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cost of the cumbrous and unwieldy transmissions of the verbose heritable security, and of the longwinded discharge by which alone he could extinguish it. But why not go to the root of the upas tree that thus spreads its poisonous shade over the free use of capital sunk in heritable property? Why not simplify down to a form, short and simple as a commercial bill of exchange, the mere money transaction of a loan with heritable security?
itself, to see whether the germs of such exactions | debtor was exposed; for on him really fell the be really tolerated by the genius of that institution? And we confess that, in the free allodial forms of the first partition of conquered lands, where the private soldier, though he shared far less a portion than the benefice or royal demesne of his lord, was a freeholder, independent of every obligation save that of rendering personal service in defence of the community to which he belonged, we can see nothing of them. Even in the subinfeudation of the benefices of the great lords to feudal tenants or in the Roman Emphyteusis, on which it is sup- We do not, and cannot, see why, along with as posed to be based-there is scarcely room for many words as will distinctly describe a piece of them. But feudalism was a thing of gradual property, heritable transmissions should not be growth; and the power of the over-lords to afford simply effected by a writing of hand, saying, “I, protection of a kind which the modern vassal A B, sell, or give, or hand over in security, to neither needs nor claims may have rendered the CD, my said property." In the several chapancient holder willing and anxious to compensate ters of legislation which we have laid before the the superior with casualties at every renewed re-reader, there is an obscure approach to this, espeception into his protection. The vassal then had cially in the last. It is most ridiculous to say his quid pro quo. And it is the strangest thing that a ceremony which has become too useless to that the nineteenth century should still be paying perform, like the reigning ceremony of infeftment, the same, or greater, exactions than the ninth, is still to be perpetuated in dumb show, and that without anything like a similar return. As we when the virtue has so far gone out of the earth have remarked, however, the shape these claims and stone, a pen may be substituted for the symbol, affecting property at length have taken is substan- while yet an instrument recording that bit of tially that of heritable burdens; and, therefore, mummery must be formally drawn up, and forthere is nothing more to be said. The property-mally recorded. holder found his "tenement" affected by these burdens; he was aware of them, and he must provide for them.
The wisdom of the Legislature has also been manifested in an act which passed 30th June, 1845, 8 and 9 Victoria, c. 31—“ An Act to facilitate the transmission and extinction of heritable securities for debt in Scotland." This was a glorious opportunity to have struck a blow at an intolerable grievance. But it was lost. The act is a regular telum imbelle sine ictu. The right to heritable securities, constituted by infeftment, may indeed be transmitted according to a form given in a schedule appended to the act, which, being recorded, is equivalent to sasine and full entry; and the absurd practice of recording the whole deed is dispensed with in cases where the assignation is only part of a deed, for other purposes, it being sufficient to state the nature of the deed. The person on whose property money is borrowed may now invest the heritable creditor's heir by a writ of acknowledgment, that being declared sufficient. When the heritable creditor finds it necessary to adjudge the property, he may complete his title by simply recording the abbreviate of adjudication (a decree of court) in the register of sasines. The act also provides that an heir, served and retoured, or general disponee, may complete his title, without going to the superior, by a notarial instrument taken out and recorded in terms of the act:-Documents compete for preference, according to the date of their registration: a form is appointed for discharging securities; although there is also a clause saying there is nothing to prevent the use of the old forms; and another clause specially preserving to Town Clerks their accustomed fees! In all this there is a saving, so far, of the once ruinous expense to which an heritable
All that common sense seems to require is a single original document, along with a simple record of that document; and an attempt at this is actually evident in the act for simplifying the transmission of heritable securities. Formerly everything was done by a lengthened deed upon ad valorem and other stamps; and the different deeds were backed each by an instrument of sasine, tediously recorded at length. At last came the prolix discharge, religiously reciting over again almost all the verbiage of the several deeds; and behoving to be lengthily recorded in its turn. All this could not but entail heavy expense upon property, yet not the smallest sum could be borrowed, even for the purpose of improvements, without much or most of these implied charges being incurred. The new law narrows the double array of deed and instrument down to a single one, somewhat shortens the forms of transmission, and greatly reduces the process of recording; but it neither provides, as it might have done, for simplifying the original constitution of the debt, nor does it prune the branches it actually touches so unsparingly as it might.
