HC Deb 08 March 1854 vol 131 cc467-506

Order for Second Reading read.

Motion made, and Question proposed, "That the Bill be now read a second time."


said, he had had no intention of offering any observations to the House at this stage of the measure if any other Gentleman had appeared disposed to state the grave objections which, in his opinion, ought to prevent the House from sanctioning the principle of such a measure by assenting to its second reading. In his humble opinion, the conduct of Her Majesty's Government with regard to several measures which had been submitted to Parliament this year rendered it imperative that the House should watch with unusual jealousy and anxiety the attempt to pass a measure of this kind; and for the same reason he thought it desirable, not only for that House, but for the country also, to regard with no common interest and anxiety steps which in future might end in democratic encroachments upon our institutions, whether such encroachment should come front One quarter or another, sometimes affecting one institution and sometimes another. The object of the Bill now before the House was to alter the principle of the law of England with regard to succession to real estate. He was most desirous, and especially upon the grounds to which he now adverted, that the House should at once and emphatically refuse to adopt the principle of this Bill. He believed that principle to be opposed, not only to the spirit of our institutions, but to the spirit and feelings of the great bulk of the population of the country. The Bill professed to aim at no very comprehensive object; it professed merely to alter that part of the law of England upon the question which came into operation in the case of any owner of real estate dying intestate; but he thought the House might clearly see that this was only the commencement of other proposals upon the subject. As far as the Bill now before the House went, he considered it to be most unwise in its proposals, and, as he had before said, most inconsistent with the spirit of our laws and the desire and wishes of the people. He believed its operation would be most objectionable. It would in fact come to this—that in any case were sudden death overtook any owner of real estate—that where, by the hand of Providence, any owner of real property was deprived of life before he had been enabled by will to dispose of his landed estates—the law would step in and make for him a disposition of that property which he felt morally certain, in ninety-nine cases out of a hundred, would contravene the wishes and desires of the individual who had thus died. But he thought the House might gather instruction from what occurred, if he rightly understood it, in the debate which took place when the hon. Member for East Surrey (Mr. Locke King) first introduced this Bill. If he remembered rightly, the hon. Member for East Surrey received support from the hon. Member for Manchester (Mr. Bright), whom he (Sir J. Pakington) understood to express an opinion that, although he was ready to support the object and intentions of the Bill, yet, in his judgment, the Bill did not go far enough and ought to be carried to a greater extent. The only construction he (Sir J. Pakington) could put upon that opinion, supposing he were correctly stating the spirit of the remarks of the hon. Member for Manchester—and the hon. Member did not appear to object to the statement—


said, he believed he had not made use of the expressions attributed to him; at any rate, he had no recollection of having done so. If, however, it would serve the right hon. Gentleman's argument, he had no objection to do so now.


said, the hon. Member for Manchester, from the tone of the remarks he had just made, seemed to consider that his words had been misrepresented. He (Sir J. Pakington) could assure the hon. Gentleman that he had no intention of misrepresenting him, and, at all events, it was clear that, if he had misrepresented the language of the hon. Gentleman, he had rightly understood the spirit of his remarks. The hon. Gentleman now said he adopted what he (Sir J. Pakington) had attributed to him; and what did that amount to? It amounted to an opinion upon the part of the hon. Gentleman that the alteration of this law must be carried out even to the extent of making equal division compulsory.


really wished the right hon. Gentleman would be more guarded in his representation. He (Mr. Bright) did not hold that opinion in the least.


said, he was glad to find that the hon. Gentleman disavowed that opinion; but he confessed that, after the admission made by the hon. Gentleman, that, according to his views, the proposal now before the House did not go far enough, he felt some difficulty in understanding what medium course the hon. Gentleman would take between that now suggested by the hon. Member for East Surrey and that which be (Sir J. Pakington) had supposed to be the object of the hon. Member. Independently of the opinion which Members of that House might, and indeed must, form and feel of what was the real spirit of the institutions of this country, and what they knew to be the intentions of the immense majority of the owners of real property, independently of the objections which must be entertained to this proposal upon those grounds, surely the example of a neighbouring country, in what had taken place in France consequent upon the change in this portion of the law there, should make that House cautious how it entertained the proposal made by the hon. Member fur East Surrey. He sincerely hoped that, by an overwhelming majority, the House would prove that it was not disposed to entertain any proposal which might lead to encroachments upon the existing law of England with regard to the succession to real property. He regarded this subject with more anxiety on account of the present conduct of the Government of the country, and he could not but bear in mind that the hon. Member for East Surrey, who moved the Bill, and the hon. Member for Manchester, who avowed his intention of supporting it, and of even going still further in the matter, were among those Gentlemen upon whom the Government of the country most constantly relied for support. He hoped to receive from the noble Lord (Lord John Russell) intimation that the Government were prepared to resist any encroachment on our institutions in this direction at least; though, even should they obtain that assurance, he could not forget that the noble Lord had resisted formerly several propositions of hon. Members behind him, which he was now no longer prepared to resist. Year after year they had had Members of the same political party as the mover of this Bill urging on the House the repeal of the ratepaying clauses of the Reform Act, and while the noble Lord was the leader of a Liberal Government he uniformly opposed those proposals. The hon. Member who brought forward this Bill (Mr. Locke King) had brought forward year after year Motions for giving the 10l. franchise to county voters, which the noble Lord, as head of a Liberal Government, had also opposed. But now that the noble Lord was in a new position, combined with Colleagues who were professed Conservatives, he was found supporting those very changes which he had before resisted. It was impossible for hon. Members on his (Sir J. Pakington's) side of the House to regard with indifference these examples of a tendency to encroach upon the institutions of the country, which the noble Lord and his Colleagues appeared disposed to make. There were other Bills on the table of a similar tendency to the present, and he thought it most desirable and necessary at once to check the advance of measures of this description. The noble Lord had complimented him upon a recent occasion—though it was not intended for a compliment—with being explicit. It was always his (Sir J. Pakington s) wish and intention to be explicit; for he was not one of those who thought that language was given to a man to conceal his thoughts; and in his opinion, when measures of this dangerous tendency were brought forward, and when hon. Members saw the course which the Government were prepared to take, it was his duty to be explicit, and be was prepared to set his face against such measures and to do all that he could to oppose them. He would move that the Bill be read a second time that day six months.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."


