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 UNIVERSITY OF CALIFORNIA 
 LOS ANGELES
 
 THE 
 
 lEISH LAND LAWS
 
 
 THE 
 
 lEISH LAND LAWS 
 
 BY 
 
 ALEXANDER G. [RICHEY , Q.C, LL.D. 
 
 DEPUTY REGIUS PROFESSOR OP FEUDAL AND ENGUSH LAW 
 IN THE UXIVERSITT OF DUBLIN 
 
 MACMILLAN AND CO. 
 
 1880 
 
 All righbs reserved
 
 'Et reqait & Gargantaa, qu'il instituast sa religion aa 
 contraire de toutes autres.'
 
 
 PEEFACE. 
 
 «2The object of this work is not to discuss 
 ««the Irish Land Question from either an 
 « economic or pohtical point of view, nor to 
 £ propose any specific alteration in the exist- 
 ing law, nor indeed to suggest that any 
 such alteration should be made. 
 
 It aims at no more than to afibrd to 
 
 those who desire to study the subject prac- 
 
 ^ ticaUy, in an untechnical and popular form, 
 
 ^ some, perhaps useful, information upon the 
 
 ^ following points : the legal theory of the 
 
 « hiring of land ; the rules relative thereto 
 
 elaborated by the civil lawyers and adopted 
 
 by the French Code ; the rules of the 
 
 English Law upon the subject ; and the 
 
 i^lterations in the latter introduced into the 
 
 girish Law by the Acts of the 23 and 24 
 
 ^ict. ch. 154, and 33 and 34 Vict. ch. 46 ; 
 
 388059
 
 PREFACE. 
 
 and also to suggest certain questions which 
 must be seriously considered by those who 
 would frame a new Landlord and Tenant 
 Code for Ireland, or further amend the ex- 
 isting system. 
 
 The extracts from Pothier are all taken 
 from the short treatise ' Du Contrat de Bail 
 k Rente,* and those from the Code Napoleon 
 from the 8th title of the Third Book ' Du 
 Contrat de Louage,' and specific references 
 have not therefore been appended to the 
 text. 
 
 The Acts of the 23 & 24 Vict. c. 145 
 and 33 & 34 Vict. c. 46, and the judicial 
 decisions thereupon, are published in an 
 available form in ' The Statutes relating to 
 the Law of Landlord and Tenant in Lreland 
 since I860,' by F. Nolan and R. R. Kane, 
 Third Edition. 
 
 A. G. R.
 
 CONTENTS. 
 
 CHAPTER PAGK 
 
 Introduction 1 
 
 I. Customary Tenures 4 
 
 II. Conventional Tenures 7 
 
 in. The Code Napoleon 21 
 
 IV. The French Law as to 'Amelioration ' . 26 
 
 V. Leading Principles op the French Law. 32 
 VI. The English Landlord and Tenant Law 
 
 AS subsisting in Ireland prior to 1860 34 
 
 VII. The Landlord and Tenant Act, 1860 . . 47 
 
 VIII. The Eesults of the Act of 1860 . . 57 
 
 IX. The Irish Land Act op 1870 . . . . 62 
 
 Leading Provisions of this Act . . 66 
 
 The Bright Clauses 81 
 
 Tenant Eight 100 
 
 Questions for Consideration . . . 108 
 
 APPENDIX. 
 
 Popular Errors as to Irish Law . .115
 
 ^
 
 rcSfTARTS 
 
 1.V 
 
 UBBAR\ 
 
 'LINC 
 
 THE 
 
 lEISH LAND LAWS. 
 
 INTKODUCTION. 
 
 During the past year many articles have been 
 written, and speeches made, advocating altera- 
 tions, more or less extensive, in the Irish Law of 
 Landlord and Tenant', and suggesting new legis- 
 lation whereby the relations of the owners and 
 occupiers of land in Ireland may be established 
 upon a permanent and satisfactory basis. 
 
 When the abolition or reform of any system 
 of law is taken in hand, it is of the first import- 
 ance that the enactments of the existing code 
 should be clearly understood ; nothing is more 
 dangerous than a partial repeal of legal prin- 
 ciples, which leaves other rules, which are either 
 their logical antecedents or consequences, still 
 subsisting ; or an ill-considered reform which 
 leaves mingled together in hopeless confusion 
 enactments of different origin and contradictory 
 nature.
 
 2 THE IRISH LAND LAWS. 
 
 It must be confessed that many of those who 
 have dealt lately with this subject have failed to 
 master the changes produced in the Irish Law of 
 Landlord and Tenant by the Acts of 1860 and 
 1870, and have proceeded upon the assimiption 
 that the law as it now exists is the same as that 
 which subsisted prior to the former date. It is 
 not to be expected that laymen should take upon 
 themselves the irksome and uninteresting task of 
 mastering the Acts of 1860 and 1870, and of en- 
 quiring upon what principles the reforms in these 
 statutes proceeded, and to what extent the previous 
 law, for the better or for the worse, was thereby 
 altered. The enthusiasm of more than one advo- 
 cate of a reform of the Irish law has been cooled 
 by the discovery that the legal injustice, the sup- 
 posed existence of which had struck him as a cry- 
 ing wrong, formed no part of the law in question, 
 and he has been hence induced to consider the 
 complaints of the working of the present system 
 as wholly unfounded. It may, therefore, be use- 
 ful to lay before the public, in a brief and popular 
 form, the leading principles of the existing Irish 
 Land Law ; to show how it has grown to be what it 
 is ; how it differs from that existing in England ; 
 upon what principles these changes have been 
 made ; and to draw attention to the points in 
 which the Irish Law, and the Roman and French 
 Law upon this subject, resemble or contradict 
 each other. 
 
 It is not the object of this work to propose
 
 INTRODUCTION. 3 
 
 any specific alteration or amendment in the ex- 
 isting law. The enquiry what the law is, and 
 how it came to be what it is, is entirely distinct 
 from that whether the existing law should be 
 amended, and if so, in what particulars, and to 
 what extent. It is needless to observe that no 
 rule of law dealing with the contracts of owners 
 and hirers of land is in itself objectively good or 
 bad ; the law which is most advantageous in one 
 society would, if suddenly introduced into another, 
 seem unjust, and probably prove mischievous ; the 
 good or evil effects of any law depend upon its 
 being applicable or inapplicable to the social con- 
 dition of the society into which it is introduced. 
 The unreformed English Keal Property Law of 
 the fifteenth and sixteenth centuries had become 
 simply intolerable in the nineteenth century ; but 
 great as are the evils which arise from the unrea- 
 sonable retention of an antiquated system, they 
 are not greater than those caused by the introduc- 
 tion, into a comparatively backward community, 
 of laws constructed for a wealthy and progressive 
 society. The question how, and to what extent, 
 the Irish Land Law should be altered involves 
 the consideration of both the present social con- 
 dition of Ireland and its probable future — a very 
 large and difficult subject, foreign to the objects 
 and outside of the scope of the present work. 
 
 B 2
 
 THE IBISH LAND LAWS. 
 
 CHAPTER I. 
 
 CUSTOMARY TENURES. 
 
 To avoid the false analogies which upon this 
 subject are frequently drawn from various an- 
 cient and modem systems of law, and the reforms 
 which were from time to time effected in them, 
 it is to be observed that all laws defining the 
 rights and duties of landlords and tenants are 
 divisible into two distinct classes, differing alto- 
 gether in their origin, first principles, and develop- 
 ment. 
 
 The more ancient systems of law dealing 
 with the present as well as with many other 
 legal relations are purely customary; these are 
 not laws in the technical sense of the term, but 
 simply statements of the manner in which indi- 
 viduals standing in a certain legal relation to 
 each other have hitherto acted, and to which 
 course of action public opinion requires that 
 future members of the community shall conform 
 their conduct. The custom having been reduced 
 to writing and enforced by a sanction, becomes 
 thus in a somewhat circuitous fashion * law ' in • 
 the proper sense of the term ; such a system of
 
 CUSTOMARY TENURES. 5 
 
 rules when once established may be altered or 
 expanded by an act of the sovereign authority, 
 but it will always retain its essential character, 
 namely, that the reciprocal rights and duties of 
 the landlord and tenant arise by law from the 
 relation in which they stand to each other, 
 and neither spring from nor are referred to any 
 contract previously entered into between the 
 parties, but are fixed and incapable of alteration 
 even by agreement of the parties themselves. Of 
 such a nature was at the commencement of this 
 century the relation of the Prussian noble and 
 peasant,^ and at a later period that of the Eussian 
 boyar and serf, and traces of this ancient system 
 still remain in the English copyhold tenures. 
 
 ' The Prussian peasants owned the peasant-land of an 
 estate by as high a title as the lord held the noble-land of 
 the same ; thus the peasants did not hold of the lord, nor 
 was there any relation of contract between them. The lord 
 could not eject a peasant nor remove him from off the 
 estate, nor purchase the holding of a peasant family ; be- 
 cause the full number of peasant hearths had to be kept up 
 for the purposes of the conscription. The peasants did not 
 pay rent in the proper sense of the term, but were bound to 
 render their lords certain services, the performance of which 
 was enforced by means other than eviction. What these 
 means were may be easily surmised, if it be remembered 
 that until within the last few years the nobles of Mecklen- 
 berg retained the right of flogging their serfs. 
 
 The celebrated reform of the Prussian law simply per- 
 mitted the tenant to compound for the services to which 
 his land was subject, and to continue to hold his own land, 
 or the residue of it, released in future from any feudal 
 obligation.
 
 6 THE IKISH LAND LAWS. 
 
 As customary tenures have always been of 
 exceptional rarity in Ireland, and have within 
 the last few years ceased to exist, we may disre- 
 gard the first class of tenures known as customary, 
 and turn our attention exclusively to the second 
 or conventional class.
 
 CHAPTEE II. 
 
 CONVENTIONAL TENURES. 
 
 As communities increase in wealth and land ac- 
 quires a commercial value agriculture becomes 
 a distinct profession, and the possession of land is 
 desired as an ordinary investment of capital. It 
 is obvious that it is more advantageous for the 
 farmer who desires to make profit by agriculture 
 that he should preserve his capital intact and 
 pay for the right to occupy his farm by allotting 
 to the owner of the land a certain proportion of 
 the annual produce, than that he should sink all 
 or a large proportion of his capital in the absolute 
 purchase of an estate. Thus the increasing wealth 
 of a community introduces an entirely new view 
 of the relations between the owner and the occu- 
 pier of land ; the right to occupy and cultivate 
 land is sold like any other marketable article ; 
 the owner of the land endeavours to obtain the 
 highest market value, and the tenant strives to 
 make the most advantageous bargain possible. 
 In such a rapidly changing state of society the 
 xAd rules of land tenure, which represent the 
 original relation of lord and vassal, or freeman
 
 8 THE IRISH LAND LAWS. 
 
 and serf, are found inapplicable and inconvenient,, 
 and all classes in the community are interested in 
 abolishing the antiquated rules of tenure and per- 
 mitting the owners of land to let and the tenants 
 to acquire the possession of land upon such terms 
 as they may agree upon between themselves. 
 
 In every progressive society the laws relative 
 to the rights and duties of the owner and hirer 
 of land tend to follow an invariable order of 
 change ; the parties are permitted to make their 
 own bargains; land may be dealt with as any 
 other commodity ; the law ceases to define before- 
 hand by fixed rules what shall be the reciprocal 
 rights of the owner and hirer of land, and 
 leaves to them, within wider or narrower limits, 
 by their contract to determine as between them- 
 selves what shall be their respective rights and 
 duties. This alteration in the theory of the re-^ 
 lation of landlord and tenant is only one example 
 of the great step in legal development which is 
 technically called the shifting of rights from the 
 basis of status to that of contract. A^Tien this 
 change has once taken place the Executive no 
 longer interferes to compel men to act according 
 to certain invariable, and often unintelligible, 
 rules, but to enforce contracts entered into by 
 the parties, who by their mutual stipulations 
 have, in fact, made the law for themselves. 
 
 In no contract, whether dealing with land or 
 any other subject-matter, do the parties express 
 in extenso all the rights and obligations which
 
 CONVENTIONAL TENURES. 9 
 
 flow from the actual terms of their agreement ; 
 the vast majority of such rights and obligations 
 are not expressed in the contract itself, but are 
 annexed to it by the law ; yet they are regarded as 
 implied terms of the contract; and rightly so,^ 
 because the parties must be taken to have had 
 regard to them when they entered into their 
 contract, and also because they were at liberty 
 (save in specially excepted cases) to have con- 
 tracted themselves out of them. The contracts for 
 the hiring of land, which are in ordinary use, are 
 very restricted in niunber; and the implied terms 
 of the contract being, or being supposed to be, 
 well known, a very short agreement provides for 
 a large number of cases, the specific enumeration 
 of which would be tedious and impossible, the 
 parties being left at liberty, if they object to the 
 implied terms, to substitute others for them by 
 an express contract. If the rights and obligations 
 of the parties are referable to the contract which 
 they have entered into, an obvious difiiculty arises 
 if the possession of land has been given to the 
 tenant without any definite contract having been 
 arrived at ; it is, therefore, necessary for the law 
 to presume or make a contract for the parties, the 
 terms of which are enforced as if it had in fact 
 been entered into. The discussion of the question 
 what contract the parties ought to have entered 
 into, and into which for the purpose of any action 
 they are to be presumed to have entered into, led 
 the civil lawyers to consider what were the rights.
 
 10 THE IRISH LAND LAWS. 
 
 and obligations which, in the case of the hiring 
 of land, would have been acquired or incurred by 
 the parties to the transaction, if they had both 
 been honest and intelligent men and had under- 
 stood the nature of the contract into which they 
 entered. In prosecuting this enquiry the civil 
 lawyers were free from the influence of feudal 
 ideas, and founded their conclusions upon the 
 intrinsic nature of the contract itself and the 
 obvious principles of ethics; and the abstract 
 contract thus developed by them became a model 
 for subsequent legislation ; and being specifically 
 embodied in the Code Napoleon, has widely in- 
 fluenced European ideas as to the respective 
 rights of owners and hirers of land. The fairest 
 mode of drawing our attention to the peculiar 
 characteristics of the system of land tenure in 
 Ireland is to compare the provisions of that law 
 with the contract to be implied in the ordinary 
 cases of the hiring of land, as framed by jurists 
 who were perfectly free from that prejudice in 
 favour of landlords which has been transmitted, 
 like an hereditary taint, through the successive 
 generations of English lawyers. 
 
 The simplest and best treatise upon the sub- 
 ject written by a French lawyer is the tract of 
 Pothier entitled *Traite du Contrat de bail a 
 rente,' which has manifestly formed the basis of 
 the sections 1 and 3, book III., chapter viii., of 
 the Code ' Du Contrat de Louage.' The contract 
 for the letting of lands for agriculture or pasture
 
 CONVENTIONAL TENURES. 11 
 
 is termed in the French Code * bail a ferme,' and 
 is treated as a subsection of the chapter dealing 
 with the general contract of hiring (' Du Contrat 
 de Louage '). 
 
 Pothier defines the * bail a rente simple ' as 
 a contract by which one of the parties lets, and 
 yields possession of, certain land to the other, 
 and covenants for the quiet enjoyment thereof, 
 subject to the reservation of an annual rent, con- 
 sisting either of a sum certain of money or of a 
 fixed proportion of the annual produce which he 
 retains to himself out of the lands, and which the 
 other reciprocally binds himself to pay so long as 
 he shall enjoy the possession of the lands in 
 question. 
 
 The contract regarded from this point of 
 view creates reciprocal duties and rights ; the 
 rights of the landlord are the complement of the 
 tenant's duties ; and further, neither party can 
 claim his rights unless and until he fulfil his 
 duties. 
 
 The full enjoyment by the tenant of the 
 lands demised is a condition antecedent to the 
 right of the landlord to require the payment of 
 his rent, and the tenant has not any right to 
 continue in the possession of the premises unless 
 he pay the rent. Whatever, therefore, be the 
 date of the contract, the reciprocal duties created 
 thereby do not come into operation until the 
 tenant is put into possession of the premises de- 
 mised.
 
 12 THE IRISH LAND LAWS. 
 
 By the contract the lessor is supposed to 
 transfer to the lessee the ownership (' la pro- 
 priete ') in the premises subject to a charge of 
 the rent upon the interest of the lessee ; the rent 
 is primarily a charge upon the lessee's interest, 
 and the lessee personally bound to pay it only so 
 long as he remain in actual possession ; and the 
 obligation to pay the rent ceases if the lessee be 
 deprived of the enjoyment of the premises. 
 
 The duties of the lessor are stated thus, to 
 put the lessee into possession and to guarantee 
 him the quiet possession of the premises de- 
 mised ; those of the tenant to pay the rent, to 
 treat the premises in a husbandlike manner, 
 and to surrender the premises at the end of the 
 term in the condition in which he himself had 
 received them. 
 
 The theory of the French civilians as to the 
 nature and recovery of rent is the point in which 
 they are most at variance with English ideas. 
 Their views on this matter can only be under- 
 stood if two points are steadily borne in mind, 
 viz., ( 1 ) that a * bail a ferme ' partook of the nature 
 of a sale as well as of a hiring, a question dis- 
 cussed by the Roman lawyers (Justinian's * Insti- 
 tutes,' iii. 24). Under this apparently verbal 
 discussion there lurks, as is often the case, a 
 question of importance. If a lease be considered 
 as a sale of the lands for a greater or less period, 
 the consideration being not a sum of money but 
 an annuity of equivalent duration and charged
 
 CONVENTIONAL TENURES. 13 
 
 npon the lands demised, the court must take into 
 consideration all equities which could be relied 
 upon by a defendant resisting the specific per- 
 formance of a contract of sale. If a vendor in- 
 duced a purchaser to give so disproportionately 
 large a price, or a purchaser induced a vendor to 
 accept so absurdly small a price that the disparity 
 of the price itself was evidence of fraud, the civil 
 law would refuse specific performance of the con- 
 tract ; so if the rent reserved in a lease was so 
 much in excess of the value as to be evidence of 
 fraud, the court would allow the lessor to recover 
 only the fair value of the premises : * Pareille- 
 ment, de meme que la bonne foi ne permet pas 
 au vendeur de vendre au-dela du juste prix, elle 
 ne permet pas non plus au bailleur d'imposer par 
 le bail la charge d'une rente trop forte qui excede 
 le juste prix.' This principle was equally appli- 
 cable to the case of the lessee : * Le bail a rente 
 etant un contratcommutatif ou chacune des parties 
 entend recevoir autant qu'elle donne, la bonne 
 foi oblige le preneur de se charger par le bail 
 d'une rente qui ne soit pas au-dessous de la juste 
 valeur de la propriete de I'heritage qui lui est 
 transfere par le bail.' It is not to be understood 
 that in an ordinary case the court enquired as to 
 the actual value of the premises, and fixed the 
 rent at that amount disregarding the terms of the 
 contract ; in case of extraordinary and dispropor- 
 tionate excess, a disproportion produced by or in 
 itself evidence of fraud, it disregarded the frau-
 
 14 THE IRISH LAND LAWS. 
 
 dulent rent and treated the case as an action for 
 use and occupation. That this is the correct con- 
 struction to be placed upon thispassage^of Pothier 
 is shown by the following extract from the work 
 of Merlin, who wrote with the treatise of Pothier 
 before him : ' Quand le prix du bail n'egalerait 
 pas la valeur de la jouissance de la chose louee> 
 la convention n'en aurait pas moins tout son 
 effet. En cela le contrat de louage diff^re de 
 celui de vente. On sait que le vendeur pent 
 faire rescinder la vente lorsqu'elle a ^te faite 
 pour une somme au-dessous de la moitie du 
 juste prix.' 
 
 * Mais de quelque consideration que soit la le- 
 sion dans le contrat a louage, elle ne pent pas le 
 faire resoudre, a moins qu'elle ne soit accom- 
 pagnee de quelques circonstances particuli^res, 
 telles que le dol ou I'erreur. La raison en est 
 que I'incertitude de la valeur des revenues des 
 temps a venir pent mettre un juste equiUbre entre 
 la condition du bailleur et celle du preneur.' ' 
 
 If the rent reserved upon a contract for the 
 letting of land had continued to be what in early 
 times it was, a fixed proportion of the gross pro- 
 duce of the land, the rent which the lessor would 
 have received must have varied with the greater 
 or less abundance of the harvest. The lessor 
 and lessee were at first practically partners in 
 the crop, the lessor supplying the land and the 
 lessee the labour. When the lessor commuted 
 • Sub V. Baox, torn. 1, fol. 707.
 
 CONVENTIONAL TENURES. 15 
 
 his fixed proportion of the crop into a fixed annual 
 payment two equitable rules were introduced : (1) 
 that the landlord should be taken to have cove- 
 nanted that the annual produce would exceed the 
 rent, and (2) that if the crop failed by any un- 
 foreseen cause the lessor should share the loss 
 with the lessee. The application of this principle 
 will appear in the subsequent extracts from the 
 French Code. The mode in which the rent 
 might be recovered was determined by the stand- 
 point from which the nature of the rent was 
 regarded. Eent might be considered as either 
 (1) an annual sum which the tenant had con- 
 tracted to pay as the consideration for the posses- 
 sion of the lands, or (2) as an annuity charged 
 upon the interest of the tenant in the lands, or 
 (3) as the share of the landlord in the annual 
 produce of the lands, or (4) as a sum of money 
 the payment of which was a condition precedent 
 to the tenant's right of occupation. 
 
 The landlord had, therefore, a personal action 
 not only against the tenant and his heirs, but 
 also against third parties in possession who had 
 acquired it with notice of the .existence of the 
 rent, and against their heirs for the recovery of 
 the arrears of the rent which accrued during 
 their possession or that of their ancestors. As 
 to the arrears of rent which had accrued prior 
 to the purchase of the tenant's interest by an 
 assignee in possession, the landlord had no per- 
 sonal action against the assignee, but he could
 
 16 THE IRISH LAND LAWS. 
 
 proceed to recover all arrears by an * hypothecary * 
 action ; that is, he could treat the arrears of rent 
 as a charge upon the tenant's interest, and raise 
 them by a sale of the interest, as if he were a 
 mortgagee for that amount. * Cette action nait 
 de I'afFectation de I'heritage au payement de ces 
 arrerages. L'heritage sujet a la rente fonci^re 
 etant proprement le debiteur de la rente dont il 
 est charge, c'est une suite qu'il soit affects au 
 payement de tons les arrerages qui en sont dus.' 
 
 The landlord had further a right, similar to 
 the hypothec of the Scotch law, to treat the 
 produce of the lands and property upon the 
 lands as specifically pledged to him for the pay- 
 ment of the rent. When the tenant, personally 
 liable to the payment of the rent, was himself in 
 possession, the landlord possessed a very stringent 
 power of thus recovering his rent, which was de- 
 fined — * une espece de droit de gage sur les fruits 
 nes de l'heritage charge de la rente, et sur les 
 meubles qui en occupent les logis, lequel droit se 
 perd lorsque les choses out ete transportees hors 
 de I'heritage, si le creancier n'en a pas poursuivi 
 le retablissement dans le court delai qui lui est 
 accorde. Ce droit, de meme que celui du locateur, 
 s'etend a tous les meubles qui servent a I'exploita- 
 tion de la maison ou metairie sujette a la rente fon- 
 ci^re, quand meme ils n'appartiendraient pas au 
 debiteur de la rente. C'est aussi une suite de ce 
 droit que, lorsque les fruits et les meubles qui 
 etaient dans l'heritage sujet a la rente en ont
 
 CONVENTIONAL TENURES. 1 7 
 
 ete deplaces, le seigneur de rente fonciere a, 
 comme les locateurs de maisons et metairies, le 
 droit de les suivre et de les faire retablir pour sa 
 surete.' 
 
 If the farm had been sublet, the right of the 
 landlord did not attach upon the crops or the 
 goods of the subtenant, but upon the interest in 
 the lands of the tenant, namely, the rent payable 
 under the subletting. It is necessary to observe 
 that the right to treat the produce of the farm as 
 charged with the rent is. entirely different in its 
 origin from the right of distress given to land- 
 lords by the English law. If the tenant failed to 
 perform any of the obligations, the fulfilment of 
 which was the condition upon which he was en- 
 titled to the possession, his interest in the lands 
 necessarily determined. This result followed not 
 merely from the breach of express stipulations, 
 such as an express agreement to build and im- 
 prove, but also from implied covenants, as, for 
 exanijple, for the payment of rent and the proper 
 cultivation of the land. The interest of the tenant 
 was not, however, summarily determined, as upon 
 a proviso for re-entry upon breach of covenants 
 in an English lease ; the judgment of a court was 
 requisite to declare the tenant's interest forfeited. 
 Courts which followed the equitable principles of 
 the Eoman law were not likely to determine the 
 tenant's interest unless the breach of covenants 
 had been substantial and wilful, nor without giv- 
 ing the tenant an opportunity of fulfilling his 
 C
 
 18 THE IRISH LAND LAWS. 
 
 obligations. Thus, in the case of the action 
 brought by the landlord seeking not merely pay- 
 ment of his rent, but also an ejectment for non- 
 payment of rent (' pour rentrer dans I'heritage a 
 defaut de paiement '), it is observed, * A I'egard 
 de I'autre objet de Taction, qui est de rentrer 
 dans I'heritage a defaut de paiement de la rente, 
 le bailleur n'y est refu que lorsqu'il lui est du 
 plusieurs termes ; meme en ce cas le juge, avant 
 de statuer definitivement, a coutume d'ordonner 
 que le preneur sera tenu de payer dans un certain 
 temps, fixe par la sentence, feiute de quoi il sera 
 permis au bailleur de rentrer.' If the tenant paid 
 rent and costs within the time limited, he could 
 dismiss the action and reTnain in the farm. 
 Whatever was the judgment, the action being 
 essentially for the recovery of rent, he could pay 
 the rent and costs at any time before execution 
 and the re-entry of the landlord ; but after such 
 execution and re-entry the tenant had no further 
 time to redeem ('il ne seroit plus a temps d'ofirir 
 le paiement des arrerages '). The right of the 
 landlord being to secure the payment of his rent, 
 or for this purpose to determine the tenancy, he 
 was entitled to recover the farm in the same state 
 as it was when originally let. In such a case the 
 tenant also was entitled to the value of his im- 
 provements (amSliorations), and an account was 
 settled, in which he was credited with their value 
 and debited with the rent. The re-entry of the 
 landlord did not extinguish the personal liability
 
 CONVENTIONAL TENURES. 19 
 
 of the tenant to pay the arrears, a rule inconsis- 
 tent with the theory that the tenant's interest in 
 the lands was the primary security. 
 
 In the absence of express agreement, a con- 
 tract on the part of the tenant was implied that 
 he would till the ground in a husbandlike man- 
 ner, and keep all buildings, &c., in proper repair ; 
 and the failure to perform these duties involved a 
 forfeiture of his interest, and liability to the dam- 
 ages ' resultant de ce que I'heritage vaut moins que 
 la rente par les degradations qu'il y a faites.' This 
 claim of the tenant for compensation for improve- 
 ments upon the re-entry of the landlord under a 
 judgment in an action for non-payment of rent 
 arises from the fact that the landlord, by the form 
 of the action which he has selected, determines 
 the tenancy before the period appointed for its 
 regular effluxion. If the legal relations of land- 
 lord and tenant are referred exclusively to con- 
 tract, a tenant who gives up the possession at the 
 end of his term can have no claim for compensa- 
 tion for improvements if he be merely required 
 to give up the land in the same condition as that 
 in which he received it ; but if a landlord himself 
 determines an interest of uncertain duration, or 
 one of certain duration, before the date fixed for 
 its termination, the claim of the tenant for com- 
 pensation for his improvements is an obvious 
 equity. 
 
 This distinction is clearly taken in the Brehon 
 law tract known as the bfteAcb<^ corpAicbcepvA. AU&fO 
 c 2
 
 20 THE IRISH LAND LAWS. 
 
 * If the land has been let for hire, and no time 
 has been specified, whatever length of time he 
 shall be upon it, whether with necessity or with- 
 out necessity he goes, he shall leave behind the 
 erections. If he be noticed to quit, whether it 
 is done with or without necessity, he may carry 
 away his erections with him. If a term has been 
 specified, and the term has expired, he shall leave 
 his erections behind.' — Ancient Laws of Ireland, 
 vol. IV. pp. 132-133.
 
 21 
 
 CHAPTER III. 
 
 THE CODE NAPOLfON. 
 
 The Code Napoleon is not an exhaustive 
 treatise — merely an outline statement of the 
 broad principles of law applicable to certain legal 
 relations; the sections dealing with the rela- 
 tion of landlord and tenant lay down wide 
 general principles leaving the application of 
 them to the executive, and avoiding any re- 
 ference to forms of procedure. In the Code 
 the letting of land is treated as falling under 
 the ordinary contract of hiring ('louage'), and 
 the rights and duties of both parties as implied 
 from the contract into which they have entered. 
 A few brief extracts will show that the principles 
 of the Code are almost identical with those of 
 Pothier. The obligations of the landlord (bail- 
 leur) are briefly defined : ' Le bailleur est, par la 
 nature du contrat, et sans qu'il soit besoin d'au- 
 cune convention particuliere, tenu des trois obli- 
 gations suivantes: (1) II doit delivrer au preneur 
 la chose louee, et cela en bon etat de reparation 
 de toute espece. (2) Le bailleur doit entretenir 
 la chose louee en etat de servir a I'usage auquel 
 elle est destinee, et par consequence il doit y faire
 
 22 THE IRISH LAND LAWS. 
 
 toutes les reparations qui peuvent devenir neces- 
 saires. Les obligations du bailleur et du preneur 
 sent successives; le bailleur n'acquiert le droit 
 au prix du louage qu'au fur et a mesure qu'il 
 procure au preneur la jouissance de la chose 
 louee. (3) Le bailleur est tenu de faire jouir 
 paisiblement le preneur de la chose louee.' 
 
