of rent. In 1896 the time had come for
renewing the first statutory leases, under the Act of 1881; the
Commissioners suddenly made such enormous reductions of rent that persons
who knew Ireland were simply astounded. The Irish landlords naturally were
indignant; after some hesitation, and with plain reluctance, the
Government gave its consent to a very imperfect inquiry. A Commission,
presided over by Sir Edward Fry, a judge of the highest eminence, retired
from office, and composed of four additional colleagues, two being
well-known agricultural experts, was appointed to investigate the subject
on the spot; but the scope of the inquiry was limited in the extreme; it
was confined, in this respect, to examining the procedure and practice
adopted in fixing 'fair rents;' it did not extend to the conduct generally
of the Land Commission and its dependent tribunals. The Commission was
engaged nearly three months in its task; it held its sittings in different
parts of Ireland; it had before it 183 witnesses; and restricted as it
was in this province, it pronounced, in grave and judicial language, a
marked censure on the methods that had been followed in fixing 'fair
rents' in Ireland. In fact, Sir Edward Fry and his colleagues confirmed,
in many respects, the charges which I have made with regard to this whole
system. No doubt they reported, in very guarded words, 'that they were
unable to conclude that the machinery of the Land Statutes has been
uniformly worked with injustice towards landlords;'[130] but as they
pointedly refused to rehear a single case, in which the Land Commission
and the Sub-Commissions had fixed a 'fair rent,' this statement, ambiguous
as it is, is of no real importance. In other particulars the expression of
these opinions cannot be mistaken; to impartial minds it will appear
decisive. They evidently thought that such wrong had been done to
landlords owing to the want of a definition of 'fair rent,' that they
actually framed a definition of their own, in order to establish some kind
of standard; this did not widely differ from that of Mr. Law, which, I
have said, would have made things very different had it been adopted.[131]
They pointed out that the Land Commissioners should have assisted the
Sub-Commissions in fixing 'fair rents,' and should not have left them
'like ships without a rudder or a compass on a stormy sea;' it is 'a
subject of regret,' they reported, 'that in the early days of the system
the Land Commissioners were unable to take a part in the tribunals of
first instance; and that the whole original business was left to
Sub-Commissions.'[132] They strongly condemned the nature of the
Sub-Commission Courts, as being composed of members inadequately paid and
mere tenants at sufferance; and they put forward an elaborate scheme to
make the administration of justice in these tribunals more above
suspicion.[133] They evidently believed that the Land Commission and the
Sub-Commissions did not give due weight to the class of evidence that was
most important, and gave too much weight to that which was the least; and
they made significant observations on this subject.[134] On the whole,
they arrived at the conclusion that the fixing of 'fair rents' 'gives
opportunity for dissatisfaction, and leaves much more for improvement; ...
and that the settlement of fair rents has been effected in an
unsatisfactory manner, with diversity of opinion and practice, sometimes
with carelessness, and sometimes with that bias towards one side or the
other which exists in many honest minds.'[135] But their strongest
animadversion was found in the system, through which, I have said, the
Land Commission really 'strangled' appeals, though in this province its
decisions were final: 'An almost universal dissatisfaction is expressed
with regard to these appeals, a dissatisfaction felt by some at least of
the Commissioners themselves. No witness, with, perhaps, a single
exception, spoke in favour of the existing system.'[136]
Mr. Justice Bewley has retired from office, and has been replaced by Mr.
