Alexander Hamilton, member for the University of Dublin, Mr. (afterwards Sir) Thomas Nicholas Redington, member for Dundalk, and Mr. Wynne, with Captain John Pitt Kennedy as secretary. For some time past the rate of rent had been unduly rising in Ireland, and tenants had increasingly of late made additions to the value of their farms, in the shape of fencing, draining, building, and other improvements; whilst in thousands of instances, more especially in the North, and largely also in the Southern provinces, outgoing tenants had in consideration of these improvements been paid considerable sums by their successors on the transfer of holdings. In addition to this compensation money for improvements, which was paid by an incoming to an outgoing tenant, another sum for the "goodwill," as it was called, was also paid by the former. The "goodwill" and the compensation for improvements had during a long course of years become gradually indistinguishable as separate items, being thrown together into one amount, and payable by the incoming tenant, who was as a rule totally ignorant of the origin of the payment. The incoming tenant had generally to borrow this sum of money and pay interest upon it, and it therefore became a sort of second rent which he was obliged to hand over every year to the usurer. The tenant frequently paid this interest by giving up to the lender the best field on his farm for several years, and when it had become exhausted, another one, and so on, until in this manner all his land gradually became impoverished. This custom of tenant-right was elucidated by Lord Dufferin in his evidence before the Devon Commission. In answer to question 966 he said

"The custom may be, I think, thus defined: Tenant-right is a custom under which the tenant farmers of the North of Ireland, or, at all events, in those districts where that custom prevails, except when they have occasion to give up possession of their farms, that their landlords will allow them to obtain from the incoming tenant such a sum as shall remunerate them for their improvements upon those farms. But at the same time, though I think that that is a perfectly legitimate definition of the custom of tenant-right as now understood, there is undoubtedly another element which exists, and which influences the operation which I have described. But the element is a very impalpable one, because, although of late, since the question has been agitated and the real elements of tenant-right have been analysed by public discussion, even the farmers themselves will describe their claim as a claim on account of improvements, there can be no doubt that the sums which were paid by the incoming tenant very often had no relation whatever to the real value of those improvements, and the thing sold, instead of being called the tenant-right of a farm which is now the term generally applied to it, used more commonly to be called the goodwill of the

See Lord Dufferin's Irish Emigration and the Tenure of Land in Ireland.

farm, and under that designation I think a different thing would be understood than a payment made for the value of the improvements into the enjoyment of which the incoming tenant was about to enter. I think under the term 'goodwill' would be recognized something approaching to what I may call 'black-mail,' paid by the incoming tenant to the outgoing tenant, in order to induce the outgoing tenant not to interfere with his quiet possession of the farm . . . (in answer to question 969) . . . so far as tenant-right represents the custom under which the landlords of the North of Ireland have been in the habit of allowing the outgoing tenant to receive from the incoming tenant a fair compensation for the permament improvements which he shall have placed on the farm during the time of his tenancy, and for which he shall not have had time to recoup himself, the custom has been an excellent one; but so far as tenant-right is a custom under which, without any reference whatever to the improvements into the possession of which the new tenant is about to enter, he has been in the habit of paying over to the outgoing tenant an enormous sum of money, amounting sometimes to 10, 15, or, I believe, even 20 years' purchase of the rent, the custom is a most unfortunate one." 1

As a consequence of this custom which, whatever may have been Lord Dufferin's opinion as to its merits, had grown to be an integral part of the Irish land system, incoming tenants had become in a sense owners of their farms by purchase. The concurrent rights, therefore, of the Irish tenant class had gradually developed until they amounted, morally at least, to a real joint ownership of the land between landlord and occupier. This huge mass, however, of practically proprietary rights remained, if we except the Ulster Custom, outside the cognizance or protection of the law, and depended for its recognition upon the whim of the owners of the soil. In this manner there had arisen a distinct tenant-right which ought to have been brought within the pale of the law and shielded from invasion like any other property.2

The suggestions of the Devon Commission in view of this state of affairs were certainly interesting, but most of them valueless as a real remedy, for the Commissioners were all Irish landlords themselves, and lacked that breadth of view and sound statesmanship without which Ireland will never be reformed. As O'Connell wittily said of them, "you might as well consult butchers about keeping Lent, as consult these men about the rights of farmers." They described for instance Irish tenantright as an encroachment upon the just rights of property; and, instead of advocating the principle of joint ownership by

1 In the townland of Carthage the tenant-right of a holding on R. G. Young's estate, paying a first term judicial rent of £3 15s. 6d. and subject to an annuity of £3, was sold in 1906 for £200. That is to say, at 66 years' purchase. See Appendix to Second Report of the Royal Commission on Congestion in Ireland, 1907.

