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life or any number of lives in being, and twenty-one years afterwards. This more popular meaning of the word entail is that which Mr M'Culloch follows-his object being to treat of the influence of tying up lands from alienation.
Measuring the practice of entails by the rule of utility, Mr M'Culloch selects two points as the principal topics of discussion.
"In the first place, it is alleged in favour of entails that they stimulate exertion and economy; that they hold out to industry and ambition the strongest and safest excitement in the prospect of founding an imperishable name and a powerful family, and of being remembered and venerated by endless generations as their chief and benefactor. And, in the second place, it is said that entails form the only solid bulwark of a respectable aristocracy, and prevent generations from being ruined by the folly or misfortunes of an individual."-P. 78.
The first of these propositions is, no doubt, partially true; but the motive put forward has not, we think, as a matter of experience, the force that might, at first sight, be attributed to it. Perhaps the keenest accumulators of wealth have not been those who have fixed their capital in a landed estate. The man of business habits and judicious speculation is drawn to make his fortune in obedience to a passion which is partly developed, and at all events fostered, by the pursuit
of his life. It cannot be said to arise
altogether from a notion of benefiting posterity, of being the founder of a house-the man of whom future Fitztomkynses shall be ashamed-that John Tomkins, merchant, sets at nought all the expostulations of selfindulgence:
"Tun' mare transilias tibi tortâ cannabe
way in which a Roman citizen of great wealth could establish the influence of his family. He could not, like an English gentleman, connect his name with a landed estate, and extend his influence by those good offices and local duties which lie so immediately open to a man in that capacity. As an almost necessary consequence, he sought for power through the demoralisation and corruption of the holders of the suffrage-causes which contributed more than any other to the downfall of the republic. By lavishing his gold in this manner, he obtained, not only political eminence for himself, but also that power which led to proconsulates and proprætorships. among his heirs, and thus gave them exactions, his diminished revenues. the opportunity of repairing, by fresh
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 assimi
lated 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 SolicitorGeneral 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 unobtrusivelooking 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 conIf, however, it templated perpetuity. 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, how ever, 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 lawcourts, 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 estatetail, for so it is by hypothesis. But to talk of acquiring an estate-tail in feesimple 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,* 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 the statute 3 & 4 Will. IV. c. 74.
We have already seen how Mr M'Culloch would deal with the difficulty of disturbing the devolution of lands already limited in perpetual entail-namely, by "saving the rights of living heirs of entail, and of heirs born under existing marriage-contracts." We think our author has not, in this passage, expressed himself with due legal perspicuity and precision. The phrase "living heirs of entail" is somewhat vague and uncertain; we presume Mr M'Culloch intended the living issue of the heir of entail in possession, and all living heirs-substitute and their living issue. Again, what are existing marriagecontracts? Probably those marriagecontracts are intended, which are annexed to marriages solemnised before the introduction of a new system. Both these suggestions, as we have interpreted them, might with justice and advantage have formed part of the new law. It is true that this would, at all events for a considerable period of time, stop short of that assimilation of the Scottish law to the English which seems
* See Erskine's Institutes, B. iii. tit. 8, §§ 21-25.
to have been a great object with the framers of this bill. But the two systems would gradually correspond; and we hold that there is a principle of justice involved in the upholding of contracts the objects of which are as yet unfulfilled. Where an English settler has limited lands to a man for life, remainder to his first and other sons successively in tail, he knew, at the time of making the settlement, that it was liable to be barred with consent of the eldest son on his coming of age. But it was not so with a Scotch settler who executed a deed of tailzie to several brothers as successive heirs-substitute; and the legislature has no right, without the gravest public cause, to step in and defeat his intention.
But the bill, though intending to give far greater liberty to the owner of an entailed estate than Mr M'Culloch does, or, as we think, is consistent with justice, sets about affording him aid in the most ambiguous and misty manner conceivable. The 2d clause enacts that the heir of entail in possession, born after the date of the act, may disentail in the manner provided by the act; and an heir of entail born before the date of the act may similarly disentail," with the consent (and not otherwise) of the heir-substitute next in succession, and heir-apparent under the entail of the heir in possession," he being born after the date of the act, and capable of contracting.
