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Law of Entail. The main assertion was, and evidence seemed to be given in support of it, that the House of Lords introduced a different rule of construction in dealing with the deed of entail (or tailzie); and that this would have amounted to a change in the Law of Entail no one could doubt.
In order to make the merits of this question understood by our English readers, it is to be observed that a Scotch entail depends for its force and effect-in a word, for its validity as a settlement of the estate-upon what are termed the fencing clauses; that is, the denunciations of the maker of the entail against all attempts at breaking it. By the prohibitory clause he forbids certain things to be done, after describing the order of succession, the series of heirs, in the destination clause. But the specification of that succession, or those heirs, however clear, and the prohibitions however distinct, are absolutely without any force or effect to preserve the estate in the destined line, or prevent its partial or its entire alienation by any heir, to the disappointment of the subsequent ones, unless there be added a denunciation against the acts of contravention-a declaration that such acts shall have no validity, and that the right of the contravening party, the heir in possession, shall be forfeited, and the next in succession let in, as if the contravener were dead. The former is generally called the irritant, the latter the resolutive clause. It is upon the construction given to these fencing clauses in their application to acts done by heirs in possession, that the main question arises; and it has been said by debaters, and even by witnesses, that a rigorous construction has been introduced by the House of Lords unknown to the law of Scotland. We conceive it does not require that a person should be a Scotch lawyer to be satisfied how groundless this charge is against the Lords when the cases are mentioned in which the greatest rigour of construction has been introduced, and when it is seen that these cases were decided not by the Lords of Parliament, but by the Lords of Session.
In 1745, before Lord Mansfield had come upon the Bench, to whom is ascribed the introduction of rigorous construction, the case of Wightman's Heirs was decided, and by the Court of
Session, without appeal to the Lords. It was there held "that a strict prohibition to alter the order of succession, and declaring all deeds of alteration null, and the maker's right forfeited, did not prevent the sale of the estate or its mortgage."-In 1745, the case of Sinclair v. Sinclair, partly upon the authority of the former case, partly on the ground that restraints on common-law rights are to be strictly construed, it was decided by the Court of Session, that an heir of entail was entitled to sell the estate which he held under an entail having clauses prohibitory, irritant and resolutive, against altering the order of succession, granting wadsets (mortgages), annual rents (rentcharges), and other securities whatsoever, or against the doing any other fact or deed that might anywise affect, burthen, or evict the lands, or whereby the right and benefit of succession by virtue of the entail might be prejudged (prejudiced) in any manner of way, or whereby the lands might be apprized or adjudged. There was no express mention of selling; and although the heir might not mortgage, he was held entitled to sell, and thus to defeat the whole subsequent rights, and utterly to destroy the succession which he was not entitled in any way to alter. This judgment of the Court of Session was affirmed by the House of Lords, as was their judgment in the case of Bruce v. Burns (commonly called the Tillycoultrie case), in which it was held, that the resolutive clause being applied generally to make all acts prohibited induce a forfeiture, and there being afterwards a specification of these acts, but omitting alienation, the heir might sell, although the general reference to the prohibition might well be denied to include alienation, which was one of the things forbidden. In affirming this decision, Lord Eldon referred to the rigorous construction which former cases had introduced, and described it as shocking every principle of common sense; but he held himself bound by their authority, that is, by the decision not of the Lords, but of the Court below, which the Lords had only affirmed. So little did his lordship imagine that it ever could be contended, that this rigour of construction, applied in Scotland before the middle of the eighteenth century, and only followed by the Lords, was an infringement by the Lords upon the law of Scotland.
