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 .1 ; but was
ll' JUSE OF COMMONS—(YESTERDAY.) Parliament to legislate for the case of this man o that man ?
Tlr . SpEAKER took the chair shortly after 12 o'clock. On the contrary, they were bound to look at the broad
PRIVATE BUSINESS. question as it affected the great mass of land wners of the
'in the motion of Mr. CHARLES FORSTER, the order country7(hear, hear)—and there was no ground for the.
'A the day for the committal of the Liverpool Corporation assumptiontitild ttleatttiviedaesdthe desire of of them that their
'Water Bill was discharged, and the bill was withdrawn. alltheir
among.children.. (Hear,
hear.) They were satisfied witn the law as it now stood,
PETITIONS. and they did not choose, or did not think it desirable to
Petitions were presented in favour of placing post-office
interfere with the disposition which that law made of
officials in the provinces on the same footing as those in the
their property. (Hear.) If any proof were wanted
metropolis ; and that any inquiry into the working of the
of this there could not be better than some of the informse
Licensing Act in Scotland should be conducted by Royal
tion which had been given the house by the hon. and learned
commission. member for Yarmouth. He read a letter from a solicitor in
REAL ESTATE INTESTACY BILL. considerable practice in the Midland counties, who thought
Mr. LOCKE KING, in moving the second reading of
this bill, said there was a great deal of misstatement and he knew sufficient about the feelings of the middle classes
on this subject to be able to give the House of Commons
misapprehension existing. The effect of the bill would some information. In the last two years he had made sixty
materially relieve a large number of small proprietors from wills, and, with one single exception, all had been made for
the operation of the present system, which affected them
most injuriously. It had been asserted that the present the p se of interfering with the rule of law and of divid-
ing the property among all the children. In the exceptional
law was in harmony with the feelings of the great body of
landed proprietors in the country. That he entirely instance, when the would-be testator heard from the solici-
tor that the heir-at-law was his sister, he said, "In that
denied ; because, as he had already stated, it was opposed case lam quite satisfied with the law, and I won't put you to
to their interests, and consequently not congenial to their the trouble of making a will." This was the logical assurrip-
feelings. He had been accused of a desire to introduce the tion in the majority of cases to,which the bill was intended
French law on this subject into this country ; but he did to apply. The state of the law being as well known in this
not know what was meant by the French law, as there country as any law could be, those who did net interfere
could be no division by testament of property in that with the rule of law, and did not put themselves to the
country. The more experience he acquired, the more con- trouble of making a will, were perfectly satisfied
of us-
to let the
vinced he was of the utility of making the law uniform in law take its course. (Hear, hear.) For every case inj
regard to every description of property. tice done by the present state of the law he would tindeed
Lord W. W. GRAHAM moved as an amendment that the take to produce cases in which what any ?man who view
bill be read a second time that day six months. He con- the moral duties of a parent to his family in the same light
sidered that the effect of the bill would be most disastrous. as the hon. member for Surrey viewed them must call great
It was said that the measure did not attack the law of hardship, was inflicted upon families
primogeniture, but though it did not do so directly it did so by the p
era, and yet
call great
wills. Such wills as these were every Y,
y matt
indirectly, and they might rest assured that any attempt to it would be just as reasonable for the Legislature to step in
abrogate or restrict that law in the slightest degree would to remedy hardships which were inflicted on children by
eventually lead to enactments that would terminate in its
total abolition. If such a result took place they had no the provisions of their father's will as it would be to inter-
fere with hardships which might be caused by there being
guarantee for the permanence of the constitution of the no will at all. (Hear, hear.) When the question came to
country. That constitution, he contended, was maintained be viewed on the assuption that there were no children, and
by the continuance of large properties, and any alteration the next heirs were distant relations—say cousins—the ar-
in the present system could not fail to work most injuriously. gument which he had been laying before the house became
He believed that the minute division of land in France led still more irresistible. By what process of reasoning
to revolution in that country, and it had also proved detri- could it be assumed that it was the intention of a man who
mental to the interests of agriculture. died without a will, knowing the state of the law, that hie
Mr. MELLOR supported the second reading of the bill. estate should not go to the one whom he had been accus-
He contended that the existing law had its source in tomed all his life to look on as his heir-at-law, but be divided
feudal days, and was opposed to the ancient laws on the among all his cousins. (Hear, hear.) It was absurd for
subject of division of property. At present the wife and any one to take upon himself to affirm that it must have
younger children were placed entirely at the mercy of the been pure accident which allowed this owner of land, with
eldest child, and such a state of things was opposed alike a number of distant relatives, to die intestate, and not to
to morality, religion, justice, and even common senses give his land among all those relatives. (Hear.) The last
Tear, hear.) The reason why the table was not covered question, whether this change was expedient, was one which
swish petitions on this subject was that the cases of injustice ought to be considered dispassionately, and perfectly apart
under the present system were not sufficiently known or so from any of those moving appeals about distressed widows
sufficiently numerous as to excite a and portionless younger children. The policy of the law
general feeling on
subject ; but that system was not the less unjust because assumed it to be the duty of the Legislature to provide the
its operation was not more extended. It had been
died freest possible power of disposition of landed and all other
said that the number of small proprietors who property, whether by will or in the lifetime of the owner.
