Mr. Kennedy, in moving for leave to bring in a bill to alter and amend the Scotch Law of Entail, expressed his determination, in the amendments he had to propose, to consult, as far as he possibly could, the feelings and the prejudices of the Scotch Aristocracy. The statute he wished to amend, was of very ancient date. It was passed in the year 1685. By its provisions, the owner of the fee simple of an estate in Scotland was enabled to limit the succession by a series of entails through ages. Possessing the fee simple, he had the power to name his unborn heirs, and to settle the succession to his property through a series of ages, without the possibility of any future possession altering the nature or terms of the entail. The consequences of this extended nature of entail were most injurious to all the transactions of society: for when all other properties were found liable to debts contracted by their proprietors, the owners of entailed estates found their possessions exempt from any obligations. A record was kept of the entails settled according to this statute, and he had procured a return of the numbers of properties which had been progressively entailed, through periods of twenty years, in order to shew how rapidly they were increasing, and how injurious that increase must prove to the prosperity of the kingdom. In the first forty years there were 313 estates entailed: in the next period of twenty years there were sixty-nine; in the next 138; in the next 272; then 360; then 459; and in the last period there were 54: making in the whole, 1,645 estates entailed under the statute, besides a vast number of other properties left in the hands of trustees for the same purpose. It was a fact worthy of notice, that large quantities of English capital were gradually finding their way to Scotland, in order to its being placed under the security of the same restrictions, tending to increase the evil, and 1020 to produce a still greater mischief—a numerous absentee aristocracy. It might, indeed, fairly be said, that one half of all the landed property of Scotland was at that moment placed under the system of entail permitted by the statute of 1685; and he might venture to predict, that, if some check was not speedily applied, the whole of the landed property of that country would soon be placed in the same condition. The owners of estates entailed in this manner found their properties, as he before observed, free from the obligations imposed upon others; and it was, therefore, not unnatural to suppose that many of them looked upon their creditors in a very different light from that in which they must regard them if their properties were settled in the ordinary manner. The hon. gentleman went on to contend, that this statute produced a state of things very uncongenial with the opinions of the times in which we lived, and calculated to retard the progress of improvement. In England an estate, it was true, might be entailed to a certain extent, but when the son came of age, the father might come to an understanding with him for their mutual benefit, and cut off that entail. In Scotland no such good understanding could prevail between the father and the son; and this want of harmony in families was one of the evils resulting from the system which he proposed to alter. Scotland had, of late years, made rapid strides towards improvement; but great as that improvement had been, it must have been much greater had not the peculiar nature of these entails presented an obstacle to the proper exertions of speculators upon the large tracts of waste land which it contained. In 1757, lord Hardwicke addressed himself to lord Kaimes, one of the ablest lawyers who ever lived in Scotland. Lord Hardwicke expressed his entire concurrence in the opinion entertained by lord Kaimes, as to the evils of the law of entail in Scotland, which had the effect of quite locking up the property in that country. In 1764 an act was passed upon this subject, and in 1770 another act was passed with the view of making some improvements, but which was attended with great confusion and inconvenience. Again, in 1824, a statute was introduced, which was brought forward with the best feelings, and for the best purposes. By that statute, a small part of the estate was made liable to certain contingencies, but it was not pas- 1021 sible for the heir, under any circumstances, to alienate the greater portion of it; and; whatever might be the demands upon it, two thirds of the estate were strictly preserved by the law of entail. He would for the present merely state the general object of his bill, which was to alter and amend the law of entail. The proposition upon this subject 'did not originate with him. It was one earnestly recommended in a very able work published by Mr. Irvine. The idea of the necessity of altering and amending the law upon entail was also strongly recommended in an admirable book upon the subject, by an eminent lawyer, Mr. Simpson. A disposition towards such an alteration prevailed throughout Scotland. It was upon such authority as he had cited, that he had undertaken this business. He wished it to be understood, that in any alteration which he might propose, he intended to make an exemption in favour of the aristocracy of Scotland. He would make this concession to what some might consider the prejudices of the aristocracy that no fine should be levied, or recovery suffered, which would cut off the entail, by which estates were transmitted in the families of the aristocracy. Indeed he was anxious that any change which he might be instrumental in introducing should not affect the natural interests of any individuals. He would not make the improved law of entail, obligatory upon any persons. Those who wished to abide by the present system of the strict law of entail, would be at liberty to do so, but then he wished that a freer and more unrestricted system should be introduced, for the benefit of those who might wish to avail themselves of it. He would not propose a sudden and compulsory measure, but make it voluntary and gradual, and thereby render the adopting of it more generally acceptable. The hon. gentleman concluded by moving, "That leave be given to bring in a bill to alter and amend the Law of Entail in Scotland."
The Lord Advocatesaid, he did not object to the manner in which the hon. member proposed to bring the subject before the consideration of the House, as during its progress the country would have an opportunity of expressing its opinion on this important measure. It was the more necessary to give the country this opportunity, as it was the obvious tendency of the bill to do away with entails entirely 1022 in Scotland. [No, no! from Mr. Kennedy.] He could not see what other tendency the giving every heir the power of disentailing one third of his entailed estates could have; for thus, in the course of three successions, the whole of an entailed estate might be alienated. He thought the people of Scotland were not prepared for so violent a measure. If the bill had given the power of disentailing the whole estate at once, he did not think there would have been much opposition to it, as there were few who would ever think of doing such a thing. With respect to extending the operations of the bill to the present holders of entailed property, he thought there would be muck objection to it, on account of the interests of the presumptive heirs, which were bound up in the present law. Indeed, he did not think the holders themselves would go along with his hon. friend in his views.
§ Mr. Sugdenthought, that any change which would affect the statute of 1685, by which the real property of Scotland was settled and established, would be productive of much inconvenience and litigation. He would not say that the law of entail in Scotland was not susceptible of improvement; nor would he advocate the expediency of strict entail: on the contrary, in this commercial country, he thought that property should be comparatively open; whilst a due regard should be held for the principle of non-alienation, for the preservation of property in families, and the other salutary purposes for which it was instituted. Much litigation and confusion ensued from many parts of the law affecting real property and its entailment in Scotland; but that confusion would, in his opinion, be only increased by any precipitate interference with the principal on which entail property, consisting as it did of nearly half the whole property of Scotland, was settled.
The Attorney General, recommended the dividing the proposed measure into two distinct branches, the prospective and retrospective. Upon the propriety of touching existing relations, great difference of opinion prevailed. He did not understand for what reason the peerage was excepted from the operation of the prospective clauses.
Mr. Kennedy, in reply, said, he never meant to unsettle the relations of property in Scotland: his object was to remedy an- 1023 noyances and inconveniences which were admitted to exist under the present system.
§ Leave was given to bring in the bill.