Present Irish Questions

by William O'Connor Morris

CHAPTER V

THE QUESTION OF THE IRISH LAND (continued)—THE ADMINISTRATION OF THE IRISH LAND ACTS

The administration of the Land Act of 1870 in the main good—Difficulty about claims for tenants’ improvements—The administration of the Land Act of 1881, and of its supplements—The Land Commission and its Sub-Commissions—Allowances to be made for these tribunals—Principles which the Land Commission should have adopted in fixing ‘fair rents’—The procedure and practice it ought to have established—It made mistakes as to both—The nature of the Sub-Commission Courts—This was objectionable in the highest degree—These Courts have, however unconsciously, done grave wrong to Irish landlords—Causes of this—Characteristics of their proceedings—They disregarded the principles they ought to have followed, and adopted faulty and erroneous methods—Different illustrations of these grave mistakes—The Land Commission and appeals as to ‘fair rent’—Importance of this subject—Faulty procedure of the Land Commission in appeals—Valuers—The second Land Commission—Its procedure worse than that of the first—Theory of occupation right—This another wrong done to landlords—The Fry Commission and its report—Confiscation of the property of Irish landlords—The proofs of this—Apologies made for the Land Commission—The administration of the Land Purchase Acts.

I turn to the administration of the new Irish Land Code, of which I have described the distinctive features. The County Courts of Ireland, I have said, were entrusted with the task of carrying out the Land Act of 1870; the principal duty of the judges was to determine rights, under the Ulster and analogous Customs in the south, and to declare the sums to be paid to tenants, when leaving their holdings, for compensation for improvements, and in respect of disturbance. As evictions were by no means frequent, in the period between 1870 and 1879, the litigation before these tribunals, under these different heads, though by no means trivial, was not excessive; the applications on the part of tenants were not very numerous; there was ample time to consider the law, whether in the subordinate or the appellate Courts; and though there was much difference of opinion as to the amount of compensation to be given to suitors, the administration of the Act was not seriously impugned,[88] and, on the whole, was reasonable and just. The most remarkable circumstance in the inquiries held before the Courts was, certainly, the extravagance of the claims put forward, on account of tenants’ improvements, circumscribed as these were by the limitations of the law; everything in the nature of an agricultural work was called an improvement, from repairing an old fence to cleaning an old drain; hours and days were lost in endeavours to disentangle the truth, and to arrive at sound and legal conclusions. I could fill scores of pages with descriptions of demands of this kind, usually pressed with reckless and hard swearing; they ought to have been a warning, as unhappily they were not, not to break down the restrictions contained in the Act of 1870, and not to extend legislation, in this direction, against the rights of the landlord. I confine myself to a single example: I tried a case, in 1895, in which a tenant’s claims, under the Act of 1870, were £1130; I cut these down to £164; after deducting £155 found due to the landlord, I adjudged to the tenant a sum of less than £10; and there was no appeal from the decision I pronounced.[89]

The Land Act of 1870 has been well-nigh superseded by the great measure of 1881, and by the legislation which has been its supplement. The administration of this part of the new Land Code, by many degrees the most important, was given, as I have pointed out before, to a wholly new tribunal, the Land Commission, and to Sub-Commissions dependent on it; a concurrent jurisdiction was given to the Irish County Courts; but they have had very little to do in this province. The principal work of the Land Commission has been to fix ‘fair rents,’ and to make statutory leases, ‘fixity of tenure,’ in a word, in a kind of disguise, and thus to give effect to the policy adopted by Mr. Gladstone in 1881. The three original members of the Land Commission, in all respects its directors, were the late Mr. Justice O’Hagan, the late Mr. E. F. Litton, and the late Mr. John E. Vernon; Lord Salisbury denounced these appointments in emphatic language, as being against the just rights of Irish landlords;[90] the charge was not without plausible grounds at least, for Mr. Justice O’Hagan had been one of the ‘Young Ireland’ party, and Mr. Litton had been a strong tenant-right advocate. These two gentlemen, nevertheless, were most honourable men, and capable, if not very distinguished, lawyers; Mr. Vernon was an excellent and experienced country gentleman, if, in politics, of the Liberal faith; and as all three have long ago passed away, it would be unjust to make charges of illegitimate conduct, even if they may not have been wholly free from unconscious bias. Great allowance ought to be made, in common justice, for the Commissioners in the situation that had been made for them, and regard being had to their most arduous duties. To fix ‘fair rent,’ even approximately, was difficult in the extreme; as Judge Longfield predicted many years before, and every well-informed Irishman knew, the adjustment of rent, through the agency of the State, would inevitably cause a general lowering of rents. Again, the Commissioners were, from the outset, harassed by a rush of applications to fix ‘fair rents;’ these came in, within a few weeks, in thousands; they were tempted, therefore, to set about their work at once, without taking the careful precautions, or entering into all the considerations, the nature of their duty required. Two circumstances, also, no doubt, had effect on their minds; the Land League was creating a Reign of Terror, and destroying the property of the Irish landlords; the Commissioners probably hoped that they would weaken the power of the League, by, so to speak, bidding against it, and cutting rents down. Above all, the Land Commission, like the Encumbered Estates Commission, was a tribunal set up to carry out a policy, that is, in word, to abate rents; and all experience, Irish experience notably, proves that such a body of men usually fulfils its mission.

