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ed on natural law and justice, a man could only appoint his own heir. He could not name an heir to his heir. Our feudal notions encouraged a contrary principle, and allowed, at first the sovereign-granter of a fief-and afterwards the grantee himself, to fix perpetually the order of succession in which the fief should descend. This destination, however, was always liable to be counteracted by the operation of natural causes, through which the land was voluntarily sold by the heir in possession for the time, or carried off by his creditors in satisfaction of his debts. The right to sell was one of the inherent and essential rights of property, and the liability of a man's property for

а debts contracted by him was the corner-stone of confidence in all the transactions of life, any restriction of which was a violation of the first principles of justice. These, however, and particularly the liability of property for the owners' debts, presented, so long as they remained unimpaired, insuperable obstacles to that absolute perpetuity of succession in favour of the same family, for ever, which the Scottish aristocracy desired to establish in reference to landed property; and all the ingenuity of our conveyancers, prior to the Act 1685, which gave the sanction of statute to strict entails, was exerted to effect an evasion of them.

The mere prohibition of sale and of the contraction of debt as a condition of the inheritance, could not of course affect third parties, who might purchase from or become creditors of the owner. As little could a declaration,-in addition to the prohibition—that acts done in contravention of it should be deemed null and void, do so. So long as a man continued to be proprietor, all third parties were held entitled to deal with him as such, and not to be affected by any prohibitions or conditions, which, whatever might be their bearing upon him, as in a question with other heirs, could have no authority or effect as to them. To get over this difficulty, a third provision was introduced into the deeds by which future heirs were attempted to be restrained in the use of their property,—to the effect that the very doing of the act prohibited (such as contracting debt or selling the land) should, of itself

, and ipso facto, operate as a forfeiture of the proprietor's right. The idea was, that, as by the doing of the act the owner ceased to be proprietor, the act itself should be held to be void, as done by one who was not owner. It is quite obvious that this notion, and the argument founded upon it, were quite fallacious; as until the act were done, there could be no forfeiture on account of it; and consequently the act, as effected by one who was of necessity still proprietor when it was done, must be valid. The courts of law, however, did, in one or two instances, give effect to this scheme; but there being every reason to expect that a different

Act of 1685–Progress of the System.

443

course would soon be adopted by the judges, who showed the utmost repugnance to allowing creditors to be, in this way, defrauded of their just debts, the Scottish aristocracy had recourse to the Legislature, by whom it was sanctioned by the well-known Act 1685, c. 22.

To the provisions and effects of this statute we shall immediately advert; but we wish, in the first place, shortly to point out the progress of the system in regard to its extension, from the passing of the Act 1685 to the latest period up to which the records have been published. This is stated as follows, in the useful and excellent pamphlet which we have placed at the head of this Article, and which contains much interesting information on the subject :

“From an examination of the Register of Entails, it appears that, for a period of upwards of 40 years after the passing of the statute, or preceding the year 1730, the number of entails recorded was 217 “During the next 40 years, preceding 1770, the number was increased by

279 “While, in the succeeding period of 40 years, or to 1810, it

was more than doubled, by the addition of no fewer
than

586 " And for the next twenty years, to 1830 (which is the latest

date to which an index to the record has been published),
there was a still greater increase, in proportion to the
time; the number of new entails, recorded within this
short period, being

449

"In all, down to 1830,

1531"

“ In looking to this rapid increase, it is also to be kept in view that, after the successive periods referred to, less land remained to be entailed.”

In a note, the author adds, with reference to the period subsequent to 1829 (as to which no authoritative statement has yet been published):

“ The number of entails recorded within the last sixteen years may be supposed to average from at least twenty to thirty yearly, and the total number added within this period may be estimated at 400. In the past year the number has exceeded thirty."

As to the actual extent of the lands affected by these entails, increasing at a rate so alarmingly rapid, there are no means available at present for speaking with precision, though returns, which would afford a tolerably correct estimate of it, might, if ordered by Parliament, be furnished without much difficulty. At the same time an approximation may be made to the truth. The

late Sir John Sinclair bestowed much pains on this subject, and amassed a great deal of information, the result of which was given to the public in 1814, in a “ General Report of the Agricultural State and Political Circumstances of Scotland in the year 1811.” His estimate was, that lands having a “ valued rent" of £1,213,159, 17s. 9d. Scots, were entailed; the valued rent of the whole of Scotland being £3,804,221 Scots. According to this estimate, nearly one-third of the whole land in Scotland was then held under the fetters of strict entails. Between 1810 and 1830,449 new entails were recorded, and the number since added can scarcely be taken at less than 400, making together 849 more than when Sir John Sinclair framed his calculation, at which time the total number of entails was 1082. It may therefore safely be assumed, that at the present day considerably inore than half of Scotland is in the condition which we now proceed to describe.

The statute 1685 enacted, “ That it shall be lawful to his Majesty's subjects to tailzie their lands and estates, and to substitute heirs in their tailzies, with such provisions and conditions as they shall think fit; and to affect the said tailzies with irritant and resolutive clauses, whereby it shall not be lawful to the heir of tailzie to sell, annailzie, (alienate) or dispone the said lands, or any part thereof, or contract debt, or do any other deed, whereby the samen may be apprised, adjudged, or evicted from the other substitutes in the tailzie, or the succession frustrated or interrupted ; declaring all such deeds to be in themselves null and void, and that the next heir of tailzie may immediately, upon contravention, pursue declarators thereof, and serve himself heir to him who died last infeft in the fee, and did not contravene, without necessity anyways to represent the contravener.”

