the Act of 1860 had been a failure, indeed had gone further than that, and proved a new disturbing element. It The principle of the Act was of course just; pure contractual rights with regard to a commodity must of necessity be fair if both parties act freely. In the case of Irish land, however, not only was freedom of contract absent, but also, while the Act of 1860 adopted the theory that the landlord as absolute owner offered for sale or hire a commodity in which the occupier had no vested interest, the tenant held that the land was at least in part his property, and believed in the existence of such interest on the ground (1) of his improvements, and (2) of the assumed practical perpetuity of his tenure. is evident that here a system of contract, suitable only to an advanced and equably constituted society, and even then suitable only to dealings in a commodity which is amenable to the fair laws of demand and supply, was planted upon a community the social organization of which combined every element of disorder and disintegration. Moreover, the system of contract applied was one of strict mercantile relations, and untempered by concurrent equities. The late Dr Richey, who instituted a comparison at some length between the contractual theory applied to the Irish land law and the theories of the French civilians, as shown chiefly by Pothier's "Traité du Contrat de Bail à Rente" and the French Code, showed very clearly how the mercantile aspect of contract adopted by the Act of 1860 affected the relation of landlord and tenant. Dealing with the manner in which the Civil Law treats the relation of landlord and tenant, which it also bases upon the theory that tenancy is a species of hiring, he pointed out that the difference noticeable between it and the English law was caused by the divergent views which the Roman and English lawyers held as to the original nature of the contract itself, namely:—“(1) The former considered a letting of land for a term to be a quasi-sale, with an equitable warranty that the land was worth the annual rent; the latter that it was a mercantile transaction subject to the rule of 'caveat emptor.' (2) The former considered the rent as the owner's share in the proceeds of the farm, and therefore gave to the landlord the right of hypothec, and compelled him to share in the loss occasioned by a deficient harvest; the latter held the rent as something collateral to the letting-cotemporary but not conditional: the tenant made his bargain, and, as in every other mercantile transaction, ran the chance of gain or loss. (3) The former considered the several agreements of the tenant, whether expressed or implied, as conditions precedent of his possession, and held, therefore, that the landlord could bring his action to re-enter upon the breach of any agreement, expressed or implied; the latter, considering all such agreements (except that for the payment of rent) as collateral, gave the landlord no right to re-enter, and left him to his personal action for damages in all except the one excepted case1." That the basis of mercantile contract was unsuited to the case of the Irish land system is clear, but when the fact was at length realized it was found necessary to proceed with the utmost caution with regard to remedial measures. It might be obvious to those who looked beneath the surface that the creation of pure contractual relations, unfettered by equitable obligations, had been a grave error, but enormous interests were concerned under the change which had been adopted. The purchasers under the Incumbered Estates' Act 1848, and the Landed Estates' Act 1858, had always expected freedom of transfer to be attached to their purchases; the Act of 1860 seemed to them the essence of justice, and it was impossible to blink the fact that they had invested their money on the strength of a State guarantee. Again, had it been openly declared that the principle of the Act of 1860 was wrong, the champions of free trade would at once have cried down so heterodox a notion; for though it was clear that the Act was not working well, it was far from being recognized by the majority of people that rules of abstract fairness may operate oppressively in particular circumstances. When the need for new legislation therefore became imperative, the framers of the Act of 1870 approached the subject with great caution. 1 The Irish Land Laws, pp. 55, 56. CHAPTER X. THE ACT OF 1870. THE Act of 1860 failed, and agrarian outrages followed the feeling of insecurity of tenure which had been fostered. The general situation also was but little affected by the disestablishment and disendowment of the Irish Church by 32 & 33 Vict. c. 42, though it is impossible to pass over this Act, as in one very important feature it proved efficacious in dealing with the land. Its provisions as to sales by the Church Commissioners1, unlike the clauses of the Acts of 1870 and 1881 dealing with purchase, proved largely successful'. This was the more remarkable, since although the amount which might be advanced by the Commissioners-or rather might be credited by them to the purchaser on mortgage-exceeded that which the Land Commissioners were empowered by the Act of 1870 to advance, still the rate of interest to be charged (4 per cent.) was practically higher3. In 1870 it was universally admitted that further legislation was a necessity; and on the 15th of February Mr Gladstone moved for leave to bring in a Bill to amend the 1 Occupying tenants were protected by a right of pre-emption being given to the tenant. See sec. 34, sub-s. (1) and (5): "The ordinary tenants of the Church numbered 8432, and of these up to November 1st, 1880, 6057 had become owners of their holdings at an average price of 22 years' purchase." Two Centuries of Irish History, article by G. Macdonell. The powers of the Com missioners were transferred in 1881 to the Irish Land Commission. 