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Ertracted from Report of Commissioners on Occupation of Land in Ireland.—Par. Rep. - .1845, vol. xix. pages 6 and 7.
Before entering upon any detailed statement of the result of our inquiry, we think it may not be uninteresting or uninstructive to give a slight sketch of the manner in which landed property in Ireland has been dealt with for a long series of years; and we believe that such a review is important to a clear understanding of the subject, and to the successful investigation of the sources from which many of the present evils have sprung. In the civil contentions which at various periods and during many centuries disturbed the repose of England and Scotland, property gradually passed from the feudal tenure of former times to the more civilized relation of landlord and tenant, as known to our present law. It is for us briefly to shew how different has been the case in Ireland. Without entering at any length into the history of the past, we cannot avoid noticing a few prominent matters which exercised a material influence in producing the existing relation of landlord and tenant. We allude to the confiscations and colonizations of Elizabeth and James—the wars of Cromwell—and lastly, the penal code. The first of these led, in many instances, to the possession of large tracts by individuals, whose more extensive estates in England made them regardless and neglectful of their properties in Ireland. Again, the confiscations of the lands of O'Neill in the north, and Desmond in the south, were followed by the plantations of Ulster and Munster; the extensive settlements of Scotch and English in the counties of Ulster, has introduced habits and customs which give a different character to that province from other parts of the island. Hence also is supposed to have arisen the system of tenant-right, which, as forming a singular feature in the relation of landlord and tenant, we shall have occasion afterwards to notice. In Munster the plantation was more imperfectly carried out, and a class of undertakers, unaccompanied by those followers whom they were equally bound by the terms of their grant to introduce, became the landlords of the native peasantry in many parts of those districts, producing, for that reason, comparatively little change. The adventurers who obtained debentures from Cromwell formed, for the most part, a small proprietary; and being generally resident, exercised an influence on the relations of society, different from that produced by the large and absent grantees of former reigns. These confiscations were followed at a later period, by the enactment of the penal laws, which, affecting as they did the position of the Roman Catholics as regarded landed property, must have had a very general influence on society in such a country as Ireland. These laws, both in their enactment and in their subsequent relaxations, have affected materially the position of occupier and proprietor. They interfered with almost every mode of dealing with landed property by those who professed that religion, and by creating a feeling of insecurity, directly checked their industry. The Protestant landlords also suffered indirectly from the operation of the same laws; for, in letting their estates, they were, to a great degree, confined in the selection of their tenants, to those who alone could enjoy any permanent tenure under them, and were exclusively entitled to the elective franchise. Many landlords parted with the whole, or a great portion of their property, for long terms, and thus avoided all immediate contact with the inferior occupiers, so that all the duties of a landlord were left for performance to a middleman. The latter, on the other hand, in the favourable position in which the laws had indirectly placed him, as regarded the proprietor, dictated very frequently his own terms to the landlord ; and restrictive covenants against sub-letting or subdividing were seldom inserted. About eighty years after their first introduction, a relaxation of these laws took place. Among many measures professedly for the improvement of Ireland, an act was passed in 1771, which allowed Roman Catholics to take a lease for sixty-one years of not less than ten acres, or more than fifty, of bog, with only half an acre of arable land for the site of a house, but not to be situated within a mile of a town; and if it was not reclaimed in twenty-one years, the lease to be void. In 1777 it was enacted, that titles not hitherto litigated should not be disturbed, and Roman Catholics were allowed to take leases for any term under a thousand years. In 1782, they were allowed to acquire freehold property for lives or by inheritance; and in 1793 was passed a further enactment, which materially affected the position of landlord and tenant. The forty-shilling franchise was by that act extended to Roman Catholics; the landlords and the middlemen then found the importance of a numerous following of tenantry, and sub-division and sub-letting, being by this law indirectly encouraged, greatly increased. The war with France raised considerably the profits of the occupier, who was thus enabled to pay a large rent to the mesne lessee. These causes produced throughout the country a class of intermediate proprietors, known by the name of middlemen, whose decline after the cessation of the war, and the fall of prices in 1815, brought with it much of the evils we have witnessed of late years. Many who during the long war had amassed much wealth,
had become proprietors in fee; others who had not been so successful struggled in after years to maintain a position in Society which their failing resources could not support. Their sub-tenants were unable to pay “war rents.” The middleman himself, who had come under rent during the same period, became equally unable to meet his engagements. All became impoverished; the middleman parted with his interest, or underlet the little land he had hitherto retained in his own hands; himself and his family were involved rapidly in ruin. The landlord, in many cases, was obliged to look to the occupiers for his rent, or, at the expiration of the lease, found the farms covered with a pauper, and, it may be, a superabundant population. Subsequently, the Act of 1829 destroyed the political value of the forty-shilling freeholder, and to relieve his property from the burden which this chain of circumstances brought upon it, the landlord, in too many instances, adopted what has been called the “clearance system.”
Description of the Tenure by Lives Renewable for ever.
Extracted from Report of Commissioners on Occupation of Land in Ireland.—Par. Rep. 1845, vol. xix. pages 13 and 14.
In adverting to the character of the landlord's tenure in Ireland, it is our duty to observe upon a species of tenure, scarcely known elsewhere, which prevails very extensively in that country, one-seventh of Ireland being said to be held under it. We allude to the tenure by lease for lives, with a covenant of perpetual renewal on payment of a fine, sometimes merely nominal, on the fall of each life. The origin of this tenure is said to be traceable to the condition and state of property, consequent upon the extensive confiscations to which nearly the whole of Ireland has, at different periods, been subjected; the grantees, being generally absentees, and desirous of securing a recognition from time to time of their proprietorship, as well as the power of recovering their rents, are supposed to have originated this form of demise. This tenure, though manifestly intended to be perpetual, has proved a source of frequent litigation. Various constructions have been put upon the covenants for perpetual renewal. We cannot more clearly exhibit the extent of this evil, than by citing from Mr. Lynch's Measures for Ireland, a quotation he has given from a judgment of the late Sir M. O'Loghlen, when Master of the Rolls in Ireland, in reference to this subject. “Every day's experience shows how very uncertain the duration of an interest under such a tenure is. Forfeitures of the right to enforce a renewal daily occur, through the neglect of tenants, or the dexterous management of landlords. Covenants treated in some cases for more than a century as entitling tenants to renewal for ever, have been construed by courts of justice as not conferring that right. Any person who is much engaged in the investigation of titles under leases of lives renewable for ever, will find in almost every abstract of such titles, a statement of the result of one or more suits in equity for enforcing the right. The usual statement is—the right to a renewal having been questioned, it became necessary to file a bill in equity.” In addition to this high authority, we may refer to the evidence on this head. To remedy the inconvenience and ill effects which arise from this species of tenure, we recommend that power should be given to the lessor and lessee, in all cases to commute the fines into an increased rent, and thus to convert the tenure of leases of lives renewable for ever into an absolute perpetuity—a power being given, as in the Church Temporalities Act, to distrain and eject in case of non-payment of the reserved rent, and to refer to a Court of Equity all questions as to the pecuniary value to be placed on any reservations by covenants which may interfere with the proper cultivation of the land.