 As to the obligations of the tenant they are as 
 follows : * Le preneur est tenu de deux obligations 
 principales : ( 1 ) De payer le prix du bail aux termes 
 convenus. (2) D'user de la chose louee en bon pere 
 de famille ; le preneur devant user de la chose louee 
 en bon pere de famille, il est evident qu'il repond 
 des degradations et des pertes arrivees pendant 
 sa jouissance, soit par son fait, soit par le fait des 
 personnes de sa maison, de ses sous-locataires, ou 
 de ses concessionaires. Le preteur devant user 
 de la chose suivant la destination des parties, le 
 bailleur pent, en cas de violation de cette obliga- 
 tion, conclure soit des dommages et interets, soit 
 fsuivant la gravite des circonstances a la resilia- 
 tion du bail.' The right of the landlord to re- 
 enter for a breach of contract is not therefore 
 absolute, but depends upon the actual injury 
 arising from the breach, and may be resisted 
 upon equitable grounds. 
 
 It is distinctly laid down that the letting is 
 determined * par defaut du bailleur ou du preneur 
 de satisfaire a ses engagements.' 
 
 If the lands demised exceed or fall short of 
 the supposed quantity the rent is to be propor- 
 tionately increased or diminished.
 
 THE CODE NAPOLfON. 23 
 
 The principle that the tenant forfeits his in- 
 terest if he fail to fulfil the covenants implied 
 from the nature of the contract is carried to the 
 utmost in the following passage : ' Le preneur 
 d'un bien rural doit le garnir de bestiaux et d'us- 
 tensiles necessaires a son exploitation, sinon il 
 pent etre expulse : il ne serait pas admis a donner 
 d'autres suretes du payment des fermages, car 
 les bestiaux et les ustensiles sont exiges non 
 seulement comme surete du payment des fer- 
 mages, mais comme garantie d'une bonne culture. 
 Le preneur pent encore etre expulse s'il aban- 
 donne la culture, s'il ne cultive pas en bon pere 
 de famille, s'il emploie la chose louee a un 
 autre usage que celui auquel elle est destinee, 
 ou, en general, s'il n'execute pas les clauses du 
 bail, et qu'il resulte de la un dommage grave 
 pour le bailleur. En cas de resiliation provenant 
 d'un fait quelconque de preneur, celui-ci est tenu 
 de dommage s et interets.' 
 
 The obligation of the landlord to share in the 
 loss arising from the crop is based upon the 
 implied contract of the landlord to guarantee 
 that the farm let is what is technically termed 
 ' une possession utile.' The obligation to share 
 in the loss does not, however, arise, unless the 
 deficiency of the crop exceeds one-half of an 
 average harvest ; and in the case of a letting for 
 a term of years, the tenant to obtain a reduction 
 of his rent must extend the account over the entire 
 period of the letting, and prove a loss of more
 
 i4 THE IRISH LAND LAWS. 
 
 than half of the ordinary crop, taking both good 
 and bad years into account.' 
 
 The tenant, upon giving up the farm, must 
 leave it in the same condition as he received it 
 in. * Le fermier sortant doit laisser a celui qui 
 lui succMe dans la culture les logements conve- 
 nables et autres facilites pour les travaux de I'annee 
 suivante. Le fermier doit laisser les pailles et 
 engrais de I'annee, s'il les a re9us a son entree 
 en jouissance ; s'il ne les a pas rejus, le proprie- 
 taire pent les retenir sur estimation, car il a un 
 droit fonde en raison a ce que ses terres ne soient 
 point appauvries.' 
 
 If a tenant be put into possession of land 
 under a contract in which the term or duration 
 of the tenancy is not stated, it is necessary for 
 the court to supply this defect in the agreement. 
 The duration of a letting cannot be logically de- 
 duced from the nature of the contract. The con- 
 tract of hiring or letting land is essentially the 
 same whether the term is one or a thousand years. 
 The duration of the letting is to be inferred from 
 the surrounding circumstances and the object 
 with which the land was taken by the lessee. 
 
 * It is clear that as an aoconnt is to be taken of profit or 
 loss for the entire term, this rule is inapplicable to a lease 
 for ever ; and in the case of an Irish tenancy from year to 
 year, in which the landlord cannot evict the tenant without 
 compensation for disturbance, it may be suggested that the 
 tenure as between parties is of a quasi-perpetual nature, and 
 would not therefore fall, as has been suggested by some, 
 within the equity of this principle.
 
 THE CODE NAPOLEON. 25 
 
 In the case of an agricultural lease (d^un foTids 
 rural) the duration of the letting is fixed by the 
 time required to get in a harvest of the crop 
 usually cultivated upon the lands in question. 
 In the case of corn-land, vineyards, &c., such a 
 letting would be equivalent to one for a year cer- 
 tain ; but if the crop to be planted by the tenant 
 is not an annual produce, but of a longer duration, 
 the letting is for as many years as there are sea- 
 sons of the crop.
 
 26 THE IRISH LAND LAWS. 
 
 CHAPTER IV. 
 
 THE FRENCH LAW AS TO * AMELIORATION.' 
 
 It has been already stated that neither the 
 Civil * nor the French law recognised any right 
 of a tenant for a fixed term to compensation for 
 improvements ; he was simply bound to restore 
 the lands in the state in which himself had re- 
 
 ' Under the head of acoesgion, Mr. Hunter, in his volume 
 upon Roman Law, page 132, treats the case of a contract for 
 hiring, as creating an important exception to the general rule 
 • omne quod aedificatur solo cedit,' and as his authority refers 
 to three passages in the Digest, which however support his 
 statement to but a limited extent. The first passage (D. 19, 2, 
 19, 4) amounts to no more than the statement that during 
 the tenancy the tenant could remove fixtures. The second 
 (D. 19, 2, 55, 1) deals with the case of a tenant whose ten- 
 ancy had been determined by the act of the landlord, and the 
 rule agrees precisely in principle with the passage of Pothier 
 before referred to. The third passage (D. 19, 2, 61, 2) deals 
 with the case of a tenancy in which the landlord was entitled 
 to receive as rent a proportion of the produce, and the tenant 
 by improvements, which he was not bound to make, had 
 caused the lands to produce an extraordinary annual crop. 
 
 In the two latter cases the nature of the tenant's right is 
 indicated by the nature of his legal remedy. In case No. 2 
 he might proceed against the landlord in an action • ex con- 
 ducto ' to recover his expenditure ; in the case of No. 3 he 
 might defend himself against the landlord claiming a pro- 
 portionate share of the gross produce of an 'ezceptio doli mall.'
 
 THE FRENCH LAW AS TO 'AMELIORATION.' 27 
 
 ceived them. The tenant under the Roman law, 
 not specifically as a tenant, but as one of the 
 • class of those who were entitled to the possession 
 of the land for a limited period, was practically 
 secured compensation for certain improvements 
 by the rule which permitted him to remove such 
 as were capable of removal, and thus to compel 
 the proprietor to purchase such as were of prac- 
 tical value. The mode in which this result was 
 arrived at cannot be more clearly stated than in 
 the words of Mons. Lesenne : ' Quand le maitre 
 des materiaux a bati sdemment sur le fonds 
 d'autrui rigoureusement il en perd pour toujours 
 la propriete, parce qu'il est cense les avoir gra- 
 tuitement alienes au profit du maitre du terrain, 
 qu'il est d'ailleurs en faute d'avoir temerairement 
 bati sur un sol qu'il savait n'etre pas a lui, et il n'a 
 aucune action ni exception pour se faire indem- 
 niser ou reprendre les materiaux, soit qu'il pos- 
 sdde, soit qu'il ne possede pas le terrain. Telle 
 est la rigueur du principe expose dans les Insti- 
 tutes ; mais cette severite avait ete adoucie des 
 avant Justinien par diverses decisions des juris- 
 consultes et des empereurs, qui permettent au 
 constructeur de mauvaise foi de revendiquer ses 
 materiaux apres la demolition, s'il n'est prouve 
 qu'il ait bati " dcmandi aniimoy'' qui obligent le 
 proprietaire, revendiquant le fonds, a indemniser 
 ce constructeur des depenses necessaires qu'il a 
 faites, et qui accordent a ce dernier I'exception 
 de dol, si le proprietaire ne lui laisse pas enlever
 
 28 THE IRISH LAND LAWS. 
 
 tout ce qui peut I'etre sans degradation, ou ne 
 lui en offre pas la valeur veniale ' {De La Propri- 
 6t4, &c., sect. 99). Questions as to improvements 
 by a tenant are considered by the French lawyers 
 from a point of view different from that in which 
 we are accustomed to regard them. Such ques- 
 tions are argued by us with the object of deciding 
 whether the tenant should be compensated for 
 his improvements ; by the French lawyers with 
 the object of deciding whether the tenant should 
 be bound to restore the lands to their original 
 condition. Such questions, therefore, are not 
 treated in the Code under the head of the hiring 
 of land, but as specific instances to which should 
 be applied the general principles of accession) 
 that is, the rules which deal with the case of the 
 properties of two individuals having been inex- 
 tricably intermingled by the act of one of them. 
 The general rule upon this subject is very fully 
 set out in the 555th section of the Code Civil : 
 * Lorsque les plantations, constructions, ouvrages 
 ont ete faits par un tiers et avec ses materiaux, le 
 proprietaire du fonds a droit ou de les retenir, ou 
 d'obliger ce tiers a les enlever. Si le proprietaire 
 du fonds demande la suppression des plantations 
 et constructions, celle-ci est aux frais de celui qui 
 les a faites, sans aucune indemnite pour lui ; il 
 peut meme etre condamne a des dommages et 
 int^rets, s'il y a lieu, pour le prejudice que peut 
 avoir ^prouve le proprietaire du fonds. Si le 
 proprietaire pref^re conserver les plantations et
 
 THE FRENCH LAW AS TO 'AMELIORATION.' 29 
 
 constructions, il doit le remboursement de la 
 valeur des materiaux et du prix de la main-; 
 d'oeuvre sans egard a la plus ou moins augmen- 
 tation de valeur que le fonds a pu recevoir. 
 Neanmoins, si les plantations et constructions 
 et ouvrages ont ete faits par un tiers evince, 
 qui I'aurait condamne a la restitution des fonds, 
 attendu sa bonne foi, le proprietaire ne pourra 
 demander la suppression desdits ouvrages, plan- 
 tations, et constructions, mais il aura le choix ou 
 de rembourser la valeur des materiaux et du 
 prix de la main-d'oeuvre, ou de rembourser une 
 somme egale a celle dont le fonds a augmente de 
 valeur.' 
 
 The rights of the person who has made the 
 improvements depend upon the question whether 
 they have been made in good or in bad faith ; 
 they are made in good faith when the person 
 who made them believed that he himself was the 
 proprietor ; in bad faith when he knew, or ought 
 to have known, that he was not so. Hence it has 
 been decided by the French Courts that a person 
 himself entitled to a terminable interest in the 
 land, under which head a ' fermier ' is included, 
 must be held to have made the improvements 
 ' de mauvaise foi ' ; ^ and that therefore upon the 
 determination of a tenancy the landlord is entitled 
 to elect whether he would take the improvements 
 of the tenant at their original cost, irrespective of 
 the increased value of the farm, or require the 
 > Lesenne, De la Projjriete, &c., p. 243.
 
 30 THE IRISH LAND LAWS. 
 
 outgoing tenant to restore the lands to their ori- 
 ginal condition. The Canadian Code, which is 
 merely a translation of the Code Civil, contains 
 the 555th section of the French Code as section 
 No. 417, and to prevent any mistake as to its 
 meaning, gives, in section No. 412, an express de- 
 finition of the term ' in good faith,' in accordance 
 with the previous decisions of the French Courts 
 above referred to. 
 
 The principles of the Law of Landlord and 
 Tenant adopted in the Code Napoleon are almost 
 the same established by the Koman, but the 
 latter does not in the Institutes group them 
 together in any single chapter, and they are 
 throughout the work scattered under different 
 heads,' but a comparison of the French Code with 
 the analysis of the Roman Law upon the subject 
 contained in Hunter's Eoman Law will at once 
 establish their identity.* 
 
 » The Roman decisions and authorities on the subject are 
 collected in the 19th Book of the Digest. 
 
 * This right of the landlord to retiuire the tenant, upon 
 the termination of the letting?, to restore the premises to 
 their original condition, by the removal of useless, or mis- 
 chievous imj/roceHU'iiti, is of considerable importance, and 
 may be illustrated by the following:— A tenant holding the 
 estate of the Skinners' Company for the residue of a long 
 term of 99 years, commenced to build thereon an enormous 
 mansion, which at the termination of the lease was left un- 
 finished and in a ruinous condition. In a suit to administer 
 the assets of the tenant, a claim was brou^rht in by the Com- 
 pany for waste, and one of the points relied upon was the 
 partial erection and subsequent abandonment of the house in
 
 THE FRENCH LAW AS TO 'AMELIORATION.' 31 
 
 question. Upon this point the claim failed, because the 
 building of the house, although never completed, was what 
 the English law defines as 'ameliorating waste,' and the 
 tenant was not bound by any covenant to complete or keep 
 it in repair. (Scott v. Ogilvie, M. of R. unreported).
 
 32 THE IRISH LAND LAWS. 
 
 CHAPTER V. 
 
 LEADING PRINCIPLES OF THE FRENCH LAW. 
 
 The Roman Law of landlord and tenant as 
 codified by the French is a system thoroughly 
 consequent and logical ; if the first principles 
 upon which it is founded are once admitted, it is 
 impossible not to admit its most extreme con- 
 clusions. The system rests upon the following 
 assumptions : 
 
 (1.) That there should be free trade in land, 
 and that the rules as to the hiring of land should 
 be the same as those applicable to the hiring of 
 any other commodity; 
 
 (2.) That the relative rights and obligations 
 of a landlord and his tenant are solely derived 
 from the contract into which they have entered ; 
 
 (3.) That in default of any express agree- 
 ment, and so far as their agreement is silent, their 
 rights and obligations are such as equity would 
 infer from the nature of the contract itself; 
 
 (4.) That the rights and obligations of the 
 landlord and tenant are strictly reciprocal ; 
 
 (5.) That neither the landlord nor tenant can 
 claim the benefit of the contract unless he himself 
 has previously fulfilled his obligations.
 
 LEADING PRINCIPLES OF THE FRENCH LAW. 33 
 
 The French law is based upon the application 
 to the landlord and tenant, with the utmost im- 
 partiality, of the same general propositions ; if it 
 gives no undue advantage to the landlord, it 
 certainly does not favour the tenant ; it refuses 
 to regard the relation of landlord and tenant as 
 anything exceptional, and applies to their rights 
 and obligations the same principles and regards 
 them in the same spirit as it would those of the 
 owner and hirer of the most ordinary article ; it 
 is the most complete and equitable application of 
 the rules of free trade to the case of the letting 
 and hiring of land.
 
 34 THE IRISH LAND LAWS. 
 
 CHAPTER VI. 
 
 THE ENGLISH LANDLORD AND TENANT LAW AS SUB- 
 SISTING IN IRELAND PRIOR TO 1860. 
 
 The English law npon this subject is, like much 
 else of English law, inconsequent and illogical ; 
 it consists of a vast and undigested mass of sta- 
 tutes and legal decisions, piled up without any 
 leading principle or definite ideas. Commencing 
 at a period when the landlord was all-powerful 
 and the tenant's rights wholly disregarded, it has 
 been continually amended in favour of the tenant, 
 so much so that it is a question whether even the 
 English Law as it now exists (or the Irish Law as 
 it stood before 1860) is not more beneficial for 
 the tenant than the Roman or French Law, and 
 whether the rights of the landlord would not be 
 vastly increased by the introduction into England 
 of the Code Napoleon. 
 
 .The lettings of lands in Ireland prior to the 
 year 1870 may for the present purpose be divided 
 into three classes, viz., (A.) Leases, (B.) Yearly 
 tenancies, and (C.) Tenancies at will. 
 
 (A.) In the case of a lease the landlord by a 
 deed granted the land in question to the tenant 
 either for lives, or for years (it is immaterial for the
 
 LANDLORD AND TENANT LAW PRIOR TO 1860. 35 
 
 present purpose whether a lease was freehold or 
 not), subject to the payment of the rent agreed 
 upon, and the tenant on his part covenanted to pay 
 the rent and to do or forbear from doing such other 
 acts as had been agreed upon between the parties ; 
 the lease generally contained a further proviso 
 that if the tenant violated any of the covenants 
 entered into by him, the landlord could re-enter 
 and determine the estate of the tenant. The 
 effect of such a proviso was to place the tenant 
 in the same position as to the payment of rent 
 and the fulfilment of covenants as the French 
 Law considers every tenant to stand in without 
 any express covenant. 
 
 (B.) Yearly tenancies or tenancies from year 
 to year appear to have first arisen in the 16th 
 century, and the validity of this fashion of letting 
 was established as the result of Potkjntis case, 14 
 Hen. VIII. In this original case it is described 
 as a * lease for the term of a year to commence at 
 Michaelmas and continue unto the end of the 
 said year, and so on to the next year, de anno in 
 annum, as long as the parties pleased.' In ordi- 
 nary language the letting was for an indefinite 
 term of years commencing at a fixed date and 
 determinable at the end of any current year by 
 either party upon service of a six months' notice.' 
 
 ' Lettings of land in Ireland for agricultural or pastoral 
 purposes, by which tenancies from year to year were created 
 subsequently to the 15th August, 1876, are now to be deter- .(^-t.^ A^>i 
 minable upon a twelve months' notice to quit on any gale 
 
 d2 '^"■^-^ 
 
 ^^^. , ''^
 
 36 THE IRISH LAND LAWS. 
 
 This mode of tenure suited the views of the 
 owners of lands — then more anxious to secure 
 political influence than to improve their estates — 
 when the suffrage, previously confined to lease- 
 holds, was in 1850, by the Act of the 13-14 Vict., 
 eh. 69, extended to the occupiers of land of the 
 annual rating of 121. 
 
 A tenancy from year to year might exist for 
 generations, and thus in the ideas of the tenants 
 it was regarded as an almost perpetual interest, 
 although subject at any time to be determined 
 by a notice to quit; at an early period of the 
 Common Law it would probably have developed 
 into a perpetual customary tenure, as was the 
 case of the copyhold tenure in England. 
 
 (C.) A tenancy at will was a letting of land 
 for such period as both landlord and tenant 
 chose that the relation between them should 
 continue — practically, so long as the landlord 
 chose. But lands were very rarely held upon 
 these terms, as such tenures could then be created 
 only by special agreement. 
 
 In the case of a letting which did not specify 
 the term for which the lands were held, the Eng- 
 lish Courts had to decide what term was to be 
 implied in the contract, or inferred from the fact 
 that the occupier was found in possession paying 
 
 day of the calendar year, in which the rent becomes due 
 and payable, irrespective of the period of the year at which 
 the tenancy commenced ; and for certain specific purposes 
 notice to quit may be served as to portion only of the hold- 
 ing. 39, 40 Vic, ch. 63.
 
 LANDLORD AND TENANT LAW PRIOR TO 1860. 37 
 
 rent to the owner. This question was solved, as 
 a matter of fact, by the assumption that the 
 letting was similar to that in most ordinary use 
 at the time ; down to the time of Lord Mansfield, 
 the presumption was that the tenancy was one 
 at will: from his date it was a tenancy from 
 year to year. 
 
 It is useful now to consider what were the 
 chief rights and obligations, other than by ex- 
 press agreement, of landlords and tenants in the 
 same order as that in which they are dealt with 
 in the French Code. 
 
 As to the landlord's implied obligations. (1) 
 He did not guarantee to the tenant that he had 
 good title to make the lease, and therefore, if the 
 tenant were put out of possession by the true 
 owner of the land, he had no remedy against the 
 landlord ; (2) he was not bound to keep the 
 premises in repair ; (3) he did not guarantee to 
 the tenant what the French lawyers defined as a 
 ' possession utile.' 
 
 The rights and obligations of the tenant, 
 other than by express contract, were as follows : 
 (1) He was bound to pay the rent reserved; (2) 
 he was prohibited from committing waste, that 
 is, destroying the subject matter by pulling 
 down buildings, &c. ; (3) he was bound to give 
 up possession at the termination of the lettings ; 
 (4) he was not bound to keep the premises in 
 repair ; (5) he was not bound to cultivate the 
 premises ^ en hon pere de famille;' (6) he was 
 
 .•W8059
 
 38 THE IRISH LAND LAWS. 
 
 not bound to give them up in as good condition 
 as he received them. 
 
 The tenant was entitled, as any other owner 
 of an interest in land, to sell or sublet his farm 
 to whom and upon what terms he pleased. It is 
 frequently assumed that, in the case of a tenancy 
 from year to year, the tenant had no such right, 
 and the mistake may have arisen in the following 
 manner. The tenant could convey to a purchaser 
 no more than he himself had, and, upon the sale 
 of a tenancy from year to year, the landlord, if 
 he had any objection to the purchaser, could de- 
 termine the yearly tenancy by a notice to quit, 
 and owners of land are, as a matter of fact, un- 
 willing to have a new tenant forced upon them 
 of whose character and solvency they are igno- 
 rant; the purchaser, therefore, as a matter of 
 precaution, required an assurance from the land- 
 lord that he was willing to accept him as a sub- 
 stitute for the former tenant ; but whether the 
 landlord assented or not to the sale, all the in- 
 terest of the previous tenant passed by the sale 
 to the purchaser. 
 
 The tenant who held land for a period of 
 uncertain duration had a right to the annual 
 industrial crops upon the lands at the deter- 
 mination of his letting, and to return into the 
 farm for the purpose of harvesting and removing 
 them; this was technically termed his right of 
 emblements. 
 
 As to the recovery of the rent, and the en-
 
 LANDLORD AND TENANT LAW PRIOR TO 1860. 39 
 
 forcement of covenants or agreements entered 
 into by the tenant, the payment and fulfilment 
 of these was not a condition precedent upon 
 which the tenant was entitled to retain the pos- 
 session ; and his interest was not forfeited by the 
 non-payment or non-fulfilment of them.^ 
 
 The law did not regard the relation of land- 
 lord and tenant as a quasi-partnership (societe), 
 nor did it treat the rent as the landlord's share 
 in the produce of the farm. Hence the rent was 
 not a charge upon the tenant's interest by way 
 of hypothec ; nor were the crops considered as 
 pledged for its payment, nor was the landlord's 
 rent subject to deductions on account of the loss 
 of the crop. 
 
 The modes of enforcing the payment of the 
 rent were three : — 
 
 (I.) A personal action might be brought 
 against the tenant either founded upon his ex- 
 press contract, or upon the implied contract 
 arising from his occupation. 
 
 (II.) For a long period the English law re- 
 garded the proceeding of distress as the ordinary 
 mode of compelling the payment of rent. A 
 distress was originally used to enforce the per- 
 formance of feudal obligations, not the payment 
 
 ' The diflEerence between the English and French law 
 upon this subject arose from the fact that the latter referred 
 the possession of the tenant solely to the contract of hiring ; 
 the former considered the tenant to have acquired an actual 
 estate in the lands for the term specified in an antecedent 
 agreement.
 
 40 THE IRISH LAND LAWS. 
 
 of money, and the rights of the lord had been 
 restricted by the statute of Marlbridge to the 
 bare power of seizing the goods on the premises 
 and retaining them as a pledge until the services 
 were performed. But when the process of dis- 
 tress was applied to the recovery of a money rent, 
 the right of the landlord was extended to that of 
 selling the goods seized, and retaining the arrears 
 of rent out of the produce. Proceedings by dis- 
 tress required the performance of so many tech- 
 nical forms, introduced for the benefit of the 
 tenant, and the failure to comply with these 
 legal technicalities, by rendering the whole pro- 
 ceeding illegal ab initio^ exposed the landlord to 
 such heavy damages that a proceeding by dis- 
 tress for the recovery of rent was always most 
 reluctantly adopted.' 
 
 ' The discredit into which the process of recovering rent 
 by distress gradually fell is illustrated by the General Orders 
 of the Irish Court of Chancery for the management of estates 
 by the Receivers. By the 2nd G. O. of the 5th April, 1847, 
 a Receiver was empowered, when the rent had remained 
 unpaid for a certain time, to proceed by distress for the re- 
 covery of such rent without any Rule or Order for that pur- 
 pose, tuch remedy to be deemed a proper one in the Jint in- 
 ttance ; but he could not proceed either in the Superior or 
 County Court for the recovery of the rent without the 
 direction of the Master. The 22nd G. O. of the 19th of 
 May, 1867, amended the former by striking out therefrom the 
 provision that the remedy by distress should be deemed the 
 proper one to be taken by the Receiver for the recovery of 
 rent in arrear, in the first instance, and directing that civil 
 bill proceedings, where suitable, should be substituted in 
 lieu thereof.
 
 LANDLORD AND TENANT LAW PRIOR TO 1860. 41 
 
 (III.) The action of ejectment, an action to 
 recover the possession of land, could originally 
 only be brought for non-payment of rent, when 
 the letting was by a lease which contained a 
 clause allowing the landlord to re-enter and 
 avoid the lease upon the non-fulfilment by the 
 tenant of his covenant to pay the rent. The 
 right to recover in the action rested, not upon 
 the non-payment of the rent, but upon the deter- 
 mination of the letting. Previous to 1851 the 
 right to bring an ejectment when one whole 
 year's rent had been in arrear was extended to all 
 cases of lettings under a written agreement, 
 whether it did or did not contain a clause of re- 
 entry, but was not applicable to the most 
 numerous case of implied tenancies from year to 
 year not created by a written agreement, but 
 arising from the fact of the payment of rent.' 
 The landlord in the latter case could not eject 
 the tenant for non-payment of rent, but was 
 forced to serve a notice to quit determining the 
 tenancy; hence, if A on January 1, 1840, let 
 land to B as a yearly tenant without writing, and 
 B failed to pay the second and third half-yearly 
 gales, which fell due on December 31, 1840, and 
 June 30, 1841, A would have had to serve him 
 with a notice to quit for January 1, 1843, and 
 might thus have lost two and one half-years' rent 
 before he could recover possession. To remedy 
 
 1 5 Geo. II., ch. 4, s. 1 (Irish) ; and 25 Geo. 11., ch. 13, s. 
 2 (Irish.)
 
 42 THE IRISH LAND LAWS. 
 
 this evil the right to bring an ejectment in the 
 Civil Bill Courts upon non-payment of one year's 
 rent was given to landlords, in the ease of hold- 
 ings at a rent of less than 501. per annum not 
 held under a written agreement, by the 14 and 
 15 Vict. c. 57, s. 73, but the tenancies of a 
 higher amount remained subject to the old rule. 
 
 The Courts of Equity regarded the proviso for 
 re-entry and forfeiture as merely a mode of se- 
 curing the payment of the rent, and if, there- 
 fore, the tenant within a reasonable time (limited 
 by statute to six months) paid the arrears of rent 
 he could file a bill in Chancery to redeem his 
 interest, and upon the settlement of an account 
 between him and the landlord, in which the 
 latter was charged with so much as he could in 
 the interval without wilful default have made 
 out of the premises, the forfeited lease was re- 
 instated and the tenant put back into possession. 
 This process of redemption was carried out in the 
 manner most inconvenient to both parties; the 
 tenant was put out of possession, and thus his 
 means of paying the rent seriously diminished, 
 and the landlord was put into possession of lands 
 £»f which for six months he could make no pro- 
 fitable use ; and as if the more to embarrass the 
 landlord the mortgagees of the tenant had, it is 
 difficult to see why, three further months during 
 which they might themselves redeem. 
 
 From the state of the real property law the 
 person who ordinarily received the rent, and acted
 
 LANDLORD AND TENANT LAW PRIOR TO 1860. 43 
 
 as the owner of the estate, might not be legally 
 entitled to take any proceedings against the 
 tenant; the right to the rent, as it was tech- 
 nically described, ran with the reversion — that is, 
 in the theory of law, the relation of landlord and 
 tenant did not arise unless the landlord was, as a 
 matter of fact, entitled at law to the possession of 
 the premises demised upon the natural deter- 
 mination of the lease. Thus, if A, entitled to the 
 land for twenty years from January 1, 1840, let 
 these lands to B for ten years from January 1, 
 1850, the relation of landlord and tenant did not 
 arise, but it would have arisen if he had let 
 them for ten years from December 31, 1849. 
 To the person who, claiming through the original 
 landlord, was entitled to the possession of the 
 lands on the determination of the lease the 
 rights of the landlord as against the tenant 
 passed. In most cases the person entitled to 
 the ' reversion ' was a mortgagee, or trustee, or 
 some other who had no practical connection with 
 the business in hand or knowledge of the estate. 
 Hence most actions against tenants had to be 
 brought in the names of those who were stran- 
 gers to the estates, and were naturally unwilling 
 to have anything to say to the matter. As the 
 interest of the tenant frequently was dealt with 
 in the same manner as that of the landlord, it 
 was often the case that when the technical land- 
 lord had been discovered it was equally difficult 
 to discover the technical tenant. The legal
 
 44 THE IRISH LAND LAWS. 
 
 subtleties formerly in use to escape the diffi- 
 culties created by equally absurd anterior legal 
 subtleties are now happily forgotten ; but it can 
 be easily understood that the probability that in 
 a proceeding against a tenant the action would 
 be defeated by some wholly immaterial and 
 purely technical point rendered those in receipt 
 of the rents timorous of instituting actions, and 
 afforded to the tenant a questionable protection. 
 Every improvement in the real property law has 
 been injurious to the tenants ; to a man in 
 possession, a defendant in ejection, no system of 
 law is so advantageous as one hopelessly en- 
 tangled and incomprehensible. 
 
 Upon the determination of the letting, the 
 tenant gave up the land as it stood, and the 
 landlord took it up as it stood. If the tenant 
 lost his improvements, the landlord might have 
 thrown back on his hands a farm almost worthless 
 from wasteful cultivation ; the inequities were in 
 theory balanced, but in practice the rule told 
 against the tenant.* The wilful running out of 
 the land so injurious to the owner frequently 
 occurred in the case of tenants for fixed terms, 
 but did not so often arise in the case of yearly 
 
 ' This passage is folly justified by the expressions of 
 Baron Parke in ' Button v. Warren ' (1 Mee & Welsh, 466) : 
 * The Common Law, indeed, does so little to prescribe the 
 relative duties of landlord and tenant, since it leaves the 
 latter at liberty to purtue any course of managevie at he pleases, 
 provided that he is net guilty of leaste, that,' Sec.
 
