Sitting of 14 July 1869

MINUTES.
PUBLIC BILLS—Ordered—First Reading—Public Schools Act (1868) Amendment* [217].
Second Reading—Real Estate Intestacy [45].
Committee—County Coroners (re-comm.)* [135]—R.P.
Withdrawn—Libel (re-comm.) * [106]; Sea Fisheries Act (1868) Extension * [156].

STILL-BORN CHILDREN.—QUESTION.
DR. BREWERsaid, he would beg to ask the Secretary of State for the Home Department, If he has any information on which he can rely of the large and still increasing number of infants who are alleged to be buried as "still-born;" and whether, it is the intention of Her Majesty's Government to render registration of the burial of such children in all cases compulsory?
MR. BRUCEsaid, in reply, that he was afraid the information possessed by the Home Department on this subject was defective. The only answer he could give to the Question of his hon. Friend was that this subject formed an important part of the inquiry being carried on by the Sanitary Commission, the members of which were prosecuting their labours with a view to remedy the defects in the Act.

METROPOLIS—ST. PANCRAS WORKHOUSE.—QUESTION.
DR. BREWERsaid, he wished to ask the President of the Poor Law Board, Whether he has heard, on reliable information, that the master of the St. Pancras Workhouse has been suspended from the duties of his office for one month; and, if so, on what grounds?
MR. GOSCHEN: Sir, I have heard officially that the master of St. Pancras Workhouse has been suspended from his office for one month. He made himself a party to certain allegations to the effect that some of the patients were improperly discharged from the infirmary before they were cured. He also frustrated the efforts of the guardians by making reports for which there was no foundation, and accordingly he has been suspended without a day's notice. The workhouse, containing some 2,000 souls, has been intrusted in the meantime to the charge of a clerk.

REAL ESTATE INTESTACY BILL.
(Mr. Locke King, Mr. Bouverie, Mr. Hinde Palmer, Mr. Headlam)
REAL ESTATE INTESTACY BILL.

  [BILL 45.] SECOND READING.
  Order for Second Reading read.
  MR. LOCKE KING: * In asking the House to assent to the second reading of this Bill I feel that I do so not only under very different, but under far more favourable circumstances than I have done on any former occasion. I will candidly own that at one time it really seemed like hoping against hope to hope to pass a measure of this kind within any reasonable period of time. Every kind of insinuation was made against this proposal; every prejudice was roused; every sort of misrepresentation and invention was resorted to, so that it was believed by some that this Bill would not do the good we intended it should, and would do a vast deal of harm we never intended. A great change has, happily, now taken place among the powerful and governing classes of society, and many have told me that whereas at one time they looked on this plan as dangerous and unjust, they now see that it is both safe and just. It is satisfactory to find that this great change has taken place, not from any agitation out of the walls of this House, for I have

  1821
  never resorted to such a proceeding, but from the real merits and justice of the measure itself. There is one change I regret to observe has not taken place, and that is my hon. Friend the Member for the University of Cambridge (Mr. Beresford Hope) is determined to oppose this Bill, as he has done on many former occasions. I do not feel that he can this time be so sanguine of success as he has been before. He used to boast that in seven years we only gained 7 votes, and never obtained more than 86 in our favour. This time I think he will find we shall have, considerably more, and very possibly may be in a majority. I regret that he still persists in this course: it shows that the learned University which he represents has set its face against progress in these most progressive times. I can not only assure him that the Bill must pass very shortly, but I can also give my hon. Friend this comfort, that when the event has occurred, it will be included in the list of those many Bills which he has opposed, but which having become law, have added considerably to the prosperity of the nation. Of all the laws which relate to the transmission and descent of property in general none are more interesting, none more difficult, than those relating to landed estates. There is a peculiarity belonging to the land, and an attachment to it which none of us, I am sure wish to see diminished; there are, moreover, natural difficulties which do not apply to move-able property, which we call personal estate. These natural difficulties are quite sufficient without our adding to them artificial ones;—unnatural, unjust, and artificial legislation is sure to come to an end. A system of laws invented for and enforced upon an uncivilized and comparatively ignorant population, is not likely to find favour when it is allowed to remain in force, even in a mitigated form, for a people who feel they rank among the most civilized of nations in the world. A free and an enlightened people have a right to expect that there should be a law founded on a principle, in force for the property of all who die without a will, no matter to what class they belong, or of what class their property consists. I feel sure that if any unprejudiced man were asked on what principle such a law should be framed, he would say that
  1822
  it should be uniform, just, and free from any prejudice. Now, no one can pretend to say that our laws relating to the property of those who die intestate are uniform; there is no such thing as uniformity; they are not just, for if they are just in the case of personality, they are most unjust in case of freehold property, and what is more, they abound in prejudices. Over and over again I have asserted that the law relating to the personal estate of an intestate is, on the whole, a just law; by that law, in the ordinary case of a widow and children, one-third is given to the widow and two-thirds to the children. In the case of freehold land, the whole of the estate descends to the one eldest son, and the widow and the whole of the family may be entirely destitute. If the law is just in the one case, it is the very opposite to just in the other. No enthusiast in favour of the heir-at-law getting the whole estate, has even dared to propose that personal should descend in the same way as freehold estate does. It has been well remarked that if such a law were in force, it could not remain for a single year. All I ask is, to make one uniform, one just law for the property of all who die without making a will. I am not in any way asking the House to interfere with the power we now have in making wills; it is a right I would not for the world decrease—on the contrary, I should prefer seeing that power greater; in the upper classes of society, if that had been so, it is probable we should not have heard so much of those disgraceful events which have taken place of late. It has always been felt that there is something sacred in the will of the departed; the wish of the dead, ought to be a rule, as far as possible, for the living. No one is so well qualified as the parent, as a general rule, to make distinctions in and among his children as to the disposition of his property; he knows all the peculiarities of their case and their particular wants. But where he has neglected to make a disposition, the State can have but one duty in making a will in his stead, and that is to deal justice to all, to provide for all, to have but one uniform law. To give all to one and nothing to the others, beyond a doubt, savours of prejudice and injustice. Why, then, I ask, has there been such an alarm at this moderate proposal, and why is there such a cla-

  1823
  mour now? Is it on the ground of antiquity? on the ground that it is proposed, to do away with ancient law? These lovers of antiquity must learn to bow to common sense and. to justice. A people who have been subject to the prejudices of former times, and subject to laws which they feel are unjust, will in their turn become the judges of those laws. The spirit of those laws show what was the spirit of the people for whom they were framed; they knew not the principles of civilization, and were more accustomed to warfare and plunder than to the comfort and blessings of brotherly love at home. But if we look at the very ancient times, there was nothing so harsh as the feudal law; for, under the Mosaic dispensation, the patrimonial estate was divided into shares, and the first-born had only a right to two of those shares. Again, France, the great teacher of Europe in feudal and Roman law, had nothing so barbarous as our law. The younger sons had a right to a pension for life out of the family fief when there was only one—when there was more than one, the eldest son had only a right to the first choice. I believe the real opposition to this Bill comes from another and a secret source: it is a secret dread lest it should interfere with the accumulation of land in the hands of a very few proprietors. This Bill cannot, as I think, interfere with such an accumulation, seeing that the estates of these large proprietors are invariably tied up, settled, and entailed, and very rarely descend to the heir-at-law, by right under the present law. The alteration I propose would affect the estates of the small owners of land. These small proprietors are generally ignorant of the injustice of the present law, and invariably wish to have their widow and children provided for. But if, after all, this Bill should in any way tend somewhat to diminish the estates of the great landed proprietors, I feel it would do a vast deal of good, for in all conscience these estates are large enough, and, in my opinion, an increased number of proprietors would add greatly to the prosperity of the nation. We can see the evils of accumulation of land in Ireland; there we have all the misery arising from great landed estates and small occupiers; in consequence we are obliged to resort to extraordinary legislation from time to time for that unfor-
  1824
  tunate country, which had descended to the lowest state of social misery. In England, also, before the introduction of Free Trade, we were suffering severely from the accumulation of land, the land being in the hands of great proprietors, who neither had capital or the inclination to improve their estates. I might refer to the year 1831, when that mysterious character "Swing" went about lighting several fires every night. We should then have been in England at the lowest point of social wretchedness, had it not been that we could point to Ireland as worse than ourselves. I feel, then, that if this Bill would occasion a greater division of the evil by the force of example, not in the slightest degree by compulsory division, it would do greater good than I anticipate. It has been urged against me that I seek to introduce the French Law; this I utterly deny; I by no means approve of that system, as it fetters the privilege we enjoy in this country of leaving property by will. But when hon. Members describe and denounce the state of agriculture in France, I would remind them that France has improved wonderfully under the new system, that nothing could be more miserable than its agriculture was under the droit d'aînesse and substitutions. It is only fair to remind the House, that a great misconception prevails with regard to the right that exists in France as to bequeathing property. The Article 913 of the French Code is as follows:—
  "Liberalities either by acts of gift or will cannot exceed a moiety of the part of the disposer if he have at his decease but one legitimate child, a third if he leaves two children, and a fourth if he leaves three or a greater number."
  Thus if a man has £6,000 he can leave, if he has only one child, £3,000 to any one he pleases; if he has two children he can give £2,000 more to one child than to the other; if he has three he can dispose of £1,500 whatever be the number of children, as he pleases; if has six children, one child might have £2,250; and the rest £750 each. In Belgium this precise law is actually in force, and there we may observe the most industrious agriculturists in the whole world, with its small proprietors, small cultivators, who have brought the poorest soil, a blowing sand in the Pays de Waás, into fertility. I may ask hon. Gentlemen to compare the small pro-

