Land Tenures

From Modern Ireland: Its Vital Questions, Secret Societies, and Government, 1868

By an 'Ulsterman'

As evidence of the peculiar relations existing at the present moment between the classes connected with land in Ireland, some characteristic cases may be cited. The general practice is not so bad as that revealed by them, but they manifest what the law permits and what the executive considers itself bound to enforce, when called upon, by the aid of an armed police and detachments of the military.

In 1858, the case of O'Fay v. Burke came before the courts. The former was parish priest of Craughwell, Co. Galway; the latter held the rank of major in the army. Major Burke's father had invited Dr. O'Fay to become tenant of a farm, and promised him a lease for life, and £20 "to get up a cottage." Dr. O'Fay took the farm on this understanding, and at the death of Mr. Burke in 1854 he had expended about £64 in improving the land. Soon after Major Burke had come into possession, Dr. O'Fay applied to his agent for an extension of the term promised, but was informed that Major Burke had decided to make no leases on his property. A month after, on the 22nd of April, the agent wrote to him stating that, before leaving for the Crimea, Major Burke had directed that notices to quit should be served on all the tenants with a view to raise the rent. Dr. O'Fay, in reply, denied that he held as a yearly tenant, and sent a copy of the late Mr. Burke's letter dated in 1848, promising that he should have a lease for life.

The rent of the other tenants was duly raised, but he did not receive any notice to quit, nor was his rent raised. He naturally regarded this as an acknowledgment of the validity of his claim of tenure for life, and went on with his improvements. Major Burke returned in 1855, and saw the buildings and drainage in course of completion. In this way £450 were expended after Major Burke having taken up his residence close at hand, in addition to £93 expended before he had arrived. Major Burke, it was stated, not merely visited the improvements, but expressed his approbation of Dr. O'Fay as the most improving tenant on his estate. In his affidavit he, however, denied this praise, stating he considered him to be the least improving tenant of any on his property. "If this be true," was the comment of the Master of the Rolls, "Major Burke must have a very remarkable tenantry, the worst tenant on the estate having expended £543 on the small property" (thirty acres), "which he claims to hold for life, and being sixty-two years of age!"

Considering that, as a rule, the tenant-farmers of Ireland have built all the farm-houses and out-houses in Ireland, it may certainly be said that, in that respect, they are the most improving tenantry in the world.

After the improvements had been made, in October, 1856, Dr. O'Fay was ejected. The promise of a lease did not save him, because he had asked for a lease of three lives or thirty-one years, and had been promised a lease for life. Not being a simple acceptance of his offer, it did not make a legal contract. The fact of his landlord looking on at his improvements, without warning him that he had no tenure, did not save him: "I apprehend," the Master of the Rolls said, "that the result of the case is, that if a tenant holding from year to year, or for any other term, makes permanent improvements on the lands which he holds, this raises no equity against the landlord, though he may have looked on and not given any warning to the tenant." It was, indeed, true that if a landlord knowing that a tenant believes that he holds under a valid lease or contract, looks on at expenditure without warning that he meant to impeach, that would be a fraud, and the tenant would have his remedy. But Major Burke denied knowledge of his father's letter, a copy of which had been sent to his agent after his succession to the estate, and the validity of which his agent appeared to acknowledge by not proceeding to notice the tenant to quit in order to raise his rent. There was no evidence, however, to bring the knowledge home to Major Burke, and he could not be proceeded against for fraud.

The Master of the Rolls in delivering judgment made these remarkable observations: "Nothing can be more repugnant to the principles of natural justice than that a landlord should look on at a great expenditure carried on by a tenant from year to year without warning him of his intention to turn him out of possession. Major Burke's offer to allow Dr. O'Fay to remove the buildings was a mockery. I have no jurisdiction to administer equity in the natural sense of that term, or I should have no difficulty whatever in making a decree against Major Burke. I am bound to administer an artificial system, and being so bound I regret much that I must administer injustice in this case and dismiss the petition, but I shall dismiss it without costs. I should be very glad, for the sake of justice, that my decision should be reversed by the Court of Appeal."

It was not so reversed. No amicable settlement of the case would be agreed to by the landlord: "the Major had resolved to spend his fortune, if necessary, in resisting the claim," said his counsel. The judges here also were obliged to "administer injustice," and decide in favour of the landlord, after the Lord Chancellor had, in vain, expressed his opinion, that Major Burke, "under the circumstances would best maintain the character of a British officer, the cause of justice, and also the rights of property, by making such an arrangement as to the possession of the farm as would give the Rev. Dr. O'Fay the benefit of the expenditure he had honestly made, with the reasonable expectation of being sufficiently secured."

