An upholsterer gets an order to fit up in a
first-rate style, the mansion-house of a young gentleman who has
just succeeded to his paternal estate. The order is large; but that
is a commendable quality, for the estate is large, too,— and,
contemplating its broad woodlands and fruitful meadows the mahogany
heart of the upholsterer grows glad within him, and he says of his
long bill, “It is as good as the bank.” He awards it, in his secret
thoughts that compliment which the Americans consider the greatest
of all and which they expies by mying of any thing, that “It is
actually equal to cash. Alas unthinking upholsterer! year after year
passes by, and the bill is unpaid. Every twelvemonth it is becoming
nominally more valuable, but in its real nature more precarious and
questionable. Its owner hears some incomprehensible statement that
the dashing young laird is no more owner of his fine estate, than
the captain is owner of the man-of-war he commands. He is informed
that some one, who was real owner of that estate a hundred and fifty
yean ago, being armed with that despotism which the legislature
cannot of itself use, but which it can bestow on individuals had
fixed that, thereafter to all eternity no one should be owner of
that land; that it should be excluded from commerce and from human
control; and that a certain series of persons genealogically
expected to come into existence, should successively have the
privilege of enjoying its fruits so long as they lived. The
upholsterer is told that if he had made himself acquainted with the
practice of the feudal law, and had devoted himself to the study of
a certain record preserved in Edinburgh, called the Register of
Tailsies he would have found out how the matter lay; and that, not
having adopted these very obvious precautions he must take the
consequences and content himself with such a percentage on his debt
as the numbers of his fellow-suflferers may limit his proportion of
the accessible funds.
Such is the working of the law of Entail; yet this is not the only
type of its pernicious influence. There is a troop of younger sons.
Their father is a large landed proprietor; but the estate is tied up
and he cannot apportion it among them. The eldest must draw the
whole annual income; and the greatness of the estate he enjoys
renders it all the more necessary that his younger brothers should
be suitably provided for as gentlemen. To bring up the cadets to
some secondary drudging profession, when the eldest is so splendidly
provided for would be a scandalous instance of inequality and
partiality. What then, can be done with them, but give them some
means of pillaging the country? The offices they are to receive must
be so much the more gentlemanly, because their brother has so fine
an estate.
Is it not a wonderful instance of human patience under wrong* that
such a thing has been endured in a country where so much power of
self-redress lies in the hands of the sufferers? Yes have borne it
all with exemplary patience and forbearance. The unembodied public
at large — the people who buy and sell, and are not united as a
particular “interest"—are the most patient meek, long-enduring
society in Christendom. Corporations or interests would not touch
the loads they bear, with the little finger. But an interest is
becoming embarked in the matter, — no less an interest than that
all-powerful and all-dignified, though so lately cheated one, u The
Landed.” A meeting of Scottish gentlemen connected with entailed
estates has been held, and it is understood that some measures are
to be taken with a view to an alteration of the Entail law.
Remembering that we had once spoken on this subject but not
recollecting precisely to what effect, we turn up Te&s Magazine for
May 1833 and there amid some remarks on the Entail bills brought in
by Mr. Kennedy we find the following words which certainly deserve
to hold their place among political prophesyings: — “When the Corn
Laws are abolished, the landlords will be the most clamonms for the
abolition of all restriction. One abnoe is shouldered upon another,
and they all tnsuble token the lowermost falls/9 And so now that
landed proprietors are not to levy a tax on the people and the
agriculturist is to get the value of what he brings into the market
along with all the rest of the world—now that he is to use the
expressive term of Lord Francis Egerton, a mere manufacturer of
grain, the lairds see that their raw material must be released from
the glittering bondage with which the pride and folly of their
ancestors have enthralled it. And surely no instance of national
pride and folly is so intense and proposterous as this same Scottish
Entail system. Our posterity will no more give credit to the full
extent of its practical absurdities than they will believe in the
devotion to animal magnetism and homoeopathy or any other leading
aberrations of our age. The absurdities of genealogy and heraldry
are comparatively speaking innocent playthings. At the very worst
they bring upon their victims surcharges for omission to return
armorial bearings in tax schedules or befool Bristol merchants with
imaginary pedigrees invented by ingenious Chattertons. Vain and
paltry as are the propensities involved in these matters thus
trifling are the toys with which they teach their foolish votaries
to play. The passion and the indulgence are worthy counterparts. But
in this law of Entail the vainest of the coxcombries that prompts a
Chinese dignitary to aspire after a peacock's feather or a silk
button is allowed to interfere with the most solid interests of the
country, and the administration of justice between man and man.