  1825
  prietors and small occupiers of Belgium with the large proprietors and small occupiers of Ireland. The same religion, moreover, it must be borne in mind, exists in both countries. I do not allude to the law of France, and to the perfection of agriculture under that law in Belgium, with the view of having such a law introduced into this country: far from it; but I feel it is only fair to state the real facts of the case, when so much misconception prevails. I wish to warn the House that it is by refusing just and reasonable measures like this, that great changes are forced upon us, and those who dread violent changes ought to assent to this most moderate plan. Those who, like me, do not wish to see the power of willing property interfered with by resisting this Bill, are going the surest way to get the French law introduced here. It is felt to be most harsh and unjust towards those among the humbler classes who happen to have small plots of land or cottages, that this law should be retained, when it can only affect the prejudices of the ruling classes, and not their property—the estates of the upper classes being invariably settled; and where those estates are not so settled, they belong to a class who know the state of a law of which many of the other classes are ignorant. On a former occasion an attempt was made to throw ridicule on the case of actual hardship which I brought under the notice of the House, where the unfortunate widow and children were left penniless, the whole estate having gone to a worthless eldest son, the heir-at-law, who had squandered the patrimony in dissolute living; the family received no sympathy from the hon. Gentleman, and insult was added to the injury, by looking upon the son as only a prodigal son! I shall, in spite of this ridicule, bring before the attention of the House another case or two of a peculiar kind, showing the operation of the law in a manner to me new, and thus expose a hardship of another class. The case which I am now going to read to the House is sent to me by a clergyman in the middle of England; he informs me that he was formerly opposed to the alteration of the law which I propose, because he was led to believe I wished to introduce the French law. He now says he is quite a convert, and allows me to make his name public, and the
  1826
  names of the parties, if I desire. It is as follows:—
  "A labouring man in this parish, with that desire to procure a small piece of land which is felt by many of the more industrious agricultural labourers, about ten years ago purchased a cottage in this parish, with less than two acres of land. Some of the purchase money he had saved, the rest he borrowed, and to wipe off the debt he took heavy task jobs, and worked extra hours, 'rising up early and late taking rest.' He accomplished his object, but not without serious injury to his health; more than a year ago he was seized with an illness which in the end proved fatal. I visited him in his sickness, and perceiving the difficulty and confusion that would arise if he died intestate, I took occasion to ask him if he had made a will. I urged him, if he had not done so, to do so without delay. He seemed possessed with the idea that his wife (his second) would succeed to all he had; as he had two children by his first wife and four by his second, who was again' in the family-way, I pointed out the injustice that would be done them if his house and land went to his eldest boy alone, a child of six years old, which would be the case if he died without a will, He delayed the matter so long, that when other persons interested in the family, seeing the matter in its true light, came to induce him to settle his property, he was past consciousness and he died intestate. The consequence is that the widow is left with six children, the eldest son, who is heir, not seven years old. It is impossible for her to live and support her family out of the proceeds of one and a-half acres of land. The union will do nothing for her, because of the ownership of the land and cottage; and they cannot be sold until the boy is twenty-one, except, as I am told, by some expensive process in. Chancery, which would swallow up no small portion of its value."
  Here is another similar case sent to me by a gentleman learned in law—
  "Edgbaston, April 9, 1869.
  "A mechanic living at Smethwick near this town, earning 40s. a week, and having a wife and four children, of whom the eldest son is nine years old, died on Tuesday last, seized of a freehold house worth about £150, and having nothing else besides his household furniture. He left no will. The furniture will yield enough to pay the funeral expenses and debts. The house is unencumbered. It is not that in this case the injustice is confined to the eldest son's taking everything, to the exclusion of his mother and brother and sisters—(dower being no doubt barred, as is usually the case); but, that instead, as in personalty, of the mother's taking out letters of administration, and then being able to let or sell the house, there is no one, the son being a minor, who can do either the one or the other without having recourse to the filing of a plaint in equity in the County Court for the appointment of a trustee, a proceeding which though comparatively inexpensive for a lawsuit, must eat up a considerable portion of the property."
  I think all will agree that these are cases of particular hardship in many ways, and they cannot be uncommon.

  1827
  I well remember an Attorney General (Sir Roundell Palmer) opposing this Bill and arguing that hard cases make bad law; but I can, I think, say with greater confidence, that bad law makes hard cases. Primogeniture is a word I have not used, but I use it now, and I say primogeniture as it exists now, is very different to the primogeniture of former times; it is a spurious article, discharged from its duties and responsibilities; it is a barbarous and ignorant, as well as a modern perversion of what was once within certain limits, compared with what it is now, a noble and even a beneficent institution—common sense and justice require that what a man can convert at any moment at his pleasure into money, should be treated as money at his death. The cruelty practised on families is of frequent occurrence among the small proprietors, while the open favouritism and unjust prejudice shown to the heir-at-law is quite monstrous. For instance, if a parent having made a will leaving his personalty to be divided in certain proportions among his children, contracts to buy a freehold estate, and dies before the purchase is completed, intending when the whole business is arranged to make a fresh will, the executors are of course obliged to complete the purchase; but they have to hand the estate over to the eldest son, although certain sums of money had been left in the will and by name to each of the children. Cases of this kind do occur; they are not only unjust but revolting to think of. The anomalies respecting the descent of landed property are also great—for instance, a leasehold for life or lives—although the life may be a bad one and last only a few years, or even months—descends as real estate to the heir-at-law, whereas a leasehold estate for a term of years, say 100 years, or 10,000 years, or upwards, being as good as freehold, descends as personal estate. I might mention gavel-kind, where the estate goes to all the sons to the exclusion of the daughters, and borough English, where it goes to the youngest son. I have heard it said that this is a very small question, and will produce no very great effect; I have never said it was a very great question, but I say that there is a great principle involved in it, the great principle of justice. Again it is said, the whole question of laws relating to land ought
  1828
  to be gone into: to this I agree; but there is no reason to postpone on these grounds passing the Bill, for practically it is only in cases of intestacy where these anomalies and cruelties shew themselves, and this Bill would meet them all. In former Parliaments, this measure which has been denounced as something dangerous has been supported by good and sound men; I might refer to Judges of the land whose names have been on the Bill—to the late Mr. Baron Watson and Mr. Justice Mellor—Mr. Massey also, who for many years was Chairman of Committees in this House—not a very dangerous character—had his name on the Bill. In more recent times, many distinguished men who now sit on the front Bench have advocated this measure, the President of the Board of Trade (Mr. Bright) invariably so—or if it be said he was too Radical, I will mention the name of another supporter, the Chancellor of the Exchequer (Mr. Lowe), and I am sure no one will accuse him of being too Radical. The Solicitor General also, as sound a lawyer as any man, allowed me to place his name on the Bill on the last occasion of my bringing it forward. The time has now arrived for this Bill to become law; we have happily a House of Commons in accord with the people, we have a Government in union with the House of Commons; but, above all, we have the most earnest and powerful Leader this House has ever had; he leads this House and is not led by it; he has only to give the word and this measure of justice will become law.
  MR. DICKENSON, in seconding the Motion, said, he believed the change which it was proposed by the Bill to effect would be found to be a sound and wholesome reform of the law relating to real property. He was aware that the measure had not formerly been a popular one in that House; but matters were now changed, and he believed that it was now about to be successful. It was true that it had only a limited application, as there were not many men possessed of real estate who died intestate; but that did not alter the necessity which existed that they should remove that which was a real injustice. The proposal contained in the Bill was a very simple one, and it was one that ought to commend itself to every moderate man. Arguments covering a wide field of

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  speculative controversy, and dealing with it as a proposal which threatened to ruin the aristocracy in its remote consequences, had been urged against it, but into a refutation of those arguments he did not think it necessary to enter. He should content himself with laying before the House his view of the change as it presented itself to his mind in its primary bearings. The question was a dry and technical one, but it was one of great importance. It was said that a law which had existed for centuries must be deemed to be good; but that argument, which amounted to little more than a mere assertion, he would meet by saying that a law which had remained so long unaltered was all the more likely to require alteration at the present day. He maintained, moreover, that instead of the onus of proving the law as it stood to be unjust being thrown on the advocates of change, those who were in favour of continuing the differences which prevailed as to succession to property of one kind as compared with another ought to be called upon to show on what grounds the great anomalies which existed in that respect could be justified. Steps had already been taken in dealing with wills to render the law as it related to real and personal property more uniform, and he saw no good reason why the House should hesitate to take another step with the view of carrying that uniformity still further; for those who were in favour of legislating in that direction stood, he contended, on higher ground than they who supported the continuance of a variety of laws of succession for different kinds of estate. As to who should be the successor to property, it would, of course, be at once conceded that the family of the owner had a right to succeed to it in preference to a stranger. That being so, the question remained how, when a man happened to die intestate, the rights of his family inter se ought to be dealt with. This Bill declined to give a preference to males over females, or to one son over another son. Those who upheld the existing law were the advocates of the right of one of the family to possess the entire estate to the exclusion of the others; but, when it was considered that the duty of the parent was equal towards all his children, there was no just ground on which the law could proceed when the parent happened
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  to die intestate, except to make provision for all his children out of his property; and it could not enter into those various influences which might operate on him to dispose of that property in varying proportions, but must lay down some clear and distinct line of succession. The law should not give a larger share to one child and a smaller to another, and the only fair and intelligible principle, therefore, on which it could proceed was that of equal partition; but, under present circumstances, it did, in the case of real property, what no parent would be likely to do—it gave all to one child and nothing whatever to the rest. It was said, however, that there was no injustice in that, as every parent had the power of making a will; but was that, he would ask, any good reason why, if from accident he failed to make a will, that accident should be made the ground of entailing misery on his children? It was absurd to say that because a father had not done his duty the law was absolved from doing its duty also. Formerly, a parent could not succeed his child; but such was no longer the case, and the days had, he hoped, passed away when men could be influenced by those considerations which operated in the minds of those Gentlemen, very learned in the laws of real property, who sat on the Commission of 1829, and who could not see that there was anything more beautiful than the whole doctrine of contingent remainders. With all deference for the authority of those Gentlemen, he must say he could hardly have thought so much nonsense could have been introduced into a single paragraph as was contained in the sentence in their Report, in which they spoke of the result of such a change as that proposed in the law of succession to real property as having a tendency to break down in a few years the aristocracy, and as being likely to be ultimately unfavourable to agriculture and the best interests of the State. If necessary, he should be prepared to justify the change on the ground of expediency; but he should now content himself with supporting it because it was just, and because it would bring our law more into harmony with the codes having relation to the succession to property which were now established in India by the advice of the India Commission, in all our colonies, in America, and, indeed, in every civilized country. He trusted we should no

