recovery of rent and actions of ejectment. The most important provision is
that which provides that if a tenant has had a decree given against him in
an action of ejectment, he may be restored to his holding on applying to
the court within six months, and paying the rent with arrears and costs.
Such are the main features of Deasy's Act. Beyond consolidating and
regularizing the existing law it achieved nothing. A decided advance,
however, was made in the Landlord and Tenant (Ireland) Act, 1870, which
was restricted in its operation to agricultural and pastoral tenancies. We
have seen how there existed in Ulster and other parts of the country
certain customs favourable to the tenant. To the Ulster custom, as it was
called, Ulster was indebted for exceptional prosperity.
The contentment of its agricultural population was in strange contrast to
the seething discontent of the other parts of the country. Much of the
thrift and plenty that exists in parts of Ulster to-day can be traced back
to the exceptional treatment accorded to the tenants of Ulster long
before legislation came to the aid of their less fortunate brethren south
of the Boyne. The aim of the Land Act of 1870 was to place the latter
class in a similar position to the Northerns. The act legalized the Ulster
custom and similar usages. It gave tenants not subject to these a right to
be compensated for their improvements on quitting their holdings, and
guaranteed a measure of security by providing compensation for
disturbance. What is "disturbance" is a question for the court, and must
be decided on the facts of each particular case.
Agreements not to improve the holding, or not to claim for improvements,
are declared void. If the holding be subject to the Ulster custom, there
is a general presumption that the improvements belong to the tenant.
The term "improvements" shall mean in relation to a holding (1) any work
which, being executed, adds to the letting value of the holding, on which
it is executed and is suitable to such holding; and (2) tillages, manures,
or other like farming works, the benefit of which is unexhausted at the
time of the tenant quitting his holding.
We have not proceeded far before it becomes apparent that to secure to the
tenant the full enjoyment of his own property was the line along which
land legislation was travelling. The Act of 1870 went some distance in
this direction. But the great advance was not made till ten years after,
when Gladstone proposed to establish a tribunal which would assess and fix
the property of the two partners in the dual ownership of land in Ireland.
The act recognized and legalized dual ownership. It created a partnership
between two parties whose interests were hostile. It was a great act, and
did incalculable good, but many years were not to elapse until it became
evident that a return to single ownership--but this time by the
tenant--was absolutely necessary. The endeavours to work dual ownership
irretrievably broke down.
Both parties had little confidence in the Land Court established by the
Act of 1881.
The landlord complained that his property was being confiscated; the
tenant believed that he was still paying rent on his own improvements. The
act was meant to give tenants fixity of tenure, fair rent, and free sale.
A new judicial body, the Irish Land Commission, with jurisdiction to hear
and determine all matters of law or fact arising under the act, was
established. The commission consists of three commissioners--one a
judicial commissioner and numerous assistant commissioners appointed by
the lord lieutenant for the time being with the approval of the treasury.
This is not the place to examine the provisions of this complicated
measure minutely, but as it is the foundation of much of the land
legislation that followed, it is important that its main provisions be
understood.
The act distinguishes between "present" tenancies and "future" tenancies,
a "present" tenancy being "a tenancy subsisting at the time of the passing
of the act, or created before the first day of January, 1883, in a holding
in which a tenancy was subsisting at the time of the passing of the act,
and every tenancy to which the act applies shall be deemed to be a present
tenancy until the contrary is proved."
A "future" tenancy means a tenancy beginning after the passing of the act.
The act applies only to agricultural and pastoral holdings. It gives
qualified powers to both "present" and "future" tenants to dispose of
their holdings for the best price they can get, or to mortgage them if
they think fit.
Fixity of tenure was secured by enabling a tenant to convert his interest
into what is called in the act a _statutory term_. Such a term may be
created by an agreement between the landlord and tenant for an increased
rent, or by having a fair rent fixed, or by filing in court an agreement
for a judicial rent. A _statutory term_ can be created only in respect of
a "present" tenancy except when in regard to a "future" tenancy the tenant
has agreed with the landlord to an increased rent. The provisions as to
the fixing of a fair rent apply only to "present" tenancies. Section three
of the act gives a tenant power to dispose of his holding by bequest.
