HL Deb 03 July 1873 vol 216 cc1686-93

(The Lord Chancellor.)

(NO. 141.) SECOND READING.

Order of the Day for the Second Reading, read.

THE LORD CHANCELLOR,

in moving that the Bill be now read the second time, said, he took it for granted that for those of their Lordships who had land in Scotland, it was not necessary for him to go into minute particulars respecting the existing law of land rights and conveyancing in Scotland. He felt bound, however, to snake some observations in respect to those peculiarities for the information of those of their Lordships who might have had no opportunity of becoming practically acquainted with the subject. The clauses most likely to excite difference of opinion affected the relations between superiors and vassals with respect to feus. A large extent of property in Scotland was held under this tenure, and the Bill proposed to abolish expensive and unnecessary forms now attending every change of feuar, whether by death or sale—namely, renewal of investiture and charters and writs by progress. It also reduced the period within which the rights of any person to succession as heir might be challenged from 40 to 20 years; it provided for the commutation of existing casualties; and it prohibited the creation in future of casualties in feus. The Bill likewise abolished the distinction between fees of heritage and fees of conquest, and provided simpler forms of conveyance, as to the clauses providing which he thought there might be also possibly some difference of opinion. Whatever objections might, however, be raised to the details of the measure, he did not know that there could be any question as to the objects of the Bill. He did not suppose any of their Lordships who had had a practical acquaintance with the subject would deny that there was a great need in Scotland for facilitating the transfer of land and for making changes in the law relating to land rights and conveyancing. This was the main object of the Bill. The measure was based upon the recommendations of the Royal Commission which sat upon the subject some years ago, so that the proposed changes in the law had been before the country for several years. It had been said that some of the proposals in the Bill if passed into law would not work well, and that some difficulties would arise. Under the present law, there were many similar difficulties, and he was convinced that these difficulties would be diminished, and not increased by the changes which the Bill proposed. The Bill had been a long time under consideration, and it had been very carefully prepared; and if there were faults in the measure they could be easily remedied in Committee. On the whole, he thought he could safely recommend the Bill to the favourable consideration of their Lordships.

Moved, "That the Bill be now read 2a."—(The Lord Chancellor.)

LORD COLONSAY

said, he fully agreed in the propriety of making certain changes in the existing law. He approved generally of what his noble and learned Friend on the Woolsack stated to be the two leading objects of this measure—namely, to dispense with what were called charters by progress, and to enable persons holding property by feu tenure to redeem what were called the casualties of superiority. So far, the measure would be in accordance with the Report of the Royal Commission in 1838, and would, he believed, meet with general approval in Scotland. He expressed general approval also of certain other provisions in the Bill. But as to the clauses by which it was proposed to carry out these objects, considerable amendment might be necessary. The Bill, however, went far beyond the objects to which he had referred. It contained provisions calculated to subvert the relations of superior and vassal—to unsettle the whole system of land tenure in Scotland, and to introduce confusion and uncertainty as to titles. The existing system was well understood—conveyancers were familiar with it; but if the whole system of land tenure in the country was to be suddenly uprooted, confusion would be inevitable. The Royal Commission referred to, comprehended men of great eminence and qualifications for the task, and they reported very decidedly against what was now proposed to be done, and pointed out some of the serious evils to which it would lead. The bodies in Scotland whose members were most conversant with the subject, and best qualified to judge, were decidedly opposed to it. He had presented Petitions from several of these bodies and from other bodies and parties, some of whom were largely interested, praying that no such interference with the tenure of land should be sanctioned, or, at least, not without full inquiry by a Royal Commission. Several deputations from various parts of Scotland had waited on him, urging the same views. One of the results of this interference with tenure would be the substitution of leases for fens. That was pointed out by the Royal Commission, and was confirmed by the recently expressed opinions of those most conversant with feuing transactions; and it was well known that those who desired to acquire small portions of land for building purposes in Scotland, greatly preferred feus, which gave a perpetual right of property, to leases which gave only a temporary right. Feu duties were themselves valuable property, and a convenient and favourite investment, especially for educational or religious endowments. One of the Petitions he had presented was from an endowment society holding feu duties to the extent of nearly £20,000 per annum. He had also presented Petitions from banks, insurance companies, and other holders of feu duties, as investments or securities. Some of these Petitions stated, and he had been informed from other sources, that since the scheme of this Bill had been ventilated, that valuable class of property had fallen greatly in the market. He hoped the Government would not, without inquiry, persevere in a course of legislation so unnecessary and unpalatable, already condemned by a Royal Commission, and also by those best qualified to form an opinion on the subject, and not asked for or desired by any class of the community. The Royal Commission had recommended various improvements on conveyancing to be introduced gradually. He had when Lord Advocate introduced measures for effecting some of these improvements. His successors in office had followed the same course. Nothing now remained necessary to be done but to carry into effect the other two recommendations of the Commissioners already mentioned. If this Bill were confined to these objects and some of the minor points of which he had expressed approval, it would be a beneficial measure and would give general satisfaction in Scotland, instead of being as it now presented itself most obnoxious. Another part of the Bill to which he strongly objected, was that which had for its object to do away with the system of service of heirs. It might effect some saving of expense on succession, but in cases of transfer and mortgage it would necessitate an investigation of title at every transaction, which would on the whole cause greater expense. It would introduce uncertainty and insecurity as to title, and diminish the value of property.

