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life or any number of lives in being, way in which a Roman citizen of and twenty-one years afterwards. great wealth could establish the influThis more popular meaning of the ence of his family. He could not, like word entail is that which Mr M.Cul- an English gentleman, connect his loch follows-his object being to treat name with a landed estate, and extend of the influence of tying up lands from his influence by those good offices and alienation.
local duties which lie so immediately Measuring the practice of entails open to a man in that capacity. As by the rule of utility, Mr M.Culloch an almost necessary consequence, he selects two points as the principal sought for power through the demotopics of discussion.
ralisation and corruption of the holders * In the first place, it is alleged in fa- of the suffrage-causes which contrivour of entails that they stimulate exer- buted more than any other to the tion and economy ; that they hold out to downfall of the republic. By lavishindustry and ambition the strongest and ing his gold in this manner, he obtainsafest excitement in the prospect of found ed, not only political eminence for himing an imperishable name and a powerful
self, but also that power which led family, and of being remembered and
to proconsulates and proprætorships venerated by endless generations as their chief and benefactor. And, in the second
among his heirs, and thus gave them place, it is said that entails form the only
the opportunity of repairing, by fresh solid bulwark of a respectable aristo
exactions, his diminished revenues. cracy, and prevent generations from being
Hence we should rather view the ruined by the folly or misfortunes of an
law of entail as an inducement to a individual.”—P. 78.
man to perpetuate his thousands in The first of these propositions is, no broad acres than to acquire his fortune doubt, partially true; but the motive
in the first instance. And, in conforput forward has not, we think, as a mity with this view, it may be obmatter of experience, the force that served, that it is more generally the might, at first sight. be attributed to son or other successor than the archiit. Perhaps the keenest accumulators tect of the fortune himself who conof wealth have not been those who verts the accumulated wealth into this have fixed their capital in a landed permanent form. estate. The man of business habits
* Mr MCulloch's second point-the and judicious speculation is drawn to preservation of families by means of make his fortune in obedience to a entails--is one of wider interest and passion which is partly developed, and more general. Import
more general importance. In a bustat all events fostered by the pursuit ling mercantile community like ours, of his life. It cannot be said to arise we cannot too jealously guard any altogether from a notion of benefiting
institution which, directly or indiposterity, of being the founder of à rectly, tends to preserve distinctions house-the man of whom future Fitz, due to something more than mere tomkynses shall be ashamed that wealth. And there can be no doubt John Tomkins, merchant. sets at that the system of entails has saved nought all the expostulations of self
many an ancient line from being indulgence:
thrust from its home of centuries to a * Tun' mare transilias ? tibi tortâ cannabe
strange spot, and this not only among fulto
the titled and wealthy, but among the Cena sit in transtro! Veientanumque yeomanry and statesmen.” In Engrubellum
land, of course, a family may freExhalet vapida læsum pice fissilis quently perish through the possession
of an estate in fee-simple passing into Enormous fortunes were accumulated the hands of an unthrifty representaduring the declining days of the Ro tive of the line, as the settlements reman republic. But entails being then quire constant renewal. But in Scotunknown, and the Roman nobility land the system of perpetual entail having no territorial position, these exercises a much more potent influfortunes, usually acquired by oppres- ence in their behalf. Mr M'Culloch, sion and extortion in the provinces, though he rebuts many of the objecwere squandered in largesses and cor- tions urged against the Scottish law, is ruption at home. There was no other nevertheless anxious to see it assimi
lated in a great measure to that of "A Bill for the amendment of the Law England. There is, however, an ex- of Entail in Scotland," and endorsed ception which he would make to the with the names of the Lord-Advocate, rule against perpetuity of entails. It Sir George Grey, and Mr Solicitoris with regard to the peerage, in which General for Scotland. Whatever diffimatter we cordially agree with him. culties MrM'Culloch feels with regard There were, in ancient times, instances to relaxing the fetters of entail, it is of barons who were degraded from obvious that the contrivers of this bill their dignity on account of their lack are in nowise hampered by them. They of sufficient revenue to support their go to work in the most off-hand manner hereditary title. The independence possible. A short and unobtrusiveand the dignity of the House of Lords looking bill is to drive clean through would be alike maintained by an enact- all the existing settlements and deeds ment enabling, or even obliging, all of tailzie, with their complicated train peers to tie up by perpetual entail a of clauses irritant and resolutive, as certain portion of their estates to if no mortal was concerned in the accompany the title. Such anoma. matter, and estates were the proper lies as that of an Earl of Buchan (Lord toys of law-makers. Erskine's father, see Lord Campbell's The fact of the quantity of alienable Lives of the Chancellors) living in the land diminishing in a commercial uppermost flat of a sixteen-story country, while trade and population house, would thereby be avoided with are increasing, is no doubt a state of considerable advantage to the national things which calls for a remedy, since interests.