Perhaps the most important provisions of the act are those enabling a
landlord or tenant to have a "fair rent" fixed.
Either party may apply to the court to have the rent made a _judicial
rent_. The court fixes this rent after considering all the circumstances
of the case, holding, and district, and having regard to the interests of
both parties. No rent shall be payable in respect of improvements made by
the tenant unless he has been already compensated for them by the
landlord. In the administration of the act the word "improvements" has
given rise to endless litigation. In the now famous case of Adams _v._
Dunseath it was held that "improvements" meant improvement works and not
increased letting value. It was also held in a case affecting the same
holding that a tenant is entitled to "a fair return by way of annual
allowance in respect of the present capital value of his improvement works
which may be estimated by way of percentage on such capital value; and if
after making this percentage there is still a surplus of increased letting
value, it is within the exclusive jurisdiction of the Land Commission to
determine whether, and in what proportions, such surplus shall be divided
between landlord and tenant." It was further laid down that the Land
Commission was to treat "the latent and dormant resources of the soil, as
let by the landlord to the tenant, as the property of the landlord, and
the development of those resources by the tenant as the act of the
tenant."
This act was undoubtedly a great charter for the tenants and created
something like a revolution in Ireland. It contained many defects, and was
marred by many blemishes, but on the whole it was a masterly attempt to
settle the question. Like much of the land legislation for Ireland, most
of its shortcomings were due to a reckless disregard on the part of
British ministers for Irish opinion. Indeed, this was the cause of most of
the amending legislation that followed.
Under the Act of 1881 "fair rents" were fixed for periods of fifteen
years, when they were again ripe for revision. Roughly speaking, the old
non-judicial rents were reduced by twenty per cent on an average to
convert them into first term rents. These again were further reduced by
twenty per cent on an average for the second term. This, of course, played
havoc with the landlord's income, and did not materially benefit the
tenant, the prices of the produce of whose farm was falling with even
greater rapidity. The experiment of dual ownership had been tried and was
found wanting; a return to single ownership was sought for by the series
of acts known as the Land Purchase Acts.
It was not till 1885 that the experiment of land purchase was seriously
tried in Ireland, but it is right to say that the question first came
before the public in a practical form so far back as 1869 in the
discussions on the disestablishment of the Irish Episcopal Church. At that
time Mr. Bright proposed to increase the number of owners of land in
Ireland by allowing the glebe tenants to purchase the property attached to
the glebes. The idea was embodied in the Irish Church Act, and over six
thousand occupying owners were thus created. Under this act three-fourths
of the purchase money was advanced by the State, and the balance paid in
cash by the purchasers. The money was advanced by the State for
thirty-two years, the shortest period allowed by any of the acts. From the
tenant's point of view this act cannot be said to have been an unqualified
success. The price of land was high at the time, and the purchasers having
bought high sustained the whole burden of the sudden fall in the prices of
produce which almost immediately succeeded the conclusion of their
bargains. In 1870 and in 1881 there were embodied in the acts of these
years provisions to enable tenants to purchase their holdings; but the
procedure to be followed was made so complicated that the tenants did not
avail themselves of the purchase clauses to any great extent. The
insignificant number of sixteen hundred sales were completed under the two
acts.
In 1885 a Conservative government came into power, and though their term
of office was of short duration, they introduced and passed a measure
which, by its marvellous and, I might add, its unexpected success, pointed
the direction and paved the way for all future legislation for the
settlement of the land problem in Ireland. Back to single ownership was
the keynote of the measure. Hitherto the credit or discredit of all
legislation on the land problem belonged to the Liberals. They strove to
make dual ownership a possibility. Conservative statesmen sought for a
settlement in the opposite direction.
