§ REPORT OF AMENDMENTS.
§ Order of the Day for the Report of Amendments to be received read.
§ EARL CADOGANMy Lords, there are a few Amendments, which I am sorry to say are not printed, because there was no time to do so, which I wish to propose to your Lordships.
§ Clause 4.
§ EARL CADOGANMy Lords, I propose in page 2, line 28, to leave out "them" and insert "the Council"; it is purely a verbal Amendment.
§ Amendment agreed to.
§ Clause 9.
§ EARL CADOGANI move, in page 4, line 35, after the word "be" insert the word "divided," and leave out the word "let," and insert the same word after the word "assign." In the clause as it was agreed to in Committee, the word "sub-let" was inserted, and the word "let" was omitted. The clause, as I propose to amend it, will read as follows:—
That the holdings should not be divided, sub-divided, assigned, or sub-let, without the consent of the County Council.
§ Clause, as amended, agreed to.
§ EARL CADOGANI have an Amendment to move in page 5, line 5, to meet the objection made by the noble Lord (Lord Basing) to the wording of the sub-section (g) which was moved in Committee. I promised to bring up a new sub-section, which is as follows:—
In the case of any holding, on which in the opinion of the County Council a dwelling-house ought not to be erected, no dwelling-house shall be erected on the holding without the consent of the County Council.1524 It is simply an amended form of the same sub-section which was approved in Committee.
§ Amendment agreed to.
§ Clause 10.
§ LORD HERSCHELLMy Lords, before moving the Amendment of which I have given notice, I should like to ask my noble and learned Friend whether something must not be done as regards Clause 10?
§ THE LORD CHANCELLORI have some Amendments to move with regard to Clause 10. I think the form in which Clause 10 was left by the Amendments actually made renders it impossible for the clause to stand as it is. I have to move, in page 6, lines 1 and 2, to leave out "sold a small holding to a purchaser" and insert "purchased the land"; in lines 2 and 3 to leave out "for his registration as the proprietor" and insert "for registration as proprietor"; and to leave out all after "1875" in line 3 to the end of line 9. That would make the clause workable as it was amended in Committee.
§ Amendments agreed to.
§ New Clause 11.
§ LORD HERSCHELLMy Lords, in making the proposal to insert the clause of which I gave notice, in place of that which was struck out at the last stage of the Bill, I desire to say at the outset that, if Her Majesty's Government state that they intend, as was suggested at all events by the noble Earl in charge of the Bill, to propose a clause in another place, in substitution for that which was struck out at the last stage of the Bill, I shall, on receiving that assurance, at once withdraw my proposal; I have no desire to press the particular form in which I have proposed it before your Lordships, or to press it at all here, if I receive the assurance that the Government intend, as was at one time suggested, to make the proposal in another place. But, my Lords, supposing I do not receive that assurance, I shall ask your Lordships to adopt this clause. Undoubtedly it is a matter to which many persons attach very considerable importance, and I do not think that to adopt it would be making any violent 1525 change in the law; it would be proceeding in the direction in which the Legislature has to some extent already proceeded in the Act which was referred to when this matter was last discussed, which made, in the case of small properties, a provision for the widow whether the estate be real or personal estate. But it is only for the widow that they have made provision where the estate does not exceed £500. Supposing there be no widow in the case of small property, the whole of it will go still to the eldest son, and there is no provision whatever for the younger children. Now we expect these small holdings to be held by persons who will have but little property; very often the whole of that property will be invested in this shape; and they will certainly be of a class amongst whom it is extremely common not to make wills; it is in the case of these small owners of property that the present law of intestacy has the widest operation. The owners of large estates almost invariably dispose of them either by settlement or by will; but amongst the owners of small portions of landed property I believe the practice is exactly the contrary, and that you would find it is a minority only who are in the habit of making wills. I was told in a part of the country where there are a number of small freeholders, by, I forget whether it was the Conservative candidate, at all events it was a Conservative attending a meeting there, that he asked those present among the small owners of land who had made wills to hold up their hands, and then those who had not made wills; and the vast majority had not made wills. And I think that the experience one has had as Law Officer shows how common a thing it is, even in cases where a person, being illegitimate, has no heir, so that the property would go to the Crown, that still no will is made, and the children are left unprovided for, and dependent upon any grant that they may apply for from the Crown. Therefore you have these small