LAW OF ENTAIL (SCOTLAND).

HC Deb 24 February 1848 vol 96 cc1307-13

The LORD ADVOCATE

rose to move for leave to bring in a Bill to amend the law of entail in Scotland. Notwithstanding the late hour of the evening (half-past 11 o'clock), he thought it necessary to say a few words in explanation of the measure which he was about to ask leave to introduce; but he would endeavour, in doing so, to trespass upon the time and attention of the House as shortly as possible. If he were addressing the Members from Scotland only, he could not imagine its being considered at all necessary that he should say anything respecting the evils that flowed from the present law of entail in Scotland, or to dwell even for one moment on the great amount of national grievance which that law inflicted. He would only say to them that the absolute necessity of some such measure as he was about to propose, was proved by the universality of the complaints which in Scotland were heard on all hands on this subject; but he trusted that he would be allowed very shortly to explain for the general information of the House some of the evils arising out of the present law. The Act of 1685, regulated for a long series of years the system of entail in Scotland; and by that, proprietors were enabled to carry the rights of property to a most extravagant and absurd extent, enabling them not only to point out by whom in all time coming a particular estate, whatever its value, might be held, but preventing any one of these from at any time altering the order of succession or the particular destination of the entail. So far, indeed, did the principle of restriction go, that no party holding such an estate, except when it was otherwise laid down in the provisions of the entail, could make any provision in favour of a widow or a child out of the fruits of the property; and it was even competent, under the Act, for the settler of an estate, not only to proceed upon the general principle laid down in it against the alienation of the estate, but even to render it impossible, on the part of any future holder, to alter so much as the arms upon his carriage, or the button upon his servant's livery, even though it should be for a period of 500 years. Under such a system no encouragement was given to the improvement of property; for it was not to be expected that a landlord would expend the means of improvement upon an estate which he had not the full power of realising for himself, and of which one individual only, his successor, got the entire benefit, while he had no liberty to provide for the wants even of his own widow and younger children—all improvements being for the sole advantage of the heir of entail. In order to remove some of the more glaring evils of this system, the 10th of George III., commonly called the "Montgomery Act," was passed. That Act provided for certain improvements, such as building mansions, and taking steps favourable to the better cultivation of the land, leaving a portion of the expense thus incurred to be liquidated after the death of the holder, by succeeding heirs of entail. A Bill introduced by Lord Aberdeen, afterwards, entitled proprietors to settle upon their widows a certain amount out of the proceeds of the property. The result had been, that between these two Acts the entailed proprietors of Scotland were most of them embarrassed; and he had little hesitation in saying, that matters would, as regarded those entailed proprietors, gradually become worse and worse. The system was such, that even with respect to large estates, it had almost become intolerable; and as regarded small properties, there was no end to the absurdity of the system. These deeds of entail were employed for the perpetuation, not merely of estates of large extent—those owned by the great landed aristocracy of the country—but, from the great desire which, in his country, every man had to perpetuate his land, and to make it go down to a long line of descendants, of which they could see no end, there had frequently been entails executed of very small estates, even of houses situated in towns and villages. The consequence of this had been to take away the very capacity for improvement which otherwise would have existed, and to lower the character and position of the holder of the land. He would now endeavour, as briefly as possible, to state the nature of the measure he was about to propose. This was a task attended with a great deal of difficulty, and one that had been under the consideration of many able and experienced lawyers, who had for years considered the matter with a view to legislation. By the Act of 1685, there had been created a great variety of legal vested interests, and it was necessary to deal with those interests in any measure that might be introduced; and as regarded the principal evils which prevailed, he thought, after all the reflection which he had been able to give to the matter, that they could best be cured by amputation to a large extent. Those interests that were in themselves important, and which had a well-founded claim to protection, it would be his object to preserve and protect from infringement; but in those cases where a great number of persons stood in such relation to an estate as that they could scarcely expect ever to derive benefit from it—whose interests were shadowy and unsubstantial, and such as could not be felt—in respect of interests such as those they must be prepared to cut them off entirely if they meant to apply anything like a remedy. If that was not conceded in a liberal spirit, he should despair of making any effectual improvement in the law of entail in Scotland. In the proposed measure he would begin, in the first instance, with regulating future entails. It should be remembered, that though in regulating future entails something considerable could be done, yet they would by no means deal with the principal part of the evil, as the greater portion of the land in Scotland was now in entail. With respect to future entails, however, he proposed to make them in Scotland such as that they should be in all important details affecting the interests of the parties, and as to duration of time, the same as in England. He proposed that future entails should be created in the same manner as was at present in use. The deeds of that class should be in the usual form; and he did not propose, so far as it might appear on the face of the instruments executed, to make any change in the mode of protecting perpetuities; but he should enable certain specified parties, under certain circumstances, to execute a deed relieving their estates from the effects of the entail, and creating their title into a fee simple. He should allow entails to continue