Mr. Tierney stated, on the part of the East India company, that they had only been apprehensive that the trade, when permitted, might be extended to other parts; for instance, to China; these were in the contemplation of the government, and, when they had received satisfactory assurances that the trade should not be extended beyond its precise limits, they had ceased to have any objection to

the bill.

Mr. Jacob and Lord Temple explained.

Sir Charles Price stated, that the object of the peti tioners was to have their right ascertained, and for that purpose they had presented themselves to the House, without meaning any opposition to the whole principle of the bill.

The bill was then read a second time, and ordered to be printed.

On the motion that it be committed on, Monday,

Mr. Rose, now that he understood that the bill was to have a retrospective operation, approved of it so far as: related to the covering the vessels from capture; but with regard to its retrospective operation as to the policies of insurance, he had some doubts. The underwriters had a legal right to decline the obligation of the policies, and though it would not be very honourable in them to take advantage of that circumstance, he did not think it clear that Parliament should take such, right from them, if they should think proper to act upon it.

After a few words from Lord Temple, Mr. Vansittart, and Mr. Jacob, who stated, that he, amongst others concerned in the trade, had been consulted by the government on the occasion of the sailing of the vessels, and that they, not being aware at the time of the South Sea Company having any claims on the Pacific Ocean, were solely to blame for the measure that followed; the bill was ordered to be committed on Monday next.

The Solicitor-general moved the order of the day for the second reading of the bill for making the freehold estates of persons who die in debt, assets for the payment of their simple contract debts..

On the question for the second reading being put, Mr. Herbert rose with regret to oppose any measure brought forward by the learned gentleman who was the

author

author of the bill. He lamented that he had not heard the statement of that honourable and learned member, when he obtained leave to bring in his measure; but he had read the bill since it had been printed, and objected to it be cause it went to alter the whole of the law of landed proTM perty in this country. If he understood it right, its object was to make all cases of simple contract debts of men who should die in debt, without making any will providing for such debts, a charge upon their real estates. This would change the whole law of landed property which was coeval with the constitution. There were various ways of charging landed property by mortgages and other legal instruments, and there were sufficient processes for recovering of simple contract debts. Whenever any change had been made in the common law, it had been generally for the worse. He did not see any urgent occasion for the alteration now proposed, much less on so loose and vague a ground as to provide for simple contract debts. It would have the effect of lowering the value of freehold property. Another objection he felt to the measure was, that it would interfere with the elective franchise, which depended altogether on freehold property; and if it was to be made liable for simple contract debts, in cases of small freeholds, the heir might be thereby deprived of one of the most valuable of his rights. He would have no objection to the measure, if it was to be confined to the cases of persons who die suddenly or violently; for he was sure no honest man who had time to make a will would neglect to provide for his debts. On these grounds, he felt himself inclined to oppose the bill.

Mr. Fellowes thought that the bill should extend to copyhold as well as to freehold property, because in many cases the freehold and copyhold property were so blended, that it might be difficult to sell the one, without, at the same time, selling the other.

The Master of the Rolls thought the honourable gentleman who began the debate, was right in considering this bill as making a very material change in the law of freehold property. The law as it at present stood, established the limits of real and personal property. There were but two ways of charging real property, either by deed sealed, or by will. He had doubts of the policy of increasing the modes of affecting freehold property. At present it was impossible to charge it by a single scrap of paper, or by

any

any' parole agreement. The effect of this measure would be, to do away that solemnity which the policy of British law requires in transactions that affect freehold property. The fact was, that the parties, by their own act, decided the terms of the contract. The creditor who trusts to the simple contract, i knows that he is not in the same situation as if he had a bond, and he who has a bond knows he is not in the situation of one who has a mortgage. He could see no reason why the law should put the creditor in a situation which he did not bargain for. He might have demanded a higher security if he was not satisfied with the lower, and the debtor might have refused it. Why then should the law say that a man may have the advantage of the best contract which he could have made? If the principle were to be recognised it would go much further. A tenant in tail may, by suffering a common recovery, cut off the intail, and make the estate his own, and liable to his debts. If he should die, o:nitting to suffer such recovery, was the specialty creditor to be let in, who, as the law now stands, is barred? Was the law, because the debtor might have rendered the estates liable to his specialty debts, to supply his act, and let in such creditor? Was the creditor to have every advantage by the operation of law, which his debtor by his act could have given him? Was the principle to be maintained, of legislating for the purpose of putting the creditor in a situation which his own act did not place him in? This principle was not necessary for the future, and would be unjust as to the present. After the passing of this bill, the freehold property of every man, who has contracted any obligation for which that property is known not to be liable, will, if he dies, be charged therewith in the hands of his heir. This would be an instance of positive injustice, because it would place the parties in so different a relative situation from that in which they were at the time of making the contract. When he threw these observations out, he did it only by way of stating the difficulties he felt, not of giving a conclusive opinion, as he had not yet heard the grounds upon which the measure had been founded. There did not appear to him to be either necessity for the measure or any utility in it. One of the objects of the measure, he understood to be, to prevent frauds by persons who might involve themselves in. debt, and, with the money Lorrowed, purchase freehold property, which would descend to their