there must at some period or another MrM'Culloch, therefore, who quotes be a failure of land adequate to meet Sir William Temple and Dr Johnson the requirements of realised fortunes. on the same side, would preserve the If, in the judgment of reasonable and law of perpetual entail for the Scot- practical observers, the difficulty could tish peerage, and extend it also to be met by making all future entails that of England. In other respects he subject to be barred by a process is, as we have above stated, in favour analogous to that existing in England, of a considerable modification of the we should think there could be no Scottish law of entail. He admits, hesitation in affirming it to be the however, the difficulty of dealing with most just and most expedient course existing entails.
to introduce such a change, and leave “ These have established a right of
the existing settlements in their conproperty not only in the actual possessors
templated perpetuity. If, however, it and their families, but, speaking gener
can be clearly established that already ally, in a wide circle of collateral heirs : too much land is locked up in the nor could the rights of the unborn heirs northern kingdom, and that the soil. be affected without annulling the clauses now free from entail is insufficient to in a great number of settlements, and also satisfy the requirements of future in marriage-contracts and other deeds buyers, then we should say that the inter vivos. It is, therefore, hardly pos- utmost care and skill were required sible materially to relax the fetters of in framing enactments which should entails with strict justice to all parties, adapt themselves to the justice of though it might perhaps be slowly and gradually effected without inflicting any
particular cases, and should, as far very serious hardship on any individual.
as might be, save existing and vested We incline to think that this might be
interests in their delicate multiplicity most easily brought about by saving the
é and connexion. If ever such care and rights of living heirs of entail, and of skill were required, it would be in a such heirs as may be born under existing measure which intere
measure which interferes more extenmarriage-contracts. The interests of the sively with vested rights-usually with possible heirs that might be prejudiced by good reason a sacred thing in the eye the adoption of some such rule as this, of the law-than any which appears in are of so very unsubstantial a description the statute-books of the three kingthat they might safely be neglected.” doms. A statute to convert the Irish P. 78.
tenants into owners of the fee-simple At the time we write, a measure is of their several holdings, (a project pending before Parliament, entitled which has been talked of,) would
scarcely be a more startling invasion à voluntary or (as the Scotch say) of the rights of property as they are gratuitous conveyance. Tailzies, howusually recognised. We do not, how- ever, to which no clauses are annexed, ever, intend to impeach the general do not prevent the heir from conveyprovisions of the bill. If, as we before ing the lands in any manner he observed, so important a change was pleases. Now, as the object of this found to be necessary, it is right to bill is to relax the bonds of perpetual make it; and it is no more than was inalienability, we presume that only effected in England by a more gradual those tailzies which are guarded by process—the subtle fictions of the law. the irritant and resolutive clauses are courts, which virtually got rid of the within its purview. If so, the general statute De Donis. But we can anti- expression “ deed of tailzie" should cipate nothing but uncertainty and have been distinctly limited. If that multiplied litigation, from the appa- expression should be held to comprerently crude and careless project now hend all deeds of tailzie, which it must before us.