We should recommend the tenant in tail to be very cautious how he attempts to acquire his estate in fee-simple" under the provisions of this clause. He is to obtain the consent of the heir-substitute next in succession. So far his course is clear. But the same person is also designated by the term "heir-apparent under the entail of the heir in possession." Now, is this a qualification of the general term "heir-substitute next in succession," and must such person, under the act, be also heir-apparent? If so, what is the particular qualification required of him under the expression "heir-apparent ?" Adhering to the use of the phrase in popular language, we must take, as the only circumstances under which the next heirsubstitute and the heir-apparent are one and the same person, the case in
which the first estate under the entail is limited to a man and the heirs of his body, and the second to his second son and the heirs of his body; then, supposing the eldest son to die in the lifetime of his father, the second son would be both the next heir-substitute and also the heir-apparent. Is this, therefore, the only case within the act? Scarcely, we should think, was it so intended. Are we, then, to interpret the word heir-apparent in the sense in which the phrase heir-presumptive is generally used; and must we suppose that the cases indicated are those in which there is no issue under the first entail, and therefore the next heir-substitute is what we should call heir-presumptive to the person in possession? If so, what is to become of the numerous cases where there is issue to take under the existing estate-tail? Or can it be that the issue in tail is altogether forgotten by this act, and that the person whose consent is required is merely the next heir-substitute in any case? We are inclined to think this the most probable explanation of this unfortunate clause, but can scarcely imagine that it will be suffered to pass into a law. A further ambiguity, however, arises with respect to this term heir-apparent, from its having a peculiar technical meaning in the Scottish law. "He who is entitled," says Erskine, "to enter heir to a deceased ancestor is, before his actual entry, styled, both in our statutes and by our writers, apparent heir." If the bill intends any reference to this legal acceptation of the phrase, we can only understand the person whose consent is required, to be such person as, being next heirsubstitute, would, on the immediate decease of the possessor, be his apparent heir, or entitled to enter on the lands. This, again, shuts out all those estates where the possessor has issue in tail, and would, consequently, limit the operation of the bill to exceptional cases. We think we have said enough to convince our readers that this clause is not likely to set free many entailed estates in Scotland-at all events, not without a chaos of litigation, in which the elements of profit will have a tendency to range themselves on the side of the lawyers.
The person whose consent is to be
obtained (whoever that mysterious person may be) is, as we have seen, to be born after the date of the act. In conformity with this principle, one would have supposed that where the next heir-substitute shall have been born before that date, then it should be necessary to obtain the consent of the first person entitled to take per formam doni, who shall be born after this date, together with the consent of all those who are to take before him. The third clause, however, introduces a new form of protection to the settlement, and merely enacts that, in such cases, the consent of a certain number of the heirs-substitute is to be ob
tained, (the blank left for the number was filled up with the word "three " in committee of the House of Commons. Nothing said about the issue in tail, as before.
Where the main enactments of the bill are so incomprehensible, it is useless to dwell on its details. We can only say, that whatever evils may be shown to exist under the present law, they will not only fail to be cured, but must be aggravated tenfold, by such a product of off-hand legislation
"Sent before its time Into this breathing world, scarce half made up, And that so lamely and unfashionable,” that it must necessarily die of its own deformity, unless the law-courts will lick it into shape by their decisions,— a shape (as it must be) in which its own parents would not know it again.
The law of real property in France exhibits a system so distinctly antagonistic to our English and Scottish law of entail, that we cannot be surprised at the attention with which Mr M Culloch has investigated its influences.
"According to the law of France, a person with one child may dispose at pleasure of a moiety of his property, the child inheriting the other moiety as legitim, or matter of right; a person having two children can only dispose of a third part of his property; and those having more than two must divide three-fourths of their property equally amongst them, one-fourth part being all that is then left at their disposal. When a father dies intestate, his property is equally divided among his children, without respect to sex or seniority. Nothing can be more distinctly opposed to the principles we have
endeavoured to establish, and to the system followed in this country, than this law. It is therefore lucky that it is now no novelty. It has been established for more than half a century, so that we may trace and exhibit its practical influence over the condition of the extensive population subject to its operation. Such an experiment is of rare occurrence, but when made is invaluable. And if its results should confirm the conclusions already come to, it will go far to establish them on an unassailable basis."-P. 80-81.
We have already seen how these results may be traced in the state of French agriculture. They may also, we think, be discerned in the relative position which the landholders of France bear to other classes in the social scale. These, numbering between four and five millions, ought, as a class, to constitute the leaders of the nation. So far from this being the case, they are perhaps the most inert and uninfluential portion of the community, having apparently had little which have swept over their heads within the last eighteen years, and as little in the erection, maintenance, or downfall of the Throne of the Barricades. It yet remains to be seen whether they will continue to accept every thing which the clubs of Paris are willing to force upon them. As tax-payers and cultivators of the soil, it can hardly suit them to be propagandists; as men who have something to lose, they will not readily give in to the dictatorial vagaries of Ledru Rollin. If, however, they would hold their own, it is time for them to be up and doing. France has been governed by a minority before now.
or no voice in the two revolutions
We have always regarded it as one of the main advantages of a landed aristocracy, that it raises up a principle of social rank antagonistic to that of mere wealth. In France, the constant subdivision and transfer of
land breaks down this influence, and causes land to be regarded as a mere marketable article and equivalent for
"In countries where the custom of primogeniture exercises a powerful influence, families become identified with estates-the family representing the estate, and the estate the family. The wealth and consideration enjoyed by the latter depend upon, and are intimately