CHAPTER XVI.

SURPRISING DECISIONS.

The four Sub‐Commission Courts have now sat for about a fortnight in various parts of the country, administering, each according to its light, the complicated and intermingled principles of the two great Gladstonian Codes of Land Law. The utmost pains were very properly taken to ensure a measure of uniformity in the justice to be administered by the new Tribunals. Meetings were held, questions discussed; but sufficient allowance was not made for the principle of competition, or, shall we say, of generous rivalry in redressing the wrongs of an oppressed people, certain to actuate their Worships—for so the Assistant Commissioners are properly styled—at their first setting out. The most fluent, if not always the most learned, member of the tribunal has in each case specially put himself in the forefront of his colleagues,. and laid down doctrines which were so stated as to attract and receive both the direct and plunging fire of adverse criticism. In two instances the doctrines laid down have already been withdrawn. Professor Baldwin undoubtedly formulated the principle recently quoted by Lord George Hamilton, from my letter of the 1st inst., that such an accident as the propinquity of a manufactory was beside the question in determining the value of land to the tenant—in other words, that such an unearned increment belonged wholly to the tenant, no part of it to the landlord. The Professor also laid it down in another case, that the value of the holding to the occupying tenant was alone to be considered in fixing the fair rent. This inconsiderate dictum p. 106 was, of course, immediately exposed and denounced in the newspapers, and the Professor has been moved to lay down for his future guidance the exact opposite of his former views. He will now, he says, consider, in fixing the rent, the capacity of the land in the hands of a tenant of average ability and skill. Mr. M‘Carthy, on the Western Sub‐Commission, in the attempt to urge an impetuous course through ‘the law’s delays,’ has already stumbled twice and been picked up, not without suspicion of scolding, by the Chief Commissioners. First, as a background to a pretty compliment to his colleagues, he pronounced a condemnation of the entire race of paid valuers. Ignorant, venal, and untrustworthy as some valuers are, there are plenty of men to be had of eminent honour and profound acquaintance with the value of land; and I am convinced, that if this Act is to give lasting satisfaction, such men must be generally employed by the Sub‐Commissions, under the power conferred upon them by Section 37. Judge O’Hagan has repudiated the slight offered to valuers by Mr. M‘Carthy; and, considering the alarm and discontent created among landlords by the awards thus far pronounced, it may be hoped that Mr. Murrough O’Brien, whose duties in the Sale Department of the Commission are at present confined to matters of mere routine, and whose reputation as a valuer is second to none in Ireland, will be entrusted with the formation of a corps of ‘independent valuers,’ to accompany the Sub‐Commissions and report upon the lands in dispute.

Mr. Kane, Chairman of Sub‐Commission No. 1, has given a questionable judgment at Monaghan. The facts are these:—In 1878 Peter M‘Ilroy was ejected for non‐payment of rent, and the claimant, the son, pending the six months allowed by law for redemption, was allowed to occupy the land. Eight months after the termination of the tenancy the claimant was admitted a yearly tenant, under a new agreement. Now, the 7th Section of the Act of 1881 provides that a tenant, on quitting the holding of which he is a tenant, shall not be deprived of his right to receive compensation for improvements under the Landlord and Tenant (Ireland) Act, 1870, p. 107 by reason only of the determination by surrender, or otherwise, of the tenancy subsisting at the time when such improvements were made by such tenant, or his predecessors in title, and the acceptance by him, or them, of a new tenancy. Where in tracing a title, for the purpose of obtaining compensation for improvements, it appears that an outgoing tenant has surrendered his tenancy in order that some other person may be accepted by the landlord as tenant in his place, and such other person is so accepted as tenant, the outgoing tenant shall not be precluded from being deemed the predecesssor in title of the incoming tenant by reason only of such surrender of tenancy. The claimant’s case was that his father had made improvements; that the father was his predecessor in title, and that he (the claimant) was consequently entitled, under Healy’s Clause, to have his rent reduced in respect of such improvements. After confessing that he was not familiar with the Ulster custom, Mr. Kane held that the break in the title was not sufficient to destroy the right of the tenant. Now, although the case was a hard one, and not even the landlord can seriously grudge to the claimant the benefit of his father’s labours, I observe that in Mr. Kane’s own work upon the Act of 1870, the following case is noted:—‘Where the father of the claimant held the holding under a lease which expired while the claimant was in possession, and afterwards the landlord made a new express letting to the claimant, that the father was not a predecessor in title of the claimant.’ The judgment in this case was upheld on appeal, and is still law: and in any event it is obvious that the learned Assistant Commissioner’s written and spoken opinions do not agree.

