§ Order for Second Reading read.
MR. LOCKE KING
rose to move the second reading of this Bill. He said it had been attempted to make it appear that this Bill would interfere with settlements and family arrangements. In his opinion the measure would have no effect whatever on the estates or the families of the upper classes or the great landed proprietors in the country, for it would only come into operation when there was no will, and no settlement of any kind had been made. In the families of the higher class a settlement was invariably made upon marriage, so that the widow or younger children would not gain anything, and the eldest son or heir-at-law would lose nothing by this Bill if it should pass into law. Amongst the great landowners there was hardly a case in which the heir 1118 or eldest son took the property under the existing law, but always under settlements or entail. But there was a very large class of persons who were seriously injured by the present law. He alluded to the numerous small proprietors of land or houses, who were quite ignorant of the operation of the law. In their cases, as a rule, no settlement was made upon marriage, and whenever they did find out what the state of the law was they always made wills, in order to defeat the injustice of the law. He felt confident that if a different law had prevailed many distressing cases of hardship which were now continually occurring would have been spared. The present law, it was said, was in harmony with the feelings of the great, body of die landed proprietors of the kingdom, who are not affected by it; but it was certainly not in harmony with the feelings of the small owners of property whose families are injuriously affected by it. It should not be said that this Bill was an insidious attempt to assimilate the English law of succession to that of France. In France there was scarcely any power of making a will allowed to the landed proprietor, since the land must be divided amongst his children; under this Bill every person would be able to make his will; but in the event of his not making a will, all his family would be provided for. He hoped the gentlemen of the legal profession would not endeavour by dwelling upon mere technicalities to defeat this Bill, for it was by promoting reforms of the law that they would make their presence in that House popular with the community. The principle which he now contended for had been adopted with regard to leasehold property, and no difficulty was found in its distribution; why, therefore, should it not be extended to small freeholds? There was no danger of its leading to an excessive subdivision of the land, which the common sense of the people might be relied on to prevent. He would not detain the House with any lengthened arguments in support of the Bill; he would only remind it there was a strong feeling in the mind of the middle classes that much injury was done by the present system.
§ Motion made and Question proposed.
§ "That the Bill be read a second time."
§ LORD WILLIAM GRAHAM
said, he should move as an Amendment that the Bill be read a second time that day six months. He did not propose to enter into the legal technicalities of the case, but 1119 only to draw the attention of the House to one or two broad and general results. The great or the noble, or the rich of the land, would not to be the first to be injured by the Bill. The class that would be most injuriously affected by the measure was one that had been left entirely out of consideration. It was the class of small yeomen and small freeholders—the persons who had acquired a small proprietorship land by industry and perseverance, and whose interests ought ever to be upheld by that House. The number of such persons bad by a recent Parliamentary return been placed at 300,000. By the operation of the Bill the land of these small proprietors would be divided and subdivided, and their cottages and freeholds, which, as stated by the noble Lord the Member for the City of London (Lord John Russell), might have been in their possession 400 years, or ever since the Norman Conquest, would be gradually swept away. And why? Merely to satisfy a crochet of the hon. Member for East Surrey that was entirely opposed to the feelings of the people of England; and, contrary to the general devisement of land by will and testament. In all ordinary cases land was left in a mass to the eldest son, with a provision from it for the other branches of the family. What does this prove? That the law of primogeniture is inherent in the character, customs, and feelings of Englishmen, He knew that the hon. Member would say that the law of primogeniture was not openly and directly attacked by this measure; but if it passed a most important step would have been taken towards abrogating the ordinary law of succession. If you once declare that in cases of intestacy real estate shall be compulsorily divided, that it is a crying injustice that land should not be equally divided amongst all the children, you raise up a most formidable argument against the law of succession. The principle and precedent established by this Bill would hereafter be quoted against it, and though you may not directly abrogate the law of primogeniture, you would so limit and restrain it as to attain that object in an indirect manner. They were bound to consider what effect such an alteration of the law of property would have on the government and constitution of this country. They were about to consider a Bill modifying the representative system. Without wishing to attribute any exaggerated importance to the large territorial possessions of the country, and perfectly ready to 1120 admit the influence of the commercial and manufacturing interests, he still believed that the maintenance of the great landed properties was essential to the working of the British constitution. They are the balance or makeweight in the political machine. If they were destroyed, they might have au American Republic, or a French despotism, but not the English Government. It was the solid substratum of power derived from the land that resisted all unnecessary change. The continual subdivision of land in France was at the bottom of all the political troubles of that country during the last fifty years. It was by the votes of the numerous body of small landed proprietors that Louis Napoleon was raised to the Imperial throne. He did not wish to make any attack on the system of government which prevailed in France, but he did not think the people of England were at all desirous that that form of government should be introduced here. They regarded with dislike any legislation that would tend to produce that state of society which might pave the way for such a form of government in this country. Any one who had travelled in France must have observed that the minute subdivision of land had also seriously affected the agriculture of that country. Stock, implements, and the cultivation of the land had all deteriorated. This was admitted even by the French themselves. A French gentleman of experience in these matters, lecturing before the Agricultural Society at Paris, had stated that France was half a century behind England in the practice of agriculture; and he gave it as his deliberate opinion that the superiority of England in this respect was owing to those social and political institutions this measure would undermine and destroy. And what was the overwhelming necessity for the change? What was the crying injustice that demanded such a remedy? If any injustice was committed it was the consequence of a man's own negligence, and to call on Parliament to pass a special law to remedy evils caused by individual neglect certainly required an unusual amount of presumption. He would not impute any such presumption to the hon. Member; but then he thought it was plain he must have some other object, sonic ulterior aim, some greater principle in view, that induced him, year after year, and Session after Session, to introduce this Bill to alter a law which had worked so well, had produced such 1121 beneficial results, and had elicited the approving testimony of numerous foreigners. Either the measure had only a small object, for which it was not worth while to change the law by special legislation, or some greater object, which they were bound to resist by every means in their power.
§ MR. BLACKBURN
seconded the Motion.
Amendment proposed, to leave out the word 'now,' and at the end of the Question to add the words "upon this day six months."
§ MR. MELLOR
said, he fully agreed with the noble Lord that if the Bill was merely intended to give effect to a crotchet of his hon. Friend (Mr. Locke King), or to find a remedy for some paltry inconvenience, that it ought to be rejected; but he mistook much, if, when the scope and object of the Bill was fully understood, it would not he found that it provided a remedy for a crying evil, and that its working would be quite consistent with all the institutions on which the prosperity of the country depended. He was glad to hear that the Constitution still had something left to be ruined, they had been so often told it was ruined utterly. They were assured that the repeal of the Test and Corporation Acts and the Catholic Emancipation Bill destroyed the Protestant Constitution; and lately, that the admission of Jews to Parliament had destroyed the Christian character of the State. But something was still left to be ruined by this Bill, which was supposed to mask some great design under the pretext of dealing with a trifling matter; it was described as an attempt to introduce the French law of succession, and subvert the institutions of this country. The ancient tenure of land throughout Europe, under the Roman civil law, was that of allodial proprietors. One of the incidents of the allodial tenure was that under it land was always divided among the children or the next of kin. That tenure was destroyed by fraud and violence, to make way for the feudal system, which extinguished the ancient tenure, and the law of succession, that had been found to work beneficially in every civilized nation; that law of succession existed in England before the Norman conquest; it existed among the Jews, with only this distinction, that the eldest son received a portion double that of the other children. In the ease of great estates, indeed, the evil of the common law was modified by settlements. There was scarcely an instance in which a large estate had been allowed to pass down in the or- 1122 dinary course of common law. This was a modification of the evil; but it was one which did not reach the case of intestacies amongst the middle classes; and great was the evil caused in this ease by the present system. ln very many instances that system caused great hardships to fall upon widows and children where no will had been made. Again, in the cases where a will was made on the death-bed, the evil was scarcely less. He had known innumerable instances in which the wife and children had been subjected to harassing and expensive litigation by the heir-at-law in the endeavours of the latter to set aside a will made on a death-bed. It was said that they should do nothing that would be calculated to make an inroad upon the laws of primogeniture. Why should they not, if the interests of morality and religion required that they should do so? The middle classes of the country were almost to a man against the system of leaving the entire of a father's real property to one child. The table of the House was not, indeed, loaded with petitions against the present law. The cases of injury did not occur to such numbers at once as to give rise to a general expression of indignation. He held in his hand a letter from a solicitor of very extensive practice in the preparation of wills. This gentleman had prepared no less than sixty wills during the last two years. He had been thirty years practising as a solicitor; Ids practice was almost exclusively confined to the middle class; and he had not met with an instance in which the father of a family had left the entire of his property to one child. The general course was either to devise the real property to trustees for all the children, or to devise to them separately. He had known some few cases in which a father left the whole of his real estate to one of his children—not always to the eldest—but in these cases the property so devised was charged with many payments for the other children. This gentleman said that, in fact, if he were called upon by any one to make a will giving the whole of his property to one child he would feel bound to inquire as to such person's motives in taking such a course, and if necessary to point out to him the injustice of such a course. Other solicitors of great experience had made similar statements to him. Intestacies among the middle classes were attributable to their having been surprised by death without having made a will, and not to their fondness for the law that 1123 devolved their real property upon the eldest child. At the moment that the widow and younger children, who had been dependent upon the intestate to the day of his decease, were grieving over their loss, there was added the bitter consideration that it depended upon the eldest son's humanity whether they should be sent out of their home as exiles. The Bill would remedy that injustice. It would not interfere with any man's right to dispose of his real property by will in any manner he pleased. But if no will were made the State interfered and disposed of his property in a manner that was opposed to justice and morality. In the reign of Charles II, the Statute of Distributions was passed, whereby personal property in the case of intestacy was made distributable among the next of kin, without reference to the claims of the priesthood who had previously claimed the distribution thereof to the prejudice of the next of kin, and thus far feudalism had to yield to civilization. The advanced opinion of these days demanded that with respect to landed property a similar victory should be obtained over barbarous feudalism. It was only recently that an Act was passed enabling a father to inherit the property of his son, notwithstanding the feudal dogma that inheritances must always descend and never ascend. Perhaps the noble Lord opposite, if he had been present when that Act was passing through the House, would have got up and said of it, as he had said of this Bill, that it would insert the slight end of the wedge for the destruction of the landed gentry. The advocates of the measure merely sought in the interests of humanity and equity to remove a restriction imposed in feudal times, and wholly unsuited to the present enlightened age. He would object to any Bill which interfered with the discretion or absolute power of testators to dispose of their property as they liked; but this measure would not do so, while it would remove a grievance which was frequently arising in families, and ought to be dealt with by the Legislature.
