HC Deb 11 August 1887 vol 319 cc205-17

Order for Committee read.

Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."—(Mr. Solicitor General for Scotland.)


I am sorry to detain the House even for a few moments before you Sir, leave the Chair; but I desire to say a few words about this Bill in explanation of the position I hold in regard to it. A Blocking Notice appeared for some weeks in my name in regard to this Bill; and I wish to explain, not so much how it was that I came to block it, but why I ceased to block it at the present time. My object in blocking the Bill was to endeavour to get it understood, though, perhaps, I am too sanguine in supposing that the Bill is oven now understood by the House. That was my object; and I was further desirous of ascertaining whether it was the serious intention of the Government to press forward the Bill during the present Session, a Bill which I hold, the Government ought never to have introduced. I have, however, become aware that the Secretary for Scotland (the Marquess of Lothian) convened a meeting of Scottish Members—I think on Tuesday last—and at that meeting there was a very general feeling in favour of the Bill being pressed forward, and having for many years represented a Scottish constituency in this lie use, I determined yesterday, out of deference to the feeling of that meeting, that I would not renew my Blocking Notice. The only difficulty that stood in the way of removing the Notice was lest I should be supposed to have been influenced by a variety of articles that, I understand, have appeared in a sensational evening journal. I say I understand such articles appeared, because, except the first one, I have not myself seen the articles. Two ideas seem to have weighed with the House generally in reference to this Bill. One was the belief that some result unpremeditated by the Legislature had followed the passing of the Act of 1874; and the other salient idea was the case—if I may so describe it—of the hon. Member for Orkney and Shetland (Mr. Lyell). As to the first of those points, it is a matter of keen dispute among lawyers at present in Scotland; and even if the allegation is true, I would assert that the discovery was made so long ago as 1877. The case of Rossmore's Trustees decided the law at that time, and many transactions have taken place on the basis of the settlement of that year. But what I wish particularly to call attention to is this, that this clause is retrospective—a nice thing for a Conservative Government to propose, that this provision of the 1st clause should apply retrospectively ! What I wish to ask is this—what is to happen to those who have been paid since 1874? Are they to repay if this measure is to be retrospective? And if not, I ask where is the safeguard against such a monstrous injustice being done? This clause is one which, for the first time, gives sanction to the device whereby purchasers were formerly able to defraud the superior; and that, I say, is a most objectionable and reprehensible principle. This clause has created great uneasiness among many persons in Scotland. Originally there was an intention on the part of the hon. Member for East Edinburgh (Mr. Wallace) to oppose this clause, and I hold in my hand a statement on behalf of the Corporation of Edinburgh in support of the hon. Member's Amendment to leave out Clause 1. For it must be told that when the Bill first appeared the hon. Gentleman was breathing out threatenings and slaughters against it, under the conviction that it was a Bill that would injure the poor. It was pointed out to him, however, that he was clearly playing into the hands of the owners of land, and from that moment he did not support the Corporation and his opposition to the Bill has disappeared. I beg to point out that the Act of 1874—which this measure is intended to remedy—was essentially a measure of compromise, and it is a perfect delusion to assert that the superior by that Act did not make concession; it was a measure of compromise in the truest sense, and the present measure is intended to upset that arrangement. I earnestly hope, at least, that my right hon. and learned Friend the Lord Advocate will offer a defence of the Bill, and especially of the retrospective character of the Bill. I understand the position of those who wish to sweep away casualties altogether, and this Bill receives support from persons who go all that length. I know that Her Majesty's Government do not intend to go that length; but I doubt it the Government have the least notion of the character of the Bill to which they are lending their name. With regard to the case of the hon. Member for Orkney and Shetland, as I have said, that would be abundantly met by Clause 2, and if the Bill consisted of that single Clause 2, there would be no objection, because everyone must desire that if relief can be given in his case it should, be given, and if the Government intended that they ought to have confined their attention to Clause 2 alone instead of demanding the far larger proposal of Clause 1, which, in its retrospective character, does very great injustice. I will not detain the House further, and I apologize for having detained it so long; but before I sit down, let me say I shall move the Amendment in Committee, if I am permitted to do so, which stands in the name of the hon. Gentleman the Member for Inverness-shire (Mr. Fraser- Mackintosh), and if not, I shall move a proviso to Clause 1 when the proper time arrives.


