grievances under which Ireland labours, and which the Imperial legislature
cannot, but an Irish Parliament could, remove. Historic wrongs are past
remedy. Ireland has more than her share of representation in Parliament.
She has no established Church. If her priesthood would let her, she would
have a complete system of national education. Her land law is now far more
favourable to the tenant than that of the other kingdoms, and she has been
and still is receiving government subventions in aid of the tillers of her
soil which English and Scotch tenants do not receive and which would cease
if she became independent. Nothing is closed against her people. They have
the markets of the whole Empire. All its offices, patronage, and services
are perfectly open to them. So long as they will abstain from outrage and
murder, they enjoy all the personal privileges of British freemen. It
cannot be said that the law has been suspended for any purpose other than
the repression of outrage. If the ordinary law and government were very
bad, Ulster would hardly have prospered as it has done. If Castle
government is the grievance, abolition of it was offered to Ireland long
ago and was by her rejected. Let the existing grievances be specified, and
let it be seen whether Imperial legislation is incapable of redressing
them. The truth is that with the Irish leaders it has not been redress of
particular wrongs and grievances or the introduction of practical
improvements that has been the object of desire. Their aim has been to
create a nationalist feeling which should end in political separation.
Such has been the constant tenor of their appeals to sentiment and the end
to which their policy has really pointed.
Suppose Ireland severed from Great Britain, what would be her lot? She
would then have to assume all the burdens and responsibilities of an
independent nation, including military and naval defence, as well as the
entire expense of a separate government. As she could not hope to vie in
strength with her powerful neighbour, she would be at that neighbour's
mercy; nor, considering the temper in which the parting would take place,
would occasions for quarrel be unlikely to arise. Ireland might have to
seek the protection and become the vassal of some foreign power. Irish
trade would no longer be free of British markets or of the markets of
British dependencies. Irish labour would no longer be free of the British
labour market. The Indian service and the Imperial services generally
would be closed against Irishmen.
Nor would Ireland be entirely united in herself or perfectly set free from
the hated British influence. She would still have in her the men of
Ulster, Saxon and Protestant, antagonistic probably to the Catholic
majority, and if they were pressed in the unequal conflict, stretching out
their hands for aid to their fellow-Protestants and kinsmen in Great
Britain.
A mere arm of the sea, such as that which divides Ireland from Great
Britain, is surely not enough in these days of improved navigation, to
form a bar to political union. The distance from London to Dublin is now
practically far less than it was a century ago from London to Edinburgh.
Nor does there seem any reason why salt water should be fatal. The Ionian
Islands are in the kingdom of Greece; so probably some day will be Crete.
If Ireland were detached from Great Britain, into what hands would she
fall? The gentry would be extinguished. To excite popular hatred of them
as landlords has been the constant aim of the Nationalist leaders. There
would be a general repudiation of rent, which the Irish government and
judiciary would lack the will, while the British government and judiciary
would have lost the power, to prevent. The record of Irish landlordism is
not bright. Absenteeism has been a great evil, though the estates of some
absentees have been notably well managed. There have been hideously cruel
evictions, especially it seems on the lands purchased by speculators
under the Encumbered Estates Act. Landlordism, as mere drawing of rent, is
an evil. It is not desirable that any man should own land as a
non-resident or own more land than he can manage or superintend. The old
feudal law attaching service to lordship of land was sound in principle.
But if the Irish gentry would accept that principle, be resident, look
after their estates, and do their duty to their tenants, they would
probably be accepted by their people as social leaders, and they might
play that part with good effect. The life of the French peasant is not the
acme either of civilization or of happiness, even though we may make some
abatement from the picture presented by Zola in "La Terre." Unhappily the
tendency, even in England, seems to be towards the detachment of the owner
from his land and the abandonment on his part of every function save that
of receiving the rent and spending it, perhaps in some pleasure city or
abroad. The decadence of the agricultural interest in England is by some
ascribed to this cause.
