§ Order for Second Reading read.
§ MR. T. B. POTTER, in moving that the Bill be now read a second time, said, that its object was to make the law uniform both as regarded the real and personal property of intestates. He felt no apology was needed for again introducing the question to the House, inasmuch as no one could doubt its importance. In 1876 he had brought the Bill forward, and the second reading was defeated by a majority of only 35. He now, however, again placed the measure before the House, believing it was most unjust that in the case of intestacy the whole of the real property should go to the eldest son, by the action of the law, depriving all the other members of the family of the slightest participation in it. He held that the interest of the country and the circumstances of the present time were opposed to the longer maintenance of such a law. It might have been well enough in feudal times; but it did not exist in Anglo-Saxon days, and it ought not to exist now. The law affecting intestacy was the only one which governed the present custom. Although the law might be said to be the key-stone of primogeniture, he submitted that, at the present time, it was an anomaly; and he maintained that such a law was not required, and that there was no just reason why it should continue to exist. The Bill would not endanger primogeniture; if people wished to continue that custom they could easily effect their object by the way in which they disposed of their property by will. He had no inclination whatever to impose on this country the law as it existed in France, compelling the distribution of the property of deceased persons amongst all the members of the family. If it were the desire of individuals to continue the custom of primogeniture, they could make their wills accordingly. In that case, the custom of primogeniture might have more or less force in the country, if the law even was changed, and the 1164 custom was no longer sanctioned by the Statute Book. Modern society did not reap any benefit from the present system, which operated very harshly in many cases. It was not desired, in the general interests of the country or of families, that the eldest son should any longer be enriched at the expense of all the other members of the family. Intestacy happened more frequently among the middle and trading classes and among the working classes than among the upper classes, whom, therefore, the Bill would not affect. He had received a great many letters on the subject, and among others, one yesterday, from a lady whose husband held real property to the value of £8,000 or £10,000, who complained that her husband was hopelessly insane, and unable to make a will, and that if he died, the whole of his property would go to his brother, the heir-at-law, leaving herself utterly destitute. He insisted that no measure was more truly conservative than the Bill which he was now proposing for their acceptance; and, further, he contended that no evils could arise from the passing of it. One great effect of it would be to make all persons more sensible of those responsibilities which they owed to the whole of the members of their family. He denied that the law of Victoria was one recognizing the custom of primogeniture; and asserted that in none of our Colonies was there evinced the slightest inclination to adopt the system which prevailed in England. In the new Constitution framed for Fiji, the principle of his Bill was recognized, and the whole system of law in this respect was an admirable one, and had received the full sanction of the Home Government. The hon. Gentleman concluded by moving the second reading of the Bill.
§ MR. LEATHAMMr. Speaker, in rising to second the Motion of my hon. Friend (Mr. Potter), which I do with great pleasure, I am reluctant to take exception to a single word which has fallen from him. But my hon. Friend is aware that I do not attach quite the same practical importance to his measure which he does, since I do not regard the law of primogeniture as the keystone of primogeniture. The keystone of primogeniture is to be found in the natural desire of landowners to keep the estate together and preserve the 1165 importance of their families; it is secured by a system of settlement and entail with which we are all familiar; it will not be touched by the repeal of a law so flagrantly unjust that it tends to throw discredit upon the custom of primogeniture itself. For I am anxious to draw the widest possible distinction between the law of primogeniture which we condemn, and the custom of primogeniture of which, when it is not pushed to an extreme, many hon. Members who are quite prepared to support this Bill may not hesitate to approve. The law of primogeniture strips every child of the intestate but one for the benefit of one. But under the custom of primogeniture, the estate is charged for the benefit of the widow and younger children; and it is only after this is done that the eldest takes the residue. The law of primogeniture may be described as a law for making paupers of the younger children of small landed proprietors; but the change which we propose in some respects resembles the custom of primogeniture more than the law resembles it, for it will make provision for the widow and younger children, and it is not necessary to consider the question of a residue, because the properties which will come under this Bill are so small that if distribution is to take place at all, it must be an equal distribution, for any other would be a practical absurdity. For I hope that the House will not lose sight of the fact that this Bill will not change by a hair's-breadth the devolution of large estates. They have been withdrawn already by settlement from its operation. But, although this is undoubtedly the case, hon. Members may say that the tone of feeling engendered by this Bill is inimical to primogeniture, and may in the end prove fatal to it. This appears to me to be a mistake. It is the tone of feeling engendered by an unjust law which is inimical to primogeniture. This is always the case when a principle is pushed to an excess. If I believed that the custom of primogeniture were really involved in the question before the House, and if I desired to see that principle overtaken and overthrown by legislation, or by that public condemnation which precedes and insures legislation, I should say to hon. Gentlemen opposite—Go on throwing out this Bill; go on proving that the custom of 1166 primogeniture is inseparably bound up with the existence of an unjust law; that by primogeniture you really mean the stripping of every child but one for the benefit of one; go on proving, further, that upon a principle so cruel and monstrous the whole fabric of aristocratic society in England is based; and you will have gone far to shake not only the foundations of primogeniture, but the foundations of aristocratic society in England. As one of those who are attached to many things which are upheld by hon. Gentlemen opposite, I lament this perpetual confusion of ideas, this constant entangling of what is valuable with what is worthless; and that, by the determination to maintain an unjust law, you should cast a dangerous imputation upon everything which you persist in placing under its shelter. I hope, then, Sir, that in the speeches to which we are about to listen, we shall be spared all appeals to what is great and venerable; that we shall not be arrested at the outset by a barricade composed of everything which we admire, with the Throne and the House of Lords piled upon the top; and that even my hon. Friend the Member for the University of Cambridge (Mr. Beresford Hope) will not think it necessary to see in the countenance of my hon. Friend the Member for Rochdale (Mr. Potter)—a countenance which always seems to me positively to beam with benevolence—the face of a masked Guy Fawkes, intent only on exploding what little is left of the fabric of society. Surely it is unworthy of the reputation for sagacity and practical statesmanship which my hon. Friend deservedly enjoys that whenever this little Bill is brought forward, he should sweep the whole horizon for danger, as he does. What was it that he threatened us with upon the very last occasion upon which the Bill was discussed? Why, with the French system of compulsory division, with mariages de convenance, and the limitation of the family to follow. He said—
If they had not a bias in favour of some such system, the question would not have been urged on with so much pertinacity."—[3 Hansard, ccxxx. 587.]And then he drew a touching picture of the happy English home, surrounded by innumerable children—all of which, by a line of reasoning in which I was unable to follow him, he seemed to 1167 ascribe to the existence of the law of primogeniture. Do let us endeavour to keep to the narrow issue which is raised by this Bill. Do not let us be told, as we were told by my hon. Friend the Member for Chippenham (Mr. Goldney) that—The Bill really tended to the adoption of the maxims of the late John Stuart Mill, which ignored more or less the right of private property in land."—[Ibid. 592.]All this is so completely beside the mark, that it favours the assumption that there is really no substantial argument against the Bill, otherwise acute reasoners like my hon. Friends would be sure to have availed themselves of it. Is it to be found in the assertion that the Bill will sweep away all small properties in land? My hon. Friend the Member for the University of Cambridge went so far as to say that it was a barefaced attempt on the part of plutocrats to gobble up small properties in land, and almost implied that the Proposer and Seconder of this Motion were a kind of provincial Ahab and Jezebel engaged in setting Naboth on high. Yet, in the very same breath, he discovered that Ahab and Jezebel are intent upon introducing the French system of compulsory division! But, seriously, what small freeholds will this Bill abolish which ought to be preserved? We are told that the small freeholder will not make a will, and that his freehold will, therefore, come under the operation of this Bill. I can readily understand that the small freeholder will not make a will "in your sense." I can easily believe that there are few men so base—I was going to say as the existing law—so base as with their own hands to write down every child but one a beggar; but there are many men who will shelter a miserable family pride under the black shadow of the existing law, and say—"Let the law take its course." But this is not a state of things which I, for one, desire to perpetuate; least of all, upon the ground that it has come down to us from feudal times; for I maintain that the principles upon which this law is now upheld would have been held barbarous then, and that the law itself, with its present surroundings, would have been held barbarous then. For it is a law which is infinitely more unjust and injurious now than it was then. Then the law affixed 1168 heavy burthens, grave responsibilities, stern duties to the claim of those who inherited under it, and it took care to make a due provision for the widow. But the provision for the widow has disappeared under the Dower Act and the universal practice of conveyancers; the duties and responsibilities have all disappeared as well. The age of feudalism was a rude one; it sacrificed many things, even justice itself, to its notion of expediency; but the age in which we live, as it is represented and interpreted by hon. Gentlemen who oppose this Bill, is ruder still; it has renounced the expediency, but it clings to the injustice.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. T. B. Potter.)