§ MR. HENLEY
said, he regretted that the hon. and learned Gentleman (Mr. Mellor) had not described the operation of this Bill. Any one acquainted with the ordinary affairs of life knew perfectly well that in its mutations and changes people were constantly subjected to some inconvenience or another, and he wished that the hon. and learned Gentleman, instead of endeavouring to carry the House away 1124 by his appeal to morality and justice, had described some instances of the injustice arising out of the existing law of real property: they might then have discussed it with a view to finding a remedy. The hon. and learned Gentleman, however, wished then to revert to the Norman Conquest, and stigmatized the change that then took place as a change effected by fraud and injustice. That language was not very likely to induce the House to consider calmly the existing evils or to pacify those who were alarmed that this Bill was only the commencement of an attack upon the landed gentry. He should not, however, follow the hon. and learned Gentleman into these larger questions, but confine himself to the matter at issue. He did not dispute the accuracy of the hon. and learned Gentleman's statement that intestacies caused great inconveniences to the middle classes, and that the higher orders, as they were called, were not exposed to like inconveniences. Persons belonging to the higher orders did not often die intestate. But the hon. and learned Gentleman said nothing about the numerous classes of the poor. He did not condescend to notice them. But would the House bestow its attention upon the case of a well-educated man belonging to the middle classes, who, from sheer carelessness or cowardice, declined to make a proper provision for his wife and family, and shut its eyes to the case of those hundreds of thousands of poor men scattered throughout the land who were the owners of a cottage that had descended generation after generation, and who, generally speaking, never had and never would make a will? This Bill would drive those Men into the clutches of an attorney or a small schoolmaster, who would have to make a will for them. The middle and the upper classes were more able to take care of themselves than these poor men. At present, not one in a hundred of the poorer class ever made a will. Generally speaking when one of them died his eldest child took the cottage, and the widow continued to reside in it during the remainder of her life, and so the cottage was handed on from generation to generation. But all that would be put an end to by this Bill. Nevertheless at the end of tile Bill there was some consolation for these people. The Bill would permit them to go to the Court of Chancery, which, upon a summary application, might give such directions to an administrator as it might think proper. 1125 Great, no doubt, in the opinion of the hon. Member, was the privilege of being at liberty to go into the Court of Chancery; but he (Mr. Henley) did not think it was necessary to enact that any man might go into the Court of Chancery, because he always had the weakness or the prejudice of believing that the gates of the Court of Chancery, like those of some other place that should be nameless, was always open. Let the House pass what laws it pleased, there always would be some hardship in the distribution of property to be endured; but as he believed that this Bill would increase at least twenty fold the cases of cruelty among the poor, he had always opposed it, and until he had better reasons than he had yet heard for supporting it, he should resist its progress.
SIR GEORGE LEWIS
said, he confessed that he was unable to assent to the view taken of the probable operation of this Bill either by the hon. and learned Member for Yarmouth (Mr. Mellor) or by the right hon. Gentleman the Member for Oxfordshire (Mr. Henley) whose opinion upon questions of this sort had deservedly great weight in that House. It had been argued on both sides of the question as if this were a narrow and limited Bill, as if it did not affect the whole mass of real property, but would in its operation be confined only to a small portion of that class of proprietors. As he understood the Bill, its effect would be to assimilate the law of descent of real property to that of personal property. It proposed that in cases of intestacy all real property should go to the administrator. He apprehended that the effect of that would be that all real property under this Bill would be distributed according to the Statute of Distributions. Was that or was it not, the effect of this Bill? Therefore it would apply in all cases of real property, whether held in large or small portions. The effect would be to extinguish that class of persons who were denominated heirs. There would be no such thing as inheritance. No person would hereafter be heir to landed property. That, he apprehended, would clearly be the effect of the Bill. The measure, too, would extend to all clases alike. It would not affect merely the owners of cottages or the holders of small portions of property; it would extend to the largest estates in the kingdom, and of course to the estates of those who sat in the House of Peers. Now, what was the effect of the existing law of the descent of personal property in 1126 this kingdom? If a man did not make a will with respect to his real property, the whole of it would descend to his heir, subject to the right of his widow to dower during her life—that is to say, to the third part of the rent of the estate. Therefore, he confessed that to him the sentimental argument with respect to the case of the widow seemed to be wholly inapplicable. Under ordinary circumstances, ample provision was made for the widow. [Mr. MELLOR: There are the uses to bar dower.] He was quite aware that where a settlement was made dower was barred. He was speaking of the eases where there was no settlement and where there was no will, but where the landed estate descended according to the course of common law. Therefore he apprehended there was no doubt the widow would have her dower. And that disposed of the arguments with respect to the case of the widow. But in the case of personal property, if there were no settlement and no will, it would be distributed, as they knew, under the Statute of Distributions, among the next of kin. That being the state of the law, when a person made a settlement or a will, whatever provision he made for younger children out of his real property was so much for their benefit in addition to what the common law would give them, and therefore, if a large portion was given to the eldest son and smaller portions to the younger sons awl daughters, no feeling of injustice arose, because the portions under the ordinary marriage settlement for the benefit of the younger children were so much in addition to what they would have by descent according to common law. They could have no reason for complaining of injustice or partiality on the part of their parents. But if this Bill became law that feeling would be entirely inverted. A person who made a marriage settlement according to the present system of marriage settlements would be robbing the younger children of the rights which the commmon law would give them. He would be accumulating upon the head of the eldest son property which was given to him as it were capriciously, arbitrarily, and unjustly in addition to what he would derive in case of intestacy under the common law. Perhaps in our time no great practical change would arise out of that state of things. He durst say the custom of making marriage settlements might be extended to another generation; but he apprehended that the younger children 1127 would feel that they had been robbed of their rights, and that after a time the custom of distributing real estate equally among the children would obtain. He was not now inquiring whether that would be a good or a bad custom. The Bill, then, was not limited, as the description of it by the hon. and learned Member for Yarmouth might lead the House to suppose, to the owners of small portions of real property and to the prevention of vexatious litigation with respect to that property. It was, in fact, a Bill to alter the whole custom of this country with respect to the devolution of landed property. He thought it would be very desirable, before they proceeded to vote upon the Bill, that they should understand what was the question on which they were about to vote. They knew that in France since the Revolution the state of the law had been quite different from the provisions of this Bill. Real property in France was distributed compulsorily, by the operation of law. That was not the state of things now proposed to be introduced. There would, no doubt, be the liberty of making a will under the operation of this Bill, but in future the custom in this country would be to divide landed as well as personal property equally among all the children. The House, therefore, had to consider what would be not only the economical, but the political effects in this country of distributing real property equally among all the children. They must be aware that, if they abolished the name of heir from our law, if they got rid of the idea of hereditary landed property, even for a single generation, and even if they retained the other portions of the constitution, there would be a want of harmony between the working of the different parts of our system which would lead to most important political consequences. They ought also to consider what would be the economical effect of dividing estates on which houses had been erected of a magnitude suitable to those estates, and of introducing great changes of proprietorship, altering altogether the customs of the country with respect to the tenure of land. He was quite aware that much might be said in favour of the system of dividing landed property equally among all the children. There were many countries in which that system had produced a large class of small proprietors, and had led not perhaps to their enlightenment or civilization, but at all events to their prosperity. But, looking 1128 to the state of things which existed in this country, and to the manner in which our tenure of landed property was mixed up with our political constitution and the established order of things, he was not prepared to assent to the second reading of this Bill without any expression of public opinion in its favour, and without any discontent, so far as he could see, with the existing law and custom as to the devolution of landed property.