It is, however, just as possible to effect the whole, as a part, of this reformation. The principle of a change in the transmission of heritable rights involves that of a change in their constitution; and, sooner or later, the conveyance of property in Scotland must come to what we say to a simple acknowledgment of a sale or a gift, in cases of absolute alienation-and to the brief commercial form of a bill upon the property, in cases of heritable security. The records are the only element in our cumbrous and complicated system which we cannot dispense with. Patent and open
Why not a Bill of Property, as well as a Bill of Lading, or, for that matter, a Bill of Exchange?
to all the world, they advertise every purchaser, | almost all the principles of taxation so admirably or lender, of his safety, in effecting any proposed laid down by Adam Smith, to the effect-1st, investment. And it has been often said that That the subjects of every state ought to conEngland, for the sake of possessing such records of tribute towards the support of Government as everything affecting heritage, would submit to all nearly as possible in proportion to their respective the feudal forms she long ago so nobly repudiated. | abilities-that is, in proportion to the revenue That, however, were far too great a price to pay. which they respectively enjoy; 2dly, That the tax For why may we not have the same records-the which each individual is bound to pay ought to same facts recorded in them—and the same pur- be certain, and not arbitrary. The time of payposes subserved by them—at a far shorter expense ment, the manner of payment, the quantity to be of words and money? There are, however, other paid, ought all to be clear and plain to the contritrammels upon heritable transmissions, which we butor and every other person; 3dly, That every hasten to consider. tax ought to be levied at the time, and in the manner, in which it is most likely to take out, and keep out of the pockets of the people, as little as possible, over and above what it brings into the public Treasury. Now, the stamp duties violate the first of these three principles, by their inequality of pressure; they violate the second, not by any uncertainty on the taxation, but by the glorious uncertainty of the law, which precludes the possibility of a plain man knowing what stamp duties he must expend to render titles perfect; and they violate the third, by being of the nature of a manufactured article vended by the Government, and therefore extracting from the pockets of the people much more than finds its way as free proceeds into the Treasury.
Few great changes or alterations, even for good, are ever accomplished unalloyed with evil; and insurrectionary efforts, in particular, to redress the grievances of a people, in themselves imply distracting convulsions; while they are not unfrequently followed by fiscal inflictions, for which the occasion perhaps gives excuse, opportunity, or advantage. Thus the English poor rates are owing to the Reformation, and the stamp duties to the Revolution. The Dutch first invented this mode of taxation, imposed in Holland in 1624; although the vicesima heriditatem, the twentieth penny of inheritances, imposed by Augustus on the Romans, is an earlier example of taxation on the transference of property, at least from the dead to the living. Heritage, supposed, in Scotland, to be exempt from such taxation, pays it only at another time and in another form, as in the numerous stamps required in the making up of titles to property; and, besides, many casualties of the feudal law, as the compositions to the superior for the entry of heirs (extending also to strangers, or singular successors) are exactly of this nature. Be this as it may, Adam Smith has sarcastically observed, that "there is no act one government sooner learns of another, than that of draining money from the pockets of the people;" and, to say truth, William of Orange had not this secret of the stamp tax to learn, coming to this country from Holland, inasmuch as he knew it well before. Thus, though in 1671 taxes were first imposed in this country for a temporary purpose, and on a temporary footing, (as, indeed, what tax, from the income tax backwards, has not crept in on this pretence?) they were fairly rivetted and fixed down in 1693, by revision under the Act 5, William and Mary, c. 21. The stamp duties were thence so greatly extended as ultimately to embrace every instrument recording a transaction between two individuals, nay, law proceedings themselves, and every document used in a court of justice! The voluminous stamp acts of Britain were consolidated in 1815, under the Act 55, George III., c. 184, to which schedules of them are annexed; but law proceedings, the only really salutary branch of the impost, considering that it must have acted as a damper on litigation, although it was certainly a tax upon justice, were exempted by 5, George IV., c. 51. Subsequent enactments have only been for the purpose of assimilating the stamp duties of Great Britain and Ireland.