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  longer allow ourselves to be the slaves of a feudal system which had existed too long already, and the sooner it was swept away the better, replaced as it would be by a law more intelligible and just.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Locke King.)
  MR. BERESFORD HOPE: I am glad to take this early opportunity of relieving the mind of my hon. Friend (Mr. Locke King), who has brought in this Bill, and who has argued it with his usual good temper and shrewdness, and made as good a ease out of one not naturally good as it was possible for a man to do. For one moment he assumed a tone of mystery, and talked of there being something behind the veil of opposition which he was going to remove. He then asserted that we were opposed to this Bill because it would prevent the accumulation of landed property. Now, I tell my hon. Friend fairly that that is not the ground on which I base my opposition; and I tell him one thing more, that this Bill, if it ever becomes law, will tend to the accumulation of estates in the most rapid manner. I believe so firmly; and, I think, I shall make it clear to the intelligence both of himself and of the hon. Member for Stroud, who has argued the question with much force from first principles. In doing this I shall refer to a document which has not yet been opened in the face of this House by either of the preceding speakers. I mean the Bill itself, which we are now asked to read for the second time. The Bill is divided into two clauses; the 1st clause gives power to the administrator of an intestate, or to the executor of a man intestate, only as to his realty, to sell the land of the deceased; and, after turning it into money, to divide the proceeds among the children or heirs in the same way as he would divide any other money which a testator might leave. The 2nd clause comes in as a sort of alkali to qualify the acid of the first one, and it places running powers over a vast number of miscellaneous law suits in the hands of the different members of the family, some of whom may or may not wish to divide the money value of the property, and others may or may not prefer that the family should share the land
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  itself. With respect to those provisions I shall say a little before I sit down; but, dealing now with the 1st clause, it is obvious that it gives a power which does not now exist to the administrator of any estate to turn the land into money and to divide that money among the heirs. Now, I appeal to the common sense of this House to say, if this provision were to become the law of the land, whether an immediate and ready way would not be opened out for the accumulation of estates in single hands which does not exist at present? What is it that now prevents the millionaire from adding house to house and field to field? In most cases the lesser properties of the country are held in fee-simple by yeomen. In only a few cases is there anything answering to what is loosely called an entail. I say loosely called, for there is no term in the English language which has been more abused than that of entail. In Scotland there are entails; but everyone who is acquainted with the laws of this country knows that, with the exception of a few great families, such as Marlborough, Wellington, Nelson, Shrewsbury, Abergavenny, Pembroke, and two or three more, there is nothing in England to which the word entail could, without a strong strain upon the term, be applied. What are commonly called entails are really settlements. Now I revert to the case of small properties, and I appeal to that knowledge of rural life and rural institutions which most Members of Parliament possess, and I ask them if the idea of a settlement naturally enters into the minds of those small proprietors—the owners let us say of from one up to twenty or thirty acres? The estates of these people are held in fee-simple; and they have seldom any papers or parchments amounting to a settlement. The documents with which they are familiar are, unfortunately for the owner, too often in the shape of a mortgage held by the village usurer, of whom I shall have something to say presently. The village proprietor holds his land in fee-simple, but it is too often burdened with some mortgage which has been contracted by himself, or by his predecessor, with his eyes open, but still he holds on, in the honest pride of his heart, at being the owner of land which will, he hopes, pass down to his descendants. It is this honest pride of the small proprietor

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  which forms the great obstacle to the accumulation of estates in the hands of grasping and ambitious men. My hon. Friend quoted a case somewhere in Staffordshire. I asked him where, not out of curiosity, but because I myself have property in Staffordshire, in a part of the county where a large number of these small properties are in existence; and I can assure my hon. Friend and the House—not for the sake of getting a party cheer—but from my strong conviction of the truth of what I say, that if I were desirous to accumulate property in that district, and to acquire per fas et nefas the lands by which I am hemmed in, I should become a warm supporter of this Bill, for I should see in its passage the last obstacle removed which prevents those who covet the possession of those small plots of land from obtaining their desire. Stripped of the legal verbiage with which the Bill is encumbered, this is what it comes to. It is often difficult even now for the poor man to keep his land, not so much from the immediate calls of his family as because he is in debt to the money-lender—the village usurer—a very common character in "rural parts." Hon. Members who live in towns, where the ready resources of our legitimate banking system are ever open, may be little aware of the oppression under which these men groan from the exactions of the informal money lender. The system of irregular banking exists in the country parts of England to an enormous extent in the persons of retired tradesmen, or of landed proprietors, with a little hoard behind, who have all their lives gone on, with their eyes open, lending small sums of money to their neighbours, at some high rate of interest—obligation heaped upon obligation—ready when the time conies to pounce upon the land which is their security. You may say that this is a wrong state of things; that a man has no right to hold land if he cannot afford to pay his way, and that the peasant usurer has a right to foreclose and come down upon him. All these arguments may be based upon very enlightened political economy, but the man must be somewhat hard hearted to accept them as they are without abatement. I do not say that a wide system of such small properties is the best condition for a country, or that they are the most highly cultivated among
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  our estates. But whatever our opinions may be on the general question—whether we hold that small landed properties are or are not desirable, there is no justification for crushing them as this Bill proposes. Look at the present position of the village usurer! What prevents him now from coming down upon the land—what induces him to give the day of grace to his debtor? Nothing but the knowledge that the property which is his security is held—to use a foreign phrase en solidarité—that the owner will devolve it in its entirety to his eldest son, and that his will has been effectively made by his having made none at all. But suppose this Bill to pass, what will then be his condition? Every man who has advanced money upon land will begin to take stock of the character, the circumstances, and the means of those who are indebted to him. He will see that, under the operation of this Bill, the land may be broken up and sold, and his whole security melt away. To forestal the day of inevitable distribution he will foreclose at once, and will either put the money received from the sale of the land into his pocket or else step into corporal possession of the land itself as its proprietor. The system, which is now one of money lending, will, under the Bill, develop into a machinery for the accumulation of land. The usurer himself will be greedy of the land. He generally belongs to the class of small landowners, and he would often take the land with its moderate percentage of profit, but its visible increment of influence, rather than continue to squeeze out his annual interest, though the rate of that interest may be higher. The Bill would equally create facilities for those more respectable accumulators of land—the great proprietors. A man dies intestate—his property is in the market—there is a sum of money to be found immediately. The property may be worth a few hundreds. Is it likely that the administrator will take the trouble and go to the expense of advertising the property for sale, of engaging with an auctioneer, and running all the risks attendant on a sale, especially if that sale were made, as it would probably have to be, without reserve—when the steward of the great man called upon him and showed him a roll of £100 notes? In such a case you may be sure that the administrator would

