SECOND READING. (Hansard, 18 May 1886)

§ DR. CAMERON (Glasgow, College)
Sir, I rise to move the second reading of this Bill; and before doing so I wish to make a short explanation of its principles. The object of the Bill is to rectify what, in my opinion, is a most gross injustice that is operating in Scotland. As hon. Members from Scotland know the tenure of land in Scotland is peculiar. If the heir succeeds to property he is entitled to pay the superior one year's feu duty; but if any person other than the heir succeeds he has to pay the superior a year's rent. Previous to 1874 the heir would enter, and the superior would only be entitled to one year's feu duty; but owing to an expression in the Act it has been held that the Trustees may enter, and in consequence of their entry they are obliged to pay an entire year's rent. I may illustrate this by referring to the case of a gentleman who used to be a Member of this House. Property had been left to trustees in pursuance of a family arrangement, and the gentleman I speak of said that, if this Act had not been passed, as heir he 1408 would have been entitled to pay a feu duty of £2, but that, the Act having been passed, his Trustees had been obliged to pay, or might be obliged to pay, a year's rent, amounting to several thousand pounds, and that when the property passes to the next heir the year's rental will again have to be paid. Now, this could not have been the intention of the Act; and some of the Scotch Judges most concerned in its passing are of that opinion. The Act provided expressly that nothing contained in it should alter any relations between the superior and the vassals. But it was held that such was the effect of the Act, and it is in order to rectify that anomaly that this Bill is introduced. It has been objected that the Bill, in its present form, will not effect that object. We are most anxious that any form of drafting may be adopted that will accomplish the end in view. I may mention that before Easter, when the right hon. and learned Gentleman the Lord Advocate expressed some intention of looking into the matter to see whether he could arrange to carry out the intention of the Bill, I willingly postponed it, and would with equal willingness have withdrawn it, if I could have perceived the slightest intention to take the matter in hand. I understand that the right hon. and learned Gentleman holds that, prior to the passing of the Act of 1874, superiors had the right to these casualties, although they could not enforce it. Well, as a matter of fact, they never have enforced it; there are no cases recorded in which the right was enforced. Under the circumstances, whatever may be the theoretical view of the case, we are in equity bound to say that a gross injustice, such as I have described, ought not to be allowed to be effected by the wording of the Act of 1874, and for that reason I bring forward this Bill.

§ MR. J. P. B. ROBERTSON (Bute)
Sir, this is a Bill which professes to effect an alteration in the law, which would bring back to their previous state and condition matters that have been arranged by the Act of 1874. It is a moot point among lawyers whether there has been any increment of the rights 1409 of superiors caused by the Act of 1874; and the hon. Gentleman the Member for the College Division of Glasgow is, perhaps, aware that one of the Judges has asserted that there is no addition to the rights of superior caused by that Act. But my objection is that the Bill, which consists of two clauses, is such as to provide no effective remedy whatever; it merely asserts that the Act of 1874 is to add nothing to the rights of superiors. The defect of the Bill appears to me to be that it contains one general proposition and leaves the Courts of Law to work out what is merely an expression of hope or abstract idea with regard to the future. It is not sufficient to say there is something which needs a remedy without stating what the remedy is to be. I do not see anything in the Bill scientific or practical to remedy the evil which is in itself doubtful. At the same time, I am bound to say that in the case of Trusts a difficulty has been created which ought not to have arisen, and if the hon. Gentleman confines his efforts to such specific case, he will then be keeping in the region of practical measures. At present I do not think he is within those limits, and for that reason I do not think the House will do well to assent to the second reading of the Bill. I do not think the measure would confer the smallest benefit upon any but persons of the Profession to which I have the honour to belong, inasmuch as it will, in my opinion, create other difficulties and a fresh crop of problems which it will be most difficult to settle.

THE LORD ADVOCATE (Mr. J. B. BALFOUR)&c.) (Clackmannan,
Sir, I am not going to enter into the details of this subject, which I must say is a highly technical one. But I agree that, while it is doubtful whether the Conveyancing Act of 1874 produces any alteration or not in the right of superiors, I am rather inclined to think that it has produced a practical alteration which has operated hardly in some cases. There is no doubt that there have been some exceptionally hard cases. I had hoped to be able to place my views with regard to the subject in the form of a Bill providing machinery that would carry them into effect—because I entirely agree with the hon. and learned Gentleman who has just spoken, that the Bill as it stands is absolutely useless in that respect, and I doubt whether it would 1410 have any effect at all. The Bill declares that a highly technical Statute shall have in a certain respect no more effect than if it had never been passed. Although I sympathize with the object of my hon. Friend, and have told him that I have been into the matter, and that one of the Legal Bodies has reported on it, I think that we might, with advantage, assent to a further postponment. If we find, as I think we have found, that there are two points which require to be dealt with, one relating to the cases where there are Trustees and the other where there are no Trustees—points which are perfectly distinct—I do not think we can do otherwise than deal with them in a specific Bill. But I hope my hon. Friend will not press this matter now, after the indication I have already given of my hope to put it before the House in an appropriate form.

§ MR. J. H. A. MACDONALD (Edinburgh and St. Andrew's Universities)
I suggest to the hon. Member for Glasgow the consideration that he would not be promoting the end he has in view by pressing this Bill now. I think it a very significant fact that while we have on the back of the Bill the names of Gentlemen who are not lawyers, we have also the names of two hon. and learned Gentlemen—Members for Glasgow—neither of whom has thought proper to stand up here and defend it. At that I am not at all surprised, and I am sure that no one acquainted with the Act of 1874 will be in the least surprised at it. After what has been said by the Lord Advocate, I trust that the matter will not be pressed. With the main clause of the Bill I confess that I cannot agree, and we cannot possibly agree to the second reading of the measure in its present shape.

§ MR. HALDANE (Haddington)
Sir, I think that an altogether undue amount of criticism has been levelled at this Bill. So far from its being unintelligible, I regard the Bill as intelligible in every respect. I must say that I cannot understand the last clause, which I think should be struck out, as being inconsistent with the spirit of the earlier Act, although it makes not the smallest difference so far as the principle of the Bill is concerned. The Bill is to give statutory effect to the opinion expressed by Earl Cairns and Lord Blackburn in 1411 the House of Lords in the case in which the very point dealt with in this Bill arose. It is a very important one. The Act provides that superiors are not to be entitled to casualties sooner than they would have been under the old state of the law, the intention being to prevent superiors receiving larger sums than would have been paid under the old practice—a practice which, according to the opinion of certain Judges, was neither "dishonest nor deserving of reprobation." Now, the Act of 1874 omitted to provide, contrary to the intention of Parliament, that the superior should not have larger casualties than he had under the old law. Well, Sir, this Bill provides, almost in the very words which both Earl Cairns and Lord Blackburn used, that the lacuna in the Act of 1874 should be filled up; it provides that, from and after the passing of this Act, nothing contained in the Conveyancing Act of 1874 shall operate so as to give to superiors a right to any other or larger casualties than they could have exacted if the Act had not been passed; in other words, it enacts that the intention of the Act is not to give the superior the right to larger casualties than there would have been under the old law. The point is a very simple one, and the Bill does no more than make the words of the Judges, used in the case I have referred to, law. I think the object of the Bill is a good one, and shall cordially support the Motion of my hon. Friend.

§ DR. CAMERON
Sir, I have listened attentively to the arguments used by hon. and learned Gentlemen against the Bill, and in favour of postponement, but I feel it my duty to divide the House on the present Motion. I cannot consent to further delay now, because the Bill in its present form was before the House last Session—12 months ago.