Tenant Right, or Ulster Custom

The custom of tenant right, commonly referred to in Victorian Ireland as the "Ulster custom," was a practice by which rural tenants claimed property rights above and beyond their contracts with landlords, allowing departing tenants to exact a payment well in excess of the yearly rent from those who wished to replace them in their farms. In practice the payment of tenant right served two purposes: it compensated the seller for investments made in the farm, and it granted to the purchaser the "goodwill" of the seller, allowing the purchaser to enjoy the "peaceable possession" of the farm. The new tenant would of course also have an agreement with the landlord, occupying the farm under the conditions of a lease or, more commonly, at the will of the landlord. The inevitable tension between these two sets of relationships was a fundamental characteristic of rural property relations in the eighteenth and nineteenth centuries. Though leases and other contracts delimited the legal rights of tenants with regard to the occupation of land, the custom of tenant right existed anterior to these, supplementing the private property system established by the plantations. Like other earlier forms of customary tenure in Scotland and the north of England, tenant right signified the tenant's place within a community, his or her way of belonging to its history and development, and, crucially, the right of the tenant's family to continue in possession in the future. In Ulster the custom of tenant right came to signify the place of the tenant within a troublesome colonial history, the development of a commercial economy in a new property system, and the visual transformation of the landscape.

Origin

The term tenant right was first used in Ulster during the second half of the seventeenth century, during a period of deep uncertainty about the stability of the colonial property system and the economy that underpinned it. As the colonial land system began to gain stability in the mid-eighteenth century, the contractual agreements governing the occupation of land became more varied and complex. There were head tenants holding leases of various kinds directly from landowners, middlemen holding large tracts and letting them in turn to undertenants under a variety of different contracts, and below these the mass of smallholders who sublet farms from other tenants or held land without lease at the will of the landlord. In these circumstances, the actual occupiers of the land began to assert that the very stability that had been obtained was the result of the historic efforts of their families to occupy and improve the land. Tenant right came to represent the historical right of planters to continuous occupation. Emphasizing the continuity of their families on the land through the wars and political upheavals of the seventeenth century, the houses and fences they built and maintained, and their consistent political allegiance to their landlords, they asserted their tenant right of renewal of expired leases and the right to keep their families in continuous possession of farms. With the passing of decades and the attenuation of these historical claims in the face of more severe economic competition for land, the urgency of these claims intensified. Claims for the right of renewal in the late eighteenth and early nineteenth centuries often made reference to one's ancestor's participation in, for example, the "memorable siege of Derry" or the "wars of Ireland." These claims were occasionally renewed or updated with reminders of one's electoral allegiance to the landlord or other deferential behavior.

In addition to long histories of occupation, the custom was also strengthened and given meaning by reference to the landscape itself. The colonial estate system, based on a capitalist and individualist model of agricultural production that required clear demarcation of the boundaries of farms and of the property rights between the tenants of those farms, was clearly distinguishable from the pastoral and collective economic life of Gaelic Ulster and the rundale system of redistributing strips of tilled land among members of a community. The rapid commercialization of the eighteenth century had nevertheless steadily eroded the old pattern, as enterprising tenants stepped out from their collectives to agree to individual contracts with their landlords, severing themselves from the variety of duties and benefits of the rural village. Tenant-right payments served to compensate former partners in rundale communities and to clarify their new status. The subsequent processes of enclosure and the "improvement" of enclosed farms became powerful justifications for the claim of tenant right.

Economic Considerations

In the end, one's right to occupation depended fundamentally on the ability to pay a competitive rent. Though landlords consistently preferred Protestant tenants, who were in any case granted clear privileges in law over their Catholic competitors, there remained a resilient anxiety about being displaced. In practice, the ability to compete with the native population depended on developing new outputs and strengthening markets. Participation in the diversified components of the rural linen trade was one of the keys to success. The booming linen economy of the rural north allowed for the proliferation of small but independent farms, each with a separate claim to have developed the productivity and profitability of an estate. By the early nineteenth century it was widely understood that the expanding linen economy was deeply implicated in the growth of the custom of tenant right. Although there is scattered evidence of its use in other parts of Ireland, the custom was not to become part of the social and economic fabric of rural society outside of the north. Its unique development there is bound up with economic and demographic developments that distinguish the north from the rest of the island. These were the successful plantation of an immigrant population, the advanced development of rural industry, and the dramatic transformation of the landscape of Gaelic Ulster.

