(3) The insecurity of tenure of the tenant, and the right the landlord still had of raising the rent at his pleasure. Thus the legalization of the Ulster Custom was of little use, as the landlord could practically destroy all the tenant's interest under [pg 182] it by raising the rent. The only remedy was to surrender the holding and go before the County Court Judge for compensation, which was usually much less than the tenant-right would fetch if sold in the open market.
To protect the interest and property of the tenant in his holding and in his improvements, both of which had now legal recognition—it was necessary to give him: (1) Security of tenure at a fair rent; and (2) a special and expert tribunal to decide on the amount of the rent at which he was to hold.
The Land Act of 1881.
The Act of 1881 effected these reforms. It gave the tenant the right to sell his interest in his holding—subject to the landlord's right of pre-emption—it gave fixity of tenure at a fair rent—subject to a fifteen years' re-valuation—and it established a special tribunal to fix the rents.
The principles of the present Irish Land Code—which comprises a large number of statutes—are contained in the Acts of 1870 and 1881. The Act of 1870 recognised for the first time that the Irish tenant had a right of occupation and a property in his improvements. But the Act failed because it recognised these rights grudgingly, and left untouched the power of the landlord to fix what rent he pleased. The Land Act of 1881 for the first time safeguarded the property of the tenant, and reversed the policy of the Act of 1860 (Deasy's Act) by removing the Irish Land system from the domain of contract, and, in a manner, bringing it back to tenure.
Differences between the English and the Irish Land Systems.
To understand the agrarian situation in Ireland it is necessary to keep in mind the fundamental difference [pg 183] between the English and the Irish systems, which was pointed out in the Report of the Devon Commission. In England, speaking generally, agricultural farms are let by the owners fully equipped with buildings, fences, farm roads, and other improvements necessary for the proper working of the holding. The tenant contracts to pay a rent for the farm so equipped, and, if he finds that the particular holding does not suit him, he gives it up at the end of his contract term, and goes elsewhere. Under this system, what Adam Smith termed “the higgling of the market!” is the easiest test of land value, as it is of all other commodities with regard to which competition is free. In Ireland, on the other hand, the landlord, speaking generally, owns only the soil. The equipment of each farm is the property of or has been effected by the tenant, who is practically a hereditary occupier. The houses, fences, drainage, reclamation, farm roads, and other such necessary improvements have been made by the tenant or his predecessors in title. The landlord owns the soil, and the tenant the necessary agricultural equipment. Consequently, the tenant is not free. He cannot walk out at the end of his term and leave behind him his houses, roads, fences, and drains. Besides, if he goes out, he has nowhere else to settle.
The pressure of competition is so great—as is natural in a country in the greater part of which there is no other employment or industry than that of agriculture—that, very large sums, often far in excess of the value of the land, measured by any standard of productive capacity are paid for the mere right to occupy. Again, the nature of the land, in large parts of Ireland, is such as to prevent owners from working it on the English system of equipped farms. In the poorer parts of the country the land can only be made to yield a profit to [pg 184] the owner by being worked by small occupying tenants, who, without any economic return, are willing to expend their labour and that of their families. Were such land to be handed back to the owners to be worked by them without the intervention of tenants no profit could be obtained, and the land would go out of cultivation, being below the margin of economic profit.
Here we have the explanation and the justification of the series of Land Acts from 1870 to 1896. They were an attempt to adjust the law of landlord and tenant to the facts of the case. Before 1870 the law regarded the landlord as the sole owner of the farm, while, in fact, the tenant was the co-owner. The Act of 1870 recognised, to a limited extent, the co-ownership, but gave insufficient relief. The Act of 1881 gave a more complete recognition and relief, and various amendments and extensions were introduced by subsequent Statutes.