said, he thought the House would agree with him that the right hon. Gentleman had not been very successful in advancing any arguments against the Bill. The right hon. Gentleman began, with a solemnity of tone which indicated that he was about to make something like a funeral oration, to express his fears that the Constitution, under Her Majesty's Ministers, was in extreme peril, and that this was only one of a series of measures to overturn it. Then the right hon. Gentleman fixed on him (Mr. Bright) as having opinions to which probably the House would not agree, and thence tried to prejudice the House against this Bill, by tying up with it certain ulterior opinions which he assumed he (Mr. Bright) held. That was a common course of argument, but he did not think it was a very fair one, and certainly it was not one which he should himself pursue. The right hon. Gentleman said this Bill was quite contrary to the spirit of the institutions of the country. Now, that the right hon. Gentleman had said of almost every measure to which he was opposed that had been brought forward since he (Mr. Bright) had been in Parliament. He had made the same assertion of every measure of Parliamentary reform; and he had said the very same thing of all those great measures of financial reform, to which, rather more than a year ago, the right hon. Gentleman had notwithstanding set the seal of Ids approbation. All those measures had been discussed in the very same spirit, by the same party, and in almost the same words. The right hon. Gentleman, or his Friends, used to say, that it was contrary to the spirit of the Constitution that the landed gentlemen of this country should not hold a monopoly of the markets of the country. [Sir JOHN PAKINGTON dissented.] The right hon. Gentleman was conveniently forgetful; and if he (Mr. Bright) were in his place, he should wish to forget everything he had said on that subject. The right hon. Gentleman said this appeared to be but a small measure on the face of it, but it was the beginning of a series of measures which would tend to the calamities he had described. But the course of our legislation and judicial proceedings had for a long period been in favour of that which this Bill proposed, namely, to set landed property more free than in feudal times had been the case. And this Bill was not only conformable to public morals and public feeling, but was clearly another step in the direction of that legislation which the House had agreed was wise and judicious, the object of which was to set more free that most important description of the property of the country, the land on which we lived, and out of the produce of which we existed. The right hon. Gentleman said ire could see no stopping place—nothing between the law of primogeniture as it now stood in the country, and the compulsory division of land, as in a neighbouring country. If the right hon. Gentleman had lived in the time of the Stuarts, he would have insisted there was nothing between the Government of Charles and a red republic; he would not have understood that there might be such a thing as a limited monarchy and constitutional Government; he seemed to have no power of discriminating between a bad principle in one extreme, and a bad principle in another. If he (Mr. Bright) were asked, whether he approved of the forced subdivision of land in France, any more than the forced non-division of land in England, he should say it was extremely difficult to choose which was the worst, and no one would ever find him voting for one or the other. He believed both plans to be contrary to all sound economical principles; and that the true principle with regard to land was just that which was adopted with regard to personal property, that they should give the most unlimited freedom, as the law now gave, to the testator to make his will as he liked; but if he failed to make his will, let the law come in with powers to make such a distribution of his property as, according to the dictates of natural affection, a parent would have made had he been under the influence of just feelings with regard to his family. The right hon. Gentleman said public opinion was very much against this Bill. Now he had no doubt the right hon. Gentleman's public opinion was very much confined to the public opinion of territorial proprietors, and of the aristocratic classes, upon one of the lowest steps of whose ladder the right hon. Gentleman had succeeded in placing himself. He was willing to admit that large holders of land generally objected to the dispersion of their estates, as tending to weaken their family influence; but he (Mr. Bright) had not the smallest doubt that, if the opinion of the great bulk of the people between that class and what I he would call the "wages class" could be ascertained, it would he found to be in an overwhelming degree in favour of this Bill, because it was quite notorious that, with regard to landed property, men of the middle classes generally did make by will an infinitely fairer division than the law made in cases of intestacy, and they wished to see the law brought into harmony with their own practice and opinions, which would be the effect of this measure. The right hon. Gentleman did not argue much against the Bill; he merely endeavoured to throw blame on persons on that side of the House for desiring any change. He (Mr. Bright) did not hesitate to express his opinion that no circumstance was so unfavourable to the labouring population as the concentration of vast landed estates, through successive generations, in particular families. For instance, there were probably more noblemen's and gentlemen's seats and parks in Hertfordshire than in any other county of its size. A friend of his, in the legal profession, who varied his occupation by cultivating a farm in Hertfordshire, gave him an anecdote to show how the forced retention of estates acted on the labouring classes. A labourer of remarkably frugal habits and laborious conduct had saved enough money to buy a horse, and applied to him to lend bins a cart, as he thought he might make a little money by carting coals and other things about the neighbourhood. The gentleman being anxious to help a deserving man, lent him a cart for some time, and by working early and late, and living almost literally on a crust a day, the man became possessed of two or three carts of his own, and such an employer of labour as to keep a boy. He came to the gentleman, and said, "If I could get a farm of fifteen acres I should be on my way up; but there is not in the district a farm of fifteen or twenty acres that I could take or occupy for love or money." His friend added, that he was so satisfied of that man's industry, that he was sure, if he could have obtained a small farm, he would have been in a few years one of the first farmers in Hertfordshire, and a large employer of labour. To the agricultural labourer the system was like a ladder, all the steps of which were broken out within ten or twelve feet of the bottom. If the man had had 1,000l., he could have raised himself; but he was at the level where there was no help and he remained in the position in which he was. That was not the condition of the labouring classes in the counties of Durham or Lancaster. In Durham there were more men underground than there were upon it, cultivating its surface, and in Lancashire they found men constantly springing up from the humble position of the man earning 20s. or 30s. a week. But that was not the state of things in the agricultural counties, under laws established for taking care that the great bulk of landed property should be kept continuously in certain hands; and those laws had no respect whatever for the hopes, and exertions, and ambition, if ambition ever could arise in the breasts of the agricultural labourers of this country. He was in favour of this Bill on that ground. He, for one, thought it desirable that land should be as easily bought and sold in the market as any other property. He liked to see in Lancashire the small mills and small concerns, as well as the large mills and large concerns. He liked to see a regular gradation, showing that men by frugality and industry were making their way from the smallest to the more elevated positions. That was not so with regard to landed estates; and upon reasons of common honesty and morality, if on no other, the law ought to be altered. There were thousands of families, in the nearest relationship of life, whose friendship had been destroyed by the operation of this law, which excluded any but the eldest son from succession to the real estate in cases of intestacy. There could not be a doubt that differences would arise when property was given over to one member of a family to the exclusion of all the others. Since he spoke last on this sub- ject, he had received a letter from a gentleman in London, describing the injustice and hardship which the law had inflicted on his family. He said:—— My father died suddenly in 1826, leaving a widow and eleven children. His landed property was worth about 15,000l. or 16,000l. his personal property was sworn under 4,000l., the whole of which was absorbed by bond and other debts. He left four sons and seven daughters. The eldest son had already assumed the name, having succeeded to the property, of his maternal grandfather. By the intestacy the eldest son succeeded to all the landed property; and the debts, which absorbed the personal property, had been principally incurred in the purchase of the land. Ten brothers and sisters, as regarded their father's property, were left utterly penniless and at the mercy of their elder brother. My father left an inoperative will, which evinced his intention to provide an annuity for his widow, and to divide his property equally among all his children, giving the option to the eldest son to take the land at a fair value, as he had purchased it with a view to complete the grandfather's estate. Heartburnings and jealousies naturally arose, and this case is illustrative of the general cruelty and injustice of the law of primogeniture among the middle classes; but its repeal cannot benefit me, or repair the wrong it has inflicted. He (Mr. Bright) ventured to say that was a true description of what took place every year in all parts of the country; and that for which every roan would be reprobated as unnatural, wicked, and cruel, was the effect of a law which the right hon. Gentleman thought part of the British Constitution. He (Mr. Bright) would be ashamed of such a law; he should be ashamed to say he was the supporter of a Constitution one of whose bulwarks was opposed to natural affection, common sympathy, common honesty, and ordinary morality. They reprobated a man as one who ought never to have entered into the marriage tie, or encountered the responsibility of parentage—as a man, who ought to be left as isolated as he was selfish, with none of the joys and comforts of a family—if he were unwilling, to undertake those duties which morality, honesty, and religion required; and yet the law, if he failed to act, acted in such a way as to leave his wife and family utterly penniless, for the sake of amassing everything in the hands of the eldest son. Those were the views upon which he founded his belief, that the time was come when the spirit of the Constitution required that morality should no longer be sacrificed, and when the House ought to pass this Bill. By whom was it introduced? By a Gentleman unconnected with the terrible democratic class—unconnected with cotton spinning—not coming from Manchester—not supposed to have any great sympathies with that great class to which the right hon. Baronet was opposed. He was born one of themselves, and had seen more of the evils of this system than he (Mr. Bright) could possibly describe. He, therefore, entreated the House to consent to the just proposition which had been embodied by the hon. Member in this Bill.


said, the speech the House had just heard was a very natural one, coining from an hon. Member who, in his speeches elsewhere had affirmed his predilections for a different state of government—namely, a republic.


No man living has ever heard me say anything of the kind, and I must protest against sentiments being attributed to me that I never uttered. Really the right hon. Baronet and the noble Lord put me in a very awkward position in compelling me to make these constant interruptions.


would make every apology to the hon. Gentleman, but he only stated what he saw in the newspapers. [Mr. BRIGHT: The Standard, perhaps]. No; in reports of speeches professed to be made in Manchester or Liverpool. The hon. Gentleman, from the latter part of his speech and the tone of the letter he had read, evidently wished to abolish the law of primogeniture altogether. That went considerably further than this Bill, which professed to deal only with particular classes of property left under particular circumstances, whereas it appeared that the law of primogeniture was at the bottom of the whole concern, for the proposed measure was a mere fallacy unless it involved in principle the utter abolition of that law; for if it were unjust that the heir should be preferred to all the children, then this was equally the case whether it were done by will or by the law. As to the morals of the public being concerned, he could not see how the public were concerned in an act which only affected a certain class, and only a few members of that class; and as to the case in the letter which the hon. Gentleman had read, he did not see how it made out his position, for if the deceased gentleman had left all his property by will to his eldest son, the rest of the family would have had just the same reason to complain. Look, too, at the hardship which would be inflicted in carrying out the new law. If the House would imagine a gen- tleman dying intestate, and leaving a property with a large house upon it, it would be in the power of every member of that family, if the present law were repealed, to enforce the sale of the family house and the division of the family estate. It was clear that if the present Bill passed we should see gradually enforced among us a subdivision of property as in France, and a state of feeling such as existed in the United States, where no man dared to leave a larger share of his property to his eldest son than to the rest. As to the complaint of the want of small owners, he (Lord Lovaine) had never known a small owner of property in England who was not mortgaged over head and ears. The reason was clear, for how could the small owner compete with the large capitalists and the large proprietors? If anything went wrong or any accident happened to his farm or his house, he could not find means to repair it without being obliged to borrow money. The condition of the possessor of a small farm in this country was frequently worse than that of a mere labourer. He concurred in the alarm expressed by the right hon. Gentleman (Sir J. Pakington) relative to the tendency of this and similar measures, and was, like him, disinclined to make great changes in the distribution of the property of the landed classes. He would therefore oppose this and every other Bill which tended to prevent the formation of a powerful landed interest in this country, which was the only source of a power able to withstand the daily attacks made upon property of every description by the lower class of voters, to whom, in the possible event of the passing of the new Reform Bill, the whole power of the kingdom was to be delegated.