But the most surprising judgment of all has been promulgated to‐day by the Southern Sub‐Commission, sitting at Limerick. James Blake sought to have a fair rent fixed for a holding of tillage land, under Lord Clarina, situate in the county Limerick. The acreage amounted to about thirty‐eight statute acres, the valuation was 44l., and the rent 52l. 11s. The letting was first made so long ago as 1827, at 60l. per annum. This was paid by the tenant’s father down p. 108 to 1837, when it was reduced to 50l. In the following year 2l. 11s. was added to the rent, on account of the tithe‐rent apportionment; and from that day to this, a period of forty‐three years, the last rent of 52l. 11s. has been regularly paid. Two houses and offices had been erected, and drains constructed by the tenants; but the landlord had contributed slates and timber, equal to half the expense of building, to the houses, and had allowed for the drains. The evidence showed that the land was worth even more than the sum which had thus been paid, without question, for nearly half a century. The Sub‐Commission, however, reduced it, without calling in question the conduct of Lord Clarina, to the level of the valuation, namely 44l.

The consequences of this alarming decision to the unfortunate landlord must be most serious; but the principle established is of infinitely greater importance. It was hinted by the Ministry over and over again, when the Land Bill was passing through Parliament, that only rack‐renters were aimed at by the measure. No one supposed that a rent acquiesced in, and paid for generations, was to be arbitrarily cut down by a sixth, and a landlord’s income correspondingly diminished by similar reductions in the rents of his remaining farms. Only the other day a statesman of the highest reputation for sagacity—a quality conspicuously evinced in the timely sale of his Irish estates as soon as he had them at his disposal—calculated that over two‐thirds of Ireland rents had not been raised for many years, and therefore would not be lowered. It is now evident that all such calculations must be flung aside, and the landlords must face the unpleasant fact that their fortunes, and in very many cases their livelihoods, are at the mercy of the first roving Sub‐Commission that may approach their domains, each Commissioner, moreover, burning to distinguish himself as a redresser of agrarian wrongs, and armed with the utmost powers the law can confer.

Another question suggested by this decision is the effect it will have upon the tenants who have not yet come in. Seven Sub‐Commissions are now appointed, and more are expected p. 109 to be formed; but twenty will not suffice if these awards be upheld on appeal. An appeal has already been lodged in the case referred to, and it is now settled that the Commissioners, who are most anxious that their representatives shall not overstep the scope and province of the Act, will make every arrangement in their power for speedily rehearing all important cases. I may here state in the most positive manner that the suggestion, to the effect that the Commission had packed the lists with the earlier cases, with a view to securing opportunities for large reductions of rent at the opening of their business, is entirely baseless. The manner in which the charge was made has caused much pain; and the slightest inquiry into the necessary method of procedure, would have shown that the supposed shuffling of applications was impossible. Applications continue to pour into the Commission offices, although in diminished volume. It is clear that even the augmented staff of Assistant Commissioners is quite inadequate to deal with the enormous number of cases now entered, in every one of which the applicant will demand a separate hearing and argument. There is one plan by which much difficulty, expense, and time might be saved. The Government might advise the Lord Lieutenant to appoint a sufficient number of the County Court judges to be temporarily Assistant Commissioners under the Act, and associate with each of them, in order to recommend them to the confidence of the people, two Assistant Commissioners—not mere assessors, but possessed of equal power. One great advantage of such a plan would be that each Sub‐Commission, so constituted, would have at its head an experienced judge, accustomed to the working of the Act of 1870. He would certainly not commit any of the errors attributable to some members of the existing Sub‐Commissions, and at the same time, if he took an unduly technical or harsh view of a case, he would be overruled by his two colleagues.1

It does not yet appear that much rent is coming in. From inquiries made of certain gentlemen well qualified to judge, I p. 110 can say that outside Ulster, but a small proportion, certainly not a tenth, of the autumn rents has been paid. On estate after estate there is the same story. The tenants demand large reductions; the agent, being without authority, declines to allow them, and the result is that no rent at all is received. This is the account heard from Galway, Kilkenny, Cavan, Monaghan, Carlow, West Meath, Wexford, Longford, King’s County, Kildare, Waterford, and even Dublin. Affairs are rather better of late in Sligo, Roscommon, Mayo, and parts of Longford. The following, copied from a document, has just been received by a Galway agent:—‘Sir,—We, the undersigned tenants of ——, the townland of ——, expect you will exercise your influence with our landlady in our behalf to obtain for us a fair reduction of our rents; otherwise we must have recourse to the Land Commission Courts.—Nov. 12.’

A lamentable tale of outrages comes in daily from the south and south‐west, and the district about Mallow is again infamously distinguished in this respect. There is only one remedy for such deeds as are commonly done in that part of the country. If any feature of Government, even one so venerable and sacred as Trial by Jury, be set at naught and perverted, to the danger of the State, it must be supplemented with something more effectual.

1. This suggestion was, I believe, considered by the Law Officers of the Government, and pronounced to be hardly in accordance with the Act.

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