The gentry being no more, Catholic Ireland would at first fall into the
hands of the priesthood. The moral character of the Irish priesthood in
the opinion of impartial judges is high, as is that of the priesthood of
French Canada. In both cases ecclesiastical influence is strong, and in
both a population virtuous after the Catholic model is the result. The two
are probably about the best things that the Roman Catholic Church has to
show. But the Roman Catholic religion is mediaeval. The training of its
ministers inevitably shuts out light which would be fatal to mediaeval
belief. An Irish peasant lad, having been intellectually secluded for
seven years at Maynooth, comes out proof against the intellectual
influences and advancing science of his time. He is the mental liegeman
and the preacher of the Syllabus, which anathematizes freedom of thought
and claims for the Church dominion, not only over the soul but over the
body, such as was hers in the Middle Ages. He laid his ban on the Queen's
Colleges, and has discouraged and thwarted the extension of popular
education. In regard to education and intelligence, he has been in Ireland
what he has been in Spain and other countries subject to his sway. In the
sphere of industry and commerce the influence has generally been the same.
The religious ideal of life with its Church festivals and Saints' Days has
prevailed. In Ireland as in Canada the priest inculcates early marriages,
the effects of which may be morally good but are economically perilous.
The excessive conversion of the fruits of industry to the unproductive
purposes of the Church has already begun to call forth protests.
The power of the Roman Catholic priesthood would be encountered by the
stalwart Protestantism of Ulster in the Parliamentary arena as it still is
sometimes in the streets of Belfast. It might presently find itself
encountered by another adversary, revolutionary Nationalism, the heir of
that party of force which broke away from the leadership of O'Connell, the
devout son of the Church, and was an object of well-founded suspicion and
aversion to the hierarchy of his day. The affinity of this element is to
the revolutionary party in other countries; and if, like the United
Irishmen of Belfast, it has been willing to act with allies devoted to the
Church, it is not itself devout, as the Church, if she comes to share
power with it, may be led to feel.
The idea of unity of race as a basis of Irish nationality has little
support. In the North there is a strong and masterful Saxon element. There
must be a large Anglo-Saxon and English element in the old Pale. The men
of Tipperary, though characteristically Irish, are believed to be
descendants of Cromwellians. There is Huguenot blood.
The revival of Erse as a national language is surely a patriotic dream.
How is it possible to revive a language all but dead, with no valuable
literature or wealth of printed books, in face of a language which has a
grand literature, is spoken by all the educated classes, indeed almost
universally, in Ireland, and is necessary for intercourse with Great
Britain. O'Connell, we are told, had no great sympathy with the revival of
Irish archaeology, and no sympathy at all with the project of reviving the
Irish language. He recognized the superior utility of the English tongue
as the medium of all modern communication, and saw without regret the
gradual disuse of Erse. Fancy and sentiment may prevail among a literary
class which nevertheless will hardly carry its patriotism so far as to
darken its own mind by unlearning English.
"Ireland ought to be governed in accordance with Irish ideas." Such is the
current saying, and it sounds wise. But statesmanship would hardly act
upon it before taking measures to learn what ideas are peculiarly Irish
and whether they are features of national character, innate and indelible,
and not traces of historic accident or fancies instilled in the course of
political agitation. The perpetuation of weaknesses accidentally
contracted cannot be wise for man or nation. The political idea which
seems most characteristic is the tendency to personal leadership rather
than to self-government or constitutional rule. But this has been common
to all races in early times. It was fostered and prolonged by the
circumstances of Irish history. It could hardly be pronounced incapable of
modification by familiarity with free institutions.
What would be the political constitution of an independent Ireland? How
would its form be settled? The political training of the people generally
since they came out of political thraldom has been agitation against
government and law; their only notion of rule has been personal. Nor is a
hierarchy friendly to political liberty. To set up a stable democracy in
Ireland, if that is the aim of the revolutionary party, would surely be an
arduous undertaking.