owners very often not making wills; and I think that the law ought, if possible, to make, so far as it can, for those who do not make wills, a just distribution of the property. In the case of these small owners it cannot be said to be a 1526 just distribution that the whole of the property will go to the eldest son and nothing be left to the other children. Of course a measure of this sort—and that I think is a justification for dealing with it as is proposed in this Bill—tends to increase that state of things. You are intending here to encourage a number of people to own a small piece of land only; that is the very object of your Bill. Therefore you are going to induce a number of persons, who otherwise might have had such savings as they had gathered invested in a fashion by which, in cases of intestacy, all would be distributed amongst their children, to invest them in such form that, if they die intestate, the whole will go to one child and the others will be unprovided for; and the question is whether, when introducing a measure which would have that effect, the proper course is not that which commended itself to the other House—namely, to deal exceptionally, by way of legislation, with the small holdings, and to provide that they shall descend as personal estate? My Lords, it is said that this will create an anomaly—and that no doubt is the case; but there is a good deal that is anomalous in the Bill itself. You are interfering in this way to induce persons to become the proprietors of these small holdings, and that law is justified on account of the public benefit which will result. I do not think it will create any real confusion or difficulty, because all this land is to be registered; and I should propose, if this Amendment were carried, as a consequential Amendment at the next stage of the Bill, to require that it should appear on the face of the register when it is conveyed under this Act as a small holding. You will therefore have on the face of the register a clear indication that it was land under this Act, and to which therefore this clause would apply. That I think would prevent doubt, difficulty, or confusion, as to whether or not the land came within the clause which I am now proposing. Even supposing that the difficulties are greater than they are, I would submit to your Lordships that they are not at all sufficient to outweigh the injustice that is likely to result from the change in the law which will aggravate the evils of the 1527 existing system. And those who desire that the law should remain unchanged, I should have thought, would have desired to remove one of their difficulties by encouraging a change in the law such as this in the case of small properties. But the fear is, after all, as to its effect upon larger estates and family properties. That is the reason they are apprehensive of the change in the law, and desire that it should not be made. But the views they express really do not apply to such small holdings as these, to which alone the change of the law would be applicable. I hope, therefore, your Lordships will see your way to make this change. I cannot help feeling that it will tend in the direction of a just distribution of the property; that it will tend to make the measure more popular than it is; and that its tendency will be to create more of these small holders of land, in whose case the present law frequently works an injustice. My Lords, I move the new clause which I have put on the Paper.
§
Moved, after Clause 10, to insert a new Clause—
Where a County Council have sold a small holding to a purchaser under this Act and he has been registered as proprietor as hereinbefore provided, the land so sold thereupon be and remain personal property; provided that nothing in this section shall render any such land liable to probate duty or legacy duty, or exempt it from succession duty."—(The Lord Herschell.)
§ THE PRIMB MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY)My Lords, the difficulty that we have to deal with is that there is a balance of advantages on both sides; I do not maintain that the argument is all one side; but there seem to me serious objections to the course recommended by the noble and learned Lord of which he has taken no notice. The first objection is one that I ventured to bring before him the other night, and which I thought he swept away in a summary manner which showed that he had not sufficiently considered it; and it is this: that the operation of your clause in cases of intestacy will be precisely in the opposite direction to the operation which you desire to give your Bill. That is to say, that if we assume cases of intestacy to be 1528 very numerous—I take that as the hypothesis—your small holdings will be re-absorbed in larger estates almost as fast as you make them; whenever there is intestacy, if this clause passes, practically the small holding must be sold; the County Council are not forced to sell it, but they are invited to sell it. But there is another circumstance of which sufficient account has not been taken. By the Act of 1890 where there is real property a scale is given in order to ascertain what its value is, and, on its value so ascertained, the widow must have £500 worth, if there is so much.
§ LORD HERSCHELLI think that is whether it is real or personal.