  1835
  close with the bargain, and pocket the money, and so the few paternal acres would become absorbed for ever in the great adjacent estate. You may say again that it is better that it should be so—that the land will be better cultivated after the transfer. But that is not the argument of my hon. Friend. He took the popular ground—and I am endeavouring to meet him on that popular ground—the objection to the accumulation of estates. Of course there is the counteracting element embodied in the 2nd clause—that the property need not be sold but may be divided among the children. On that I have to say that a small property so cut up between the children would prove to each of them a damnosa hereditas. It would afford no real help for getting on, no tangible comfort; it would not foster healthy self-reliance. There would only remain the empty name of ownership to feed a false pride, to encourage selfish indolence, and to check those nobler, more independent feelings which send a young man forth to make his own way in the world with a stout heart and brawny arms. Under one system we should have the young peasant making his own way in the world to fortune by his enterprize and industry, and under the other, a churl, idly vegetating in the poor dignity of a miserable co-proprietorship of a patch of land which is hardly able to yield him a sufficiency of the poorest food. Such evils exist already where land is over divided. Their prevalence in foreign countries is generally admitted. We have examples of a like state of things in a part of England where there is a law in existence not very dissimilar in its operations to that which would be introduced by the Bill of my hon. Friend—the county of Kent where there is the law of gavelkind. [Mr. LOCKE KING: It is quite different.] I know it is different in a great many details, but the point of similarity between this Bill and the law of gavelkind is that both chop up the estates of those who die intestate, and that is the question on which I am now insisting. I have personal experience of the working of gavelkind, for I live in that county; and I can assure the House that small properties there are divided and subdivided in a way that has produced great confusion, and that has brought about a state of things which is not wholesome
  1836
  either for the beneficiaries or for their neighbours. I sought the opinion of a gentleman who has long been a solicitor in Kent, and who has a wide acquaintance with the circumstances of the county, and I will read to the House an extract from a letter which I have received from him on the subject. He says—
  "In my experience I have known many cases where small properties of gavelkind tenure, which prevails in this county, have descended through the intestacy of the owner."
  The hon. and learned Member for Stroud stated that intestacy in the case of a landed proprietor was very rare. I believe, on the contrary, it is very common. The letter goes on—
  "It descends to numerous sons, and the children and grandchildren of deceased sons, and in other cases to brothers and the descendants of deceased brothers, some being infants, and others abroad, or lost sight of, and married women, and the benefit to them in succeeding to these undivided and, in some cases, infinitesimally small shares has been very questionable, while the eldest son, or eldest brother, had he alone inherited, would have derived an advantageous succession. And the practical result has been that, through the disability or absence of some of the parties, and disagreements and litigation between others, the properties have been unsaleable for very many years, except, indeed, in small undivided shares; and the expenses attending the sales, and of making out the numerous titles, have been enormously increased."
  Now, as I pointed out, the 2nd clause of the Bill empowers the administrator to divide or apportion the land, if so desired, by way of partition among the different parties, and it empowers him, if necessary, to apply to the Court of Chancery, and bring the Court of Chancery to bear upon these small properties by way of helping out their distribution. My hon. Friend can hardly be serious in such a proposition. But there is another demon lurking in this Bill which we must drag out into the light of day. Those who have considered the provisions of this Bill are of opinion that under it the properties will become liable to both the probate and the legacy duty—not, be it remarked, the succession, but the more burdensome legacy duty. So much for the aspect of the Bill as the yeoman's measure. But there is another class of small properties which it will considerably affect. We all know that of late years a system has been going on, especially in the outskirts of

  1837
  our manufacturing towns, of laying out plots of land for building purposes through the operation of the Freehold Land Societies which have been set up partly from political motives—laudable and legitimate political motives I freely grant—and partly established by benevolent persons on social considerations, in order to enable a poor man to be the owner of his own house. The direct tendency of this Bill must be to force such properties into the market. Who, then, would be the purchaser? Will it be some other operative—a man who has made a little money in the way of his trade and who would like to be a freeholder? The more likely chance would be that it would fall into the hands of some speculative builder or some sharp lawyer in the town. These societies may be good or bad in themselves, but in no long space of time the effect of the Bill of my hon. Friend will be to hand the allotments over to the builder and the attorney, and to people them with tenants instead of freeholders.
  I am glad that my hon. Friend believes so strongly in the sacred right of making wills and upholds the respect which is due to a testator's wishes. These are points on which he and I agree. We agree in equally repudiating that worst of all forms of tyranny—the law which exists in France and which prevents a man from disposing of his own property as he pleases. But I appeal to the common sense of my hon. Friend and of those who support him, whether by the operation of this Bill they are not inevitably impelling us in the direction of that foreign system. At present, public opinion with us justifies the man who does not make a will if he desires his eldest son to inherit. Public opinion also justifies the man who makes a will, though thereby he damnifies the interests of his eldest son, and I venture to say that it is better in every respect that the temper of public opinion throughout the country should remain in this plastic and rational condition. It is alike just and tolerant. It equally applauds, justifies, and upholds the man who does, and the man who does not make a will. It sees no harm in a "son and heir," and it recognizes partition. But let this Bill pass, and then the making of a will, which involves heirship, will be denounced as unfair and antagonistic to the tes-
  1838
  tator's family. Public opinion, or rather public gossip will point at him and say—"That man has made his will, and cut off those fine fellows who were his natural heirs." Thus there would soon grow up a spurious public opinion in the country which would refuse to the testator the power of making his own will according to his own opinions, and this tyranny of new prejudice would tend to bring into contempt and thus to undermine the system of inheritance which has struck such deep roots in the institutions of the country.
  I have hitherto discussed this question from the poor man's side, and shown cause why I believe that it will deeply injure those for whose benefit my hon. Friend has introduced it—the peasant proprietors. I now turn to the larger proprietors. I have already shown that the tendency of the Bill must be to accumulate land in the hands of the wealthy and ambitious man, who, with his eyes open the to course of events, will be ready to snap up every bit of property which comes into the market. But will it stop there? Will it not also tend to discourage that which ought to be supported as the healthy condition of this country—I mean the diffusion of moderate estates, well cultivated, and with a large amount of money spent upon them? We ought not to forget that England, while great in wealth and power, is yet small in area. So long as we lived under a system of Protection—which, for my own part, I am heartily glad has been swept from the face of the earth—we lived, to a large extent, in a fool's paradise, and our eyes were blind to the future. But the increase of commerce, the increase of Free Trade, and the knowledge that the wheat lands of Illinois and of Russia are as much our own for all the purposes of production as are the grounds of Kent or Leicestershire, are working their effect. These facts, the knowledge of our great mercantile wealth, and of the commercial force of the country, combined with a clearer appreciation of the small acreage of the kingdom, and the consequent insufficiency of its soil to feed its people, are becoming every day more apparent to us. In point of fact, the direct ownership of land in England is becoming every day more and more to its possessors one of the profitable luxuries of life rather than, as in olden times, before England

  1839
  became, to a great extent, a manufacturing or a mining country, the one necessary source of life. In very truth, of course the land has become a more abundant source of life than it was in simpler days, for more money is now turned round it, and got out of it. But its life-giving qualities are elicited by a more complicated process. Our commercial classes are beginning to look upon the acquisition of land—I do not mean an undue acquisition, but the acquisition of moderate estates—partly as a means of assured social position, and partly as affording scope for that mission of usefulness and charity to our neighbours by giving them regular employment and good pay, which all right-thinking men recognize as the responsibility of wealth. This England of the 19th century is, on a larger scale, becoming a reproduction of what the Republic of Holland was in the 17th century—the great international mart of the world, the seat of commerce, where land, divided into small portions, was highly cultivated and much prized, and yet continued auxiliary to the commercial wealth and enterprize of the towns in which were centred the staple riches of the country. We may shut our eyes now to this state of things, but the time for opening them is at hand, and we shall become awake to the fact that land has become one of the means of the ars vivendi, which we must study as citizens of this large and wealthy country if we desire to make it fully conducive to the nourishment and the happiness of the people, by turning on to it the capital made in commerce or lucrative professions. Granting this premise, shall we not discourage this good result if, by our legislation, the land becomes either too minutely subdivided, or too generally gathered into those large accumulations, which the bailiff or steward, and not the owner, must look after. The present system obviously encourages the system of moderately-sized estates. It fosters the man who has bought or inherited an estate—who has built a house upon it, and has improved the land, turning the heavy clay into a model farm, and in fostering him it sustains the dependents whom his enterprize has created—it gives him assurance of knowing that the estate will go down to those who are to come after him in the very size and form in which he
  1840
  has cast it, unless he himself pleases to rule otherwise. He is able to regard this solid fact as the backbone of all his transactions. Supposing he wishes to raise money as a portion for his children or for his widow, the title-deeds of his land will be the best security that he can give for it. But pass this Bill, and leave the property to the chance of its being cut up by the accident of a man's not having made his will, and do you think that the commercial classes will then deal with the land with the same sense of security that they now do? Do you think that they will look upon it with the same satisfaction? Do you think that they will appreciate land, either as a holding or as a security, to the extent at which they now value it? The land may be there as a security, but let an intestacy come, and distribution will have to be made and charges paid off. But there is still worse behind. A great ancestral estate with all its conditions and all the institutions that have grown up round it, may pass out of the hands of the family by the visitation of Providence, not by the laches of man. Take the case of property which is held by an infant or a lunatic. An accident by rail or in the street might bring to the ground our most ancient and honoured houses, through no fault of man, and yet the catastrophe would spread ruin and desolation through the homestead and the cottage. I have received a letter from a gentleman, detailing a case of hardship, which I shall bring before the House. I think it is as real a grievance as any of those which have been brought forward on the other side. My correspondent is heir to an estate that is at present held by a person of unsound mind. He has under the actual law a moral certainty of inheriting that estate; but if this Bill should pass he has not even the certainty of possessing his fraction of it, for he is heir at law, not next of kin. But the hardship goes still further, for his father, relying in the continuance of the present state of things, had provided for his other children out of his own resources; but, in the belief that his eldest son would inherit the estate, made no provision for him. So, let this Bill pass, and the poor gentleman will be stripped of all his expectations and turned adrift upon the world. Would you call that a just state of the law? There must, at least, be some retrospective

