conveyance. Tailzies, however, to which no clauses are annexed, do not prevent the heir from conveying the lands in any manner he pleases. Now, as, the object of this bill is to relax the bonds of perpetual inalienability, we presume that only those tailzies which are guarded by the irritant and resolutive clauses are within its purview. If so, the general expression "deed of tailzie" should have been distinctly limited. If that expression should be held to comprehend all deeds of tailzie, which it must of course do when taken by itself, then the proposed act will exercise a very extensive disabling power, by restricting the unlimited right of alienation under tailzies of simple destination,2 and the right of alienation for value under tailzies with prohibitive clauses only introduced, to the peculiar form and instrument pointed out by this bill, and which we suppose was devised in analogy to the forms substituted for fines and recoveries by the statute 3 & 4 Will. IV. c. 74.
We have already seen how Mr M'Culloch would deal with the difficulty of disturbing the devolution of lands already limited in perpetual entail – namely, by "saving the rights of living heirs of entail, and of heirs born under existing marriage-contracts." We think our author has not, in this passage, expressed himself with due legal perspicuity and precision. The phrase "living heirs of entail" is somewhat vague and uncertain; we presume Mr M'Culloch intended the living issue of the heir of entail in possession, and all living heirs-substitute and their living issue. Again, what are existing marriage-contracts? Probably those marriage-contracts are intended, which are annexed to marriages solemnised before the introduction of a new system. Both these suggestions, as we have interpreted them, might with justice, and advantage have formed part of the new law. It is true that this would, at all events for a considerable period of time, stop short of that assimilation of the Scottish law to the English which seems to have been a great object with the framers of this bill. But the two systems would gradually correspond; and we hold that there is a principle of justice involved in the upholding of contracts the objects of which are as yet unfulfilled. Where an English settler has limited lands to a man for life, remainder to his first and other sons successively in tail, he knew, at the time of making the settlement, that it was liable to be barred with consent of the eldest son on his coming of age. But it was not so with a Scotch settler who executed a deed of tailzie to several brothers as successive heirs-substitute; and the legislature has no right, without the gravest public cause, to step in and defeat his intention.
But the bill, though intending to give far greater liberty to the owner of an entailed estate than Mr M'Culloch does, or, as we think, is consistent with justice, sets about affording him aid in the most ambiguous and misty manner conceivable. The 2d clause enacts that the heir of entail in possession, born after the date of the act, may disentail in the manner provided by the act; and an heir of entail born before the date of the act may similarly disentail, "with the consent (and not otherwise) of the heir-substitute next in succession, and heir-apparent under the entail of the heir in possession," he being born after the date of the act, and capable of contracting.
We should recommend the tenant in tail to be very cautious how he attempts to "acquire his estate in fee-simple" under the provisions of this clause. He is to obtain the consent of the heir-substitute next in succession. So far his course is clear. But the same person is also designated by the term "heir-apparent under the entail of the heir in possession." Now, is this a qualification of the general term "heir-substitute next in succession," and must such person, under the act, be also heir-apparent? If so, what is the particular qualification required of him under the expression "heir-apparent?" Adhering to the use of the phrase in popular language, we must take, as the only circumstances under which the next heir-substitute and the heir-apparent are one and the same person, the case in which the first estate under the entail is limited to a man and the heirs of his body, and the second to his second son and the heirs of his body; then, supposing the eldest son to die in the lifetime of his father, the second son would be both the next heir-substitute and also the heir-apparent. Is this, therefore, the only case within the act? Scarcely, we should think, was it so intended. Are we, then, to interpret the word heir-apparent in the sense in which the phrase heir-presumptive is generally used; and must we suppose that the cases indicated are those in which there is no issue under the first entail, and therefore the next heir-substitute is what we should call heir-presumptive to the person in possession? If so, what is to become of the numerous cases where there is issue to take under the existing estate-tail? Or can it be that the issue in tail is altogether forgotten by this act, and that the person whose consent is required is merely the next heir-substitute in any case? We are inclined to think this the most probable explanation of this unfortunate clause, but can scarcely imagine that it will be suffered to pass into a law. A further ambiguity, however, arises with respect to this term heir-apparent, from its having a peculiar technical meaning in the Scottish law. "He who is entitled," says Erskine, "to enter heir to a deceased ancestor is, before his actual entry, styled, both in our statutes and by our writers, apparent heir." If the bill intends any reference to this legal acceptation of the phrase, we can only understand the person whose consent is required, to be such person as, being next heir-substitute, would, on the immediate decease of the possessor, be his apparent heir, or entitled to enter on the lands. This, again, shuts out all those estates where the possessor has issue in tail, and would, consequently, limit the operation of the bill to exceptional cases. We think we have said enough to convince our readers that this clause is not likely to set free many entailed estates in Scotland – at all events, not without a chaos of litigation, in which the elements of profit will have a tendency to range themselves on the side of the lawyers.
The person whose consent is to be obtained (whoever that mysterious person may be) is, as we have seen, to be born after the date of the act. In conformity with this principle, one would have supposed that where the next heir-substitute shall have been born before that date, then it should be necessary to obtain the consent of the first person entitled to take per formam doni, who shall be born after this date, together with the consent of all those who are to take before him. The third clause, however, introduces a new form of protection to the settlement, and merely enacts that, in such cases, the consent of a certain number of the heirs-substitute is to be obtained, (the blank left for the number was filled up with the word "three" in committee of the House of Commons. Nothing said about the issue in tail, as before.
Where the main enactments of the bill are so incomprehensible, it is useless to dwell on its details. We can only say, that whatever evils may be shown to exist under the present law, they will not only fail to be cured, but must be aggravated tenfold, by such a product of off-hand legislation —
"Sent before its time
Into this breathing world, scarce half made up,
And that so lamely and unfashionable,"
that it must necessarily die of its own deformity, unless the law-courts will lick it into shape by their decisions, – a shape (as it must be) in which its own parents would not know it again.
The law of real property in France exhibits a system so distinctly antagonistic to our English and Scottish law of entail, that we cannot be surprised at the attention with which Mr M'Culloch has investigated its influences.
"According to the law of France, a person with one child may dispose at pleasure of a moiety of his property, the child inheriting the other moiety as legitim, or matter of right; a person having two children can only dispose of a third part of his property; and those having more than two must divide three-fourths of their property equally amongst them, one-fourth part being all that is then left at their disposal. When a father dies intestate, his property is equally divided among his children, without respect to sex or seniority. Nothing can be more distinctly opposed to the principles we have endeavoured to establish, and to the system followed in this country, than this law. It is therefore lucky that it is now no novelty. It has been established for more than half a century, so that we may trace and exhibit its practical influence over the condition of the extensive population subject to its operation. Such an experiment is of rare occurrence, but when made is invaluable. And if its results should confirm the conclusions already come to, it will go far to establish them on an unassailable basis."
See Erskine's
