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Scottish Entails
From Tait's Edinburgh Magazine


An upholsterer gets an order to fit up in a first-rate style, the mansion-house of a young gentleman who has just succeeded to his paternal estate. The order is large; but that is a commendable quality, for the estate is large, too,— and, contemplating its broad woodlands and fruitful meadows the mahogany heart of the upholsterer grows glad within him, and he says of his long bill, “It is as good as the bank.” He awards it, in his secret thoughts that compliment which the Americans consider the greatest of all and which they expies by mying of any thing, that “It is actually equal to cash. Alas unthinking upholsterer! year after year passes by, and the bill is unpaid. Every twelvemonth it is becoming nominally more valuable, but in its real nature more precarious and questionable. Its owner hears some incomprehensible statement that the dashing young laird is no more owner of his fine estate, than the captain is owner of the man-of-war he commands. He is informed that some one, who was real owner of that estate a hundred and fifty yean ago, being armed with that despotism which the legislature cannot of itself use, but which it can bestow on individuals had fixed that, thereafter to all eternity no one should be owner of that land; that it should be excluded from commerce and from human control; and that a certain series of persons genealogically expected to come into existence, should successively have the privilege of enjoying its fruits so long as they lived. The upholsterer is told that if he had made himself acquainted with the practice of the feudal law, and had devoted himself to the study of a certain record preserved in Edinburgh, called the Register of Tailsies he would have found out how the matter lay; and that, not having adopted these very obvious precautions he must take the consequences and content himself with such a percentage on his debt as the numbers of his fellow-suflferers may limit his proportion of the accessible funds.

Such is the working of the law of Entail; yet this is not the only type of its pernicious influence. There is a troop of younger sons. Their father is a large landed proprietor; but the estate is tied up and he cannot apportion it among them. The eldest must draw the whole annual income; and the greatness of the estate he enjoys renders it all the more necessary that his younger brothers should be suitably provided for as gentlemen. To bring up the cadets to some secondary drudging profession, when the eldest is so splendidly provided for would be a scandalous instance of inequality and partiality. What then, can be done with them, but give them some means of pillaging the country? The offices they are to receive must be so much the more gentlemanly, because their brother has so fine an estate.

Is it not a wonderful instance of human patience under wrong* that such a thing has been endured in a country where so much power of self-redress lies in the hands of the sufferers? Yes have borne it all with exemplary patience and forbearance. The unembodied public at large — the people who buy and sell, and are not united as a particular “interest"—are the most patient meek, long-enduring society in Christendom. Corporations or interests would not touch the loads they bear, with the little finger. But an interest is becoming embarked in the matter, — no less an interest than that all-powerful and all-dignified, though so lately cheated one, u The Landed.” A meeting of Scottish gentlemen connected with entailed estates has been held, and it is understood that some measures are to be taken with a view to an alteration of the Entail law.