In sales under all the purchase acts from 1885 to the Act of 1903 all the
purchase money is advanced by the State to the selling landlord, and is
charged by the State to the tenant who purchases. The tenant repays the
amount borrowed or "advanced," to use the language of the acts, in annual
instalments, which instalments clear off not only the original "advance,"
but the accumulated interest.
Roughly speaking, the procedure is this. The landlord and tenant, having
agreed on a price, sign an agreement for sale, and file it with the Land
Commission, which body has the carriage, so to speak, of all purchase
transactions, as well as all other transactions under the land acts. The
holding is inspected by the Land Commission which, having been satisfied
that the land in question is security for the "advance," pay the purchase
money to the landlord and collect from the tenant the annual instalments
necessary to repay it to the State.
The plan of the Act of 1885, better known as the Ashbourne Act from the
fact that it was Lord Ashbourne who introduced the measure to the lords,
was simple in the extreme, and to this is due, in no small measure, its
rapid success. It was easily understood by the people, and so popular did
it become that in three years the money provided by it was completely
exhausted.
In 1888 a second bill was passed under which an additional sum of five
millions--this was the amount provided by the Ashbourne Act--was set aside
for purchase. Under the two measures 25,368 owners were created.
"Almost from the start," writes Mr. George Fottrell (a gentleman well
qualified to discuss the question of land purchase in Ireland) in the
_Morning Post_, "the Ashbourne Act was a success. During the first five
years of its working, the 'advances' actually paid over by the Land
Commission to landlords amounted annually on an average to L1,250,000
sterling. The 'applications' represented a considerably larger sum. By
1887 they had more than exhausted the L5,000,000 which had been voted by
Parliament for the Ashbourne Act, in 1885, and thereon a further sum of
L5,000,000 was voted. The scheme continued to work well; the
'applications' came in steadily but with no feverish haste, the largest
total sum applied for under the Ashbourne Act in any one year being in
1887 when it reached L3,700,000. In each of the next two years it reached
just two millions. In 1890 it had dropped to less than a million and a
half; in 1891 it was slightly in excess of that amount. By 1891 it was
plain that the second vote of five millions had been virtually absorbed,
and that Parliament must be applied to for further money. To cool-headed
people in Ireland it seemed that the obvious course was to ask for a small
grant, say of ten millions, so as to continue to test cautiously the
usefulness of an act which had so far worked well, while by the very
smallness of the grant keeping in reserve a check on the expansion of the
act if it should prove to work mischievously.
"This course was not taken. In 1891 Parliament was asked to make a much
larger grant. Over thirty millions were voted, but coupled with conditions
which made the money useless."
Mr. Balfour's act, the Purchase Act of 1891, was extremely complicated.
Under it Ireland was entitled to draw upon Imperial credit to the extent
of L33,000,000. The rate of interest payable by the purchasers was
substantially the same as under the acts of 1885 and 1888, the period of
repayment in the three cases being forty-nine years.
But a change was made in the method of payment to the landlord. Previous
to 1891, he had been always paid in cash. Under the Balfour Act he was
paid in guaranteed land stock. There were many complicated provisions in
regard to the creation of a guarantee fund, an insurance fund, and other
safeguards. The complexity of the measure and the procedure under it, and
the consequent delays in completing any transactions in a reasonable time,
acted as a deterrent to intending purchasers and the act was virtually a
failure. At this point it is well, perhaps, to summarize the results of
the working of land purchase under the acts already dealt with. We have
seen that a total sum of (say) L44,000,000 was made available by the
various acts for land purchase. Out of this a total sum of L21,182,268 has
been expended, leaving about twenty-three millions still available. Under
all the acts up to and including that of 1891, 62,241 tenants purchased
their holdings, 6057 under the Church Act, 877 under the Land Act of 1870,
731 under the Act of 1881, 25,368 under the Purchase Acts of 1885 and
1888, and the balance of about 30,000 became purchasers by means of the
Act of 1891.