Justice Meredith, a capable and experienced lawyer. He has done, probably
as much as in him lay, to alleviate some of the wrong done to Irish
landlords; and for this he has been subjected to violent abuse, especially
on the part of an advocate of Ulster farmers, whose tongue is at odds with
his trade in temperance. But he is bound by the precedents set by those
who have gone before him; and though the work of the Land Commission is
now better done than it was before the Report of the Fry Commission
appeared, and its general procedure has improved, little change has been
effected in the reduction of rent in Ireland. The Government, as I have
pointed out in a preceding chapter, has made a few administrative reforms
in the composition and the arrangement of the Sub-Commissions; but it has
not taken a single step to give effect to the recommendations made by the
Fry Commission, so far as these are of real importance; it has refused to
legislate on the subject, and to bring in the measure that was required;
it has even refused to set a further inquiry on foot. The general results
of the labours of the Land Commission and of its subordinate tribunals in
fixing 'fair rents' may be summed up in a very few sentences. According to
the Report of the Fry Commission, the tenants of rural holdings in Ireland
are about 486,000 in number; 328,720 of these have had 'fair rents' fixed,
between August, 1881, and the end of March, 1900.[137] The tenants, who
have not had 'fair rents' fixed, are probably either tenants of lands not
within the Land Acts, or 'future tenants' since 1881-82, or tenants too
poor to pay law costs; but these, perhaps in nine cases out of ten, have
indirectly had the benefit of the law, and have had their rents reduced
like those of the large majority, by voluntary concessions on the part of
landlords. The great mass of 'fair rents' has been fixed by the Land
Commission and its dependents, and the proceedings of these tribunals
have, beyond question, formed a standard for the adjustment of rent;
whether 'fair rents' have been fixed by the County Courts,[138] or by
agreements between landlord and tenant, they have, in the main, conformed
to the measure established by the Courts set up in 1881. The reductions of
rent made, in every way, in the first statutory leases, were, on an
average, rather more than 20 per cent. on the old rental;[139] but those
on the second statutory leases have been 22 per cent. more,[140] that is,
the fixing of 'fair rents,' so far as it has gone, has reduced rents
rather more than 42 per cent. It may be asserted, with some confidence,
that through the operation of the new Irish land code, taking in tenancies
of all kinds, Irish rents have been cut down nearly 40 per cent.; little
doubt can exist that they are now lower than they were in the day of
Wakefield, and in some instances in the day of Arthur Young, when the
price of Irish agricultural produce was less than half what it is at the
present time.[141]
The agricultural rental of Ireland, therefore, in all probability, has
been reduced almost 40 per cent., or will be in a short space of time; and
as long as the present system of fixing 'fair rent' continues, however it
may be lowered, it will certainly not be raised. The Act of 1881, I have
already said, would, by itself, necessarily reduce rents; but the faulty
administration of it, on which I have dwelt, has reduced them far more
than ought to have been the case. In fact, disguise it as you may, an
immense confiscation, gradual, indeed, and veiled, but not the less real,
has been made of the property of Irish landlords, even on the principles
of a bad law; the evidence of this is, I believe, conclusive. Rents have
been cut down indiscriminately in the great mass of instances; for
example, rents in country districts only opened to good markets of late
years, have been reduced quite as much as rents around Dublin, which had
almost a monopoly of the best market until about 1855-60. But the proof of
this spoliation is made most apparent by taking into account a single
fact, and drawing the natural inference from it. The value of the
landlords' interest in the land, before 1881, was from 20 to 25 years'
purchase; it is now between 15 and 18; at the same time the value of the
tenants' interest has, in thousands of cases, enormously increased. I
refer to a few examples out of scores to be found in the evidence given to
the Fry Commission. I take first an estate in Ulster: 'I only remember one
case of a holding before 1881 that went up (in a sale of the farm) to
anything like 20 years' purchase of the rent, and I have several cases
since then that have gone beyond it. I remember one case that struck me
very forcibly because of the great amount the man got--20 years' purchase.
Since then I have known, 29, 35, 36, 34 years' purchase to be given.' I
turn now to two estates in the south of Ireland: 'Charles Bolster, 112
acres; rent £79 5_s._; sold for £570 in 1889. Daniel Buckley, 9 acres, at
rent of £3 3_s._; sold in 1889 for £45. Christopher Crofts, 131 acres; old
rent, £86; judicial rent fixed in 1893, £80; sold in 1889 for £120.