Mr. Gladstone, we have seen, had expressed a belief that ‘fair rents,’ as a rule, would be fixed by contract; that the Act of 1881 would produce this result; and that this part of the work of the Land Commission, accordingly, would not be very great. Unquestionably, too, with his leading followers, he was convinced that rents in Ireland would not be largely reduced;[91] it is important to bear this distinctly in mind, regard being had to subsequent events. These anticipations were to prove vain; but the Land Commissioners possibly may have shared his views, and may have resolved to act upon them, before they first addressed themselves to the task of ‘fixing fair rents.’ After experience, it is easy to be wise; but we can now clearly discern what they ought to have done, considering the heavy work they were soon to find imposed on them. Their first duty should have been to establish some standard, which would make a reasonable criterion of rent; the means to accomplish this end were not wanting. Mr. Law, the Irish Attorney-General of Mr. Gladstone, one of the most distinguished lawyers of his day, and afterwards a holder of the Great Seal of Ireland, had made a definition of ‘fair rent’ in the House of Commons; ‘a fair rent was to be a competition rent minus the yearly value of the tenant’s interest in the holding; that was what was intended, and anything else would be monstrously unjust.’[92] For some reason that has not transpired, this definition did not find a place in the Act; but the authority of its framer was great; it must have been known to the Land Commissioners; had they adopted it, and based their decisions upon it, things would have been very different from what they are at the present time. But there were other tests to indicate a standard of rent, to be regarded at least, if not conclusive. The valuation of the lands of Ireland made for the assessment of rates, Griffith’s valuation, as it was commonly called, which Parnell had made a measure of ‘fair rent,’ would certainly have been of real use, though it varied greatly in different counties; and the Commission appointed by Mr. Gladstone, only a few months before, had, I have said, reported, that Ireland, as a whole, was in no sense an over-rented land. There was another consideration, as regards Irish rents, which the Land Commissioners ought to have borne in mind. The rents on the estates of the great landlords, and of the gentry of old descent, were, as a rule, low; the rents of the purchasers under the Encumbered Estates Acts were high, nay, excessive, in not a few instances.

Other circumstances, moreover, of great importance, ought to have been taken into account, with respect to this subject. The rental of Ireland was not as high as it had been before the Great Famine; where rents, therefore, had not been increased, and had been regularly paid for a long series of years, there was the strongest possible presumption that these would be ‘fair.’ Again, the material progress of Ireland had been great during the forty preceding years: the wages of labour had, indeed, risen; but owing to the introduction of good farm machinery, the cost of production, in agriculture, had diminished; the extension of the railway system had opened new markets, and had brought even Connaught within a few hours of Great Britain; steam navigation had multiplied and improved; the modes of husbandry and the breeds of stock of all kinds had become infinitely better than they had been; and prices of late had been very high. These were all elements to be regarded in the determination of ‘fair rent;’ they ought to have been examined with care; and inquiries on these matters should have extended over a long space of time. Moreover, as the Land Act of 1881 discharged improvements made by tenants from rent, as these were defined and limited by the Act of 1870, the greatest pains ought to have been taken that claims for exemption should be strictly dealt with, and not permitted to run riot, especially as it was notorious that demands of this kind, made under the law already in force, were usually excessive, supported by untrue statements, and by no means easy to resist and disprove. Another fact, also, of the gravest moment, ought to have been thoroughly considered, as regards this question. As improvements made by tenants were not to be charged with rent, it was but equitable that the lands they might hold should be valued as if in their normal state; that if these had been deteriorated, either through wilful misconduct, or gross neglect, their occupiers were not to make profit of their own wrong; that deterioration, in a word, was not to be allowed to work rent down, and was to be taken into account, in adjudicating upon ‘fair rent.’ This was the more necessary because it was well known that numbers of farms in Ireland had been more or less run out; and especially because, as in the case of the ryot of Bengal, under the Permanent Settlement of Lord Cornwallis, an Irish tenant would be strongly tempted to injure his lands, if he believed that, when ‘a fair rent’ should be fixed on them, he would be permitted to take advantage of his own default. It should be added that, in the fixing of ‘fair rents,’ the large sums which, in many instances, Irish landlords had laid out in improving their estates, notably since the years that succeeded the Famine, ought, as a matter of course, to have been kept in mind.

