§ Order of the Day for the House to be put into Committee read.
THE EARL OF ROSEBERYMy Lords, with regard to this Bill, I beg to propose that it should go into Committee pro formâ only, for it is not our intention to proceed with it to-night. My reason for doing that is, that we have received a great number of suggestions from private individuals and influential public bodies, which we conceive to be of great importance, and ought to be embodied in the Bill. We have, therefore, prepared Amendments, which we shall submit to your Lordships; but, as there are many of them fresh clauses, and other Amendments of great detail, I ask your Lordships to allow the Bill to go into Committee pro formâ, in order that the Bill may be printed with the Amendments we propose to introduce. Another reason for the postponement is this, that the writers to The Signet in Edinburgh—as your Lordships are aware, a legal body of the highest standing—have given very careful consideration to this Bill, and they have some suggestions to make upon it.
THE EARL OF CAMPERDOWNMy Lords, before this Bill goes into Committee pro formâ, I wish, according to my Notice, to make a few remarks on the Returns relating to Scotch Entails recently presented to the House; but I must first thank the noble Earl (the 759 Earl of Rosebery) and the Scotch Office for the expedition with which those Returns have been prepared. The Returns which have just been furnished to the House appear to me a very valuable commentary indeed upon the various Acts which have been passed with the view of facilitating the disentailing of property. They exhibit very surprising results. On the 1st August, 1848, when the first disentailing Act came into operation, there were in existence 2,189 entails. After a period of 30 years, during which another and rather important Act has been passed, the result has been that entails, instead of diminishing in number, show a slight increase. It seems to me that this result is very strange. If your Lordships will refer to the Returns, you will see that during the first few years after the Act came into operation the number of entails did slightly fall away; but, at the same time, the number of entails which was created was fully equal to that which was destroyed. In the year 1875 an Act was passed by the noble and learned Earl opposite (Earl Cairns), and during the first three or four years after that Act came into operation it seems to have had a considerable effect. After that, the effect appears to have passed away; and, at the present time, the proportion between entail and disentail appears to be about the same. The total result is, that, after an experience of more than 30 years of the operation of the Disentail Acts, we find the total number of entails has increased. Instead of 2,189, as there were in 1848, there are now 2,350. Surprising as that result may appear, it becomes far less surprising upon further consideration. Parliament has never pronounced itself actively opposed to the policy of entail, so far. All that it has done has been to give facilities for disentailing. But, on the other hand, there is a numerous and very powerful body of the learned Profession, whose interest lies in the very opposite direction; and the result has been that they have been far more successful hitherto in tying up land than the efforts of Parliament have been in liberating it. Until Parliament sees fit to pronounce itself in a much more positive manner as to the policy of entail—for instance, by introducing a provision in this Bill to repeal the Act of 1875—I do not think that any of the existing 760 Acts, including the Bill which has now been presented to the House, are likely to produce very much effect in the way of diminution of the number of entails.
THE DUKE OF ARGYLLMy Lords, in regard to the observations which have fallen from my noble Friend (the Earl of Camperdown), the thanks of the House are due to him for calling attention to the facts; but he has, I think, omitted to notice this. He speaks of the policy of entail; but he must remember that the Statute of 1848, and still more the Bill which is now under the consideration of the House, will alter altogether the nature of entail. Entail under the old Scotch system was an entail for ever, under the strictest possible limitation. There was no limit to the time, but there were the closest and most stringent limitations of the man in possession as to the use of his land. Under the Act of 1848, large additional powers were given for getting rid of the old entail; and I may mention that I got rid of my own entail under it, and I now hold under fee simple. Power was also given by that Act to make a new entail; but those who made it were under an entirely different system of law. The law and the policy of entail, therefore, was one thing at one time and another thing at another. If the Bill now before the House, in the charge of my noble Friend below me (the Earl of Rosebery), is passed, no doubt, in future, people can entail their land. But it will be entirely optional. In this Bill, very much as in the case of the English Bill passed at the instance of the noble and learned Earl opposite (Earl Cairns), every man who entails his land in future will be able to sell it with the consent of the Court; and the effect will be this—that, in the future, entail will not mean holding the land in an unsaleable condition. Therefore, the policy of entail, of which my noble Friend spoke as one and the same in all these periods of time, will be entirely altered. I will only say that most of the arguments against entail have been urged on behalf of the agricultural interest. It has been said that entailed proprietors cannot manage their land to advantage. As tar as I can see, if this Bill is passed, and the English Bill also is passed by the other House, as it has already passed this House, that objection, at any rate, will be done away with. In future 761 there will be no one who cannot sell his land for the purpose of improvement, and therefore the agricultural objection will fall to the ground. There are, of course, other objections to entail, but we should clearly understand what they are. If it is desired, by persons who object to entail, to strike altogether at the hereditary principle, of course you will prohibit the entail of land as you would prohibit the entail of personal property, of money, or jewels, or other things, and in that view the propriety of doing so cannot be denied. If it is the object to destroy absolutely the continuity of family life in Scotland, then, undoubtedly, you will abolish the limited powers of settlement which it is still contemplated to preserve in this measure. What I would point out, however, is that that is a totally different object to that of freeing the land for the purpose of agricultural improvements.
