Letters to Lord John Russell on the Further Measures for the Social Amelioration of Ireland/Letter 4

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Measure next in importance, a Tenant-right Law—The want of industry imputed to the Irish peasantry caused by the denial of the only motive to industry, security for enjoying its fruits— Objects of required measure must be retrospective, not prospective only—Must not depend on consent of landlord,

My Lord,

Great and primary, as the importance is of a measure for developing the vast resources of the waste lands, I am by no means desirous of putting this forward, any more than the Poor-law, as the one and only thing needed for the regeneration of Ireland. On the contrary, I have already spoken of an improvement of the law of land-tenure as almost equally indispensahle. This alone can bring about that rapid improvement and spirited cultivation of the lands now under tillage or in pasture, which are as certain to ameliorate the condition of the labourers and farmers, and to increase the produce and wealth of the country, as the reclamation of its wastes.

Now, there exists an almost universal agreement of opinion in Ireland upon the essential requisites of such an alteration of the law of land-tenure as will alone bring about this result; namely, that it should, in some shape, secure to the actual cultivator of the land the undivided fruition of the increased produce he may raise, or the increased value he may give to his farm, by his industry, or the expenditure of his capital.

This is confirmed by the same high authority to which I have just referred—the Digest of the Evidence taken by the Devon Commission. That evidence, it is declared, "shews that the master evil of Ireland, poverty, proceeds from the fact of the occupiers of land withholding the investment of labour and capital that lies within their reach on the farms they occupy, because they are not certain of being permitted to reap a reasonable remuneration from their exertions."

And how can it be otherwise? Who will [work for others, as he would for himself? Who] will drain, fence, build, or make any permanent [improvements on a farm from which he may be* turned out at the end of six months, or his rent raised to the extreme value he may himself create in his farm? The condition of all industry is the right to enjoy its fruits. The bees, it is true, those models of industry, are, like the Irish peasant, robbed ever year of the results of their labour, and yet continue to toil on. But the bees do not foresee this hard fate; while the quick-witted Irishman knows that what has happened before will very likely happen again, and taking warning by a neighbour's fate, only labours so far as just to live, in the conviction that any surplus he could by any effort produce, beyond the barest necessaries of subsistence, would go to his landlord, not to him*' self.

Hence the wretched cultivation of the greater part of Ireland. Hence the almost total want of farm-buildings. Hence the miserable hovels, in which the farmer's family and bestial stock often herd together. Hence, also» the largest proportion of agrarian outrages, which are sanctioned by the sympathy of the great bulk of the tenantry, as maintaining that system of intimidation which they consider necessary to protect them (in the absence of any legal security) in the occupation of the poor tenement and meagre livelihood they do possess.

It is an idle dream to suppose that this state of things can be put an end to, except by giving to the peasant farmers of Ireland—those who have possession of the land, and from whom it is hopeless to expect to get it away—however small their holdings, or seemingly deficient their means of improved cultivation, that {{sc|motive]} to industry which consists in the certainty of being allowed to enjoy its fruits. Without this, vain will be the model farms, and agricultural societies, or lectures from Mr. Huxtable or Mr. Blacker themselves. Vain even your alternate lectures and loans to landlords, or the stimulus of the poor-rate,—unless the occupiers of the soil are raised from that slough of despond in which they now waste their existence, by the legal concession to them of that which ought to be the first law of the social compact, the right to reap what they may sow—to enjoy what they may create.

By what particular legislation this should be accomplished may admit of dispute. Not so, that it must be immediately and thoroughly done, if Ireland is henceforth to maintain her population by the development of her ample natural resources. Many demand for this purpose the universal extension of the kind of tenant right which has made Ulster prosperous,—as compared with the other three provinces—has maintained harmony between land, lord and tenant, securing his rent to the former, and comfort to the latter—has always preserved the province from agrarian outrage, and saved its inhabitants from the extremity of famine last year—a system, in fact, which has been tried and found successful on the experience of centuries.

Others, objecting to the extreme difficulty of estimating the good will which custom, not law, has appropriated to the Ulster tenant, recommend a compensation t)n quitting for permanent improvements, to be valued by some independent arbitrator.

Some, under the term "fixity of tenure," would give to every occupier an absolute property in his holding, subject only to his present rent, or one to be determined in future by some third party.

The last proposal partakes, no doubt, of a revolutionary character. But it is that simple solution of the question to which events are rapidly tending—unless anticipated by a just and efficient change in the law of tenure, which shall reconcile the rights of both- the cultivator and the landowner.

I feel that I expose myself to the charge of presumption in putting forward any opinion I may have formed upon the mode in which this knotty question of tenant-right in Ireland can be best solved. But having been led to consider the subject closely so far back as 1835, when a member of Mr. Lynch's committee—having for many years past supported Mr. Sharman Crawford in his earnest and persevering advocacy of a legal compensation to tenants for their improvements—having fully studied the evidence recently given before the Devon Commission—and anxiously watched the progress of opinion and current of events by which some immediate settlement of the relations between landlord and tenant in Ireland is rendered imperatively necessary to avert (let me speak it openly) an agrarian revolution or civil war—I do venture to think that the opinion of an impartial bystander, who has long made a study of the economical bearings of the various modes of land4enure that prevail through the world, may not be without its utility in the present emergency, as a contribution to the amount of thought now directed to this question.