 LANDLORD AND TENANT LAW PRIOR TO 1860. 45 
 
 tenants who expected to hold on their farms. In 
 the latter case it was always in the power of the 
 landlord, if a tenant improved his farm, to serve 
 a notice to quit, and having got rid of his tenant 
 and appropriated his improvements to relet to 
 another at a higher rate. Hence the notice to 
 quit was frequently used as an unjust means of 
 raising the rent, inasmuch as the tenant was 
 thus compelled either to abandon his improve- 
 ments to the landlord, or to consent to pay a rent 
 increased by reason of the increased value which 
 he himself had given to the farm — such a pro- 
 ceeding on the part of the landlord is what 
 Pothier condemns as contrary to the rule of 
 equity, * qui ne permet pas de s'enrichir aux de- 
 pens d'autrui.' 
 
 The principle of law laid down by Gains, * id 
 quod in solo nostro ab aliquo sedificatum est, 
 quamvis ille suo nomine aedificaverit, jure natu- 
 rali nostrum fit, quia superficies solo cedit ' (L. 
 II. s. 73), was adopted by the English law, but 
 without the equitable exception annexed to the 
 rule by the Roman Code. The English rule as to 
 fixtures had not its origin in any feudal custom, 
 although it, like every objectionable portion of 
 the landlord and tenant law, is popularly referred 
 to the ' feudal system.' Like many other prin- 
 ciples of the Roman it was, without any legisla- 
 tive authority, considered as portion of the 
 English law upon the authority of Bracton, who 
 copied into his work De Legibus, &c., Angliae,
 
 46 THE IRISH LAND LAWS. 
 
 passages of the Institutes and Digest without 
 acknowledgment. It was the incompleteness of 
 Bracton's statement of the rule of the Roman 
 Law (Brae. 1. 2, c. 1, s. 4) which rendered the 
 English law so rigid and inequitable. Hence 
 anything annexed by the tenant to the premises 
 became a fixture and part of the substance of the 
 freehold ; he had therefore no greater interest in 
 it than he had in the premises themselves, and 
 would be guilty of waste if he removed it. The 
 strictness of the law had been relaxed in favour 
 of trade and manufacture, and also as to articles 
 of ornament and personal convenience ; but the 
 question of fixtures remained a fertile subject of 
 litigation, and the law reports contained learned 
 judgments upon the rights of the landlord and 
 tenant as to gas pipes, grates, water-butts, pumps, 
 bells, pier-glasses, hothouses, &c.' 
 
 ' The distinctions drawn by the French Law as between 
 ' biens immeubles ' and ' biens meubles ' are just as refined. 
 No rule of English law as to ' constructive fixtures ' exceeds 
 the following : ' Quant aux statues, elles sont immeubles 
 lorsqu' elles sont plac^es dans une niche pratiqv^e expres 
 pour let recevoir, encore qu' elles puissent etre enlev^es sans 
 fracture ou deterioration.' Code Civil, s. 525.
 
 47 
 
 CHAPTER VII. 
 
 THE LANDLORD AND TENANT ACT 1860. 
 
 The law of landlord and tenant both in Eng- 
 land and Ireland being in this most chaotic and 
 illogical condition, an attempt was made in Ire- 
 land in 1860 to remedy its most glaring defects 
 and to introduce some intelligible rules suitable 
 to the existing state of society. It is easy to per- 
 ceive why this reform was attempted in Ireland, 
 but has not yet been introduced into England. 
 
 Political economists universally asserted that 
 the wretched condition of Ireland arose from the 
 embarrassed circumstances and want of business 
 habits of the Irish landowners. ' Substitute ' they 
 said, ' for the present landlords, practical men of 
 business who will invest their capital in the pur- 
 chase of Irish estates, and deal with the property 
 which they so acquire in a thoroughly commercial 
 spirit ; the true interests of the landlords and 
 tenants are identical, and for his own benefit an 
 intelligent landlord must improve the condition 
 of his tenantry.' Thirty years since the political 
 economists were the prophets of the period, and 
 it was the received doctrine that free trade in 
 land and the purchase of land to be dealt with as
 
 48 THE IRISH LAND LAWS. 
 
 a commercial speculation were the panacea for 
 the sufferings of Ireland. The landlords' estates 
 being purchased in the Incumbered Estates' 
 Court as simply and expeditiously as furniture at 
 a sheriffs sale, the mercantile principles had to 
 be applied to the properties purchased by the 
 new capitalist landlords. If capitalists were to 
 invest their money in the purchase of estates, 
 they were entitled to the same j&reedom of dealing 
 with their lands as was applicable to the case of 
 any other commodity. They claimed and were 
 necessarily allowed, to make the best of their in- 
 vestments by selling what they had bought at 
 the full market value. The obvious right, there- 
 fore, of the purchaser was to let his land for the 
 highest rent which a tenant could be induced to 
 offer, because the market value of any article is 
 the highest price which it will fetch at an open 
 competition. 
 
 For the purpose of introducing free trade into 
 the relations of landlord and tenant it was neces- 
 sary to sweep away all lingering tradition of a 
 feudal connection, and to free the parties from 
 the technicalities of an obsolete system of real 
 property. 
 
 The framers of the Act of 1860 attempted to 
 simplify the legal relations of landlord and te- 
 nant ; to consolidate previous statutes ; to place 
 the letting of land upon the simple basis of con- 
 tract; and to modify their rights, in such a 
 manner, and to introduce such new implied agree-
 
 THE LANDLORD AND TENANT ACT 1860. 49 
 
 ments as were suitable to the point of view from 
 which they regarded the legal relation in question. 
 An examination of the important sections of 
 the Act of the 23-24 Vict. ch. 154 shows that 
 it was not drawn in favour of the landlord. The 
 chief provisions of this Act, which regulated the 
 relations of agricultural tenants with their land- 
 lords, were as follow : — 
 
 I. The relation of landlord and tenant was 
 declared to be one founded on contract, express 
 or implied, and not upon tenure (section 3) ; by 
 the section the ancient doctrine of the necessity 
 of a reversion was abolished. 
 
 II. If a tenant under a written agreement 
 after the expiration of his term continued in pos- 
 session for one month after a demand for pos- 
 session by the landlord, such continuance in 
 possession might, at the election of the landlord, 
 be held to create a new tenancy from year to year 
 upon the terms of the previous tenancy (section 5). 
 
 III. That in respect of agreements contained 
 or implied in the contract of letting, every as- 
 signee of a landlord's interest should have the 
 same right as against the tenant and his assignee 
 as the original landlord had, and that every 
 assignee of a tenant should have the same rights 
 as against the landlord as the original tenant 
 (sections 12 and 13). By these sections a vast 
 amount of legal erudition relative to what con- 
 tracts did or did not * run with the land ' was 
 swept away, and the assignees of landlord and 
 
 E
 
 50 THE IRISH LAND LAWS. 
 
 tenant respectively were considered, not as as- 
 signees merely of an estate in the land, but as 
 assignees of the benefit of the original contract. 
 
 IV. An assignee of a tenant's interest cannot 
 free himself from the fulfilment of the agreements 
 contained in the original contract by an assign- 
 ment to a third party without giving notice to the 
 landlord of such assignment, and after the notice 
 continues liable to the payment of the half-yearly 
 gale of rent accruing next after the date of his 
 notice (sections 14 and 15). This was to defeat 
 the common practice of secretly assigning un- 
 profitable leases to paupers. 
 
 V. An assignment by a tenant of his interest 
 with the consent in writing of his landlord re- 
 leases the tenant from future liability under the 
 agreements contained in the original contract 
 (section 16). 
 
 VI. The previous law as to fixtures was re- 
 pealed, and it was enacted that in future ' all 
 personal chattels, engines, machinery, and build- 
 ings accessorial thereto, affixed to the freehold 
 by the tenant at his own expense,' — ' and so at- 
 tached to the freehold that they could be re- 
 moved without substantial injury to the free- 
 hold or the fixture itself, and which should not 
 have been erected in pursuance of any obligation 
 or in violation of any agreement, might be re- 
 moved by the tenant.' This section follows almost 
 the words of the 525th section of the Code Civil, 
 treating of the rules as to accession : ' Le pro-
 
 THE LANDLORD AND TENANT ACT 1850. 51 
 
 prietaire est cense avoir attache a son fonds des 
 effets mobiliers a perpetuelle demeure lorsqu'ils 
 ne peuvent etre detaches sans ^tre fractures et 
 deteriores, ou sans briser ou deteriorer la partie du 
 fonds a laquelle ils sont attaches,' 
 
 VII. Upon a subletting with the written con- 
 sent of the landlord, the subtenant by paying his 
 own rent to the tenant is relieved from any lia- 
 bility for the rent, which was reserved by the 
 original lease ; but the landlord, if the tenant allows 
 his own rent to run in arrear, can require the 
 subtenant to pay him the rent reserved on the 
 subletting in discharge of the rent reserved by 
 the original lease, and any subtenant may pay off 
 the arrears of the head rent and have credit for 
 such payment as against his own rent (sections 
 19, 20, and 21). 
 
 VIII. In any action brought by a person 
 claiming as an assignee of the original landlord, 
 the fact that the plaintifif, or some person through 
 whom he claims, within three years before the 
 action received the rent for one year, is prima 
 facie proof of title (section 24). 
 
 IX. The tenant of premises containing an 
 open mine may work the mine ; any tenant may 
 work open quarries on the lands or cut turf in 
 unreclaimed bog for his own purposes or improve- 
 ment of the farm, but not for sale (sections 27, 
 28, 29). 
 
 X. A tenant at a rack-rent holding for an 
 uncertain period is entitled to hold, in lieu of 
 
 B 2
 
 52 THE IRISH LAND LAWS. 
 
 emblements, the lands after the determination of 
 his tenancy until *the last gale day ofthecm-rent 
 year' (section 34). A tenant at a rent less than the 
 full value retained his common right to emble- 
 ments. 
 
 XI. The destruction of the substantial subject 
 matter of the letting, otherwise than by the de- 
 fault of the tenant, and in the absence of any 
 covenant on the tenant's part to repair, gives to 
 the tenant a right to determine the letting by a 
 surrender (section 40). This section is borrowed 
 from the Civil Law, and repeals the rule of the 
 English Common Law, which, treating the cove- 
 nants in a lease as collateral to the letting of the 
 land, bound the tenant to pay the covenanted 
 rent during the term, notwithstanding the de- 
 struction of the subject matter of the letting. 
 
 XII. In every lease (unless it be otherwise 
 expressly agreed) there is to be implied on the 
 part of the landlord covenants for good title to 
 make the lease and for quiet enjoyment by the 
 tenant without interruption by any person, and 
 on the part of the tenant to pay the rent and to 
 give up quiet possession of the premises in good 
 and substantial repair and condition, on the de- 
 termination of the lease (sections 40 and 41). 
 
 XIII. In case of the surrender to, or resump- 
 tion by, the landlord of any portion of the premises, 
 his rights in respect of the residue of the land 
 shall not be prejudiced (section 44). This section 
 repeals the old rule that in neither of the cases
 
 THE LANDLORD AND TENANT ACT 1860. 53 
 
 mentioned in the section could the landlord re- 
 cover any rent out of the residue ; such a rule 
 was absurd in the case of a surrender ; but under 
 the Civil Law the wrongful resumption by the 
 landlord of any portion of the premises would have 
 suspended his right to recover it. 
 
 XIV. In an action for the recovery of rent, 
 the tenant may set off any debts due to him by 
 the landlord (section 48). 
 
 XV. A landlord cannot recover by distress 
 more than the rent of the last preceding year 
 (section 51). Previous to 1870 the law considered 
 the feudal process of distress as the primary 
 remedy for the recovery of rent, and the action 
 of ejectment as a secondary or substituted pro- 
 ceeding ; thus, in the earlier Acts dealing with 
 ejectments for nonpayment of rent, the right to 
 bring the action was confined to cases in which 
 there was no sufficient distress on the lands. The 
 relation of landlord and tenant being shifted to 
 the basis of contract, the right to distrain could 
 be no longer supported upon its original theory; 
 but if it had been attempted not merely to 
 regulate it but to entirely abolish it, the landlord, 
 not illogically, might have insisted that under a 
 system of contract they were entitled to all the 
 remedies given by the Civil Law for the recovery 
 of rent. 
 
 XVI. As to ejectments for the nonpay- 
 ments of rent, any person substantially and 
 beneficially entitled to the rent may bring an
 
 54 THE IRISH LAND LAWS. 
 
 action of ejectment for nonpayment of rent against 
 any tenant, whether holding under a written or 
 iTnplied agreement, whenever a year's rent is in 
 arrear ; when the year's rent is less than lOOL the 
 proceeding may be taken in the County Court ; it 
 is sufficient to maintain such an action if a tenancy 
 can be shown to exist between- the parties, and 
 all the legal fictions and forms which previously 
 complicated such proceedings are now abolished ; 
 the only necessary defendant to such an action is 
 the person in actual possession of the lands as the 
 tenant or subtenant, and the summons (now the 
 writ) is served upon him as in any personal action ; 
 if no person is in possession, the summons (now 
 the writ) may be posted on the premises or 
 nearest market town ; upon the writ of habere to 
 the sherifiF the amount of the rent in arrear and 
 the costs must be endorsed, and the tenant may 
 pay the sheriflf up to the moment of execution ; 
 at any time within six months after the execution 
 the tenant may pay the amount due for rent and 
 costs into the court in which the action is brought 
 and thereupon apply to be restored to possession 
 (sections 51 to 71). 
 
 Proceeding upon the same assumption as the 
 Civil Law, that the relation of landlord and 
 tenant was merely a species of hiring, the points 
 in which the Act of 1860 differed from the Civil 
 Law are remarkable ; if it did not imply on the 
 part of the landlord that the farm let was a 
 * possession utile,' or make him in any case par-
 
 THE LANDLORD AND TENANT ACT 1860. 55 
 
 ticipate in the loss arising from a failure of the 
 crop, it neither gave him a hypothec to secure 
 his rent, nor a power to re-enter upon the breach 
 of any agreement of the letting, except upon the 
 nonpayment of the rent; while it treated the 
 relation of landlord and tenant as an ordinary 
 contract, it treated this relation as against both 
 parties, as one stridissimi juris, and not to be 
 tempered by the equities so much favoured by 
 the Eoman lawyers. The cause of these diffe- 
 rences was the different views which the Eoman 
 and English lawyers took of the original nature 
 of the contract itself. (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 emptorJ' (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
 
 66 THE IRISH LAND LAWS. 
 
 agreement, expressed or implied ; the latter, con- 
 sidering 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 
 case. 
 
 Notwithstanding the diflferences above re- 
 ferred to, the close resemblance of the Act of 
 1860 to the French Code is most remarkable ; 
 the numerous points of simileirity do not appear 
 to have arisen from the study or conscious adop- 
 tion of the principles of the French system ; the 
 form of the sections would lead rather to the 
 conclusion, that its author was wholly ignorant 
 of the Civil or French Law ; but these rules are 
 the necessary logical consequence of the assump- 
 tion common to both systems that the letting of 
 land is to be treated simply as a contract of 
 hiring.
 
 57 
 
 CHAPTER VIII. 
 
 THE RESULTS OF THE ACT OF 1860. 
 
 The Act of 1860 swept away every trace of the 
 feudal relation between landlord and tenant ; the 
 landlord, certainly, since the passing of this Act, 
 has no more right to claim from his tenants any 
 personal respect or political obedience than the 
 shopkeeper from his customers ; the tenant has 
 no more claim for the assistance and sympathy 
 of the landlord than he has for that of his grocer. 
 They occupy in respect of each other simply the 
 relation of any other merchant and his customers. 
 If free trade in land was to be desired, it was 
 facilitated by this Act; if the simplification of 
 the law was advantageous, this Act largely pro- 
 moted it. Henceforth, the landlord was to differ 
 from the village baker, butcher, grocer, or pub- 
 lican, merely in the nature of the article in which 
 he traded. Feudal duties perish with feudal 
 rights : the owner of land lets it to the tenant, 
 and the tenant hires the land from the landlord ; 
 the transaction does not differ — and it was intended 
 that it should not differ — from the chartering of 
 a ship or the hiring of a street cab : the hirers 
 of land henceforth owe no special respect, and
 
 58 THE IRISH LAND LAWS. 
 
 need show no deference to their landlord : if the 
 tenants pay the rent which they have agreed 
 to pay, and perform their agreements of the let- 
 ting, they are as independent of the landlord as 
 of the village huckster — when they have settled 
 their pass-book ; but, if so, what claim have they 
 longer on their landlord for protection, assistance, 
 or forbearance? Why should he, more than any 
 other, be expected to aid the poor, assist in local 
 charities, give a site for the parish chapel, or be 
 considerate in the collection of his debts ? 
 
 By free trade in land Ireland was to be re- 
 generated, and those who were to take the 
 benefit of the system were bound to accept its 
 drawbacks. 
 
 The objection to the application of a land law 
 founded upon contract to the relations of land- 
 lords and tenants in Ireland lay, not in the in- 
 justice of the law itself nor in any advantage 
 given by it to the landlord as against the tenant 
 (for the system as based on pure contract was 
 strictly just, and the reforms in the law had been 
 made distinctly in favour of the tenant), but in 
 its introduction into a society not adapted for 
 it. As between the landlord and the majority of 
 the tenants, there was not, nor could be, any 
 freedom of contract. The smaller tenants were 
 not possessed of any capital, and lived poorly by 
 their own labour upon their unimproved farms. 
 If deprived of their farms they had no other 
 means of livelihood ; the demand for land so far
 
 THE RESULTS OF THE ACT OF 1860. 59 
 
 exceeded the supply that they had no hopes of 
 establishing themselves elsewhere, and therefore 
 the interest of a tenant in a farm fetched a price 
 absurdly large as compared with the returns to be 
 had from the land. A tenant once turned out of 
 his holding had no means of existence; to him 
 and his family the loss of his tenancy meant 
 starvation and death. When served with a notice 
 to quit the farmer was willing to offer any rent 
 for a new letting of his holding, regardless of his 
 ability to pay it in subsequent years. From the 
 very nature of the tenancy from year to year 
 many tenants naturally regarded their farms as 
 their own property, subject to the payment of the 
 usual rent. Upon farms held under this tenure 
 families had lived for generations ; the land had 
 been in many cases reclaimed and improved by 
 themselves or their fathers ; and when it had not 
 been so they believed that it had ; easy-going and 
 unenterprising they never realised the possibility 
 of a notice to quit, and when it was served upon 
 them it seemed an act of unjust oppression and a 
 sudden destruction. 
 
 The energetic purchaser in the Landed 
 Estates Court generally served, notices to quit upon 
 all the yearly tenants with a view to a ' readjust- 
 ment of the rents,' and having thus increased his 
 income, either congratulated himself upon the 
 large returns upon his investment, or sold to an- 
 other capitalist his estate enhanced in value by a 
 fictitious rental.
 
 60 THE IRISH LAND LAWS. 
 
 It is but just to state that in the vast majority 
 of estates the relations between landlord and 
 tenant continued unchanged, and in many in- 
 stances where rents were increased the increase 
 of the rent was warranted by the increased price 
 of farming produce. 
 
 Most of the ejectments also were not for the 
 purpose of increasing the rent; many were 
 brought with the object of substituting large for 
 small farms ; many were brought for the purpose 
 of stripping the land and improving the holdings 
 of the tenants themselves ; and many were ren- 
 dered necessary by the quarrels of the members 
 of the family of a deceased tenant contending for 
 the succession to the farm. But it must be re- 
 membered, in justice to the tenants, that every 
 notice to quit brought home to the tenant the 
 power of the landlord to evict him ; every use by 
 a landlord of his legal power for the purpose of 
 raising the rent or obtaining a fine from some in- 
 coming tenant was a conclusive proof that this 
 power might be harshly and inequitably used ; 
 even when an estate was justly and humanely 
 managed, the tenants were well aware that their 
 landlord might die, and that upon his death his 
 property might be sold by the Landed Estates 
 Court, in small lots, to country shopkeepers or 
 local capitalists — the most greedy of purchasers 
 and worst of landlords. 
 
 The principle of free trade in land had failed 
 to improve the condition of Ireland ; the statutory
 
 THE RESULTS OF THE ACT OF 1860. 61 
 
 declaration of this doctrine had terrified the 
 tenants into increasing agitation, and it became 
 necessary either not to enforce the new theory of 
 law until the population were so improved as to 
 be capable of appreciating an advanced Code (an 
 event certainly not likely soon to occur), or to in- 
 troduce legislation of an admittedly retrograde 
 character, for the purpose of palliating patent 
 evils and allaying not ill-founded discontent.
 
 62 THE IRISH LAND LAWS. 
 
 CHAPTER IX. 
 
 THE IRISH LAND ACT OF 1870. 
 
 The Landlord and Tenant Act, 1870 (33 and 
 34 Vict. ch. 46), better known as the Irish Land 
 Act, sought, according to those who were respon- 
 sible for it, to accomplish three principal objects : 
 
 1. To obtain for the tenants in Ireland ' secu- 
 rity of tenure.' 2. To encourage the making of 
 improvements throughout the country; and, 3, 
 to create a peasant proprietorship in Ireland. 
 The Act itself is divided into five parts. The 
 first part deals with the occupation of land. The 
 second part deals with its ownership, and en- 
 deavours to facilitate the purchase of their hold- 
 ings by tenants from their landlords. The third 
 part enables the Board of Public Works in Ireland 
 to advance money for the purposes of the Act. 
 The fourth and fifth parts contain some miscel- 
 laneous clauses and definitions in connection with 
 this Act. Reference is here made only to those 
 sections which materially affected the relation of 
 landlords and tenants. 
 
 The Act made no alterations in the tenancies 
 held imder the Ulster Tenant Right Custom ; it 
 merely gave legal sanction to, and enforced, the
 
 THE IRISH LAND ACT OF 1870. 63 
 
 Ulster Custom against the landlords of the estates 
 which were subject to it. The tenants of these 
 estates were secured the benefit of the custom, 
 but not bound to hold under it, for any such 
 tenant could abandon his right under the custom, 
 and claim the rights given to all tenants by the 
 statute. 
 
 What course should be adopted in obtaining 
 for tenants, whose rights were to be regulated 
 by the Act of 1870, ' Security of tenure,' was a 
 matter of the utmost difficulty. It was not 
 possible in 1870 to state openly that free trade 
 in land was the real cause of the renewed agita- 
 tion of the Irish tenantry, or to propose that the 
 rights of those who had invested their capital 
 under a State guarantee in the purchase of lands 
 in the Landed Estates Court should be diminished, 
 without compensation, for the public benefit. 
 
 The law of Great Britain and Ireland had 
 persistently refused to recognise any interest or 
 co-proprietorship in the occupier of the soil apart 
 from a mere permission to cultivate it. The 
 land itself was the absolute property of the land- 
 lord, subject to the existing contracts under which 
 it had been hired out to the tenants. The pur- 
 chaser in the Landed Estates Court had purchased 
 this absolute ownership in the land, subject only 
 to the existing tenancies. By his purchase he 
 was guaranteed the property in, and actual posses- 
 sion of, the land upon the termination of the 
 tenancies in the schedule, and the protection of
 
 64 THE IRISH LAND LAWS. 
 
 the law in the exercise of his legal right of deter- 
 mining the existing yearly tenancies. The right 
 of forcing the yearly tenants to pay the fu! 
 market value of their farms, or of clearing them 
 oflF the land, was notoriously put forward as an 
 inducement to such purchasers. 
 
 The framers of the Act dared not to state 
 openly (and it was constantly denied) that the 
 object of this statute was to give the tenant any 
 estate in the land, or to transfer to him any por- 
 tion of the absolute ownership. The Act, there- 
 fore, apparently gave the tenant no new rights, 
 nor in anywise deprived the landlord of any ; but 
 attempted to effect its object in a circuitous 
 manner by affixing what was essentially a penalty 
 to the exercise of rights which it admitted to be 
 legal. The Act in fact said to the landlords, 
 * Your right to evict your tenants is incontestable, 
 no one could dream of depriving you of what is 
 most certainly your property ; you may, of course, 
 turn out your tenants as you like, but it shall be 
 made so expensive a proceeding that you will 
 think seriously before you attempt it.' This was 
 described as a process by which bad landlords 
 were obliged to act as the good landlords did ; it 
 might be more justly stated to be an enactment 
 by which the amusement of evicting tenants was 
 made a monopoly of the wealthier proprietors. 
 
 Thus the rights given to the tenants as against 
 their landlords are not stated affirmatively in the 
 statute ; the rights of the tenant are, so to say, la-
 
 THE IRISH LAND ACT OF 1870. 65 
 
 tent, and cannot be exercised until the landlord 
 has previously attempted to exercise his legal 
 fight of resuming the possession. Until the 
 landlord ' disturbed ' the tenant, the rights of the 
 latter were precisely the same as they were be- 
 fore the Act ; from the date of the disturbance, 
 the tenant acquired a negative right of refusing 
 to give up the possession without compensation. 
 Under this statute the tenant did not acquire 
 any * estate ' in the land, if the term ' estate ' is 
 used in its technical English meaning; but of 
 the ownership of the land, whether the word be 
 used in its popular or proper meaning, he did ac- 
 quire a share ; for if a man cannot be put out 'of 
 possession by the rightful owner without the 
 payment of a certain sum of money, he is an 
 owner to the extent of the sum requisite to buy 
 him out. 
 
 The Act of 1870 is not intended to regulate 
 the relations and rights of all landlords and 
 tenants, for it does not apply to any holding 
 which is not agricultural or pastoral in its char- 
 acter, and therefore excludes all lettings of houses 
 and of lands which, although more or less tilled 
 or grazed, are taken for residential and not farm- 
 ing purposes (section 71). The Act also excludes 
 from its operation the letting of demesne lands 
 and town parks, holdings by servants or hired 
 labourers, lettings for purposes of temporary 
 grazing, and lettings acknowledged in writing to 
 be made for the purpose of temporary convenience. 
 F
 
 66 THE IRISH LAND LAWS. 
 
 Tenants entitled to the benefit of the Ulster 
 Custom must elect whether they will claim under 
 the custom or the general provisions ; they cannot 
 of course obtain the advantages of both species of 
 tenure. 
 
 The leading provisions of the Act are as fol- 
 lows : — 
 
 It introduces an entirely new rule of law as 
 to what is styled compensation for disturbance. 
 Any tenant of any holding under a tenancy created 
 after the passing of the Act (less than a lease for 
 thirty-one years ') if disturbed in his holding by 
 the act of the landlord, and any tenant from year 
 to year of any holding rated at not more than 
 
 ' The extent to which the right of free contract in land 
 was aflFected by this section is not at first perceived. If A now 
 let by lease to B an agricultural holding in Ireland for the 
 term of thirty years, the 42nd section of the Act of 1860, which 
 is still law, declares that there shall be implied in this lease a 
 covenant on the part of the tenant to give peaceable pos- 
 session of the demised premises on the determination of 
 the lease ; but the Act of 1870 interposes, and forbids the 
 landlord to require of the tenant the fulfilment of this 
 covenant without paying him compensation for so doing. The 
 object of the Act of 1870 was to render it the interest of the 
 landlord to grant leases for thirty-one years by making it ex- 
 pensive for him to get up the land from tenants holding for a 
 shorter term or lesser interest, but the selection of the phrase 
 * compensation for digtvrbanre ' was most imf ortunate. It 
 may be conjectured that it was suggested by the case of 
 tenancies from year to year determined by a notice to quit, 
 but how a tenant for a fixe<l term of years could be described 
 as ' disturbed by his landlord,' upon the regular effluxion of 
 the term for which he had taken the lands, it is difficult to 
 understand.
 
 THE IRISH LAND ACT OF 1870. 67 
 
 100?. per annum, if disturbed by the act of his 
 immediate landlord, is entitled to such compen- 
 sation for the loss which the Court shall find to 
 be sustained by him by reason of quitting his 
 holding as the Court shall think fit. 
 
 The maximum of the compensation is fixed as 
 follows : — 
 
 a. (1) If the tenancy be valued on the Go- 
 
 vernment valuation at lOl., or under, 
 per annum, seven years' rent. 
 
 (2) If valued at or under 30Z. per annum, 
 five years' rent. 
 
 (3) If valued at or under 40L per annum, 
 four years' rent. 
 
 (4) If valued at or under 501. per annum, 
 three years' rent. 
 
 (5) If valued at or under lOOl. per annum, 
 two years' rent. 
 
 (6) If valued above 100?. per annum, one 
 year's rent. 
 
 b. The compensation is in no case to exceed 
 
 2501. 
 €. No tenant of a holding valued above 10?. 
 per annum, and claiming more than four 
 years' rent, and no tenant of a holding 
 valued at less than 10?. per annum, and 
 claiming more than five years' rent, shall 
 be entitled to an additional claim for im- 
 provements other than permanent build- 
 ings and reclamation of waste land. 
 ^ F 2
 
 68 THE IRISH LAND LAWS, 
 
 Out of such compensation a deduction is to 
 
 be made for — (1) arrears of rent; (2) damages 
 
 for the deterioration of the holding arising from 
 
 the non-observance of any expressed or implied 
 
 ' covenants or agreements. 
 
 Any tenant who sublets or divides his holding 
 without written permission, or who, in despite of 
 a written prohibition, lets any part in conacre, is 
 disentitled to compensation for disturbance. 
 
 A tenant holding under a lease for not less 
 than thirty-one years is not entitled to compen- 
 sation for disturbance. 
 
 The scale of compensation for disturbance 
 adopted in this Act is not based upon the value 
 of the tenant's interest in the land ; it is quite 
 inconsistent with such a supposition that a maxi- 
 mum amount of compensation should be fixed, or 
 that the tenant of a holding rated at ten pounds 
 should receive seven times as many years' pur- 
 chase as the tenant of a holding rated over a 
 hundred. 
 
