§ Order for Second Beading read.
MR. LOCKE KING, in moving the second reading of this Bill, said, that some time had now elapsed since he last brought this question under the consideration of the House. He frankly owned that he did not like the complexion of the last Parliament, and thinking it was not at all likely to entertain a question of this kind, he had not ventured to bring the "subject before it. The present Parliament had been elected under very different circumstances, and would doubtless give the matter a favourable consideration. He was sorry that the hon. Gentleman opposite (Mr. Beresford Hope) had hurried forward and given notice of an Amendment upon the second reading of the Bill, but he hoped to satisfy him that there was no reason for the opposition which he threatened. In asking the House to assimilate the law relating to real property to that which now prevailed with regard to personal property, he was only asking for what was perfectly just. He contended that justice and common sense required an alteration of the law, and that a difference should no longer be allowed to exist between real and personal estate. The great question for the House to consider was what kind of will the State ought to make for a person who died without having made a will for himself. With regard to personal property the law was clear and satisfactory, and the majority of the people of the country concurred in its justice. It was simply this: If under ordinary circumstances a man died possessed of movables, money in the Funds, or personal property, one-third of the actual property went to the widow, and the other two-thirds to the children; or, in the 1976 event of there being no children, the widow took one-half of the property, and the next of kin the other half. Nothing could be fairer or more just than this arrangement. The present Bill did not propose to interfere with settlements of any kind. If the law was so just as it was believed to be with regard to personal property, what could be said of the law with regard to real property? If it was just in the one case, he made bold to say that it was thoroughly unjust in the other. In the case of a man dying without having made a will and without a settlement, the whole of his property went to the heir-at-law, while the widow and younger children were wholly unprovided for. He knew that in answer to that, it was said that the widow was entitled to her thirds, but in practice that was not the fact, and he could explain how it happened. The dower in almost every instance was barred. Then in the case of small properties, and when the dower was not barred, what did the widow get? And it was to small properties that this Bill would chiefly apply, because in the case of large estates there was almost always a settlement. It was not a third of the actual property, as it was with personal property, but only a third of the income from that property. What did this amount to? Take a cottage and land, the total value of which was £300, of what benefit was a third of the income from that property to the widow? and what benefit would the younger children derive from it? The cases of hardship which occurred among small owners of property from their entire ignorance of the law were very numerous. Every time that the question was brought under the consideration of the House he had received innumerable letters telling him how grateful the writers were to him for calling attention to it; they had not been aware of the state of the law, but the knowledge which they had gained of it since the discussion of the subject in Parliament, had forced them to make wills to dispose of their property very much in the same way as the law dealt with personal property. He would now give one case of hardship to the House. A man married a woman who had some money of her own. The House would recollect that among the humbler classes scarcely any settlements were made, and no settlement was made in this case: The man was in trade; but not liking to employ his wife's fortune in his business it remained untouched for some years. At 1977 length the house in which they resided was advertised for sale, and the man at once said to his wife, "This is a fair and legitimate investment for your money," and he bought the house with that money. Some time afterwards the man died, and, not being acquainted with the law, he died intestate. He was extremely fond of his wife, and had no children. What was the result? A nephew of his, the heir-at-law, claimed the property, and the unfortunate widow was obliged to find employment as a menial servant. He had before quoted this instance in the House, because it forcibly illustrated his case, though he could adduce many similar cases. He would give another illustration to show the extreme injustice of the law in another way:—He took the case of a man who had drawn up a will for the disposal of his property in a particular way among his children. The property was personal, consisting of money in the Funds. Subsequently to the making of this will, however, he entered into a contract for the purchase of an estate, determining to invest the whole of his money in land. But before the contract was completed the man died; and what was the result? The executors were bound to complete the purchase of the land, and the whole of the property which was intended for the children went to the heir-at-law. These cases fully showed that Parliament ought to assimilate the present unjust law of succession to real property to that which regulated the disposition of personal property. It was proper to ask whence this custom arose, and what was the history of it. It was not in existence among the Saxons, for they divided property equally among the male children. It was introduced at the time of the Conquest, in order that the Normans might make themselves entirely masters of the country. The object of the feudal system undoubtedly was to make the people poor in order that the conquerors might the more easily rule over them. But now the general desire was to make the people rich, and to give them a share in the responsibility of the Government, that they might, as it were, all govern together. It was almost, if not quite, impossible to alienate land in the feudal time. His hon. Friend the Member for the city of Oxford (Mr. Neate) bad gone most fully into this question, and shown that the Barons were soon compelled to give way to what might he called the public opinion of those times, and to allow their tenants to alienate their 1978 fiefs, and in place of rendering persona service to pay a pecuniary fine. In the reign of Edward III. the Crown was compelled to give a similar liberty to its tenants. It was in the reign of Henry VIII, that the power of willing land away was granted to the people. A favourite argument with opponents of this Bill was that it would abolish the law of primogeniture. But since the latter portion of the feudal times, when land could be alienated from the children, and especially since the laws passed in the reign of Henry VIII., he held that the law of primogeniture had practically been abolished, and that since that time there had been no law of primogeniture whatever in this country. Another argument against the Bill was that it was an attempt to introduce the French law into this country. Under the French law, however, the power of giving away property either during life or after death, and whether as to property movable or immovable, existed only to a very limited degree; whereas the present Bill allowed the power of devising to the fullest extent, and it also allowed settlements and entails to remain as they were. In fact, it only proposed to substitute the very just law with regard to personal property in place of the unjust law which existed with regard to real property. As to the supposition that the change proposed would endanger the aristocracy, he hoped that notion would not be put forward. All the great estates were settled and entailed, and it was idle to suppose that the owners of such vast properties would fail to take the precautions which they considered necessary. Then there was the thin end of the wedge argument. Now, he had been fortunate enough to pass many Bills through Parliament, and that argument had always been resorted to. When he proposed to make mortgaged estates bear their own burden that argument was used. However, the Bill was passed into law, and he had never heard of any injustice having arisen from its operation. It would be wise in the aristocracy to give up some of their prejudices with regard to a measure of this kind which the great mass of the people wished to pass. The House of Lords consisted of landowners, and the House of Commons to a large extent also. Clearly, therefore, landed property was always certain of protection, and it was only a matter of fairness to let the small holders of property in this country have a more just and a more equal law to apply to their pro- 1979 perty. We lived in a democratic age in an aristocratic country, and it was not even for the advantage of those who might benefit by them to some extent to uphold unjust or unequal laws. It might be said that no great stir was made on this question throughout the country. But it was from persons having grievances that petitions usually came, and in this case persons who were sufferers by the law felt it useless to petition, as the House would not sanction ex post facto legislation, while those who might hereafter be injured were not likely to petition either, younger members of a family being generally in ignorance of the disposition of property made by their seniors. If those who felt anxious that large estates should be kept together desired to perpetuate the present system on that ground, he hoped at least they would offer no objection to the application of the principle for which he contended to small properties, and with this object he would suggest that clauses might be inserted in Committee confining the operation of the Bill to property of some small amount, to be specified—say of the total value of £1,000 or £2,000. Hoping that in this enlightened age reason, and not prejudice, would govern the decisions of hon. Members, he begged to move the second reading of the Bill.
