LEAVE. FIRST READING. (Hansard, 24 February 1870)

§ THE LORD ADVOCATE

, in moving for leave to bring in a Bill to abolish Feudal and Burgage Tenure, and to amend the Law relating to Land Rights in Scotland, stated, in the first place, the objects he had in view in the introduction of the Bill; and, in the second place, the nature of the Bill by which he proposed to accomplish those objects. The question had often been asked how it happened that the title of property in land could not stand upon as simple a looting as any other subjects of property; and why it might not be as simply transferred from one proprietor to the other? The title to a ship was exceedingly simple. It was easily transferred; but notwithstanding its simplicity and the easiness of transfer, it was perfectly secure, the bill of lading being a good title to as large a cargo as a ship could carry. A delivery order transferred to the holder the entire of the merchandise, however great that might be. Its possession, was a good title to pictures, jewels, and other property, however valuable—a good title against everyone who might say that he was the rightful owner, and that the possession of a delivery order had been obtained in some improper way. But when they took land, however small in quantity and worthless in quality, or anything that was built on it, be it a cottage or any other form of building, conveyances intervened, and required a complicated and intricate system of titles. He was free to confess that he had never heard, and he found it impossible to discover, any satisfactory reason why, in this matter, the title to land should be so different from that to all other subjects of property. In saying so, he 788 was not blind to the consideration which had been urged in support of our existing highly artificial system, and which would tend to make it still more artificial and complicated than it was now. It was urged with perfect truth that land was more enduring and more permanent than any other subject of property; with equal truth it was said that it was not capable of the same kind of possession as movable subjects; but he failed himself to see the cogency of these considerations as a defence to the existing system of land light. He was well aware that land was naturally and necessarily the subject of settlements and provisions altogether different from those which could be made with respect to any other property. But upon the question as to what might be conceived as reasonable and plain evidence of proprietary right—the consideration of how the proprietor might deal with the property when he had no legitimate bearing—there was no other subject of property with respect to which more complicated settlements were made than money, and yet, with respect to title nothing could be more simple. There was one view of any system of laud rights, short but at the same time comprehensive and undeniably true, which was sometimes lost sight of in considering this subject; it Vas this, that any system of land right which could prevail, was neither more nor less than a system of evidence. And perhaps the only useful system of titles was to ascertain with reasonable certainty, in the first place, who was the proprietor of any estate; and, in the second place, what rights, otherwise than those of the proprietor, existed upon it, and in whose favour; and a system was satisfactory, or the reverse, according as it required reasonably some evidence of safety, and required no more. He would not dwell further on this subject, but proceed to consider what was the state with regard to land rights at the present time in Scotland. The systems of land rights in England and Scotland, he need hardly say to those who were at all acquainted L with the laws of those countries, were originally the same; and although they had come to differ in the course of centuries, they still bore, as strongly as possible, a family likeness, showing a common origin. They were both based on the feudal system of tenure. That system still greatly influenced, and he 789 thought he might say embarrassed, the conveyancing of both countries. In both countries, also, the feudal system, he need hardly say, had ceased to have any reality, and continued to exist only as a mischievous phantom—mischievous because of its influence on the conveyancing of both countries. It would be quite superfluous, and an unnecessary waste of time, were he to attempt any exposition of what the feudal system really was. Such knowledge as was sufficient for the present purpose was possessed by anyone who had read, even cursorily, modern history. All land in Scotland was held by the real substantial owner as a vassal and under some superior or over-lord. The substantial proprietor was a vassal, the superior had no real estate, although he continued to have a formal title in the land, his only substantial interest consisting in certain payments, which, according to the original feu right, might be made in his favour, and certain annual payments called feu duties, and certain casual payments on certain occasions called casualties, beyond which he had no substantial interest in the land at all. Conveyancing was entirely based upon the system of maintaining that relation between superior and vassal, one of the consequences of which was that, whenever the substantial proprietor of an estate died, his