 It must be further observed that, inasmuch 
 as the maximum of the compensation in each 
 case is calculated upon the basis, not of the 
 valuation, but of the rent, the amount of com- 
 pensation varies in the inverse ratio of the value 
 of the interest, which has been lost by the tenant. 
 The higher the rent reserved upon a lease, the 
 less will it fetch at an auction ; and on the other 
 hand its value would be augmented if the rent 
 were reduced. If A be tenant from year to year
 
 THE IKISH LAND ACT OF 1870. 69 
 
 of a farm valued at lOl., and pays a rent of 151. 
 per annum, and B holds a farm of equal rating 
 but pays only 51. per annum rent, it is manifest 
 that B's interest in his holding is much more 
 valuable than that of A. ; under this section, how- 
 ever, A would be entitled to the sum of 1051. as 
 compensation for disturbance, but B only to 351. 
 
 The absurdity of compensating a tenant in 
 the direct, and not in the inverse ratio of his 
 rent is not peculiar to this Act, but occurs in 
 other well-known schemes devised for the benefit 
 of the Irish tenantry. 
 
 It may be asked if the compensation has no 
 connection with the money-value of the tenant's 
 interest, for what is the compensation given? 
 Apparently for the inconvenience caused to the 
 tenant by breaking up his home and seeking for 
 another farm. But by what standard is the 
 damage for such personal inconvenience to be 
 measured ? The actual inconvenience and loss 
 must depend upon many circumstances connected 
 with the tenant's family and mode of life, the 
 number, age, and health of his family, the exist- 
 ence of some other business or employment of 
 the tenant unconnected with his holding, the- 
 probability of his obtaining a similar farm in the 
 neighbourhood — but it does seem very illogical 
 that the amount of compensation, to be paid by 
 the disturbing landlord, should depend upon the 
 number of the family and mode of life of the dis- 
 turbed tenant. Left thus without any clue as to
 
 70 THE IRISH LAND LAWS. 
 
 the principles upon which the amount of com-' 
 pensation should be assessed, the County Court 
 Judges have taken the maximum fixed by the 
 Act as the amount to which any tenant is priTna 
 fade entitled, leaving it to the landlord to reduce 
 it by bringing forward proof of unreasonable con- 
 duct on the part of the tenant. The unlimited 
 and indefinite jurisdiction given to the County 
 Court Judges paralysed their action, and they 
 naturally evaded the performance of an impossible 
 duty by the establishment of an absurd and in- 
 flexible rule, which gave the maximum of com- 
 pensation alike to the cottier whose household 
 was broken up and his livelihood imperilled, and 
 to the grazier who had taken a grazing-farm with- 
 out house or homestead upon it. 
 
 The rule which fixes the class of a holding 
 by reference to its rating, and the amount of 
 compensation by reference to the rent, renders 
 it dangerous for a landlord to improve lands in 
 his hands with the view of letting them subse- 
 quently to tenants. The mode in which this 
 occurs may be more easily understood by stating 
 the facts of an existing case : P. R is pos- 
 sessed of a residence and demesne, adjoining to 
 which, at the date of the Poor Law valuation, 
 was an extensive and unprofitable marsh ; this 
 tract was, and remains, rated for Poor Law and 
 
 fiscal purposes at 6d. per acre ; P. R has 
 
 lately drained and improved this land, and ren- 
 dered it so valuable that he is oflfered by tenants
 
 THE IRISH LAND ACT OF 1870. tl 
 
 1?. 165. Od. per acre for portions of it, but the 
 state of the law and the merest prudence must 
 prevent him letting it for a less term than 31 
 years, and the position of the land in connection 
 with his demesne naturally renders him imwilling 
 to do so. If he let 100 acres of this land to a 
 tenant from year to year, the legal condition of 
 affairs would be as follows : the 100 acres being 
 valued at only Qd. per acre, the rated value of 
 the entire holding would be 2l. 10s. Od., and the 
 holding therefore would fall within the first class, 
 and the tenant if disturbed be entitled to seven 
 years' rent as compensation ; in consequence of 
 the landlord's improvements in this case the rent 
 to be paid by the tenant would be 1801., and 
 therefore the amount to be paid to the tenant' 
 if disturbed would be 1260?., and any agreement 
 between the landlord and tenant to avoid this 
 result would be absolutely void at law. In this 
 case, if the owner were foolish enough to let the 
 lands, his improvements would be clearly confis- 
 cated for the benefit of the tenant, and, inas- 
 much as land, as distinguished from buildings, 
 cannot be revalued, under the Irish Valuation 
 Act, the difficulty thus created cannot be removed 
 by re-valuation. 
 
 A landlord rarely disturbed a farmer who paid 
 his rent, unless there were some other tenant 
 ready to take the farm at an increased rent, and 
 the unpleasantness attending an eviction, if no 
 better motive, rendered landlords unwilling to
 
 72 THE IRISH LAND LAWS. 
 
 enter into such transactions unless this increase 
 was very considerable. The scale of compensation 
 for disturbance unfortunately rendered the land- 
 lords willing to accede to the application of any 
 tenant who desired to obtain his neighbour's 
 farm and offered an indemnity against the com- 
 pensation and costs. The following imaginary 
 case may explain why the Act produced this un- 
 expected result. If a landlord have four tenants, 
 A, B, C, and D (of whom A, B, and C hold farms 
 valued at lOZ. each, and subject respectively to 
 121. rent, and D holds a farm valued at 711. at a 
 rent of 90l.\ and himself disturb these four 
 tenants, he must pay the following compensation 
 —841. to each of A, B, and C, and 1801. to D., 
 in all 432Z. D being a wealthy man proposes to 
 the landlord that he will pay the compensation 
 and costs incident to the disturbance of A B and C, 
 if their holdings are re-let to him and thrown 
 into his farm; in such a transaction, D would 
 probably offer an increase of rent, but even with- 
 out this additional inducement it is the landlord's 
 interest to accept the offer, for A, B, and C, 
 having been ejected, their holdings are thrown 
 into D's farm, who thereupon holds a farm valued 
 at lOlZ. per annum, and subject to the yearly 
 rent of 126?., and the landlord can, if he subse- 
 quently desire it, consequently obtain possession 
 of the whole at the moderate compensation to D 
 of 1262. 
 
 The compensation for disturbance being dam-
 
 THE IRISH LAND ACT OF 1870. 73 
 
 ages payable by the landlord, who, for his own 
 purposes, puts an end to the tenancy (?), if the' 
 act of the landlord be the consequence of the ten- 
 ant's own breach of the terms of his agreement, 
 it cannot be considered as disturbance of the 
 tenant's interest. A tenant, therefore, ejected 
 for nonpajTnent of rent, or for the breach of a 
 ■covenant against assignment, or subletting, or 
 on bankruptcy or insolvency, is treated as if he 
 himself were the cause of the action of the land- 
 lord, and is placed in the same position as if he 
 had himself voluntarily surrendered his holding ; | 
 that is, he is entitled to compensation for im- 
 provements, but not for disturbance. 
 
 It was essential to the working of the scheme 
 embodied in the Act that a tenant from year to 
 year, evicted for nonpayment of rent or breach of 
 covenant should not be entitled to compensation 
 for disturbance ; if it made no difference in the 
 tenant's right to compensation for disturbance, 
 whether he were evicted by an ejectment founded 
 upon a notice to quit or for nonpa3Tnent of rent, 
 it must follow that the nonpayment of rent was 
 not unreasonable conduct on the part of the ten- 
 ant, in respect of which the Judge should declare 
 the tenant not entitled to the full compensation 
 for disturbance ; if the law were so, it would be 
 possible for a landlord to be compelled to make 
 considerable payments to his tenants, and yet 
 never himself to receive any rent from them ; 
 ■e.g., if A lets to B, as tenant from year to year.
 
 74 THE IRISH LAND LAWS. 
 
 a farm valued at 9Z. per annum, and subject to 
 a rent of 12L per annum, and B never pays any 
 rent to A, who, after the expiration of the first 
 year of the tenancy, brings his ejectment for non- 
 payment of rent against B, B would be entitled 
 to 84il. for disturbance, against which A could set 
 oflf 121. for one year's rent, and thus B, having 
 enjoyed the farm gratis for one year, would yet 
 receive 72L as consideration for his departure. 
 
 To the rule that an ejectment for nonpayment 
 of rent does not constitute a disturbance, there 
 are introduced two remarkable exceptions: (1) If 
 in the case of a tenancy existing at the passing of 
 the Act more than three years of rent have been 
 allowed by the landlord to fall into arrear ; and 
 (2) in the case of tenancies not exceeding 151. 
 if the Court should be of opinion that the rent i» 
 exorbitant (section 9).^ 
 
 ' The logical process upon which this enactment is based 
 would seem to be as follows : A lets land to B as tenant from 
 year to year at the rent of 121. per annum. If A serves a 
 notice to quit and brings an ejectment on the title, he disturbs 
 B. If B does not pay the rent, and A brings an ejectment for 
 nonpayment of rent, B has caused A to disturb him. If A 
 has induced B to agree to pay a rent, which in fact he can 
 not, having reference to the value of the lands, A has caused 
 B to be unable to pay the rent, the nonpayment of which is 
 the grounds for A bringing his ejectment. But if B induces 
 A to put him into possession of the lands by voluntarily offer- 
 ing too high a rent, is not B himself the ultimate cause of 
 the disturbance 7 Tlie framer had in his mind the case of a 
 poor tenant whose rent ha^l been forced up by the landlord,. 
 not that of a reckless competitor for the possession of lands, 
 who of his own accord offered to the landlord what was in 
 fact an exorbitant rent.
 
 THE IRISH LAND ACT OF 1870. 75 
 
 A landlord cannot be required to accept an 
 assignee of a tenant if such assignee be of ob- 
 jectionable character, or if he be forced upon 
 the landlord under unreasonable circumstances ; 
 therefore a landlord is not considered guilty of 
 disturbance if he eject — (1) the assignee of a 
 tenant who is himself liable to ejectment for non- 
 payment of rent; (2) or whom he has not con- 
 sented to accept as his tenant, when it is the 
 custom of his estate to ask such consent ; or (3) 
 to whom personally, in the opinion of the Court,. 
 he had reasonable cause of objection (section 13). 
 
 Subject to the maximum fixed, the amount 
 of compensation for disturbance is left to the 
 County Court Judge, who has the fullest dis- 
 cretion to take all the surrounding circumstances 
 into consideration and to regard the conduct of 
 the tenant himself. In certain cases of wanton 
 and unreasonable acts by the tenant, the Act de- 
 prives him of all right of compensation (section 
 14), and the principle laid down in this section 
 is subsequently made applicable in fixing the 
 amount of compensation to be given (section 18). 
 As a general rule the courts allow the tenant the 
 maximum fixed by the Act, unless there be reason- 
 able cause to reduce this amount. 
 
 The Act next proceeds to deal with the ques- 
 tion of compensation for 'improvements,' which 
 are defined to mean works which, being executed, 
 add to the letting value of the holding, and are 
 suitable thereto, the benefit of which is unex-r
 
 76 THE IRISH LAND LAWS. 
 
 hausted at the time of the tenant's quitting the 
 holding.* 
 
 The rules as to such claims for compensation 
 are as follows: — 
 
 Any tenant on quitting his holding may 
 claim compensation in respect of all improve- 
 ments on his holding, made by himself or his 
 predecessors in title, subject to the following 
 exceptions: — 
 
 1. Improvements made twenty years before 
 the claim, other than permanent build- 
 ings, and the reclamation of waste land. 
 
 2. Improvements prohibited by the landlord, 
 in writing, as diminishing the general 
 value of his property, and considered by 
 
 the Court to be of such a nature. 
 
 3. Improvements executed in pursuance of 
 
 a contract. 
 
 4. Improvements made in contravention of 
 
 a contract in writing. 
 
 5. Improvements made which the landlord 
 
 had undertaken to make. 
 
 6. Improvements compensation for which is 
 
 expressly excluded by the terms of a lease 
 made before the Act. 
 
 7. A tenant under a lease for thirty-one 
 
 ' This definition, as restricted by the rules, is almost the 
 «ame as the sentence in the Digest, • In conducto fundo, si 
 conductor sufi operfi aliquid necessario vel utiliter auxerit, vel 
 sedificaverit, vel instituerit, cum id non convenisset ad 
 recipienda quae impendit,' &c. D., 1. 19, 2, 65, 1. 
 
 ^
 
 THE IRISH LAND ACT OF 1870. 17 
 
 years certain, or a lease which has in 
 fact subsisted for thirty-one years, can 
 claim compensation only for perma- 
 nent buildings and the reclamation of 
 waste land. 
 
 8. A tenant is not entitled to compensation 
 
 for improvements if his landlord has 
 given him permission to dispose of his 
 claim for improvements to the incoming 
 tenant, upon reasonable terms, and he 
 has refused or neglected to do so. 
 
 9. In calculating the amount of compensation 
 
 to be made for improvements, the time 
 during which the tenant himself has had 
 the benefit of it is to be taken into 
 account. 
 Any tenant whose holdings, or aggregate hold- 
 ings, in Ireland are valued under the Grovernment 
 valuation at not less than 501. per annum, may 
 contract himself out of the provisions of the Act 
 as to compensation for disturbance or improve- 
 ments ; in the case of tenants whose holdings are 
 of a less value, such a contract is void (sections 
 4 & 12). 
 
 The tenant can hold possession of his farm 
 until the amount of compensation has been paid 
 by the landlord. 
 
 The tenant during the currency of the letting 
 is enabled to preserve the evidence of the fact 
 that improvements have been made, by filing a 
 schedule of the improvements so made in the
 
 78 THE IRISH LAND LAWS. 
 
 Landed Estates Court, according to the course 
 of practice prescribed by the Judges' rules on the 
 subject. 
 
 To prevent the objects of the Act being 
 defeated by the creation of tenancies at will, &c., 
 it is provided that a letting of land for a tenancy 
 at will, or any tenancy less than a tenancy from 
 year to year, creates, notwithstanding the terms 
 of the agreement, a tenancy from year to year 
 (section 69).' 
 
 The provisions of the Act as to disturbance 
 being framed upon the assumption that the land- 
 lord by some act of his terminates the holding of 
 his own tenant, it is clear that the case of sub- 
 tenants was overlooked by the drafter of the 
 sections 3 and 4. If lands were let in 1775 to a 
 tenant for the term of 100 years, and the; tenant 
 or his representatives sublet the lands to nu- 
 merous small yearly tenants at an increased rent, 
 and under these circumstances the term of 100 
 years determines in 1875, what are the rights of 
 the subtenants ? The representative of the 
 original lessor is entitled to the possession of the 
 lands demised upon the termination of the lease ; 
 he certainly cannot take up the lands with the 
 tenants upon it, for if by any act he created an 
 implied tenancy between himself and the sub 
 
 • The result of this section is that if A lets land to B for 
 six months, from the Ist of January 1880, he cannot recover 
 the possession until the 1st of July 1881, and will then 
 have to pay to B compensation for ' disturbing ' him.
 
 THE IRISH LAND ACT OF 1870. 79 
 
 tenants, he could not remove them without the 
 payment of compensation for disturbance. To 
 clear the land he is forced by the provisions of the 
 Act itself. Against whom can the subtenants 
 when ejected claim compensation ? Certainly not 
 against the head landlord, who never was their 
 immediate landlord nor let them the lands, and 
 who is clearly entitled, as against his tenant and 
 all claiming under him, to get back his lands in 
 the state in which he let them; nor against the 
 middleman, who is himself disturbed. The sub- 
 tenant's interest in the lands cannot last longer 
 than that of his immediate landlord, and all the 
 subtenancies must fall with the middle interest. 
 Evidently to remedy this oversight the 20th section 
 was introduced into a portion of the Act quite 
 .foreign to its subject. The result of this section 
 may be stated thus : The tenant whose interest 
 has determined for the purpose of the Act is the 
 middleman, and he may be entitled to some com- 
 pensation for disturbance or otherwise as against 
 the head landlord." -What the landlord is boimd to 
 pay is determined by the position of his immediate 
 tenant; this is all the money available for the 
 compensation of the occupying tenants, and this 
 amount being secured for the benefit of the sub- 
 tenants, the Court directs the payment thereof by 
 such person and to one or more of the parties in- 
 terested and in such manner as it thinks just. The 
 practical working of this section is as follows : — 
 If A let 99 acres, valued at 99L per annum, to
 
 80 THE IRISH LAND LAWS. 
 
 eleven tenants from year to year in equal propor- 
 tions at the rent of 121. per annum each, he must 
 pay them 84?. each (924i. among all) for the 
 purpose of regaining possession of his land ; on 
 the other hand if A let 101 acres valued at 101?. 
 per annum to B as tenant from year to year, at 
 the annual rent of 132?., being the same as he 
 received in the former case, and B makes eleven 
 lettings thereout similar to the former, and A 
 serves notice to quit, the entire sum divisible 
 among B and all his under-tenants is only the sum 
 of 132?.; the loss by disturbance to the under- 
 tenants is the same in one case as the other, but 
 the compensation in the former is seven times 
 that in the latter. 
 
 The Act further attempted to benefit the ten- 
 ants by giving to every tenant for a term certain, 
 as well as for an uncertain period, the right to 
 remove his away-going crops, or the value thereof 
 (section 8), and it also threw one-half of the county 
 cess upon the landlord (section 65). What justifi- 
 cation there was for this rule in the case of exist- 
 ing contracts it is not easy to perceive, but as to 
 future contracts it could merely produce an alte- 
 ration in the rent or a special covenant. As it 
 was the object of the Act to compel landlords to 
 grant agricultural leases for terms of at least 
 thirty-one years, it was necessary also to em- 
 power tenants for life, &c., to make leases of 
 this doration, so as to bind thereby the persons 
 entitled in remainder. Limited owners (as de-
 
 THE IRISH LAND ACT OF 1870. 81 
 
 fined by the 28th section) were therefore enabled 
 by the 28th section to grant such leases for terms 
 not exceeding thirty-five years, subject, of course, 
 to the usual conditions annexed in marriage settle- 
 ments to the exercise of a leasing power. From 
 no cause had improving tenants suffered more se- 
 verely than from leases granted by limited owners 
 being set aside as being outside the leasing power. 
 Harsh as the decisions of the Courts in many such 
 cases may seem, the ordinary experience of life 
 teaches that if leases, &c., made by a tenant for 
 life in excess or in violation of his power were not 
 at once set aside, there would be not much left 
 for the remainder man to succeed to, and that 
 those whose sufferings are the most descanted 
 upon are often actively, more often negligently, 
 themselves parties to the fraud committed. To 
 remedy this evil, a lease executed under the 
 leasing power contained in the 28th section may 
 be brought by either the limited owner or the 
 tenant before the County Court Judge, who in- 
 quires into the transaction, and whose confirma- 
 tion thereof, in the manner subsequently pre- 
 scribed by the Judges' rules, is conclusive evidence 
 of the lease being within the powers given by the 
 Act. 
 
 It was attempted by the clauses of the Act 
 32-41, commonly known as the Bright Clauses, 
 to carry out the third object which the framers 
 of the Act had in view — the creation of a peasant 
 proprietary in Ireland. 
 
 G
 
 82 THE IRISH LAND LAWS. 
 
 The scheme embodied in these clauses was 
 that a landlord (whether an absolute owner, ten- 
 ant for life, or limited owner, as defined by the 
 Act) might come to an agreement with a tenant 
 for the sale to such tenant of the fee simple of the 
 holding of the tenant ; that an application should 
 be made on behalf of the contracting parties to 
 the Landed Estates Court to approve of and carry 
 out the sale by a Landed Estates Court convey- 
 ance to the tenant; that the purchase money 
 should be lodged in court, and represent for 
 all purposes the estate conveyed to the tenants ; 
 and the holding, free from incumbrances, should 
 be vested in the tenant in fee, or, in case of the 
 landlord's tenure being leasehold, for the term 
 of such lease, and subject to the rent and cove- 
 nants thereof. 
 
 The total failure of these sections to effect 
 their proposed object, even when both landlord and 
 tenant were anxious to carry out their agreement, 
 has often been a subject of wonder, but the cause 
 of their failiure is obvious to any who are acquainted 
 with the nature of the Landed Estates Court 
 title, which it was considered desirable for the 
 tenant to obtain. A Landed Estates Court con- 
 veyance affects not only the rights of the parties 
 to the proceedings, but binds all persons, whether 
 parties or not, and extinguishes all rights which 
 are inconsistent with the terms of the grant by 
 the Court. If, by any mistake, more lands than 
 should properly be sold are included in the grant,
 
 THE miSH LAND ACT OF 1870. 83 
 
 or the most indisputable rights of third parties 
 are not noticed in the body of the grant or the 
 annexed schedule, irreparable injustice is done, 
 and the injured parties have no redress. This 
 absolute and drastic effect of a Landed Estates 
 Court conveyance was the leading principle 
 adopted at the establishment of the Incumbered 
 Estates Court, and is the basis upon which rests 
 the security and value of the conveyances made 
 by these Courts. It is obvious that the exercise 
 of such a jurisdiction requires the utmost atten- 
 tion on the part of the Judge, and the fact that 
 the Court was not made the instrument for the 
 perpetuation of the grossest frauds is due solely 
 to the stringency of its rules and the intelli- 
 gence of its officers. 
 
 An additional element of difficulty necessarily 
 arose when the Court was required to act under 
 these clauses for the purpose of carrying into 
 effect a contract entered into between a limited 
 owner and tenant, for it was possible, and in 
 many cases not improbable, that the transaction 
 involved a fraud to be effected as against parties 
 entitled in remainder or incumbrancers ; the 
 price might be wholly inadequate, and the tenant 
 for life receive a douceur as the consideration for 
 his entering into such an arrangement. The 
 Court was required by the Act itself to inquire 
 into the circumstances of the holding ; the parties 
 interested, other than the parties to the contract ; 
 and the sufficiency of the price (section 34). This 
 e 2
 
 84 THE IRISH LAND LAWS. 
 
 preliminary inquiry involved considerable ex- 
 pense, both of statements to be lodged for the 
 information of the Court and notices to the 
 parties interested ; many of whom would pro- 
 bably be found to be either absent from the 
 country, minors, or married women. When this 
 merely preliminary inquiry was concluded the case 
 had to be proceeded with as in the ordinary course 
 of a sale. The Court had to inquire what interest 
 in the land the contracting landlord represented : 
 he might be only a tenant in fee farm, and the 
 mines, &c., belong to a third party; or he might 
 himself be a lessee for a term of years, or under 
 a lease for lives renewable or not ; the title of 
 the owner must therefore be gone into to pre- 
 vent frauds upon a second class of persons. It 
 was also necessary to inquire as to the title of 
 the tenant who desired to purchase the interest 
 of his landlord, as he might have only a limited 
 interest in the estate of the lessee, or hold it 
 subject to incumbrances; or, indeed, although 
 paying the rent, might have no title at all there- 
 to, and be desirous, by obtaining an absolute con- 
 veyance from the Landed Estates Court, of eflfecting 
 a fraud as against those truly entitled. Thus the 
 interest of a third class of persons had to be pro- 
 tected. Further, even when these inquiries are 
 exhausted, the rights of adjoining owners and of 
 the public must be considered ; the lands to be 
 sold must be surveyed, copies of the maps served 
 upon the adjoining owners, and advertisements
 
 THE IRISH LAND ACT OF 1870. 85 
 
 published to protect public rights of way, &c. 
 Such a procedure is necessary if the conveyance 
 is to be absolute, and the costs of all such in- 
 quiries bear no relation to the value of the estate ; 
 they are comparatively insignificant in the case 
 of a large, but relatively great in that of a small 
 estate. In the case of the necessary sale of an 
 incumbered estate the costs are, as a rule, the 
 first charge upon the proceeds of the sale,' but 
 when the Court is asked to carry out an agreement 
 under these clauses the costs, except those of the 
 distribution of the purchase money, must be pro- 
 vided for by the parties themselves, that is, prac- 
 tically be paid by the tenant, who, to provide for 
 the expense of serving notices, preparing mapSj 
 &c., must therefore initiate the proceeding by 
 depositing in Court ' such sum as the Court may i 
 require ' (section 34). If the tenant be willing to I 
 incur the expenses necessarily incident to the 
 purchase of the fee, a further difficulty remains 
 to the completion of the transaction, which se- 
 riously affects the value of the estate to be there- 
 by acquired. 
 
 It is true that the estate conveyed to the 
 
 ' By the 78th section- of the Landed Estates Court Act 
 the costs of an incmnbrancer are payable out of the proceeds 
 in the same priority as his incumbrance ; but as this section 
 contained the words ' unless the judge shall otherwise direct,' 
 the rule intended to have been established thereby has be- 
 come the exception, indeed has now been declared to be ex- 
 ceptional.— (J» re Hutching, 11 Ir. Jur. N.S. 400.)
 
 86 THE IRISH LAND LAWS. 
 
 tenant will be free from the incumbrances af- 
 fecting that of the landlord, the rights of the 
 incumbrancers being transferred to the money 
 representing the lands, but under the term * in- 
 cumbrances ' are not included quit rents, tithe- 
 rent charges, or drainage charges (section 36). 
 Almost all estates in Ireland are subject to 
 charges of this description, the existence of 
 which is immaterial to a tenant paying an 
 annual rent, but most injurious to the purchaser 
 of portion of the estate ; for, if an estate subject 
 to such a charge be divided among several pur- 
 chasers, the owner of the rent need not em- 
 barrass himself by proceeding against them all 
 collectively (a course which would involve much 
 difficulty and expense), but may require the 
 owner of any portion of the land to pay the entire 
 rent-charge, and in his turn to proceed against 
 his co-owners for contribution. To obviate this 
 difficulty the Act gave the Court power to appor- 
 tion rent-charges and covenants by a section 
 (No. 40) which was intended to be similar to 
 the 72nd section of the Landed Estates Court 
 Act, which gave the Court power to apportion 
 heafl-rents in the case of a fee simple estate, but 
 required notice to be given of such intended 
 apportionment to the owner of the rent, who was 
 manifestly entitled to be heard in relation to the 
 matter. The Court has always been slow and 
 unwilling to exercise the power of apportioning 
 rent-charges upon the premises sold, and requires
 
 THE IRISH LAND ACT OF 1870. 87 
 
 it to be clearly shown that the interest of the 
 rent should not in any appreciable degree be made 
 less secure, or less enjoyable, or less marketable. 
 It is idle to suppose that the property of the 
 owner of the head-rent would not. be seriously 
 depreciated by being broken into several smaller 
 rent-charges apportioned among the holdings of 
 the tenants who had purchased the fee under the 
 sections in question. A rent-charge of lOOl. per 
 annum charged upon a large estate is a first-class 
 security, and fetches a high price in the market ; 
 but fifty annuities of 21. each charged upon 
 separate portions of the estate would be difficult 
 to collect and impossible to sell. The Court has, 
 therefore, refused to exercise its power to appor- 
 tion such charges, except in very exceptional 
 cases. However advantageous it may be to create 
 a peasant proprietary, it has been held that the 
 process should not be carried out to the injury of 
 third parties. The usual mode adopted in the 
 sale of estates subject to such charges is to set 
 aside some one lot of considerable value, and to 
 sell it primarily subject to the rent-charge which 
 affects all the lots sold, and to declare the other 
 lots entitled to be indemnified thereout against 
 the payment of the rent-charge. By this prac- 
 tice the rights of the owner of the rent-charge 
 are unaffected; and, inasmuch as the primary 
 liability of the selected lot is stated in all the 
 conveyances, the purchasers of the indemnified 
 lots have a complete security. Unfortunately a
 
 88 THE IRISH LAND LAWS. 
 
 tenant purchasing under these clauses cannot ask 
 the Court to adopt this course, because if the 
 payment of the entire rent-charge be thrown upon 
 the residue of the landlord's estate in indemni- 
 fication of the holding of the tenant who first 
 applies under these clauses, the result must be 
 to render similar applications by the remaining 
 tenants to purchase their holdings more and 
 more difficult, and ultimately impossible. 
 
 A more practical system for the creation of a 
 tenant proprietary is contained in the 44th sec- 
 tion, which enables the Board of Public Works in 
 Ireland, when an estate is sold in the Landed Es- 
 tates Court, to advance to any tenant, who pur- 
 chases his holding, any sum not exceeding two- 
 thirds of the purchase money, to be repaid by an 
 annuityaftertherateof 5Z. percent., per annum, for 
 thirty-five years. Many tenants have complained 
 that the Board have failed to carry out the spirit 
 of this section ; but in most of the cases in which 
 such complaints have been made, they in fact 
 amount to an objection to the rules as to such 
 advances adopted by the Board, which, although 
 recognising the benefit of a peasant proprietary, 
 could not forget that they were trustees of public 
 money, and insisted upon unquestionable secu- 
 rity for the advances which they were requested 
 to make. 
 
 It is further provided by this Act that the 
 Landed Estates Court, on the sale of an estate, 
 shall, (u far as U consistent with the interests of
 
 THE IRISH LAND ACT OF 1870. 89 
 
 the 'persons interested in the estate or the pur- 
 chase money ^ afiford by the formation of lots, or 
 otherwise, all reasonable facilities to occupying 
 tenants desirous of purchasing their holdings 
 (section 46). 
 
 This well-meaning but loosely drawn section 
 has been the cause of many disputes and much 
 litigation, culminating in the celebrated case of 
 * In re Pemberton, Trustee of Harenc' The ulti- 
 mate result of the decisions seems to be that 
 occupying tenants, whatever be their position or 
 circumstances, have a prima-facie right to have 
 the estate for sale divided into lots co-extensive 
 with their holdings. They have also a right to 
 be otherwise facilitated by the Judge in purchas- 
 ing their holdings. But their right is restricted 
 whenever the subdivision of the estate, or any 
 other facihty claimed by the tenants, appears to 
 the Judge inconsistent with the interests of the 
 parties interested in the estate or the purchase 
 money. 
 