§ Motion made, and Question proposed, "That the Bill be now read a second time,"—(Mr. Locke King.)
§ MR. BERESFORD HOPE, in rising to move that the Bill be read that day six months, said, that the hon. Member in the interesting and clear narrative which he had given to the House of his measure had dwelt too briefly on the historical passage descriptive of what had occurred just seven years ago in a moribund Parliament, then, as now, engaged in the discussion of a Reform Bill, and then, as now, called on by him to consider this proposed change in the law. There was, however, the difference between the two occasions that at that time the Conservatives were the Reformers, and were sitting upon the Treasury Bench, while the hon. Gentleman and his friends were in Opposition. Accordingly, as might have been expected under such circumstances, there were a great many appeals made—not exactly to "flesh and blood," for that phrase had not yet been invented—but to popular feeling, in the way in which such appeals were dexterously manipulated on the other side of the House: and, there- 1980 fore, if there had been any measure upon which a democratic field-day could have been advantageously organized it was upon the Bill of the hon. Member. The hon. Member spoke his best then, as he did now; he gave the one same clear exposition of the law with which he has just been enlightening the House, and he brought forward his one pet case of the same unhappy widow, harshly treated by the cruel nephew, which sounded like the Babes in the Wood reversed. A division took place upon the Bill, and what were the numbers? For the Motion of the hon. Gentleman 76; against, 271. With Reform as the stalking-horse a general election followed shortly afterwards. Such an instance of aristocratic oppression would not, of course, have been kept from the people at the hustings, if it could have been turned to the least use; but in the newly returned Parliament, elected on a Reform cry, and which had since maintained a Liberal Government in power for seven years, the hon. Gentleman had ever kept a sacred silence. At length, seven years later, a younger generation that knew not Joseph having arisen, in this uneventful and lazy Session, the hon. Member has thought proper to revive this little bye-question, and to invite a decision upon the principles of his well-matured grievance. Two great men took part in the debate on the occasion when it was last brought forward, and so signally defeated. Of these one was a statesman whose memory in and out of the House is preserved in honour as that of a wise and kind man, of infinite prudence tempered by infinite acuteness, whose natural—he would not say scepticism—but naturally logical mind always led him rather to understate than to overstate his own case, who made every allowance for those opposed to him, and who proceeded to the discussion of every question with the mind of a Judge rather than of a Member of Parliament. This man, the late Sir George Lewis, having before him the identical Bill which was revived to-day, said—
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 operations be only confined 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. The effect would be to extinguish that class of persons who were denominated as heirs. There would be no such thing as inheritance. No person hereafter would be heir to landed property. That, he apprehended, would clearly be the effect of the Bill, The mea- 1981 sure, too, would extend to all classes alike."—[3 Hansard, clli. 1125.]Sir George Lewis confessed that to him—The sentimental argument with respect to the case of the widow seemed to be wholly inapplicable. If this Bill became law, the natural 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 common law would give them. The House 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."—[3 Hansard, clii. 1126.]Bearing in mind that Sir George Lewis was at that time in Opposition, was there ever so trenchant a speech delivered against a measure identical in its clauses with that which the House was now invited to adopt? But Sir George Lewis was not the only person on that occasion who spoke against the Bill from the front Opposition Bench. Lord Palmerston "objected to the Bill on every possible ground," declaring it to be "at variance with the habits, customs, and feelings of the people of this country, and incompatible with the maintenance of a constitutional monarchy;" and this at the moment when he was opposing a Conservative Reform Bill, and prepared to go to the country on a Reform cry. The hon. Gentleman was not justified in representing this Bill as a small remedy for a narrow grievance. Whether he were or were not now displaying only the narrow point, upon the testimony of these two statesmen there was a whole wedge behind it, and with it he was poking up one of the cardinal institutions of the country. For this grave estimate of the mischievous import of the proposal they had, on the one hand, the eminently practical good sense of Lord Palmerston, and on the other the cool, judicial, philosophical mind of Sir George Lewis, both opposed to the Bill. He called upon the House for once to be candid and earnest, to grasp the case as it really presented itself, and to accept the issue of a great battle upon just principles.The question at issue under this Bill was either the maintenance of the tenure and descent of property undivided—unless specially willed—according to ancient usage in this country, or, again, its compulsory division in the mode which foreign nations, since the great European Revolution of 1789, had incorporated into their system. It led up directly to that greatest of all negations of personal liberty, the denial of the right of a man to dispose of his own inheritance and of his own earnings, which 1982 had in the name of the principles of 1789 been made good by the levelling greed of false Liberalism, in so many foreign countries. The hon. Member had brought forward some curious archaeological points in support of his argument. Saxon ancestors had appeared in their picturesque wildness, and Roman lawyers had walked before the House in long procession. But though archaeological meetings during the recess were always curious and often entertaining, he would rather take his place in the House itself as a man of the time. He would discuss the question without so much as quoting the words "feudal" or "allodial," and he promised that he would not refer directly or indirectly to any book or speech of the hon. Member for Westminster. He dealt with the question exclusively in its modern and actual aspects according as it was an integral portion of the system which had existed in the days of their fathers and of their grandfathers, and was now thoroughly established in this country by a prescriptive right of several generations. The hon. Member for East Surrey had taxed his opponents with ignorance for talking of primogeniture, and had said there was no law of primogeniture now in England. Of course, it was open to every hon. Gentleman to make his own dictionary, and when he had done so it was easy enough for him to parse his words according to that dictionary. No one would assert that the same law of primogeniture prevailed now which existed 500 years ago in this country, or which might exist now in Japan; but the succession to property was, nevertheless, well regulated and understood, and, if there was a law by which the land of the intestate went to his eldest son, that descent was, pro tanto, a law of primogeniture. This was the moderate and reasonable law of primogeniture, which they were met that day to discuss and to defend. The hon. Member, of course, had threatened the Conservative party, if they opposed his Bill, with all those mysterious pains and penalties which had been held over their heads so often by the other side of the House, and particularly during the present Session, that at last they were beginning to grow hardened to such threats. Granting all the commonplaces of Liberalism and Democracy, he maintained that the present system of the descent of land in this country was an eminently practical, liberal, and commercial system. It was one of the apprehensions haunting the 1983 minds of philosophers that in a country like England, of limited extent, land would rapidly become absorbed in a few hands, and that that accumulation might be productive of dangerous results. But when they looked at the condition of the country with an impartial eye, they would find that the contrary was the case. They would find that though there might be to some extent an absorption of small estates, there was in every county a considerable creation of minute properties by the operation of those freehold land societies which both parties, for political objects, had competitively created with so much energy. There were, no doubt, parts of the country, generally inhabited by respectable old-fashioned families, where the visitor would be told, in tones in which horror of the invasion was tempered by admiration of the physical greatness of the invader, of some Manchester man who had come down like the dragon of Wantley to gobble up gentle and simple, church and land, so as to create one gigantic estate; but in such a case a measure like the present would be simply inoperative, for a man who thus laid himself out to become a territorial lord would have sense enough to closet himself with his attorney and make a will or a settlement giving stability to the family which he had so carefully founded. The very desire, however, and zeal to accumulate land had, by raising its price, rendered the process of accumulation more difficult; and so a counteracting influence had begun to make itself felt, to which he begged to direct the particular attention of the House, as it had a special bearing on the present case. The anxiety which so strongly prevailed in this country to obtain a residential position was itself a natural corrective of the tendency to a too great accumulation of land in the hands of individuals. There had grown up a class of opulent proprietors, increasing in number as the facilities for locomotion increased and the distribution of wealth had become more general, who did not look upon land merely as a source of income, but as a place of residential interest with responsibilities attached to it. These were men of business, who in the last generation would have lived in the town where their occupation was carried on, or at most in its outskirts, with only perhaps an occasional trip to the sea. But for people of this generation it was impossible to live within a circle of 100 miles from London as he himself did, or of Manchester or Leeds, 1984 and not take cognizance of the fact of the multiplication of country places belonging to persons of the stamp which he had indicated, which were the true, natural, and healthy corrective to the excessive accumulation of property in the hands of single lords, on which the democratic cry for equal distribution was apt to base itself. In due time the same phenomenon would, he had not the least doubt, extend itself to more remote counties, until, as of old in Holland, its residential advantages would be a main element in the value of all land in England. This was not a naked theory—he could himself quote within his own knowledge farm after farm which had gone through the transmutation from mere profit to amenity and residential obligation, as the growth of railroads opened up desirable districts. For his own part, he regarded this multiplication of moderately sized "country places" with unmixed gratification, as vitally tending to the moral and material well-being of the realm. He felt that the present law of inheritance fostered their creation, and he was therefore unwilling to see that law altered. Residential occupancy contributed greatly to the creation of that state of things which was known as "doing good" in one's neighbourhood. Those who founded such places were men who made their garden, and their keeper's yard, and their model farms, and who built or restored and endowed their church and founded their village school. It was accordingly the pleasure and the interest of such men to surround themselves with agricultural and rural retainers, who were better paid, better looked after, of higher and more intelligent class, and with children better schooled than could be the case where the agricultural labourer upon the fiftieth or sixtieth farm on a large estate never saw, or, perhaps, never expected to see, the face of the freeholder, and had only to do with the tenant farmer or the steward. But was it to be supposed that having erected homes like these the intelligent, wealthy, middle class would relinquish with the term of their own natural lives the stake in the country they had won, and the local position they had attained, and would not seek to hand them over to their descendants? Naturally they would desire to be assured of the safe and unquestionable descent of their favourite creation under any accident. So true was it, that the actual system of inheritance of land was to be defended on sound modern principles of commerce. The whole ar- 1985 rangement worked admirably, and afforded a proof how well social usages which had sprung up under a different state of circumstances might adapt themselves to the requirements of a more advanced civilization, and to the enlightened commercial condition of affairs on the present day. Suppose the Motion of the hon. Member carried, and what then? A horse might stumble, or a boat might be upset in a sudden squall. Any unforeseen accident might carry off the proprietor of an estate, who, being a minor—perhaps the last in an entail—was forbidden by the law itself to make a will. The hon. Member found it convenient to overlook this question of minorities, and to argue as if intestacy must always be wilful, and as if the man who had not made his will must either have wished not to make it, or have been culpably careless as to giving force to his wishes. Were all the model cottages, all the model farms, examples of science, thrift, and providence to the country round, to be cleared away; all the sustentation of schools and charitable societies to be stopped; all the ties of family connection and friendly intercourse to be ruptured, and the property brought to the hammer with a view to its division possibly among second or third cousins, who knew nothing of the district, possibly had never even visited it, and perhaps had looked upon the creation of the place with a jealous eye? Would that be, in the opinion of the hon. Member, a satisfactory change in the descent of property? Would all the advantages so thrown away be easily replaced? The land of England was necessarily limited—bound in by the circumfluous sea—but while limited it was at the same time visible and tangible, and the measure of its acreage was public property, thanks to the Ordnance Survey. The commercial wealth of the country on the other hand was in one respect illimitable, but in another untangible and uncertain.
The moral he drew from those considerations was this. He could not help comparing the land of England as compared with the universal wealth of to-day with the bullion reserve in the Bank of England. With all the wealth, the vast commercial enter prize, the finadcial power—which recent events had shown might sometimes prove illusory—the land of England was the solid backbone of the country, and on its stability indirectly rested the solvency of those whose income represented other modes of 1986 property. It ought not to be tied up capriciously or tyrannically; but, at the same time, it ought not to be made too easily convertible. The question had to be farced as it effected the practice of mortgages. This was a matter about which there was often a good deal of misapprehension. When a squire was heard of as raising money on mortgage, the first illnatured idea was that he might have known too much of Epsom. The surmise was in innumerable instances unfounded; for the common sense and commercial exigencies of various classes had discovered that the security of land afforded on the one hand an unrisky and ungambling method of investment at rather higher interest than the funds afforded; and on the other a method of easily finding that material and by which the value of the land itself might be developed and enhanced. The people of our country had thoroughly appreciated this advantage, and every one who had anything to do with the management of land in this country must have known how common it was for people possessed of small sums of money to lend them to some neighbouring landowner on the security of his property; and there could be no doubt that such an arrangement was, as he had just said, a source of mutual convenience, inasmuch as it enabled the lender to obtain a higher amount of interest than he could otherwise command, while it placed at the disposal of the borrower money which he could beneficially invest in the improvement of his estate. But this whole system of mortgages under which money was easily obtained at a moderate rate of interest hinged upon the belief that land would never become divisable to excess. Once make it clear that land must constantly be sold in lots, and that accordingly these incumbrances would have to be periodically got rid of, in this case most assuredly that form of investment would go out of favour both with borrower and lender, for of course the increased uncertainty of tenure and the augmented risk of an inconvenient and unexpected paying off, would soon make itself felt by an alteration both in the rate of interest and in more suspicious and narrow investigation of the securities. But the evil would not even end there. Parliament had, not many years since, passed a series of very useful measures chiefly at the instance of that admirable country gentleman and distinguished representative, whose untimely loss both 1987 sides sincerely lamented, Mr. Ker Seymer, which had created certain societies with powers to advance money on easy terms for the improvement of estates. The financial arrangements of these bodies were practically those of ordinary mortgages based on the recognized normal indivisibility of land, and it could not he supposed that the insurance companies which really found the money for those societies would continue their present accommodation if this Bill became law.
He thought, therefore, that the change would be simply unsettling and mischievous, as far as regarded what he might call the gentry or middle-class estates, and he believed that its operation would be at least as pernicious in the case of the smaller estates held by yeomen. No Duke or Scotch Earl could have more pride than a yeoman in keeping his land together. The yeoman would cling to his own land, and reject the best offers to part with it, sometimes, as he (Mr. Beresford Hope) well knew, a little to his own cost. He had had to do with that class of proprietors in Kent and in the North Midland Counties, in both of which they still abounded, and he could vouch for the tenacious pride which led them to stick to their condition of freeholders. He believed that the pride of that class was often even carried to an extent at which political economists would shudder, and that those freeholders in many instances clung to the possession of their land when they would become much richer and much easier-minded if they were to sell it. But it would ill become Parliament to discourage their honourable ambition, as it would necessarily do, if it were reckless enough to pass the present measure. They loved their land much, and withal they wished to have as little to do with the attorney as good Christian people could. They had no great fancy for making wills, and when they made them they were too apt to go to the village schoolmaster and make a bad one, with an ugly law suit on its back. But once this Bill was passed, they must either sign a deal of parchment or else lose the land which had come unbroken to them from their fathers and grandfathers, in some cases from the very earliest days of the English monarchy. At best, they would have to pay costs that would have the effect ultimately of depriving their race of their small holdings; for the descent of land in the yeoman class was not by settlement, hut by the customary law of 1988 the land; and once that customary law was unsettled the whole system would crumble.