Let me begin by remarking that the object to be held in view in legislating upon the subject at this time is two-fold:—

First, To calm the excitement that so generally prevails throughout the class of occupying peasantry in Ireland, and induce them to relinquish that spirit of combination against the law, and that sympathy with agrarian crime, which are engendered amongst them by the insecurity of their present tenure, and which, so long as they last, will be an effectual bar to the introduction or investment of capital in the improvement of Irish agriculture.

Secondly, To call forth the utmost industrial energies of those who have the soil of Ireland in their possession, by guaranteeing to them the full benefit of any increased productiveness they may create.

The first of these objects has not, I think, been sufficiently kept in view by many who have proposed alterations of the law of landlord and tenant. The measure which was produced to Parliament by Sir Robert Peel's government, and even the recommendation of the Devon Commission, equally had this serious defect, that they related only to future improvements, and had no reference to those already effected by the existing tenantry. In a word, they were merely prospective, not retrospective in their operation.

Now this I conceive to be a fatal error. It overlooks altogether the necessity of reconciling to the law the minds of the present race of tenants, by the just (and nothing more than just) concession to them of that property which they now hold in practice, however much in defiance of law. It must, therefore, fail in attaining the object above referred to, as first to be considered in framing a legislative measure which shall not be altogether ineffectual.

It is impossible to dispute the pact that the great bulk of the occupying tenantry of Ireland have acquired for themselves an actual possessory property in their farms, far beyond what the law allows to them. The custom of the sale of tenant-right or good-will, even in the case of farms held from year to year, is declared by the Devon Commissioners to "prevail in most parts of Ireland" (p. 290, Digest).

Few persons perhaps have considered how large an amount of property in the aggregate this custom covers. Supposing the goodwill of farms throughout Ireland to be worth on the average ten years' purchase, which is certainly below the average of Ulster; and taking the rental of Ireland at fifteen millions only, the total value of the tenant-right will be a hundred and fifty millions, distributed in amounts of from ten to a few hundred pounds among nearly a million of persons—the bulk, in fact, of the people of Ireland!

If this be considered too high an estimate, still, under any supposition, the amount must he very considerable. And this, which constitutes the chief, almost the only, property of the middle class of Ireland—a property continually bought and add, ininherited and pledged by them for loans and debts—is, notwithstanding, as yet unrecognized by law! So at least run the most recent decisions of the courts.

Can any state of things be more unjust—any more dangerous to the peace of society—any more fatal to the hope of agricultural improvement? Obviously, the first step towards conciliating the attachment of the peasantry to the law, and giving to it that semblance of agreement with right and justice which alone can ensure their respect for and observance of it, must be a measure to give the sanction of law to that which is, and has been for a long time past, the notorious and practical custom of the country.

If this be not done, it is surely hopeless to expect that they will peaceably submit to a law which they have hitherto more or less effectually superseded by a legislation of their own—a law which denies to them those rights they have to a great extent secured to themselves in practice. If this be not done, it is vain to expect to check those agrarian combinations, which, in the words of the land commissioners, "link most occupiers of land in one common and well-understood cause, producing an uniformity of action in resisting the exercise of legal rights," and causing "the mass of the population to sympathise with the perpetrators of crime, and even of murder."

Any promise, therefore, of compensation for future improvements only, leaving past claims unsatisfied, must fail to conciliate to the support of the law the existing race of tenants, or induce them to apply their industry and capital henceforward to the work .of improvement. They will not believe in promises of payment for improvements they may hereafter make, if their claim be refused for such as they have already made. Justice would seem to require the one no less than the other.

Take for example the case related by the Rev. Malachi Duggan, of Clare, where "a poor man named Crotty built a nice dwelling-house." His landlord, before long, "taking a fancy to the house, which was a pretty thing, paved all round, and with back offices," "picked a quarrel with the man, and threw him out on the highway, where himself and his wife shortly died," (p. 176, Digest). If that poor fellow were alive, and in the occupation of his little holding, is he to be told, "you must quit and give up the nice house you have built; but if you like to build another, the law shall give you a lien upon it?"

Or take the cases related by Mr. Robert M'Crea, of the county of Tyrone, as within his knowledge (p. 174), in which the rental of small farms has been doubled "in consequence of a house being built by the tenant himself, without a stick, stock, stone, or slate having been got from the landlord." Are tenants under such circumstances to be left without protection, because they have not waited for a change in the law to improve their farms, but have trusted to the chance of their landlord's leniency, or to the safeguard which agrarian intimidation has hitherto afforded?

Then, if this be so, to agrarian intimidation they will still look for the preservation of that interest in their holdings, to which they feel by all principles of natural justice they have a right, and which, practically, they for the most part do possess; and security for life and property—the sine guâ non of social regeneration—will be hopeless of attainment in Ireland.

On these grounds it appears to me indispensable that any legal title which may be given to tenants to compensation for improvements, must have a retrospective operation.