The inequality of the stamp duties is very easily proved from the revenue returns. The returns to the revenue from stamps in Scotland are next in amount to the customs and excise, or, rather, excise and customs, (for the "hateful tax adjudged by wretches hired for the purpose," as Johnson has it, is, to our grief we say it, entitled to the precedence, being equal in amount to twice the customs in Scotland!) So, in like manner, the stamp returns are twice as heavy as the assessed taxes! The stamps, however, excepting for the last two years, have been exhibiting the suspicious phenomenon of gradual declension; and that, too, along with an unparalleled rise in the value of real property. Thus, the stamp duties in Scotland yielded—
For the year ending 5th Jan. 1841,
There may be two causes for this: the first, the most natural consequence of a severe tax, evasion. Smuggling preceded and forced on the different revisions of our commercial tariff; and, need we be amazed, that if men could risk their persons to evade one branch of the revenue, they will be tempted to risk their property to evade another? The course is desperate; and, we may depend upon it, the cause of desperate courses is always severe. He is but a maladroit lawyer, moreover, who does not know how to save a stamp for a poor client. The consequence is, no doubt, generally visited back on the evasion at an after period. Informal rights lead to endless law pleas, and complicated, as well as expensive legal proceThe stamp duties on the transmission of heri-dure, for the investiture of subsequent heirs, trustable property appear to us to be at variance with tees, or general disponees; yet, more "missive
glected. That moment the poffle or pendicle of the cottier becomes part of the lawn or approach to the cottage ornée or mansion of the great; so soon as the rude stone and lime of the humble feuar is swept away by the building speculator's grand and flaunting array of shops, the "rights, titles, and securities" thereof are, to a certainty, one and all, made right, the unstamped are stamped, the unentered are entered, the "pro
letters," "minutes of agreement," and other unstamped, invalid, and informal documents, are fabricated for the evasion of the stamp laws than could possibly be believed. One learned Judge of Session was reputed to have said, that he looked with an instinctive horror into any progress of titles emanating from the city of Glasgow, and to have expressed it as his opinion, that the court ought to pass an act of sederunt remitting the faculty of Glasgow back in a body to the convey-gress" is perfected to the very last tittle, and fully ancing class! Now, there are abundance of good "clothed" by the ceremony of possession, i. e. sasine, conveyancers in practice in Glasgow; but the and infeftment, earth and stone-we beg pardon business-like spirit of the place, the commercial rather by the "make-believe" of an absurdity spirit of the people, literally compels the mutilation in its dottage, too ridiculous to be tolerated, and too of cumbrous and complicated feudal forms, and antiquated to be given up, and which, as we have the laxity which prevails in heritable transmis-seen, is henceforth to be done, amongst other deeds sions is actually dictated by public opinion. Many of darkness, in the back slums of a lawyer's chama severe lesson has been taught the property- ber. How, therefore, should the revenue suffer, if holders of Glasgow upon this score; and yet we the impost of stamps were anything like equal? hardly think a single forty years' "progress" of How should a better compliance with legal forms title deeds, altogether destitute of a flaw, could be injure it, while the stamps are charged ad valoproduced at this moment within the extended rem? Why, "there's the rub." The stamps municipality of "the largest city in the kingdom." are really not charged ad valorem. They are A second, and that not a secondary cause, for ranged upon a sliding scale" inverted; so that the diminution of revenue from stamps in Scot- the charge, when apparently mounting upwards, land, unfortunately exists, which is no less illus- is in reality sliding downwards. Everybody is, trative of the unequal pressure of the impost; for however, familiar with this; everybody knows it originates in the inherent evil of the tax. It that the law acts as if-to make the great nabob, is this: the extinction of small holdings, and their when he buys a villa or an estate, or, like the gradual absorption in those accumulating masses owl's daughter, only becomes endowed with two of capital which begin to create the glaring or three "ruined villages," pay in proportion to disparity peculiar to the age betwixt different the stamp tax imposed, at a respectable distance, classes in the country, rendering the rich so very upon the bonnet-laird who invests the fruits of rich, and the poor so very poor. When we years of patient toil and industry in a one-story hint at such accumulations of capital, which, to a house, or, may be, a small mailing—would ingreat extent, are heritably invested, it is enough deed be the height of impertinence. To such an exto suggest how unequal must be the pressure of tent does the law carry this deference for the great, the stamp laws, when the enormous advance in that while a poor man cannot buy £10 worth of value of real property within the kingdom, when heritage without being taxed ten shillings in stamps the swelling wealth, power, and splendour of the for the conveyance alone (besides another nine millionaire, with his gorgeous dwellings and nume- shillings for the stamp of the instrument of sasine), rous tenements, add nothing to the revenue. The a wealthier man would not be taxed £10 (only £9) question, like all stamp law questions, is but one were he to purchase up to £1000 worth of proof rule of three. If the lesser aggregate of value perty, although the relative proportions are as one in real property give so much, how much ought to one hundred; and