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| THE IRISH LAND BILL
A
O F 18 7 O,
Lords' and Tories' Amendments thereon,
BY
(A*.* vutta , ~ £o wº,
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SYDNEY C. BUXTON,
Author of “Political Questions of the Day,” &c.
Printed for the Ziberal Central Association, 41 and 42, Parliament
- Street, Westminster, S. W.
PUBLISHED BY
THE NATIONAL PRESS AGENCY, LIMITED,
13, IVhitefriars Street, E. C.
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A H A N D B O O K.
POLITICAL QUESTIONS OF THE DAY,
WITH THE ARGUMENTS ON EITHER SIDE.
THIRD EDITION.
Revised, Enlarged and partly re-written. (Shortly.)
Opinions of the Press On First and Second Editions.
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would do well to consult Mr. Sydney Buxton's Handbook.”—Echo.
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ETC. ETC.
LONDON : JOHN MIURRAY.
A L S O
( 0 W E S II IL L I W G )
The Arguments for and against the Three F.'s
WITH A BRIEF EXPOSITION OF
T EI E L A N D A C T OF 1 8 7 0 .
(Enlarged from the “CONTEMPORARY REVIEW " of February, 1881.)
*
LoNDON : ALEX. STRAHAN & CO. (Limited).

*… 24.f
ºf 24- “…’ -
P R. E. F. A C E .
This Article has been written at the request of the Liberal
Central Association. It is the result of a very careful perusal
and examination of the Debates in both Houses of Parliament
on the Irish Land Bill of 1870; and of the interesting
Reports on Irish Land which have just been issued by the two
Boyal Commissions, the one appointed to inquire into agri-
-cultural depression generally, the other appointed especially to
inquire into the working of the Irish Land Act of 1870. More-
over, I need hardly say that I have endeavoured to study as
many as possible of the pamphlets, articles, and books bearing
i
“on the subject, which seemed to be written with knowledge or
authority—some lack both these advantages. I hope it may
be found that I have fairly described the Land Bill of 1870, the
amendments, and their results; and have neither overstated the
“case nor done an injustice to anyone.
7, GROSVENOR CRESCENT,
March 5th, 1881.
te º The only references given will be to the Reports of the Royal Com-
‘missions; those to Hansard and other authorities will be omitted.
a vºk-
#D
//4, 3
877
C O N T E W T S .
PAGE
I.—(a) Ulster Custom tº ſº ºn tº º º tº º s tº º ſº ... 6, 16, 18, 22.
(b) Other Customs ... ... * * * - tº tº ... 6
II.-Tenants not under Custom ... tº tº e a e e ... 6-14
Compensation for Disturbance * @ & © tº º ... 6-12
(A.) Scale of Damages ... • a s ... 7
Exemptions from Damages ... ... 7
Limit of Contracting out of Act, &c. 8
(B.) Assignment * * * * @ $ 4 tº º ... 8, 9
(C.) Eviction for Non-payment of Rent, &c. 9
(D& E) Sub-letting and Sub-dividing, &c. ... 11
III. Tenants not under Custom. Compensation for Improve-
ments tº º º gº tº tº * * * © tº º * * * * * * ... 12-14
(i.) Presumption in matter of Improvements
and Exceptions... tº º tº * * * * * *
(ii.) Compensation for Improvements, and
Qualifications ... • . . . . . . ... 12, 13s
Contracting out of Act * c = ... 13
(iii.) Registration of Improvements... ... 14
*
IV.-Court of Arbitration ... • * * * - e. * & gº ... 14, 15.
Mode of Procedure e - e. we ſe & ... 14
Equities Clause ... º º ºs & G & ... 14
W.—Supplemental Provisions—Amendments ... ... 15
Notice to Quit •- * * * tº º ſº ... 15
Distress ... & Q @ tº tº e s & ſº ... 15
WI.-Other Provisions of the Bill—“Bright's Clauses,” &c. 15
WII.-Government Regrets at Concessions... as tº gº ... 15, 16.
VIII.-Summary of Retrograde Amendments * * * ... 16
IX. —Reports of Royal Commissions, shewing Points of
Failure of Act ... º º º, º º tº dº tº tº ſº º ... 17
X. —Defects of the Land Act due to the Amendments ... 18-23:
(1 & 2.) Rent * - G & e Q tº $ & ... 18-20°
(3 & 4.) Capricious Eviction... ... * e ºs ... 20
Compensation insufficient ... ... 20
(5 & 6.) Contracting out of Act ... . ... ... 20
(7.) Unwillingness of Tenant to leave
Holding—Submission to Raisings
of Rent ... © º º º “º e tº a e ... 21
(8.) Complicated Provisions of Act ... ... 21
(9.) Ulster Usages ... a ſº e is º e tº a º
XI—General Effect of the Amendments on the working
of the Act ... Q & • ‘e tº e - e. ... ." ... 22, 23.
ë
TEIE IRISH LANTD BILL OF 1870
AND THE AMENDMENTS THEREON.
The purpose of this paper is twofold—first to explain the
provisions of the Irish Land Bill of 1870, to point out how far
it would have gone if it had been allowed to pass on the lines
of its original introduction, as improved by those amendments
(few enough), which were drawn in the spirit of the original
intention of the Bill; and secondly, by enumerating the
amendments imported into the Bill, which counteracted its
original force and intention, to shew how a small section of the
Tiberals, the Tories, and the Lords are in a large measure
responsible for the partial failure of the Land Act of 1870.
Few, probably, would deny that the Act has been to a
certain extent inoperative in attaining security, contentment,
and peace. This result has, I believe, been largely due to the
fact that those parts of the Bill which were most favourable
to the tenants were weakened and attenuated, while those
inserted in the interests of the landlords were strengthened ani
enlarged—this assertion I would endeavour to prove.
For this purpose it will probably be most convenient to take
each detailed portion of the Bill and examine it separately with
its amendments.