Numerous and extensive as these operations were, it is satisfactory to
note, and it redounds to the credit of the Irish people, that Mr.
Wyndham, when introducing his Land Bill of 1902, was able to assure the
House of Commons that Irish Land Purchase had this one merit that the
State had incurred no loss under it and was exposed to no risk. In no case
did an Irish tenant break his bargain. There was no case of bad debt to
mention.
One of the first stumbling-blocks to a tenant proposing to purchase under
the Act of 1891 was that he was unable to know, or even approximately
gauge, what was the actual sum he would have to pay, by way of annuity,
each year. This was a serious flaw, and helped more than anything else
perhaps to clog the wheels of purchase. This state of things, however, was
remedied by the Purchase Act of 1896, by which the maximum sum payable in
any year was an instalment at the rate of L4 per cent on the purchase
money, no matter at what number of years' purchase of his rent the tenant
might buy. Most of the cumbrous restrictions of the Act of 1891 were
removed, and once more the applications began to tumble in. In 1895-1896
the applications received numbered less than half a million. In 1897-1898
and in 1898-1899 they reached nearly two millions. A steady decrease then
set in, but on the whole purchase proceeded at a satisfactory pace.
A strange condition of things now existed in Ireland, and a condition of
things that could not last. Here and there over the country there existed
a contented peasantry, the virtual owners of their holdings, paying a
reasonable annuity for a definite period to the State. If they had not the
sense of complete ownership, they had the very next best thing to it. They
knew that if they themselves were not the absolute owners of their
holdings during their lives, their children and their children's children
would be, and they set to work with a heart and a will to work and improve
their farms, knowing full well that the results of their labour would, at
last, be theirs, and could not be wrung from them by the whims or
exigencies of the landlord. On the other side of the fence, or river, the
tenant who had not purchased and, perhaps, could not purchase, for his
landlord would not sell, continued to pay a rent sometimes exorbitant, but
always higher than his friend the purchaser close by. Such was the
position of the tenant's side of the question. Now let us examine the
landlord's.
Under the Act of 1896 the landlord was paid in government stock. Between
the years 1891 and 1896 government stock rose from 96 to 110. A premium of
ten per cent was a strong incentive to the landlord to sell. If he had an
estate worth L5000, he received in reality for it L5500, for he was
credited with L5000 stock which, sold on change, realized L5500 in cash.
In some cases, where the estate was mortgaged, the gain was even more.
This was gold finding for the landlord until the price of stock fell,
which it did and with a vengeance. Stock which in 1897 stood at 113 fell
in 1901 to 91. The fall again clogged the wheels, and the question once
again became the burning question of the hour. It is right to say here
that there were other forces at work which made the landlord anxious to
get out, if he could at all, on reasonable terms. The fall in the price of
produce continued, and the Land Commission, which had under the Act of
1881 twice revised the rentals, and reduced them each time by twenty per
cent on an average, were preparing for the third revision. The landlords
looked forward to 1911 with fear and trembling. With their estates mostly
heavily mortgaged, and the third revision at hand, they were as anxious as
the tenants, if not more so, that Parliament should step in to their
mutual aid. It did so in the Land Act of 1903. The introduction of this
measure was preceded by a conference of landlords and tenants,
representatives in Ireland which met in the Mansion House, Dublin, and
after five sittings reported as follows:--
"Whereas it is expedient that the land question in Ireland be settled so
far as it is practicable and without delay,
"And whereas the existing position of the land question is adverse to the
improvement of the soil of Ireland, leads to unending controversies and
law-suits between owners and occupiers, retards progress in the country,
and constitutes a grave danger to the state,
"And whereas an opportunity of settling once for all the differences
between owners and occupiers in Ireland is very desirable,
"And whereas such settlement can only be effected upon a basis mutually
satisfactory to the owners and occupiers of the land,
"And whereas certain representatives of owners and occupiers have been
desirous of endeavouring to find such basis, and for that purpose have met
in conference together,
"And whereas certain particulars of agreement have been formulated,
discussed, and passed at the conference, and it is desirable that the same
should be put into writing and submitted to his Majesty's government,
"After consideration and discussion of various schemes submitted to the
conference, we are agreed:--
"1. That the only satisfactory settlement of the land question is to be
effected by the substitution of an occupying proprietary in lieu of the
existing system of dual ownership.
