Two bills, 6 Anne, c. 2, and 8 Geo. I, c. 15, established the Registry of Deeds, which was important for the stabilisation of land-holding, particularly in the period following the Revolution settlement. It provided legal proof of ownership and a record of any conveyance or transfer. The majority of statutes involving land consider topics such as mortgages (11 & 12 Geo. III, c. 10), inheritance, intestacy (7 Will. III, c. 6), guardianship, minors, lunatics (5 Geo. II, c. 8), and the right of inheritance of posthumously born children (8 Anne, c.4). Landlord-tenant relations were an important topic that ran through the statutes

Landlord-Tenant Relations – Leases

The relationship between the owner of an estate and his tenants was frequently complex. Leases could be inherited, bought and sold and lands re-leased, unless the original lease contained specific clauses to the contrary. The death of the grantee of the lease only made it void if it was specifically tied to his life. Moreover, a tenant was acknowledged to have an equity in his lease and the unexpended term of a tenancy could be transferred, although transfers might have specific restrictions in the lease, such as the landlord’s consent and, where a lease was inherited, the heir might be liable to pay the landlord a heriot or inheritance tax.

For instance, a 1780 Co. Carlow lease granted by Joseph Deane, Bishop of Leighlin and Ferns, required ‘a “herriot” of £7 and two wedders [wethers] at Michaelmas, one hog at Christmas and four hens on shrove Tuesday’. In order to prevent the tenant from selling the outstanding term of his lease or subletting the land without the consent of the landlord, leases increasingly contained an alienation penalty. However, this restriction often proved difficult to enforce without straining landlord-tenant relations.

Local communities tended to be suspicious of strangers being brought in to their tight-knit community. In 1754 Lord Abercorn’s agent, Nathaniel Nisbitt, wrote to tell him that ‘Hoode of Lower Lisnatiny sold his interest to turn innkeeper in Newtownstewart; the tenants on the land gave Divin the money that he was to give Hoode and I believe that affair is settled.’ Only two months earlier Nisbitt had written that ‘Hoode … has sold his interest to one Divin; I refused receiving Divin as tenant, yet I find the man is inclined to force himself in; I am informed Hoode gets £50 from Divin and your Lordship knows there is but 3 years of the lease unexpired.’

When the lease expired, Divin, as the sitting tenant, would have been able to bring moral pressure from the community to have the lease renewed in his favour. In this case the situation may have been slightly exacerbated by the fact that Nisbitt, although he lived only 10 miles away in Lifford, was from Donegal and therefore, by local standards, ‘a foreigner’. Certainly he felt that this fact was sufficiently important for him to mention it when he resigned from the supervision of Lord Abercorn’s Tyrone estate three years later; on that occasion he wrote:

I assure your Lordship that the County Tyrone at present is become my aversion, nor would I wish any friend of mine that had not a strong connection in some part of the country to be concerned … as to your Lordship’s estate in the County Donegal I am still willing and able to take care of it for your Lordship while I am able to crawl.

‘I believe,’ stated one of the witnesses before the Devon Commission, ‘in some parts of Ireland the practice exists among tenants of considering that although they have no actual lease, they have a sort of tenant’s right of choosing their successor, giving over their lands to somebody whom they wish to substitute.’ The witness added that ‘a consideration’ was frequently given for these agreements, which, it was stated, were often made without the knowledge of the landlord.

A united community with established communal conventions was a powerful force, and not unique to Ireland. In his Agrarian History of Western Europe, B. H. Slicker van Bath writes that ‘the gradations between ownership and tenan-cy were so subtle that it is sometimes difficult to know exactly where to draw the line between the two.’ Marc Bloch in French Rural History remarks on the problems that confronted a landlord if:

when a lease expired … he refused to renew it in favour of the former tenant, and on almost the same conditions. Even worse trouble was in store for the new tenant … usually a stranger to the village, since the natives neither wished nor dared to play the part of interloper. Both landlord and tenant were likely to pay dearly for their infringement of what the peasant community regarded as their rights: whether it was boycott, theft, murder ‘fire and sword’, no punishment was considered too great.

Eighteenth-century Irish landlords would have found this situation all too familiar. The length of the leases – 31 years, 31 years and three lives, etc. – made rent rises at their renewal almost inevitable. Canting, or letting land to the highest bidder, inevitably created resentment. Renewals were better agreed by mutual consent where this was possible. In England, the usual yardstick of comparison, the situation was completely different.

Shorter leases underscored the landlord’s ownership of his estate, while a greater degree of enclosure forged stronger individual links between landlord and occupier. An accepted fixity of tenure and a definition of mutual responsibilities combined with a support of, and interest in, agricultural improvements to strengthen a common partnership in the land.

