as it was falsely called, was to be voluntary on the part of landlord and tenant; it was to be conducted on the footing of free contract, as had been the case under the preceding statutes; the State was to obtain a guarantee from the landlord; and Parliament voted 5,000,000 to carry out this policy.

Exactly as had happened in the case of the Enc.u.mbered Estates Act, this scheme of 'Land Purchase' was p.r.o.nounced successful; some scores of landlords sold land, some hundreds of tenants bought it; the real nature of the proceeding and its inevitable results were ignored; it was even boasted that 'dual ownership' would be got rid of, nay, that the Irish Land Question was being finally 'settled.' But when the first sum of 5,000,000 had been expended, and Parliament was asked to vote a second sum, it began to hesitate as to this dealing with the Irish land; the British taxpayer demurred and growled; with a true instinct he disliked the security; it was found very difficult to procure the funds required, large as the majority was of Lord Salisbury's Government. His Ministry, however, adhered to the new policy; and Parliament enacted a measure in 1891, which I have always thought unconst.i.tutional in the highest degree, not to speak of the evils it was certain to produce. By this Act a sum of about 30,000,000 was made forthcoming to facilitate 'Land Purchase,' to abolish 'dual ownership,' and to change Irish tenants into owners of land; this sum was to be secured by the methods before referred to, that is, by terminable annuities less than any equitable rent, and by guarantees on the part of selling landlords; but, furthermore, a whole series of funds, devoted to Ireland, for Irish purposes, and absolutely essential to her most important needs, were appropriated to make good any default on the part of 'purchasing' tenants, in the payment of annuities charged on their farms; and even the Irish counties were rendered liable in the last resort. Should, therefore, tenants in Ireland, who had acquired the ownership of their farms, refuse to pay those annuities on any pretence, say, through an appeal made by a Land League conspiracy--the manifesto against all rent cannot be forgotten--this extraordinary spectacle would then be seen: the State would have a right to seize upon the grants made for National schools and lunatic asylums throughout Ireland; these inst.i.tutions would be shut up; children and madmen would be let loose through the country; and the owner of an Irish estate would have to pay for the dishonesty perhaps of his former tenants. The late Lord Randolph Churchill severely condemned this scheme; I agree with him it was utterly unjust, and but too characteristic of the contempt of the rights of Ireland, unhappily often displayed by British statesmen.

Only a sum, it will be observed, of about 40,000,000, that is, two of 5,000,000, and some 30,000,000 more, has thus been made available for 'Land Purchase;' this obviously could not transfer even a fourth part of the Irish land, valued, we have seen, by Mr. Gladstone at 300,000,000--in a remarkable speech in reply to Lord George Hamilton--and almost certainly worth from 150,000,000 to 200,000,000. The process of doing away with 'dual ownership' and making tenants in Ireland owners of their farms, having been p.r.o.nounced by its authors slow, the Act of 1896, referred to before, enabled the landlord's guarantee to be dispensed with, and provided that, in the case of hopelessly embarra.s.sed landlords, whose estates were being offered for sale in the Courts, the tenants should virtually have a right of pre-emption, thus a.s.serting a principle, on which I shall dwell afterwards, and known as the 'Compulsory Purchase' of the Irish land. I shall point out, in another chapter, the present and the inevitable future results of this policy of so-styled 'Land Purchase;'

suffice it to say here, that, in my judgment, it betrays utter ignorance of the Irish land system, and of the customs and inclinations of the Irish peasant; that it proceeds on an essentially immoral principle, the bribery of a cla.s.s to promote its welfare; that, from the very nature of the case, it cannot abolish 'dual ownership;' that, human creatures being what they are, it cannot, as is being already proved, establish a thriving body of occupying owners on the Irish soil; that it must create sharp and unjust distinctions in Irish land tenure, iniquitous to the landlord and to every tenant, who may be excluded from its benefits; that it must directly tend, as it is even now tending, to arouse a cry for a wholesale confiscation of Irish estates, the most shameful and wrongful Ireland has yet witnessed; and that so far from settling the Irish Land Question, it must necessarily unsettle it from top to bottom. As respects the legislation I have briefly described, on the side of the occupation of the Irish land--by many degrees the most important--I shall also comment upon its results in a subsequent chapter, after examining its administration by the tribunal it has set up. But a word may be said, in this place, on its essential character: from 1881 to the present time, it is absolutely without a precedent in civilised lands; it has trampled on economic science and the truths it teaches, as, indeed, its chief author made his boast; it has created a mode of land tenure in Ireland not in accord with fact, which has virtually deprived the Irish landlord of real ownership in his estate, has turned him into a kind of annuitant, and has virtually changed the Irish tenant into a kind of owner, but under conditions absolutely bad; its inevitable tendency was to cut down rents wholesale, without regard to the simplest justice; it established a system of mischievous litigation between landlord and tenant, demoralising and increasing the division of cla.s.ses; it exhibited, on an enormous scale, characteristic contempt of Irish rights of property; and finally, if Parliamentary pledges are to be fulfilled, and gross wrong is not to be consecrated by law, it has given the Irish landlord a great and legitimate claim to compensation from the State. As we survey this unwise and destructive medley of law, we are forcibly reminded of the words of Burke:--'I am unalterably persuaded that the attempt to oppress, degrade, impoverish, confiscate, and extinguish the original gentlemen, and landed property of a whole nation, cannot be justified under any form it may a.s.sume.'[87]