THE DUKE OF ARGYLL

said, that notwithstanding the extreme technicality of the measure to unlearned persons, he hoped their Lordships would allow him, a layman interested in property in Scotland, to say a few words in favour of the Bill. He believed there was not a layman in that House who could not, with a lawyer at his elbow, master the provisions of the Bill in an hour. He entirely concurred with his noble and learned Friend (Lord Colonsay) as to the mischief and danger of damaging in any respect the feudal tenure in Scotland, which was one of the most popular tenures in the country. It was a valuable security and a valuable investment, and cautious men like Scotchmen rather rebelled against the shorter tenures which were common in England. Many of their Lordships had no doubt heard the story of the Scotchman who was offered a 999 years' lease, and made an urgent appeal that it might be extended to 1,000, and on being laughed at, shook his head and said—"Time soon slips awa'."No doubt, there was a reluctance on the part of Scotchmen to build houses or invest money on anything short of a perpetual tenure, and therefore it was by no means only in the interest of superiors that the House ought to guard this tenure. Most of their Lordships were in the position of superiors; many were in the position of feudals; and if it were really true that a Bill of that kind would materially injure the rights of superiors, it would undoubtedly act upon the value of land in Scotland, because it would be unpopular with proprietors to give that particular form of tenure. He entirely agreed that they ought to preserve, as far as they could consistently with the object which they all had in view—namely, to simplify tenures and cheapen processes—all the essential securities of the feu tenure. The objections which his noble and learned Friend had brought against the Bill seemed all to be objections that could be dealt with in Committee; but even on the second reading, it might be well to point out the weakness of his objection to the 3rd clause. That clause purported to give a new and short definition of feu tenure, and he (the Duke of Argyll) admitted at once that any attempt to give abstract definitions of property must always involve some risk; but after reading the clause over and over again in the interest of superiors, and knowing that that was one of the points chiefly objected to by the legal profession in Scotland, it appeared to him to take in every service and every duty, for it said— From and after the passing of this Act an estate of superiority shall consist of the right to the feu-duties, services, and casualties, which are by law or covenant incident to a feu. The objection of the noble and learned Lord was that it did not include all duties; but if it did not, words could easily be inserted in Committee to remedy the defect, and if the noble and learned Lord chose to propose an addition to the clause, the Government would have no objection. He knew of cases of persons who held estates under his family, where the superiors were entitled to many rights which had become absolutely obsolete—as, for instance, a number of gentlemen were bound by the feu to keep six-oared boats to enable the Earl of Argyll to cross certain ferries. Again, one of the rights of superiors which would be interfered with by the Bill was that of defending the feu against the invasion of third persons. Was that a valuable right to preserve? He was involved once in litigation of that kind, and so far from being regarded by hint as a privilege to be coveted, he looked upon it as a damnosa hœreditas. Again, it was the right of the superior to make roads, fences, drains, and so on for the feuar, but he had never heard of such a right being claimed. If the superior reserved to himself to do those things, of course he would have to do them; but under ordinary conditions, the superior had no more right to enter upon his vassal's land than to enter upon that of any other proprietor, and he had never heard an instance of a superior attempting to enforce a right to construct roads, drains, or fences, even where it would be greatly to his interest to do so. Those were matters mentioned by the noble and learned Lord as rights which would not be covered by the Bill; but if they were valuable rights, he maintained that they would be covered by the words of the 3rd clause. He could not say that he, as a superior, was in the least alarmed by any instances which his noble and learned Friend had given, where the rights of superiors would be liable to be invaded if the Bill passed. There were other portions of the Bill to which the noble and learned Lord had referred that were obviously mere questions of detail, and of those, the question of the recovery of duties and services was one. He could only say that he had looked very closely at the Bill, and having heard what the noble and learned Lord had to say, he was wholly unable to see the dangers which had been pointed out by his noble and learned Friend as involved in any one of the clauses to which he had drawn attention. It appeared to him that if the Bill were allowed to go into Committee, whatever objections were entertained to particular parts of the Bill by the noble and learned Lord might be there dealt with, and if it were thought necessary, a remedy might be applied. He trusted therefore that the House would not object to the second reading of the Bill—especially as there was so much in it which the noble and learned Lord had admitted to be valuable, and if any alterations were really required the House could make them in Committee.

