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Report of Her Majesty's Commissioners of Inquiry into the Working of the Landlord and Tenant (Ireland) Act, 1870, and the acts amending the same online

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if the landlord desires to get possession of the farm,
and turns out the tenant, that tenant is disturbed^
and I hold that there should be a penalty put upon
the landlord for that- disturbance, over and above the
full market value of his holding.

4649. That is on the supposition that the right of
eviction remains as it is ; but supposing the law were
altered so that the tenant should not. be evicted at
all, as long as he paid his rent, then i;io question of
compensation could arise ? — Of course not ; and my
plan is inferior to that : I would fain hope that what
you have mentioned will be the law.

4650. That is the reason you say " my ideas " are
more advanced than yours ? — Yes.

Mr. Black. — Perhaps you will allow me to say this
on the subject of peasant proprietary : I would not
expropi-iate the landlords by any Act of Parliament,
that is to say, I would not compel them to sell their

property, but I would remove the obstructions that Sept. 21, 188O.
now exist to the free sale of estates, and pennit such „ —

a natural distribution of the land as would take place c M'ElJoy!
under those circumstances, and I believe were those
obstructions icmovcd there would be before, a century
had elapsed a considerable proportion of the land of
this country in the hands of the occupiers ; but in the
meantime I think it necessary that the ocoujiiers
should have some kind of security of tenure at fair
rents :ind the right of free sale of their holdings, in
order to do away with the evils which we find con-
nected with the tenure of land in this country. I do
not know whether Mr. M'Elroy differs from me when
he says he would not expropriate the landlords. I
would not expropriate them against their will, but I
would remove all obstructions to the free transfer and
distribution of land.

4651. Baron Dowse. — In short, you would not
object to the natural creation and extension of a
peasant proprietary in Ireland 1 — Precisely.

4652. But you would object to any artificial or
compulsory scheme for doing it ? — Yes ; I am not
now speaking of the Bright Clauses, which I believe
to be beneficial. I would remove the obstructions
which at present exist, and which I believe have been
the fotmdation of the whole of the present imbroglio.

4653. Chaieman. — Is there any other matter which
you wish to add to the evidence you have already
given? — Mr. M'Elroy. — I would wish to call your atten-
to tlie statement which I now produce, and which in
raj judgment is the most valuable statement that has
ever appeared upon the subject of the Ulster custom.
It was written by the late Dr. James Maoknight, who
had devoted great attention to the subject, and knew
more about it than most men in the country.' It is
clear, logical, and argumentative, and not lengthy. I
think the Commissioners would do the public a great
service by allowing it to be embodied in their report.

4654. Baron Dowse. — Do you concur with Dr.
Macknight in his statement ? — I do ; and I would ask
to be allowed to hand it in as part of my evidence.

[Witness hands in the following statement.]

Having been requested to prepare a paper on the " Ten-
ant-liight Custom of Ulster," for the purpose of bringing
the subject before this Conference, it is, I confess, with
some reluctance that I have undertaken the task. During
nearly thirty years of my public life, I have been incessantly
engaged in discussions on this subject, and in taking it up
on the present occasion, I feel not a little of the irksome-
ness belonging necessarily to self-repetition, accoinpaniud
■with a tacit consciousness of reproducing only facts and
arguments with which the great majority of this assembly
are already famiUar. The object, however, as I understand
it, is not so much to impart any new information on a
"threshed out" topic — an achievement to which, at the
present day, I can make no pretence — but to present the
question in a systematic, though condensed form, by way
of an outline-text for regulated deUberation. With this
view, it appeiirs to me that a few consecutive observations
on the '■ origin, essence, and legrdized development, of
the Ulster Tenant-Iiight Custom," will bring before the
Conference all the leading points necessary to be considered
with a view to practical legislation hereafter.

