SCOTCH LAW OF ENTAIL. (Hansard, 7 December 1830)

§ Mr. Kennedy
moved for leave to bring in three Bills relative to the Law of Entail in Scotland. The House he said, would probably recollect, that the subject was not new, as committees were appointed to inquire into it in 1828 and 1829, and bills were introduced into the House under the sanction and approbation of these committees. In 1829, two bills would undoubtedly have passed, had it not been for the peculiar pressure of business, for with a few exceptions, a very favourable opinion of them was entertained. The two first bills he proposed to bring in on the present occasion, were the same as those of 1829. The third was contained in the bill of 1828, but was not brought forward in 1829. It was universally admitted, that the law of Scotland upon the subject of entail required amendment, and he proposed by the first bill, to provide that any property entailed in future in Scotland should be entailed upon a plan practically similar to the law of England, but adapted to the law of Scotland. By the second bill he proposed to provide, that persons in possession of entailed estates, should receive certain powers over those estates, which were very much wanted, to enable parties in possession of property to do justice to their estates. By the third bill he proposed to enact, that on the expiration of the lives of all persons interested in property at the passing of this Act, it shall be in the power of the first unborn heir to make a new settlement of the estate, and thus that the principle of the old law shall, as relates to their successors, become merged in that of the new law. By this provision, the existing law would not be altered until the demise of all heirs in being. He neither wished nor intended to enter into 803 any discussion on the merits of the bills upon the present occasion. The law of Scotland upon this point had already been much discussed by the committees upstairs, by the House, and by a great portion of the Scotch people, and he only wished to introduce the bills now, in order that ample time might be given for their consideration. With this object in view, he should simply move for leave to bring them in, and then suffer them to lie over until after the holidays. Though anxious not to detain the House, he could not help remarking, that the law had not been found to secure the objects for which it was provided, and every object which the Legislature had in view when that law was passed had been defeated. So injurious, indeed, had been its operation, that, in many cases, it had had the effect of reducing to poverty, affluent persons, whose property was entailed. To these brief observations upon the general subject, he would take the liberty of adding, that, considering the peculiar times in which we live, a revision and a correction of the abuses of the law of entail, was a matter of serious importance. A very considerable, perhaps the greater portion of the landed property of Scotland is entailed. Under the existing law it is impossible that improvements upon property of this kind can be effected, in very many cases, which under a different law might be done with much benefit, not only to the individuals concerned, but to a large portion of the people of Scotland, who would then have an important source of employment opened to them. Of the necessity of affording employment to the agricultural poor, convincing proofs had lately been given in this part of the empire; but the House could hardly be aware of the very extensive field which would be opened to the industry of the labouring classes in Scotland under a different law of entail, since much capital now unemployed might then be most beneficially laid out upon land. Such a consideration at the present time should attach an additional importance to the subject. He trusted, therefore, that no objection would be made to the introduction of the bills already known to the House. He felt called upon by consistency, and by the regard which he naturally entertained for the country with which he was connected, to renew that which must be admitted by every one to 804 be a most difficult task, but from which, in the absence of others better qualified than himself, he would not shrink. The hon. Member concluded by making the motion he mentioned at the beginning of his speech.

§ Sir George Clerk
admitted, that the subject of the law of entail in Scotland was of infinite importance, and required mature consideration; for which reason he should not offer the slightest opposition to the introduction of the bills. At the same time, however, his hon. friend must not suppose, because the introduction of the bills was not opposed — that the Members for Scotland would, therefore, cordially support every detail of the measures. Everybody must be aware of the importance of the law of entail in Scotland, where so much property is entailed, although there was still sufficient land unentailed in Scotland to prevent any great mischief arising from a deficiency of means to afford employment to the agricultural poor. The hon. and learned Gentleman was quite mistaken in supposing that there is no field for the employment of capital in the purchase of land in Scotland. At this very moment a greater portion of the surface of Scotland was for sale than of any other part of the empire. If the hon. and learned Member's bills were precisely the same as those of last year, he must oppose some of their provisions. He was prepared to amend this branch of the Scotch law to a certain extent; but if either of the bills contained any proposition for a repeal of the Act passed seven years ago, and from which Scotland had derived the greatest advantages, he should certainly feel himself bound to oppose it. He would not go into any detail at the present moment; but as it was one in which the interests of Scotland were deeply involved, he trusted that it would meet with the attention which such a measure deserved, and that a proper opportunity would be allowed for discussing it. He regretted to say, that bills upon this subject bad not hitherto met with that degree, of attention from either House of Parliament which their importance demanded. With respect to the third measure proposed by the hon. Member, he had not yet heard anything to induce him to assent to it, and he therefore gave him notice that he should hereafter uniformly oppose it, though he would not object to their motion.

