The Economic
and Social Review,
Vol 12, No. 4, July 1981, pp.
301-314
A New L o o k at the Irish L a n d Question*
B A R B A R A LEWIS SOLOW
Boston University
Precis: Behind the land question in nineteenth century Ireland lie two different conceptions of property
and hence of landlord-tenant relations. One reflects communal notions and stresses tenants' prescriptive
rights; the other reflects the idea of private property and stresses economically efficient outcomes.
They can be described by simple economic models. Each is associated with a concept of rent and of
the appropriate rent-setting institutions. During the nineteenth century, Irish land law was remodelled
from a basis in equity and natural law to new concepts of contract and economic development.
Attempts to move landlord-tenant relations and rent-setting institutions in this direction were only
partially successful, and both economic and political developments are seen as the outcome of the co­
existence of both traditions and the struggle between them.
The meaning o f p r o p e r t y is n o t constant. The actual i n s t i t u t i o n , and
the way people see i t , and hence the meaning they give to the w o r d ,
all change over t i m e . The changes are related t o changes i n the purpose
w h i c h society or the d o m i n a n t classes i n society expect the i n s t i t u t i o n
o f p r o p e r t y t o serve . . . When these expectations change, p r o p e r t y
becomes a controversial subject: there is n o t o n l y argument about w h a t
the i n s t i t u t i o n o f p r o p e r t y ought to be, there is also dispute about w h a t
i t is . . . The facts about a man-made i n s t i t u t i o n w h i c h creates and
maintains certain relations between people — and that is w h a t p r o p e r t y
is — are never simple . . . H o w people see the t h i n g . . . is b o t h effect
and cause o f w h a t i t is at any t i m e : . . . p r o p e r t y is b o t h an i n s t i t u t i o n
and a concept and . . . over time the i n s t i t u t i o n and the concept
influence each other.
— C. B . Macpherson, Property: Mainstream and Critical
*This paper was presented as the 1980 Finlay Lecture in University College Dublin.
Positions.
" T h e potatoes m i g h t be better. The grass t o o . A n d the cattle. Only the
Hodnetts m i g h t be worse."
— Daniel Corkery, Rock of the Mass.
T
he n o t i o n t h a t Ireland was p o o r because defects i n land tenure arrange­
ments constrained capital investment i n agriculture was a d o m i n a n t idea
i n the nineteenth c e n t u r y . M o d e r n scholarship has criticised b o t h the logic o f
the p r o p o s i t i o n and the empirical assumptions o n w h i c h i t is based. As a
result, the role o f land tenure i n Irish history has faded f r o m the economic
literature, while c o n t i n u i n g t o play a central role i n political and social
h i s t o r y . I n w h a t follows I shall argue for re-establishing the economic impor­
tance o f tenure arrangements b y posing the issue i n a different way f r o m
the t r a d i t i o n a l hypothesis.
The land tenure hypothesis t u r n e d o n the issue o f p r o p e r t y rights. One o f
the clearest statements came l o n g after the issue was m o o t (Pigou, 1962,
pp 174-175):
The extent t o w h i c h the actual owners o f durable instruments leave the
w o r k o f maintaining and i m p r o v i n g t h e m t o temporary occupiers
varies, o f course, i n different industries . . . there can be no d o u b t
that over a wide field some part o f the investment designed t o improve
durable instruments o f p r o d u c t i o n is often made b y persons other
t h a n their owners. Whenever this happens, some divergence between
the private and the social net p r o d u c t o f this investment is liable t o
occur, and is larger or smaller i n extent according t o the terms o f the
contract between the lessor and lessee.
I f neither the legal code, custom, n o r contracting arrangements evolve
t o close the gap between private and social net p r o d u c t , a p r i m a facie case
can be made for government intervention i n the f o r m o f compensation
payments. However, the importance o f the gap w o u l d depend o n the actual
institutions o f the economy. I n nineteenth century Ireland, landlords d i d
invest i n their p r o p e r t y . I t is i m p o r t a n t n o t t o exaggerate the extent o f their
investment, b u t its existence is k n o w n f r o m testimony, f r o m estate records,
and f r o m data o n government loans t o landlords. For example, landlords
often supplied b u i l d i n g materials t o tenants, and they contracted t o forgo
rent for tenant reclamation o f waste. The picture o f a l a n d l o r d class that
stood ready p r o m p t l y t o raise rents and evict tenants has been challenged b y
data that suggest t h a t rents were sticky and lagging, remaining i n many cases
unchanged for l o n g periods i n the face o f rising l a n d values. The granting o f
abatements and the accumulation o f arrears were n o t unusual. E v i c t i o n
rates i n post-Famine Ireland were very l o w , and indeed eviction was quite
d i f f i c u l t for landlords t o achieve. What l o o k like precarious tenancies o n very
short terms were regarded b y m a n y tenants as v i r t u a l l y hereditary and o n
t h a t account often preferred t o leases: these tenants felt secure. Those w h o
suffered eviction were often impoverished small holders, and i t is d i f f i c u l t
t o visualise w h a t investment they may have made o n their few acres t h a t
their landlords were e x p r o p r i a t i n g . For these and other reasons, m o d e r n
writers have tended t o d o u b t the validity o f the l a n d tenure story and t o
dismiss i t as an i m p o r t a n t explanatory variable i n economic h i s t o r y . The
picture that has emerged even contains elements o f tenants " e x p l o i t i n g "
landlords — rents s t i c k y , evictions d i f f i c u l t , consolidation t h w a r t e d (Solow,
1971).