§ MR. GREGORY, in moving that the Bill be read a second time that day three months, pointed out that there had been a singular discrepancy between the line of argument adopted by the Mover and of that followed by the Seconder of the Motion for the second reading. The latter evidently thought that the former had been too candid in disclosing the real scope of the Bill; but he (Mr. Gregory) could not help agreeing with the argument of the hon. Member for Rochdale (Mr. Potter), that the Bill would have a prejudicial effect on the principle and custom of primogeniture, and he thought it would be mainly supported for that reason by Gentlemen on the other side of the House. He admitted that the present law was part of our feudal system, and arose from our feudal notions and customs; but he objected to its being altered because it was assumed that in the few cases in which of those who neglected to make a will, they would have made a different disposition of their property. If the law were abolished, the principle on which it had been originally established was affected; and he could not help thinking, therefore, that the Bill had a somewhat more important bearing than appeared on the face of it. It involved larger questions than were embodied in the two pages of it, and it would affect principles which had existed in this country ever since the Conquest, and which were connected with the Constitution and institutions of the country. And now as regarded the 1169 practical and immediate operation of the Bill. In the first instance, he might say that it would principally affect small properties, of which a considerable number would be diverted from their present mode of descent, and vested in administrators or trustees for division among the family—which division, he apprehended, would be conducted according to the Statute of Distribution for the division of personal estate, as a grant of administration would be required. The effect would be to render all properties whose owners died intestate liable to probate or administration duty. If the real property of intestates were made liable to probate duty, it would not be long before the real property of testates was made liable to the same duty also. The principle of imposing probate duty on real property would thus be established when administration was taken out. The next question was—how was the property to be dealt with when it came into the possession of the executor? His duty would, of course, be to divide it amongst the parties entitled, and if this was to be done in specie, it could only be by way of partition on the certificate of one or more surveyors, and mutual conveyances between the parties. The difficulty of this was exemplified every day in the case of leasehold estates which were almost universally sold, and the proceeds divided; and this course would have to be followed, and was, in fact, contemplated by the present Bill; but under the Bill it involved an application to the Court of Chancery, and it would be found that the expense of such a sale would in such cases be totally disproportionate to the property. Now, what was to be attained by this? The duty of an executor would be to divide the property under the Bill. A small property of 30 or 40 acres, divided among five or six children, would be of no value to any of them. Their real estate being a tangible thing which was always before their eyes, the hope of inheriting it would, he was afraid, lead many persons, as it were, to live on their expectations rather than endeavour to make their way in the world by their own exertions; while, as the law now stood, a younger son felt that he was bound to a considerable extent to provide for himself. No doubt, there were cases of hardship at present, but these were principally 1170 confined to the want of provisions for the widow; and he frankly admitted that the Dower Act had gone too far, and that some alteration was required in this respect, so as to draw the law nearer the custom of a former time. The instance of hardship which the hon. Member for Rochdale (Mr. Potter) had quoted was, he presumed, one in which the husband had acquired the property himself, and had made a declaration that his widow was not entitled to dower under the Act to which he referred. Another result of the Bill would be that very many of the smaller properties would be merged in the larger, and these small properties, too, which had not been out of a family for many generations. These risks were not worth the infinitesimal benefit which would be derived from the Bill in the few cases that occurred, and the hardship of which the slightest care would have averted. No sufficient ground had, in his opinion, been shown for the proposed alteration of the law, which, if made, would, he believed, be prejudicial to the real interests of those on whose behalf it was proposed; and he, therefore, begged to move the rejection of the Bill.
§ MR. BERESFORD HOPE, in seconding the Amendment, acknowledged the light and airy tone in which his hon. Friend the Member for Huddersfield (Mr. Leatham) had indulged in treating of the subject under discussion. He (Mr. Beresford Hope) assured him that it was his sincere desire that the day would be far distant when the much respected Member for Rochdale (Mr. Potter) would be treated as he proposed to treat the land of England. Instead of his being distributed, as would occur to the land by the carrying-out of his proposal, they all desired to keep his hon. Friend—whose pleasant appearance they could not but welcome—in all the amplitude, vigour, and smiling abundance in which he had presented himself that day. His hon. Friend and the hon. Member for Huddersfield who had supported him, had one argument which, so far as this Bill was concerned, might be called their stock-in-trade; while it resembled the stock-in-trade of certain other well-known gentlemen, inasmuch as it comprised one pea—a very small one—and two or more thimbles. The one pea was the Bill before the House, and the thimbles 1171 were labelled "small relief" and "great reform," or whatever was the reverse of reform, to be effected under the measure which they were now asked to read a second time. But he had no wish to treat the matter as a joke; indeed, it would be no joke if the Bill passed. It was, he might say, unblushingly put forward as initiating a still greater change, and even as it stood he must oppose it, believing that it would have an injurious tendency in regard to the two classes of property which it would chiefly affect—namely, small properties held by the less educated class of freeholders, and the larger properties which might devolve by that which used reverently to be called "the visitation of God." With regard to the former, the proposal embodied in the measure before the House was more systematic certainly than the law of gavelkind; but the result was practically the same. The hon. Member for Huddersfield had only to go into the county of Kent—the part of the country with which he (Mr. Beresford Hope) was best acquainted—to see the very law in operation which his Bill sought to establish, in the case of small properties; for those were exactly the possessions the unhappy law of gavelkind affected. Having seen the operation of that law, he could unhesitatingly say that nothing could be conceived which could work worse as a land law, so far as regarded the best interests of those concerned. It was also an evil which, as in the case of France, grew greater by progression as families increased and sub-division went on. It tended to pauperize them, and it engendered false pride. They would find, under that law, a pauper landowner too ignorant or too lazy to make his will, or who went to the hedge-lawyer or his own more stupid self to make his will instead of the respectable local practitioner. The hon. Member for Huddersfield had spoken of the case of the son of a small landowner whose dying intestate had given him the real property and left the other members of the family beggars. But the proposed change in the law would leave all the family beggars. The law of gavelkind caused those who took, or hoped to take, under it, to go loafing about, without any incentive to work, yet feeling themselves the great people of the locality, the very salt of 1172 the earth. They were contingent landowners. They stuck, so to say, to the ground; they lived in a neighbourhood where the labour market was overstocked, and, not having sufficient to live on from their inheritance, they were impoverished and pauperized. The true instinct of labour was gone; the true instinct to push one's fortune, shoulder to shoulder with their neighbours, had died out; and the clinging desire to hold on to what seemed to be a staff, but what was really a broken reed, was noxiously apparent. He felt satisfied that if the Bill were to become law, and become practically operative, it would be mainly in those very cases where its operation would be at once most frequent and most deleterious to the public weal, and least to the advantage of the persons whom it professed to benefit. He, therefore, hoped it would never receive the sanction of Parliament as the law that should determine succession in the case of small properties. There was another class of cases in which it might be brought into operation, through what was called in the old language of coroner's inquests, "the visitation of God," and the similar cases in which the owner became a lunatic while still intestate, or was a minor, and in dying might perhaps determine a great historical inheritance, and divorce it from the title with which it had been concorporate. These were cases, in which, he thought, the hon. Member would himself not wish to see his Bill largely brought into operation. Another objection to the Bill was that it would facilitate the gobbling-up, if he might say so, of landed property by quiet and prudent, but grasping men—the village money-lender, perhaps, or some other variety of spider. It was, therefore, a bad measure on all sides; because the alternatives which it presented, although opposed to each other, were equally objectionable. It would break up the wrong properties, and it would amalgamate the wrong properties. An owner of property might very fairly be allowed to act for himself. If he wished his property to be divided, he could divide it now. Everything, in fact, which the hon. Member for Rochdale desired to have done, and which beneficially could be done, could now in most cases be accomplished. In his mind, a Bill so purposeless and so petty 1173 in its ostensible scope, and yet so bitterly pressed, must imply something broader, pointing to a revolutionary change in the social institutions of the country; and while he quite exonerated its promoters of any conscious intentions in that direction, he could not exonerate their measure from that tendency, nor themselves from the innocence which made them the instruments of a party which knew what it was after. In short, it was so petty and frivolous in its exterior, and so vexatious in its tendencies, that he felt it his duty to give it his strongest opposition.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."—(Mr. Gregory.)