said, it was a common belief abroad that there was a law of primogeniture in this country, and in conversation with intelligent foreigners he found them greatly surprised when they were told, what was the fact, that primogeniture in all its operations rested upon the customs of the country and the will of the people, and upon no law except that small pin point of a law now under discussion, and which he agreed with the hon. Gentleman (Mr. L. King) it would be well to abolish. The law of this country at the present moment was, with one exception, the law of the whole of the United States upon this point, and the whole difference in the operation of the law between this country and the United States of America depended upon the different habits and customs of the people, and not upon any difference of legal arrangements at all. He had, therefore, been surprised to hear a Gentleman who was generally so well informed as his noble Friend the Member for Northumberland (Lord Lovaine) come here and talk of a law of primogeniture which did not exist. A great many matters had been introduced into the discussion which did not seem to him to bear at all upon the question. They were not there to determine whether large or small farms were desirable, or whether our system of testamentary inheritance was better than that of France; but upon the first point he must be permitted to remark that, when his noble Friend told him that small farms were mischievous, and led to nothing but desolation, he might fairly ask him to look at the present state of Belgium, and see whether, under a system of prudent management of the small farms of that country, a larger produce was not got out of the land than from the richest fields of the Lothians. Nor could he admit that his right hon. Friend the Member for Droitwich (Sir J. Pakington) was right in saying that the system of subdivision of land in France carried with it all those evils which he appeared to imagine had resulted from it. He thought that, if he had looked a little further into the matter, he would have found that the very large distribution of landed property throughout France was the conservative element in that country, and had helped, as he believed, to carry her with comparative safety through political convulsions to which he should be sorry to see our country exposed. He should give his vote in favour of the measure; because he believed that if there was any one barrier which could be raised against coming, at a future period, to a system of forced testamentary jurisdiction, it would be found in the abolition of the law which this Bill proposed to repeal. If they took that course, the whole testamentary jurisdiction of the country would remain entirely free,—every man would have a right, as he had now, to dispose of his property as he pleased, and if he died without a will, the division of his landed property would not be affected by legislative provision, and would follow the natural course of things. There was nothing in this Bill, if he wished to concentrate his property upon his eldest son, to prevent his doing as he might think best;—all that would be necessary in order to effect that object would be that he should make a will, and it was only in the event of his dying without a will that this measure would take effect, and direct in what manner his estate should be distributed. Much misconception was abroad as to the operation of this law. Its ill effects fell principally upon the lower classes of those having landed property, although its operation was occasionally most injurious on the higher classes of society. The hon. Member for Manchester had mentioned some cases which had been communicated to him, and he (Mr. Milnes) was acquainted with a case which had occurred in the West Riding of Yorkshire, that of a gentleman who had amassed a large property as a manufacturer, and had invested a considerable portion of it in land. This gentleman died intestate in a very sudden and tragical manner, and the whole of his landed estate had descended to his eldest son. In that case, however, the heir, being quite convinced that this was not what his father intended, nor what he would have done if he had made a disposition of his property, himself made a voluntary division of it equally among his brothers and sisters, and refused to avail himself of the advantage which the present state of the law gave him. England and the United States were the only two countries in which a law of forced testamentary division did not exist. The law of this country most wisely left the general disposition of property freely in the hands of those who bequeathed it. He regarded this as a most precious portion of our liberty, and if we had proceeded upon any other system we should have progressed rapidly towards a forced testamentary disposition of property. The right hon. Baronet (Sir J. Pakington), who had quarrelled with the Government for supporting this Bill, might have waited to hear what the Government said before he made them responsible for a measure, with respect to which, he believed, they had held no communication with the hon. Member who had introduced it. He trusted, however, that the right hon. Gentleman was right, and that the Bill would receive the support which he had assumed, and to which it was so well entitled.


should regret if his hon. Friend who had just spoken had misled any of those enlightened foreigners with whom he had been conversing on this subject; for if he had told them that there was no such law prevailing in this country as the law of primogeniture, he had been persuading them of that which was undoubtedly an error. He always imagined himself—and he had had some experience in the law—that a law of primogeniture did exist in this country. He had always imagined that if a person died possessed of real property without making a will, and left several sons, the eldest would succeed to the inheritance; and he had always supposed that if a person had devised to him an estate—to him and to his heirs—it was the eldest son who, upon his death, succeeded to that estate, and not the whole of his sons, who in one sense might be considered his heirs. And, so far from its being "custom," as his hon. Friend appeared to indicate, which regulated this succession, it was as completely part of the law of this country that primogeniture should prevail, as any other law, however firmly established. Any hon. Gentleman who was well read in the matter would know perfectly well that when the feudal system was established, the eldest son, probably on the ground of his being best able to undertake military duties, succeeded, on the death of his father, to the fief; and, with regard to soccage land, the right of primogeniture was established at a very early period, except in certain cases, such as the gavelkind land in Kent and other counties, but principally in the county of Kent; but these were not the rule, but the exceptions. Now this was accompanied, with respect to soccage land, with a power of devising by will, but with respect to military tenure there existed no power of devising at all until the statute of Henry VIII. The law of primogeniture, therefore, applied to both; but in the one case with, and in the other without, the power to devise, until the reign of Henry VIII.; and even the statute of Henry VIII. did not give the power of devising the whole of the land held by military tenure, but only a portion of it; and it was not until the abolition of military tenure, in the reign of Charles II., when military tenures were converted into free common soccage, that the general power of devising land was introduced. It was therefore saying what was entirely inconsistent with the laws of the country, when his hon. Friend told his "intelligent foreigners" that the law of primogeniture did not prevail, but that it was merely custom.


I stated that, with certain exceptions, it did not prevail. What I intended to say was, that the disposition of landed property in this country was now the same as if that very Act of Henry VIII., which my learned Friend has alluded to, had never been passed.


was much obliged to his hon. Friend for the explanation; but he had led his foreign friends very far astray, for he had given them as an exception what was, in fact, the rule; but he had set them completely right by the large exception he had been kind enough to give them. Having, as he hoped, established that there was a law of primogeniture, either in the rule which prevailed or in his hon. Friend's exception, he would now proceed to consider the measure which was before the House, and it appeared to him that that measure was objectionable, either because it was useless, or because it was mischievous. It was useless, because it provided that in every case any person, by making a will, might obviate the application of the law, and the only consequence of such a law passing would be to induce everybody to be extremely careful to make a will with respect to his real property; and he thought it mischievous, because it recognised the principle that it was desirable there should be a division of real property among children in cases where the party died intestate. Now, whatever might have been the opinion of the earlier political economists, such as Montesquieu and Adam Smith, he believed that in the present day the general notion obtained that it would be extremely undesirable to have a compulsory law for the division of real property. He thought they were all agreed upon that; for they had had an instance from a neighbouring country, which enabled them to judge as to the propriety of introducing a measure of that kind; and he thought that being a principle to which we seemed to be opposed, it would be adopting a most unfortunate course to call on Parliament to recognise such an objectionable principle, and to allow its operation in those cases where, by accident, the party had not made a will disposing of his real property. That being the state of the case, be had listened with great attention to the speech of the hon. Member for Manchester, because, following as he did the right hon. Member for Droitwich, and objecting to the arguments his right hon. Friend had used against the measure, he took it for granted that the hon. Gentleman was about to answer those arguments, to adduce some reasons of his own, and to give some explanation which would be satisfactory to the House as to how far he intended to go, or of the course which he wished to take in reference to this matter. The hon. Gentleman had said he wished to go further than this Bill proposed to go; that this was merely the beginning of a course in the right direction; but did the hon. Gentleman inform the House the extent of his own views? Did he tell them at what point he wished to stop between the present measure and a compulsory enactment for the division of real property? He was not aware that the hon. Gentleman had given the House any explanation at all of what his intentions were; and it was impossible, as it appeared to him (Sir F. Thesiger), when once they had admitted this principle, to stop short of carrying it out to its full extent. They would be compelled to proceed, and it was that which made him apprehensive with respect to the consequences of the measure proposed by the hon. Member for East Surrey. Hon. Gentlemen were aware that settlements or wills that were intended for the settlement of property generally terminated the course of that settlement by a general devise in favour of the heirs of the settler (or testator), or of the person in whose favour the settlement or will was made. Now when once Parliament had recognised the principle that, in the event of a person dying intestate, all his children were to be heirs of his real property, he should like to know how it would be possible for them to stop short, and to say that there should not be a measure introduced by which an interpretation should be given to those words of general devise or of settlement allowing all the children to be considered as heirs of the devisor or settler. They would thus have got another step in advance; and it was a step which he thought they could not fail to make, supposing they carried this Bill, by establishing that all the children of a man should be considered his heirs, instead of his eldest son. But why would they stop there? If it were considered desirable in cases of intestacy that all the sons should succeed to the real property, why should it not be considered desirable in all cases? Why did they provide for a few cases, establishing a principle which they said it was important to establish, and forbear to carry out that principle to its fullest extent by applying it in every case? It appeared to him that it was almost impossible to adopt this measure and to stop short of advancing to the very last point—the compulsory division of property. But, in point of fact—and he thought it was not inappropriate to mention it in this place—that principle had been tried already in this country, and had been found so inconvenient that the law had been repealed. He had alluded to the county of Kent, and to the gavelkind tenures which prevailed there. The House would please to recollect that by the law of gavelkind the land descended, not to the eldest son only, but to all the sons equally, but with a power of devising by will, which was exactly the condition of things which the hon. Member for East Surrey wished to bring into operation at the present time. Now, this law had been found so inconvenient that various private Acts had been passed for the purpose of what was called "disgavelling the lands," until, he believed, in the 31st of Henry VIII. a general statute was passed for disgavelling lands in Kent. He thought that was a most important circumstance, showing that at one time the very law which hon. Gentlemen wished to introduce now for the equal division of real property among the sons had in fact at one time existed.


said, his Bill contemplated the division of all the property among all the children, not among all the sons only.