The Bill, as the Government proposed it, would:— *.
I. (a) Have legalised absolutely the usage prevalent in Ulster
..and which was known as the Ulster Tenant-right Custom. The -
custom had become a virtual covenant, and was to be converted
into a law. The Bill was not intended “to modify the custom,
to inquire into its varieties, to improve or to qualify it; it was to
be left to be examined as a matter of fact, and the judge would
have nothing to do but to enforce it.”
The Bill mentioned only a single usage, the usage well
known as the Ulster Tenant-right, differing, no doubt, in detail
in certain districts, but containing the substance of its
advantages, namely, “payment to the predecessor, improvement-
36y the tenant himself, and compensation for dispossession.”
“On the motion of Mr. Cross, however, the word “usages” was
6 The Irish Land Bill of 1870,
v substituted for “usage.” The consequence has been that great
confusion and litigation have arisen, and any uniformity of
treatment has been rendered impossible. Tenant and landlord
have come into direct conflict, in the attempt on the part of the
former to prove that he holds and can claim under a certain
custom, and the endeavour on the part of the latter to limit and
restrict these claims as far as possible. Instead of the varying
usages gradually gravitating towards one good model, which
would have ruled the decisions of the Court, they have tended to
differ still further, and confusion has become worse confounded.
(See also p. 22.)
(5) Outside Ulster, the Bill legalised any custom which
revailed, and which “in all essential particulars corresponded
with the Ulster Tenant-right Custom.” Moreover, any tenant
coming under this, or the Ulster custom, might, if he chose,
renounce the benefits of the custom and elect to claim compensa-
tion and damages under the other sections of the Bill.
With regard to other tenants not under usage or custom, it was
intended originally, as far as possible, to extend to them the
benefits of the Ulster Tenant-right system. As Mr. Chichester
Fortescue said on the second reading, “We can legalise a custom,
we can enforce it, we can forbid it, but we cannot create it.
Another thing, however, we can do—we can imitate it, and that
is, I contend, what we have done so far as was possible
in the case of the Ulster custom. I believe the strength and
merits of the Bill lie mainly in the fact that it is not an artificial
measure drawn by ingenious politicians or draftsmen, but that it
is based on the best usages of the best Irish estates, of which
usages Ulster presents us with the most perfect specimens.”
“We are also of opinion that the Ulster custom is not
capable of being slavishly copied without regard to the circum-
stances of other parts of Ireland.”
That is to say, it was intended to give the tenant security
of tenure by placing a fine on eviction, and to encourage-
hiru to investment in the soil by giving him compensation for
improvements. The amendments, however, forced on the
Government during the passing of the Bill, considerably reduced
both the security of tenure, the encouragement to investment,
and the general freedom of the tenant.
II. As regards security of tenure :—A. The tenant, if dis--
turbed in his holding by the act of the landſord, was to be entitled.
to such damages, to be paid by the landlord, as the Court might
F.
* As a matter of convenience and simplicity, I have throughout used:
the word “damages” to represent compensation for disturbance, and the word,
“compensation” as representing compensation for improvements.
And the Amendments thereon. 7
think just for the loss sustained by him in quitting his holding.
A sliding scale of maximum damages was inserted, rising from
cases in which the holding is valued at £10 and under, and
where the amount awarded was not to exceed seven years' rent, up
to holdings of over £100 valuation, where it was not to exceed
two years' rent; no absolute maximum amount of damages being
stated. This scale was intended originally to include compensa-
tion for improvements (other than "permanent build-
ings and reclamation of waste land) as well as
damages for disturbance, but when the former was
separated from the latter the scale was reduced—to
judge from the debates, the Government were constrained to
reduce the scale further than they would have wished—and it now
stands at a limit which, for holdings valued at £10 and under,
allows seven years' rent as damages (though this is partially in-
tended to cover compensation for improvements also on these
small holdings), and on a sliding scale rises to holdings of above
£100 valuation where one year's rent is allowed as maximum
damages ; a maximum figure of £250 was also inserted.
Even this scale, however, did not content the Lords, who greatly
reduced it, but after some bandying of the Bill backwards and
forwards between them and the Commons, they were induced to
re-insert the amended scale of the Government.
The tenant in a higher class of the scale was to be allowed,
at his option, to claim damages, on so much only of his rent as
would bring him into a lower scale. This proviso was intended
to prevent the anomaly which would have otherwise arisen of a
tenant of a larger holding receiving a considerably smaller
amount of damages than one holding at a lower valuation.
The Lords at first objected to this proviso, and struck it out, but
after considerable discussion and negotiation the clause was
re-inserted with some restrictions. Certain provisoes and excep-
tions to the clause were originally inserted and were retained;
namely that:—
(i.) Any tenant who sub-let or sub-divided his holding without
the consent of his landlord, or who, after he had been prohibited,
let the same in con-acre, save for the purpose of being solely
used for the growing of potatoes and other green crops, was not
to be entitled to any damages.
The Lords were desirous of prohibiting all letting in con-
acre, but consented to allow it, subject to the prohibiting words,
though objecting to the latter part of the sentence, which
refers to green crops.
(ii.) It was intended that a lease of not less than thirty-one
years should be the equivalent for damages for disturbance
The landlord and tenant were, as an alternative, to be free to make.
8 The Irish Land Bill of 1870,
such leases. Mr. Gladstone said, however, that “the Bill was
framed on the one hand so as not to compel leases, and on the
other as in no way to discourage them.”
(iii.) Any arrears of rent, not exceeding three years’ rent, due
to the landlord from the tenant or his predecessor in title, from
whom he derives by operation of law, and also any taxes due by the
tenant, were to be deducted from the moneys payable to the
tenant.
