The Map of Life / Conduct and Character

by William Edward Hartpole Lecky

The pressure of this consideration is most painfully felt in the case of legislation which appears not simply inexpedient and unwise, but distinctly dishonest. In legislation relating to contracts there is a clear ethical distinction to be drawn. It is fully within the moral right of legislators to regulate the conditions of future contracts. It is a very different thing to break existing contracts, or to take the still more extreme step of altering their conditions to the benefit of one party without the assent of the other, leaving that other party bound by their restrictions.

In the American Constitution there is a special clause making it impossible for any State to pass any law violating contracts. In England, unfortunately, no such provision exists. The most glaring and undoubted instance of this kind is to be found in the Irish land legislation which was begun by the Ministry of Mr. Gladstone, but which has been largely extended by the party that originally most strenuously opposed it. Much may no doubt be said to palliate it: agricultural depression; the excessive demand for land; the fact that improvements were in Ireland usually made by the tenants (who, however, were perfectly aware of the conditions under which they made them, and whose rents were proportionately lower); the prevalence in some parts of Ireland of land customs unsanctioned by law; the existence of a great revolutionary movement which had brought the country into a condition of disgraceful anarchy. But when all this has been admitted, it remains indisputable to every clear and honest mind that English law has taken away without compensation unquestionably legal property and broken unquestionably legal contracts. A landlord placed a tenant on his farm on a yearly tenancy, but if he desired to exercise his plain legal right of resuming it at the termination of the year, he was compelled to pay a compensation 'for disturbance,' which might amount to seven times the yearly rent. A landlord let his land to a farmer for a longer period under a clear written contract bearing the government stamp, and this contract defined the rent to be paid, the conditions under which the farm was to be held, and the number of years during which it was to be alienated from its owner. The fundamental clause of the lease distinctly stipulated that at the end of the assigned term the tenant must hand back that farm to the owner from whom he received it. The law has interposed, and determined that the rent which this farmer had undertaken to pay shall be reduced by a government tribunal without the assent of the owner, and without giving the owner the option of dissolving the contract and seeking a new tenant. It has gone further, and provided that at the termination of the lease the tenant shall not hand back the land to the owner according to the terms of his contract, but shall remain for all future time the occupier, subject only to a rent fixed and periodically revised, irrespective of the wishes of the landlord, by an independent tribunal. Vast masses of property in Ireland had been sold under the Incumbered Estates Act by a government tribunal acting as the representative of the Imperial Parliament, and each purchaser obtained from this tribunal a parliamentary title making him absolute owner of the soil and of every building upon it, subject only to the existing tenancies in the schedule. No accounts of the earlier history of the property were handed to him, for except under the terms of the leases which had not yet expired he had no liability for anything in the past. The title he received was deemed so indefeasible that in one memorable case, where by mistake a portion of the property of one man had been included in the sale of the property of another man, the Court of Appeal decided that the injustice could not be remedied, as it was impossible, except in the case of intentional fraud, to go behind parliamentary titles.[44] In cases in which the land was let at low rents, and in cases where tenants held under leases which would soon expire, the facility of raising the rents was constantly specified by the authority of the Court as an inducement to purchasers.

What has become of this parliamentary title? Improvements, if they had been made, or were presumed to have been made by tenants anterior to the sale, have ceased to be the property of the purchaser, and he has at the same time been deprived of some of the plainest and most inseparable rights of property. He has lost the power of disposing of his farms in the open market, of regulating the terms and conditions on which he lets them, of removing a tenant whom he considers unsuitable, of taking the land back into his own hands when the specified term of a tenancy had expired, of availing himself of the enhanced value which a war or a period of great prosperity, or some other exceptional circumstance, may have given to his property. He has become a simple rent-charger on the land which by inheritance or purchase was incontestably his own, and the amount of his rent-charge is settled and periodically revised by a tribunal in which he has no voice, and which has been given an absolute power over his estate. He bought or inherited an exclusive right. The law has turned it into a dual ownership. A tenant right which, when he obtained his property, was wholly unknown to the law, and was only generally recognised by custom in one province, has been carved out of it. The tenant who happened to be in occupation when the law was passed can, without the consent of the owner, sell to another the right of occupying the farm at the existing rent. In numerous cases this tenant right is more valuable than the fee simple of the farm. In many cases a farmer who had eagerly begged to be a tenant at a specified rent has afterwards gone into the land court and had that rent reduced, and has then proceeded to sell the tenant right for a sum much more than equivalent to the difference between the two rents. In many cases this has happened where there could be no possible question of improvements by the tenant. The tenant right of the smaller farms has steadily risen in proportion as the rent has been reduced. In many cases, no doubt, the excessive price of tenant right may be attributed to the land hunger or passion for land speculation so common in Ireland, or to some exceptional cause inducing a farmer to give an extravagant price for the tenant right of a particular farm. But although in such instances the price of tenant right is a deceptive test, the movement, when it is a general one, is a clear proof that the reduction of rent did not represent an equivalent decline in the marketable value of the land, but was simply a gratuitous transfer, by the State, of property from one person to another. Having in the first place turned the exclusive ownership of the landlord into a simple partnership, the tribunal proceeded, in defiance of all equity, to throw the whole burden of the agricultural depression on one of the two partners. The law did, it is true, reserve to the landlord the right of pre-emption, or in other words the right of purchasing the tenant right when it was for sale, at a price to be determined by the Court, and thus becoming once more the absolute owner of his farm. The sum specified by the Court was usually about sixteen years' purchase of the judicial rent. By the payment of this large sum he may regain the property which a few years ago was incontestably his own, which was held by him under the most secure title known to English law, and which was taken from him, not by any process of honest purchase, but by an act of simple legislative confiscation.