said, that then the bon. Member would excuse him for saying this only made his illustration the more forcible. There had, at all events, been a law contemplating, with respect to certain lands, their equal division among all the sons; that law had been accompanied with the power of devising; and it had been considered so detrimental and inconvenient that those lands had been disgavelled, and the law of primogeniture was applied to them as to the other lands of the country. He asked the House to pause and consider what the effect of such a measure as the present would be. The hon. Member for Manchester had told them what his objection was to the present state of the law—that he considered it highly inconvenient that large properties should be concentrated in particular families; and it was obvious, therefore, that he thought that in some degree the effect of the measure proposed by the hon. Member for East Surrey would be, that large properties would in process of time fail to be concentrated in single families. Would hon. Gentlemen take warning by past experience? In the reign of Queen Anne it was thought extremely desirable to diminish, if possible, the influence of the Roman Catholic aristocracy in Ireland; and what course was resorted to for that purpose? A law was passed by which, when a person died without a will, or died without having made any settlement of his property in his lifetime, his property was to be divided among all his sons; and that law prevailed until it was repealed in the Session of the 17 & 18 Geo. III., showing that this measure which the hon. Member for East Surrey proposed was one that was calculated to weaken the aristocracy of this country. He confessed he felt very strongly indeed in opposition to the measure which the hon. Member proposed. He said, "Why, there can be no harm in it;" at least, he (Sir F. Thesiger) had heard it said," There can be no harm in it, because there is nothing in it to prevent a person from making a will by which he can obviate the distribution of his property." Now, he did not think it was a good course of legislation to pass laws because they could do no harm. He thought it was very desirable, where a mischief was to be remedied or an improvement was to be made, that a law for such a purpose should be passed; but he could not agree to such a principle as that which had been alluded to with regard to the law of succession. It was very true persons might obviate the operation of the law by disposing of their property by will, but if they did not, that which he thought an objectionable principle would come into operation, and they at once had an effect produced which, he agreed with his right hon. Friend, was contrary to the institutions of the country, was contrary to the laws, and was one which, as he had shown, had been considered prejudicial in the course of our history. He said it would be a most dangerous example if the Legislature were to give any countenance to a principle of a kind which had proved so highly detrimental. On the ground, therefore, that the measure was useless and mischievous, he should certainly vote in support of the Amendment of his right hon. Friend.


said, he could bear testimony to the great inconvenience of small subdivisions of land. The hon. and learned Member, while speaking of gavelkind, did not mention that it had ex- isted in Wales to such an extent, that at the present moment the evil of the subdivision of land was still felt, its fields often being divided into three or four plots of perhaps a quarter of an acre each, which prevented all improvements in farming and in the land. He did not see anything revolutionary in the Bill; but, believing if the principle were adopted it would have to be carried out to its full extent, he warned the House of the great inconvenience which, from his own knowledge of the effect of the practice in the Principality, it must result in. Not only would it break up large properties into small divisions, but it would equally apply to small farms of a few acres, which in the end would be subdivided in a manner productive of the greatest injury. He considered the small subdivision of lands in agricultural districts in France highly detrimental to the agricultural produce, and made France in a great degree dependent upon foreign lands. The hon. and learned Gentleman had so well met the Motion of the hon. Member for East Surrey, that he would not trouble the House further; but he should have thought it wrong, had he not mentioned to them the inconvenience suffered by subdivision of land in the Principality.


said, the hon. Member for Manchester had mentioned the case of a poor man in the county of Hertford who was kept down, not being able to obtain land in consequence of the largeness of the properties. He (Mr. Packe) was a proprietor of land in that county, and had a tenant with considerable property who began in a very small way. The hon. Gentleman had also stated that the agricultural poor were unable to rise in the world in consequence of the law of primogeniture; but he assured him that there were several other instances in which persons had risen from the position of day labourers to be the occupants of farms. He would not argue the question as affecting elder sons, but entirely as affecting the poor man. No gentleman riding over the country from end to end would see otherwise than that in those parishes where land was in the bands of one individual the poor were better clothed, better housed, and better fed than in parishes where property was divided b among ten or twelve different proprietors. The head of the family of the noble Lord the Member for Northumberland (Lord Lovaine) had laid out large sums in building cottages on his property and otherwise increasing the comfort of the labourers; what would be the effect, as regarded them, of that property being subdivided among a dozen or more persons? The same might be said with respect to the labourers on the estate of the noble Duke the brother of the noble Lord opposite (Lord John Russell), who had also done much to improve their condition, and took great interest in making them comfortable. Those plans could not have been carried out, if these estates had been divided into a great number of small properties in a great many different hands, and therefore the present measure could not be said to be one which would tend to improve the condition of the agricultural labourer. He should give his vote for the Amendment.


said that, although he intended to vote against the second reading of the Bill, he agreed with much that had been said by the hon. Member for Manchester and the hon. Member for Pontefract (Mr. M. Milnes). He admitted that nothing was more likely to foster a conservative feeling than the possession of property; but it must be recollected that the working classes of this country were not like the labouring population of France, where the land formed nearly the whole property of the working class. It was different in this country, where, if the labouring classes had not land, they had property of other kinds—many of them, who were artisans, possessed tools of considerable value—they had better furniture and many more comforts about them than those of the same class in France—and they disposed by will of the property which they were enabled to acquire. He did not think it, therefore, at all necessary, in order to an increase of conservative feeling among the labouring classes of England, that any compulsory division of landed property should be introduced, and he was sure that the labour big classes themselves would not wish it. He agreed with the hon. Member for Manchester, that it was undesirable there should be such an accumulation of property in the hands of a few persons as would prevent a prudent person from being able to rise; but, whatever might be the case in particular instances here and there, this was not the true characteristic of the state of landed property in England. There were many opportunities of which a prudent man might avail himself to rise, step by step, from labourer to hind, from hind to farmer, and from farming on a small scale to farming more extensively; and he knew that in the north of England many men had done it. He thought that the true corrective of any evil resulting from undue accumulation would be to restrain the peremptory destination of property from father to son by entail or settlement. They ought, in his opinion, to deal with land as they dealt with personal property, and to give to every man in possession the absolute power of disposing of it. He should have power to bring it into the market and sell it, or to dispose of it by will; and if he did dispose of it by will, his successor should have the same power as he had had himself. If he did not dispose of it, let the law step in and do so in the way in which the party himself would most probably have been inclined to do. The hon. Member for Manchester was anxious that the Legislature should do what the intestate ought to have done; whereas he (Mr. Ingham) was of opinion that they ought, as far as possible, to carry out what the intestate would have wished to do; and this, in fact, was the difference between them. When they should find that there was a general disposition, where the power of devise existed, to divide landed property in the way which was now suggested—and, as all wills were deposited in public registers, the tendency of public opinion could be exactly ascertained—he thought that the law might fairly step in and distribute the property of intestates in conformity with the general wish. At present, however, it did not seem to be the fact that landed property, when devised by will, usually took the direction which was contemplated by the present Bill; and he had reason to doubt whether the hon. Member for Manchester was right when he said that, whatever might be the sentiments of the higher classes upon the subject, the sentiments of the working classes were in favour of this principle of division. He had recently been reading the letters of the Baron de Stael, who, in the year 1820, paid a visit to the northern counties of this country. The Baron having explained to the pitmen that his own workpeople had land of their own, which they cultivated after they had done their day's labour for him, they (the pitmen) said they thought that that was a most desirable thing; but they asked what was done with their plots of land when they died? The Baron replied that they were divided amongst their children; and the pitmen's observation upon that was, that they thought the shares would not be worth having. The Baron added that the subject was discussed in the pitmen's clubs; and they all agreed that, while it would be a good thing for the working classes to have land of their own, it ought to descend to the eldest son. It was stated upon statistical returns, that the landed property of France was subdivided among 5,500,000 proprietors; and from the poverty of this class, the burdens to which it was subjected, and the variety of interests in which the property was involved, constant litigation arose. In his opinion, the time to make this alteration, if at all, would be when they had proof of a growing change in the sentiments of the people, and were assured, by the way in which they made their wills, that they really wished their landed property to go equally among their children.


