The New Irish Constitution Part 12

upwards of sixty of these Acts were pa.s.sed for Ireland, while six sufficed for England. The following reigns were equally productive in agrarian legislation, and the condition of the occupiers became more and more unsettled and unsatisfactory, and "wild doctrines," to quote the words of the eminent authors of a standard work on Irish Land Tenure, published in 1851, were agitated, including "extravagant demands for fixity of tenure and compulsory valuation of rents."

The relation of landlord and tenant, based on tenure that prevailed down to the year 1860, gave no security of occupation to the tenant, and did not protect his improvements, but the cost of ejectment and the legal difficulties of proof that accompanied it exercised a powerful restraining influence in preventing capricious eviction.

Position of Tenants under the Common Law as regards Eviction-in the case of Leaseholds.

During the eighteenth and early part of the nineteenth centuries, while many Irish tenants held under leases or written contracts the great majority were tenants from year to year. Under the Common Law both in England and Ireland, the right of the landlord to recover possession of the land in the case of a lease or written contract depended on the covenants and conditions in the contract, and no ejectment could take place unless for "a condition broken."

In the Case of Yearly Tenancies.

In the case of tenancies not created by writing-tenancies from year to year-there was no power of eviction for non-payment of rent under the Common Law. The tenant of such a tenancy could only be ejected by a notice to quit, which notice must expire with the termination of the year of his tenancy. This system caused much difficulty to the landlord, as the onus lay on him of proving the commencement of the tenancy, and, frequently, even where the tenant had failed to pay the rent, eighteen months pa.s.sed before possession could be obtained.

The Common Law of England and the tribunals that administered it discouraged the forfeiture of tenants' interests, and the landlord was held strictly to the technical proofs required by law.

The Irish Ejectment Code-how it Pressed against the Tenant.

In Ireland a different course was followed. The Irish "Ejectment Code,"

which originated in the reign of Queen Anne, had for its object, to quote an eminent Irish lawyer, the expediting and facilitating the eviction of the tenant. It got rid of every formality by which the old Common Law delayed and obstructed the forfeiture of the tenant's estate. Statute after Statute was pa.s.sed for this purpose. The whole principle of the Common Law was reversed. Chief Justice Pennefather judicially declared that it was a code of law made solely for the benefit of the landlord, and against the interest of the tenant, and that it was upon this principle that judges must administer and interpret it.

Facilities given for Evicting Leaseholders.

The landlord who sought to evict a tenant holding under lease was, down to the year 1816, obliged to proceed in one of the Superior Courts of law, a practice which caused much expense and delay. When the European peace came in 1815, after the Battle of Waterloo, the fall in agricultural prices rendered it difficult, if not impossible, for tenants to pay the high rents which had been fixed while war prices ruled. An Act was immediately pa.s.sed (56 George III., c. 88) which enabled an ejectment to be obtained in the County Courts at a small cost, and without delay. In this respect Ireland was forty years ahead of England, as a similar jurisdiction was not given to the English County Courts until 1856.

Facilities given for Evicting Yearly Tenants.

The Irish Ejectment Code applied only to tenants holding under leases or written contracts. As the country advanced, landlords gradually ceased to give leases, and the great majority of small tenants held from year to year. To meet this state of things the Civil Bill Court Act of 1851 extended the ejectment for non-payment of rent to tenancies from year to year. Under the English statutes no similar power was given, and the English landlord was obliged in the case of non-payment of rent to first serve the tenant with a Notice to Quit, and then proceed to evict him by the slow and costly process of an action in the Superior Courts.

The Land Act of 1860 (Deasy's Act).

From this sketch it will be seen that the law governing the relations of landlord and tenant in Ireland became more and more favourable to the owner. This tendency culminated in 1860, when, by "Deasy's Act" (23 & 24 Vic., c. 154)-which was pa.s.sed through Parliament without amendment-the relation between landlord and tenant was defined as founded on contract and not upon tenure. The Act proceeded on the a.s.sumption that the land is the exclusive property of the landlord, and that the tenant's interest is nothing more than that of a person who has agreed to pay a certain remuneration for the use of the soil for a limited period. It simplified and increased the remedies of the landlord for recovering possession of the land, and rendered efficient the law of ejectment for non-payment of rent and on notice to quit. Thus a default in payment of one year's rent ent.i.tled a landlord to evict the tenant and get possession of the land, with all improvements on it, even where such improvements many times exceeded in value the amount due. So also, by serving a Notice to Quit, the landlord could similarly get rid of the tenant without cause, and take possession of the holding and all its improvements, no matter how valuable these might be, and without having to pay any compensation. The governing principle of the Act was that whatever attached to the freehold became part of the freehold.

Position of the Irish Tenant from 1860-1870.-The Devon Commission reported (1844) that farm Improvements are made by the Tenants.

During the ten years after the pa.s.sing of "Deasy's Act" the position of the Irish tenant reached its nadir. He had no right of any kind, except such as the contract under which he held gave him. Almost all the improvements which rendered the land capable of being worked were made by him. He had built the houses, erected the fences, made the roads, drained and manured the land, reclaimed it from bog or mountain-generally at a cost out of all proportion to the return-and yet he could be turned out without compensation at the will of the owner, either by the service of a Notice to Quit or by ejectment for non-payment of one year's rent. That the tenants in Ireland made the improvements was universally admitted. The Devon Commission (presided over by a leading Irish landlord) in the year 1844, reported:

"It is well known that in England and Scotland before a landlord offers a farm for letting, he finds it necessary to provide a suitable farm-house, with necessary farm buildings for the proper management of the farm. He puts the gates and fences in good order, and he also takes upon himself a great part of the burden of keeping the buildings in repair during the term; and the rent is fixed with reference to this state of things. In Ireland the case is wholly different. It is admitted on all hands, that according to the general practice in Ireland, the landlord builds neither dwelling house nor farm offices, nor puts fences, gates, &c., into good order, before he lets his land to the tenant. The cases in which the landlord does any of these things are the exception. In most cases whatever is done in the way of building or fencing is done by the tenant, and in the ordinary language of the country-dwelling houses, farm buildings, and even the making of fences, are described by the general word _improvements_, which is thus employed to denote the general adjuncts to a farm, without which, in England or Scotland, no tenant would be found to rent it."

Effects of Political and Economic Changes on the Relations between Landlord and Tenant during the Nineteenth Century.

In the early part of the last century the landlords, for political as well as commercial reasons, encouraged the increase of the tenantry. The political system that prevailed gave the landlord who had a large number of tenants considerable power. The economic conditions of the time made small tillage farming productive, and the demand caused by an ever-growing agricultural population increased the compet.i.tion for land, and enabled the rents to be raised. About the middle of the century all these conditions altered. The combined influence of the Famine and of the introduction of Free Trade made it the interest of most landlords to get rid of their small tenants as expeditiously and as completely as possible.

Now came the era of pasture and larger farms. Although the population rapidly decreased, the consolidation of farms kept up the compet.i.tion for land, and rents rose rapidly. The clearances so common from the Famine to 1870 were made in many cases quite irrespective of the non-payment of rent.

Attempts at Reform.-Land Act of 1870.

This state of things led to outrage and constant agrarian disturbance.

Various suggestions for reform of the Land Laws were made, but such proposals were usually denounced as confiscatory. Mr. b.u.t.t's proposal in 1866 that sixty-three years' leases, with power to the landlord of varying the rent, when any accidental circ.u.mstances increased the value of the land, should be given by every landlord to his tenants, was described by Lord Dufferin as "communistic" and "as subversive of the rights of property." Mr. John Stuart Mill, speaking on a Land Bill introduced by Mr.

Chichester Fortescue (May 17th, 1865), denounced the policy of clearing away the small tenants to make room for capitalist farmers. "You cannot,"

he said, "evict a whole nation." Various attempts to alter the law were defeated, until at length, in 1870, Mr. Gladstone took the matter in hand, and pa.s.sed his Landlord and Tenant Act-the beginning of a new Land Code.

The justification for the Act of 1870 was the same as for the Act of 1881, which followed it. The tenant had made all the improvements on the land, and yet had no legal property in them. He was liable to capricious eviction from a holding, the value of which was often mainly due to his labour, and he was subject to arbitrary increases of rent.

The Act of 1870 did three things: (1) It gave compensation for disturbance; (2) it gave compensation for improvements; and (3) it legalised the Ulster Tenant Right Custom.

_Compensation for Disturbance._

I.-Compensation for disturbance was strictly limited to such loss as "_the Court shall find_" to have been sustained by the tenant.

The loss was often held to be the less the higher the rent. The amount of compensation could in no case exceed 250, and was limited to tenancies created after the pa.s.sing of the Act. No compensation was to be given to tenants who had sublet or subdivided their holdings without the consent in writing of the landlord, or to any tenant under a lease for thirty-one years or upwards, and the landlord had a right of deduction from the amount awarded, for deterioration, &c.

_Compensation for Improvements._

II.-The right to compensation for his improvements to be awarded to a tenant when quitting his holding was subject to so large a variety of exceptions as to greatly limit the number of tenants able to take advantage of the provision.

Even when compensation was awarded, the landlord could deduct from the amount any arrears due for rates and taxes and for the loss due to the non-observance of express or implied covenants or agreements, and the Court in awarding compensation was required in reduction of the claim of the tenant to take into consideration the time during which the tenant had enjoyed the advantages of such improvements, and also any other benefits he had had.

_Ulster Custom._

III.-The legalization of the Ulster Custom did not prevent the landlord from increasing the rent from time to time so as almost to destroy the tenant's interest. The Act did not define the custom, and the onus lay on the tenant of establishing that the particular usage under which he held was within it.

The three great reforms introduced by the Act of 1870, namely: (1) The right to compensation for disturbance; (2) to compensation for improvements; and (3) the legalization of the Ulster Custom-could only be brought into operation by proceedings before the County Court Judges, who were thus entrusted with the administration of the Act.

Failure of the Act of 1870, Causes of.

The Act of 1870 failed in its object mainly for three reasons:

(1) The great variety and complexity of the exceptions from the benefits of the Act.