Democracy and Liberty. William Edward Hartpole Lecky

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СКАЧАТЬ every stone of the buildings. If there were improvements on the land, these improvements were specifically mentioned in the printed advertisements that were issued by the Land Court, and they were sold to the purchaser by a judge who was appointed by the Government, and under the direct sanction of the Imperial Parliament. If the property was let on very easy terms; if the leases were soon to expire; if there was a possibility of making a considerable rise of rents, these facts were constantly put forward by the court as inducements to the purchaser, and they entered largely into the price which he gave. He was guaranteed the complete and absolute possession of the land and buildings on the termination of the tenancies in the schedule, the full legal right of determining the existing yearly tenancies. One of the special advantages attributed to the Act was, that it was perfectly clear; that the title which it conferred was absolutely indisputable. It was a parliamentary title, and highest known to English law; a security of the same kind and of the same force as that by which the fundholder or other Government creditor is guaranteed the interest of his loan. Between 1849 and 1870 more than fifty-two millions of pounds had been invested on this security in the purchase of Irish land. About an eighth part of the soil of Ireland is said to be held under this parliamentary title.

Let us now pass for a moment to the position of the existing landlords as it is established by the legislation of Mr. Gladstone. In the first place, the improvements which had been purchased under the Incumbered Estates Act have, by a naked act of confiscation, and without the smallest compensation, been taken from the purchaser, and are now the property of the tenant. A great part of what the State had sold to him, and what the State had guaranteed to him, is no longer his; and it has ceased to be his, not by an act of honest purchase, but by an act of simple power. In the next place, his clear and indisputable right to resume possession of his land when the tenancies upon it had expired has been taken from him. The tenant who was in possession when the Land Act was passed has acquired fixity of tenure. Subject to the periodical revision of rents by the Land Court, and the fulfilment of certain easy statutory conditions, he cannot be removed unless the landlord should purchase from him, by permission of the Land Court, and on conditions which the court prescribes, that right of resuming possession of his land which before the new Act was indisputably his own. The landlord has ceased to be the owner. He has become merely a rent-charger. Again and again in the debates of 1870, when the question of fixity of tenure was raised, the leaders of the Liberal party acknowledged the very obvious truth that such a provision simply amounted to the transfer of the ownership of the soil from the landlord to the tenant, and that such a transfer could only be honestly effected by paying for it in money. ‘By such a provision,’ said Mr. Gladstone, ‘the landlord will become a pensioner and rent-charger upon what is now his own estate. The Legislature has, no doubt, the perfect right to reduce him to that condition, giving him proper compensation for any loss he may sustain in money.’ ‘Inasmuch as perpetuity of tenure on the part of the occupier is virtually expropriation of the landlord, and as a mere readjustment of rent according to the price of produce can by no means dispose of all contingencies the future may produce in his favour, compensation would have to be paid to the landlord for the rights of which he would be deprived.’²⁵ I shall not go into argument on that subject,’ said Sir Roundell Palmer when speaking of this proposal, ‘because that point was exhausted by the Head of the Government when he spoke of fixity of tenure, which, in plain English, means taking away the property of one man and giving it to another. My right honourable friend said that, according to the principles of justice, if we transferred property in that way we must pay for it. No doubt we may take a man's property, but in that case we must compensate him for it.’²⁶

      These principles appear to me perfectly true, and indeed self-evident; but they did not prevent the legislators of 1881 conferring fixity of tenure on the present tenant without granting compensation to the landlord, and from that time the first principle of much reasoning in Parliament about Irish land has been that it is a dual ownership; that the landlord is nothing more than a partner, or, as it is now the fashion to say, ‘a sleeping partner,’ in a joint possession, whose interests in every question of dispute should be systematically subordinated to those of the other partner. And this phraseology represents with much truth the position which the holders of land under parliamentary or other title in Ireland now hold.

      In the last place, the Legislature has deprived the landlord of the plainest and most inseparable rights of ownership— the power of making contracts, offering his farms at the market price; selecting his tenants; prescribing the period and the terms for which he will let his land. A court is established with an absolute power of deciding the amount of rent which the tenant is to pay, and the landlord has no option of refusing, or seeking another tenant. It is often argued that the reduction enforced by the Land Courts is, on an average, somewhat less than that which has taken place in England, and that the Irish landlord has, in consequence, no reason to complain. There is, however, a great difference between a country which is mainly pasture and a country which is in a large degree wheat-growing; between a country where farms are constantly thrown into the hands of the landlord, as no tenant will take them, and a country where the average price of tenant-right is more than ten years’ purchase of the existing rental. There is also a clear difference between a reduction imposed by an act of mere power, and a reduction which is the result of the free bargaining of two contracting parties.

      It might have been supposed that a legislature, in conferring this tremendous power upon a new court, would take great care at least to minimise its injustice by strictly defining the principles on which it was to act, and insisting that the reasons for its decisions should be clearly and fully given. Mr. Gladstone, however, with great skill, succeeded in persuading Parliament to abstain from giving any definition or any approximation to a definition of a fair rent, leaving this matter completely, or almost completely, to the arbitrary and unregulated action of the court. The single exception was a provision that no rent must be allowed for improvements made either by the tenant or by his predecessor in title. The one real test of the value of a thing is what men are prepared to give for it, and this market test was absolutely excluded from the valuation. Another possible test was the long continuance of the existing rent. The Bessborough Commission, which laid the foundation of the Act of 1881, proposed ‘that a rent which was paid at any time within the last twenty years, and which continued for not less than ten years to be regularly paid,’ should be always assumed to be a fair rent, unless the conditions had altered to the detriment of the tenant. Another proposal was, that rents should be deemed fair, and should be exempted from the jurisdiction of the court, if they had not been raised during the preceding twenty years. In spite of the great and almost unparalleled increase of prosperity in Ireland during that period, it appears that this proposal would be applied to no less than 4,700,000 acres of Irish soil.²⁷

Both of these proposals, however, were rejected. Many rents were reduced which had been paid without a murmur for thirty or forty years, and in spite of clear evidence that the chief articles of Irish agricultural produce had during that period largely risen, and that the opening of new markets and the improvement of communications had materially added to the value of the farms.²⁸ Many rents were reduced although it was shown that, within the last few years, the right of occupying the farms at these rents had been purchased by the tenant at a large sum under the Act of 1870.²⁹ The decisions were virtually and mainly in the hands of the subcommissioners, who were to a large extent young barristers and county attorneys; many of them with scarcely any previous knowledge of land, or of the conditions of agriculture in the province in which they were adjudicating. They were sent to their task—or, as one of the ablest of them expressed himself, ‘let loose upon property'—without any instructions;³⁰ and they usually gave their decisions without assigning any reasons. It was clearly understood that their business was to reduce, and not to regulate, rents. Their popularity or unpopularity depended on the amount of their reductions, and they knew that the wildest expectations were excited. One of the great perplexities of the lawyers who practised before them arose from the extreme difficulty of discovering the principle or reasoning on which they acted. One fact, however, which was clearly shown was, that the artificial depreciation of land arising from agrarian agitation and outrage entered largely into their estimate.³¹ It would be impossible to conceive a greater encouragement to such agitation; while the landlords were fined by the Government СКАЧАТЬ