The New Irish Constitution Part 11

per head, and in Scotland for 2s. 5d. per head. In Ireland there is one policeman for every 365 inhabitants, while in England and Wales there is only one for every 727 inhabitants.(112)

(3) _Law and Order_

The maintenance of law and order is the first duty of a Government, and if it could be proved that the proposed measure of Home Rule for Ireland would lead to crime and disorder, the cause would lose many of its more prominent adherents. To those, however, who are interested in the administration of the law-and particularly the criminal law-it is obvious that Home Rule will have the effect of still further diminishing crime, and will also enable considerable saving to be effected in the sums now spent on law charges and criminal prosecutions. At the present time, and indeed for many years past, Ireland has been practically crimeless. The Judges at the Spring a.s.sizes, 1912, were unanimous in describing all the counties in Ireland, except two, as peaceable and orderly, and free from serious crime. In two counties-Fermanagh and Carlow-there were no cases whatever for trial, and it was only in Galway and Clare that dissatisfaction was expressed with the present state of affairs, and even in those counties the affected districts comprised a very limited area.

The following table taken from the report of the General Prisons Board for Ireland for 1910, shows how the Government have been able to close prisons in consequence of the diminution of crime and reduction in the number of prisoners:

"The number of prisons and bridewells," says the report, "under the control of the General Prisons Board on the 1st April, 1878-the date when the local prisons and bridewells were transferred to the Board-and now is as follows:-

1878. 1910.

4 Convict 1 Convict Prisons. Prison.

38 Local 1 Joint Convict Prisons. and Local Prison.

95 Bridewells. 15 Local Prisons.

6 Bridewells."

The Unionist a.s.sociations of Ireland have recently published a handbook called "The Home Rule 'Nutsh.e.l.l' Examined by an Irish Unionist" in which it is stated (p. 69) "The only crime that is complained of in Ireland is the organized crime due to the inspired agitation of the United Irish League. Without that Ireland would be _comparatively crimeless_." No proof has ever been given that the United Irish League has taken any part in the organization of crime, and beyond all doubt in many instances it has been instrumental in preventing it. It cannot, of course, be denied that in certain parts of the country instances of boycotting and cattle driving occur, but such occurrences will certainly not increase, and are more likely to cease altogether when Ireland is governed by an Irish Executive chosen by the people, and responsible to the people for the good government of the country. The Unionist complaint is, not so much that an Irish Executive will not be able to enforce the law, but that it will be unwilling to do so in certain cases, and will exercise a dispensing power as to whether the decrees of the Courts shall or shall not, in particular cases, be enforced.(113) If it were within the power of the Executive to prevent the police or military from being called upon to protect the civil officers of the law in the discharge of their duties, it would, no doubt, be possible to paralyze the administration of justice, but it is well settled that a sheriff, or anybody charged with the execution of a writ of a competent Court, has the right to require the a.s.sistance of constables, and indeed of any of the liege subjects of the Crown, and that the Executive has no power to prevent such a.s.sistance being given. This was laid down by the Common Law Judges in England in the well-known case of "_Miller_ v. _Knox_"(114) and still more emphatically by the Lord Chief Baron (Palles) of the Exchequer in Ireland in the case of the Woodford prisoners at the Connaught Winter a.s.sizes of 1886.(115) The Lord Chief Baron said:

"I desire it to be thoroughly understood that the execution of the decrees of the judiciary in this country does not depend-as it does not, I believe, in any civilised country-upon the will of the Executive who, for the moment, may happen to be in office. Into the execution of our writ we cannot allow any question of party politics to enter. If the law be wrong, let the law be altered by the Legislature, and the judges will, at the moment, carry out the law as altered. They cannot look beyond the law. They cannot, in the administration of that law, contemplate alterations at a future time. Their sworn duty is to give to him who asks it that which he is ent.i.tled to by law. It is not competent to them, or to any other person, to go behind the law and to ask whether, in his own opinion, or in the opinion of others, the law is just or unjust. With them the only consideration must be that is the law.

They are bound to p.r.o.nounce the law. From that p.r.o.nouncement there is an appeal to the highest court in the realm. But when judgment is once given-the judgment of a court of law, acting within the scope of its jurisdiction-it is not competent to anyone in this kingdom, I care not how high he may be, to say that a writ regularly issued on foot of that judgment shall not be executed, or to prevent those who by law are bound to aid in its execution from giving that aid and a.s.sistance which the Const.i.tution requires."