We have referred to these three cases as quite sufficient to disprove entirely the assertions in question. But there are many others-it might be truly said a current of decisions-on the same principles. Mr. Brodie,-the course of whose argument does not lead him to a nice exposition of the law, which might enable other than Scotch jurisconsults to perceive how great have been the misrepresentations,-cites a number with which we need not trouble our English readers; but those of the sister kingdom may be referred to them, and in the following passage from Mr. Brodie's work, readers out of the Profession also may perceive how little reliance can be placed upon the evidence given in the Committee by the Dean of Faculty, that "the principle of strict construction had grown up in the House of Lords, and was strange to the law of Scotland." The following are the words of an experienced and most learned Scotch lawyer, wholly unconnected with party, and whose works-his commentaries upon the great institutional writersare constantly in the hands of the Profession, and ever high in their estimation. He is referring to that evidence.
"If this be correct, we must overlook cases, unlearn all that we have made it the business of a life to acquire, and purge our minds of the authorities we have been accustomed to revere as our guides. But, surely, the learned dean has not been over happy in instancing the case of the Queensberry leases, where it "was found that leases of a certain duration were alienations, contrary to previous cases;" for, unless we dream this, far from importing "the strictest of all constructions," really constituted, according to his own view, a loose construction by implication. The opinion, accordingly, of the most eminent lawyers, so far as we understand it, has been, that the judgments of the House of Lords have tended to relax the principle of construction, so as to give the fetters a more extensive signification. This was early done: (see the case of the Creditors of Riccarton, Mor. p. 15, 494, et seq., June 12, 1712; Rob. Appeal Cases, No. 29, 3rd July, 1714; though, to a certain extent, the meaning of the reversal has, we think, been misunderstood). Then it is only necessary to look into the Dictionary of Decisions, 2 A
VOL. II. NO. III.
to perceive that the grand rule laid down here was against construction by implication."
We will venture to affirm, that there has seldom been a more injudicious attack on any branch of the Legislature than that of certain Conservative leaders on the House of Lords; and it is little to be wondered at if their example has been followed, but followed certainly with the proverbial excess to which the servum pecus of imitators are prone. A member of the House of Commons has, however, greatly surpassed all the other votaries of faction in this line. The Radical press had gone far, further, of course, than those who handled the subject in Parliament, or even than the members, generally speaking, who have addressed meetings out of doors. A member for a Scotch borough has lately addressed his assembled constituents upon the subject of the House of Lords. He has not scrupled to hold up to the indignation and the scorn of his audience the proceedings of Committees in that House, describing them as not merely partial, but utterly corrupt. The peers, it seems, are collected in their Committees by the canvass of persons interested in private Bills passing through Parliament. Their lordships, at the solicitation of these parties, they being themselves peers, vote sums of money into their pockets, of course at the expense of other parties who are not lords, or of the public at large. It seems altogether incredible
1 At this time of day we should have thought the task we now set about quite superfluous; but, after what has been said and alluded to, we have no alternative. The following authorities are therefore cited. The Lady of Redheugh v. Bruce, &c., March 11, 1707, M. 15, 433; Creditors of Riccarton, June 13, 1712, M. 15,494; reversed July 3, 1714, Rob. 110. The reversal implied latitude of construction. Strathnaver v. Douglas, Feb. 2, 1728, M. 15, 372; affirmed Feb. 4, 1729, Craigie and Stewart. The argument in M. throws much light on the subject of construction. Hepburn Rickart v. Hopetoun, April 5, 1734, C. & S. 143. Glasgow, &c. v. Garnoch, July 15, 1736; Elch. voce Tailzie, No. 7. Heirs of Campbell v. Reps. of Prov. Wightman, June 17, 1746; Elch. Id. No. 29, M. 15,505; Sinclair, Nov. 8, 1749, affirmed on appeal, M. 15, 383; Elch. Id. No. 36, C. & S. Feb. 14, 1750, p. 459. Gordon v. Gordon of Carleton, Nov. 14, 1749, M. 15,384. Leslie of Findrassie v. Leslies, Dec. 5, 1752; Elch. Id. No. 49. Creds. of Hepburn of Humbie, Feb. 8, 1758, No. 15,507; Gordon Cuming . Gordon of Pitlurg, July 29, 1751, M. 15,516; Scott Nisbett v. Young, