HC Deb 09 March 1869 vol 194 cc956-70

said, in moving for leave to bring in a Bill for the better settling the Real Estates of Intestates, that the law which he proposed to alter was one which had its origin at a very early period of our history. The law to which he alluded was then found expedient with a view to sustain a great system of military organization, and subsequently, when that was no longer required, it was felt convenient to maintain the law then in force in order to uphold a small body of great and powerful territorial proprietors. No very great alteration was made in that law until after the confiscation of the lands of the monasteries in the reign of Henry VIII., when, for the first time, land was allowed to be alienated by will, under certain conditions. When the late Sir Samuel Romilly introduced his Bill to make freehold estates assets for the payment of debts, he remarked that this country from being a feudal had come to be a great commercial country, and certainly it was much more commercial now than it was then. Distinguished Law Officers of the Crown had frequently expressed their opinion that the transfer of landed property ought to be as simple as that of money in the funds, and he thought it was desirable that they should show their earnestness by assimilating the descent of real property as much as possible to that of personal property. He cared not whether they looked at that question from the point of view of the small holders or the great holders of land. If they looked at it from the point of view of the former, they would find that familiar as the small holders of the soil were with the law of personal property, they could scarcely be made to believe that there was such an injustice in the law of real property that if they happened to die intestate all their land would go to only one of their sons; and when their attention was called to that injustice they almost universally made a will, in order that there might be a fair distribution of their property among their children. But, on the other hand, there were cases where the dislike to make a will led persons of that class to postpone doing so till it was too late; and then, under the present state of the law, the injustice to which he had referred resulted from their neglect. He had lately heard a case of this kind of very great hardship. A farmer possessed of several acres had an eldest son, who went away from his father's home and led a very dissolute life. The second son conducted the farm with the father, and the father always told him that he intended to leave him the property, charging it with a certain sum for the dissolute son. The father, however, died suddenly without making a will; the property came to the eldest son, who took it as heir-at-law, and in course of about a year or so he squandered the whole of it; while the younger son was left entirely destitute. He would next look at the matter from the point of view of the great landholders, and he was prepared to say this was not a question which affected them to any great extent, for they were not only conversant with the law themselves, but their attorneys would tell them of the danger they ran in not making wills. But, further, their real estate was almost universally settled, entailed, and tied up in such a way that it very rarely happened that their eldest sons took it as heirs-at-law without settlements. The great holders of land might therefore well assent to that reasonable measure, which was asked for on behalf of the small owners of real property in this country; and they ought not to resist such a change when it was in their case only a prejudice that was offended. It was said that he wished to introduce the French law into England; but that was an en -tire mistake. He did not by any means approve the French law, which interfered with the parent's power of willing away his property. In England there was a most fair and just law in regard to personal property. When the husband being a father died intestate one-third of his personalty went to his widow and two-thirds to his children or next of kin. But in the case of freehold land, where there were sons and daughters, the whole went to the eldest son, and there was no provision whatever for the rest of the family. That was a state of things which it was impossible to call other than unfair and unjust. Moreover the whole system was full of anomalies. Long leaseholds, dating perhaps as far back as King James II., and. for 10,000 years, which were as good as freeholds, were treated by the law as personal estate; but if the leases were leases for lives, then they descended as freehold estate. They had now a Government which was decidedly a Government of progress; and the country looked forward to its expressing an opinion on that Bill at the very earliest stage. Many Members of that Government had voted in favour of the Bill on previous occasions, and even the name of the present Solicitor General had appeared on the back of it. The Chancellor of the Exchequer and the President of the Board of Trade had not only repeatedly voted but spoken in its support most strongly. He therefore felt that the time had arrived when the Government must come forward and not refuse any longer to do an act of justice to the small holders of real property. The hon. Member concluded by moving for leave to bring in his Bill.


congratulated the hon. Gentleman on the history he had given of his Bill, but in that history there were some omissions. On the last two occasions on which the hon. Gentleman brought forward that Bill, once in 1859 and again in 1866, he was defeated on a division in the first case by 271 against 76, and in the second by 281 against 84, so that although he had made eight converts in seven years, he had increased by ten the number of those who resisted his proposal. Among the opponents of the Bill on a previous occasion was the Attorney General of that day (Sir Roundell Palmer), who felt so strongly on the matter that he came down to the House in his legal garments and made a most telling speech from the front Treasury Bench against it. From the same Bench a speech was also made against the Bill by the present Prime Minister; and the measure was likewise opposed in 1859 by one of the wisest, most philosophical, and most moderate of statesmen, the late Sir George Lewis, who said its effect would be to extinguish that class of persons who were denominated as heirs—a pretty trenchant expression, especially from one so much accustomed to weigh, all his words. And so little did the hon. Gentleman opposite trust his own arguments, that he appealed to the House ad misericordiam just to accept this Bill and then limit it to little properties of £1,000 or £2,000 value. The hon. Gentleman had that night given them a touching anecdote; he always gave them a touching anecdote. Last time it was the story of a young woman, now it was the story of a prodigal son. But his latest anecdote only proved that the old father was a stupid, fellow for not making his will. Even if the hon. Gentleman's Bill had been in force, that prodigal eldest son would have had half the property, and the small estate would have been cut into two. An infinite amount of distress would be caused by the splitting up of estates into plots of three or four acres. He had watched the results of such a system in Kent where it existed as gavel-kind, and should be very sorry to see it extended to England. The small pauper proprietorships with joint rights so created, of which one owner might be in the union and another in America—he was speaking from books—were a simple nuisance, both to the community and to the unfortunate persons themselves. As he intended to oppose the second reading of the Bill, he would not say much more on the present occasion. He would simply remark that he did not oppose the measure from any feudal or sentimental motive, but from a desire to preserve the security and money value which land at present possessed, but which would be much diminished in the event of the proposed change taking effect.


said, he thought the House would make a great mistake if they were to pass the Bill. He entirely agreed with the hon. Member for the University of Cambridge (Mr. Beresford Hope), who opposed the measure from a Conservative point of view, whereas he opposed it altogether from a Liberal point of view. The hon. Member for Surrey (Mr. Locke King), asked the House to change what he described as the most ancient law in this country, and his demand was based on a personal grievance. On the present occasion the hon. Member had only drawn attention to one grievance, but nine years ago he had alluded to a long string of grievances of a similar kind. He presumed, therefore, that the hon. Gentleman had on his notes a number of other grievances with which he had not troubled the House to-night. It was, however, incumbent on the hon. Gentleman to demonstrate, first, that these grievances really resulted from the present state of the law; and secondly, that they were so numerous as to warrant the great change he proposed in so important a law. He had, however, never done anything of the kind. The whole argument of the hon. Member laboured under this weakness—that he failed to show that the grievance complained of would not have existed just the same even if his Bill had been law. It was mere matter of conjecture to say that this man or that man would have made a will, for in many instances it would, no doubt, happen that he would not have made a will. The hon. Member had stated that the owners of small estates were ignorant of the law, and fancied that on their decease their estate would be divided like their personal property. Now, nothing could be more self-evidently wrong than such an assumption on the part of the hon. Member. These small estates were often the most ancient in the kingdom, and in the north of England there were freeholders whose property had descended from father to son for many generations. How, then, could the holder of such an estate, who had himself inherited to the exclusion of his younger brothers, be ignorant of the fact that his elder son would inherit it to the exclusion of his younger sons? If the present measure became law, the probability was that many persons who now died intestate, would be put to the unnecessary trouble and expense of making wills. It must be also borne in mind that there would be grievances on the other side of the question. It would happen, for instance, that the eldest son would naturally be regarded as the successor to the estate, and would consequently be left without any other provision. His sisters might have had their portions, and his younger brothers their advancements, and yet if the old man should forget to make a will, the property would be divided into equal portions, and the eldest son would get no larger share of the property than the others. Indeed, the grievance would sometimes be intensified, because it might happen that while his younger brothers had been building up their fortunes elsewhere, the eldest son had been expending all his energies in improving this very farm, nearly the whole of which would, under the provisions of the pro-Bent Bill, be taken away from him. But, even according to the hon. Member himself, the Bill would only bring about an infinitesimally small amount of good, and we should be acting like the inhabitant of China who burnt down his house for a culinary purpose. One of the complaints frequently made was that the land of this country was in very few hands. The hon. Gentleman the Member for East Surrey admitted, however, that the greater portion of the land was under settlement, and consequently it would be in no way affected by the passing of the Bill. For all the grievances referred to there was an obvious remedy, which, however, he did not propose, and which had not been proposed by the hon. Member for Surrey. It was simply that the children who had not received advances in their father's life-time should, on his decease, come next after creditors, and have a claim on the ancestor's estate, no matter in whose hands it might happen to be. For what could it matter to a child who had been left destitute whether the estate were real or personal, or whether it were in the hands of a devisee or of the heir-at-law? Although the hon. Member disclaimed any political object, he knew very well that the object of those hon. Gentlemen who would give their support to the measure was to increase the number of small landed properties in this country; but he ventured to say that, instead of accomplishing that object, the Bill would tend directly to defeat it. The largo estates under settlement would not be immediately affected by the Bill, which would, therefore, only touch small estates. Now, supposing the latter were divided great expense would be incurred, much money would go to surveyors and attorneys, and a good deal of land would be wasted. In a vast number of cases, however, the estate would not be divided, but sold, as every attorney would advise his clients to sell the land, for two reasons—first, because it would be the best advice he could give; and, secondly, because it would be most to his own interest to give that advice. Well, if the land were put up for sale, it would of course be purchased by the great landed proprietor in the neighbourhood, who would always be able to give a higher price than anybody else. Those who were acquainted with the counties of Cumberland and Westmoreland were well aware that a change of this kind was constantly going on, and that the small freeholds were being gradually absorbed in the estates of Lord Lonsdale and of Mr. Marshall, formerly a Member of that House. Now, hon. Gentlemen on that side ought to remember that they owed a great deal to the small freeholders, who, before the passing of the Reform Act of 1832, were the people who returned Liberal Members to the House of Commons. The late Mr. Cobden once said that the great effect of this Bill would be to set a fashion, and that people following the fashion would by degrees give up settlements, so that in the end the great estates of the country would be divided. In his opinion that was a wild speculation. There had been for hundreds of years two lines in which property descended—the line of the Common Law or tail general, and the line of the male entail, which applied to nearly all the land under settlement, and yet the fashion of the Common Law had not destroyed the male entail. Yet surely nothing could be more painful to a dying man than the reflection that his estate would go to his brother, his uncle, or possibly even to some very remote relation, though he left a largo family of daughters inadequately provided, for. Why, then, should it be supposed that the moral effect of the measure under discussion would be to destroy the practice of entailing estates? It appeared to him that the Bill was a bad one, because it would frustrate the very object it was pretended to promote, like the Septennial Act, which, as everybody knew, was passed for the purpose of keeping out the Tories, though it had the effect of keeping them in.


said, he thought the question which the hon. Member for East Surrey (Mr. Locke King) had brought under the notice of the House should be dealt with, if at all, as a whole, and not be made the subject of patchwork legislation. The Commission, of which the late Lord Campbell was the head, in their Reports, dealing with that and other kindred questions, had recommended that if any Act was to be founded upon the suggestions which they made it should proceed on the footing of taking them as a whole and effecting a complete and systematic reform. If the law of inheritance were at once done away with, as was now proposed, the result would be the creation of great anomalies. Let him, for instance, take the case of a widow with a son. Should that widow marry again, the son, under the operation of the Bill of the hon. Gentleman, might not get a farthing of her property. If she died without a will all her personal property would vest immediately in her husband, who might prevent her from making a will, and thus grasp the property of the child. To take another case, if the distribution of a man's property was to follow his domicile, the distribution of property in this country might have to be made in accordance with the law of France. He objected, therefore, to such piecemeal legislation as the hon. Gentleman proposed to support, merely because it bore on the face of it the appearance of being a sort of clap-trap justice.