"2. That the process of direct interference by the State in purchase and
resale is in general tedious and unsatisfactory; and that, therefore,
except in cases where at least half the occupiers or the owners so desire,
and except in districts included in the operations of the congested
districts board, the settlement should be made between owner and occupier,
subject to the necessary investigation by the State as to title, rental,
and security.
"3. That it is desirable in the interests of Ireland that the present
owners of land should not as a result of any settlement be expatriated,
or, having received payment for their land, should find no object for
remaining in Ireland, and that as the effect of a far-reaching settlement
must necessarily be to cause the sale of tenancies throughout the whole of
Ireland, inducements should, wherever practicable, be afforded to selling
owners to continue to reside in that country.
"4. That for the purpose of obtaining such a result, an equitable price
ought to be paid to the owners, which should be based upon income.
"Income, as it appears to us, is second term rents--including all rents
fixed subsequent to the passing of the Act of 1896--or their fair
equivalent.
"5. That the purchase price should be based upon income as indicated
above, and should be either the assurance by the State of such income, or
the payment of a capital sum producing such income at three per cent or at
three and one-fourth per cent, if guaranteed by the State, or if the
existing powers of trustees be sufficiently enlarged.
"Costs of collection where such exist, not exceeding ten per cent, are not
included for the purpose of these paragraphs in the word 'income.'
"6. That such income or capital sum should be obtainable by the owners:--
"(_a_) Without the requirement of capital outlay upon their part, such as
would be involved by charges for proving title to sell. Six years'
possession, as proposed in the bill brought forward in the session of
1902, appears to us a satisfactory method of dealing with the matter.
"(_b_) Without the requirement of outlay to prove title to receive the
purchase money.
"(_c_) Without unreasonable delay.
"(_d_) Without loss of income pending reinvestment.
"(_e_) And without leaving a portion of the capital sum as a guarantee
deposit.
"7. That, as a necessary inducement to selling owners to continue to
reside in Ireland, the provision of the bill introduced by the chief
secretary for Ireland in the session of 1902 with regard to the purchase
of mansion houses, demesne lands, and home farms by the State, and resale
by it to the owners, ought to be extended.
"8. We suggest that in certain cases it would be to the advantage of the
State as insuring more adequate security, and also an advantage to owners
in such cases, if upon the purchase by the State of the mansion house and
demesne land and resale to the owner, the house and demesne land should
not be considered a security to the mortgages.
"9. That owners wishing to sell portions of grazing land in their own
hands for the purpose of enlarging neighbouring tenancies should be
entitled to make an agreement with the tenants, and that in the event of
proposed purchase by the tenants such grazing land may be considered as
part of the tenancies for the purpose of purchase.
"10. That, in addition to the income, or capital sum producing the income,
the sum due for rent from the last rent day till the date of the agreement
for purchase and the hanging gale should be paid by the State to the
owner.
"11. That all liabilities by the owner which run with the land, such as
head-rents, quit-rents, and tithe-rent charge, should be redeemed, and the
capital sum paid for such redemption deducted from the purchase money
payable to the owner. Provided always that the price of redemption should
be calculated on a basis not higher, as regards annual value, than is used
in calculating the purchase price of the estate. In any special cases
where it may have to be calculated upon a different basis, the owner
should not suffer thereby. Owners liable to drainage charges should be
entitled to redeem same upon equitable terms, having regard to the varying
rates of interest at which such loans were made.