Page:Encyclopædia Britannica, Ninth Edition, v. 8.djvu/472

Rh 452 ENTAIL feuda conditionata, because if the donee had no heirs of his body the estate reverted to the donor. This right of reversion being constantly evaded by a sale and repurchase on the birth of issue, the famous Statute of Westminster the Second, de donis conditionalibus, 13 Edw. I. c. 1, was passed, which provided that the will of the donor should be observed, and that no alienation by the donee should pre vent the operation of the condition. Thus was created the foe-tail, orfeudum tcdliatum, of English law a strict and practically perpetual entail. The power of alienation was reintroduced by the judges in Taltarum s case (Year Book, 12 Edw. IV. 19) by means of a fictitious suit or recovery which had originally been devised by the regular clergy for evading the statutes of mortmain. A full account of the mysteries of praecipe and vouching, and of another ficti tious process of fine (finalis concordia) and proclamation, will be found in Blackstone, ii. 7, and Mr Knowler s argu ment in Taylor and Horde, 1 Burr. 60. These forms were abolished by an Act passed in 1833 ; and now every tenant in tail, at least while there is a possibility of issue, may bar even his issue by executing a deed and enrolling it in the Court of Cl*ancery, but not by will. This right is available to creditors. The erroneous notion of heir land, however, of something which must perpetually descend from father to son, still lingers in some country districts of England. By the common form of marriage settlement, the eldest son and the other sons of the marriage are made tenants in tail. Where the parent or some other person enjoys a life interest under the settlement, he is called the protector of the settlement, and his consent is required to the barring of the entail by the first tenant in tail. Thus, except in the case of estates tail granted by the crown as a reward for public services (see 34 and 35 Hen. VIII. c. 20), land in England cannot now be tied up for a longer period than the lives of persons in existence and twenty- one years thereafter. The rigid law of forfeiture which was applied in the time of Henry VIII. to estates tail was repealed by the Act 33 and 34 Viet. c. 23, which provides that no conviction of treason or felony or verdict oifelo de se shall cause any attainder or corruption of blood or any forfeiture or escheat. In Scotland, where for several centuries feus remained inalienable beyond one-half of their extent, where ths feudal aristocracy often violently resisted the approach of creditors or apprisers, and where the dawning of commerce was very late, statutory authority was not given to entails until the year 1685. l As Sir George Mackenzie said in one of his pleadings, &quot; the honour of the country standeth more by ancient families than by merchants.&quot; The word entail, indeed, is often used before the 15th century, but generally in the sense of a simple destination alterable by every heir in possession. Thus Sir James Balfour informs us that &quot; infefment of tailzie &quot; is considered lawful and not prejudicial to the king s soul and conscience, and explains that the entail might at any time be broken by resignation in favour of heirs whomsoever. The earliest prohibition denon alienando occurs in 1489. After this it was attempted to protect the rights of substitute heirs by the diligences of inhibition and interdiction ; and at last, in the early part of the 17th century, Sir Thomas Hope, who revised the Calderwood entail, introduced the well- known irritant and resolutive clauses, declaring void deeds in contravention of the entail and the right of the con travening heir. Cromwell, with his usual sagacity, appointed a committee to consider the legal destruction of entails ; but in the celebrated Stormonth case in 1662, one of the clauses just mentioned was held to be valid at com- 1 Dal rym pie s Essay towards a General Hi-story of Feudal Property, 1757. nion law against creditors, who, however, had got notice of it from the title-deeds. Much doubt was felt about the soundness of this decision. The first Roxburgh entail had been addressed to the sovereign, as if to invoke special protection. The aristocracy were alarmed by the forfeitures for treason which took place under Lauderdale s adminis tration; and accordingly the statute of 1685 was passed, which until -1848 remained the foundation of the Scotch law of entail. It adopts the style suggested by Hope (a prohibition of sales, mortgages, and alterations of succession, with irritant and resolutive clauses), and provides that if the deed of entail be recorded in the register of tailzies, and if notice of the conditions be also given in the titles of the estate, the entail is to have perpetual validity. The heir in possession remained nominally proprietor, but his powers of management were in reality not much more extensive than those of a liferenter. The statute applied to almost everything in the nature of a heritable subject. Jedburgh cross, for instance, was entailed ; so was the office of heritable usher ; even the smallest properties (e.g., a lodging in Edinburgh, pars tenement i in Forfar, a single field in the Hanghs of Clyde) were sometimes tied up. But it did not apply to the entails of money and household furniture, which had not been uncommon in earlier times. It has been well described as a &quot;padlock on the plough;&quot; and the security from forfeiture (except of the life-interest of the traitor) which the Scotch Estates fancied they had secured by the Act 1690 c. 33 was taken away by the Act 1708, c. 21, which attempted to assimilate the laws relating to treason in the two countries. The feudal maxim &quot; tantum facit quis delinquendo quantum alienando &quot; may have made rebellion more stubborn ; but it is impossible not to agree with the Scotch statute, that &quot; it is just that every man suffer for his own fault, and not the innocent with or for the guilty.&quot; The English law of forfeiture, on the other hand, proceeds on the Ciceronian principle &quot; ut caritas liberorum amiciores parentes reipublicee redderet &quot; (Ad Brutum, 12). 2 The only interests saved from forfeiture under an English entail were those of remainder-men ; but as a Scotch entail has no remainder-men, the forfeiture of Scotch estates was for a time complete. The judges and the commissioners of forfeited estates took very different and very warm views of the matter. After the first Jacobite rebellion, however, a compromise was effected in the case of Gordon of Park, according to which only the right of the traitor s issue was taken away. Meanwhile the entail system was found to weigh heavily on agricul ture ; the amount of litigation to assert or to control the rights of the proprietors was excessive ; the judges, chiefly members of the aristocratic class, at first benignant towards perpetuities, had begun to apply those strict tests of language a:s distinguished from intention which have since furnished some of the most ludicrous and not the most creditable efforts of judicial interpretation ; and at last, through the efforts of the Faculty of Advocates led by Mr Lockhart, the Montgomery Act (10 Geo. III. c. 51) was passed, which gave some relief to heirs in possession in such matters as building and improving leases, expenditure on permanent improvements, and exchanges. It v{as followed after a long interval by the Aberdeen Act (5 Geo. IV. c. 87), which conferred powers of charging provisions to a limited amount for husbands, wives, and children ; and after a select committee of the Commons had reported on the subject of Scotch entail (Par. Pap. vii. 1828), by the Rosebery Act (6 and 7 Will. IV. c. 42, amended by 1 and 2 Viet. c. 70, and 4 and 5 Viet. c. 24), which enlarged 2 See Considerations on the Law of Forfeiture for High Treason, by Mr Charles Yorko, London, 1743.