heir was required to make out a title under the superior, and being admitted as vassal in the room of his deceased ancestor. A great deal had been done of late years to mitigate the evils of this feudal system. Much was done by many of his predecessors in the office which he now unworthily held, among others by the late Lord Rutherford, by the present Lord Colonsay, by his immediate predecessor (Mr. Moncreiff), and also by the Lord Advocate under the administration of the late Government, who introduced a statute which consolidated many of the previous statutes relating to land rights, and in introducing altogether new though substantial and valuable improvements. But the time had come for abolishing this phantom, for enacting, by the authority of Parliament, that the feudal system of tenure should altogether cease to exist. He had given to the subject his most anxious attention with a view of simplifying, strengthening, and, at the same time, reducing the 790 expense of titles to land without interfering with real substantial interests now existing. He might slate the object which he had in view in preparing the Bill which he was now asking leave to introduce, had been, in the first place, as he had stated, not merely to reduce the expense of titles by simplifying them, but, at the same time, and through the medium of the same simplification, strengthening and securing the title, for it had always appeared to him that by extending the surface by multiplying the deeds you extend and multiply the risks of error. One of his objects in preparing the Bill had been to invest the heir with his ancestor's estates, so that if he died without having made up any title, the estate should nevertheless pass, which it did not now. According to feudal rules, if any heir, after the succession to his ancestor's estate, should die without having made up his title, and become vassal in the room of his ancestor, he was dropped out of the feudal chain altogether; and the next heir, not to him, but to the last entered vassal, was entitled to take up the estate, and to take it up without even any liability for the debts of the heir so dying with his title not made up. This was considered so unjust, so hard upon the creditors, that an Act M-as introduced a long time ago and passed, giving relief in this way, that where an heir died so possessed, and without having made up his title for a period of three years, then the heir succeeding should be bound to pay his debts but not otherwise. It was one of the objects of this Bill to give a complete relief and remedy in this matter by investing the heir with his ancestor's estate immediately on his succession, and making him substantially the proprietor, notwithstanding that he should die without having gone through the formality of making up his title, so that the estate, upon his death, should pass according to the deed, or failing any other provision should go to his heirs, and be liable for his debts. The third object in view was to repeal the law which was all but universally condemned—the law which distinguished in this matter between heritable and movable estate, and which disabled the proprietor of land from making a settlement of heritable property after he became ill of the decease of which he ultimately died. According to the present 791 law, in England as well as Scotland, a man might make a settlement of his personal or movable estate up to his last moment of existence; although he might have money or other personal property to any amount, any deed in reference to his heritable property, however insignificant in value, was reducible, and in practice, indeed, was frequently reduced, if it be proved that at the time he made the deed he had contracted the illness which ultimately proved fatal to him, unless he should survive the execution of the deed by sixty days, or in the interval between those times had gone to church or market. He felt justified in saying that that law was all but universally condemned, and he would abolish it altogether by the Bill. Another purpose he had in view was to remove a variety of legal objections in the preparation of deeds of settlements. In many cases within his own knowledge and experience these things had operated very harshly and unjustly. For example, the law required, in order to the formal execution of a deed, that that deed should bear in a certain clause the number of pages of which it consisted, and should contain the name and designation of the writer of the deed, as well as the names and designations of the witnesses in whose presence it was made. He had known a deed of great importance set aside because of an error in stating the number of pages. Deeds had been frequently reduced because of an omission to insert the designation of the clerk who wrote them; or some omissions or inaccuracies with respect to the designation of the witnesses who attested. Frequently the genuineness of the deed had been proved in the most satisfactory manner, in order to establish the omission of some formality, as at the time of making the deed one of the persons present as a witness was in another room. There they had the very strongest evidence that the deed was genuine; but the deed was set aside as informal, because one of the witnesses at the time it was making happened to be out of the room. He proposed in the Bill to remove