I think my hon. Friend the Member for Ipswich has a perfect right to ask for an explanation as regards the purport of this Bill, because it does appear that certain rights are vested by Statute in a limited number of persons. Although the subject is highly technical, I think I can explain, in two or three sentences, the object for which this Bill has been framed. The right which it is intended to take away from the superior is the right to demand a full year's rent in the event of a certain change of proprietary. According to the practice before 1874, the superior had not the right to demand that if the vassal took certain stops that were not of a difficult or complicated character. The vassal had the right—I am, of course, using language highly technical, and which, I am afraid, will only be intelligible to Scottish lawyers—to present the heir of the last entered vassal, and to demand for him an entry on a payment not of a year's rent, but of a year's free duty, which, of course, is vastly less than a year's rent. The result of the Act of 1874, however, was that the mere recording or registering a title made the purchaser an entered vassal, and the consequence was that the purchaser became necessarily an entered vassal, and had to pay the casualty due from a purchaser. When a purchase took place, and the purchaser bought his title, the superior drew, not the casualty from the heir, but the full amount of a year's rent. That, I say, was unintended by the Act of 1874, and must, at the same time, have the effect of augmenting the estate of the superior, and consequently diminishing to that extent the estate of the vassal. That is not a state of matters that should continue, and the hon. and learned Gentleman the Member for the Elgin Burghs (Mr. Asher), my Predecessor in Office, will remember the subject was brought up last year by the hon. Gentleman the Member for the College Division of Glasgow (Dr. Cameron), in a measure considered to be somewhat crude and not sufficient to effect its object. At the same time, all were agreed the object was one that deserved consideration. The late Government brought in a measure that differed from the present in points of not great materiality, but we consider the present Bill an improvement on that introduced before. My hon. Friend has asked one question, to which he is entitled to an answer, and it is this—how does the Conservative Government, or any Government, justify the passing of an Act which is retrospective to the extent of taking away a right which is given by Statute? I think that is a very serious question, but at the same time the principle of the Bill is this. We believe that the Act of 1874 did not intentionally confer upon the superior this increment of the estate, and accordingly this Bill proposes, acting on that assumption, to take away from superiors the right to exact what was not intentionally conferred. It does not, of course, take back what superiors have already got payment of. But as I said, I think this is a matter deserving grave consideration, because unquestionably the Bill does take away a right at present vested in superiors by virtue of an Act of Parliament. But justification of that is to be found in the view that the Legislature never intended to give that, and may, therefore, fairly take it away. My hon. Friend has said that the Act of 1874 was a measure of compromise. I am bound to say that I have not been able to verify that statement, although it has been made before. The rights of the superiors were affected only to this effect, that the vassal had a right to make a commutation payment in full of payments which occurred periodically. But I cannot discover in the course of the legislation of 1874 any trace of the idea that there was given up by the vassals in favour of the superior the rights now in question. Accordingly, Sir, without detaining the House at greater length with, I am afraid, a not very successful effort to make dear a subject extremely obscure, I will conclude by expressing a hope that you will be allowed to leave the Chair. The Bill is one which ought to be debated; but the subject is one which one has little confidence in pressing strongly, because the majority must take on trust what is stated in regard to it by professional men. I can only say that the subject is one of serious difficulty, and has been considered by successive Administratives in the Legal Department, and the conclusion I have arrived at is in the direction I have pointed out.

Question put, and agreed to.

Bill considered in Committee.

(In the Committee.)

Clause 1 (Limitation of casualties payable by vassal under Act of 1874).


, in moving an Amendment, in page 2, line 9, after "superior," insert— Provided always that this clause shall only apply to casualties emerging after the passing of this Act, said: I trust I may be allowed to propose this Amendment, although it stands in the name of the hon. Gentleman the Member for Inverness-shire (Mr. Fraser-Mackintosh). I feel bound to repeat the statement that this clause takes away the rights vested in superiors by Act of Parliament; and I can only remind the Committee that the decision of the Judges of the Court of Session in 1887 confirmed their belief in their possession. Many new transactions have been carried through since then on the faith of that decision, and it is a strange proposal to emanate from the present Government that such transactions should be interfered with, and I regret exceedingly that it should have been made. My hon. and learned Friend has distinctly said it is a very doubtful policy, and it is only defended on the ground that something was done, or omitted to be done, by legislation which was not intended. But on that matter there is the greatest possible difference of opinion in the Legal Profession in Scotland, and yet in the face of that difference the Government are making this clause retrospective, and, by so doing, are causing great injustice to the superiors in Scotland.