He next came to the smallest holder of all—to the working class freeholders, whether of ancient descent or created by modern election societies—the freeholders who constituted, as it had been proved, the working-men element in the county constituencies. Was it desirable, was it seemly, for Liberals to disfranchise and destroy this class as they would do were the present Bill to pass, for these little freeholders were not the folks to make will is. It was true that these peasant proprietors had been termed by a very high authority, and in that House too, "the flies in the pot of ointment." But if they were flies, was that any reason why they should be chopped up? The proposition of the Member for East Surrey was one of broad disfranchisement, and for that reason, if for no other, it never ought to have been brought in from the other side of the House, So much for the matter as it stood; but if the Bill passed it must, as he had shown, lead to still greater changes. The hon. Gentleman the Member for East Surrey, and those who supported his proposition, had taken up a purely sentimental grievance, and in the name of that sentimental grievance they sought to unsettle a custom which had been the law of the land from time immemorial, and on which the social happiness and the political stability of this country in a great degree depended. They sought to effect that change at a moment when the condition of all Europe was being disturbed by imminence of a general war. He hoped the House would refuse to have its time occupied by the discussion of such questions, and, with confidence that it would do so, he begged to move that the Bill be read a second time that day six months.
§ MR. GOLDNEY, in seconding the Amendment, said, the Bill was an attempt to alter the whole law of landed property in England; and if such an alteration was to be made it ought to he made by a direct proposition coming from Her Majesty's Government and not by a side-wind coming from a private Member, A Commission, whose investigations were made during a period extending over four years—namely, from 1829 to 1833—had considered the whole subject of real property, and in the Report of that Commission it was stated that in the case of a person who died intestate it was more in accordance with the spirit of our constitution that land should descend by the law of primogeniture than 1989 that it should be distributed among the surviving members of the family. He had not heard the hon. Member for East Surrey make out any general grievance; and in considering such a violent remedy as that which the hon. Gentleman proposed, one must not look to isolated cases. No principle of law was better understood in this country than that the land which had been held by intestates should descend to the eldest son, and the consequence was that many pro prietors, and more especially many proprietors of the smaller class, never made any wills. It was a common saying in the West of England that what comes by heirship goes by heirship; and the effect of a departure from that principle, and the adoption instead of the principle of the Bill now before the House, would be to break up and destroy the class of small freeholders, and to put the great bulk of the small estates in the hands of attorneys and auctioneers. If the principle on which the law was based were wrong, let the subject be dealt with as a whole; but to treat it in the partial manner proposed by the hon. Member would be highly objectionable, even if he had made out a case against the present system.
§ 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. Beresford Hope.)
THE ATTORNEY GENERALWith respect to the suggestion that fell from the hon. Member for East Surrey in the close of his speech—that in Committee the operation of this Bill might be confined to small properties—I think that will not be the view of the House. We cannot legislate for small properties and not for larger properties: the law must be looked upon as a whole. The hon. Member argued that the law is bad because it leads to some hard cases. There is a saying among lawyers that "hard cases make bad law:" and certainly it is not the best way of discussing these questions to say that some woman or some man has been disappointed of what he or she might reasonably have expected. The better way is to look at the law as a whole and see whether there is any reason why the House should be dissatisfied with it and should therefore commence a course of departure from it. It is an assumption of my hon. Friend that the law relating to landed property is an unjust one and one essentially founded on injustice; but with great deference to him and 1990 those who adopt his view, I think that is a point which ought to be established and not merely assumed. And I confess I am not able to see what à priori injustice there is in this law more than in any other which might be made on the same subject, especially in a country where there is so much freedom of action as exists in England. The owners of property are permitted by deeds in their lifetime, and by wills to take effect after their death, to dispose of that property exactly as they may please. Therefore there is no real hardship at all, and the portion of the law which applies to the cases for which it is now proposed to legislate—namely, those in which persons omit to make a will, is merely supplementary, and operates only when there has been no intention manifested to exclude its operation. I cannot but think it is a mere begging of the question to speak of injustice, because, if there were any solidity in this argument of my hon. Friend, it is obvious it would put an end to his other argument that this is not the thin end of the wedge. I admit that the argument about the thin end of the wedge is not to be received without examination; but when you come to speak of an injustice in the law it is necessary to examine it, because if the argument on the ground of injustice be well founded, we cannot slop at the point which my hon. Friend has indicated. If the policy of the law be wrong, injustice may be inflicted as much in cases of wills and family settlements as in the case of omission through accident to make a will. But really, the question we have to consider is one of public policy; and in questions of public policy the burden of proof is on those who propose to alter a particular institution of the country. But I have no objection to examine the state of the law, and to contend that the law of primogeniture is not inexpedient. It is not arbitrary, because the greatest freedom of action over property is allowed. I cannot help thinking it would not be desirable that there should he a general system of division of estates. It seems to me that considerable benefits have always arisen and do arise in this country from keeping landed property together. By means of this system the duties of property are handed down and are better performed; there is more family and hereditary interest felt in the welfare of labourers and tenants; and improvements in land are made on a longer prospect, and with greater interest in their permanence. The 1991 class composed of the owners of landed property stands between the Crown and the lower orders—supporting the Throne and the higher institutions of the country, and at the same time maintaining excellent relations with those below them. The existing gradations of society in this country, including the hereditary peerage, are in harmony with this state of the law; and the maintenance of that graduated scale of society has been in times past of essential importance to public liberty, and still operates as a very strong encouragement to the increase of wealth and intelligence, and to every kind of laudable ambition. That, of course, is a political benefit which arises incidentally from the advantages which the eldest son gets by primogeniture. But is this injurious to younger sons? I think quite the reverse. On the contrary, if there is one argument stronger in its favour than another, it seems to me to be that derived from its effects with regard to younger sons. Instead of being, as they are in some countries, a class who keep apart from the other classes of society, in this country the younger son of a nobleman or landed proprietor is sent into the world and immediately goes into the ranks of the people, and takes his place among them; while, at the same time, he retains the social advantages arising from the position and influence of the head of his family, and from the connection which he is able to keep up with his old ancestral home. He enters one of the learned professions, or the army, or he becomes a civil engineer, or goes into commercial business, or, as is now very common, into trade. And as time goes on in this country we find a tendency—which I think is very desirable—to abandon the objection which formerly existed to the younger sons of what are called good families entering the ranks of the people. There is now among the aristocracy a more widely-spread recognition of the power and importance of every independent occupation in which a man may be embarked, and there is a disposition to get rid of those absurd distinctions which formerly prevailed as to some occupations being honourable, and others, though equally useful, and suitable to the education and talents of the individual, not so. Then, as regards small properties, I agree with the hon. Gentleman who spoke last that under this Bill those properties would be likely to change their character. They would change hands and contribute to make larger properties. I believe that 1992 such a change would not be desirable. I think nothing would be more satisfactory, in a natural point of view, than the gradual growth of small into large holdings; but by this Bill you would be making it absolutely necessary that every small estate should be sold. In this way they would get sooner or later into the hands of great owners, and through the medium of the Court of Chancery many of those properties would be incumbered with costs which would render them of little value to anyone. For these reasons, I trust the House will not be disposed to adopt the change proposed by my hon. Friend.
