§ Order of the Day for receiving the Report of Amendments read.
§ Moved, "That the Report be now received."—(The Lord Chancellor.)
LORD DENMANsaid, he rose to move—according to Notice—that the Report be received that day six months. The Bill before their Lordships included the Bill for the succession to real property, brought in from "another place" several years ago, but never revived till now. He believed that the compulsory division of land on intestacy would do more harm than good. He, in the year 1835, had met a family in France, consisting of five, and one of them said—"On our parents' death, I must by law have an equal share of their property." He had inquired for them lately, and had only just heard that three of them survived, and that a mill possessed by the parents had been sold, and was now desolate. He was sure that one of them could have carried it on. He would go and inquire into the facts. He did not think their Lordships wished to turn executors into heirs, with a sort of gavelkind to control them. His lamented Predecessor had written—in 1832, in a letter to Mr. Mervale—that by disturbing the largest properties, the smallest properties would be endangered, and an agrarian law, causing change every month, week, or day, would be introduced. He found that Lord Tennyson's poem, "Love thou thy Land!" had been recited at the Eton speeches, on 4th June. He had copied it out from memory, and could recite it to their Lordships, if they should wish it. He was sure if their Lordships acted on the advice contained in that poem that they would never err in legislation. He wished the Report could be delayed for three months; and he would give their Lordships the result of his inquiries. He tried to find a Teller, but failed.
§ Amendment moved, to leave out ("now,") and add at the end of the Motion ("this day three months").—(The Lord Denman.)
§ THE LORD CHANCELLOR (Lord HALSBURY)Will the noble Lord name a co-Teller?
§ Amendment (by leave of the House) withdrawn.
§ Report of Amendments received accordingly.
§ Clause 2 (Registration required to carry legal estate).
§ LORD HERSCHELLsaid, he moved to leave out words rendering the trouble and expense of a second registration after purchase unnecessary. As the Bill was drawn, it rendered two registrations necessary after the law became compulsory. He apprehended that, that condition would in many cases prevent sales, and he failed to see that anything more could be necessary than to compel registration on the sale.
§ Amendment moved, in page 2, line 7, to leave out from ("specified") to the second ("the") in line 10).—(The Lord Herschell.)
§ LORD HALSBURYsaid, he did not know that he had anything to add to what he had already said on this point. The matter was in their Lordships' hands, and they had already decided against the proposal by a majority of 40 to 16. After carefully considering the question, he could not see any objection to that provision of the Bill as to complete registration. No additional burden was thrown on the owner of the land, and compliance with the Bill would simplify the present cumbrous system. The object of the measure was to compel registration in every way possible, and, consequently, it was provided that if a person only sold a part, he should register the whole.
THE EARL OF KIMBERLEYsaid, he was convinced that so far as this clause had operation it might inflict considerable hardship. If a landowner did not register the whole of his property at the time he disposed of a piece, that would necessitate double registration, double expense, and double trouble. It was 16 perfectly fair that when the land changed hands the registration should be compulsory; but he did think that they should be very careful not to put upon men who had no idea of disposing of their property the expense of registration merely for the sake of posterity.
§ On Question "That the words proposed to be left out stand part of the Bill?"
§ Their Lordships divided:—Contents 73; Not-Contents 67; Majority 6.
§ Amendment disagreed to.
§ Clause agreed to.
§ Clause 39 (Succession to real estate on intestacy).