said, he agreed in the general principles laid down by the hon. Gentleman the Member for Stamford (Sir F. Thesiger). The class of persons who would be most affected by this Bill would not be the class above the lower class, for they generally disposed of their property by will, nor the higher class, who disposed of it almost invariably by settlement; but the persons who would be most affected by the present measure would unquestionably be the possessors of small cottages. There were a vast number of persons scattered through every county of England possessing small freeholds worth 20l., 30l., or 40l., which had descended from father to son in uninterrupted succession in precisely the same manner as the largest estates in the country. That class of persons, from their position and circumstances, hardly ever made wills, or, if a will was considered necessary, it was generally made by some person who could write a little better than his neighbours, and was drawn in such a way as to be inoperative. The natural effect of the present measure would be, that such property would be subdivided, as the children could not all live in the same house together, which would be analogous to the practice in France, where it had been known that thirty-two persons had a right in a single tree, and, supposing each had two children, the tree would eventually be the property of sixty-four owners. How, then, could such a measure be applied, or what would be the tendency of it? The hon. Member for Manchester had said it would have a tendency to, what he termed, set free property, but he (Mr. Henley) thought, so far from doing that, it would have a contrary effect. He believed that, if the House of Commons consented to pass the Bill now before them, persons would no longer leave to the chances of a will the settlement of their property; but rather, that it would induce those who desired to keep their property together to tie it up even more strongly than was done under the existing system. Now, just let them try and discover what were the actual feelings of the English people on this subject, or, at least, of that portion of them that had anything to do with land; and he was not now speaking of the great landed aristocrats of the country, but merely of the occupying tenants. Well, would any Gentleman, conversant with the habits of that class of persons, not admit that when a farmer died, the eldest son, with the full consent of the family, claimed succession to the tenancy? At all events, he himself had never known an instance where the family did not look upon the eldest son as naturally succeeding tenant to the property that had been occupied by the father. Now, that was no slight proof that that class of persons were in favour of the law as it at present stood; for otherwise, they would have wished to see a farm divided among the seven, eight, or ten children of the deceased, as the case might be. The only instance of inconvenience as arising from the existing law given by hon. Gentlemen who had spoken in favour of the Bill, was that offered by the hon. Member for Manchester. That hon. Gentleman had quoted to the House an instance of some man of industrious habits, who, being fortunate enough to amass sufficient money to buy a horse, and more fortunate still in getting some one to lend him a cart, was, however, unable to cap his good luck by getting any one that would lend him a small portion of land; and they were told that all this bad luck was to be attributed to a system which would prevent every cottage in the country from being split up into as many pieces as a man might have children or grandchildren. But he begged leave to deny altogether that the industious labourer had no opportunity of getting land; and that fact he was fully able to confirm from his own experience, for he happened to have upon his own estate two tenants who, from ordinary agricultural labourers, had become occupiers of land. Of course every one knew perfectly well that it was not always in the power of a man to obtain land in that particular locality which suited him best, but that was a difficulty by no means to be wondered at, for men could not build land as they could carts or carriages, when and where they might happen to wish. Really, the only just inconvenience urged against the present law, was that which might arise in such a case as that mentioned by the hon. Member for Manchester, where a person had made a will which had proved invalid, and whose family had in consequence been exposed to some hardship; but that was clearly an exceptional case, and it was the duty of every person who made a will to take care that it was valid. How often did it happen that a parent during his lifetime handed over to his children their fortunes? How often, again, did it happen that parents possessed children unworthy of being bequeathed any fortunes? Well, in such cases, supposing the father to die intestate, was his remaining property to be divided equally between those who had no claim on him, as already provided for, and those who had not yet obtained any provision? Now, those were views which he and hon. Gentlemen sitting on that (the Opposition) side of the House put forward, not merely as Conservatives anxious to retain the large landed aristocracy of the country, but as reasons for preventing the introduction into England of those mischiefs and inconveniences which had been described by an hon. Gentleman opposite as even now existing in Wales. If the object of this measure was to introduce the thin edge of the wedge, so as gradually to alter the whole law as to the succession to real property in this country, he could quite understand it; and though that was a project which no one, as yet, had openly avowed, he could not help concluding, from the exceedingly weak nature of the arguments in favour of a scheme which would operate most injuriously with regard to the class of persons to whom it would apply, that some such ulterior object as that must have influenced its introduction. He was very much surprised, indeed, to bear the bon. Member for Manchester speak on such a subject as this without adverting to its effect upon the lower class of freeholders. Now, be (Mr. Henley) confessed that he was glad to perceive that smaller subdivisions of land were every day taking place. Though it was unnecessary to go into the objects of this subdivision, still it was not to be denied that estates were being constantly purchased, so as to give the poor man an opportunity of possessing himself of small portions of land. But if that was true, they had here an additional room for not altering the law in such a manner as would prevent that poor man from keeping together after death that piece of land and that cottage which he had possibly procured at a great sacrifice. He would only say, then, that for himself be would give his most cordial support to the Amendment of his hon. Friend, while he hoped that some Member of the Government would rise and inform the House of the views entertained by Her Majesty's Ministers in reference to the original proposition.


apprehended that his hon. Friend who had brought forward this Motion was not quite aware of its full scope and probable effect. Now his hon. Friend knew, and the House would remember, that he (Mr. Drummond) had troubled it with various propositions having for their object to encourage and facilitate the sale and transfer of land; and he was happy to say that Her Majesty's Ministers had been induced to take that subject up, and had issued a Commission which was under the direction of his right hon. Friend opposite (Mr. Walpole), and whose efforts he had no doubt would terminate in the public being afforded very much greater facilities for the purchase of land than they possessed at present. But that was a totally different arrangement from one which would either directly or indirectly compel persons to become owners of land. It would be a very great hardship to compel a man to become a mill-owner whether he liked it or not, and it would be a very great hardship to oblige persons who had no taste for agriculture, and who did not possess the knowledge necessary for conducting agricultural operations, to become owners of land. It was, as hon. Gentlemen would allow, no great secret that the knowledge necessary for conducting agricultural operations was not one communicated equally to all; just in the same manner every one was not so placed as to have attained that particular sort of knowledge that would fit him to be placed at the head of mill-operatives. Would it not then be a very great hardship if every honest, industrious man were obliged to become a mill-owner if he did not wish to be one? And, perhaps, it might be no lesser hardship if every worthy manufacturer were compelled to enter on the possession of land. But hon. Gentlemen were not left altogether to speculation upon this matter. They had only to observe calmly what had been done in a neighbouring country, towards which, when it suited their purpose, some hon. Members were very fond of directing our eyes, and consider what had been brought about there, not during one of the revolutionary paroxysms so often experienced in that country, but during the slow process of a long and systematic course of operations. More than two centuries ago it was the policy of the sovereigns of France to break down landed property, because they feared its power against themselves. That end was completely effected during the reign of the Emperor Napoleon. He perfectly well remembered that, when he (Mr. Drummond) visited France during the reign of Louis XVIII., the Chamber of Peers seemed to be unanimous in favour of the existing law for the subdivision of land; but, certainly, whether they were or not, the women, at least such of them as were mothers, were so determined on the subject that it would have been utterly impossible to have effected any change in law. Well, but what subsequently occurred? Why, the very last time he saw M. Lafitte—and he remembered the occasion particularly well, because his hon. Friend the Member for Montrose (Mr. Hume) was present, and had been endeavouring to enlighten M. Lafitte on the subject of the malt tax—but on that occasion M. Lafitte, while speaking upon several economical questions, gave him (Mr. Drummond), as the result of his conviction, that the great subdivision of land was the cause of the ruin of France. He could produce himself some very remarkable instances of the consequences of the French system, which had passed under his own observation; for he was in the habit of paying very frequent visits to France, and whenever he did so he went into the country districts, where he saw the farmers engaged at their day's work, and witnessed everything that took place. Now, he had seen a farmer with 300 acres of land—part of it his own, parts of it belonging to others, but not three acres of it joined in any one place. And in consequence of the law being such as it was, a farmer who had four sons and two daughters, knowing very well that at his death his property must be divided, there was no such thing as a homestead or a farmhouse on the land—a homestead would be too largo for the owner of one-sixth por- tion of the land; and therefore it happened, that throughout the north of France homesteads and farmhouses of all kinds had completely disappeared—[Mr. BRIGHT: Surely the hospital lands were not confiscated.] Now, do not be in a hurry. He was going on to say—except in the case of the hospitals, whose lands were excepted from confiscation at the period of the Revolution. In such cases the lands were still held in large allotments, there certainly were to be found good and sufficient farmhouses and good cultivation—though nowhere else. To such an extent had this subdivision gone, that instances were known where a possessor of land was the proprietor only of a single sillon, or furrow. Now the result of that system would end in the result foretold by Burke—that all the land in the country would fall into the hand of the Crown, because the owners would be obliged to abandon these small holdings, rather than continue to pay the burdensome taxes. At the present moment the Government would not trust the occupiers of land for more than one month's taxes, and the taxes were collected twelve times a year. But a still stronger argument against the French system had come to light during the reign of Louis Philippe. At that time a great complaint was made by a certain commune that the conscription fell more heavily upon them than upon any other place: the fact being, as he (Mr. Drummond) believed, that upwards of forty per cent of the population of the district were returned as unfit for service. Now, it was very well known that during the last war the proportion of our population returned as unfit for service was very much less than that of France, the numbers being as about five to eight; and that unfitness was generally ascribable in this country to those accidents to which young men were liable during early life, or while at school. The French Government issued a Commission to investigate the causes of the extraordinary disproportion, and it then appeared that the people had become ricketty, in consequence of the badness of their diet—that they had wholly ceased from living upon animal food—that they did not even eat cereals, but lived almost entirely upon roots. He might mention another startling fact. Before the French Revolution, France of herself was in a position to supply her armies with horses; since then, however, France had been obliged to purchase annually 40,000 horses in other countries, there being no possibility of raising them in the country itself. And then, again, they had another remarkable proof of the dearth produced in the agricultural districts of France by her legal system, in the total want of stock. There was scarcely any stock kept in any quarter of the country; and though the land was usually more fertile than in England, nevertheless, he did not believe that an acre of land there produced more than one-half of what it did in England; so that it was utterly impossible to maintain stock upon it. [Mr. BRIGHT: No, no.] He would give the hon. Gentleman the necessary references, and he might go and ascertain the fact for himself. Well, in addition to all that, there was the statement of our new ally, the Emperor of the French, who had certainly proved himself one of the cleverest men in Europe. Now, the French Emperor had drawn a remarkable parallel between the effects of the division of land taken on a great scale in the Germanic and Frank divisions of the world—the Frank principle being to keep the land as much as possible together, while the Germanic principle, on the contrary, was to break it up; and he said that there was no such thing as a Germanic nation or body; but that until very lately, there had been a French one to some purpose, though it was now being broken up by that subdivision of the soil. His (Mr. Drummond's) firm belief was, that a community in land meant a community in pauperism, and nothing else.