Another point of almost equal importance in my view (but which seems to have been equally overlooked in the recommendation of the Devon Commission) is, that the apathy, indifference, or short-sighted niggardliness of the landlord shall not be permitted to prevent real improvements from being executed by the tenant. The consent of the landowner, therefore, must not be made a necessary condition to the establishment of a claim to compensation. It can hardly be doubted that, in a large proportion of cases, the reply of the landlord to any notice from a yearly tenant that he intended to make some improvement for which he expected compensation, would be either a notice to quit, or a demand for an increased rent as the price of a permission to improve.

Mr. J. Moran, farmer and valuator of county Wicklow (a county whose landlords are by no means the worst in Ireland), says:—"If the landlords have the option of only improving as they please, they will not do it at all. They will be like the dog in the manger, they will not do it, nor let their tenants do it." (p. 189, Digest).

If this be considered too sweeping as a general assertion, still it must be admitted to be true iii very many cases, and in those above all where impr7vement is most required, having been most neglected hitherto, the estates of absentees, of minors, of embarrassed and needy proprietors. It seems to me that the interests and rights of the landowners would be sufficiently protected by such a law as is recommended by several witnesses from: the county of Wexford, one of the best managed counties in Ireland—by Captain Simon Newport, among others, a land agent and magistrate, who vouches for the assent and concurrence of Lord Carew in the suggestion, namely, "That the landlord be required to reimburse an outgoing tenant for all his bona fide improvements, whether buildings, drainage, fencing, reclamation of land, or other of a more or less permanent character. In case of non- agreement between the parties, the amount of compensation to be finally determined by a court of arbitration at quarter or petty session" (p. 187). The principle to regulate the amount should be, in the words of C. A. Walker, Esq., landed proprietor and deputy-lieutenant of the same county, "the fair residue of the value of every improvement which the tenant (or his predecessors within some limited antecedent period) had effected on his holding at his own cost."

It would not appear to be a very difficult matter to estimate this, by taking first the letting value of the land in the absence of these improvements, and deducting this from the present improved value. The remainder would be the portion fairly claimable by the tenant, for which, if forced to quit, he should be paid at a fixed number of years' purchase.

"I feel perfectly convinced," says Mr. Walker, "that if this principle were enforced by law, agrarian outrages would cease, and all the supposed good effects the advocates of fixity of tenure and a maximum of rent now seek for, would be secured. It would become a matter of comparative indifference whether there were leases or not; and the increased profit which the tenant would derive from the secure outlay of his capital in the improvement of the land, bringing with it an increased produce, would raise the estate and condition of both landlord and tenant. I have very extensively conversed with farmers upon the subject, and without a single exception they agree that it would settle the question, and be the true 'equity of tenure.'"—(p. 186, Digest.)

This seems rather a sanguine view, however, and it would still remain, I think, necessary (in Ulster at least, if not elsewhere) to allow the tenant some compensation for goodwill, independent of, and beyond, the proved value of his improvements. This might be based on the custom of the country where it exists; or on the fact, if established, of the tenant having purchased such goodwill on entry with the presumed knowledge of the landlord or his agent. It seems but just to admit such a claim. Nor is it at all likely that tenants under these circumstances will be satisfied otherwise that justice is done to them.

It appears to me that the two principles of compensation should be combined, and an amount adjudicated, compounded of the two, so far as they apply to the special case; namely: 1. The claim for goodwill, if justified by usage or special circumstances. 2. That for improvements made within a limited period.

An unbiassed independent tribunal of arbitration would, probably, be enabled to establish before long such a series of decisions as would serve to regulate private arrangements; and if they appeared conformable to equity, the peasantry would unquestionably be satisfied that the law afforded them a more secure guarantee for the enjoyment of the fruits of their industry than the self-organised system of intimidation on which they are at present driven to rely; but from which they suffer grievously themselves.

Were a law of this character recommended by your Lordship to the Legislature, and enacted without delay, and a large reclamation of the waste lands at the same time set on foot, by which the intense competition of struggling multitudes for the means of living might be diminished, and employment provided to the able-bodied poor; if two such measures as these be simultaneously brought in aid of the wholesome operation of the Poor-law enacted last session, and the latter firmly carried out by the central authorities, no one need despair of the future prospects of Ireland. The affections of the entire body of the peasantry, whether farmers or labourers only, would be thereby conciliated effectually to the Imperial Legislature and to British connexion. They would feel that they were no longer neglected by the law, and left at the mercy of others—that by their own industrial exertions they would be able henceforward to raise themselves from their present deplorable, or at best but precarious, condition, to one of comfort and respectability.

Security for life and property would be effectually attained, and the vast natural resources of the island speedily developed, by no other magic than simply conceding to it sinhabitants the right (hitherto denied to the vast majority) of turning those resources to their own benefit. Such is, fact, the character of the two measures. I am venturing to urge upon your Lordship, for the opening up of the waste lands, and the establishment of an equitable system of land tenure. I remain, my Lord,

Your very obedient servant,
G. Poulett Scrope.

Castle Combe, October 15, 1847.