Amendment proposed, At the end of the Clause to add the words, "Provided always that this section shall only apply to casualties emerging after the passing of this Act."—(Sir Charles Dalrymple.)

Question proposed, "That those words be there added."

MR. A. R. D. ELLIOT (Roxburgh)

It is very satisfactory to find that the opposition to the Bill is to be determined by the decision on this one clause, and that there is to be no opposition to other important clauses. It has been said that the effect of this Bill would be to prevent the superiors obtaining certain money advances to which they had a right. Whether or not that is a right description of the state of things between the superiors and vassals before the Act of 1874 I do not know; but I want to ask whether, as a matter of fact, the superiors had a right of obtaining a year's rental of the property in the case of transfer, and whether, when such a right was claimed, the decision was not almost invariably against it. If that was so, then I submit that the language of the hon. Member opposite cannot be justified, and the objections to this clause cannot be maintained.


My hon. and learned Friend is perfectly accurate. The case is this. The vassal who was asked to pay the casualty at once turned round and presented his last predecessor for entry on payment of a year's few duty. The right of the superior was to ask the larger sum; but it could be at once met by an offer of the heir of the vassal and the smaller sum. The subject, I know, is debateable; but, at the same time, the proposition of the Bill, as I stated in the few observations I made before the Speaker left the Chair, is, that the larger right which is asserted by the superiors is one which unquestionably arises on the terms of the Act of Parliament, but was not a right intentionally conferred by the Legislature. That is the theory of this Bill; and accordingly, the proposal which is made in the Bill as it stands is that that right should be taken away, and that the vassal should be furnished with a good defence against any such clause arising under the provisions of this Bill. The Amendment which my hon. Friend proposes would restrict its operation to casualties emerging from the present time onwards; but that would not give full effect to the view presented in this Bill, and therefore I think that the more consistent course would be to adhere to the clause as it stands.

MR. CALDWELL (Glasgow, St. Rollox)

There can be no question whatever that the Act of 1874 restored certain rights to the superiors, and it is rather late now in the day to turn round and say that that was not the intention of the Legislature. If you do that in this case you may be asked to do so in a great many other cases, and you will be establishing a principle which might be carried to a serious extent. This Act has been acted upon in many cases. Superiors have in terms of it already got from the vassals payments of this character, and yet you are now proposing to relieve parties who by law are bound to pay. I think you would be acting most unconstitutionally in doing so, and the Committee would do well to consider the precedents which they would be establishing. Provisions of this kind are not usually made retrospective. By this Bill you are proposing to take from the superiors rights which are actually vested in them by Act of Parliament, and yet you are not seeking to ensure that the money which some vassals have already been called upon to pay under the Act should be refunded to them. If you wish to be consistent you must also provide for that being done, you must give relief to those who have paid so as to render the Act of Parliament really nugatory as regards the clause binding vassals to pay this casualty. Of course the Government have a majority, and can, if they choose, pass this clause, but I have no hesitation in saying that they are taking upon themselves a grave responsibility in a matter of this kind. Neither I nor the public generally have any interest in this particular matter; it is solely a question between the superior and the vassal, and the latter is probably the more wealthy of the two, but I warn the Government that they will be making a dangerous precedent, and that they must bear the responsibility of doing so.


I appeal to my right hon. Friend the First Lord of the Treasury (Mr. W. H. Smith) whether he is aware of what this clause proposes to do? It is one thing to enact, but it is quite a different thing to make the new legislation retrospective. What is now proposed to be done retrospectively may involve the repayment of money which will have passed from one to another 14 years ago, and that is a very serious step to take. I doubt if the Government have the least notion of its seriousness, I am not a lawyer. I yield implicitly to the legal statements of my hon. and learned Friend the Solicitor General for Scotland, but I say that the retrospective action is so serious that if I can get anyone to tell with me I shall be bound to divide the Committee against it.