MR. BRIGHTsaid: I was not aware until I came into the House that this question was about to be discussed to-day; and I will not trouble the House with many observations upon it. I will say, in the first place, that the speech of the Attorney General is one we have heard very often on this subject. I will say, moreover, I live in hopes of hearing him make a speech exactly contradictory of that which he has now delivered—I think that extremely probable. The hon. and learned Gentleman began his speech by saying that the charge of injustice brought against the present law was a charge which had yet to he established. Of particular cases of injustice I think he made no denial. He did not deny that there are particular cases of injustice but I should like to ask the Attorney General, if there be no injustice in this law, would he be willing to extend it to all descriptions of property—to personal property as well as real property. Now, if he will answer me that question in the affirmative—that he would so extend it, and that he thinks by so extending it there would be no injustice—to keep him to his own phrase—I would believe what he said upon that point; but until he does so I must believe that in his observations today he did not mean exactly what his words indicated. I will undertake to say that the hon. Gentleman opposite (Mr. Goldney), who is so delighted with the four years' sitting of that Commission, knows—and men who know even less about the matter know—that to extend this law to all the property of the' country would involve the country in convulsion and confusion within the next twelve months. There are many forms of injustice which, having been long established amongst us by law, the people are able to bear without the disasters occurring to which I have 1993 referred. But if the principle of this law were extended to all other kinds of property, and the principle could be judged of as a whole, it would not last a month, and every Member of the House is perfectly conscious of that fact. Now, the Attorney General tells us that everybody is left by the law to perfect freedom of action. Well, he knows, too, that was not a fair mode of stating the case. Of course, with regard to property that can be left by will, every man is left in perfect freedom to make a will, but the question is what happens if he does not make a will. Whether he has a freedom to make a will, or not to make a will, surely the law has no right to do injustice if he exercises the option and does not make a will. Take the case of game, one which must be very interesting to many hon. Members of this House. If there be no contract between the landlord and the tenant what does the law say? The law says that the game belongs to the tenant. Why does the law say so? Because it is clearly right, that if there be no contract, it should be presumed that the tenant on engaging to take the land, to pay a rent, and to cultivate it, should have a right to all the animals that live upon it; and the law acting upon that wise principle declares that, if there be no contract between the landlord and the tenant, the game is the property of the tenant. And so in this case, if the law were equally just and wise it would say that if the owner of the property at his death had failed to make any appropriation of the property to those who survived him, the law should undertake to do that which it is to be presumed he would have done had he made a will. Well, it is to be presumed, I assume, that any man making a will and leaving children behind him, would treat those children with some show at least of an impartial affection, and would divide his property with some degree of justice amongst them. Why men do otherwise than this is the great condemnation of your law, for it destroys in their minds the sense of right and wrong—and induces in thousands of cases every year a making of wills and a devise of property which is contrary to all natural right, and which makes in many cases the last act of a man's life the great crime of his life. I have said often with regard to the character of men and the lives of men that I will judge of no man's life and character until I bear of the will that he has made. [Laughter.] Hon. Gentlemen opposite treat that obser. 1994 vation with a sort of derision and contempt. That is only another proof of the effect of this bad law upon their feelings and their judgment. Now, the Attorney General says that It is not to he discussed as a question of justice or injustice, but as a matter of public policy. Well, there he passed on to ground where, no doubt, he was more in accordance with the facts of the case. Me says that if you have a hereditary peerage, a law of this nature is desirable, and, it may he, is also necessary. I sat some years ago on a Committee with regard to the affairs of Ireland, and a great deal of evidence upon this matter was taken. Amongst others we had the evidence of Professor, now Judge, Long-field, of the Incumbered Estates Court in Ireland, and it would he very valuable to Members of this House if they would read that evidence. We had the evidence also of another eminent lawyer, who argued in his evidence strongly in favour of this law, but he was obliged to admit at last that if he confined himself to the questions and principles of political economy he must condemn the law; but taking the law in connection with a hereditary peerage, and looking at it as a political institution, he was obliged to support the law. Well, Sir, I prefer morality and justice to all the peerages and all the dynasties that ever existed in the world—and if I were in favour, as hon. Gentlemen are, and to the extent that they are, of hereditary succession, I should be afraid of tying up the hereditary peerage of this country with a law so obviously immoral and unjust as that which we are now discussing. The Attorney General told us of the duties of landowners as if nobody but great landowners would perform their duty. Why, it would be equally an argument for a law to maintain great factories in Lancashire, and yet everybody in Lancashire knows perfectly well that small manufacturers perform their duties just as well as large ones, and there being no law to create and keep only the largest manufactories, that there is much greater facility for little men gradually to grow and become greater men than there could be under a law that would affect manufactories in the way that the law of primogeniture affects land. Does the Attorney General mean to say that all over Europe, all over the United States of America, all over the Australian colonies, and wherever—and it is almost everywhere—this law does not prevail, that the duties of landowners are not per- 1995 formed in just as exemplary a manner as they are performed in this country? Why, it is one of the great calamities of this country at this moment, and a calamity constantly increasing, that the limited amount of land, to which the hon. Member for Stoke referred, is gradually becoming the property of a more limited number of the people—and I will undertake to say there is no other civilized country in the world in which the same state of things is taking place, and it would be impossible to place your finger upon any single fact connected with this country which is more deplorable and more dangerous than that. The Attorney General went on to tell us about younger sons. Well, Sir, I am not at liberty to tell the House everything I have heard from younger sons upon this question—but I recollect, only two years ago, coming to this House very soon after I had made a speech in Birmingham referring to this very question, and I met a younger Son, who has before this time been seen in this House. He made a communication to me which I am anxious to repeat. I am not sure whether the language he used would be quite Parliamentary for me to use, but, I think, Sir, you will forgive me if I use it. He said—"I read your speech at Birmingham; I agree with you; we younger sons are damned badly used." Now, Sir, I think that remark, for which I vouch—and I have not altered a syllable of it—is a very fair answer to the arguments of the Attorney General with regard to the younger sons. I understood the hon. and learned Gentleman to say that he thought there was a great advantage in the present system, inasmuch as by its means younger eons were induced to descend into the ranks of the people, and to turn their attention to obtaining an honourable living by following professions, commerce, and so forth. That would be an argument equally for robbing the elder son—but I am not sure that the Attorney General intimated that he would like the principle to be extended to every member of the family. If the property were more equally divided, perhaps younger sons might hereafter come into the ranks of commerce, or enter the professions, and the object of the Attorney General would be obtained perhaps a little later. But now, if this principle that is here made so sacred is held to be sacred nowhere else—if it is held to be of a most pestilent character in every country in the world but this—was not my hon. Friend the Member 1996 for Westminster justified when he said that England in regard to this question of land was the exceptional country, and not the country from which you could argue as the rule. I remember having read in a biography of Mr. Jefferson who was, I think, twice the American President, and one of the most able and illustrious men that the English colonies in America have ever produced—that he considered it the greatest act of his life, or one of the greatest, that he abolished this law of primogeniture in his native State of Virginia. And his biographer quotes, I think from some letter or declaration of Mr. Jefferson, in which he described the great advantage that the abolition of the law had been to that State, and he used one phrase as an illustration which will convey to the House what he meant. He said, "Some years after the abolition of the law there were fewer carriages-and-six in Virginia but a great many more carriages-and-pair." And he took it for granted, as we may all take it for granted, that a country is better off where there is a greater equality of condition and a greater division of property, and where there is no particle of injustice in the law. Now, I believe there has been a multitude of cases in which this law has produced injustice of the most grievous