SUCCESSION TO REAL ESTATE BILL.

HC Deb 14 February 1854 vol 130 cc656-65

MR. LOCKE KING

said, that on rising to move for leave to introduce a Bill to amend the law of succession to real property in cases of intestacy, he would remind the House, that when he last submitted this question for their consideration, he did so in the shape of a Resolution. He was told on that occasion by many hon. Gentlemen who took a very great interest in the subject, that he would have done better had he then moved for leave to bring in a Bill, because he would have shown that he was really in earnest in directing the attention of the House to the question. It was for that reason that he now begged to move for leave to intro- duce a Bill to amend this law. He was certain he need not remind the House that this was a question of very great importance to a large number of people, more particularly to the middle classes, for when once the rights of property and the security of it had been established in a country, there could be no laws of much greater importance than those which related to the alienation of it, and to the succession to it on the death of the possessor. They had a great moral and political influence. They affected the whole feelings of the nation, and had a powerful influence on its domestic happiness. It had been well observed, that in proportion as the principle of just and equal laws had been established in a nation, its general wealth and its general happiness had been promoted: while by discouraging that great principle, although wealth might be concentrated in the hands of a few, still misery and poverty would be the lot of man. Happily, in this country we had the greatest security for property. Nowhere was the right to it more respected; and he was willing to admit likewise that we possessed the largest amount of wealth, perhaps, which the world ever saw. But side by side with that enormous wealth, with those concentrated riches, we had also the greatest amount of poverty which it was possible to imagine. If it could be shown that the greatest possible extremes in the condition of mankind were desirable, then we must acknowledge ourselves to have been eminently successful, for we could boast of laws, of comparatively modern invention, whose object was, with respect to one class of property, to keep it in the fewest possible hands—to make its alienation and its circulation as difficult as possible, and to discourage to the utmost extent the distribution of it at the death of the possessor. As if the natural differences and distinctions between land and other property were not in themselves sufficient, other and artificial differences had been invented by laws, which were originally introduced for the purpose of enabling a body of conquerors more completely to subdue a conquered nation. It might be said—and he would not pretend to deny—that those laws were in strict accordance with the feelings of a powerful and privileged class; but the question for that House to consider was, whether they were in accordance with the feelings of an equally powerful, but not of a privileged class; and, above all, whether they were in accordance with the times in which we lived, and whether they were not upheld by mistaken ideas of expediency and necessity rather than supported by justice. Those who possessed rights of long standing founded on antiquity rather than on justice, were now bound to give up promptly, and with a good grace, every indefensible privilege—every anomaly—everything that could in any way be construed into an act of injustice. Now, with regard to the property of those who died intestate, the law as it at present stood was full of the greatest anomalies and of many acts of injustice. If they took the case of a parent who died possessed of personal property, the Statute law came in, and forced a division of that property among the children; and that, he thought, seemed to be natural justice. But in the case of a parent who died possessed of real property, the Common law stepped in and snatched the whole of that property away from those who appeared to be the natural inheritors, and gave it to one child alone. In regard to the land itself, the law as it now stood was also full of the grossest anomalies. If they took the case of a freehold estate, they found it went entirely to one child; but if they took the case of a long leasehold, whether for 99, or 1,000, or even 10,000 years, which in many respects was equal to a freehold, they would find that on the death of the possessor the law divided the property among all the children, if the father died intestate. Again, what happened in the case of copyhold property where borough English prevails? Why, the eldest son got nothing, and the property went entirely to the youngest. He might also venture to refer to the case where the holder of personal property agreed to invest the whole of his property in a freehold estate. He signed the contract, he intended when he had completed the purchase to make a will, but dying before he had made a provision for his younger children, what happened? Why, the administrator was bound to disregard the intentions of the deceased, and the whole of the property went to the eldest child. Now, the Bill which he proposed to introduce would to a great extent, or entirely, remove all those anomalies, and a great many others. It was the province and the duty of the law to make for persons who died intestate such a distribution of their property as should not only be just to their families, but also be beneficial to the State. He did not suck in any way to interfere with the rights and privileges of any person; he only desired to apply the same rule to real property which was applied now to personal property. He knew there were many persons who would object to this measure on