§ Order of the Day for the Second Reading, read.
§ THE LORD CHANCELLOR (Lord HERSCHELL)My Lords, the Bill to which I have to ask your Lordships to give a Second Reading does not contain any novel proposal, and I think it can scarcely be regarded in any way as of a Party character. The proposal which it embodies was presented to the House by the late Government in the Bill relating to land transfer. It was no doubt in that case accompanied by other provisions to which I will allude in a moment, but they were not such as to prevent those who supported the previous Bill from supporting the present measure, or diminish its claim to a Second Reading now. I had intended to follow the provisions of the fourth part of that Bill in preparing the present Bill, and I was under the impression it had been followed in terms, but the draftsman has sought to make the Bill somewhat shorter by compressing two of the provisions of that Bill in two clauses into a single clause. I do not think by doing so he has made the Bill altogether clearer than it was before, but of course that is a matter of drafting, and, as far as I can, I intend the provisions of this Bill to correspond in their effect precisely with the provisions of the Land Transfer Bill introduced by the late Government in Part IV. The main object of this Bill is to alter the law of inheritance, and 1202 to assimilate the distribution of real property in case of intestacy to the distribution of personal property. It does not propose to interfere with the making of a will, or with the effect of a will when made. The same testamentary power which exists at present would exist if this Bill were passed, and any owner of real estate may dispose of it as he pleases, just as he may under the existing law. The only other alteration proposed, besides that dealing with the law of inheritance, is subsidiary. To some extent it is necessary, for the purpose I have described, that real estate should vest in the personal representative in the same way as personal estate, as was proposed by the measure of the late Government. It is essential, I think, to any improvement in the system of land transfer, that that devolution upon the personal representative should take place, but that is not essential to the other provisions of the Bill. It was considered just and right then, and I am at a loss to understand why it is less just and right now than when the proposal was made by the late Government. In case of intestacy, the law ought to provide for the just distribution of the intestate's real property. Supposing an intestate owner of real property not to have made a will, what is the most just and fair distribution of that property, looking at the matter as a whole, and speaking generally, that the law can make? Supposing an intestate to leave nothing but real property. Can it be seriously contended that his oldest son should have all, and that the widow and younger children should have nothing? That is the disposition of real property which the law at present makes, and I ask your Lordships to come to the conclusion that that is not a just distribution of property, and that as the law ought in the case of intestacy to dispose of property in the manner which on the whole is most just, that the law ought to be altered accordingly. This is no new principle, because the provision in the present Bill is similar to that which has been passed into law at the instance of the late Government. The Land Purchase Act (Ireland), 1891, provided that with respect to all land sold under that Act the present law of inheritance should cease to operate, and that real estate should be distributed in case 1203 of intestacy in the same way as personalty. If that was thought a just disposition in such a case, it seems to me it would be difficult to show why in this country it is not, and that there are no cases here in which that would be the more just distribution. The very policy of the law appears to indicate the necessity for a change, because nothing can be more inconvenient than that there should be one law of inheritance regulating the succession in one way in a particular portion of the country, and a different law of inheritance prevailing in another portion of the country. It seems to me the fact that such a change has been partially made argues in favour of going still further. Again, in the Small Holdings Bill a proposal was made in the House of Commons that the law of inheritance should be changed in the manner proposed, and that the small holdings should be treated in case of ntestacy as personal property, and should not descend as real estate entirely to the eldest son. Therefore, my Lords, you have had an affirmance of the principle which underlies this Bill by both Houses of Parliament in the Irish Land Purchase Act of 1891 and in the Small Holdings Act. I believe the country is desirous of seeing such a change as the Bill would effect, and the desire is not confined to one Political Party, but is felt by many who differ widely from my own political views. The present law