In 1893 the County Inspector of the Royal Irish Constabulary in County Kerry, by the direction of the Executive, refused the a.s.sistance of the Constabulary to the Sheriff of the County, when he desired to execute certain writs of the superior Courts in the night time. The Sheriff thereupon applied to the Queen's Bench Division for an attachment against the County Inspector, and the Court unanimously made the order.(116) The Lord Chief Justice (Lord O'Brien) in giving judgment said (p. 238):

"I wish to point out that, according to the opinion of all the judges who were called in to advise the House of Lords in the case of _Miller_ v. _Knox_,(117) refusal, unjustified by the occasion, as, in my opinion, the refusal in the present case was, to protect the sheriff in the execution of his duty, when protection is sought by him, in the honest exercise of his discretion, to enable him to discharge his duty in the execution of civil process, is punishable, by indictment, by criminal information, and, as was established in _Miller_ v. _Knox_ by the summary process of this court. The official, be he Under Secretary or Chief Secretary (I do not, of course, refer to his Excellency the Lord-Lieutenant), who directed Mr. Waters not to comply with the sheriff's demand for protection, has rendered himself amenable to the criminal law, is liable to be tried by indictment, to have a criminal information exhibited in this court against him, or to be attached by the summary process of this court."

There can be no doubt, therefore, that the Irish Executive will be bound to give a.s.sistance and protection to sheriffs or other lawful officers executing any legal process of a competent Court, and if such a.s.sistance is not given the Courts will be able to a.s.sert their supremacy in the various ways pointed out by the Lord Chief Justice.

A great deal of capital has recently been made in the Unionist Press on account of the promulgation of the _Motu Proprio_ "_Quantavis Diligentia_." It has been a.s.serted that this decree applies to Ireland and will necessarily embarra.s.s catholic officials in the discharge of their public duty. The Roman Catholic Archbishop of Dublin has, however, fully explained the meaning of the decree, and has shown that it does not apply to any country where there has prevailed against it, as there has long prevailed against it in Ireland, a custom invested with the conditions required by the Canon Law.(118) He further says (p. 36):

"The excommunication of the clause _Cogentes_, is not decreed against all who oblige lay judges to compel the attendance of ecclesiastics in their courts. It is decreed against those who do this in violation of the Canon Law. There must first, then, be a canonical offence. It is to that offence that the clause _Cogentes_ attaches the penalty of excommunication. But, there being no canonical offence in the discharge of their duty by our Catholic Judges, and Catholic Law Officers of the Crown, our Catholic Police Magistrates and Catholic Policemen, and our laity in general-who were so ludicrously paraded before the public a few weeks ago as the unhappy victims of the _Motu Proprio_-there is in their case no offence to which an ecclesiastical penalty can be attached, and so, no ecclesiastical penalty is incurred."

Nothing is to be feared in Ireland from the _Motu Proprio_ "_Quantavis Diligentia_," and there is really no necessity for the restrictions contained in Section 3 of the Bill, although no person will object to their insertion as a matter of precaution. The Unionists profess to be alarmed at the prospects of Ireland under Home Rule; but when their fears are a.n.a.lyzed they are seen to be illusory, and when their arguments are considered they are found to amount to a single a.s.sertion that a great measure of reform is not to be pa.s.sed, and the will of the people is not to prevail, because a small minority is irrevocably opposed to any measure which will give to the Irish people power to manage their own affairs.

When Unionists complain of an occasional case of boycotting or cattle-driving-and it is almost all they have to complain of now-they should read Lord Durham's report on Canada in 1838, and they will see how favourably Ireland, even in its darkest hour, contrasts with the Canada of that day. Lord Durham adopted the courageous policy of trusting the people, and his policy brought peace, prosperity and contentment to that country. Mr. Asquith's great measure is an embodiment of the same policy, and will be attended with the same results, and indeed the situation could not be better summed up than it was by Mr. John Redmond in the House of Commons three years ago.(119)

"As it happened in Canada, so it will happen in Ireland-when you throw responsibility on the shoulders of the people, and not till then. Then respect for law will arise in Ireland; then confidence in the administration of justice will arise; and when that day comes, I am perfectly convinced that Ireland will become the most peaceable and most law-abiding, as she is to-day the most crimeless, part of your Empire."

VII.-The Present Position Of The Irish Land Question. BY JONATHAN PIM, K.C.

INTRODUCTORY

The following chapter contains an account of the change which has been wrought by legislation in the position of the Irish tenant farmer and labourer during the last forty years. The change is large-the benefit and improvement equally great. The task is, however, not much more than half completed. The holdings purchased, or agreed to be purchased, by tenants under the Purchase Acts amount to about 378,000. There remain to be purchased about 227,000. The Congested Districts Board have done good work in the congested districts, but what has been done has hardly gone beyond the experimental stage. The experiments have, to a large extent, succeeded, but their very success enlarges the vista of work to be done in the future. The work of the District Councils in providing better dwellings for agricultural labourers is perhaps more nearly completed.

Nevertheless, much still remains to be done.