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 ill.u.s.trations 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 princ.i.p.al duty of the judges was to determine rights, under the Ulster and a.n.a.logous 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 circ.u.mstance in the inquiries held before the Courts was, certainly, the extravagance of the claims put forward, on account of tenants' improvements, circ.u.mscribed 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 p.r.o.nounced.[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 princ.i.p.al 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 pa.s.sed 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, hara.s.sed 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 circ.u.mstances, 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 Enc.u.mbered 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 antic.i.p.ations 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 compet.i.tion 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 a.s.sessment 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 Enc.u.mbered Estates Acts were high, nay, excessive, in not a few instances.

Other circ.u.mstances, 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 s.p.a.ce 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 bia.s.sed 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 circ.u.mstances of the cases being heard, and was necessarily suggested by the inquiries themselves. This cla.s.s 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 compet.i.tion of bidders for land, these circ.u.mstances, 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, hara.s.sed 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 a.s.sertions 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 a.s.sembled 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 inst.i.tutions 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]

Sixty or seventy officials of this type--the number was afterwards largely increased--were thus, in the significant words of one, 'let loose over Ireland' to deal with estates; it is very remarkable that they have never received instructions from the Land Commission how to perform their duties. The procedure of the Courts of the Sub-Commissions was, under existing conditions, as well devised as could be fairly expected. The three Commissioners, who formed a Court, nearly always sate together, and heard the evidence brought before them as to what were 'fair rents;' the legal Commissioner decided questions of law; and, this evidence having been taken, the two lay Commissioners inspected the farms, the subjects of the previous inquiries, and having conferred with their legal colleague, determined with him what should be their 'fair rents.' This was the ordinary if not the universal practice; if some deviations have been made from it, these cannot be deemed of very great importance. Grave complaints have been made, in not a few instances, of the lay Commissioners, when engaged in examining lands; it has been said that they often neglected and 'scamped' their work; but these charges have been hardly, if at all, sustained; my own experience--and it is tolerably large--is that the Commissioners performed their functions with diligence and care, and sometimes gave proof of real knowledge of husbandry.[95] But it was utterly impossible that tribunals of this kind, not composed of experts of a high order, dependent upon the breath of the Castle, without regulations to direct their conduct, and acting, without concert, in many districts, could adjust rent in a satisfactory way, and in conformity with true methods, especially as the work they had to do was excessive; indeed, they sometimes fixed 'fair rents' by dozens in a day. It was equally impossible that the Sub-Commissions--and to do their members justice they never made the attempt--could take into account all the manifold and far-reaching elements which enter into the question of 'fair rent,' and could set forth, in exhaustive judgments, the principles applicable to a most intricate problem. On the contrary, as a rule, and no doubt wisely, they avoided topics which might have tasked the highest judicial powers; they decided the cases before them summarily, and with little reflection, certainly without the protracted examination required to establish settled rules and doctrines. And the result has been that they disregarded, and even set at nought, a whole series of considerations, of supreme importance, with reference to the fixing of 'fair rent;' and, however unconsciously and innocently, they have been the authors, in the first instance at least, of the gravest injustice, and of wrong, done wholesale, to the landed gentry of Ireland.