The former words in italics were intended to protect the
tenant from old claims for arrears of rent being brought against
him, which, through lapse of time, might be thought to have
been cancelled; and to prevent the damages which might be given
him under Section 9"—damages for eviction for non-payment of
rent on “special grounds "-from being swallowed up by counter
claims for exorbitant back rent. The latter words initalics were
intended to protect the tenant frcm liability for the debts
incurred by a predecessor from whom he had not received the
tenancy by will.
The Lords, in the interest of the landlords, struck out both
these safeguards, and they were not re-inserted.
(iv.) It was intended that all existing and future yearly
tenants (not holding under any custom) should, whatever
might be the value of their holdings, come under the provisions
of the Disturbance Clauses. By Section 14 it was, however,
provided that tenants of above £100 valuation might, if they
liked, contract themselves out of the Act.
Unfortunately, however, the Government were forced, under
pressure and, as Lord Hartington said, “with regret,” (a) To
fix for existing tenants a limit of valuation of holding of
£100, below which only could they claim the benefits of the
Disturbance Clause—thus placing existing in a worse position
than future tenants; and (b) To reduce from £100 to £50 the limit
of valuation of holding, above which any tenant might, if he
chose, or if he were forced by his landlord, contract himself
out of all the benefits of the Act—thus greatly reducing the
protection afforded by the Act, and leaving tenants above
£50 to the tender mercies of the landlord.
Moreover, the Government had to accept, and apply to all
tenancies, a limit of twenty years, after which “freedom of
contract,” so-called, was again to resume its full sway. (See
also p. 20.)
B. It was not intended to deprive the tenant of the right
which had been conceded to him by former laws, and which
* For the sake of convenience the sections referred to are numbered as they
stand in the Act, and not as they were in the Bill.
And the Amendments thereon, 9
partially gave him the protection which a lease would have
afforded, of assigning his tenancy to a successor, with or without
the consent of the landlord; though the landlord could rid
himself of the assignee if he so desired by giving him notice to
quit. The existence of this right of assignment, under the altered
state of things, with damages for disturbance, would doubt-
less have fostered a payment on the part of the assignee to
the outgoing tenant for the goodwill, and thus a species of
tenant-right would have sprung up gradually, easily, and
without encroachment on the rights of the landlord, which would
have been sufficiently protected by the Courts, who “would have
to consider under what circumstances an assignment had
been made, and whether the assignee was or was not
-a good and solvent tenant.” But the Lords would not
consent to this liberty of assignment, and at first inserted words
which allowed no assignment without the consent of the landlord,
and then, as a compromise, inserted a new clause (Section 13)
which prevented the assignment without the consent of the
landlord unless certain conditions were fulfilled. Moreover, in
Section 9 they inserted the words, “breach of any condition
against assignment,” as one of the grounds on which a landlord
might evict a tenant without subjecting himself to the operations
of the Disturbance Clauses. (See also p. 21.)
C. Eviction for non-payment of rent was not, in the ordinary
course, to be deemed disturbance—that is, the landlord might
“evict for that cause without being called upon to pay damages. But
in the original Bill (Section 9) occurred these words: “unless the
Court decides that it ought on special grounds to be deemed
disturbance in the case of a person claiming compensation on
the determination of a tenancy existing at the time of the
passing of this Act.” This clause, combined with that part of
the Equities Clause (Section 18) which directs the Court, in cases
in which damages are claimed for “disturbance,” to take into
account whether the landlord has been, and is, willing to
permit the tenant to continue in occupation, on “just and
reasonable terms,” and that such terms have been unreasonably
refused by the tenant—gave considerable power and discretion to
the Court to deal with questions of rent. Mr. Gladstone stated
* Lord Carlingford's Report, speaking on the question of the tenant's right
of assignment of his interest, says: “No system appears so likely to succeedi
[in placing every inducement before the tenant to devote his industry and
“capital to the land of another], as the right of sale of the tenant's interest or
assignment to a purchaser, which is a natural growth of the circumstances of
Ireland, which is always ready to spring up where it is respected, cr even
tacitly permitted, and which we are informed has been growing and spreading
during the last ten years under the indirect operations of the Laad Act.”
$9. 22.
10 The Irish Land Bill of 1870,
that the clause was inserted because, though “we have been
very anxious to avoid by this Bill any interference of a public
authority with any existing rent ; when we look at the case
of Ireland we are compelled to admit that, of late years especi-
ally, there may have grown up in certain cases contracts for rent
of a character most extravagant, which it is totally impossible for
the tenant to pay, and at the same time to live on his
holding.”
The Government, no doubt, disclaimed any intention of
introducing a general Government valuation into the question,
of rents, but there can be little doubt that if the wide powers con-
tained in the original clause, combined with the Equities Clause,
had been granted to the Court, many cases of excessive and un-
just rents would have been brought before them, and settled
in a fair and proper way by Court arbitration; consequently
the sense of unfair treatment, which now too often justly rankles.
in the breasts of those tenants who are forced either to submit,
without hope of redress, to excessive demands, or, unable to pay,
are evicted from their holdings without compensation, would have
had little existence, and much of the present trouble might have.
been spared. (See also pp. 18, 19, &c.)
The Lords first omitted that part of the clause which I have
quoted, and which gave the Court discretion in awarding.
damages in cases of eviction for non-payment of rent, but as this
appeared, even to them, to be going too far, they fortunately
inserted this qualification : “That for existing tenancies, if
ejectment take place on account of arrears of rent which did
not wholly accrue within the three previous years, such eject-
ment might be interpreted by the Court as disturbance, and com-
pensation given accordingly.” This sentence remained in the Bill.
during the time the rest of the clause appeared and disappeared,
according as the Bill left the hands of the Commons or the Lords;
and though, if the clause had been left as it originally stood, these.
words would have been superfluous, they slightly added to the
strength of the very weak and feeble clause which was ultimately
passed. A compromise was atlast agreedon, the “special grounds”
were omitted, and the following put in its place: “If, in case of
any tenancy existing at the time of the passing of this Act, and
continuing to exist without alteration of rent up to the time of
such determination, held at an annual rent not exceeding £15,
the Court shall certify that the non-payment of rent causing
the eviction has arisen from the rent being an exorbitant rent,”
an eviction for non-payment shall constitute “disturbance.”