throughout a certain number of lives, and from the termination of those lives for a certain number of years; but he would not enable parties under the age of 25 to rid their estates of the effect and operation of entails. He would suppose that an entail was created by deed bearing date the 1st day of March, 1848; suppose, also, that a person born after that day became heir to that estate, then he would enable such person—assuming that he was not in possession, but was next in succession to some person who did hold the estate—he would by the Act enable such heir, jointly with the man in possession, to execute a deed disentailing the estate; but he would by other clauses in the Bill make provision for the due protection of the interests of other parties who might be entitled to take after the holder and the next heir. The House would observe, that he did not merely propose that a man should be what was called of full ago, but that he should not be entitled to disentail his estate till he acquired that additional experience and discretion which he might be expected to possess when he reached the age of 25. Those were the provisions which he intended to submit to the House as regarded the matter of future entails. Upon these points he had consulted many eminent English conveyancers; and though there was great risk of producing confusion by any attempt to assimilate the law of real property in one country to the rules which prevailed under a different system, yet he hoped to be able to adapt the one to the other more nearly than had been accomplished by any previous attempts made for that purpose. He should now proceed to consider the subject of existing entails, and he feared that he should not find it easy to make the subject plain to the House. He would propose, in the first place, to date the origin of all existing entails from the passing of the Act, at least he meant that for the purpose of disentailing estates the law would take that view of them; the result would be that a party born after the passing of the Act would be able, if next in remainder to an estate, to join with the holder (and the rights of other parties being protected) to disentail the estate—always, of course, providing that the heir and the person in possession should be of the age of 25 years. This plan would, as he conceived, have the effect of assimilating the laws of both countries, for its operation would be quite analogous to levying a fine and suffering a recovery. Of course he hoped to make this mode of disentailing estates sufficient to establish for purchasers a clear title, for otherwise the Act would produce no beneficial results. For the sake of illustration, he would assume that there was no necessity for carrying protection further than twelve successive heirs. He merely meant that as an illustration; he saw no necessity whatever for carrying it so far. But suppose that twelve were in existence, and that the law had to deal with the interests of minors—he would suppose that there was a father of twelve children, possessing an estate entailed upon every one of his children successively; he and his eldest son, the latter being 25 years of age, desired to disentail the estate; he would not allow them to do so without the consent of one who should be a curator to the younger children, that curator being appointed with the sanction of the Court of Session, whose duty it would be to make a bargain on behalf of the younger children with the other parties concerned; he would not allow the holder to consent on behalf of his own minor children, for he might be a party deeply interested, because he might be an improvident father, and deeply in debt. Now, as regarded all beyond those twelve children and their possible issue, he would disentail the estate by the joint act of the holder of the estate, his eldest son, and the curator appointed by the Court of Session; and that was the mode with which he proposed to deal with existing entails. The next point he had to deal with was the provision for children. He proposed they should remain a real charge on the estate, with a power to sell portions of such estate, in order to pay them off. At present they were not a real charge, but they might be perpetuated as a charge on the rent. He thought the provision of the Bill would be a great advantage, both to the owner of the estate and the children. If they got rid of the absurd system of perpetuity, there could be very little objection to this course; but under that system of perpetuity it would have been absurd, to all portions of the estate to be sold, to pay off such charges as provisions for children, for it would have brought down many a large estate to a very trifling value. But if the parties were allowed to break the entail, the change might be made with advantage. The only other part of the Bill he wished to advert to was that respecting improvements. This was a great feature of the measure. Suppose a person at present laid out 20,000l., he could not recover it from the estate; he could not even give good security for raising the money; he could only charge three-fourths of the amount, or 15,000l., on the estate, against the next holder. He thought the capital necessary for improvements might be raised in another way, by taking the analogy of the recent Drainage Act. The sum might be made a charge on the estate for twenty-five or twenty-seven years; the holder could then go into the market and raise the money on this security. If he lived long enough, he paid off the debt; if not, the next holder was saddled with it; he thought this arrangement was fair and advantageous for all parties. Though he had not introduced it into his Bill, he should be very glad, if he was encouraged, to insert a provision respecting some other kinds of permanent improvements that might also be made a rent-charge. He thought money might very properly be laid out in buildings, or farmsteads, such as they had in Scotland, if built substantially, like those of the Duke of Buccleuch. Improvements so permanent as these might fairly be made a charge on the rent, for the next holder received the estate by so much increased in value; in fact, rendered far more valuable than if the owner had sat with his hands across, and made no improvement at all. He should not refer to any more of the details of the measure, which might be better discussed at a future stage. Its whole object was to get rid of an absurd and preposterous system, which had been a curse to the country for 160 years: something must be sacrificed to accomplish this purpose; but he thought no sacrifice too great to effect it. He concluded by moving for leave to bring in the Bill.

Leave given.

House adjourned at One o'clock.