§ Question proposed, "That the word 'now' stand part of the Question."
§ MR. BAXTERsaid, he had watched with a great deal of interest and some amusement, during the last two years, the controversy that had arisen out of the Bill introduced by the hon. Member for Rochdale (Mr. Potter); for of all the opposition to measures calculated to render the laws of this country more just and equitable, he did not know anything that changed its ground in so marvellous a manner as the opposition to this Bill. They had a law that if a man died intestate the whole of his property should, instead of being divided, as nature indicated, between his wife and family, be handed over where it was land to the eldest son. This law, which the Bill was designed to alter, was, as had been said, a relic of the feudal times. It was such a law as existed in no country under the sun except our own. That it should have been permitted to remain so long on our Statute Book was a puzzle to foreigners, by whom it was regarded as a very remarkable illustration of the deep-rooted prejudices which existed in this country. No man would dispute that the natural, just, and economic view of the question was that a man should be permitted to leave his property in any manner that he chose, subject, of course, to the provision that it should not be against "good manners"—bonos mores—and in the event of his dying without making a will, that his widow and children should benefit from his estate. The Legislature 1174 had stamped with its impress the rectitude and wisdom of that course in the case of personal property, and very strong and formidable arguments would be required to convince them that what was good for one kind of property was bad for another. He maintained that the arguments hitherto presented to them against the Bill were not only different every Session, but that they had been utterly contradictory and inconsistent. If anyone would take the trouble to read from Hansard the past debates on the Bill, he would see that its opponents had occupied all sorts of positions, had been driven from pillar to post, had placed themselves on the horns of a dilemma, and had been fairly cornered. The history of this contest with regard to the intestacy law was a very curious and amusing one. In its earlier stages the advocates of this extraordinary law had relied on one argument only—that if they passed this Bill compelling real property to be divided in cases of intestacy, the inevitable tendency would be to a greater, if not a compulsory, division of land. They enlarged on the evil effects of the present system of land tenure in France, and held that there was no safe and middle course between the unnatural and artificial law of England and the equally unnatural and artificial law of France. But they had found that this argument was unavailing, because it was not founded on fact. The promoters, not less than the opponents, of the Bill were opposed to the land law of France; but they had a safe foundation upon which to rest their claim, when they asked the Legislature to adopt the same principle in regard to real property which they had already adopted in regard to personal property. Finding that was the case, the opponents of the Bill suddenly changed their ground with a nimbleness and dexterity worthy of the most accomplished circus performer. No more was heard about the danger of partition. The danger was found to be all the other way, and it had given place to that of the accumulation of lauded property. When, therefore, he came down to the House to-day, he did not know what line the opponents of the Bill were going to take. He found both speakers who had addressed the House in opposition to the Bill had abandoned the first argument, and had adopted the view that the inevitable 1175 effect would be that large landed proprietors would "gobble up" the small ones, that big proprietors would become bigger, and that the beautiful "balance of properties" which now existed would be done away with. He put it to the House whether any clear-headed man could conceive that the great social convulsion which some professed to apprehend from it was likely to follow the passing of the measure, seeing that it would take very many years before the measure would have any perceptible effect at all? It was quite ridiculous to talk in the same breath about the measure bringing about excessive partition and excessive accumulation; and he put it to the House whether there was not an absolute inconsistency between these arguments which was fatal to them? These were the two main arguments that had been brought forward, though there were one or two small ones which he did not think were worthy of being introduced to the House. One was that all the members of a family would believe there was enough for all when there was only sufficient for one. But the hon. Gentleman who had used that argument (Mr. Beresford Hope) evidently thought that because people were poor they could not reason. The argument in favour of the Bill lay in a nutshell, and could be stated in a sentence. It had nothing to do with the law of equal partition. He (Mr. Baxter) was as much opposed as any hon. Gentleman could be to such a law, and they might rest assured and be comforted by the fact that it was never likely to be introduced into this country. There were a number of smaller arguments in its favour to show that it would be a beneficial and Conservative measure. It would certainly lead to a simplification of title deeds, which would be a great advantage. Apart from the position that the present law was an unnatural and an unjust one, he advocated a change on two grounds. In the first place, there had been many instances in which the families of men who had invested in land had suffered great injustice by the operation of the present law. They had been many times stated in that House. In the second place—and he wished to be perfectly frank with the House—while he did not think a man ought always, far less that the law should compel him, to 1176 leave his property equally to his family, he most cordially supported the measure; because he believed it would have a tendency to educate all classes in this country in regard to the evils of that kind of deference to the law of primogeniture, which had pauperized families in all classes of life, which was a fruitful cause in this country of bitter feeling and anger, and which, he believed, was a real danger to the institutions of the country.
