« VorigeDoorgaan »
are several cases arising out of the Bill as it stands, which are covered by neither the one nor the other.
The unbroken practice of English legislation has established legality, not equity, as the test of interference with rights by Parliament which creates a claim for compensation. Of one remarkable chapter of English history, those who say, as Mr. Chamberlain says, that they are not aware' of compensation being ever given for abrogating rights which have been found to be in conflict with public morality and public interest,' must be ignorant. The emancipation of the slaves in the British colonies is a crucial instance of the application of the principle, which Mr. Chamberlain summarily dismisses as preposterous. If there ever were legal rights in contradiction with
natural equity, the rights of the West Indian proprietors to their property in human flesh and blood were to be classed among them. The utmost abuse of power with which a small minority of Irish landlords are chargeable—for the main body of them, as Mr. Gladstone said in his speech on the introduction of the Bill, have been tried and acquitted—is not to be compared with the elementary and indelible wrong implied in slavery. Yet when the Emancipation Bill was brought forward the claim of the West India proprietors to compensation was recognised by Parliament, and, in spite of the opposition of a few fanatics, was admitted by the leading abolitionists, including Sir Thomas Fowell Buxton himself. A protest addressed to Parliament on the part of the persons affected by the Bill in May 1833, contains the following passage, every word of which applies with increased force to the case of the Irish landlords under the proposed change in the tenure of land: • There is no stronger title to property than that which is derived from positive law, and no other security against spoliation than that the Government will respect the rights and interests which have grown up under the laws it has made. The proprietors of negro slaves possess them under the sanction of British laws, which enabled, and especially encouraged, the people of Great Britain to convey slaves from Africa, and to sell them to their fellow-subjects in the colonies. Looking to the rights thus acquired, the West India proprietors do solemnly protest against any measure which takes away their property without adequate compensation--a measure which, if carried through, will shake the foundations of every species of property, and establish a precedent which may speedily lead to every other species of property being similarly dealt with. This appeal was effectual, though there were even then some persons in Parliament ready to contend, as Mr. Chamberlain contends, that because the legal rights of the slave proprietors were inequitable, and such as they ought never to have been permitted to enjoy,' their abolition was not to be compensated by the State. The principle of the compensation clause was not challenged in the House of Commons, and a motion to reduce the sum voted from 20 to 15 millions was rejected on a division by 304 to 56.
This is only one example out of a whole host that might be cited, in which Parliament has recognised that the abrogation of rights established by law ought to be accompanied by compensation at the public charge. Mr. Gladstone was able to point to only one apparent exception, the Scotch Patronage Bill of 1874, where the property was practically valueless and the great majority of the owners of advowsons deliberately waived their rights. The other cases cited by the Prime Minister were curiously irrelevant. No compensation was given, he says, to Irish tenants when various changes in the land laws detrimental to their unrecognised, but real, occupancy right were carried in Parliament. This
This may be regrettable, but it affords no precedent for dealing with rights not vague and unrecognised, but secured by positive law. In truth Mr. Gladstone, after flinging this argument at his opponents' heads, falls back himself upon the ground that no confiscation can be proved, and no compensation therefore ought to be demanded. He thus admits that when legal rights are taken away for public objects, the loss ought not to fall on those who have enjoyed those rights by long prescription and with the express sanction of the law.
