earth. On April 1, 1845 the population of Ireland was not far short of eight millions and a half; on April 1, 1868 it was little above five millions and a half; on April 1, 1871, there is reason to believe it will scarcely exceed the population of Belgium on little more than a third of the space. So much the better, we have heard it said; Ireland ought to be a sheepfarm for England. And why not England a sheep-farm for France? as it perhaps might have become before now but for its over populated cities, and the mines in which its people can be packed under ground. What must be the feeling of the exiled peasantry of Ireland at the other side of the Atlantic, when a grave American professor, in a treatise on the principles of political economy, speaks as follows of Irish emigration? The policy of English landlords is to depopulate their estates, to make the peasantry give place to flocks and herds as in the north of Scotland, or to compel them to emigrate to foreign lands as in Ireland. Thus they imitate the system which has been practised for centuries in the Roman Campagna, which reduced the fields of Italy in the age of Pliny to a desert, and subsequently surrendered them to the northern barbarians because there were not men enough to defend them.' The political instinct must be absent from the present generation, if it does not see the wrong which is being done to the next one-a wrong in the strictest economic sense as regards the loss of security as well as of industrial power. Audiet pugnas vitio parentum 117 POLITICAL ECONOMY AND THE TENURE OF LAND.* THE proposal of the Government to give the tenantry of Ireland some legal security for improvements has been encountered by an objection, claiming to possess the authority of an economic maxim, and seeking to stifle in limine all legislation in favour of tenants, on the ground that it is a settled principle of political economy that the management of private property should be left to private interest; and that the relation of landlord and tenant being one of contract, the sole duty of the State is to enforce the performance of contracts. At first sight, this might appear to derive strong confirmation from the general tendency of the jurisprudence of societies, as they advance in civilisation to extend the sphere of free contract, and to curtail that of control on the part of the State. Mr. Maine, in his philosophical comparison of modern with ancient law, observes,' The society of our day is mainly distinguished from that of preceding generations by the largeness of the sphere which is occupied in it by contract. . . . The science of political economy would fail to correspond with the facts of life, if it were not true that imperative law had abandoned the largest • Reprinted from the 'Fortnightly Review,' June 1, 1866. part of the field which it once occupied. The bias, indeed, of most persons trained in political economy, is to consider the general truth as entitled to become universal; and when they apply this science as an art, their efforts are ordinarily directed to enlarging the province of contract, and to curtailing that of imperative law, except so far as law is necessary to enforce the performance of contracts.'* But it is very remarkable that as regards the relation of landlord and tenant, the tendency, both of the jurisprudence of our Courts and of the direct legislation of Parliament, has been steadily in the opposite direction to that described by Mr. Maine; step after step has been taken to give tenants by law a security and encouragement for improvements which their own contracts fail to afford. The question arises whether these interpositions of the law are really violations of the policy of non-interference, except to secure the protection of property and the performance of contracts? I shall endeavour to show that such interferences not only are based on the very principle of economical policy on account of which the State does interfere to protect property and enforce contracts, but fall far short of affording the degree of security which the position of tenants and the interests of the public, especially in Ireland, require. It was not until the last century that the Courts, exercising, as they have often beneficially done, their power of indirect legislation in opposition to the old common law, decided that buildings and other fixtures Ancient Law,' chap. ix. for the purposes of trade or manufacture should, without any special agreement, become the property of the tenant, if erected by him. "The reason which induced the Courts to relax the strictness of the old rules of law, and to admit an innovation in this particular instance, was that the commercial interests of the country might be advanced by the encouragement given to tenants to employ their capital in making improvements for carrying on their trade, with the certainty of having the benefit of their expenditure secured to them at the end of their terms.'* The principle of this change in the law was extended by subsequent decisions to fixtures connected with mining, and some other improvements. In the case of agricultural fixtures, the legislature directly interfered to give tenants similar protection. In 1848, a Parliamentary Committee on Agricultural Customs recommended the application of the principle established by the Courts in the case of trade-fixtures, to fixtures for agricultural purposes; and, in 1851, an Act was < passed, making farm-buildings erected by tenants, with the landlord's consent, the property of the tenant. In 1860, this provision was extended by Mr. Cardwell's Act. Almost the only benefit of these enactments, however, lies in the principle they establish of the tenant's right to benefit by his own improvements; for they afford little substantial protection, and would afford little, even if they covered in terms, cases such as drainage, and the reclamation of waste land, to which they do not apply. To permit the Irish tenant to take Amos and Ferard on the Law of Fixtures.'. .. down the materials of his buildings and take up those of his drains, and remove them, it may be to America, is to permit him to add to the loss he has already sustained by their construction. Yet to give him any other form of compensation is supposed by many landlords to be both revolutionary legislation and heretical political economy. I shall attempt to show that it is neither. The majority of landholders seem to misapprehend altogether both their legal and economical situation. They seem to imagine both that the law has conferred on them the same absolute dominion over the land in which they have estates, as traders have over their goods; and that the public can place the same reliance on the private interest of the landlord as on that of the trader, to insure good management and improvement. Those who entertain such opinions need to be reminded in the first place, that the law of the country has maintained from the Conquest that fundamental distinction between property in land, and all other kinds of property, for which Mr. Mill has contended on the ground of theoretical justice. No Act of Parliament is required to establish the subordination of private property in land to the interests of the State; the land itself belongs by law to the State; the highest interest in it which any subject can possess is a tenure in fee under the Crown; nor can the Crown either create a higher estate or absolve the existing landholders of the condition of *The first thing the student has to do, is to get rid of the idea of absolute ownership. Such an idea is quite unknown to the English law. No man is in law the absolute owner of lands. He can only hold an estate in them.'—Williams on the Law of Real Property. |