for it, and this market test was absolutely excluded from the valuation. Another possible test was the long continuance of the existing rent. The Bessborough Commission, which laid the foundation of the Act of 1881, proposed ‘that a rent which was paid at any time within the last twenty years, and which continued for not less than ten years to be regularly paid,’ should be always assumed to be a fair rent, unless the conditions had altered to the detriment of the tenant. Another proposal was, that rents should be deemed fair, and should be exempted from the jurisdiction of the court, if they had not been raised during the preceding twenty years. In spite of the great and almost unparalleled increase of prosperity in Ireland during that period, it appears that this proposal would be applied to no less than 4,700,000 acres of Irish soil.27
Both of these proposals, however, were rejected. Many rents were reduced which had been paid without a murmur for thirty or forty years, and in spite of clear evidence that the chief articles of Irish agricultural produce had during that period largely risen, and that the opening of new markets and the improvement of communications had materially added to the value of the farms.28 Many rents were reduced although it was shown that, within the last few years, the right of occupying the farms at these rents had been purchased by the tenant at a large sum under the Act of 1870.29 The decisions were virtually and mainly in the hands of the subcommissioners, who were to a large extent young barristers and county attorneys; many of them with scarcely any previous knowledge of land, or of the conditions of agriculture in the province in which they were adjudicating. They were sent to their task—or, as one of the ablest of them expressed himself, ‘let loose upon property'—without any instructions;30 and they usually gave their decisions without assigning any reasons. It was clearly understood that their business was to reduce, and not to regulate, rents. Their popularity or unpopularity depended on the amount of their reductions, and they knew that the wildest expectations were excited. One of the great perplexities of the lawyers who practised before them arose from the extreme difficulty of discovering the principle or reasoning on which they acted. One fact, however, which was clearly shown was, that the artificial depreciation of land arising from agrarian agitation and outrage entered largely into their estimate.31 It would be impossible to conceive a greater encouragement to such agitation; while the landlords were fined by the Government because the Government had failed to discharge adequately its elementary duty of suppressing anarchy and securing property. A hasty visit to the farms was made, and rents were settled according to their present condition. In this way, in a country where farming was already deplorably backward, slovenly and wasteful farming received a special encouragement in the form of the greatest reduction of rents.
It is not surprising that such decisions carried with them little moral weight. When complaints were made, the ministers dilated on the indecency of questioning ‘judicial decisions;’ as if such arbitrary proceedings as I have described bore any real resemblance to the judgments of a law court, where a judge is guided at every step by the clearly defined provisions of the law, and where his task is simply to decide or explain its relations to the facts that are before him. It may be observed, too, that while competition for rents was extinguished by the law, and rentals greatly reduced, the competition for tenant-right was practically unrestrained, and the price of tenant-right rapidly rose.32 There could be no better proof that the reductions did not represent the real market depreciation of value, but were in a large degree simply the transfer of property from one class to another.
I have no wish to put forward any extreme or exaggerated view of the sanctity of landed property. In my own opinion, the Legislature has a perfect right, if the public welfare requires it, to take possession of all such property, and to sell or hire it on such terms as it pleases, on the single condition of giving full compensation to the owners. The recommendation of Mill, that Irish landlords should be altogether expropriated, receiving full compensation, seems to me very doubtful in point of policy, but in no degree objectionable in point of principle. Mill will certainly not be suspected of any undue leaning towards landowners, but his doctrine differs little, if at all, from that which I am maintaining. ‘The claim of the landowners,’ he writes, ‘is altogether subordinate to the general policy of the State. The principle of property gives them no right to the land, but only a right to compensation for whatever portion of their interest in the land it may be the policy of the State to deprive them of. To that their claim is indefeasible. It is due to landowners, and to owners of any property whatever, recognised as such by the State, that they should not be dispossessed of it without receiving its full pecuniary value, or an annual income equal to what they derived from it. … When the property is of a kind to which peculiar affections attach themselves, the compensation ought to exceed a bare pecuniary equivalent.… The Legislature, which, if it pleased, might convert the whole body of landlords into fundowners or pensioners, might, á fortiori, commute the average receipts of Irish landowners into a fixed rent-charge, and raise the tenants into proprietors, supposing always (without which these acts would be nothing better than robbery) that the full market value of the land was tendered to the landlords in case they preferred that to accepting the conditions proposed.’33
I should myself state the claims of the landlord in somewhat different terms. As much land in these islands is held in trust, it seems to me that the Government, if it deprives the landlord, for purposes of public policy, of the whole or a portion of his property, is bound in equity to compensate him by such a sum as would produce, if invested in a trust fund, an income equal to that of which he was deprived.
The course which was pursued by the British Legislature towards Irish land was different, and if the terms ‘honesty’ and ‘dishonesty’ apply to the acts of Parliaments or Governments as truly as to individuals, it was distinctly and grossly dishonest. Under the Constitution of the United States, the greater part of this legislation, being a direct violation of contract, would have been beyond the competence of Congress. Nor is there, I believe, anything in the legislation of the great European countries that is parallel to it. It has been described by one of the best continental writers upon government as an attack on the principle of property more radical than any measure of the French Revolution, or even of the Reign of Terror.34 It is, indeed, much less like ordinary legislation than like extraordinary legislation of the nature of Acts of attainder or confiscation. There is, it is true, one material difference. Acts of attainder are usually passed for the purpose of confiscating the property of men who have been guilty of treason or rebellion. As the Parnell Commission abundantly showed, the true crime of the Irish landlords was their loyalty. It was for the avowed purpose of ruining and driving from the country ‘the English garrison’ that the Fenian party organised the agrarian agitation that led to the legislation of 1881.
The Bill was defended by some very serious statesmen on the ground of necessity. A gigantic agrarian conspiracy, including the bulk of the Irish peasantry, the great transfer of political power that had taken place in Ireland under English legislation, and an acute and protracted agricultural crisis, produced by bad seasons and wretched prices, had, they said, brought Ireland into a state in which some such measure was inevitable. It must be added that its character and effects were much misunderstood. It was believed that the free sale clause, which enabled a tenant who was in difficulties to sell his tenant-right to a solvent farmer, and, after paying all debts, to emigrate or set up business with a substantial capital, would operate to the great advantage of all parties. It would, it was thought, give the broken tenant a new start, secure the rent of the landlord, put an end to all necessity for evictions, and at the same time attract farmers of energy and industry; and it was not foreseen how completely it could be paralysed by violence and intimidation.
It is also tolerably certain that a considerable number, at least, of the most important ministers never anticipated that the provisions for settling rents by the authority of the court would be applied to the bulk of Irish tenancies, or made use of to create a new level of rental. It would, they believed, simply reduce to the general average those exceptional and extortionate rents which, in every county, undoubtedly existed. If it had not been for the assurances to this effect given by the ministers, it is very improbable that the Bill would have passed. ‘My view,’ said Mr. Bright, ‘is, that in reality the rents in Ireland will for the most part, in nine cases out of ten, be fixed very much as they are now.’35 ‘The Government,’ said the Attorney-General