Under the second section of the proposed Bill "to amend the provision for the Government of Ireland," the "general subject matter of the Acts relating to Land Purchase in Ireland" is reserved. This would seem to include the Land Purchase work of the Congested Districts Board, but it is doubtful if it would include any part of the Labourers' Acts. Taken in conjunction with the whole scheme of the Bill, and especially with its financial provisions, the wisdom of this reservation is evident. That work which has gone so far and has been so beneficial in its operation should be stopped, or even hampered, in its development, would be an injury which, even the undoubted benefits a Home Government will bring with it would scarcely out-weigh. No doubt Ireland, if thrown altogether on her own resources, could, after a few years' time, continue the work of land purchase and could finally complete it, but the interregnum would be most mischievous. All those who had not purchased would be dissatisfied, and the Irish Government would be subjected to a pressure which they would find it hard to resist. The danger would be two-fold. On the one hand the Government might attempt to raise money at an excessive rate of interest and would thereby embarra.s.s themselves financially; on the other hand an attempt might be made to force the Government to pa.s.s a "Compulsory Purchase Act" and to fix the price of purchase at a much lower figure than could be obtained under a system of free agreement. The Imperial Government itself runs no risk in reserving Land Purchase; on the contrary, it will run less risk under Home Rule than it does now. At the present moment, there is due to the Treasury a sum of about 71,000,000, money advanced for the purchase of land. The amount of the annual instalments payable on this sum is about 2,226,785, and on the 31st of March, 1912, there was due for arrears the sum of 44,156.(120) The purchase annuitants have up to the present discharged their obligations in a most faithful and honest manner. There is not the slightest reason to think that they will act differently in the future, but if, as some political prophets seem to consider possible, they do, in the future, strike against the payment of the instalments they themselves will be the princ.i.p.al sufferers, for under the proposed Bill the Treasury may, out of the sum to be transferred to the Irish Government, before making the transfer, deduct each year the amount then due on account of purchase annuities. This, if it happened to any large extent, would render fresh taxation necessary-a contingency which would certainly not be desired by the Irish Government. The proposed Bill does not contain any specific provision giving power to the Irish administration, in the case of local repudiation, to make the counties in which repudiation had taken place repay to the Irish Treasury such sums as they had been forced to pay to the Imperial Treasury. If such a provision were inserted, it would make the position of the Treasury extremely secure.

When Mr. Gladstone introduced his first Home Rule Bill in 1886, the land war was at its height. The country was, on the one hand, full of intense and unreasoning bitterness and resentment, and, on the other hand, of unreasoning terror of the consequences of the change of administration.

There are many persons, to-day convinced believers in the policy of Home Rule, who do not regret that the Bill of 1886 failed to pa.s.s. Things were not very much better in 1893, although, owing to the Land Act of 1881, the land war was slowly losing its fierceness. Since then a slow, but no less deep and far-reaching, change has pa.s.sed over the tenant farmers of Ireland. The bitterness and discontent which rightly possessed them during the whole of the last century have at last given way to more kindly and contented feelings. This is due in a great measure to the large remedial measures pa.s.sed first by Mr. Gladstone's Government of 1880 to 1895, and afterwards by the Conservative Administration between 1896 and 1905; but it is perhaps even more due to the feeling which has slowly grown up among the agricultural population that, at last, they are being listened to, and that their wants are being attended to, imperfectly, no doubt, but still with sympathy and with a desire to do what can be done to meet them.

Whatever dangers may attend the granting of Home Rule now, they will not be the dangers which terrified and controlled public opinion in 1886 and 1893. Almost all the confusion, trouble, and crime of last century was due to the vicious absurdity of the Irish land code and to the miserable condition of the Irish tenant farmers produced thereby. That is now changed and Ireland has become a quiet and comparatively crimeless country. The danger which many foresee under a Home Government is of a different kind. It is rather that the overwhelming peasant vote may render the administration unduly parsimonious and so unwilling to place any additional burden on the owners of land that a kind of political stagnation may arise therefrom. Ireland cannot, of course, be kept permanently out of the great movements of European thought, but, for the moment, it may be safely alleged that in no part of Europe is property safer.

Part I. The Fair Rent Acts and the Land Purchase Acts.(121)

Two Cla.s.ses of Occupiers of Land in Ireland-Economic and Uneconomic.

The occupiers of Irish agricultural holdings are of two cla.s.ses-those whose farms are economic, and those whose farms are uneconomic. By an economic holding is meant one of sufficient productive capacity to support a family at a reasonable standard of comfort without help from outside sources. One cla.s.s holds land of a fertility, quant.i.ty, and situation that enables the occupier to live at a reasonable standard of comfort out of the produce, and pay a rent. The other cla.s.s also lives on and partly out of land, but land of a character, quant.i.ty, or situation that will not support a family at a proper standard of living without extraneous help.