1
Divergence between private and social rates o f r e t u r n leading t o subo p t i m a l investment was n o t the language o f the tenant movement. I t was the
sense that legislators, statesmen, economists and others made o f tenant
demands. The tenant slogans o f F i x i t y o f Tenure, Fair Rent, Free Sale,
certainly required clarification. The j u s t i f i c a t i o n offered was vague and con­
fused, involving ill-defined concepts like co-proprietorship, appeals t o
spurious historical n o t i o n s , and a r o m a n t i c mishmash about Celts. B u t , I
shall argue, that the correct i n t e r p r e t a t i o n o f the tenant demands is n o t
about divided p r o p e r t y rights between owner and tenant as, for example,
formulated b y Pigou, b u t rather concerns a different concept o f p r o p e r t y
altogether, and the issue between l a n d l o r d and tenant i n Ireland was whether
p r o p e r t y was t o be t h o u g h t o f as private or as i n some sense c o m m u n a l .
F r o m these t w o conceptions o f p r o p e r t y f l o w t w o different ways o f allocat­
i n g resources i n an economy and t w o different conceptions o f landlordtenant relations, and the o p p o s i t i o n between t h e m helps explain economic
and p o l i t i c a l developments i n Ireland i n the nineteenth c e n t u r y .
II
The consequences o f private and c o m m u n a l p r o p e r t y arrangements have
been captured i n a simple m o d e l , familiar t o economists for a l o n g t i m e .
Recently Cohen and Weitzman (1975) have extended the m o d e l i n an impor­
tant w a y and I shall f o l l o w their e x p o s i t i o n .
Suppose there are a l o t o f ponds across the landscape where people can
1. I n citing my own arguments against the land tenure hypothesis, I by no means wish to take exclu­
sive credit for its decline.
fish. The more people fishing i n a p o n d , the greater the t o t a l catch, b u t the
more people the fewer fish per person. I n a w o r l d o f c o m m u n a l ownership,
n o single individual or group o f individuals has the right to exclude others
f r o m fishing i n the ponds. Access t o c o m m o n l y - o w n e d p r o p e r t y is open t o
all. I f there are many ponds, fishermen w i l l distribute themselves according
to the r e t u r n they can get. I f there is a prevailing rate o f r e t u r n i n the area,
say o f x fish per fisherman, people w i l l avoid ponds w i t h a r e t u r n lower
t h a n x and c r o w d o n t o ponds w i t h r e t u r n higher than x, and e q u i l i b r i u m
w i l l occur w h e n the average r e t u r n is x i n every p o n d .
I n contrast t o the c o m m u n a l idea; an economic system based o n private
p r o p e r t y recognises certain people as o w n i n g the p o n d and having the right
to determine its use, and access t o i t or labour t o w o r k i t are bought and sold
i n the market. The pond-owner w i l l maximise profits either b y renting o u t
access at a competitive rent or b y h i r i n g an o p t i m a l number o f fishermen at
the going wage rate. I n one case, l a n d is h i r i n g labour, i n the other, labour is
h i r i n g l a n d , b u t the resulting allocation o f resources w i l l be the same either
way. Given the wage that prevails, the pond-owner w i l l hire workers u n t i l
t o t a l revenue minus t o t a l cost (number o f workers times wage rate) is at a
m a x i m u m , and this w i l l be where the marginal revenue p r o d u c t o f fishermen
equals the wage rate. The pond-owner w i l l n o w receive the difference between
t o t a l revenue and t o t a l cost as p r o f i t or rent.