2 Appendix LII, Lord Devon's opinion.

SO

proposing to make it law-worthy, practically ignored concurrent rights altogether, and would not even allow that a tenant had a direct title to his own improvements. They kept their attention too closely fixed upon English land-tenure, the error prominent in Gladstone's later legislation, and desired to assimilate two systems, which not even had not parted from one another after springing together from a common ancestor, but had been congenitally and from the first dawn of Irish history totally distinct. They considered that the tenant should be compensated for any future improvements he might make, but that past improvements should be left outside the law's ken, to be confiscated in fact at the pleasure of the landlord. To carry out their scheme of tenant relief, they suggested the passing of a law which should give tenants in the future compensation for permanent and productive improvements; and they proposed that such a measure should be framed upon the following lines. Any agreements which might be arrived at between landlord and tenant in regard to improvements of this description were to be duly registered, and, in those cases where agreement was found impossible, a tenant was to serve a notice on the landlord of his intention to make suitable improvements. Thereupon arbitrators, selected by each of the parties, were to report upon the suggested improvements, and the assistant-barrister, on the presentation of their report and after due examination of the state of the case, was to certify the maximum cost, which was not to exceed three years' rent. If the tenant was afterwards cjected, or if his rent was raised by the landlord within thirty years, the latter was to pay in compensation to the tenant such a sum as the improvements finished or unfinished should be valued at, provided always that this sum did not exceed the maximum originally fixed. The improvements, moreover, in order to entitle the tenant to compensation in the event of these contingencies, were to be completed within a limited time, and the landlord was to have the option of making them himself, in which case he was to be allowed to charge 5 per cent. on his outlay upon them. This was the celebrated Devon Commission's opinion; an opinion matured after two years' constant study of the unhappy land, which only proves that much study, without that sense which is erroneously termed common, is a vast and profitless weariness of the flesh. Indeed the value of the Commission lay not in its remedial suggestions, but in the enormous mass of evidence which it collected in regard to the state of Ireland, and which proved ad nauseam that the existing relations between tenant and landlord were incompatible with social order, and that for the purpose of ameliorating the condition of the occupier it was not enough to make it possible for the owner to do his duty by the latter, but he must be made to see that to do his

duty was the only alternative to forfeiting those privileges which were rightfully his.1

In June 1845 an Irish Land Bill, which was founded upon the report of the Devon Commission, was brought forward by Stanley in the House of Commons. It provided for the appointment of a Commissioner of improvements, to whom a tenant desirous of improving his property was to apply, and who was to have the power of determining the desirability of the contemplated undertakings. If the Commissioner approved them, the tenant on ejection within a certain period was to be entitled to compensation for them. The only improvements which the Bill recognized were classed under the three heads of building, fencing, and draining. The tenant who built on his farm was entitled to compensation for thirty years after the building was erected, one-thirtieth of the cost of the improvement being deducted from his compensation for every year during which he had enjoyed it. The tenant who fenced his farm was entitled, on a similar principle, to compensation for twenty years and the tenant who drained his farm for fourteen years. The value of the improvements, however, was in no case to exceed £5 for each acre of the holding, and no compensation was to be granted for improvements other than those specified. On the introduction of the measure thirty-six peers, holding property in Ireland, signed a declaration that the Bill was destructive of the rights of property, and earnestly requested the Government to withdraw it. Stanley, thereupon, with considerable difficulty, persuaded the House to allow it to be referred to a Select Committee; but the latter manifested so strong a feeling against it, that its author determined to modify its proposals, and, as the summer was already far advanced, withdrew his Bill in order to reintroduce it in another shape at a more convenient season.

Sharman Crawford also introduced a measure of his own for a similar purpose the same year. He had refrained from bringing in a Bill in 1843, and had waited for the appearance of the Devon report to arm himself to the teeth with evidence of the evil state of land tenure in Ireland. But he had to fight against the selfishness and traditional rapacity of monopolists, and his Bill fell a victim to them as others had done before. In 1846 an Act was passed, founded on the recommendations of a Select. Committee of the House of Commons which had been appointed in 1844 to reconsider the question, changing the principle of valuation of town lands based on a fixed scale of agricultural produce to a tenement valuation for poor-law rating, to be made. upon an estimate of the net annual value of the rent for which, one year with another, the same might in its actual state be reasonably expected to let from year to year. The results, 1 Appendix LIIA, extract from speech by Lord John Russell.

however, obtained from the two systems of valuation were substantially the same.

The same year Lord Lincoln,1 the Chief Secretary in Peel's administration, proposed a Bill at the instance of Sharman Crawford, providing that a landowner on resuming possession in certain cases should pay compensation for future unexhausted improvements made by the tenant. This measure, which, like Stanley's of the year before, was based upon the report of the Devon Commission, passed safely through the second reading, but was then lost sight of in the resignation of Peel's Government. In 1847 Sharman Crawford once more introduced his measure of 1845, which provided for the extension of the Ulster custom to the rest of Ireland, but it was summarily rejected by a majority of 87. In 1848 Crawford again attempted to carry his measure, but in vain, although he reduced the majority against him to 23. The same year another Bill was introduced in the Lower House, this time by Sir William Somerville, the Chief Secretary, proposing to grant compensation in future for tenants' improvements and the increased value that might thereby accrue to their holdings. But it was finally dropped, the landlords regarding it with unconcealed suspicion, and the tenants, who had expected more, with disappointment. It was also in the same year that a Land Improvement Act was passed for the establishment of a Commission with funds at its disposal, which were to be advanced to the landlords for the improvement of land and repaid within limited periods. An Irish Tenants' League was also formed in 1848 for the purpose of extending the Ulster Custom of tenant-right to the rest of Ireland; and the same year, in order to put a check upon the multitude of clearances that had taken place during the famine, and were still in progress, an Eviction Act was passed, compelling landlords to give forty-eight hours' notice to the poor-law guardians of their intention to carry out an eviction, so that provision might be made in time for the admission of the outcasts into the workhouse.

In 1849 the Encumbered Estates Act was, as has been said, carried through Parliament. This measure was a truly remarkable piece of legislation for the benefit of Ireland; and the pity of it was that Burke was not alive to expose it, nor Swift to ironically praise it. In fact, a landlord Parliament had unconsciously passed a measure which was nothing less than an edict of confiscation of the Irish land and which not only hit the occu

1 Henry Pelham Fiennes Pelham, fifth Duke of Newcastle (1811-1864); had the management of the War Office from June 12, 1854, to February 1, 1855.

2 Sir William Meredyth Somerville, Baron Athlumney in the peerage of Ireland, and Baron Meredyth in that of the United Kingdom (1802–1873); Chief Secretary from 1847 (July) till February 1852, when Lord John Russell's Ministry fell.