 The leading alterations introduced by this Act 
 into the relation of landlord and tenant are those 
 contained in the 3rd and 4th sections, which 
 regulate the compensations payable to tenants 
 upon the occasion of a disturbance or in respect 
 of improvements. 
 
 As regards the smaller tenancies from year to 
 year, existing at the date of the Act itself, and all 
 tenancies of that class created subsequently, the 
 principle of compensation for disturbance is
 
 90 THE IMSH LAND LAWS. 
 
 founded on substantial justice, although somewhat 
 shocking to the preconceived ideas of English 
 lawyers. It is true that when the tenant took 
 the farm as a yearly tenant he was aware of the 
 incidents of such tenure, and that upon service of 
 a notice to quit the tenancy was terminated by 
 an Act which the tenant should have taken into 
 his calculations, and by the exercise of a right 
 which the landlord expressly reserved to himself ; 
 but, in truth, the moral relation and understand- 
 ing between a landlord and such a tenant varies 
 from the strictly legal one. No landlord could 
 let the holding, nor could a tenant be found to 
 take it, were there not a tacit understanding that 
 the landlord would not arbitrarily exercise his 
 rights, and that unless some extraordinary and 
 unforeseen event occurred, he would allow the 
 tenant to remain in possession so long as he paid 
 the stipulated, or a fairly increased, rent. If the 
 claim of the tenant not to be wantonly disturbed 
 had no legal grounds to support it, perhaps it had 
 some equitable, certainly it had moral. As to the 
 amount of compensation to be paid on account of 
 such an equity, the Act affords no measure or stan- 
 dard, except thatcertain limits are laid down, not to 
 be exceeded, in the tenant's favour. The difficulty 
 of stating the principle upon which these damages 
 should be assessed was thus awkwardly eluded, 
 and the entire question was thrown upon the 
 County Court Judge, who was left as best he 
 might to settle the disputes between the parties.
 
 THE IRISH LAND ACT OF 1870. 91 
 
 Conceding the equitable or moral grounds 
 upon which a tenant from year to year might be 
 admitted to claim compensation for disturbance, 
 it is difficult to see upon what theory tenants for 
 terms certain exceeding a tenancy from year to 
 year should also be allowed compensation for dis- 
 turbance upon the termination of the letting. 
 
 The object of the rule is plainly to make it the 
 interest of the landlords to grant leases for the full 
 term of thirty-one years; but as in a letting for a 
 fixed period the maximum amount to be paid for 
 disturbance at the termination of the interest is 
 known, and the date of the payment certain, the 
 annual rent will be fixed with reference to it in a 
 manner rather to the disadvantage of the tenant, 
 for the landlord must for his own security increase 
 the rent so as to insure against the maximum of 
 compensation. 
 
 In considering the right of a tenant to com- 
 pensation for improvements it is necessary clearly 
 to "keep in view the definition of improvements 
 contained in the Act. A tenant may spend large 
 sums of money upon his holding without entitling 
 himself to any compensation : his right depends, 
 not upon the fact of the expenditure of money, 
 but upon the result of the expenditure. An 
 eccentric tenant of an agricultural farm may build 
 thereon a villa residence, a kennel for hounds, a 
 stable for a racing stud, or a tower commanding 
 an extensive prospect, or he may lay it out in 
 flower beds, or shrubberies ; but such works, al-
 
 92 THE IRISH LAND LAWS. 
 
 though requiring a large expenditure, would not 
 add to the value of the holding as an agricul- 
 tural farm ; and if the landlord were required to 
 repay the tenant such expenditure, the tenant 
 would either succeed * in improving the landlord 
 out of his estate,' or the landlord would be re- 
 quired to indemnify the tenant against the con- 
 sequences of his own extravagance. The landlord's 
 liability to pay rests upon the principle * qui ne 
 permet pas de s'enrichir aux depens d'autrui.' In 
 so far as the property at the termination of the 
 letting is worth more for the purposes of its 
 ordinary occupation by reason of the expenditure 
 of the tenant's money, such increased value re- 
 presents the tenant's money, and to the extent of 
 the increase of value he is entitled to security for 
 his expenditure. Even if the increase of value 
 arise incidentally from the application of the 
 tenant's capital, he has been held entitled to com- 
 pensation. Thus when a tenant was in the habit 
 of purchasing from neighbouring farmers large 
 quantities of green crops with which his cattle 
 were outfed, and it was proved that this treatment 
 had largely increased the value and improved the 
 fertility of land, the Judge held that the tenant 
 was entitled to compensation, not under the head 
 of nn^hausted manures, but for improvements 
 which added to the letting value of the holding. 
 
 By the Act of 1860 the tenant was secured 
 all the rights which arise under a system of free 
 contract; the Act of 1870 leaves untouched all
 
 THE IRISH LAND ACT OF 1870. 93 
 
 the advantages given to the tenant by the preced- 
 ing statute, and secures him in a negative form 
 further valuable rights independent of, and often 
 in direct contradiction to, the contract under which 
 he entered into possession. He cannot be put| 
 out of his holding without compensation. When ' 
 he quits, even of his own free will, or even when 
 ejected for nonpayment of his rent, he is entitled 
 to compensation for all improvements. Special 
 facilities are given him if he desire to purchase 
 the landlord's interest, and if he has not sufficient 
 money for the purpose he can obtain an advance 
 from Government. 
 
 The authors of the measure may justly have 
 imagined that they had gained for the Irish 
 tenants security of tenure, and yet now ten years 
 after the Act was passed the complaints of the 
 tenants are louder than ever. 
 
 The reasons why this well-intentioned Act 
 failed to produce the objects of its authors are 
 not difficult to discover. 
 
 The authors of the Act either mistook what the 
 Irish tenant wanted, or, not finding it expedient 
 to state their object openly, they attempted to 
 attain it indirectly and circuitously — a mode of 
 legislation which generally makes matters worse 
 than they were before. What the tenants wanted 
 was to be left in quiet occupation of their hold- 
 ings, to secure which they were willing to pay, 
 and often did pay, high, nay, extravagant rents. 
 The measure which they agitated for was that
 
 94 THE IRISH LAND LAWS. 
 
 SO long as they paid the rent they should not 
 be disturbed in their possession ; the Act passed 
 in 1870 merely made it expensive for the land- 
 lord to turn them out. The compensation for 
 disturbance, and compensation for improvements, 
 were not what the tenant wanted ; this pecu- 
 niary compensation was nothing in comparison 
 to the loss of his home, and the destruction of 
 his business ; a sum of money in hand was no 
 adequate compensation to him, for he knew only 
 two modes of using it, either in stocking a farm, 
 or lodging it in a bank upon the security of a 
 \ deposit receipt. It was doubtless imagined that 
 the landlord would be deterred from serving 
 notices to quit, by the amount of the compensa- 
 tion for disturbance, as statesmen have endea- 
 voured to exclude an article by attaching to its 
 importation a prohibitory duty. In the case of a 
 prohibitory tariff its object is defeated, if wealthy 
 men are willing to pay an extravagant price, or if 
 the market price of the article rise so high that 
 it can be sold at a profit after payment of the 
 duty. If the landlord were wealthy and wanted 
 the land, he asserted his legal rights, and was 
 ready to pay the legal penalty ; the tenant lost 
 his holding and got such damages as he might. 
 Supposing the landlord to be not only wealthy, 
 but generous to his tenants, the matter would be 
 worked out in somewhat the following fashion. 
 The landlord wishing to get up possession, offers 
 to the tenant a sum of money to surrender his
 
 THE IRISH LAND ACT OF 1870. 95 
 
 interests, which the latter, indignant as Naboth 
 at the proposal to purchase his vineyard, unhesi- 
 tatingly refuses ; notice to quit follows, and then 
 an ejectment process ; the tenant files his claim 
 for compensation, putting down for disturbance 
 the maximum rate, and claiming compensation 
 for everything done on the lands as an improve- 
 ment ; whether a cow shed was erected, or an old 
 house pulled down ; fences built up or ditches 
 levelled ; bog reclaimed or bog cut out ; every- 
 thing is an improvement, and not an ounce of 
 bone dust has been put into the lands for the 
 last seven years, nor has a cow crossed the field 
 during that period, which is not entered under 
 the head of unexhausted manure. When the 
 * land ' case comes on, the landlord's witnesses, 
 marshalled by an excited agent, are equal to the 
 occasion; every improvement alleged by the 
 tenant is proved to have been detrimental to the 
 value of the holding ; anything erected by the 
 tenant is described as no better than a hovel; 
 anything which he has pulled down as substantial 
 and useful ; the ditches levelled were most neces- 
 sary for drainage ; the fences erected render the 
 lands useless for agriculture ; thus the battle 
 of evidence sways to and fro, until the Coimty 
 Court Judge, acting upon his own knowledge of 
 things in general, more than the evidence given 
 in the case, makes a decision, liberal in inten 
 tion, but which often leaves the tenant with less 
 money in his pocket than if he had accepted
 
 96 THE IRISH LAND LAWS. 
 
 the terms which he might originally have ob- 
 tained.' 
 
 When the market for land is rising, and the 
 tenants begin to compete against each other, the 
 costs of the ejectment, and the compensation 
 payable under the Act, are frequently advanced 
 by the incoming tenant, who has undertaken also 
 to pay an increased rent ; the consciousness that 
 their present distress is largely due to their own 
 struggles to secure the possession of lands ex- 
 plains the great unpopularity of anyone who is 
 found in possession of a farm which had belonged 
 to another.' 
 
 • In the case of Tracey r. Dick, in the county of Wicklow, 
 the landlord oflFered the tenant &001. in full for all his claims 
 to compensation ; this the tenant refused, and filed a land 
 claim for \300l. ; after six days' examination of witnesses, 
 the tenant was awarded 350Z., and 26Z. for his costs. The 
 actual cash expenditure, chiefly for witnesses, was five times 
 the amount of the taxed costs. 
 
 * When a tenant demands a reduction of his rent, 
 the question whether he has in fact any equitable or moral 
 ground for such a demand turns upon the circumstances imder 
 which he has obtained possession of the land subject to the 
 rent, as it must be conceded that the mere inconvenience or 
 impossibility of the payment is in itself no ground for such 
 remission, if the tenant is to continue in possession. 
 
 1 . If the tenant, holding originally at a less rent, has been 
 gradually forced to pay an ever-increasing rent by the con- 
 stantly-repeated threat of a notice to quit, the landlord, if 
 insistiDg upon payment, should receive the same and no more 
 Miistance from a court of law, than is given to the money- 
 lender who has taken advantage of the distress of his debtor 
 to coerce him into unreasonable and oppressive stipulations. 
 
 2. If, however, the tenant has obtained possession by
 
 THE IRISH LAND ACT OF 1870. 97 
 
 The Act, by the scale adopted for compensa- 
 tion for disturbance, rendered it the interest 
 of the landlord to consolidate small holdings and 
 to let his land to large farmers only. That it was 
 advantageous to the public that the very small 
 holdings of poor tenants should be diminished, 
 ■was by all admitted, and it was perhaps one of 
 the objects of the Act to increase the average 
 acreage of farms ; but the immediate effect of the 
 3rd section was to render it more difficult for the 
 small farmer without capital, when once evicted, 
 to obtain a new holding. The landlord was also 
 forced by these provisions of the Act, to eject all 
 subtenants upon the determination of the inte- 
 rest of the middleman. 
 
 Compensation for improvements, payable at 
 the determination of a lease, is felt by the owners 
 of the land as inconvenient and oppressive. It 
 
 himself offering to pay the rent in question, he cannot plead 
 the mistake in his own estimate of the value, nor his present 
 inability to pay, unless he be willing to rescind the bargain 
 by giving up possession. That such a tenant should insist 
 upon retaining his farm at a reduced rent, is as absurd as 
 that a merchant, who has resold a cargo at a loss, should 
 require an abatement from the original vendor. 
 
 3, If the tenant's inability to pay arise from his having 
 given an extravagant price to his predecessor in the farm, he 
 has clearly no moral right to ask for a reduction ; by the 
 price which he paid voluntarily for his interest in the letting, 
 he has given emphatic testimony to the fact that the rent 
 was below the market value ; and if he was induced to pay 
 more than the true value, his equity is against the last tenant 
 — the assignor — not against the owner of the land. 
 H
 
 ^8 THE IRISH LAND LAWS. 
 
 may be answered that for the money which they 
 pay to the outgoing tenant they receive a full 
 equivalent in the increased value of their land. 
 Landlords, however, from the very nature of their 
 property, have, in proportion to their income, less 
 ready money than any other class in the commu- 
 nity, and if the law require a man who has no 
 capital to purchase the property of his outgoing 
 tenant, it does not much diminish his embarrass- 
 ment to be assured that the improvements in 
 question may possibly be worth the money. A 
 wealthy or reckless tenant may so improve the 
 premises as to render it impossible for a landlord 
 with but a moderate income to regain possession. 
 Instances of the most extravagant claims for im- 
 provements are of not unfrequent occurrence, and 
 the determination of the lease is but too often the 
 commencement of litigation. I^andlords there- 
 fore desire to let lands to those only the value 
 of whose aggregate holdings falls within the 12th 
 section, and to insist upon the tenant covenant- 
 ing himself out of the Act. Forms of leases, 
 varying more or less in other particulars, but con- 
 taining this material proviso, are in extensive, if 
 not universal, use in all large and well managed 
 estates, and to this extent the Act of 1870 has 
 failed to have any practical result. 
 
 The right to compensation for disturbance and 
 improvements having given to the tenants a cer- 
 tain marketable interest in their holdings, they 
 suddenly acquired a security which enabled them
 
 THE IRISH LAND ACT OF 1870. 99 
 
 to borrow money and obtain credit which they 
 had never before enjoyed. Numerous competing 
 branch banks were opened in insignificant country 
 towns, and general dealers pressed their goods 
 upon the formers' families. During the prosper- 
 ous years which preceded the present distress the 
 farmers incurred debts to such an extent that, 
 when the subsequent harvest proved deficient, 
 they found their credit already exhausted, and 
 therefore could not obtain money at the very 
 date at which they might have legitimately ap- 
 plied for loans. Thus the farmer who in 1879 
 had a valuable interest in his farm and a stake in 
 the country, but had also, unfortunately, an over- 
 due bill in the bank, and a balance against him 
 on his account with the shopkeeper, found him- 
 self in a worse position than he had been in before 
 1870, when his inability to borrow protected him 
 against debt. 
 
 The Act of 1870 professed to obtain for the 
 tenant security of tenure ; its only effect was 
 that, when the market value of land was rising, 
 it slightly delayed the date at which the landlord 
 would find it profitable to evict the tenant. The 
 authors of the Act considered that the tenant 
 should be satisfied if he obtained a lease for 
 thirty-one years, and attempted to secure him 
 this advantage by making it the interest of the 
 landlord to grant a lease for that term ; but the 
 sections introduced to compel the landlord to 
 grant such a lease made it the interest of the 
 H 2
 
 100 THE IRISH LAND LAWS. 
 
 tenant to decline to accept it ; his tenancy from 
 year to year might last for an indefinite period, 
 and could not then be determined without com- 
 pensation, but — the chances against any particular 
 tenant being evicted were very great — the ac- 
 ceptance by the tenant of a lease fixed a date, 
 however remote, at which the tenure would de- 
 termine, without compensation, except for per- 
 manent improvements; and he therefore considered 
 a lease for a fixed number of years as little else 
 than a deferred notice to quit. 
 
 The Act of 1870 was founded upon a miscon- 
 ception of what the tenant desired, and created 
 hopes which it failed to realise. 
 
 The first and second sections of the Act propose 
 to deal with the usages prevalent in the province of 
 Ulster, or elsewhere, which were known under the 
 denomination of the Ulster Tenant Eight. No uni- 
 form custom of tenant right existed in Ulster, but 
 upon various estates there had grown up certain 
 modes of dealing with reference to the letting of 
 land, which, although differing in details, resem- 
 bled each other in their leading characteristics. 
 Prior to the date of the Act, these usages were not 
 recognised by the law, and were enforced only by 
 the pressure of public opinion ; they were, in fact, 
 customs, not laws, and in the most rudimentary 
 condition. The Act did not attempt to define the 
 nature of such usages, but made the custom of the 
 estate an implied term in any contract of letting ; 
 it extended to the usages existing upon estates
 
 THE IRISH LAND ACT OF 1870. 101 
 
 in Ulster the rule already applied by the English 
 Courts, to what was known in England as the 
 '*■ Customs of the Country.' For a ' Custom of the 
 Country ' to be recognised by the English Courts 
 it need not be proved to have existed from time 
 immemorial, but may be established upon proof 
 of a usage reasonable and certain in its nature, 
 and generally acted on in a particular district. 
 The principle upon which the English judges 
 acted is fully explained in the judgment of Baron 
 Parke, in the case of Hutton v. Warren, 1 Mee & 
 Welsh, 466 : ' It has been long settled that in 
 commercial transactions extrinsic evidence of 
 custom and usage is admissible to annex inci- 
 dents to written contracts in matters with respect 
 to which they are silent. The same rule has also 
 been applied to contracts in other transactions of 
 life, in which known usages have been established 
 and prevailed ; and this has been done upon the 
 principle of presumption that, in such transac- 
 tions, the parties did not mean to express in 
 writing the whole of the contract by which they 
 intended to be bound, but to contract with refer- 
 ence to those known usages. Whether such a 
 relaxation of the Common Law is wisely applied 
 where formal instruments have been entered into, 
 and particularly leases under seal, may well be 
 doubted; but the contrary has been established 
 by such authority, and the relations between 
 landlord and tenant have been so long regulated 
 upon the supposition that all customary obliga-
 
 102 THE IRISH LAND LAWS. 
 
 tions, not altered by the contract, are to remain 
 in force, that it is too late to pursue a contrary 
 course, and it would be productive of much in- 
 convenience if this practice were now to be dis- 
 turbed.' 
 '* The Irish Law Courts have been blamed for 
 not treating the Ulster usages as * customs of the 
 country,' but wrongly so, for the latter are essen- 
 tially diflferent in their nature from all forms of 
 Ulster Tenant Right ; they were all merely con- 
 versant with the due cultivation of the land and 
 were upheld as being beneficial for both landlord 
 and tenant. They were all customs by which the 
 tenant, upon leaving, was entitled to be compen- 
 sated for something which he had done to the 
 land by which he had increased its value ; as, for 
 instance, a custom by which the tenant was en- 
 titled to the way-going crop, to an allowance for 
 unexhausted manures, for straw or manure left on 
 the farm, for money spent on drainage or fencing. 
 All these are matters for which a landlord, on 
 making a letting from year to year, might rea- 
 sonably contract to compensate the tenant for 
 upon the determination of the tenancy; but a 
 custom, such as that of Ulster, to pay to the 
 tenant the value of his occupancy upon the legal 
 determination of his tenancy, was one contradic- 
 tory to the nature of the estate created, and ex- 
 cluded by the terms of the contract itself. The 
 views expressed by the Irish Judges upon this 
 subject are fully justified by the judgments of
 
 THE IRISH LAND ACT OF 1870. 103 
 
 the House of Lords in the case of Kamsden v. 
 Dyson, L. K., 1 H. of L. 129. 
 
 The nature of the Ulster Tenant Eight will 
 appear from the following judgments of the learned 
 Judge of the County Court of Fermanagh: 
 *What are the characteristics and meaning of 
 tenant right ? It may be divided into three 
 phases. The first is that the tenant may re- 
 main in possession of his holding, whether he 
 hold under a lease or otherwise, subject, on the 
 fall of the lease, to a revision of the rent, and 
 subject, in case there is no lease, to a periodical 
 and reasonable revision of the rent. The tenant 
 is to remain in possession in this way, and under 
 these circumstances ; and this is tenant right. 
 The next stage of tenant right is this. Suppose 
 the tenant not to be remaining in possession, but 
 that he is parting with his interest in the pro- 
 perty by transfer or assignment. The usage in 
 that case was that the tenant should be at liberty 
 to do so, but that the landlord at the same time 
 should have a right of veto — the right to say, " I 
 won't accept that man as my tenant." This part 
 of the tenant right was simply that the tenant 
 should have the liberty of substituting a man 
 equally good with himself as the future occupier 
 of the holding. In connection with this we are 
 to inquire what was the price to be paid to the 
 tenant. The outgoing tenant pocketed the price 
 of his interest in the property, a smn which was 
 dififerently regulated on different estates. In
 
 104 THE IRISH LAND LAWS. 
 
 some cases the landlord fixed it ; on other estates 
 it was limited to a certain number of years' pur- 
 chase ; and on others the old tenant was freely 
 allowed to sell by public auction. All these ap- 
 parent dififerences do not alter the custom ; they 
 are not — to speak in the language of logicians — 
 the essential attributes, but merely the accidents. 
 When these rules are permanently established 
 on the estate, I would say that they are abso- 
 lutely binding. The next stage or phase of ten- 
 ant right is — Suppose the old tenant is remaining 
 in possession, or suppose that he is not selling, 
 but that the landlord is taking the holding to 
 himself ; if the landlord takes the land into his 
 own hands, it is a question of law whether we 
 have the authority to make the landlord pay the 
 full marketable price — whether we are not to re- 
 strain him by an injunction to let the tenant 
 sell.' — (Jolly V. Archdale, Chapters on Tenant 
 Right Land Act, and Reports by Donnell, 
 327). 
 
 * Common to all the usages or tenant right 
 customs there are five leading features, which 
 may be termed the essential attributes, viz. : — 
 
 * 1st. The right or custom in general of yearly 
 tenants, or those deriving through them, to con- 
 tinue in undisturbed possession as long as they 
 act properly and pay their rents. 
 
 * 2nd. The correlative right of the landlord 
 perpetually to raise the rent, so as to give him a 
 just, fair, and full participation in the increased
 
 THE IRISH LAND ACT OF 1870. 105 
 
 value of the lands, but not so as to extinguish 
 the tenant's interest by imposing a rack-rent. 
 
 * 3rd. The usage or custom of the yearly 
 tenants to sell their interest, if they do not wish 
 to continue in possession, or if they become un- 
 able to pay the rent. 
 
 * 4th. The correlative right of the landlord to 
 be consulted, and to exercise a potential voice in 
 the approval or disapproval of the proposed as- 
 signee. 
 
 ' 5th. The liability of the landlord, if taking 
 land for his own purpose from a tenant, to pay 
 the tenant the fair value of his tenant right. 
 
 * These live elements I have found existing in 
 every usage or tenant right custom that was 
 proved before me ; and the special characteristics 
 proved, in relation to the tenant right recognised 
 on particular estates, for the most part had refer- 
 ence to some limitation or restriction affecting 
 the tenant in his right of sale, or to the mode 
 adopted by the landlord for asserting his rights 
 under the 2nd and 4th of the above heads. 
 When therefore a claim of tenant right is made 
 by the tenant, and either its existence or its 
 character is disputed by the landlord, the contro- 
 versy must be determined by the evidence given 
 on either side.' (Grraham v. The Earl of Erne 
 id. p. 405.) 
 
 The legal effect of the Act of 1870 in regard 
 to the Ulster Tenant Eight was very clearly put by 
 the County Court Judge for the county of Down :
 
 106 THE IRISH LAND LAWS. 
 
 * Whatever practice prevailed for any reasonable 
 time previous to the passing of the Act, and not im- 
 posed in contemplation of the Act, was the tenant 
 right legalised upon that estate, no matter what 
 the tenant right might be in the district roimd 
 about.' (Kevan v. Lord De Eos, ib. p. 267.) 
 
 The essential point in the Ulster Tenant Right 
 was undoubtedly the mode in which the *fair 
 rent ' to be paid by the tenant was ascertained ; 
 it was fixed not by open competition but by valu- 
 ation. The revaluation for the purpose of fixing 
 the rent at the determination of a lease, or at any 
 time during a tenancy from year to year, was 
 always made by a professional valuator, or at least 
 one in whom both parties had confidence, who 
 valued the farm having reference to the fair value 
 of the groimd, exclusive of buildings and tenant's 
 improvements. 
 
 The Ulster usages not only recognised rights 
 as between the landlord and his immediate tenant, 
 but as between him and the subtenants upon the 
 expiration of the interest of the middleman. 
 
 The custom upon this point is thus summed 
 up by Mr. Donnell (Chapters on Tenant Right, 
 &c., p. 79.) 
 
 1. On the determination of a non-occupying^ 
 middleman's lease, the subtenants in occupation 
 are received as tenants of the head landlord at 
 fedr customary rents. 
 
 2. This allowed them a tenant right interest 
 equal to that usually prevalent in the district
 
 THE IRISH LAND ACT OF 1870. 107 
 
 3. If it was necessary to consolidate the hold- 
 ings, the outgoing subtenants were permitted to 
 sell their tenant right to the continuing sub- 
 tenants, or to receive from them the full value 
 thereof. 
 
 4. If the landlord, for the purpose of enlarging 
 his demesne, ejected any of the subtenants, he 
 paid therefor a fair tenant right compensation. 
 
 The obvious objection to the Ulster Customs 
 is that an incoming tenant loses the pecuniary 
 advantages incident to the hiring of land, being 
 compelled to sink a portion of his capital in the 
 purchase of the interest of the outgoing tenant^ 
 and his means of profitably working his farm 
 being jpro tanto diminished. 
 
 The preceding analysis of the Act of 1870 and 
 the Ulster Custom is sufficient to show how much 
 more secure and satisfactory is the position of the 
 tenant under the latter than under the former. 
 The custom was forced upon the landlords simply 
 by the pressure of the public opinion of an in- 
 telligent and industrious peasantry; and, like all 
 popular customs, it precisely meets the necessities 
 of the case because it was produced and developed 
 by them. 
 
 The few and simple rules in which the Ulster 
 Custom may be expressed contrast favourably with 
 the bewildering sections, subsections, provisions^ 
 and exceptions in which the Act of the 33-34 
 Vict. ch. 46 is hopelessly entangled. 
 
 It is proposed by some to define the Ulster
 
 108 THE IRISH LAND LAWS. 
 
 Custom by statute, and to extend it to the rest of 
 Ireland. By such an enactment the condition of 
 the Irish tenant, and that of the Irish landlord 
 also, would be much improved, but it is far from 
 certain that by such a course anyone would be 
 satisfied or the agitation stayed. 
 
 Almost all who at present discuss the Irish 
 land question profess each to be possessed of the 
 infallible remedy by which the Irish tenants can 
 be transformed from a revolutionary proletariat 
 into a wealthy and conservative peasantry ; before, 
 however, anyone undertakes to construct a statute 
 upon the subject it might be advisable to consider 
 and devise distinct answers to the following 
 questions. We assmne that it is not proposed to 
 confiscate the rights of individuals or to recast 
 the social system, by the thorough and drastic 
 measures available in such a universal over- 
 turning of society as the French Ee volution. 
 Upon this assumption the queries annexed have 
 been drawn up as follows, viz. : — 
 
 Whether or not it must be admitted that the 
 doctrines of the political economists as to the free 
 trade in land, when applied to the relations of the 
 Irish landlord and tenant, have proved inapplicable, 
 if not actually mischievous, so that every approxi- 
 mation to the Civil or French Law is discovered 
 to be injurious to the condition of the peasantry 
 and the peace of the country ; and, if so, whether, 
 having regard to the future of the country, it is 
 expedient to reform our laws so as to assimilate
 
 THE IRISH LAND ACT OF 1870. 109^ 
 
 them to those in use among nations of an inferior 
 social development ? 
 
 Whether the letting of land should or should 
 not be classed as a sub-denomination of and subject 
 to the general rules applicable to cases of hiring j 
 and, further, whether the law of landlord and 
 tenant in Ireland should continue to be founded 
 upon the basis of contract, or should henceforth to 
 a greater or less extent be openly referable to 
 status solely? 
 
 If it be considered advisable that some tenan- 
 cies should be regulated by rules depending on 
 status and not on contract, upon what principle,, 
 and with reference to what standard, are tenancies 
 to be divided into those of status and those of 
 contract ? 
 
 Whether in the case of tenancies which are 
 to be left to contract it would not be advisable 
 (having regard to the 12th section) to repeal the 
 Act of 33-34 Vict. ch. 46, and to substitute a 
 short and definite statement of all the agreements 
 necessarily implied by law, as is done in the Code 
 Napoleon, leaving it to the parties to contract 
 themselves out of them as they desire ? 
 
 Whether it is not the vital point, in all tenan- 
 cies resting upon status, that the rent should be 
 fixed otherwise than by bargain between the 
 parties ; and, if so, how and in what manner shall 
 the rent to be paid by any such tenant be assessed, 
 and also by what authority or with reference to 
 what standard shall the rents of existing tenants
 
 110 THE IRISH LAND LAWS. 
 
 be reduced or raised, so as to be made uniform, 
 and also when and how shall this rent from time to 
 time be readjusted ? 
 
 If the rent of land is to be fixed with reference 
 to the gross produce, whether by the ' gross pro- 
 duce ' is to be understood the present gross pro- 
 duce of the land imder a slovenly and careless 
 system of farming, or the possible gross produce 
 of the land if skilfully and carefully tilled? 
 
 What do we mean by the terms ' security of 
 tenure,' and 'fixity of tenure'? Under such a 
 system, what would be the rights and duties of 
 the landlord — and what those of the tenant ? 
 
 If fixity of tenure (the right to possession for 
 so long as the rent is paid) be granted to the 
 tenants up to a certain maximum, whether it 
 may not be expedient, in the interest of the 
 public, to fix a minimum also below which fixity 
 of tenure should not be granted ? 
 
 Whether the fixity of tenure to be granted 
 shall be confined to certain only of the existing 
 tenancies, or be hereafter acquired by any person 
 to whom land may be let, irrespective of the ex- 
 pressed terms of the letting, or in default of any 
 express agreement ? 
 
 Whether tenants who shall acquire fixity of 
 tenure should be allowed to sublet the land or 
 erect additional dwellings thereupon, thus creat- 
 ing a new and worse class of landlords ; and also 
 whether middlemen should be entitled to fixity 
 of tenure, inasmuch as under no definition of
 
 THE IRISH LAND ACT OF 1870. Ill 
 
 a fair rent could they be entitled to a profit 
 rent? 
 