heirs

heirs without becoming responsible for these debts. This was a case that had sometimes occurred, and which ought to be prevented. But the measure went, in one respect, beyond its object, and in another fell short of it. Such cases of frauds are confined to properties purchased by the debtor, and the bill, by extending to all freehold property, went beyond its object. But by being limited to freehold, and not including copyhold property, it fell short of its object. It would tell the fraudulent debtor to purchase copyhold and not freehold property; and copyhold property would more effectually enable him to defraud his creditors, because copyhold property is not liable even for specialty debts. In the bill which had been brought in for the same purpose in 1772, copyholds and customary freeholds had been included with freehold property, Having said thus much, it was not his intention to object to the second reading of the bill, or even its going into a committee. For in the committee his honourable and learned friend would feel the necessity, for the attainment of his own object, to make some alterations in the measure.

The Solicitor General would have been extremely glad if the opposition then made had been made before, because he would in that case have had the advantage of knowing the objections that were felt to a measure, which he admitted to be of the highest importance. He must say that it would have been more fortunate if he had heard the objection stated by the right honourable gentlman who had spoken last, sooner, because, though he was convinced, that every honourable member was actuated in making objections to any measure by the purest motives, it would have been particularly desirable to him to have heard the objections just stated earlier, both because he had endea voured to collect the opinion of his right honourable and learned friend on the bill, and had submitted a copy of it to him, and because he could then have given an answer that might have been more satisfactory to the House, than the answer he could now give might prove. He admitted that it was incumbent upon any member who proposed any alteration in the existing law, to state the grounds upon which he founded such alteration. If his right honourable friend had not been present when he stated the grounds of this measure, the fault did not lie with him. He had on that occasion stated that the law of landed property had been framed with a view to a Vol. II. 1806-7. feudal

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feudal state of society, which no longer existed. It was to pay too great yeneration to the wisdom of our ancestors, as it was called, to continue that law unaltered, when the state of society had undergone a change that rendered it inapplicable to the existing state of society. This country had become a great commercial country, and therefore it was necessary to adapt the law of property to such a situation of things. The ordinary obligations in the course of business were not specialty but negociable securities, drawn at a short date. If specialty contracts were to be rendered necessary, that would put an end to commercial business. The case stated by his right honourable friend, had not been urged by him as the ground of his measure. But it was sufficient reason for the adoption of some such measure. Breaches of trust were, as the law now stood, but simple contract debts. Personal property bequeathed in trust for the use of infant children, might be sold by the trustee, and the money laid out in the purchase of freehold property, which, when devised over to his own children, would not be liable to these claims. In like manner, the proceeds of an estate devised in trust to be sold for the use of children, might be vested in the purchase of lands, which either when devised over to the trustee's own children, or in case of his death, would not be liable to the claims of the persons for whose use the estate was devised. The children in both cases would be simple contract creditors, and if there should not be assets sufficient, would be driven to the support of casual benevolence, or parochial relief. This state of the law was a reproach to the country. There were cases that frequently occurred in courts of equity, and yet the gentlemen of his profession, who alone perhaps were capable of framing the remedy, had viewed them with patient acquiescence. This state of the law was peculiar to this country and Ireland. In Scotland, and in the rest of Europe, no property could descend to the heir, without being chargeable with all the debts of the ancestor. An heir could be deprived of his whole property by a single stroke of a pen, in the presence of three witnesses, and was it fit that the only case in which the property should be inalienable from his heir, was when it was to be made liable for his father's debts. The honourable member who had spoken first in the debate, had said that no honest man would omit to make a provision by will for his debts, but this bill was to place every man