MR. LOCKE KING* I rise, Sir, to move for leave to bring in a "Bill for the better settling the real estates of intestates;" and I feel confident that I bring this great question of justice under the consideration of the House, under more favourable circumstances than I have done on former occasions. Public opinion is now aroused to the injustice of a law which makes a difference, where a parent has made no difference, between one child and other children in the same family; and is not unfrequently the unfortunate engine by which a widowed mother and a whole family of dependent helpless children are rendered destitute, in order that one member of the same family may, through their poverty, become powerful, pampered, and luxurious. It is a law which creates a very anomalous and frequently a very inconvenient distinction between one class of property and another, for even in the very same class of property, in landed property, which it intends to take under its own peculiar patronage, in order to carry out its own intended injustice, land is made to differ from land. Not only on the very same estate, but in the very same field, in the very same house and garden, the property belonging to the same individual, where no one could tell there could be the least difference, the technicality of an absurd law makes such a distinction that one part of the field, or even of the house, is a distinct property, and descends in a different way from the other. What I propose, is by a very simple, short and just measure to do away with all these cruel distinctions in families, and at the same time with these anomalies in properties, by applying a good and sound principle, and one uniform law to all properties, of all persons who die intestate.
As there are many persons who are entirely ignorant of the nature of my proposal, as well as others who, I regret to say, have found it convenient to put a false interpretation on my intentions, I will at once state what is the change I really do propose to make. At the same time I will give an unqualified contradiction to those assertions which have been ungenerously made for the convenient purpose of prejudicing unthinking persons against a just measure. I merely propose that where a person dies without having made a will, possessed of real property, that the law should make a just will for him, that it should make the same will for him, as it 565 would have made if his property had been personal instead of real, or if his family consisted of daughters; that the law should no longer make for him the unjust will it now does, a will which every one, whatever may be his prejudices, cannot say is founded on justice, and which the deceased individual would have been ashamed to make for himself. The law which relates to personal property under similar circumstances, and to leasehold laud, leased for 1,000 years, which in many respects is better than freehold, or to houses which in this metropolis are leased for ninety-nine years, is a just law; no on ever ventures to complain either of the injustice or of the inconvenience of distributing all such property to the next of kin. Now all I ask is, to have the same law applied to all the property of all who die intestate. This simple alteration of the law, founded on the most undeniable justice, will at once remove all the anomalies which now exist. The law will then be the means of creating equality, harmony, and content in those families where the parent has neglected to make a will. We shall then hear no more of those cruel inequalities, of those miseries which cannot be concealed, or of those secret discontents of which the present law alone is the cause.
I have now stated clearly what I do propose. I will proceed to state what I do not propose. I have been accused of being anxious to interfere with the power of willing property; quite the reverse, for I should like to see that power much greater in this country than it now is. It is a most valuable privilege, and at the same time a great and solemn responsibility. I feel confident that if the parents in many of our noble and great families had more power over their eldest sons, we should not see so many instances of sons, who, in spite of the earnest entreaties of their parents, have been led into vicious and bad practices, borrowing money at exorbitant rates of interest of the Jews, solely because they are independent of their parents. It is reversing the natural order of things to make the son independent of the father, the father dependent upon the son. Then I have been accused of desiring to introduce the French system of succession into this country; quite the reverse, for however much France may have profited by that law, I feel that it is open to the very same objections your system of entail is open to here—the inter-feting with the paternal authority. Here 566 you make by entails one son independent of his father: there all are to a lesser extent independent also. It is by resisting just measures of this kind you yourselves are much more likely to introduce the French law. For when justice is delayed or refused, we have often seen a sort of compulsory justice established, as in France, and which savours much of tyranny. It is well known to those who have read the discussions which took place on this particular point in the Code Napoleon, that Napoleon was not in favour of the law as it now exists in France; he wished the father to have more power over his children.