§ MR. ALFRED MARTENsaid, that to give effect to the Bill, it would be necessary to have a partition of property in cases of intestacy, and a tendency would thus be created in the direction of compulsory partition in all cases. He must deny that the arguments urged against the Bill referred to by the right hon. Gentleman the Member for Montrose (Mr. Baxter) were inconsistent. That as to the compulsory partition of land had been regarded as a sound objection by the promoters of the measure, as they had endeavoured to meet it by a provision for the sale, after his death, of the freehold estate of an intestate owner. On grounds of political economy he considered that the operation of the Bill, with regard to small estates, would be injurious rather than beneficial, inasmuch as it would lead either to the compulsory partition of the estate into very small portions, or to the sale of the estate; and if it were purchased, say, by the eldest son of the deceased, he would not step into the shoes of his father, but would take the family estate charged, in all likelihood, with heavy mortgages. If he did not purchase, the estate would pass, very probably, into the hands of a stranger. The operation of the law with respect to small estates would therefore be injurious rather than beneficial. The hon. Member for Huddersfield (Mr. Leatham) once asserted that, considering its price, and other circumstances, land must be considered as the luxury of the rich. Since that speech was delivered, however, they had had placed before them the Returns of the new Domesday Book, from which it appeared that landowners were widely spread all the country over. In England and Wales they amounted to no fewer than 972,836. Of these, 703,000 held under one acre of land, and the holders of over one and under ten acres were 121,000 persons. In Cambridgeshire alone, 13,173 persons out of 1177 a population of 186,000, held 522,000 acres. So that, taking the male adult population at 46,000, one-fourth of its members were landowners. That, he believed, might be taken as a fair illustration of the distribution of land throughout the country. In dealing with the Bill they ought not to leave out of sight the enormous number of owners who held under one acre and over one, but under ten acres. A glance at the figures he had quoted would show that the objection that was raised as to the inconvenience which would arise to the public from a partition of these small properties was well founded, and how consistent with it was the assertion that ultimately it would lead to the accumulation of large estates in comparatively few hands. One argument advanced by the right hon. Gentleman opposite (Mr. Baxter) in favour of the Bill filled him with surprise—namely, that it would have the effect of simplifying titles. The experience of the gavelkind custom in Kent was fatal to the argument; and he (Mr. Marten) challenged those who made the assertion to explain in what way it would have that effect; for he was convinced that it would, on the contrary, cause the greatest possible confusion and difficulty in questions of title. In that county, by constant divisions and sub-divisions of land, it was no uncommon thing to find a property of a few acres in the hands of many persons, whose title was in each case involved, and an abstract of which it would be very expensive to prepare. These facts were sufficient to furnish them with a warning against ill-considered legislation. In the course of the discussion reference had been made to the law of primogeniture, and to the good effect this Bill would have in abolishing that law; but it seemed to have been forgotten that, practically, the law was non-existent, or was modified in many instances by local customs, among which was that of gavelkind, which prevailed in Kent, and under which the real property of intestates was equally divided between their children. With regard to the general principle upon which the Bill was advocated, he pointed out that, strictly speaking, there was no absolute law of primogeniture. It was only in cases where there was no local custom that the whole of a man's real estate where he died intestate, or where there 1178 was no entail in existence, passed to his eldest son. He could not help thinking that the greatness of England was largely due to the fact that the nobility and gentry were not of an exclusive class, but had always been mingled with the other classes, forming an integral portion of the people at large. The arrogance which had arisen in some countries among the nobility and the higher classes of gentry was due to the fact that all the sons were treated as equal, and they formed a caste by themselves; whilst in England, as the real estates of the nobility and gentry descended to the eldest sons, their younger brothers were placed in a position of having to make their own fortunes; and so the families of the highest in rank became intermingled with the people to the advantage of the whole community by abolishing the feeling of caste, and preventing the families of the noble and the wealthy from erecting pedestals, so to speak, on which they stood apart from the people of the country who were outside their own particular order. If the House, then, desired to preserve the country great and prosperous as it was, and to bind all classes together, they should encourage, rather than do anything to discourage, the law of primogeniture. The Bill contained two things that were sufficient to insure its rejection; first, it proposed to abolish the legal customs of inheritance without mentioning them—a thing that ought not to be done without serious consideration; and then it proposed to introduce, in effect, the Statute of Distribution of personal estates as governing the law with regard to real estates; but the Statute of Distribution with respect to personal estate was in a most unsatisfactory state itself, and caused the greatest possible injustice, so that it would be necessary to revise it before it was applied to real estate. He therefore asked the House to agree to the Amendment of the hon. Member for East Sussex (Mr. Gregory), on the grounds that if the Bill was to be passed, there ought to be laid before the House arguments and statements of fact to show that, instead of creating inconveniences in the future, it would remove those which existed at present. No such statement or argument had been forthcoming; and, as far as could see, the only effect of the Bill would be to abolish 1179 the local customs to which he had referred, and which had worked satisfactorily, and to apply to the real estates of intestates the principle of devolution which prevailed in the case of personal property, and which, in many cases, was far from satisfactory in its operation. An alteration of the law in the direction proposed by the Bill would produce not only inconvenience but injustice; and he thought that before being asked to pass it, the House should be shown that it would confer on the community advantages sufficient to excuse the inconveniences which it would occasion.
§ SIR JOSEPH M'KENNAsaid, that in voting for the second reading of the Bill, he wished it to be understood that he in no way committed himself to its details. The principle contained in the Bill might have been better drawn in six lines, and have commenced and finished in declaring that, in cases of intestacy, the law applicable to real estates should be the same as that applicable in distribution of personal estate, leaving it to a Select Committee to provide the details how this principle should be carried into effect. The only serious objection to the Bill was that which had been suggested by the Mover of the Amendment—the hon. Member for East Sussex (Mr. Gregory)—that, in cases of intestacy, it would introduce a plague of lawyers, than which he (Sir Joseph M'Kenna) could imagine nothing worse since the plagues which desolated Egypt. In any law, therefore, that might be passed upon the subject, he hoped that ample safeguards would be taken to protect the families of intestates from such a plague. That, however, was a matter of detail that could be remedied in a Committee, to which he would like to see the Bill referred. His (Sir Joseph M'Kenna's) opinion was that it would be best to allow the freehold property of intestates to devolve as at present to the heir-at-law, charging it, however, to the extent of half its value in favour of the personal estate. Such a course would go far to obviate the plague of lawyers, because it would at once invest the heir-at-law with power to protect the estate. He should vote for the second reading of the Bill, in the hope that Government would be induced at some early day to take the subject up, and to carry through the House a well-considered measure, with all the authority 1180 which attached to the action of Government.
§ MR. WHEELHOUSEasked, whether, by a couple of clauses, a private Member could reasonably expect to deal in this somewhat off-hand manner with the existing law of England on that subject? He was almost sorry to see on the back of the Bill the names of hon. Gentlemen in respect to whom he expressed no doubt that, so far as the manufactures of Lancashire were involved, they were excellent judges; but, with all respect to his hon. Friends on the other side, he confessed he did not think they were very likely to deal with the law of real property in a way quite so satisfactory as lawyers might be considered competent to deal with it. When he came to look at the proposal in the Bill, it was practically this—that it sought to change, almost at a moment's notice, the whole law of property. It might be desirable to do this; but, if desirable, certainly it should be done with much more consideration for such an enormously large subject than was found to have been bestowed upon the Bill. The proposition was a broad one, even to boldness, since it sought practically to turn all lands into money, and to let the executors, if there were any, or administrators, failing the executors, do with that money not exactly as they might think right, but to make the devolution precisely that which was now the devolution of personal property, or as near as the law, under the circumstances, would permit. When considering a question of this kind, they must look at the privileges which were and must exist in reference to these estates, which were almost, if not absolutely, inalienable rights, with which the House never had, or could have, any concern, except under the most extreme circumstances possible. He wished very much that, in order that the fate of the measure might have been disclosed at once, that it had been first introduced into the House of Lords. If it had passed a third reading there, it would be more deserving of success; but now the measure was proletarian in every view, and to send it to the other House, with an almost certain knowledge of the fate it must there meet, seemed to him a mere waste of an afternoon at this time—just as afternoons had been wasted on similar measures in times gone by. They were told 1181 that in "another place" they had often very much less work to do than they ought to have, and that their share of legislation was considerably less than the circumstances warranted. Let that Bill, or a number of Bills like that, dealing with the real property of the country, be initiated in the House of Lords; get them passed there, if they could, and then let them come down to this House, where they would be able to deal with them. As far as he understood the Bill, they were asked to upset every relationship which now existed between the owner of real property and those who otherwise would succeed to it. The effect of the Bill in this country would be that properties, especially the smaller ones, would be practically cut up into shreds—merely to do what? To give to these younger sons or younger members of a family some small portion of an inheritance which, being divided