Moreover, it is to be noted that the most extreme proposals put forward for the settlement of the Irish land question by men of the most advanced views have heretofore safeguarded the principle at which Mr. Chamberlain boldly strikes. Mr. Mill in 1868 propounded a scheme of Irish land reform avowedly as an ideal object, the recognition of which might induce a nation loving compromises to go further in practical measures. After describing his plan of expropriation, he
Such a change may be revolutionary, but revolutionary measures are the thing now required. It is not necessary that the revolution should be violent, still less that it should be unjust. It may and it ought to respect eristing pecuniary interests which have the sanction of law. An equivalent ought to be given for the bare pecuniary value of all mischievous rights which landlords or any others are required to part with. But no mercy ought to be shown to the mischierous rights themselves ; no scruples of purely English birth ought to stay our hands from effecting, since it has come to that, a real revolution in the economical and social constitution
of Ireland. . . . There must be compulsory powers, and a strictly judicial in- quiry. It must be ascertained in each case, as promptly as is consistent with due investigation, what annual payment would be an equivalent to the landlord for the rent he now receives (provided that rent be not excessive), and for the present value of whatever prospect there may be of an increase, from any other source than the peasant's own exertions. This annual sum should be secured to the landlord under the guarantee of law. IIe should have the option of receiving it directly from the national treasury by being inscribed as the owner of Consols sufficient to yield the amount. Those landlords who are the least useful in Ireland, and on the worst terms with their tenantry, would probably accept this opportunity of severing altogether their connection with the Irish soil.2
? Mr. Mill, in his Autobiography, says that his plan (above referred to) offered each individual landlord State purchase as an alternative, if he liked better to sell his estate than to retain it on the new conditions. He adds: 'I fully anticipated that most landlords would continue to prefer the position of landowners to that of
The principle thus admitted by the most eminent Radicals, as well as by Whigs and Tories, is applied every day, and the method of its application is understood by everybody. Take the most ordinary case of interference with individual rights for the public advantage, the case of a landowner a portion of whose land is taken under Act of Parliament for the construction of a railway. The claim of the owner to compensation is twofold; in the first place he has a direct and indisputable right to be paid the value of the land actually required for the company's works, but secondly he has a claim on the ground of consequential damage, as for the cutting up of fields or the loss of amenity and convenience. In asserting the latter it is reasonable to show that the general value of the property will be probably improved by the line, but this consideration does not enter into the question of the price which must be paid for the land actually taken. On an estate of 1,000 acres, if 20 acres are taken for the railway, they must be paid for at the full market price of the land, while the damage to the remaining 980 will have to be assessed by arbitrators on a broad and liberal estimate of the different elements in the case. Bearing this analogy in mind, the Legislature in abrogating the rights of Irish landowners must be prepared to consider both direct loss and consequential damage, and it is only in respect of the latter that any alleged advantages of another kind can be legitimately 'set off.'
Now it is contended on the part of the Irish landlords that the Bill, if it passes in its present shape, will inflict both direct loss and consequential damage. The answer of the Government-putting aside Mr. Chamberlain's proposal to apply a test of equity' to the rights of claimants—is ambiguous. It is asserted broadly that under the Bill landlords will suffer no loss direct or indirect, but when the argument is followed up we find that loss is admitted, but that it is alleged that it will be made good by gain at present unrecognised. This plea, which is open,
I think,to a crushing refutation, at any rate can be properly put in only in respect to the claim for consequential damage. Where we have to deal with the direct abrogation of legal rights which have an important pecuniary value, it is a mockery of justice to point to a remote and doubtful contingency as outweighing a present and heavy loss. When Mr. Gladstone and Mr. Forster assert that there is no
Government annuitants, and would retain their existing relation to their tenants, often on more indulgent terms than the full rents on which the compensation to be given them by Government would have been based.' Mr. Gladstone and his col. leagues must be of the same opinion, since they contend that the landlords' position will be really improved under the new system. Of course no sensible landlord would give up a secure and improving property for such a price as the Government would have to pay under Jir. Mill's scheme, which is substantially that proposed by Lord Lansdowne and other Irish proprietors to meet the effects of the present Land Bill. If the Ministry are out in their rec ng-and they are infallibleit would be unfair to make the landlords bear the whole burden of the error.
confiscation of the landlords' rights in the Land Bill, they put plain words to a perplexing use. What they really mean is that the losses inflicted will be more than made up by the advantages of the change, as if a railway company which takes 20 acres of a man's land were to refuse to pay him anything at all for them on the ground that the construction of the line must enhance the value of the rest of his estate.