of inheritance in England, of course, really rests on the feudal system, which at one time prevailed in this country with a completeness it does not possess at present. But in earlier times the law was not as unreasonable as it is now. The eldest son was not regarded as the absolute proprietor of the estate to which he succeeded without any duties or obligations to the other members of his family; but he was bound to take charge of and make provision for the rest of the family. It was only in later days that this inheritance of the eldest son came to be regarded as an absolute right, and that all idea of duty and responsibility in relation to it disappeared. We are, therefore, maintaining at the present day in an unreasonable manner a system which was not carried out unreasonably when it orignally came into existence. But more than that: I would remind your Lord- 1204 ships that until a comparatively recent period the widow had a right to her dower of one-third of the estate; but owing to the difficulties of title, the practice of conveyancers has brought about the extinction of that right to dower. Estates are now always so conveyed that the dower is barred, with the result that when a man dies intestate leaving real property the widow gets nothing, the younger children also get nothing, and the whole becomes vested absolutely in the eldest son. Ought there to be such a distinction, with regard to beneficial ownership, between real and personal property? The provisions of this Bill will not affect your Lordships. Hardly any Peer succeeds to his estates by intestacy; nor does the question really touch large estates, which as a rule descend under settlements and not under wills. But it is a matter which does concern many people in this country who are small holders of land, and the children of those people. In these cases the gravest injustice frequently arises, and I ask your Lordships not to maintain a system which works injustice merely because it is old. It is true that under particular circumstances the Legislature has intervened. If a man dies leaving realty and personalty together under £500, the widow is given a title to the realty absolutely. But there is no provision in the case of a man with a very small amount of real property dying and leaving children; in such case the whole goes to the eldest son. The Legislature has been endeavouring of recent years to add to the number of small holders of real property. By means of Building Societies and other agencies, I believe this policy has in many parts of the country been to a large extent successful. But what has been the consequence? We have been creating, owing to the existing law of inheritance, an amount of injustice which did not exist when landed estates were not held in small holdings. It is true that by anyone who owns real property making a will such injustice may be prevented. That is equally true for large estates. If everybody makes a will or a settlement this Bill will have no operation at all, and, therefore, the very opposition which may be offered to it shows that there are many who will make neither wills or settlements. And if that is true generally it is especially true of those for 1205 whom I invoke your Lordships' consideration—the smaller holders of land. In cases of illegitimacy where a man dies without heirs his estates are escheated to the Crown; hut illegitimate owners of real estate are not numerous among the total body of intestates, and certainly they are not less but more likely than legitimate owners to make a will. The change proposed in the Bill, as I have said, does not infringe any right. It does not in the slightest degree prevent anybody from disposing of his property exactly as he pleases. All that it provides is that when a man dies intestate the law shall make a fairer distribution of his real estate than at present. That is the substantial object of the Bill. The other matter is of inferior importance in connection with the subject of land transfer, making it more simple by providing for devolution upon the personal representative. Objection has on a former occasion been taken that this matter was introduced to your Lordships only in connection with the system of land transfer but I have already pointed out that the change of beneficial ownership in land in cases of intestacy has nothing to do with land transfer, and therefore I have thought it better to bring this proposal before your Lordships as a separate Bill. On a previous occasion some objected to the land transfer part of the Bill, and some to the law of inheritance portion of it, and I have, therefore, not dealt with the two in one Bill. In submitting the present Bill, I ask your Lordships to consider not the effect it may have on your Lordships' House, or upon the class of large landowners, but the effect it may have, and is sure to have, in preventing the injustice that constantly takes place in cases of the many small owners of land scattered throughout the country.
§ Moved, "That the Bill be now read 2a." —(The Lord Chancellor.)
