The Evening Star WEDNESDAY, AUGUST 28, 1872

Evening Star, Issue 2972, 28 August 1872, Page 2

The Evening Star WEDNESDAY, AUGUST 28, 1872

Pupltc interest is so completely absorbed iu the contest for administrative power in the House of Representatives that the proceedings in the Legislative Council are overlooked. There seems in that august Assembly to be a difforent atmosphere from that which is breathed in the more popular chamber. Very rarely do the public hear of those bitter party fights that mark the striv ing of the “ outs” to get into office, and the “ ins” to retain their seats : yet there are occasionally measures which have their origin in the Council, and are discussed there, that, if adopted by Parliament, tend to effect even greater social revolutions than the construction of railroads. For three sessions the Hon. Mr Waterhouse endeavored to introduce a Bill for the more equitable distribution of the landed estates of persons dying without leaving a will, and this session the Hon. Mr Hall, the Government representative in the House, brought forward a similar measure. The necessity for some plan by which an equitable distribution of all property shall be made amongst the descendants or relatives of a person dying intestate, is obvious. Our present law of primogeniture which enables the eldest son to take possession of the landed estate of a father dying intestate is a manifest injustice to tho rest of the family. There is no analogy between the social condition of the Colonies and the social institutions of countries like those of Europe, which are founded upon ancient feudal principles. At Home real estate is looked upon as something sacred, and the law has hedged it round with a vast variety of cumbrous safeguards, tending to conserve it for the use of the son who happens, luckily for himself, to come first into the family; but since the law does not provide that any portion of the revenue shall be invested as an insurance fund for the support of those who may afterwards appear in the shape of younger brothers or sisters, it often happens that while the first born is rolling in wealth the junior branches of a family may have a life’s struggle with poverty. The injustice of this system, though acknowledged on all hands, has not forced itself so prominently upon the minds of the people at Home as to lead to any effort to place real estate upon the same footing as personal property. In the Colonies, however, wo start from a different point. No such reasons for so arbitrary and unjust an arrangement can be adduced in favor of the law of primogeniture in them, as in Groat Britain. We begin on an equality, socially. In Great Britain it is true that the peculiar phase of society out of which tho law of primogeniture grew, has passed away. Industry and commerce have superseded the necessity for vesting the headship of a family in one whose title to the position was settled by law or custom, and who was tho leader in war and the supporter of bis retainers, serfs and villeins. The only object to be served now by the retention of the law there, is the perpetuation of the institution of aristocracy—an institution, that it is needless to say would be utterly at variance with the democratic constitutions of the Colonies, It would have been better if the difference had been foreseen and provided agajnst before an .acre of laild had been alienated from the Crown; but the experience in kingdom making of the first Colonists did not extend so far as to realise the inconvenience and injustice that must necessarily arise through the adoption of the most exceptionable feature of British law. The object of the Bill introduced by

Mr Hall was to remedy the evil already done. Un introducing the Bill and stating its objects, lie said : In this Colony, it was far from being desirable that in crimes of intestacy the whole of the real property should go to the eldest son. especially looking to the fact that the bulk of the property of persons of small means consisted of land. In too many cases, people possessed of small moans died without a will, ' and the only property left consisted of land that had been acquired and improved by the exertions of the hither and all his children ; it was unjust and impolitic that all these savings should go to the eldest son, and the rest of the family unprovided for. Tho ’ 'ill proposed to deal with the subject in a bold and sweeping manner, but he begged to assure the Council not at all in an uoconsidered manner. It proposed to lay down the principle referred to in cases of intestacy leaving of course to every owner of property the right to demise it by will as he liked ; it was not intended to adopt the system in force in some European countries, where landed estate must absolutely be divided between children, the parents being deprived of the right to do otherwise—a state of things that led to the subdivision of land to an extent that would be extremely undesirable, and should be guarded against. The Bill provided that real property, where it was devised by will, should go to the executors instead of passing direct to the heir or heirs, an alteration which, for many reasons, would bs very advantageous.

The Bill was opposed by the Hon. Mr Sewell on legal grounds, although he admitted the necessity for some such measure. The Hon. Mr Mantell opposed it on unintelligible grounds ; the Hon. Colonel Brett on socio-military grounds ; the Hon. Colonel Whitmore on aristocratic. As an instance of the peculiar logic urged by that gentleman against the measure, he said :

The Hon. Mr Waterhouse, in supporting the Bill, alluded to the sense of “ natural ” justice demanding that such a measure should be passed, but he (Colonel Whitmore) would ask upon what principle he would deal with the “natural” children of a man who died intestate ? It was a very nice question to decide, whether such children were not as much entitled to a division of the property by “ natural justice ” as legitimate children. He did not think there was any obligation in nature, in law, or in custom, calling for an equal provision for all a man’s children; for the fact was, that in our country it was very usual for the father to employ all his available income in the education of the younger children, or in starting them in business, and it was necessary that the landed property should descend to the eldest sou, so that he might retain his position as guardian and protector of the family in the event of the death of the father before the younger members were provided for.

The result of the motion for the second reading was the adoption of the following amendment by the Hon. Mr Sewell, in favor of which 13 voted and 10 against:—

That, in the opinion of this Council, it is expedient that the Government should, at the earliest period, prepare and bring in a Bill for altering the law of descent of real estates in cases of intestacy, as far as regards the rule of primogeniture.

The question deserves more consideration outside the walls of Parliament than it has received.