The Earl of Rosebery
rose to submit to the consideration of the House two Bills for altering and amending the Law of Entail in Scotland. He should confine himself, on this occasion, to stating what was the present condition of the law in this respect, what were the provisions of these Bills, and wherein they essentially differed from those which had twice before been brought into the House of Commons. The law then, as it now stood, gave permission to any owner of property to entail it for an unlimited period, and to an indefinite series of heirs, and the actual practice, in consequence of this power, founded on the Scotch Act of 1685, was, that a vast mass of land had been thus entailed in perpetuity in Scotland. To provide against the obvious evils of this system, was the object of the Bills he now introduced. By the first, no entail of land in future could be made beyond heirs in being at the execution of it, and for twenty-one years afterwards, following the principle of the Law of Entail in England, which long experience proved to unite all the advantages, without any of the injurious effects, belonging to entails. The second Bill related to entails now in existence, and provided various remedies for the many evils resulting from them, some of which are of a national description, and others more immediately affecting individual interests. By this Bill, proprietors would be empowered to grant improving leases to few, that is to leave in perpetuity for building, and to exchange to a much larger extent than at present. It would also confer the right of raising money on heritable bond, or mortgage for such charges as might be legally incurred under the tenth Geo. 3rd., called the Montgomery Act, or under fifth Geo. 4th., termed the Aberdeen Act, or under any other regular authority, with 565 the option of dis-entailing and selling, not exceeding a fourth of the estate, in order to discharge these incumbrances. The main difference between these Bills, and those which were in the House or Commons was, that the exchange of a whole estate would not by them be permitted; that in no case would it be allowed to the heir in possession to break the entail, leaving the Act of 1685 untouched with regard to entails now in being; that neither the Montgomery Act, nor Lord Aberdeen's Act would be repealed, as far as they referred to old entails, and that no charges for improvements would be recognised as coming within the limits of relief pointed out by the Bill, excepting those which had been recorded according to the present law. He thought, however, that it would be highly desirable to frame another law as a substitute for the tenth Geo. 3rd., more comprehensive, and simple, and free from the difficulties and pressure with which that act was encumbered; and he hoped that the second Bill he now presented, would obviate most Of the objections to which the Aberdeen Act was found liable. Such were the principal purposes of those Bills, founded, he conceived, on just and safe principles, calculated to avert the evils which must ensue were the present power of entailing left unrestrained, and to diminish to a great degree the pressure which the exercise of it had produced on individuals, and so shaped as, he trusted, would secure the sanction of the House, and be satisfactory to the people of Scotland.
The Lord Chancellor
assured the noble Earl, that he would give all the attention in his power to the noble Earl's measure. Some change in the Laws of Entail for Scotland was highly necessary. There must, undoubtedly, be a great difficulty in making that change in such a manner as to concilitate all the various interests involved; but he rejoiced that his noble friend had undertaken the subject, and had brought it before their Lordships in a shape convenient and advantageous for consideration, by proposing a specific measure. Whether it would be more expedient to refer the measure to a Committee, for the purpose of having the whole subject more narrowly investigated than it could be in a general discussion in their Lordships' House, was a point for consideration; but he could assure his noble friend, he would certainly give his best attention to the subject. Without going into any general explanation he might state, that his opinion inclined to- 566 wards assimilating the Scotch Law of Entail as nearly as possible to the law of England. He would venture to say, that the Law of Perpetuity in no country was founded upon a more rational, a more consistent, or a more just foundation than the Law of Perpetuity in England. By that law a man was prevented, on the one hand, from tying up property beyond a limited time; while, on the other hand, he was enabled to preserve it to a succession of heirs, and against the risk of alienation for a reasonable period. The English Law of Perpetuity had been greatly improved of late years—and even within the last year a measure had been passed for preventing the evasions which previously took place under Lord Loughborough's Act. It would be proper to look at the question with a view to assimilate the law or the two countries as much as possible, Without breaking in on any of the present established principles of the Scotch law. All he could then say was, that the plan of the noble Earl should receive his best consideration, and he would endeavour to give to the noble Earl all the assistance which was in his power.