the ground that it had a tendency to do away with what they called the law of primogeniture. Now, he must confess, he was altogether ignorant of the existence of such a law. There was no law which compelled an individual to give the whole of his personal or real property to one child only. If this Bill passed, it would leave to every person the privilege of making by will, if he chose, his own law of primogeniture. There were others who might say that a measure of this kind would be dangerous to the aristocracy; that, by dividing the property of Peers among their children, it would tend to endanger the peerage. But here it must be recollected that, in the great majority of cases, the property of Peers was so settled, and perhaps so encumbered, that it did not matter whether a Peer made a will or not. If, however, any serious objection were raised on this ground, it might be very easy to remove it in a simple way—for example, by not allowing the property of Peers to be in any way operated upon by the provisions of the Bill. What he boldly claimed was, that there should be equal laws and equal justice for all, and he maintained that where a parent had not made any distinction or difference between brothers and sisters in the same family, it was an act of great injustice for the law to step in and deprive children of their inheritance when they were left most unprotected, and when they ought to look to the law for justice and protection. Even in feudal France, before the first great revolution, a local custom prevailed all over the country, except in Normandy, which compelled the elder brother to make a provision for the younger children. In that country all the younger children, as had been observed by an eminent writer, were looked upon as little else than illegitimate; yet a sort of blood relationship was allowed to exist, and a provision was made for them accordingly; but by the common law of England an elder brother might inherit the greatest part of a county, producing tens of thousands, and even hundreds of thousands of pounds a year, yet he was not compelled to make any provision either for his brothers or his sisters; and even now in the upper classes of society there was a very strong feeling, that if a parent made a will, and left a portion of his freehold property to any than the eldest son, he would be guilty of an act of injustice. That was very different from what the feeling ought to be. There was an affecting story told of the family of M. Dupin, whose eldest son, at a time when it was proposed to alter the present law of succession in France, abjured, in favour of his other brothers, any right which any future law might give him to the exclusive possession of the whole of his father's property. It seemed to him that the only argument which could be used to keep up this system would be that of expediency; but that argument was answered very ably by Adam Smith many years ago, when he said that in the present state of Europe the possessor of one acre was as safe as he who possessed a hundred acres. Now he would ask was it wise or expedient, in a country with democratic institutions, to keep up laws whose object was to create not only the greatest inequalities in the nation, but inequalities in the wealth of one and the same family? But, perhaps, in a question of this kind it was well to look back and see what had been the law and practice in past ages and in different countries. If they turned to the Jewish law and to the institutions of Moses, they found that there the eldest son did not inherit anything approaching to the whole of the property. At the death of the father the property was divided into equal portions, and the eldest son had a right to only two portions, and this was called the right of the first-born. But then there were peculiar institutions, such as the year of the jubilee, and other occasions, when all the debts were cancelled, and when land reverted to the former owner, no matter on what conditions it was parted with—which all tended to keep up equality in families, and to promote that moderation which was the best guard of their liberties and their rights. He mentioned this because there were many persons who ran away with the idea we took our law from that of the Jews. No difference was made in the Jewish law between freehold and personal property, or between moveable and immoveable property. There was also among these people a very stringent law with regard to usury, which was not at all adapted to a commercial nation, and which those persons who upheld the present system of the eldest son taking all the land would perhaps find very inconvenient if it were adopted in this country. If he turned to the Grecian law, he found that there the property was divided among all the sons, who were co-heirs; and in Blackstone there was a passage in praise of the old Athenian law as keeping up equality and preventing the accumulation of estates. According to the Roman law, the property was divided into equal and even shares, and distributed among all the children and the widow. Sir James Mackintosh remarked, with respect to the Roman law, that the nineteenth century had at length brought us nearly to the same point which the Roman reached at the time of the legislation of Justinian. Our materials were ample, and our skill in reducing them to order, ought not to be behind that of any former age. Now, all he proposed to do was to carry out the principle of the Roman law. They had already adopted that law in respect to personal property, and he only asked them to extend it to real property. Among the Saxons, again, he found the eldest son had no right over his other brothers. In short, neither amongst Jews, Greeks, Romans, nor Saxons, was there anything so unjust as our law in this regard. The next question for consideration