§ MR. HENLEY
One word in explanation. The right hon. Gentleman is mistaken if he thinks I am not aware that the Bill is applicable to all landed property. I merely argued that the higher and middle classes are better guarded than small proprietors.
§ MR. MONCKTON MILNES
said, he thought the law of intestacy deserved the serious consideration of every able and philosophical statesman, and he should give his vote for the second reading of this Bill. What the House had to consider was, whether they would assimilate the statute law of this country to the real political feelings and desires of the large class of small proprietors in the country. The privilege of making a will was held most dear in this country and the free disposition of property was one of the great causes of our prosperity. A great orator had argued in that House that the descent of real property to the eldest son was part of the constitution; and he (Mr. Milnes) had often corrected the mistakes of foreigners as to their notions of primogeniture in this country. He had always taken a pleasure in informing them that although the devolution of real property to the eldest son had greatly obtained in this country, yet in point of fact its disposition was as unfettered as the disposition of personal property. He believed, however, the operation of the law as to the descent of property in cases of intestacy was unjust, and contrary to the wishes of the middle and lower classes. He could mention honourable instances of Members of that House who, in cases of intestacy, had distributed the property to which, as eldest sons, they became entitled, they believing that the consequences of intestacy were not intended. He would not go into the question as to the compulsory distribution of landed estates. This Bill had nothing to do with the political effects of the division of real property; but there was a view of the case to which he might allude, inasmuch as France had been referred to, and that 1129 was, that, in the opinion of many, the subdivision of real estate in France had in reality proved its safeguard amidst the numerous convulsions to which it had been subjected. In fact the operation of the French law had gone far to create a Conservative public opinion there, and he might also point, as an instance where distribution of property was advantageous, to the garden of Belgium. The right principle was that in case of intestacy the land should go, as it might be judged it would have gone if there had been a will, moreover having due regard to the interests of the body politic. He could see no social advantage of humouring the vanity of a man who wished to enrich one son at the expense of all the rest, in order to perpetuate his name. That was a motive which he thought the Legislature ought not to encourage. The property in case of intestacy ought to be distributed fairly, as was the case with, the rest of the human race—leaving a man the power still to will as he pleased—even the whole—of his property to his eldest son, if he so thought fit. He thought the argument of the right hon. Gentleman opposite with respect to the cottage property was a fallacious one, and that the Bill would not affect its inheritance to the extent to which some hon. Members seemed to apprehend. Believing that this Bill was sound in principle, and that its effect would be to give the greatest freedom in the disposition of real property, he should, as on former occasions, give his vote against the remnant of a bad system.
TUE SOLICITOR GENERAL
said, he felt glad this Bill had reached a second reading, for two reasons, first, because it would enable the promoters to discuss and explain its principles fully; and secondly, because if, as he hoped, it was rejected, it would set the question at rest for a long time. It was also an advantage to have the real scheme of the Bill before the House in a printed form. He should, however, regret if the measure were rejected on technical grounds, because he desired to consider it on its broad principles, yet it was impossible nut to make a passing allusion to the form in which the hon. Member had embodied his principle, and to the consequences which would flow from the adoption of that principle in the form proposed. In the first place, then, the Bill was one which would fall short of the object the hon. Gentleman wished to obtain, for there were two cases, of no extraordinary occurrence, to meet which he had 1130 made no provision. Among cases that came into litigation it not uncommonly happened that there was a will and an executor as to personal, but intestacy with regard to the whole of the real estate; the consequence of which was that, inasmuch as there was a will and an executor, in the eye of the law there was no intestacy. But to such a case as that the Bill before the House would have no application whatever. There was also another case which might occur. Indeed, it was by no means a rare occurrence that a testator who had made a will devising his real property, nevertheless died intestate with regard to his personal property. Now under the present Bill administration would be granted of the effects of the man who made such a disposition, and under that administration and in defiance of the will the real estate would be taken by the administrator and divided amongst the next of kin. He could multiply instances of this kind, for their name was legion. The view taken by the right hon. Gentleman opposite (Sir George Lewis) was therefore perfectly correct that the Bill destroyed and put an end to the descent of real estate, as the term was generally used, and the consequence would be that every trust estate in the kingdom would pass to an administrator, to be sold by him for the payment of the debts of the trustee. But it did not stop there. The hon. Gentleman (Mr. Locke King) might tell him that he did not intend it; but there was no doubt that his measure would have that effect. The hon. Gentleman had told the House the other night, and those who supported the Bill had repeated it that day, that the case which they considered to be a hardship was the ease of the younger children. But was this Bill confined to younger children? On the contrary, it applied to next of kin generally. Again in this country there was a difference in the law with regard to the descent of estates which came from the father's and of those which came from the mother's side. If a man inherited from his father and died intestate, the estate went to his father's relations; and if he inherited from his mother and died intestate, it went to the mother's relations. There was no community between the father's relations and the mother's relations, and certainly no moral right as between the two that they should share in the property. What, then, would be the consequence of this Bill on the present law? He would take the case of a man 1131 who possessed an estate acquired by descent from his mother. Suppose he had one cousin on her side, and nineteen cousins upon his father's side, who had nothing whatever in a moral point of view to do with the estate. Under the Bill the result would be the division of the estate into twenty portions, and while the cousin on the mother's side, who had a moral right to the estate, would get only one-twentieth, the cousins on the father's side, who had no moral right whatever, would get nineteen-twentieths. Another consequence of the Bill would be this, that whereas by the present law, when there was no heir, the Crown took the estate by escheat, the rights of the Crown by escheat would be destroyed, and, in the absence of an heir, given to an administrator, who was no heir by blood. The next result he would mention was a singular one, when contrasted with the views of the hon. Member for East Surrey. Take the case of an estate—a large family estate—descending to a married woman. She had one or more sons; she died, and if she had no power to make a will she had no power to devise, and must, of necessity, die intestate. What would be the effect of this Bill in a case of that sort? Why, it would take away the estate from the children, who had the moral right to it, and give it to the father, who had a statutory right to be her administrator, and who would be entitled under this Bill to take her personal and her real property. These were some of the consequences which would flow from a Bill of this kind—a Bill, too, not now introduced for the first time, but which had been considered and brooded over year after year, and which the House was asked to read a second time this day. He (the Solicitor General) freely admitted the principle that mere inaccuracies or defects in a Bill which could be easily remedied in Committee ought to constitute no objection to its second reading; but when he found a measure based upon the principle of turning land into money, and passing it through the hands of administrators, and that the consequences he had described would result from that principle, he did not believe that the House would be prepared to give the Bill a second reading. Upon the introduction of the measure the hon. Member for East Surrey had certainly put a case of great hardship in the present state of the law. He mentioned the case of a man who might have contracted for the purchase of an estate, but died before 1132 the purchase could be completed. If he died intestate, his heir-at-law could come in, and, as against the rest of the family, require the personal property of the deceased to be applied in payment of the purchase-money of the estate. Therefore, said the hon. Member, the heir-at-law took the land contracted to be purchased, and the purchase-money was paid for him to the detriment of the other members of the family. That such was the law of the country at the present day, he (the Solicitor General) was ashamed to admit. He agreed with the hon. Gentleman that it was a very great discredit to the law. He agreed with the hon. Gentleman that it ought to be remedied. But why they should change the whole course of descent in this country because there was that grievance connected with the payment of the purchase-money of an estate he was utterly at a loss to conjecture. Of all men in the world the hon. Gentleman was the last who ought to use such an argument in support of this Bill; because, in 1854, the hon. Gentleman proposed, and he was glad to say carried through this House, a Bill which remedied another injustice which formerly existed—the injustice which authorized the heir-at-law or the devisee to have any mortgage money due upon a real estate paid out of the personal property of the testator. That Bill of the hon. Member was a very wholesome amendment of the law, and he (the Solicitor General) had not been able to understand clearly at the time why the hon. Gentleman had not included the case of hardship of which he now complained, which was identical in principle, in that Bill. If he might presume to make a suggestion to the hon. Gentleman, it would be that he should bring in a Bill to amend his former Act in this respect; but Parliament ought not to be asked to convulse the whole country, and alter the rules of descent for that simple purpose. But to come to the general question. He maintained, and he thought the House would agree with him, that those who came forward and proposed to Parliament to make what every one admitted to be a very grave and important alteration in the law of descent in this country, were bound to show three things. In the first place, they were bound to show that there was a strong desire entertained for legislation upon the subject; in the second place, that the present law occasioned hardships; and, in the third place, that the change which they proposed was consistent with expediency and sound 1133 policy. In the first place, then, he would ask, who it was that desired this change? Some of them, indeed, he knew, and their motives also. The hon. Member for Sheffield (Mr. Hadfield), for instance, on the introduction of the Bill the other night, told the House what his motive was in desiring it. He said he supported the Bill for this reason only, that it put an end to all differences between land and money. [Mr. HADFIELD: Hear, hear!] That hon. Member, no doubt thought that, if carried, it would enable the State to levy a probate duty on land, and treat it in every respect as so much money in the Funds. At all events, the reason for the hon. Gentleman's support to the Bill was not so much to remedy any hardship occasioned by the present law as to carry out a wild theory which he entertained, that there ought to be no difference for any purpose whatever between land and money. What were the reasons of the hon. Member for East Surrey himself for proposing this change? His argument was this. He said, and very plausibly and adroitly said, "if you look at this Bill you will see that it does not touch any of he great proprietors of the country, or meddle with your entails or settlements; it merely effects the simple object proposed on the back of the Bill, and provides for the case of a man who dies intestate." But the hon. Gentleman had written a book, and it was always a great advantage to have the detailed and well considered opinions of the person who proposed a change on a matter of such gravity as the one before the House. Well, what did the hon. Gentleman say in his book, which he (the Solicitor General) had had the greatest pleasure in perusing? He said, "I am opposed altogether to the principle of entails and settlements." He sail, "It has been suggested that my Bill affects entails;" and, he added, "I do not think it will directly; but if it does, it will only make me like it the better. It will be an advantage from the Bill that I had hardly calculated upon." Therefore the hon. Gentleman stood committed to this in his own recognized publication—that his desire went beyond the passing of the Bill; that he looked upon the Bill not only as a measure for the relief of younger children, but as ensuring, if it passed into a law, another object which he had equally at heart—namely, the abolition of the laws of entail and settlement in this country.
