THE

JOURNAL OF JURISPRUDENCE,

1861.

VOL. V.

EDINBURGH:

T. & T. CLARK, LAW BOOKSELLERS, GEORGE STREET.

GLASGOW: SMITH AND SON. ABERDEEN: WYLLIE AND SON.

LONDON: STEVENS AND SONS.

MDCCCLXI.

THE

JOURNAL OF JURISPRUDENCE.

A DEFENCE OF THE SCOTCH LAW OF ENTAIL.

Address on Jurisprudence and the Amendment of the Law. By the Right Hon. JAMES MONCREIFF, M.P., etc. Edinburgh: Adam and Charles Black.

THAT brilliant delineator of the manners of our ancestors, whose history bears the same relation to romance as Sir Walter Scott's novels bear to history, has drawn a parallel betwixt the social condition of the Scotch under George the First and that of his own. countrymen some two centuries before. The comparison, it is needless to say, has reference to the condition of the lower strata of society; and, so regarded, it is a correct one. A better test, however, of the relative advancement of the English and Scotch nations presents itself to the student of their laws and institutions. To a superficial observer, Scotland, at the time of the Union, may not disclose the features of a state of society which belongs to the period of the Middle Ages. To enable us to refer any epoch of national life to its true place in the scale of historical development, our attention must be directed to the influence exerted by the laws and legislation of the time. Were we, for example, to describe the characteristics of that barbarous phase of European history which attained its maximum development in the fifteenth century, we should begin, of course, with the feudal system. We should describe its military and aggressive tendencies, its organization of castes, and its oppressive exactions. The institution of patriarchal or heritable jurisdiction would not escape our observation. The subjection of the Legislature to the Crown, and the absolute subserviency of the supreme judicature of the country, the enforcement of military law, and the infliction of torture, would complete the

VOL. V.-NO. XLIX. JANUARY 1861.

outline of a not very flattering picture. It is matter of history, however, that every one of these noxious elements was prevalent in Scotland up to the period of the Revolution. Yet perhaps there is nothing which more conclusively marks the retrogressive character of Scotch civilisation at the close of the seventeenth century, than the establishment by law of a system which placed nearly the whole of the land in the country extra commercium—the system of strict entail, which had been abandoned half a century before by the English landowners, and is now acknowledged to be entirely unsuited to the exigencies of modern civilisation.

Our point of view, however, is not historical; nor does it lie within the scope of our design to estimate the influences for good or evil of a system that has passed away. The old entail law of Scotland was felt by every one to be an anachronism in the nineteenth century. Yet, absurd and indefensible as the system was, it had a strong hold on the affections and prejudices of the landed proprietary. Its reformation was the unaided act of a strong-willed and liberal-minded legislator. The public has never sufficiently appreciated the value of those changes by which the restraints that were formerly placed on the transmission of entailed property have been entirely swept away, and the law of destinations regulated in conformity with the principle of the English statute "de Donis." But we are persuaded, that when the history of our times comes to be written, Lord Rutherfurd's Entail Act will be acknowledged to be one of the most beneficial changes that has ever been effected in the local institutions of Scotland.

Our readers are, however, aware, that by a large portion of the public whose views are entitled to respect, the machinery introduced by the Entail Amendment Acts is regarded as merely temporary and provisional. We refer, of course, to that section of the public who profess to regard the entail laws as a restraint upon the transference of property, and who honestly desire the entire abolition of the system. As an example of the opinions entertained by this class of reformers, we shall select a passage from the Lord Advocate's very excellent and comprehensive Address on Law Reform, which we noticed in a former number :—

"I should gladly see all restraints upon the transfer of land removed-I mean, I should gladly see entails in every sense, and to every extent, abolished. I believe they operate unmixed evil; they have no tendency, as has generally been supposed, to support or maintain old aristocratic families; they have a direct tendency to impoverish and bring them down; they hamper

the proprietor; they fill him with doubt; they encumber his life with liabilities; they interfere with the improvement of the land. You can tell a strictly entailed estate, frequently in this country, when merely passing along the road, by the look of its drainage and fences. And what advantage do they bring? None, of which I am aware, while at the same time they are productive of infinite embarrassment and discouragement to the philanthropist and the poor. What a practical satire it is upon the legislation of a free and enlightened country that an entailed proprietor, with thousands of acres and an enormous rent-roll, should not be able to give you a few square yards on which to build a school-house or a church, without the special and very stringent provisions of an Act of Parliament, passed for the purpose. I do not expect, in the present state of public opinion, to carry out so comprehensive a view, but I think it is consistent with abstract and philosophical principle. I believe that landed proprietors or great families would not suffer, and the public would be better served, if land were as free in commerce as anything else."

Now, if the Lord Advocate is prepared to go the length of recommending the abolition of liferents, the passage we have quoted is quite consistent with such a line of policy. Nor do we deny that such a proposition would find support in the doctrines of the modern school of political economy. But we should be greatly surprised to find that one half of the public speakers, and others who are in the habit of uttering complaints as to the law of entail, would be prepared to follow out their principles to this their legitimate consequence. The notion floating in the minds of the class we refer to, has commonly taken the form of a demand for the assimilation of the laws which regulate the destination of moveable and heritable property; or, in other words, an abolition of the statutory law of entail, and a restoration of the common law in regard to succession. Suppose the Lord Advocate had informed his audience at Glasgow (which included, we presume, the elite of the social reformers of this country), that, by the common law both of England and Scotland, settlements of personal property may be made as strict and as enduring as those which the entail statutes authorize, we question whether, in that view of the case, the abolition of entails would have been viewed as a matter of much importance. If, however, the audience had been further informed -what every lawyer must acknowledge to be the fact that the assimilation of the laws of succession in real and personal estate would (unless primogeniture were also discarded) result in placing the land of the country under fetters greatly more stringent than those of the existing law, we may safely assume that they would have rejected the proffered boon, with as much sincerity as they appear to have displayed in its approval.

An attentive study of the provisions of the modern statutes will,