The Sun.
London, England, 1859-03-03 00:00:00

ground was there for such an assumption ? (Hear, hear.)
In some single instance it might, perhaps, be known or in-
ferred from certain facts that a man had intended to make
a will leaving his land among his several childre , but was
Parliament to legislate for the case of this man 0 that man ?
On the contrary, they were bound to look at the broad
question as it affected the great mass of land wners of the
country—(hear, hear)—and there was no ground for the
assumption that it was the desire of all of them that their
land should be divided among all their children. (Hear,
hear.) They were satisfied wits the law as it now stood,
and they did not choose, or did not think it desirable to
interfere with the disposition which that law made of
their property. (Hear.) If any proof were wanted
of this there could not be better than some of the informa-
tion which had been given the house by the hon. and learned
member for Yarmouth. He read a letter from a solicitor in
considerable practice in the Midland counties, who thought
he knew sufficient about the feelings of the middle classes
on this subject to be able to give the House of Commons
some information. In the last two years he had made sixty
wills, and, with one single exception, all had been made for
the purpose of interfering with the rule of law and of divid-
ing the property among all the children. In the exceptional
instance, when the would-be testator heard from the solici-
tor that the heir-at-law was his sister, he said, " In that
case I am quite satisfied with the law, and I won't put you to
the trouble of making a will." This was the logical assump-
tion in the majority of cases to which the bill was intended
to apply. The state of the law being as well known in this
country as any law could be, those who did net interfere
with the rule of law, and did not put themselves to the
trouble of making a will, were perfectly satisfied to let the
law take its course. (Hear, hear.) For every case of injus-
tice done by the present state of the law he would under-
take to produce cases in which what any man who viewed
the moral duties of a parent to his family in the same light
as the hon. member for Surreyviewed them must call great
hardship, was inflicted upon families by the provisions of
wills. Such wills as these were everyday matters, and yet
it would be just as reasonable for the Legislature to step in
to remedy hardships which were inflicted on children by
the provisions of their father's will as it would be to inter-
fere with hardship which might be caused by there being
no will at all. (Hear, hear.) When the question came to
be viewed on the assuption that there were no children, and
the next heirs were distant relations—say cousins—the ar-
gument which he had been laying before the house became
still more irresistible. By what process of reasoning
could it be assumed that it was the intention of a man who
died without a will, knowing the state of the law, that his
estate should not go to the one whom he had been accus-
tomed all his life to look on as his heir-at-law, but be divided
among all his cousins. (Hear hear.) It was absurd for
any one to take upon himself to, affirm that it must have
been pure accident which allowed this owner of land, with
a number of distant relatives, to die intestate, and not to
give his land among all those relatives. (Hear.) The last
question, whether this change was expedient, was one which
ought to be considered dispassionately, and perfectly apart
from any of those moving appeals about distressed widows
and portionless younger children. The policy of the law
assumed it to be the duty of the Legislature to provide the
freest possible power of disposition of landed and all other
property, whether by will or in the lifetime of the owner.
The Legislature was bound to simplify conveyances, settle-
ments, and wills in every possible manner ; and for years
past it had been doing that with more or less success.
Endeavours had been made to remedy the defects
which had been from time to time suggested, but
the question now to be discussed was, what, in this
country, in which the freest possible power of distribution
was given, was to be the doctrine and policy of the law
where no disposition was made ? Hon. gentlemen opposite
contended that the present policy of the law had been intro-
duced with feudal tenures ; but, granting that, there could
be no objection to it if it could be shown that it was in con-
sonance with the present feeling of the country, accom-
panied as it was by what we had not under the feudal sys-
tem, the freest power of disposition of property. No doubt,
unaccompanied by that free power of disposition, a law
which passed real property to the eldest son was a heavy
grievance. (Hear, hear.) But along with this law there
had grown up two circumstances which entirely changed
its character, this free power of disposition, and the accu-
mulation of a mass of personal property, which was un-
known in the feudal times, by which provision could be
made, and by which the law made provision, for younger
children. (Hear, hear.) The consequence was, that what-
ever might have been the origin of the law, it had begun by
justifying the dispositions made in conformity with it, and
these dispositions in turn had engendered habits and pro-
duced a state of circumstances which had become in turn
the justification of the law. (Hear.) Like everything else
in nature, one thing had reacted upon another. The law
had produced a certain state of feeling in society, and that
state of feeling so produced had become in turn the justi-
fication of the law. (Hear, hear.) In the first place, the
law harmonised with an hereditary monarchy and an here-
ditary peerage. (Hear.) In the next place—speaking of
the principle of the law, not merely as it affected the dis-
position of the estates of intestates, but as manifested in
the habits of the country with regard to entails and settle-
ments—it tended to keep up a class essentially distinct from
the aristocracy of mere wealth—an aristocracy produced,
and rightly produced, by successful commercial enterprise.
In the next place, the law was favourable to the agricul-
ture of the country ; its tendency had always been to
encourage production on a large scale ; and as Mr.
Mill had justly observed, whenever a people had been
accustomed to production, either agricultural or manu-
facturing, on a large scale, they would not willingly
relinquish the advantages of it. Again, the law
was most important in a social point of view. It kept fami-
lies together by preservinr, the headship of families. (Hear,
hear.) The certain effect of a division of property such as
that recommended was in the second generation to dwarf a
family down to the rank of petty squires, and in the next
generation to dwarf it to the condition of mere peasants.
