Lords Sitting of 13 May 1834

MINUTES.
Bills. Read a second time:—Court of Chancery (Ireland).
Petitions presented. By Earl BROWNLOW, from Grantham, for Protection to the Established Church.—By the Duke of GLOUCESTER, from former Members of the Universities, against the Admission of Dissenters; and from Faulkbourne, against the Claims of the Dissenters.

AGRICULTURAL DISTRESS.
The Earl of Coventrysaid, he was intrusted with a petition from the county of Worcester, most numerously signed by 3,200 persons, complaining of agricultural distress, and praying for relief. None of the junior branches of families were included amongst the signatures. The petitioners were

885
all individuals practising agricultural pursuits. As to the payment of rent, so far as he was concerned, he had no cause to complain; but he understood some of those payments were made out of capital, which he thought was a very hard measure, as it affected people who were willing to work, and who ought to be enabled to support themselves by the fair profit of their labour. It was said, that the present distress was in a great measure occasioned by the change in the currency. He did not understand that subject, and therefore he had not grappled with it; but he had seen the opinions of others with respect to it, and those opinions he would be ready to state to their Lordships when any proposition on the subject of agricultural distress was brought before the House. He thought, that it could do no harm to entertain that question; but, on the contrary, if it were deemed worthy of consideration, that the investigation might do much good. He believed there was not one of their Lordships who did not feel anxious for the prosperity of the agricultural interest, and, in touching upon this question, he had not the least idea of embarrassing his Majesty's Government; more especially as a noble Lord in the other House had admitted, that agricultural distress did exist, and expressed a strong desire to grant every possible relief. He presented the petition purely and simply as it had been put into his hand; agreeing with the petitioners, that, if even no relief were granted, the subject was one which deserved their Lordships' first consideration.

ENTAILS (SCOTLAND).
The Earl of Roseberry, in moving the second reading of these Bills, observed, that the importance of the subject would at once be seen, when it was considered, that in one sense, they would affect the whole landed property of that country; and the difficulty of it was apparent by his reminding the House, that no satisfactory Act had yet been passed as to these entails, and that, although for the last six years, measures respecting them in the shape of Bills, had been before the House of Commons, no successful result had attended them. He had availed himself of this interval to reconsider the opinions he had formed, and which he had delivered in the Select Committee of the Commons, to collect
886
the sentiments of those most conversant with, or interested in, the question in Scotland, and to endeavour to discover the views which would be taken by the House, were the matter fairly brought before them; and he had framed the Bills conformably to these reflections and inquiries. To any one who had looked into the subject, it would be seen, that it naturally divided itself into two heads, distinct in some important respects, requiring a separate consideration, and a different treatment, and therefore calling for the measure being embodied into two Bills; for although the objections to perpetual entails applied to those in being as well as those to be executed hereafter, yet as private rights of great importance were involved in the former, which ought to be held inviolate, a different corrective became necessary for them. The evils of these perpetuities had always been thought numerous and great. They were a constant impediment to the full improvement of the soil; they impoverished and depressed families whom it was their professed object to support and preserve; and they interfered with that interchange of land, which was not only injurious to the community, but hostile to one of the objects of a power to entail, that of gratifying the ambition to form families, besides depriving persons of the means, for centuries together, of making changes conformable to the varying circumstances of events. It was deserving of remark, that the Act of 1685, the basis of this system, was not passed so much to encourage a landed aristocracy, as indirectly to defeat the law of forfeiture, so much dreaded at that period, and it had continued for 150 years in force, not only after all fears of the kind had ceased, but when, by a British statute, the cruel doctrine of corruption of blood in high treason, had been transferred to Scotland. From whatever cause, however, it originated, the effect had been to lock up in strict entail, vast masses of property in that country, a quantity progressively increasing, and which, unless speedily checked, must absorb the greater share of it to the manifest obstruction of its enterprise and industry. He had procured two authentic returns, one of the valued rent of fifteen counties, by which ten appeared to have a larger proportion of entailed than of unentailed property, the other of the number and proportion of entails recorded, by

