HC Deb 18 February 1807 vol 8 cc851-60
The Solicitor-General

moved the order of the day for the second reading of the bill for making the Freehold Estates of persons who die in debt, assets for the payment of their simple contract debts. On the question for the second reading being put,

Mr. W. Herbert

rose with regret to oppose any Measure brought forward by the hon. and learned gent. who was the author of the bill. He lamented that he had not heard the statement of that hon. and learned member, when he obtained leave to bring in this measure; but he had read the bill since it had been printed, and objected to it because it went to alter the whole of the law of landed property in this country. If he understood it right, its object was to make all cases of simple contract debts of men who should die in debt, without making any will providing for such debts, a charge upon their real estates. This would change the whole law of landed property, which was coeval with the constitution. There were various ways of charging landed property by mortgages and other legal instruments, and there were sufficient processes for recovering of simple contract debts. Whenever any change bad been made in the common law, it had been generally for the worse. He did not see any urgent occasion for the alteration now proposed, much less on so loose and vague a ground as to provide for simple contract debts. It would have the effect of lowering the value of freehold property. Another objection he felt to the measure was, that it would interfere with the elective franchise, which depended altogether on freehold property: and if it was to be made liable for simple contract debts, in cases of small freeholds, the heir might be thereby deprived of one of the most valuable of his rights. He should have no objection to the measure, if it was to be confined to the cases of persons who die suddenly or violently; for he was sure no honest man who had time to make a will would neglect to provide for his debts. On these grounds, he felt himself inclined to oppose the bill.

Mr. Fellowes

thought that the bill should extend to copyhold as well as to freehold property, because in many cases the freehold and copyhold property were so blended, that it might be difficult to sell the one, without, at the same time time, selling the other.

The Master of the Rolls

thought the hon. gent. who began the debate, was right in considering this bill as making a very material change in the law of freehold property. The law as it at present stood, es- tablished the limits of real and personal property. There were but two ways of charging real property, either by deed sealed, or by will. He had doubts of the policy of increasing the modes of affecting freehold property. At present it was impossible to charge it by a single scrap of paper, or by any parole agreement. The effect of this measure would be, to do away that solemnity which the policy of British law required in transactions that affected freehold property. The fact was, that the parties, by their own act, decided the terms of the contract. The creditor who trusted to the simple contract, knew, that he was not in the same situation as if he had a bond, and he who had a bond knew he was not in the situation of one who had a mortgage. He could see no reason why the law should put the creditor in a situation which he did not bargain for. He might have demanded a higher security if he was not satisfied with the lower, and the debtor might have refused it. Why, then, should the law say that a man might have the advantage of the best contract which he could have made? If the principle were to be recognized it would go much further. A tenant in tail might, by suffering a common recovery,cut off the intail, and make the estate his own, and liable to his debts. If he should die, omitting to suffer such recovery, as the specialty creditor to be let in, who, as the law now stood, was barred? Was the law, because the debtor might have rendered the estates liable to his specialty debts, to supply his act, and let in such creditor? Was the creditor to have every advantage by the operation of law, which his debtor by his act could have given him? Was the principle to be maintained, of legislating for the purpose of putting the creditor in a situation which his own act did not place him in? This principle was not necessary for the future, and would be unjust as to the present. After the passing of this bill, the freehold property of every man, who bad contracted any obligation for which that property was known not to be liable, would if he died, be charged therewith in the hands of his heir. This would be an instance of positive injustice, because it would place the parties in so different a relative situation from that in which they were at the time of making the contract. When he threw these observations out, he did it only by way of stating the difficulties he felt; not of giving a conclusive opinion, as he had not yet heard the grounds upon which the measure had been founded. There did not appear to him to be either necessity for the measure or any utility in it. One of the objects of the measure, he understood to be, to prevent frauds, by persons who might involve themselves in debt, and, with the money borrowed, purchase freehold property, which would descend to their heirs without becoming responsible for these debts. This was a case that had sometimes occurred, and which ought to be prevented. But the measure went, in one respect, beyond its object, and in another fell short of it. Such cases of. frauds were confined to properties purchased by the debtor, and the bill, by extending to all freehold property, went beyond its object. But, by being limited to freehold, and not including copyhold property, it fell short of its object. It would tell the fraudulent debtor to purchase copyhold and, not freehold property; and copyhold property would more effectually enable him to defraud his creditors, because copyhold property was not liable even, for specialty debts. In the bill which had been brought in for the same purpose in, 1772, copyholds and customary freeholds had been included with freehold property. Having said thus much, it was not his intention to object to the second reading of the bill, or even its going into a committee; for in the committee his hon. and learned friend would feel the necessity,for the attainment of his own object, to make some alterations in the measure.