 "Whether tenants who shall acquire fixity of 
 tenure should or should not be allowed to assign 
 parts of their holdings, or subdivide same by 
 their will or otherwise, inasmuch as in the 
 former case the unrestricted increase of popu- 
 lation will rapidly deteriorate the condition of the 
 peasantry ? 
 
 Whether tenants who shall acquire fixity of 
 tenure should or should not be permitted to 
 mortgage, charge, or incumber their interest in 
 the perpetuity? 
 
 Whether tenants who shall acquire fixity of 
 tenure should be punishable for waste, or should 
 be placed in the same position as tenants in fee 
 farm, under the 23-24 Vict. ch. 154, sec. 25 ? 
 
 Whether a tenant who shall acquire fixity of 
 tenure should be bound to keep buildings, &c., in 
 order, and to cultivate the land in a proper and 
 husbandlike manner ; and, if so, how can he be 
 compelled to do so save by the forfeiture of his 
 interest ? 
 
 Whether the tenant's fixity of tenure should 
 be a right against his own landlord (in personam), 
 or against the public (in rem) ? 
 
 If for the public benefit the landlord be de- 
 prived of the power of freely dealing with his 
 land, whether he is entitled to any, and, if so, 
 what compensation? and upon what principle 
 should it be assessed ?
 
 112 THE IRISH LAND LAWS. 
 
 If a landlord for the public benefit be required 
 to accept, and not permitted to demand more 
 than, the * fair rent,' whether he should or should 
 not be guaranteed by the State the punctual pay- 
 ment of such * fair rent ' ? 
 
 Whether to the landlord or the tenant possess- 
 ing fixity of tenure should belong subsequent 
 accidental increments of value ? 
 
 Whether the grant to a tenant of fixity of 
 tenure at a ' fair rent ' is not merely a circumlo- 
 cution for the conveyance of the fee simple to 
 the tenant charged with a rent charge for the 
 landlord ? and, if so — 
 
 Whether the landlord should not have all the 
 powers for the recovery of this * fair rent,' which 
 are usually given to annuitants or mortgagees by 
 specific agreement or statute ? and also — 
 
 Whether the landlord should under these cir- 
 cumstances pay all the county cess, and one half 
 of the poor rate, otherwise than other annuitants 
 or remembrancers ? 
 
 'VMiether the owner of the rent should have 
 any, and, if so, what process for the recovery of 
 the rent, and whether a power of recovering the 
 rent does not ultimately involve the disturbance 
 of the tenant, by an ejectment for the non-pay- 
 ment of rent or sale of his interest ? 
 
 Whether there cannot be devised some prac- 
 tical and inexpensive mode whereby the tenant 
 may be enabled, without danger to the rights of 
 third parties, to buy up the rent charged upon 
 his holding ?
 
 THE IRISH LAND ACT OF 1870. 113 
 
 If the general principle and nature of the 
 reform to be effected in the law of landlord and 
 tenant have been once determined upon, the fol- 
 lowing points as to the form of the statute will 
 remain for consideration : — 
 
 (1) Whether it is not advantageous that all 
 the legal rules as to the hiring of land should be 
 included in one consistent and intelligible Act? 
 and that no attempt be made to carry out any 
 proposed reform by the process of engrafting new 
 and isolated rules, exceptions, and provisions upon 
 a series of statutes already sufficiently confused 
 and illogical ? and whether it would not also be 
 advantageous that any new land law, besides be- 
 ing complete in itself, should be drawn up in 
 such language, form, and manner, that the land- 
 lords and tenants in Ireland (or at least such of 
 them as are reasonably educated) should, like the 
 inhabitants of Continental Europe and America, 
 be able, without professional assistance, to dis- 
 cover their respective rights and duties ? and — 
 
 (2) Whether it is not more advantageou 
 that the additional rights and advantages (if any) 
 to be given to the tenant should be expressed 
 in affirmative and distinct language, and not 
 obUquely and impliedly introduced by the re- 
 striction of the exercise by the landlords of rights 
 still admitted to be legal ?
 
 APPENDIX. 
 
 POPULAR ERRORS AS TO IRISH LAW. 
 
 In all countries in which the law has been codified, 
 every ordinarily educated person either knows, or can 
 easily ascertain, the rules of the law applicable to any 
 specific legal relation. The English and Irish law has 
 never been codified, nor indeed any serious attempt 
 ever made to efiect this most desirable object, which 
 has, during the last half century, been continuously 
 postponed to political measures or party objects. Thus 
 the English public have become so habituated to con- 
 sider their law as a mystery, and its rules the anti- 
 thesis to the principles of common-sense, that they are 
 contented to remain ignorant of its provisions, and to 
 hand over the entire management of their legal 
 affairs to their solicitors. 
 
 The general principles of English law are neither 
 obscure nor illogical when they are mastered, but the 
 authorities are scattered through innumerable reports 
 and Acts of Parliament, so that laymen cannot easily 
 even make inquiries as to the matter, and of the pro- 
 fessional students who attempt to master it few ever 
 arrive at any satisfactory result. 
 
 It is not therefore to be expected that those who 
 deal with social questions, and attempt the reform of 
 obvious abuses, should as a preliminary undertake an 
 I 2
 
 116 APPENDIX. 
 
 exhaustive study of the law ; but it may be fairly 
 hoped that before they appeal to the public for the in- 
 troduction of a new and beneficial law, or the repeal 
 of some old and mischievous rule, they should at least 
 ascertain whether the law which they desire to intro- 
 duce has not been for years on the face of the statute 
 book, or whether that which they desire to repeal had 
 any existence at all. It is also often very useful to 
 consider whether the law complained of is peculiar to 
 this country, or of common use in all civilised nations, 
 in which case there is a strong presumption in its 
 favour ; and, further, those who bring forward cases of 
 individual hardship may be expected to inquire 
 whether the sufferer could not have got full relief if 
 he had observed the directions of the existing law, or 
 applied to the ordinary tribunals ; and also, whether, 
 although confident he was an injured man, it is not 
 possible that he was utterly in the wrong himself from 
 the very commencement. 
 
 "We desire here to give a few examples of the ex- 
 traordinary errors as to the existing Irish land law 
 common in books or speeches dealing with the Irish 
 land question. In the well-known work, ' Land 
 Systems, and Industrial Economy of Ireland, England, 
 and Continental Countries,' by Mr. Cliffe Leslie, p. 
 118, there occurs the following passage: 'Twenty 
 years ago. Dr. Hancock applied himself to discover 
 the cause of the absence of trees ; and the cause he 
 discovered is admirably illustrated by a communica- 
 tion to Lord Devon's Commission, which we beg our 
 readers to study, not for its direct application to trees 
 only, but for all the analogous impediments to im- 
 provement and cultivation it suggests : " Under the. 
 encouragement (says the writer) which I conceived
 
 APPENDIX. 117 
 
 the laws in force afforded to me, I planted trees ex- 
 tensively in lands which I held for a terminable lease. 
 They are mine, I said, to all intents and purposes. I 
 took the best care of them, fenced and protected them, 
 and of course paid rent, &c., for the land they grew on 
 for a number of years, and I considered them not only 
 as a shelter and ornament to my place, but as a crop 
 which I was raising on my farm for the benefit of my- 
 self and my family. But legilms aliter visum est. On 
 taking out a renewal of my lease, it appeared that my 
 crop of timber, most of which had been growing for 
 nearly forty years, while I paid the rent, could not be 
 mine by law. Let me do the landlord no injustice. 
 He had no disposition to possess himself of my trees. 
 He felt that they ought to be mine. But the only 
 lease he could give me was one by which I not only 
 could never call one branch of the trees I planted, 
 protected, and paid for, mine, but by which I am 
 liable to severe penalties if I cut a switch off any of 
 them. My Lord, 'tis monstrous ! Will the face of the 
 country improve under such a law 1 Shall I be mad 
 enough now to begin planting again, and leave a copy 
 of the statement for my son, with da capo written at 
 the end of it, against the expiration of my present 
 lease 1 No, I will grow furze, or heath, or brambles, 
 but I won't grow timber." ' 
 
 It is immaterial to observe that neither under the 
 Roman, French, nor English law would a tenant who 
 planted trees upon his farm acquire the property in 
 them ; but what is very important to the question is 
 that, under the Irish law, a tenant who plants trees 
 during the term of his lease can acquire a property in 
 them. 
 
 By the Irish Statute, 23-24 George III. ch. 39,
 
 118 APPENDIX. 
 
 it is enacted that any tenant for life or lives, or any 
 tenant for years exceeding fourteen years unexpired^ 
 who shall plant any trees, shall be entitled to cut, sell, 
 and dispose of the same, at any time during the term ; 
 provided that any tenant, so planting, shall, within 
 twelve calendar months after such planting, lodge 
 with the clerk of the peace of the county, or county of 
 a city, where such plantation shall be made, an affidavit 
 sworn before some justice of the peace of the coimty. 
 reciting the number and kinds of the trees planted, 
 and the name of the lands in the form prescribed 
 by the Act (section 2). The trees in question there- 
 fore were the property of the tenant, if he had taken 
 the trouble to register them ; but having omitted to do 
 80, he had none save himself to blame. It is notorious 
 that the tenant's interest in registered timber is a pro- 
 perty perfectly well known in Ireland, and fi-equently 
 sold and purchased in the same manner as any personal 
 chattel. The history of the peculiar Irish legislation 
 upon this subject is set out at length in Furlong's 
 Landlord and Tenant, Book lY. chap. 6. 
 
 In the 76th page of the same work, speaking of 
 the embarrassments caused to tenants by the existing 
 law, there occurs this passage : * The first sentence of 
 Mr. Furlong's treatise on the " Law of Landlord and 
 Tenant in Ireland " is " The common law regulating the 
 enjoyment of real property, both in England and Ire- 
 land, is founded upon and governed by the principles 
 of the feudal system." ' Such a statement in 1870, the 
 date of Mr. Clifie Leslie's essay, ten years after the 
 passing of the Irish Act of 1860, which swept all 
 feudal ideas out of the legal relation of landlord and 
 tenant in Ireland, is certainly remarkable. This refer- 
 ence in the essay naturally suggests the following ob-
 
 APPENDIX. 119 
 
 servation : the passage in question does occur as the 
 first sentence in the original edition of Furlong's well- 
 known work published in 1845 ; but in the second 
 edition, published in 1869, the year before the date of 
 Mr. Cliffe Leslie's essay, the passage is postponed to 
 some preliminary definitions, and is not the first sen- 
 tence of the work ; hence we may infer that the edi- 
 tion used by the author of the essay in question was 
 the old one, not corrected as to the statutes passed be- 
 tween 1845 and 1870. 
 
 In the same work, page 52, occurs the following 
 passage : ' An illustration must be given of the ob- 
 structions which the land laws under which Ireland 
 has been placed have opposed to the enterprise and 
 prosperity of its people in other ways. " About fifteen 
 years ago," Dr. Hancock relates iu his treatise on the 
 ^ Impediments to the Prosperity of Ireland,' " an enter- 
 prising capitalist was anxious to build a flax-mill in 
 the north of Ireland, as a change had become necessary 
 in the linen trade from hand-spinning to mill-spinning. 
 He selected as the site for his mill a place in a poor 
 but populous district, situated on a navigable river, 
 and in the immediate vicinity of extensive turf bogs. 
 The capitalist applied to the landlord for a lease of 
 fifty acres for a Tnill site, labourers' village, and his 
 own residence, and of fifty acres of bog, as it was pro- 
 posed to use turf as the fuel for the steam-engines 
 for the miU. The landlord was most anxious to en- 
 tourage an enterprise so well calculated to improve 
 the estate. An agreement was concluded, but when 
 the flax-spinner consulted his legal adviser he dis- 
 covered that the law prevented the landlord from 
 -carrying out the very liberal terms he had agreed to. 
 He was bound by settlement to let for the best rent
 
 120 APPENDIX. 
 
 only ; the longest lease he could grant was for three^ 
 lives, or thirty-one years. Such a lease, however, at 
 the full rent of the lands, was quite too short to secure 
 the flax-spinner in laying out his capital in building ; 
 the statute enabling tenants ^ to lease for mill sites 
 only allowing leases for three acres. The mill was not 
 built, and mark the consequence. Some twenty miles 
 from the spot alluded to, the flax-spinner had land in 
 which he could get a perpetual interest ; there he laid 
 out his thousands ; there he has for the last fifteen 
 years given employment to hundreds of labourers, and 
 has earned money. The poor but populous district con- 
 tinues to be populous, but, if anything, poorer than it 
 was. Dvuing the past seasons of distress, the people 
 of that district suffered much fi'om want of occupation, 
 the landlords' rents were worse paid out of it than 
 from any other part of his estate. Could there be a 
 stronger case to prove how much the present state of 
 Ireland arises from the state of the law ] " ' 
 
 The essay from which this passage was taken was 
 published in 1868, and reprinted in 1870 ; yet there is 
 not therein any reference to the Settled Estates Act 
 of 1856, which gave the Court of Chancery the power 
 to lease lands * for a building for ninety-nine years, or 
 when the Court shall be satisfied that it is the usual 
 custom of the district, and beneficial to the inheritance, 
 to grant building leases for longer terms, then for such 
 term as the Court shall direct' (19-20 Vict. ch. 120, 
 section 2), nor to the notorious fact that the Court 
 has exercised its power of granting leases for very 
 lengthy terms for the very purpose of the erection of 
 linen manufactories, and that applications for leasing 
 
 > This most mean ' enabling tenanttfor life to lease,' and 
 the Act referred to is the Irish Act of the 25th Geo. III. 
 cb. 62.
 
 APPENDIX. 121 
 
 powei"s under the Act in question are of constant 
 occurrence. An order of the Master of the Rolls made 
 under this Act authorising a lease for a very long 
 term for the erection of a linen manufactory, in the 
 case of the estate of the Earl of Charlemont, may be 
 inspected in the office of the Chancery Registrars. 
 Again, in the 77th page of the same work occurs this 
 passage. * What is more important : a tenant for years 
 has not the right of ownership, as was afterwards ex- 
 perienced in the very case before us. The capitalist 
 accepted a lease for 999 years ; although diverted from 
 his original design with respect to the gi'ound. Inputting 
 it to a different purpose he proceeded to level an emi- 
 nence, and to carry away the gravel for use elsewhere. 
 But the law of landlord and tenant says : — " If a tenant 
 opens pits for the pvirpose of raising stone or waste, it 
 will be waste." And this being the law the landlord 
 actually obtained an injunction to restrain the tenant's 
 proceedings, and mulcted him in damages.' It can 
 scarcely be gravely alleged that the Irish law is ex- 
 ceptional and unreasonable which forbids one who has 
 hired the use of the superficies of land, for a limited 
 term, to destroy the corpus of the demised premises 
 by carrying off and appropriating the gravel on the 
 land, an act the result of which probably in most cases 
 would be that, when the ' eminence ' of valuable gravel 
 had been disposed of, the premises would be thrown 
 back on the landlord's hands in the condition of a 
 gravel pit filled with water. The next paragraph is 
 also as remarkable : ' Once more, in another county, the 
 very same capitalist opened an iron mine by arrange- 
 ment with the lord of the soil, and commenced works 
 on an extensive scale. TJie landlord then demanded 
 terms to lohich he was not entitled by his contract ; but
 
 1 22 APPENDIX. 
 
 the price of Irish iron has not been high enough of 
 late years to defray the cost of a Chancery suit in 
 addition to the costs of production, and delay, worry, 
 and anxiety are not inducements to industrial enter- 
 prise; so the iron works were suspended.' It is 
 insinuated here that the Irish law is mischievously 
 defective because it does not prevent a landlord from 
 making claims as to the merits of which we have no 
 means of judging, and that Courts can do no more thaii 
 deal with disputes when they have arisen ; and, again, 
 it is ignored that if the landlord had demanded terms 
 to which he was not entitled imder his contract, he 
 would have had to pay the costs of the suit. As to the 
 peculiar costs and delay of the Chancery proceeding, 
 it may be added that the old and expensive practice of 
 Chancery had been abolished in 1851, and a very 
 simple, cheap, and (when accounts had not to be 
 taken) expeditious course of procedure then existed in 
 that Court. It may not unreasonably be conjectured 
 that the capitalist who took so peculiar a view of his 
 rights as a lessee for years, perhaps fell into some 
 similar error as to his rights imder his mining lease. 
 
 As to the Irish law of waste, Mr. Cliffe Leslie 
 makes very remarkable statements, and usee very 
 strong language. Thus, in page 107 : — 
 
 * A legislature of landlords, devising a code of laws 
 for Ireland, lias thoiigfit only of tJie landlord ; and the 
 ground lias been cursed for his sake. Does anyone 
 need further illastration of the fundamental policy of 
 that code 1 lie will find it in a passage of the standard 
 treatise on " The Law of Landlord and Tenant in Ire- 
 land," defining what waste is in the eye of the law — 
 *' A tenant has no right to alter the nature of the land 
 demised, by converting ancient pasture into arable
 
 APPENDIX. 123 
 
 land, or arable land into woodland, or by enclosing 
 and cultivating waste land included in the demise, &c." 
 Is it not rightly called a law of waste 1 To keep the 
 land of the island unchanged, unchangeable, and un- 
 improved alike in its own condition and its ownership, 
 to keep the world standing still from age to age, and 
 therefore tumbling to decay,' &c., &c. 
 
 The passage in Furlong is to be found in the 657th 
 page in the old edition ; if reference be made to the 
 footnotes of Mr. Furlong's work, we find no trace of 
 a code of laws devised for Ireland by a legislature of 
 landlords; Mr. Furlong does not refer to any Irish 
 statute in support of his statements, nor, indeed, 
 could he, as there never were any such enactments, 
 as anyone can easily ascertain by reference to ' Oulton's 
 Index of the Irish Statutes,' p. 795, title ' Waste ' ; 
 but he does refer to no less than seventeen reported 
 cases, all of which without exception are English, and 
 all turn upon the simple principle that he who hires 
 an article cannot destroy the article hired, during the 
 period of the hiring, but must return it in the same 
 state in which he received it. 
 
 This selection of passages from Mr. Cliffe Leslie 
 is not to be taken as proving that upon this subject 
 he is peculiarly inaccurate; his writings have been 
 made use of because they have naturally, on account of 
 the earnestness and great literary ability of the author, 
 acquired a large cii'culation, and exercised much in- 
 fluence upon public opinion. As to the less known 
 and less careful writers upon this subject, we can only 
 say — Quia si in viridi ligno hcec faciunt, in ariclo 
 qtiid fiet ? 
 
 An instance of the extraordinary manner in which 
 the plainest legal principles are ignored occurs in the
 
 124 APPENDIX. 
 
 letter of the * Special Correspondent of the Standard , 
 of the 30th December, 1879. 
 
 * He (Lord Sligo) has the reputation of being the 
 only large landlord in Mayo who has raised his rent 
 since the passing of the Land Act ; and there is no re- 
 sisting the evidence that this has been done in some 
 cases to the extent of 50 per cent., on holdings in 
 which it was declared emphatically that the tenant 
 had made all the improvements which were the justifi- 
 cation for the advance, the landlord never having con- 
 tributed a shilling in any shape or form. So far as I 
 could gather, the form in which these improvements 
 were efiected, so that it became possible, as it was put 
 to me, for the landlord " to confiscate the capital of 
 his tenants " was this : most of the small holdings are 
 conterminous with large tracts of waste, mountain, or 
 bog land, and the small farmers in their spare time 
 set to work to reclaim portions of these. On the Sligo 
 estate this practice, which is common all over the west 
 of Ireland, has been followed ; but the agent has had 
 a sharp eye on such improvements, and instead of the 
 equitable rule which seems to prevail over the Dillon 
 estates, on the Roscommon side of the county, of 
 leaving the improver to enjoy what he has thus 
 created during his tenancy, the landlord has stepped 
 in and insisted on a share — and, as some insisted, the 
 lion's share — the moment there is anything to divide.' 
 
 The con-ectness of the statement is immaterial ; as 
 is the meanness or generosity of an owner of property 
 in asserting his rights. The facts of the case, stripped 
 of rhetoric, stand thus. A hires of B the use for a 
 limited period of (say) ten acres at a certain rent, and, 
 having been put into possession of the ten acres agreed 
 upon, enters upon and appropriates the ten adjoining
 
 APPENDIX. 125 
 
 acres, and cultivates for his own profit these second 
 ten acres, to which he has no title whatsoever. The 
 legal healings of the case would turn upon the follow- 
 ing points : (1) Whether the tenant wilfully trespassed 
 upon and wrongfully occupied land which he knew 
 was not his own ; in this case he was a wrongdoer from 
 the fii'st, and has no legal locios standi. But (2) if the 
 tenant entered upon and improved these lands under 
 a mistake as to his rights (whether referred to custom 
 or otherwise), and the landlord, with notice of the ten- 
 ant's reclamation and improvements, stood by, intend- 
 ing to appropriate to himself the tenant's expenditure, 
 he would be restrained by an injunction from the per- 
 petration of such a fraud (see O'Fay v. Burke, 8 Ir. 
 Ch. p. 518). 
 
 If we vary the rank and position of the landlord 
 and tenant, there will be no doubt as to the rule of 
 law to be applied to such a transaction ; and upon this 
 subject the following case, the evidence of which is of 
 record in the Court of Chancery, may be safely referred 
 to. By a lease of the 7th of May, 1806, H.M. de- 
 mised to H.TJ., the lands of Cloonasea in the King's 
 County, containing 155 Irish acres (251a. Or. lOp. 
 English), for 21 years, at the rent of 80^. Irish (73^. 
 16s. \\\d. English), with a quoties toties covenant for 
 renewal. The lease was renewed from time to time, 
 down to the year 1869. The representatives of H.M. 
 in 1872 obtained from the Church Commissioners a 
 grant in fee of the lands in question, with others, upon 
 payment of the sum of 2860Z. 195. 4c?., and subject to 
 the perpetual head rent of 407^. Is. 7<f . 
 
 The lessee under the lease of 1806 sub-let the 
 lands to various under-tenants, who commenced and 
 carried out a series of encroachments upon the adjoin- 
 ing lands.
 
 126 APPENDIX. 
 
 In 1875 the representatives of H.U. instituted 
 proceedings in the Court of Chancery, to obtain a sub- 
 fee farm grant of the land then in the occupation of 
 their under-tenants and the rent of which they were in 
 receipt of. In the proceedings under the petition in 
 question, it was proved by the representatives of H.M.^ 
 the original lessor, and admitted by the petitioners, 
 that the latter, by their under-tenants, were in posses- 
 sion of not less than 266 Irish acres (430a. 3r. 17p. 
 English), of which 111 Irish acres (179a. 3r. 7p. 
 English) had been acquired solely by encroachment 
 or * reclamation of adjoining lands ' ; by whatever 
 name it is called, the fact is the same. (Before the 
 V.C. ; Ussher, petitioner ; Balfour and others, re- 
 spondents. Petition filed the 22nd May, 1875.) 
 
 If it be desirable that whoever reclaims the 
 waste lands of another should be entitled to the 
 ownership thereof, the principle should be openly 
 stated, and the proposed amendment of the law to that 
 efiect prepared, in which the terms ' waste land,' and 
 * reclamation ' should be intelligibly defined. 
 
 As a proof of the extreme ignorance of the present 
 condition of the law of landlord and tenant in Ireland, 
 there cannot be a more remarkable instance than a 
 speech lately delivered by the Venerable Archdeacon 
 O'Connell, the respected and most respectable parish 
 priest of Castleisland. It is to be observed that the 
 object of the speech was to dissuade his parishioners 
 from establishing a branch of the Land League in the 
 district, and that its design and tone were alike mode- 
 rate and praiseworthy. The Archdeacon naturally 
 prefaced his addr^s by pointing out to his hearers 
 that he himself was sprung from the farming class, and 
 that his own family had as much if not more reason
 
 APPENDIX. 127 
 
 than any of his parishioners to complain of the land 
 laws. * I am the son of a tenant-farmer myself, and 
 if the sense of a cruel wrong could justify anyone in 
 joining a movement of questionable morality, that 
 justification would be mine. Just thirty years ago my 
 poor father was evicted from a farm held under Baron 
 Foster, after expending not only his capital, but a life- 
 long term of toil and industry, in building, planting, 
 fencing, draining, and otherwise reclaiming what was 
 once a wet swamp. When the lease of that farm expired 
 the rent was raised 25 per cent. ; but this was not the 
 worst. In little more than a year after Baron Foster's 
 death, he was served by his son with an ejectment for 
 non-title, and though the rent was punctually paid, 
 and though theye was most respectable evidence to 
 prove that there were unexhausted improvements to 
 the value of upwards of 800^. effected on the farm, all 
 was of no use. By the decree of a Court of Law, all 
 was confiscated to the use and benefit of this model 
 landlord and his bailiff, who shared with him the 
 spoils of an honest, industrious man. This is but a 
 typical case of the many hundred cases that have oc- 
 curred from that day to the present, throughout the 
 length and breadth of Ireland, and owing to an imjust 
 land system.' — Irish Times, 2nd, October, 1880. 
 
 Let us admit to the fullest extent the correctness 
 of the statement made by this most conscientious 
 clergyman ; but we would suggest that if he had taken 
 the trouble to ascertain how the law at present stands, 
 he would have substituted for the last paragraph the 
 following : * I am happy, however, to inform you that 
 under the amendments in the law which have been 
 effected since that date, such injustice as I have de- 
 scribed could not now be perpetrated ; for upon the
 
 128 APPENDIX. 
 
 expiration of the first lease my father vmder the present 
 law would have been entitled to compensation of the 
 full value of his improvements by Anrtue of the 4th 
 section of the Act of 1870 ; and if the second lease 
 made by Mr. Baron Foster, who was only a tenant for 
 life, were invalid as against his son, the tenant in re- 
 mainder, my father, by virtue of the 4l8t section of the 
 Act of 1860, could have recovered damages for the loss 
 of his interest against the representatives of Mr. 
 Baron Foster, by virtue of the covenant for good title 
 and quiet enjoyment which is now implied in all 
 
 There is no need to accumulate further instances, 
 but it is impossible to avoid remarking that the 
 majority of those who have addressed letters to the 
 public papers upon the necessity of a change in the 
 law of landlord and tenant in Ireland assume, as a 
 fact, that a tenant ejected for nonpayment of rent is 
 not entitled to any compensation for improvements, 
 and that the majority of the farms are tenancies at 
 will. 
 
 It may be perhaps remarked that the object of this 
 appendix is to suggest that the task of law reform 
 should be left to the lawyers. Far from it — lawyers, 
 as a class, are, of all the community, the least disposed 
 to a reform of an existing system ; the labour which 
 they have expended in mastering its technicalities and 
 unravelling its complexities leads them as a rule to 
 vastly overestimate the value of the information which 
 they have thus acquired ; they mistake for jurispru- 
 dence 'the logical deduction of one absurdity from 
 another,' and believe what Ls obscure to be profound. 
 
 The amateur law reformer, on the other hand, 
 desirous of remedying a specific evil, is too prone to
 
 APPENDIX. 129 
 
 attribute it to some rule of law which is but a portion 
 of a complex system, and, in total disregard of the 
 rights of third parties, proposes its repeal or suggests 
 some crude enactment which, from its conflict with 
 other rules left unrepealed, the existence of which its 
 author was wholly ignorant of, would produce inex- 
 tricable confusion and litigation. 
 
 He who proposes the enactment of a new law in 
 substitution for one in use should at least be able 
 to state with reasonable clearness the details of the 
 measure which he desires to introduce. A statute can- 
 not be drafted by a stroke of genius, nor its details 
 worked out by the purely logical process of converting 
 the existing rules into their contradictories, after the 
 fashion in which Friar John constructed the regulations 
 of the monastery of Theleme. A good and successful 
 Act of Parliament is prepared after the same fashion 
 as a well-drawn deed. The draftsman must know 
 who are the persons whose rights are to be affected ; 
 next clearly understand the reciprocal existing rights 
 of the several parties; then have specific instruction 
 as to what he is desired to accomplish ; and finally 
 draft a document intelligible, unambiguous, complete, 
 and harmonious. 
 
 Law reform is most successfully accomplished by 
 those who, like Flavins Fimbria, not himself a lawyer, 
 have previously mastered the formulae of the patricians.
 
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 6 MACMILLAN'S CATALOGUE OF WORKS IN 
 
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 " Mr. Atinto's book is careful and accurate in all that is stated, and 
 faithful in all that it suggests. It will repay reading more than once." 
 Athen>t:um. i- 
 
 VIII. BURNS. By Principal Shairp, Professor of Poetry in the 
 University of Oxford. 
 
 " // is impossible to desire fairer criticism than Principal Shairp* s 
 on Burns" s poetry .... Notu of the series has given a tidier estimate 
 cither of character or of genius than this little volume .... and all who 
 r,ad it will be thoroughly grateful to the author for this monununt to the 
 genius of Sco'land's greatest poet." — Spectator. 
 
 IX. SPENSER. By the Very Rev. the Dean of St. Paul's. 
 "Dr. Church is master of his subject, an I writes always with good 
 
 taste." — Academy. 
 
 X. THACKERAY. By Anthony Troli.ope. 
 
 *' Mr. Trollofe's sketch is excellently adapted to fufU the purpose of 
 the series in which it appears." — Athex.^um. 
 
 XI. BURKE. By John Morley. 
 
 ** Terliaps 'he best critidsm yd published en the life and character of
 
 i \In preparation. "l 
 
 HISTORY, BIOGRAPHY, TRAVELS, ETC. 9 
 English Men of Letters. — continued. 
 
 Burke is contained in Mr. Morley^s compendious lnog)-aphy. His style is 
 vigorous and polished, and both his political and personal judgment, and 
 his literary criticisms are just, generous, subtle, and in a high degree 
 interesting. " — Saturday Review. 
 
 MILTON. By MARK Pattison. \yust ready."] 
 