I have said thus much to allay the fears and the prejudices of those who are opposed to me, and who dread this measure, lest it should interfere with the power of making a will, or lest it should introduce the French law into this country. I can positively assure the House that this Bill cannot affect it—I have no such intention; and no one who supports this Bill, with whom I have conversed, has ever expressed such a desire, but the contrary. I must add, that after what I have said such a fear is an unmeaning fear; if it amounts to anything, it is a fear lest the law should provide for all the children of an intestate out of his own property, lest the eldest son should suffer by having his own brothers and sisters provided for out of an estate, which during his father's life, had been used for the benefit and support of all. It is not a fear, but, if persisted in, a bitter determination that younger children should, where a father has nothing but land, be deprived by the law of all support. What we ask is simply this, that where an individual dies without a will, the law should make a just one for him founded on a principle, instead of the unjust one it now does, founded on no other rule than that of injustice. If any person likes to leave the whole of his property, whether real or personal, to one child, to one individual, this Bill cannot prevent him; the only difference will be that he must do it by will; if the act he is desirous of performing be an unjust act, he must put his name to it; the law would, if this Bill pass, no longer do it for him. This really is the whole of the Bill, and yet every possible prejudice has been invented against it. Ingenious, not ingenuous persons have appealed to the pride, to the bad and ungenerous passions of men in order to get them to prejudge the case, and raise up a clamour 567 against this measure. They have endeavoured to blind them and to keep justice out of their sight, and certainly have, I fairly admit, in certain classes for a time succeeded.
I have thus been obliged explicitly to state what this Bill will do and what it will not do, because of the many misconceptions which have been formed about it. One noble Lord (Lord St. Leonards) and one of the ablest of the law Lords, seemed to boast with peculiar pride that the other House would very easily dispose of a measure of this kind. No doubt, if they shut out argument and justice, and only legislate for their prejudices, they can without a debate, without an argument, reject it. But the same noble Lord certainly surprised me when, after saying there might be much argument on the subject, he stated why a measure of this kind should be opposed, and why it was unwise to introduce the change. He at once showed that he did not understand the question; he built up a castle that any one might knock down with the greatest ease, because it had no foundation. His reason was, the effect produced by the system of minutely sub-dividing landed property in France. Now the effect of the law of equal division in France can really have nothing whatever to do with what may be the effect of this Bill. In France the law is compulsory; no one can make a will as he chooses: the law in every case disposes of, and divides the greatest part of every person's property, whether landed or moveable. The French feel the nation can make a better will for the individual than he can for himself. They take away from him the absolute power of making a will, and give him only a very limited power. All that this Bill proposes is, that where the individual has made no will, the law should provide for all his children. He will have the most absolute control and power over all his property.
I may say, when persons, like Lord St. Leonards, are inclined to legislate solely because of the effects which are to be observed in other countries from different systems, I might ask them to look at Ireland—there you have had the greatest evils that can arise out of small cultivation, caused alone by a most needy class of large proprietors. Bet this Bill could not even touch those great estates, they are mostly settled and entailed, and where they are not, can be left by will.
But when persons only talk of the good 568 or bad effects of this or that system, let me show the House the real misery, the cruelty, and oppression which do arise out of the present law. If they are not inclined to argue on the justice of the case, but to reject it, perhaps the effects and the way the law really works, may induce them to alter it.
I will now show by actual cases of real hardship how this most unjust law really operates.