Mr. Cutlar Ferguson
trusted that this most important subject would meet with greater attention than it did in the last Session of Parliament. To judge, however, from the conduct of hon. Members during the discussion this evening, he could hardly flatter himself that this would be the case. He was quite satisfied that if any one had come into the House while the hon. member for Ayr was moving for leave to introduce these bills, he would never have supposed that any real or important business was under discussion, for during the time that his hon. and learned friend was addressing the House, he was perfectly sure that only those who were sitting close to him could have formed the slightest idea of the subject upon which he was speaking. The confusion was so great, that not one word of the first part of his hon. friend's address could be heard, even by those who sat only a very short distance from him. It was not upon this occasion only that he had to complain of the inattention and manifest indifference of the majority of those hon. Members who appeared to come to the House only to amuse themselves, by conversing upon subjects not connected with the business of the House. What with the talking, laughing-, and general inattention of the greater part of the House, it was quite impossible that matters of this kind,—more dry than interesting, perhaps, to those who sought only entertainment, but not on that account the less important—could be maturely or properly considered. The measures to which his hon. and learned friend had endeavoured to call the attention of the House were very important as regarded Scotland." There had been nothing like them since the period of the Union, because by them it was proposed to put an end to the system upon which the property of Scotland had hitherto rested. Although it was not his intention to oppose these measures, he was of opinion that there would be some objection to their being carried the length which his hon. and learned friend proposed. The subject required the utmost consideration, and he would therefore entreat for it the most serious attention of the Members of every part of the kingdom. Some change was necessary in this branch of the Scotch law, because all the purposes for which the law of entail was originally made have been defeated by subsequent Acts of Parliament. The principle of the old law, 806 for many years past, had been entirely departed from, and many abuses and much injustice had been occasioned. It became highly important, therefore, that some measure should be adopted which would carry into effect the real intentions of the Legislature. The principle of the old law in Scotland was, that every successive heir should come into possession of his ancestors' estates free and unencumbered. Subsequent Acts, however, had defeated that principle. The Montgomery Act, together with Lord Aberdeen's Act, have so put down the interests of heirs of entail, by allowing provisions for widows and families, that persons now inheriting property by entail in Scotland, instead of possessing, as they would formerly, a handsome income, are reduced to a state of comparative poverty. To the two bills, therefore, framed for the purpose of giving relief to heirs of entail, he should give his hearty concurrence, although he doubted the possibility of ever assimilating the laws of England and Scotland upon this point without causing too great a change in the law of Scotland. He trusted that the bills would meet with the favourable consideration of the House, and especially, he trusted that those who, from their official situations, might be termed the guardians of the law of Scotland, would devote their attention to the subject, and he hoped, therefore, before the second reading of the bills that an opportunity would be afforded to these learned persons duly to consider them. It would also be highly advisable, in his opinion, that the Judges of Scotland should be consulted upon the subject, so that the measures might be finally submitted to this House in such a shape as to render them as free as possible from any objection.

§ Sir William Rae
thought, considering the importance of the subject, independently of the very able observations of his hon. and learned friend, that it would be quite impossible for the House to resist the introduction of these measures. But the subject of Scotch entails was certainly one of the most difficult that could possibly be taken up by an individual Member; and it was, therefore, with much regret that he had heard that there was no chance of its being taken up by the other House of Parliament, which, from the attendance of the Judges of the land, possessed greater facilities for properly dis- 807 cussing measures of this kind than the Commons. He looked upon any measure for the purpose of improving the law of Scotland which had its origin in that House, almost with despair, for it required the sanction of the very first law authorities.

§ Mr. Kennedy
wished to offer one word in explanation, for the purpose of guarding himself against the imputation of having had the presumption to submit, upon his sole authority, any measure upon a subject of such vast importance as that of the Scotch law of entail. The House would recollect that two Select Committees had been appointed in former Sessions to consider the subject, and these bills embodied what those committees recommended as proper to amend the law. He was fully aware, that it would be the height of presumption in him to incur the responsibility of introducing such measures; but, in addition to the recommendation of the committees, these measures had received the approbation of a very learned and eminent Scotch Judge—Sir James Moncrief. Backed by such authorities he had undertaken the difficult task of endeavouring to carry these measures through Parliament.