The equity that an Irish tenant had in his lease was a valuable possession, particularly if he acquired a lease without an alienation clause. Wakefield illustrated the inherent profitability of such a lease when he noted that a lease of a small farm had been sold for £300 within three weeks of it being granted. Long leases gave the tenant a legal and saleable interest in the land, while his provision of the labour and capital required to make the basic improvements essential for its utilisation gave him an equitable claim to some form of compensation regardless of whether or not he possessed a formal lease.

A vertically fractured society, communal solidarity, land scarcity and pressure of population subsequently forged these claims into what the Devon Commission described as the right whereby:

a tenant quitting a farm, either at his own desire or from any difference with his landlord, should obtain from his successor a sum of money, partly in remuneration of his expenditure, and partly as a price paid for the possession of the land which the new tenant would have no other means of acquiring.

The Commission found that this feeling was not confined to leaseholders, for there was also:

A feeling of proprietorship [under which] … the tenant claims and generally exercises a right to dispose of his holding for a valuable consideration although he may himself be tenant-at-will and although he may have expended nothing on permanent improvements. We found … sums equal to ten, twelve or fifteen years’ purchase upon the rent, are commonly given for tenant right

and this happened even when the rent was ‘fully equal to the value’ of the farm.

This state of affairs placed the Commissioners in a quandary, as its implications for land tenure were such that they could scarcely condone it. Furthermore, it undoubtedly depleted the incoming tenant’s capital, thus limiting his ability to make improvements. Yet the Commissioners found that the areas in which this custom was strongest were the most prosperous in Ireland and, in consequence of their mixed economy, the best able to pay. In parts of Co. Down the Commissioners found that tenant right was valued as high as £40 per acre, while even in the more mountainous parts, near Castlewellan, £20 per acre was commonly paid for farms held ‘at will’ or without any lease whatsoever.

This custom had the great advantage of discouraging another and wholly destructive activity: the over-exploitation of the land when the tenure was due to expire and a renewal was not expected. Both Young and Maria Edgeworth comment on the ruinous consequences of this aspect of tenure on both landlord-tenant relations and the land itself. Maria Edgeworth, herself a landlord’s daughter, wrote that:

In Ireland it has been, time immemorial, common with tenants … who have no hopes of getting their leases renewed, to wear out the ground as much as possible; to break it up towards the end of the term; or to overhold, that is to keep possession of the land refusing to deliver it up. This obliged the landlord to a tiresome law process, and subjected him to lie out of his rent for at least a twelvemonth.

Young considered that this custom resulted in the land in some places being laid waste and made unprofitable for seven or eight years in the usual 31-year lease.

Demanding excessively high rents could be counterproductive. ‘I am not a friend to our Irish practice of high setting,’ wrote John Moore to the young Arthur Annesley. ‘Your father was distinguished for his humanity and therefore his rents were well paid.’ But a landlord who allowed tenants to build up cumulative debt was creating long-term problems for both parties. When persuasion or threats failed, distraint of goods was usually the first step. Eviction, which was unprofitable and distressing for all concerned, was usually the last resolution of an impossible situation. Often the tenant was up to three years in arrears and clearly had little hope of regaining solvency.

Numerous statutes were passed throughout the eighteenth century with a view to regulating landlord-tenant relations, for instance 5 Geo. II, c. 4, in 1731 and 20 years later in 1751 25 Geo. II, c. 13. Eviction or ejectment was not an arbitrary unilateral action but a formal legal process. Even then it was dangerous, as public opinion tended to be on the side of the evicted, who was making a last and often desperate stand against destitution. It was very important, whenever possible, to get possession with consent of the outgoing tenant, as otherwise the community would make life intolerable for his successor. The custom of tenant right, where it existed, helped to achieve this and thereby to reduce rural violence, even though the landlord’s arrears were the first charge against it.

The Devon Commissioners found that this right of compensation to an outgoing tenant appeared to be long established in Ulster and that it was not unknown, though very much weaker, elsewhere in Ireland. In The Downshire Estates Dr Maguire argues that ‘the general weakness of tenant right claims outside Ulster in the nineteenth century arose primarily from differences in economic circumstances’, and although the Devon Commissioners concluded that tenant right as practised in Ulster ‘dates from a very early period’, most modern scholars consider that it strengthened into its traditional form in the early nineteenth century and that earlier it was less rigid, though it unquestionably existed.

As the tradition was for the landlord simply to let land and expect the tenant to provide buildings and other improvements, the Devon Commissioners found it not unreasonable for the tenant to require some compensation for these from his successor. The origins of the custom are uncertain. It may have developed under the disguise of the sale of a lease and thereby avoided a direct challenge until it had hardened into accepted tradition. The distinctions between ownership, occupancy and acquired interest through improvements all became blurred in the land hunger of the early nineteenth century.