  1841
  provisions made in case of any such alteration of the law as my hon. Friend proposes, by which such hardships as I have mentioned may be dealt with. No doubt there is a substratum of fact in the grievances alleged. The law of trusts is cumbersome, both with regard to the trustees and to the expenses of settlements. But we are in the right way of settling those questions in the power we have given to County Courts, by which we have brought the law nearer than ever to every man's door. Let us go on as we are doing, till we make the drawing up of a will so easy as to be comprehended by every man, and even the drafting of a settlement a cheap and easy process. If there are any difficulties in the way that are not already removed they may easily be smoothed down by further legislation based on the old lines. Let us, I say, walk steadily on in this course and the real evils, which this Bill seeks to remove, will be remedied; while the grievances which I have pointed out—the oppression of small holders—the accumulation of property—the upsetting of the credit of the landowners—the chance of breaking up estates, which are the grievances which this Bill would produce, will not take place. I trust the House will act now as it did before—as it did in 1859 and in 1866—in 1859, under the advice of Palmerston and Lewis; in 1866, under that of the hon. and learned Member for Richmond (Sir Roundell Palmer), who, as Attorney General, earnestly opposed it, and of the present Prime Minister then Leader of the House, who said of this very Bill—
  "I am not aware of any sufficient reason for the passing of such a Bill as this, and I am opposed to the principle of the Bill. I am far, however, from regarding the present state of the law as perfectly satisfactory"—[None of us do.] …" My hon. and learned Friend the Attorney General has explained his views with great force and clearness, and, without adopting particular expressions and every incidental sentiment in the general views of my hon. and learned Friend, the Government—or, at any rate, I—heartily concur."—[3 Hansard, clxxxiii., 2007.]
  The House, in 1866, went to a division, with those words of the now Prime Minister ringing in its ears, and they rejected the Bill by a signal majority, only 84 voting for it and 281 against it; and, as the House did then, so I trust the House will now divide against this Bill.
  Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."—(Mr. Beresford Hope.)
  MR. W. FOWLER: I am desirous, Sir, of stating my reasons for supporting the Bill of the hon. Member for Surrey (Mr. Locke King). I think that the arguments which have been advanced against this Bill are extremely vague and shadowy, while the arguments in its favour are very clear and precise. I confess, Sir, that on this subject my opinions have changed. There was a time when I viewed primogeniture in case of intestacy with favour, because I thought that it was so associated with the great institutions of the country that it could not safely be touched; but I think I was mistaken in this, and I maintain that if the institutions of the country are dependent on an unjust and unrighteous law, those institutions had better look to themselves in time. I consider that the law should act fairly and justly, and I think it impossible to say that there is, primâ facie, any distinction between one child and another, as regards the parents; and, in fact, it often happens that a younger child, from weakness of constitution, has more claim than the elder for support and care. Sometimes it is said that people know the law, and if they do not make wills it must be supposed that they mean the law to take its course. But this argument loses sight of those visitations of Providence by which a man may be suddenly cut off by a railway accident or paralysis, or the like. In such cases the law may have a result which the deceased man would have utterly repudiated, if he could speak his mind. The more I think of it, the more convinced I am of the injustice of the existing law. As was once said by the President of the Board of Trade, no one would dare to propose such a law as to the devolution of personalty; and if it is wrong as to personal estate, how can it be just as to land? But it is said that land and personalty differ. I admit they do, but this argument, if carried out, would prove more than some hon. Members would like, for it would show that strict settlements are more injurious in the case of land than in the ease of personalty, because, comparatively speaking, it mat-

  1843
  ters not who is owner of personal estate, while it is of vast importance that land be held by men who can do it justice. I desire to see the land free, and the more easily it is sold and allowed to pass from hand to hand without trammels and complications the better. It is not so much this law which keeps estates together as the wide powers of settling land which are given by our law. The hon. Member opposite is afraid that the land of some of the small proprietors will be sold if the Bill becomes law. This may be so, but I had rather see the land in the hands of men of means than in the hands of those who go on year after year doing nothing to improve its condition. The absurdity of this law is in nothing more remarkable than in the distinction which has been mentioned between freeholds and leaseholds. As I have said, we are told that there is a distinction in kind between land and personal estate, and this is used as an argument in favour of the law now under discussion. But if I buy a great estate, and build on it a great house, and have the conveyance made to me for a term of 999 years, I should be really the absolute owner of the land, and yet the law would treat this estate as personalty, and it would pass to my executor or administrator. If, on the other hand, the conveyance were made in the usual form in fee, it would pass to my devisee or heir as realty. If the distinction is based on the difference between land and personalty, such a state of the law is absurd. But the fact is otherwise. The truth is that we have obtained these distinctions from the feudal system. That system may have been very good in its day, but we cling to all sorts of antiquated rules and distinctions which are inapplicable to the present condition of our society. An non. Member lately said that our money market is the "laughing-stock of the world." He would have been much nearer the mark if he had said this of our law of real property. I believe, Sir, that our law alone holds fast by all these refinements and absurdities, and I know of no other civilized country where such a system would be tolerated. I have said that it is not easy to discover what are the arguments against the Bill of the hon. Member for Surrey. One argument is that the institutions of the country are bound up with the present
  1844
  law, and this remark is applied especially to the Peerage. Now I have not so bad an opinion of the Peerage as to suppose that such is the fact; and I ask the House to remember that great estates are kept together by settlements and wills, which will not be affected by the proposed change of the law. If any man says that the existence of the Peerage depends on an unjust law, it is the hardest thing that has ever been said of that august body. Then, Sir, some say that the change proposed would be very inconvenient in the case of very small properties. It is impossible to legislate for any particular class of properties. We must make a good law, and leave it to work out its own results. We cannot base our legal system on such distinctions. Then we are told that the proposed change would lead to partition of estates. For my own part, I am not afraid either of subdivision or of accumulation. I would leave things to their natural tendency—the man of wealth to get land, and the man in debt to get rid of it. The proposed change will not compel divisions, for every man will be free to make a will. Much has been said against the French law and compulsory division. I am opposed entirely to the adoption of any such law, and I would far rather leave things as they are than make any such change. There is, however, a good deal of misconception as to the history of the French law. The fact is that the subdivision of land in France began before the Revolution, as appears from Arthur Young's famous work. He estimated that one-third of the whole kingdom of France was in the hands of very small proprietors, who were wretched cultivators. This showed that causes other than the law of the present code were in operation to cause subdivision in France. As to ourselves, we should remember that, as the hon. Member opposite (Mr. Beresford Hope) said, the country is growing in wealth, and becoming more and more commercial in its pursuits, and the tendency of commerce is to make all articles free, whether land or corn. The hon. Gentleman opposite says that the Bill will tend to break up the system of creating small freeholds for voting purposes. He has urged, too, that the law should be moulded to meet the cases of certain people who die under age, and of others who die when of unsound mind; but I

  1845
  say it would be absurd to base our legal system on exceptional cases. The question is, what do justice, common sense, and right reason demand in the matter? This question must not be dealt with in a partial, nibbling way, but on broad and sound principles. I wish to refer to an argument used some years ago by the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli). He said that the tenure of land was the bulwark of the freedom of the nation. That is certainly rather a vague statement. I think, on the contrary, that the freedom of the country is not dependent on the tenure either of land or personalty, but on the intelligence and character of the people; and I maintain that they won their freedom against the opposition of the owners of land in the time of the Civil War, and again when the Free Trade struggle took place. I am convinced that the more the House considers this question, the more clear it will become that justice demands the change advocated by the hon. Member for Surrey. I trust that the House will reverse the decisions to which it has come on former occasions, and thus prevent our system of land tenure from being disfigured by a provision which is contrary alike to common sense and common justice.
  MR. GOLDNEYobserved that the last speaker had said the law should be based on common sense and justice. The hon. Member for Surrey (Mr. Locke King) had laid down the principle that there should be a just and uniform law to apply to all persons who died intestate, and the hon. Member for Stroud (Mr. Dickenson) had stated that the law should be simple and intelligible. He contended that the Bill before them accomplished none of these things. It laid down a principle in the Preamble which might or might not be right, but the whole scope of the clauses which followed was to undo and qualify that principle. Though he thought it desirable that real estates should be held generally by the eldest members of families, in order to encourage the younger branches to persevere in a course which had tended so much to the advantage of the country, going into commerce, or swelling the tide of emigration, he admitted that the proposition contained in the Preamble of the Bill, that it was expedient that the law
  1846
  of succession to real estate in cases of persons dying intestate should be the same as the law of succession to personal estate in the like cases, was intelligible and sensible; but before they dealt with that matter the whole subject should be considered together, and not in this isolated way. In 1834, a Royal Commission was appointed to consider the whole of the laws affecting real property—the laws relating to wills, dower, entails, and descents, and they came to the conclusion that those real property laws were wise laws. It was absolutely essential, in dealing with real property, that the law should be clear, intelligible, and fixed; and though, in some cases, the existing law was onerous and oppressive upon poor people, still, on the whole, it worked well. In the Preamble of the Bill it was stated that, in the case of all persons dying intestate, the same law should apply to real property as applied to personal property, but that would lead to many cases of great injustice, for the law of personal estate, as it at present existed, was most unsatisfactory. In the case of a person who made a will and then married, the marriage voided the will; and a still harder case was that of a widow having a son by her first husband, but who, on marrying a second time, found that she had no power of making a will and leaving her property to the child whom she would naturally wish to succeed to it without the sanction of her second husband. If the husband did not give his consent to its diversion in that way, the property would fall to him. Another hard case was that of a man whose son had died leaving a child. The property in that case would not go to the grandson, because the grandfather's brothers and sisters would stand in equal relationship, although the grandfather would naturally have wished his grandchild to succeed. So much, then, for the common sense and common justice of a measure which would give rise to such a state of things. In the case of a man who died suddenly, without having time to prepare his will, although that man might have wished his property to go wholly to his wife, some fifteenth cousin or other remote relation might come in and share it equally with her. The feeling of the people generally was opposed to such a measure as this, and therefore the Bill would be inoperative in the great ma-