of course do when taken by itself, then An instance of the loose wording of the proposed act will exercise a very this bill strikes the reader in the very extensive disabling power, by refirst section. It proposes to enact stricting the unlimited right of aliena“ that where any estate in Scotland tion under tailzies of simple destishall be entailed by a deed of tailzie, nation,* and the right of alienation dated on or after the first day of for value under tailzies with prohiMarch one thousand eight hundred and 'bitive clauses only introduced, to the forty-eight, it shall be lawful for any peculiar form and instrument pointed heir of entail, born after the date of out by this bill, and which we supsuch tailzie, being of full age, and in pose was devised in analogy to the possession of such entailed estate in forms substituted for fines and recovirtue of such tailzie, to acquire such veries by the statute 3 & 4 Will. IV. estate in fee-simple, by applying to the c. 74. Court of Session, &c.” Now, what is We have already seen how Mr this estate which the heir of entail is M'Culloch would deal with the diffito acquire in fee-simple? The estate culty of disturbing the devolution of tail, for so it is by hypothesis. But to lands already limited in perpetual talk of acquiring an estate-tail in fee. entail-namely, by “ saving the rights simple is nothing better than down- of living heirs of entail, and of heirs right nonsense. An estate-tail is, by born under existing marriage-conthe origin of the word, cut or carved tracts." We think our author has (taillé) out of the fee-simple. You not, in this passage, expressed himmay talk of converting or enlarging self with due legal perspicuity and the part into the whole, but you can precision. The phrase "living heirs not talk of acquiring the part in the of entail" is somewhat vague and unentirety of the whole. This is not all; certain; we presume Mr M'Culloch the bill plunges at once in medias res, intended the living issue of the heir without favouring us with any sort of of entail in possession, and all living definition of the important phrase, heirs-substitute and their living issue. " heir of entail," in this and other Again, what are existing marriageclauses. The same expression in contracts? Probably those marriagethe statute 1 Jac. VII. c. 32, has contracts are intended, which are already (see Sandford's Entails, p. annexed to marriages solemnised 231) given rise to no small question- before the introduction of a new ing and litigation, which promise to system. Both these suggestions, as be renewed in abundance should this we have interpreted them, might measure pass into a law. Again, per- with justice and advantage have petual inalienability is not an incident formed part of the new law. It is to all estates-tail. Lands merely true that this would, at all events bound by what are called the prohi- for a considerable period of time, stop bitive clauses, may be alienated for a short of that assimilation of the Scotvaluable consideration, though not by tish law to the English which seems
* See Erskine's Institutes, B. iii. tit. 8, $$ 21-25.
to have been a great object with the which the first estate under the entail framers of this bill. But the two is limited to a man and the heirs of systems would gradually correspond; his body, and the second to his second and we hold that there is a principle son and the heirs of his body; then, of justice involved in the upholding supposing the eldest son to die in the of contracts the objects of which are lifetime of his father, the second son as yet unfulfilled. Where an English would be both the next heir-substitute settler has limited lands to a man for and also the heir-apparent. Is this, life, remainder to his first and other therefore, the only case within the sons successively in tail, he knew, at act ? Scarcely, we should think, was the time of making the settlement, it so intended. Are we, then, to inthat it was liable to be barred with terpret the word heir-apparent in the consent of the eldest son on his coming sense in which the phrase heir-preof age. But it was not so with a sumptive is generally used ; and must Scotch settler who executed a deed of we suppose that the cases indicated tailzie to several brothers as successive are those in which there is no issue heirs-substitute; and the legislature under the first entail, and therefore has no right, without the gravest the next heir-substitute is what we public cause, to step in and defeat his should call heir- presumptive to the intention.
person in possession ? If so, what is But the bill, though intending to to become of the numerous cases where give far greater liberty to the owner there is issue to take under the existof an entailed estate than Mr M.Cul- ing estate-tail ? Or can it be that the loch does, or, as we think, is consistent issue in tail is altogether forgotten by with justice, sets about affording him this act, and that the person whose aid in the most ambiguous and misty consent is required is merely the next manner conceivable. The 2d clause heir-substitute in any case? We are enacts that the heir of entail in pos- inclined to think this the most prosession, born after the date of the act, bable explanation of this unfortunate may disentail in the manner provided clause, but can scarcely imagine that by the act; and an heir of entail born it will be suffered to pass into a law. before the date of the act may simi- A further ambiguity, however, arises larly disentail,“ with the consent (and with respect to this term heir-appanot otherwise) of the heir-substitute rent, from its having a peculiar technext in succession, and heir apparent nical meaning in the Scottish law. under the entail of the heir in posses- “He who is entitled," says Erskine, sion," he being born after the date of “to enter heir to a deceased ancestor the act, and capable of contracting. is, before his actual entry, styled, both