was, how were these laws introduced, and for what reason had they been maintained for so long a period? There was no doubt as to their introduction. They were introduced with the view of completely subjugating the Saxon people; but why they had been maintained so long he should leave to others to answer. He could show abundant reasons why every vestige of feudalism ought to be abolished, and it became a question for that House to consider whether it was wise for them any longer to treat this great nation as a conquered people, and whether the time had not arrived when the law of succession to real property, as well as every other law, should be submitted to the light of reason and of justice. As long as a remnant of the feudal times existed, there always would be what was termed by Sir William Jones a war of jarring principles. There has been a continual war in the Constitution of England between two jarring principles: the evil principle of the feudal system, with his dark auxiliaries, ignorance, and false philosophy; and the good principle of increasing commerce, with her liberal allies, true learning and sound reason. The first is the poisoned source of the abominations which history too truthfully records; it has tarnished and polluted wherever it has touched the fair form of our Constitution, and for ages even contaminated the spirit. While any dregs of this baneful system remain, you cannot justly boast of general freedom; it was a system of niggardly and partial freedom enjoyed by great barons only, and many bad men, who were perpetually insulting and giving check to the king, while they sacked and harassed the people. What caused the absurd yet fatal distinction between property, personal and real? The feudal principle. The same infernal principle, which then subdued and stifled the genuine equalising spirit of our Constitution. That many jarring principles were still in operation, was a fact of which there could be little doubt. There still remained in connection with the land many vestiges of feudal oppression. We had lords of the manor, with their oppressive rights—for the forest laws, we had the game laws—and we had a system of entail which, though nominally not perpetual, was to all intents and purposes perpetual—a system by which the father was made subject to the son, and by which property was frequently locked up in the hands of persons unable to improve it. Of the cruelty and misery of the time when these laws were introduced, history was full. At one time we found that large tracts of country were depopulated for the sake of making parks for the amusement of royalty; at another it was thought to be necessary, for the sake of preserving the monopoly of land, to make what was called "a zone of desolation." In this way the whole country between York and Durham was laid waste, and an immense number of people—not enemies, but subjects—were slain to increase the monopoly of land. Not many years ago some 15,000 of the peasantry in the north of Scotland were ejected, and their places supplied by sheep; but he understood those who had so acted were now very anxious to get rid of the sheep and to get back the human beings. We had seen the same thing extended to Ireland, where the monopoly of land had ravished the country. He would not trouble the House by going into statistics, but it was worth the while of hon. Gentlemen who approved the monopoly of land to examine the subject, and they would find that while there were fewer proprietors in this country than in any other, we had, in consequence of the laws to which he had referred, a greater amount of pauperism, of crime, and even of insanity. For it was a remarkable fact that in the agricultural districts of England there was not only more insanity than in the towns, where naturally insanity would increase to a greater extent than in tho country, but there was more even than in the agricultural districts of other countries. In the agricultural districts of England I out of every 700 inhabitants was insane, whereas in the agricultural districts of France there was not above 1 in every 3,000. He thought that the natural desire for land was quite strong enough without the artificial stimulus of the Legislature to excite it. When he looked at what had been done in late years—when he recollected that the zeal and eloquence, and the honesty of purpose of the Chancellor of the Exchequer, had induced that House, with scarcely a murmur, to give up one of the greatest privileges which the landed interest enjoyed—its freedom and immunity from the legacy tax—when he remembered that the same right hon. Gentleman had boldly declared the principle that henceforth all claims should be treated with equal justice, he felt that the Government, at all events, could not oppose a measure of this kind, which was not asking the House to impose any new tax, but simply to do away with an unjust privilege, and to resolve that real property should be dealt with in the same manner as personal property. It was now 300 years since any great alteration was made in regard to the laws of succession, and great mitigation was then effected, by power being given to persons to make wills; but he thought it was now time for that House to do something more—to make in fact in the middle of the nineteenth century, a more just will for those who die intestate, than that which was dictated by the spirit of the eleventh and which we still retain. He trusted that there would be no objection to his laying the Bill before the House, as he believed the effect of passing it would be to remove an act of injustice which was dishonourable to the Legislature, and a disgrace to a free and civilised country. The hon. Member concluded by moving for leave to bring in a Bill to amend the law of succession to real property in cases of intestacy.

