HL Deb 21 June 1886 vol 307 cc17-21

Order of the Day for the Second Rending read.


, in moving that the Bill be now read a second time, said, that it was a highly technical one, which he believed had the general approval of the Legal Bodies of Edinburgh, with the exception of the Society of Writers to the Signet, from whom he had received a telegram, only half an hour ago, intimating their disapproval. The Bill was proposed with the view of amending the Act of 1874. The 1st clause—and to the rest, he thought, no exception would be taken—was intended to limit the right of the superior in the form in which it was limited prior to 1874. According to the law of Scotland, among the casualties or incidental rights attaching to the ownership of land, or, as it was called, an estate of superiority, was first relief, which was a year's feu duty (in addition to the ordinary feu duty), payable to a superior by the heir of a vassal on his succession to lands held in feu. The heir relieved the lands out of the supe- rior's hands into which they were held to fall by the vassal's death. Secondly, there was composition, the entry money or fine payable by a stranger or purchaser. Sometimes this was a matter of special agreement, otherwise it amounted to one year's rent. From the earliest times down to 1874 a conveyance or sale by a vassal did not entitle his superior to require the disponee or purchaser to obtain an entry from the superior, and to pay the year's rent which was exigible therefor upon the death of the vassal and the feu becoming vacant, if the purchaser could show that the heir—that was, the heir of the last entered vassal—was willing so to enter. Accordingly, where the heir was willing so to enter, the superior's right to exact a casualty was limited to a duplicand of the feu duty. The right to exact a composition was always regarded as a severe penalty; and it had this drawback—that it tended to prevent improvements, for the more the owner added to the value of his property the greater the penalty became. Prior to 1874 the completion of a title by entry with the superior, in cases alike of succession and of sale, necessitated the execution of a great number of deeds and instruments of different kinds. The main object of the Act of that year was to remove the necessity for those deeds, and, apparently, to leave the pecuniary relations of superior and vassal as to casualties to stand as they would have done if the deeds had actually been executed. It provided that a proprietor with a duly completed title should be held, as at the date of registration, to be "duly entered with his superior." It also provided that such implied entry should not entitle any superior to demand any casualty sooner than he could, either by the law prior to that Act or by the conditions of the feu right, have required the vassal to enter, or to pay such casualty irrespective of his entering. Those words negatived the view which was taken in some quarters, that the superior was intended to reap any pecuniary advantage from the change in the law made by the Act of 1874. The practical effect of the "implied entry" introduced in 1874 had been largely to increase the rights of superiors. It had been judicially held that a singular successor was not now entitled any longer to put forward the heir of the last entered vassal, and so to delay the necessity for his own entering, and paying the year's rent during the lifetime of that heir. It did not appear that the right to tender an heir for entry was ever looked upon as a grievance, and, besides, there was nothing in the Statute of 1874 to show that this was in any way the theory of its powers. Clause 1 of the present Bill was intended to limit the right of the superior in the way in which it was limited prior to 1874. If an heir could be put forward, the singular successor was to be entitled to put him forward as he previously might have done; and the unforeseen effect of that statute, which had largely increased the superior's casualties, would now be removed, and he and the vassal be placed as regarded the payment of casualties on the footing on which they stood prior to that Act. It might be said that the singular successor had his own remedy under the Act of 1874, and might redeem or commute his casualties as provided for under that Act. But that was not an answer to the argument that the result of the action of the statute in other respects had been to enhance the value of superiorities. If a proprietor by building had increased the value of his laud by £2,000 or £3,000 per annum, the original feu duty being £40 or £50, he had now to pay the whole £2,000 or £3,000 as composition, where he would formerly have been able to put the heir of the last vassal forward, and to have satisfied the superior's legal claims by a payment of the £40 or £50. He thought that no exception was likely to be taken to the other clauses of the Bill, which he could assure their Lordships was a just and proper one, and one which he would ask them to read a second time.

Moved, That the Bill be now read 2a."—(The Earl of Dalhousie)


in objecting to the Motion, said, that although the Bill had been described as involving a technical legal subject, he was afraid that it would be found to have a most serious practical effect. The real effect of the measure was very important, as it would deprive the lords of the manor of their just rights and dues over a large portion of their estates, and to hand over to the purchasers that which they had not purchased. The measure had passed very quietly through the House of Commons; indeed, so quietly, that very few persons in Scotland knew anything about it; and it was only in the House of Lords that effectual resistance could now be offered to it. The Bill was opposed by the Royal burghs of Edinburgh and Dundee, who were, to a very large extent, superiors of land, and they had borrowed money upon the security of the revenues which they derived from such land, and they now objected to a measure which would materially affect those revenues. He denied that the legal authorities in Scotland approved of the Bill as drafted; and, although the Faculty of Advocates in Edinburgh had doubtless approved of the principle of the Bill, yet they had sent up such a number of Amendments to it, that it would take a Committee several days to consider them. Beyond that, the Writers to the Signet had, by a very large majority, condemned the Bill. He maintained that the Act of 1874 was an equitable settlement, and that it was unjust that it should be disturbed now. He therefore asked their Lordships not to pass such a measure as this in the last few days of the Session.


said, that he certainly was not prepared to approve of the measure in its present form. He ventured to think that that Bill was not calculated to attain the ends which the Government had in view; but if certain portions of it were recast, and worded in a more precise manner, he should not offer any very great objection to its passing. The matter was one requiring very great consideration; and if that consideration could now have been given to it, he should not have been inclined to throw out the Bill. He would admit, with regard to the Act of 1874, that it contained some defects which required amendment; but in regard to a measure of that kind, coming before their Lordships at that time of the Session, it appeared to him to be utterly impracticable either to acquire the information that was necessary for the purpose of such legislation, or to put the Bill into such a shape as would render it proper for their Lordships' House to pass it.


said, that a measure had been introduced in the other House by a private Member for dealing with that subject, which was felt to be one on which some legislation was needed. That measure was objected to by the present Law Officers for Scotland and also by the Law Officers of the late Government, and it was thought to be perfectly unworkable. Nevertheless, the second reading was carried in the other House; and the Lord Advocate himself, therefore, introduced a measure on the subject, which was approved by the Scotch Law Officers of the late Government, and which passed through the House of Commons. He thought that it could not, under the circumstances, be justly alleged that the Bill had been brought in in breach of any understanding come to in 1874. Its object was to make the law what it was believed that Parliament had intended it should be. He said nothing now as to the difficulty of discussing its details at that period of the Session; but it seemed to him that that was a measure which had been quite fairly and properly introduced and passed through the House of Commons, there being a consensus of opinion that it wont in the direction of correcting an error which had crept into the legislation of 1874. It could not, therefore, be alleged, as had been the case, that it was an unjust Bill.


briefly replied.


said, he understood from the noble and learned Lord opposite (Lord Watson) that if Clause 1 was recast, and worded in a more precise manner, he should not take very great objection to the measure. He would admit that considerable opposition had been suddenly shown to the Bill by the Society of Writers to the Signet, and other important Bodies in Edinburgh, Dundee, and other places, at the last moment; but he felt so far supported by the noble and learned Lord opposite, that he was greatly tempted to ask the House to read the Bill a second time, undertaking to obviate the objection he had taken.

On Question? Resolved in the negative.