PRIMOGENITURE.

HC Deb 04 April 1837 vol 37 cc734-40

Mr. Ewart

rose to renew the motion which he made in vain last Session—that landed property should be made subject to the same laws as personal property, and that in cases where the deceased left no will (and where there was no settlement to the contrary) landed property should, like personal property, be equally distributed among the children or the next relations of the deceased. He believed this to be a subject which, if it did not now interest, would some day certainly interest, the nation. As the merits of feudal prejudice and error were dispelled it would be clearly seen how this proposal was fraught with justice, good policy, and truth. Last year when he made this motion he received no answer, or, if his opponents gave him an answer, they were guiltless of giving him any reason. The Attorney and Solicitor-General ought really to blush for the sophistry with which they met the proposition; and, if he thought the Attorney and Solicitor-General could blush, he should have respectfully asked them to do so on that occasion. But he would come to the point at once with those learned and hon. Gentlemen—he would plunge in medias res, and demand distinct answers from them on the practical legal advantages which he maintained would flow from the proposed alteration. First, he would ask them whether it would not in frequent instances prevent injustice, and carry into effect the real intentions of the deceased? The Solicitor-General said last year that this measure would only meet one case in a hundred. If the hon. and learned Gentleman had pursued his inquiries during the recess, he would find that he had been mistaken. Such cases were familiar. But he would only refer the law officers of the Crown to a most able treatise (in which their reasoning was triumphantly refuted) by Mr. Bailey, the distinguished author of the "Rationale of Political Representation." That Gentleman had pointed out cases, which in any town in the kingdom it was easy to do, of gross injustice resulting from bestowing all the freehold landed property on the eldest son only. As this was a matter of allegation and proof, he (Mr. Ewart) would cite the cases put by that Gentleman, and leave the Attorney and Solicitor-General to deal with them as they could. One case was this: "J. P. purchased a freehold public-house, and some cottages adjoining, for 1,500l. and borrowed on mortgage 800l. He died suddenly, intestate, leaving seven children. The eldest son took out letters of administration, sold all the personal property, and after liquidating the few simple contract debts of the deceased, paid off with the remaining proceeds the mortgage on the freehold estate, and took possession of it as heir at law. His brothers and sisters were left entirely destitute, and were obliged to have recourse to the parish." I ask the Attorney and Solicitor-General whether this is not a case in which justice, and the probable intentions of the deceased, were defeated; and I respectfully pause for their reply. Again: "A. B. a thriving manufacturer, bought the fee simple of the premises on which he carried on his business. He expended a considerable sum in improvements, and, in doing so, contracted debts. Had he lived he would in all likelihood have discharged these debts, and realised a handsome fortune. But he died suddenly, intestate, leaving two sons. Nearly the whole personal property went in paying off the debts contracted in improving the freehold; and unless the elder son, on coming of age, acts with a justice beyond the law, his brother will be left in a state of destitution." Again, I put this practical case, founded on fact, to the Attorney and Solicitor-General, and I wait for their demonstration of the justice of the existing law. But I abstain from citing further cases. I refer my hon. and learned Friends to the book, and to the irrefragable assertion which it contains, that instances such as these abound. I proceed to another legal point; and I ask the Attorney and Solicitor General this question—would it, or would it not, be a public good that the law respecting the two species of property should be uniform? What can be more absurd than that, of two species of property, differing not in essence but in name, one should descend all to the eldest son, while the other is divided equally among the children? Such is the law as it stands at present. A man possesses a freehold, and a leasehold property for 999 years. What is the essential difference between the two? Yet the freehold property goes exclusively to one; the 999 years' lease is equally distributed among all the children. But the author already cited had put this absurd inconsistency of the law in making the descent vary according to the tenure (or rather according to the name) of the property in so striking a point of view that he (Mr. Ewart) could not do better than give his description to the House: "A merchant dies without a will; he leaves a share in an old inland navigation company worth 2,000l.; this (by the inconsistency of the law) is deemed freehold estate; consequently, the eldest son takes it all. He leaves, further, 2,000l. worth of shares in a modern canal; this is all deemed personal property, and goes among his children equally. He leaves a freehold mansion worth 4,000l., subject to a perpetual rent charge; this goes entirely to the eldest son. And he leaves a warehouse worth 4,000l., built on land leased for 999 years; this is divided equally among the children." Again he asked the hon. and learned Gentleman whether the law should not be uniform? Did they admit it? They would not say that the personal property should all go to the eldest son, like landed property. Then they could only come to the same conclusion with himself (Mr. Ewart), and make landed property (in cases of intestacy) descend in the same just and equal manner with the personal estate of the deceased. Another question on the legal bearing of this proposal he would put to the hon. and learned Gentlemen. It was this—would it not be better that all property, landed like personal, should pass through the executor or administrator, instead of passing the real property through the heirs of the deceased, and the personal property through his executor? The executor and administrator are easily found; they are recognised