the tax on the wealthier the greater aggregate to afford? Instead, however, purchaser, to correspond with that upon the poorer, of how much more, we are actually constrained, ought to be £50 to the one for ten shillings to the as the fact stands on the revenue tables, to ask how other! Nor is this by any means a vain contrast; much less revenue flows in transmission-stamps many and many a title is a poor holder forced to from the increased and enhanced value of real make up to a property of even less value to him property! How is this! Simply that a body of than £10; and yet the law takes cognisance of poor men are taxed in this department to an ex- the most trifling amount, be it only heritage. tent greater than a body of rich men, though holding several times the value in property, are taxed. It is certainly not the least likely that, as the value at stake in heritable investiture advances, evasion of the legal formalities increases. Quite the contrary. Greater, much greater, care will be exercised in the matter of form, and less demur be made on the score of cost, the higher the value of the property becomes. As soon as a field or a dwelling becomes the property of the wealthy man, and quits the hands of the man comparatively poor, the legal forms, whether in abeyance or run into irregularity, will be complied with and disentangled as scrupulously as they were before ne
But the disparity in the schedule of stamps upon absolute conveyances is equally striking and irrational, throughout the whole range of so-called ad valorem duties. Thus, a small property up to £50 can only be conveyed by a stamp at £1, while, for half as much more, i. e. 30s., property up to £150—three times the value—may be alienated. But for three times the sum, or £3, ten times the value, or up to £500, may be alienated! Taking a step higher up the scale, the inequalities are as glaring, although with one egregious peculiarity in them: Thus, under £1000 of heritable value requires a £9 stamp ; under £2000, only a £12 stamp: But here a capricious stride is taken,
and from £2000 up to £3000 a £25 stamp is re-stamp; at £50, the stamp reaches 30s.three q quired; so that, contrary to any analogy in the per cent. on the whole loan; at £200, it is only. whole of this crude jumble of legislation, a £1000 £3-one and a half per cent. on the loan; aty and a £2000 property could both be (separately) £500, only £5, or one per cent.;, and this last transferred at a cost of £21 in stamps, while a covers any loan as high as £1000. ↑ But, on the single property of their joint value, nay a property other hand, the great borrower may raise up to a only a single shilling in value above £2000, could but not exceeding, £20,000 on a £20 stamp, payalı not legally be transferred on a stamp under £25! ing therefore only one-tenth per cent, of stamp tax.. If there could be any conceivable reason for such Such is the extreme injustice and inequality of the arbitrary distinctions, that would be another thing. scale of mortgage stamps. But reason there is none. And when it is con- Deeds of settlement, which only lay the foundasidered how easy it might have been (possibly with tion for, and do not in themselves complete, or so advantage to the revenue) to have imposed a uni- much as form part of a feudal progress, simply form per centage of ten shillings per cent., ad va serving to devise property to heirs, or to settle lorem, on conveyances (which we regard as ample), heritable investitures on other persons, are also the present scale of duties becomes perfectly ab- subject to the operations of a similar scale of stamp surd. Thus trifling conveyances of £10 and £20 duties-similar, though perhaps less flagrant in value, instead of their present oppressive stamp its inequalities. The making of a settlement emtaxation, would pay only one shilling and two bracing any value under £1000, for instance, shillings, on that score, respectively quite enough infers the use of a £1 15s. stamp, while, at for the general circumstances of the holders, and £15,000 value, the stamp being £20, something about equivalent to the tax upon other money like a uniform proportion to the value; is maintransactions, whether vouched by receipts or pro- tained. But the deed being incapable of any but moted by bills. Fifty-pound properties would a general form, so far from saving expense, it pay five shillings; those of one hundred and fifty often occasions court procedure (as, for instance, pounds, of course, only fifteen shillings; yet at where the heir-at-law refuses to make up titles), £200 the stamp would rise to £1, and would thence- and always recourse to the Superior, to perfect forward tread hard, for some distance, upon the the feudality of succession. The use of stamps, present scale; being, at £600, so high as £3, and therefore, to which it leads, is far from being exat £1000, up to which, by the present scale,. con- pressed in the above sums, although the stamps veyances are subject to a £9, it would actually for charters and instruments completing investireach to £10. Instead, however, of £25, the £3000tures are only nine shillings per sheet, and it is conveyance would only be subject to a £15 stamp, rather the relative law expenses entailed that are destroying, however, the anomaly already noticed. to be complained of. But this rate of ours, upon the rest of the scale, would create a considerable reduction; for, instead of one-half per cent., the upper stamp duties are about three-quarters per cent. Still any regular and definite per centage, be it three-quarters or more overhead, would be a decided improvement on the inequalities of the existing scale, with its shocking oscillations and vibrations. Nor should we apprehend much detriment to the revenue, even by the reduction to one-half per cent. Betwixt the increase of small conveyances that would certainly ensue, and the natural infrequency of large ones even now, more might be added to than abstracted from the returns.