said, he was anxious to take the opportunity which the present discussion afforded to vindicate himself from charges which had been brought against him not very long ago by the right hon. Gentleman the President of the Board of Trade (Mr. Bright). The right hon. Gentleman accused him, when his qualifications for the position of a Boundary Commissioner were in question in that House, of being a "fanatical admirer of the territorial interest." The right hon. Gentleman seemed to think that the opinions which he had attributed to him on that occasion disqualified him from being appointed to so important and responsible a situation, and under those circumstances he felt assured the House would allow him to offer a few remarks in explanation of those supposed opinions. He would, he thought, be doing the right hon. Gentleman no injustice when he stated that the only possible knowledge he could have of the existence of the fanaticism to which he objected must have been derived from a conversation of some five minutes' duration which he had with him about fourteen or fifteen years back, when the hon. Member for East Surrey (Mr. Locke King) had brought forward a Bill of the very same character as that which he had just submitted to the notice of the House. It had been his lot to vote on more than one occasion, he believed, against the proposal of his hon. Friend, and to speak against it once; but he was neither going to vote nor speak against it that evening. He desired merely to state in a few words the reasons which influenced him in arriving at that which might appear to be a change of opinion on the subject. He had always attached the slightest possible importance to the law of primogeniture, thinking that it would make little practical difference whether it was abolished or retained. What he did attach importance to, however, was the handle it afforded those who wished to throw odium upon the landed interest. It was made a handle for statements on public platforms both in this country and the United States, which were calculated to create an unjust prejudice against the owners of land. If the House would permit him, he would read a passage from the work of an American gentleman who had passed some time in England, and who gave the following description of the general condition of landed property in England. It was often said of Frenchmen that it was impossible to make them understand the law of England, and when he had read the passage to which he had just referred, the House would, he thought, be of opinion that the remark applied with not less force to our American friends. Professor Hoppin, the gentleman from whose Work he was about to quote, was a professor of Yale College, and had written one of the most agreeable books on "Old England" which he had ever read. Speaking of what he had seen in the neighbourhood of Malvern, the Professor said— In the distance, upon the Hereford side of the Malvern Hills, rose the monument or pillar of the Somers family. This is one of those proud me- mortals, the one responding to the other over hill and dale, which remind us of the well-known fact that England is divided up chiefly among twenty or thirty great families. Those rich and powerful families give the law to everything. That was a fact which was certainly new to him, and, he believed, to every other Member of the House. It was, however, the conclusion at which an American gentleman of the highest education, who had the best possible opportunity of making himself acquainted with the facts, and who mixed in the most intelligent and influential circles in England, seemed to have arrived. But Professor Hoppin proceeded to qualify his remarks in the following manner. After using a few complimentary remarks with respect to our modern legislation, he said— Even the rigid old law of primogeniture is not so rigid as I, for one, had supposed. I notice Sir John Barnard Byles, now of the Court of Common Pleas, stated to a friend of mine, in conversation, that the entail of all the entailed estates in England could be cut off when the eldest son coming of age consented, except in four cases. The Justice, furthermore, stated that no property could be entailed for any period longer than a life or lives in being, and twenty-one years. He had called attention to those passages because they showed the sort of impression which seemed to exist among well-informed and intelligent Americans, as to the way in which landed property in England was held. Almost all those, he might add, in America, with whom he had come in contact, appeared to entertain the notion that there was some law, some fatality, binding on the landed proprietors of England, which compelled them, as a matter of necessity, to leave their property to the eldest son. He recollected talking to a gentleman who informed him positively that every nobleman and landed proprietor in England was bound by law to leave his property in that way, and upon his venturing to dispute the accuracy of that statement, and pointing to the sale of the Duke of Buckingham's property as an illustration of his argument, the reply was, "No doubt you mean to speak the truth, but Mr. Bright says it is as I tell you, and he must know better." The right hon. Gentleman was, no doubt, responsible for a good deal of the misconception which prevailed in the minds of Americans with respect, at all events, to the influence of the law of primogeniture. What the popular feeling in other countries generally was on the subject he hardly knew; but he supposed the idea prevailed among some persons that, by law, all the landed property in England must go from the father to the oldest son. Now, the only case bearing on the point at issue, which came within his personal knowledge, was that of a friend of his own, who lived in Sussex, who had landed property, and who died intestate. He had a small estate near Eastbourne, and the personal property went in accordance with the Statute of Distributions, but the real estate went to the youngest son by a second marriage, in accordance with the law of Borough English. He did not stand up in that House to defend the law of primogeniture in the abstract. He thought it far bettor that the law, in cases of intestacy, should make such a distribution of a man's property as might be deemed most advantageous for the general good. He, for one, would not maintain that the devolution of landed estate on the oldest son, where no provision was made for the younger children, was anything but a flagrant injustice, and he was of opinion that the hon. Member for East Surrey was perfectly right in calling on the Government, not only to express an opinion on the subject, but to undertake the conduct of legislation with respect to it. A matter so serious as the alteration of the descent of real property ought not to be left to a private Member, but ought to be dealt with in such a manner as to suit, not only the abstract notion of justice, but the habits and general views of the people of this country. His experience led him to the conclusion that there was not the slightest desire in. England to see old estates roughly broken up, or old families dispossessed of the power to make disposition of their property. He, for one, would not think it worth while to hold an acre of land if he had not the power to dispose of it as he liked; while he was also of opinion, that if a man went out of the world without having made a will, there would be no right to complain of any disposition which the law might think it expedient and just to make of his property. Such were the "fanatical opinions" which he held on the subject of territorial possessions, and he would commend them to the attention of the right hon. Gentleman the President of the Board of Trade, who, he hoped, would acquit him of any wish to see the landed interests unduly favoured or vested with any privileges which they ought not to possess.