all those objections, but allowing the law to stand substantially as it is with respect to the requirements made in order to constitute a deed of probity. In case any of these formal requirements had been overlooked or unguardedly attended to, it would be 792 provided that the same proof of the genuinness of the deed should be proof upon the party using or opposing it. Another purpose was to shorten the period of prescription, after the lapse of which deeds should be unchallengable except only on the head of fraud. He thought he had now stated all the purposes—certainly all the leading purposes—which he had had in view in the preparation of the Bill which he now asked leave to introduce to the House. He had, at the outset, abolished feudal tenure absolutely, and the relation of superiors and vassals. The difficulty he had in dealing out justice to all parties was to make it clear that those who at present stand in the relation of superiors should not be deprived of their rights. These rights subsisted in the receipt of a certain annual sum, and also the right to certain casualties of uncertain occurrence which were payable on the transition of an estate to the single successors. The Bill contained a provision for abolishing burgage tenure, with respect to which it was unnecessary to say more than this—that it was a peculiar tenure which held only within Royal Burghs. It was not more intricate—it was rather more simple—than feudal tenure elsewhere; and he proposed to abolish it only because it was unnecessary and of no advantage whatever that any distinction should exist in regard to title to land within burghs and without burghs; on the contrary, it was convenient and desirable to have the same system of title in both. The Bill contained provisions for dividing any feu duties, or other money returns payable by the proprietor of land in respect of property upon the acquisition of the land, by splitting it into different parcels for building or other purposes, allocating the payment of the whole upon the different proprietors of the parcels. In that way the superior, or whoever was entitled to the returns, would be perfectly secure. The Bill also contained provisions enabling superiors or others entitled to annual returns out of land to sell their rights as proprietors, and that notwithstanding any restrictions in the title. The Bill also contained certain short forms of conveyances and securities, all their common incidents being matter of enactment, without the necessity of expressing them in words at length; so that such simple conveyances and securities as these provisions had in contem- 793 plation might be made with the utmost facility and certainty even in printed, or partly printed and partly written forms. The Bill would contain a clause shortening the period of proscription, after the lapse of which a title might be considered secure from challenge. So long ago as 1617 an Act of the Scottish Parliament was passed rendering proprietors secure in their possession after they and their predecessors had possessed continuously upon an ex facie valid title for the period of forty years. The circumstances of the country were, indeed, very different now from what they were in 1617; and it was a question very well deserving consideration whether that long period, which it was quite reasonable to require then should elapse before the challenge of a title was altogether excluded, should continue now. Possession was now infinitely more open, better known, more notorious in every way than it could be 200 years ago. Not only was the system of registration more complete, but we had local registers in every county. There was a Valuation Roll in which not only was there a record of every proprietor and tenant, but of the annual value of their possession. There could, therefore, be no dubiety as to who was in possession of land as proprietor; if it was not in his own natural occupation, it was just as well known who was in receipt of rent drawn from the tenant; and if a title was ex facie valid, and possession had followed upon it for a period far short of forty years, that possession being not only open, but matter of record and notoriety, it numbly appeared to him that the period which should be required to elapse before all challenge of that possession was excluded might be with perfect safety very much shortened. In the case of a bonâ fide purchaser for a fair price, who got, in return for his money, ex facie a valid title upon which he was allowed to possess continuously and uninterruptedly, he should say for a period of seven years—although the period was open to consideration and discussion—his property ought not to be any longer open to question on the ground of any defect of title. Of course, this did not interfere with the existing law, which deducted from the period of prescription the minorities of those who were in the right of challenge; nor did it interfere with the existing law in this other respect, that prescription did not 794 run against falsehood or fraud. But if there was perfect good faith in the acquisition, and if possession continued without challenge for seven years, it did appear to him that thereafter the title ought to be considered secured. These were the main provisions of the Bill, with a view to simplify land rights in Scotland, which he now asked leave to introduce.