Without referring to a long list of other instances, it is remarkable that with regard to the proceedings as landlords of such a body as the Ecclesiastical Commissioners, the Master of the Rolls was compelled to use language quite as strong in 1866. Some time after, the Cork Examiner published a copy of a contract forced on its tenants in the south-west by the kindred corporation of Trinity College. By this contract the state of a tenant-at-will was made even worse than what it is at law, because a perplexing number of clauses were inserted, on the breach of any one of which the tenure was at once to cease and determine. It was also to cease immediately on the tenant's death, so that his family might be at once turned out without that brief respite accorded by law. All the penalties and nought of the benefit of long leases appear to appertain to the contracts imposed on many hapless tenants from year to year.

In June, 1868, another characteristic case of ejectment occurred, the plaintiff being the widow of a British officer, General Anderson. The case was tried at the Claremorris Quarter Sessions, on the 19th of June (quoted in the Galway Vindicator, September 16, from Mayo Examiner). The lands from which Mr. Jennings was to be ejected had been held by lease previously to 1st May, 1865, when one of these peculiar contracts filled with penal clauses succeeded. He had two professional witnesses, an architect and a builder, present to prove that he had himself expended £300 in improvements. He had orchards on his farm, and plantations. He was prepared to pay all rent due, and ready to submit to any reasonable increase. He had crops in the ground. On the other hand the land-agent said he had been given notice not to plant crops, admitted that he was a highly respectable tenant; he himself had done all he could to prevent the ejectment, "but for some reason of her own, known to her own conscience, Mrs. Anderson brought this proceeding." The chairman asked, could not an arrangement be come to; the agent replied he had no discretion, and the tenant's counsel remarked: "It is the workhouse this lady intends for this respectable man."

The Chairman in delivering judgment against the tenant said:—

"This is a painful case. It is the case of a man whose family for ten generations has been on this land. His house, his residence, he built by himself, and he laid out a good deal of money on improvements. This is not attempted to be denied. I think that a person enjoying the high position that Mrs. Anderson enjoys ought to give some consideration to this state of facts. The legal rights of the parties, however, are all I have to deal with, and it is upon these I have to dispose of the case."

The learned Chairman ruled with the plaintiff, and having disposed of some minor points, proceeded— "Here is a man admittedly an improving tenant—improving the place —a respectable man, ready to pay his rent, and to submit to an increase if it should be demanded of him rather than give up his place; a tenant against whom there is no breach of any of the twelve penal covenants in this exceedingly well drawn agreement. I am certainly surprised that he should be turned out.

"The tenant's counsel referred me to a case where a learned judge at the last assizes made it a topic and reviewed the circumstances. I know another case that came before the late Master of the Rolls, Mr. Smith, and the learned gentleman was not prone to take up popular views in cases against the rights of property.

It was the case of Burke v. Fay. The defence was on the ground that the ejectment was inequitable; that the plaintiff looked on tacitly at the improvements made by the defendant. The Master of the Rolls held that they failed in the legal defence; his observations were against Burke, the plaintiff; and in discussing the case, the Master of the Rolls stated that, looking at it as a dealing between man and man, the taking of these improvements with the land was nothing short of taking the man's money. Cases like the one before me give great dissatisfaction, and they render it difficult to deal with the question of landlord and tenant. I have no choice in this case, and it is with great regret that I give a decree. The covenants are eleven or twelve in number. The tenant was bound to give up the entire premises in good repair under a penalty of £20; to clear the stones off under a penalty of £6; not to take two grain crops off any field, under a penalty of £12 per acre; not to sow a crop on stubble land without permission, under a penalty of £12; no arable land to be broken up under a penalty of £12; no buildings to be erected under a penalty of £10; no manure or bogstuff to be removed off the premises under a penalty of £10; the timber to be preserved under a penalty of £10 for every tree cut by design or negligence. These penalties are to be recoverable by distress like rent. Mines, fishing, and shooting, were reserved, &c."

Some discussion followed as to stay of execution, and as to the growing crop.

The defendant said—"I have nothing to expect from any one but your worship. I have no mercy to expect from them."

The Courthouse was crowded. The observations of the learned Chairman were listened to by an eager crowd whose consternation was manifest during the hearing of the case." (Galway Vindicator, September 16.)