All who look coolly into the matter apart from faction and its necessities
have pronounced that the choice lies between separation and legislative
union. Two Parliaments, two nations; so all wisdom says and so experience
before the Union proved. The forces which under Grattan's constitution
held the two Parliaments together in strained and precarious fellowship,
the nomination boroughs, the pension list, the sinecures, the peerages,
the bishoprics, would no longer exist. What is even more important, there
would no longer be an oligarchical and exclusionist Parliament in Ireland
dependent on British support for its ascendency, perhaps even for the
security of its lands. Antagonism would almost inevitably ensue; the more
surely as the partners would set out with the embitterment of a divorce.
Nothing apparently could avert collision; the result of which would be
repression, making the latter end worse than the first.
The proposal of federation is surely preposterous. It would be necessary
first to cut the United Kingdom in two and create an Irish government in
order that negotiations for a federal union might be set on foot. But how
could there be a federation of two states, one of them enormously superior
in power to the other? What sort of deliberative assembly would the
federal council be?
Another plan is to form a federation of the four nationalities, as they
are assumed to be, England, Scotland, Ireland, and Wales; wrenching apart
the members of a great nation which have long been united and cancelling
the highest work of British statesmanship. Here again federation could not
work. England being so much the predominant partner, the result would
almost certainly be a perpetual league of the three minor powers against
her domination. The federal system is applicable only to a group of
tolerably equal States. The restoration of the Heptarchy with the addition
of Scotland, divided into Highland and Lowland, and the four provinces of
Ireland erected into States, would be a comparatively practicable system.
The present condition of the Federal system in the United States does not
encourage experiments of that kind.
The mildest proposal of all is devolution; in other words, the concession
to Ireland of a larger measure of local self-government. This probably
would be readily granted to any extent compatible with supremacy of law
and security of life and property, which no government without abdicating
its plainest duty can forgo. Gradual extension of local self-government
would not entail any acute crisis or bring on any party conflict. The
Lord-lieutenancy, Parliament has already shown itself ready to abolish. It
was in deference to the wish of Ireland that it has been retained. The
only thing in the way of undue centralization of which, so far as the
writer remembers, his Irish friends complained, was the necessity of
carrying Irish causes to Westminster as the final court of appeal.
Whether concession on this point would be feasible it is for legal
authorities to say.
However, it can hardly be doubted that in the course of this struggle a
sentiment has been cultivated among the people of Ireland for which it is
wise as well as kind in some way to provide satisfaction. The Irishman
being of lively sensibility and impressible through sight has never seen
the power which really governs him. A session or two of the Imperial
Parliament held at Dublin for the settlement of Irish questions would
probably have had a very good effect, but it was thought to entail too
much inconvenience. Would there be any objection to empowering the Irish
members of both Houses to sit annually at Dublin as a preparatory House of
Irish legislation framing bills to be commended to Parliament? There would
then be something in College Green. The experiment would involve none of
the difficulties or perils of a statutory division of the powers of
Parliament. It would be at first on the footing of an experiment, nor
would it preclude further concessions if further concessions should be
found needful.
With the question of national character, social or industrial, and its
special requirements, I do not pretend to deal. It has been treated
systematically, perhaps for the first time, by an excellent authority,
Sir Horace Curzon Plunkett, in his "Ireland in the New Century." Of Irish
character a part may be aboriginal and fundamental. A part probably is the
result of historical accident more or less ingrained, and probably capable
of modification. I am told that Irish character has been even acquiring a
more serious cast since I watched the Tipperary steeplechases or stood on
the fair-ground of Ballinasloe. Not a little, so far as the masses are
concerned, is probably the work of a priesthood strongly and inherently
reactionary, which has exercised the same influence on the ideal of life,
character, mind, and industry here as in other Catholic countries. Ireland
is perhaps happy in having been cut off from the prodigious development of
luxury and dissipation which, as social writers tell us, has been taking
place on the other side of the Channel as well as from the domination of
the stock-exchange. She may in this way become a saving element in the
social character of the United Kingdom.