§ THE MARQUESS OF SALISBURYThat is true; but, in the case of real property, without selling the property, a scale is indicated by which you may ascertain what the value is—it is to be twenty-five years' purchase of the Income Tax value of the land. But if it is personal property there is no such scale; you are simply to take the net value of the property after all debts and liabilities have been cleared up. I submit myself to the noble and learned Lord opposite; but my impression is that, for the purpose of paying a debt of that kind, executors would very seldom be willing to undertake the responsibility of valuing the property, but practically they would always put it up for sale. The result, therefore, of the clause, which the noble Lord has brought forward, will be that these small holdings, in all cases of intestacy, will be sold; if sold, they would be sold by auction; and you know what the state of things is in country districts; you know how many bidders there are for small holdings to keep them in that condition. We are obliged to give special inducements, in the way of a very large advance of capital, and the power of putting off payment, in order to make this kind of purchase as palatable as we desire that it should be. One of two things is true—either intestacies are numerous, or they are not. If they are numerous you will have the small holdings purchased again by larger proprietors, and the main object with which your Bill has been introduced will be frustrated. If intestacies are 1529 very few it is not worth while disturbing the general law of the country and the general uniformity of the devolution of freehold estates in order to provide for such cases. My Lords, I wish that for all these discussions some measure could be taken for ascertaining whether these intestacies are numerous or not. I do not measure my experience by the side of that of a former Law Officer of the Crown; but, such as it is, my experience is entirely in the opposite direction: that intestacy is becoming very rare, and rarer every day; that intestacy is a condition which is produced by want of education, and that, as education goes on, intestacy will become quite an exceptional occurrence. It is possible that the persons with whose estates the noble Lord had to deal were persons who had come to an age of discretion in a pre-educational era; but these holders, the owners of these small holdings—for I do not suppose men will undertake such an enterprise late in life—will all, or very nearly all, be people who were under the age of fourteen when twenty-two years ago provision was made for education in every parish in the country. Therefore, my Lords, I doubt the fact of intestacy being very common; but I repeat again that you have the alternative that, if it is common, you will undo the working of your Bill, and, if it is not common, you will have incurred the disadvantages gratuitously. Now the disadvantages are real. This is a very serious provision; it attaches to the land, no matter what its fate, no matter what vicissitudes it may go through, a peculiar character for all time. The land may be bought, on intestacy, by a neighbouring proprietor of ten or twenty acres, and the holding may be merged in a large forty or fifty acre field,—the very boundaries of which may be forgotten; and yet there will be attached to that land this character; that for all time, on certain occasions, it will have a different devolution and will be assigned differently compared with the land by which it is surrounded. Surely, there is great danger that these boundaries will be forgotten, and people will not remember that this bit of land in a grass field has attached to it a different 1530 law of devolution from that of the land in which it lies; and great doubt, and controversy, and litigation, and loss, and injustice will arise from the fact of the different destinies of those two kinds of land being forgotten, and the requisite precautions for preventing contusion not being taken. I feel that that is a danger; and I think that the noble Lord, with his experience as Law Officer, will bear me out in this: that it is a danger with which we are acquainted with respect to copyhold land; it is a matter of experience that the boundaries of a bit of copyhold land are lost sight of, and you only know that there is a bit of copyhold land somewhere in a big field, but you do not know where you can light upon it; and that causes great difficulty and confusion. That is the evil. Is there any advantage in this Bill that should justify you in incurring that evil? I doubt it very much. A great deal has been said in the other House and in this House of the wife. It was said that by the Intestate Estates Act of 1890 the wife will always have her £500. The limit of a holding is £50, and only one-fifth of that is paid for; and my impression is that, at the prices at which the County Council can buy, ten acres of land will very seldom cost more than £500. Consequently all these holdings, as a matter of practice, will come under the operation of the Act of 1890; the widow will get the land absolutely as her own; and this Act converting it into personal property will not interfere. Therefore I do not think you will confer any advantage whatever upon the widow. The only advantage is of course upon the other children; and, whether it is in accordance with the wishes of the agricultural population that land should be sold and the money equally divided among the children, instead of the land being left to one son, is to my mind a matter of very great doubt. I do not think you are moving on lines parallel to the public sentiment on that point. But finally I want to point out to the noble Lord that, as the Bill stands, it enables every County Council to do exactly what he desires; they have nothing to do but to revert to alarm of tenure with which I am sure he must be very 1531 familiar, namely, a 999 year lease, which is a very common form of tenure in various parts of England. That is personal property. The Council, instead of selling, are perfectly competent to give 999 year leases, and that will answer all the objects of the noble Lord, without running the very considerable danger of the legal confusion which his very unusual and strange enactment may produce. I doubt whether the noble Lord has sufficiently considered all the cases in which the words "personal" and "real" property are applicable, and whether he is quite certain that it is safe, in this sudden way, to substitute the word "personalty" for the word "realty." But, if the House desires to do it, and if the County Councils desire to do it, the provisions of the Bill enable the County Council, instead of granting the freehold, to grant a lease for 999 years.