To make this plain, let us glance back at the principles which a.s.suredly ought to have been kept in view, in coming to sound conclusions on the subject of 'fair rent.' It will be seen that the Sub-Commissioners either gave little or no attention to these, or directly violated them in, perhaps, tens of thousands of cases. They have never attempted to establish some kind of standard, which would form a general measure of 'fair rent;' they have completely ignored the definition of Mr. Law, precise and most valuable as it was; they have treated 'Griffith's valuation' as though it did not exist; they have regarded the Report of Mr. Gladstone's Commission, declaring that Ireland was not excessively rented, as mere waste paper; they have apparently taken hardly any account of the well-known distinction between the low rentals of the great and old landlords, and the rack-rents too often exacted by purchasers under the Enc.u.mbered Estates Acts. So, too, it would seem, they have refused to consider the strong presumption that rents would be 'fair' if not raised during a long series of years, and if reasonably well paid, within that period; and they certainly have given no real weight, as an element in adjusting rent, to the agricultural progress made by Ireland since the Great Famine. Innumerable complaints have been made against their decisions as to the exemption of tenants' improvements from rent; but my belief is that they gave great attention to this subject; the wrong that has been done was owing to the difficulty of the law, and of its application to given cases; and the law, besides, was not, I think, just.

On the correlative and most important question of the deterioration of farms through the default of tenants, they have hardly ever inquired into this; they have repeatedly done the landlords wrong; they have made grave and palpable mistakes; and in many instances they have made no allowances for the expenditure of landlords upon their estates. Having thus refused to follow the principles which ought to have been their guide, they have widely deviated in the actual fixing of 'fair rents' from rules and methods they should have observed and made effective. They have given too much weight to the cla.s.s of evidence that was least important and most open to question; they have attached little and sometimes no value to the cla.s.s of evidence by far the most trustworthy, and that ought to possess the greatest influence. This has especially been the case, as we shall see, with respect to the sums paid on the transfer of farms, the strongest possible indication that their rents must be 'fair,' on the ordinary principles of human nature, and giving the purchasers credit for the simplest common sense.

These are grave charges against quasi-judicial bodies; let us see if they are not completely justified. The Sub-Commissioners, I have said, have taken no heed of Mr. Law's definition of 'fair rent;' but they have acted as though they set it at defiance; they have ignored the principle of compet.i.tion in fixing 'fair' rents. Unquestionably, as Mr. Law pointed out, a deduction should be made from a compet.i.tion rent, regard being had to 'the tenant's interest,' that is, to his rights in respect of improvements, and perhaps to his rights on account of his tenure, a lease renewable every fifteen years, when a 'fair rent' is being fixed on his farm; but why the very idea of compet.i.tion, that is, of market value, was to be excluded as an element in estimating 'fair rent,' is what men of common sense have never understood. This, in fact, was a portentous mistake, with consequences of a far-reaching kind; you might as well argue that because two partners had an interest in a fee simple estate, or two peasants had each a share in a cow, the price of the land or the cow was not to depend on what would be given for it at an auction mart or a county fair. Yet this was a position the Sub-Commissions have always taken; they have always insisted that compet.i.tion had nothing to do with 'fair rent.'

The evidence on this subject is conclusive; I can only take a few samples from the statements of a cloud of witnesses, who really seem to make a boast of their faith. Colonel Bayley, a Sub-Commissioner of large experience, has laid it down that the 'difference between a compet.i.tion rent and the fair rent would be more than 20 per cent.; it would, I think, be more than that; there would be between 30 and 75 per cent.

difference between the fair rent and the compet.i.tion rent.'[96] Mr.

Roberts, another Sub-Commissioner, has deposed to much the same effect: 'Decidedly, I believe that if the land was put in the market it would bring 25 per cent. more than the rent I put on.'[97] So, too, Mr. Bailey, a legal Sub-Commissioner, very much respected, has alleged: 'It would be most misleading to take the evidence of letting value in the neighbourhood, thus bringing in compet.i.tion value, which we rigorously exclude in fair-rent cases.'[98] Mr. Bomford, a well-known Sub-Commissioner, has said, in much the same sense: 'We do not take the compet.i.tion rent, and cannot take it into consideration, when fixing what the fair rent should be. Then you utterly exclude, when you come to the fixing of the fair rent, the element of compet.i.tion?--Yes, except in one matter, when we have town parks.'[99]