What are the characteristics o f the t w o models? I n the first, the fishermen
consume all the catch. They may have t o pay someone for a fishing license,
a set fee, b u t that is all. W i t h the appearance o f pond-owners, there is n o w a
surplus w h i c h goes t o the owners. They m a y accumulate i t or spend i t o n
other things. There w i l l be a demand for goods besides fish, and former
fishermen w i l l be h i r e d to produce t h e m . A second characteristic is that the
private case is efficient and the c o m m u n a l case is n o t : efficient i n the sense
t h a t a reallocation o f fishermen among ponds w o u l d give a greater t o t a l
catch i n the former than i n the latter. For m a x i m u m t o t a l o u t p u t , marginal
products o n every p o n d must be equal everywhere, n o t average products,
and this result is brought about b y the profit-maximising activities o f pondowners. Under average p r o d u c t equalisation, fishermen w i l l overcrowd the
better-stocked ponds and drive the marginal p r o d u c t d o w n below that o f the
poorer properties. Privatisation ensures an efficient d i s t r i b u t i o n o f fishermen
and a higher t o t a l p r o d u c t .
What happens o n an individual p o n d mirrors the whole economy. I f the
change f r o m c o m m u n a l t o private p r o p e r t y occurs at a given m o m e n t , the
owner w i l l f i n d that he can maximise profits b y getting r i d o f all those fisher­
m e n whose marginal revenue p r o d u c t is less t h a n the wage rate. His p r o f i t
arises f r o m setting t h e m equal. So a change t o private p r o p e r t y means "get
r i d o f fishermen." The excess w i l l have t o move o f f the land, t o other
e m p l o y m e n t . For the w h o l e o f society, fishermen w i l l move f r o m the better
ponds t o the less good ponds, t o previously unoccupied inferior ponds, or
non-fishing occupation.
A final significant result is that the ponds t h a t have shifted t o private
ownership n o w have a lower labour/water ratio and may shift t o less labourintensive forms o f fishing. T o switch the example, w h a t looks like sheep
driving o u t m e n , or pasture supplanting tillage — w h a t the Irish called the
"flocks and herds d o c t r i n e " — may actually be the result o f privatisation.
The private p r o p e r t y m o d e l is, o f course, that o f our elementary economics
t e x t b o o k s . Property is o w n e d ; profits are maximised; factors o f p r o d u c t i o n
have their prices and are allocated b y the supply and demand mechanism
o f the m a r k e t ; efficiency conditions are obeyed. (There is n o t h i n g i n this
m o d e l that excludes long-term contracts between owners and workers.)
The c o m m u n a l m o d e l describes a feudal economy w i t h o u t exclusive
p r o p e r t y rights, where serfs pay t r i b u t e (the fishing license) t o the l o r d at a
level fixed b y more or less unchanging custom. A n d they have access t o l a n d ,
w h i c h they cannot be denied, as a matter o f membership i n a group. L a n d
and labour are n o t allocated b y market mechanisms b u t b y a web o f custom
and m u t u a l rights and obligations. Here no one is self-consciously m a x i m i s i n g
p r o f i t s , and l a n d and labour have significance outside their roles i n the
market-place.
2
I t is n o t suggested that an economy based o n c o m m u n a l p r o p e r t y notions
ever existed historically i n Ireland, b u t o n l y that t w o different concepts o f
p r o p e r t y and hence o f landlord-tenant relations co-existed right i n t o the
nineteenth c e n t u r y , and that one o f t h e m derives f r o m c o m m u n a l p r o p e r t y
ideas. Private p r o p e r t y means the right t o exclude; c o m m u n a l p r o p e r t y
means the right n o t t o be excluded; the n o t i o n that tenants have a prescrip­
tive right o f occupation implies a view o f p r o p e r t y as c o m m u n a l . Tenant
payments t o landlords f r o m this view p o i n t are set b y custom and changed
infrequently and cannot be altered unilaterally at w i l l b y landlords. The
l a n d l o r d views his tenants as something more than a source o f income and
does n o t m i n d having a l o t around. This c o u l d be because he has some tie
w i t h families w h o have been o n his estate for years, or i t c o u l d arise f r o m the
fear o f the consequences o f evicting. Whether grounded i n paternalism or
coercion, all tenants are n o t interchangeable t o h i m and represent more than
a source o f i n c o m e .
3
Tenant payment t o landlords i n this case is n o t a rent for the use o f land
w h i c h is set b y changing market forces. I t is indeed a p a y m e n t for the use o f
2. There are of course many societies with communal property rights besides feudalism, and there is a
vast literature on Asian, African, and preliterate societies with communal economic institutions.