§ LORD HERSCHELLThey can only do that where they are satisfied that the persons desiring to cultivate it are unable to buy under Clause 4, Subsection 2. The general law is as to land which they themselves hire or otherwise.
§ THE MARQUESS OF SALISBURYBut they may take it themselves on a 999 year lease, which will meet the difficulty.
§ LORD HERSCHELLNo; they can only do that under Clause 2.
§ THE MARQUESS OF SALISBURYThey can do that, I think, up to fifteen acres without hindrance. However, upon that point, if it would meet the view of the noble Lord, I should be ready to introduce modifying words into the Bill. But the advantage of doing that, if you are to do it, by way of long lease, is that, as noble Lords well know, in 1882 an Act of Lord Cairns enabled any subsequent freeholder to convert it into freehold if he pleased. That leaves it absolutely free. If it turned out that the noble Lord was giving a gift to the holder which he did not appreciate and did not want to have, Lord Cairns's Act of 1882 would enable him at once to convert it into ordinary freehold. Therefore, though I do not think myself that any change is desirable, and though I shall certainly vote against the proposal of 1532 the noble Lord as it stands upon the Paper, if he wishes to give the County Councils the power of making this experiment, I suggest that the mode of doing it by long lease is a mode which will not disturb the machinery of the law, and will enable all that is desirable in his proposal to be attained.
THE EARL OF KIMBERLEYMy Lords, I think it is pretty clear that the Bill as it stands does not give such power to the County Council as the noble Marquess suggests. There are only two clauses in it relating to the letting of land: one is Clause 2, by which they are permitted to let land where the purchase would be too high, on account of its being likely to be used for building or for other reasons; and the other is Clause 4, Sub-section 2, which enables the County Council to let land where the persons are unable to buy.
§ EARL CADOGANClause 2 empowers them to hire.
THE EARL OF KIMBERLEYQuite so; but that is not my point. My point is that they cannot let upon a 999 year lease; they cannot feu out the land, as it is called in Scotland, because they are given no such power except in the two special cases to which I have just referred. It is possible, of course, for Her Majesty's Government, if they think proper and desirable, to introduce into the Bill a power to the County Councils to feu or let out land for 999 years. With regard to the supposed danger which may arise from confusion as to the tenure on which this land is held, what the noble Marquess said about copyholds is quite true; but I would point out to him that there is no possibility of confusion arising under this Bill, because every one of these holdings will have to be registered, and, when registered in the Registry Office, they are registered with a map of the boundary as fixed by the map; and, as it would be impossible to deal with that land in any way except through the Registry Office, it is inconceivable that anybody should be unaware that it is land which is subject to this particular tenure. Precisely the same argument might be used with regard to registration generally. You might say that no one can tell 1533 —nor can they without inquiry—whether; any particular land is registered; but you cannot become possessed of land mow by purchase, when once it is registered, except through the Registry Office. It is, therefore, obvious that, if you made the mistake of imagining land was registered when it was not, and you took possession of it without going to the Registry Office, you would not be able to make good the title to it. With regard to the general question whether agricultural labourers are in the habit of allowing property to descend without making wills, one must have an extensive knowledge to make an absolute assertion. I do not pretend to set my experience against that of the noble Marquess; but I have constantly found it the case—far more often than not—that men holding small pieces of land do not make wills. However no individual can lay down a general proposition on such a matter as that, and I should not be so rash; but it is my strong impression that you will find that they very frequently die intestate. And with regard to what the noble Marquess said, that such an Amendment as that which my noble and learned Friend proposes would be in the teeth of the objects of the Bill, which are that there should be small holdings held by one person, I would point out that it is quite a mistake to suppose—at least if I read the Bill rightly—that, when this land is sold by the action of the County Council, it can be sold to a large landowner; because, unless the County Council determine that for special reasons it shall be exempt, it must remain for twenty years subject to the conditions in the Bill. At the end of twenty years, under all circumstances, it would be emancipated from those conditions, and might be sold back to a large landowner. Therefore, for the twenty years, for which you have provided that it shall remain as a small holding, cultivated by one