887
which, it was shown, that between 1805 and 1828, 115 more deeds were made than the largest number in any corresponding period. But besides these facts and remarks, the House should recollect the change which the law had undergone since the judgment on the Queensberry cause—that, prior to that decision, an heir could do whatever he was not actually prohibited from by the entail; that he could consequently grant leases of any duration, or for any rent, and even take entry money; that all these relaxations are overturned, and that the rigours of entails being thus increased, their bad effects, both to individuals and the country, are greatly augmented. It was in order to prevent their future increase, that the Bill to regulate the entailing of land was presented, and it was to mitigate the severity of existing entails on individuals, by means which became an instrument of greatly counteracting their mischievous tendency on the public, without violating any sound principle, or infringing any private right, that he earnestly recommended the other. The House would recollect, that Parliament had frequently interposed, and, in defiance of the restrictions imposed by entailers, of its own authority over-ruled them, in order to assist the owners of these estates, or to serve the public. On two separate occasions, it had more particularly evinced its sense of the evils of this system, by passing first the Montgomery Act, and, in 1824, the Aberdeen Act; but, unfortunately, these were found ineffectual to their purposes, frequently increasing the mischiefs they were intended to avert, and sometimes originating others growing out of themselves, none of which, he believed, would be effectually removed, or met, but by the additional powers he proposed to grant. After detailing the various objections to which these statutes were found liable, the noble Earl said, that it was to counteract these defects, and to surmount these difficulties, that the power was given by one of the Bills to borrow, by heritable bond, with an alternative to sell to a certain extent; this permission being founded on the safe and rational, as well as common principle introduced into family settlements, that where a right of change is given, a power of sale, to liquidate a part at least of it, ought to be also conferred. He pointed out some of the most prominent advantages which would arise from agreeing to the principle, and adopting the
888
leading enactments of these Bills—the increasing improvement of the country—the additional stimulus to acquire land, and the power to purchase it—and the rearing that most valuable class, a yeomanry, or body of small proprietors, now too scarce in Scotland, but most desirable to foster and encourage. After noticing, that probably in defence of entails would be urged the improved condition of such estates, and that, notwithstanding the amount of them, there was abundance of land in the market, he affirmed that much more improvement would have taken place under a more liberal law, and that the quantity of land now on sale, which, however, did not prevent a great local want of it, was a most powerful reason for passing one of these Bills, in order to prevent additional evil by those great estates passing into hands who might entail them in perpetuity. He concluded by stating, that he had no private object to gain by these measures—that he should never take advantage of their provisions, and that, therefore, if his opinions were erroneous, they were, at all events, exempt from all the bias or partiality which self-interest might inspire; and this, he trusted, of itself, would make an impression on the House, favourable to these Bills.
The Earl of Mansfieldrose to oppose the second reading of the Bill. He thought the better course for the noble Earl to have adopted would have been to propose that both Bills should be referred to a Select Committee, and given the preference, in the order of procedure, to that which related to the law as it affected future entails. [The Earl of Rosebery was understood to say, that he would have no objection to adopt that course.] But even in that case he (the Earl of Mansfield) would have objected to the second reading because it might hereafter be inferred, that their Lordships were favourable to the principle of the measure. It was true that objections to the present law of entail did exist in the minds of some persons, and that several petitions had been presented to their Lordships to do away with the existing law on the subject; but he denied, that the law was generally felt to be a grievance, and he trusted their Lordships would not repeal the present law with indecent haste, to remedy a grievance which was not general. He was sorry to differ from the

889
noble Earl, but such was his strong opinion on this Bill that he could not even agree to the second reading. As to going at all to a Select Committee with the present Bill, he was opposed to that, for their Lordships were fully competent in the present stage to decide whether sufficient grounds had been laid for disturbing or altering laws which had existed for centuries. He was against referring those Bills to a Select Committee. It did not appear to him, that the law, as it at present existed in Scotland, had been the subject of general or just complaint, and he thought that they ought to proceed with the greatest caution in the abrogation of laws that had been in force for centuries. They should not repeal such laws without having the strongest proofs of their inutility, their inefficiency, or their mischievous tendency brought before them. He thought it, therefore, his duty to move as an Amendment, that the Bill be read this day six months.
The Duke of Hamiltonsaid, that agreeing as he did in every word that fell from the noble Earl who last spoke, he should consider it his duty to negative the proposition of the noble Earl behind him in its present stage. He denied that the Law of Entail as established by the Act of 1685, was the subject of complaint. The fact was, that the complaints in Scotland were in consequence of the alterations made in that law. The noble Earl had stated the number of Entails on the Register of Entails, as showing the extent to which land was tied up by the present law, but he (the Duke of Hamilton) contended, that the register was no criterion to judge by, inasmuch as every deed which tied up lands for a temporary purpose was registered as well as all real and effectual entails. He was decidedly opposed to the present Bill, as it would disturb the fundamental principles on which the law of property in Scotland was founded, as settled by the Act of 1685. That was an Act which had long been considered the fixed and settled law of the country; and if it were now unsettled, no law, or no principle in our Constitution, could in future be considered fixed or sacred. If there was any law in which there should be no positive change, it was this, which had so long been considered the fixed law on which the property of Scotland was held. This law had not only been carried down from their
890
ancestors, and had been the means of preserving their estates through all the troubles which shook the country, but, by the Act of Union, it had been sanctioned and confirmed. Without giving any opinion as to whether the law, as established by the Act of 1685, was good or bad, he would say, that he preferred it to the Bill which the noble Earl proposed as a substitute. What did the noble Earl propose by this Bill? He proposed to repeal the Act of 1685, and, without reference to existing interests, or of those interests which might hereafter exist, to introduce the most comprehensive and absolute system of spoliation, and that in the face of the law as at present established. He proposed, in order to relieve the present heir of entail, to give to the person in possession a facility in disposing of one-fourth of his estate, in defiance of the interests of all the future expectants under the entail. In adopting the noble Earl's plan, they would be legislating as if there was but one party and one interest—that of the heir in possession—to be considered, and as if the interests of the substitutes were to go for nothing. He considered the measure as a mere endeavour to assimilate the law of property in Scotland to that in England, which could never be done, since the principles of the two laws were essentially different. He would only add, that if this Bill passed into a law, it might be considered that there was an end to all property and vested interests, as all persons connected with, or having an interest in property, might be deprived of their rights by a change in the law such as was now proposed by the noble Earl.
The Lord Chancellorsaid, that he merely rose to state, that though he could not agree with the noble Duke in the opinions he had stated, yet, in voting for the second reading of the noble Earl's Bill, he did so, not as agreeing to its details, but merely for the purpose of having it referred for further consideration and further discussion to a Select Committee up stairs. This was a most important measure, and its merits ought to be more fully discussed and considered than it was possible to do otherwise than by referring it to a Select Committee, and he therefore thought that the noble Earl was quite right in adopting that course of proceeding. He could not agree with the noble Duke in his opinion regarding

