LAW OF ENTAIL (SCOTLAND) BILL. (Hansard, 17 July 1848)

The EARL of HADDINGTON
admitted that the present law of entail in Scotland was defective; but he saw many objections to this Bill, which, he regretted to say, trampled on vested rights, which ought to have been protected in that House. He was aware that his opposition to the Bill, supported as it was by the Government and by a large majority of their Lordships, would be fruitless. The noble Earl concluded by moving that the House go into Committee on the Bill that day three months.

LORD CAMPBELL
expressed his surprise that the noble Earl, having admitted the defects of the present law, should seek 508 to perpetuate them by opposing this measure. He should resist the Amendment of the noble Earl.

§ LORD WHARNCLIFFE
said, he did not mean to deny there were many advantages connected with an alteration in the law of entail; but the present measure, to effect that object, constituted one of the worst invasions of private rights that had ever been presented to their Lordships. In almost every other instance where Parliament had interfered compulsorily with the rights of property, they had taken care that the parties interfered with obtained compensation. But this Bill not only proposed to interfere with future entails, as to which he did not himself object, but it proposed to interfere with existing entails, under which parties might be entitled to rights though they were not in the actual possession of them. The question between him and the owners of the Bill he admitted was only one of degree; but it appeared to him that when they permitted an heir of entail, with consent of three of his sons, to bar the rights of all other relations, they conferred a right which went beyond the necessities of the case, for he had heard nothing to satisfy him that the rights of a fourth son, for instance, could not be estimated as well as the rights of nearer heirs. He thought, therefore, that this Bill dealt in too summary a manner with those rights; at the same time he did not wish to stand in the way of the Bill going into Committee.

LORD BROUGHAM
said, there was a strong advantage in the English over the Scotch law of entail, as it was adapted to two great ends, both of which were of considerable importance. The one was that land was not tied up in so strict a manner as to take it out of the reach of commerce, while at the same time it was sufficiently stringent to provide adequately for the maintenance of the great families of the country, which was of great importance in a monarchical conntry like this. He, therefore, thought some alteration in the law of entail in Scotland was advisable, though he must confess he was not altogether prepared for such a sweeping measure. He thought Parliament was entitled to deal as it pleased with future entails; but he had strong objections to giving the measure a retrospective operation. He did not think that either his recollection or his reading afforded any example of so vast a change being effected in the legal bearings of property as was proposed in this Bill. For 509 the Bill not only prevented persons from entailing their lands in future, but it went backward, and said that all entails now existing in Scotland should be liable to be broken, and treated as if they had been entailed according to the English instead of the Scotch law. If this change were accomplished, the position of Scotland and England, with respect to the law of entail, would be reversed, and they would give the Scotch proprietor more power over existing entails than the English proprietor had. He, therefore, could not agree to this change without opening his eyes to the consequences; and yet, upon the whole, he felt he would not oppose it.

LORD CAMPBELL
reminded his noble and learned Friend that the English law of entail, as enacted by Edward L, under the statute De Donis Conditionalibus, was as stringent as the Scotch law, till the whole was overset by one decision of the Court of Common Pleas in Tarleton's case. This measure only proposed to do constitutionally by Parliament what had before been done irregularly by a decision of a court of law.