In the year 1826, the owner of landed property to the amount of 15,000l., died suddenly, leaving a wife and ten children. His personal estate, to the amount of 4,000l., was entirely absorbed by bond and other debts. His eldest son, who had been well provided for by inheriting the fortune of his maternal grandfather, took the whole of the landed property. A will which the father left, and which proved inoperative, showed his intention of providing an annuity for his widow, and dividing all he left equally among his children.The heartburnings and estrangements of feeling caused in this case were great.Here is another case where the relationship was more distant, and if the unjust operation of the law be not greater, the ill feelings caused by it were more serious than even in the former case—
Some short time ago, two bachelor brothers died intestate, at a very advanced age, within twenty hours of each other, leaving real estate to the amount of 1,000l. yearly, and personalty about 1,500l., with instructions, often verbally expressed, that the whole real estate, as well as personalty, should be equally divided between their two nephews, John B. and William B., two brothers. To this equitable distribution of property laboriously acquired there seemed no disposition to demur, until some few weeks after the decease of the uncles, when the elder brother, John, claimed the real estate as heir at law, and one-half of the personalty. What are the results? An enmity which will never cease until the grave covers it.I will now give another and a most interesting case, where a father has escaped in the most providential manner, and has, by making a will, prevented the law doing a most serious act of injustice for him. This case will give a very good answer to those persons who say that the state of the law is generally known; the law is not, I maintain, known. I give the name in this case, because the person is extremely anxious that his case should be known, in order that others may take warning and make their wills in time—William Collins, of Walton-on-Thames, seventy-threee years of age, the bulk of whose property is in land, has always been looked up to by his neighbours as a person well informed in matters relating to property. Being taken 569 alarmingly ill with a mortal complaint a few weeks ago, his medical adviser thought it right to ask him if he had any final arrangements to make. He said, in reply, that there would be no occasion for him to make his will, as he wished his property to be divided among ail his children, and the law would do that for him. He was most fortunately assured he was in error, for that his property being in land, it would all descend to his eldest son, and his other children would have no share of it. Upon this he made further inquiries, and finding the state of the law was so, he sent for his solicitor without loss of time and made his will. He has now partially recovered, and has expressed the deep gratitude he feels both on his own account, and on account of his children, that he has been made aware of the true state of the law. He admits that he had great difficulty in believing a law of so unjust a nature could be in existence.There is a class of cases also of extraordinary cruelty to which I will now refer, where not only the law of succession works its own injustice, but also the law relating to marriages comes to complete, and if possible add to, that injustice. A will is made by an owner of landed property in order to defeat the injustice of the law, in order to prevent all younger children being left destitute. A marriage settlement is also required by every thoughtful woman, for no other reason generally than to prevent her being deprived of everything she possesses, and in order that some sort of a provision may be made for her. These cases will at once show the extraordinary injustice and double cruelty of the present laws.J. N., plumber and glazier, married the daughter of a respectable farmer, who gave her several hundred pounds, No settlement was made, and some time after the marriage the husband laid out the whole of this money in the purchase of a piece of land. He subsequently died intestate, and without children. The land went to the heir-at-law, a nephew, and the widow was left entirely destitute. She is now a menial servant in a farm house.I will now trouble the House with only one other case out of. many—A. B. was a dealer in provisions, &c.; he had a wife, but no child—they were a most careful and industrious couple, and had amassed besides the stock in trade, furniture, &c. some 2,500l. There was a nephew living, who had been a great favourite with them, but on growing up he had become a thorough scamp. A. B. made a will in favour of his wife, who had, in fact, done as much to earn the property as he had. They were in the vale of years. At the time I speak of, there was a freehold little farm to be sold in the vicinity. The price was 3,000l. A. B. had book debts, stock in trade, &c. and 2,500l. in cash. He knew he could, with a little temporary borrowing, compass the purchase, and stock the farm—he signed 570 the contract, and paid the deposit. Somebody suggested that he must alter his will, or his nephew might succeed to the estate instead of his wife. The poor man said, it will be time enough to do that when the place is my own, I will make a new Will that very day.' Alas, there was not time enough. He died suddenly, before the purchase was completed. His poor wife, as executrix, was compelled to complete the purchase, and what with the expenses of some litigation, every shilling, and every chair and stool went away from her, the nephew took the estate, and the woman lived on charity.I have now quoted cases of real hardship, and I admit that if cases of similar hardship could be quoted as having arisen in consequence of the law relating to the personal property of intestates—they would have weight. But nothing of the kind—a noble Lord (Lord J. Russell), on a former occasion, attempted to strain himself into a belief that if this Bill were passed into a law much hardship would arise. Against my real cases of great hardship, he adduced an imaginary one. He said, "suppose a landed proprietor brings up one son to the bar, and he becomes a Judge; another is in the army, and he becomes a General; the father has spent largely in educating the one and in buying a commission for the other, it might so happen they might be better off than the eldest." Now, it is quite clear that the noble Lord had not looked carefully into this question. I propose to apply the statute of distributions to landed as well as personal property. In that statute there is a clause with respect to "advancement," the object of which is to make all the shares of the children of the intestate father as near as possible equal. It is expressly enacted that any child who has been advanced by the intestate in his lifetime, shall bring that portion he has received into hotchpot, and receive so much less of the surplusage. This imaginary castle falls in the same way Lord St. Leonard's castle fell, because it has no foundation.I might give a number of cases of hardship. But I have also looked carefully into what my opponents have written and said on this subject, and I think no one has in a more careful and spirited way shown up the technicalities and oppression of the law, than Lord St. Leonards himself.