In the period after 1815 the economic landscape and the meaning and function of tenant right began to change rapidly. A century-long upward trend in farm prices began to reverse itself in the more open post-Napoleonic economy, cutting into small-farm profitability. In addition, the mechanization of flax spinning and weaving and the changing nature of demand for textiles undercut a rural industrial sector that had served as a crucial girder of the economy. Ulster rural society began a long and painful transition from the heterogeneous mixture of cottiers, small-holding weavers, and middling to large capitalist farmers to the more stratified and less densely settled pattern of the post-famine period.

From the viewpoint of estate managers the most serious issues revolved around the decreasing economic viability of small-holders, their mounting debts, and their often impenetrable economic interconnections. In coming to terms with these problems, they recognized the lack of sufficiently effective managerial and legal tools. Intractable enough on their own terms, these problems were exacerbated by the existence of a customary right to property that had developed, in many cases without the knowledge of absentee or inattentive landlords, over the course of a century.

The two available legal remedies against defaulting tenants were the distraint of goods or chattels for arrears of rent and eviction for nonpayment of rent. Legislation in the 1820s that made these far more efficient and effective legal weapons notwithstanding, most estate managers still regarded distraint and eviction as blunt, overly antagonistic, expensive, and unpredictable weapons. The Hearts of Oak and Hearts of Steel rebellions of the previous century were only distant memories in the 1820s, but the threat of violent and organized resistance to blunt enforcement of contracts was constantly alive in the minds of estate managers. As agents began to discover the technicalities, difficulties, and inadequacies of distraint and eviction, they were simultaneously discovering something else: The practice of tenant right on their estates, while posing a definite threat to their property rights, held out for them the potential of more effective management. Progressive estate managers, such as James Hamilton of Strabane or Henry Miller of Draperstown, clearly saw the advantages of accepting the custom and attempting to manipulate it, rather than courting open rebellion by strictly enforcing legal contracts. By the 1850s an increasing number of estate managers had obtained some control over the tenant-right system by restricting the prices paid, by asserting a power of veto over purchasers, and by actively promoting the sale and subsequent amalgamation of farms.

Legislative Recognition

The advance of estate management opened a new era of uncertainty and tension with regard to the meaning of tenant right. The year 1835 marked a critical turning point in the history of the public understanding of tenant right. In that year the liberal County Down landlord William Sharman Crawford introduced the first of many land bills that attempted to give the custom of tenant right legal recognition. His indefatigable advocacy of tenant right was based on economic ideas that defended the continued viability of the small farm within agrarian capitalism. Also in that year the first-ever public meeting urging legislative recognition of the custom took place in Comber, Co. Down. In the following decades the meaning of tenant right was no longer only a matter for tenants, land agents, and landlords on a particular estate. It was now the subject of massive parliamentary inquiries and widely read tracts by leading political economists. In short, the custom of tenant right was rapidly becoming a nationwide question, though not yet implicated in the question of nationhood.

In the 1850s an interpretation of the meaning of tenant right that denigrated historical claims to property and allowed only for a restricted conception of "compensation for improvements" held sway at Westminster. Two acts of land legislation were passed in 1860: Caldwell's Act, which endeavored to regulate compensation for improvements, and Deasy's Act, which reiterated the very fundamental aspect of the private property system that the Ulster custom usurped, namely, that the relation of landlord and tenant be founded on contracts and contracts only. Neither of these acts accomplished the goal of clarifying the meaning and practice of customary tenure. By the late 1860s, in the wake of the Fenian rising, a change in the mentality of legislators had taken place. In his introduction to a land bill that was to become law in 1870, Prime Minister Gladstone told Parliament that the Irish people "have not generally embraced the idea of the occupation of land by contract, and the old Irish notion that some interest in the soil adheres to the tenant, even though his contract has expired, is everywhere rooted in the popular mind." The Land Act of 1870 gave ambiguous legal recognition to the Ulster custom of tenant right, and in so doing, it placed the Irish land question on a new and uncertain footing.

SEE ALSO Butt, Isaac; Land Acts of 1870 and 1881; Land Questions; Oakboys and Steelboys; Protestant Ascendancy: Decline, 1800 to 1930

Bibliography

Dowling, Martin W. Tenant Right and Agrarian Society in Ulster, 1600–1870. 1999.

Vaughan, William E. Landlords and Tenants in Mid-Victorian Ireland. 1994.

Wright, Frank. Two Lands on One Soil: Ulster Politics before Home Rule. 1996.

Martin W. Dowling