SCOTCH ENTAILS.
TBstrict entail was established in Scotland by statute in 1685. Entails of an imperfect sort had long been known, and strict entails had occasionally been made previously to 1685; but there was much doubt whether the strict entail was valid at common law. The object of an entail was to
mark out a line of succession to land—which might or might not be the legal line of succession—and to keep the land in the line marked out as long as that line endured; and it was only by the strict entail that this object could be effectually accomplished. The strict entail might contain whatever conditions or pro- visoes the maker chose to put into it, but it was essential that it should contain three prohibitions,—one against alienating the land, another against contracting debt or doing any deed in consequence of which the land might be lost to future heirs, the third against frustrating or interrupting the order of succes- sion ; and that these prohibitions should be fortified with irri- tant clauses, declaring anything done contrary to them null and void, and with resolutive clauses determining the right of the heir in possession by whom any such thing was done. These means were adequate to the end contemplated, and from 1685 onwards, by nearly everybody in Scotland with land at his disposal, that end seemed to have been considered a very fine thing. It was not the great families only who entailed their estates. Every country gentleman was smitten with the desire to preserve his land to his family or to persons of his name for ever ; and the shopkeeper who had turned the till into acres—an occurrence more frequent than might have been expected—was equally possessed with the ambition to establish a family that would endure. The wonder is that the whole land of the country was not locked up from com- merce, made inaccessible to either purchaser or creditor ; and something very near this would have happened, had not the Scotch conveyancers been somewhat apt to bungle, and the Scotch Courts been ready to catch '1% every flaw. But the Courts, rightly thinking that entails should be treated most rigidly, held the slightest error—even the writing of an unimportant word on an erasure—fatal to an entail, and in a considerable proportion of entails an error could be discovered ; while, through some failure or omission, many which were intended to be strict were found to be something short of that. Occasional misadven-
ture seems to have had no effect upon the making of entails—
which was natural enough ; everybody knew that the blow of the law sometimes fell, but everybody believed it would not fall on his entail. To foresee the consequences of what they were doing—not as against the public, against which they were taking thought, but as regards those whom they had made their successors—could scarcely be expected from people who had a mastering passion to gratify. But these successors soon found that what they had inherited was a position of embarrassment.
The first possessor under an entail not unfrequently found himself involved in a litigation as to whether and to what extent, the entailer's debts affected the land. There are persons now living whose whole lives have been taken up with such litigation. Then the entailed proprietor's power of dealing with the land and his credit were both limited by the nature of his interest ; and when improving land came into fashion, he either had no money to spend on improvements, or if he had money, and so spent it, he was giving to his eldest son what should have been the provision of his other children. How to provide out of his yearly in- come for his younger children was one of his standing troubles, and a grievous trouble it must have been. His position made him seem, and almost made him think himself, rich—while he had only a good income—and forced him into habits of expense; the result most often being that, like too many professional men now, he left his children penniless. If he outran the constable, as it must sometimes happen to country gentlemen to do, he of course had inexorable creditors to deal with ; they could only get payment out of the rents, and they were apt promptly to enter into possession of them.
It was for the public interest that land should be im- proved. The Legislature enabled entailed proprietors to make improvements, and in doing so it added heavily to the troubles of their successors. It was natural that they should desire to make provision for thei : fami- lies. The Legislature was amiable enough to enable them to do so, and in so enabling them it almost ensured the ruin of their successors. It turned out that such concessions to public policy and private feeling were more than the system of strict entails could stand ; and if they have not led to a cessa- tion of entailing, they have dissipated the dream, the fond belief that arrangements can secure perpetuity in a changeful world, which brought it into existence. An Act of 1770, known as the Montgomery Act, enabled the entailed proprietor to improve. He was authorised to charge his successor with three-fourths of the cost of certain specified permanent im- provements, but so that the amount charged should not at one time exceed four years' free rental of the estate. As it was foreseen that the successor could scarcely ever pay this amount, he was enabled to rid himself of liability for it by giving up a third of the rents ; and he, too, was authorised in certain cases to charge a portion of what he had paid on the next heir. Permanent improvements too often wear out, and they very often do not tell as, to pay, they ought to do, on letting- 'value; a hundred years ago the "unearned increment" did not come to the relief of improvers as it often does now; and the result of the Montgomery Act was that many curtailed proprie- tors found themselves with incomes hopelessly docked by a third on account of improvements made by their predecessors. It was not till 1824 that entailed proprietors were empowered to provide out of the estate for their wives and younger chil- dren; and it was the late Lord Aberdeen—a man of much shrewdness and no foresight, who blundered in Scotch affairs whenever he touched them—who, with a view to silencing clamours against the Law of Entail, to fortify it by judicious concession, carried the measure which ensured its subversion. The Aberdeen Act enabled an entailed proprietor to settle a third of the clear rent of the estate on his wife, and to make provision at the expense of the estate, for children who were not to inherit it, up to the amount (including similar provisions previously existing) of three years' clear rent ; the heir in possession being allowed, however, to satisfy all such provisions by giving up another third of his rental. It was considerately provided that he should not, under the provisions of the Aberdeen and Montgomery Acts taken together, lose more than two-thirds of the clear rental ; otherwise it would occa- sionally have happened that when an heir of entail had satis- fied all thd claims on him, he would have had absolutely nothing left for himself. As it was, the result to a multitude of en- tailed proprietors was hopeless penury, an appearance of wealth and consequence to which their means were utterly dispropor- tioned ; and the Act passed by Lord Rutherford in 1848, though it could scarcely have been welcome to them, must have given many of them real relief.