3. The classic landlord of this type is the Scottish chief who, when asked what his rent roll was,
replied "Five hundred good men and true".
land — a ticket o n to the estate — and its price can fluctuate, b u t the custom
is that the l a n d l o r d n o t raise the price so high that a sitting tenant cannot
pay i t . I f the tenant cultivates his l a n d reasonably well and lives modestly,
the l a n d l o r d is e n t i t l e d t o receive a payment o u t o f the surplus he produces,
b u t n o t a share so large that the tenant cannot survive. The landlord is n o t
e n t i t l e d t o say to a tenant, " I f y o u d o n ' t pay the price I ask, I k n o w
someone else w h o w i l l . " A u c t i o n is ruled o u t , because i t c o u l d extinguish
the tenant's right to his holding. I t is n o t considered fair, and no humane
l a n d l o r d w o u l d do i t . Property is n o t c o m m u n a l , b u t i t is n o t private either:
the tenant has a r i g h t t o be there, n o t inalienable b u t subject t o r e s t r i c t i o n ,
and the l a n d l o r d has a right t o rent b u t also subject t o restriction. I t is this
view that I ascribe t o a significant number o f Irish tenants i n the nineteenth
century.
B u t i f the p a y m e n t is to be tailored t o a "just p r i c e " and considerations
o f e q u i t y regarding the ability o f the sitting tenant t o pay, there is no w a y
for l a n d allocation t o be completely efficient. N o automatic mechanism
exists for replacing an inefficient tenant w i t h an efficient tenant, or for
consolidating holdings i n the event o f economies o f scale, or for a more
efficient technology t o drive o u t a less efficient. There is no way t o maximise
profits, because that implies raising rents t o diminish the number o f tenants.
T o the extent that rent-setting i n Ireland f o l l o w e d this m o d e l , the economic
mechanism ensuring efficiency was hampered.
M y argument is then t h a t t w o concepts o f p r o p e r t y co-existed i n Ireland,
w i t h their respective i n s t i t u t i o n a l arrangements for land allocation and their
respective views o f landlord-tenant relations, and that m u c h o f nineteenth
century Irish h i s t o r y can be explained i n terms o f the change and conflict
between t h e m . Before considering the evidence for this argument, we can
b r i e f l y relate this approach t o some other descriptions o f nineteenth century
Ireland.
The view that overall efficiency i n the Irish economy was restrained b y a
self-sufficient peasant sector that d i d n o t participate i n the market economy
— the L y n c h - V a i z e y (1961) dual-economy thesis — has n o t been taken up
seriously b y economic historians. I t has been rejected o n the ground that
Irish peasants were involved i n a market economy and can be shown t o have
been responsive t o market forces for a long t i m e before 1800. Presumably
involvement i n the p r o d u c t market is t h o u g h t t o lead t o an efficient solution
b y way o f the factor price equalisation theorem. However, this argument
fails i f p r o d u c t markets are accompanied b y factor markets i n w h i c h partici­
p a t i o n is o n l y partial and i n w h i c h strong elements o f i m p e r f e c t i o n are
present. I n this sense, viewing land as either outside the market or as
4
4. I have benefited greatly from an unpublished manuscript by Eckaus (1970).
imperfectly involved i n the market supports a k i n d o f dual economy view.
(Labour market imperfections w o u l d have the same result.)
Marxian theory holds that the shift f r o m c o m m u n a l t o private ownership
expropriated the peasants and provided the original capital w h i c h fuelled the
capitalist system and industrial development, while simultaneously "immisera t i n g " the displaced-peasants-turned-proletarians. This scenario, involving a
transition t o capitalist agriculture o n the one hand, and industrialisation o n
the other, clearly fails to describe Ireland, although a Marxist argument
c o u l d be made that the explanation lies i n landlords' failure completely t o
expropriate the tenants. I n any case, a simple class-struggle story does n o t
fit the facts adequately.
There was conflict over p r o p e r t y rights as some landlords t r i e d t o move
f r o m c o m m u n a l t o nrivate p r o p e r t y i n s t i t u t i o n s , b u t n o t all Irish landlords
shifted at the same time and n o t all shifted fully. There c o n t i n u e d t o be
landlords w h o were n o t strict profit-maximisers, w h o charged less than
competitive rent, and w h o d i d n o t always disturb sitting tenants w h e n i t was
profitable t o do so. I n the literature they are called " o l d " landlords or
" g o o d " landlords or "large" landlords: the profit-maximisers are called
nouveaux riches or "middle-class Catholic l a n d l o r d s " or "Encumbered estate
l a n d l o r d s " or "hard-hearted" or "rack-renters." The t w o types are familiar;
the relevant characteristic is that they play the game b y different rules.