person, unless the County Council otherwise decide for special reasons, it cannot be sold to any large landowner: it must be sold to a single person who must cultivate it himself. Then as regards the effect of the sub-division, the argument of the noble Marquess seems to me to point to this: that the Bill ought to 1534 provide that, under no circumstances whatever, should it be possible to sell this land in consequence of sub-division. But that is not so; because you leave to such holder a perfect power of bequeathing the land, and, if he bequeaths the land to his children generally, precisely the same operation would take place as if it takes place by the course of law. You have not provided in the Bill that it shall unalterably be subject always to these conditions, but you have provided that for twenty years it shall be subject to them unless the Comity Council shall otherwise direct. My Lords, I should have thought it would be a great hardship to the family of a labourer to find that, in consequence of his not having made a will, all the children, except the eldest son, will be left without a share of the property whatever. I cannot conceive anything more likely to cause discontent and discouragement amongst labourers who may have become possessed of land. Under these circumstances, I cannot see the balance of advantages of which the noble Marquess spoke. I do not see any advantage on the other side in maintaining the present system of tenure in this land. The only argument that I can see—and that argument I admit may have weight, with some of your Lordships—is that you are introducing a modification in the Law of Succession, and, if you do that with regard to small holdings, you may be paving the way for a similar alteration of the law in regard to all the land of the country. Apart from that, it seems to me that every one of the arguments are distinctly in favour of my noble and learned Friend. The argument from the desire you have to make this Bill generally popular: the argument from your wish that it shall not in any way lead to sub-division on the part of men who become possessed of small holdings—every one of these considerations seems to me to make in favour of the clause; and I submit that it would be very much to be regretted if the House should strike out a clause put in by the other House, which I think is quite in accordance with the general provisions and objects of the Bill, and which I cannot see could lead to any serious difficulties or dangers.
§ * THE EARL OF SELBORNEMy Lords, it seems to me that a general question is raised by this Amendment under very peculiar and exceptional circumstances. I have some time since given in my adhesion to the general proposition that, on the whole, when the law has to make a will for a man who does not make it himself, the most equal distribution of the property is the best; and, therefore, if it were a question of general law, I should no doubt adhere to that conclusion—which was not arrived at suddenly, because formerly I did not think so. But I have always felt that against that alteration of the general law the strongest argument arose from this very class of cases; because it is not the wish of any of us, I should think, to see the process of absorption of small holdings into larger ones going on, and we should certainly prefer that they should remain in the families to which they belong. But it has always seemed to me that changing the tenure from that of real to that of personal estate would generally make sale necessary; and certainly one is struck with the opposition of that consequence to what seems to be the policy of this particular Bill, which is to create small holdings, and, I presume, that they should so continue. I am further struck with the extreme difficulty of reconciling what is proposed with the conditions which are to be enforced for twenty years—namely, that the holding shall not be sub-divided, let, assigned, or sub-let without the consent of the County Council. Now, unless we assume that in these cases of intestacy the County Council would always allow subdivision, you will be placing this land in a very singular and anomalous position. If the Amendment is made law, it cannot be divided; therefore it must be sold if it is to be dealt with at all.
§ LORD HERSCHELLClause 4, Sub-section 2, contemplates sub-division on death.
§ THE MARQUESS OF SALISBURYThat implies the consent of the County Council.
§ * THE EARL OF SELBORNEThe County Council may require it to be sold; but I see nothing there about 1536 division. So far as assignment is concerned, the objection no doubt would not arise, but it could not be sub-divided amongst the holders as any other estate might be. I confess I am very much perplexed with this. It seems to be introducing a change into the law exactly at the point where the change is attended with the greatest difficulty.
§ EARL CADOGANI should like to ask the noble and learned Lord for one explanation. In his clause he proposes to enact that, under certain circumstances, the land so sold shall thereupon be and remain personal property. How long does he mean it to be and remain? Is it to be only during the twenty years, or how long?
