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MR OSBORNE MORGAN ON THE LAW…

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MR OSBORNE MORGAN ON THE LAW OF PRIMOGENITURE. In the debate in the House of Commons on Wednesday, July 10th, on the Real Estate Intes- tacy Bill, Mr Osborne Morgan defied anybody to say that reason, or nature, or justice, required that a man's property, whether real, leasehold, or personal, .should go entirely to his eldest son and that his widow and his other children should be left destitute. The hon. member for Wexford had talked about the natural devolution of pro- perty. Was it the natural devolution of property that the widow and youngei children should be thrown penniless on the world ? [Sir G. Bowyer I never said anything of the sort" (laughter).] If they defended such a law, they must do so on some strong ground of public policy. In the feudal ages, when all England was a fortified camp, and all land was held on military tenure, there was a strong ground of public policy for primo- geniture, and primogeniture then prevailed. But when the circumstances on which it rested had entirely disappeared, the law was no longer defen- sible. Surely the rule, Cessante causa, cessat ipsa lex" should hold good in that case. The law had been changed in most countries, but not in Conservative England. Moreover, in feudal times, the severity of primogeniture was tempered and moderated in a way in which it could not be now, because by custom, which had the force of law, the eldest son was then the protector of the family in a sense in which no eldest son could now be. By custom he was required and almost compelled to provide portions for his sisters. His younger brothers, too, ate at his board, slept under his roof, and fought under his banner. Dower, also, in those times, was a real prevision but in later days the ingenuity of the conveyancers, seconded by the action of the Legislature, had so pared it down that it had ceased to be a provision for the widow at all. In listening to some of the opponents of that Bill, one might think it would iuterfere with the whole fabric of our territorial system, from the House of Lords down to the 40s free- holder (a laugh). But the measure did not in the least meddle with what were called family estates, which were settled estates. He would point out to the hon. member that it was very seldom that a man died intestate as regards landed estate, and that the other instances of intestacy were much rarer in cases of real than of personal property. No one proposed to curtail the existing powers of disposition. There were now and then cases in which, owing to sudden death or accident, or to the singular superstition that sometimes made persons reluctant to make a will, men died intes- tate as regards land. What then, was the duty of the law ? He took it that its best object was to do that which nature and reason and justice required, and to give effect to the probable wishes of the dead man himself. There had been a good deal of random talk on the subject, but he might say that his experience of 16 or 17 years enabled him fully to confirm what had been said by the hon. member for Reading, that in four cases out of five small landed properties were given not to the eldest son, but were divided among the several children (hear). No doubt a man might sometimes devise even a small property to his eldest son, but 'that would not be done very often without making some pro- vision for the younger children. As the law now stood, persons left their property less and less t) the eldest son. There was also an artificial dis- tinction between freehold and leasehold, but in some cases of which he knew the two were so com- pletely mixed together that it was hardly possible, to say which was which. There was another point of view from which it would be rccognised that the Bill conferred benefits. It would greatl y facilitate the transfer of land, and would do away with much of the cost of conveyancing. At any rate, ho should vote for the Bill in the belief that it would remove an anomaly, an anachronism, and an injustice; and he thought that a time would come when men would merely wonder at the system that had been so long tolerated (hear, hear).

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