and sub-divided infinitesimally, would be utterly worthless in the hands of the owners of the estates. The result of the expectations which would be raised by the division of the property would be inevitably this—that, whereas the younger sons were obliged to seek their living in the same way as the rest of the community, they would idle about, waiting for some possibility, which, in all likelihood, might never arise. They would waste their lives in the vain hope of succeeding to property which, after all, would be of little value in their hands. It would have, also, the effect of throwing the properties into the market, for an expectant would be very desirous to get for his share of the estate so cut up anything almost it would fetch. The property, in fact, would be sold under its value; and the consequences, even in that respect, would be almost fatal to the good sense and arrangements of England as they existed at present. Another evil would also be introduced by the Bill into the landed system of this country—an evil which was well known to legal gentlemen, and which was apparent to a great many outsiders—and that was this, that an executor would have power of sale—almost, in fact, under the provisions of the Bill, compulsory power of sale. If an executor, carrying out his power, put property of any kind into the market, the chances were that the moment it was known either by the profession or 1182 outsiders that it was a forced sale, the land itself was deteriorated in value, and less money would be received for the property than it was really worth. It would soon get abroad that at one or other of the great auction marts of the country a number of estates were to be sold compulsorily by order of the executor under the provisions of this Statute, and properties would be thrown into competition. Land would suffer very materially, and would be sold below its value, and would go into the hands of speculators, brokers, and dealers, bill discounters, and into those of other persons from whom it would be very desirable indeed to keep it. He could quite understand that there might be even here and there a hardship—there might now and again be an instance of very grave hardship—but was it to be said that because an occasional grievance might be shown, and even proved, that they must change the whole law of the country on the subject of land, which, it must be admitted, had worked as a rule thoroughly well? It was said that grave hardships made bad law. He knew of no instance where that adage would be more fully and completely realized than it would be if, because an occasional difficulty arose, the whole law affecting the entire property of the country were to be changed. If they were to have a change so utterly radical—for that was the only word which completely expressed what was sought to be done by this Bill—it ought certainly not to be left in the hands of any private Member. It ought to be gravely considered and introduced by a responsible Administration. They had seen what were the effects of the separation of property in France and in Belgium. Although in France no one of the members of a family were wholly disinherited, the real property did not go share and share alike as this Bill proposed should be the case in England. If anyone had studied the agrarian law of another country, however, he would find that what he had indicated a few moments ago would be the effect of this Bill. It had already occurred in Belgium. The properties in that country had been divided and sub-divided to such an extent as to make it almost a necessity for the youngest children, so as to save anything from the wreck of their little patrimony, to put their share in the 1183 market or go to their elder brother and get him to buy them out. He had the instance of Saltaire in his mind. There the late proprietor of the estate bought the land, erected an enormous mill upon it, and built, in addition to the property, which consisted of one whole village, some surroundings beyond the limits of the village itself. What were they to do in a case such as that? Were they to send a property of that sort at the will and instance of an executor upon the market, in the event of the death of the owner intestate, or was the family division of the proceeds of such sale to be that of personalty? He ventured to assert that they could not by any accident find a more ruinous process in the world to apply to such an estate. He could further instance the large number of properties in the neighbourhood of Rochdale and Eastwood which he thought the hon. Member for Rochdale (Mr. Potter) himself would admit could not be fairly dealt with by the Bill. The present law had been duly considered, and was found to work well. Difficulties arising from intestacy seldom occurred, and when they did so they were often of a very trifling description. Notwithstanding this, it was now sought to establish a law by which the land might be so cut up that those fairly entitled to it might be denuded of all advantage from it. He believed the time had not come, and he hoped it never would come, when a Bill of the kind would meet any success in the Parliament of this country.
§ MR. FAWCETTsaid, he must protest against the views of the hon. and learned Member for Leeds (Mr. Wheelhouse). The number of intestacies was stated to be very small, and the action of this Bill would be still further to reduce them. It could not, therefore, be in any way regarded as to the consequences which it would produce, by attempting to calculate the number of properties which would come under its operation. The opponents of the Bill had attempted to show that its supporters were anxious to abolish the law of primogeniture, and to introduce a compulsory sub-division of property. He thought the opponents of the Bill were bound to accept the distinct assertion which had been often made, and which he now repeated most emphatically, that the supporters of the Bill did not wish to 1184 abolish the law of primogeniture, or to introduce a compulsory sub-division of property into this country. Such a thing would be an unwarrantable interference with individual liberty. Their contention was that if primogeniture was to be retained, it should stand upon its own merits; but that Parliament should not give it the artificial sanction and indirect encouragement of this law which it was desired by the Bill to repeal. The principle on which the law of intestacy should be based was simple and intelligible—that if a man did not by his will say how he disposed of his property, the State should step in and distribute it according to the dictates of natural justice, and according to the principles which were supposed to be best for the State. On the other hand, the simple principle of those who advocated this Bill was that it was wrong for the law to say, in the case of personal property, that the widow should be provided for and no distinction made between the elder and younger children, or between sons and daughters; but that directly they had to deal with real property, the principle of distribution should be changed, and the State rule that it was in accordance with the dictates of natural justice and of public policy that every shilling should go to the eldest son, even though his mother was driven into the world a pauper, and his brothers and sisters cast upon society as penniless mendicants. A great deal had been said about the advantage of sending the younger children into the world without property, and therefore compelled to earn their own livelihood; but that argument was surely as applicable to personal as to real estate? In the case of daughters, the hardship was especially severe; for how was a girl, who had been brought up in every luxury, after her home was broken up and her father dead, to go forth into the world with a vigorous spirit and earn her own livelihood, whilst the avenues to all but a very few employments were closed against women by those very persons who now used this argument. If this argument was worth a straw, it would equally support an unfair disposition of personal as well as of real property. He assured the House that, although he believed that socially and morally it would be better for this country that the land should be more equally distributed, yet he did not want to bring 1185 about that distribution by artificial means, nor to see small properties already in existence preserved by artificial assistance. The simple contention of the supporters of the Bill was, that large and small properties should be left to take care of themselves, and that no attempt should be made to preserve them by artificial means. It was extremely undesirable in the legislation of this country to do anything to encourage the aggregation of large properties; but, on the other hand, it was equally of importance that our legislation should do nothing to discourage such aggregation; and all that he contended for was, that nothing should be done either one way or the other. No one, however, could contemplate with indifference the position of the Land Question in this country at this moment, for it could not be well for a country that its soil should be getting into fewer and fewer hands. The proposed change could only operate by slowly and gradually changing the sentiment of the country; but there were people who were willing to bring forward schemes of land reform far different from this, and in the interests of moderate and just legislation he earnestly entreated the House to give such a moderate proposal as this was a fair and candid consideration. If this law was passed, its immediate effects would be almost imperceptible; but he did think that if the law were changed, the sentiment of the country would be gradually changed. If not, then it would show that primogeniture rested on a natural basis and required no artificial assistance, and that there was no reason for the change; but if, on the other hand, the measure should have the effect of producing a gradual change in public sentiment, and should cause real property to be more generally distributed, as personal property was now, then it would appear that primogeniture was artificially maintained; and, in that event, the contention was that there was no ground for so maintaining it. It was all very well to say that most owners of personal property made eldest sons their heirs; but they never did so, without making adequate provision for their widows and younger children. Suppose a man died worth £100,000, and he gave £90,000 to his eldest son, £5,000 to his widow, and the remaining £5,000 to his younger children, he would know that whatever was 1186 his reputation when living for justice, morality, and kindness, he would go down to posterity as a man who had made an unjust disposition of his property—who had, in fact, done a wicked wrong to his widow and younger children. It was only to meet those cases in which, owing to there being an intestacy, such provision was not made, that they asked for an alteration of a custom which was neither just nor consistent with the general interests of the public or of society. The vehemence of his opposition to this measure showed that the hon. Member for East Sussex (Mr. Gregory) feared for the future of primogeniture as an institution, and that he believed that primogeniture was not based on natural justice or public policy.
§ MR. HERMONdid not believe that the hon. Member for Rochdale (Mr. Potter) would be able to carry the Bill this Session; but said he should certainly vote for it, believing, as he did, that it was a Bill in the right direction, calculated to remove cases of hardship which undoubtedly occurred under the existing law. He had looked into the Bill, and could not see in it anything revolutionary or Socialistic. The Bill proposed that a principle which, under the existing law, applied to personal property should be applied to real property, and why should not that change be made?
