Hence we should rather view the law of entail as an inducement to a man to perpetuate his thousands in broad acres than to acquire his fortune in the first instance. And, in conformity with this view, it may be observed, that it is more generally the son or other successor than the architect of the fortune himself who converts the accumulated wealth into this permanent form.
Mr M'Culloch's second point – the preservation of families by means of entails – is one of wider interest and more general importance. In a bustling mercantile community like ours, we cannot too jealously guard any institution which, directly or indirectly, tends to preserve distinctions due to something more than mere wealth. And there can be no doubt that the system of entails has saved many an ancient line from being thrust from its home of centuries to a strange spot, and this not only among the titled and wealthy, but among the yeomanry and "statesmen." In England, of course, a family may frequently perish through the possession of an estate in fee-simple passing into the hands of an unthrifty representative of the line, as the settlements require constant renewal. But in Scotland the system of perpetual entail exercises a much more potent influence in their behalf. Mr M'Culloch, though he rebuts many of the objections urged against the Scottish law, is nevertheless anxious to see it assimilated in a great measure to that of England. There is, however, an exception which he would make to the rule against perpetuity of entails. It is with regard to the peerage, in which matter we cordially agree with him. There were, in ancient times, instances of barons who were degraded from their dignity on account of their lack of sufficient revenue to support their hereditary title. The independence and the dignity of the House of Lords would be alike maintained by an enactment enabling, or even obliging, all peers to tie up by perpetual entail a certain portion of their estates to accompany the title. Such anomalies as that of an Earl of Buchan (Lord Erskine's father, see Lord Campbell's Lives of the Chancellors) living in the uppermost flat of a sixteen-story house, would thereby be avoided with considerable advantage to the national interests.
Mr M'Culloch, therefore, who quotes Sir William Temple and Dr Johnson on the same side, would preserve the law of perpetual entail for the Scottish peerage, and extend it also to that of England. In other respects he is, as we have above stated, in favour of a considerable modification of the Scottish law of entail. He admits, however, the difficulty of dealing with existing entails.
"These have established a right of property not only in the actual possessors and their families, but, speaking generally, in a wide circle of collateral heirs; nor could the rights of the unborn heirs be affected without annulling the clauses in a great number of settlements, and also in marriage-contracts and other deeds inter vivos. It is, therefore, hardly possible materially to relax the fetters of entails with strict justice to all parties, though it might perhaps be slowly and gradually effected without inflicting any very serious hardship on any individual. We incline to think that this might be most easily brought about by saving the rights of living heirs of entail, and of such heirs as may be born under existing marriage-contracts. The interests of the possible heirs that might be prejudiced by the adoption of some such rule as this, are of so very unsubstantial a description that they might safely be neglected." P. 78.
At the time we write, a measure is pending before Parliament, entitled "A Bill for the amendment of the Law of Entail in Scotland," and endorsed with the names of the Lord-Advocate, Sir George Grey, and Mr Solicitor-General for Scotland. Whatever difficulties Mr M'Culloch feels with regard to relaxing the fetters of entail, it is obvious that the contrivers of this bill are in nowise hampered by them. They go to work in the most off-hand manner possible. A short and unobtrusive-looking bill is to drive clean through all the existing settlements and deeds of tailzie, with their complicated train of clauses irritant and resolutive, as if no mortal was concerned in the matter, and estates were the proper toys of law-makers.
The fact of the quantity of alienable land diminishing in a commercial country, while trade and population are increasing, is no doubt a state of things which calls for a remedy, since there must at some period or another, be a failure of land adequate to meet the requirements of realised fortunes. If, in the judgment of reasonable and practical observers, the difficulty could be met by making all future entails subject to be barred by a process analogous to that existing in England, we should think there could be no hesitation in affirming it to be the most just and most expedient course to introduce such a change, and leave the existing settlements in their contemplated perpetuity. If, however, it can be clearly established that already too much land is locked up in the northern kingdom, and that the soil now free from entail is insufficient to satisfy the requirements of future buyers, then we should say that the utmost care and skill were required in framing enactments which should adapt themselves to the justice of particular cases, and should, as far as might be, save existing and vested interests in their delicate multiplicity and connexion. If ever such care and skill were required, it would be in a measure which interferes more extensively with vested rights – usually with good reason a sacred thing in the eye of the law – than any which appears in the statute-books of the three kingdoms. A statute to convert the Irish tenants into owners of the fee-simple of their several holdings, (a project which has been talked of,) would scarcely be a more startling invasion of the rights of property as they are usually recognised. We do not, however, intend to impeach the general provisions of the bill. If, as we before observed, so important a change was found to be necessary, it is right to make it; and it is no more than was effected in England by a more gradual process – the subtle fictions of the law-courts, which virtually got rid of the statute De Donis. But we can anticipate nothing but uncertainty and multiplied litigation, from the apparently crude and careless project now before us.
An instance of the loose wording of this bill strikes the reader in the very first section. It proposes to enact "that where any estate in Scotland shall be entailed by a deed of tailzie, dated on or after the first day of March one thousand eight hundred and forty-eight, it shall be lawful for any heir of entail, born after the date of such tailzie, being of full age, and in possession of such entailed estate in virtue of such tailzie, to acquire such estate in fee-simple, by applying to the Court of Session, &c." Now, what is this estate which the heir of entail is to acquire in fee-simple? The estate-tail, for so it is by hypothesis. But to talk of acquiring an estate-tail in fee-simple is nothing better than downright nonsense. An estate-tail is, by the origin of the word, cut or carved (taillé) out of the fee-simple. You may talk of converting or enlarging the part into the whole, but you cannot talk of acquiring the part in the entirety of the whole. This is not all; the bill plunges at once in medias res, without favouring us with any sort of definition of the important phrase, "heir of entail," in this and other clauses. The same expression in the statute 1 Jac. VII. c. 32, has already (see Sandford's Entails, p. 231) given rise to no small questioning and litigation, which promise to be renewed in abundance should this measure pass into a law. Again, perpetual inalienability is not an incident to all estates-tail. Lands merely bound by what are called the prohibitive clauses, may be alienated for a valuable consideration, though not by a voluntary or (as the Scotch say) gratuitous conveyance. Tailzies, however, to which no clauses are annexed, do not prevent the heir from conveying the lands in any manner he pleases. Now, as, the object of this bill is to relax the bonds of perpetual inalienability, we presume that only those tailzies which are guarded by the irritant and resolutive clauses are within its purview. If so, the general expression "deed of tailzie" should have been distinctly limited. If that expression should be held to comprehend all deeds of tailzie, which it must of course do when taken by itself, then the proposed act will exercise a very extensive disabling power, by restricting the unlimited right of alienation under tailzies of simple destination,2 and the right of alienation for value under tailzies with prohibitive clauses only introduced, to the peculiar form and instrument pointed out by this bill, and which we suppose was devised in analogy to the forms substituted for fines and recoveries by