an arrangement for adjusting or limiting the succession to landed property in a line of succession predetermined by the entailor. The term, though it is of frequent use in the legislature and the courts of justice, is rather colloquial than technical, being applicable in England and Ireland to the form of estate technically called a *Fee Tail*, and in Scotland to the destination technically called a *tailzie*. The word is of doubtful origin; some would derive it from the Latin *talis*, as being an indication of certain persons who are to succeed; but the most commonly received derivation is from the same root with the French *tailleur*, to cut; and Spelman tells us, that a fee is called *tailiation* when certain faculties are cut away from it so that it can pass to no heirs save those springing from a particular body. Under the head of the Law of Entail it has been customary to treat the policy of restraints on the right to possess and dispose of landed property, in connection with history, politics, and political economy; and though the intricacies and niceties which have been adopted to carry out particular destinations, or to defeat them, are of considerable importance in the science of conveyancing, it is in connection with the policy of restraining or freeing the commerce in land that the subject of entails is chiefly interesting.

There has been a remarkable difference in the history of the entail system in England and Scotland, connected with the differing political progress of the two countries. It is said that from very early times the judges administering the common law in England were accustomed to aid in stripping destinations of land of their conditions and limitations, by giving effect to fictitious sales by tenants in possession and reconveyances into their hands, which endowed them with fee-simple or unlimited ownership. The passing of the statute of Westminster, in 1285, is generally supposed to have been a remedy sought by the aristocracy against those practices of the common lawyers which they deemed an infringement of their territorial power. This statute is peculiar and argumentative in its phraseology, complaining that in certain enumerated cases "feoffees had power to alien the land so given, and to disinherit the issue of the land contrary to the minds of the givers, and contrary to the form expressed in the gift;" and it enacts, "that the will of the giver, according to the form in the deed of gift manifestly expressed, shall be from henceforth observed." Blackstone tells us, that during about two centuries when this statute was observed,—"Children grew disobedient when they knew they could not be set aside; farmers were evicted of their leases made by tenants in tail; for if such leases had been valid, then under colour of long leases the issue might have been virtually disinherited; creditors were defrauded of their debts; for if tenant in tail could have charged his estate with their payment, he might have also defeated his issue by mortgaging it for as much as it was worth; innumerable latent entails were produced to deprive purchasers of the lands they had fairly bought—or suits in consequence of which our ancient books are full; and treasons were encouraged—as estates-tail were not liable to forfeiture longer than for the tenant's life." (B. ii. chap. vii.)

It is said to have been owing to the encouragement which, for this last reason, King Edward III. extended to a judicial remedy, that the judges in the celebrated case of Tal-tarum gave countenance to a new fiction for checking the course of entails. When it was brought into form, it was known by the name of common recovery. This was a judgment in a fictitious suit, in which the tenant of the estate was made defendant. In its simpler form the tenant or possessor appeared to the action, and called upon a fictitious person to vouch or warrant his title. That person's default was the break which judicially stopped the course of the entail, and other proceedings more or less complex, according to circumstances, restored the estate in fee-simple to the tenant. The form became a systematic but complex department of English conveyancing, until it was simplified in 1832, by the passing of the 3rd and 4th Will IV., c. 74, which substituted a deed enrolled for the fictitious process. A subsequent act, passed in 1838, facilitated the realization of entailed estates for the benefit of creditors.

In Scotland, the history of the entail system is so far different, that it was there created and strengthened by the ingenuity of lawyers, who, as fast as their brethren discovered assailable points in the usual form of the deed, fortified it with new clauses. The simplest form of the deed was a mere nomination of a certain series of heirs, or direction to invest them,—this was easily defeated, and the "prohibitory clause" was inserted to prohibit the heir in possession from altering the destination. Still when he did alter it, it was but a precept disobeyed, and did not change the condition of the property; hence the clause "irritant" was introduced, by which the contravener forfeited his title. There was still a deficiency—the forfeiture might be incurred, yet no one had a right to come forward and enforce it by claiming the estate forfeited, and the form was completed by the introduction of the clause "resolutive," which devolved the forfeited estate on a claimant who might prosecute on the forfeiture as the true owner. Sir Thomas Hope, a lawyer famous in the religious disputes of the seventeenth century, has the reputation of being the inventor of these clauses, which were sanctioned in the year 1685, by a statute which reduced entails in Scotland to a systematic form. An entail scientifically and accurately constructed, not only deprived the heir in possession of all power to alter the line of succession, but protected the estate from his creditors, and transmitted it untouched to the next in succession. It precluded provision to widows and children; but measures were adopted for partially remedying this part of the evil effects.

During the eighteenth, and nearly the half of the nineteenth century, the practice of entailing crept like some great blighting disease over the soil of Scotland, not only perpetrating gross injustice to creditors, and creating personal hardships by condemning to destitution the children of parents enjoying large estates, but checking the progress of agriculture, and interrupting the commerce in land. The practice of the law made a curious and faint protest against the progress of the system, by requiring that the terms of an entail were to be held strictissimi juris; that is, that the meaning of the clauses should never be sought for, or be explainable by even the simplest and most obvious process of interpretation; but that any defect, such for instance as a clerical error in the deed or the record by the omission of a word, should vitiate the entail.

The effects of the system were felt as sufficiently alarming by the public at large; but the great patrimonial interests involved in existing entails seemed to unite in their defence a body too formidable to be assailed, while the tract of country already subject to the influence of the restraints was so large as to render any remedy which was not capable of disentangling existing restrictions comparatively ineffective. In 1847, when the evil had reached its climax, the legal administration in Scotland was fortunately in the hands of Andrew Rutherfurd, then Lord Advocate, a man of very signal attainments, and among the greatest British lawyers—certainly the greatest Scottish lawyer of his age. Being engaged in a general plan for the simplification of the tenure and transference of landed property (see CONVEYANCING), he undertook the arduous task of an equitable adjustment of the entail question. The main objects were the protection of all interests founded on just expectations—a freedom to dispose of such well-founded interests at the option of the owners, for the purpose of disentangling property of the restraints of an entail, and general freedom to the holders under future entails to convert their limited holdings into property. For this object, the first of August 1848 was made the turning point. Persons then in existence, and holding under entails of prior date, were enabled to disentail them only by certain intimations and equitable consents. Persons unborn at that date had greater facilities, and entails made after the assigned date were placed at the virtual disposal of the heir in possession when of full age. The number of advertisements containing the statutory notices of disentails which followed this measure gave ample evidence of its success; and there is no doubt that it will greatly increase the productive value of land in Scotland, and promote the general prosperity of the country.

END OF VOLUME EIGHTH.

NEILL AND CO., PRINTERS, EDINBURGH.