CHAPTER V

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.

Present Irish Questions · 第 5 / 10 章