“Shades that to Bacon could retreat afford Become the portion of a booby lord, And Hemsley, once proud Buckingham’s delight, »Slides to a scriv’ner and a city knight.”

Hence, also, the various suggestions which have been made of a downward and an upward limit to the property which should be required for a lawful entail of certain dignities. In his essay on Popular Discontents Sir William Temple proposed, and Dr Johnson applauded the proposal, that every baron should have at least £4000, every earl £6000, and every duke £8000 worth of land. This idea has frequently been realized in practice. In Prussia an entail was incompetent except of subjects above £400 in net annual value; in Denmark the estate must be at least 200 fonder of hard corn, or 2000 acres in extent; and under the Napoleonic system the dotation of the proposed entail, whether proceeding from the Government or from the applicant himself, was always carefully fixed by the Conseil du sceau des titres, with reference to the title or dignity which it was intended to preserve. A prince of the imperial blood or a grand dignitary was entitled to call his house a palais, princes of the empire and dukes had to content themselves with hotel, and so on. The same principle appears in the canon of construction laid down by the old Italian law, that a majoratus of such subjects as palatium, turris, castrum, and even aedificium was easily presumed. Indeed, kingdoms have been the subject of entail, and thus the law of entail has supplied the key to more than one political situation. Such was the great controversy “de vanitate haeredum regre-dientium,” whether according to the doctrine of reversion or regredient-erbeη, on the failure of heirs male, and in the absence of any pactum confraternitatis taking the estate to another family, a fee-simple estate remained in the last substitute, or whether the estate returned to the heirs of the entail. This question arose in 1740 between Maria Theresa and the elector of Bavaria; the former was victorious by force of arms against the general opinion of lawyers. It was also discussed all over Europe in the Hochsteden case. The crown of Spain was the type of the regular mayorazgo in that country—the inalienable estates descending to the eldest and nearest heir by blood (natu major), with right of representation and without preference of males. Again, the relation between the crown and the entailed estates of subjects has produced a number of elaborate rules with respect to the justoe causoe of interference by the state, and has thus profoundly influenced the history of Europe. An Italian majoratus, for instance, might include such subjects as ju3 honorificum, patronatus, commenda militaris, feudum habens administrationem: from all these monks were by the common law excluded; and all of them were forfeited to the fisc, either absolutely or for a time, by the blasphemy, heresy, or treason of the heir in possession. The entail, therefore, has always been much more than a family settlement or a system of land tenure. In modern Europe there have not been many forms of hereditary aristocracy without some form of entail. But it by no means follows that the influence of perpetuities upon the aristocracy has been beneficial. The introduction of post obit bonds, and the law of England relating to the protection of infants against unconscionable bargains, suggest some reflections of a different kind. It will appear in this article that public opinion has generally condemned entails, and that they are being rapidly abolished throughout Europe.

The speeches of Isaeus and Demosthenes show that in

Greece many difficult questions had risen with regard to the power of a testator to substitute one heir after another; but the earliest definite legal forms of entail were those which appeared under the later Roman law relating to fidei commissa, or trusts. The fidei commissum was originally a trust conveyance introduced for the purpose of evading such disabilities as the lex Voconia imposed on women to take directly under a will. The trustee, or fiduciarius, was after the time of Augustus liable in a personal action at the instance of the beneficiary, or hoeres fiduciamus. This form, however, was soon converted into a long nomination or substitution of heirs, to which clauses prohibiting alienation were added. The most common clauses were such as “ne eum fundum vendatis,” “ne ex nomine familiae alienaretur.” One well-known form also prohibited mortgages, and emphatically declared that the settled estates should remain “firmas meis filiis et nepotibus per universum ternpusf and that all contrary deeds should be void and null. On this deed Scaevola expressed the opinion that a security over the rents was not a contravention. For some centuries the law recognized such entails as valid in perpetuity; but by Novel 159, “Ut restitutiones in uno gradu subsistant,” their validity was confined to the first four generations.

The jus emphyteuticum limited to hoeredes sui, which was granted to coloni, formed the type of the tenure by hereditary lease, bail héréditaire, which is still common in Europe. Among others may be mentioned the aforamento of Portugal, in which the superior is named directo seηhοr, and the vassal or tenant foτeiro; the contratto di livello and beni libellari of parts of Italy; the emphyteusis transitoria ad quoscunque ex pacto et providentia concedentis, the tenure of monastery lands, in the old Roman states; the erbleihe and landsiedelgitter of Bavaria (“allodified” in 1848); the beklem-regt of Groningen, subject to the propinen, or fine, on renewal; the erb-pacht of several German districts; the quevaises and domaine coηgeable of the west of France; most of which, indeed, have become fee-simple estates, but were at one time inalienable. The differences between emphyteusis and feu are well brought out in an essay De prohibita rerum alienatione by the Dutch jurist Sande, Leovardiae, 1657. This and the tenure on which the limitanei milites held their agri limitrophi as a subsidium adversus rebelles naturally introduce us to the∕cwrfα gentilitia of the feudal law in which the benefice was granted out to a vassal and his heirs, w ho could not alienate without the superior’s consent, because on the failure of these heirs the feu returned to the superior. Indeed, the vassal could not alter the succession; and hence, as Sir Thomas Craig observes, “sine superioris consensu vixtalliae locus esse potest.” The principle of limitation is here of course entirely opposed to that of the Roman law, which affirmed the right of a testator to name his heirs in perpetuity. It was a feudal maxim, “Solus Deus potest facere haeredem;” and the limitations on the vassal’s right arose, not from his own act, but from the reserved estate of superiority and the tenor of his charter in the lands. The feudal law also favoured male heirs, and required that one heir only should succeed.

It appears from the laws of Alfred (c. 37), that entails were known before the Norman feudal law had been domesticated in England. “Si quis terram haereditariam habeat, eam von vendat a cognatis haeredibus suis, si illi viro prohibitum sit, qui eam ab initio acquisivit, ut ita facere nequeat.” These grants which could not be alienated from the linea<re of the first purchaser were also known as feuda conditionαta, 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 prevent the operation of the condition. Thus was created the fee-tail, or feudum talliatum, 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 fictitious process of fine (finalis concordia) and proclamation, will be found in Blackstone, ii. 7, and Mr Knowler’s argument 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 Chancery, 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 livee 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 Vict. c. 23, which provides that no conviction of treason or felony or verdict of felo 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 the feudal aristocracy often violently resisted the approach of creditors or apprisers, and where the dawning of commerce wa3 very late, statutory authority was not given to entails until the year 1685. As Sir George Mackenzie said in one of his pleadings, “the honour of the country standeth more by ancient families than by merchants.” 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 “infefment of tailzie” 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 de non 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 contravening 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 mon 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 administration; 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 tenementi in Forfar, a single field in the Haughs 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 “padlock on the plough;” 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 “tantum facit quis delinquendo quantum alienando” may have made rebellion more stubborn; but it is impossible not to agree with the Scotch statute, that “it is just that every man suffer for his own fault, and not the innocent with or for the guilty.” The English law of forfeiture, on the other hand, proceeds on the Ciceronian principle “ut caritas liberorum amiciores parentes reipublicae redderet” (Ad Brutum, 12). 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 agriculture; 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 an 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 vjas 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 Vict. c. 70, and 4 and 5 Vict. c. 24), which enlarged the powers of excambion, 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 Vict. 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 comprehensive Act, 11 and 12 Vict. 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 power 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....