LORD CAIRNS

said, the noble Duke (the Duke of Argyll) had not answered any of the objections which had been pointed out by his noble and learned Friend behind him (Lord Colonsay), and he would suggest that the clauses which were objected to should, in Committee, be omitted from the Bill.

THE LORD CHANCELLOR

admitted that his noble and learned Friend (Lord Colonsay) was entitled to speak with great authority on that subject, and whatever fell from him on such a question would have due weight with their Lordship's House. He thought, however, that the noble and learned Lord had misapprehended the object of the Bill in regard to certain points on which he had offered objections. Nothing could be more foreign to the intention of the Bill than to discourage feus, or the system of holdings that was now in existence. On the contrary, he was of opinion that it would tend much to their encouragement. With regard to the 3rd clause, he thought it was amply guarded by the Proviso, that a lawful reservation of any right, other than feu duties, services, and casualties, contained in a grant or conveyance of land shall import an estate of property to the extent of the right reserved. If, with respect to that portion of the Proviso in which the words "an estate of property" occurred, it should be thought by their Lordships that those words were not happily conceived, nothing could be more easy than to modify them in Committee. In Clauses 5, 23, and 24, most ample provision was made in respect of all feu-duties created after the passing of the Bill, for placing on record every species of covenant or condition which in any respect qualified the feu. The noble and learned Lord had referred to the section which enabled a superior to merge his estate of superiority in the estate of property, by a process like that which in England was called enfranchisement; but it struck him (the Lord Chancellor) that the objection was one that applied to the substance more than to the form of the clause. The question seemed to be in reality whether it was best when the superior acquired a title to the property of the land, and so united his interest with that of the feuar, the title of superiority should remain, or whether it should be merged in the property and extinguished. As regarded the 15th clause, it was only carrying out the great object of the Bill, which was to afford greater facilities than at present to the feuar, and to relieve him from inconvenient burdens. If the right to enter was given to the superior, he had not only the same right as every landlord had in the case of his tenant, but the same right which existed in England when land was sold, reserving a perpetual rent. This was a very com- mon form of contract at the present time especially in Lancashire. With respect to the objection taken by his noble and learned Friend to the 37th clause of the Bill, it was that it gave the powers mentioned therein to an individual Judge, and not to the Court of Session. Of course, if it were thought better that the powers should not be given to any particular Judge, the alteration was one that might easily be made, but the powers themselves were closely analogous to those which were given in England by the Leases and Sales of Settled Estates Act; where, however, they were always exercised by a single Judge. He was much gratified when he heard the noble and learned Lord speak of the great importance of the Bill, and he had no doubt it would be found when the Bill got into Committee, that those portions of the measure that were objected to bore but a small proportion to the other parts which would be regarded by their Lordships as highly valuable. Whatever objections there were to the Bill could be readily considered and dealt with in Committee, and he trusted therefore that their Lordships would consent to read the Bill a second time.

Motion agreed to.

Bill read 2a accordingly; and committed to a Committee of the Whole House on Tuesday the 15th instant.

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