§ THE EARL OF FEVERSHAMsaid, he would move to omit the clause, which provided that on the death of any person intestate as to any real estate, that real estate should be divisible among the same persons as if it were personal estate, subject to certain provisoes giving right of survivorship to husbands and wives in each other's real estate. In Committee on this Bill he ventured to make some observations in opposition to this clause, and, considering the nature of the clause and the important Constitutional principle involved in it, he was not without some hope that the Government might have seen their way to withdraw it. A sense of duty, therefore, compelled him to explain, as shortly as he could, the reasons he had for moving the omission of it. This proposal was open to two very grave objections. The first was, that so far from having a beneficial effect upon the various classes affected by it, it would do no good but harm; the second was the great and important change it made upon the system of the devolution of landed estate, which brought it out of harmony and made it inconsistent with the Constitution. Now, with regard to the first objection, there had not been any demand for this measure from any body of the landed classes. The usual mode by which they gauged public opinion had not shown itself. Where were the Petitions in support of it; and was it right that they should make such a change in the law, unless they were satisfied that the landed interest was in favour of it? This proposal would affect three classes. The large landed proprietors, no doubt, would not, as long as the Laws of Settlement and Entail were maintained, be affected to the same extent; but no pro 17 vision with regard to them had been made to meet the case of either lunatics or minors. The result would be, that if a lunatic or minor died who was last in entail, the property would be divided in accordance with this clause. Was it their Lordships' wish that honours, titles, and Peerages should be inherited, and all the property which had descended from generation to generation should be cut up and divided and sub-divided? Was such a proposal likely to be to the advantage of the landed interest of this country, or conduce to the honour and dignity of their Lordships' House? Would it be in accordance with the spirit of our mixed Constitution? Would it be of any practical benefit to anybody? The next class that this clause would affect disadvantageously was the small landed proprietor—the yeoman of the country. Take a proprietor living on his own farm and cultivating it. He and his family had inherited it for generations, he had been content to do without the assistance of a lawyer, and he had not made a will. This Bill passed, he died, and the property was cut up and divided into several portions. But there was only one house, there was only one homestead; therefore, unless the farm was worked as a whole, the value of the property would be seriously depreciated. The result would be that it would be sold to some larger proprietor, probably, and this ancient yeoman family, the backbone of the country, was obliterated. Or, if the attempt was made to cultivate the several portions by different persons, the inconvenience would be great, and the cause of agriculture, already only too suffering, would be further injured. Coming to the third class of proprietors, the small freeholders of the country, possessors of a cottage and garden, or in some cases of one or more acres of land, these were a class of people who did not make Mills as a rule; at all events, they had been satisfied with the law which did not require it. They preferred not to go to the expense of legal advice, and in their case they died intestate not unfrequently, and how was their property to be divided? It could not be divided. The house and the garden were scarcely large enough, and if they cut up their cow-keeping they depreciated their property, and it 18 came into the market and was bought up. And, again, this small freeholder's property, just as the landowner's or yeoman's was broken up. Was this desirable, was this politic, was this prudent? They were the backbone of the country. They were classes of men who were, in no Party sense, the true Conservative element of the Constitution, who would rally to their standard in time of war, who would be the foremost to maintain law and order in time of peace. The other great objection to this proposal was, that it would make the Law of Succession to real property out of harmony with the Constitutional system of this country. He was supported, in that view by very high authorities both in that and the other House of Parliament. He understood the noble Marquess the Prime Minister to say the other night that this proposal had been opposed by the Party of which he was the head as long as it formed a Party question, but that was not now the case. But he (the Earl of Feversham) would refer his noble Friend to the opinions of those sitting on both sides of the House who supported the view he took. He found that the late Lord Brougham, who had introduced a Bill upon the transfer of real estate, said—
Some persons were desirous of altering the laws relating to land by attacking the law of primogeniture; but he thought that law was sound in principle, and any alteration of it would inflict a fatal blow upon the British Constitution. That law was well suited both to give proprietors a power of dealing with their property and to support the aristocratic branch of our mixed Constitution by a power of entailing within certain not very large limits. He was not apt to be an alarmist, but holding our Constitution to be essentially a mixed one, whatever anyone might think of the possibility of getting a better system or purer Constitution, he was perfectly certain that the system, as it now stood, had worked well, and did still work well, to secure at once the liberties of the people and the stability of our institutions. Any interference with the law of primogeniture would inflict an injury on our mixed Constitution, which those who aided or permitted such an attempt would probably be the first to repent of having either helped or suffered.Sir George Cornewall Lewis said in the debate in the House of Commons in 