intestate was conclusive in favour of the presentlaw, be- The Legislature was bound to simplify conveyances, settle-
cause it showed they did not wish to avail themselves o merits, and wills in every possible manner; and for years
making a distribution of their property amongst their chil- past it had been doing that with more or less success.
siren. But it was a fact that so many of the class alluded Endeavours had been made to remedy the defects
to dying intestate was in consequence of their delaying which had been from time to time suggested, but
their wills until they were surprised by death. the question now to be discussed was, what, in this
Mr. HENLEY support the amendment, and argued
be very detrimental to the lower country, in which the freest possible power of distribution
that the present bill would
was given, was to be the doctrine and policy of the law
class of small proprietors. where no disposition was made ? Hon. gentlemen opposite
Sir G. LEWIS said he understood the object of the bill
between the division of real estate contended that the present policy of the law had been intro-
was to assimilate the law
duced with feudal tenures ; but, granting that, there could
and personal estate. He thought such a measure was not be no objection to it if it could be shown that it was in con-
only unnecessary, but would be most injurious, and that sonance with the present feeling of the country, accom-
it was not demanded by the very class for whose benefit it panied as it was by
what we had not under the feudal sys-
was introduced. Hon. members must be aware that the
present law was closely identified with the constitution of m, the freest power of disposition of property. No doubt,
unaccompanied by that free power of disposition, a law
the country, and such being the case, and there being no
passed real property to the eldest son was a heavy
which
expression of the public opinion in favour of the bill, he g •
rievace. (Hear, hear.) But along with this law there
would vote against the second reading.
had grown up two circumstances which entirely changed
Mr. M. MILNES said that he had heard no argument
its character, this free power of disposition, and the accu-
to alter his opinion, which was that the bill of the hon. mulation of a mass of personal property, which was un-
member would be beneficial to the class for whom it was known in the feudal times, by which provision could be
intended—namelb the middle class of society. He came made, and by which the law made provision, for younger
to the consideration of the subject quite independent, and children. (Hear, hear.) The consequence was, that what-
he would, as he had done on a former occasion, support the ever might have been the origin of the law, it had begun by
measure. justifying the dispositions made in conformity with it, and
The SOLICITOINGENERAL said his objections to the these dispositions m turn had engendered habits and pro-
bill were not founded simply upon any technical view of duced a state of circumstances which had become in turn
its provisions. He believed the hon. member for Surrey the justification of the reacted.) Like everything else
in nature, one thing had upon another. The law
would be surprised at many of the consequences which had produced a certain state of feeling in society, and that
would be produced by his bill. It was by no means an un- state of feeling so produced had become in turn the justi-
common occurrence that a testator might have made a will fication of the law. (Hear, hear.) In thehfirst
an horse
devising his real property, and yet have died intestate with lit.w harmonised NV(itheaanr r
H )helendithe nmexotnapxleacTpeaing Of
regard to his personal property ; and the effect of the bill
the principlePe Of the law, not merely as it affected the dis-
would be this—there would be an administration, under position of the estates of intestates, but as manifested in
which his real estate would be distributed among his next the habits of the country with regard to entails and settle-
of kin in defiance of His will. He could multiply instances ments—it tended to keep up a class essentially distinct from
of that kind, for their name was legion. The view taken the aristocracy of mere wealth—an aristocracy produc.ed,
and rightly produced, by successful commercial enterprise.