MR. LOCKE KING
I beg the hon. and learned Gentleman's pardon. I do not 1134 think that I have said anything against settlements, though I have, I know, against entails. Will he be kind enough to quote the passage?
THE SOLICITOR GENERAL
But what did the hon. Gentleman mean by settlements, except entail? And what did he mean by entails, except settlements? One passage in his book is this:—I feel there is no reason to object to this measure lest it should tend to increase the number of landed proprietors. If it did so—if it should cause a decrease in the size of some of the already overgrown estates—it will confer a greater benefit than even I expect from it. I have already shown that it cannot interfere with entails; that entails are an evil; and that this measure ought not to be refused from an imaginary fear that it might tend to correct what seems to me so great an evil.That was the hon. Gentleman's desire therefore in passing this Bill. Well, who asked for the measure out of doors? True, some hon. Members opposite had laid petitions upon the table that day, but what he wanted to know was this. The question was one which concerned all the owners of land in the country, and in considering what the State ought to do for the owners of land when they died intestate, the very first object ought to be to ascertain what the owners of land would do themselves, for everybody admitted that they would have a perfect right to dispose of their land as they pleased. What was their view, then, as evidenced either by their practice or their expressed opinions? What petitions had been received from those whose wills or intestacy were really concerned in this measure? He was at a loss to understand that in this manner there had been the least expression of opinion upon the subject. And if they had not petitioned respecting it, the natural way to judge of the opinions of the proprietors of land was to look at what was their practice. Was it, or was it not, the practice, then, of the greater body of the owners of land to dispose of it in a manner more or less consistent with what the law did in case of intestacy? He said, and said without fear of contradiction, that unquestionably it was. Settlements were just as much the expression of the wishes of the owners of land in the disposition of their property as wills, There was no great difference between the two, He took their practice as a body, therefore; he took their habit and custom as the expression of an opinion that they were satisfied with the existing state of the law in the country; for they 1135 disposed of their estates more or less in conformity with that law. Let the house next consider the question of the hardship of the present law. The argument of hon. Members opposite in favour of the Bill on the question of hardship was an extremely unsound one. They began by assuming whenever a man having several children died intestate that he did not mean his property to go to the eldest son; and that therefore the man was a sufferer by the present law. But what ground was there for any assumption of the kind? In particular cases it might be known from the expressed opinions of the man himself, or the circumstances attending his death or List moments, that he had been prevented from making his will, although he had intended doing so. But the House of Commons was not assembled to legislate for the case of this or that man: they were bound to look at the broad question as it affected the great mass of the landowners of the country; and with regard to the thousand persons who dying every year in possession of landed estates, but intestate, was the assumption to be that every one of them intended to divide his property equally amongst his children? On the contrary, with regard to by far the great majority of them, the assumption was that they were satisfied with the law as it stood, and did not choose, or did not think it desirable, to interfere with the law by making a different distribution of their property. If proof were wanted of this they could not have better than that which had been furnished them by the hon. and learned Member for Yarmouth (Mr. Mellor). The hon. and learned Gentleman had read to the House a letter from a solicitor of great experience in the midland counties, who stated—not that the people in his neighbourhood were in the habit of doing without wills, and thus creating hardships in their families—but that, knowing perfectly well what were the feelings of the middle classes around him, and what they did as to their property, he could tell the House of Commons that he had made sixty wills in two years, and that in every case the testators had come to him for the purpose of interfering with the rule of law, and of dividing their property equally amongst their children. To this he stated there was but one exception which was this. An owner of land once came to him to make his will, when the solicitor informed hint that his heir-at-law was his sister. "Then, if that be so," said the would-be testator, "I am 1136 satisfied with the law. I will not trouble you to make a will at all. Good morning to you." With regard, then, to the majority of cases, to which Parliament alone could look, the state of the law being as well known as any law of the country was or could be known, he held that it was just to assume that the great majority of those who did not interfere with the rule of law were satisfied that that rule of law should take its course, and that they need not go to the trouble of making their wills. For every case of injustice done by the present state of the law he would undertake to produce cases in which what any man, who viewed the moral duties of a parent to his family in the same light as the hon. Member for Surrey viewed them, must call great hardship was inflicted upon families by the provisions of wills. Such wills as these were every-day matters, and yet it would be just as reasonable for the Legislature to step in to remedy hardships which were inflicted on children by the provisions of their father's will as it would be to interfere with hardships which might be caused by there being no will at all. When the question came to be viewed on the assumption that there were no children, and the next heirs were distant relations—say cousins—the argument which he had been laying before the House became still more irresistible. By what process of reasoning could it be assumed that it was the intention of a man who died without a will, knowing the state of the law, that his estate should not go to the one whom he had been accustomed all his life to look on as his heir-at-law, but be divided among all his cousins? It was absurd for any one to take upon himself to affirm that it must have been pure accident which allowed this owner of land, with a number of distant relatives, to die intestate, and not to give his land among all those relatives. He now came to the third point. The question whether this change was expedient was a very grave one for Parliament to consider, and ought to be considered dispassionately, and perfectly apart from the moving appeals which had been made to the House about distressed widows and portionless younger children. He took the policy of the law on the subject to be this: that it was the duty of the Legislature to provide for the freest possible power of disposition of landed or any other kind of property either by will or in the lifetime of the owner. They were bound to simplify, to the greatest degree they could with 1137 safety, conveyances, settlements, wills, and every other method of disposition, and this for years past they had been doing with more or less success. They had simplified, to a great extent, the form of devises in this country. They had given a power of devising what was called "after-acquired property." In short, endeavours had been made to remedy the defects which had been from time to time suggested, but the question now to be discussed was, what, in this country, in which the freest possible power of distribution was given, was to be the doctrine and policy of the law where no disposition was made? Hon. Members opposite said that the present law as to descent was a wretched remnant of feudal policy; that it had its origin in feudal times, and that before the feudal times it was unknown in this country. His (the Solicitor General's) answer to that was, that he did not care what was its origin. He would grant that it had its origin in feudal times; but there could be no objection to it if it could be shown that it was in consonance with the present feeling of the country, accompanied as it was by what we had not under the feudal system, the freest power of disposition of property. No doubt, unaccompanied by that free power of disposition, a law which passed real property to the eldest son was a heavy grievance. But along with this law there had grown up two circumstances which entirely changed its character, this free power of disposition, and the accumulation of a mass of personal property, which was unknown in the feudal times, by which provision could be made, and by which the law made provision, for younger children. The consequence was, that whatever might have been the origin of the law, it had begun by justifying the dispositions made in conformity with it, and these dispositions in turn had engendered habits and produced a state of circumstances which had become in turn the justification of the law. Like everything else in nature, one thing had reacted upon another. The law had produced a certain state of feeling in society, and that state of feeling so produced had become in turn the justification of the law. But looking at it as a question of policy, what were the results which flowed from this law? In the first place, it harmonized with an hereditary monarchy and an hereditary peerage. In the next place, speaking of the principle of the law, not merely as it affected the disposition of the estates of intestates, but as manifested in the 1138 habits of the country with regard to entails and settlements, it tended to maintain a class in this country distinct from the aristocracy of mere wealth and the aristocracy produced—and rightly produced—by successful commercial enterprise. The law and the custom together, acting one upon the other, kept a class distinct, in consequence of their connection with the land, from