Irish History and the Irish Question

by Goldwin Smith

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.

Sections forty-five to one hundred and two deal with actions for the 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.