of the bill by the right hon. hart. the member for Radnor In the next place, the law was favourable to the agricul-
was perfectly correct as to its effect upon the law of titre of the country ; its tendency had always been to
descent with regard to real property. Every real estate encourage production on a large scale; and as Mr.
in the kingdom would pass to an administrator, and would Mill had justly observed, whenever a people had been
be liable to be sold by the administrator for payment of accustomed to production, either agricultural or m - anu
facturing, on a large scale, they would not willingly
the debts of the trustee. (Hear, hear.) Take the case relinquish the advantages of it. Again, the law
of a man possessing an estate which he had acquired by was most important in a social point of view. It kept fend-
descent through his' mother. Suppose he had one cousin lies together by preserving the headship of families. (Hear,
upon his mother's side and 19 cousins upon his father's side. hear.) The certain effect of a division of property such as
that recommended was in the second generation to dwarf a
'Under this bill 1-20th of that estate would go to the cousin family down to the rank of petty squires, and in the next
on the mother's side, and the other 19-20ths would go to generation to dwarf it to the condition of mere peasants.
the cousins on the father's side. (Hear, hear.) Take the (Hear, hear.) In the next place, while it preserve to them
case of a large family estate descending to a married woman their social station and position, the law excited younger
who had more sons than one. She had no power to de- brothers to ambition and emulation in a manner that no
other system in any country was ever known to do before—
vise. And, if this bill—which was said to be for the pro- (hear) ; and it stimulated the parents of families also to
tection of children—passed, that estate would be taken make provision by frugality and economy and industry also
away from the sons and given to the husband, who had a for the younger branches ; while at the same time it gave
statutory right to administer to his wife's property. These them the certainty that the importance of the family would
be reserved by the headship of the eldest son. (Hear.)
were some of the consequences flowing from a bill of this These were the conclusions at which he had himself arrived,
kind; and yet the house was now seriously asked to give a and, without desiring to dwell on them or to enlarge on
second reading to it. If these consequences had flowed them, he begged the house to take them into its serious
merely from some defects in the bill which could have consideration. (Hear, hear.) They were the views which
been remedied in committee, the hon. member for Surrey had been supported by the best authorities and the most
eminent writers in all times. If ever there was a man deeply
would have had a better claim to ask the house to read his penetrated with an abhorrence of all injustice it was Sir M.
bill a second time ; but they flowed from the principle of Hale. He was not a member of the aristocracy ; he was the
the bill, and to a bill based on such a principle the house architect of his own fortune, he had little connection with
ought not to give a second reading. Certainly, in intro- land, and he was far removed freen the sphere of party in-
fluence.ducing- the bill, the hon. gentleman had mentioned one case
rand
aSpeakingttsrtl of
Normantha t
esystemohqu
conquest,
ieveU3:ewvealieaddjanlitorai
which really was one of great hardship. Suppose a man tenures, under which, there being no power of free distri-
contracted for the purchase of an estate, and had got toge • bution, the custom of the law was to divide landed property
ther say L 50,000 to compete the purchase, but died before equally among all the sons, Sir M. Hale said :
it was completed, intestate, the heir-at-law might require "It weakened the strength of tho;inlrefiltoam ; for, by fre-
that £50,000 to be applied to the completion of the par- Trot Jiie
ticiceeylling
became
subdividing
sou divided and crumblceeds., thla process
trtolcieerses
chase, and then he would take the land so purchased, to were few persons of able estates left to undergo public
the detriment of the other members of the family. That charges or offices. Secondly, it did by degrees bring the
was the law of the country, and he agreed with the hon, inhabitants to a low kind of country living; and families
gentleman that it was a discredit to us, and that it ought were broken ; and the youngera sotnos,
themselveswhich, had nott
military
oor,
to be remedied. But surely it was not wise to change the hwaoduitdhisaevelli3tettlaekpenarettsmosfeh% d
whole policy which regulated descent in this country aim- land
to traaleps,yor to
civil or ecclesiastical employments, neglecting those oppor-
ply because such a grievance as that existed. It would be tunities, wholly applied themselves to those small divisions
about as reasonable to prohibit men from buying land alto- of land, whereby they neglected the opportunities of greater
gether. (Cheers.) Of all men in the world the honourable advantage, of enriching themselves and the kingdom."