Whatever palliations of expediency may be alleged, the true nature of this legislation cannot reasonably be questioned, and it has established a precedent which is certain to grow. The point, however, on which I would especially dwell is that the very party which most strongly opposed it, and which most clearly exposed its gross and essential dishonesty, have found themselves, or believed themselves to be, bound not only to accept it but to extend it. They have contended that, as a matter of practical politics, it is impossible to grant such privileges to one class of agricultural tenants and to withhold it from others. The chief pretext for this legislation in its first stages was that it was for the benefit of very poor tenants who were incapable of making their own bargains, and that the fixity of tenure which the law gave to yearly tenants as long as they paid their rents had been very generally voluntarily given them by good landlords. But the measure was soon extended by a Unionist government to the leaseholders, who are the largest and most independent class of farmers, and who held their land for a definite time and under a distinct written contract. It is in truth much more the shrewder and wealthier farmers than the poor and helpless ones that this legislation has chiefly benefited.

Instances of this kind, in which strong expediency or an absolute political necessity is in apparent conflict with elementary principles of right and wrong, are among the most difficult with which a politician has to deal. He must govern the country and preserve it in a condition of tolerable order, and he sometimes persuades himself that without a capitulation to anarchy, without attacks on property and violations of contract, this is impossible. Whether the necessity is as absolute or the expediency as rightly calculated as he supposed, may indeed be open to much question, but there can be no doubt that most of the English statesmen who carried the Irish agrarian legislation sincerely believed it, and some of them imagined that they were giving a security and finality to the property which was left, that would indemnify the plundered landlords. Perhaps, under such circumstances, the most that can be said is that wise legislators will endeavour, by encouraging purchase on a large scale, gradually to restore the absolute ownership and the validity of contract which have been destroyed, and at the same time to compensate indirectly—if they cannot do it directly—the former owners for that portion of their losses which is not due to merely economical causes, but to acts of the legislature that were plainly fraudulent.

There are other temptations of a different kind with which party leaders have to deal. One of the most serious is the tendency to force questions for which there is no genuine desire, in order to restore the unity or the zeal of a divided or dispirited party. As all politicians know, the desire for an attractive programme and a popular election cry is one of the strongest in politics, and, as they also know well, there is such a thing as manufactured public opinion and artificially stimulated agitation. Questions are raised and pushed, not because they are for the advantage of the country, but simply for the purposes of party. The leaders have often little or no power of resistance. The pressure of their followers, or of a section of their followers, becomes irresistible; ill-considered hopes are held out; rash pledges are extorted, and the party as a whole is committed. Much premature and mischievous legislation may be traced to such causes.

Another very difficult question is the manner in which governments should deal with the acts of public servants which are intended for the public service, but which in some of their parts are morally indefensible. Very few of the great acquisitions of nations have been made by means that were absolutely blameless, and in a great empire which has to deal with uncivilised or semi-civilised populations acts of violence are certain to be not infrequent. Neither in our judgments of history nor in our judgments of contemporaries is it possible to apply the full stringency of private morals to the cases of men acting in posts of great responsibility and danger amid the storms of revolution, or panic, or civil war. With the vast interests confided to their care, and the terrible dangers that surround them, measures must often be taken which cannot be wholly or at least legally justified. On the other hand, men in such circumstances are only too ready to accept the principle of Macchiavelli and of Napoleon, and to treat politics as if they had absolutely no connection with morals.

Cases of this kind must be considered separately and with a careful examination of the motives of the actor and of the magnitude of the dangers he had to encounter. Allowances must be made for the moral atmosphere in which he moved, and his career must be considered as a whole, and not only in its peccant parts. In the trial of Warren Hastings, and in the judgments which historians have passed on the lives of the other great adventurers who have built up the Empire, questions of this kind continually arise.

In our own day also they have been very frequent. The Coup d'état of the 2nd of December, 1851, is an extreme example. Louis Napoleon had sworn to observe and to defend the Constitution of the French Republic, which had been established in 1848, and that Constitution, among other articles, pronounced the persons of the representatives of the people to be inviolable; declared every act of the President which dissolved the Assembly or prorogued it, or in any way trammelled it in the exercise of its functions, to be high treason, and guaranteed the fullest liberty of writing and discussion. 'The oath which I have just taken,' said the President, addressing the Assembly, 'commands my future conduct. My duty is clear; I will fulfil it as a man of honour. I shall regard as enemies of the country all those who endeavour to change by illegal means what all France has established.' In more than one subsequent speech he reiterated the same sentiments and endeavoured to persuade the country that under no possible circumstances would he break his oath or violate his conscience, or overstep the limits of his constitutional powers.