said, that, in France, property, in all cases of succession, was, by law, compulsorily divided. He thought that arguments drawn from the state of things in a country where land was thus divided arbitrarily, without regard to the will of the late owner, could not have much force against a Bill which merely proposed an equal division of land in any case where the previous holder had expressed no wish to the contrary. He did not believe that that great subdivision of the land which had been asserted by his right hon. Friend the Member for Oxfordshire (Mr. Henley) as likely to arise, would be caused by any such measure as that now under consideration. Nor was that a matter of speculation. Within a few miles of the very place where he stood there was a large and populous county where the common law was, that in cases of intestacy the land should be divided. [Sir F. THESIGER: That is according to the law of gavelkind.] Yes, But being connected with the county of Kent himself, he was prepared to assert that the law of gavelkind was the common law of the county. By the common law of the county of Kent, in cases of intestacy the lands were divided among all the children of the deceased, and he believed it could not be shown that even in the county of Kent there was any more subdivision of land than existed in other parts of the kingdom. He had not been present throughout the discussion that morning, but since he entered the House nearly everything that he had heard had been quite irrelevant. The real question before the House was, should they act justly or unjustly in the disposition of property which had not been dealt with by the owner? He was one of those, however, who thought that the House of Commons was not very likely to take a just view on such a question as the present, as hon. Gentlemen were not very much concerned in its solution. Such a thing as succession from intestacy to the ownership of land occurred seldom, if ever, in the upper classes of society; and he must say he thought it greatly to the advantage of the country that the younger sons of families who possessed large property in land should be sent forth to fight their way in the world, and to establish themselves, as many had done, in a position often, at least, equal to that of their fathers. It was a remarkable circumstance in the history of the country that all the greatest men which she had produced were younger sons. Thus Bacon was a younger son—Clarendon was a younger son, so were Walpole, Godolphin, and Marlborough, and Wellington; both the Foxes were younger sons, so were both the Pitts, so were also Burke and Erskine. His noble Friend the Member for London (Lord John Russell) was a younger son; and so was his right hon. Friend below him (Mr. Gladstone). On this subject, he remembered a story which was told of Lord Buchan, the elder brother of the great Lord Erskine, who, happening one day to meet a friend, said to him, "Why, sir, the eminence of my brother is entirely owing to me." "How is that?" said the friend; "I did not know you had anything to do with him." "On the contrary, sir," said the brother, "I was the making of him; for when he was a young man he asked me to give him a small allowance to enable him to live as a gentleman, and I said I would not give him a single farthing; and the consequence is he has risen to eminence." With regard to the upper classes, in all cases where settlements had been made, the present law then worked perfectly satisfactorily, and was productive of very great advantage to the country; but the question was, where there were no settlements—where the owner of landed property died without a will—was it just that one alone of the children of the owner should take the whole, and the remainder be left without a single farthing? And the artificial rules of our laws made matters a great deal worse; for in cases of intestacy not only did one member take the whole of the land, but if there was a mortgage upon the land, and there was enough personal property left to pay off that mortgage, the whole of the personalty, instead of being divided amongst the widow and the children, could be swept off by the heir and applied to the payment of the mortgage. It was all very well to say men could provide against the consequence of this measure by making their wills; but it was perfectly notorious that a very great prejudice existed against making wills, which induced men to postpone that duty. There was scarcely an attorney throughout the country that could not point out cases of the greatest hardship and suffering arising from the occasional operation of the law as it stood. If, then, such a grievance existed, ought they not to consider whether or not the present law was just? He thought that no other rule was justified with regard to the appropriation of property, when the owner had not expressed any opinion on the subject, than the policy of division. Such was the rule in the courts, the rule of justice—that equality is equity. Some Gentlemen might anticipate evil consequences, political and social, from such an arrangement, but in America, where the rule of equal division of property in case of intestacy existed, they did not find any such evil consequences had resulted. He could assure the House that he himself had no interest in the matter, for, though a younger son, he did not believe he had any chance of coming in for property through intestacy. He was, however, firmly convinced that, if the House would but consent to alter the law as proposed, they would do much—to use a coarse metaphorical expression which had been used on another subject by a great man now no more" to sweeten the breath" of families, and put an end to those bickerings and bad feelings that so often subsisted between the nearest relations. For these reasons he would give the measure of his hon. Friend the most hearty support; and he hoped, if the House would not pass the Bill now, that they might all live to see the day when it would feel necessitated to do so.


Sir, although it is perfectly true, as my hon. Friend has told the House, that I am a younger son—and I am by no means disposed to dispute the panegyric he has passed upon younger sons in general—yet I am afraid I cannot promise him that I shall vote for the measure now before us. With respect to the Bill itself, I do not think my hon. Friend has argued the question quite fairly in confining himself to the particular merits of the measure itself. There are two questions which have to be considered—first, the merits of the Bill itself, if the principle on which it is founded is not to be carried any further; and, second, the principle itself involved in the Bill, which I think has been very candidly admitted by those who have spoken in its favour. With respect to the provisions necessary for cases of intestacy, I agree very much with an hon. Friend of mine who spoke from the back benches, that the law ought in this respect to conform as much as possible to the general rule which prevails in families; that it ought, if you generally find that the possessors of land, rich or poor, leave their land to their eldest sons, to adopt that rule in a case of intestacy; that it ought, if, on the contrary, you find it to be the general custom of persons having land in their possession to leave that land equally among their children, to adopt that rule, and do for the parents what they would probably have done for themselves; that, in short, the rule of law should conform to what appears to be the rule with ordinary testators. With respect, however, to the general fact, we all know that, generally speaking, land is left to the eldest son, and left in accordance with the liberty of action which is possessed more in this country than any other country of the world, in respect of bequeathing landed property by will. Nor can I, Sir, admit the argument which has been used, not only during the present discussion, but likewise on the occasion of the introduction of the measure—that it is merely a feudal notion—an obsolete notion—that there is no difference between the case of land and money, and that if it be the custom to distribute money amongst several, so it should be the custom to distribute land. I cannot see the force or analogy of that argument; for there appears to me to be the greatest difference between the two descriptions of property. Supposing a man to have 100l., and to leave that, 10l. a-piece, amongst ten sons, the State was not prejudiced by his so doing—the State is not interested in the distribution. But if that property of 100l. is in land, and if that 100l, worth of land were to be divided amongst ten sons, the case is altogether changed, for it is evident that very different consequences would follow—that the property could not be managed as it had been, and that the State might, therefore, become a sufferer by this mode of distribution of the property. I cannot, then, admit that we must apply the same principle to money and land. Now, we have been told by the hon. Member for Manchester and others, that cases of very great hardship often arise under the present law; I own, however, I cannot conceive a case in which you ought to change the general view of the law because of a particular case of hardship; nor can I see, if you do decide upon changing the law, that you would thereby avoid all cases of hardship. Thus, suppose the case of a man who has three sons, and but a small property. Perhaps, by great exertion, and by disposing of a portion of that property, he contrives, after spending a great deal of money on his education, to have one of them brought up to the bar; for another, by a large outlay of his money, he procures a commission in the army; so that, when the father died, it might happen that the eldest brother, though inheriting a small landed estate, might not be as rich a man as the soldier or the lawyer, the former of whom might have risen to be a general, and the other have attained the dignity of a judge. Would it be fair in such a case—the father having made that sacrifice for the younger sons, and placed them in situations that had become lucrative—would it be fair to say that they should come in at his death, and share the landed property left, in case the father died intestate? And that is a contingency, be it remembered, which might happen to any person, owing to any of those accidents to which the life of man is liable—even to those who might have the strongest intention, though that intention had not, perhaps, been put in execution, of providing against such an occurrence. The right hon. Gentleman opposite (Mr. Henley) had argued, and, he thought, justly, that this Bill might have a very serious effect with regard to persons possessing very small properties. There were persons who could not produce any actual instrument showing their title to the property they held. He recollected, at an election in Devonshire, seeing a small freeholder very indignant when asked by the polling-clerk if he had had his freehold more than a year. "More than a year!" he said, "ever since William the Conqueror." In the same category was the cottage into which William Rufus was taken, in the New Forest, which was said to be now in the possession of a descendant of the then possessor. There were numerous cases of this kind in which three or four younger brothers might come to the eldest and say, "Prove to us that you have a will under which you succeed: if you cannot, it is a case of intestacy, and we will proceed in a court of law to obtain our property." A poor and ignorant labourer thus addressed would find it very difficult to assert his right. For my part, I confess it seems to me that, supposing the case of three or four younger brothers, who did not possess the merits of Lord Erskine, but, on the contrary, were rather idle and opposed to work, it would not be very politic for this House to decide that such persons, in the case of their father dying intestate, should be entitled to share the property equally with their brother. Every Member who had supported the Bill, while he said it only applied to particular cases, went on to argue for very much more. I wish now to refer to what was stated by the hon. Member for Manchester—namely, to the case of hardship arising where the land comes to the eldest son, and the personality in case of intestacy being applied to the payment of mortgages, the widow and younger children are thus left totally unprovided for. But if that hardship was caused by the provisions of the present law, let it be remedied by a particular Bill applicable to all such cases of mortgage—and though I do not pledge myself that such a Bill would be a just one, still it would raise an entirely different question from that now under consideration. Now my hon. Friend (Mr. Bouverie) and other hon. Gentlemen have argued this question upon general principles, and have asked, are we prepared to do what is equitable, or continue to inflict hardships and injustice? But if you once declare that in cases of intestacy to exclude the younger sons from any participation in the landed property of their father is an injustice, what a platform you immediately raise for altering the whole law of succession. You declare at once that, although you do not for the present think fit to interfere with the disposition of property according to the will of a testator, giving his landed property to his eldest son, you consider that he thereby commits an injustice, and that such a disposition of his property is a wrongful one. Now, Sir, why ought you to come to any such conclusion of the kind—for I must consider what my hon. Friend (Mr. Bouverie) says I have no business to consider, but which I am, nevertheless, forced to consider. Is it, then, so unjust that the landed property should be given to the eldest son, to the exclusion of his brothers? Then I come to consider what is for the interest of the State, what is for the interest of the community, and accordingly I cannot shut my eyes to all those consequences which the hon. Member for West Surrey (Mr. Drummond) has pointed out—to those consequences which have taken place in France and in some parts of Wales, where there has been a great subdivision of land. I find that Mr. M'Culloch says—though I do not take his figures as conclusive—but he says that while in England one-third of the population cultivates the land in a very superior manner—in France two-thirds of the population cultivate it in a very inferior manner; and, as a consequence, that in England far more capital and a far greater number of the population are available for the pursuits of commerce and manufactures. Well, if all that is true, I believe there would be a great impolicy in any law that would lead to a subdivision of the landed property. The intention of this Bill, as avowed by its supporters, is to declare that the present disposition of landed property is unjust, and ought, at least so far as the law can effect it, to be abolished. My belief, Sir, on the contrary, is, that the greater subdivision of the landed property of this country would be most mischievous and injurious; and we have the effects of such an arrangement to study in the case of a neighbouring country. We have the facts before our eyes that have been produced within the last fifty or sixty years in France; and, as I am not prepared to encounter similar consequences on this side of the Channel, I am decided on voting against the Bill now before us.