(See also pp. 18-20.)
The Lords also added an amendment to the effect that no.
tenant who had given notice of surrender and then refused
And the Amendments thereon. 11
to give up possession should be entitled to damages for
disturbance.
Mr. Gladstone said of the clause as it originally stood, in
asking the Commons not to assent to the Lords' amendment to
omit the “special grounds” portion : “The Government never
concealed their opinion that this, though a necessary enactment,
was a grave one. Having adopted it from a conviction of its
necessity, they applied to it all the limitations which occurred
to them.” Ultimately, however, as we have seen, the Govern-
ment had to give way, take all the backbone out of the
clause and reduce it to a practical nullity. As Dr. Ball, speaking
on behalf of the Opposition, said, “The present concession of
the Government was undoubtedly valuable "—from his point of
view. Mr. Gladstone thereupon added: “They [the Government]
made with the greatest pain and reluctance this concession,
because it was against their conviction of what the Bill ought to
accomplish.” aſſ
D. The Bill further provided that to any tenant not claiming
or not obtaining compensation under any custom, and not
claiming or obtaining damages for “disturbance,” but who
proved to the satisfaction of the Court that on coming into his
holding he, with the express or implied consent of his landlord,
paid money’s worth on account of his coming into the holding,
the Court shall award such compensation as it thinks just.
JProvided that:—
(i.) The tenant has not received permission from the land-
lord to sell his interest to the incoming tenant.
(ii.) Any sums due to the landlord for rent, deterio-
ration, &c., shall be deducted from the compensation
awarded.
Neither the Lords nor the Commons interfered with this
section.
E. Any tenant who sub-let or sub-divided without the
written consent of the landlord was disentitled to damages
on eviction. The Lords inserted in Section 9 the following
words: “Ejectment for the breach of any condition against
assignment, bankruptcy, and insolvency shall not be deemed
disturbance”; and added a section (14) which provided that the
“persistent exercise by a yearly (existing) tenant of any right
not necessary to the due cultivation of his holding, and from
which such tenant is debarred by express and implied agree-
ment with his landlord,” shall debar him from claiming
damages.
So far (No. II.) I have been dealing with those parts of the
12 The Irish I and Bill of 1870,
Bill which were intended to give security (not fixity or perpetuity),
of tenure.
III. Another portion of the Bill, by giving compensation
for improvements, was intended to encourage the application of
the industry and capital of the tenant to the soil; while it also
indirectly affected security of tenure by adding to the cost of
evicting a tenant. Under this head the Bill:—
(i.) Altered—without qualification—the existing presumption
that the improvements were made by the landlord, into the
opposite presumption that “until the contrary is proved [improve-
ments] shall be deemed to have been made by the tenant or his.
predecessors in title.” As it is notorious that most improvements,
especially on the smaller holdings, are made by the tenant, this
alteration of presumption, pure and simple, was but justice.
to him. It would not have debarred the landlord from
proving to the Court that any particular improvements were
made by himself and not by the tenant, and the latter would in no
way have been enabled to claim anyimprovements to which he was
not justly entitled. But before the Bill passed this simple alter-
ation of presumption was hedged about by a number of restrictions.
and qualifications. First, the Commons inserted as qualifications
that the presumption should not hold good in cases where com-
pensation is claimed for improvements made before the passing
of the Act :—1. Where the improvements were made before the
actual purchase of the freehold by the existing landlord or his
predecessors in title. 2. Where the tenant held under a lease.
3. Where the improvements were made twenty years before the
passing of the Act. 4. Where the holding is above £100 annual
valuation. In addition to these restrictions the Ilords added
two more :—5. Where it has been the practice on the estate for
the landlord to make the improvements. 6. Where the Court are
“reasonably satisfied” that such improvements were not made,
by the tenant or his predecessors in title. And—a saving clause—
where it is proved to be the practice on the estate for the landlord
to assist in making the improvements, the presumption in favour
of the tenant shall be modified accordingly.
At first the Lords threw out the original section and inserted
One which made the presumption to be neither the one way nor
the other; but ultimately they were kind enough to accept the
above compromise, which materially restricted the presumption
in favour of the tenant which had been given by the Bill as it
Originally stood. (See also pp. 20, 21, &c.)
(ii.) The Bill further provided that a tenant—who was not
entitled to claim or did not claim compensation under any
‘custom "-on quitting his holding either voluntarily or by:
C.
And the Amendments thereon. 13.
the action of his landlord, (whether capricious or no) might
“claim compensation to be paid by the landlord in respect of all
improvements made on his holding by him or his predecessors
in title.”
The following qualifications were inserted : — 1. That.
except for permanent buildings and reclamation of waste lands.
compensation shall not be given for improvements effected more
than twenty years before the passing of the Act. On this an un-
successful attempt was made in the House of Commons to limit all
claims for all future time to twenty years. The Lords, however,
altered the sense of the section thus much ; that no claim.
for compensation for improvements might date back more than
twenty years, if the improvements were made before the passing:
of the Act. 2. Further qualifications protecting the rights of
the landlord were inserted in the original Bill and not altered.
3. Moreover, a tenant under a lease made before the passing
of the Act, and who by his lease is excluded from claiming:
compensation, is not entitled to claim. 4. A tenant holding
under a lease of not less than thirty-one years, and who is not
especially allowed by the lease to claim compensation, shall not
be entitled to claim, except for permanent buildings, reclamation
of waste land, and for tillage and manures not exhausted at the
time of quitting the holding. 5. If the landlord gives the
tenant leave to dispose of his interest upon reasonable terms to
the in-coming tenant, he cannot claim compensation for improve-
ments. 6. From any money paid, all just claims of the landlord
shall be deducted.
