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customs, which the courts have enforced, "a custom like that of Ulster, to pay to the tenant the value of his occupancy upon the legal determination of his tenancy, was one contradictory to the nature of the estate created, and excluded by the terms of the contract itself.”! It depended solely on public opinion, which in the last resort was enforced by violence. So firmly was the custom established that not even with the consent of his tenant could a landlord safely ignore it, a tenant who yielded and waived his claim being deemed to have committed an offence against his fellows. That the custom was beneficial is hardly in dispute. It benefited even the landlord; for while rents in Ulster ran as high as elsewhere, they were paid much more regularly, and on a change of tenant the landlord could come upon the purchase-money for arrears due to him. To the tenant it gave the inestimable advantage of security. He bestirred himself, and expended money and labour on the improvement of the land, having the assurance that he was protected against both dispossession and an arbitrary raising of rent. The system had certainly a less favourable side. Judge Longfield pointed out that the high price of tenant-right required the incoming tenant to have about double the capital that would otherwise have been necessary; that where a great depreciation of land took place, as in 1848, the loss fell entirely on the
1 Richey, “Irish Land Laws,” p. 101. The explanation is not quite satisfactory. One cannot but think that, if it had established itself in Lincolnshire or Gloucestershire, English judges (at least in earlier days, when the law retained an elasticity which it has since largely lost) would not have refused to recognise it. The reasonableness of a custom that a tenant should have the waygoing crop on the expiration of his term, was put by Lord Mansfield in the leading case of Wigglesworth v. Dallison, on the simple ground that "he who sows ought to reap, and it is for the benefit and encouragement of agriculture." Of course, the Ulster custom is very different in character from any of the English agricultural customs, but the principle on which the latter were recog. nised was wide enough to cover the former. We may go further, and say that if their case had been decided at an earlier period, the Ulster tenants would have acquired fixity of tenure, like the copyholders of England or the “ kindly tenants” of Scotland.
Tenant-right in Donegal . . . is acquiesced in and encouraged by many agents and landlords, because they look on it as the best security they can have for the payment of the rent ” (Coulter, “West of Ireland” p. 319).
tenant; and that the recognition of the tenant-right, bought at a full price, depended too much on the will of the landlord. “A landlord who would not venture altogether to destroy the tenant-right, has still the power to make a very great reduction in its value. The tenant holds a valuable property at the mercy of another, who has an interest in taking it from him. There is no doubt, moreover, that other causes besides this custom, particularly flax-growing, contributed to the comparative prosperity of Ulster. But the evidence of every competent witness, of landlords and tenants who lived under it and of strangers who studied it, is clear, that in so far as the custom placed the tenant in a position of security it exercised a strong and beneficial influence. Where the system was fairly tried outside Ulster it produced similar effects. In 1842, when the Portsmouth estate in Wexford was in Chancery, the receiver, a native of Ulster, encouraged its introduction, besides giving leases freely, with the result that the Portsmouth estate, which formerly was like other Irish estates, has been since distinguished for the industry and prosperity of the tenantry.” The idea of tenant-right, moreover, not only was familiar to the peasantry in other parts of Ireland, but seemed to them necessarily involved in the relation of landlord and tenant. Throughout the agrarian agitation of this time landlordism itself was not assailed. The right to a fair rent was not questioned. But so long as he paid the fair rent, the tenant, though in law holding from year to year, considered himself entitled to security of possession. Accustomed to this view, he would will and bequeath “the whole of my land and stock"; he would charge his tenancy with dowers and portions; he would use the word " seized " in describing his interest. In short, he assumed in every act of his life that he had a right of property in the land.
1 “Systems of Land Tenure” (edit. 1881), p. 40.
2 O'Connor Morris, “Letters on the Land Question of Ireland," pp. 136-145
3“I think highly of Irish tenants as a class ; and I have never met with, and seldom have heard of, a tenant who is unwilling to pay a reasonable rent" (W. J. Hamilton in "Poor Law Inspectors' Reports on Relations between Landlord and Tenant" (1870), p. 79).
TENANT-RIGHT OUTSIDE ULSTER
The persistent efforts of the landlords to root out this idea, aggravated by frequent cases of harshness in the exercise of their legal rights, furnish a sufficient explanation of the land war in Ireland.