thought the House was rather premature in entering on the question at present. He himself could discover many reasons why landed property should descend to eldest sons and why it should not in certain other cases. He believed, however, that they ought first to have provided greater facilities for the transfer and sale of landed property, though he should vote for the Bill, being in favour of one of its provisions—namely, that which declared that in all cases of intestacy landed estate, as well as every other species of property, should go through the hands of the administrator, and be taken only on condition that it was subject to the debts of the testator.


said, he had placed his name upon the back of the Bill without the slightest conception that its consideration would have been so ramified. He considered that the simple proposal of this Bill was, that the State should adopt the principle that land and personality should be placed on the same footing, and that there should be the same justice and equity for both. He had often heard it said that lawyers were the great obstacle in that House to legal reforms. He wished, at all events, as far as he was personally concerned, to disprove the truth of that allegation. It had been said that this Bill proposed to abolish the law of primogeniture. His answer was, that, practically speaking, the law of primogeniture was not in existence in this country, for at this moment a man might devise his freehold land as he pleased. He thought that this Bill was a step in the right direction.


said, he did not wish to misrepresent the motives of the learned Gentleman who had just addressed the House;—that learned Gentleman was a distinguished lawyer, and, as a lawyer, he said that he felt bound to support the Bill which proposed to alter the existing law, and to remove difficulties and inconveniences which on both sides of the House were admitted. So far as he (Mr. Disraeli) could form an opinion upon the question, it was his belief, that if this measure became law, it would very much conduce to the interest of lawyers. He could not persuade himself, so far as he could form an opinion of the Bill, but that the hon. Gentleman who had introduced the measure to the House, and who had supported it with such zeal and disinterestedness, would materially injure himself in his future prospects if he succeeded in his object. He was, however, not disposed himself to alter the law of England in order to meet what, after all, was an exceptional case. He thought, generally speaking, that this was a safe principle to guide the House in their efforts to legislate for admitted evils. It appeared to him that this Bill would materially interfere with a principle upon which the whole of our social system was established. He did not collect from the hon. Member for Manchester (Mr. Bright), in the remarks he made in support of the Bill, that the instances of grievance and inconvenience to which he described certain of Her Majesty's subjects as suffering were at all ascribable to the existing law; nor could he see how the alteration suggested would meet the grievance of the labouring man in the county of Hertford, whose case had been so prominently brought forward. The hon. Member said, a labouring man, industrious and intelligent, is unable to rise in the county of Hertford, because there are no small farms, and the property consisting principally of parks, he is prevented from obtaining fifteen acres of land. Now he (Mr. Disraeli) would remind the hon. Member that the size of farms in this country did not depend upon the tenure of land. Although the whole of the county of Hertford might be parcelled out in large estates—which was really not the case—but even if it were so, there were still sufficient facilities for any man who was able and was so disposed to obtain a farm of fifteen acres to cultivate. But he (Mr. Disraeli) did not see how that argument at all bore upon the point before the House. He repeated, that the size of farms did not depend upon the tenure of land. He knew of an instance in the north of England, in which, in one of the largest estates in England, belonging to a nobleman, there was no farm so large as 300 acres; and the greater number of farms in that county were let at rents varying from 50l. to 150l. per annum. That estate supported one of the largest bodies of tenantry in the kingdom; and he contended, that an industrious man might, if he pleased, obtain any one of the small farms scattered over the country with facility. But even if any difficulties did exist to his attainment of such an object, they would not certainly be removed by this Bill, or by any subsequent legislation which the passing of this measure might sanction. He thought that many of the observations made by hon. Members in support of this Bill were founded upon false notions; and, although the noble Lord had to a certain degree replied to those observations, they had not, he (Mr. Disraeli) thought, been sufficiently dwelt upon. It might be the opinion of some hon. Gentlemen that there ought not to be any difference in the law between real and personal property. That was in itself a fair subject for discussion. He confessed that he himself had a very strong opinion upon it. He thought that there ought to be a difference recognised between real and personal property. But one thing was quite clear—that the law of England does acknowledge such a difference. The whole of our social system was built upon that difference, and the institutions of this country mainly depended upon the recognition of that principle. The difference depended upon many reasons; but there was one of the many reasons which should not be forgotten. The tenure of real property—the tenure of land—in this country was invested with many and important duties. If, then, they chose to invest real property with the performance of important duties, they immediately marked it out as different from other property which was exempt from the performance of such duties. It was impossible not to see that in this country there was a difference between landed and personal property. In the first place, one of the Houses of Parliament was founded mainly, if not entirely, upon property in land. In the second, the administration of justice in this country was mainly dependent upon the land. Even the defences of the country were in a great degree dependent upon the land. He should like to know how the country could have raised 100,000 men for the militia within the last twelve months, as we had done, if we had not enjoyed that territorial constitution which he had heard so often sneered at. It was, no doubt, much more convenient to argue this question without reference to other countries; but we should not be profiting by the experience of our fellowmen if we were not more or less influenced by the example which the present condition of the world afforded to us. The tenure of land in France had for a very long time engaged the attention of grave politicians. Great political consequences had resulted from the changes in that tenure. The hon. Member for Pomfret (Mr. M. Milnes) had told the House that there were in France 5,500,000 proprietors of land, and that they were essentially conservative. He was not going to ques- tion that assertion; or that it was to their influence that France and the world were indebted for the able government which at present existed in that country. There were, however, some things to be valued besides peace and order. France might now boast that it was through the influence of that numerous and conservative proprietary she was now governed by that eminent man, who had been summoned, upon an emergency and at a time of public disturbance, to establish order—that he had succeeded in this object, and that he was now exercising the power with which he had been invested with great moderation, infinite prudence, and distinguished ability. He did not mean for a moment to deny this, but he would repeat his observation, that there was something besides peace and order for the English Parliament and the English people to consider. He wanted to know whether there was not such a thing as public liberty also to be considered? He wanted to know, also, how that public liberty was to be maintained in an ancient and European country, unless we had large landed properties to rally round? In his opinion this country had been mainly indebted to the tenure of land for the freedom it enjoyed. He believed that tenure to be one of the main causes, not only of the freedom which the country enjoyed, but of the order which was combined with that freedom. Slight as the subject now before the House might appear, it necessarily led to the consideration of the tenure of land, and, if pursued in the spirit in which it had been brought forward, it might lead to great alterations in that tenure, and these alterations would necessitate a considerable partition. Believing that that partition of land would be injurious to the character of the country—to the order and liberty combined which the country at present enjoyed—and that it would tend to lower the position of England altogether, he must give the Bill his decided opposition, looking to it as the first step in a series of changes the result of which would be injurious to the interests of the whole community.


