HL Deb 23 July 1875 vol 225 cc1901-4

Order of the Day for the Second Reading, read.


, in moving that the Bill be now read the second time, said, that it had come from the other House, and so anxious were Members of the other House that it should become law this year, that, although they would have desired to make alterations in it, they declined to propose any alterations in order that it might pass through as rapidly as possible. The Bill had been approved by the three great bodies representing the legal opinion of the metropolis of Scotland—the Faculty of Advocates, the Writers to the Signet, and the Society of Solicitors to the Court of Session, and by the two which expressed the legal opinion of the provinces—the Faculty of Procurators in Glasgow and the Society of Advocates in Aberdeen. The reason that had induced the Government to introduce the measure was that the restrictions under the Scotch Entail Act of 1685 had be- come so rife and so great that, as Lord Rutherfurd had said, a nobleman could not alter the inscription on a button worn by his livery servant. That state of things was to some extent remedied by the Rutherfurd Act of 1848, and it was not proposed by the present Bill to affect or alter the Law of Entails in Scotland, which were analogous to English entails with one exception. In England, as their Lordships knew, the tenant for life and the tenant in tail in remainder might, since 1848, by consent with each other break the entail, and the tenant in tail might do that as soon as he reached 21 years of age. In Scotland a tenant in tail could not give his consent until the age of 25. He supposed that the Scotch character was so incautious upon the subject of money or property that a greater amount of protection was required to be thrown around a young gentleman in Scotland than was required to be thrown around a young gentleman of similar position in England. Her Majesty's Government had arrived at the conclusion that, whatever might have been the state of the Scotch character in 1848, the time had arrived with the gradual progress of enlightenment in that nation that a Scotchman who had attained 21 years should be allowed, as in England, to take part in disentailing an estate. It was strongly expected that the Rutherfurd Act, which was passed in 1848, would by this time have extinguished all the perpetuities which had existed under the old Scotch Law of Entail, and that had to a great extent happened—a great many Scotch entails had been opened since 1848. But nevertheless, the Rutherfurd Act had not opened entails to the extent that was anticipated. It imposed several conditions with regard to the opening of entails which had practically prevented the opening of entails. Among other things, it provided that if there was only one heir in existence, he might himself disentail property whether he was born before or after 1848, provided he was unmarried. If he was unmarried, though he had no children, he could not do so. As he had said, a considerable number of estates had been disentailed, but a large number still remained, and the result was that they created destinations so remote that the relatives could hardly be traced, and the remaindermen could hardly be found, and were sometimes not known by sight to the owner, the consequence being that it was next to impossible in the first place to trace them, and when traced they would not give their consent except on payment of an extortionate sum. It was proposed to provide by this Bill that in all cases the consent of the nearest heir was to be required before an entail could be barred, and that in the case of remoter heirs the Court should have power to fix a value upon their expectancy, and to take steps for having the amount paid over to them before an entail could be barred. It was also proposed to enable married heirs who had no issue to disentail, and to extend the limit at present existing with regard to the kind of improvements the making of which could be made chargeable upon estates, as also the mode in which those charges might be levied upon the properties. These were briefly the main provisions of the measure which he asked their Lordships to read the second time.

Moved, "That the Bill be now read 2a."—(The Lord Chancellor.)


said, that he did not rise to oppose the Bill, but thought that it would require very careful consideration, because it had not passed through any ordeal of examination in the House of Commons. With regard to the change of the ages, he thought that it was extremely doubtful whether it would not be better to retain the age of 25, except for one reason—namely, that it seemed very invidious that in Scotland a young man should be considered to be of age at 21 for every other purpose but this. The 9th clause enabled an heir of entail to make a perpetual charge for improvements, and the objection felt was that the improvements would wear out and require renewal, and therefore there ought not to be a permanent charge made for them; and he complained that this proposal was even contrary to the principle of the Scotch Agricultural Holdings Bill. The true principle was to make a charge for 20 years, and there was nothing to oppose to that but the present custom. It might happen under this Bill that for improvements executed 50 years before the whole of the cost might be imposed upon the heirs. He thought that most unjust, and complained that the Bill enabled the life-tenant to charge his posterity with the full value of all the improvements he had made during his life. If other noble Lords did not put Amendments on the Paper, he should do so in Committee, where he hoped the clauses would be fully discussed.


said, that the Bill had slipped through the other House without discussion. It might be described as a Bill to enable half-a-dozen noblemen in the North of Scotland to relieve themselves of their difficulties at the expense of all the rest. He objected to the measure because it gave greater facilities to cutting off entails; and that the age of 21 was substituted for 25, for the obvious reason that a young man, for the sake of an increased allowance, and to relieve an embarrassed father, would more readily consent to cutting off an entail than if he had arrived at a more mature age. What he termed the burthening clauses would require the most careful consideration. There was no doubt that some cases existed which justified the introduction of the measure; but it would have to be most carefully examined in Committee.


approved of the Bill generally, but should be sorry to see it passed without some of the safeguards referred to by the noble Lords who had spoken. He thought the provisions with reference to charging improvements were much too wide.


said, he looked upon the Bill as a step towards the practical amendment of the Law of Entail in Scotland. He was gratified that Her Majesty's Government had undertaken to introduce it.


pointed out that the reason why it had gone through the House of Commons without discussion was the great unanimity with which it was supported by the Scotch Members, who did not wish to imperil its passing by debating its provisions. The real aim of the Bill was to carry out further the principle of the Act of 1848, and not to put an end to entails in Scotland.

Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Tuesday next.