those other classes who were of course in themselves as important elements as the aristocracy of the country. In the next place, this law and custom were favourable to the agriculture of the country. The tendency of this country, with regard both to agriculture and manufactures had been to undertake production on a large scale, and hon. Members opposite would not disagree with the doctrine of Mill, that wherever a people had once undertaken production on a large scale in agriculture, commerce, or manufactures, they would not willingly relinquish its advantages. Again, the law was most important in a social point of view. It kept families together by preserving the headship of families. The certain effect of a division of property such as that recommended was in the second generation to dwarf a family down to the rank of petty squires, and in the next generation to dwarf it to the condition of mere peasants. In the next place, while it preserved to them their social station and position, the law excited younger brothers to ambition and emulation in a manner that no other system in any country was ever known to do before. And, lastly, the benefit of it did not flow merely to the children of a family, but it stimulated the parent of the family also to make provision by frugality, economy, and industry for his younger branches, at the same time that it gave him the certainty of the importance of the family being preserved by the headship of his eldest son. These, then, were the conclusions at which he had arrived. And, without delaying the House by enlarging upon them, he would ask it to look upon these questions as questions that did not depend upon the authority of any man who addressed them now, but as questions which had been viewed in this manner by the most eminent authorities and greatest writers of all times. The first authority to which he would refer they would all admit to be disinterested on the subject, and removed altogether from the sphere of party contests or of party influence in considering a question of the kind. If ever there was a man in this country who was 1139 more deeply penetrated than another with an abhorrence of anything like injustice, in his mind it was Sir Matthew Hale. He was not a member of the aristocracy. He was the author of his own fortune. He had very little, if any, connection with the land. And what was the doctrine of Sir Matthew Hale upon this point? Speaking of the system of things which had been so much eulogised to-day, which prevailed just before and shortly after the Norman Conquest, when we had the allodial tenures to which the hon. and learned Member for Yarmouth had referred, and under which, there being no power of disposition, the custom of the law was to divide landed property equally amongst all the sons, Sir Matthew Hale said:—It weakened the strength of the kingdom; for by frequent parcelling and subdividing of inheritances, in process of time they became so divided and crumbled that there were few persons of able estates left to undergo public charges or offices. Secondly, it did by degrees bring the inhabitants to a low kind of country living, and families were broken; and the younger sons, which had they not had these little parcels of land to apply themselves to, would have betaken themselves to trades, or to military or civil or ecclesiastical employment, neglecting those opportunities, wholly applied themselves to these small divisions of land whereby they neglected the opportunities of greater advantage of enriching themselves and the kingdom.Take another authority. Sir John Davies wrote a book upon the state of Ireland, and whoever had read that book must have felt an interest in it, and risen from its perusal with a conviction that he was a clearsighted man, and that with regard to the state of Ireland he spoke with as little prejudice as any man could possibly do. Speaking of a country about which he could have had no particular bias or feeling to induce him to maintain one theory or another, Sir John Davies treated of a custom which prevailed in Ireland, similar to the allodial tenures to which the hon. Member for Yarmouth had referred, which was known in parts of this country as the custom of gavelkind, and by which land was shared amongst all the sons. He said:—This Irish custom of gavelkind did breed another mischief; for, every man being born to land, they all held themselves to be gentlemen. And though their portion was ever so small, and themselves ever so poor (for gavelkind must needs in the end make a poor gentility), yet they scorned to descend to husbandry or merchandise, or to learn any mechanical art or science.That was the state of things in a time and country where no free disposition of pro- 1140 perty existed, and the Bill which the hon. Member for Surrey wished to pass into a law would bring about a similar state of things in this country. The hon. and learned Member for Yarmouth (Mr. Mellor) had used an argument of convenience which certainly was not to be expected from him. He professed to know something of wills. He told the House that as the heir-at-law knew that if he could upset the will he would get the whole property, where there was the slightest pretext for disputing the will he would be sure to do it. That was true as far as it went, but what was the conclusion which the hon. and learned Gentleman drew from this fact? Why, that the heir-at-law should be deprived of that inducement to upset the will. What did he propose, however, to introduce in place of it? Wishing to deprive the heir-at-law of his motives for litigation, he proposed to alter the law in such a way that where, as at present, the inducement was now confined to the heir-at-law, in future, if any members of the family were disappointed with a will, or thought that it was not such a will as ought to have been made by the testator—in other words, if the testator did not equally divide his property—they might dispute the will in the same manner. In short the inducement to contest the will was to be spread over the whole of the members of the family, and thus, instead of one lawsuit there would be twenty. The hon. Member for East Surrey said he did not want to interfere with the free disposition of property. But if the hon. and learned Member for Yarmouth were right, the result would be that the testator, if he wished to avoid litigation, would make an equal partition of his property; what then became of the argument that the free disposition of property would not be affected by a change of this description? Upon this part of the question he ventured to say that the argument stated by the right hon. Gentleman the Member for Radnor was irresistible. At present they had a state of things with which perfect content was felt throughout the country, as between the elder and younger members of families. Let them pass this Bill, and they would make a legislative declaration that the whole of the settlements of this country were based upon a false principle, and although they might not profess to place any restriction upon them, they would brand them with the imputation of injustice. It was very true that this Bill would not touch them. But 1141 what would be its consequences? In process of time, and perhaps more rapidly than any one thought of, there would arise on the part of those who would then begin to feel what they considered an injustice, an agitation for going further, and they would come to Parliament and say, "You have justly declared that real estate should, on the death of a man, be divided equally amongst his children. But look at the entails and settlements of the country. Can you stop short there? You must go further. You must deal with, and in some way curb, the power of entailing and settling in this country." And then they would lose that which all hon. Members said they did not desire to see lost—the free power of disposition that now prevailed in this country. This was not a reform of the law. A proposal of this kind, launched in the House of Commons, with all its defects, and tending in its operation to produce the results which he had stated, brought, if he might use the expression with all respect, discredit upon the term "the reform of the law." It was a mere attempt to alter the position of land as one of the social elements in this country, and to destroy the influence and importance which belonged to it. It was a change which the country did not desire; it was one justified by no hardship and warranted by no sound policy. The hon. Member for Pontefract had said he was prepared to show that, as compared with our own law, the law of compulsory partition established in France had worked well, and had, in fact, acted as a Conservative element during the revolutions to which that country had been exposed, and had, in fact, broken the shock of these anarchic changes. It was astonishing that such a doctrine should have proceeded from so reflective a person as that hon. Member. No doubt the hon. Gentleman had read, with the pleasure which all who had perused it must have felt, the work of that eminent authority, M. de Montalembert, on The Future of England. In a very interesting chapter the author treated of the effects of the law of settlement and entail and the right of inheritance in this country, as contrasted with the contrary system in France, and pointed out with singular felicity the operation of our law in preventing on the one side the impulse of democracy, and in checking the influence of despotism on the other. M. de Montalembert wound up his chapter in these words:—The tempest will pass harmless over England 1142 until the day arrives when the force of public opinion shall declare itself against this system. Then, and not till then, she will have taken the first step on that incline which precipitates a nation through the shocks of revolution into the abyss of despotism. Up to the present time there has been but one premonitory symptom of this—the proposal made in the House of Commons in 1854 by the hon. Member for Surrey for any inquiry into the law of descent. Rejected by a considerable majority, this proposal appears neither to have found an echo nor to have left a trace. But it is an omen which far-seeing men—which all true friends of liberty will do well not to forget, for it is through this approach that the enemy will penetrate the fortress.