My own theory from the first has been that the " Orders
and Conditions of Plantation," issued by the British Crown
in the beginning of the 1 7th century, by making the
"Undertakers," or original landlords of Crown lands m
Ulster, to be a species of public trustees for the State, in
direct and publicly declared contrast to all feudal and
irresponsible ownership of the soil, had the effect of creating,
on behalf of Plantation tenants as such, an ipso facto interest
in the soil proportioned to the difference between Plantation
ownership and feudal ownership, as legally constituted.
Every " Undertaker," or original Plantation landlord, was
compelled to sign a. stringent formula binding himself to a
faithful, undeviating observance of the Plantation coven-
ants laid down by the Crown, before the Royal Seal could
be affixed to his " Letters Patent :" and a legal confis-
cation of these title-deeds was the penalty universally
declared in case of disobedience, I may here premise that
the law of territorial forfeiture had placed the absolute
ownership of si.'c whole counties of Ulster in the hands of
the Crown ; and the , Sovereign, for the time being, might
have retained in his own possession this immense territory

Z 2



Sept. 21, 18S0.

Mr. Samuel
C. M'Elroy.

converting it into a source of revenue for his own royal
benefit, and leaving it as a rich inheritance to his family
successors in after ages. James I., did not adopt this per-
sonal policy, and in the preface to his " Conditions of Plan-
tation," he boasts of his own royal disinterestedness, and
puts it forward as the gTound and reason of the restrictions
which lie had decreed in i-eference to Plantation landlordism.
The King's words are — " His Majesty, of his princely
bounty, not respecting his own profit, but the public peace and
welfare, * * is graciously pleased to distribute the said
lands to such of his subjects, as well of Great Britain as of
Ireland, as being of merit and ability, shall seek the same,
with a mind not only to benefit themselves, but to do service
to the Crown and the commonwealth.

In the very next paragraph, the King gives this signifi-
cant warning, that — ''Forasmuch as many persons, being
ignorant of the conditions whereupon his Majesty is pleased
to grant the said lands, are importunate Suitors for greater
portions than they are able to plant, intending their private
profit only, and not the advancement of the puhlic service, it is
thought convenient to declare and pulalish to all his Majesty's
subjects * * * the Estates, the Rents, the Tenures, with
other articles to be observed, as well on his Majesty's behalf,
as on the behalf of the undertakers, in manner and form
following," &c. (Walter Harris's " Hibernica," Vol. I.
page 63, Dublin, 1747.)

Exclusiveness and intolerance were amongst the dominant
vices of the ago in which the Plantation settlement was
effected, and all parties at that era were more or less tainted
with these infirmities whenever they had their adversaries in
their power, wliile the unhappy civil wars, by which Ireland
had been previously desolated, made one-sidedness to be a
political necessity of the first Plantation arrangements.
The liberal legislation of subsequent ages has, by the
establishment of civil and religious equality before the law,
entitled all tenants, resident within Plantation boundaries,
to the equiil enjoyment of Plantation rights and immunities,
without regard to differences either of race or of religion.
With this explanatory remark, I may mention that the
undertakers were divided into three classes, first, English and
Scottish Servitors who could let lands only to their own
countrymen ; secondly. Servitors in Ireland, who could let
lands to native Irish as well as to other tenants; and
thirdly, aboriginal Irish who were to be made Freeholders.
The Crown rents charged to English and Scottish under-
takers were fixed at six shillings and eight pence for every
three score English acres, or a fraction less than three half
pence per acre. The Irish Servitors were to pay at the rate
often shillings per sixty English acres, or two pence per
acre, but if they took none but British tenants, they were to
have the benefit of reduction to six and eight pence, as in
the first class, while the Irish Freeholders were to pay
thirteen shillings and four pence for every sixty acres, or
double the Crovm rents charged to British Planters This
was monstrous partiality, but still it involves a principle of
fundamental value in regard to the status of Plantation
landlords, and Plantation tenants respectively, in the
apportionment of rents, as we shall see presently.