kind. If the hon. Member for Surrey brought forward one case or half-a-dozen such cases, they are but, as it were, one in a hundred or one in a thousand of those that are continually taking place throughout the country; and I maintain that nothing can be worse for a Legislature, nothing worse for the permanence of any Government, than that we should in any matter of this kind maintain a system which we in our own hearts, if applied to anything else or in any other way, should condemn; because if a law, which is made by the general judgment of the ruling class in a country, be unjust and the instrument of injustice, how can you expect that morals and a regard for justice should spread and become as it were Bottled in the minds of the people? I do not expect that my hon. Friend will carry his proposition to-day, but the day will come—and it is not very remote—when his proposition will be carried. Hon. Gentlemen opposite always fancy that they are going to be ruined. They do not believe that they can keep possession of their own estates if the law allows them to deal with them. They seem to me to be unable to comprehend any question connected with land, They be- 1997 lieve that we on these Benches are hostile to the land and to the owners of great estates. But you know we have done you more good than you have ever done for yourselves. We, in discussing this question, own allegiance to the highest principles of a true political economy and of justice between a man and his children, and between the State and those whom the State governs; and therefore, without regard to any special inconvenience that might happen here or there from the establishment of this principle for which my hon. Friend contends, we avow ourselves the supporters of this Bill, and we believe the time will come, and that before long, when it will be accepted by the House of Commons and the Legislature.
MR. HENLEYsaid: I should have contented myself with stating that which I believe to be the effect of this Bill in itself had it not been for the somewhat powerful speech of the hon. Member who has just sat down. In spite of the denial of the hon. Member who brought in the Bill, it is now quite clear that the measure is not to be looked on as a matter by itself, because the hon. Member who has just sat down most distinctly asserted that he and those about him support the Bill for the purpose of bringing about a first change in the present state of the law, which he describes as being wholly unjust. The hon. Member for Birmingham went so far as to say that however good a man's life may have been in itself, he could form no opinion of that man, unless he found that at the close of his life he had acted in conformity with what the hon. Member believed to be just. That shows how strong the hon. Member's opinion is, and pretty strongly also that he would not leave much latitude to persons who might differ from him. That is a proposition from which I think it is impossible the hon. Member can escape. The hon. Member seems to say that this particular law must be unjust because its principle is not universal, and that it must be unjust unless it is applied to every description of property. Now, I believe that a law may be perfectly just, right, and convenient as applied to one description of property, and very unjust, wrong, and inconvenient if applied to another description of property. Indeed, my chief objection to the proposal of the hon. Member for East Surrey is that it is in-applicable to the peculiar species of property with which it professes to deal. In itself the Bill does not touch the great 1998 question of primogeniture. It does not profess to meddle with that vast question, but it merely professes to deal with the limited number of cases in which persons have not made a will. Speaking generally, there are three classes of persons to be considered—the rich, the less rich, and the poor. Each of these classes are more or less, or not at all, interested in these matters. That ugly customer, Death, catches all classes, catches them napping and unawares. Nobody knows when he comes. But here it may be said that the higher and better educated classes have more right to be prepared and to be guarded against the contingencies with respect to those who come after them than the less wealthy and the less educated classes. How will this Bill cut? According to the law of this land every man can do what he likes with his freehold property provided he has an absolute interest in it—provided that it is absolutely at his own disposal. As to the higher classes, or those who are designated by the other side of the House as the "aristocracy," but who might more properly be called the richer, in ninety-nine cases out of 100 the property is settled—dealt with by will—and such a Bill as this would not apply to them at all. It applies in a less degree to the middle classes; but how would it apply to the poor? I am not talking about small landed estates, but of the poor men throughout the country, who are a very numerous class, who own a cottage. Do you not think the possession of a cottage is as much valued by the poor man, because he has had it from his father, as the great Duke's estate is by the Marquess who succeeds him? Everyone knows the pride the poor take in these cottages; but the hon. Member for Birmingham says it is unjust not to divide them. The hon. Gentleman complains of the great accumulation of land which takes place under the present system, but if the change which he advocates is carried out, what will become of every little bit of land belonging to a man who dies intestate? The Bill absolutely says the property shall be divided. But if it be a house it cannot be cut into bits. I remember a late colleague of mine telling me, when a similar Bill was before the House, that he knew of a walnut tree in France which belonged to two and-thirty people. If you do not want to accumulate these landed estates the natural course is to allow them to remain in the hands of the small people to 1999 whom they belong. Because if you divide a small estate on a man's death you may be sure that the person holding property contiguous to it will get it when sold, and thus you will go on aggregating property, which you say is a misfortune. That would be the natural and inevitable effect of the matter. Every one who has much acquaintance with the cottage holders of this country know that they have a great respect for gentlemen filling the office of Chancellor of the Exchequer, and that, from want of modesty, they rarely trouble him by making a will, because they know that the Chancellor of the Exchequer and the lawyers betwixt them get hold of a great deal of the property left. These people, wise in their generation, never make wills, and think it better to let a cottage and twenty-five yards of garden go from father to son than make a will, in which case should this measure pass the Chancellor of the Exchequer and the lawyer are pretty sure to get possession of the best part of such properties. You propose to compel these poor persons to make a will or that the property shall be sold. That is a hardship. I do not propose to go into the great question of primogeniture. I deal with this question as it is. It is a simple Bill, the defect of which will be that the property of poor cottagers in the country will be bought up by neighbouring landowners. As to the larger question, I am perfectly content to abide by what the Attorney General said with respect to it. But I oppose the present Bill because I believe it will inflict great hardship, injury, and injustice on the cottagers throughout the country,
§ MR. NEATEsaid, that with respect to the argument that this measure would render it less easy to lend and borrow money on mortgage, it would be sufficient to point out that the law of settlement was a bar to the power of mortgaging altogether. The hon. Member for Stoke (Mr. Beresford Hope) had spoken of the pride which the holders of moderately-sized freeholds felt in their estates, and referred to several instances in the county of Kent; but he would remind the hon. Gentleman that that was the very county in which the law of gavelkind prevailed, under which property was equally distributed. He by no means wished to see any system established which would lead to a minute subdivision of landed property. Indeed, in travelling through Brittany he was shocked and disgusted at seeing the number of fields no bigger than 2000 the floor of the House of Commons, and fences no higher than the table. He agreed that every one ought to be at perfect liberty to dispose of his property as he pleased; but the question now under discussion was, how real property should be disposed of in the event of its owner dying without having made a will. The Attorney General had said that the effect of the proposed change would probably be that the owners of property would feel a sort of pressure upon them to make their wills in the manner which would seem to be suggested by the State; but, for his part, he did not apprehend that any such result would follow the adoption of this measure. This Bill tended to a perfect assimilation of real and personal property, and the assimilation of the settlement of land to the settlement of personalty. The consequence of that change must be that you would allow to the tenant for life, not a power of alienation, but a power, which he did not now possess, of distribution to his children. That was an inducement to him to support the Bill, which he believed would be most conducive to the peace and happiness of families. He should not, however, object to an inalienable endowment being connected with every peerage, inasmuch as he traced our liberties to the feudal lords of 400 or 500 years ago. The reason why primogeniture co-existed with feudalism was because an estate at the period of feudalism was a sort of office to which military duties and jurisdiction were attached; and if an estate held on those conditions had been divided there would have been a necessary division of service. But as feudalism was a thing of the past, he saw no reason why the things which sprang out of it should not also pass away. The Act regulating the succession duty with respect to real property, was a legislative measure which constituted a step in the right direction; and in his opinion the time had now arrived when personal property ought to be dealt with in the same way.