Moreover, simple class-struggle stories miss the p o i n t about the tenantry as
w e l l . I n nineteenth century Ireland there were, o f course, m a n y tenants t o
w h o m land was strictly a commercial p r o p o s i t i o n . I f such tenants were more
efficient, had better access t o capital, were i n a p o s i t i o n t o take advantage
o f economies o f scale — large graziers come immediately t o m i n d — i t w o u l d
be i n their interest t o o u t b i d their smaller neighbours. Thus, enforcement o f
older institutions for land allocation w o u l d require n o t o n l y landlords b u t
also tenants t o observe the o l d customs, or, i f the customs d i d n o t prevail
everywhere, t h a t deviating landlords and deviating tenants alike be coerced
i n t o observing t h e m .
5
Ill
The legal framework that views land as a c o m m o d i t y like any other, t o
be auctioned o f f t o the highest bidder w i t h no prescriptive rights inhering
5. One example of many, but from a distinguished source: "Those who have bought estates under the
(Encumbered Estates Act) are, I believe, in the great majority of cases much harder landlords than
their predecessors . . . They had no connection with the tenants and did not feel that the tenants had
any moral claim upon them . . ." On the other side, this author explicitly recognised that 'There are at
present in Ireland a very great number of tenants who do not pay a full rent" (Mill, 1870, pp. 115116).
i n the sitting tenant, developed i n the nineteenth century and co-existed
w i t h an older t r a d i t i o n . I t is a commonplace t h a t eighteenth century concepts
o f c o m m o n l a w depended o n notions o f natural justice and right reason. The
c o m m o n l a w was viewed as a b o d y o f fixed doctrine t o achieve a fair result
between private litigants i n individual cases. Thus, eighteenth century l a w
contained protective, regulative, and paternalistic elements, and eighteenth
century notions o f jurisprudence c o n t i n u e d to aim at regulating the substan­
tive fairness o f economic exchange. This is exemplified b y many doctrines,
notions about usury, prescriptive rights, j u s t price. Above a l l , law was con­
ceived "as a p a r a m o u n t expression o f the m o r a l sense o f the c o m m u n i t y . "
N a t u r a l justice l o o m e d , i n Holmes's famous phrase, like a " b r o o d i n g o m n i ­
presence i n the s k y . " The n o t i o n that t w o parties d o w n b e l o w c o u l d enter
i n t o a contract at l a w w h i c h was enforceable regardless o f a social evaluation
o f fairness is a nineteenth century idea, w h i c h developed at different times i n
England, the U n i t e d States, and Ireland. The eighteenth century thought
there was an e q u i t y i n agreements w h i c h society recognised quite apart f r o m
w h a t the parties t o the agreement assented t o ; the l a w w o u l d n o t enforce
w h a t i t viewed as inequitable contracts.
6
Legal developments i n the nineteenth century saw the separation o f l a w
and m o r a l i t y , exemplified b y an attack o n equitable doctrines o f substantive
justice i n contract l a w . I n the end, there is no e q u i t y i n agreements w h i c h
society recognises apart f r o m t h a t t o w h i c h the parties t o the agreement
assent. N o t h i n g remains up there i n the sky. The objective evaluation o f the
market has come t o supply principles o f d i s t r i b u t i o n w h i c h are viewed as
n e u t r a l , and i t has become the task o f law t o m i r r o r the market. The issues
at l a w have shifted f r o m fair price conceptions t o meeting-of-mind issues,
and any substantive i n q u i r y i n t o equivalence o f exchange has been barred.
A w i l l t h e o r y o f contract has emerged and a new, abstract view o f p r o p e r t y
has developed, emphasising its productive and developmental uses, w h i l e
eighteenth century views were based o n quiet enjoyment notions. The t w o
conceptions, o f course, are n o t between English and Irish l a w b u t w i t h i n
English c o m m o n l a w .
The t i m i n g o f the transformation is obviously d i f f i c u l t t o p i n p o i n t , because
i t was such a complicated process. L a n d law was among the last t o be
modernised. Simpson (1961) dates the change for England at 1823; H o r w i t z
(1977) for the U n i t e d States sees the process occurring between 1780 and
I 8 6 0 . F r o m this p o i n t o f view, the legal and legislative h i s t o r y o f nineteenth
century Ireland f r o m the 1840s u n t i l the 1880s is p r i m a r i l y an effort t o
7
6. The argument that follows draws heavily on Horwitz (1977, p. 251).
7. A useful summary of Irish land law is found in Donaldson (1957, chapter 6), see also Horwitz
(1977).
make the land laws c o n f o r m t o the prevailing nineteenth century economic
doctrines about the market. Consider first the Encumbered Estates A c t s .