Lord St. Leonards, when Sir Edward Sugden, thus expresses himself in one out of a series of letters he wrote—the object of those letters, no one can doubt, was to warn the possessors of property against the anomalous state of the law— 571
A moment's reflection will show what serious consequences may follow from a neglect on your part, for suppose you purchase an estate with the 50,000l. in the funds, which you have given by your will to your younger children, and which constitutes the bulk of your personal property, and should neglect to devise the estate, the money must go to pay for it, at the expense of your younger children, who would be left nearly destitute, whilst your eldest son, to whom the estate would descend, would have an overgrown fortune.Lest any one should imagine that this is a rare instance of hardship, I call the particular attention of the House to his own remark in the very next sentence; this great authority goes on to say, "Distressing cases of this kind are continually occurring."I now proceed, still reading an extract from my opponent, in order to prove my case—the horrible injustice of this law—and the continues—
If your personal property undisposed of is not sufficient to pay for the estate, it would be better, perhaps, to direct it to be sold again, and the first purchase money to be paid out of the money produced by the resale.You must here remark that even he, even Sir Edward Sugden, that most astute lawyer, hardly knows how and what to advise; the technicality of the present law really does seem to be too great even for him. At all events, his plan of solving the difficulty certainly does not seem to be a very simple one. He then goes on to state another case of great importance; I give it in his own words—You must remember, that in devising or suffering an estate to descend which you have purchased and not paid for, your devisee or heir will be entitled to have the purchase-money paid out of your personal property, although you may have given it all to another person. A most vexatious case once happened. A younger brother agreed to purchase an estate from his elder brother; the conveyance was accordingly executed, but the money was not paid. The younger brother then made his will, giving his property to his brother, subject to legacies, and made him executor. The will, however, was not executed so as to pass the estate. The younger brother died, and the elder brother took the estate as his heir, and also paid himself the purchase-money out of the personal property, by which he disappointed the legatees, who lost their legacies, whilst he got both the estate and the purchase-money for it.Now these distressing cases of hardship, which really are continually occurring, are referred to by Lord St. Leonards, when Sir Edward Sugden, with the view of warning individuals as to the state of the law. Is it not, I would ask, imperative on the Legislature after such a warning, 572 and when its attention is called to this deplorable state of the law, to take care that no such distressing cases shall ever again occur?Let not hon. Gentlemen imagine for a moment that this Bill will affect the unjust rights of eldest sons alone, and that the eldest son is the only member of a family who has these unnatural rights, for the rights of the youngest son in many places are just as oppressive and unnatural.