Remembering that we had once spoken on this subject but not recollecting precisely to what effect, we turn up Te&s Magazine for May 1833 and there amid some remarks on the Entail bills brought in by Mr. Kennedy we find the following words which certainly deserve to hold their place among political prophesyings: — “When the Corn Laws are abolished, the landlords will be the most clamonms for the abolition of all restriction. One abnoe is shouldered upon another, and they all tnsuble token the lowermost falls/9 And so now that landed proprietors are not to levy a tax on the people and the agriculturist is to get the value of what he brings into the market along with all the rest of the world—now that he is to use the expressive term of Lord Francis Egerton, a mere manufacturer of grain, the lairds see that their raw material must be released from the glittering bondage with which the pride and folly of their ancestors have enthralled it. And surely no instance of national pride and folly is so intense and proposterous as this same Scottish Entail system. Our posterity will no more give credit to the full extent of its practical absurdities than they will believe in the devotion to animal magnetism and homoeopathy or any other leading aberrations of our age. The absurdities of genealogy and heraldry are comparatively speaking innocent playthings. At the very worst they bring upon their victims surcharges for omission to return armorial bearings in tax schedules or befool Bristol merchants with imaginary pedigrees invented by ingenious Chattertons. Vain and paltry as are the propensities involved in these matters thus trifling are the toys with which they teach their foolish votaries to play. The passion and the indulgence are worthy counterparts. But in this law of Entail the vainest of the coxcombries that prompts a Chinese dignitary to aspire after a peacock's feather or a silk button is allowed to interfere with the most solid interests of the country, and the administration of justice between man and man. MacGubbin is lord over fifty acres of arable land and meadow in the parish of Tailzie. MacGubbin being possessed of the desire of immortality decrees that the said fifty acres shall never be divided shall never be sold* shall never be seized by the creditors of the holder, shall never be distributed by the holder among his children; but that they shall through everlasting time be in the possession of the person who is the representative, according to a certain line of descent, of some person or other of his choice, no matter whom. In one thing only can the despotic will of MacGubbin be counteracted. He may decree that the heirs-m&le of A or B, to the end of time, shall possess his acres, but he cannot assure a succession of such heirs-m&le. In all other matters, his decree is as irrevocable as the laws of the Medes and Persians. The succession of the Crown has been changed—the septennial act has passed — the old ecclesiastical courts of Scotland have been abolished — the constitutional character of the House of Commons has been revolutionized by the Reform act—the municipal corporations have been popularized — the Com Laws have been made and unmade — all these things have been done since MacGubbin passed his decree, making law for the future fate of his fifty acres,—and it remains firm, unmoved, and immovable!

In reality, this system has no friends. No one ever ventured to speak in its favour as people have spoken in favour of the com-laws, or the Irish church establishment. In the correspondence of the Scottish and English lawyers, in the middle of the eighteenth century, it is condemned without reservation. “As to your land rights," says Lord Chancellor Hardwicke, writing to Lord Kaimes, “I should be for beginning with abolishing the strict tailzies, at least in future; which not only differ from the genius of the English law, that abhors perpetuities, but are manifestly prejudicial to the national interest of Scotland, which is now rising in trade, and will, I hope, greatly increase in it. The taking so much of the lands extra commercium, is inconsistent with a commercial country.” In the same manner Lord Mansfield treated the institution as something which no man, not the victim of childish prejudices, could defend. Talking of himself and the Duke of Argyle, he said, “We agreed that an abolition of Entails ought not to be forced upon the country, contrary to their own inclinations; but to make the yoke gall the more, that no relief should be given by parliament to make them easier. I insisted for an exception .as to a general bill to give a power of leasing, as a matter of infinite consequence to the whole community. When the country wishes to break Entails, the parliament will most readily come into it; but I doubt the general sense of the land proprietors continues still in favour of them.”

All men are naturally despots, and would lay down rules for the guidance of all posterity, if all posterity could be compelled to obey them. The essence of just legislation is, that the community at large should be armed against this interfering spirit in individuals, and should treat their manifestations of it as waste paper. The principles on which all property and justice are founded, permit a man who has made or has honestly acquired property to decide who shall be the next possessor after he himself ceases to enjoy it. The right to dispose of that which he possesses is so dear to every man, and it is so essential an element of free action, that without it mankind would lose their chief inducement to energy and enterprise, and life would lose one of its greatest charms. But we counteract the benefit if we carry it farther, and enable the citizen to fix those marks that are to individualize the owners of his soil for centuries after he is dead. Such free enjoyment of property is like the American's freedom to wallop his own nigger, the free privilege of doing mischief. We stand almost, if not quite alone, throughout Europe in this matter. The French jurists and economists of last century denounced the system with a unanimous voice; and, not abiding the sweep of the revolution, it was virtually abolished in 1747, by a restrictive measure passed under the auspices of that noble reformer of the law, the Chancellor D’Aguessau. In England, the struggle between the aristocracy in parliament, and the stubborn common lawyers of Westminster Hall, fighting for their beloved principle, — that the law abhors perpetuities,—has been long and bitter. The real loves and hatreds of your common lawyer are measured by the Platonic loves and hatreds of the law; and with unflagging ardour, he has fought the battles of his mistress, century after century. The war against entails would make an amusing history. Before the intervention of statute, they were only so much soiled parchment, for the law “abhorreth perpetuities.* Then, however, came tbe statute de donis, which required the courts to give effect to the will and intention of the donor. It was not quite consistent with the functions of a judge to refuse to give effect to an act of Parliament; and Westminster Hall was nearly, but not quite, at its wit's end, to keep alive the beloved common law’s horror of perpetuities. The matter was accomplished by one of those wfictions which we unimaginative people in Scotland find it so difficult to comprehend the philosophy of, and the “ Common Recovery” was invented. This was, virtually, a collusive action at law, in which the person who, if it had been a real attempt by some stranger to get possession of the estate, would have defended it, allowed it to be carried off by not supporting1 his title. Being thus freed of the fetters of the Entail, and held by a new and free title, the decision of a court, the property and possession might thereafter be settled as the accomplices to the transaction might arrange. Lest in this unprofessional way of stating the matter we should be guilty of irreverence to the sovereign lady Common Law, we shall give the reader an account of it in the words of the Real Property commissioners, who say,—