§ THE EARL OF DUDLEY,in moving that the Bill be read a second time this day six months, said, he did so with very great diffidence. He had no desire to enter on any argument on either present or future law with the noble and learned Lord on the Woolsack, to whom such Quixotic action might afford amusement, but would be in no sense entertaining to himself. But the change which it embodied in the law relating to in- 1206 heritance and intestacy, which was understandable even to lay minds, was so considerable and far-reaching that he had taken upon himself the responsibility of opposing it. It was a change of the most vital importance, not only to the owners of large estates, but also to small owners of land. Their Lordships were asked to assimilate two things which were totally different. It proposed to sanction in all cases of intestacy the assimilation of real and personal property, the abolition of the custom relating to primogeniture, and the division of a person's whole landed property amongst his successors in identically the same way in which personal property was now divided. As had been pointed out on a former occasion, there was no difficulty at all in dividing money or any other personal property when it had taken the form of money; but the case of real property was entirely different. The division of land nearly always seriously impaired its value, even under the most favourable circumstances; but at the present time, with the agricultural interest at its lowest ebb, with the price of land falling heavily year by year, it was difficult to imagine the extent of the loss which would be incurred by a forced sale of real property. Surely, therefore, the present was not the time to pass any law which, in cases of intestacy, would compel the immediate realisation of landed estate and a forced sale of property at a period of ruinous depreciation. The duty which primarily devolved upon the State in cases of intestacy surely was that the property of the deceased person should be allotted in the way in which the State had reason to believe that property would have been allotted had a will been made. That was the principle embodied in the existing law in the case of personal property, and there was nothing in the majority of wills to make their Lordships believe that it was the wish or desire of owners of landed property in general that on their death, should they happen to die intestate, their estates should be broken up by forced sale and divided as personal property. Did not tenour of most wills lead to the belief that it was the wish of the testators that their eldest sons should carry on the work which they had begun, should become attached to the property as they 1207 had been, and should take the same continued interest in local affairs which had hitherto been the great characteristic of English landowners? It was urged that if the preservation of a property intact was of so much importance to the proprietor a will would be made. That might, to a certain extent, be true, but accident and carelessness would always militate against such a contention, and landowners were, of course, as liable to unforeseen disaster and sudden death as any other class of the community. But apart from that, he would point out the serious effect of the Bill on the smaller owners of land, of whom there were, according to recent statistics, 55,000 in this country occupying their own holdings of less than 50 acres. Very often those persons did not make wills, as the Lord Chancellor had himself testified. Speaking in that House on the 25th June, 1889, the noble and learned Lord pointed out that a great number of small owners of land did not make wills. Under those circumstances, the result of the Bill would be that in the case of small properties there would be a greatly increased tendency towards the evils of extreme sub-division. What those evils were might be gathered by anyone who was conversant with the system of unlimited sub-division prevailing among the small proprietors of France. Lady Verney, in her admirable article on the peasant proprietors of that country, quoted a writer, who said—
The small properties of the peasants are found everywhere, the minute division of the small farms among all the children makes them in general poor and miserable. I have more than once seen divisions to such an excess that a single fruit tree standing on about 10 perches of land constituted a farm.It was impossible to deny that extreme sub-division was an evil of the greatest magnitude, and who was to say it might not occur in our own country if this Bill passed into law. Surely the noble and learned Lord did not imagine he would be able to change the whole habits of these small proprietors, and by a few strokes of the pen overcome the dislike of testamentary documents, and the small properties in this country would, therefore, from the want of testamentary documents, run an additional risk of division and deterioration. The Bill, in fact, subjected small properties throughout the 1208 country to that risk. It was not surprising that this Bill should emanate from a Member of the Government now in Office, for they knew that the small proprietors were amongst the bulwarks of Conservatism. It would be remembered that when the Act which had been referred to by the noble and learned Lord was under consideration in Committee an Amendment was proposed that these holdings when purchased should rank as personal property, and that it was lost by a considerable majority. He believed that the policy which the late Government then pursued would be annulled to a large extent by this Bill, and he could not believe, when the majority of that House were only last year in favour of aiding the growth of the small proprietor, this Bill had any chance of success, and, therefore, he should trespass no longer on the indulgence of their Lordships except to say that the measure was founded upon a dangerous and mischievous principle, and would lead to deplorable results. It would materially alter the present system of succession, and might entail great hardships upon the holders of small landed estates, and he asked their Lordships not to allow this Bill to become embodied in English law. He begged to move that the Bill be read a second time that day six months.
§ Amendment moved, to leave out ("now") and add at the end of the Motion ("this day six months.")—(The Earl of Dudley.)