  1847
  jority of cases if it became law. If such a measure were passed at all, it should be passed in the simplest form, and without the many restrictions which were now contained in it.
  MR. LEVESON GOWERsaid, he had great pleasure in supporting the Bill of his hon. Friend. He had been in favour of a measure of this sort ever since he first considered the subject, even when it was viewed with more dread than it was at present. He could not agree with the hon. Member for the University of Cambridge (Mr. Beresford Hope) that this Bill tended to confiscation; if he thought so, he certainly would not support it. That hon. Member specially deplored the effect it would have on small proprietors, of whose condition he drew a melancholy picture; but perhaps the best thing these small proprietors could do would be to sell their freeholds, pay off their mortgage debt, and divide the proceeds among their children. But if they did not wish to do that, this Bill did not prevent them from retaining their freeholds in the possession of their families. Any schoolmaster or neighbour could draw up a will securing the freehold to the eldest son. The supporters of this measure were accused of a desire to introduce into this country the succession law of France; but no one was more opposed to that law than he was, believing as he did that it weakened parental authority, and discouraged at once the accumulation and employment of capital by forced sales of industrial undertakings on the death of a partner. He was not in favour of the equal distribution of property among children, but that was not the question which was before the House. The question really was, not between a more or less equal distribution, but between a distribution of the property and no distribution at all. He could never bring himself to think it just that all the real property in a family should go to one individual, all his brothers and sisters being left entirely destitute. He was in favour of a man leaving the bulk of his property to his eldest son, and well educating his younger sons, so that they might make their own fortunes; but he could not concur in the opinion which was encouraged by the law that the eldest son had a natural right to the property of his father. He could not conceive how the
  1848
  present law of intestacy could be defended. He was sure that if they were called upon in the present day to legislate in a matter of this kind for a new country, no one would be found to propose the adoption of such a law. There were many cases in which men with colossal fortunes had died, and many of their nearest relations had been left almost in penury. If a parent made no will, the State should take care that the property was equally divided among the children. It was said this measure would be subversive of the aristocracy. He altogether denied that such would be the result. The aristocracy had ample means to secure their position under the provisions of that Bill, and could never be benefited by the maintenance of laws which were unjust.
  MR. G. GREGORYsaid, the operation of such a measure would be infinitesimally small. So long as we had succession to hereditary rank, we should have succession to large landed properties, and no people were more disposed to give effect to that principle than those who had gathered together their property by their own exertions. It had been said that any schoolmaster or neighbour could draw up a will, but such wills did not do so much good to anyone as to the legal profession, for it was no easy thing to make a will, and especially a will dealing with real property. He thought the hon. Member for the University of Cambridge (Mr. Beresford Hope) had correctly described the measure as one tending to the confiscation of small properties. How could such properties be divided except by sale? They would have to be realized at all hazards. The effect would be the aggrandizement of large estates, while the expenses would almost eat up the small properties thus brought to the hammer. With these views he felt obliged to oppose the Bill.
  MR. BUXTONsaid, he should support the Bill. The great argument now used against it was that it would destroy small properties; but the main fear of the Conservative party in previous years with regard to such a measure had been the very reverse—that it would lead to the breaking up of large properties. He thought it was a great mistake to treat this as a slight and unimportant measure. Perhaps its direct effect might not be very great, but as regarded the

  1849
  principles that underlay it and its ultimate tendencies, the step which it was proposed to take was one of no small consequence. The existing law took its rise in a state of things very different from that of our own day, and was no longer in harmony with our social condition. It originated in the days of feudalism, and was, no doubt, a necessary support of the social system founded on feudality, but being out of gear with the present state of things, many of its results were anomalous and absurd. For example, thanks to the building societies, we had in England at the present time some hundreds of thousands of tiny freeholds, all of which came under the sway of this law. So that if these little proprietors omitted to make a will, after having thus invested the savings of their life, instead of their having made a provision for their families, the eldest son was treated as if he was the heir of a great feudal estate, and stepped into possession of his father's earnings; his brothers and sisters were turned out unprovided for into the world. He had himself seen the absurdity, or rather, he should say, the cruelty, with which the law constantly acted in this respect. One of his own gamekeepers, for example, an industrious and saving man, not long ago purchased a cottage and garden with the savings of his life. Unhappily he died not long after, leaving a widow and family of young children, the youngest of whom was a little boy. The consequence was that this little property was now in trust for this little heir, while his mother and he himself and his brothers and sisters were plunged into extreme poverty. He must, however, candidly own that it was very easy to imagine cases in which, if the law were altered as his hon. Friend (Mr. Locke King) desired, a very great hardship would be inflicted by the compulsory sale of little freeholds, when the proprietor died without making a will, in the full assumption that his eldest son would inherit it from him as he, perhaps, had inherited it before, It seemed to him, however, that if this Bill were carried any danger of that sort might be greatly diminished by a provision into the details of which he would not enter; but to the effect that in case of anyone dying intestate the real property should not necessarily be sold for the benefit of the whole family, but that the eldest son should have the
  1850
  option of taking possession of it, paying an annual percentage on its value to the other members of the family. But, in truth, whatever the law was, it would be impossible to avoid serious inconveniences where, either from ignorance, or procrastination, or negligence, or any other cause, a man died without making a disposition of his property. He did not himself think that cases that might be alleged on either side as to such inconveniences were very much to be considered. It was very difficult to reckon up the possibilities of hardship on either side, and then to strike a balance between them. But what they could do and what they ought to do was, that when the father of the family had gone without making any disposition of his property, so that the Legislature, as it were, stepped into the place of the parent and had to act for the benefit of the children, it should do that which was most just and most fair with respect to them. Now, could it be just, could it be fair, that in such a case the law should select the eldest son, and give him the whole of the real property without making any provision for the younger children? The very fact that, as regarded personal property, the law made an equal and fair distribution of it among the children was an admission on the part of the law that this was what true justice required. The distinction between real and personal property in these days of multifarious investments had become one so utterly artificial—one he had almost said so preposterous—that he could not see how it was to be maintained. The line drawn by the law had no foundation in reality. The question which this Bill undoubtedly raised was whether the law of England should be on the side of a greater division of landed property, or was to go on fostering its accumulation in fewer and fewer hands. Not that this Bill would give any sudden violent wrench to the habits of the people. Its direct operation would probably be confined to a comparatively small number of cases, and those not of striking import. That in the long run it would have great influence in preventing the excessive accumulation of landed estates in a few hands was certain; but it would do this through its gradual and gentle influence on public opinion. The fact that Parliament had passed this Bill, and had thus deliberately set its

  1851
  face against the system of leaving property to the eldest son, to the exclusion of the younger, would in reality prove to be a sentence of condemnation pronounced upon that system. He frankly owned, however, that in a vast number of instances, it would not be possible for the proprietor to break through the custom of primogeniture. Where, for example, there was a great country house to keep up, with all the immensity of interests that gathered round it, it was matter of necessity almost for the eldest son to have the main part of the income, otherwise two-thirds of the country houses in England would have to be shut up. But that was no argument against this Bill, which would not force any man to devise his property in a way unsuited to his own case. All it would do would be to foster the public opinion which in time would tend to prevent that piling up of landed properties which had hitherto been so marked a characteristic of our social state. Those, of course, who liked to see the accumulation of land in a few hands, those who thought that the vast-ness of our landed estates was the pride and glory of England, and the main prop of our social system, were right to fight tooth and nail against a measure which, however gently and however slowly, must, in the long run, tend towards the subversion of those habits of mind from which that system had sprung. For his part he was persuaded that it was a dangerous feature in our social system that the possession of land was a privilege enjoyed by so minute a minority, a minority too, which, most unhappily, was continually on the decrease. No doubt they might bring statistics to show, as the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli), in answer to Mr. Goldwin Smith, brought statistics to show that the number of freeholders was not less but greater than in the days of Hampden; but those statistics were utterly fallacious. They were, in fact, a mere play upon words. The complaint was that the land in this country was in possession of so few proprietors, and this complaint was not met by the fact that in the neighbourhood of great towns tiny little patches of ground were sold as freeholds, simply for the purpose of building houses upon them. That could only nominally be any corrective to this great evil. Ex-
  1852
  cluding those building societies, he believed he was within the mark in saying that, while England alone contained 32,000,000 acres of land, and more than 20,000,000 of people, those who could properly be called owners of land amounted to little more than 150,000 persons. They all knew very well that there were whole counties in England and in Scotland which, with some trumpery exceptions, were possessed by some half-dozen, or even fewer, great proprietors, whose possessions could not so fitly be called estates as principalities; while the younger branches of the family were too poor in many cases to marry, and had to look elsewhere for support. Now, he had not the slightest feeling of hostility towards those great possessors, nor did he think that any man was so absurd as to dream of any scheme for their forcible disestablishment and disendowment; but he did think that if, without any violence whatever, through the benign action of a wise law on public opinion, they could open the eyes of the nation to the mischiefs arising from a slavish submission to the custom of primogeniture, that would be well for the proprietors themselves and for the whole country. Was it a sound or wholesome state of things that in a multitude of cases, estates, far separate from each other—each with its own country house upon it—should accumulate in the hands of one man instead of each being under the rule of its own separate master? And yet this was the inevitable effect of the system. He could produce a multitude of examples, but it would suffice to mention that there were three hon. Members of that House whose fathers owned among them twenty-four castles and first-class mansions. Of course he should not be suspected for a moment of mentioning this as any cause of complaint against those proprietors. They were all men most highly and most deservedly respected, and were, he believed, excellent and improving landlords. But he asked, was the system a good one which produced this accumulation of great estates, widely apart from each other, in the same hands, by which means there was created in many parts of England that which had been the bane of Ireland—the absenteeism of the owners of the soil? He would put it to any man of common candour which would be best and happiest for all parties concerned—that a whole bunch of