Every estate, or " proportion," as it was then called,
demised by the Crown to primary landlords, or " under-
takers," consisted of land fit for agricultural occupancy, and
for this class of lands alone were Crown rents charged,
bogs, barren lands, and grounds covered with woods or
forests in the surrounding neighbourhood, being marked off
and thrown into each " proportion " by way of gratuity,
without any Crown charge whatsoever, and till the present
day the owners of Plantation estates in Ulster pay Crown
rent only for the number of acres specified in the Letters
Patent that were issued to the original "undertakers,"
unless perhaps in some very exceptional instances in which
new patents may have been taken out at subsequent periods.
The original landlords were mere adventurers who expended
not a shdling upon the reclamation or improvement of the
soil ; every work of this description was executed exclusively
by the occupying tenants themselves at their own sole costs
and charges. In consequence of these tenant labours, con-
tinued through successive ages, the original estates have
been augmented, not simply four or five-fold, but actually
ten-fold m many cases, and modern proprietors are drawing
enormous revenues from reclaimed estates created exclu-
sively by tenant capital, and tenant labour, and for which
estates the now recognized owners pay not one farthing of
rent to the Crown. A single example will illustrate the
extent to which this process of estate- enlargement has been
carried on through the province. At the time of the plan-
tation, the great wood of Glenconkein, in county Derry,
extended from Dungiven down to the banks of the Foyle
on one side, and to the vicinity of NewtownUmavady on the
other, while so dense was this forest that Hugh O'Neill and
his whole army took refuge in it from the forces of Queen
Elizabeth, not many years before the plantation era, and

the Tyrone chieftain could not have been dislodged from
this impenetrable fastness, had he not been betrayed by the
O'Kane. At the present day, the only visible remnant of
the gigantic forest in question is a stripe of comparatively
stunted undergrowth popularly known as the wood of Bally-
kelly, the intermediate .«pace between the latter and Dun-
given having been cleared, broken up, and brought into its
present cultivated condition, by the predecessors of its
existing occupants, with tlie possible exception of a few
isolated tracts of no great magnitude or importance. For
the re-building of Deny City by the London Companies,
the Crown allowed £50,000 worth of magnificent oak
timber, or about half a milhon's worth in our present cur-
runcy, to be cut down in Glenconkein, and from this
circumstance alone, the clearance work effected by the
plantation settlers in county Derry may be readily conjec-

The Crown reserved to itself the special guardianship of
the Plantation, including the right of sending Commis-
sioners to inquire into the conduct of Plantation landlords,
to ascertain whether they gave proper tenures to their ten-
ants, all tenancies at will having been stringently prohibited
in the Plantation " Conditions " ; and particularly to dis-
cover whether in regard to the rents charged, the " under-
takers had consulted "their own profit," instead of the
" public service," as they were bound to do, and in con-
sequence of one of these Commissions, commonly known as
" Pynnar's Survey," James I. — the very monarch who had
established the Plantation — instituted equity proceedings
which, in the reign of his successor, Charles I., ended in a
wholesale confiscation of all the estates held by the Lon-
don Companies in county Derry. Amongst other breaches
of Plantation engagements, it was proved that the
delinquents had let lands at the rack-rents paid by the
tenants of native "Irish freeholders" who, as already
stated, were charged by the Crown double the head-
rent required from English and Scotch undertakers,
and who were consequently at liberty to charge propor-
tionate rents to their own sub-tenants. The allegation
filed in court, on behalf of the Crown, was that its own
intention had been that Plantation landlords should give
to Plantation tenants the "full benefit" of the Crown's
generosity towards themselves. This legal plea was sus-
tained, and its result is, that according to the original in-
tention of the Crown, a Plantation rent ought never to
exceed one half the absolute rack-rent value of the holding
demised, while no such thing as mere tenancy at will was
legally allowed to exist within Plantation boundaries.

In a celebrated appeal case decided by the House of
Lords in 1846, the fact came out that legally the Crown is
still the guardian of the Plantation, and possesses an
abstract right of calling Plantation landlords to account
for their administration. The difficulty in the way is, that
the Court through which, in the 17th century, the Crown
had been accustomed to act was abolished by the Long
Parliament, and no substitute tribunal was named in its
room. The Koyal prerogative in this respect has conse-
quently lain in abeyance ever since, and our present Courts
of Equity would decline the responsibility of its revival.
Had this oversight, on the part of the Long Parliament
been avoided, Ulster landlordism, at the present day, would
have been, in law, neither more nor less than a responsible
public trusteeship.

As bog-battles between noble lords and their tenants
have been lately becoming one of our modern institutions,
it may be remarked in passing, that bogs have been added
to estates without any Crown charge, the self-evident
intention of this gratuity was, that the tenant people
resident upon those estates should be supplied with fuel
free of all charge. -Amongst the populace even at the
beginning of the present century, bogs were commonly
designated as ^'■royalties,'" for which landlords had no right
to make any charge, and at the time mentioned, landlord
interference with bogs was certainly unknown in county
Down. I remember perfectly well the commencement of
this interference, and the sensation it produced ; but un-
happily, in those days, there were no "Tenant Defence
Associations," and original usurpation has since become
sanctified by " effluxion of time."