§ LOUD THRINGsaid, it was rather hard noble Lords on that side of the House should be accused of endeavouring to remove the bulwarks of Conservatism when the very words of this Bill followed those of the former measure introduced by the late Lord Chancellor. Objection was made to the Bill as inadvisable in the present depressed state of agriculture, but it was certainly easier in present circumstances to sell small properties than large estates, and the Bill must, therefore, have a favourable and not an unfavourable effect on agriculture. Another obvious fallacy was that if the law were changed in cases of intestacy what would have been the wishes of testators would be contravened. A just testator invariably made provision for his younger children, and did not heap up all his property in the hands of his eldest son; and if he did so, he always charged it for the 1209 benefit of his widow and younger children. How, then, could it be said that this measure was unjust, or that it was more just in cases of intestacy to leave widows and children penniless than to give eldest sons a share only? In regard to registration and making property more easily transferable, it was most desirable to increase the number of small proprietors in the country. No doubt great subdivision of properties had occurred in France, but it had made the peasants thrifty, and had had a marked effect on the Government of that country. To increase the number of small owners was a desirable object for any Government, and it was necessary for its encouragement that upon devolution there should be an executor to represent the land. He thought the Lord Chancellor had rather minimised the advantages of registration without which there could not be easy transfer of land. For that purpose an executor to represent the deceased owner was necessary, who might be put on the register in his place. It was of the utmost importance that this Bill should pass both for the justice of the cause and for the technical reason of enabling small properties to be easily transferred and registered. That part of the question ought not to be overlooked in the interest of the poorer classes. Talk of sub-division of property! Surely the greatest possible sub-division was more desirable than that small proprietors throughout the length and breadth of the land should leave their wives and everybody except their eldest son without provision simply from a wish not to change the law because in some particular cases the disposition of the larger estates might be affected. In the interests of the working classes and for the easy transfer of property this Bill was a just and righteous one and he hoped it would obtain their Lordships' approbation.
§ LORD ARUNDELL OF WARDOURsaid, that having opposed the Land Transfer Bill when brought forward by the late Government, he would venture to make a few observations upon this measure. He recognised the hardship of the case where all the land on intestacy went to the eldest son, but inconveniences must occur upon intestacy, under the custom of primogeniture, and even under this Bill. It might be said that every man ought to make a will, but even when 1210 made wills were sometimes lost, abstracted, or invalidated from some technicality. No doubt among the poorer classes many were reluctant to make wills, partly on account of the expense and partly from a mistrust of the lawyers, but as matters stood, where more than land was left, which was the general rule, the distribution made under the law of intestacy fairly satisfied the wishes of the smaller holders. This proposal carried with it the irreparable drawback that the freehold would disappear because it would be in all probability sold to neighbouring proprietors. He was as desirous of seeing an extension of freeholds as anybody, not only in the Conservative interest but in the interest of the prospective holders themselves. About 1878 he sold 400 acres of land in small lots ranging from 28 down to 17 acres, but not one of the purchasers had in the result settled down as a resident small holder, and the properties had passed to neighbouring proprietors and others. What purchasers desired was not merely land of cultivation, but to hold it as the larger estates were held, with a reasonable chance of passing it to their posterity. The whole tendency of this Bill was towards the abolition of primogeniture. In France one unlooked-for consequence of extreme subdivision of property had been a great diminution in population, as the small proprietors there had discovered that it was inconvenient to distribute the patrimony among so many children. During last year a Bill had been brought in to revise the existing Code in that respect. The noble and learned Lord need not have made this bold proposal for general distribution, but might have presented to the House a measure upon some graduated scale, or some other alternative. Indirect inducements had been given to small proprietors throughout this country to leave their freeholds to one member of the family, and not to distribute them. Under the system of gavelkind in Kent landed property went in equal division, but that tenure was found so inconvenient that in point of fact all the land in Kent had now been disgavelled. This Bill was to apply to Ireland and not to Scotland, but there ought not to be one law for one part of Great Britain and a different law existing in another. Lord Dufferin and other authorities had pointed 1211 out the evils arising from subdivision in Ireland. A Flemish peasant would never think of dividing the farm he cultivated among his children. Throughout Germany law and custom alike had always been opposed to the division of farms. In Upper Bavaria that had been carried out so far that almost all the land was now in the hands of wealthy owners. He opposed the Bill because it would do irreparable injury to families without any compensating benefit' to the community.