1859—It had been argued on both sides of the question as if this were a narrow and limited Bill, as if it did not affect the whole mass of real property; but would in its operations be 19 only confined to a small portion of that class of proprietors. As he understood the Bill, its effect would he to assimilate the law of descent of real property to that of personal property. The effect would be to extinguish that class of persons who were denominated as heirs. There would be no such thing as inheritance. No person hereafter would be heir to landed property. That he apprehended would clearly be the effect of the Bill. If this Bill became law the natural feeling would be entirely inverted; a person who made a marriage settlement according to the present system of marriage settlements would be robbing the younger children of the rights which the common law would give them. The House had to consider what would be not only the economical but the political effects in this country of distributing real property equally among all the children.On the same occasion Lord Palmerston said he objected to the Bill on every possible ground, declaring it to be at variance with the habits, customs, and feelings of the people of this country and incompatible with the maintenance of a Constitutional Monarchy. In the debate in 1866, Lord Selborne, then Attorney General, said—If the policy of the law be wrong, injustice may be inflicted as much in cases of wills and family settlements as in the case of omission through accident to make a will. But really the question we have to consider is one of public policy, and in questions of public policy the burden of proof is on those who propose to alter a particular institution of the country. But I have no objection to examine the state of the law, and to contend that the law of primogeniture is not inexpedient. It is not arbitrary, because the greatest freedom of action over property is' allowed. I cannot help thinking that it would not be desirable that there should be a general system of division of estates. It seems to me that considerable benefits have always arisen and do arise in this country from keeping landed property together. By means of this system the duties of property are handed down and are better performed; there is more family and hereditary interest felt in the welfare of labourers and tenants, and improvements in land are made on a larger prospect, with a greater interest in their permanence. The class composed of the owners of landed property stand between the Crown and the lower orders, supporting the Throne and the higher institutions of the country, and at the same time maintaining excellent relations with those below them. The existing gradations of society in this country, including the hereditary peerage, are in harmony with this state of the law, and the maintenance of that graduated scale of society has been in times past of essential importance to public liberty.He thought that he might say he was fortified in the course he ventured to take, and, in the opinions he had expressed, by very high and distinguished authority. He might be told that cir 20 cumstances had changed since those opinions were uttered. How had they changed? We had admitted, no doubt, the working classes to the franchise, and had given them a large share in political power; but was that any reason why we were not to consider the position and interests of other classes? He maintained, notwithstanding what they had done, that this Constitution of ours was still a mixed Constitution, and that it would be an evil day for the country when the upper and middle classes lost their share of political power, and were unable to exercise their just and legitimate influence in the country. It was because he felt that this clause did, in principle and in operation, undermine the Constitutional system of this country—that limited and liberal Constitution which was the glory of England and the envy of the world—that he begged to move that the clause be omitted from the Bill.
§ LORD ABINGER, in seconding the Motion, said, he thought that the Bill had been misnamed. Instead of being called a Land Transfer Bill, it should have been entitled a Bill for the destruction of Primogeniture and other Privileges. The subject of land transfer was of sufficient importance to be dealt with in a separate Bill; and the noble and learned Lord Chancellor would be acting wisely, at that period of the Session, if he abandoned the whole of the fourth part of the Bill as not being germane to the measure. If it were intended to abolish the principle of primogeniture, it should be done not by a technical clause in a so-called Land Transfer Bill, but by a measure introduced for the express purpose of abolishing the existing system. Should the noble and learned Lord decide on not adopting that course, he (the Earl of Feversham) was satisfied that it would meet with considerable opposition in the other House of Parliament. The whole law relating to wills also required modification; and he could not give a better example of the difficulties which those who attempted to make their own wills had to encounter than what had occurred to himself. One night, after the death of his father, he suddenly woke up at 3 o'clock in the morning, and remembered that he had not made his will, and he thereupon got out of bed and 21 drew up a will. The following morning he took the will to a lawyer, and asked whether it was properly drawn. The lawyer said that it would not effect its object at all. That was the way some people thought they were effecting a particular object, and they died in the odour of sanctity, and found that their object was not accomplished. There could be no doubt that their Lordships hold a very high position in the country, and why? Not because they were the descendants of persons who might have been distinguished, but because, socially, they held such a position that everyone in the land knew they could neither be intimidated nor corrupted. Their Lordships should be very careful how they acted, and should not interfere with laws which had lasted so many years, and had worked so well for the country generally. He hoped his noble Friend (the Earl of Feversham) would press his Amendment to a Division.