§ MR. LOWE
said, he had observed that in most of the questions brought before that House it was the interest of one party to magnify, and that of the other to depreciate them, But this question seemed to have the peculiarity that both parties were determined to magnify it as much as possible above its real dimensions. It was supported on grounds which had nothing to do with it, and was opposed on grounds that were equally irrelevant. Had they been discussing a proposition to introduce into England the Code Napoleon as regarded the descent of landed estate, the latter part of the learned Solicitor General's speech would have been exceedingly applicable. Had they been in Committee on this Bill the verbal criticism in the former part of the same speech would have been strictly pertinent. But, as the House was occupied in neither the one nor the other of those duties, the greater portion of the hon. and learned Gentleman's address was wholly beside the question. Those of them who knew, as most of them did to their cost, how his hon. and learned Friend could argue, must have been a little surprised that in the course of his lengthened remarks he had not been able to gather up the question into a single point, and to show any clear and decisive ground on which they should resist this Bill. The right hon. Member for Radnor (Sir George Lewis) had been extremely logical, and began, after his peculiar fashion, to deal with his subject upon first principles; but the substance of his argument was that there was such a disposition on the part of all proprietors of land in this country to starve and ruin their heirs-at-law by giving everything to their youngest children, leaving nothing for the maintenance of the family estate and title, that it was necessary the settler should have ever present to his mind the image of his unfortunate eldest son, to check him in his 1143 career of ill judged liberality. There were generally two sets of considerations contemplated by the owners of real estate—namely, those relating to the family title and social position, which no doubt ought to have their due weight, and also those based on the natural affection which a man bore to his own children, and his wish to see them suitably provided for according to their station. The present law looked too exclusively to the interest of the heir-at-law, and rejected with scorn the interest of the younger children, whereas under an equitable system the claims of both would be fairly considered. The point, however, which he wished to impress upon the House was, that this was in no degree a question of public policy. The State ought not to interfere with the distribution of estates, but should leave it perfectly optional with the owner. The dangers conjured up by the learned Solicitor General were purely chimerical, because it was wholly incredible that we who had enjoyed the power of freely disposing of our property should revert to the barbarous device of divesting the settler or testator of that power and placing him under the control of the haw. The point really was this, where a man, either by accident or design, had not availed himself of his right to make a will, was the law to snake a will for him? And if so, what should that will be? In these two questions lay the whole gist of this discussion. His right hon. Friend answered then by saying it should be such a will as would be agreeable to the feelings and consonant with the will of the landed interest. The present state of our law with respect to land was the result of a series of conflicts in which the landed interest had invariably been on the illiberal side, and had as invariably been overborne and conquered by the feeling of the country as well as by the highly technical procedure of the Courts. The feeling of the landed interest ought no more to be decisive on this question than the feeling of the commercial interest ought to he decisive in a commercial question, or that of the legal profession in R legal question. He submitted that if a man died intestate the law should make such a will for him as, supposing him to be a good and prudent man, he would have made for himself. It was impossible to make a law which would be applicable to all cases; but they could avoid making a will nor a man which no good and wise man would make for a man which no good and wise man would make for himself. And yet that was what 1144 the law did at the present time. Every right-minded man would feel it to be an insult to be told that he had made a will which would give all his property to his eldest son, and none to his younger children. Every man naturally desired to make provision for his younger children. The learned Solicitor General said that provision could be made out of the personalty; but it was well known what an enormous amount of personalty was now bound up with, and become inseparable from, the land. Where a man died possessed of large realty, he seldom possessed much personalty. In settlements and well-drawn wills provision was made for the younger children by the creation of terms of years, by changing the estates into sums of money; and oftentimes the eldest son was merely trustee for the younger children. It was felt on all hands that it was for the benefit of the family and for the advantage of agriculture that the property should be kept together; but it was also felt that provision should be made for the younger children. If the law charged the land for the benefit of the younger children, there would be no cause for complaint; but at present it committed a great injustice by giving all to the eldest son. The simple object of the Bill was to do what every honest and honourable man would do, and for that reason he should give it his support.
§ LORD HARRY VANE
observed, that the right hon. Member for Kidderminster (Mr. Lowe) had misunderstood the views put forward by the right hon. Member for Radnor (Sir George Lewis). The sympathies of the latter right hon. Gentleman were not all for the heir-at-law. What he had urged was, that they ought not to make a legislative declaration that the property of intestates should descend in a particular direction, but should leave it to follow the law applicable to wills and settlements. Individual hardship might perhaps now occur in cases of intestacy, but he believed those hardships had been much magnified; and the question was, whether such a change as that proposed by the Bill would not produce much more serious consequences. He denied that there was any feeling throughout the country in favour of the Bill. The habits, and feelings, and sympathies of the people, were entirely opposed to it, and great injury would be caused by breaking in upon the habits of the people. He apprehended that hon. Gentlemen, when they referred to France, 1145 did not desire to introdue into this country the Code Napoleon. What was the result of the state of the law in France? For it afforded a strong argument in favour of the position of his right hon. Friend (Sir George Lewis), that there ought not to be any interference with the right of free disposition. In consequence of the principle of equal division established by the code Napoleon, the feeling. in favour of equality was so strong in France that the instances were few in which the rule of equality was departed from. It operated, in fact, as a preventive to free disposition of property; and in this country, also, a similar effect would be produced by such an alteration in the law as that which was proposed. Again, if every estate, with regard to which there was no will, was to be equally divided, then in every case where a proprietor was a lunatic the estate would be broken up, for a lunatic was incapable of making a will. The right hon. Member (Mr. Lowe) had contended that the law ought to make such a disposition of the property as a good and wise man ought to make. That was just the point. The argument of his right hon. Friend would amount to this—that a wise and good man ought to divide his property. He was certainly of a different opinion, as he thought such a change would be equally opposed to the policy and the feeling of the country.
§ MR. BERESFORD HOPE
said, he wished to direct the attention of the House to one point which had not yet been taken—he meant the effect this Bill would have upon the commercial value of land. Admitting, for the sake of argument, that this was; a poor man's question, it was unquestionable that in the present state of agriculture smell estates, however they might commend themselves to the poetical sentiment, were not beneficial to the general well being of the country. Any one also who was acquainted With the condition of England must be familiar with those small patches of land which "squatters" filched from the sides of woods and commons, and held, though without a real title, but still substantially as their own, and how difficult it was to get possession of them. Let them pass this Bill, and the estate of an intestate would be reduced to the condition of such holdings mid be parcelled oat among a man's hundred cousins, each of whom, occupying his small plot like an Irish squireen," would reap starvation and a vote from it in lieu of gaining a comfortable existence by honest 1146 labour. The holders of these small allotments, instead of putting them into the market, and selling them at their fair marketable value, would refuse to part with them except at fancy prices, and the consequence would be that they would be kept in an unprofitable, half-cultivated condition, which at every change of proprietorship the owner would descend three or four rounds of the ladder. The promoters of this measure could not stop at this point. There would soon grow up a feeling of injustice if a testator did not devise his property equally. In the United States the feeling was so strong, that although there was no law of division, no man dared to leave his land to his eldest son, and there was only one family in the State of New York who had had the boldness to disregard this popular feeling, and that one wits of Dutch descent and had probably inherited the national obstinacy of Holland. In consequence of this there was an absence of those family ties and relations which existed in this country, and which tended so much to maintain its character and high standing. Nobody asked for this Bill. It was a mere crotchet of the hon. Member for Surrey. It inspired a feeling of injustice where none now existed—it roused the demon of jealousy where that evil genius lay dormant before; and all this merely to meet the possible case of a contingent grievance. Feeling assured, therefore, that the people at large did not desire it, he should feel it his duty to oppose its further progress.
§ General THOMPSON
believed there was a more general feeling in the country on this question than hon. Gentlemen opposite were aware of. Possibly they did not know where to look for it. At every meeting he had attended, of what for brevity was called "the popular party." this subject had been prominently brought forward under the title of the law of primogeniture. Indeed, so strong had been the excitement in those assemblies. that he had often been obliged to calm it down, by assuring them that, after all, the law left it optional with a man to do what he pleased with the property he had amassed, and did not compel him to give it all to his eldest son. There was also a prevalent impression, though perhaps somewhat exaggerated, that what these assemblies called the aristocracy, to support this law in order that they might have one stout representative of the family in a position to assist his kindred in quartering themselves upon the civil, military, or ecclesiastical service of 1147 the State. Hon. Gentlemen opposite need not fear that any real damage would be done to the territorial interests, by a rule of distribution which in their hearts men generally believed to be just. Public opinion was decided it was only right that when a man's days were coming to an end, he should equally consider all the seed which God had given him. Why retain in the case of intestates a law that leaned towards the side which the general feeling regarded as unjust?
