Page:Encyclopædia Britannica, Ninth Edition, v. 8.djvu/473

Rh ENTAIL 453 the powers of excanibion, or exchange. The suggestion made in 1827 to throw entailed estates into judicial management by an action of cognition and sale was fortunately abandoned. In 1840 an Act (3 and 4 Viet. c. 48) permitted the granting of sites for churches, schools, manses, and teachers houses. At last, an accomplished lawyer, Lord Rutherfurd, framed and passed the compre hensive Act, 11 and 12 Viet. c. 36, which still bears his name, and which has abolished perpetuities in Scotland and introduced a system of greater freedom than that of strict settlement in England. This Act not only increases the [tower of charging entailed estates with improvement debts and provisions, of feuing, and of sale to pay off debt, but it introduces a right to disentail to be exercised for some time after the passing of the Act with certain consents, but which practically gives an estate in fee-simple to every entailed proprietor born after 1848. This Act, which also applies for the first time the principle of the Thellusson Act to land in Scotland, has been usefully enlarged by the following Acts 16 and 17 Viet. c. 94, 31 and 32 Viet. c. 84, and 38 and 39 Viet. c. 61, the last of which con tains a liberal definition of permanent improvements. In 1847 it was estimated that one-half of the land in Scotland was under entail; in 1827 the proportion was stated at one-third, the number of separate entails being about 1600. Since 1848, 616 deeds of entail, including re- entails, 435 instruments of disentail, and 105 deeds of excambion have been recorded (Treatise on the History and Law of Entails in Scotland, by E. D. Sandford, 2d ed. 1842; see also the text-books on conveyancing, minor works by Fergusson, Irvine, and Duff, and two essays by Lord Kames). 1 From a very early time the Roman law of entail, or &quot; substitution graduelle,&quot; was received in France. The very phrase of the digest, &quot; ne de nomine exiret,&quot; was in common use. Insinuation, or recording in the books of a Prevote Roy ale, or Bailliage Royal, was necessary to bind creditors. The institute, greve (gravatus), could by a hypothecate suhsidiaire charge the estate with a provision for his wife. In 1747 the Chancellor D Aguesseau, after collecting the opinions of all the local parliaments on the subject, passed the Ordonnances of Orleans and Moulin, which prohibited perpetual substitutions, but permitted them for two degrees (see Questions concernant les Sub stitutions, 1770 ; also Pothier s (Euvres Posthumes, torn, v., and art. &quot;Subs. Fidei-commissaire&quot; in Merlin, xiii. 67). Substitutions of every kind were abolished by section 896 of the Code Napole on, but at the same time, as was explained above, the emperor attempted to revive the system of majorats, or entails of subsidized dignities. He says his object is &quot; uon seulement d entourer notre trone de la splendeur qui convient a sa dignite&quot;, mais encore, de nourrir au coeur de nos sujets une louable emulation, en perpetuant d illustres souvenirs, et en conservant aux ages futurs 1 image toujours pre sente des recompenses qui sous mi gouvernement juste suivent les grands services rendus al etat&quot; (Imperial Decree of 1st March 1808). All the dukes, barons, counts, and chevaliers, and the others who obtained majorats, had to make the following oath : &quot; Je jure d etre fidele a 1 empereur et a sa dynastie, d obdir aux constitutions, lois, et reglemens de 1 enipire, de servir sa majestd en bon, loyal, et fidele sujet, et d clever mes enfans dans le,i me mes sentimens de fide lite et d ob6issance, et de marcher a la defense de la patrie toutes les fois que le territoire sera menace^ ou que sa majestd irait a 1 armde.&quot; 1 Acturial formulae for the values of interests under entails will be found in Considerations on Pecuniary Interests, &amp;lt;kc., by Spencer Thomson, Edin., 1870. For the legal principles of valuation under the Act of 1875, see case of Wilson v. De Virte, Dec. 19, 1877, in the Court of Session. The estates of these majorats were subject to inspection by agents conservateurs. The mansion-house was to be at least 2 per cent, of the value of the estate. The later French laws relating to substitutions are those of 12th May 1835, prohibiting all future substitutions, and 7th May 1849. It has already been pointed out that the Spanish crown was a majorat, subject to the quaint condition, seyendo home para ello, that the heir should be a fit and proper person. The inalienability of the domain of the sovereign (except to provide an apanage for the younger members of the reigning family) and of the greater peers was almost part of the common law of Europe (Sande, De proh. rer. alien.) But in Spain there was dn unusual complexity of entails, regular and irregular, substantial and habitual, &c., varying with the elements of linea, gradus, sexus, and aitas. The linea de agnacion limitada was equivalent to the English tail male special. The pi-opriedad was not forfeited for treason, except in cases of special enormity, as when the Communeros rose against Charles I. A unique species of entail is the linea de qualidad, confined to such as obtain a certain qualification, e.g., doctor, &c. There was also the singular elective entail, in which a right to choose the heir was given to some one outside the family. 2 Tuis resembles the patron of an Italian majorat. Sir Geo. Mackenzie mentions that in the original Dundas entail a discretionary power was given to friends (Treatise on Taillles). Wherever a title was connected with lands, the consent of the crown was required to the creation of a majorat. The principle of succession was that at every devolution the nearest heir to the original testator should be selected (proximitas gravantis non gravati). 3 In Italy a very similar state of matters existed ; the Roman phrase &quot; quia volo ut bona mea remaneant in familia mea &quot; seem to have become words of style. In Portugal the prasos de vita, or inalienable right of primogeniture for three generations, was abolished by the Act of 19th May 1863. Denmark still retains much more perfect entails. There the scedegaard, or family seat, including the hovedgaard, or manorial demesne, and the bonder gods, or portion occupied by small farmers, is frequently entailed either as (1) the stamhuse, a perpetual entail of both heritable and movable estate, which the crown sometimes graciously allows to be converted into money trusts, or (2) the 32 baronial fiefs all created sine 3 the establishment of absolute government in 1660, and which on failure of heirs revert to the crown. 4 Ever since the teaching of the economist Pontoppidan, followed up by the practical efforts of Bernstorff and Struensee, and in the present century by the agitation of the Bondevenner, or Radical Left of the Rigsdag, there has been a tendency to bring land more completely into commerce. The constitution of 1849, indeed, prohibits the creation of new entails. By Bishop Mourad s bill of 1861, drawn by the jurist Larson, the powers of selling the entailed bonder gaarde were extended much beyond the principles oi fcestetvang, or obligation to lease for two lives. Count Frijs and the landowners party then began the voluntary conversion of the tene- mented farms into freeholds ; and in 1869 Hansen carried his expropriation bill, which prohibits new estates for life, and provides a machinery for compensation at the expiry of existing interests. In Sweden, although primogeniture and even favour to male issue is unknown, there are still entails, although no new ones can be created. 2 Molina, De Hispanorum Primogenitor itm Origine et Natura, 1672. 3 The French constitution of Bayonne (1808) abolished majorats producing less than 5000 or more than 20,000 piastres. 4 There is also the Arvefoeste, or entailed k-ase to the tenant and his heirs for ever, escheating to the owner on failure of heirs, and without powers of sale or mortgage.