THE EARL OF DUNRAVENsaid he admitted he did not remember the Bill of the late Lord Chancellor, or how far it resembled or differed from this Bill; but he did not consider it at all material upon a question of this kind whether it was introduced by a Conservative, a Liberal, a Unionist or a Separatist Government, the subject-matter of it was what had to be considered. Not understanding clearly some of the clauses in the Bill he was rather relieved by the admission of the Lord Chancellor that condensation had not produced lucidity. He gathered that the Bill would not prevent a man's making any settlement or will which would be legal and valid now. That being so, it was obvious the Bill would not affect the devolution of property in the case of people who took the trouble to make wills or settlements. He doubted whether any considerable number of small holders of agricultural estates died intestate, but thought that the greater number of cases of intestacy occured among the owners of house property. The present law was not likely to encourage the artisan classes to invest their savings in house property, a most desirable thing to encourage, because if by accident a man died intestate that property went to the eldest son, and the other children and wife were left entirely unprovided for. The same thing might occur in the case of small landed properties. He thought the measure before the House was not likely to deter people from investing their money in small properties, but that it would have the contrary effect. In the case of division owing to intestacy what would happen would be this. An arrangement would very probably be made between the eldest son and his brothers and sisters, by which he would buy up the property, and pay them an equitable share in money. For that purpose he might have to raise 1212 money which might possibly embarrass him for a time; but he submitted that it would be better that the owner should be temporally embarrassed rather than that his brothers and sisters should be left absolutely penniless by mere accident. After all, a man had only to make a will to avoid all difficulty—if he was so very anxious that his property should be kept together. The natural desire of a just man was to make some suitable provision for his younger children, and the law, as amended by this Bill, would carry out the intentions of fair-minded men. Artizans and small tradesmen, investing their savings in house property or small agricultural estates, might, by foolish procrastination or pure accident, die without making a will. In such a case, great injustice would be done to the wives and younger children. He could not help thinking that the knowledge that such accidents might happen must deter the wives of these men, for their own sakes and for the sake of their families, from pressing their husbands to make investments of this character. The Bill would apparently operate in the direction of securing the fair division of property among those entitled. He would vote for the Second Reading of the Bill for precisely the same reason that induced his noble Friend (Lord Dudley) to move its rejection—namely, because the effect of it would be to encourage small investments in small freehold estates.
§ THE MARQUESS OF SALISBURYMy Lords, I observe that the noble and learned Lord on the Woolsack and the noble Lord who sits opposite derive a good many of their arguments in support of this Bill from the consideration of a certain other Bill introduced by my noble Friend Lord Halsbury when Lord Chancellor a few years ago. They seem to think that if they take a portion—however small a portion—out of a Bill that has been introduced by somebody else, that somebody else is bound to vote for the Bill in all its portions as much as if it had been in its original entirety. Now, of course, I am met at the outset by a legal contention on the part of the noble and learned Lord—which I am not competent to contest—but I was assured that these clauses were necessary to the machinery for giving registration and cheap transfer of land, and I thought that, though the 1213 price might be high, the advantage to be gained was so much higher that I was willing to assent to the clauses. But the noble and learned Lord on the Woolsack denies the necessity, and he thereby places me in some embarrassment, because my legal conscience at the present moment is at San Remo.
§ THE LORD CHANCELLORThe noble Marquess has misunderstood me. I said that the Bill provided for two things—one, the devolution of the property on the legal personal representative, and the other, the change in the beneficial ownership. I said the first was necessary to land registration, but not the second.
§ THE MARQUESS OF SALISBURYI have a distinct recollection that the noble and learned Lord objected to the separation between legal and beneficial ownership, which I understood would be the result of the device favoured by my noble Friend. However, I am relieved from much of my embarrassment by the fact that my noble and learned Friend, with the true instinct of a lawyer, takes distinctly the opposite view, and, therefore, I may shelter myself under his great authority, and believe, as I do, with regard to the effect of this Bill; but that is not a matter of very great importance, though it explains my vote in this House three years ago, which I cannot imagine to be a matter of very great consideration on the question of my vote to-day. I do not quite understand what has fallen from the noble and learned Lord on the Woolsack with regard to investments. A man—though it is not a very prudent thing to do now—might purchase a bit of land containing some very fertile fields and some very hungry and sterile fields, and he would be very much surprised when the purchase had gone on a certain way if he was told, "You have admitted the purchase of these sterile fields, but you shall not have these fertile fields at all." That is very much what the noble and learned Lord wishes to force on me. If the noble and learned Lord will produce a good measure of land transfer I will consider favourably any change in the principle of the law which is necessary to bring the system of land transfer into effect But it strikes me very much that in this very crude and ill-considered Bill, which is so drawn that the first words of 1214 it as they stand would deprive any person now in possession of property of the right to execute any testamentary disposition—I cannot help thinking that the noble and learned Lord has not been actuated by a simple legal or juridical object in bringing forward this Bill. It is a well-known flag, it is a well-known article of the Radical programme, and I rather think the noble and learned