2 The full amount of purchasemoney being £1,674,000. The comparative number of purchasers under this Act and under the Acts of 1870, 1881, and 1885 will be given when dealing with Lord Ashbourne's Act. See post, p. 176. 3 See post, p. 153, note, and Report of Bessborough Commission, sec. 87. law relating to the occupation and ownership of land in Ireland as regarded agricultural' or pastoral holdings. He admitted that it was but a tardy measure; that, following as it did in many ways the lines suggested by the Report of the Devon Commission, its efficacy would have been probably greater, and its action certainly more beneficial, had it been introduced some twenty years before'; and then in a speech of much power urged the acceptance of a Bill drawn upon similar lines to, but in bolder fashion than, the Commissioners' report3. The objects aimed at were threefold, (1) to give some security of tenure to the tenant by making it a matter of expense and trouble for the landlord to exact his full legal rights; (2) to settle the question of improvements by acknowledging the tenant's claim to compensation; and (3) to facilitate the establishment of peasant owners by means of certain provisions for purchase known as the 'Bright Clauses.' It is apparent at once that the legislation of this Act is in a manner retrograde, for by the Act of 1860 absolute free trade in land had been established, while the restrictions now suggested were a limitation of the right of free contract, and amounted to a creation on the part of the Legislature of a tenant 1 The provisions for compensation did not touch demesne lands, holdings in virtue of being a hired labourer, lettings in conacre, or holdings stated in writing to be for a temporary purpose, or cottage allotments not exceeding a quarter of an acre (33 & 34 Vict. c. 46, sec. 15), and the Act only applied to holdings agricultural or pastoral (sec. 71). 2 See Hansard, 3rd series, vol. cxcix. p. 334. "Had these recommendations (i. e. those of the Devon Commissioners) been acted upon at the time, it is probable that at this moment no Irish land question would be before the House for discussion."-Mr Gladstone. 3 Various figures were quoted by Mr Gladstone to show the need of further legislation. Alluding to the increase of pasture lands as a source of loss to the lower classes he said, "Between 1860 and 1868 the pasturage of Ireland has increased by about 560,000 acres, and the tillage of Ireland has decreased during that period about 400,000 acres. We are given to understand that, inasmuch as meadow land is reckoned under land in tillage, and has considerably increased, the real decrease of tillage land is greater still." Again, dealing with the Poor Law statistics he stated that down to 1860 there had been a decrease in the pressure on the poor rates, and "in that year the number of persons seeking relief, who in 1849 might have been counted, so to speak, by millions, was 170,000; but in 1868 the number had increased to 289,000." See Hansard, 3rd series, vol. cxcix, pp. 341, 342. interest in the land. The claims of the tenants are, it is true, never definitely stated throughout the Act, nor indeed would it have been easily possible for the Government to fully state them. The English belief in the absolute character of freehold ownership had never permitted an open acknowledgement of a right, on the part of the Irish tenant from year to year, to any possessory interest in his holding save the yearly tenancy. While in addition since 1860 the absolute property in the land, subject only to existing tenancies, had been recognized as residing in the landlords. The purchasers in the Incumbered Estates' Court of lands held by tenants from year to year had been formally released by the Act of 1860 from any obligation to their tenantry (after the termination of the year current at the time of their purchase), other than resulted from a contractual letting and hiring. Neverthless, although it was effected merely in a negative manner, further rights of the tenants in the soil were clearly recognized in 1870. The principle of the Act, by which security of tenure was intended to be conferred, was that of making the landlord pay a compensation for disturbance to the tenant against whom he thought fit to exercise his undeniable legal right of eviction. Since, therefore, the landlord was unable to exercise his rights without compensating the tenant, it is evident that the latter practically acquired an interest in the land equal in value to the amount of such compensation'. The tenant in fact had his rights increased to the same extent that the landlord's powers were diminished. The right of the tenant to compensation for disturbance, however, did not exist if he held for a term certain exceeding 31 years; and ejectments for non-payment of rent, or for breach of any conditions against assignment, subletting, bankruptcy, or insolvency were not deemed disturbances within the meaning of the Act. The cause of the 31 years' limit was an endeavour to stimulate the granting of leases for this length of 1 Dr Richey well pointed out that whereas it was urged that this provision merely compelled bad landlords to act like good ones, its real effect was to make eviction a privilege of the |