§ MR. SHAW LEFEVREalso supported the Bill, endorsing what had been said by the right hon. Gentleman the Member for Montrose (Mr. Baxter) as to the change and inconsistency of argument on the part of the opponents of the proposed change. He did not see that there was any ground for the apprehensions to which expression had been given as to what would be effect of this measure if it should become law. With reference to the arguments of the opponents of the Bill, as regarded its effect on small landowners, his belief was that that class, as a general rule, were quite as ready to make wills as the large landowners, and they generally left their property, whether realty or personalty, to their children equally. When land was the subject of marriage settlement, the almost universal practice of the middle class was to vest it in trustees, with the power of sale, the technical effect of which was to treat it as personalty, and it went equally among the children. The 1187 principle of the equal inheritance of land was, therefore, perfectly familiar to that class. The fear entertained of the extinction of the small landowners by the Bill was altogether groundless. It was a Bill which could only deal with exceptional cases, where there was no will, and such cases were very rare. He held that the Bill would slowly and gradually lead, not to the absorption of the small landowners, but to their continued existence; and probably it would increase the number of landed proprietors in this country. Besides the law of primogeniture, there was the practice of primogeniture, and the latter might long survive the former. Nobody had proposed to make an alteration in the direction of a compulsory disposition of landed property, but to leave the power of willing intact, and in the event of intestacy, to make an equal division of it. He believed that that change in the law would slowly and gradually operate in the direction of changing even the practice of primogeniture, and that such a change would ultimately take place. No doubt, in many families that practice would long continue to exist, and Peerages must be kept up; but when they withdrew the sanction of the law from such a practice, the practice itself would somewhat diminish. There was no primogeniture in the case of females, the property in the case of intestacy being equally divided among the children when they were all daughters. The usual practice of families was to divide equally among the daughters, and it was very rarely that a difference was made between the daughters where there were only daughters. That showed that it was the tendency of the practice to follow the law. The passing of this Bill might have an important influence on the law of entail. He had himself attempted to deal with the law of entail; but he found that it was difficult to do so, without dealing also with primogeniture; and he thought the logical course of proceeding was to deal first with primogeniture, and then with the law of entail. He believed it would follow almost as a necessary consequence that when this measure was passed, they would also have some limitation put upon the law of entail. He agreed with what the hon. Member for Hackney (Mr. Fawcett) had said in favour of retaining the freedom of willing. In this 1188 country it was generally supposed that the French system of compulsory inheritance was adopted with the view of breaking up large properties and dividing them among the children, and also that it was the result of the French Revolution. That was altogether a mistake. The French law came originally from the old Roman law, under which there was a presumption that if a man disinherited any one of his children he was out of his mind and his will was set aside. Compulsory inheritance was once the common law of Europe, and it was only when the feudal system arose that the law was altered. The result was, that when the French Revolution swept away feudalism and privilege, the old law came to be applicable to every species of property in France. Since then, the law of primogeniture and the law of entail had been either abolished or much modified in Austria, Germany, Scandinavia, Italy, and Spain, and the old law of compulsory inheritance, derived from the Roman law, prevailed in most parts of Europe. He did not propose that that law should be introduced into England. The people of this country greatly valued the principle of freedom of willing; and wherever the Anglo-Saxon race had gone, whether in the United States or in the Colonies, they had preserved that principle. He believed, however, that the law of primogeniture had now been abolished in nearly every civilized country except England, and the law of entail also greatly limited. The effect of adopting this Bill, and also making the further alteration he suggested in the law of entail, would be, while preserving the freedom of willing, not to discourage the proper aggregation of land, and yet to discourage its aggregation in very few hands. If they gave the present generation absolute dominion over land, they might safely leave the other questions of the accumulation and sub-division of land to themselves, thus pursuing the course which would be best for the interests both of individuals and of the State. Although the Bill might be rejected by a large majority, yet the time would come when England would also follow the example of other civilized parts of the world, and abolish the law which made such unwise distinctions. It had been abolished in those countries, because it was held to be unjust to 1189 maintain a law which tended to the aggregation of property in a few hands.
§ SIR GEORGE BOWYERthought the hon. Gentleman who had just sat down (Mr. Shaw Lefevre) had let the cat out of the bag. It had been said that this was so small and innocent a Bill that they might as well pass it, and that it would hardly have any effect at all. The hon. Member who had spoken last, however, told them that when the Bill was passed he would have something else to abolish—namely, what he called the law of entail. But what the hon. Member attacked was not the law of entail, but the law of succession—a very different thing; and he wished to assimilate the law of England to that of other countries. The hon. Member, in referring to the Roman law, had confounded two things which were perfectly distinct. He had said that, under the Roman law, if a man did not leave anything to any of his children, it was regarded as an aberration of judgment; that portion of his will was void, and he was obliged to leave a provision to his children. There was nothing so very remarkable in that, because a similar rule existed in Scotland. But that was quite a different thing from an equal division of land. Again, as to the French Revolution, they all knew that it was caused by the great influx of democracy, the great object of its authors being to put down the aristocracy. The hon. Gentleman had sketched a very remarkable revolution which he wished to effect in England. He had very kindly said he would not do it by violent means; but it was not certain that if the Bill were passed, and he saw his way to do so, he would not make his views compulsory. The hon. Member for Hackney (Mr. Fawcett) had said that primogeniture was an institution founded on public sentiment, and on the sentiment of this country especially, disclaiming any wish whatever to see it changed. [Mr. FAWCETT: No.] Some of the hon. Member's expressions seemed to him to bear that meaning; but he supposed the hon. Member would not interfere with primogeniture by compulsory measures. The second part of his speech, however, was inconsistent with the first part, because it contained an invective against primogeniture as being contrary to natural justice. Surely, if an institution were contrary to natural justice, it ought not 1190 to be tolerated in a civilized country? The practical effect of that Bill might not be very wide, but it was founded on the principle of the abolition of primogeniture. It took effect only in cases of intestacy, but that was its principle; and if it were passed, they must go further. People talked of primogeniture without considering what it was, just as they talked about the law of entail without having the remotest idea of what it was. Primogeniture was not, properly speaking, a law, because it was optional. A person who had landed property might leave it according to the rule of primogeniture or not, entirely as he pleased. Primogeniture was an ancient usage interwoven with the history and habits of this great country, and they could not deal with immemorial usages and customs of a great nation by a stroke of the pen. At present, primogeniture was the rule, although it was optional with people to adopt it; and what the supporters of the Bill wanted to do was to make that the exception which was now the rule, and that the rule which was now the exception. That was to say, unless a man put it in his will that his property was to go to his eldest son, the land should be divided equally among his children. It was asked, if they followed the rule of equal division in regard to one class of property, why not do so in regard to another? But the cases were perfectly dissimilar. There was a great difference between dividing a sum of money in Consols and dividing a great estate. He had faith in the permanence of primogeniture, because it was deeply rooted in the habits and thoughts of this country; and he believed that this Bill would not have much practical effect. He might be told that was a reason for passing the measure; but he repudiated the argument that they were to pass a Bill because, its principles being contrary to the public opinion, the habits, and the ancient usuages of the country, it was, therefore, likely to have no effect. That was asking Parliament to make itself ridiculous. It might be imagined that there were a body of daughters and younger sons besieging the House, and begging it to consider their miserable and destitute condition while their elder brothers were rolling in wealth. But was that so? Nothing of the sort. Where were the Petitions in favour of the Bill? Gentlemen who 1191 had that crotchet in their heads had done all they could to get up an agitation against the law of primogeniture and of marriage settlement, and they had failed. That showed that the proposed change in the law was not called for in this country. At present, the only persons who were discontented with the law of primogeniture were a few theorists who did not consider the question practically, but upon a set of abstract principles which they had established for themselves. What they aimed at was some political change. They wanted to prevent what they called the accumulation of land in families. Before they did that, why did they not prevent the accumulation of money by manufacturers and merchants? If accumulation was an evil in the one case, it was the same in the other. The principle of political economy was that those accumulations should be left to themselves. They were the effect of certain natural laws, and the Legislature could not interfere with them without doing harm. Some hon. Gentlemen seem to think that the existence of large landed estates was due to an artificial law. He denied that entirely. The law of strict settlement was only that which was necessary to enable a landed proprietor, when he married, to provide for his widow and children. The law of England forbidding perpetuity, and enabling the landed proprietor to tie up his land only for one generation for the purpose of providing for his family, hit the happy medium, and could not be reproached with the blame of stimulating the accumulation of land in a few hands. Returns showed that the number of landed proprietors in this country was very great, some of them having a large and others a small amount of land; and that was the case with all kinds of wealth. With regard to the 1st clause of the Bill, it appeared to him to be so drawn as to indicate that its promoters did not expect it to pass, but must have introduced it to air their peculiar views. In conclusion, he would offer the Bill his most strenuous opposition at every point.