At a meeting held shortly after at the old abbey of Cong, one of the speakers, the Rev. J. O'Malley, drew attention to the fact that not one of the penal clauses in the contract had been violated, adding: "Often have I seen Patrick Jennings waiting and watching for the required leave to prepare his land for the year's crop, and not unfrequently had he and others to wait till the proper time had passed away." This estate had been purchased by the late General Anderson fifteen years ago from an ancient family.

The dissatisfaction caused by any one such case of ejectment as this is not limited to the locality, the county, nor even to the province in which it occurs. Under such a state of the law, it may readily be conceived that dissatisfaction develops into disaffection, that emigration of the most provident and industrious classes proceeds, and that Fenianism leavens both those who go and those who remain.

The only other instance that need be quoted of the peculiar character of too great a portion of Irish landlordism is the case of the Ballycohey estate, in 1868. On this property the tenants were noted for their peaceful, industrious habits. The estate had belonged to Lord Portarlington; he sold it to a Mr. Grey who, it has been stated, raised the rents twenty per cent. He sold it to Mr. William Scully; and Mr. William Scully, when the rent-paying day arrived, had a "lease" ready which the tenants should accept or suffer eviction. The tenants having heard of its provisions tried to escape it by sending the amount of the rent by deputies. They had always been punctual in payment. The landlord, however, was not to be baulked in the matter of the "lease," and having obtained by special order "from head quarters," a detachment of armed police, he proceeded to serve notices to quit, in the middle of August, on all his new tenantry, with the object of forcing them to accept his "lease," or of sweeping them all out of the homes their own hands had built, without compensation. He found no persons present in the cottages save children, except in one house which was fortified against his armed array, which he besieged and entered with the loss of some lives on the part of the besiegers.

The "lease," the enforcement of which, as an alternative for eviction without compensation, caused such a scene on an estate remarkable for the peacefulness of its tenantry, enacted that the tenant should pay all his own and his landlord's rates, cess, taxes, and duties whatever, save his quit-rent and tithe-rent charge; that the tenant should abandon all claim to compensation, and give up all his crops in the ground with the land to his landlord, whenever the latter should give him twenty-one day's notice to that effect, at any of the four quarters of the year; that the tenant should pay all rent and taxes quarterly in advance, bind himself to a multitude of obligations, and surrender all former leases, agreements, proposals, or contracts. As the document is of historical importance, and as the landlord was supported in his act by the armed forces of the State, detached to accompany him, by express orders from "head quarters in Dublin," it seems best to give it textually, more especially as cases such as this offer the plainest explanation of Irish discontent, disaffection, and conspiracy at home and abroad.

After the usual preliminaries whereby the tenant's occupancy of his particular holding is specified, the said tenant is made to bind himself to pay the rent quarterly in advance. Then follow the clauses of THE LEASE.

"First—That he, the said tenant, his executors, administrators, or assigns, will pay the said rent to the said landlord, his heirs, executors, administrators, and assigns, at the time and times, and in the manner hereinbefore mentioned. And will also pay the entire of all poor rates, and county cess, and all other rates, taxes, duties, and assessments whatsoever (quit-rent and rent-charge in lieu of tithes only excepted) now due, or hereafter to become due or payable out, or in respect of, the said demised lands and premises, or any part thereof; and shall not make or retain or be entitled to or require any deduction or allowance whatsoever out of the rent aforesaid or otherwise from the said landlord, his heirs, executors, administrators, or assigns, for or in respect of such poor rates, county cess, and other rates, taxes, duties, and assessments, or any of them, or any part thereof.

"Secondly—That the said tenant, his executors, administrators, or assigns, or any of them, or any person whosoever claiming or deriving from, through, by, or under him, them, or any of them, shall not at any time, or in any event, have any claim, right, or title to, and shall not at any time or in any event claim to have, or to be entitled to, emblements, or any customary, or waygoing, or other crop, or proportion of a crop, which shall be growing upon the said demised lands and premises, or any part thereof, at the end or determination of this demise, or of the tenancy hereby created, or any right or benefit thereof, or any compensation therefor, or have or claim to have any right of possession, holding, or occupation of the said land and premises, or of any part thereof, in lieu of emblements, or in lieu of the right to emblements, or of such customary, waygoing, or other crop, or proportion of a crop; any statute, usage, custom, right, or thing to the contrary in any wise notwithstanding.