Is it vain to hope that for the settlement of a question so vital party
may for one short hour suspend its war? What far-off object of
aggrandizement can be half so important as a contented and loyal Ireland.
AN ACCOUNT OF THE IRISH LAND CODE
BY HUGH J. MCCANN, B.L.
The Irish landlord, poor as his circumstances were before the famine, was
in many instances reduced to sorer straits after the terrible scourge had
passed away. The good landlord, anxious to do his duty by his tenants,
helped them as far as his mortgages and other financial burdens would
allow. The tyrannical one, regardless of the sufferings of his victims,
sought to extract impossible rents from an unfortunate tenantry who had
scarcely the means of subsistence. The Encumbered Estates Act, it was
thought, would relieve the tension. It empowered a court specially
constituted for the purpose to order the sale of estates encumbered with
debt, on the petition of any person sufficiently interested as owner or
creditor.
Landlordism, it was thought, would, by this act, be relieved of much that
made it tyrannical, even when it meant well. But the act was a failure. It
was worse. It was the means of wrecking many a fortune, and driving many
a proprietor to ruin. Men who, in hard times, were doing well for their
tenants and their country under difficult circumstances were driven from
the land.
The act came into operation towards the end of 1849. A wild rush was made
by creditors to the court. Prices fell with amazing rapidity, and landed
property became a drug in the market. Valuable properties failed to
realize sufficient to meet the mortgages, and their owners were inevitably
ruined.
A new class of landlord now appeared on the scene in the person of the
speculator, who bought up the bankrupt properties as they presented
themselves. The new proprietors had nothing in common with their tenantry.
They knew little of their needs and requirements and cared less. They had
but one interest and that was a commercial one. To make their properties
realize a good dividend on their outlay was their one concern, and up went
the rents accordingly. Such was the fate of the unfortunate tenants who
were allowed to continue as tenants of the new proprietor. This was bad
enough, but those that were given notice to quit were even more cruelly
wronged. Compensation for wrongful disturbance was not recognized in
Ireland in 1850, and tenant property amounting to three millions sterling
was sold to pay the landlord's creditors.
Nothing could demonstrate more clearly how utterly rotten was the whole
land system in Ireland at the time. Landlord and tenant alike were in a
miserable plight. Rents fell heavily in arrear, and evictions were the
order of the day. The landlord played the bold game, struck hard, and
without mercy. The tenant sought protection in combination and conspiracy.
Such was the condition of Ireland when thoughtful men sought by
legislation to cure the crying evils of the time. Many remedies were
proposed between 1850 and 1860, but none of them reached the stage of
legislative enactment. In the latter year, however, Cardwell made an
attempt to place the law of landlord and tenant on a better footing.
In spite of a good deal of opposition, government succeeded in placing two
important measures on the Statute Book, viz.: the Landed Property
(Ireland) Improvement Act, 1860, and the Landlord and Tenant Law Amendment
Act (Ireland) of the same year. By the former limited owners were enabled,
subject to judicial sanction, to charge the inheritance with the cost of
specified improvements, and to bind their successors for stated periods.
Agricultural leases for a period of twenty-one years or less could be
given by the limited owners without judicial intervention, but every
improvement lease required the sanction of the chairman of the county in
which the lands were situated.
To tenants the right of compensation was granted for certain specified
improvements made by them, provided that before entering on the
improvements they made them the subject of an agreement with the landlord,
or had given notice of his intention to improve, and the landlord had not
notified his objection within a period of three months from receipt of the
notice. The principle of retrospective compensation was not, as yet,
admitted.
The second act consolidated the existing law of landlord and tenant, and
made some important changes in procedure.
The relationship of landlord and tenant, hitherto based on _tenure_, as in
England, was henceforth to be founded on _contract_.
Before proceeding to examine its provisions, it might be well to point out
that the common law rights of Irish agricultural tenants were in the
absence of special customs governed since the reign of James I. by English
common law rules. The English system of land tenure was imposed upon the
country by virtue of conquest. But the circumstances of the two countries
were entirely different.