MR. ASHER (Elgin, &c)

I think the hon. Gentleman opposite is under a misapprehension as to what is the effect of this clause. I understand him to be under the belief that the Bill as it stands is retrospective in this sense, that it involves the repayment of money spent 14 years ago. Now, I do not agree that that is the effect. It would not have the effect of entitling the vassal who had paid to the superior a casualty under the Act of 1874, to get it back simply because the law had been altered as proposed by this Bill. It would merely have the effect of preventing the superior to whom a claim has already emerged, but who has not received payment of it from insisting on the payment of it after this Act has been passed. It is quite true that the Bill is retrospective in a sense, but it is only a limited sense, and it will only affect casualties which have emerged, but which, have not been demanded by the superior. I submit that if the Bill is to pass at all it ought to have within it that retrospective character. I quite agree that it is a formidable suggestion to pass an Act of Parliament retrospective in the sense of depriving persons of rights vested in them by an Act of Parliament. But what is the character and object of this Bill? It has been introduced for the purpose of rectifying an. error in the Act of 1874, and Act passed solely for the purpose of simplifying the completion of title; it was intended to have no efficacy at all except the abbreviation of the formal steps necessary for the completion of title. But it has been found to give the superior a higher right against his vassal than before for a money claim, and it is now desired that the relation of the superior and vassal as regards that money right should be made precisely as it was before the Act of 1874. I think that that is a perfectly legitimate proposal.

MR. GEDGE (Stockport)

The argument of the hon. Member that this clause will apply to only a few cases convinces me that it ought not to be passed. If any great injustice had been done, if any enormous wrong has taken place, then it might possibly be excusable to adopt so vicious a principle as this. But that is not so. Even assuming that the Act of 1874 did make a mistake, it seems that we have gone on for a great many years without there being such a great grievance as to make it necessary to pass an Act to alter it. Now that our attention has; been called to it, I think it will be quite enough to pass an Act dealing with the future, and not to trouble ourselves about the few cases which may exist, and in which, if we do not make the Bill retrospective, the law of 1874 will prevail. It is a dangerous principle to establish for the Government to ask us to pass an ex post facto law, and I shall not follow them into the Lobby on a principle of this kind.

THE FIRST LORD OF THE TREASURY (Mr. W. H. SMITH) (Strand, Westminster)

Having listened to this debate, and though I do not profess to be learned in Scotch law, it does appear to be that my hon. Friend the Member for Ipswich (Sir Charles Dalrymple) has made out a case for the principle, and therefore, without in the slightest degree impairing the efficiency of the Bill, or taking from it any of the advantages which it possesses, I think we may reasonably accept the Amendment, and permit the Bill to come into operation from and on the day on which it is passed. There is a great deal to be said against the principle of retrospective legislation.

MR. HALDANE (Haddington)

I regret extremely the statement of the right hon. Gentleman the Leader of the House (Mr. W. H. Smith). I think the moderate character of the Bill has been, almost understated by the hon. and learned Gentleman the Solicitor General for Scotland (Mr. J. P. B. Robertson) in the able speech in which he explained it to the Committee. The Bill does not even profess to give a new right to the vassal, a right which he had not before the Act of 1874; it will only enable him to regain possession of the advantages he had under the old law, if, and only if, ha can find a heir to come for ward and satisfy his superior in the way the heir used to satisfy him. It is in that sense, and that sense only, that it is retrospective. As regards what has been said about the principle, I can only say that since this Bill was first introduced in a somewhat different form in the House of Commons, the superiors throughout Scotland have been instructing their agents to hunt up these claims, and enforce them against all sorts of people. To my knowledge, claims many years old have been enforced within the last few months simply because this proposition is before Parliament. It is therefore important that the clause should enable these claims already in existence—not to be defeated, but to be met in the way they used to be met before 1874. If this Amendment is accepted, it will be accepted in the teeth of nine-tenths of the Representatives of the people of Scotland, and in the teeth of the wishes of the entire country.

MR. DILLON (Mayo, E.)