In the case of the first cla.s.s, the fairness of the rent is the most important consideration; in the case of the second, the land and rent are often minor elements in the struggle for existence. The land is either so limited in amount or of so unproductive a character that, without outside help such as the wages of labour, or help from friends and relations, the income of this cla.s.s would sink below the line necessary for subsistence, and actual starvation would ensue. It has often been pointed out that agricultural rent is in many cases paid in Ireland for farms out of which no true economic rent is earned. This means, as every economist knows, that, were the ordinary and necessary cost of production, including the remuneration of labour, deducted from the returns from the cultivation of land, no surplus would remain for the payment of rent. Consequently, the rent paid for such land is not true agricultural rent. It is more of the nature of house-rent paid by working men in towns, who, out of the wages that they earn in their various employments, spend certain portions in food, clothing, and shelter. But the Irish peasant, who tries to support his family on an insufficient farm, has not the advantage of having a demand for his labour at hand. He has either to emigrate, to migrate, or to live below the proper standard of decency and comfort. Consequently, he is neither in the position of the farmer nor of the labourer. He is the occupier of a piece of land on which he builds his cabin, and pays a rent which is supposed to be agricultural, but which is really not earned out of the land, but is paid out of whatever other supplementary income he is able to obtain by working for wages in other countries; or by contributions from outside sources. The Irish Fair Rent Acts are supposed to deal only with agricultural holdings. The rents fixed under them are intended to be agricultural and economic rents. It is evident to anyone who has examined the circ.u.mstances of the small holdings of the West of Ireland, that the rents a.s.sessed on them under the Land Acts in many cases are not agricultural rents, but are payments more of the nature of site rents, or the rents of non-agricultural holdings, which were not supposed to be subject to the provisions of the Irish Fair Rent Acts at all. Were the Land Acts strictly administered, unquestionably the greater portion of the small holdings on the western seaboard and other parts of Ireland would have been excluded, and applications to fix agricultural rents on them would have been dismissed.

Confusion of Treatment of Occupiers of Economic and Uneconomic Holdings.

The importance of the view here put forward lies mainly in the fact that until the pa.s.sing of the Act of 1891, under which the Congested Districts Board was created, no attempt was made to distinguish between the two cla.s.ses of occupiers of Irish land. The occupiers of economic and uneconomic farms were subject to the same laws, and were treated in the same manner. No attempt was ever made to distinguish between the man who could make his rent out of his land and the man who could not. Both were included in the Fair Rent provisions of the Act of 1881, as it was administered, and a rent was a.s.sessed on what was practically the site for a cabin as if it were a farm. This confusion of treatment of two different problems renders it necessary to trace the evolution of the Irish Land Acts if we are to understand intelligently the problem that presents itself in dealing with congestion in Ireland, and it is accordingly proposed to sketch shortly the steps by which Irish land legislation has advanced, and how it at present deals with the various cla.s.ses of holdings that have to be taken into consideration.

Special treatment for the congested districts was not thought of in the earlier remedial Land Acts. The Act of 1881, if strictly administered, as we have seen, would have excluded most of the holdings in such districts.

After twenty years' experience of this Act it was found that its provisions, even though amended repeatedly, did not meet the special difficulties. The Congested Districts were not withdrawn from the operations of the various Land Acts-merely additional powers were given for ameliorating the condition of the people in the defined localities.

The Land Act of 1881 is naturally regarded in Ireland as the sheet-anchor of the peasant-as the Magna Charta of his rights. On the other hand, it has been looked on by many land-owners as an unjustifiable invasion of their rights, and it has often been blamed for results which it recorded rather than caused. To justify that Act of 1881, we must understand the preceding conditions that governed the tenure of land in Ireland.

Complaints against Irish rents are not confined to recent years or to the last century. A continuous stream of emigration of Protestant dissenters from Ulster went on during the early part of the eighteenth century, and the Irish Government of the day was much concerned at losing so many of their most loyal citizens. In 1729 the Lord-Lieutenant forwarded a report on the subject to the King, which states:

"One great reason given by the people themselves for leaving the Kingdom is the poverty to which that part of the country is reduced, occasioned in a great measure, they say, by raising of rents in many places above the real value of land, or what can be paid out of the produce of them, if any tolerable subsistence be allowed to the farmers using their utmost industry."

Complaint was also made of the uncertain tenures, the short leases, and "the usual method of late when lands are out of lease," which was "to invite and encourage all persons to make proposals and set them to the highest bidder without regard to the tenants in possession."

Relation of Landlord and Tenant in Ireland prior to 1860.

The relation of landlord and tenant in Ireland was, down to the year 1860, based on tenure, not on contract. The old feudal tenures imported from England were, during the last two or three centuries, modified and altered by the existing Irish customs. The result was that a period of much doubt and confusion arose, and an extraordinary collection of Acts dealing with land was placed on the Irish Statute Book. In the reign of George III.