representatives; the heirs may be scattered in different localities, or they may be unknown; this uncertainty involves litigation. Uniformity and economy would be at once consulted by using, for both species of property, the same channel of conveyance, and adopting, as the representative both of landed and personal property, the executor or administrator of the deceased. On this point, also, he expected the answer of his hon. and learned Friends; and unless their affection for Chancery suits dimmed their intellectual vision (which he could not believe) he should have their answer in the affirmative. But it was by no means to mere legal amendment that the operation of this change would be confined. It was better for the commerce of the country that land should be subject to the same laws, chargeable with the same obligations, and descendible in the same manner, as personal property; that it should have the same rules of interchange and distribution, and be endowed with no qualities of artificial accumulation. In a more comprehensive and political view of the question he would ask what civilised nation had not approached, more or less, to the principle of equal distribution? Such had been, in a greater or less degree, the law of the ancients; such was the law of the most enlightened modern nations. "In the code of Justinian," says Gibbon, in his celebrated view of the Roman law, in the 44th chapter of his "Decline and Fall," "the insolent prerogative of primogeniture was unknown; the two sexes were placed on a just level; all the sons and daughters were entitled to an equal share of the patrimonial estate." The same view is taken by the most eminent writers on the science of legislation. He would refer them to the pages of Filangieri and of Bentham. Or, if they wished for an authority to which both parties would look with reverence, he would cite the words of Adam Smith, who said (in his "Wealth of Nations"), "This natural law of succession took place among the Romans, who made no more distinction between elder and younger, between male and female, in the inheritance of lands, than we do in the distribution of moveables. In the disorderly feudal times the security of a landed estate depended on its greatness. Hence the origin of the law of primogeniture. In the present state of Europe the proprietor of a single acre is as perfectly secure of his possession as the proprietor of a hundred thousand." And this is manifestly the view taken of the origin of primogeniture by Burke in his "History of England." But, perhaps, Gentlemen preferred a legal authority on this subject. If so, let them turn to the pages of Blackstone. In the second volume they will find this passage: "The too great accumulation of property is the natural consequence of our doctrine of succession by primogeniture, to which the Athenians were strangers. Of this accumulation the ill effects were felt even in feudal times: but it should always be strongly discouraged in a commercial country, whose welfare depends on the number of moderate fortunes engaged in the extension of trade?" Let me ask (said the hon. Gentleman) whether the sense of property, the feeling that he has something which he can call his own, is not a natural bond which links a man, be he rich or be he poor, to the country of his birth? We acknowledge the truth of this principle in the case of the rich; why should we renounce it in the case of the poor? The feeling of proprietorship is the parent of social freedom and of personal independence. In countries like Norway, and France, and America, where it abounds, you will readily trace its results in the elevated independence of the people. The word "poor" may be familiar there, but the word "pauper" is unknown. Is it or is it not wise to extend to as many of the people as possible an interest in the well-being of the community? If such a policy be generally wise it is much more so in times like these, when education and habits of good order are extending and giving an additional guarantee for the independence and virtue of the less wealthy portion of the people. But, he would ask, were they not themselves recognising this principle in adopting the allotment system? This system of letting out small portions of land to the labouring class was generally approved; and if good conduct and independence were the results of leasing small holdings, the principle must hold equally good, and even be more apparent, when the labourer is a small proprietor instead of being a small tenant. But it is not to the independent character alone, it is to the moral and social feelings engendered by the systems of equal and unequal partibility of property that the legislator ought to look. AH experience and the evidence of all writers shewed that, where the system of primogeniture prevails, the bad passions, the more selfish motives are encouraged, while domestic peace and social harmony are the offspring of the principle of equal partibility. He might be mistaken (and he hoped he was): but it was his opinion that when history came to trace effects to their real causes, to investigate not only the outward laws, but the inward manners and habits of the people, much of what was monstrous in the social and political condition of this country would be traced to the prevalence of the law and custom of primogeniture. Around this false principle the evil passions, human interest, selfish motives, the darker feelings which injustice engendered, grew to taint and poison the atmosphere around them. Around the opposite principle of equal partibility you find the household virtues, the endearing affections of domestic life—unestranged by the insolent injustice of an unequal law—the gentler feelings, which at once bind together, and bless and adorn society. He confessed he looked forward to the time when such feelings would be prevalent in this country. At all events, where the testator was silent, let not the law be presumptively unjust. It was something that the principles of the law should teach the people to think rightly—to think justly. With this impression On his mind he moved "That leave be given to bring in a bill, providing that in cases of intestacy (and in the absence of any settlement to the contrary) landed property be equally divided amongst the children or the nearest relatives of the deceased."