Let us now see what distinctions, in fixing 'fair rents,' the Sub-Commissioners have drawn between landlords whose rentals were low and landlords whose rentals were really high; and how they have dealt with rents, paid for a long s.p.a.ce of time, without having been raised; this is a fair index of the equity of their proceedings. It should be remarked, at the outset, that it soon appeared that rents had only been increased in comparatively few instances, going back over a series of years; yet, as a rule, nearly all rents were indiscriminately reduced. No attempt has been made, by any official of the Land Commission, to answer this damaging charge made, in 1897, at a judicial inquiry held upon the subject: 'The result of that calculation, the accuracy of which cannot be challenged, shows that, as the result of all the cases that were heard, in only 8 per cent. of them was any increase of rent for many years prior to 1881 proved. But whether the Sub-Commissioners are dealing with an estate on which for centuries the rents had remained unchanged, and on which the tenants had been fairly treated, or whether they were dealing with estates that had come into the hands of speculators by purchase in the Landed Estates Court, in all cases the average result was the same. They deducted something between 15 and 20 per cent. from the existing rent, no matter how long it had existed, and no matter upon what estate it was being paid.'[100] This significant evidence, too, points to the same conclusion: 'There is nothing to justify the reductions that have been made in the rents of good landlords, who did not raise their rents in the good years.

In fact, the landlords who did raise their rents got off a great deal better, at the hands of the Sub-Commissioners, than the good landlords who did not raise them.'[101] And Mr. Lecky, a calm-minded observer, if there ever was one, has added these striking and pregnant remarks: 'The landlords who have suffered least have probably been those who simplified their properties by the wholesale evictions, the harsh clearances, that too often followed the Famine. Next in the scale come those who exacted extreme rack-rents from their tenants. These rents had been received for many years, and though they were ultimately reduced more than rents which had been always low, they still, in innumerable instances, remained higher than the others. The large cla.s.s who regarded land simply as a source of revenue, and, without doing anything harsh, or extortionate, or unjust, took no part in its management, have suffered very moderately. It is the improving landlord, who took a real interest in his estate, who sank large sums in draining and other purposes of improvement, who exercised a constant and beneficent influence over his tenants, who has suffered most from the legislation that reduced him to a mere powerless rent-charger, and, in most cases, rendered the sums he had expended an absolute loss.'[102]

The Sub-Commissions dealt with the subject of the exemption of tenants'

improvements from rent, on the whole, as fairly, I think, as could be expected; and on the different questions of law that arose, appeals ran from them to the Land Commission, which usually investigated these cases at length. But this part of the law, really an excrescence on the Act of 1881, was unfair to the landlords, in the circ.u.mstances in which they were placed; they were confronted by innumerable and often obsolete and worthless claims, which they had only seldom the means of refuting; and if the demoralisation and false swearing under the Act of 1870 was bad, they were infinitely worse under the Act of 1881. A witty Irishman, indeed, once said that he could wish no severer punishment for Mr. Gladstone than to see him in a Sub-Commission Court listening to those wrongful statements; the mischief has, of course, been aggravated since the Act of 1896 has made the basis for the exemption larger and more ill-defined. The Sub-Commissions, I have said, were gravely in error, almost, as a rule, with respect to the deterioration of land, as an element to be considered in fixing rent; in this respect gross injustice has been done to landlords. There is scarcely any proof that, even in a single instance, the Sub-Commissioners valued land 'for fair rent,' as in its normal state; and yet, a.s.suredly, this was what ought to have been done, if a premium was not to be put on misconduct, and because farms had been injured and exhausted in hundreds, throughout Ireland. The deterioration was usually of two kinds--wilful waste committed in order to work down rent, and pa.s.sive waste caused by negligence and bad farming. Out of many instances, under the first head, I shall refer to one; the Sub-Commissioners usually gave little or no attention to wrongs of this kind; in this instance they enabled the tenant to make money by his own misdeeds; they reduced the rent nearly 30 per cent.: 'The d.y.k.es were full of stuff and choked, and the sluice-gate, which we had repaired at our own expense, was all choked up, and the water had been left on the land as long as it could stay on it. I complained and remonstrated with the tenant. I sent for Madden, and in Mr. Lyle's presence I stated this to him. His answer to me was that he was not such a d.a.m.ned fool as to have his land looking well when the Commissioners came to look at it.

'SIR E. FRY: Did that case come before the Sub-commissioner Court?--It did.

'Did you give evidence of what the tenant said?--Yes, sir....

'MR. CAMPBELL: I will tell you, sir, what they did.