§ Moved, in page 19, line 29, to omit Clause 39.—(The Earl of Feversham.
§ THE MARQUESS OF SALISBURYsaid, that if he were to pass a criticism on the speeches of his two noble Friends, it would only be to say that they were pitched in too high a key, and dealt with questions not in the least degree affected by the measure before the House. He (the Marquess of Salisbury) entirely agreed with the general principles laid down by his noble Friend (the Earl of Feversham), and he should be exceedingly sorry to see the practice of devolving the land on the eldest son discontinued, believing, as he did, that any contrary practice would have an injurious effect upon society. He thought, however, that it was most likely to continue. But the question was, How would this Bill bring upon us the dangers of which his noble Friends were afraid? There was one expression which dropped from his noble Friend who moved the omission of the clause, which threw a light upon the difference between his noble Friend and himself. His noble Friend said it was a great hardship for a man to make a will. Now he (the Marquess of Salisbury) took a different view.
§ THE EARL OF FEVERSHAMsaid, that the noble Marquess had quite misunderstood him.
§ THE MARQUESS OF SALISBURYsaid, that his opinion was very strong that it was the duty of everyone to make a will, and that those who did not deserved very little, or absolutely no consideration, at our hands. He could not agree with his noble Friend who had seconded the Amendment (Lord Abinger), that it was at all difficult to make a will. If a man tried to be a lawyer, and made use of legal expressions, he was likely to get into trouble; but if he expressed himself plainly, and as if he were speaking to a friend, he was not likely to experience any difficulty. Intestates very generally belonged to a comparatively poor class, and were not likely, as was the case with his noble Friend, to have property in Scotland and to live in London. His noble Friend had spoken of the difficulty he found in making the Law of Entail applicable to his own son. No doubt, there were great difficulties in the Law of Entail, and one of the objections to it was that the devolution might take effect in a different manner from what was intended. At the time when Lord Brougham deprecated any interference with intestates, that class was numerous, because the art of writing was then comparatively rare. Though there were a great many people who could write, there were a great many also who could not. But since then education had made great progress, and there were few now who would find any difficulty in making their wills from inability to write. The number of persons who were innocent intestates—he meant intestates not through their own fault—was becoming very small. The law did not make for them, at present, the kind of will which most people would be anxious to make; because very few would wish to leave the whole of their property to one son. There was that balance to be established. He quite admitted that the great authorities quoted by his noble Friend were right when they said that the inconveniences which would be produced by altering the law would be so great that the law ought not to be altered. But, with the progress of time and the increase of culture, the force of that argument vanished, and we had now arrived at a period when it was no longer necessary to have the same consideration for innocent or involuntary intestacy. 23 There was nothing to induce us to continue a provision which occasionally caused inconvenience of a serious kind. He was unable to treat this matter as one of the great importance which his noble Friends attached to it. He did not think what was now proposed would affect the devolution of property in this country in the slightest degree. His noble Friend (The Earl of Foversham) talked of the presumption and sanction of the law influencing the testator, so that he would no longer settle his land upon his eldest son. He thought his noble Friend exaggerated very much the effect of a Parliamentary sanction. He did not know whether their Lordships had noticed the effect of the laws abolishing dower. That was one of the most remarkable instances in the history of the English law of the powerlessness of the law in affecting the feelings and action of the people. For the last three centuries he believed that the instances were exceedingly rare in which the presumption of the law in that respect had been allowed to operate. That law lay like a derelict upon the waters. Men always preferred some other provision for the wife than the law made for her. So all that was proposed by the Bill before the House was, that if men would not make wills with all the facilities afforded them, the law would make that disposition of their property which was most convenient to its machinery. Further, it was by no means irrelevant to introduce this provision in a Land Transfer Bill. The Bill would be imperfect and incomplete without it. He believed that in itself this was a matter of small importance, and that it would not produce the dispersion of large estates, or the abandonment of the practice of primogeniture. He did not believe that there was any danger that these things would happen. But still at the same time it was not desirable to make this change merely for a theoretical reason. Where, however, great practical convenience was presented, and it appeared to be a very important part in facilitating land transfer, it would be unfortunate if his noble Friend persuaded the House to reject the clause. He could not help saying, in conclusion, that he greatly doubted, if the noble Earl and his Friends succeeded, whe- 24 ther they could cling to their victory for any considerable number of years. That was a consideration on which he would not dwell; but they must watch the current of opinion outside. He did not say that they should slavishly bend to it; but they ought not to take an accidental opportunity of resisting it or delaying it, unless they were well satisfied that they could carry out that resistance to the end. He believed that the clause would be useful for the purpose of facilitating the operation of the Bill, and he should vote for it.