U n t i l the nineteenth century, the social and p o l i t i c a l structure o f England
created a strong incentive t o retain l a n d i n the f a m i l y . This was the route t o
p o l i t i c a l p o w e r and social prestige, and l a w was greatly concerned w i t h
t y i n g up l a n d . O f course the result o f devices for t y i n g up l a n d was t o
remove i t f r o m the m a r k e t . B u t the nineteenth century concern w i t h
economic development and efficiency required that factors o f p r o d u c t i o n
be allocated b y the market, free t o move t o the most profitable uses. T y i n g
up land thus deprived the c o u n t r y as a w h o l e o f the proper development o f
its resources. Moreover, the f a m i l y itself m i g h t even suffer b y being saddled
w i t h an estate w h i c h i t c o u l d n o t afford t o develop and w h i c h i t was power­
less t o alienate. The Encumbered Estates Acts epitomise the t r i u m p h o f the
new w a y o f t h i n k i n g about landed p r o p e r t y , and Free Trade i n L a n d is j u s t i ­
fied b y considerations o f economic development and efficiency. As Professor
Richey (1880) observed, after these acts " t h e landlords' estates (were)
being purchased i n the Encumbered Estates' Courts as simply an expediti­
ously as f u r n i t u r e at a sheriff's sale." T h a t was their aim.
The n e x t logical step was t o enable landowners t o deal w i t h their estates
as i f l a n d were no different f r o m any other c o m m o d i t y . This was b r o u g h t
about b y the Deasy A c t o f 1860, w h i c h swept away all lingering vestiges o f
feudal t r a d i t i o n . I t was this act that l a i d i t d o w n t h a t the r e l a t i o n o f l a n d l o r d
t o tenant was t o be founded o n contract, express or i m p l i e d , and n o t o n
older doctrines.
Henceforth the l a n d l o r d was t o differ f r o m the village baker, butcher,
grocer, or p u b l i c a n , merely i n the nature o f the article i n w h i c h he
traded. Feudal duties perish w i t h feudal rights: the owner o f l a n d lets
i t t o the tenant and the tenant hires the l a n d f r o m the l a n d l o r d ; the
transaction does n o t differ and i t was intended t h a t i t should n o t differ
— f r o m the chartering o f a ship or the h i r i n g o f a street cab: the hirers
o f l a n d henceforth owe no special respect, and need show no deference
t o their l a n d l o r d : i f the tenants pay the rent w h i c h they have agreed t o
p a y , and p e r f o r m the agreements o f the l e t t i n g , t h e y are as independent
o f the l a n d l o r d as o f the village huckster — w h e n they have settled their
pass-book; b u t , i f so, w h a t claim have t h e y longer o n their l a n d l o r d for
p r o t e c t i o n , assistance, or forbearance? W h y should he, more than any
other, be expected t o aid the p o o r , assist i n local charities, give a site
for the parish chapel, or be considerate i n the c o l l e c t i o n o f his debts?
(Richey, 1880, p p . 57-58).
A n d , I w o u l d add, show especial tenderness t o sitting tenants.
The t h i r d i m p o r t a n t piece o f legislation aimed at m o d e l l i n g land law t o
further economic development is the L a n d A c t o f 1870, i n particular that
p o r t i o n that pertains t o compensation for improvements. These provisions
go t o the heart o f w h a t we may call the Pigovian version o f the Irish land
question. I n English l a w , as n o t e d , a tenant w h o made improvements o n his
l a n d had no right t o t h e m , and any fundamental alteration b y a tenant o f
the c o n d i t i o n o f the land constituted waste, for w h i c h he was liable. The
English courts had made an exception for removal o f fixtures for carrying
o n a trade, b u t n o t for agriculture. This was the aim o f the compensation
clauses i n the L a n d A c t o f 1870. I n this instance the remodelled law was
sought b y tenant interests, n o t b y landlords, b u t i t is part and parcel o f the
new ideology. The drafters o f the compensation clauses accepted the land
tenure explanation o f Irish p o v e r t y , w h i c h they understood as a p r o p o s i t i o n
i n welfare economics, and they responded favourably to w h a t they t h o u g h t
the tenants wanted. B u t i f i t was a mistranslation o f what the tenants w a n t e d ,
i t is n o t hard t o see w h y the L a n d A c t o f 1870 failed t o satisfy their
aspirations.
8
IV
By 1870 there was fully i n place a legal framework i n w h i c h land was
treated i n accordance w i t h the requirements o f a free market economy
aiming at economic development. These new legal concepts were n o t unani­
mously agreed t o b y all sectors o f Irish society. First, the R o m a n Catholic
Church never assented t o the o v e r t h r o w o f pre-commercial anti-developmental
forms o f law and the replacement o f natural law concepts b y u t i l i t a r i a n and
instrumental approaches. I have argued that n o t even all landlords d i d so,
and t h a t the live-and-let-live attitude o f Irish landlords lasted far i n t o the
nineteenth century. Rack-renter remained a t e r m o f o p p r o b r i u m t o some i n
the landed class as w e l l as outside i t . What a good l a n d l o r d d i d , i n Samuel
Clark's phrase was grant "non-contractual privileges" — i n arrears, abatements,
tenant right, moderate rent, few evictions (Clark, 1979, p . 2 4 0 ) . T o charge
w h a t the market w i l l bear, t o squeeze tenants, t o evict families w h o had
been o n the estate for generations, was, I t h i n k , n o t considered respectable
behaviour b y a significant, though declining, p r o p o r t i o n o f Irish landlords.