  1853
  great estates should be the appanage of a single man, or that they should be divided among the members of the family? Was it not disastrous to the farmers and other tenants on the property that their landlord should be a stranger to them instead of living in the midst of them, taking a personal interest in the management of his property? It was—and he spoke on this point from what he had seen again and again—it was not less than a calamity to the poorer classes, to the peasantry, that the owner of their cottages should live far from them, and that they should not enjoy the immense advantage of his personal superintendance, and still more, perhaps, that of his family, over their little, but to them all important, concerns. The school, the church, the whole system of self-government suffered, while to the whole neighbourhood, to the tradesmen, to every one near, it was obviously a most serious loss to have the great country seat of the place shut up from year's end to year's end, or only occupied, perhaps, a month or two in the shooting season. He was quite sure that the stagnation, the want of progress in many parts of England, the degraded condition of the agricultural labourers, and the scandalous state of too many of their homes, was in a large degree owing to that accumulation of land in a few hands which many seemed to look upon as such a glorious thing. He confessed himself an advocate of a far greater division of the land. He did not want to attain that end by any rash or violent means. All he sought was that we should remove those artificial obstacles which the law threw in the way of the natural tendency to subdivision. Nothing could be more preposterous than to suppose that those who advocated this policy were revolutionists. Nothing could so much strengthen the landed class, nothing could add so much to the safety of our whole social system, as the removal of those flagrant inequalities of condition which were the direct creation of human law. When the nation had to act in loco parentis it should act justly; and what the promoters of the Bill aimed at was to restore a more natural and just tone of feeling with respect to the disposition of property, and to put the law of the land into harmony with the instinctive dictates of parental affection.
  SIR HENRY HOAREsaid, he would beg as a landowner and inheritor of settled property to say a few words. He thought it would be an act of blindness on both sides of the House if they did not support the Bill, which was simply a measure of justice. It might be thought by some that the lands being held in large quantity and in but few hands was a buttress of the Constitution; but he rather considered it a weakness. By increasing the number of landed proprietors they would increase the numbers of the national garrison. It was urged that the area of this country was limited; but it was to be borne in mind that the population was daily increasing, and there was an absolute need for some alteration in the present law. He contended that it was a gross injustice to widows, daughters, and younger sons to deprive them of all share in property which ought properly to be used for their sustenance.
  MR. G. O. MORGANsaid, he did not think it could be said that a man's eldest son had a greater claim upon him than the rest of his family. If the law of primogeniture were defended at all, it must be defended upon the ground of public policy; and some very strong reason must be advanced for contravening a law of nature by preferring the eldest to all the other children. In feudal times, when England was a fortified camp, it was essential that the land should be concentrated in the hands of as few persons as possible; but though the reason for the law had disappeared, the law itself remained. He had listened in vain for any valid reason in favour of the present law, except that it had existed for several hundred years. Land in this country was every day becoming more and more a rich man's luxury, and that growing tendency of our social system was altogether independent of legislation. All other nations had adapted their land laws to the spirit of the times; but England still clung tenaciously to an obsolete and pernicious system. The cases were very rare in which a parent made an eldest son sole heir; but he had known many cases in which, from the neglect of a small landed proprietor to make a will, his widow and family had been left penniless. A man having a considerable sum of money travelled to a solicitor to have it invested in land. Having completed the trans-

  1855
  action, he was unfortunately killed on the return journey, and the property he had just purchased all went to the eldest son, to the exclusion of a large family of younger children. Had the man been killed whilst going to the lawyer his money would have been equally divided; but the other contingency having happened, one child was enriched, and the rest left paupers. What ground could there be for the distinction under which property held for 1,000 years under lease went one way, while property held on fee simple went another? Such a system could answer no useful end whatever, and the only wonder was that it should have lasted so long. He trusted they would not abstain, even at that late period of the Session, from expressing their condemnation of this law.
  DR. BALLsaid, he disagreed both with those who held that the operation of the Bill would be of limited extent, and also with those who thought that its provisions would be an improvement in the law. In his opinion the Bill would effect an extensive change in the descent and devolution of property. It was true that in the vast majority of cases the landed proprietor preferred his eldest son, but why? It was mainly owing to the law of primogeniture. Every eldest son knew that if his father died without a will, the law gave the land to him; he looked upon the succession as his birthright, and the father was reluctant to interfere to deprive him of that which the law made his birthright. On the part of the younger children there was, on the other hand, an acquiescence in what the law preferred as the course of succession. On the other hand, if upon intestacy all the children were entitled, the result would be that whenever a testamentary disposition deprived any of a share, they would feel as if something to which they had a right had been taken away. The parent would be unwilling by any act of his to create this feeling, and in most cases would bequeath, not to one, but to all his children. He thought there was a better mode of redressing the evils and anomalies of which hon. Gentlemen opposite complained than this Bill—namely, by adopting the principles of a Scotch measure. Until recently, in Scotland, an entail could not be opened when it was fixed in a particular manner. But an Act was passed enabling each
  1856
  owner of that entailed property to charge it with a life rent for the widow and with portions for the younger children. Why should they not pass a real estate Act, borrowing that principle from the Scotch law, and applying it equitably and justly, not, as in the Bill, adopting the principle of an equal partibility of the soil, but making a just provision for the widow out of the value of the soil, giving her a life rent, which was a more suitable provision for a widow than a portion of the land, and charging the land for younger children? If a landed estate in cases of intestacy were charged in the act of devolution with a given proportion for the widow and the younger children, the hardship and anomalies complained of would be remedied. There was, therefore, another mode beside that now proposed of dealing with the only argument of value which could be urged in favour of this Bill, by making for the widow and children a provision proportionate to the value of the soil, and which could be done by a short and. simple Act of Parliament, whereby the State itself might apportion a due amount relatively to the value. They were not now discussing whether the law of primogeniture was to be maintained without alteration, but a particular Bill which affirmatively provided that fee simple estates should be divided exactly like personal property. The question was not whether the widow and younger children were to inherit some provision, but whether it would be an improvement in the law to give the ownership of the soil to a number of a family or to one of its members. The arguments on this question had very often been summed up. The subject sometimes was debated as if it were a question between Conservatives on the one hand and Liberals on the other. There need, however, be nothing party or political in it. It was very much an economic question. And hence it had been discussed by political economists who had no leaning either to aristocracy or democracy. Mr. M'Culloch, in a note to his edition of Adam Smith, arrived at a conclusion opposed to the scheme of equal partibility. Its tendency was to effect a general equality in society, and to discourage industry, energy, and enterprize. In France, where this scheme had been in operation, there was a dead level of thought and feeling outside the cities, because the people clung to the land,

  1857
  and would not embark in pursuits which expanded, invigorated, and enlightened the mind. Before the famine they had an extensive and minute subdivision of land in Ireland, and the result had been described as "huts, potatoes, and beggars." And if this principle of subdivision went on, its tendency was to lessen the holdings, until a large proportion of the proprietors would gradually be absorbed in the mere agricultural labourer. The law of primogeniture had many social advantages distinct from agricultural results, for it had turned the younger sons of great families in this country into commerce, into the Army, Navy, the Church, and the other learned professions. These younger sons had risen to the highest offices, and was not that better than if they had looked forward merely to holding a portion of the soil? He maintained that England had gained largely in her institutions by the present law. What was the condition of farming in France? He knew of no political writer of eminence who asserted that the condition of the agricultural districts of France was advantageous. The Bill did not propose to force the subdivision of property in England, but if it were so advantageous, why did they not force it upon people? The fact was, the supporters of the Bill were afraid of their own principles and distrusted the consequences of their own measure. They trusted to have it mitigated by the wisdom of the parent. Where the principle had been enforced the results had not been favourable. No great writer, from Montesquieu downwards, had ventured to assert that France was to be placed before England in regard to the general comfort, independence, and well-being of the people. The abolition of primogeniture in France had not advanced its agricultural improvement. A succession by the eldest son without obligation to contribute for his mother and brothers and sisters was objectionable, but the measure he had already proposed would remove this objection; it would preserve the principle of permanence in the land, and, at the same time, do justice to the widows and younger children. It was not to be denied that there were solid advantages in the permanence of families caused by primogeniture. Without it, what personal attachment could there be between the owners and occupiers of the soil?
  1858
  They knew how many evictions had occurred in Ireland, and how little sympathy existed between the tenant and the new purchaser who came in to make the utmost possible return for his money. The general feeling in Ireland was strongly in favour of the maintenance of the old hereditary families. How would the Bill operate when the existing settlements had expired? We should come to the condition of France. America and the colonies had been referred to by the supporters of the Bill, but they were not instances in point, because they had an unlimited supply of land. If this Bill passed the probability was that in a few generations there would be an equal partition of the soil; he thought it better for the community that the number of owners of the soil should not be too extensive, and that the younger branches of a family should be obliged to engage in the various occupations in which they now found employment? For this and for the other reasons which he had already assigned, without entering into any arguments founded upon the political constitution of the country, he opposed the Bill before the House.
  MR. HINDE PALMERsaid, he thought the right hon. Gentleman who had just spoken could not have read the Bill, for he seemed to suppose that it was intended to provide for a compulsory partition of the land, as land; the fact being that there was a provision whereby the land might be sold and the money divided among those entitled to share. He agreed in the principle that if the Legislature allowed property in cases of intestacy to go to the elder son, he should be compellable by deed to make a provision for the widow and portions for the younger children. It was, however, almost impossible to frame any statute which would have that operation. They must be guided by the value of the property, which was always changing, and the necessary inquiries and arrangements would involve the family in ruinous litigation. The law did not and could not contain any compulsory provision for the benefit of the widow and children, and this was an argument in favour of the present Bill. That which the House was now discussing was a measure of justice and right. The universal practice of making provisions in settlements for the younger children showed the general feeling that it was