The original " Undertakers," or Ulster landlords, were
peremptorily bound to let one-third of their proportions
in absolute perpetuity, and the remainder on secured titles
for " years, for life, in taile, or in fee-simple," no such thing
as tenancy at will being permitted, while, as we have seen,
the rents to be charged must be strictly in proportion to the
crown-rents paid by Plantation landlords themselves ; that
is, as already shown, these rents must not exceed half the
rack-rent value of the soil. This arrangement clearly cstab-
hshed, on behalf of Plantation tenants as such, a beneficial
interest in the soil to the extent described, be the same more
or less, and, in addition to this primary claim, the settlers



possessed all the cumulative interest arising from buildings,
reclamation, drainage, fencing, and converting unproductive
T/astes into fruitful lands, and green pastures, the proprie-
tary orders having never expended a shilling of their own
money upon the improvement of the land. The Royal guar-
dianship having fallen into desuetude, as already stated, the
Ulster tenantry, with the perfect knowledge and assent of
the landlords, established amongst themselves a regulated
system of dealing, known from the earliest period as the
" tenant-right custom," whenever a plantation occupant
wished to leave his holding, this custom, in its simplest and
most elementary form, being neither more nor less than the
RIGHT of SELLING his '■'■ ffood jtj'H," meaning his total interest
of every description, to the highest and best bidder, either at
a private sale or a public auction. Humanity was precious
in those early days ; the population was sparse, tenants were
not quite so " plenty as blackberries," and the Ulster land-
lords, provided their rents were paid, never troubled them-
selves about individual purchases. One tenant sold out,
another party bought him out, and if this party, when gale
day came round, punctually came forward with his rent,
neither landlord nor agent ever made any further inquiry
about the transaction. This was literally the " Ulster
custom " in its primitive form, and in this form it continued
till after the first quarter of the present century had elapsed.
A. desperate attempt had been made m county Antrim,
about the middle of the previous century, to destroy the
3ustom, which attempt provoked the reactionary insurrec-
tion so well known as the " Hearts of Steel," and landlords
were chary about indulging in any new experimental aggres-
sion. From this historic era till the period already indicated,
the current impression both amongst Ulster landlords and
Ulster tenants was, that the tenant-right custom had,
through uninteiTupted usage become self-legalized at common
law after the example of parallel customs in England, the
common law of both countries being confessedly one and the
same. About the year 1830, orprobably a year or twolater^
I cannot at this moment fix the date precisely — a landed pro-
prietor in county Armagh, a predecessor, I believe, of the
Duke of Manchester, disputed a tenant's claim to the custom,
and the case was tried at the Armagh assizes, when, to the
jurprise of the landed gentry, and the alarm of the tenant
population, the judge's decision was in pointed opposition
to the legality of the "custom." A second case, if my recol-
lection is correct, was soon afterwards tried with a parallel
result, and landlords forthwith commenced a widely spread
movement for restricting the provincial usage, with a view
to its final abolition, and also to an enforced assimilation of
Ulster tenures to those of England. This attempted usur-
pation gave immediate rise to a formidable organization
known as the " Tommy Downshire Boys," whose exploits
are within the range of stdl living memories. These were
the circumstances which, in 1835, induced Mr. Sharman
Crawford, in conjunction with the late John IM'Cance,
then member for Belfast borough, to bring his first tenant-
right BiU to the Imperial House of Commons. In the fol-
lowing year Mr. Crawford was joined by Richard Lalor
Shiel, then in the height of his oratorial celebrity, and Mr.
Shiel's name, in association with that of Mr- Crawford, is
endorsed on the back of this first tentative charter of Irish
tenant-right security. The history of the question from
that era to the present needs no recital.