There are many places where the custom of Borough English prevails, where the youngest son inherits all the land of his intestate parent, to the exclusion of all his brothers and sisters. There is a large tract of about 40,000 acres in the neighbourhood of Taunton, where this custom prevails, and from which neighbourhood, the right hon. Gentleman the Member for Taunton (Mr. Labouchere) presented a petition to-night in favour of this Bill. That petition was more respectably signed than any which ever came from Taunton, and by persons of all shades of politics. The circumstances under which these rights commenced, have now ceased. The law has survived the occasion for which it was at first introduced; that law which was necessary once, is now no longer so. You no longer require that land should be kept in few hands, and descend to the eldest son as a means of protection. You may say that it is necessary it should thus descend for other purposes, but the original object has altogether ceased. Neither is it any longer necessary that land should descend to the youngest son, where the custom of Borough English prevails; for those most revolting, disgusting, and tyrannical rights have long since ceased, which alone made such a descent imperative. These laws, which belong to other times, are no longer required; having arisen out of the necessities of other times, they can no longer be supported either by argument or by expediency.
Is it right, I ask, that the Legislature should allow these laws, however necessary they once were, to exist any longer in the oppressive state they are now in? We must look upon all these laws and customs, with regard to landed property, as a part of a great military system. A foreign enemy encamped on these shores and made such laws as they, without the concurrence of the nation, considered best adapted for the purpose of subjugating a conquered people. Those laws still remain, but we, the Legislature, ought not to treat that 573 people whom we profess to represent, any longer as a conquered nation. There has been no great modification in those laws for more than 3U0 years, when an inroad was made upon this great military system, and an owner of land for the first time had the power of bequeathing land by will. Till that time, it may be said, as far as land was concerned, we had a law of primogeniture, for no one could leave land by will. I find in Kent's Commentaries that so great was the dread of land being alienated, "that the hand of him who knowingly wrote a deed of alienation was directed to be struck off." We live in other thnes—there is now a general desire that land should be alienated with facility, that the transfer of land should be easy.
I heard with delight a speech of the Solicitor General at the Law Amendment Society—he confirmed these views, and said that he saw no reason why land should not be as easily transferable and divisible as money in the funds. If it be a good and sound rule to make land easily transferable, and to treat it in this respect like personalty, how much more essential does it seem, to let it descend also in the same just way that personalty now does. This is a part of the question, the justice of which is much more cared for by the people out of doors, than the transfer of land. It is often said why, when every one can make a will and leave his land to whomsoever he pleases, why should you alter a law which works well, and gives all to one child, and no portion of it to any of the other children? Now I deny that it does work well, and I say, moreover, that it is roost unjust. I would remark that life is extremely uncertain, there is too often a carelessness and propensity to procrastinate and delay making a will—that repugnance is often carried so far, that even persons have on their deathbeds expressed their wishes in the clearest manner, so as not to leave the slightest doubt, and yet those intentions could not be carried out because they had not been legally expressed, in short, for no other reason than that the deceased had a repugnance to making a will.
The result of these laws of succession to real property is, that unfortunate families of helpless young children with their widowed mothers, are plunged from comfort into misery and want.
This, indeed, is an artificial system, but is it not a huge imposture to pretend for a moment that it can he right to allow the 574 law to remain in such a state—can it be lawful to persuade the heir that he is doing right in taking all from all his brothers and sisters, only because the law gives him an unjust right to all? I am sure those who have done so have thus acted in blind ignorance—they can never have thought of the justice of the case—if they have thought at all, they have justified their conduct under the comfortable garb of expediency. I do not say to any one who may have thus acted, to restore that to which he has an undoubted right as far as the law is concerned, though a most questionable one as far as justice is concerned. This I do not ask, but what I do ask is, that you should assist in making a just law now, and thus prevent any one from hereafter being placed in the unsatisfactory position, those who have profited by the existing law must feel themselves placed in.
We have been told that it would be dangerous to alter these laws of succession and to remove this part of a vast military system of organisation, for that if we did it would endanger our institutions, and that they are necessary for the support of the aristrocracy. But we have been told also the very same thing, with regard to another portion of our great military system, the regimental system which prevails with regard to promotion in the army. It has been gravely asserted that to allow the common soldier to rise from the ranks, as he does in the continental regiments, to reward as it were merit in him, to treat him with common justice, to do unto others as you would wish to be done by, that this would also destroy our aristocracy and our army.
