Irish History and the Irish Question

by Goldwin Smith

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.