§ Lord Wynford
thought, that the power of entailing an estate on an indefinite number of families, and rendering it in-alienable as long as any descendant of any of those families should remain, was much too large. All the objects of the entailer's regard might be provided for by a much more limited settlement. The power of making such entails was only calculated to gratify the foolish vanity of the owners of lands, by enabling them to direct the course of descent of those estates, and to call the lands after their names for centuries after their deaths. But he was not prepared to say that it might be proper to extend the English Law of Entail to Scotland. There was a great difference between the state of England and Scotland; and a law very good for England, might not be proper for Scotland. He trusted their Lordships would send the Bills of the noble Earl to a Committee up-stairs. The interests of an immense number of persons would be affected by these alterations in the law. Such a Committee would ascertain what alteration was desired by the people of Scotland—it might collect the observations of men learned in the laws of Scotland, and who had had opportunities of observing the effects of the existing system—and it might ascertain what alteration would make the laws bear a just relation to the interests of all persons 567 possessing, or having as creditors, or otherwise, any claims on landed property. As their Lordships were asked to alter the law of Entail, which, however faulty, had at least been found to prevent the Members of the Upper House of Parliament from becoming poor and dependent. Before the system was broken up, some provision should be made for rendering a part of the property of Peers inalienable as long as Peerages, in connection with such property existed. He did not mean that the whole of the estates of a Peer should be tied up, but such a majorat, to use a term familiar to another country, as should be thought sufficient to maintain the dignity and independence of the Peer to whom they belonged. Neither the present law, nor any that could be made could guard against the effects of the imprudence of Peers during their own lives; but it prevented the follies and extravagance of Peers from disabling their descendants from supporting their dignity, and so rendering them dependent on the crown. It was proposed to make provision for younger children, out of entailed estates, and to allow the exchange of such estates for other estates. He did not object to the giving of such powers, but the exercise of them ought to be strictly controlled, or parents might neglect to take care of their younger children by proper economy; and remove the burthen of maintaining them from themselves, to whom it properly belonged, to their heirs, who might have children of their own to provide for. He should never consent to allow a sale of part of the estates for the raising a portion for younger children, for, in a few generations, the whole of the entailed estate would be thus entirely spent. By charging the estate with money borrowed, and obliging the successive possessors to repay it at certain specified rates per annum, the younger children might be maintained, and the estate preserved entire, Powers of exchange, if not strictly guarded, had been found to enable life-tenants to diminish the value of the inheritance. If he should have the honour to be on the Committee, he should give his best attention to these circumstances, and to every other connected with this most important branch of the law of Scotland.
The Duke of Hamilton
said, he would not enter into any general examination of the measure which the noble Earl had proposed for the consideration of the House. Indeed, he almost regretted that his noble 568 friend had said so much on the subject before the Bill was brought into the House, for it embraced so many matters of such great and vital importance, that it was very possible noble Lords might be reasoning on different points which they imagine would be introduced into the Bill, but which, when the Bill should have been finally drawn up, might not be included in it. After what had fallen from his noble and learned friend on the Woolsack, he would make one or two remarks, because he perceived, from the line of argument adopted by the noble and learned Lord, that he had an inclination to assimilate the Law of Entail in Scotland, to the Law of Entail as it at present existed in England. In the first place the House must consider that it was not enacting laws for a new country—that Scotland had a system of laws peculiar to herself—and that it ought to look most carefully into the subject, in order to ascertain whether it would be desirable to change those laws, and assimilate them to the laws of England in reference to this subject. It had frequently been said that the Law of Entail in Scotland was, in fact, an interminable inheritance. It was no such thing; but if the extent of the entail was to be limited, where were they to stop. The House had a better right to take away the property of the third generation, than to take away that of the first. In his opinion it was trenching on the rights of individuals, and destroying vested property, which ought to be religiously preserved, especially at a moment when the subject of Scotch entails was one of extremely difficult consideration. He was not pleading the case of the rich against time poor, but the case of the poor against the rich. The proprietors and possessors of these entails ought not to be allowed to dissipate them—nor should they be destroyed. If there was a thirtieth poor relation, who had not a sixpence in the world, the rights of that individual ought to be preserved, and the House ought not to consent to any measure which would have the effect of depriving him of those rights. When he considered the state in which entailed property in Scotland was now placed, with about half a dozen different Bills relating to its alteration before the Houses of Parliament, he might freely say, that if the present course of proceeding were persevered in, their Lordships would not only cut off the entail, but would alienate, root and branch, the whole property.
The Earl of Rosebery
said, it had not been his wish to go into any general statement of the merits of the question, and he hoped their Lordships would acquit him of having entered into any argument on the subject. The suggestion thrown out by the noble and learned Lord on the Woolsack, was precisely the course which he had intended to propose to their Lordships—that these Bills should be printed, and circulated among those individuals who were most conversant with the subject to which they related; and that ample time having been given for their consideration, his intention had been, immediately after the recess, to name a day for the second reading; and if he should be able to convince their Lordships that the Bills ought to be read a second time, then he should move that they be referred to a Select Committee above-stairs.
The Earl of Rosslyn
expressed his satisfaction at what had been said by the noble Earl, with reference to the course of proceeding that he intended to adopt, because he (the Earl of Rosslyn) and several of his noble friends around him, understood that it had been intended to propose the second reading of these Bills immediately after the recess.
§ The Bills were read a first time.