These were the general principles which should have guided the Land Commission in approaching the question of fixing ‘fair rent.’ There was nothing in the Act of 1881 to prevent the Land Commissioners, as a Court of first instance, adjudicating directly in cases of this kind, or to compel them to refer these to their Sub-Commissions; indeed the plain intention of the law was in a contrary sense. Had the Land Commissioners adopted this course—and this, I venture to say, was their obvious duty—they would, no doubt, have considered the questions before them at length, and with close attention; have made their inquiries go back many years, and have laid down, in elaborate judgments, the maxims and rules to be applied in the fixing of ‘fair rent.’ The evidence that would have come before them would have been of two kinds: that which depended upon the statements of valuers, on the side of landlords and tenants alike; this, of course, would be of great importance; but it should have been borne in mind that it would be biassed evidence; and that, in the existing state of Ireland, and of Irish opinion, the statements of tenants’ valuers would require to be strictly watched. The other head of evidence was of a much more trustworthy kind; it was indicated by the circumstances of the cases being heard, and was necessarily suggested by the inquiries themselves. This class of evidence would be desired from a consideration of the rate of rent in the neighbourhood or even of adjoining lands, in a word, of what may be called the market price of rent; from an examination of what a reasonable rent would be, payable by a solvent tenant to a fair-minded landlord; and even from a review of rent fixed by the competition of bidders for land, these circumstances, in every given case, being, of course, controlled by a due regard being had, in the words of the law, for the ‘tenant’s interest.’ There was another and very important test; the sums paid in Ulster and elsewhere on the transfer of farms were usually large, sometimes not less than a third or even a half of the value of the fee simple; and as these sums were always subject to the existing rents, the first charges on the lands being sold, this would afford a strong presumption that such rents would be ‘fair.’ No doubt the Act of 1881 declared that such payments were not to be taken into account, per se, and apart from other considerations in the actual fixing of rent, so far as regards a given farm; but the law certainly allowed—and it has always been so held—that payments of this kind might be kept in view in forming, generally, an estimate of what a ‘fair rent’ should be.[93]

The Land Commissioners, but from a different point of view, might have learned something from Parnell in this matter. They were, no doubt, harassed by the prospect of the task before them; but had they taken a certain number of ‘test cases,’ and investigated them as a Court of first instance, they would have laid down principles to be followed in the fixing of ‘fair rent;’ have explained these in well-considered judgments, going over the whole field of inquiry; and, so far as in them lay, have tried to do justice. Even if they had not adopted this course, one of their members, as the Act of 1881 provided, might have taken part for some time with their subordinates in the adjustment of rent; this would have been in accord with Mr. Gladstone’s assertions that the Land Commission was to be the real arbiter of rent. Unfortunately the Commissioners acted quite otherwise; their conduct, palliate as you may, was an abdication of a plain duty, on the plea that they were overwhelmed by the work before them. Not one of them ever sat in a Court of first instance to fix ‘fair rents;’ they delegated this the most important of all their functions to their Sub-Commissions, to which they thus committed the charge of adjusting rent throughout the whole of Ireland. These Sub-Commissions formed Courts, each composed of three members, one a legal Commissioner and two laymen; the Sub-Commissioners were nominees of the Government, whether appointed on the recommendation of the Land Commission or not is not certain; the only qualifications for the legal Commissioners were that they should be barristers or solicitors of six years’ standing, and for the lay Commissioners that they should have some knowledge of land. These were strange tribunals to deal with property worth hundreds of millions; but this was only a part of what must be called a scandal most discreditable to those responsible for it. The Sub-Commissioners, one and all, were much underpaid; their salaries were inadequate to secure fitting men; and, one and all, they were at the sufferance of the men at the Castle, liable to be dismissed at a moment’s notice, and without the independence which is the best guarantee of justice. Some of the Sub-Commissioners, indeed, were only paid for the job, by the day; they had, therefore, a direct personal interest to reduce rents, in order to make work for themselves and to retain their places. Even in Ireland such tribunals were never set on foot, since Cromwell assembled his Courts of Claims to give their sanction to his huge forfeitures; that they were ever thought of is one of the many proofs of the disregard shown to property in land in Ireland. No wonder that it was significantly remarked: ‘The whole spirit of our judicial institutions suggests that officers with such extensive powers should be selected with the greatest care and with reference to their possession of high qualifications, and that they should be placed in a position of independence, and should, so far as possible, be lifted above the suspicions that surround them.’[94]