Have not the awful successions of catastrophes, which have arisen solely from the extraordinary rottenness of our military system, taught us another lesson; and now we are, at last, when it is almost too late, prepared to reverse the system; to concede tardy justice to the soldier, and reform with one dash of the pen the whole of our military system. You refused to treat your common soldier with justice. You kept him in a degraded position, where merit would have elevated him, because you imagined it was expedient. You now, at last, in consequence of mismanagement in every department, find that it is expedient to be just. You have refused justice, nay, even sustenance to the widow, and to all the younger children of their intestate father, unjust as it might 575 appear, because you said it was expedient. You have found it expedient to degrade all the younger children of a parent whose property is in land; you do not acknowledge their existence, you treat them as if they were illegitimate, and unknown to the law; this treatment you have found to be expedient. May you not find that it is expedient to be just, and to remodel the great cruelty and injustice in this part of the great military system.
We mourn over the loss of an army, which has been hurried through our military mismanagement, to an untimely grave; we cannot recall those who are gone, but we may prevent such sad catastrophes again occurring. Neither can we recall and restore to their proper and natural positions in society, the widow with her degraded and insulted children, who have been suffered to pine away, and are now dragging on a wretched existence, solely in consequence of these cruel and unjust laws. We cannot undo this injustice of the past, but we can, by passing a just law, prevent future generations being ever again placed in a similar misery. I hope the House will not refuse me leave to bring in this Bill. If you do refuse it, you will at once proclaim that you have a perfect horror of justice where your prejudices are concerned. I entreat you not to let it go forth that this House, which is almost the only representative assembly now left in Europe, holds in its hands unequal balances and false weights; but I sincerely hope that we shall be able to show our institutions are a model for Europe, and that we shall prove, by passing this Bill, we are willing to do justice, and to remove oppression, wherever it is to be found.
§ MR. MASSEY,in seconding the Motion, said, that considerable misapprehension existed that this measure would lead to ulterior consequences of a very grave and extensive nature; but his hon. Friend did not propose to introduce a new law; he only sought to extend the provisions of a law which had been in existence for two centuries, and which already controlled the great mass of the property of the country, namely, the Statute of Distributions—a law, the wisdom and policy of which no man could contravene. His hon. friend desired simply to comprehend in the Statute the remaining portion of landed property not now embraced in it. He (Mr. Massey) did not know that he went so far as his hon. Friend in thinking that 576 this measure would have as extensive an operation as he supposed, or as some, who objected to it feared. He believed it would not have that extensive effect. Personal property, leases of nine hundred and ninety-nine years, leases at rack-rent, mining property—probably half the real property of the country—were at present subject to the law which regulated personal property and chattels. The law which had been in operation for two centuries had affected that vast mass of property, and, therefore the House was in a position to judge accurately of the effects of that Statute. There was ample proof of the salutary operation of this law, and on the experience derived from its working he principally founded his advocacy of the measure his hon. Friend asked leave to introduce. He hoped the Government would not oppose the introduction of the Bill, and he could not conceive any valid reason for such a course. The argument that it was a measure that would have an injurious effect on the institution of the aristocracy of the country was without foundation. He considered it almost an insult to him to charge him with being opposed to any of the great institutions of the State. Aristocracy had a much more solid foundation than those who used such an argument could suppose. But our landed aristocracy was founded not on the law of primogeniture, but on the law of entail. He certainly did not wish to see the existing order of society in this country disturbed. But, in reality, the question before the House did not touch the question of aristocracy at all. The alteration proposed by his hon. Friend would come to this—that it would relieve some small owners of heritable property from the ill effects of their own ignorance. Men who purchased a few acres of land did not do so with the view of founding a family, but of obtaining interest for their money, and it was estates such as these which it was sought principally to bring under the operation of the law of Charles II. It might be said that this proposal would discourage agriculture. But they had the experience of the last two centuries to guide them; and he asked hon. Members if they found that agriculture had been diminished through the effects of the Statute of Distributions? If he thought agriculture would be injuriously affected by this measure, he would not give it his support. He trusted that the House would permit his hon. Friend to bring in his Bill, and then, when in Com- 577 mittee, he would be prepared to hear and discuss any objections that might be made to its details.