'How much did they reduce the first judicial rent?--They reduced the first judicial rent; they cut it down from 70 10_s._ to 51.'[103]

As for pa.s.sive waste, that is, the bad cultivation of farms, the proof is conclusive that it has been seldom, if ever, considered by the Sub-Commissions in fixing 'fair rents.' If we bear in mind that many thousands of acres in Ireland have been well-nigh destroyed by the burning done by tenants, and that hundreds of thousands have been run out by slovenly farming, the injury thus done to landlords has been enormous, especially as tenants' improvements have been exempted from rent against them; the 'candle,' it has been justly said, 'has been melted down at both ends.' I cite two instances, out of hundreds, of the injustice thus done; it has been proved over and over again that, in the case of two adjoining farms, in all respects of the same natural quality, the rent on that which was deteriorated was fixed at a much lower rate than the rent on that which was in good heart; in other words, the landlord was despoiled of the difference, and the tenant had the benefit of his bad husbandry. I take, almost at random, a case in Ulster: 'The Commissioners always value the land as they see it. I have two cases on my property in one townland. One tenant was an industrious, hard-working man, who had his farm in very good order. The second tenant, his wife had died, he was in poverty, with a lot of young children, and he himself was not quite "all there." These two holdings came at the same time before the Sub-Commissioners, and the rents were cut down in each case. When the thing was over, I said to Quinn, who was one of the tenants, "Are you satisfied with your reduction?" "How can I be satisfied," he said, "when my rent is at the same rate as Hurson's rent?" I looked at the return and saw he was quite right.... The deteriorated farm was cut down considerably more than the cultivated farm.' Another remarkable case occurred in the west: 'I had a case, I think decided this year; a farm that was divided between two sons fifteen or twenty years ago; the father divided the land before I came into the management of the property.

'Did they get an equal portion? was it divided into halves?--Into halves, and paid an equal rent.

'Before the Act of 1881?--Before the Act of 1881.

'And was the land of uniform quality?--Yes.

'Had one of these men, before he went into Court, greatly deteriorated the land?--Yes.

'Had the other attended to it?--He had attended to it; he looked after the land very well indeed.

'What reduction did the man who had deteriorated his half get?--The man who had deteriorated his half got 17-1/2 per cent, reduction.

'What did the other get?--The other got 7-1/2 per cent.

'The industrious tenant got 7-1/2?--He got 7-1/2.'[104]

This was obviously gross and crying injustice; but two apologies have been made for acts of this kind. It is said that were a deteriorated farm rented as if it were in a normal state, the tenant could not afford to pay the 'fair rent,' in other words, the landlord is to be despoiled for the tenant's neglect. It is said again that the Sub-Commissioners are bound to value the land as they find it, and cannot estimate it at its intrinsic worth, that is, they are under no obligation to ascertain the truth, and do their duty. Yet this sophistry has been gravely put forward as a justification for palpable wrong, through which the property of landlords has been filched away wholesale: 'The land to this day has suffered a very serious deterioration in value; but we did not deal with that as against the present tenant ...'[105] 'Have you frequently asked the Sub-Commissioners why they do not attach sufficient importance to deterioration?--No, but I heard them saying one reason was that if they put the rent of the farm as if it had been fairly treated, the tenant would not be able to pay that rent now in the deteriorated state.'[106]

The general result of these proceedings as regards exhausted farms has been thus described: 'My view with reference to deterioration is this. Bad tenants, who had ill-treated and worn out their land, undoubtedly, in my opinion, have obtained larger reductions than they would have got had they farmed well. Probably the reason is that were the Land Commissioners to put a rent on the land according to its natural capacity, before a deterioration, it would be an impossible rent for a broken-down bad tenant to pay. This stereotypes the rent in such cases at a figure unfairly low to the landlord; tends to lower the standard of fair rent generally; is a premium on bad farming; and places tenants under a serious temptation to ill-treat their land, so as to secure a larger reduction from the Land Court than otherwise could be obtainable.'[107]

The Sub-Commissions appear to have disregarded the just rights of landlords in another important respect. Unquestionably, in the great ma.s.s of instances, as is inevitable when the land is held in small farms, the Irish tenant had made the improvements on his holding; but the landed gentry, as I have pointed out, had done a good deal since the Great Famine. There is nevertheless cogent evidence that, in 'fixing fair rents,' the Sub-Commissions took hardly any account of the expenditure of landlords under this head. In the case of the estate of the late Mr.