(Hear, hear.) In the next place, while it preserved to them
their social station and position, the law excited younger
brothers to ambition and emulation in a manner that no
other system in any country was ever known to do before—
(hear) ; and it stimulated the parents of families also to
make provision by frugality and economy and industry also
for the younger branches ; while at the same time it gave
them the certainty that the importance of the family would
be preserved by the headship of the eldest son. (Hear.)
These were the conclusions at which he had himself arrived,
and, without desiring to dwell on them or to enlarge on
them, he begged the house to take them into its serious
consideration. (Hear, hear.) They were the views which
had been supported by the best authorities and the most
eminent writers in all times. If ever there was a man deeply
penetrated with an abhorrence of all injustice it was Sir M.
Hale. He was not a member of the aristocracy ; he was the
architect of his own fortune, he had little connection with
land, and he was far removed from the sphere of party in-
fluence. Speaking of that system which prevailed just be-
fore and after the Norman conquest, when we had allodial
tenures, under which, there being no power of free distri-
bution, the custom of the law was to divide landed property
equally among all the sons, Sir M. Hale said :
" It weakened the strength of the kingdom; for, by fre-
quent parcelling and subdividing of inheritances, in process
of time they became so divided and crumbled that there
were few persons of able estates left to undergo public
charges or offices. Secondly, it did by degrees bring the
inhabitants to a low kind of country living; and families
were broken ; and the younger sons, which, had they not
had these little parcels of land to apply themselves to,
would have betaken themselves to trades, or to military or
civil or ecclesiastical employments, neglecting those oppor-
tunities, wholly applied themselves to those small divisions
of land, whereby they neglected the opportunities of greater
advantage, of enriching themselves and the kingdom."
Take another instance. Sir John Davis wrote a book on the
state of Ireland, and anybody who had read that book must
acknowledge that he was a clear-sighted man, and that he
had written with as little bias one way or the other as it was
possible for a man to have. Speaking of the effects of the
law of gavelkind, by which landed property was divided
equally among all the sons, Sir J. Davis wrote :
"This Irish custom of gavelkind did breed another mis-
chief ; for, every man being bonito land, they all held them-
selves to be gentlemen. And, though their portions were
ever so small, and themselves ever so poor (for gavelkind
must needs in the end make a poor gentility), yet they
scorned to descend to husbandry or merchandise, or to learn
any mechanical art or science.
That was the state of things in a time and country where no
free disposition of property existed, and the bill which the
hon. member for Surrey wished to pass into a law would
bring about a similar state of things in this country. (Hear,
hear.) The hon. and learned member for Yarmouth used
an argument of convenience which certainly was not to be
expected from him. He professed to know something of
wills. He told the house that as the heir-at-law knew that
if he could upset the will he would get the whole property-,
where there was the slightest pretext for disputing the will
he would be sure to do it. That was true as far as it went,
but what did the argument amount to ? The hon. and
learned gentleman wished to deprive the heir-at-law of his
motives for litigation, and his proposition came to this, that
whereas the inducement was now confined to the heir-at-
law, in future if any member of the family were disappointed
in any way with the will, if the testator did not, in fact
divide his property perfectly equally, he might dispute the
will in the same manner. The inducement would be dis-
tributed all over the family, and instead of one suit there
would be 20. (Cheers.) The hon. gentleman who spoke
last said he had no desire to interfere with the free
distribution of property in this country. Take the two ar-
guments together. From the argument of the hon. and
learned member for Yarmouth, any man who wished to
avoid litigation must divide his property perfectly equally
—and what became then of the free distribution of property?
The argument of the right hon. member for Radnor was
irresistible. At present we had a state of things with which
there was perfect content throughout the country. To pass
this law would be a legislative declaration that all the
settlements of this country were based upon a false prin-
ciple, and, although no restriction would be imposed on
them, they would be branded with the imputation of injus-
tice. (Cheers.) It was true this bill would not touch
them, but in a short time an agitation would be got up on
the part of those who felt that they were treated with in-
justice ; they would come to Parliament and ask to deal
with country
and curb all the settlements and entails in the count
011 the same principle, and then would be lost that which
8.
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the law. A proposal of this kind, launched in the Houseof
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to produce the results which he had stated, brought, if he
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hon. member. No doubt the hon. gentleman had
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Perused
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de Montalembert, on "The Future of England. In a very
interesting chapter the author treated of the effects of the
law of settlement and entail and the right of inheritance in
this country, as contrasted with the contrary system in
France, and pointed out with singular felicity the operation
of our law in preventing on the one side the impulse of
democracy, and in checking the influence of despotism on
the other. M. de Montalembert wound up his chapter in
these words :
" The tempest will pass harmless over England until the
day arrives when the force of public opinion shall declare
itself against this system. Then, and not till then, she will
have taken the first step on that incline which precipitates
a nation through the shocks of revolution into the abyss of
despotism. (Cheers.) Up to the present time there has
been but one premonitory symptom of this—the proposal
made in the House of Commons in 1854 by the hon. mem-
ber for Surrey—(laughter)—for an inquiry into the law of
descent. Rejected by a considerable majority, this proposal
appears neither to have found an echo nor to have left a
trace. (Cheers.) But it is an omen which far-seeing men
—which all true friends of liberty—(renewed cheers)—will