In England the landlord owned the soil and everything on it. The dwelling
houses and out-offices, the farm roads, the drainage, were built by him or
his predecessors. He let a holding to a tenant as a going concern, and for
the holding so equipped he received rent. The relations between landlord
and tenant in England rested on a business footing. If the tenant did not
feel satisfied with his farm or his lot, he moved on. There were none of
the ties there, either of attachment or of interest, that existed in
Ireland. In Ireland the tenant or his predecessor provided, by his labours
or his savings, the whole equipment of the farm. His family for
generations back occupied the same plot, and he dearly learned to know and
love every stone and hedge about the place. In England the improvements
were effected by the landlord out of the rent paid him by the tenant, and,
of course, were legally his by the law of the land. In Ireland the
improvements, almost universally made by the tenant, became at common law
the property of the landlord, who was under no _legal_ obligation to
compensate the tenant for them on ejecting him from his holding. The
following extract from the report of the Devon Commission contrasts the
practice in the two countries very well. "The Commission finds on all
hands, it is admitted, that, according to the general practice in Ireland,
the landlord builds neither dwelling-house nor farm-offices, nor puts
fences, gates, etc., into good order before he lets his land to a tenant.
The cases in which a landlord does any of those things are the exceptions.
The system, however, of giving aid in these matters is becoming more
prevalent. In most cases whatever is done in the way of building is done
by the tenant, and in the ordinary language of the country
dwelling-houses, farm-buildings, and even the making of the fences are
described by the general word 'improvements,' which is thus employed to
denote the necessary adjuncts to a farm, without which in England or
Scotland no tenant would be found to rent it."
What I have said represents the general, but, I should add, not the
universal, condition of things in Ireland at this time.
In parts of the country, especially in Ulster, certain customs prevailed
which recognized that a tenant was something more than a rent producer.
They denied the right of the landlord to raise rents by reason of any
value added to the soil by the tenant's outlay. They recognized a right of
continuous occupancy by the tenant at a fair rent. This right, called
tenant right, became on some properties of immense value, and was often
sold by an out-going tenant at a price exceeding in value the fee simple
purchase of the holding. In Ulster more than anywhere else in Ireland the
custom was very widely prevalent, but was as yet without the sanction of
the law.
But I have digressed from the Act of 1860. In dealing with the Act of
1870, what I have just said will be of importance. The Landlord and Tenant
Act, 1860, otherwise known as "Deasy's Act," is a voluminous measure of
one hundred and five sections which may be conveniently grouped into three
sections. The first deals with the _Contract of Tenancy_, the second with
_Surrenders and Assignments_, and the third with the _Methods of
Procedure_. Section three enacts that "the relation of landlord and tenant
shall be deemed to be founded on the express or implied contract of the
parties." The conduct of the parties may imply a contract of tenancy,
payment of rent being evidence, but not irrefutable evidence, of its
existence.
Section four requires that "every lease or contract, with respect to
lands whereby the relations of landlord and tenant is intended to be
created for any freehold estate or interest, or for any definite period of
time, not being from year to year, or any lesser period, shall be by
_deed_ executed, or _note in writing_ signed by the landlord or his
agent." It is further provided that a tenant may, if there be no agreement
to the contrary, remove his fixtures within two months of its
determination by an uncertain event. Two covenants are implied in the
contract of tenancy by each of the parties thereto. The landlord by his
lease implies an agreement on the part of himself and his successors that
he has a good title to make it, and that the tenant shall have quiet and
peaceable enjoyment of his holding.
The tenant agrees to pay rent, taxes, and impositions payable by the
tenant, and to keep the premises in good and substantial repair and
condition; and, secondly, to give up peaceable possession of the demised
premises in good and substantial repair and condition on the determination
of the lease, subject to any right of removal or of compensation for
improvements that may have lawfully arisen in respect of them, and to any
right of surrender in case of the destruction of the subject-matter of the
contract.
_Surrenders and Assignments_ may be made (1) by deed, (2) by a note in
writing, or (3) by operation of law.