 HAWTHORNE. By Henry James. 
 SOUTHEY. By Professor DowDEN. 
 CHAUCER. By Professor Ward. 
 COWPER. By Goldwin Smith. 
 BUNYAN. By J. A. Froude. 
 WORDSWORTH. By F. W. H. Myers. 
 Others in preparation. 
 
 Eton College, History of. By H. C. Maxwell Lyte, 
 M.A. With numerous Illustrations by Professor Delamotte, 
 Coloured Plates, and a Steel Portrait of the Founder, engraved 
 by C. PI. Jeens. New and cheaper Issue, with Corrections. 
 Medium 8vo. Cloth elegant. 2ij. 
 " We are at length presented with a work on England'' s greatest public 
 
 school, worthy of the subject of which it treats. . . . A really valuable and 
 
 authentic history of Eton College." — Guardian. 
 
 European History, Narrated in a Series of Historical 
 
 Selections from the best Authorities. Edited and arranged by 
 
 E. M. Sewell and C. M. Yonge. First Series, crown 8vo. 6j. ; 
 
 Second Series, 1088-1228, crown 8vo. 6j. Third Edition. 
 
 " We kno%v of scarcely anything," says the Guardian, of this volume, 
 
 "which is so likely to raise to a higher level the average standard of 
 
 English education." 
 
 Faraday. — MICHAEL FARADAY. By J. H. Gladstone, 
 Ph.D., F.R.S. Second Edition, with Portrait engraved by Jeens 
 from a photogi-aph by J. Watkins. Crown 8vo. 4^. 6d. 
 PORTRAIT. Artist's Proof. Sj. 
 
 Forbes.— LIFE and letters OF JAMES DAVID 
 FORBES, F.R.S., late Principal of the United College in the 
 University of St. Andrews. By J. C. Shairp, LL.D., Principal 
 of the United College in the University of SL Andrews ; P. G. 
 Tait, M.A., Professor of Natural Philosophy in the University 
 of Edinburgh; and A. Adams-Reilly, F.R.G.S. 8vo. with 
 Portraits, Map, and Illustrations, l6s. 
 
 Freeman. — Works by Edward A. Freeman, D.C.L.,LL.D. :— 
 HISTORICAL ESSAYS. Third Edition. 8vo. los. 6d. 
 Contents :— /. ''The Mythical and Romantic Elements in Early 
 
 Ensrlish History;" II. "'The Continuity of English History ;" III. 
 
 "The Relations betzvcen the Crowns of [England and Scotland ;" IV.
 
 lo MACMILLAirS CATALOGUE OF WORKS IN 
 
 Free man — contimied. 
 
 " Si. Thomas of Canterbury and his Biograthers;" V. " The Reign of 
 Edward the Third:" VI. ''The Holy Roman Empire;" VII. ''The 
 Franks and the Gauls;" VIII. "The Earlv Sieges of Paris;" IX. 
 "Frederick the lirst, King of Italy ;" X. "The Emperor Frederick the 
 Second:" XI. "Charles the Bold ;" XII. " Presidential Government. 
 
 HISTORICAL ESSAYS. SECOND SERIES. 8vo. \os. 6d. 
 
 The principal Essays are: — "Ancient Greece and Mediceval Italy:" 
 ** Mr. Gladstones Homer and the Homeric Ages:" "The Historians 
 of Athens:" "The Athenian Democracy:" "Alexander the Great:" 
 "Greece during the Macedonian Period:" "Mommsttis History of Rome ^^ 
 "Lucius Cornelius Sulla :" " The Flavian Ca:sars." 
 
 HISTORICAL ESSAYS. Third Series. 8vo. 12s. 
 
 Contents : — " First Impressions of Rome." " The Illyrian 
 Emperors and their Land." "Augusta Jreverorum." "The Goths 
 at Ravenna." "Race and Language." "The Byzantine Empire." 
 "First Impressions of Athens.' "Mediaeval and Modern Greece." 
 "The Southern Slaves." "Sicilian Cycles." "The Normans at 
 Palermo." 
 
 COMPARATIVE POLITICS.— Lectures at the Royal Institution. 
 
 To which is added the " Unity of History," the Rede Lecture at 
 
 Cambridge, 1872. 8vo. 14J. 
 THE HISTORY AND CONQUESTS OF THE SARACENS. 
 
 Six Lectures. Third Edition, with New Preface. Crown 8vo. 
 
 y.ed. 
 
 HISTORICAL AND ARCHITECTURAL SKETCHES: 
 chiefly Italian. With Illustrations by the Autlior. Crown 8vo. 
 los. td. 
 
 HISTORY OF FEDERAL GOVERNMENT, from the Foun- 
 dation of the Achaian League to the Disruption of the United 
 States. VoL I. General Introduction. History of the Greek 
 Federations. 8vo. 21 s. 
 
 OLD ENGLISH HISTORY. With Fnje Coloured Maps. Fourth 
 Edition. Extra fcap. 8vo., half-bound. 6s. 
 
 " The book indeed is full of instruction and interest to students of alt 
 ages, and he must be a well-infot^ned man indeed who will not rise 
 from its perusal with clearer and more accurate ideas of a too muck 
 neglected portion of English history." — SPECTATOR. 
 
 HISTORY OF THE CATHEDRAL CHURCH OF WELLS, 
 
 as illustrating the History of the Cathedral Churches of the Old 
 
 Foundation. Crown 8vo. ys. 6d. 
 
 '* The history assumes in Mr. FreematCs hands a significance^ and, we 
 
 may add, a practical value as suggestive of what a cathedral ought to be^ 
 
 which make it well worthy of mention." — SPECTATOR.
 
 HISTORY, BIOGRAPHY, TRAVELS, ETC. ll 
 
 Freeman — conthmed. 
 THE GROWTH OF THE ENGLISH CONSTITUTION 
 FROM THE EARLIEST TIMES. Crown 8vo. 5j. Third 
 Edition, revised. 
 
 GENERAL SKETCH OF EUROPEAN HISTORY. Being 
 
 Vol. I. of a Historical Course for Schools edited by E. A. 
 
 Freeman. New Edition, enlarged with Maps, Chronological 
 
 Table, Index, &c. l8mo. 3^-. dd. 
 
 " It supplies the great want of a good foundation for historical teach- 
 
 ing. The scheme is an excellent one, and this instalment has been 
 
 accepted in a -way that promises much for the volumes that are yet 
 
 to appear." — Educational Times. 
 
 THE OTTOMAN POWER IN EUROPE : its Nature, its Growth, 
 and its Decline. With Three Coloured Maps. Crown 8vo. 'js. 6d. 
 
 Galileo. — the private life of GALILEO. Compiled 
 principally from his Correspondence and that of his eldest 
 daughter. Sister Maria Celeste, Nun in the Franciscan Convent of 
 S. Matthew in Arcetri. With Portrait. Crown 8vo. 7j. 6d. 
 
 GeddeS.— THE PROBLEM OF THE HOMERIC POEMS. 
 By W. D. Geddes, LL.D., Professor of Greek in the University 
 of Aberdeen. Svo, 14^. 
 
 Gladstone — Works by the Right Hon.W. E. Gladstone, M.P. :— 
 JUVENTUS MUNDI. The Gods and Men of the Heroic Age. 
 
 Crown Svo. cloth. With Map. los. 6d. Second Edition. 
 "Seldom" says the Athen^um, " out of the great poems themselves, 
 
 have these Divinities looked so majestic and respectable. To read these 
 
 brilliant details is like standing on the Olympian threshold and gazing at 
 
 the ineffable brightness within." 
 
 HOMERIC SYNCHRONISM. An inquiry into the Time and 
 Place of Homer. Crown Svo. 6j. 
 
 "/if »J impossible not to admire the immense range of thought and 
 inquiry which the author has displayed." — British Quarterly 
 Review. 
 
 Goethe and Mendelssohn {1S21— 1831). Translated from the 
 
 German of Dr. Karl Mendelssohn, Son of the Composer, by 
 M. E. Von Glehn. From the Private Diaries and Home 
 Letters of Mendelssohn, with Poems and Letters of Goethe never 
 before printed. Also with two New and Original Portraits, Fac- 
 similes, and Appendix of Twenty Letters hitherto unpublished. 
 Crown Svo. 5^. Second Edition, enlarged.
 
 12 MACMILLAN'S CATALOGUE OF WORKS IN 
 
 •' . . . Every page is full of interest, not merely to the musi- 
 cian, but to the general reader. The book is a very charming one, on 
 <i topic of deep and lasting interest." — Standard. 
 
 Goldsmid. — TELEGRAPH AND TRAVEL. A Narrative of 
 the Formation and Development of Telegraphic Communication 
 between England and India, under the orders of Her Majesty's 
 Government, with incidental Notices of the Countries traversed by 
 the Lines, By Colonel Sir Frederic Goldsmid, C.B., K.C.S.I., 
 late Director of the Government Indo-European Telegraph. With 
 numerous Illustrations and Maps. 8vo. 2ij. 
 " TJu merit of the zvork is a total absence of exaggeration, which does 
 
 not, however, preclude a vimdness and vigour of style not always character' 
 
 istic of similar narratives." — Standard. 
 
 Gordon. — LAST LETTERS FROM EGYPT, to which are added 
 
 Letters from the Cape. By Lady Duff Gordon. With a 
 
 Memoir by her Daughter, Mrs. Ross, and Portrait engraved by 
 
 Jeens. Second Edition. Crown 8vo. 9x. 
 
 " 77ie intending tourist 7uho wishes to acquaint himself with the country 
 
 he is about to visit, stands embarrassed amidst the riches presented for his 
 
 choice, and in the end probably rests contented with the sober usefulness of 
 
 Murray. He will not, however, if he is well advised, grudge a place in 
 
 his portmanteau to this book." — TIMES. 
 
 Gray. — china, a History of the Laws, Manners, and Customs 
 of the People. By the Venerable John Henry Gray. LL.D., 
 Archdeacon of Hong Kong, formerly H.B.M. Consular Chaplain 
 at Canton. Edited by W. Go w Gregor. With 150 Full-page Illustra- 
 tions, being Facsimiles of Drawings by a Chinese Artist. 2 Vols. 
 Demy 8vo. 3Zr. 
 "Its pages contain the most truthful and vivid picture of Chinese life 
 
 which has ever been published." — Atiien>eum. 
 
 " The only elaborate and valuable book 7ve have had Jbr many years 
 
 treating generally of the people of the Celestial Empire." — Academy. 
 
 Green. — Works by John Richard Green:— 
 
 HISTORY OF THE ENGLISH PEOPLE. Vol. I.— Early 
 
 England — Foreign Kings — The Charter — The Parliament. With 
 
 8 Coloured Maps. 8vo. its, VoL II. — The Monarchy, 
 
 1461 — 1540 ; the Restoration, 1540 — 1603. 8vo. i6j. Vol. III. 
 
 — Puritan England, 1603 — 1660; thej Revolution, 1660 — 16S8. 
 
 With 4 Maps. 8vo. ids. [Vol. I J', in the press. 
 
 "Mr. Green has done a work which probably no one but himself could 
 
 have done. He has read and assimilated the results of all the labours of 
 
 studettts during the last half century in the field oj English history, and 
 
 has given them a fresh meaning by his awn independent study. He has 
 
 fused together by the force of sympathetic imagination all that he has so
 
 HISTORY, BIOGRAPHY, TRAVELS, ETC. 13 
 
 Green. — contimied. 
 
 collected, and has ^iven us a vivid and forcible sketch of the march of 
 English histoiy. His book, both in Us aims and its cucomplishments, 
 rises far beyond any of a similar kind, and it will give the colouring to the 
 popular view to English history for some time to come." — Examiner. 
 
 A SHORT HISTORY OF THE ENGLISH PEOPLE. With 
 
 Coloured Maps, Genealogical Tables, and Chronological Annals. 
 Cro\vn 8vo. 8j. (>d. Sixty-third Thousand. 
 " To say that Air. Green's book is better than those which have pre- 
 ceded it, would be to cottvey a very inadequate impression of its merits. It 
 stands alone as the one general history of the country, for the sake of 
 which all others, if young and old are luise, will be speedily and surely set 
 aside." 
 
 STRAY STUDIES FROM ENGLAND AND ITALY. Crown 
 
 8vo. ?>s. 6d. Containing : Lambeth and the Archbishops — The 
 Florence of Dante — Venice and Rome — Early History of Oxford 
 — The District Visitor — Capri — Hotels in the Clouds — Sketches 
 in Sunshine, &c. 
 " One and all of the papers are eminently readable^'' — Athen^UM. 
 
 Guest. — LECTURES ON THE HISTORY OF ENGLAND. 
 By M. J. Guest. With Map?. Crown 8vo. 6j. 
 " The book is pleasant reading, it is full of information, much of it is 
 valuable, most of it is correct, told in a gossipy and intelligible way." — 
 Atiien^um. 
 
 Hamerton. — Works by p. G. Hamerton:— 
 THE INTELLECTUAL LIFE. With a Portrait of Leonardo da 
 Vinci, etched by Leopold, Flameng. Second Edition. Crown 
 los. 6d. 8vo. 
 " We have read the whole book with great pleasure, and zve can re- 
 cojnmend it strongly to all who can appreciate grave reflections on a very 
 important subject, excelletitly illustrated from the resources of a mind 
 stored zvith much reading and much keen obseivation of real life." — 
 Saturday Review. 
 
 THOUGHTS ABOUT ART. New Edition, revised, with an 
 
 Introduction. Crown 8vo. 2>s. 6d. 
 '^ A manual of sound and thorough criticism on art." — STANDARD. 
 
 Hill. — THE RECORDER OF BIRMINGHAM. A Memoir of 
 Matthew Davenport Hill, with Selections from his Correspondence, 
 By his Daughters Rosamond and Florence Davenport-Hill. 
 With Portrait engraved by C. H. Jeens. 8yo. l6s.
 
 14 MACMILLAN'S CATALOGUE OF WORKS IN 
 
 Hill.— WHAT WE SAW IN AUSTRALIA. By Rosamond 
 and Floren'CE Hill. Crown 8vo. los. dd. 
 " May be recommended as an interesting and truthful picture cf the 
 condition of those lends which are so distant and vet so much like home" 
 — Saturday Review. 
 
 Hodgson.— MEMOIR OF REV. FRANCIS HODGSON, 
 B. D., Scholar, Poet, and Divine. By his Son, the Rev. James 
 T. Hodgson, M.A. Containing numerous Letters from Lord 
 Byron and others. With Portrait engraved by Jeens. Two 
 Vols. Crown 8vo. l8x. 
 " A book that has added so much of a healthy nature to our ktunuledge 
 
 of Byron, and that contains so rich a store of delightful correspondence" 
 
 — Athen^um. 
 
 Hole.— A GENEALOGICAL STEMMA OF THE KINGS 
 OF ENGLAND AND FRANCE. By the Rev. C. Hole, 
 M.A,, Trinity College, Cambridge. On Sheet, \s. 
 
 A BRIEF BIOGRAPHICAL DICTIONARY. Compiled and 
 Arranged by the Rev. Charles Hole, M.A. Second Edition. 
 i8mo. 4f. (id. 
 
 Hooker and Ball. — MAROCCO AND THE GREAT 
 ATLAS: Journal of a Tour in. By Sir Joseph D. Hooker, 
 K.C.S.L, C.B., F.R.S., &c., and John Ball, F.R.S. With an 
 Appendix, including a Sketch of the Geology of Marocco, by 
 G. Maw, F.L.S., F.G.S. With Illustrations and Map. 8vo. 2IJ. 
 " // is long since any more interesting book of travels has issued from 
 
 our press." — Saturday Review. " This is, without doubt, one of the 
 
 most interesting and valuable books of travel published for many years." 
 
 —Spectator. 
 
 Hozier (H. M.) — Works by CAPTAIN Henry M. Hozikr, 
 late Assistant Military Secretary to Lord Napier of Magdala : — 
 
 THE SEVEN WEEKS' WAR ; Its Antecedents and Incidents. 
 Nro) and Cheaper Edition. With New Preface, Maps, and Plans. 
 Crown 8vo. hs. 
 
 THE INVASIONS OF ENGLAND : a History of the Past, with 
 Lessons for the Future. Two Vols. 8vo. i'is. 
 
 Hiibner.— A RAMBLE ROUND THE WORLD IN 1871. By 
 
 M. Le Baron HOb.ner, formerly Ambassador and Minister. 
 
 Translated by Lady Herbert. New and Cheaper Edition. 
 
 With numerous Illustrations. Crown 8vo. 6j. 
 
 " // is difficult to do ample justice ti this pleasant narrative 0/ travel 
 
 .'. . , ii does not contain a single dull paragraph." — Morning Post.
 
 HISTORY, BIOGRAPHY, TRAVELS, ETC. 15 
 
 Hughes. — Works by Thomas Hughes, Q.C, Author of "Tom 
 Brown's School Days." 
 ALFRED THE GREAT. New Edition. Crown 8vo. 6j. 
 MEMOIR OF A BROTHER. With Portrait of George Hughes, 
 after Watts. Engraved by Jeens. Crown 8vo. 5^. Sixth 
 Edition. 
 " The boy who can read this book without deriving from it some addi- 
 tional impulse towards honourable, manly, and independent conduct, has 
 no good stuff in him." — Daily News. 
 
 Hunt.— HISTORY OF ITALY. By the Rev. W. Hunt, M.A. 
 
 Being the Fourth Volume of the Historical Course for Schools. 
 
 Edited by Edward A. Freeman, D.C.L. i8mo. 3^. 
 " Mr. Hunt gives us a most compact but very readable little book, con- 
 taining in small compass a very complete outline of a complicated and 
 perplexing subject. It is a book which may be safely recommended to 
 others besides schoolboys." — ^JoHN Bull. 
 
 Irving.— THE ANNALS OF OUR TIME. A Diurnal of Events, 
 Social and Political, Home and Foreign, from the Accession of 
 Queen Victoria to the Peace of Versailles. By Joseph Irving. 
 Fourth Edition. 8vo. half-bound. i6j. 
 
 ANNALS OF OUR TIME. Supplement. From Feb. 28, 1871, 
 
 to March 19, 1874. 8vo. 4?. dd. 
 ANNALS OF OUR TIME. Second Supplement. From March, 
 
 1874, to the Occupation of Cyprus. 8vo. 4J. 6d. 
 " We have before us a trusty and ready guide to the events of the 
 past thirty years , available equally for the statesman, the politician, th'e 
 public writer, and the general reader." — Times. 
 
 James.— Works by Henry James, Jun. FRENCH POETS AND 
 NOVELISTS. Crown 8vo. &r. 6d. 
 Contents: — Alfred de Alusset ; Theophile Gautier ; Baudelaire; 
 Honore de Balzac ; George Sand ; TJie Two Amplres ; Turgenieff, &=c. 
 
 Johnson's Lives of the Poets. — The Six Chief 
 
 Lives — Milton, Dryden, Swift, Addison, Pope, Gray. With 
 Macaulay's " Life of Johnson." Edited, with Pi-eface, by 
 Matthew Arnold. Crown 8vo. 6s. 
 
 Killen. — ECCLESIASTICAL HISTORY OF IRELAND, from 
 the Earliest Date to the Present Time. By W. D. Killen, D.D., 
 President of Assembly's College, Belfast, and Professor of Eccle- 
 siastical History. Two Vols. 8vo. 25J. 
 " Those who have the leisure zuill do well to read these ftvo volumes. 
 
 Thev are full of interest, and are the result of great research. . . . IVe
 
 i6 MACMILLAN'S CATALOGUE OF WORKS IN 
 
 have no JusUation in recommending the -work to all who wish to impxme 
 their acquaintance with Irish history." — Spectator. 
 
 Kingsley (Charles). — Works by the Rev. Charles Kingsley, 
 M.A., Rector of Eversley aud Canon of Westminster. (For 
 other Works by the same Author, see Theological and Belles 
 Lettres Catalogues.) 
 
 ON THE ANCIEN REGIME as it existed on the Continent before 
 the French Revolution. Three Lectures delivered at the 
 Royal Institution. Crown 8vo. 6j. 
 
 AT LAST : A CHRISTMAS in the WEST INDIES. With aearly 
 Fifty Illustrations. Sixth Edition. Crown 8vo. 6j. 
 
 Mr. Kin^sley's dream of forty years was at last fulfilled, when he 
 started on a Christmas expedition to the West Indies, for the purpose of 
 becoming personally acquainted with the scenes which he has so vividly 
 described in " Westward Ho !" These two volumes are the journal of his 
 voyage. Records of natural history, sketches of tropical landscape, chapters 
 on education, views of society, all find their place. *' We can only say 
 that Mr. Kingsle^s account of a ' Christmas in the West Indies ' is in 
 every way worthy to be classed among his happiest productions." — 
 Standard. 
 
 THE ROMAN AND THE TEUTON. A Series of Lectures 
 delivered before the University of Cambridge. New and Cheaper 
 Edition, with Preface by Professor Max Muller. Crown 8vo. 6s. 
 
 f LAYS AND PURITANS, and other Historical Essays. With 
 Portrait of Sir Walter Raleigh. New Edition. Crown 8vo. 6s. 
 
 In addition to the Essay mentioned in the title, this volume contains 
 other two — one on "Sir Walter Raleigh and his Time," and one on 
 Froudis '^ History of England." 
 
 Kingsley (Henry).— tales OF OLD TRAVEL. Re- 
 
 narrated by Henry Kingsley, F.R.G.S. With Eight Illus- 
 trations by HUARD. Fifth Edition. Crown 8vo. 5j. 
 *' We know no better book for those who want knowledge or seek to 
 refresh it. As for the ' sensational,^ most novels are tame compared with 
 these narratives'' — Athen^euiiI. 
 
 Lang. — CYPRUS : Its History, its Present Resources and Future 
 
 Prospects. By R. Hamilton Lang, late H.M. Consul for the 
 
 Island of Cjrprus. With Two Illustrations and Four Maps. 8vo. I4J. 
 
 " The fair qt:d impartial account of her past and present to be found in 
 
 these pages has an undoubted claim on the attention of all intelligent 
 
 rftr</<rx.'"— Morning Post.
 
 HISTORY, BIOGRAPHY, TRAVELS, ETC. 17 
 
 Laocoon. — Translated from the Text of Les«ing, with Preface and 
 Notes by the Right Hon. Sir Robert J. Phillimore, D.C.L. 
 With Photographs. 8vo. 12s. 
 
 Leonardo da Vinci and his Works. — Consisting of a 
 
 Life of Leonardo Da Vinci, by Mrs. Charles W. Heaton, 
 Author of "Albrecht Dlirer of Niimberg," &c., an Essay on his 
 Scientific and Literary Works by Charles Christophek 
 Black, M.A., and an account of his more important Paintings 
 and Drawings. Illustrated with Permanent Photography Royal 
 8vo, cloth, extra gilt. 3IJ. 6d. 
 
 Liechtenstein. — HOLLAND HOUSE. By Princess Marie 
 Liechtenstein. With Five Steel Engravings by C. H. Jeens, 
 after Paintings by Watts and other celebrated Artists, and 
 numerous Illustrations drawn by Professor P. H. Delamotte, and 
 engraved on Wood by J. D. Cooper, W. Palmer, andjEWiTT & 
 Co. Third and Cheaper Edition. Medium 8vo. cloth elegant 
 i6j. 
 Also, an Edition containing, in addition to the above, about 40 
 Illustrations by the Woodbury-type process, and India Proofs of 
 the Steel Engravings. Two vols, medium 4to. half morocco 
 elegant. 4/. 45'. 
 
 Lloyd.— THE AGE OF PERICLES. A History of the Arts and 
 Politics of Greece from the Persian to the Peloponnesian War. 
 By W. Wat kiss Lloyd. Two Vols. 8vo. 21s. 
 " No stick account of Greek art of the best period has yet been brought 
 
 together in an English work Mr. Lloyd has produced a book oj 
 
 unusual excellence and interest." — Pall Mall Gazette. 
 
 Loch Etive and the Sons of Uisnach. — with Illus- 
 trations. 8vo. 14J. 
 " Not only have we Loch Etive of the present time brought before us in 
 colours as ti'ue as they are vivid, but stirring scenes which hcippe7ied on 
 the borders of the beautiful lake in semi- mythical times arc conjured up 
 with singular skill. Noivhere else do we remember to have met with such 
 a well-wntten account of the invasion of Scotlaiul by the Irish." — Globi;. 
 
 Loftie.— A RIDE IN EGYPT FROM SIOOT TO LUXOR, IN 
 1879 ; with Notes on the Present State and Ancient History of the 
 Nile Valley, and some account of the various ways of making the 
 voyage out and home. By the Rev, W. J. LoFTlE, With 
 Illustrations. Crown 8vo. \os. 6d. 
 " JVe prophesy that Mr. Loftie s little book will accompany man y 
 
 t'-avellers on the Nile in the coming ivinters." — Times.
 
 i8 MACMILLAN'S CATALOGUE OF WORKS IN 
 
 Lubbock. — ADDRESSES, POLITICAL AND EDUCA- 
 TIONAL. By Sir John Lubbock, Bart., M.P., D.C.L., 
 F.R.S. 8vo. Ss. bd. 
 
 Macdonell. — FRANCE SINCE THE FIRST EMPIRE. By 
 James Macdonell. Edited with Preface by his Wife. Crown 
 8vo, \Skortly. 
 
 Macarthur.— HISTORY OF SCOTLAND, By Margaret 
 
 Macarthur. Being the Third Volume of the Historical Course 
 
 for Schools, Edited by Edward A. Freeman, D.C.L. Second 
 
 Edition. i8mo. 2J. 
 
 "It is an excellent summary, unimpeachable as to facts, and putting 
 
 them in the clearest and most impartial light attaittable." — Guardian. 
 
 " No previous History oj Scotland of the same bulk is anything lUu so 
 
 trustworthy, or deserves to be so extensively used as a text-book," —GijOBK. 
 
 Macmillan (Rev. Hugh). — For other Works by same Author, 
 see Theological and Scientific Catalogues. 
 HOLIDAYS ON HIGH LANDS ; or, Rambles and Incidents in 
 search of Alpine Plants. Second Edition, revised and enlarged. 
 Globe 8vo. cloth. 6s. 
 "Botanical knowledge is blended with a love of nature, a pious en- 
 thusiasm, and a rich felicity of diction not to be met with in any works 
 of kindred character, if we except those of Hugh Miller" — TELEGRAPH. 
 
 Macready. — MACREADY'S REMINISCENCES AND SE- 
 
 LECTIONS FROM HIS DIARIES AND LETTERS. Edited 
 
 by Sir F. Pollock, Bart., one of his Executors. With Four 
 
 Portraits engraved by Jeens. New and Cheaper Edition. Crown 
 
 8vo. ^s. dd. 
 
 " As a careful and for the most pari just estimate of the stage during 
 
 a very brilliant petiod, the attraction of these volumes can scarcely be 
 
 surpassed. .... Readers who have no special interest in theatrical 
 
 matters, but enjoy miscellaneous gossip, will be allured from page tv page, 
 
 attracted by familiar names and by observations upon popular actors and 
 
 authors." — S pectato r. 
 
 Mahaffy. — Works by the Rev. J. P. Mahaffy, M.A,, Fellow of 
 Trinity Collie, Dublin : — 
 SOCIAL LIFE IN GREECE FROM HOMER TO MENAN- 
 DER. Third Edition, revised and enlaiged, with a new chapter 
 on Greek Art. Crown 8vo. ^s. 
 " // should be in the hands of all who desire thoroughly to understand 
 and to enjoy Greek literature, and to get an intelligent idea of the old Greek 
 li fe, political, social, and religious." — GUARDIAN.
 
 HISTOR V, BIOGRAPHY, TRA VELS, ETC. 19 
 
 Mahaffy. — continued. 
 RAMBLES AND STUDIES IN GREECE. With Illustrations. 
 
 Crown Svo. 10s. dd. New and enlarged Edition, with Map and 
 
 Illustrations. 
 'M singularly instructive and agreeable volume." — ATHKNiBUM. 
 
 ♦* Maori." — SPORT and WORK ON THE NEPAUL FRON- 
 TIER ; or, Twelve Years' Sporting Reminiscences of an Indigo 
 Planter. By "Maori." With Illustrations. Svo, I4r. 
 " Every day's adventures, with all the joys and perils of the chase, are 
 
 told as only a keen and cunning sportsman can tell them." — STANDARD. 
 
 Margary.— THE JOURNEY OF AUGUSTUS RAYMOND 
 
 MARGARY FROM SHANGHAE TO BHAMO AND BACK 
 
 TO MANWYNE. From his Journals and Letters, with a brief 
 
 Biographical Preface, a concluding chapter by Sir Rutherford 
 
 Alcock, K.C.B., and a Steel Portrait engraved by Jeens, and 
 
 Map, Svo. lOJ. dd. 
 
 " There is a manliness, a cheerful spirit, an inherent vigour which 
 
 was never overcome by sickness or debility, a tact which conquered th-' 
 
 prejudices of a strange and suspicious population, a quiet self -reliance, 
 
 always combined with deep religious feeling, unalloyed by either priggish- 
 
 ness, cant, or superstition, that ought to commend this volume to readers 
 
 sitting quietly at home who feel any pride in the high estimation accorded 
 
 to men of their race at Yarkand or at Khiva, in the heart of Africa, or 
 
 on the shores of Lake Seri-kul." — Saturday Review. 
 
 Markham. — northward ho ! Ey Captain Albert H. 
 Markham, R.N., Author of "The Great Frozen Sea," &c. 
 Including a Narrative of Captain Phipps's Expedition, by a Mid- 
 shipman. With Illustrations. Crown Svo. lOJ. 6d. 
 " Captain -Markham' s interesting volume has the advantage of being 
 
 written by a man who is prcuticaVy conversant with the subject.'^ — Pall 
 
 Mall Gazette. 
 
 Martin.— THE history of LLOYD'S, AND OF MARINE 
 INSURANCE IN GREAT BRITAIN. With an Appendix 
 containing Statistics relating to Marine Insurance. By Frederick 
 Martin, Author of "The Statesman's Year Book." Svo. 14J. 
 