§ LORD HERSCHELLI meant altogether. I think there would be a great difficulty in making it shift backwards and forwards from real to personal. I think it should remain without any limitation. I might say that I propose to change the word "property" into "estate" in moving the clause.
§ THE LORD CHANCELLORI must say that I think one of the great sources of confusion in the law is where, by Act of Parliament, the Legislature has thought proper to say that something should mean something that it is not. And this is really, in that way, to enact by Statute that a small holding shall be personal and subject to be assigned so by devolution of it upon death. That is the only object I understand that is insisted upon. If that is to be done, I think it ought to be done directly and by a precise apportionment of what is to be done in such and such cases, according to the analogy of the Statute of Distributions. I must say I object very much to simply making it personalty, which, no doubt, from one point of view, may be a small thing, but which may add to it other incidents. I do not think any human intelligence is capable of foreseeing what the consequences would be if you turn this into personalty. I think that if what is sought to be done is to be done, it should be done in a different way. I cannot help thinking that what my noble Friend the Prime Minister suggested would meet the case—namely, that the County Councils should have power to 1537 grant long leases; and, if that power does not exist now—and I am disposed to agree with my noble and learned Friend in thinking that it does not—nothing would be easier than to suggest an Amendment by which the power of the County Councils could be enlarged to give long leases.
EARL NELSONMy Lords, I should like to point out that we have taken it for granted that the agricultural labourer would wish his property to be divided; but I myself believe that one of the great desires of the small holder to have property is that it may continue in his family, and I believe that, if we are making it impossible for the eldest son to continue the holding, we shall be taking away one of the great incentives that they have at present for desiring the possession of small holdings.
§ On Question, their Lordships divided:—Contents 21; Not Contents 63.
§ New Clause 11, negatived accordingly.
§ Clause 11.
§ EARL CADOGANMy Lords, I have an Amendment to propose in Clause 11, page 6, line 16, after the word "doing" to insert "whether the holding is situate within a town or built upon or not." It is necessary to insert these words, so that the exemption from the right of pre-emption given by the Bill as it stands may not be increased, and I move the insertion of these words.
§ Amendment agreed to.
§ EARL CADOGANMy Lords, I have another Amendment to move to meet the point raised by my noble Friend (Viscount Galway) with regard to the pre-emption in the case of any land which has been acquired by the County Council for agricultural purposes, and is found not to be suitable for agricultural purposes. My noble Friend raised the point that it would be possible that the County Council, before offering the right of pre-emption to the previous owner, would build upon the land or might use it for other than agricultural purposes.
§ EARL CADOGANAnd, therefore, to give the right of pre-emption to the previous owner as building land. In order to provide against that contingency I propose in line 21, after the word "section," to insert, "before any such buildings or works as aforesaid are erected or executed on the land proposed to be sold."
THE EARL OF KIMBERLEYThe object of the Amendment seems to me quite right; but do I rightly understand that it would compel the County Council, in every case where buildings are to be erected, to come to the previous owner?
§ EARL CADOGANThat is not quite the object. The object is that the County Council acquire the land as being suitable for agricultural purposes; and, having acquired it, it is found that some portion of that land is not suitable for agricultural purposes. It was then provided that they should sell it, but that there should be a right of preemption to the previous owner, and, I think in the second instance, to the contiguous owner; therefore it was found necessary to provide that the County Councils should not enter into building speculations which should oblige the previous owner to buy back his own land at building land prices.
THE EARL OF KIMBERLEYThe operation is that where the County Council think it necessary to erect buildings, in order to sell or let the land, in those cases they must offer it to the previous owner.
THE DUKE OF RICHMOND AND GORDONThat is before they erect buildings upon it; otherwise they might have bought the land at an agricultural price, and might sell it back at a building land price.
§ EARL CADOGANIf I may I will put it in still wider words: "before they use it for purposes other than agricultural."
§ Amendment agreed to.
§ EARL CADOGANThere is a purely verbal Amendment to Clause 20, page 10, line 2, to leave out "their" and insert "its."
§ Amendment agreed to.
1539§ Bill reported with Amendments; to be read 3a To-morrow; and to be printed as amended. (No. 204.)