AMENDMENTS IN REAL PROPERTY LAWS. (Hansard, 14 April 1831)

§ Mr. John Campbell
moved for leave to bring in Bills to amend the law respecting Inheritance and Descent, respecting Dower, the Courtesy of England, Fines and Recoveries, and Limitations of Actions. The hon. and learned Member 1366 said, that the measures he was about to submit to the House were the results of the inquiries of the Commissioners appointed to investigate the laws as to Real Property. He did not expect, therefore, that they would meet with any opposition. The first Bill to which he wished to call the attention of Members respected the law of Inheritance and Descent. He did not propose to touch the law of primogeniture, which, as it prevailed in this country, was infinitely to be preferred to the law of equal participation, now prevailing in France, where its unfavourable effects upon agriculture were already making themselves felt. But some anomalies connected with that law it was desirable to remove. A father, for example, could not inherit from his child; so that, if a son died without a will, his estate would rather vest in the Crown than go to the father, pursuant to the maxim of law, that land cannot lineally ascend. He proposed to remove that anomaly, and allow a father to be the heir of his own child. Another anomaly was the exclusion of the half-blood; so that if there were two sons by different marriages, and the estate went to the eldest, and he died the second son could not inherit of him, and the estate would rather vest in the Crown. He proposed that the half-blood, under, such circumstances, should be entitled to inherit, with this restriction, that the full-blood of the first possessor should be preferred. Thus, if three sons, the eldest by one marriage, and the two others by another, one of the younger children should have an estate, and die intestate, the father should in the first instance inherit, and afterwards the descent should be, not to the eldest son, but to the youngest, so that the full-blood of the first possessor might have the preference. The next point was, the law of Dower, by which a widow was at present entitled for her life to one-third of any land of which her husband was seised at any time during the coverture. That, perhaps, was a convenient rule in ancient times, when land was the only property: but now it was most inconvenient, being always evaded by conveyances and limitations to trustees to bar dower. Such proceedings to evade a bad law were, however, productive of great delay, inconvenience, and expense. He proposed, that the widow should only be entitled to a life-interest in one-third of the real property of which her husband was 1367 seised at his death, undisposed of by will, thereby assimilating this part of the law to the law of copyhold property. He should propose that a widow should be entitled to dower out of the trust estates of which the husband dies seised, which she is not at present; and which would be an ample compensation for any loss widows might sustain by the other part of his proposition. The next subject to which he wished to call the attention of the House was that of Courtesy; —that is, the right the husband has to the lands of his wife on her death. At present he was entitled to the whole of her land for his life, if he has had issue by her, and although her children by a former husband might be wholly unprovided for. He proposed that the husband should be entitled to the whole of the wife's lands for his life, whether there were issue or not. Such was the disposition of the property naturally prompted by affection, and it was absurd to say, that it should depend upon there being issue of the marriage, a rule founded in the customs of feudal times. But children by a former marriage ought to have some provision from the mother's land; and he, therefore, proposed in such cases that the husband should have a life-interest only in one half, the other half going at once to such children. Fines and Recoveries were the next subject to which he should allude, and it was most marvellous, that such barbarous modes of conveying property should have so long held their ground. It could only be accounted for, by lawyers, like other people, being reconciled to anything, however absurd and extravagant, to which they had been long accustomed; by many persons, having a private interest in preventing a reformation in the law; and by a number of officers depending for fees on Fines and Recoveries. Many persons in the profession were attached to the present system, and he had heard of one who said, he would rather suffer death than consent to its abolition. He meant to propose a mode of conveyance, by means of which a person would be able to accomplish in a few hours that which it required a considerable time to do by fine or recovery, and which was accompanied with great expense. There was another subject, respecting Property and Estates, he alluded to the limitation of right, upon which the law was most ineffective. Nominally, there was a limitation in the right of possession for 1368 sixty years, which was considered to give a good right; but, in consequence of the state of the law, even after sixty years' possession, a claimant might start up and deprive a man of his property. In case an alienation had taken place, or in case of lunacy on the part of a possessor, this period was held to be not sufficient. Thus, in every transfer of property, it was necessary to look into the title for a long series of years; which was attended with great expense, and great anxiety. He meant to propose, that the period of limitation should be twenty years, and that the undisputed possession of property for that time should, with some exceptions in cases of disabilities, give a complete legal title. Under some circumstances of dispute, this term was to be extended to forty years, but at the end of that period the title was to be unassailable. The hon. and learned Member, after complimenting Lord Tenterden for having brought in a Bill to settle the time of prescription as to Church Property, and after expressing his regret that the heads of the Church were opposed, as he had heard, to the noble and learned Lord's Bill, who was a firm and warm friend to the Church of England, concluded by moving for leave to bring in a Bill to regulate the Descent of Real Property.