So long as the improvements are “suitable,” the
landlord may not prohibit the tenant from undertaking them.
The Court, in awarding compensation, is to take into account—
(a) The time during which the tenant has enjoyed the advantage
of the improvements; (b) The rent he has been paying ; (e)
And any benefits he may have received from his landlord in
consideration of his improvements.
It was intended by the Government that no tenant below £100,
valuation should be allowed to contract himself out of the Act as
far as regarded compensation for improvements. But they
were forced to reduce the limit to £50, above which valuation
any tenant not holding under a “custom " might forego all the
|benefits of the Act. The consequence is that a very large num-
|ber of landlords have insisted upon their tenants of above £50
contracting themselves out of the Act. The Lords inserted
a prohibition forbidding the tenant to break up grass lands
without the consent of the landlord.
(iii.) The Lords inserted a clause (Sec.6.) which found no place
in the original Bill, and which stated that the landlord or the tenant.
14 The Irish Land Bill of 1870,
might, “in order to preserve evidence of any improvements,”
file a specification of such improvements in the Landed Estates
Court, in order to give him a primâ facie claim to them after-
wards. It was contended by the Government—That this clause
would (1) give rise to much litigation, and though ultimately the
question of compensation might never arise, or there might be
no dispute as to the amount of compensation, this clause would
'cause a possible dispute on every improvement as it were made.
(2) That the registration of the improvement would lead to
expense. (3) That tenants from ignorance of this provision
might neglect to register their improvements, and this over-
sight would be pleaded against them afterwards. (4)
That many improvements, on the smaller tenancies espe-
cially, cannot be specified definitely, yet in the aggregate
they are distinct improvements. (5) That the landlords
might schedule improvements to which they had no right,
and thus deprive the tenant of his property. The Government
desired, if the clause were to be inserted, to alter “ or ’’ into
“and,” so that only improvements on which both landlord and
tenant were agreed, and about which there would be no dispute,
should be registered. But the Lords were too much in love with
their words to alter them, and the Government, though “they
.adhered to the opinions they had already expressed,” gave
way because they did not wish to see the Bill “lost in the
Lords.”
IV. The Bill provided for a Court to settle matters in dis-
pute, and laid down rules for the action of the tenant and land-
lord in making or disputing a claim. And it is here that we
discover the only amendment proposed by the Lords which was
not in a retrograde direction. An addition to Section 17 was
proposed and unanimously adopted, that, if within the time and
in the manner prescribed, the landlord and tenant shall have
settled their dispute by agreement, they need not come before
the Court for its decision. The original omission of such a
provision was no doubt an oversight on the part of the
Government.
The “Equities Clause ’’ (Section 18) directs the Court
how to proceed in assessing damages or compensation. It
is to take into account: (i.) Any claim, or objection to claim,
made or disputed by either party. (ii.) Any set-off pleaded
(including, in the case of the landlord, any money paid on
account of the purchase of the tenant right). (iii.) Any de-
fault or unreasonable conduct of either party. (iv.) Any sums
due under the Act by the tenant to the landlord. (v.) (Already
quoted.) Any reasonable offer on the part of the landlord to
permit the tenant to continue in occupation, and whether such
And the Amendments thereon. 15.
offer has been, and is unreasonably refused by the tenant.
(vi.) The Court moreover, is to give judgment on the case “with
regard to all its circumstances.”
In successfully resisting an amendment in the Equities Clause,
which would have inserted words to the effect that the Court was
to take into account the length of the tenancy and the amount of
rent paid, Mr. Chichester Fortescue said, “that the Govern-
ment were of opinion that they gave the Court sufficient
discretion under the clause as it stood to take these and other
matters bearing on the question, which they would have to decide,
into account”—thus shewing that the rent was to be a
distinct element in the question. (See also pp. 9, 18, &c.)
The Lords added yet another new section, which does not,.
however, much affect the question one way or the other—to pro-
vide that in every case of dispute the order of the Court shall be
reduced to writing, and the grounds of decision given.
W. In the Supplemental Provisions the Lords reduced the
period of the notice to quit from one year (as it originally stood
in the Bill) to six months. One year has, however, been since,
resubstituted by 39 and 40 Vict., c. 63. They also struck
out a section which the Commons had inserted, and which took
away from the landlord the right of distraining for rent except
where specially conceded in the lease or written agreement.
There were, of course, in the Bill many other smaller
provisions and exceptions affecting tenancies, which were
incorporated in the Act, and which were intended to explain and
carry out its general provisions—Such as giving further powers
to limited owners to deal with their land and their tenants;
providing for exceptions and exemptions for labourers’ cottages,
demesne lands, &c., providing that the lessor should pay half
the grand jury cess in cases of tenancies of above £4 valuation,
and the whole of it where the tenancies are under that sum, &e.,&e.
I do not intend to touch on the “Bright Clauses” of the
Act, for they do not come under the immediate consideration of
this paper.
The Lords also introduced several other amendments, which,
as they came to nothing, I have not mentioned; some of them'
were devoured by their own parents, others were slaughtered by
the Commons. j
Throughout the course of the proceedings on the Bill, mem-
bers of the Government openly expressed their sorrow at the
concessions which they were forced to make. For instance, Lord
JHartington said: “I am not one of those who thought this Bill;
erred or erred greatly in the direction of too much concession to
the tenants,” and went on to regret the retrograde amendments,
§ 6 The Irish Land Bill of 1870,
Tyroposed; and this was before the House of Lords had touched
the picture with their damp cloth. Mr. Gladstone I have
already quoted once or twice. Mr. Chichester Fortescue
expressed the same feelings of regret; and more significant still
were the kind words of the Opposition leaders. For instance,
even before the Lords’ interference, Mr. Disraeli, in withdrawing
an amendment, did so on the ground that “Since he proposed
it many modifications had been effected, in the Bill, which had
mitigated many of its features.” Mr. Gathorne Hardy also
thought that it “has been made better than it was when intro-
duced by Mr. Gladstone.” {
To sum up, we find that the retrograde amendments incor-
ſporated into the Bill were as follows:—
1.—The Ulster custom was thrown open to conflicting
interpretations.