The Solicitor General

would have been extremely glad if the opposition then made had been made before, because he would in that case have had the advantage of knowing the objections that were felt to a measure, which he conceived to be of the highest importance. He must say that it would have been more fortunate if he had heard the objections stated by the right hon. and learned gent. who had spoken last, sooner, because, though he was convinced, that every hon. member was actuated in making objections to any measure by the purest motives, it would have been particularly desirable for him to have heard the objections just stated earlier, both because he had endeavoured to collect the opinion of his right hon. and learned friend on the bill, and had submitted a copy of it to him, and because he could then have given an answer that might have been more satisfac- tory to the house, than the answer he could now give might prove. He admitted that it was incumbent upon any member who proposed any alteration in the existing law, to state the grounds upon which he founded such alteration. If his right hon. and learned friend had not been present when he stated the grounds of this measure, the fault did not lie with him. He had on that occasion stated, that the law of landed property had been framed with a view to a feudal state of society, which no longer existed. It was to pay too great veneration to the wisdom of our ancestors, as it was called, to continue that law unaltered, when the state of society had undergone a change that rendered it inapplicable to the existing state of society. This country had become a great commercial country, and therefore it was necessary to adapt the law of property to such a situation of things. The ordinary obligations in the course of business were not specialty but negociable securities, drawn at a short date. If specialty contracts were to be rendered necessary, that would put an end to commercial business. The case stated by his right hon. friend, had not been urged by him as the ground of his measure. But it was sufficient reason for the adoption of some such measure. Breaches of trust were, as the law now stood, but simple contract debts. Personal property bequeathed in trust for the use of infant children, might be sold by the trustee, and the money laid out in the purchase of freehold property, which, when devised over to his own children, would not be liable to these claims. In like manner, the proceeds of an estate devised in trust to be sold for the use of children, might be vested in the purchase of lands, which either when devised over to the trustee's own children, or in case of his death, would not be liable to the claims of the persons for whose use the estate was devised. The children in both cases would be simple contract creditors, and if there should not be assets sufficient, would be driven to the support of casual benevolence, or parochial relief. This state of the law was a reproach to the country. There were cases that frequently occurred in courts of equity, and yet the gentlemen of his profession, who alone perhaps were capable of framing the remedy, had viewed them with patient acquiescence. The state of the law was peculiar to this country and Ireland. In Scotland, and in the rest of Europe, no property could descend to the heir, without being chargeable with all the debts of the ancestor. An heir could be deprived of his whole property by a single stroke of a pen, in the presence of three witnesses, and was it fit that the only case in which the property should be inalienable from his heir,.was when it was to be made liable for his father's debts. The honourable member who had spoken first in the debate, had said that no honest man would omit to make a provision by will for his debts, but this bill was to place every man in the situation of an honest man. He appealed to any gentleman who heard him, whether he would wish his estate to descend to his heir without being liable for his simple contract debts; and he asked, why require for another what they would be ashamed of for themselves? It had been said, that credit had already been carried to too great an extent in this country. If that were the case, they had an effectual mode of checking it, that would be attended with considerable mutual advantages, by abolishing imprisonment for debt. When a man was ready to give up all he possessed, he ought not to be imprisoned for not doing what it was impossible for him to do. Real estates were affected as well by judgments obtained on actions proved by parole testimony, as by sealed instruments or wills. In the former case, the charge amounted to a lien on the property. This Measure would neither create a lien nor lower the value of freehold property. The same provision in Scotland was not attended with any diminution of the value of freehold property. The objection that the measure ought to extend to copyhold property, he could not answer as satisfactorily as the others. The bill that had been alluded to, had been brought in by a very learned member of his profession (Mr. Ambler), and had failed, perhaps, from having included in it copyhold and customary freehold property. It would be better to proceed gradually. This as a first step of a system would be an important measure; as a single measure it would be highly beneficial. It would be extremely desirable that copyholds should also be made liable; but if the house adopted his measure, he trusted they would not stop there. As to the objection, that this principle would take in estates in tail, he should only say, that he knew not why they ought not to be liable. It was a maxim of the court in which his right honourable friend presided with so much benefit to the country, that a man should always be taken to do that which he ought to do; and certainly as the tenant in tail might, by his own act, have made the estate liable to his specialty debts, there was no good reason why the principle ought not to be extended to such estates.