Moreover, landlords w h o attempted t o behave i n that way f o u n d i t
9
8. There was no need to extend the exception to agriculture in the United States, because the rule
governing waste never took hold here. In Van Ness v. Packard (1829), Justice Story expressed the view
that the right of removal of fixtures had clearly to be granted in order to encourage the tenant to
devote himself to agriculture (Horwitz, 1977, p. 55).
9. I am indebted to Professor Emmett J . Larkin for earlier conversations on this point.
extremely d i f f i c u l t . Custom and coercion c o m b i n e d t o restrain p r o f i t maximising behaviour b y landlords.
I t hardly needs arguing that the small tenantry d i d n o t agree that
landlords had the right t o auction o f f l a n d t o the highest bidder, t o evict,
to consolidate, i n short t o let their land o f whatever terms and ask whatever
rent they saw f i t . The small tenant d i d n o t view his l a n d as a c o m m o d i t y
like any other. The i d e n t i f i c a t i o n o f l a n d w i t h b l o o d and local standing,
w h i c h Arensberg f o u n d so characteristic o f Irish rural familism i n 1937, was
the tail end o f a deep t r a d i t i o n (Arensberg, 1937). " T o keep the name o n
the l a n d " — t o h o l d l a n d t o m a i n t a i n the c o n t i n u i t y o f the f a m i l y — i f these
sentiments survived i n remote communities f i f t y years ago, they were m u c h
more widespread a h u n d r e d or a h u n d r e d and f i f t y years ago.
I t is clear that small Irish tenants believed they h e l d prescriptive rights i n
their holdings. Tenancies f r o m year-to-year persisted for generations, and
tenants viewed t h e m as practically a perpetual interest, indeed a bequeathable interest. For example, a tenant at w i l l o n one o f L o r d Downshire's
estates referred t o a previous generation o f his family as " p r o p r i e t o r "
(Maguire, 1972, p . 141). While i t may sound strange t o speak o f " o w n i n g "
a tenancy at w i l l , i n fact " p r o p r i e t o r s h i p " here is a m o d e r n w o r d for a prem o d e r n concept, and i t is that concept that L o r d Downshire's tenant h e l d .
Where there are prescriptive rights t o land, setting rent b y auction must be
prevented lest the resulting level exceed w h a t the sitting tenant can pay.
The o n l y allowable auction i n this view must be b y the tenant, and rent must
be restrained i n this event also, lest the value o f the p r o p e r t y t o be auctioned
be diminished. I t is w e l l k n o w n that i n Ireland the tenant's interest o n his
h o l d i n g existed whether he had a lease or n o t and whether he had made
improvements or n o t . I have called i t pure tenant r i g h t ; Maguire called i t
tenant right o f occupancy; W i l l i a m Greig i n 1818 claimed that i t was
u n k n o w n i n any other c o u n t r y . The sales value o f this tenant right c o u l d
obviously be extinguished b y rent increases. Thus, the three notions o f
F i x i t y o f Tenure, Fair Rent, and Free Sale all b o i l d o w n t o a rent-setting
i n s t i t u t i o n a l arrangement that w i l l ensure the older concept o f p r o p e r t y
relations. The tenant has a right t o occupy the land w h i c h cannot be
extinguished b y rent increases; the l a n d is n o t the landlord's to auction o f f
over the head o f the sitting tenant; and i n fact the right o f auctioning o f f
ought t o belong t o the tenant i f he chooses t o leave the farm. The "3 F s " are
o n l y comprehensible i n terms o f c o m m u n a l p r o p e r t y concepts.
