« AnteriorContinuar »
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 Mr. M'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 en- all the existing settlements and deeds actment 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 ac if no mortal was concerned in the company the title.
Such anomalies matter, and estates were the proper 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) livin 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 Mr. M*Culloch, therefore, who quotes be a failure of land adequate to meet Sir William Temple and Dr. Johnson the requirements of realized 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
the existing settlements in their con“ These have established a right of templated perpetuity. If, however, it property not only in the actual possessors can be clearly established that already and their families, but, speaking gene- too much land is locked up in the rally, in a wide circle of collateral heirs; 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 satisfy the requirements of future also in marriage-contracts and other buyers, then we should say that the deeds inter vivos. It is, therefore, hardly utmost care and skill were required possible materially to relax the fetters in framing enactments which should of entails with strict justice to all par- adapt themselves to the justice of ties, though it might perhaps be slowly particular cases, and should, as far and gradually effected without inflicting any very serious hardship, on any indi
as might be, save existing and vested vidual. We incline to think that this interests in their delicate multiplicity might be most easily brought about by and connexion. If ever such care and saving the rights of living heirs of en skill were required, it would be in a tail, and of such heirs as may be born
measure which interferes more extenunder existing marriage-contracts. The sively with vested rights usually with interests of the possible heirs that might good reason a sacred thing in the eye be prejudiced by the adoption of some of the law-than any which appears in such rule as this, are of so very unsub- the statute-books of the three kingstantial a description that they might doms. A statute to convert the Irish safely be neglected.”—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 a 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 biil, 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 aequire 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 solemnized 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 Scot valuable 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 com sense in which the phrase heir-preing of 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 to But the bill, though intending 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 entail-act? 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 heircession. 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 the system followed in this country, than person may be) is, as we have seen, this law. It is therefore lucky that it to be born after the date of the act. is now no novelty. It has been estabIn conformity with this principle, one
lished for more than half a century, so would have supposed that where the that we may trace and exhibit its pracnext heir-substitute shall have been extensive population subject to its ope
tical influence over the condition of the born before that date, then it should ration Such an experiment is of rare be necessary to obtain the consent of occurrence, but when made is invaluthe first person entitled to take per able. And if its results should confirm formam doni, who shall be born after the conclusions already come to, it will this date, together with the consent of go far to establish them on an unassailall those who are to take before him. able basis.”—P. 80.81. The third clause, however, introduces We have already 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 comprehensible, 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
cades. "Sent before its time
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,"
everything 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 “ According to the law of France, a aristocracy, that it raises up a prinperson with one child may dispose at ciple of social rank antagonistic to pleasure of a moiety of his property, the that of mere wealth. In France, 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 part of his property; and those having causes land to be regarded as a mere more than two must divide three-fourths marketable article and equivalent for of their property equally amongst them, money. one-fourth part being all that is then left “In countries where the custom of at their disposal. When a father dies in- pr ogeniture exercises a powerful intestate, his property is equally divided Huence, families become identified with among his children, without respect to estates—the family representing the essex or seniority. Nothing can be more tate, and the estate the family. The distinctly opposed to the principles we wealth and consideration enjoyed by the have endeavoured to establish, and to latter depend upon, and are intimately
connected with the possession of the him a path by which he may advance lands which have descended to them from the position of a day-labourer to from their ancestors. They estimate that of an occupier of land. On the their value by another than a mere pe
same principle we are rejoiced to obcuniary standard. They are attached to them by the oldest and most en-'
serve the gradual extension of the aldearing associations; and they are sel-lotment system; although it would dom parted with except under the most have a still more beneficial effect, we painful circumstances. Hence the per- think, if the land was granted in the petuity of property in England in the shape of a croft about the cottage, same families, notwithstanding the lim- thus giving the tenant a greater inteited duration of entails; great numbers rest, and more individual sense of proof estates being at this moment enjoyed prietorship, than when his piece of by those whose ancestors acquired them land is packed, along with a number at or soon after the Conquest. But in of others, into a mass of unsightly France such feelings are proscribed. Estates and families have there no abid. patches. ing connexion ; and at the demise of an
In connexion with the small holdindividual who has a number of chil. ings in Ireland, it should not be fordren, his estate can hardly escape being gotten that this subdivision of the subdivided. And this effect of the law land results mainly from the practice tends to imbue the proprietors with cor of sub-letting: and this again has responding sentiments and feelings. arisen in a great degree from the * Non seulement,' says M. De Tocque- practice of granting long Jeases, ville, “la loi des successions rend difficile the want of which in England has aux familles de conserver intacts les mêmes demaines, mais elle leur ôte le
among many other things, for désir de le tenter, et elle les entraine, an outery, against the landlords. Mr. en quelque sorte, ả coopérer avec elle à M'Culloch has pointed out the evils of leur propre ruine.'”-P. 85-86. too long leases on the farming tenant,
that they superinduce a sense of seBut Mr. M‘Culloch dwells more par- curity which easily degenerates into ticularly on the injurious effects to indolence. But the intluence on Ireagriculture from the parcelling out of land is even worse, by, breaking up the land into sınall properties. He the land into small patches, on which shows that a small proprietor is not the occupier can but just maintain so efficient a cultivator of the soil as a himself, paying an exorbitant rent to tenant, in which doctrine Arthur the middleman. For it is not the Young had preceded him. He shows, eager demand for land amongst the also, that the subdivision of properties Irish peasantry, as we sometimes leads to the subdivision of farms, and hear, that has produced this subdiviurges that it is impossible to have good sion of the land, but the subdivision farming on small patches of land. Of that has produced the demand, by the miseries of an agricultural system putting the cultivation of the land carried on by small farmers on petty into the hands of a class who are holdings, we have already a sufficient unable, through want of skill and example in Ireland. We cannot but capital, to carry it on; who cannot, think, however, that the progress of therefore, furnish employment for the things in England has too much swal- labourers, and thus drive them to lowed up those little farms of from grasp at little parcels of land as their thirty to fifty acres, which at one time only means of securing a wretched were common over the country. Not subsistence; and this security, as we but what capital is employed at a know, has more than once proved but great disadvantage on these little holds a fancied one, as in the disastrous ings—but where there is a general sys- failure of the potatoe crop. tem of good-sized farms, an intermix While we are on this subject, we ture of smaller farms is not attended may draw the reader's attention to a with injurious effects proportional to very able pamphlet by an Irish genthose which arise where the whole of tleman, on Irish matters, which, the land is split up into minute parcels. though we believe it has never been And then small farmers furnish a link published, has had an extensive pribetween the yeomanry and peasantry, vate circulation. We allude to “ An which it is useful to maintain, cheering Address to the Members of the House the poor man's lot by pointing out to of Commons on the Landlord and