CONSIDERATION OF COMMONS AMENDMENTS. (Hansard, 11 August 1882)

THE EARL OF ROSEBERY
said, that several Amendments had been made by the House of Commons to this Bill, which he thought were in the nature of improvements. The first of these was one at the end of Clause 6. It had been suggested by a noble Lord opposite, and had reference to a practical matter. The proposition which came back to them was as follows:— When at least one-fourth part of a capital sum borrowed for improvements on an entailed estate upon the security of a terminable rent charge in manner provided by the Entail Acts 1491 shall have been defrayed by the heir in possession, it shall be lawful for such heir, without the consent of the nearest heir being required, and whether the cost of such improvements shall have been charged prior or subsequent to the passing of 'The Entail Amendment Act, 1875,' to avail himself of the provisions of the said Act for the substitution of a bond or disposition in security over the estate for the remainder of such capital sum. The next Amendment was in Clause 8, and its object was to provide for the granting of leases at reduced rates. There were at the present time provisions in the deeds of entail which forbade the leasing of any farm at a reduced rent. Their Lordships would agree that in the present state of agriculture it was undesirable to put such, a bar to the giving of fresh leases. Therefore, it was proposed by this Amendment to give the heirs of entail power to grant leases at reduced rents. Then there was an Amendment giving a minor power to move a charge from a disentailed estate to an entailed estate settled on the same line of heirs. He did not suppose their Lordships would have any objection to that; but in the Amendment he proposed to ask their Lordships to substitute the word "recording" for "execution." The Amendment, with that alteration, would read thus— If the heir-apparent, or other nearest heir, whose consent is required as aforesaid, shall have assigned his expectancy or interest, and the assignee shall have intimated the assignation to the heirs in possession for the time being at any time prior to the recording of the instrument of disentail, such assignee shall be entitled to appear at any time prior to such recording, and to demand that the value in money of such expectancy or interest shall be ascertained and shall be entitled to a preference upon such value, according to the date of the intimation of his resignation, and such preference shall be given effect to in his favour when the value of such expectancy or interest is paid or secured. That Amendment had been inserted at the instance of several influential bodies in Scotland. By the Act of 1853 the creditor might be placed in the position at any time of finding that the disentail had been executed without his knowledge. The object of the Amendment was to enable the creditors of an heir-apparent who had raised his money to have preference over the other creditors, according to the date of the debts. The next two Amendments were merely draftsman's Amendments; and then 1492 they came to Clause 15, page 6, line 5, which regarded the question of marriage contracts made previous to the passage of this Act. They then came to the clause relating to the creditors of the heir of the property disentailed. On this point there had been considerable diversity of opinion in this House, as their Lordships would remember. The 1st clause was, as their Lordships were aware, defeated by a majority of 5 in a somewhat full House. Since that time they had adopted an Amendment moved by the noble Lord, whom he was sorry not to see in his place (Lord Balfour of Burleigh), which limited the question of debts to debts incurred after the passing of this Act. That ought to meet the difficulties of noble Lords opposite. It did not, he confessed, meet their difficulties on Report; but he submitted that, on Consideration, seeing that the passing of the measure had the unanimous consent of the Conservative Members, in deference to the opinion of the constituencies as represented by the House of Commons, they should not be disposed to press the opposition which they had carried by a small majority on the Amendment. There was also another objection to the clause, and he confessed he considered it a reasonable one. A noble Lord, whose experience and authority in law was exceedingly high, thought that in the working out of the Amendment the procedure would be difficult. In accordance with other lawyers of weight and authority, the Lord Advocate and Her Majesty's Law Officers in Scotland had drafted a course of procedure which, he was given to understand, met the objections of those whose opinions were entitled to respect in this matter. He, therefore, hoped their Lordships would, also agree to the Amendment. Then they had lengthened the period of time during which they might demand a sale by auction, which he thought their Lordships also considered an improvement. The last three Amendments were simply Amendments giving greater latitude in securing provision for the wives and children, and other provisions of that sort, where the estate was going to be converted. Their Lordships would be of opinion that these Amendments were substantial improvements in the body of the Bill, and he would ask them to give their approval to them.