 Martineau. — biographical sketches, 1852— 1875, 
 
 By Harriet Martineau. With Additional Sketches, and Auto- 
 biographical Sketch. Fifth Edition. Crown Svo. ds. 
 
 MaSSOn (David).— For other Works by same Author, see Philo- 
 sophical and Belles Leti res Catalogues. 
 
 B 2
 
 20 MACMILLAN'S CATALOGUE OF WORKS IN 
 
 Masson (David).— (W/z/z/w,/. 
 
 CHATTERTON : A Story of the Year 1770. By David Masson, 
 LL. D., Professor of Rhetoric and English Literature in the Uni- 
 versity of Edinburgh. Crown 8vo. ^s. 
 
 THE THREE DEVILS : Luther's, Goethe's, and Milton's ; and 
 other Essays. Crown 8vo. ^s. 
 
 WORDSWORTH, SHELLEY, AND KEATS; and other 
 Essays. Crown 8vo. 5^. 
 
 Mathews.— LIFE OF CHARLES J. MATHEWS. Chiefly 
 
 Autobiographical. With Selections from his Correspondeancc and 
 
 Speeches. Edited by Charlks Dickens. 
 
 *' One of the pleasantest and most readable books of the season. From 
 
 first to last these two volumes are alive 'vith the inimiiable artist and 
 
 comedian. . . . The whole book is full of life, vigour, and wity and ei'tn 
 
 through some of the gloomy episodes of volume two, will repay nwst careful 
 
 study. So compute, so varied a picture of a man's life is rarely to be met 
 
 •mth." — Standard. 
 
 Maurice.— THE FRIENDSHIP OF BOOKS; AND OTHER 
 LECTURES. By the Rev. F. D. Maurice. Edited with Pre- 
 face, by Thomas Hughes, Q.C. Crown 8vo. \os. 6d. 
 
 Mayor (J. E. B.)— WORKS edited by John E. B. Mayor, 
 M. A., Kennedy Professor of Latin at Cambridge : — 
 
 CAMBRIDGE IN THE SEVENTEENTH CENTURY. Part II 
 Autobiography of Matthew Robinson. Fcap. 8vo. ^s. 6d. 
 
 LIFE OF BISHOP BEDELL. By his Son. Fcap. 8vo. 3^. 6d. 
 
 Melbourne.— MEMOIRS OF THE RT. HON. WILLIAM, 
 
 SECOND VISCOUNT MELBOURNE. By W. M. Torrens, 
 
 M.P. With Portrait after Sir. T. Lawrence. Second Edition. 
 
 2 Vols. 8vo. 32J. 
 
 ♦' As might be expected, he has produced a book whieh will commarul 
 
 and reivard attention. It contains a great dml of valuable matter and 
 
 a great deal of animated, elegant writing."— Quarterly Review. 
 
 Mendelssohn.— LETTERS and RECOLLECTIONS. By 
 Ferdinand Hiller. Translated by M. E. Von Glehn. Witli 
 Portrait from a Drawing by Karl MOller, never before pub- 
 lished. Second Edition. Cfown 8vo. Js. 6d. 
 •* This is a very interesting addition to our knowledge of the great 
 
 German composer. It reveals him to us under a neiv light, as tht warm- 
 
 hearted comrade, the musician whose soul was in his work, and the hom^- 
 
 Icving, domestic man" — Standard.
 
 HISTORY, BIOGRAPHY, TRAVELS, ETC. 
 
 Merewether.— BY SEA AND BY LAND. Being a Trip 
 through Egypt, India, Ceylon, Australia, New Zealand, and 
 America — all Round the World. By HeNry Alworth Mere- 
 wether, one of Her Majesty's Counsel. Crown 8vo. 8j. 6d. 
 
 Michael Angelo Buonarotti ; Sculptor, Painter, Architect. 
 
 The Story of his Life and Labours. By C. C. Black, M.A. 
 
 Illustrated by 20 Permanent Photographs. Royal 8vo. cloth 
 
 elegant, 3IJ. 6d. 
 " The story of Michael Angelo s life remains interesting whatever be the 
 manner of telling it, and supported as it is by this beautiful series of photo- 
 graphs, the volume must take rank among the most splendid of Christmas 
 books, fitted to serve and to outlive the season" — Pall Mall Gazette. 
 
 Michelet— A SUMMARY OF MODERN HISTORY. Trans- 
 lated from the French of M. Michelet, and continued to the 
 present time by M. C. M. Simpson. Globe Svo. 4?. da. 
 
 Milton. — LIFE OF JOHN MILTON. Narrated in connection 
 with the Political, Ecclesiastical, and I^iterary History of his Time. 
 By David Masson, M.A., LL.D., Professor of Rhetoric and 
 English Literature in the University of Edinburgh. With Portraits. 
 Vol. L 18^. Vol. IL, 1638— 1643. Svo. i6j. Vol. III. 
 1643 — 1649. Svo. i8j. Vols. IV. and V. 1649 — 1660. 32J. 
 Vol. VI. concluding the work in the press. 
 This work is not only a Biography, but also a continuous Political, Eccle- 
 siastical, and Literary History of Etigland through Milton's whole time. 
 
 Mitford (A. B.)— TALES OF OLD JAPAN. By A. B. 
 
 MlTFORD, Second Secretary to the Bntish Legation in Japan. 
 
 With upwards of 30 Illustrations, drawn and cut on Wood by 
 
 Japanese Artists. New and Cheaper Edition. Crown Svo. ds. 
 
 " These very original volumes will always be interesting as memorials 
 
 of a most exceptional societv, while regarded simply as (ales, they are 
 
 sparkling, sensational, and dramatic." — Pall Mall Gazette. 
 
 Monteiro. — angola and the river Congo. By 
 
 Joachim Monteiro. With numerous Illustrations from Sketches 
 taken on the spot, and a Map. Two Vols, crown Svo, 2ls. 
 
 Morison. — the life and times of saint Bernard, 
 
 Abbot of Clairvaux. By James Cotter Morison, M.A. New. 
 Edition. Crown Svo. 6s. 
 
 Moseley. — NOTES BY A NATURALIST ON THE CBAL- 
 LENGER : being an Account of various Observations made 
 during the Voyage of H.M.S. Challenger, Round tiie World,
 
 22 MACMILLAN'S CATALOGUE OF WORKS IN 
 
 in 1872-76. By 11. N. MoSELEV, F.R.S., Member of the 
 
 Scientific Staff of the Challenger. 8vo. with Maps, Colotued Plates, 
 
 and Woodcuts. 21J, 
 
 " This is certainly the most interesting and suggestive book, descriptive 
 
 of a naturalist'' s travds, which has been published since Mr. Darivin's 
 
 ^jfournal of Researches ' appeared, more thanjorty years ago." — Nature. 
 
 ' ' IVe cannot point to any book of travels in our day more vivid in its 
 
 powers of description, more varied in its subject matter, or pwre attractive 
 
 ij (Very educated reader." — Saturday Review. 
 
 Murray.— ROUND ABOUT FRANCE. By E. C. Grenville 
 Murray. Crown 8vo, 7^. 6d. 
 " These short essays are a perfect mine of information as to. the present 
 condition and future prospects of political parti* s in France. , . . It is 
 at once extremely interesting and exceptionally ittstrtutive on a subject on 
 which few English people are well informed." — Scotsman. 
 
 Napier.— MACVEY NAPIER'S SELECTED CORRE- 
 SPONDENCE. Edited by his Son, Macvey Napier. Svo. 14J. 
 The Times says : — ''It is replete with useful material for the bio- 
 graphers of many distinguished writers of the generation which is passing 
 away. Since reading it we understand several noteworthy men, and 
 Brougham in particular, far better than we did before. " " ^ would be 
 useless to attempt within our present limits to give any adequate idea of the 
 abundance of interesting passages which meet us in the letters of Macaulay, 
 Brougham, Carlyle,yeffrey, Senior, and many other well-known writer i. 
 Especially piquant are fej^rey^s periodical criticisms on the contents of 
 the Review which he had formerly edited." — Pall Mall Gazette. 
 
 Napoleon.— THE HISTORY OF NAPOLEON L By P. 
 Lanfrey. a Translation with the sanction of the Author, 
 4 vols, Svo. Vols. I. II. and III. price I2J, each. VoL IV, 
 
 The Pall Mall Gazette says it is " one of the most striking 
 pieces of historical composition of which France has to boast, " and the 
 Saturday Review calls it *'an excellent translation of a work on every 
 ground desetving to be translated. It is unquestionably and immeasurably 
 the best that has been produced. It is in /act the only work to which we 
 can turn for an accurate and trustworthy narrative of that extraordinary 
 career. . . . The book is the best and indeed the only trustworthy history 
 of Napoleon which has been written." 
 
 Nichol.— TABLES OF EUROPEAN LITERATURE AND 
 HISTORY, A.D, 200—1876. By J. Nichol, LL,D,, Professor 
 of English Language and Literature, Glasgow. 4to, 6x. dd. 
 TABLES OF ANCIENT LITERATURE AND HISTORY, 
 B,c 1500— A.D. 2CX). By the same Author. 410. 4^.60^.
 
 HISTORY, BIOGRAPHY, TRAVELS, ETC. 23 
 Nordenskiold's Arctic Voyages, 1858-79. — with 
 
 Maps and numerous Illustrations. 8yo. i6j. 
 " A volume of great interest and muck scientijk value." — NATURE, 
 
 pliphant (Mrs.).— THE MAKERS OF FLORENCE : Dante 
 Giotto, Savonarola, and their City. By Mrs. Oliphant. With 
 numerous Illustrations from drawings by Professor Delamotte, 
 and portrait of Savonarola, engraved by Jeens. Second Edition. 
 Medium 8vo. Cloth extra, zis. 
 " We are grateful to Mrs. Oliphant for her eloquent and beautiful 
 
 sketches of Dante, Fra Angelica, and Savonarola. They are picturesque, 
 
 full of life, and rich in detail, and they are charmingly illustrated by the 
 
 art of the engraver." — Spectator. 
 
 Oliphant.— THE DUKE AND THE SCHOLAR ; and other 
 Essays. By T. L. Kington Oliphant. 8vo. 7^. dd. 
 ' ' This volume contains one of the most beautiful biographical essays we 
 have seen since Mcuaulay's days." — Standard. 
 
 Otte.— SCANDINAVIAN HISTORY. By E. C. Otte. With 
 Maps. Extra fcap. 8vo. dr. 
 
 Owens College Essays and Addresses. — By Pro. 
 fessors and Lecturers of Owens College, Manchester. 
 Published in Commemoration of the Opening of the New College 
 Buildings, October 7th, 1873. 8vo. 14J. 
 
 Palgrave (R. F. D.)— the HOUSE OF COMMONS; 
 Illustrations of its History and Practice. By Reginald F. D. 
 Palgrave, Clerk Assistant of the House of Commons. New 
 and Revised Edition. Crown 8vo. 2s. 6d. 
 
 Palgrave (Sir F.) — HISTORY OF NORMANDY AND 
 OF ENGLAND. By Sir Francis Palgrave, Deputy Keeper 
 of Her Majesty's Public Records. Completing the History to the 
 Death of Williara Rufus. 4 Vols. 8vo. 4/. \s. 
 
 Palgrave (W. G.)— a narrative of a year's 
 
 JOURNEY THROUGH CENTRAL AND EASTERN 
 
 ARABIA, 1862-3. By William Gifford Palgrave, late of 
 
 the Eighth Regiment Bombay N. I. Sixth Edition. With Maps, 
 
 Plans, and Portrait of Author, engraved on steel by Jeens. Crown 
 
 8vo. 6s. 
 
 " He has not only written one of the best books on the Arabs and one 
 
 of the best books on Arabia, but he has done so in a manner that must 
 
 command the respect no less than the admiration of his felloiv-countty- 
 
 mm. "—Fortnightly Review.
 
 24 MACMILLA ATS CATALOGUE OF WORKS TN 
 
 Palgra ve . — continiud. 
 ESSAYS ON EASTERN QUESTIONS. By W. Gifford 
 Palgrave. 8vo. lOf. (id. 
 
 " These essays are full of aiucdote and itUerest. The book is decidedly 
 a valuable addition to the stock of literature on -which men must 
 base their opinion of the difficult social and political problems sui^- 
 gated by the designs of Russia, the capacity of Mahometans tor 
 sovereign tv, and the good government and retention of Itulia.^ — 
 Saturi av Review. 
 
 DUTCH GUIANA. With Maps and Plans. 8vo. ^s. 
 
 "His pages are nearly exhaustive as far as facts and statistics go, 
 while they are lightened by graphic social sketches as well as sparkling 
 descriptions of scenery." —^KIMKHKX REVIEW. 
 
 Patteson.— LIFE and letters of JOHN COLERIDGE 
 
 PATTESON, D. D., Missionary Bishop of the Melanesian Islands. 
 
 By Charlotte M. Yonge, Author of " The Heir of Redclyffe." 
 
 With Portraits after Richmond and from Photograph, engraved by 
 
 Jeens. With Map. Fifth Edition, Two Vols. Crown 8vo. izs. 
 
 *' Miss Yong^s work is in one respect a model biography, ft is made 
 
 up almost entirely of Patteson' s own letters. Aware that he had left hts 
 
 home once and J or all, his correspondence took the form of a diary, and 
 
 as we read on we come to know the man, and to love him almost as if wt 
 
 Jiad seen him." — ATHENi«UM. "Such a life, with its grand lessons oj 
 
 unselfishness, is a blessing and an Jwnour to the age in which it is lived ; 
 
 the biography cannot be studied without pleasure and profit, and indeed 
 
 we should think Utile of the man who did not rise from the study of it 
 
 better and wiser. Neither the Church nor tht nation which produces 
 
 such sons need ever despair of its future." — SATURDAY Review. 
 
 Pauli. — PICTURES OF OLD ENGLAND. By Dr. Reinhold 
 Pauli. Translated, with the approval of the Author, by El. C. 
 Otte. Cheaper Edition. Crown 8vo. dr. 
 
 Payne. — a history OF EUROPEAN COLONIES. By 
 E, J. Payne, M.A. With Maps. i8mo. 45. 6rf. 
 The Times says: — " We have seldom met with a historian capable of 
 forming a more comprehensive. Jar-seeing, and unprejudiced estimate oJ 
 events atid peoples, and we can commend this little loork as one certain to 
 prove of the highest interest to all thoughtful readers." 
 
 Persia. — EASTERN PERSIA. An Account of the Journeys of 
 the Persian Boundary Commission, 1870-1-2. — Vol. I. The Geo- 
 graphy, with Narratives by Majors St. John, Lovett, and Euan 
 .Smith, and an Introduction by Major-General Sir Frederic 
 Gni.DSMiD, C.B., K.C.S.I., British Commissioner and Arbitrator.
 
 HISTORY, BIOGRAPHY, TRAVELS, ETC. 25 
 
 With Maps and Illustrations. — Vol. II. The Zoology aiiJ Geology. 
 By W. T. Blanford, A.R.S.M., F.R.S. With Coloured Illus- 
 trations. Two Vols. 8vo. 42J. 
 " The volumes largely increase our store oj {nformation about 
 
 countries with which Englishuien ought to be familiar 
 
 They throw into the shade all that hitherto has appeared in our tongue 
 respecting the local features of Persia, its scenery, its resources, even its 
 social condition. Thev contain also abundant evidence of English 
 endurance, daring, and spirit." — Times. 
 
 Prichard.— THE ADMINISTRATION OF INDIA. From 
 1859 to 1868. The First Ten Years of Administration under the 
 Crown. By T. T. Prichard, Barrister-at-Law. Two Vols. 
 Demy 8vo. With Map. 2ls. 
 
 Raphael. — Raphael of urbino and his father 
 
 GIOVANNI SANTI. By J. D. Passavant, formerly Director 
 of the Museum at Frankfort. With Twenty Permanent Photo- 
 graphs. Royal 8vo. Handsomely bound. 31J. 6d. 
 The Saturday Review says of them, " We have seen not a few 
 
 elegant specimens of Mr. Woodbury s new process, but we have seen 
 
 none that equal these. " 
 
 Reynolds.— SIR JOSHUA REYNOLDS AS A PORTRAIT 
 PAINTER. AN ESSAY. By J. Churton Collins, B.A. 
 Balliol College, Oxford. Illustrated by a Series of Portraits of 
 distingoiished Beauties of the Court of George III. ; reproduced 
 in Autotype from Proof Impressions of the celebrated Engravings, 
 by Valentine Green, Thomas Watson, F. R. Smith, E. 
 Fisher, and others. Folio half-morocco. /^$ Ss. 
 
 Rogers (James E. Thorold). — HISTORICAL GLEAN- 
 INGS : A Series of Sketches. Montague, Walpole, Adam Smith, 
 Cobbett. By Prof. Rogers. Crown 8vo. 4s. 6d. Second Series. 
 Wiklif, Laud, Wilkes, and Home Tooke. Crown 8vo. 6s. 
 
 Routledge.— CHAPTERS in THE HISTORY OF POPULAR 
 
 PROGRESS IN ENGLAND, chiefly in Relation to the Freedom 
 
 of the Press and Trial by Jury, 1660 — 1820. With application to 
 
 later years. By J. Routledge. 8vo. i6j. 
 
 " The volume abounds in facts aftd information, almost always useful 
 
 and often curious.''' — Times. 
 
 Rumford.— COUNT RUMFORD'S COMPLETE WORKS, 
 with Memoir, and Notices of his Daughter. By George Ellis. 
 Five Vols. 8vo. 4/. 14^. 6d.
 
 26 MACMILLAN'S CATALOGUE OF WORKS IN 
 Sceley (Professor). — lectures and ESSAYS. By 
 
 J. R. Seeley, M.A. Professor of Modem History in the 
 
 University of Cambridge. 8vo. lOf. bd. 
 Contents : — Roman Imperialism : i. The Great Roman Revolu- 
 tion; 2. The Proximate Cause of the Fall of the Roman Empire ; 
 The Later Empire. — Milton's Political Opinions — Milton's Poetry 
 — Elementary Principles in Art — Liberal Education in Universities 
 — English in Schools — The Church as a Teacher of Morality — The 
 Teaching of Politics : an Inaugural Lecture delivered at Cambridge. 
 
 Shelburne.— LIFE OF WILLIAM, EARL OF SHELBURNE, 
 
 AFTERWARDS FIRST MARQUIS OF LANSDOWNE. 
 
 With Extracts from his Papers and Correspondence. By Lord 
 
 Edmond Fitzmaurice. In Three Vols. 8vo. Vol. I. 1737— 
 
 1766, 125. ; Vol.tll. 1766— 1776, I2J. ; Vol. III. 1776 — 1805. i6j. 
 
 "Lord Edmond Fitzmaurice has succeeded in placing before us a 
 
 wealth of new matter, which, while casting valuable and much-needed 
 
 light on several obscure passages in the political history of a hundred 
 
 years ago, has enabled us for the first time to form a clear and consistent 
 
 idea of his ancestor." — Spectator. 
 
 Sime. — HISTORY OF GERMANY. By James Sime, M.A. 
 i8mo. 3.f. Being Vol. V. of the Historical Course for Schoolf: 
 Edited by Edward A. Freeman, D.C.L. 
 " This is a remarkably clear and impressive History of Germany.'^ — 
 Standard. 
 
 Squier.— PERU : INCIDENTS OF TRAVEL AND EX- 
 PLORATION IN THE LAND OF THE INCAS. By E. G. 
 
 Squier, M.A., F.S.A., late U.S. Commissioner to PenL With 
 300 Illustrations. Second Edition, 8vo. 2ij. 
 The Times says : — " No more solid and trustworthy contribution hcui 
 been made to an accurate knowledge of what are among the most wonderful 
 ruins in the world. The work is really what its title implies. While oj 
 the greatest importance as a contribution to Pet uvian archceology, it is also a 
 thoroughly entertaining and instructive narrative of travel. Not the least 
 important featuremustbeconsideredthenttmerouswellexecuted illustrations." 
 
 Strangford. — EGYPTIAN shrines AND SYRIAN SEPUL- 
 CHRES, including a Visit to Palmyra. By Emily A. Beaufort 
 (Viscountess Strangford), Author of " TTie Eastern Shores of 
 the Adriatic." New Edition. Crown Svo. "js. 6d. 
 
 Tait.— AN ANALYSIS OF ENGLISH HISTORY, based upon 
 Green's "Short History of the English People." By C. W. A. 
 Tait, M.A., Assistant Master, Clifton College. Crown Svo. 
 3s. 6d.
 
 ' ni^rORY, BIOGRAPHY, TRAVELS, ETC. 27 
 
 Tait.— CATHARINE AND CRAUFURD TAIT, WIFE AND 
 SON OF ARCHIBALD CAMPBELL, ARCHBISHOP OF 
 CANTERBURY : a Memoir, Edited, at the request of the Arch- 
 bishop, by the Rev. W. Benham, B.D., Vicar of Margate, and 
 One of the Six Preachers of Canterbury Cathedral. With Two 
 Portraits engraved by Jeens. Crown 8vo. 12s. 6d. 
 " The volume can scarcely fail to be read widely atid with deep interest. 
 . . . It is difficult to put it do7un when once taken in hand, still more 
 difficult to get through it without emotion. , . . fVe commend the volume 
 to those who knew Catharine and Craufurd Tait as one which will bring 
 back to their minds recollections of their characters as true as the recollec- 
 tions of the faces brought back by the two excellent portraits which adorn 
 the book ; while to those who knew them not, we commend it as containing 
 the record of two noble Christian lives, which it will be a pleasure to 
 them to conte7nplate and an advantage to emulate." — Times. 
 
 Thomas. — the life of JOHN THOMAS, Surgeon of the 
 ' * Eari of Oxford " East Indiaman, and First Baptist Missionary to 
 Bengal. By C. B. Lewis, Baptist Missionary. 8vo. \qs. 6d. 
 
 Thompson. — history of ENGLAND, By Edith Thomp- 
 SON. Being Vol. II. of the Historical Course for Schools, Edited 
 by Edward A. Freeman, D.C.L. New Edition, revised and 
 enlarged, with Maps. i8mo. 2s. 6d. 
 *' Freedom fro fn prejudice, simplicity of style, and cucuracy of state- 
 ment, are the characteristics of this volume. It is a trustworthy text-book, 
 and likely to be generally serviceable in schools" — Pall Mall Gazette. 
 ^^ In its great accuracy and correctness of detail it stands far ahead of the 
 general run of school manuals. Its arrangement, too, is clear, and its 
 style simple aiui straightjorward." — Saturday Review. 
 
 Todhunter. — the conflict of studies ; and 
 
 OTHER ESSAYS ON SUBJECTS CONNECTED WITH 
 EDUCATION. By Isaac Todhunter, M.A., F.R.S., late 
 Fellow and Principal Mathematical Lecturer 01 St. John's College, 
 Cambridge. 8vo. lOj. dd. 
 
 Trench (Archbishop). — For other Works by the same Author, 
 
 see Theological and Belles Lettres Catalogues, and 
 
 page 30 of this Catalogue. 
 GUSTAVUS ADOLPHUS IN GERMANY, and other Lectures 
 
 on the Thirty Years' War. Second Edition, revised and enlarged. 
 
 Fcap. 8vo. 4r.' 
 PLUTARCH, HIS LIFE, HIS LIVES, AND HIS MORALS. 
 
 Five Lectures. Second Edition, enlarged. Fcap. 8vo. 3j. dd. 
 LECTURES ON MEDIEVAL CHURCH HISTORY. Being 
 
 the substance of Lectures delivered in Queen's College, London. 
 
 Second Edition, revised. 8vo. \2s.
 
 28 MACMILLAN'S CATALOGUE OF WORKS IN 
 
 Trench (Maria).— THE LIFE OF ST. TERESA. By Maria 
 Trench. With Portrait engraved by Jeens- Crown 8vo, cloth 
 extra. &f. 6a'. 
 *' A book of rare interest." — ^JoHN Bull. 
 
 Trench (Mrs. R.)— REMAINS OF THE LATE MRS. 
 RICHARD TRENCH. Being Selections from her Journals, 
 Letters, and other Papers. Edited by Archbishop Trench. 
 New and Cheaper Issue, with Portrait. 8vo. 6j. 
 
 TroUope. — a HISTORY OF THE COMMONWEALTH OF 
 FLORENCE FROM THE EARLIEST INDEPENDENCE 
 OF THE COMMUNE TO THE FALL OF THE REPUBLIC 
 IN 1831. By T. Adolphus Trollope. 4 Vols. 8vo. Half 
 morocco. 2 1 J. 
 
 Uppingham by the Sea. — a narrative OF THE 
 YEAR AT BORTH. By J. H. S. Crown 8vo. 3J. bd. 
 
 Victor Emmanuel II., First King of Italy— his 
 
 LIFE. By G. S. Godkin. 2 vols., crown 8vo. i6j. 
 ^^ An extremely clear and interesting history 0/ one of the moU 
 important changes of later /»;««."— EXAMINER. 
 
 Wallace.— THE MALAY ARCHIPELAGO: the land of the 
 
 Orang Utan and the Bird of Paradise. By Alfred Russel 
 
 Wallace. A Narrative of Travel with Studies of Man and 
 
 Nature. With Maps and numerous Illustrations. Sixth Edition. 
 
 Crown 8vo. "js. 6d. 
 
 " The result is a vivid picture of tropical life, which may be read with 
 
 unflagging interest, and a sufficient account of his scientific conclusions to 
 
 stimulate our appetite -without wearying us by detail. In short, we may 
 
 safely say that we have never read a more agreeable book of its kind." — 
 
 Saturday Review. 
 
 Ward.— A HISTORY OF ENGLISH DRAMATIC LITERA- 
 
 TURE TO THE DEATH OF QUEEN ANNE. By A. W. 
 
 Ward, M.A., Professor of History and English Literature in 
 
 Owens College, Manchester. Two Vols. 8vo. 32^. 
 
 '^ As full of interest as of information. To students of dramatic 
 
 literature invaluable, and may be equally recommended to readers for 
 
 4ntre pastime.^' — Pall Mall Gazette. 
 
 "Ward (J.)— EXPERIENCES OF A DIPLOMATIST. Being 
 recollections of Germany founded on Diaries kept during the years 
 1840 — 1870. By John Ward, C.B., late H.M. Minister- 
 Resident to the Hanse Towns. 8vo. los. bd.
 
 HISTORY, BIOGRAPHY, TRAVELS, ETC, 29 
 
 Waterton (C.)— WANDERINGS IN SOUTH AMERICA, 
 THE NORTH-WEST OF THE UNITED STATES, AND 
 THE ANTILLES IN 1812, i8i6, 1820, and 1824. With 
 Original Instructions for the perfect Preservation of Birds, etc., 
 for CJabinets of Natural History. By Charles Waterton. 
 New Edition, edited with Biographical Introduction and Explana- 
 tory Index by the Rev. J. G. Wood, M.A. With 100 Illustrations. 
 Cheaper Edition. CroM n 8vo. 6s. 
 
 Wedgwood. — ^JOHN WESLEY AND THE EVANGELICAL 
 
 REACTION of the Eighteenth Century. By JuLiA Wedgwood. 
 Crown 8vo. 8j. 6d. 
 
 WhewelL— WILLIAM WHEWELL, D.D., late Master of 
 Trinity College, Cambridge. An Account of his Writings, with 
 Selections from his Literary and Scientific Correspondence. By 
 I. ToDHUNTER, M.A., F.R.S. Two Vols. 8vo. 25J. 
 
 White.— THE NATURAL HISTORY AND ANTIQUITIES 
 OF SELBORNE. By (Gilbert White. Edited, with Memoir 
 and Notes, by Frank Buckland, A Chapter on Antiquities by 
 Lord Selborne, Map, &c., and numerous Illustrations by 
 P, H. Delamotte, Royal 8vo. Cloth, extra gilt. Cheaper 
 Issue. 2 1 J. 
 Also a Large Paper Edition, containing, in addition to the above, 
 upwards of Thirty Woodburytype Illustrations from Drawings 
 bv Prof. Delamotte. Two Vols. 4to. Half morocco, elegant. 
 4/. 4J-. 
 " yJ^r. Delamotte s charming illustrations are a worthy decoration of so 
 
 dainty a book. They bring Selborne before us, and really help us to 
 
 understand why Whites love for his native place ncver grew cold." — 
 
 Times. 
 
 Wilson.— A MEMOIR OF GEORGE WILSON, M. D., 
 F.R.S.E., Regius Professor of Technology in the University of 
 Edinburgh. By his Sister. New Edition. Crown 8vo. 6j. 
 
 Wilson (Daniel, LL.D.) — Works by Daniel Wilson, 
 LL.D., Professor of History and English Literature in University 
 College, Toronto : — 
 PREHISTORIC ANNALS OF SCOTLAND. New Edition, 
 
 with numerous Illustrations. Two Vols, demy 8vo. 36^. 
 " One of the most interesting, learned, and elegant works we haze 
 seen for a longtime.'" — WESTMINSTER Review. 
 
 PREHISTORIC MAN : Researches into the Origin of Civilization 
 in the Old and New World. New Edition, revised and enlarged 
 throughout, with numerous Illustrations and two Coloured Plates. 
 Two Vols. 8vo. -Ss.
 
 30 MACMILLAN'S CATALOGUE OF 
 
 Wilson. — continued. 
 
 "A valuable work pleasantly written and well worthy of attention 
 both by students and general readers" — Academy. 
 
 CHATTERTON : A Bic^aphical Study, By Daniel Wilson, 
 LL.D., Professor of History and English Literature in University 
 College, Toronto. Crown ovo. dr. (>d. 
 
 Yonge (Charlotte M.)— works by Charlotte M. Yonge, 
 Author of "The Heir of RedclyfTe," &c, &c. :— 
 
 A PARALLEL HISTORY OF FRANCE AND ENGLAND : 
 consisting of Outlines and Dates. Oblong 4to. 3J. 6d. 
 
 CAMEOS FROM ENGLISH HISTORY. From RoUo to Edward 
 II. Extra fcap. 8vo. Third Edition. 5j. 
 
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