said, it was a monstrous thing that because one son was born before the others, he should therefore be entitled to the whole of his father's freehold property. Very little property used to exist in this country except real estate, but now the value of personal property in the country was equal to that of real estate, and no one could understand why this distinction between realty and personalty was maintained. The sense of the country was entirely opposed to it, and when he was in practice he had met with instances in which, upon intestacy, the heir-at-law refused to take the realty to the exclusion of the rest of the family, and divided the property among them, reserving his own share only. He supposed that this question would only be settled, as many others had been, by means of pressure from without; but, sooner or later, the result must inevitably be that victory would be obtained on the side of common sense, good policy, and sound administration of the law. This was such an important matter that he trusted the Government would take it in hand, and endeavour to frame a measure which would nsure a more satisfactory state of things than the present.


said, there was a growing custom in the country to accumulate large landed estates, the great bar to which was the law of entail, which prevented such estates coming into the market and being divided. If the hon. Member (Mr. Locke King) carried his Bill he would certainly be furnishing facilities for the sale and division of those estates, and by doing so the desire for accumulating large landed properties would acquire a fresh impetus. In his opinion a man should have the right of leaving and settling his property in the manner he pleased; and it appeared to him that the greatest tyranny was to tell a man that he should not leave his estate as he desired. He trusted that the Bill of the hon. Member would not be allowed to progress, especially under existing circumstances, when there were so many important questions to discuss.