2.—The limit of valuation below which a tenant might not
contract himself out of the Act was reduced by one-half.
3.—The scale of damages for disturbance (and consequently
by implication the amount which the Court would award for
improvements) was practically reduced.
4.—The limitation on the arrears of rent which might be
claimed as a set-off against damages or compensation was struck
out, and further facilities were given to the landlord in
disputing, resisting, and reducing claims.
5.—The assignment of a tenancy was hedged about with
divers restrictions.
6.—As regards existing tenants, compensation for disturbance
was limited to those holding at and below £100 valuation.
7.—The prohibition against contracting out of the Act was
limited to twenty years.
8.—A limitation of twenty years was inserted to claims for
improvements (other than permanent buildings or reclamation
of waste lands).
9.—The power of the Court to decide whether on “special
grounds” eviction for non-payment of rent should not be deemed
disturbance, was taken away, and the application of the section
was limited to holdings of £15 and under, and to the one point
only of “exorbitant” rent.
10.-The presumption that the improvements were the work
of, and belonged to, the tenant was qualified.
11.-The period of notice to quit was reduced from a year
to six months.
12-The section which limited the landlords' power of
distress was struck out.
And the Amendments thereon. 17
13.−In addition—and this is very important—many compli-
cations, qualifications, and exemptions were introduced into the
details of the Bill, and thus a simple and easily understood
measure was turned into one complex, and difficult to
comprehend.
We find from the Report of the Royal Commission on Irish
ALand (Lord Bessborough's), from the two Reports of the Royal
Commission on Agriculture (signed respectively by the Duke of
Richmond and others, and by Lord Carlingford and others)," and
from many additional sources, that the Land Act of 1870 has
partially failed to give satisfaction and contentment, chiefly on
the following grounds:—

1.—That as it gave no regular jurisdiction over the question
of rents, the landlords in many parts of Ireland have raised
their rents to an exorbitant amount, while the tenants have
preferred to submit to these increases rather than leave their
holdings; and thus a feeling of insecurity has been en-
gendered.” 2’
2.—And further, these increases have, in many cases, so
raised the rents, that in times of distress the tenant is unable to
pay, and falling into arrear becomes ipso facto deprived of the
\benefits of the Disturbance Clause, and the landlord can evict
without being called on to pay damages.”
.—That capricious eviction has been only partially, and
not wholly, checked by the Land Act.”
4.—That the “larger’’ tenants especially are dissatisfied
with the amount of protection afforded them for their
improvements.”
5.—That the “larger farmers” are forced to contract
themselves out of the Act, and submit to very onerous and
discouraging conditions."
1 Lord Carlingford’s report has this additional interest that he, as Mr. *
Chichester Fortescue, had eharge of the Land Bill in 1870.
* Royal Commission on Agriculture, Duke of Richmond’s Report, pp. 7, 8-
Lord Carlingford’s Report, p. 20. Royal Commission on Irish Land (Lord
Bessborough's), pp. 7, 8, 9, 10.
3 Royal Commission on Agriculture, Carlingford, p. 20, &c.
* Royal Commission on Agriculture, Carlingford, p. 20. Royal Commission
on Ireland, p. 12.
* Royal Commission on Agriculture, Carlingford, p. 21. Royal Commission
•on Ireland, pp. 13, 14.
* Royal Commission on Agriculture, Carlingford, pp. 20, 21, 24. Royal
Commission on Ireland, pp. 13, 29, &c.
18 The Irish Land Bill of 1870.
6.—That leases are often forced on tenants above the £50
limit (and others also), in order to save compensation for
disturbance ; while in Ireland leases are, on other grounds,
unacceptable to the tenants.”
7.—That the tenant cannot bear to part from the land, nor
yet to leave the result of his industry and outlay behind him;
moreover, he has not sufficient confidence that the value of the
interest he possesses in the holding will be secured to him on
leaving.” +
8.—That the complicated provisions of the Act have given
rise to much litigation, distrust, and sense of insecurity; while
confidence on the part of the tenant that he will be able to obtain
proper damages and compensation has thus been greatly
shaken.”
9.—That difficulties have arisen from the undefined nature
of the Ulster Tenant-right; and in consequence of the existence
of, and encouragement given to, conflicting usages and customs,
much litigation, discontent and enmity have arisen."
It now remains to be seen how far these defects in the
Tand Act of 1870 would have been partially or wholly avoided
if the above thirteen amendments had not been introduced into
the original Bill.
1 and 2. RENT UNDULY RAISED, &c.—There is no doubt that
the Government did not intend in any way to institute a Govern-
ment valuation of rents ; they disclaimed that intention more
than once. In fact, it is evident from their speeches, they
did not contemplate that the landlords would, as it is
now shewn they have done in many cases, arbitrarily
raise their rents, on the “silent” or any other system,
either in Ulster or elsewhere." It was not anticipated
that men would endeavour to reap where they had not sown, and
gather where they had not strawed. Mr. Chichester Fortescue
. . Royal Commission on Agriculture. Carlingford, p. 24. Royal Com-
mission on Ireland, p. 30.
* Royal Commission on Ireland, p. 6.
* Royal Commission on Agriculture, Carlingford, pp. 20, 21. Richmond,
p. 8. Royal Commission on Ireland, pp. 7, 8, 9, 12, 13.
* Royal Commission on Ireland, pp. 13, 37.
* Royal Commission on Agriculture, Richmond, p. 8. Carlingford, p. 22.
Royal Commission on Ireland, pp. 10, 19, 28, &c.