MR. OSBORNE MORGANcongratulated the hon. Member for Preston (Mr. Hermon) on his manly and straightforward speech in favour of the Bill, and expressed his regret that it had not been heard by his hon. and learned Colleague (the Attorney General). He 1192 said, that as he listened to the speeches of its opponents, he thought he heard a voice from the Middle Ages. Indeed, if they wanted to defend the principle which the Bill attacked, it was to the Middle Ages they must go back; because he defied anybody to stand up in that House and say that reason, or nature, or justice required that a man's property, whether it be real, leasehold, or personal, should go to his eldest son, and that his wife and children should be left destitute. The hon. and learned Baronet the Member for Wexford (Sir George Bowyer) had talked about the natural devolution of property. Was it the natural devolution of property that the widow and younger children should be thrown penniless on the world? [Sir GEORGE BOWYER: I never said anything of the sort.] If they defended such a law, they must do so on some very cogent grounds of public policy, or not at all. In the feudal ages, when all England was a fortified camp, and all land was held on military tenure, there was a strong ground of public policy for primogeniture; and primogeniture, in some form or other, then prevailed all over Europe. But when the circumstances on which it then rested had entirely disappeared, the law was no longer defensible. Surely the rule, "Cessante causâ, cessat ipsa lex," should hold good in that case? The law had been changed in most countries, but not in Conservative England. Moreover, in feudal times, the severity of primogeniture was tempered and moderated in a way in which it could not be now; because by custom, which had the force of law, the eldest son was then the protector of the family in a sense in which no eldest son could now be. By custom he was required, and almost compelled, to provide portions for his sisters. His younger brothers, too, ate at his board, slept under his roof, and fought under his banner. Dower, also, in those times was a real provision; but in later days the ingenuity of the conveyancers, seconded by the action of the Legislature, had so pared it down that it had ceased to be a provision for the widow at all. In listening to some of the opponents of the Bill, one might think it would interfere with the whole fabric of our territorial system, from the House of Lords down to the 40s. freeholder. Why, it would no more interfere with the House 1193 of Lords than would the Burials Bill, if that were passed. Neither would it in the least meddle with what were called family estates, which were settled from time to time as the eldest son attained 21; for the heads of such families did not get the chance of dying intestate, and if this Bill were passed to-morrow, people might go on settling and resettling them to their hearts' content. Nor would it interfere with testamentary powers of disposition; and, with reference to this point, he would point out to the hon. and learned Baronet that it was very seldom that a man died intestate as regarded landed estate, and that instances of intestacy were much rarer in cases of real than of personal property. But there were now and then cases in which, owing to a sudden accident or illness paralyzing powers of body and mind, or to that singular superstition which seemed to possess some people and made them reluctant to make wills at all, men died intestate as regarded land. What, then, was the duty of the law? He took it that the duty of the law in such a case was to do that which nature and reason and justice required, and to give effect to the probable wishes of the dead man himself. There had been a good deal of random talk on the subject; but he might say that his experience of 16 or 17 years enabled him fully to confirm what had been said by the hon. Member for Reading (Mr. Shaw Lefevre), that in four cases out of five, small landed properties were given not to the eldest son, but to trustees to be divided among the several children and the widows. No doubt, a man might sometimes devise even a small property to his eldest son; but that would not be done very often without making some provision for the younger children in the shape of a charge, which very often placed the eldest son in a worse position than his brothers and sisters. As the law now stood, persons left their property less and less to the eldest son. With respect to any indirect effect which the Bill might have, he would only say that the fact was becoming more and more distinctly recognized that the distinction maintained between different kinds of property was essentially an artificial one. That distinction at present existed as between freehold and leasehold; but, in some cases of which he knew, the two were so completely mixed together that 1194 it was hardly possible to say which was which. If the principle of promogeniture be just and sound as regarded real estate, why should it not be just and sound in the case of personalty and leasehold? There was another point of view from which it would be recognized that the Bill conferred benefits. It would greatly facilitate the transfer of property by vesting land in the executor, who could always be found, instead of the heir, who might be at the other end of the world. But he preferred to rest his support of the Bill upon the broader ground that it would remove an anomaly, an anachronism, and an injustice; and he thought a time would come when men would merely wonder that such a change in the law should have been so long delayed and so pertinaciously resisted.
§ MR. LEEMANsupported the Bill, which he looked upon as perfectly just in its intention. He quite agreed with the hon. and learned Member for Denbighshire (Mr. Osborne Morgan) that the subjects of primogeniture and settlement might very well be excluded from the debate, as they had really nothing to do with the subject before the House. It was a great mistake to suppose that there was any law binding a man to leave his property to his eldest son. Primogeniture was no more than a custom—an old one, no doubt, but still only a custom—with which the Bill in no way interfered. And as regarded the law of settlement, the law would not interfere with the power of every man to make what settlement he pleased; so that arguments of that kind were wholly misplaced. The proposition of the Bill was very simple, and was one that, as a pure matter of morals and justice, no one could successfully controvert. There were occasions on which it might be most important for a man's family that he should make a will, but he would die intestate from accident or other causes; and he knew of cases within his own experience in which houses had been built on freehold land and the minerals worked out of leasehold, and where, by the lapse of time, the freehold and the leasehold had been so mixed together as to be indistinguishable. In such cases the testator would never dream of the two kinds of property becoming dissevered, and would not anticipate that on his death one kind would pass to the eldest 1195 son and the other go as personalty. Where was the fairness of that devolution? In his opinion, there was none. Now, anyone who took the trouble to examine the Doomsday Books would find that, under the state of things that had their origin in feudal times, the whole number of landowners was on the making of the first Doomsday Book 54,000; but that now, after a complete change of things, the number was nearly 1,000,000, of whom more than 750,000 had less than a single acre. In Lancashire, with a population of more than 2,000,000, there were 76,000 landowners who had less than an acre, and 12,000 who had more, making a total in that one county of 88,000 persons who held lands and would be affected by the Bill. It was to be remembered that many of the small landowners were not poor persons, but men who had built their mills and business premises on their own freehold; so that their property was often very valuable, if not very extensive in acreage. In like manner, there were in Yorkshire about 2,500,000 of population to whom the Bill would apply, and of these about 88,000 held lands—of whom some 60,000 had more than one acre. In nine cases out of ten they would never wish to leave all their real property to the eldest son; but their general custom was to provide for their younger children also from the same source. He complained that the Bill had been met by purely technical objections, and no question ought to have arisen as to what the Court of Chancery might do. Nor did the Bill in any sense interfere with the custom of primogeniture, and arguments that it would do so were wholly unsound; the Bill would only give facilities for administering real estate. The custom of gavelkind in the county of Kent had been mentioned; but no practical lawyer would lay any stress on so technical and partial an objection, and most solicitors knew that the real result of the Bill would be to effect a considerable saving of expense in conveyancing. He hoped, then, that the House would pass a Bill which would make several useful reforms in our law without being followed by any other consequences.