"Thirdly—That the said tenant, his executors, administrators, and assigns, or any of them, will not cut down, lop, prune, or grub up any tree growing, or to grow on said demised lands, and will not cut down any hedge thereon without properly guarding such hedge from injury. And that he and they will dig up or cut down all docks, thistles, and other weeds which shall be on said demised lands during the continuance of this demise, before they go to seed. And that he and they will, during the continuance of this demise, well and sufficiently preserve, repair, and keep the said demised lands and premises, and the trees, fences, hedges, ditches, drains, watercourses, buildings, gates, and all fixtures and improvements, with the appurtenances which now are. or at any time during this demise shall be erected or made, or shall be thereon, in good and tenantable order, repair, and condition; and at the end or determination of this demise, or of the tenancy hereby created, will quit and deliver up to the said landlord, his heirs or assigns, or to some or one of them the possession of the said demised lands and premises, with the appurtenances, in like good and tenantable order, repair, and condition. And that on the first day of December, first day of March, first day of June, or first day of September which shall next follow the expiration of twenty-one days (Sundays included) from the service by, or on the part of, the said landlord, his heirs, and assigns, or any of them, upon the said tenant, his executors, administrators, or assigns, or any of them, of a notice requiring the delivery to the said landlord, his heirs, or assigns, or any of them, of the possession of the said demised lands and promises, this demise, and the tenancy hereby created shall determine, and the said landlord, his heirs, or assigns, shall be entitled to the immediate possession of the said demised lands and promises, with the appurtenances, and the said tenant, his executors, administrators, or assigns, or any person claiming or deriving from, through, by, or under him, them, or any of them, shall not, nor shall any one or more of them, have any power, right, or option, cither at law or in equity, to continue to hold or occupy the said lands and premises, or any part thereof, for any longer time, any law, custom, or thing to the contrary notwithstanding.

"Fourthly—That the said last mentioned notice, and also any other notice under these presents, may be served upon the said tenant, his executors, administrators, or assigns, or any of them, either personally, or by leaving the same at the usual or last known place or places of abode in Ireland, of him, them, or any of them, or by posting same upon the door of a dwelling-house (if any), situated on the said demised lands and premises, or by posting same on some conspicuous part of such dwelling-house adjacent to the entrance thereto. And any notice which shall be so left or posted, shall be deemed to be served on the said tenant, his executors, administrators, or assigns, within the true intent and meaning of these presents.

"Fifthly—That the said tenant, his executors, administrators, or assigns, shall not during the continuance of this demise, assign, mortgage, alien, demise, under-let, or set in con-acre, or for any crop or crops, or bequeath or devise by will or testament, or by any codicil thereto, or in any manner dispose of the said lands and premises, of any part thereof, without first obtaining the consent in writing for that purpose of the said landlord, his heirs, or assigns, signed by him or them.

"Sixthly—That the said tenant, his executors, administrators, or assigns, or any of them, shall not, nor will, during the continuance of this demise, erect or make, or permit or suffer to he erected or made on the said demised lands and premises, any dwelling-house, or other house, building, hedge, ditch, fence, dyke, or drain whatsoever, except such as he and they shall from time to time be previously authorised to erect or make by the said landlord, his heirs, or assigns, in writing signed by him or them.

"Seventhly—That the said tenant, his executors, administrators, or assigns, or any of them, or any person claiming, or deriving from, through, by, or under him, them, or any of them, will not burn, or permit or suffer to be burned, the soil or surface of the said demised lands and premises, or any part or parts thereof. And will not till, or break up, or change from grass, or permit or suffer to be tilled, or broken up, or changed from grass in any one year, more than one-fourth part of the entire acreable contents of the said demised lands; and will not meadow, or permit or suffer to be meadowed, in any one year, more than one—-th part of the entire acreable contents of the said demised lands. And will during the continuance of this demise carefully and effectually protect and preserve all wild fowl and game of every kind in and upon the said lands and premises, for the exclusive use and sporting of the said landlord, his heirs and assigns, and of all persons authorised by him or them to sport thereon.

"It is hereby declared and agreed that the said tenant, his executors, administrators, and assigns, paying all arrears of the said rent, and performing all the covenants and agreements herein on his and their part contained, shall also be at liberty to surrender this lease, and the possession of the said lands and premises, with the fixtures and appurtenances in good and tenantable order, repair, and condition, as aforesaid, on any 1st day of December, 1st day of March, 1st day of June, or 1st day of September, in any year, upon giving a previous notice in writing of  21 days (Sundays included), to that effect, to the said landlord, his heirs, or assigns, either personally, or by leaving such notice at his or their dwelling-house, with any member of his or their family, aged sixteen years or upwards, or with his or their servant, aged sixteen years or upwards. And the said tenant hereby surrenders all former leases, agreements, proposals, and contracts of every kind, of or concerning the said lands and premises, or of any part or parts thereof. "In witness whereof, &c."