§ MR. WHITESIDEsaid, the question before the House is one which affects the whole of our system of law with respect to property, and therefore, according to the fashion of our times, it is introduced on a Wednesday by a private Member. It has been opposed, in an able speech, by the hon. Member for Stoke (Mr. Beresford Hope), and his arguments have not yet been answered. Then the Attorney General has delivered a very sensible and conclusive 2001 argument against the Bill, and the hon. Gentleman who has just spoken appears to me not to be really in favour of the Bill, though he thinks he is. He is under a delusion. Why, he spoke in favour of feudal times. His heart was on the plains of Runnymede, and I thought he was going to quote Magna Charta. I understood him to say that he should be willing that a portion of the landed property of the country should be set aside for the peerage and made inalienable for ever after. If so he has given a conclusive argument against his own opinion, for it is not philosophic to say that you are to have a national law, which is exceptional on the face of it, and applicable only to the House of Peers. Now I am so far a Radical that I would subject the Peers to the same laws as the other members of the community are subjected to. I respect the members of the aristocracy; but, at the same time, I cannot adopt the revolutionary theories of the hon. Member on their behalf. It is extremely difficult to substitute better laws and a better Constitution for those which we now possess. And this leads me to the arguments of the real admirer of this Bill—the hon. Member for Birmingham. He is always sincere, and I am sure that what he spoke to-day he sincerely believed to be true. The hon. Gentleman, indeed, has frequently published his opinions that the law of primogeniture is a nuisance and ought to be abolished, and that the law of entail is unjust and ought to be subverted. Knowing what is to happen the hon. Member told the Attorney General, as a compliment to him, that he is quite sure we shall live to hear the Attorney General unsay all he had said to-day, and make a speech exactly the reverse of that which he has addressed to us on the present occasion. How does the hon. Member for Birmingham know that? Is the hon. Gentleman in the secrets of the Attorney General? I ask the question because at the close of his speech the hon. Member said that the time was rapidly approaching when the Attorney General would be converted by him and seduced into the belief that his views were right, and that they would then join together for the purpose of overturning the Constitution of the country. I agree with him that the time might come when that object might be attempted, and I believe he believes what he said to be true, The hon. Member prefers what he calls the rights of morality and justice to peerages and dynasties, Now, I do not like to 2002 hear peerages and dynasties spoken of in so unceremonious a manner; but I suppose the hon. Member does not care much for either. If the present law is, as the hon. Gentleman alleged, immoral, unjust, and pestilent, then the English nation must be immoral and incapable of ascertaining what is moral and just, because they have endured this law for centuries. The hon. Gentleman really does not do justice to his own abilities. How could the people of this country be the respectable people they are, if they did not have a law like this? The hon. Gentleman has given us a touch of America, but I am always prepared for that whenever the hon. Gentleman addresses the House. He pronounced a panegyric upon Jefferson, because Jefferson overthrew the law regulating the descent of freehold property in Virginia. I do not draw the same conclusion as the hon. Gentleman, but rather think that that fact goes far to account for the position of Virginia at the present day. The institutions of England once existed in America, but surely the present condition of that country is not likely to animate us to walk in the footsteps even of Jefferson and his biographer. But, perhaps, I only just perceive the meaning of the hon. Gentleman, who must have held up the example of America to induce the House to avoid it. Then the hon. Gentleman referred to the example of countries on the Continent—no doubt he intended to refer especially to France. Well, Sir, the operation of the Code Napoleon made it impossible for a man to leave his property to one of his children to the exclusion of the rest, and consequently the moment the Code Napoleon was carried it became impossible to have a gentry in France, and it also became impossible to have any other kind of Government than a mock Republic and an absolute Empire. I have been informed, though I cannot state it positively, that the present Emperor and his advisers are trying to invent a mode of making property in France divisable in another way than it is now, but however this may be, it is well known that the Emperor relies upon the working classes, and not upon the middle classes, who, had they but the power, might perhaps have prevented the outbreak of the impending war. So much for the example of the most powerful country on the Continent. The hon. Member for Birmingham attempted to argue, but how did he argue? He said, "I call upon the Attorney General to answer me a question," when he knew that, according to the 2003 rules of the House, the Attorney General could not make an answer. The question he asked was, "Would you extend the principle of the existing law to personal property?" I say that I would not. The law extends the principle only to the land, which partakes of the stability of the Constitution of the country, but that is no reason why the same rule should be applied to personal property. The hon. Member said he would make out his case by referring to a speech made by a younger son of his acquaintance. I collect from the Very irreverent manner in which that younger son spoke that he was what is popularly called a scamp, and that, being a scamp, he disapproved the law which preserved the paternal property for an older and a wiser man.