891
the Statute of 1685. The noble Duke seemed to consider it as the Magna Charta of property in Scotland, and would seem rather inclined to extend its operation instead of restricting; nay more, he seemed, by a species of argument which could only occur to the noble Duke's ingenious mind to come to the conclusion, that it was the nature of property to be entailed. Though he differed in his opinion from the noble Duke, he also differed from those who said, that there ought to be no entails. His opinion was, that to a certain degree, and within reasonable bounds, entails were not only useful, but highly beneficial in the present state of society. This was his opinion, which coincided, he believed, with the general feelings of the country. Having left both extremes—not agreeing either with those who said, that there should be no entails at all, nor with those who said that entails should be unlimited and in perpetuity—men's minds seemed generally to have settled into the opinion that the Law of Entail in Scotland could not be better regulated than it was under the English law. But let the noble Duke not be alarmed, for it was not the intention of his noble friend to propose the introduction of the English law into Scotland. No such idea had ever entered his head. However different the laws of property in both countries were now, they originally were the same, or nearly so. It was doubtful in fact, which was the original—whether the foundation of the law was to be found in Scotland, or in the oldest book on English law on the subject. It was now, however, thought, that the English law was the oldest. But however that might be, the two laws were now totally distinct. The principles on which the laws of the two countries were founded and the machinery by which they were applied, were so different, that it was impossible they could ever be assimilated. It never, therefore, entered the consideration of any man of sound mind—and certainly never was intended by his noble friend—to make the attempt. In any changes which might be made in the law as it at present stood, he should wish them to be founded on the principle of guarding the interests both of the heir in possession, and of those who might have a remote and contingent interest. He would, however, say, that he could not feel the same anxiety about the interests
892
of those who might hope to succeed some five hundred generations after this, as for those who had a more immediate interest. As for the Act of 1685, it was not originally intended for the purposes to which it was at present put. It was originally intended to prevent forfeitures, which at that time were very frequent; and it was not for some time afterwards that it was turned to the purpose of securing property for ever in families. It was monstrous to think that a person, by signing a sheet of paper before two witnesses, might lock up land to any amount for ten thousand generations, or as the Scotch law has it, "As long as grass grows and rain falls," leaving no remedy for his rash act, except the interference of the Legislature. The only question before them now was, should any means be taken to prevent such proceedings, but it was a matter for after-consideration what these means should be. And he hoped their Lordships would not throw out the Bill on the second reading, when it was proposed that it should be referred to a Select Committee for consideration.
The Earl of Aberdeensaid, that, in reference to a measure which he had introduced some years ago in regard to entails, and the object of which seemed to be now understood, he begged to state, that that measure was merely temporary; and if it had been intended to be permanent, no one would have given a more decided opposition to it than himself. His object then was, to remove a great grievance which was severely felt in Scotland in consequence of a decision of their Lordships' House—a grievance which the noble and learned Lord who pronounced it deplored so much (though he could not but administer the law as he found it), that he even pledged himself to bring forward a measure to remedy it if no one else would take it up. In introducing that measure, he had no intention that it should be final; on the contrary, he firmly expected, that the noble and learned Lord on the Woolsack, or some other person more capable of the task than he was, would take the whole of the laws of entail in Scotland into his consideration, and introduce a general measure regarding it. He (Lord Aberdeen) felt, that some further measure was necessary, but whether the Bill of the noble Earl would answer the purpose proposed he could not exactly say. His opinion was that it would not;

893
but at the same time he would vote for the second reading, for the purpose only of having the subject referred to a Committee, and he reserved to himself the privilege of opposing the details, if he should think it necessary to do so, till a future stage of the Bill.
Viscount Melvillewould vote for the second reading, without pledging himself to the details of the Bill. At the same time he would say, that he did not believe the evil consequences of the present law to be so extensive as was generally believed. The measure was one of great importance, and he hoped it would be fully discussed and considered before it was passed into a law.
The Amendment was withdrawn, and the Bill read a second time, and, with the Entails Relief Bill, was referred to a Select Committee.