This Act did not put an end to the making of entails in- tended to last for ever ; on the contrary, it simplified and facilitated it, but it vastly altered their effects. A proprietor born after the first of August, 1848, and after the date of the entail under which he holds (which, by and by, will be the case of all holding under old entails) can disentail by a simple deed ; if born before the date of an entail made since August, 1848, he requires, for disentailing, the consent of his heir-apparent ; in other cases—the number of which decreases as 1848 recedes—the consent of two, or at the most of three, of the nearest heirs is necessary. As regards the power of &entailing, then, the Scotch law is now—leaving out a class of cases which, though still large, is yearly growing smaller—scarcely distinguishable from the English, and a Bill which the Lord Advocate has introduced will make the difference smaller than it is. This power has been freely used since 1848, and distressed proprietors are now, perhaps, no more common in Scotland than they are in other countries. The great landowners are, we should say, on the whole, much better off than they were previously to 1848, in con- sequence chiefly of a more judicious management of their properties, which the Entail Act of that year may have had some share in forcing upon them. The Aberdeen and Montgomery Acts do not apply (unless made applicable by the entail itself) to entails made since 1848, and under these there is no power of burdening the estate for im- provements, or for provisions for wife and children ; they still apply to pre-existing entails, but the mode of working them has been greatly improved. Provisions for children are made by mortgage secured on the estate ; the improve- ment outlay authorised by the Montgomery Act may be provided for by means of an annual rent (a terminable annuity secured upon the rent) lasting for twenty-five years, or—which is the only possible course in practice— two-thirds of it may be obtained upon mortgage, the expender paying the rest. And wherever money is thus secured by mortgage the proprietor may sell so much of the land as is necessary for repaying it. The amount that can thus be secured at present is small, but the proprietors, unable to make the im- provement they think necessary, are desirous of enlarging it, and the Lord Advocate has shown himself anxious to assist them. The principal object of the Bill already referred to is to enable them, subject to the control of the Court of Session, to borrow money to be expended in almost any way by which it is con- ceivable the value of land should be increased, and to charge the amount thus borrowed on the land ; and where two-thirds of a sum already expended has been thus secured, to enable them to add the remaining third. If all improvements were beneficial, even to the extent of what they cost, this would be a very fair demand on the part of people hampered in the business of land-owning. But there are improvements which don't pay, and most improve- ments wear out and have to be renewed ; and considering this, it seems a strong thing to allow limited owners, with only such supervision as a Court can exercise, to burden their successors to an unlimited extent. The House of Lords' Com- mittee, which sat in 1873, an extremely good Committee, pointed out most ably the risks involved in permitting limited owners thus to burden their lands. If that Committee was not very wrong indeed, the Lord Advocate's proposal may be described as a scheme for the gradual extinction of entailed estates in Scotland. Would it not be simpler to extinguish the entails themselves, or to provide facilities for extinguishing them ? It is scarcely worth while to respect scrupulously the title of expectant heirs, if this cannot be done without sub- jecting their estates to a gradual process of absorption. What is perfectly plain, however, is that if the Lord Advocate's Bill should pass, and the forecast of the House of Lords' Committee should prove a sound one, the history of the Scotch Entail will end, as it began, in folly.
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