Take another instance. Sir John Davis wrote a book on the
member for Surrey ought to be the last to use such an ar- state of Ireland, and anybody who had read that book must
gument, for it was but a few years ago that he had carried acknowledge that he was a clear-sighted man, and that he
a bill to remedy the injustice of the law which au- 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
thorised an heir-at-law to compel the payment of
whichs sliarnMiairep
the mortgage money upon. an estate out of the
eaqwuaollygaavmeon.gudalP&eson wrote
divided
personal property of a testator. He had not been able "This Irish custom of gavelkind' did breed another mis-
to understand clearly at the time why the hon. gentleman chief ; for, every man being bornto land, they all held them-
had not included this case, which was identical in principle, selves to be gentlemen. And, though their portiors were
in that bill. If he wished to remedy the hardship the bestsmall, and ever sopoor for gavelkind
ever so themselves (
must needs in the end make a poor gentility), yet they
way would be for him to introduce a bill to amend his for- scorned to descend to husbandry or merchandise, or to learn
suer Act, but Parliament ought not to be asked to convulse any mechanical art or science."
the country and alter the rules by which the descent of land That was the state of things in a time and country where no
was regulated for that simple purpose. But, coming now free disposition of property existed, and tke bill which the
hon. member for Surrey wished to pass into a law would
to the discussion of the general question, these three things
bring about a similar state of things in this country. (Hear,
ought to be shown by all those who proposed to Parliament hear.) The hon. and learned member for Yarmouth used
so grave an alteration in the law of descent in this country an argument of convenience which certainly was not to be
—First, that there was a strong desire entertained for legis- expected from hint. He professed to know something of
lation on the subject ; next, that the present law occasioned wills.
could told the house that as the heir-at-law knew that
hardship ; and lastly, that the change which they proposedlassputing the will
ifillieeretreup:aset thete millhew ould gtetfotrh.e whole property,
was consistent with expediency and sound policy. (Hear, hew would be sure to do slightestt. That was true
hear.) far as it went,
Who wasit that desired this change ? Some of them he but what did the argument amount to ? The hon. and
knew and their motives also. The hon. member for Sheffield, learned gentleman wished to deprive the heir-at-law of his
for instance, supported the introduction of the bill on the motives for litigation, and his proposition came to this, that
ground that it put an end to all difference between land and whereas the inducement was now confined to the heir-at-
law, in future if any member of the family were disappointed
money.
The hon, member thought that, if carried, it would
in any way with the will, if the testator did not, m fact
enable the State to levy probate duty on land, and to treat divide his property perfectly equally, he might dispute the
it altogether as if it were so much money. His reasons for will in the same manner. The inducement would be dis-
supporting the bill were not an much that it remedied a tributed all over the family, and instead of one suit there
hardship as that it squared with a theory of his own, that would be 20. (Cheers.) The hon. gentleman who spoke
there ought to be no difference for last said he had no desire to interfere with the free
ar-
land and money. But what were theany purpose between
this reasons of the hon. distribution of property in this country. Take the two
member for Surrey in desiringgold
notln intro- memberguments together. From the argument of the hon. and
clueing. the bill his argument was thatcl•litawn
the great proprietors of land • that it woeutrldeantoittemeddle _ learned for Yarmouth, any man who wished to
merely touch avoid litigation must divide his property perfectly equally
with entails and settlements, ;that and what became then of the free distribution of property?
object which was announced on the back of the bill.am?
let The argument of the right hon. member for Radnor was
the hon. member had unfortunately written a book on this
subject,
great advantage to have the irresistible. At present we had a state of things with which
subject, and it was always of there was perfect content throughout the country. To pass
book the hon.