  1859
  unjust that the eldest son should take all. He was glad to see that the measure had not been met on this occasion by any of the political denunciations which had been made against it in former times. Nothing had now been said as to danger to the institutions of the country which would follow from it. Its supporters had no political objects in view, but merely desired to enforce the dictates of strict and natural justice. It might perhaps follow, from the Bill being carried, that a great many small properties would be sold to large holders; but that would be a trifling matter compared with this, that justice would be done. He believed it was true that this Bill would not have an extensive effect upon large properties; because, in reference to the great majority of such cases, the estates were dealt with by will. He had examined statistics which showed that the almost universal practice in this country was to make wills. The property that had passed by will during a year was £34,500,000, while the property of intestates for which letters of administration were granted, amounted only to £3,500,000. The present law, resting on no basis of equity or moral right, ought to be altered; and they therefore asked that it should be made conformable with the law relating to the devolution of personal estate.
  MR. HENLEYsaid, the arguments used in the debate had been large and wide, and had gone far beyond the four corners of the Bill, to which he should confine himself. He wished, in the first place, to ask this question—whether the number of persons having real property who were likely to die intestate would be affected by the operation of this Bill? He would also ask whether educated parties were most to be considered, or that more numerous and less informed class who died intestate, whose interests would be injuriously affected, and whose property would, indeed, be absolutely confiscated by this Bill. He believed that this Bill, in a single generation, would almost abolish the small freeholds of this country. His belief was that in a generation it would almost abolish that class known as the 40s. freeholders. The owner of a cottage freehold was quite an exception to his class if he made a will, for there were two things that he was not fond of—the tax-gatherer and the lawyer. The latter,
  1860
  unfortunately, from his want of education, he regarded as a bird of prey. If this Bill passed the small proprietor must have something to do with both the lawyer and the tax-gatherer. He must have to do with the first in making his will, and with the latter after having made it, inasmuch as his property would be liable to legacy duty. In the case of the owner of a cottage worth £40 dying intestate, leaving more than one child, the property would have to be sold in order that its proceeds might be divided, and when the demands of the lawyers, the surveyor, and the Crown had been satisfied, he should like to know how much would be left to be divided. And what would become of the cottage? Why, it would certainly fall into the hands of the neighbouring landowner, who would give the largest sum for it. Thus the result of the Bill would be to extinguish—possibly in a single generation—that large and valuable class of small freeholders which had been created in this country with so much trouble by means of freehold land societies. The more important properties in the country were so tied up and secured by settlements and entails that they would not be affected by the Bill, and therefore he left them entirely out of the question. Although he did not regard the Bill, as some of its opponents did, as a mere step in the direction of still further changes, he should oppose the second reading on the ground that the measure would have the pernicious effects he had pointed out.
  THE SOLICITOR GENERALsaid, that he had for many years felt a deep interest in this question, and before he took Office his name was on the back of a Bill of this description. He thought that this was an excellent and admirable measure so far as it went, and, therefore, he trusted that the House would pass the second reading, so as to afford an opportunity for considering it in Committee, and remedying any defects of detail it might contain. The Bill had been debated that morning on considerations and arguments which went far beyond the scope of the measure itself, and far beyond any objects that those who brought it forward had present in their minds. Several interesting lectures had been delivered that morning respecting the pernicious effect which subdivision would have upon the culti-

  1861
  vation of land, upon the Peerage, and upon the great families of this country, and the discussion had branched off upon topics which the right hon Gentleman opposite, the Member for Oxfordshire (Mr. Henley), said with perfect truth had no application to the measure whatever; because it would have no effect whatever upon large estates, which were usually protected by ample settlements. This country was almost the only civilized country in the world that made any distinction between the laws that governed the descent of personal and of real property. In everyone of the United States (with the exception of Louisiana) the different classes of property rested upon practically the same foundation. Some onus, therefore, lay upon the Legislature that maintained the distinction. Under our present system were a man to die intestate having two houses adjoining each other, the one freehold and the other leasehold—though for a thousand years—by the operation of the existing law the two properties would be dealt with in a totally different way, for the one would technically be real and the other personal property. Surely, such a system required a stronger argument than mere antiquity to support it; but he must confess that he had never heard a single argument brought forward in its favour. Hon. Members had spoken as though this Bill were to force every testator to divide his property; but nothing could be more absurd than to suppose that a permissive measure like this would have any effect in that direction, as long as the sentiment of the people was in favour of transmitting landed estates to eldest sons. It should be remembered that the Bill would operate only in the event of intestacy. Property would not generally descend, according to the principles of this Bill, unless it were agreeable to the general sentiment of the country that it should do so. If the general sentiment were that the land should go to the eldest son, then there being left the option of willing it, such would be its devolution in ninety-nine cases out of 100, and so far the Bill would be inoperative. In every one of the United States the law of devise was as unrestricted as it was in England; but there the estate was never left to the eldest son, because it would be against the general sentiment of the country that it should be so left. The right hon.
  1862
  Gentleman the Member for Oxfordshire (Mr. Henley), said the measure would lead to the confiscation of small properties held by peasants, his assumption being that these people generally did not have title deeds and did not make wills. His (the Solicitor General's) experience, as a Revising Barrister in Somersetshire and Devonshire, however, was, that in most such cases there were title deeds and wills, or simple settlements. His experience again, was, that the small holder had not such an antipathy to the lawyers as the right hon. Gentleman seemed to think. Whether, however, there was or was not such a dislike, it was undoubtedly the fact that many of these poor persons were in the hands of the lawyers; and, in his opinion, the foreclosing of mortgages at inconvenient times was much more dangerous to these small properties than the provision of the present Bill. The hon. Member for Chippenham (Mr. Goldney) had made some conveyancing objections to this Bill. In reference to them he would say that it had been drawn by one of the best conveyancers in the country, and that it had been submitted to a very learned Judge, who did not see the objections which had been urged. There were, however, some points in the Bill which would require consideration, and perhaps amendment. The measure, as it stood, would hand over the wife's real estate to her husband absolutely, a result by no means to be desired. The machinery of the Bill appeared simple, and calculated to work easily and well. When it was said that the Court of Chancery would be brought into operation in all cases occurring under the Bill, it did not seem to be recollected that in the cases of small property there would not be a regular Chancery suit, but that the interference of the court would be in a summary way, by saying what would be an equitable way of apportioning the property. In conclusion, he would say that he believed that this Bill was a step in the right direction. He believed further, that it was a very small step, and it was one which he, speaking for himself alone, should like to see followed out to a much greater extent. He admitted, however, that the subject was one to be decided, not in compliance with his own opinion or that of any other hon. Member, but in accordance with the sentiment of the coun-

  1863
  try generally; for, after all, laws relating to property were merely the expression of the general good sense of the people. During the feudal times the feudal laws relating to real property received the support of public opinion; because the keeping the feud together, and the devolution of it to a single person answerable for service and for the defence of the realm, was then almost a necessary institution; but such a necessity never applied to personal property, and the result was that the laws as to the two kinds of possessions were different. Now, however, that those times had gone by, he saw no reason for retaining the laws that were identified with them, and he thought it would be only right to revert to the still more ancient English principle of fairly dividing the property among the descendants of the deceased. He believed that the effect of this measure would for a long time be very slight, because the great bulk of the landed property of this country was under settlement and entail, but that what effect it had would be a beneficial one. It would remove some of the anomalies of the law, for which there was no substantial justification. Any objections which could fairly be taken to the Bill might, as he had already said, be satisfactorily dealt with in Committee; and he, therefore, trusted that the House would think that Government was doing wisely in advising the House to agree to the second reading.
  MR. LOCKE KING, in reply, said he wished to draw the attention of the right hon. Gentleman the Member for the University of Dublin (Dr. Ball) to the prosperous condition of Belgium, where the principle of the division of property of a deceased person was adopted, compared with that of Ireland, where the English system was in force.
  Question put, "That the word 'now' stand part of the Question."
  The House divided:—Ayes 169; Noes 144: Majority 25.
  Main Question put, and agreed to.
  Bill read a second time, and committed for Wednesday next.

  PUBLIC SCHOOLS ACT (1868) AMENDMENT BILL.
  On Motion of Mr. Secretary BRUCE, Bill for amending "The Public Schools Act, 1868," ordered to be brought in by Mr. Secretary BRUCE and Mr. SOLICITOR GENERAL.
  Bill presented, and read the first time. [Bill 217.]
  House adjourned at five minutes before Six o'clock.