§ MR. W. EWART
said, he had several years ago attempted to deal with this subject, which was now in the abler hands of the hon. Member for Surrey. This, however, he could assure the House was not a case of political intestacy, for he had cordially made his will as to the conduct of this question in favour of his hon. Friend. He (Mr. Ewart) had on two successive occasions divided the house upon this question, but had been supported by about thirty-six Members only. He hoped his hon. Friend would be more fortunate. The hon. Member for Manchester had stated that this Bill, if passed, would change the customs of the people. But could any law change public opinion? The introduction of this Bill was, in fact, the result of a change in public opinion. That no petitions had been presented in favour of this measure was no reason against its adoption, because most important changes in the law—for instance, those relating to fines and recoveries and wills—had been made without their having been petitioned for. It was said that the present system had a beneficial operation, by exciting younger sons to earn a living and a position for themselves. To this he replied that its operation was to drive them too much into the service of the State; for he had seldom heard of the younger son of a man of large property becoming either a great manufacturer or a distinguished merchant. It had been urged that this alteration would attack the law of entails; and he would not disguise his opinion that that law must soon be reconsidered. The Solicitor General had referred them to Sir Matthew Hale as a man who was without prejudices; but Sir Matthew Hale sentenced witches to death, Another of his authorities was Count Montalembert; but Count Montalembert, though an able, was a very prejudiced man. A fear had also been expressed that the passing of the Bill might lead to the compulsory division 1148 of land; but a reference to the case of America would show such an apprehension to be groundless. Again, it was said that the existing law was in conformity with the feelings of the people. That he denied. He had no doubt that natural feelings would in the end prevail, and lead to so strong a demand for the measure that further resistance to it would be impossible.
said, that if it had required nearly a quarter of a century to make such slender progress as had been made by this question, there could hardly be a very strong popular feeling in favour of this measure. In his pamphlet the hon. Member for Surrey (Mr. Locke King) had endeavoured to show that he did not mean substantially to attack the law of primogeniture, but the hon. Gentleman who had just sat down had fairly admitted that if this measure was adopted, the law of entails would have to be reconsidered, that was, he supposed, abolished. That this measure had succeeded in America was no reason why it should be equally successful in England. Indeed, he (Mr. Whiteside) objected to any reference being made to the law of America. They were not living in America, and God be thanked for it! America was a very peculiar country, and its inhabitants had, no doubt, reason to be satisfied with their laws and customs; but, on the other hand, he (Mr. Whiteside) was satisfied with the laws and customs of England. The case of America could not possibly have any bearing upon the question before the House, save that the very fact of the measure suiting a republic was a primâ facie reason for doubting whether it was applicable to a limited monarchy. "There were brave men before Agamemnon." Wise men had lived in this country before the hon. Gentleman; and if he (Mr. Whiteside) was asked for witnesses in favour of the present law, it would suffice to point to its unchallenged continuance for so many centuries amongst us. The old constitution of this country no doubt recognized the rights of the heir—a word which it had been well remarked the Bill of the hon. Gentleman would blot out from our jurisprudence. The heir was also recognized by the Jewish law, and by the law of the Hindoos. In fact, it was only in such countries as France and America that the idea of abolishing heirship had ever been entertained. The hon. and learned Gentleman (Mr. Mellor) had referred to a soli- 1149 citor who, he said, had made sixty wills, disposing of real estate within the last two years. No doubt that gentleman had also laid the foundation for sixty suits in Chancery—and no doubt he would be perfectly ready to make sixty more wills, equally expensive, equally ambiguous, and having an equal tendency to breed litigation. If this Bill passed into law, every man must make a will; a poor man who had half an acre of land must send for an attorney to dispose of the fee, very little of which would be left after the payment of the legal expenses. There was, in truth, no popular feeling on the subject, but the acute mind of the hon. Member for East Surrey had devoted itself to the subject, and he fancied he had found a theoretic imperfection in our system. But what was the tendency of the measure? The hon. Member indeed had said in his pamphlet that he did not intend to introduce the French system, but this would be one step towards it. In that country, if a man holding a farm of six acres had three sons, they would, at his death, each receive two acres. Such a system prevented the existence of anything like—he was afraid he should discompose the hon. Gentleman's nerves if he said aristocracy—but he could assure him that he did not use the term in an offensive sense, Nor need he do more than ask what had been the consequences to France of adopting that code? He wished to speak with all respect of the Government of France—with all the respect it deserved; but he (Mr. Whiteside) had been in France, and he must say, that under the Code Napoleon there was no adequate expression in that Country of the wishes of the gentry as opposed to those of other classes of the community. The Bill before the House was a step which might lead towards disposing of a man's property at his death by a positive law, the results of which in this country might only too well be gathered from what we saw across the Channel. Reference had been made to the case of widows; but the law provided for them by giving them dower out of real estate; and a portion of the marriage service was anciently performed at the church door, in order that the tenants might see the person who was endowed out of their lands. He needs only refer in proof of that to the lines of Charter:—She was a worthy womman al hire lyfe Housbonds atte chirche door had she had fyve".Unless, therefore, he heard better argu- 1150 ments than those already advanced, he should give the Bill his most strenuous opposition.
§ MR. WALTER
said, that he felt obliged to the right hon. Gentleman who had just sat down, for calling attention to the Code Napoleon. The right hon. Gentleman the Member for Kidderminster (Mr. Lowe), told them that that Code had nothing to do with the question, but with all deference to that right hon. Gentleman's opinion, he could not help thinking that it had a great deal to do with it. As he apprehended that a considerable number of the Members of that House were no better acquainted with the details of the Code Napoleon than the constituents of the gallant General (General Thompson) were with the law of primogeniture, perhaps the House would allow him to read one or two extracts from that Code, which would give a correct idea of its application. The French, as the House knew were a very logical people; when they took up a principle they knew how to work it out, Believing, as he did, that the adoption of this measure would lay the foundation for introducing something very like the Code Napoleon into this country, and that that Code was the charter of socialism, he warned die House against being led to agree to a measure of this sort. With regard to personal property, the Code Napoleon, by section 843, provided—Every hew, even beneficiary, coming to a succession, must restore to his coheirs all he has received front the deceased by donation during life directly or indirectly; he cannot retain such gift, nor claim a legacy left him by the deceased, unless such gifts and legacies have been given him expressly in addition, and not subject to partition or with a dispensation of restitution.Another section, the 844th, said—In the case even where gifts and legacies have bees made in addition and with dispensation of restitution, the heir coming to distribution cannot retain them except to the amount of the disposable proportion; the excess is subject to restitution.Now, what did the House suppose was the effect of that law? He had taken some pains to ascertain, by inquiry, how it worked; and he had found that this was its operation:—If he had half a dozen sons, and during his lifetime gave his watch to one of them, that son must, at his death, restore it, or account for it, and its value would be deducted from the share of the property which would come to him. What became of private property under such a law as that? In all France there was no private property except what a 1151 man chose to throw way, to make ducks and drakes of during his lifetime. Then, again, people talked of abolishing the law of entail; why, the whole land of France was entailed without the owner having any power to dispose of it, except, perhaps, to gamble it away. Having made this reference to the Code Napoleon, perhaps he might be permitted to say that before going to a division it was desirable that they should bring the question upon which they were going to divide within the narrowest possible limits. He would endeavour to state what those limits were. He conceived that the subject before them resolved itself into two questions. The first was, whether it should continue to be the policy of the law, as it had hitherto been, to administer the real property of intestates according to the custom of the country, founded upon the known wishes and intentions of the owners of such property in general; or whether such property should in future be administered in conformity with certain abstract theories of natural justice, upon which hon. Gentlemen on that side of the House (the Opposition) had so eloquently declaimed. The second question, which followed upon the first, and must be answered according to the decision upon that, was whether, dividing intestates into two classes—namely, those who were favourable to the continuance of the law as it was, and those who wished for a change, the responsibility attaching to not making a will should be thrown upon those who wished to keep the law as it was, or upon those who desired to alter it. These were really the two questions which they had to decide. If the House was of opinion—an opinion which had been almost unanimously expressed—that the general policy of the law should he to administer property according to the wishes of the testator, and not in conformity with any pre-conceived or arbitrary notions of abstract justice, then he thought that the conclusion could not be resisted that the responsibility of making a will should be thrown, not upon those who were content to leave the la was it was, but upon those who wished to change it.
§ MR. GREER
said, that the supporters of the Bill asked the House to redress a practical and tangible grievance; whereas those who opposed it had nothing to advance in answer to the demand but certain prospective—and, he believed, imaginary—evils. The House should recollect that exactly the same sort of reasoning had 1152 been held with regard to every one of those useful reforms which had latterly been successively and successfully introduced. In reply to the remarks of the right hon. Gentleman, it might be said that the effect of changing the law would simply be to compel a man to make a will. The testator would have nothing to do but to provide by will for what in the present state of things the law did for him.