Talbot Crosbie, one of the best breeders of prize stock in the Three Kingdoms, and a country gentleman of parts and intelligence, these significant facts were conclusively proved: 'Table E gives the cases of eight holdings upon which there was an expenditure by the landlord of 1936?--Yes.

'The old rent was 688?--Yes.

'That was reduced by the Sub-Commissioners to 493?--Yes. A reduction of about 30 per cent.

'Notwithstanding the outlay by the landlord in the interval of nearly 2000?--Yes, that is it.

'Table F is a list of eleven farms, on which there was practically no expenditure by the landlord?--Quite so, no recent expenditure. That is, between 1863 and 1887?--There was a good deal done in the famine time, but I did not take account of that.

'You had no evidence in these eleven cases of expenditure for many years prior to the fixing of the rent?--No. In these cases the old rents tot up to 361?--Yes. And the reductions only brought them to 280?--A reduction of 18 per cent.

'In other words, on the unimproved farms the reductions only average 18, while on the improved farms they went as high as 30 per cent.?--Quite so.

'SIR E. FRY: Were these two sets of farms different cla.s.ses of farms?--They were practically of the same cla.s.s.'[108] In the same way, in the case of the estate of Lord Leconfield, a great and excellent landlord in the County Clare, the Sub-Commission made no real allowance for a sum of 20,500 expended on twenty-seven farms. 'Am I right in saying that from 1852 to 1881 there was spent by Lord Leconfield 20,500 in these twenty-seven cases?--The return speaks for itself. That is the result of it.' 'No. 4: As an example of the reductions of the Sub-Commissioners were the rents put back to what they had been in 1852?--Very nearly. There is a difference, I think, of about 1/2 per cent.?--About 1/2 per cent. The rent in 1852 was 2524, and the judicial rents on these farms was 2632.'[109]

I pa.s.s on to the methods pursued by the Sub-Commissioners in actually fixing 'fair rents.' As I have said, they usually heard the cases at length in Court; they usually devoted attention to them. I do not think they set much store on the reports of valuers, on the part either of landlords or tenants; they formed their decisions, as a general rule, on the inspections made by the lay Commissioners of the lands they visited.

This was a much better method, as I shall point out afterwards, than that adopted by their superiors; but obviously inspections of this kind made by officials without local knowledge of the farms, which they examined and valued, could not be a sufficient, or a satisfactory, way to fix 'fair rents.' The great error, however, made, in this matter, by the Sub-Commissions--and in this respect they had the countenance of the higher tribunal--was that they had little or no regard for the evidence which in adjusting rent was a.s.suredly of the greatest importance. They rejected, we have seen, the principle of compet.i.tion in adjudicating on rent; in fixing the 'fair rents' of holdings before them, they refused to consider the rents of the neighbourhood and of adjoining lands, that is, to consider the price of the market. Yet this was but a trifling compared to their capital mistake, one that, indeed, can hardly be explained: in investigating the subject of 'fair rent,' they would not take into account sums paid on the transfer of farms, that is, their tenant right, in other words, as an indication of what ought to be their 'fair rents.' If we bear in mind, as I have said before, that these sums were given subject to the existing rents, which always formed the first charge on the lands, it is most difficult to understand, as we have seen, how this circ.u.mstance did not create a very strong presumption that the rents in question must be 'fair' from the very nature of the case, a.s.suming the Irish tenant to be a rational being. The sums paid for this tenant right were sometimes enormous, not uncommonly equal to one-third or one-half of the value of the fee; I ill.u.s.trate my meaning from the evidence, taken with reference to the estate of Lord Downshire, one of the largest and best managed in Ulster: 'What would you say the tenants' interest would be worth on the Downshire estate?--Well, judging from the average prices obtained by tenants on transfers, my opinion is that the tenants' interest would be worth 1,000,000.

'On the Downshire estate alone?--Yes.

'Now, could that value in the tenants, or that interest in the tenants, exist, unless the rents at which they were holding were low rents?--No, the prices of tenant right are incompatible with high rents. Does it in your opinion point to their being lower than the commercial rents?--Yes, they are lower.'[110] And will it be believed that on this very estate, in the case of thirteen farms, held at the rents fixed by the landlords, the tenant right realised 7296, and yet the Sub-Commission reduced the rents more than 20 per cent.? In other words, they declared that the old rents were not fair, though these lands, when transferred, fetched 7296 paid by their purchasers, subject to the rents in question![111]