detailed and considered opinions of the person who proposed this law would be
a legislative declaration that all the
a change on a point of this gravity. In that settlements of this country were based upon a false prin-
gentleman said that he was altogether against theprinciple ciple, and, although no restriction would be imposed on
of entails and the principle of settlements, and though it them, they would be branded with the imputation of injus-
had been suggested that this bill would affect entails and tice. (Cheers.) It was true this bill would not touch
the distribution of landed property, heo did not think it them, but in a short time an agitation would be got up on
would directly ; yet if it did, it would only make him like the part of those who felt that they were treated with in-
his own bill better. (Hear, hear.) In laying his bill before justice ; they would come to Parliament and ask to deal
the house the hon. gentleman with
used those arguments -which and curb all the settlements and entails in the country
'tion but in •
b, on the same • •
he thought most likely to stave off opposi , . ma all h principle, and then would be lost that which
book he avowed that his desire went beyond the bill, and en. members professed not to desire to disturb—the free
that he looked for the abolition of the law of entail and Power of distribution cif property. This was not a reform of
settlement in this country. (Hear, hear.) the law. A proposal of this kind, launched in the Housed'
Mr. LOCKE KING—WiII the Solicitor-General quote Commons with all '
to produce the its defects, and tending in its operation
the passage ? I don't know that I have said anything against
might use th
s results which he had stated, brought, if he
settlements, though I may have said something against the term " the expression with all respect, discredit upon
entails. to alter the position of of the law." It was a mere attempt
land as one of the social elements in
The SOLICITOR-GENERAL would quote the passage this country, and to destroy the influence and importance
willingly, but would the hon. gentleman say what he meant which belonged to it. It was achange which the country
by entails if they we not settlements, or by settlements if did not desire—(hear, hear)t
was one justified by no
re
they were not entails ? (Hear.) This was the passage-- hardship and warranted _.
by no
I
for Pontefract had said sound
policy The hon.
" I feel that there is no reason to object to this measure member
ared with our he was prepared to show
lest it should tend to increase the number of landed pro- that, as comp
in r own law, the law of compulsory
prietors. If it should do so, if it should cause a decrease in partition established -ranee had worked well, and had,
the size of some of the already overgrown estates, it will in fact, cited as a conservative element during the re-
confer a greeter benefit than even I expect from it. I have volutions to which that_ country had been exposed. (A
already shown that it cannot interfere with entails ; that laugh.) It was astonishing that such a doctrine should
entails are an evil, and that this measure ought not to be have proceeded from so reflective a person as that
refused from an imaginary fear it might tend to correct hon. member. No doubt the hon. gentleman
what seem had
atome so great an evil." read, with the pleasure which all who had perused
(Hear, hear.) That was the hem gentleman's desire, there- it must have felt, the work of that eminent authority, M.
fore, in passing this bill. But who desired this bill out of de Montalembert, on " The Future of England." In every
doors ? The question concerned all the owners of land in interesting chapter the author treated of the effects of the
the
country;
and, in considering what the State ought to law of settlement and entail and the right of inheritance in
do for the owners of land when th died intestatethe this contrasted with the contrary system •
first object ought to be to ascertain , very country, as . in
with sins felicity the operation
would do themselves, for everybody what the owners of land France, and pointed out e
would have a perfect right to disposeof
admitted that they of our law in preventing on the one side the impulse
of
pleased. No petitions had been
subject, so that it was presentedimpossiblto
from them on the the other. M. de Montalembert wound up his chapter in
that mode, and it was only left learn their opinions in these words :
therefore to look at "The tempestwill harmless over England until the
their practice. Settlements were just ae pass
• • lion shall declare
expression of the wishes of owners of land for much the day arrives when the force of public ou
position of their property as wills. There was e die-
itself against this system. Then, and not
precipitates
ference between the two, and the wishes of theno di f- have taken the first step on that incline which
of the landowners of the country on this subject we great body a nation through the shocks of
revolution into the abyss of
fested by the habit and custom of settling their prohas
re mem- despotism. (Cheers.) Up to the present time there
supporters of this bill argued the
(Perty. been but one premonitory symptom of this—the proposal
(Hear.)
roposal
(Hear.) Thequestion of made in the House of Commons • 18-4 by the menis
the hardship of the law in a very inconclusive an unsound
manner. They began by assuming that whenever a man ben for Surrey—(laughter)—for an inquiry into the law of
descent. this proposal
who had several children died intestate he did not mean appearsnßeiettertectlobirt a considerable majority, ty
echo nor have left a
that his property should go to his eldest sou, and that, tre. (Cheers.) But iso
an oanmenecwhinch far-seeing' men
4
theropro, by wad A afferer by the Preeezit law, But what .-which all tree friends of liberty—(renew©d cheers)—will