§ The Earl of Rosebery moved the second reading of the Entail Relief (Scotland) Bill. As the subject had been very frequently before the House, it was his intention to state very shortly the provisions of the Bill, and the reasons which induced him to suppose that, if carried into effect, they would prove beneficial to individuals and the public. The Bill embraced four general heads. The first gave a power of leasing entailed lands, under circumstances in which it was not at present allowed to do so. The second granted the power of conveying lands for building purposes, on reserved leases. The third conferred the power of exchanging entailed lands for other lands of equal value; and the last gave liberty to sell entailed lands for the payment of debts contracted by the entailer of the estate. With respect to the first point, the heir in possession was not allowed, under the existing law of entail, to let his lands beyond a certain and short term, nor for a less amount than was before received for them. He was, therefore, obliged either to proceed by public auction where he was allowed to proceed in that manner, or he was restrained from letting his lands, except for a short period—in some cases for seven years, and for not more than nine years. Under these circumstances, it was impossible to induce tenants of capital and skill to take land under such leases. The Bill proposed, therefore, to allow heirs of entail in possession, to lease lands which they held for any period not more than twenty-one years. The next provision was to allow the conveying of land for the purposes of building, for the benefit of the individual who owned the land, and of his family, from which, he conceived, much good, both public and private, would be derived. At present, under almost all entails, no such power was allowed, and individuals were deprived of the benefits which were likely to result from adopting such a course, unless they came to Parliament, and obtained, at considerable expense, the necessary power to enable them to proceed; therefore, the second part of the Bill allowed the person in possession to alienate lands for the purpose of building. The clause relating 792 to this object enacted, that unless the buildings were erected within a specified time, the bargain should be null and void, and no money be taken by the proprietor, unless a reserved rent were stipulated for himself and his successors. The next portion of the Bill gave an enlarged power: those possessing entailed lands or heritages, and having made a feudal title thereto, to exchange any portion of the entailed lands; and he believed that in many instances, great advantages would be derived from it. By the 10th George 3rd., called Molyneux's Act, a power was given to exchange lands, but in a very restricted degree. It was provided by the Bill, that where parties desired to effect exchanges between heirs of entail of two or more entailed estates, application should be made to the Sheriff, who, after proof made to him of notice having been given to such heirs, was to appoint skilful persons to inspect and adjust the value of the same; but if the entailed lands or heritages to be so exchanged should exceed fifty acres of arable land, or 1,000 acres of land, consisting of hills or other grounds incapable of culture, then the exchange of such entails must take place before the Judges of one of the divisions of the Court of Session;— the Judges being empowered to determine on the expense, and the general propriety of the exchange of the property. He had endeavoured to frame this clause so as to prevent any fraud on the part of those in possession, and care was taken that the heir-substitute should not be deprived of any advantage. The fourth great object of the Bill related to the investing those who held entailed estates, with power to sell a portion of such estates for the payment of the entailer's debts, or debts affecting the estate—a practice he understood prevailed, to a considerable extent in Scotland, which led him to think that this portion of the Bill was peculiarly necessary. As he was informed—and he had no doubt his information was correct—it was a common occurrence for a gentleman, on returning from the Colonies or the East Indies, where he may have made a considerable fortune, to be extremely anxious to buy an estate in his native country. For instance, a gentleman purchased an estate of the value of 80,000l. paid down 50,000l., mortgaged it for 30,000l., and entailed it, and the consequence was, that his successor could not sell any portion of the estate for 793 the purpose of liquidating the mortgage-money. He only mentioned this circumstance, in order to illustrate that part of the Bill which he held in his hand. He admitted, that the power here given was generally granted on application; but he wished their Lordships to do that by a general law which they now invariably conceded to individual application. There were also other cases of debts charged upon the estate by the contractor, with respect to which no power existed to sell for the payment of these debts. He anticipated that he should be told that, inasmuch as Parliament very seldom refused a private Act to effect these objects, that mode of proceeding afforded sufficient relief. In that proposition, however, he did not concur. In the first place, he asked their Lordships to look to the expense which it entailed upon the parties, and the application could not succeed, unless it were sustained by a certain number of assents,—for if they were not obtained, the application was refused; and he thought that this was neither just nor equitable. He considered that the imparting this power would be received with great satisfaction, and would be doing a most important service to the people of Scotland. He had taken these four heads because he thought that very little, if any, diversity of opinion existed with respect to them, on the part of those whom he had considered it to be his duty to consult. He was convinced that the time would come—indeed, he believed it to be not far disant—when a much larger relaxation of the law of entail in Scotland would be required by those who held those entails, than that which was contemplated by this Bill. He also believed, that the time was fast approaching when the prospective creation of perpetuities would be put an end to; but whatever might be the case in this respect, with regard to entails, he was not prepared, at present, to go further than was contemplated by this Bill. But he was of opinion that their Lordships would, in a very short time, be called upon, and that irresistibly, to pass an Act, rendering it impossible to lock up in perpetuity any quantity of land whatever. Although this Bill was limited in its operation. He was not the less anxious that it should receive the sanction of their Lordships; because he was one of those who was content to obtain a little good rather than hold out, because he could not obtain all he desired. With these 794 impressions he solicited their Lordships' attention and assent to this Bill, believing it to be a measure that would prove beneficial to all individuals who were interested in entailed property in Scotland, and indirectly so to the public at large, inasmuch as it would increase the amount of capital expended on land, and would thereby afford employment to the labourers in agriculture. He begged to move that the Bill be read a second time.