“The foundation of almost all the evils by which the social condition of Ireland is disturbed," it was said in the Devon Report, "is to be traced to those feelings of mutual distrust which too often separate the classes of landlord and tenant, and prevent all united exertion for the common benefit.” The clearances which followed the famine, and the hasty zeal of improving landlords, deepened the tenants' feelings of distrust and in security. Doubtless the new class of landlords who came through the Encumbered Estates Court acted with least consideration of the tenants' claims, but the unhappy result was not due to them alone. Such a change of policy as took place when the Earl of Leitrim succeeded to his property in 1854 was not uncommon, though in point of rigorous administration the Leitrim code probably stood alone. “Since 1854," the earl frankly deposed, in resisting the application of the Land Act of 1870 to his estate," he had made it an inflexible rule to prevent subdivision or subletting. During that time no tenant-right custom had been permitted. If any tenant sold his interest to another, he would evict the parties.”? The action of many good landlords, who, with the best intentions, and from a sense of duty, strove to transplant English habits into Ireland, tended in the same direction. Proceeding with undue haste to revolutionise the habits of the people, they succeeded in so shaking the confidence of the tenants that an improving landlord came to be more unpopular even than an evicting landlord. Still more baneful than such exceptionally high-handed acts as those of Glenveagh and Partry, because it was a feature of the tenant's common lot, was the steady downward pressure, which took away from him nearly every inducement to industry. Without security of possession, and feeling that prosperity meant increase of rent, he saw no advantage in being industrious and enterprising. Giving evidence on the causes of emigra
1 Friel v. Earl of Leitrim: Donnell, “Land Reports,” p. 207.
tion before a committee appointed in 1865 to inquire into the failure of the land legislation of 1860, Mr. M'Carthy Downing said, “The tenants go because they find that, no matter how they may work and slave in their own country, they do not reap the benefits of it.”i “I have no doubt whatsoever," said the Bishop of Cloyne, "that the present state of the land question is the root of it all.” 2 “I never yet heard," he repeated several times, "that a single farmer left the country and became an emigrant who had a lease." 3 And again, “Those who go attribute their being compelled to go to the want of good legislation; to the existence of bad legislation or bad government, according to their belief. Yes, and their disappointment is, I may say, made more bitter in consequence of all that has been done, or rather in consequence of all that has been discussed now for the last twenty years or more.
“ Under the present system, said Judge Longfield," where the tenant has so few rights, and the law is so hard against him, a great part of the tenant's prudence or cunning is to conceal his capital.” 5 “The real grievance," as he wrote afterwards, “was not that the tenant frequently lost the value of his improvements, but that his liability to this loss generally prevented him from making those improvements which would have been profitable to himself and useful to the country.”
Irish landlords, indeed, cannot be held directly responsible for everything done in their name. Where the estate was large, the landlord was often merely a rent receiver, seldom seen by his tenants, and ignorant of their feelings and wants." The agent, not the landlord, was the real governor. “The agent over a large estate like this," said Mr. Trench, referring to the Marquis of Bute's property, "must necessarily, in almost all disputed cases, become the arbitrator between the interests of the landlord and the tenant." It was in the nature of things that the
1 Minutes of Evidence : Q. 3143. See also Q. 2447, 2461. 2 Ibid., Q. 3400.
3 Ibid., Q. 3401, 3425, 3808. * Ibid., Q. 3408. 5 Ibid., Q. 292.
“Systems of Land Tenure," p. 57. ? "Had they (Irish landlords) bestowed ordinary attention on their own affairs, half the present evils of Ireland could not have existed” (“The Irish Difficulty,” by an Irish Peer, p. 11).
RESULTS OF INSECURITY
agent should incline to the landlord's side, and that he should often be a hard master. " The chief characteristic of landlord power," said Mr. Godkin, "as felt by the tenant, is arbitrariness. The agent may make any rules he pleases, and as many exceptions to every rule as he pleases. He may allow rents to run in arrear; he may suddenly come down on the defaulter with a fell swoop; he may require the rents to be paid up to the day; he may, without reason assigned, call in the hanging gale';
may abate or increase the rents at will; he may inflict fines for delay, or give notices to quit for the sole purpose of bringing in fees to his friend or relative, the solicitor.” 1 Many estates were too large even for an agent to supervise, and a further delegation of duties was made to sub-agents and bailiffs. The agent was often not resident on the estate at all, but managed it from his Dublin office. “I could mention many cases coming before me,” said Judge Longfield, "in which an agent who had been for years agent could not give me the slightest idea of the boundaries of the farms over which he was agent.” 2 A.worse system could not have been devised. The landlord's power, which was tolerable only on condition of being used temperately and sympathetically, was delegated to men whose training and personal interests led them to use it in a hard, narrow, and oppressive way.
The position of the tenant thus depended on the landlord's forbearance, and the safeguard had proved insufficient. The question which Parliament had now to decide was whether Irish landlords could any longer be safely entrusted with the legal powers which they possessed.
The arguments against interference involved two very strong propositions: first, that the landlord owns the land as he owns any other kind of property; and, second, that the land laws of England must be the land laws of Ireland. To a Parliament of landlords and of business men these propositions seemed self-evident. To deny them, as they were denied in every Tenant-Right Bill, was simply to
Godkin, “ Land War in Ireland,” p. 415. ? Committee of 1865: Q. 306.