, in reply, said the objections to the Bill were chiefly founded upon prejudice and not upon fact. He felt confident that the measure was just in itself, and that sooner or later the noble Lord would accept the proposition in the same way that he adopted the suggestion for the extension of the franchise in counties. The case of France was quite distinct from that of this country, for in France the law was compulsory, and a person had only a limited power in making his will. His Bill would only work in cases of intestacy. He would put it to the opponents of the Bill whether, in the event of a person possessed entirely of landed property dying without a will, it would not be better that there should be comparatively a little suffering on the part of the eldest child—his suffering consisting of his only sharing equally with his brothers and sisters—rather than that all the rest of the family should be left destitute and become beggars. The measure would not in any way interfere with the powers and privileges of any person, because a man would still have the power of making a disposition of his property. It would not in any way affect the owners of great estates, because they were generally so settled that it was of little consequence whether the possessor executed a will or not; but such a measure would confer most important benefits on the middle classes. He did not think it was at all likely that the effect of his Bill would be to divide the land into small portions; and if it did, he did not see that any inconvenient results would follow the division; for if it should be a small property the good sense of a family would direct it to be sold in the same way as a leasehold house was disposed of, and the amount realised would then be divided amongst them. This measure had been described by Lord Campbell as insidious, and as having a tendency to endanger the House of Lords. He regretted to find so eminent a Judge describing an act of justice as insidious, and still more that it should be considered dangerous to the House of Lords—because that was an admission that the House of Lords was supported by injustice. Lord Brougham, too, had thought proper to abuse his proposal, although, in 1846, that noble and learned Lord published a pamphlet in which he condemned the law of primogeniture, and spoke of the law of entail as an abuse of that law. It should be remembered that we lived in democratic times, and that it would no longer do to legislate for a few families or a few members of families. He was surprised, too, that the Government should oppose the Bill, after they had sanctioned its principle by applying the probate duty to land. He trusted the present system would no longer be upheld by prejudice, as it had ceased to be upheld by argument. It was said that the system gave great support to the Government of the country; but the Government must look for support elsewhere, and this they could obtain only by giving equal laws and justice to all classes.

Question put, "That the word 'now' stand part of the question."

The House divided:—Ayes 82; Noes 203: Majority 121.

List of the AYES.
Adair, H. E. Langton, H. G.
Alcock, T. Laslett, W.
Anderson, Sir J. Lee, W.
Barnes, T. Lucas, F.
Bass, M. T. M'Cann, J.
Bell, J. Maguire, J. F.
Biggs, W. Massey, W. N.
Bouverie, hon. E. P. Miall, E.
Brady, J. Milnes, R. M.
Brotherton, J. Mitchell, T. A.
Butler, C. S. Moffatt, G.
Challis, Mr. Ald. Morris, D.
Chambers, M. Murrough, J. P.
Cobden, R. O'Connell, J.
Cowan, C. Pechell, Sir G. B.
Craufurd, E. H J. Pellatt, A.
Crossley, F. Phinn, T.
Devereux, J. T. Pilkington, J.
Duffy, C. G. Potter, R.
Duncan, G. Power, N.
Duncombe, T. Ricardo, J. L.
Dunlop, A. M. Richardson, J. J.
Evans, Sir De L. Robartes, T. J. A.
Fagan, W. Roebuck, J. A.
Feilden, M. J. Scholefield, W.
Fergus, J. Scobell, Capt.
Ferguson, J. Scully, F.
Fitzgerald, J. D. Scully, V.
Forster, C. Shafto, R. D.
Fox, W. J. Shelley, Sir J. V.
Goderich, Visct. Smith, J. B.
Goodman, Sir G. Strickland, Sir G.
Greene, J. Thicknesse, R. A.
Gregson, S. Thompson, G.
Hadfield, G. Thornely, T.
Hall, Sir B. Walmsley, Sir J.
Hastie, A. Wilkinson, W. A.
Heywood, J. Willcox, B. M.
Heyworth, L. Williams, W.
Hutchins, E. J.
Kennedy, T. King, P. J. L.
Kershaw, J. Bright, J.
List of the Noes.
Acland, Sir T. D. Buck, L. W.
A'Court, C. H. W. Buckley, Gen.
Arbuthnott, hon. Gen. Butt, G. M.
Arkwright, G. Byng, hon. G. H C.
Ball, E. Campbell, Sir A. I.
Bankes, rt. hon. G. Castlerosse, Visct.
Baring, rt. hn. Sir F. T. Cavendish, hon. G.
Bentinck, G. W. P. Cayley, E. S.
Berkeley, C. L. G. Chaplin, W. J.
Blair, Col. Child, S.
Boldero, Col. Cholmondeley, Lord H.
Booth, Sir R. G. Clifford, H. M.
Bramston, T. W. Clinton, Lord C. P.
Brockman, E. D. Cobbold, J. C.
Cockburn, Sir A. J. E. Ingham, R.
Cocks, T. S. Irton, S.
Coles, H. B. Jermyn, Earl
Colvile, C. R. Johnstone, J.
Compton, H C. Jolliffe, Sir W. G. H
Crowder, R. B. Kendall, N.
Dalkeith, Earl of Keogh, W.
Dalrymple, Visct. Knatchbull, W. F.
Davies, D. A. S. Knox, hon. W. S.
Davison, R. Langston, J. H.
Dent, J. D. Langton, W. G.
Dering, Sir E. Lennox, Lord A. F.
Disraeli, rt. hon. B. Lewis, rt. hon. Sir T.F.
Divett, E. Liddell, H. G.
Drummond, H. Liddell, hon. H. T.
Duckworth, Sir J. T. B. Lisburne, Earl of
Duff, G. S. Lockhart, A. E.
Duff, J. Lockhart, W.
Dundas, G. Lovaine, Lord
Dundas, F. Lowther, Capt.
Dunne, Col. Luce, T.
East, Sir J. B. Lytton, Sir G. E. L. B.
Egerton, W. T. Macartney, G.
Egerton, E. C. Mackie, J.
Elcho, Lord Mackinnon, W. A.
Elliot, hon. J. E. MacGregor, J.
Emlyn, Visct. Maddock, Sir H.
Evelyn, W. J. Mandeville, Visct.
Ferguson, Sir R. Manners, Lord J.
Fitzgerald, W. R. S. Matheson, A.
Fitzwilliam, hon. G. W. Maule, hon. Col.
Forbes, W. Milner, W. M. E.
Forster, J. Michell, W.
Fortescue, C. S. Molcsworth,rt.hn.SirW.
Freestun, Col. Monck, Visct.
French, F. Moody, C. A.
Frewen, C. H. Mostyn, hon. E. M. L.
Fuller, A. E. Mowbray, J. R.
Gladstone, rt. hon. W. Mulgrave, Earl of
Gladstone, Capt. Mundy, W.
Goddard, A. L. Napier, rt. hon. J.
Gooch, Sir E. S. Norreys, Lord
Goold, W. North, Col.
Gore, W. O. Oakes, J. H. P.
Goulburn, rt. hon. H. O'Connell, D.
Grace, O. D. G. Ossulston, Lord
Graham, Lord M. W. Otway, A. J.
Greavos, E. Packe, C. W.
Greene, T. Palmer, R.
Grogan, E. Palmerston, Visct.
Halford, Sir H. Patten, J. W.
Halsey, T. P. Peel, Col.
Hamilton, Lord C. Percy, hon. J. W.
Hamilton, G. A. Portal, M.
Hamilton, J. H. Powlett, Lord W.
Hanbury, hon. C. S. B. Price, Sir R.
Hankey, T. Pugh, D.
Harcourt, Col. Repton, G. W. J.
Hayter, rt. hon. W. G. Ricardo, O.
Headlam, T. E. Rice, E. R.
Heathcote, Sir G. J. Robertson, P. F.
Heathcote, G. H. Rushout, Col.
Heathcote, Sir W. Russell, Lord J.
Heneage, G. F. Sawle, C. B. G.
Henley, rt. hon. J. W. Scott, hon. F.
Herbert, H. A. Seymer, H. K.
Herbert, rt. hon. S. Seymour, Lord
Herbert, Sir T. Sibthorp, Col.
Hervey, Lord A. Smijth, Sir W.
Hildyard, R. C. Smollett, A.
Horsfall, T. B. Sotheron, T. H. S.
Hughes, W. B. Stafford, A.
Hume, W. F. Stanhope, J. B.
Stanley, Lord Whitbread, S.
Stanley, hon. W. O. Whitmore, H.
Starkie, Le G. N. Wickham, H. W.
Stirling, W. Willoughby, Sir H.
Taylor, Col. Wilson, J.
Vance, J. Winnington, Sir T. E.
Vernon, G. E. H. Wise, A.
Waddington, H. S. Wood, rt. hon. Sir C.
Walcott, Adm. Wrightson, W. B.
Walpole, rt. hon. S. H. Wyndham, Gen.
Walsh, Sir J. B. Wynne, W. W. E.
Walter, J. Wyvill, M.
Watkins, Col. L. Young, rt. hon. Sir J.
Wells, W. TELLERS.
West, F. R. Thesiger, Sir F.
Whatman, J. Pakington, Sir J.

Words added; Main question, as amended, put, and agreed to.

Second reading put off for six months.