§ EARL BEAUCHAMPsaid, that something might have been said for this clause if it had been simply a clause of pains and penalties against those who had failed to make their wills. The clause, however, went further, and contained a harsh and cruel provision for the division of estates in cases where no provision could have been made to meet the difficulties in a way which seemed to be attended with considerable danger. He believed that some advantage might, perhaps, be derived from substituting tenancy in fee simple for tenancy in tail, provided that the interests of infants and lunatics were safeguarded.
§ LORD HALSBURYsaid, that he had an Amendment on the Paper which, he thought, would meet the objection of the noble Earl. The words which he proposed to insert would make the section read thus—
This section shall not apply to any real estate of a person being an infant or a lunatic at the passing of this Act, and thenceforward until his death, or being an infant at the passing of this Act and becoming before the age of twenty-one years and remaining thenceforward until his death a lunatic, if the infant or lunatic either was seized in fee simple in possession of the real estate at the passing of this Act, or is or becomes entitled to the real estate under a settlement executed before the passing of this Act.The noble Earl would see that, under this Amendment, all settlements executed before the passing of the Act were precluded; and anyone, after the passing of the Act, might make provision for the contingencies of lunacy and minority.
§ EARL BEAUCHAMPsaid, that what he wanted to secure was, that the provision which the noble and learned Lord admitted to be just in the case of infants and lunatics succeeding under 25 settlements existing at the time of the passing of the Act should be extended to those succeeding under settlements after the Act was passed.
§ On Question, "That the Clause stand part of the Bill?"
§ Their Lordships divided:—Contents 66; Not-Contents 55: Majority 11.
26| CONTENTS. | |
| Halsbury, L. (L. Chancellor.) | Castletown, L. |
| Colville of Culross, L. | |
| Cranbrook, V. (L. President.) | Dormer, L. |
| Elphinstone, L. | |
| FitzGerald, L. | |
| Bedford, D. | Hamilton of Dalzell, L. |
| Buckingham and Chandos, D. | |
| Harris, L. | |
| Herschell, L. | |
| Hertford, M. | Hopetoun, L. (E. Hopetoun.) [Teller.] |
| Salisbury, M. | |
| Hothfield, L. | |
| Lathom, E. (L. Chamberlain.) | Kensington, L. |
| Kintore, L. (E. Kintore.) [Teller.] | |
| Brownlow, E. | |
| Buckinghamshire, E. | Lawrence, L. |
| Camperdown, E. | Leigh, L. |
| Fortescue, E. | Manners, L. |
| Jersey, E. | Monk-Bretton, L. |
| Kimberley, E. | Monteagle of Brandon, L. |
| Mar E. | |
| Minto, E. | Northington, L, (L. Henley.) |
| Nelson, E. | |
| Onslow, E. | Poltimore, L. |
| Spencer, E. | Rowton, L. |
| Stanhope, E. | Sandhurst, L. |
| Strafford, E. | Saye and Sele, L. |
| Strathmore and Kinghorn, E. | Shute, L. (V. Barrington.) |
| Sinclair, L. | |
| Cross, V. | Somerton, L. (E. Normanton.) |
| Hereford, V. | |
| Oxenbridge, V. | Sudeley, L. |
| Powerscourt, V. | Thring, L. |
| Tweedmouth, L. | |
| Balfour of Burley, L. | Vernon, L. |
| Belper, L. | Watson, L. |
| Boston, L. | Wenlock, L. |