I strongly suggest that the hon. Members for Scotland should not allow the Government to proceed further with the Bill until the public have had an opportunity; of making their wishes known. We saw that this Bill was actually going to be allowed to lapse until public opinion outside became very strong, and we had better get a few days' further adjournment, in order that public opinion may have a similar effect on the Government in regard to this Amendment. The Bill has now reached a stage that it cannot be dropped, and if the Scotch Members have not sufficient force to defeat this Amendment, it might be worth consideration for them to postpone the discussion until some future day.

MR. A. R. D. ELLIOT (Roxburgh)

I am rather sorry to hear the remarks of the right hon. Gentleman the Leader of the House (Mr. W. H. Smith). I can hardly help thinking that if we understood the intention of the Bill more clearly we should not differ among ourselves, because it appears to me that what the Act of 1874 intended to do was to give some ready relief, and to read just the rights between the parties. It has not been denied by any person of authority that the ease in support of the Bill is that the action of the Act of 1874 was never contemplated by anybody at all, and it does seem to me unjust that the right should, under the circumstances, be enforced by the superior against the vassal. I can only say that if I saw any way to readjust even those payments which have actually been made, I should say it would be the proper thing to do. But that would be impossible. As, however, this section with which we are dealing applies merely to claims that are not made, and have not been paid, I think it just to support the Bill as it stands, and I hope that the Government will not alter it.

MR. WALLACE (Edinburgh, E.)

I think I have a right to be heard for a Few minutes on this matter, if for no other purpose than to correct an erroneous reference which has been made to myself by the hon. Baronet the Member for Ipswich (Sir Charles Dalrymple). I do not know where he found his material for the description he gave, for I have never opened, my lips against the Bill until this moment. It is quite true that an Amendment stood in my name for a short time in connection with the 1st clause of the Bill; but my attitude has never been one of opposition to the Bill. I entirely approve of its spirit, more particularly on the grounds which have drawn forth the opposition to it of my hon. Friend the Member for the St. Rollox Division of Glasgow (Mr. Caldwell), and also on the grounds on which the Amendment is supported by the right hon. Gentleman the First Lord of the Treasury (Mr. W. H. Smith). I am well aware of the exceeding importance of the example which the Government is setting. To me that is one of the great recommendations of the Bill. I am delighted that such a Bill should have been brought forward by a Tory Government, because I believe the principle will be followed in other matters to which I look forward in connection -with land legislation. I wish to be allowed to say, therefore, Sir, that my sole object in putting an Amendment for a time on the Paper was to obtain a hearing for the views held on a certain matter, which, as I thought, the constituency I represented desired to have made known. The City of Edinburgh stands in a very remarkable position in regard to its own superiorities. To a large extent the City, as I think will be acknowledged by the two lion, and learned Gentlemen opposite, is the superior of its own property. It is its own superior, and if it pleases it can have a certain arrangement with regard to the exaction of casualties, and providing there is unanimity, it would seem hard it should be interfered with from the outside. It may be considered an absurd arrangement by outside critics, but there would be no justification for their interfering with it. Therefore, for a time the Amendment stood in my name to give an opportunity, at the request of the city, to make an explanation to that extent. But, Sir, I began to discover that that unanimity did not exist. Information came to me that there was dissatisfaction, and therefore I abandoned the position I had taken up. But in all other respects with regard to the spirit and object of the Bill, it had always my most hearty approval, and I am one of its most thorough-going supporters. Therefore I oppose this Amendment.

MR. BIGGAR (Cavan, W.)

I do not know what course the Government really intend to take with regard to this Amendment. We have heard the opinion of the hon. and learned Solicitor General for Scotland (Mr. J. P. B. Robertson)—who evidently understands the subject—and we have have had an opinion from the right hon. Gentleman the First Lord of the Treasury (Mr. W. H. Smith), who says he knows nothing at all about the matter. Under these circumstances, I think the House would do well to decide in accordance with the opinion of the hon. and learned Gentleman who understands what he is talking about. The Government will put themselves in a position to give a bad opinion if it is discreet to do so, and I therefore think we are bound to vote against the Amendment, and support the Bill as introduced by the Government, incomplete though it may be.

Question put.

The Committee divided:—Ayes 73; Noes 37: Majority 36. — (Div. List, No. 372.)

Clause, as amended, agreed to.

Remaining Clauses and Preamble agreed to.

Bill reported; as amended, to be considered To-morrow.