Mr. Canning

observed, that though feelings of veneration for every institution of our ancestors ought not to be carried to excess and bigotry, they ought to operate so far as to prevent any rash alterations. Innovations of this nature ought to be regarded with the utmost jealousy, and to be examined with the utmost scrupulousness. Without meaning any disrespect to the hon. and learned gent. who proposed this bill, (for as to his abilities there could be but one opinion) he must say, that it was in his own opinion, and that of many others, that a measure of this nature ought rather to have originated in the other house, where it might have, in the first stages, undergone the revision of the great law magistrates. This ought to have been the case, though the hon. and learned gent. had heard of no difference of opinion on the subject; but if there was a difference of opinion existing there that point well deserved the hon. and learned gent's consideration. The particular object of this bill was to meet the cases of fraud with regard to freehold estates, but he admitted that with regard to copyhold and entailed estates the, room for frauds would still be left open. But he insinuated that this was only meant as a preliminary step to similar alterations with regard to copyhold and entailed estates. In this view he had strong objections to the bill. The hon. and learned gent. admitted that one door would be left open for fraud in the purchase of copyhold estates; he would ask him whether previous debts were intended to supersede subsequent settlements of freehold estates, and to be good against purchasers? If they were not, the object of the bill would be evaded; if they were, then you would only be doing away one opportunity for fraud, in order to create a stronger. The hon. and learned gent. had stated, that this was becoming in a great degree a commercial country, and that in that respect its situation was become different from what it was when this law with regard to property had been established. This was certainly true, but though he felt well disposed towards the comer- cial interests of the country, yet he did not think that they ought to be promoted at the sacrifice pro tanto of the permanent landed interest. He did not think that this was wanted. But why did not the hon. and learned gent. make his bill exactly commensurate with his object? Why did he not apply it merely to the landholder engaged in commerce, and adopt the suggestion of the right hon. and learned gent. (the Master of the Rolls) for confining it to the first purchasers of freehold estates. You might secure the object by extending the bankrupt laws to these cases. But as to the general doctrine of the adaptation of laws to the supposed state of the country, it would open a door for all reformation. In the reign of the philosophers of France, there was nothing great or venerable in antiquity that was not attacked, before the great revolution which rendered these changes odious to all the world. If we were to look generally at the fitness of things, he would undertake with half the ingenuity of the hon. and learned gent., to prove to the conviction of speculative men and many others, that there was nothing that had been hitherto held venerable in our law, that, did not require reformation. He could prove, that the right of primogeniture ought to be abolished, and that it was improper to leave almost the whole to lazy drones of elder brothers, and leave the rest to make their way in the world as they could. If you began with these notions, there was no end to them. He had therefore, his doubts as to the propriety of passing this law, and these doubts were not removed. He would not, however, oppose the second reading, because he wished to observe what amendments might be made in it, but he rather thought that he must be under the necessity of opposing its ultimate success.

The Solicitor General,

in explanation, denied his having said that it was his intention to proceed further. He had merely stated, that it might possibly appear proper to parliament to make other alterations in the course of time. He had no personal object whatever in this measure. His sole motive for bringing it forward, was a conviction of the benefits which the public would derive from it.

Mr. Canning

disclaimed having imputed any personal motive to the hon. and learned gentleman.

The Attorney General

supported the bill on the grounds of justice and morality, and his only wonder was, that a measure of this nature had not been brought forward sooner. The object was to compel the heir to do that justice which his ancestor might be prevented from doing by various causes. Our veneration for the institutions of our ancestors must be limited by a regard to justice. He denied that the evil which this bill went to remedy was merely a specific and partial one. The tendency of our law was to facilitate the alienation of landed property, and to get rid of feudalties, and that was certainly not a partial remedy which went to render the real estates of persons dying in debt, and perhaps wishing to discharge them, liable for these debts. It would be a great satisfaction to many persons, who without any fraudulent intentions found themselves, at the moment of dissolution, unable to make arrangements for paying their debts as the law now stood. It would be a great satisfaction to them to have the conviction that their debts would be paid from their real estates. He denied that a bill of this kind ought with any peculiar property to originate in the other house. The great law magistrates would have the measure before them in due time, if it passed this house. He thought that the house and the country were under great obligations to his hon. and learned friend for his bill. He was glad that the subject had been brought forward and laid open to public discussion.

Mr. Perceval

was, upon the whole, rather disposed to favour the bill, for the object of his hon. and learned friend was one which ought certainly to be promoted, if that could be done without injury to the proprietors of land, and he was glad that there seemed a disposition on all sides to canvass this business more maturely. The very reason that rendered it proper to pause upon it was that which the hon. and learned gent. (the Attorney General) had urged in its favour. He had expressed his surprize that such a measure had not been proposed before. This might be owing to some difficulties attending it which were not at present observed, and therefore it was proper to proceed with caution. The cases of copyhold estates and of estates sold subsequent to debts contracted, mentioned by his right hon. friend near him (Mr. Canning) would be very material difficulties. However, the bill had so much merit, with regard to persons dying and leaving their debts unsettled through inadvertence, and not from any dishonest intention, that it had his most hearty approbation at present.

Mr. Morris

observed; that the case of subsequent settlements mentioned by the right hon. gent. (Mr. Canning) over the way, had been already provided for by the statute of Elizabeth. The case of primogeniture was not at all like the present. No remarkable grievance arose from that. He was glad to find that the right hon. and learned gent. below (the Master of the Rolls) had not given this measure a decided and deliberate opposition.—The bill was then read a second time, and ordered to be committed to-morrow se'nnight.