Lord wished to qualify for a good certificate of Radicalism by bringing in a Bill which would satisfy his friends. He is dragging his coat, or whatever the more democratic garment may be suitable to the occasion, in order that we may have a division—which I hope we shall have— so that he may be in a position to show his friends the purity of his Radicalism and the utter detestability of us and our principles. With reference to the expediency of this Bill, I am much struck by the fact that we are dealing entirely with hypotheses. Nobody seems to know whether, as a matter of fact, there are or are not many cases of intestacy. If there are no cases of intestacy, then this proposal is nothing but what I have described it, as a flag lifted up by the noble and learned Lord. It is worthless. There is no use disturbing the law and disturbing the arrangements of many persons for the sake of a result which would be practically nil. But suppose there are a certain number of intestacies, are they intentional or unintentional intestacies? It is only the unintentional intestacies which can support the proposal of the noble and learned Lord. I can imagine that if the existing law is drawn in accordance with the wishes and traditions and belief of the people, if they know that the distribution which the law will make will be what they themselves desire, they will not take the trouble to make a will, but they will leave it to the law to make the distribution of which they approve. And I want to know what proof there is that they do not approve of the distribution which the law makes. What grievances have you to bring up? What cases have von in which you can show that the testator, had he made a will, would have made it in a manner so strikingly different from that which the law has prescribed? We have one evidence—an evidence which has already been referred to in this debate, an evidence which seems to me of a very cogent kind. This law which 1215 you prefer is not new; it was the law of one of the counties of England, the law of gavelkind which prevailed in Kent. Parliament gave to the inhabitants of Kent the power of withdrawing themselves from this law if they wished, and they have done so. So that gavelkind has almost disappeared. Can we have a more striking proof that the existing policy of the law is in accordance with the wishes of the English people? Now I heard a good deal of a just will, but in reference to all wills—to wills as a whole—I demur to the applicability of the phrase. It would be impossible for the law to lay down in all cases what would be a just will. One will is not more just than another. A just will is that it should be the will of the person who made it, that it should be in accordance with the wishes of the person to whom the money belonged, and who has bequeathed it. I admit a testator might in certain extreme cases use his power unjustly. If, for instance, he was to starve the rest of his family for the benefit of one member of it that would be an extremely unjust case.
§ LORD THRINGIt is the law.
§ THE MARQUESS OF SALISBURYBut are we to alter the law which in a number of cases works well in order to prevent it working ill in another extreme case. But you cannot prove that it has worked ill in any number of extreme cases. That is what the Government are going to do. Everyone knows that hard cases make good law, and you must regulate your law and deal with each case on its own merits, and not according to the requirements of some specially hard particular case. How many of those people are there? Have you any statistics to show? I doubt their existence in large numbers. My experience is that a man does not invest in real property unless he has a little other property besides, and then that happens which is the usual disposition of persons who make a will—namely, that the personal property is divided among the children while the real property remains undivided. The case of justice is not made out; it does not arise. Necessarily from the circumstances of the case it can only be proved by statistics and facts. The statistics and the facts are not forthcoming, and there is nothing to justify you in changing the law. The tone of the noble and 1216 learned Lord on the Woolsack was as though the Code Napoléon and the Statute of Distributions were inserted into the Decalogue, but that is not the case. There is no especial moral superiority in the Statute of Distributions. It is not right for a father to leave any of his children destitute if he can prevent it, but that requirement once fulfilled the question of justice does not arise. Now the matter has been argued to-night with reference to another question, its effect upon the small properties which we have lately been making special efforts to extend. It seems to me there is no. doubt, if it is true that many men die unintentionally intestate, a Bill of this kind must be directly in the teeth of the policy of the Bill which your Lordships sanctioned last year. Directly a man dies, we will assume unintentionally, intestate, which is supposed to be so common, under this Bill his property must be sold. You cannot do as you do in France, you cannot cut it up into small strips, and leave one man with a ditch and another man with a fruit tree. You must sell it, and if you sell it, it is naturally bought by a person of large property who is near that land. And so as fast as you by means of the credit of the State create small holdings in the interests of the country and in the interests of the stability of society so fast by the operation of this Bill, if the state of intestacy is as you believe, will yon find that those small holdings are lapped up again and fall into the body of large estates. It is absurd to blow hot and cold; to undo with the left hand what you are doing with the right. I should say that in any case this Bill is a crude absurd production, a bit taken out of a much larger measure, of which it gives to us none of the benefits, but I think the principle, even if I was more reconciled to it than I am, and even if it seemed to be more in accordance with the wishes of the people than the evidence shows, I should say this moment is inopportune. Allow your Small Holdings Bill to be tried. Let us see how it works, and what the statistics of testacy to intestacy, and what are the facts arising out of its operation. Let us know what the feelings of the people are, and their habits with regard to intestacy and the disposition of their property. Then we shall have some light to guide us; at present we 1217 have no light to guide us; we are proceeding on pure hypothesis, and we run the risk of undoing the policy upon which we embarked with so much pains last year.