Looking, in the first place, at the general effect of the changes introduced by the Bill upon the Irish landlords' rights as they stand under the present law, we fail to see how it can be disputed that there is confiscation,' if that word be interpreted to mean the interference with individual property on public grounds. The position of a landlord in Ireland since 1870—when Mr. Gladstone stated in Parliament that all contracts relating to land must be thenceforward absolutely binding—has included the unlimited power of raising rents; the power of evicting tenants for non-payment of rent or other legitimate reason, or without any reason assigned on paying compensation for disturbance; the power of resisting the admission of an objectionable purchaser of the occupancy right, free sale being not yet recognised outside of Ulster; the power of investing a landlord's capital in the improvement of his estate, while controlling its management and protecting his interest both in his land and in his outlay. All these rights are taken away from the Irish landlord, some absolutely and others conditionally, by the Land Bill, and it is rain to contend that their abrogation does not inflict upon him a direct loss. A landlord who practically can neither raise his rent, por evict a tenant, nor object to a purchaser, nor improve his land, with safety to himself, is plainly in a different position from a landlord who can do all these things. Whether it is desirable that a landlord should be allowed to retain and use those rights, is not the question. In 1870 Mr. Gladstone and the main body of the Liberal party were willing that those rights should continue to be recognised and upheld by law, and in 1881 they think otherwise. But the fact remains that down to the present time those rights have formed the basis of innumerable contracts, settlements, and other transactions relating to land, many of them guaranteed by the State and all effected on the faith of assurances given by successive ministers in Parliament, and solemnly renewed eleven years ago. The introduction of the system founded upon the recognition of a previously unacknowledged tenant-right in the three southern provinces of Ireland, and by the qualified admission of the three F's,' takes away a portion of the landlord's property previously secured to him by law. The rights to be abrogated have an ascertainable pecuniary value, though some landowners may have preferred to obtain the worth of it in other things besides money. On what pretence is compensation to be denied ?
It may be worth while to set forth in non-technical language a few of the particular instances of hardship which will arise under the Bill if it passes in its present form; and, up to the date of this writing, VOL. X.-No. 53.
no amendments have been accepted guarding the landlords against damage on these points. I will deal first with those which would stand the test even of Mr. Chamberlain's appeal to equity instead of legality.
1. There is the case of a landlord who has bought up the tenant-right of a holding, and thus obviously becomes both legally and equitably the owner of both portions of the joint property' which, according to the Government, is henceforward to be recognised as existing on Irish estates. All claims for improvements and occupancy right have passed to the landlord, and have been merged in the fee-simple. Here, if anywhere, the landlord is entitled to deal as he pleases with the land, and the incoming tenant has no claim to be treated as a 'joint owner.' But, under the Bill as it stands, any tenant admitted to such a holding will be able to claim the advantages of the three Fos.' Free sale, presumed to be excluded by the purchase of the tenant-right, will spring up again, and the landlord is told that he must protect himself against certain encroachments by raising his rent, subject to the onerous and hazardous conditions of the third clause, including the creation of a quasi-lease for fifteen years in the tenant's favour.
2. There is the case of the owner who breaks up demesne lands or lets a home farm or farms in hand, with respect to which there is no tenant-right existing because there is no actual tenant. The incoming tenant, who has no traditional or other claim, is at once to step into possession of the ó three Fos,' with the power of harassing the landlord by threatened or actual litigation. In this, as in the former case, free sale will spring up the instant a tenancy is created, and the resort by the landlord to the only defence against the transfer of his interest and improvements to the purchaser, the raising of rent, involve the risks above referred to. It may be said that, at all events, the Bill secures the landlord against being dragged into court to have a 'fair rent' fired, since “future tenants are not to be allowed access to the court. But it is not certain even that this exemption holds good. Professor Riches, a high authority, asserts that •by the 13th section the right to apply to the court to fix a judicial rent is given to all tenants when proceedings are taken by the landlord to recover possession of the holding, a crisis which can be easily produced by the tenant not paying his rent. It is questionable whether this is so, but the doubt is added to the uncertainties by which the landlord is harassed.
3. There is a more complicated case, of which Lord Dufferin's estates in Ulster afford the best illustration. Lord Dufferin stated in his evidence before Lord Bessborough's Commission, that he had spent a very large sum, between 80,0001. and 90,0001., on the improvement of his estates within the past quarter of a century, in
: Mr. Gilausta ne has promiseul an important concession uron Clause 1, dealing with the definition of the • fair rent;' tut, however this clause may altered, certain that in a large number of cases rents will be reduced by the recognition of the tenant's interest.