Timothy Reefe, 5 acres; rent, 29_s._; sold in 1891 for £47.' I pass on to
the second estate: 'Next case, 65 acres; old rent, £60; judicial rent, £56
14_s._, fixed in 1883 by agreement; sold in 1883 for £330. Next, 76
statute acres; old rent, £115; judicial rent fixed in 1885 at £108; sold
in December, 1885, for £1600.'[142]
This great fall in the value of the fee simple in the Irish land, and this
great rise in the value of the tenant right, coinciding with the general
fixing of 'fair rents,' distinctly point to a plain conclusion: the
interest of the Irish landlord has been enormously reduced, a result never
contemplated by the author of the Act of 1881. In truth, there has been
little or no decline in the market price of land in Ireland; but property
that ought to belong to the landlord has been improperly taken from him,
and has been transferred to the tenant who had no right to it. Excuses,
however, have been made for this wholesale abolition of rent; they are
worthless, but may be briefly noticed. Ireland, it is said, is suffering,
like England, from the agricultural depression of late years; and rents
in Ireland have not been cut down more by the act of the State than they
have been reduced in England by the voluntary acts of landlords. But
agricultural depression in Ireland, a land of small holdings, and of
pasturage, to a considerable extent, is not, by many degrees, as severe as
in England, a land of large farms and largely of cereal culture; a signal
proof of this is that, while in England, tenants have, in hundreds of
instances, thrown up their farms, there has hardly been a case of the kind
in Ireland, as appears from the Report of the Fry Commission. Besides, if
agricultural prices have fallen in Ireland, compared to what they were,
say, twenty-five years ago, they are higher than they were in the years,
say, 1850-55, not to take into account the progress made by Ireland, in
the last half-century, in crops, farm machinery, and the breeds of farming
animals. As to the reduction of rents in England and Ireland, the supposed
analogy completely fails. The rental of England rose greatly from 1850 to
1880; there was no corresponding increase in Ireland; there was thus a
margin for reduction, in the greater island, which in the lesser did not
exist. Again, no comparison can be made between State-settled Irish rents
and English rents lowered by the voluntary acts of landlords. 'Fair rents'
have practically been reduced for all time; the reduction of English rents
is temporary, and can be at once annulled; this difference makes a
supposed resemblance a very striking contrast. As to the argument that the
Courts which have fixed 'fair rents' have been composed of honourable men,
and that it is extremely invidious to make charges against them, mere
leather and prunella may be brushed aside. No one disputes the honour of
the Land and the Sub-Commissioners, but it does not follow that they have
not done injustice; no one has disputed the honour of the Commission which
carried out the Encumbered Estates Act, and yet it repeatedly sold
estates at less than half their value.
The Irish landlords, I repeat, have been iniquitously despoiled; a huge
confiscation has been made of their property. If the simplest right is to
be done in this province, their claim to compensation has been rendered
complete--apart from the utterances of Mr. Gladstone; should this be
disregarded, Parliament will have been chargeable with a grave breach of
faith, and a precedent will have been set from trampling on the just
rights of property in the Three Kingdoms, which will be dangerous in the
extreme. I pass on to consider the Irish land on the side of ownership,
and the administration of the system of so-called 'land purchase.' Of the
total of £40,000,000 alone available, some £20,000,000 appear to have been
expended; some 50,000 tenants have been made owners of their farms,
without having paid a shilling of their own, that is, rather more than one
in ten of the whole tenant class in Ireland. The politicians who declared
against 'dual ownership,' that bugbear of self-sufficient ignorance, can
find little consolation in these figures; I shall comment afterwards on
what this state of things has produced. The Government of Lord Salisbury
still proposes to seek to accelerate 'land purchase' of this kind; and
loud complaints have been made of the law's delay in not having made the
process more speedy. I have had no experience in this matter, and shall,
therefore, give no opinion on it; but it appears to me that there has been
some want of care in making advances to these so-styled 'purchasers;' not
a few were insolvent when they acquired their farms, and many are now on
the verge of bankruptcy. This, however, was perhaps inseparable from the
system that has been pursued; it is only an additional proof of its
essential vices.