We should recommend the tenant in our statutes and by our writers, in tail to be very cautious how he apparent heir." If the bill intends attempts to “ acquire his estate in any reference to this legal acceptation fee-simple" under the provisions of of the phrase, we can only understand this clause. He is to obtain the con- the person whose consent is required, sent of the heir-substitute next in suc- to be such person as, being next heir cession. So far his course is clear. substitute, would, on the immediate But the same person is also designated decease of the possessor, be his appaby the term "heir-apparent under the rent heir, or entitled to enter on the entail of the heir in possession." Now, lands. This, again, shuts out all those is this a qualification of the general estates where the possessor has issue term “heir-substitute next in succes in tail, and would, consequently, limit sion," and must such person, under the operation of the bill to exceptional the act, be also heir-apparent ? If so, cases. We think we have said enough what is the particular qualification to convince our readers that this clause required of him under the expression is not likely to set free many entailed * heir-apparent ?" Adhering to the estates in Scotland-at all events, not use of the phrase in popular language, without a chaos of litigation, in which we must take, as the only circum- the elements of profit will have a tenstances under which the next heir dency to range themselves on the side substitute and the heir-apparent are of the lawyers. one and the same person, the case in The person whose consent is to be obtained (whoever that mysterious endeavoured to establish, and to the sysperson may be) is, as we have seen, tem followed in this country, than this to be born after the date of the act. law. It is therefore lucky that it is now In conformity with this principle, one
no novelty. It has been established for would have supposed that where the
more than half a century, so that we may next heir-substitute shall have been
trace and exhibit its practical influence
over the condition of the extensive popuborn before that date, then it should
lation subject to its operation. Such an be necessary to obtain the consent of
experiment is of rare occurrence, but the first person entitled to take per when made is invaluable. And if its results formam doni, who shall be born after should confirm the conclusions already this date, together with the consent of come to, it will go far to establish them all those who are to take before him. on an unassailable basis."-P. 80-81. The third clause, however, introduces
We have aiready seen how these a new form of protection to the settle
results may be traced in the state of ment, and merely enacts that, in such
French agriculture. They may also, cases, the consent of a certain number
we think, be discerned in the relative of the heirs-substitute is to be ob
position which the landholders of tained, (the blank left for the number
France bear to other classes in the was filled up with the word “ three”
social scale. These, numbering bein committee of the House of Com
tween four and five millions, ought, mons. Nothing said about the issue
as a class, to constitute the leaders of in tail, as before.
the nation. So far from this being the Where the main enactments of the
case, they are perhaps the most inert bill are so incomprehensible, it is use
and uninfluential portion of the comless to dwell on its details. We can
munity, having apparently had little only say, that whatever evils may be
or no voice in the two revolutions shown to exist under the present law,
which have swept over their heads they will not only fail to be cured, but
within the last eighteen years, and as must be aggravated tenfold, by such a little in the erection, maintenance, or product of off-hand legislation
downfall of the Throne of the Barri“ Sent before its time cades. It yet remains to be seen Into this breathing world, scarce half made up, whether they will continue to accept And that so lamely and unfashionable,"
every thing which the clubs of Paris that it must necessarily die of its own are willing to force upon them. As deformity, unless the law-courts will tax-payers and cultivators of the soil, lick it into shape by their decisions, it can hardly suit them to be propaa shape (as it must be) in which its gandists; as men who have something own parents would not know it again. to lose, they will not readily give in
The law of real property in France to the dictatorial vagaries of Ledru exhibits a system so distinctly anta- Rollin. If, however, they would hold gonistic to our English and Scottish their own, it is time for them to be up law of entail, that we cannot be sur- and doing. France has been governed prised at the attention with which Mr by a minority before now. MCulloch has investigated its in We have always regarded it as one fluences.
of the main advantages of a landed
aristocracy, that it raises up a prin« According to the law of France, &
ciple of social rank antagonistic to person with one child may dispose at
that of mere wealth. In France, the pleasure of a moiety of his property, the child inheriting the other moiety as legi
constant subdivision and transfer of tim, or matter of right ; a person having
land breaks down this influence, and two children can only dispose of a third
causes land to be regarded as a mere part of his property; and those having marketable article and equivalent for more than two must divide three-fourths money. of their property equally amongst them, “ In countries where the custom of one-fourth part being all that is then left primogeniture exercises a powerful influat their disposal. When a father dies in- ence, families become identified with testate, his property is equally divided estates- the family representing the esamong his children, without respect to sex tate, and the estate the family. The or seniority. Nothing can be more dis- wealth and consideration enjoyed by the tinctly opposed to the principles we have latter depend upon, and are intimately