§ Motion made and Question proposed, "That leave be given to bring in a Bill for the better settling of the Real Estates of Intestates."
THE SOLICITOR GENERALsaid, there were some subjects which the House should not let go further, and towards which they should not exhibit any hesitating determination, and one of these was, whether they should admit a Bill to be brought into the House which undoubtedly had for its object, and which unquestionably would have for its result, the altering of some of the most important and established institutions of the country. There was a great distinction between a measure framed with a view to an amendment of the law and a measure which, whatever might be the intentions of its framers, would directly shake the institutions of the country. To all measures calculated to effect an amendment of the law, he trusted that the House would ever afford a ready ear, and an anxious attention; but to a measure for removing the landmarks of some of our valued and most important institutions—for taking away some of the foundation stones of the constitution—to any such measure he hoped the House of Commons would answer, as their ancestors did of old, Nolumus leges Angliæ mutari. This proposition had been debated last Session, and the adverse opinion of the House was most unmistakably declared, by a majority of three to one, and he now called on the House to reject it again by a majority as decisive. The argument urged by the hon. Gentleman who introduced and seconded the measure was an appeal to hon. Members in certain cases of hardship, which they said could not be remedied without their interference. The hon. Gentleman who introduced it to the notice of the House cited a great number of instances of contract for the purchase of estates where the whole of the personal property, in consequence of the death of the purchaser, had been absorbed by the money due under the contract, the estate going to the heir and the younger children being deprived of their proportion. But that was not due to the law of primogeniture. The result proceeded from a contrary principle. In every contract which was to be carried into effect after the death of a party, his personal property was liable at his death to the contract. Whether it be right or wrong 578 that personal property should be liable for the payment of debts was a question altogether beside the one now before the House. With respect to the law of primogeniture they had heard most contradictory arguments—that the law they proposed to alter would affect the most important classes in the empire, the aristocratic branches—that it would affect the great estates—and then it was said on the other side, that it was required to dispose equitably small estates, affecting the lower classes. One hon. Gentleman said that the greater part of the large estates went by the law of entail; but if the law were altered, what became of the principle upon which our settlements were founded and maintained? Would the great settlements of the country be permitted to remain if the law of primogeniture was taken away? The hon. Gentleman who brought forward the measure knew that, should they abolish the law with respect to the succession of the eldest son, the whole principle and form of arranging settlements, and the foundation on which the order of estates was fixed, would fall, and they would have nothing more than estates divided indefinitely, to the great disadvantage of the country economically, socially, and, he would add, that to which the hon. Member who last addressed the House had referred, agriculturally. It was said, too, that this was a question based on the principle of natural justice. But the institution of property and of landed estates was the creature of positive law, and that law was regulated by our political institutions; and they could not alter the one without materially affecting the other; therefore, the question was not to be discussed upon any abstract principles of natural justice, but it must be considered upon the principles by which the constitution of the country was established. He contended that in adhering to the rules of property which had been laid down from the earliest time, and in reference to which their institutions were moulded, they would not at all violate any principle of natural justice. But even if any such principle were violated, it belonged to the Legislature to consider whether any greater advantage did not accrue to society from that partial deviation from the general principle I than from an invariable adherence to it. He begged hon. Members would not consider that in abiding by a rule laid down from the earliest times they would violate any principle of natural justice. But even if there was any principle of natural justice 579 violated by it, it was for the Legislature to consider whether there were not many great social advantages resulting from this institution. He did not know anything that was more important to preserve in this country than the great rule by which the landed property of the father passed to the eldest son. There was not a profession, calling, or occupation in the country that did not swarm with numbers of industrious, intelligent, earnest, active younger sons, whose industry was stimulated, intellect excited, and talents called forth and matured by the mere circumstance that they had to depend on their exertions, and would not have the property they might probably be looking to if this great institution were abolished. The whole constitution of society had been framed on the existing principle, and what were the reasons to induce them to consider the propriety of uprooting the foundation and altering the principles and rules by which the whole of the people of the community had their expectations and views regulated and determined? Having had no apprehension that this matter would be brought forward until he came into the House, he was only expressing his thoughts in a desultory way; but he considered that he should be failing in his duty if he did not declare his decided conviction that this matter, now again introduced, came recommended by no new argument, nor by anything that could induce them to entertain a different opinion respecting it from that which had been repeatedly expressed by that House and by the best-informed persons out of it. With regard to one point to which the hon. Gentleman (Mr. L. King) had directed attention, namely, the anomaly existing with regard to the peculiar custom respecting descent which prevailed in a very small part of the United Kingdom, whereby the younger son, instead of the elder son, became the inheritor, if the hon. Gentleman would direct his attention to it, it might be a proper subject for discussion, but any attempt to alter the great institution to which his Motion had reference should not be entertained by the House of Commons.