Not less remarkable than this lease is a speech made shortly after at a banquet which followed a cattle-show of the Tipperary Union Farming Society. The occurrence related above took place in Tipperary county, the show was held in Tipperary town, twenty-five days later, on 10th September. Some noblemen and many gentlemen were at the dinner. Lord Portarlington proposed the toast of "the Farmers of the Union;" and Englishmen may divine what amount of knowledge they receive of the real state of Ireland from speeches such as his, when they read that he spoke thus: "They were prosperous without measure. They had been saved from the awful famine which he had seen in Hungary and France (!), and consequently they were happy. They had heard a great deal about the grievances of Ireland, some of which were real but a great many imaginary. In England it was supposed that the country was misruled and that there were bad landlords. It was absurd. He thought the bishops and clergy should give thanks to God for the blessings he had poured upon them." (Limerick Reporter, 11th September.) Under other circumstances such a speech would have made an impression in England and, perhaps, no one would have ventured to dissent from it where spoken. On this occasion it was immediately answered by the speaker who responded to the toast, and who, it is stated, denounced a certain person as "a devil-landlord, for he believed he must have been urged on by the devil."

In "Ulster and its Danger" it has been shown that the condition of the tenant in the northern province is, in some districts, the reverse of satisfactory. The accompanying extract from a letter to Mr. Butt, on the occasion of a lecture on the land-question, delivered by him at Limerick, will supply an additional proof. It is dated, "Dundrum, Co. Down, 7th September, 1868," and is written by the Rev. Dr. Drew, Grand Chaplain to the Orange Society and, for some time, Chaplain to the present Viceroy. It may fairly be considered that he is as little prone to exaggerate the occupier's case, as was the late Conservative Master of the Rolls, who delivered judgment in the case of O'Fay v. Burke. Dr. Drew writes:

"I wish my lot had never been cast in rural places. As a clergyman, I hear what neither landlords nor agents ever hear. I see the depression of the people; their sighs and groans are before me. They are brought so low as often to praise and glorify those who, in their secret hearts, are the objects of abhorrence. All this came out gradually before me. Nor did I feel as I ought to feel in their behalf until, in my own person and purse, I became the victim of a system of tyranny which cries from earth to Heaven for relief. Were I to narrate my own story it would startle many of the Protestants of Ireland. There are good landlords—never a better than the late Lord Downshire or the living and beloved Lord Roden. But there are too many of another state of feeling and action. There are estates in the North where the screw is never withdrawn from its circuitous and oppressive work. Tenant-right is an unfortunate and delusive affair, simply because it is almost invariably used to the landlord's advantage. Here we have an election in prospect, and in many counties no farmer will be permitted to think or act for himself. What right any one man has to demand the surrender of another's vote I never could see. It is an act of sheer felony—a perfect "stand-and-deliver" affair. To hear a man slavishly and timorously say, "I must give my votes as the landlord wishes" is an admission that the Legislature, which bestowed the right of voting on the tenant, should not see him robbed of his right, or subsequently scourged or banished from house and land because he disregarded a landlord's nod or the menace of a land agent. At no little hazard of losing the friendship of some who are high, and good, and kind, I write as I now do."

This extract from a landlord's letter, published in the Dublin Express, signed William Traill, and dated "Ballylough, September 14th, 1868," is not less instructive. It indicates the manner in which the great measure of justice promised to Ireland, in the establishment of perfect religious equality, is regarded by some landlords. Mr. Traill writes:—

"Sir,—The Roman Catholic leaders of the party are hurrying on that as to which, if they succeed, they will sorely and bitterly lament, at least the poorer class will, whom they pretend to wish well to, but are their greatest enemies. If they are able to effect what I consider an illiberal and wicked object, viz., the disendowment (for that is the word) of the Established Church—equal to which in generosity and indulgence of all sects and denominations no church now exists, ever has existed, or ever will—then I too, and I hope all Protestant landlords will, proclaim 'War to the knife!' and from and after such conduct to us, that 'We will never give an acre of land to a Roman Catholic.'"

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