The provisions of an entail which are essential to its subsistence are the prohibitions against altering the order of succession --against selling and disponing, and against contracting debt ; but the maker of an entail may insert whatever other conditions or prohibitions he chooses, and these, when “ fenced," as it is termed, by the regular “ irritant" and "resolutive" clauses-that is, clauses annulling the act, and resolving or forfeiting the right of the doer of it-become absolutely perpetual and effectual to all generations.

In practice, the principal condition, added to the three great prohibitions, is, that each heir succeeding to the estate shall assume the name and arms of the maker of the entail ; but there are frequently a number of other provisions, capriciously, and often injuriously, affecting the management of, and succession to, the property,--such as prohibiting a reduction of rent on re-letting farms, fixing a minimum of feu-duty, where feuing is allowed at

66

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Prohibitions against altering the order of Succession, Sc. 445 all, and forfeiting the heir's right if he should succeed to a particular title, (which he has no power, if he were willing, to repudiate,) though it may reduce him from affluence to comparative poverty; while there are one or two instances of a forfeiture declared should the heir adopt certain religious opinions. These conditions, however, though sufficiently vexatious, and, to a certain extent injurious, sink into insignificance when compared with the prohibitions against altering the order of succession, selling or alienating the property, or any part of it, and contracting debt, or subjecting the estate to burdens.

By virtue of the first of these, no heir in possession can change the precise destination of the property, which has been fixed by the maker of the entail generations before. Thus, if the entailer had several children, and entailed the estate on the heirs-male of their bodies successively, and if after, perhaps, the lapse of a century and a half, the heir-male in possession happens to have a family of daughters and no son, he cannot leave the estate to his daughters, but at his death it will devolve on some—it may be, very distant-heir-male.

Under the prohibition, again, against selling, and disponing, or alienating, the land is not only placed absolutely extra commercium, so that it can never be bought and sold, but, in consequence of the extended construction given to the terms “disponing” and “ alienating," the successive heirs in possession are excluded from feuing any portion of the lands, however valuable the consideration in point of feu-duty may be—(unless in so far as specially permitted in particular entails)—from exchanging one piece of land for another-nay, from letting leases of the entailed estate for a longer period than twenty-one yearssuch leases having been decided to constitute “ alienations” or “ dispositions."

Finally, under the prohibition against contracting debt and burdening the estate, the heir is not only deprived of the power of raising money by loan on security of the property, even to be employed in improving it, but if he contract debt, his creditors cannot attach the estate beyond his own life-interest for its payment, and he is disabled from burdening the property with provisions to his younger children, or even with a provision to the wife of his eldest son, the heir of the estate, for the event of the son predeceasing him and never himself succeeding.

This state of matters, too, is perpetual. There are no means by which a property once entailed can ever be freed from the fetters of the entail, so long as there exists a single substitute heir besides the one in possession ; and as the never-ending perpetuation of the property in the same family is the grand object of every entailer, he generally inserts so many collaterals and their

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descendants in perpetuity, that the event of an entail coming to a close, by failure of heirs called to the succession, is one which scarcely ever can occur.

In England, where the statute law of entail is nearly as strict as that of Scotland, the judges, from an inveterate hostility to a system so monstrous and injurious, have encouraged all methods by which it could be evaded, and in this way a fiction of law has been converted into a most effective reality, whereby the “tenant in tail” may “dock" or put an end to the entail when he pleases. No such method exists in Scotland of restricting the perpetual existence of an entail once completed. Certain relaxations, indeed, have been introduced by special statutes, intended for the benefit of the heir in possession for the time; but though some of these, such as the provisions of the 10 Geo. III. c. 51, allowing heirs of entail to grant building leases of not more than five acres to any one person, for ninety-nine years, provided a dwelling house be built on each half acre, and allowing excambions and exchanges to a limited extent, are, so far as they go, remedial measures : the others, while certainly relieving the heir who first takes advantage of them, tend, as will immediately be seen, in their ultimate result, to make the condition of the great body of proprietors of entailed estates even more oppressive to themselves, and more utterly helpless for any benefit to their properties or the country, than before.

The measures here alluded to are those effected by the main provisions of the 10 Geo. III. (called the Montgomery Act,) and those established by the 10 Geo. IV. c. 87, generally known as Lord Aberdeen's Act. The object of the former was to encourage the proprietors of entailed estates to lay out money on the improvement of these, by giving them a claim, assignable by them and descendable to their executors, against the subsequent heirs of entail, to three-fourths of the amount so expended, subject to a certain restriction as to the total expense claimable from the succeeding heirs. This is limited in regard to inclosing, planting, draining, erecting farm-houses, &c., to four years' free rent of the estate; and in regard to building, repairing, and adding to, the mansion-house and offices, to two years' rent;—allowing a sum equal to six years' rent in all to be constituted a burden against the subsequent heirs. If payment of this could at once be enforced, the heir would be left for several

after his succession without anything from the estate at all; and to prevent this, each heir's liability is limited to one-third of the yearly rents of the estate. But interest being always due from the death of the improver, this often will not suffice to clear off the debt for many years, and the burden accordingly descends upon heir after heir till gradually paid off, each being precluded from

years

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