said, that if he rightly understood the wish of the House, gathered from the speeches of hon. Members on both sides, there was no intention to divide against the introduction of the Bill. It appeared to be the general sentiment of the House that there was, at any rate, a case for legislation of some kind upon this question, more or less in the direction pointed to by his hon. Friend (Mr. Locke King), and hon. Members seemed inclined to give to the principle of the measure that sort of qualified assent to which they should be understood to give by voting for the introduction of the Bill, independently of those—and, no doubt, there were many—who were disposed to embrace the principle fully and absolutely. Regarding that as quite a reasonable state of things, he only rose to notice the appeal made, or, at any rate, the opinion expressed, by an hon. Member opposite, by his hon. Friend (Mr. Walter), and by several other Gentlemen, that this was a subject which had better be placed in the hands of the Government. He was not prepared at all to demur to that proposition, though until he saw the measure, and it had been carefully considered, he did not know that it would be possible to give a definitive opinion upon either the question whether this was capable of being dealt with as a simple, unconditional proposal, or whether it would require to be dealt with in a more developed and elaborate manner, and with more careful reference to a variety of details arising out of the present state of the law. If, however, he refrained from giving any pledge on the part of the Government that they were willing and disposed to direct their attention to the subject, with the view of introducing such a measure as they might deem upon the whole to be the best, it was only because he thought it was not the duty of a Government to charge itself at any given time with more than a certain number of subjects, and that, in choosing those subjects, it must have regard to its probable opportunities of obtaining for them full discussion and consideration at the hands of both branches of the Legislature, and, if they were approved, of passing them into law. Upon that simple ground he was not able—he wished, he was—to give a pledge on behalf of the Government, which perhaps it might be desirable that they were in a condition to give. That being so, he was glad that the Bill of his hon. Friend should be introduced; and if, as his hon. Friend (Mr. Beresford Hope) said, he (Mr. Gladstone) had in June, 1866, taken part in opposing the second reading of this Bill, it was not because he thought that the present law was defensible in all its parts—for he was bound to say that he concurred in much that had been said by his hon. Friend (Mr. Locke King) as to the effect of the present law of intestacy upon the descent of real estate—but because, considering the late: period of the Session, he did not think, in 1866, that the labours of his hon. Friend could be brought to a practical j conclusion. At the present time he knew not whether the circumstances would be more favourable to the attempt of his hon. Friend, who had, at any rate, one great advantage in proposing this measure in March instead of in June, so that several months were available for its discussion and consideration. He (Mr. Gladstone) agreed with his hon. Friend that the proposition was one which it was material for the House to embrace—that the provisions of this Bill would have but a very limited direct effect upon the descent of the larger properties in this country. His hon. Friend himself allowed that the Bill was mainly to be judged by its probable re-suits upon the smaller properties of the country; and what between the different causes of intestacy—such as pure accident and carelessness, the strange effeminate or capricious dislike which I some persons had to consider the contingency which made a will necessary, and the casual errors which, even when persons had been discreet enough to make a will, rendered it informal—the law ought to be the subject of scrupulous care in providing for cases of intestacy. What should be the precise disposition of landed property under the law he did not undertake to say. But he felt that the present law, so far as it concerned real estate, was not the best that could be devised, and, being very much disposed to agree with his hon. Friend, he should vote for the introduction of the Bill.


said, he hoped the title of the Bill would be altered, and would be made to read "A Bill for the Confiscation of all the 40,s. Freeholds in this Country." The owners of 40s. freeholds hardly ever made wills, and if one of these freeholds had to be divided among the children, it must be sold, and would fall into the hands of the neighbouring landowner. In this way all the 40s. freeholders would in time be snuffed out, or if they fell into the hands of lawyers and conveyancers, there would be little left for division among the family.

Motion agreed to.

Bill for the better settling the Real Estates of Intestates, ordered to be brought in by Mr. LOCKE KING, Mr. BOUVERIE, Mr. HINDE PALMER, and Mr. HEADLAM.