Various - Blackwood's Edinburgh Magazine, Volume 64, No. 393, July 1848

Measuring the practice of entails by the rule of utility, Mr M'Culloch selects two points as the principal topics of discussion.

"In the first place, it is alleged in favour of entails that they stimulate exertion and economy; that they hold out to industry and ambition the strongest and safest excitement in the prospect of founding an imperishable name and a powerful family, and of being remembered and venerated by endless generations as their chief and benefactor. And, in the second place, it is said that entails form the only solid bulwark of a respectable aristocracy, and prevent generations from being ruined by the folly or misfortunes of an individual." – P. 78.

The first of these propositions is, no doubt, partially true; but the motive put forward has not, we think, as a matter of experience, the force that might, at first sight, be attributed to it. Perhaps the keenest accumulators of wealth have not been those who have fixed their capital in a landed estate. The man of business habits and judicious speculation is drawn to make his fortune in obedience to a passion which is partly developed, and at all events fostered, by the pursuit of his life. It cannot be said to arise altogether from a notion of benefiting posterity, of being the founder of a house – the man of whom future Fitztomkynses shall be ashamed – that John Tomkins, merchant, sets at nought all the expostulations of self-indulgence:

Enormous fortunes were accumulated during the declining days of the Roman republic. But entails being then unknown, and the Roman nobility having no territorial position, these fortunes, usually acquired by oppression and extortion in the provinces, were squandered in largesses and corruption at home. There was no other way in which a Roman citizen of great wealth could establish the influence of his family. He could not, like, all English gentleman, connect his name with a landed estate, and extend his influence by those good offices and local duties which lie so immediately open to a man in that capacity. As an almost necessary consequence, he sought for power through the demoralisation and corruption of the holders of the suffrage – causes which contributed more than any other to the downfall of the republic. By lavishing his gold in this manner, he obtained, not only political eminence for himself, but also that power which led to proconsulates and proprætorships among his heirs, and thus gave them the opportunity of repairing, by fresh exactions, his diminished revenues.

Hence we should rather view the law of entail as an inducement to a man to perpetuate his thousands in broad acres than to acquire his fortune in the first instance. And, in conformity with this view, it may be observed, that it is more generally the son or other successor than the architect of the fortune himself who converts the accumulated wealth into this permanent form.

Mr M'Culloch's second point – the preservation of families by means of entails – is one of wider interest and more general importance. In a bustling mercantile community like ours, we cannot too jealously guard any institution which, directly or indirectly, tends to preserve distinctions due to something more than mere wealth. And there can be no doubt that the system of entails has saved many an ancient line from being thrust from its home of centuries to a strange spot, and this not only among the titled and wealthy, but among the yeomanry and "statesmen." In England, of course, a family may frequently perish through the possession of an estate in fee-simple passing into the hands of an unthrifty representative of the line, as the settlements require constant renewal. But in Scotland the system of perpetual entail exercises a much more potent influence in their behalf. Mr M'Culloch, though he rebuts many of the objections urged against the Scottish law, is nevertheless anxious to see it assimilated in a great measure to that of England. There is, however, an exception which he would make to the rule against perpetuity of entails. It is with regard to the peerage, in which matter we cordially agree with him. There were, in ancient times, instances of barons who were degraded from their dignity on account of their lack of sufficient revenue to support their hereditary title. The independence and the dignity of the House of Lords would be alike maintained by an enactment enabling, or even obliging, all peers to tie up by perpetual entail a certain portion of their estates to accompany the title. Such anomalies as that of an Earl of Buchan (Lord Erskine's father, see Lord Campbell's Lives of the Chancellors ) living in the uppermost flat of a sixteen-story house, would thereby be avoided with considerable advantage to the national interests.

Mr M'Culloch, therefore, who quotes Sir William Temple and Dr Johnson on the same side, would preserve the law of perpetual entail for the Scottish peerage, and extend it also to that of England. In other respects he is, as we have above stated, in favour of a considerable modification of the Scottish law of entail. He admits, however, the difficulty of dealing with existing entails.

"These have established a right of property not only in the actual possessors and their families, but, speaking generally, in a wide circle of collateral heirs; nor could the rights of the unborn heirs be affected without annulling the clauses in a great number of settlements, and also in marriage-contracts and other deeds inter vivos . It is, therefore, hardly possible materially to relax the fetters of entails with strict justice to all parties, though it might perhaps be slowly and gradually effected without inflicting any very serious hardship on any individual. We incline to think that this might be most easily brought about by saving the rights of living heirs of entail, and of such heirs as may be born under existing marriage-contracts. The interests of the possible heirs that might be prejudiced by the adoption of some such rule as this, are of so very unsubstantial a description that they might safely be neglected." P. 78.

At the time we write, a measure is pending before Parliament, entitled "A Bill for the amendment of the Law of Entail in Scotland," and endorsed with the names of the Lord-Advocate, Sir George Grey, and Mr Solicitor-General for Scotland. Whatever difficulties Mr M'Culloch feels with regard to relaxing the fetters of entail, it is obvious that the contrivers of this bill are in nowise hampered by them. They go to work in the most off-hand manner possible. A short and unobtrusive-looking bill is to drive clean through all the existing settlements and deeds of tailzie, with their complicated train of clauses irritant and resolutive, as if no mortal was concerned in the matter, and estates were the proper toys of law-makers.

The fact of the quantity of alienable land diminishing in a commercial country, while trade and population are increasing, is no doubt a state of things which calls for a remedy, since there must at some period or another, be a failure of land adequate to meet the requirements of realised fortunes. If, in the judgment of reasonable and practical observers, the difficulty could be met by making all future entails subject to be barred by a process analogous to that existing in England, we should think there could be no hesitation in affirming it to be the most just and most expedient course to introduce such a change, and leave the existing settlements in their contemplated perpetuity. If, however, it can be clearly established that already too much land is locked up in the northern kingdom, and that the soil now free from entail is insufficient to satisfy the requirements of future buyers, then we should say that the utmost care and skill were required in framing enactments which should adapt themselves to the justice of particular cases, and should, as far as might be, save existing and vested interests in their delicate multiplicity and connexion. If ever such care and skill were required, it would be in a measure which interferes more extensively with vested rights – usually with good reason a sacred thing in the eye of the law – than any which appears in the statute-books of the three kingdoms. A statute to convert the Irish tenants into owners of the fee-simple of their several holdings, (a project which has been talked of,) would scarcely be a more startling invasion of the rights of property as they are usually recognised. We do not, however, intend to impeach the general provisions of the bill. If, as we before observed, so important a change was found to be necessary, it is right to make it; and it is no more than was effected in England by a more gradual process – the subtle fictions of the law-courts, which virtually got rid of the statute De Donis. But we can anticipate nothing but uncertainty and multiplied litigation, from the apparently crude and careless project now before us.