The Earl of Mansfieldsaid, as there is nothing objectionable in the principle of granting relief to heirs of entail, I shall not oppose the second reading of this Bill, although there are parts of it to which I have the strongest objections. Referring to the proceedings in this House, and to Bills of a more extensive description which had been formerly introduced, my noble Friend (the Earl of Rosebery) has abandoned them; and has restricted this Bill to the purpose of granting relief in certain cases—a general law, rather than by private Acts; but, I must say, that if I were unfavourable to entails, and had failed in an attempt to carry away the law by storm, I should think, that I was proceeding more prudently, and with as great a chance of success, if I were next to sap the foundation; and I think I can prove to your Lordships, that if this Bill were to pass as it is, it would make a very material alteration in the law. The principle upon which all Entails are founded would be destroyed; namely this principle, that any man may leave his estate, to a series of heirs, annexing such conditions and restrictions to the possession, as are within the limits expressly defined by statutes existing at the date of the entail. Inverting the order in which the clauses stand, here, at the end, is an enactment that heirs of entails in possession, may sell a portion of the estate for the payment of the debts of the entails, when the deed of entail has riot been recorded. This clause will require consideration in the Committee. To the clause as to executions, I have no objection in principle; but it appears to me that it will require some amendment, as the consent of the other heirs of entail is not required; and your Lordships will think it your duty to attend to their interests. The remaining enactments consist of three parts; the first gives power to the heir in possession, to grant leases of land for a term not exceeding twenty-one 795 years. Considering that a restriction to nineteen years depends much upon your Lordships' judicial decisions, and your construction of deeds of entail, and that your opinions might vary, I should not object to a clause fixing the exact duration by Act of Parliament. In coming to these decisions, your Lordships acted upon the presumed wish of the entailer, that each succeeding heir should participate equally in the income; and that at times, not too remote from each other, they should have the opportunity of making a new arrangement of terms, and a new selection of tenants. But this could not be advantageously done by an Act, unless the tenants had some term; as to what that should be, opinions have varied: some of the most prudent men in Scotland possessing their lands in fee-simple, but having a due regard for their successors, have given leases of two and even three nineteens. Some years ago, lands were universally let in Scotland for twenty-one years; in England, nineteen years would be thought too much. I should not, therefore, object to defining by Statute, the endurance of a fair lease, leaving to the Committee to decide whether twenty-one years should be adopted in preference to nineteen. To the power of granting leases of mines and minerals for thirty-one years, there appears to me to be no objection, considering the great outlay which is required, the difficulty of procuring tenants without the encouragement of a long lease, and that, in many instances, the existence of the minerals might not have been known to the entailer. But the most important feature of the Bill is the power which is given to the heir in possession; notwithstanding the express prohibitions and restrictions of the Entail, to grant feus of any portion of the estate for the purpose of building. My noble Friend assumes, that building must be an improvement (which I cannot admit without reservation), and he says, that he would have preferred giving the heir the power of granting long leases, but that he knows, and I can confirm the statement, that there is such a prejudice in Scotland in favour of feus, that they will not take leases of any length; and I have had occasion to know, that a person having taken a considerable quantity of land, for which he expected to receive 800l. per annum on building leases, could not dispose of any part of it from the uncertainty as to the 796 renewal. A lease of even sixty years, however, would have been considered an alienation, but a feu is much more to be so considered. It is a virtual alienation; for though an income be reserved, though by this restriction, as to taking grassums, the emolument is distributed over the series of heirs, all the connexion between landlord and tenant, be it weak or strong, is broken. It creates a set of new proprietors, not always of the best description; it would add considerably to the number of that valuable class, which by the possession of the minimum of intelligence and property combined, as they are represented by 10l., are entitled to vote for Members of Parliament; but over these, the superior has no influence. If their politics be similar, they may vote for the same candidate; but to his successor, should his politics be different, they would be most obnoxious neighbours, not entirely separated from the estate, but a nuisance within it. The restriction as to building houses of the value of 100l. on each acre, affords no protection against the effect of subdivision and sub-tenancy; nests of paupers may be created for whom the proprietor may be hereafter called upon to provide, by paying his proportion of an assessment. I can appeal to some of the noble Lords, my countrymen here present, who will not think it an exaggerated statement. I can speak positively to it as within my own knowledge. I do not speak of this as the motive which induces my noble Friend to bring in the Bill, but as