“A common recovery is a judgment in a fictitious suit, in the nature of a real action, brought by the demand and against the tenant of the freehold, who vouches some person to warrant the lands, and judgment is given for the demandant to recover them against the tenant, in consequence of the person vouched, or the person last vouched, if there should be more than one vouchee making default to the title to the lands, which title he is supposed to have warranted. In a recovery, the regular process of a real action is pursued throughout, and no compromise takes place as in a fine.

"The principal use of a recovery is to enable a tenant in tail to bar, not only his estate tail, but also all remainders, conditions, collateral limitations, and charges, not prior to the estate tail, and to acquire or pass a fee simple, or an estate commensurate with the estate of the settler.”

At length Westminster Hall got tired of this mummery, and the act 3 & 4 Wil. IV. c. 74, was passed for abolishing fines or recoveries, and enabling people to “dock” entails, as it is elegantly called, by an ordinary conveyance enrolled.

Even in Scotland, the law showed some disposition to have a quarrel with perpetuities. When entails were made with clauses in the most distinct manner limiting the succession of any estate to a definite series of heirs, if any one of them did, notwithstanding, treat it as his own, the law would not interfere. It said, true, the entailer directed so and so in his settlement, but the heir in possession has changed this destination,—the proprietor is entitled to change his predecessor’s deed of settlement as finely as his own. A clause was next invented called the “irritant danse,” by which the person contravening the limitations of the entail was to forfeit the right to the property. Still the law would not interfere. It was true that he was declared to have forfeited the title, but who was entitled to take it X It was not like an estate hdd by a false title, which must be given over to the person with the true title. Still perpetuities seemed to suffer under the hatred of the law of Scotland. At length an ingenious man invented a "resolutive clause,” as it was termed, by which the right forfeited by one person devolved on another, in the case of a contravention. Here the breach of the entail not only put an end to one mans title, but created a title in another. Poor Scottish Law now shook her head and gave up the battle. The sons of Zeruiah were too strong for her. Still, however, a sort of guerilla warfare is kept up against entails. They are not swept off in platoons, but they are picked down in considerable numbers at single shots. Law says, that entails or Tailzies as they are scientifically called, are to be interpreted strictissimi juris, which means, that the will and intention of parties is to go for nothing: that words are to be interpreted in one strict sense, and that any flaw, however slight, is to be held a fatal canker in an entail. This has held out occasional flattering visions to poor relations—it has been a “full security of waking bliss” to lawyers.

We hope that on the present occasion the country will take up the matter, and cry out for the sweeping of the whole offensive system out of our law. From 1833 to 1836 a series of measures was brought in for modifying the law, which beyond doubt, if they had passed, would have left much opportunity for legal jugglery. The Judges of the Court of Session were desired to report to Parliament on these measures, and they did so at considerable length and with much candour. Eight words of this Report are enough for our present purpose: it says, with reference to the bill, “Its provisions may be evaded in various ways", and then the ways are pointed out. From this Report, the public may take safely the hint of not being contented with a modification of the law. It ends with reasons against any extensive change; the most cogent of which is, that much land would be thrown into the market. Such is always the style and character of the objections to the removal of a nuisance; people of weak nerves are warned not to meddle with it, because stirring it makes it the more offensive.


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