SCOTCH ENTAILS. 283 to increase the amount of large properties. It is a well-known fact, and one so glaring that all now remark it, that the lands in Scotland are rapidly coalescing into large estates, and passing fast into the hands of a few wealthy proprietors. When small properties are advertised for sale, and are conveniently situated in proximity to large estates, they are ordinarily bought up by the proprietors of the latter, who, at once, fix them by entail; and thus it is evident, that if such a practice be not discouraged, the great proprietors must in the end swallow up all the lesser, and thence leave nothing but farmers and peasants on the soil. In the outset of the commonwealth of Rome, ere its territory had extended to that size which it afterwards did, it was a municipal law, that no Roman could possess more than a certain amount of landed property. Some such statute might now be advantageously copied in Scotland, which is a small territory, and cannot afford to lose its respectable holders of small estates in favour of one or two dukes, marquises, and rich commoners, who despise a country residence, and in many cases squander their incomes abroad. Another argument made in favour of entailing, and the only other one which we shall care about demolishing, rests in the assertion, that since the law permits men to entail lands in favour of their sons and descendants, who, it is gratifying to think, will thereby continue a race of gentlemen, a spirit of industry is kept at work in order to accomplish the desired object of founding a family. Now, this proposition is sillier than the other, if that can well be. Is it not obvious to the meanest reasoner, that this spirit of industry, which is so highly prized, can only be found in the first or founding generation? All the others, having nothing to win, and as little to lose, find no occasion for pursuing industrious courses; and when the time shall come that all the landed estates in the country are settled on heirs of entail, and put, as the lawyers term it, extra commercium, or beyond the reach of purchasers, what will then become of the spirit of industry? It will have no object, and stagnation will ensue. 284 SCOTCH ENTAILS. The consequences of that rage for entailing, which has for the last hundred and forty years possessed the Scotch, have not escaped the notice of the legislature. Since the year 1827, the subject has been kept in agitation in parliament; and a bill with amendments, suggested in the last session of 1829, is at present nearly ready to be brought forward for discussion. Having carefully examined the provisions of the proposed statute, which is generally known by the name of Mr Kennedy's bill, on the whole they appear very inadequate to place the system of entailing on a proper footing. Among other alterations, it is intended that the entails of peers shall not be liable to erazure, but that the Court of Session shall have a power of limiting their extent, which is certainly an excellent arrangement; that the possessors of entailed estates, with the consent of the next heir who has attained majority, but who was not in life at the time at which the entail was made, and the consent of all other substitute heirs who are of age, may reduce the deed of entail, and hold by a fee-simple tenure; that the acts relative to the payment of annuities to widows and others, shall be rescinded, yet not so as to injure those already receiving annuities; and that creditors shall not be empowered to compel possessors to break the entail, or in other words, that the present regulations, by which the heirs of entailed properties can defraud creditors, shall remain in force. As it is extremely probable that some of these, and other provisions in the proposed bill, will be modified and corrected in principle, it would be needless to go into a studied examination of their merits. It strikes us that the bill is strangely calculated both to support and abrogate entails. It is very contradictory, and by no means suited to effect a palpable reformation. If it pass into law, it will only be the half way stage to the final destruction of entails. It can never be expected to work well, for the simple reason, that unless substitute heirs be compelled to abandon their rights, they will never give them up. The proper SCOTCH ENTAILS. 285 steps to be taken to place the system on the right road to reform, should consist in the instantaneous arresting of entails, and a liberty simultaneously given to oblige the nearest substitute heirs to part with their claims on a valuation of their worth, and a calculation of their chance of heirship. Either this, or an arrangement to let entailed properties be sold, bit by bit, by succeeding heirs, till all be exhausted, must take place, otherwise the prosperity and happiness of the country have every chance of being sacrificed. The bulk of Scottish lawyers-a class of men who have generally been among the first to desire and further the improvements in the institutions of the country, though profiting by the present destructive qualities of entails, to their eternal honour, have advocated the gradual but final abolition of these nuisances, so far as those of commoners are concerned. All other persons of intelligence in the kingdom, who are accustomed to ponder on the effects of certain institutions, are of the same mind. No one is found to say a single word in favour of the present inordinate abuses, but captious old lairds, interested substitute heirs, and the usual proportion of that barking class of individuals, who are enemies to reform upon principle, and are not capable of expressing a judicious opinion on any subject whatever. We wait anxiously for the revision of the laws regulating entails. The matter is intimately connected with the condition of the poor, and the suffering classes in Scotland. Overgrown and ill-managed estates must be broken down into their natural sizes. Family mansions, now cold and comfortless, must be again inhabited by human beings. Dilapidation must give way to improvement. Absentees must be recalled, and the poor, on whom so many aggravated evils have lighted, must be again encouraged and supported by the presence of masters and employers.* * For a perfect exposition of Scotch entails, we refer to the excellent work of Sandford, and the Edinburgh Review, vol. 40, and 43. PROMINENT AND PECULIAR LAWS AND USAGES SCOTTISH SYSTEM OF REGISTRATION-USES OF THE GENERAL REGISTER HOUSE OF SCOTLAND-NATIONAL ARCHIVES PARISH REGISTERS. The Roman emperors registered their most remarkable buildings, as well as actions. ADDISON. In no country in the world are the rights of real property so well defined, or so judiciously confirmed, as in Scotland. In this the provisions in our law stand prominently superior to those in England, and of no municipal custom have the people so much reason to be justly proud as that we are about to explain. - In England, two counties excepted, the rights of heritable property are in a precarious and confused condition. The title to a landed or house property is established only by the exhibition of the deed of conveyance, which is subject to many dangers in the course of its existence. In some instances, the change of owners is recorded in court books, but on no systematic plan. When mortgages are effected on property, the transaction is only known to the immediate parties concerned. A legal deed is generally the only voucher of the lien. No publication takes place declaratory of the process; and the owner of the property may borrow money over it, if he choose, to ten times its value. Lenders are thus in a perpetual dread of losing their money, for they can only obtain very imperfect information regarding previous mortgages; and conse REGISTERS IN ENGLAND. 287 quently, they often take heavy premiums besides the legal interest of their vested capital. The nation at large has so long dragged on under this imperfect system, that the circumstance has ceased to be an object of inquiry. Judge Blackstone saw and suggested a remedy for this loose mode of preserving the rights of real property. While writing on the subject of conveyances, he remarks, that "there is certainly one palpable defect, the want of sufficient notoriety; so that purchasers or creditors cannot know with any absolute certainty, what the estate and title to it in reality are, upon which they are to lay out or lend their money. In the ancient feudal method of conveyance, (by giving corporal seizin of the land,) this notoriety was in some measure answered; but all the advantages resulting from thence are now totally defeated by death-bed devises, and secret conveyances: and there has never been yet any sufficient guard provided against fraudulent charges and incumbrances, since the disuse of the old Saxon custom of transacting all conveyances at the county court, and entering a memorial of them in the chartulary or leger-book of some adjacent monastery; and the failure of the General Register established by King Richard the First, for the starrs or mortgages made by the Jews, in the capitula de Judæis, of which Hoveden preserved a copy. How far the establishment of a like general register for deeds, and wills, and other acts affecting real property, would remedy the inconvenience, deserves to be well considered. In Scotland, every act and event, regarding the transmission of property, is regularly entered on record. And some of our own provincial divisions, particularly the extended county of York, and the populous county of Middlesex, have prevailed with the legislature to erect such registers in their several districts." The foregoing passing notice of a general register * Hence the origin of the Star Chamber, which was the place anciently appropriated to transactions of the above nature. |