LEAVE. FIRST READING. (Hansard, 17 August 1871)

§ MR. SINCLAIR AYTOUN

, in moving for leave to bring in a Bill to suspend for one year the operation of an Act of the present Session intituled "Reductions ex Capite Lecti Act," said, he hoped the House would permit him to explain his reasons for making this somewhat unusual Motion. The circumstances in relation to this measure were somewhat extraordinary, and referred more especially to the manner in which legislation was carried on in that House towards the end of the Session, not by private Members, but by Members of Her Majesty's Government. On the 20th of July—or rather about 3 o'clock in the morning of the 21st — a Bill was brought in under the title of "Fees of Conquest, &c. Abolition (Scotland) Bill," and ordered to be read 1838 a first time, the second reading being fixed for the 27th of July. It was read a second time accordingly, and again at a very late hour of the sitting, and committed. On the following day it was considered in Committee with an amended title, the new title being "Reductions ex Capite Lecti Abolition Bill." On Monday, the 31st of July, the Bill, as amended, was considered and ordered to be read a third time; and on the 1st of August it was passed and sent to the Upper House, and had since become law. He would call the attention of the House to the nature of the Bill, and the alterations which had been effected in it before it left the House. The Bill, as originally introduced, was a very short one, containing only two clauses. The first enacted that— No instrument or writing made by any person who shall die after the passing of this Act shall be liable to challenge or reduction ex capite lecti." The 2nd clause enacted—or rather had proposed to enact—that— The distinction between fees of conquest and fees of heritage is hereby abolished with regard to all successions opening alter the passing of this Act, and fees of conquest shall descend in the same manner and subject to the same rules as fees of heritage. It was the 2nd clause which gave the title to the Bill when it was introduced into this House—namely, "Fees of Conquest, &c. Abolition (Scotland) Bill." Now, he believed that the effect of that clause would have been to abolish certain fees which were paid on the passage of what were called in Scotland "feus," which were somewhat similar to copyhold property in England, on their transference to owners, not by right of heritage, but by purchase. He imagined that a law abolishing those fees would have been popular in Scotland—certainly, so far as he understood it, it would be productive of good. But this clause was struck out during the passage of the Bill through the House, notwithstanding that it gave the title to the Bill. The Bill, therefore, when it left the House consisted only of that one clause which referred to the Reductions ex Capite Lecti. Now, in order to understand the importance of this clause, he was informed that in Scotland there was no law of mortmain—that was, the only law which had any effect similar to the law of mortmain in England was 1839 this law relating to what was called reductions ex Capite Lecti, and that law in Scotland was to the effect that no person making a good-will could leave real property within 60 days of the death of the person making the will, and if he did make such will within that time, the testament would not be valid. So that, if anyone during his last illness happened to make a will leaving property to charitable uses, that will would be invalid, and consequently the effect of this Scotch law was somewhat similar to mortmain in England. He could understand that an alteration of this law might be desirable, because it might be productive of much hardship that a man could not within a short period of his death make any alteration in the disposal of his property in favour of his younger children or any other person. But by entirely sweeping away this law in a country like Scotland, where no law of mortmain prevailed, they produced this effect—that anyone up to the moment of his death might will away his property for purposes which were condemned by and were prevented by the operation of the law of mortmain. In the year 1844 a Select Committee was appointed to inquire into the subject of the law of mortmain in England, and it appeared to be the opinion of that Committee that the law was not in a very sound condition, that there were defects in it, and that it was very desirable that it should be altered; and it was the opinion of a very competent witness, Sir Francis Palgrave, that the alteration should be in the direction of the law of Scotland in respect of the disposition of heritable property. He must now remind the House that the Bill, introduced by the Lord Advocate on the 20th—or rather the morning of the 21st July — had really never been discussed in that House; it had been passed through all its stages, and sent to the other House, and became an Act of Parliament, sweeping away a valuable law, without any explanation whatever. He might have considered that the Lord Advocate would have done good service if he had simply abrogated this law and introduced in its stead some provision analogous to the law of mortmain in England. That, however, was not done. The law had been swept away, and no substitute whatever had been adopted in its place, and this important change 1840 had been effected at the very end of the Session, at 3 o'clock in the morning, without any discussion. He did think that a most discreditable manner of carrying on the legislation of the country, and on those grounds he asked leave to introduce a Bill for the purpose of suspending for one year the operation of the Act in question.