| Brabourne, L. | Wigan, L. (E. Crawford and Balcarres.) |
| Bramwell, L. | |
| Braye, L. | Zouche of Haryngworth, L. |
| Burton, L. |
| NOT-CONTENTS. | |
| Grafton, D. | Harewood, E. |
| Manchester, D. | Ilchester, E. |
| Kilmorey, E. [Teller.] | |
| Abercorn, M. (D. Abercorn.) | Manvers, E. |
| Mar and Kellie, E. | |
| Bristol, M. | Milltown, E. |
| Exeter, M. | Powis, E. |
| Romney, E. | |
| Annesley, E. | Rosse, E. |
| Bandon, E. | |
| Beauchamp, E. | Gough, V. |
| Caledon, E. | Halifax, V. |
| Dartrey, E. | Hood, V. |
| Denbigh, E. | |
| Feversham, E, | Abinger, L. [Teller.] |
| Ardilaun, L. | Herries, L. |
| Beaumont, L. | Hylton, L. |
| Blantyre, L. | Kenlis, L. (M. Headfort.) |
| Brodrick, L. (V. Midleton.) | |
| Lamington, L. | |
| Brougham and Vaux, L. | Lingen, L. |
| Macnaghten, L. | |
| Carysfort, L. (E. Carysfort.) | Midleton, L. |
| North, L. | |
| Chelmsford, L. | O'Neill, L. |
| Clanwilliam, L. (E. Clanwilliam.) | Raglan, L. |
| Stewart of Garlies, L. (E. Galloway.) | |
| Clements, L. (E. Leitrim.) | |
| Stratheden and Campbell, L. | |
| Colchester, L. | |
| Cottesloe, L. | Templemore, L. |
| Digby, L. | Ventry, L. |
| Egerton, L. | Wemyss, L. (E. Wemyss.) |
| Fermanagh, L. (E. Erne.) | |
| Wynford, L. |
§ Amendment disagreed to.
§ Clause agreed to.
LORD MONTEAGLE OF BRANDON, in proposing, as an Amendment, to insert the following clause, after Clause 47:—
Part IV. of this Act, intituled Amendments of the law of real property, shall extend to Ireland.In the application of the said part of this Act to Ireland, the Act of the Session of the fourth and fifth years of the Reign of King William IV., cap. 92, intituled, 'an Act for the Abolition of Fines and Recoveries, and for the substitution of more simple forms of Assurance in Ireland,' shall be substituted for the Act for the Abolition of Fines and Recoveries in England, therein referred to,said, that the insertion of the clause was necessary to correct the grievances and hardships attending ownerships that were created under the Land Purchase Act.
§ Moved, after Clause 47, page 23, to insert the following Clause:—
§ (Application to Ireland.)
§ "Part IV. of this Act, intituled Amendments of the Law of Real Property, shall extend to Ireland.
§ "In the application of the said part of this Act to Ireland, the Act of the Session of the fourth and fifth years of the Reign of King William the Fourth, chapter ninety-two, intituled, 'An Act for the abolition of Fines and Recoveries, and for the substitution of more simple forms of Assurance in Ireland,' shall be substituted for the Act for the abolition of Fines and Recoveries in England, therein referred to."—(The Lord Monteagle of Brandon.)
§ LORD HALSBURYsaid, he felt a little delicacy and difficulty in introducing into the Bill anything which might create additional Obstruction elsewhere. If, in "another place," it should be desired to extend the Bill to Ireland, he would make no objection.
LORD MONTEAGLE OF BRANDONsaid, he was satisfied with the assurance of the noble and learned Lord, and would withdraw the clause with a view to raising the question in "another place."
§ Clause (by leave of the House) withdrawn.
§ Further Amendments made.
§ Bill to be read 3a on Monday next; and to be printed, as amended. (No. 161.)