THE ATTORNEY GENERAL
said, if this had been altogether a legal question, he should have been content to rest his opposition to the Bill upon the earlier part of the able speech of his hon. and learned Friend the Solicitor General; but as he considered that this Bill was more calculated to affect the constitution and well-being of the country than any other which had been introduced in our time, except the Reform Act of 1832, he should trouble the House with one or two observations upon it. His hon. and learned Friend the Solicitor General, who had almost exhausted the arguments, predicted that if this Bill should pass into law, it would give rise to agitation for still further changes, the effect of which would be entirely to destroy the liberty of disposing of their property which had hitherto been enjoyed by the people of this country. That consequence had been denied and repudiated by hon. Gentlemen who supported the Bill; but the right hon. Member for Kidderminister (Mr. Lowe) had based his entire argument in its favour upon the ground that it was the duty of Parliament to take care that the property of an intestate was distributed as it would become an intelligent, a good, and a prudent man to dispose of it. If the right hon. Gentleman was correct in that assumption, could the passing of this Bill be anything but a legislative declaration that it was the duty of every honest, wise, and good man to distribute his real estate among his children as provided for by this Bill; and would it be possible that the consequence predicted by the Solicitor General, and of which we had an example in a neighbouring country, could long be deferred? In France the abolition of the law of primogeniture had been followed by the loss of power to dispose of property by will at all, and was there not reason to fear that if this Bill were passed the same consequences would at no distant period follow hi this country? This question affected not only the upper and middle, but also the poorer classes. There were in this country many honest hardworking labouring men, who, having 1153 struggled through life to support their families, had become possessed either by their industry or by inheritance of a cottage, and perhaps an acre or two of land round it, but had no other property worth speaking of. As the law now stood such a man died in peace without making a will, because he was satisfied that his little estate would go to his eldest son, as he desired it should; but if this Bill became law, either he must incur the cost of employing a lawyer to make a will, or what little property he left would be swallowed up in the expenses of administration, no provision being made for distributing it without that process. On these grounds, and on others to which he need not then advert, he hoped that the House would not read this Bill a second time.
§ VISCOUNT PALMERSTON
said, that he objected to this Bill on every possible ground. The proposition contained in it was at variance with the habits, customs, and feelings of the people of this country, and incompatible with the maintenance of a constitutional monarchy. That it was at variance with the habits, customs, and feelings of the country was matter of public and common notoriety, because everybody knew that among all classes of the community there was a settled disposition to make an elder son. The hon. and learned Gentleman, the Attorney General, had referred to what had occurred among those of the humbler classes who had acquired possession of a small piece of land. In his own neighbourhood he (Viscount Palmerston) was acquainted with a striking instance of the feeling which pervaded those classes in regard to this matter. There was a small yeoman living on the borders of the New Forest, possessing a cottage and a few acres of land which he had inherited front an ancestor who carried the body of William Rufus to Winchester. That cottage and those few acres had descended from father to son from generation to generation, and that man was as proud of his position as the greatest peer or the largest landowner in the country. This Bill, if carried, would alter our existing system, which was congenial to the habits and feelings of the whole community. What was said by the hon. and learned Attorny General was perfectly true; how could you expect the proprietor of a cottage and a few acres of land to go to the expense and trouble of a will? His ignorance, his want of foresight, or his poverty might prevent his calling in a lawyer to prepare such an instrument: he wished his estate, 1154 small as it might be, to go to his eldest son, and it would be inflicting, a great hardship upon him to defeat his intentions merely because his inadvertence or want of means had prevented his making the arrangements which would set this Bill at nought. However, he founded his opposition to the measure upon higher grounds than that. He held that a constitutional monarchy required the existence of a landed aristocracy—by aristocracy meaning landed gentry, whether titled or untitled. Unless you had such a body, filling the intermediate place between the Crown and the bulk of the people a constitutional monarchy such as that in England could not in practice exist. The moment that body sunk into insignificance you lost the controlling and regulating power which was absolutely essential to the safe working of our representative institutions. We had seen that in other countries where the equal division of land prevailed the landed aristocracy, the landed gentry, had sunk into comparative insignificance, because the importance of the body must be the aggregate importance of the individuals who composed it. If you had a peerage and a gentry reduced to individual poverty it was impossible that they could exercise those functions in the State which were essential to the maintenance of a balance between the different Powers which composed the fabric of our representative constitution. He objected to the Bill, on that ground, and it was no answer to him to say that this measure would still leave a man the option of disposing of his property as he pleased by will. If it were true, as he believed it was, that a great constitutional principle was involved in the maintenance of landed estates, you ought not to leave it to the accidental choice of the landowner whether or not his property should descend in the manner most adapted to the maintenance of our existing institutions. In the uncertainty of life it might often happen that a man intending to dispose of his property contrary to the provisions of this Bill might be carried off unexpectedly, leaving those intentions unfulfilled; under which circumstances the property, whether large Or small, which was essential to the maintenance of the family, would, against his wish, be divided among a great number of persons. The present law, giving the succession to the eldest son, appeared to him to be a just one; but if any One thought otherwise, he might, by will, dispose of his property in any other manner he pleased, there was no constraint 1155 upon him except the constraint of custom, of public opinion, and of individual feeling. Under these circumstances, and without entering into any detailed objections to the Bill founded on the difficulty of carrying its provisions into operation, he opposed it upon principle. He objected to it fundamentally, as at variance with our monarchical and constitutional institutions, and as tending to produce either despotism or republicanism. He was unwilling to promote either the one or the other; and he must therefore oppose that measure to the utmost of his power.
MR. LOCKE KING
said, that he thought the noble Lord had given expression to what he (Mr. Locke King) must consider prejudice, such as he could scarcely have expected in the leader of a Liberal party. The noble Lord's speech would better have become the head of Her Majesty's Government in "another place." The noble Lord had not contributed much information to the House, for the solitary case of the landowner in the New Forest had been previously brought to their notice; and if that individual was so exceedingly proud of his estate having been handed down so many years, surely it would not be a very great hardship for him to hand it down to his heir by will instead of by descent. The learned Attorney General had made what he thought a very good point when he commented on the evils of permitting an estate to go away from the eldest son. He said that a man died in peace under the existing law, because he knew that his estate would go to his eldest son. He died in peace, then, because the rest of his children and his widow were entirely destitute. [Cries of "No!"] He thought that naturally followed. As an unfortunate layman, it would ill-become him (Mr. Locke King) to attempt to answer the arguments of the learned Solicitor General; but whilst he acknowledged the fairness of that hon. and learned Gentleman's arguments on most occasions, he (Mr. Locke King) thought that they were in this instance both far-fetched and technical. He spoke of the case in which a man might die, having by will disposed of his personal but not of his real estate. That was a very small matter, and by way of contrast he (Mr. Locke King) would put the case of a man who had bequeathed his personalty and then after the date of his will contracted for the purchase of real estate. He had been asked why he did not embody a provision to meet that case 1156 in a Bill which he introduced some years ago relating to mortgages, but he could assure the House he had quite trouble enough to pass that Bill as it was, without introducing such a provision. However, in the event of this Bill not passing, he would promise to introduce such a Bill to the House. Again, the learned Solicitor General said the House was not to make a will for a person who neglected to do so himself; and he seemed to intimate that the person ought to suffer for Ids neglect. But that person was not the one who suffered. The man was dead and could not suffer, and it was the widow and children who suffered, not so much from the neglect of the deceased as from his ignorance of the state of the law. The learned Attorney General had stated that the small landowners were aware of the state of the law, but he (Mr. Locke King) possessed undoubted evidence to the contrary, and that the discussion which had taken place on the subject in the House had done much good by calling attention to the subject. The learned Solicitor General had, in a good-natured way, bantered him on his views with regard to the law of entail. He (Mr. Locke King) thought the system of entails was not desirable for this country; but he did not propose to alter the law on that subject, and for the very reason which induced him to bring forward the present Bill. This Bill was in harmony with the feelings of the people on whom the law of intestacy acted unjustly; the system of entails was in harmony with the feelings of the large landowners. He therefore proposed to deal with one case, and not to touch the other. The right hon. Member for Radnor did not seem to understand the law of dower. He said, if a man possessed of land died intestate one-third went to Ids widow. Practically this was not the case, for in all deeds of purchase the dower was barred. If an estate came to a man by inheritance dower operated; but then it was very small, because, although in personalty dower was a third of the principal in case of realty it was only a third of the income—a very small sum indeed. In conclusion he would express an opinion that public feeling was very strong on the subject of intestacy, and that the division list would be discussed on the hustings whenever hon. Members again made their bow to their constituents.
Question put, "That the word 'now' stand part of the Question,"
§ The House divided:—Ayes 76; Noes 271: Majority 195.
§ Words added. Main Question amended, put, and agreed to.
§ Bill put off for six months.