MacGubbin is lord over fifty acres of arable land and meadow in the
parish of Tailzie. MacGubbin being possessed of the desire of
immortality decrees that the said fifty acres shall never be divided
shall never be sold* shall never be seized by the creditors of the
holder, shall never be distributed by the holder among his children;
but that they shall through everlasting time be in the possession of
the person who is the representative, according to a certain line of
descent, of some person or other of his choice, no matter whom. In
one thing only can the despotic will of MacGubbin be counteracted.
He may decree that the heirs-m&le of A or B, to the end of time,
shall possess his acres, but he cannot assure a succession of such
heirs-m&le. In all other matters, his decree is as irrevocable as
the laws of the Medes and Persians. The succession of the Crown has
been changed—the septennial act has passed — the old ecclesiastical
courts of Scotland have been abolished — the constitutional
character of the House of Commons has been revolutionized by the
Reform act—the municipal corporations have been popularized — the
Com Laws have been made and unmade — all these things have been done
since MacGubbin passed his decree, making law for the future fate of
his fifty acres,—and it remains firm, unmoved, and immovable!
In reality, this system has no friends. No one ever ventured to
speak in its favour as people have spoken in favour of the com-laws,
or the Irish church establishment. In the correspondence of the
Scottish and English lawyers, in the middle of the eighteenth
century, it is condemned without reservation. “As to your land
rights," says Lord Chancellor Hardwicke, writing to Lord Kaimes, “I
should be for beginning with abolishing the strict tailzies, at
least in future; which not only differ from the genius of the
English law, that abhors perpetuities, but are manifestly
prejudicial to the national interest of Scotland, which is now
rising in trade, and will, I hope, greatly increase in it. The
taking so much of the lands extra commercium, is inconsistent with a
commercial country.” In the same manner Lord Mansfield treated the
institution as something which no man, not the victim of childish
prejudices, could defend. Talking of himself and the Duke of Argyle,
he said, “We agreed that an abolition of Entails ought not to be
forced upon the country, contrary to their own inclinations; but to
make the yoke gall the more, that no relief should be given by
parliament to make them easier. I insisted for an exception .as to a
general bill to give a power of leasing, as a matter of infinite
consequence to the whole community. When the country wishes to break
Entails, the parliament will most readily come into it; but I doubt
the general sense of the land proprietors continues still in favour
of them.”
All men are naturally despots, and would lay down rules for the
guidance of all posterity, if all posterity could be compelled to
obey them. The essence of just legislation is, that the community at
large should be armed against this interfering spirit in
individuals, and should treat their manifestations of it as waste
paper. The principles on which all property and justice are founded,
permit a man who has made or has honestly acquired property to
decide who shall be the next possessor after he himself ceases to
enjoy it. The right to dispose of that which he possesses is so dear
to every man, and it is so essential an element of free action, that
without it mankind would lose their chief inducement to energy and
enterprise, and life would lose one of its greatest charms. But we
counteract the benefit if we carry it farther, and enable the
citizen to fix those marks that are to individualize the owners of
his soil for centuries after he is dead. Such free enjoyment of
property is like the American's freedom to wallop his own nigger,
the free privilege of doing mischief. We stand almost, if not quite
alone, throughout Europe in this matter. The French jurists and
economists of last century denounced the system with a unanimous
voice; and, not abiding the sweep of the revolution, it was
virtually abolished in 1747, by a restrictive measure passed under
the auspices of that noble reformer of the law, the Chancellor
D’Aguessau. In England, the struggle between the aristocracy in
parliament, and the stubborn common lawyers of Westminster Hall,
fighting for their beloved principle, — that the law abhors
perpetuities,—has been long and bitter. The real loves and hatreds
of your common lawyer are measured by the Platonic loves and hatreds
of the law; and with unflagging ardour, he has fought the battles of
his mistress, century after century. The war against entails would
make an amusing history. Before the intervention of statute, they
were only so much soiled parchment, for the law “abhorreth
perpetuities.* Then, however, came tbe statute de donis, which
required the courts to give effect to the will and intention of the
donor. It was not quite consistent with the functions of a judge to
refuse to give effect to an act of Parliament; and Westminster Hall