§ MR. EWARTsaid, he should support the Motion for the introduction of the Bill, which was similar to the one introduced by his hon. Friend on this subject last Session, and he had seen no reason to change the opinion he then entertained on the subject. He believed this was a question which could only gain ground by discussion and 580 experience. The hon. and learned Gentleman the Solicitor General appeared to apprehend that it was a measure which would affect one of our most ancient institutions; but he (Mr. Ewart) did not know what institution the hon. and learned Gentleman could mean. The descent of property by due course of law was no institution. He denied that the proposed measure involved any change in the institutions of the country; what it was really proposed to do was to alter the law so as to suit the existing wants of society. The hon. and learned Gentleman had sheltered himself behind that venerable quotation—Nolumus leges Angliæ mutari; but why did he stop there? Why did he not go on with the sentence—quæ huc usitatæ sunt et approbatæ? He (Mr. Ewart) was equally opposed to the law of France and of Norway, and to the old Roman law of compulsory division. He was for perfect freedom in the distribution of property by will; but when, in the absence of any will, the law made an unjust distribution of that property, then it became the duty of the Legislature to reform that law. It was, therefore, under these circumstances that he supported this Motion. He believed it was a measure in conformity with the changes which had taken place in the opinions and feelings of society, and one which would anticipate and prevent those evils which infallibly resulted from reforms which were too long delayed.
§ MR. WARNERsaid, he must complain that the question had been argued on both sides too much as a question of natural justice. For his part, he regarded it as one of pure expediency. There was not a shadow of reason why the elder son should receive more of his father's estate than his brothers, unless they went back to the law of Moses; but on the other hand, if they insisted on an equal division, they could not stop there. In order to be consistent, they must carry out the principles of socialism, and assert that every man had an equal right to everything, and that property was robbery. He (Mr. Warner) thought the custom of primogeniture was an exceedingly good one. It was a custom which was strongly recommended, both by antiquity and universality, for it had existed from the earliest times, and had prevailed in every part of the world. If, therefore, it was a question between our English custom and the French custom of continued subdivision, he should say by all means let us keep up to our own law, with 581 all its anomalies, all its difficulties, and all its absurdities, rather than resort to a system of enforced subdivision, which had proved most disastrous to all that had been subjected to it. On the other hand, while it might be right for a man to keep up his name and family, it was still more right that no citizen of this country should be left to starve. He should therefore support the Motion for bringing in this Bill; because he believed that by the measure they would obviate many cases of suffering without materially altering the present system, with which he thought it would be undesirable to interfere to any considerable extent.
MR. LOCKE KING,in reply, said, that his hon. and learned Friend the Solicitor General seemed to have prepared his arguments previously to hearing his (Mr. L. King's) speech, for he had made an elaborate defence of primogeniture, which had not been attacked. He was surprised that after his hon. and learned Friend had said he was in favour of the amendment of the law, he should oppose the present Motion.
§ Question put.
§ The House divided:—Ayes 84; Noes 156: Majority 72.