MR. HADFIELD

, in seconding the Motion, said, he was exceedingly glad that a measure of this nature had been introduced, as it would, if successful, remove a great and serious inconvenience. The House would perceive that it attempted no interference with testamentary power, but merely referred to cases in which the possessor of property died intestate. He believed that if an accurate calculation were made, the personal property would be found to exceed the real, so that it was only the minor section of the property of the country that the law sought to be repealed referred to. As regarded personal property, the law stood as it was now sought to make it with regard to real, and the persons interested had never complained of inconvenience or injustice. In the case of intestacy in real property, if the children were all females, they became co-parceners in the land; but if there were one boy, not only were his sisters, but all his younger brothers, cut off, and he was solely entitled to the inheritance. Was it not most unjust, absurd, and unfair, and contrary to every principle of equity and reason, that if a man died suddenly by the dispensation of Providence, and had not time to make his will, those whom he most loved, and who were the chief objects of his affections, his wife, and all his children but one, should by the law be deprived of what was their natural inheritance.

MR. BRIGHT

said, that when, on a former occasion, his hon. Friend had brought forward this proposition, he (Mr. Bright) had said a few words in its favour, and he could only suppose the neglect of the House to arise from its not being considered a great or practical question. The law as it at present stood was exceedingly unjust; and if he were in the position of an elder son, or of any son receiving an estate on the death of his father, thereby depriving his sisters or his brothers of a participation in it, he should think it just as criminal to take the property as he would to abscond from his creditors or forge a will. He solemnly declared, that in his opinion the thing was so atrocious, so scandalous, and so unnatural, that he did not know of any offence of a pecuniary character which appeared to him so great as that involved in the present law of succession. An hon. Member to whom he had recently expressed these opinions had stated to him, in reply, that there were people who saw the matter in a very different light, and who believed that the Constitution of the country was, somehow or another, bound up in the younger child having nothing and the eldest taking all the property of his father. The Bill now proposed referred only to cases of intestacy. Now he thought that if a person died without a will, the law might at least be allowed to assume that he would have done that which was most just and consistent with parental feeling to all his family. The law took that view of the case with respect to personal property, and there was no reason why the law should not assume the same in cases where real property was in dispute. One effect of an alteration in the present state of things would be to make land more accessible to a large portion of the population than it was at present. The whole question was one which he felt as difficult to argue at any length, or with any force, as he would do if required to argue for or against the multiplication-table—a subject upon which all were agreed. It appeared to him to be a great proof of the depravity of our system, that this relic of feudal times and of the prejudices of past ages should still remain on the Statute-book, and that it should be the duty of any Member to propose in the present day an alteration in the law in this respect. The opinions which he held with respect to this subject were, he knew, the same as those which were widely spread among the middle classes of the country, while the contrary feeling prevailed chiefly among those who had profited by the present mode of settlement and entail, and a very miserable class of persons, not of their rank of life, but who aspired by all means to attain to their elevation and to get into the same circle. He hoped that the noble Lord the Member for London would permit this Bill to be brought in. It did not propose to do much, but he believed it would be received as a great boon by many families throughout the country.

LORD JOHN RUSSELL

said, that he had no objection to offer to the introduction of the Bill; but, with respect to the question itself, he could not agree to some of the propositions which had been laid down by the hon. Members who had spoken on it. He must reserve to himself the right of taking such measures as he might think proper on the future stages of the Bill.

Leave given.

Bill ordered to be brought in by Mr. Locke King, Mr. Phinn, and Mr. Hadfield.

Bill read 1°.