The Devon Commission, appointed on the 20th of Novem-
ber, 1843, and which presented its Report to Parliament in
February, 1845, was a Commission entirely in the interests
of Irish Landlordism. The evidence collected by this body
was, and still is, extremely valuable ; but the Report which
the Commission drew up is intensely hostile to the Ulster
Custom, stigmatizing the latter as dangerous to the "just
rights of property," recommending Ulster Landlords to
destroy it by sapping and mining, instead of open warfare,
and all this while recognising " Tenant-right " as the found-
ation of Ulster's prosperity I Ulster Landlords have, in
fact, acted upon the advice of the Devon Commission, and
most of the restrictions and usurpations, embodied in what
are now called " Estate Rules," owe their origin entirely
to the counsels of this one-sided Commission.

The testimony of a declared enemy, when favourable to
his antagonist, is invaluable, because above all suspicion ;
and the testimony of the Devon Commission in regard to the
genuine Custom of Ulster, as a matter of fact established by
their own inquiries, is consequently inappreciable. In page
1 4 of their Report, the Commission acknowledge that the
usage " dates frora a very early ■period " — that it is " neither
extraordinary nor unreasonable that a tenant on quitting his
farm," in the earlystateof society in Ulster, " should obtain
from his successor a sum of money, partly in remuneration
of his expenditure, and partly as a price paid for the posses-
sion of land, which the new tenant would have no means of
acquiring." Having premised this explanatory statement,
the Commissioners, in the next paragraph, go on to say : —

Mr. Samuel
C. M'Elroy.

" From this state of things, a feeling of PBOPurEToRsmp Sept. 21, isso,
appears to have grown up in the tenant, which lontinues in
a great degree to the present day ; and the ex!ant to which
it prevails may be seen by reference to various parts of the
evidence taken in the Province of Ulster."

" Under the influence of this custom," the Commissioners
go on to say, "the tenant claims, and genebally E3ij:RcrsES ,
A BIGHT TO DISPOSE OP HIS HOLDING for a Valuable consider-
ation, although he may himself be a tenant-at-will, and al-
though ho may have expended nothing in permanent improve-
ments." This was the tenant-right claim in 1845, and
notwithstanding the determined inroads attempted during
the previous ten or fifteen years, all that the Devon Com-
mission could say in that year was — that " Proprietors gener-
all)' have been enabled to place a restriction upon this tenant-
right, so far at least as to secure a power of selection with
respect to the tenant, and to place some limit upon the, amount
to be paid." The evidence taken by the Commission shows
that very little progress indeed had been made in the limi-
tation of prices by Estate Regulations.

This Landlord Commission, then, has established the fact
that the essence of the Ulster custom consists in a tenant's
" claim " of a proprietary right, or interest in the soil, which
.right or interest, this same tenant further asserts it to be his
hereditary prerogative, sanctioned by immemorial usage, to
SELL to the highest and best bona fide purchaser, either by
private agreement, or at an open, fair competitive sale.
From this simple principle of subsisting tenant-interest, and
a right to sell it, the collateral equities of the custom follow
by direct logical necessity. It follows, for example, that no
increase of rent, levied upon the tenant's interest in the soil,
can be legitimately demanded, since; this would not be mo-
rally different from highway practice : — It also follows that,
since no man can be turned out of his property without
having first hQ&n paidits full value, ''■continued occupancy,"
at a rent fairly proportioned to the landlord's share, is a
necessary corollary of the custom, and consequently that,
under this tenant-right custom there can legally be no such
thing as Arbitrary Eviction.

This brings us to the question — "What is it that the Irish
Land Act has really done by legalizing the Ulster Custom ?
The Devon description of Ulster tenant-right has now been
twenty-eight years before Her Majesty the Queen, before
Parliament, before successive administrations, and before
the Imperial public, so that all parties must have known per-
fectly well the nature of the legislative change intended.
The Land Act, then, has declared Ulster tenant-right to
be, in law, a proprietary interest in the soil, and subject, of
course, to all the collateral equities belonging to individual
property in general, namely, that no stranger can arbit-
rarily confiscate it, or drive out its owner, without first
paying to him its full marhetahle value as property, nor can
the said supposed stranger legitimately compel a sale at all,

Online LibraryGreat Britain. Commissioners of inquiry into the wReport of Her Majesty's Commissioners of Inquiry into the Working of the Landlord and Tenant (Ireland) Act, 1870, and the acts amending the same → online text (page 121 of 295)