THE LORD PRESIDENT OF THE COUNCIL AND SECRETARY OF STATE FOR INDIA (The Earl of KIMBERLEY)My Lords, the noble Marquess began by remarking that he thought the motive of the noble and learned Lord on the Woolsack in introducing this Bill was to display the purity of his Radicalism. The noble Marquess will excuse me if I say that it seems to me that the course he has taken to-day displays the purity of his Conservatism. As my noble and learned Friend has said, the Bill follows that which was brought in three years ago for Land Transfer which included those provisions which, in spite of the very strong support which the noble Marquess gave it, powerful as that support is always, and of such assistance as we could give, which was not much, were rejected by the majority of your Lordships on that occasion. Now, my Lords, I confess that I am unable to follow the arguments of the noble Marquess. I cannot, for instance, concur in what he said when he asserted that there could be no such thing as a just will. I must say that fills me with astonishment.
§ THE MARQUESS OF SALISBURYThat was not what I said. What I said was that the term "unjust" was inapplicable to wills in general, and was only applicable in extreme cases.
THE EARL OF KIMBERLEYThen my notions of justice in such a matter are entirely opposed to those of the noble Marquess. The noble Marquess seems to think that, because a man has a right to make a will, any will he may make must necessarily be just; but if a man exercises his right in an unjust way surely his will must be an unjust one. What is a just will? The noble Marquess admitted that in the general opinion of mankind a will which provides fairly for a man's family is a just will, while it is an unjust will where a man gives the whole of his property to his eldest son and leaves his wife and the rest of the family without any means of support. I say that when a man does not make a will, and the State has to 1218 step into his place, it is the duty of the State to make as fair and just a disposition of his property as it can make, as far as it can do so. The noble Marquess says we want statistics. Statistics of what testators would have done had they made wills! Why, how can you have statistics of what testators would have done? All that can be obtained are statistics of cases where no will was made and where in consequence the property devolved upon the eldest son. Those statistics you might obtain, but how much are you advanced by that? The mere fact that at present the estate devolves, by the operation of the law, where there is no will to the eldest son implies the grievance which this Bill is intended to remedy, and this Bill merely says that the State ought to do as nearly as it can what it may presume the testator would have done if he had made a bill. He might, no doubt, have done something else, but the State can only take what on the whole may seem to be the prudent and wise course to take. I do not think this is a very far-reaching Bill, and I cannot understand how anyone can possibly look with satisfaction upon a law which, in the case of a poor man, leaves his wife and children unprovided for. It is to be regretted that we should be prevented from passing this measure by what, in my opinion, is a sentimental feeling. There is a notion that if you pass a Bill of this kind you will introduce a new practice. It is supposed that the present law is maintained in the interest of large estates, and, that being the case, I cannot help thinking that your Lordships will incur a considerable amount of odium by rejecting the measure. I do not say that is the effect of the law, but there is a strong feeling among the public that that is the case. It can inflict no grievance upon the owners of large property, who will still retain the power of making such wills as they please, while relieving many persons from a great grievance. In these circumstances, I sincerely hope that your Lordships will consent to pass the Bill.
§ On Question whether the word ("now") shall stand part of the Motion?
§ Their Lordships divided:—Contents 56; Not Contents 61; Majority 5.
§ Resolved in the Negative.
§ Bill to be read 2a this day six months.