was nearly, but not quite, at its wit's end, to keep alive the
beloved common law’s horror of perpetuities. The matter was
accomplished by one of those wfictions which we unimaginative people
in Scotland find it so difficult to comprehend the philosophy of,
and the “ Common Recovery” was invented. This was, virtually, a
collusive action at law, in which the person who, if it had been a
real attempt by some stranger to get possession of the estate, would
have defended it, allowed it to be carried off by not supporting1
his title. Being thus freed of the fetters of the Entail, and held
by a new and free title, the decision of a court, the property and
possession might thereafter be settled as the accomplices to the
transaction might arrange. Lest in this unprofessional way of
stating the matter we should be guilty of irreverence to the
sovereign lady Common Law, we shall give the reader an account of it
in the words of the Real Property commissioners, who say,—
“A common recovery is a judgment in a fictitious suit, in the nature
of a real action, brought by the demand and against the tenant of
the freehold, who vouches some person to warrant the lands, and
judgment is given for the demandant to recover them against the
tenant, in consequence of the person vouched, or the person last
vouched, if there should be more than one vouchee making default to
the title to the lands, which title he is supposed to have
warranted. In a recovery, the regular process of a real action is
pursued throughout, and no compromise takes place as in a fine.
"The principal use of a recovery is to enable a tenant in tail to
bar, not only his estate tail, but also all remainders, conditions,
collateral limitations, and charges, not prior to the estate tail,
and to acquire or pass a fee simple, or an estate commensurate with
the estate of the settler.”
At length Westminster Hall got tired of this mummery, and the act 3
& 4 Wil. IV. c. 74, was passed for abolishing fines or recoveries,
and enabling people to “dock” entails, as it is elegantly called, by
an ordinary conveyance enrolled.
Even in Scotland, the law showed some disposition to have a quarrel
with perpetuities. When entails were made with clauses in the most
distinct manner limiting the succession of any estate to a definite
series of heirs, if any one of them did, notwithstanding, treat it
as his own, the law would not interfere. It said, true, the entailer
directed so and so in his settlement, but the heir in possession has
changed this destination,—the proprietor is entitled to change his
predecessor’s deed of settlement as finely as his own. A clause was
next invented called the “irritant danse,” by which the person
contravening the limitations of the entail was to forfeit the right
to the property. Still the law would not interfere. It was true that
he was declared to have forfeited the title, but who was entitled to
take it X It was not like an estate hdd by a false title, which must
be given over to the person with the true title. Still perpetuities
seemed to suffer under the hatred of the law of Scotland. At length
an ingenious man invented a "resolutive clause,” as it was termed,
by which the right forfeited by one person devolved on another, in
the case of a contravention. Here the breach of the entail not only
put an end to one mans title, but created a title in another. Poor
Scottish Law now shook her head and gave up the battle. The sons of
Zeruiah were too strong for her. Still, however, a sort of guerilla
warfare is kept up against entails. They are not swept off in
platoons, but they are picked down in considerable numbers at single
shots. Law says, that entails or Tailzies as they are scientifically
called, are to be interpreted strictissimi juris, which means, that
the will and intention of parties is to go for nothing: that words
are to be interpreted in one strict sense, and that any flaw,
however slight, is to be held a fatal canker in an entail. This has
held out occasional flattering visions to poor relations—it has been
a “full security of waking bliss” to lawyers.
We hope that on the present occasion the country will take up the
matter, and cry out for the sweeping of the whole offensive system
out of our law. From 1833 to 1836 a series of measures was brought
in for modifying the law, which beyond doubt, if they had passed,
would have left much opportunity for legal jugglery. The Judges of
the Court of Session were desired to report to Parliament on these
measures, and they did so at considerable length and with much
candour. Eight words of this Report are enough for our present
purpose: it says, with reference to the bill, “Its provisions may be
evaded in various ways", and then the ways are pointed out. From
this Report, the public may take safely the hint of not being
contented with a modification of the law. It ends with reasons
against any extensive change; the most cogent of which is, that much
land would be thrown into the market. Such is always the style and
character of the objections to the removal of a nuisance; people of
weak nerves are warned not to meddle with it, because stirring it
makes it the more offensive. |