§ MR. WHITESIDEI am very sorry to hear that, but if the rank and character of the gentleman are indisputable, at all events I have a right to dispute his good sense, and I think if he were a man of good sense he ought to have respected the institutions of his country. The hon. Member should recollect that it was open to younger sons to devote their abilities to the service of their country, or employ them in the study of the learned professions. The present Chief Secretary to the Lord Lieutenant of Ireland was a younger son, and so was the celebrated Lord Mansfield and Lord Erskine; for a man may have sense and yet be the son of an Earl. The present system worked well, and that was the best argument in its favour. With respect to what has been urged about political economy, I confess I distrust a great deal of what political economists state, as, for instance, that the right of voting in this country should be separated from the possession of property. The hon. Gentleman said that landed property was in fewer hands than formerly; but how can he prove it? Unfortunately we have no statistics on the subject, and if we had the hon. Gentleman would not believe them. The hon. Gentleman has adduced nothing in proof of his statement, and I doubt it. There is a court in Ireland for breaking up estates, and I heard a newspaper commissioner swear in the court that, having inquired into the manner in which the new proprietors had dealt with the land, he found that the new small men had generally raised the rents 50 per cent. I 2004 can quite conceive that if inquiry were made among the tenants, in order to ascertain on whose estates they were treated with most kindness, gentleness, and liberality, every one of them would say, "I would rather live on an estate belonging to one of the old gentry, than on the estate of a new small proprietor, who pinches and takes the last farthing he can get." Hon. Gentlemen must not assume as a fact that there are fewer proprietors than formerly, and must not draw the inference that if there were more it would be a great advantage. There is enough land for those to buy who wish to purchase. One would think that we were living in a very unfortunately circumstanced country. If the law is immoral, vicious, pestilent, it is marvellous it should have existed so long, and England is not the country that poets, historians, and patriots have described it to be if we are to accept the description given by the hon. Gentleman. I hope he may live to see the error of his ways, and come round to my opinion of our good old Constitution. MR. JAMES said, he could not help thinking that an attempt had been made to turn the discussion from that which was the real question before the House. They were not discussing whether the law should he so altered as to take away from owners of property the power of disposing of it, as one might have thought from the serious consequences which had been depicted by hon. Members as the result of the passing of the measure. The question had been argued as if the aristocracy were to be ruined, and as if no man was to have an opportunity of preserving a great estate intact. But what was the Bill? The law at present enabled every man to dispose of his real and personal estate in whatever manner he pleased, and the only principle which the hon. Member for Surrey sought to introduce was, that in the event of the owner of real property dying intestate, there should be a more just disposition of the property than there was at present. For the last 200 years the law had, under such circumstances, dealt in a manner dictated by sound policy with the disposition of personal property, which included not only horses and dogs, and tea and coffee, but even leases of large estates, which might be for an indefinite number of years, and relate to thousands of acres, and all that the Bill proposed was in similar circumstances to deal in like manner with real estate. The hon. Member for Surrey thought it not unreasonable that if a man 2005 did not choose to dispose of his estate by will in his lifetime, it should not be disposed of after his death for the benefit of one member of his family. The Attorney General had told them that if a man had a wife and a number of children, it might not be fair to assume that he meant to dispose of his estate among all the members of the family; but surely, on the other hand, it ought not to be assumed that he had an invincible desire to benefit one. The reason was as good for the one case as for the other, and if the man had neither wife nor children, how could it possibly be assumed that he was desirous to benefit one distant relation, who, according to the present state of things, was the heir-at-law, to the exclusion of all others who might claim some degree of relationship? The remedy proposed for the evil of the existing system was founded not only upon justice but upon policy, for it was the duty of a man to provide for those whom he had introduced into the world. And the measure would be productive of no inconvenience, because there were very few of the great estates of the country, whether attached to peerages or held by the gentry, which were not settled; and if a man who had made a large property by commerce or manufacture had invested that property in land, there were very few instances in which he would neglect to exercise his power of disposing of it by will. But it was said that the measure would affect the humbler classes, and would throw property into the hands of attorneys and auctioneers. That was an argument of little weight when twelve words would enable a man to dispose of property to the extent of £10,000, and when a man might leave his cottage in the hands of his children by merely filling up a printed form. The State interfered at present to the extent of declaring that, in the event of a man leaving a freehold estate undisposed of by will, it should go to his eldest son; but the anomaly was, that if the property consisted of leasehold land or houses, the law stepped in and said it should be divided among all the next of kin. They were not asked by this measure to undermine the Constitution, but simply to establish a principle which was both just and politic, and he trusted the measure would receive the sanction of the House.
§ LORD JOHN MANNERSsaid, that he was not either a lawyer, or a great landed proprietor; but before the House went to a division he thought they ought to know 2006 from the hon. Member for East Surrey, whether the intention and purport of this Bill were that, supposing a landed proprietor, whether Peer or commoner, possessed in fee-simple, died intestate, his property, be it castle, palace, or hall, necessarily under the operations of this Bill, should be sold and divided, as the provisions of the Bill seemed to indicate?
MR. LOCKE KINGwas rather surprised that the noble Lord should have put a question of that sort to him. This Bill did not contemplate any difference between rich and poor. If the owner of such a property as the noble Lord had described should die intestate, the estate would be divided; but the noble Lord must know that, practically speaking, all the great estates were settled and entailed, and he would make bold to say that this Bill would not practically affect the great estates of the country.
§ MR. HIBBERTsuggested to the hon. Member for East Surrey that as many hon. Members would vote against the Bill in the fear that it would operate against the large estates it might be consistent with the object of his Bill to stipulate for the registration of all estates coming under its operation. Of late years there had been a great increase in the number of small estates, and the present law inflicted great hardships on the proprietors of them. It would only be justice if they were allowed to register their estates on their becoming possessed of them, so that they might come under the operation of such a Bill as this, and in this way no interference would take place with the estates of the great landed proprietors.
§ MR. EWARTreminded the right hon. Member for the University of Dublin, that Adam Smith, in his last volume, strongly advocated the principle on which this Bill was founded, which was, in effect, but carrying out the great principles of free trade which had so long governed the policy of this country. He had himself thirty years ago called attention to the subject, but had not pressed the question because he felt sure that a better opportunity of dealing with the matter would occur. He was convinced that the proposed change was consistent with right and justice.
§ SIR JOHN WALSHsaid, that the question was one of so much importance that he thought it would be satisfactory to the House to learn the opinion of a Cabinet Minister before they went to a division upon it.
§ MR. BARROWsaid, he represented a great many small freeholders, and he well knew what their wishes were on this question. He felt that the land should not he cut into ribhons, or that the cottage which a man might build by his industry should at his death be split up into lots of bricks. The question was what sort of a will they ought to make for a man who did not make a will for himself, and he would state, without reference to the aristocracy, that the wishes of small proprietors was that their land should not be divided.
THE CHANCELLOR OF THE EXCHEQUERI had no intention of addressing the House, nor do I intend to enter upon the question at any length. It is one of great interest and importance, and I should not like to address the House upon it without endeavouring to make my sentiments fully and clearly understood; but, after the appeal which has been made to me by the hon. Baronet opposite, it would not be respectful in me to allow the House to go to a division without my saying a few words. I am not aware of any sufficient reason for the passing of such a Bill as this, and I am opposed to the principle of the Bill. I am far, however, from regarding the present state of the law as perfectly satisfactory. It has never been thought necessary, or even, under the circumstances, becoming, that the Government, as such, should take part in the discussion of this measure. My hon. and learned Friend the Attorney General has explained his views with great force and clearness, and, without adopting particular expressions and every incidental sentiment, in the general views of my hon. and learned Friend, the Government—or at any rate, I—heartily concur. I hope this will be deemed sufficient, as, but for the appeal made to me, I should not have thought it necessary to address the House at all.
§ Question put, "That the word 'now' stand part of the Question."
§ The House divided:—Ayes 84; Noes 281: Majority 197.
§ Words added.
§ Main Question, as amended, put, and agreed to.
§ Bill put of for six months. Sir John Walsh