The Attorney-General

said, he felt himself bound to oppose the motion, and could not help expressing a wish that the hon. proposer would turn his time and attention to practical reforms of the law, which would be much more acceptable to the House and beneficial to the public than theoretical propositions. If the arguments of the hon. Member for Liverpool went for anything, they went to support the practice of an equal distribution of property, which prevailed in France. [Mr. Ewart, No.] He could not understand the arguments of the hon. Member to have any other bearing. He must say, that he preferred the English law to that of France, as being infinitely the better of the two. The hon. Member for Liverpool had said the latter indeed was calculated to promote domestic peace and filial affection, but he was of a different opinion, and thought that the English law was eminently fitted to produce those desirable effects, inasmuch as it contributed to maintain the proper authority of the parents over their families. The hon. Member had said, that his proposal would simplify the law and reduce litigation. He believed on the contrary that it would create complete confusion, and instead of preventing litigation would increase it fiftyfold. It would require the introduction of an entirely new code of laws, because by the present law of England the distinction between real and personal property was universal; and if a law were passed to destroy that distinction, volumes of fresh statutes would be required to meet the cases, and provide for the consequences of such an alteration. But he would ask, where was the demand for this alteration? The House had received no petitions praying for it; no public meetings had been called to discuss the question and to declaim against the existing law; no, but a pamphlet had been written and because certain speculative opinions had been put forth in that pamphlet, the hon. Member for Liverpool would have the House agree to the great and universal change which he had proposed to make. He would not oppose any change in the existing law which was likely to be beneficial to the country, but he considered that the alteration contemplated by the hon. Member would be highly prejudicial to the interests of the whole community, and therefore he must oppose it. Indeed, it seemed to him, that in this respect the existing law required no alteration whatever. He must add, that he thought no good could result from the introduction of such a bill as the hon. Member asked for into that House; and that, in fact, it would only be wasting that time which might be much more beneficially employed, and therefore he should give his vote against the motion.

The House divided—Ayes 21: Noes 54:—Majority 33.

List of the AYES.
Aglionby, H. A.	Lushington, C.
Brady, D. C.	Molesworth, Sir W.
Bridgeman, H.	Ruthven, E.
Brotherton, J.	Thompson, Colonel
Collins, W.	Thornley, T.
Elphinstone, H.	Villiers, C. P.
Gillon, W. D.	Whalley, Sir S.
Grote, G.	Williams, W.
Hardy, J.
Hawes, B.	TELLERS.
Hindley, C.	Ewart, W.
Leader, J, T.	Roebuck, J. A.

List of the NOES.
	O'Ferrall, R. M.
Archdall, M.	Ossulston, Lord
Balfour, T.	Palmer, G.
Barclay, D.	Peel, rt. hon. Sir R.
Baring, F. T.	Rice, rt. hon. T. S.
Barnard, E. G.	Richards, R.
Barron, H. W.	Robinson, G. R.
Bateson, Sir R.	Ross, C.
Bernal, R.	Russell, Lord J.
Blackstone, W. S.	Sandon, Viscount
Bonham R. F.	Scott, Sir. E. D.
Butler, Sir J. Y.	Sheppard, T.
Dick, Q.	Sibthorp, Colonel
Dundas, hon. T.	Somerset, Lord G.
Eaton, R. J.	Stanley, E. J.
Fector, J. M.	Stanley, E.
Finch, G.	Stanley, Lord
Forster, C. S.	Tracy, C. H.
Gordon, R.	Trevor, hon. A.
Graham, rt. hn. Sir J.	Twiss, H.
Houlsworth, T.	Vivian, J. H.
Jones, W.	Vivian, J. E.
Leonard, T. B.	Williamson, Sir H.
Lowther, Vise.	Wrightson, W. B.
Lowther, J. H.	Young, G. F.
Lygon, hon. General	Young, J.
Martin, J.	TELLERS.
Maule, hon. F.	Campbell, Sir J.
Morpeth, Viscount	Rolfe, Sir R. M.