THE DUKE OF BUCCLEUCH
said, he was not now going to make any objection to the Amendments which had been proposed, and to which they were asked now to consent; but, at the same time, he must make one remark—that Clause 15, dealing with the power of creditors, was twice discussed in this House, and in the first instance it was struck out of the Bill by a majority of 5. The noble Earl opposite (the Earl of Rosebery) tried to re-introduce that clause in almost identical words, except that he put in in respect of debt incurred after the passing of this Act. If he (the Duke of Buccleuch) recollected rightly, they were almost the only alterations in the clause he proposed. That was discussed fully in this House, and negatived by a majority of 15, being 10 more than on the previous occasion. It seemed very extraordinary that a particular clause which had been twice discussed in this House, and twice had gone through the ordeal of a division and lost, should be deliberately re-introduced in the other House as if it were for the purpose of creating a difficulty between the two Houses, or, what was too much the fashion now-a-days, to bring pressure upon this House, which he protested against, and always would. The Amendment brought up from the other House was certainly an improvement on the original Clause 15, which was thrown out here; but, at the same time, he must protest, though in the present state of the House, and in the last days of the Session, it was no use attempting to divide. Unfortunately, also, there was no one on his side of the House who could speak with authority like the noble and learned Lord (Lord Watson), who spoke the other night, and who was perfectly conversant with this matter, and the noble and learned Earl (Earl Cairns), who also took a great interest in the matter. He (the Duke of Buccleuch) should certainly object to the Amendment, and protest against the course which had been adopted in bringing it forward again. It looked very much like that sort of legislation which he had observed during the long time he had sat in this House, where very often a general measure was introduced to 1494 meet a particular case. It looked as if there were some particular case here, and this general measure was brought in to meet it. He should certainly say "Not-Content" to that clause, though, as he said, he would not put their Lordships to the trouble of dividing; but he was sure that many noble Lords who took part in the discussion the other night were not present because they had no idea that the matter would be under discussion.

THE LORD CHANCELLOR
said, he really thought the noble Duke could not be serious in his statement that it was a disrespect to this House for the Commons to differ from their decision on a particular clause of any Bill sent down by this House to the House of Commons, any more than it was necessarily disrespectful to the House of Commons for this House to differ from them. As to the noble Duke's suggestion that this clause might be intended to meet a particular case, this was the first time he had heard it made. No such suggestion was made on the former occasion, and he (the Lord Chancellor) then very strongly advocated the clause on what seemed to him to be a question of clear general principle, which was that of treating the power to disentail as equivalent to property, whether the owner of the entailed, estate wished himself to exercise it or not, when there were not other means of paying his debts. He felt sure that if the Bill had passed into law without some such clause as this, not many years would elapse before it would be found necessary to add such a clause.

THE EARL OF ROSEBERY
said, the noble Duke had made a very good protest against what had occurred in this matter; and, for his part, he was quite content to take it as a record of the opinion of the noble Duke. The Amendment had been moved by a highly-respected Member on the Conservative side of the House; and it did seem difficult to please the noble Lord, if, when the Government brought in a clause it was defeated by a majority of 5, and when another clause was brought in by the noble Lord opposite, it was defeated by a majority of 15. He thought the Government had clean hands in that matter. The Bill went down to the House of Commons, and that House, without one single dissenting voice, had 1495 insisted upon putting this clause into the Bill. That had been done by the other House, consisting of 658 Members, without one dissenting voice.

THE DUKE OF BUCCLEUCH
At what hour in the morning?

THE EARL OF ROSEBERY
said, he really could not say; he was not there with a stop-watch in his hand. All he could say was, that a House of 658 Members agreed to this clause, which had been rejected in this House by a majority of 5, and the noble Duke said that under these circumstances it was an insult to this House to re-introduce the Amendment to their Lordships. He (the Earl of Rosebery) thought the House of Commons had some reason to complain that their 658 voices were not to be taken as weighing against a majority of 5 in their Lordships' House. As regarded the curious insinuation that this was a general measure introduced to meet a particular case, he could only say that, for his part, he did not know of any particular case which it would meet, and he had never heard of any such case.

LORD ELLENBOROUGH
said, he understood the noble Duke's protest to be in regard to the lateness of the Session when this measure was brought on.

THE EARL OF ROSEBERY
replied, that there had been noble Lords in the House yesterday who, if they had had any strong feeling in the matter, would have remained till to-day.