* Royal Commission on Ireland. p. 9, &c. Royal Commission on Agri-
culture, Richmond, p. 8. Carlingford, p. 20, &c.
And the Amendments thereon. 19
said, speaking of Ulster Tenant-right: “There is no more
dangerous and gross—I was going to say, no more insidious—
violation of the custom, than to raise the rent to such a point as
seriously to impair the value of Tenant-right. That is a breach
of faith which I am happy to believe, when the Bill passes, can
seldom occur again.” -
On the other hand, however, the Government did intend by
their original Clause 9, which they introduced “from a sense of
its necessity,” to provide machinery whereby, for existing
tenancies, in case of eviction for non-payment of rent, the Court
should have considerable latitude in awarding damages.
Lord Carlingford's report states that even with the very
limited powers now possessed by the Courts (under Sections 9 and
18) “evidence has been received of the successful action of the
Land Courts, both in Ulster and elsewhere, in ascertaining and
indirectly fixing the fair rent of a holding,” and this “appears
to us very encouraging, and leads us to believe that some
tribunal, armed with larger authority, would succeed with much
less difficulty than might be supposed in exercising with sub-
stantial fairness a direct arbitration on this subject.”
It is pretty clear, therefore, that if the Court had been
allowed the considerable powers which the original clause,
combined with the Equities Clause, would have given them :—
(1) Many landlords would have hesitated to raise their
rents arbitrarily, lest such conduct should bring such actions
under the notice of the Court and render them liable to be cast
in damages.”
(2) Rents not being arbitrarily raised, fewer evictions would
have followed; for rents being less exorbitant, the tenants
would be better able to pay them, and there would have been,
therefore, no excuse for eviction.
(3) While even if rents were still arbitrarily raised, evictions
would again be fewer, for those landlords who now have no
scruple about evicting for non-payment of rent would
hesitate to evict if damages could be claimed and given against
them.
(4) Moreover, if tenants were evicted, the Court would have
been able to award them something whereby they might face the
World otherwise than as paupers.
(5) Further, as cases would have been brought before the
Courts to judge whether there were any “special grounds” for
* Royal Agricultural Commission, Carlingford's Report, pp. 21, 24, and
Royal Commission on Ireland, p. 10.
* Royal Commission on Ireland, p. 8.
“20 The Irish Land Bill of 1870,
allowing damages, where tenants were evicted for non-payment
of rent, a tendency would gradually and imperceptibly have
sprung up to make the Court an arbitrator on disputed rents.
It is possible, therefore, and probable, that without much
further legislation, and without any Government valuation of rents
(which may now perhaps have to be adopted in some form
or another), the Courts would have virtually become arbitrators
in many cases of dispute, and much of the present irritation and
complaints would have been spared, or been, at all events,
groundless." #
However, the benefits of this clause were greatly reduced,
the Court was so hedged in by the limit of £15, and the word
“exorbitant,” that they had little or no discretion left them, and,
as one of the reports says, “this provision has been almost
inoperative and for the most part unnoticed. The use in it
of the word “exorbitant ’ has contributed to this result.”
3 and 4, CAPRICIOUs EVICTION HAS NOT BEEN SUFFICIENTLY
CHECKED, AND COMPENSATION IS NOT ADEQUATE–The larger
scale of damages for disturbance, and the larger amounts
which would have thereupon been allowed by the Courts for
improvements;” the greater simplicity of procedure for the
tenant when claiming damages and compensation; the lack of
all the limitations and qualifications, afterwards inserted
in favour of the landlord; and other benefits contained
in the original Bill, would have tended to diminish the
number of capricious evictions. A very little suffices to turn the
scale of eviction and non-eviction; while a diminution of evic-
tions on the part of one landlord leads, by example, to a like
-diminution on the part of another. We may safely assert, there-
fore, that if the Bill had been passed in its entirety, capricious
evictions would have been still more rare. Each capricious
eviction gives rise to a large amount of dissatisfaction and .
irritation; and part, at all events, of this would have been
spared.
5 and 6. TENANTS FORCED TO CoNTRACT ouT OF THE ACT.-
This requires no remark ; the limitation for contracting out of
the Act was reduced from £100 to £50; and so thousands of
tenants who would have been protected by the Bill were
left at the mercy of their landlords. Great discontent has
1 Royal Commission on Agriculture, Carlingford, pp. 22, 23. Richmond,
p. 8, Royal Commission on Ireland, pp. 10, 11, 21, 24. Ante, p. 10, &c.
* Royal Commission on Ireland, p. 10. See Ante, pp. 9, 10, &c.
* Royal Commission on Ireland, pp. 13, 14.
* Royal Commission on Ireland, p. 12. Royal Commission on Agriculture,
“Carlingford, p. 20. Ante, pp. 7, 8, 12, 13, &c,
And the Amendments thereon. 21
arisen from this cause ; all those who were thus excluded from
the benefit of the Act naturally consider themselves badly
treated, and looked upon it with contempt and aversion." '
7. TENANTs Do NOT LIKE TO LEAVE THEIR HOLDINGS, AND HAVE:
No CoNFIDENCE IN COMPENSATION.—If I am right in my supposi-
tions, we should not have heard so much of these complaints if
Section 9 had been untouched, and if Sections 3 and 4 had not been
qualified and tampered with. For instance, the Royal Commission
on Ireland (p. 13) reports that “The feeling of insecurity has.
operated to check the process of improvement of the soil. The
restrictions which the Act imposes on compensation for improve-
ments have prevented the tenants outside Ulster from receiving.
a fair equivalent for the results of their industry.” Elsewhere in
this, as well as in the other reports, the same complaints find
expression. The restrictions on assignments have, moreover, also
furthered this result.”