§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)said, that he could not concur with the hon. Gentleman 1196 the Member for York (Mr. Leeman) in thinking the Bill a practical one. It was not denied that for a great many centuries the law had remained as it now stood. He would not use expressions unintelligible to all but lawyers; and in talking about the law or custom of primogeniture, he would remark that, except to a lawyer, they were both the same thing. This law, then, of primogeniture had existed for a great length of time, and was one that affected many persons in their daily life, and was the subject of their daily experience. It was not ordinarily hidden and unknown, but something that came out, not on rare occasions, but often in the life of every family; and if, as was admitted, the feeling of the country was at present not in favour of the change which—in spite of the hon. Member for Hackney (Mr. Fawcett)—would be produced by the Bill, while the experience of centuries inclined to the existing law, then the Bill was not a practical Bill, but only the embodiment of destructive theories. The hon. Member for York had not been in his place when the hon. Member for Reading (Mr. Shaw Lefevre) had stated that, in his view, it was impossible to deal with the subject without altering the law of entail; but, as he now understood from the supporters of the Bill, it was not desired to interfere with that law. What, then, was the grievance which the Bill was intended to remedy? It seemed to have been assumed that the opponents of the Bill had ignored their grievance; while, in fact, being content with the law as it was, they had thought the Bill unnecessary. Many persons even who did not make wills were only satisfied that their property should devolve in the usual manner, so that the number of grievances by no means coincided with the number of cases of intestacy. The real question at issue was, whether real estate and personalty ought to be dealt with separately? Now, the latter had this important distinction, that it was capable of sub-division. A leasehold would yield a certain sum that might be sub-divided; but a freehold was not in the same way infinitely sub-divisible, as much of its value was derived from its aggregate form. Yet, by the 2nd section of the Bill, each person was entitled to apply to the Court for a partition. That would be the case with the small owners of 1197 Lancashire and Yorkshire whom the hon. Gentleman had mentioned, a great part of whose estates would go in costs. The condition of landed property in this country was such that it appeared to him that the Bill would be virtually inoperative, especially as small freeholds seemed to be chiefly aimed at. After 25 years' discussion, public opinion was not in favour of the Bill, which had always been rejected by a considerable majority; and he could not see, for his own part, why the law should be altered. The hon. Member for Hackney (Mr. Fawcett) had some notion in his mind as to what was artificial and what natural; but why should primogeniture be said to be artificial, unless every disposition of property was so also? And what had the hon. Member meant by saying that his objection to the custom was that it increased the difference between the artificial and the natural? He (the Solicitor General) must deny that the present state of the law was more artificial than the system which the Bill would set up. Admitting that there was no public demand for the Bill; admitting that the existing condition of the law had prevailed for centuries, and to the advantage of the country, in maintaining a hereditary aristocracy—to use the words of a distinguished Liberal statesman; admitting that the law did not produce anything like general hardship, although there might be individual cases, in the same way as there were under the Statute of Distributions, and just as there were of persons who made wills, and yet left persons improperly provided for with reference to their actual circumstances—the demand for a change in the law appeared to be made without sufficient grounds. If the hon. Member for York had practised in the county of Kent, he would have had experience of gavelkind, which might be taken roughly to represent the principle of this Bill, and to which Sir Matthew Hale—no very aristocratic or determined upholder of the law of primogeniture, speaking from actual experience—attributed the very evils which were now described as hobgoblins. The supporters of the Bill did not adduce any of the reasons on which demands for legislation were ordinarily based. The Bill would render it impossible for real property to pass, as now, to the eldest son without the intervention of a 1198 lawyer; and it would encourage, what it had been deemed wise to prevent, the minute sub-division of estates, which might not be in many cases the most efficient mode of providing for the necessities and welfare of all the members of a family, including the eldest son, if he took his proper place as the protector and guide of those who were left behind. Of course, if a father could not trust his eldest son, he would make such a disposition as he pleased, tying up the property and making charges on the estate; but the Bill would take away the power of doing that without first consulting a lawyer, and running the risk of a Chancery suit afterwards; so that, where there was a harsh, ill-conditioned, grasping elder brother, the Bill might promote the very consequences it was intended to obviate. An alteration of the present law would be mischievous in more respects than one. It would deprive the owner of landed estate of the opportunity of following what was admitted to be the general feeling of the possession of land. It was not concealed, although supporters of the Bill expressed divergent views, that it was but a modest instalment of the change advocated by those opposed to the law of primogeniture; and in that respect, as well as in its immediate consequences, the Bill would be mischievous. Taking broader ground, it was undesirable that that which had been in a great measure the source of the greatness of this country should be got rid of by a side-wind. Lord Palmerston had said, in reference to this very Bill, that he believed the present law and the public feeling which it represented were essential to the maintenance of hereditary Monarchy and hereditary aristocracy. For all these reasons, he believed it would be mischievous to change the law, and he must, therefore, vote against the Bill.
§ SIR WILLIAM HARCOURTsaid, he was bound to do the hon. and learned Gentleman opposite the justice of saying that the description he had given of the debate, as producing no new argument, did not apply to his speech; for he had himself introduced a new argument, and one which had never been advanced previously by any lawyer or politician, when he said that the Bill would take away the vested right of a man allowing his real estate 1199 to descend to his eldest son without making a will——
§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)denied that he said anything of the kind. He had observed that that would be the logical conclusion of the argument of the hon. Member for Hackney (Mr. Fawcett); but he had added of course no one would adopt it.
§ SIR WILLIAM HARCOURTsaid, the House had heard the statement of the hon. and learned Gentleman, and his explanation; and he, for one, did not think the latter satisfactory. He understood the hon. and learned Gentleman to maintain the vested right of a man to leave his property as he wished, and to illustrate the hardship of interfering with that right by what Kent had suffered from the law of gavelkind. He was glad to hear from the hon. and learned Gentleman the true explanation of the superiority which the county of York had over the county of Kent; he never before heard that the inferiority of Kent was due to the custom of gavelkind. He supposed the hon. Member for the University of Cambridge (Mr. Beresford Hope) would confirm the statement that younger sons became very inferior in Kent, because they did not have that encouragement to seek useful careers which they had in other counties. The hon. Member was a younger son himself; he had a great many younger sons; and it was distressing to think that this custom of gavelkind should have demoralized so valuable a family. The other arguments of the hon. and learned Gentleman were not new at all; but were as old as the days of Lord Eldon, when they were used in exactly the same language. It was an old hobgoblin, that they must not do something, because if they did, they must do something else. The old argument in favour of the Bill had not been met—no attempt had been made to grapple with it—and it was, that if a man did not make a will for himself, the law ought to make a just will for him. This was what the law, as in the Statute of Distributions, did in reference to personal property, and it ought to do a similar thing in the case of realty. Would any hon. Member who was going to vote against the Bill say that if he died leaving five or six children, he would desire that all his property should go to one child? 1200 Yet, if a man possessed landed estate and died without a will, from heedlessness as to making one, the law made for him a will which, in his conscience, every hon. Member would hold to be thoroughly immoral. This was an argument in favour of the Bill which had never been answered, and it was an argument which in the end must prevail. It was idle to talk of the elder son being made a trustee for his brothers and sisters, for the law did not make him anything of the sort; and beyond that, the instances in which a man gave up what the law put in his possession were very few. What answer was there to the argument that the law made an unjust will such as no just man ought to make? The law of England ought to be a just law; it ought not to make unjust wills in respect of landed property, but it ought to deal as justly with that as with personal property, where a man had died without leaving a will.
§ MR. T. B. POTTERsaid, he was quite satisfied with the extent to which the debate had gone, and should not occupy the time of the House by replying to the arguments that had been urged against the Bill.
§ Question put.
§ The House divided:—Ayes 157; Noes 193: Majority 36.—(Div. List, No. 204.)
§ Words added.
§ Main Question, as amended, put, and agreed to.
§ Second Reading put off for three months.