THE EARL OF ROSEBERYMy Lords, I could have wished this discussion had been somewhat more prolonged, because I think it raises a point of very great interest, not merely to Scotland, but to the community at large. I am grateful to my noble Friend (the Earl of Camperdown) for raising it, because I think it is well that the points he has raised should be discussed, and that there should be no concealment or reticence about it. The noble Earl seemed to draw one conclusion, and that was that all the efforts of entail legislation had been practically abortive and inefficacious in checking the number of entails; and though the answer of the noble Duke (the Duke of Argyll) was perfectly complete so far as regards the policy of entails, in showing that the nature of the entails now made was perfectly different from that of the entails formerly made, yet I think that is not the whole of the answer which may be made to the noble Earl. Since the noble Earl gave Notice of his intention to call attention to the question, I have gone with some care into the Returns which I laid before the House, and they appear to me to have a different bearing upon legislation than that placed upon them by my noble Friend, for what do I find as bearing on the question of legislation as regards the number of entails? Since the Rutherfurd Act of 1848, which was cited by my 762 noble Friend, and justly cited, as one of the great Acts which have modified the entail system of Scotland, 34 years have passed since then; and, if the contention of my noble Friend is right, there ought to be as many entails made in these 34 years as in the 34 preceding the Act. Nay, considering that large estates have been broken up, and the growth of population and wealth has been enormous, we might fairly expect to see some considerable increase in the number of entails made since 1848. What is the result? Why, quite the reverse, for whereas in the 34 years preceding 1848, 866 entails were made, in the 34 years succeeding the Rutherfurd Act there were only 701, so that the number was actually one-eighth less. I will not, however, attribute that to the Act of 1848 alone. There was a very important Act passed in 1868 modifying the existing Law of Entail. In the six years previous to the Act of 1868 there were 152 registered entails; and in the six years subsequent to that Act 104 entails were concluded. Then I come to the Act of 1875, which was passed by the late Government. Then, I am bound to say, there is a very small increase in the years which have elapsed since that Act passed as compared with the years preceding it. In the six years preceding 1875 there were 104 entails, in the six years subsequent to the Act there were 111, showing an increase of seven. But, my Lords, the figures are very considerably modified when we take another fact into account, and take the number of disentails before and after that Act. In the six years prior to the Entail Act of 1875 there were 97 disentails, and in the six years which followed the Act no less than 151. I need not further obtrude upon your attention, but I wish to point out, as I think it is important, that the action of these Entail Bills has been successful and satisfactory, not merely in modifying, but in reducing the number of entails. With regard to the general remarks made by the noble Duke, I beg to be allowed to offer my humble concurrence. The effect of the Bill before your Lordships' House is this—that, for the future, no entailed property need remain entailed any longer than a man wishes; and I confess I cannot see that we can go much further in that direction with any considerable advantage. Of 763 course, it would be open, as I think my noble Friend hinted, to introduce a clause repealing the Act of 1875. Personally, I should have no objection to that course; but my noble Friend knows very well that, after all, the entail which would be left, and which it would be open for everyone to make under the operation of this Bill, would furnish a simple and innocuous form of settlement as regards the land of this country. Therefore, I do not think it would be necessary to deal with that Act.
§ EARL CAIRNSI understand the noble Earl opposite (the Earl of Rosebery) to ask us to go into Committee pro form, â, in order that he may put some Amendments in the Bill. Therefore, it would be premature to enter into any discussion of the provisions as it now stands until we see how far the Bill may be modified by the Amendments.
House in Committee (according to order); Bill reported without amendment; amendments made; Bill re-committed to a Committee of the Whole House on Monday the 10th of July next; and to be printed, as amended. (No. 169.)