an inevitable consequence. It is very true, that those who possess estates in fee-simple, may feu and build as they please, and the Legislature would not, on the one hand, interfere to prevent it; but, on the other hand, I do not suppose that Parliament will be tempted to encourage that sort of building by overturning the law of entail. Now, upon what principle is this Bill grounded? Is it that the entailer omitted to give powers, from want of foresight, and that Parliament must repair the omission? The Bill does not apply to omissions, but to positive prohibitions. Indeed, though entails in Scotland may be of interminable duration, the heir is little restricted, as he can do that which he is not specially prohibited from doing; errors of omission, therefore, do not so much affect him. While in England, though the direction of the entail may be shortened, the heir cannot do that 797 which he is not specially permitted to do. Omissions, therefore, may be very inconvenient to him, and yet I have not heard that any such bill for the relief of heirs of entail in England is in contemplation. Is it because the restriction is objectionable? Why, if your Lordships pass the Bill, the person who shall the next day make an entail, containing the same restrictions, will leave it operative upon his successors, while a deed of entail executed last year will not be valid. My noble Friend may answer that, if this Bill should pass, a Bill to prevent such restrictions in future must follow; that is exactly what I expect, and it confirms me in my objections to the Bill, notwithstanding the unassuming title given to it by my noble Friend of a Bill for the Relief of Heirs of Entail. It is, in fact, part of a measure for restricting the powers of an entailer. This clause, my Lords, is to make a new will for a man to say, that he omitted to give powers, or that he knowingly inserted restrictions which, had he been as wise as the framers of the Bill, he would not have inserted. Now, if we were to admit this reasoning, could there not be some limit to the doubt as to the entailer's foresight in proportion, perhaps, to the remoteness of the time in which he lived? If he had existed a century ago, he might not have foreseen the great extension of buildings and other improvements; but if he had made his entail in 1834, would he not have witnessed part of that building, anticipated its extension, and knowingly, advisedly, deprecated it, and, as far as in him lay prevented it, for the benefit, and for the comfort of his heirs? The noble Earl seems to think, that it is better to proceed by a general law, than by private bills, which are seldom refused. I cannot agree with him; there may be cases of extreme hardship. An heir might be restricted from building upon land situated in the middle of a town, which he could not occupy or cultivate with advantage; and, for such a special case, the Legislature would grant relief. But such applications have been refused; in one instance, to my knowledge, where it was stated that the want of power to grant building leases was an omission in the testator. This was not proved, as he had, in anticipation of building, granted this power as it regarded one part of the estate, but had withheld it as to the other, and so the Bill was rejected. Upon these grounds, my 798 Lords, though ready to discuss all these points in the Committee, I shall oppose this clause. It is a subject of great importance to the people of Scotland, and I must express a hope that we shall on other occasions, secure the assistance of the noble and learned Lords, who are Members of this House, for whether the Law of entail shall remain as it is, or be subject to great alterations as proposed in this Bill, the adherence to the present law, or the introduction of such alterations will be much more satisfactory, if it be sanctioned by those learned Lords, to whom, in the exercise of your judicial functions, your Lordships always look for advice, and upon whose legal wisdom and experience the people of Scotland confidently rely.
The Duke of Buccleuchsaid, he felt very great apprehensions with reference to any Bill brought into that House, the object of which was to interfere with entails in Scotland. An ill-advised measure of that nature might be fraught with great danger to the whole of the entailed property in that country. Though the noble Earl said that it was necessary for the Legislature to interfere to prevent the locking-up of capital in Scotland, he, for his own part, could not see any such necessity; because sufficient opportunities daily occurred in Scotland for laying out capital on landed property. He would not oppose the second reading; but he hoped that in the Committee the Bill would be thoroughly examined, because there were some points in it which he conceived involved considerable danger. The noble Earl proposed to allow lands to be leased for twenty-one years; now he believed that, generally, lands were let on improving; leases for lives; and he found no difficulty whatever in procuring active and substantial tenants upon leases of that description.
The Earl of Kinnoullsupported the Bill, which he thought calculated to be very beneficial both to heirs and to persons in possession of estates.
§ The Earl of Aberdeencould not see any reasonable objection to the second reading of such a Bill as this. Although great difference of opinion existed on the law of entail in Scotland, he was convinced that all parties would best promote the improvement of that law, by paying a strict attention to this Bill, which, when modified in Committee, for he did not pledge 799 himself to all the clauses as they stood at present, would do more to confirm the Scotch law of entail than a resistance to such alterations as the state of the country imperiously demanded.
§ Bill read a second time.