8. CoMPLICATED PROVISIONS OF ACT.—There is no doubt that
the manifold complications, qualifications, and exemptions.
introduced into the Bill by the amendments have rendered it
a far more difficult Act, both to understand and to claim under,
than as it originally stood. Irish tenants are not of the
most educated class, and when they found that that which
they thought and hoped would give them a simple right to.
this, or a plain claim to that, was hedged about with all
manner of restrictions in favour of the landlord, they
naturally feared that their reading of the law might turn out to.
be wrong, and that where they thought they were safe they might
find that they had misread the Act. This sense of ignorance,
and consequent feeling of insecurity, has discouraged them from
putting their industry, capital, and energy into their holdings.”
The Bessborough Commission shews that at first, after the
passing of the Act, the tenants began to increase their improve-
ments, but soon became discouraged from the difficulties
experienced in claiming and obtaining their damages and
compensation. Again, in case of dispute between landlord and
tenant, the former has much the better of the latter at law; for
by protracting a case, by pleading all the set-offs and qualifica-
tions in the Act, he can put the tenant to much uncertainty,
* Royal Commission on Agriculture, Carlingford, pp. 21. Toyal Commission
on Ireland, pp. 13, 14, 29, &c. Ante, pp. 11, 13.
* Royal Commission on Ireland, pp. 3, 13, &c. Royal Commission on Agri-
culture, Carlingford, pp. 21, 23. Ante, pp. 8, 9, 12, &c.
* Royal Commission on Ireland, pp. 13, 37 : “Simplicity and conciseness
are essential in legislating on the Irish Land Question. We have found ignor-
ance of the law as it now stands in places where it might least have been.
expected.” p. 37. Ante, pp. 6, 7, 9, 12, 14, 15, &c., and throughout.
22 The Irish Land Bill of 1870,
worry, and expense. One tonant thus treated and cheated will
prevent many others from trying their luck; and thus insecurity
and sense of Wrong has been engendered and has grown."
9. ULSTER “UsAGES.”—The substitution of the word
“usages '' for “usage,” in Section 1 of the Bill has given rise
to much litigation and unfair treatment of tenants, in conse-
quence of the endeavours made on the part of some agents and
landlords, by office rules, to limit and diminish the tenant-right
of the oecupier. The onus of proof that he holds under a par-
ticular usage, and is therefore entitled to such and such com-
pensation, is thrown on the tenant, and the agent can dispute the
tenant's description and definition, and endeavour to shew that
his claims are untenable. The result has been that many
tenants consider themselves as hardly used, and an agitation has
sprung up for the definition of the Ulster Tenant-right Custom.”
If the word “usage" had been left in the Act the Courts would
bave taken as their guide, in assessing damages, that form of
the Ulster Tenant-right which prevailed on the best managed
and most contented estates. Gradually and imperceptibly all
the divers customs would have been consolidated on this model,
and the best form of usage would have come to be the standard
custom ; the difficulties of definition, the whittling away of
rights, and the consequent irritation would have been spared.3
I have now gone through the divers points where, it seems
to me, the amendments did actually and really involve a portion
of the partial failure of the Land Act of 1870. No one would, of
course, attribute to their existence the whole measure of acknow-
ledged failure. In addition to the points enlarged on, there are
several minor ones on which I will not again dwell. But Imust add
this further important point which greatly affects the whole
question ; that in the same way, as of a chain, no part is
stronger than its weakest link, so of an Act, if portions of it are
filed down and greatly weakened, by so much is the whole weak-
ened. Moreover, discontent and irritation, like a snowball,
quickly, from a very small beginning, rolls up and increases in
bulk. An injustice found to exist where justice was looked for,
1 Royal Commission on Ireland, p. 13.
2 Royal Commission on Agriculture, Richmond's Report, p.8. Carlingford's
JReport, p. 22. Royal Commission on Ireland, pp. 19, 28, 30, &c.
3 See Ante, p. 6, &c. Mr. W. Johnston clearly explained in committee
the objections to the alteration of the word. “He felt that all these so-called
usages were infringements of what was known as the original Ulster Tenant-
right.” . . . . “If the word usages were put into the Bill the only effect
3. be to legalise all the encroachments of the landlord on the tenant-
oright, -
And the Amendments thereon. 23
goes a long way to fret the body politic into a fever. Nothing
is truer than :-
“It is the little rift within the lute
That by and by will make the music mute,
And ever widening slowly silence all.”
If, therefore, as Ithink I have shewn, the alterations in the Bill,
weakened the tenant's actual security as well as his sense of
security; increased the number of evictions, capricious or other-
wise ; diminished the compensation the tenants obtained ;
deprived a large number of the tenants of the
benefits of the Act ; prevented any proper supervision
of excessive rents; and complicated and generally marred
the principles and the details of the Bill—they were
enough to cause those mutterings of discontent which have since
swelled into a chorus of disapprobation of the Act of 1870, and
which demand and will obtain the attention of the Government.1
In what way the Government are going to remedy the
state of things which has come about I do not of course
know, nor is it my province here to inquire. Certain it
is that a measure which would have been satisfactory
and sufficient in 1870—possibly the original Land Bill
as it stood, with some additions which it is now evident
were required, might have answered all purposes—will
not now suffice. Consequently it will come about that those who
in 1870 were unable to swallow the proposals then made, will,
by their conduct then, be now required to digest that which ten
years back they rejected—and more into the bargain.
It is sincerely to be hoped that the Lords of this decade will
be wiser in their generation than those of the last ; that to-
-day they may see their way to graceful concession, so that it
may afterwards be said of them that though,
“A little while they strove, they soon repented,
And whispering, “I will ne'er consent’—consented.”
And that they will not, by their opposition and action, jeopardize
the success of the new Land Bill, and, by preventing it from
being a final settlement, render further legislative changes
necessary before another ten years have elapsed.
* Royal Commission on Agriculture, Richmond, p.8. Carlingford, pp. 20, .
:22, &c. Royal Commission on Ireland, pp. 8, 10, 11 and throughout.