If, however, the hardships and inequalities connected with absolute conveyances are great under the stamp laws, in proportion as the interests involved are small and unable to sustain invidious distinctions, much more is this the case with regard to that particular point in the free use and enjoyment of property, which ought above all to meet with legislative consideration, and receive facilities, rather than be visited with obstructions and discouragements. We allude to the creation, transmission, and relative extinction of real or heritable burdens; by facilitating the two first of which, a vast distribution of locked-up capital might yet be called forth to aid the commerce and enterprise of the country. As the matter stands, however, a bond and disposition in security, or heritable bond for any sum, however trifling, below £50 cannot be extended on less than a £1
Is it worthy of an enlightened Government thus to lay a direct embargo on the constitution, transmission, and extinction of heritable rights and burdens? Impolitie altogether as a tax upon capital and not upon revenue, the stamp laws are still more objectionable on this ground, that, along with the hindrances and obstructions existing in the forms of writs, the stamp tax has contributed much to embarass, destroy, and stifle the smaller allocations of heritable property entirely. This is a result in itself deplorable, being attended with consequences most disastrous to the general community, working as it does directly into the hands of pauperism, and thus preying upon the vitals of society. If it be an object-and it is no mean one under the present circumstances of Scotland-to encourage the elevation of the utmost possible number of men from comparative indigence, and from a subsistence merely from hand to mouth, up to the petty independence of possessing homes and houses of their own, a policy perfectly the reverse of the present must be pursued-everything must be done to facilitate the acquisition and transmission of sinall heritages-instead of every obstacle being thrown in the way. That it is perfectly possible, according to principles laid down by an insurance or property company, now existing in Edinburgh, to enable every working man to acquire for himself, out of the surplus of that annual outlay which he now pays in the shape of ront, the free right of property in the house for which such rent is paid, and that within the space of fourteen
years, he enjoying the intermediate occupancy, we neither see reason to doubt nor dispute. Were this important principle, which is quite familiar to actuaries and known to be correct, once generally recognised and carried out; did not the miserable formalities, the severe and unequal taxations of the law cast in such a variety of impediments; every prudent man above the verge of hopelessness might be enabled to become the proprietor as well
as the occupier of his own house, might literally "sit under his own vine and his own fig tree, with none to make him afraid." This dream may seem utopian. If so then if those who make our laws and mend them would but reflect how much they could do in this and in several other directions to unmake our poverty and mend the popular condition, there would soon be far less of utopianism in dreams like these.
THE INFANT YEAR.
DING DONG! ding dong! the year is old,
Another comes to claim the ground!
Small atom of eternity!
What mind, how vast soe'er its scope,
Wrapt in a mystic veil to all
Thy reign begins; millions await
And man would grasp with eager hand
Such is our nature! on we press,
Grasping at shadows; pleased with each New vision;-near, they're valued less: We covet all beyond our reach!
Kneel, kneel, ye nations! rest one hour;
Children of Science! ye who tell
Deep truths to all! Ye master minds, That weave o'er men a mighty spell,
List to the warning on the winds!
This unit hour alone is thine!
Oh, dedicate it to thy God In gratitude! Thy thoughts divine Are held from him,-not from this sod!
Poet! oh, join thy silver voice,
So used to sadness; child of night,
And lone deep thought; for thee the choice
Let Fancy heavenward stretch her wings,
Let ev'ry soul of ev'ry creed
Unite in prayer; for rich, for poor; That Heaven may still the needy feed, And blessings guard the rich man's store. Child of misfortune and of toil,
Ye who have earned thy bread with tears; Ye humble tillers of the soil,
To Heaven commit your trust, your fears:
A day is dawning 'neath those clouds
Ye who have clung to joys now flown
For ever!-drooping now, and drear,
The child whose soul doth still repose
Maiden, thy lip doth speak a name
Of all things dearest, still most dear: 'Twas Nature's voice that, murmuring, came To bid thee breathe it first this year.
Affection's holy ties were given
Sing, sing in concert,-sing in love!
E. C. M.