1 0
The co-existence i n Ireland o f t w o conceptions o f p r o p e r t y was thus
m i r r o r e d b y the existence o f t w o i n s t i t u t i o n s for l a n d allocation. We k n o w
t h a t there was auctioning o f f o f l a n d — " c a n t i n g " — and that i n the east, o n
10. See Greig (1821, p. 169), I am indebted to the referee for this reference.
large farms, and o n grass farms this was usual. I t is i m p o r t a n t n o t to under­
estimate the role o f a competitive l a n d market i n Ireland. A t the same time
there is abundant evidence t h a t rents were n o t set b y c o m p e t i t i o n every­
where. The simple existence o f pure tenant r i g h t is evidence t h a t rent was
n o t set b y auction between l a n d l o r d and tenant everywhere. The data we
have o n s t i c k y rents, l o w eviction rates, slow pace o f consolidation reflect
this also. We k n o w t h a t many estates c o n t i n u e d t o set rents b y e m p l o y i n g
valuators. Their instructions t y p i c a l l y were " t o p u t a value o n that w i l l let
the tenant l i v e . " Such rent-setting methods correspond exactly t o the older
view o f rent, w h i c h grants the l a n d l o r d a share o f what the sitting tenant,
w i t h his a b i l i t y , his technology, and the size o f his h o l d i n g , can produce.
Whether the workings o f a competitive land market were hampered b y
custom or coercion, the result w o u l d be the same: t o perpetuate small
uneconomic holdings i n the face o f economies o f scale; t o allocate land dis­
p r o p o r t i o n a t e l y to tillage w h e n pasture was more p r o f i t a b l e ; to p r o t e c t i n ­
efficient tenants and inefficient technologies; t o keep capital investment
b e l o w o p t i m a l levels. The persistence o f problems l i k e these are incompatible
w i t h the workings o f an efficient l a n d market b u t quite compatible w i t h
one e x h i b i t i n g the kinds o f imperfections we have described.
1 1
V
Property is b y d e f i n i t i o n an enforceable claim, enforceable b y the state
i n m o d e r n society and b y custom i n earlier societies. Its j u s t i f i c a t i o n may be
grounded i n notions o f natural r i g h t , t h a t i t is necessary for the realisation
o f man's fundamental nature, or for economic development and efficiency.
Different concepts o f p r o p e r t y correspond t o different justifications: private
and c o m m u n a l p r o p e r t y are justified o n different grounds. As the d o m i n a n t
class i n England and Ireland i n the nineteenth century changed its idea o f
the purpose p r o p e r t y was expected to serve, the law o f p r o p e r t y was corres­
p o n d i n g l y remodelled. I n parts o f Ireland, b u t n o t w i t h o u t o p p o s i t i o n , and
w i t h o n l y partial success, custom continued t o enforce a different concept.
I f custom faltered, coercion c o u l d serve. Since economic efficiency was an
a t t r i b u t e o f the legally sanctioned concept o f p r o p e r t y , then t o the extent
t h a t custom or coercion succeeded i n enforcing a different result, economic
efficiency was hampered.
H o r w i t z (1977, p . 47) describes the attack o n prescriptive rights i n the
U n i t e d States i n the f o l l o w i n g words:
A t its deepest level, the attack o n prescription represented an effort t o
11. For an example of instructions given to valuators, see Greig (1821, p. 43).
free A m e r i c a n law f r o m the restraints o n economic development that
had been m o l d e d b y the c o m m o n law's feudal conception o f p r o p e r t y .
By the second quarter o f the nineteenth century the c o m m o n law doc­
trines o f prescription had been considerably narrowed t o prevent
exclusive rights f r o m accruing merely o n the basis o f l o n g use, and
A m e r i c a n law had m o v e d i n t o what Francis H i l l i a r d , w r i t i n g i n another
c o n t e x t , called "an anti-prescriptive age."
The movement t o an anti-prescriptive age was stopped i n mid-career i n
Ireland. I n the late 1870s the remodelled legal code was successfully
challenged b y the extra-legal mass action called the L a n d War. The leaders
o f the L a n d League had enlisted the adherence o f small tenants t o the cause
o f p o l i t i c a l nationalism b y adopting their cause and leading a direct action t o
achieve their aims. The L a n d War was a national rent strike, appealing n o t
o n l y t o t r a d i t i o n a l tenant p r o p e r t y concepts b u t also involving techniques
o f social action w h i c h the tenants had l o n g practiced i n their effort t o
enforce their view o f p r o p e r t y rights. As a result o f the L a n d War, the tenant
conception t r i u m p h e d w i t h the L a n d A c t o f 1 8 8 1 , w h e n the state u n d e r t o o k
t o enforce the alternative view o f p r o p e r t y rights and ended rent determin­
a t i o n b y the w o r k i n g o f free market institutions, replacing t h e m b y j u d i c i a l
fiat w h i c h acted o n the principle agreeable t o the tenants. This s o l u t i o n was
short-lived, as land purchase soon turned Ireland i n t o a c o u n t r y o f peasant
proprietorships. B u t u n t i l t h a t t i m e the conflict between the t w o notions o f
p r o p e r t y had played a determining role i n Irish h i s t o r y .
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