§ Sir Edward Sugden
seconded the Motion. He expressed his satisfaction at the measure taken by his hon. friend, no man being more satisfied than he was, that these anomalies required to be removed, and no one was more willing than he was, that these unnecessary and antiquated forms should be removed. He was not quite certain considering that fines and recoveries were invented by lawyers to prevent property changing hands, that they ought to be wholly done away with. There were also certain persons who had vested rights under the present law which could not be taken away without compensation, and he wished, therefore, to learn from his hon. and learned friend whether he had calculated the expense of his proposed alterations.

§ Sir Robert Peel
stated, that he had the greatest confidence in the recommendations of the Commissioners, but he hoped that by none of these Bills would any patent places be created which it would be necessary hereafter for the public to buy up. He was afraid, that most of the Bills lately introduced to reform the law 1369 might be attended with some such effect. He alluded particularly to the Fraudulent Debtors' Bill which came from the other House under which receivers were appointed who in any future alteration of the law might demand compensation. He trusted that the noble Lord (Lord Al-thorp) would take care that no such places were made by any of these Bills. He saw much to approve of in the measures proposed, but he wished to reserve his opinion as to their details.

§ Sir Charles Wetherell
also expressed his general approbation of the measures, but suggested whether fines might not be advantageously retained. He would also take the liberty of saying, in reference to one remark which fell from his learned friend at the close of his speech, that he was one of those who thought like the heads of the Church, that the Bill introduced into the other House relative to prescription as far as it regarded Church property, might be productive of mischief. He had the highest opinion of the Law Commissioners, but he did not think himself bound to assent to their recommendations, and should therefore examine the Bills closely before he pledged himself either to support or oppose them.

§ Mr. Crampton
approved most highly of the proposed, measures, and hoped that they might be extended with some necessary modifications to Ireland. He must at the same time say, that all the details of the measures would require to be maturely weighed, and the greatest caution ought to be used in adopting them.

Mr. O'Connell
also expressed his approbation of the measures, and in particular of the other Bill brought in by the hon. and learned Gentleman, the General Register Act, which he thought would greatly enhance the value of landed property. He could only attribute the opposition which had been got up out of doors to that Bill to interested motives, and trusted that the hon. and learned Gentleman would persevere in his plan and bring forward the Bill as soon as possible.

Mr. Keith Douglass
said, that it would be extremely unfair to the hon. member for Weymouth (Mr. F. Buxton), if any thing were permitted to take precedence of the Slavery Question to-morrow. He therefore trusted the noble Lord, the Chancellor of the Exchequer, would use his utmost influence, to postpone the second reading of the hon. and learned Gentleman's Bill. Unless the Slavery Question had precedence, it would be impossible to discuss it to-morrow.

§ Lord Althorp
declared, that certainly no exertion should be wanting on his part to endeavour to induce the hon. and learned Gentleman to postpone his Motion. He felt himself bound in honour to the hon. member for Weymouth to do his best to secure him the precedence.

§ Mr. Campbell
was not aware of the difference in the privilege of Government, and of individual Members; nor did he know whether Government had or had not authority in such matters [none, none.!]. But he certainly did still feel disposed to press for the second reading of the Bill.

Mr. Keith Douglass
requested to know what course was to be pursued as to the Slavery Question?

§ Mr. Campbell
said, that the importance of the measures he wished to bring under the consideration of the House was so great, that nothing but force should compel him to yield precedence to any other; and he reminded the noble Lord near him, that he had been before disappointed in his endeavours to procure a night for the discussion.

§ Lord Althorp
observed, that as the Reform Bill stood for discussion in the early part of next week, it would be impossible for him to promise that any particular day should be afforded to the hon. and learned Gentleman; but as the hon. and learned 1371 Gentleman was aware that the Ministers viewed the Bills he wished to introduce in a favourable manner, he might rest assured that they would do what they could to facilitate the object he had in view.

§ Mr. Campbell
knew so well the candour of the noble Lord, that he should feel perfectly easy at putting himself into his hands.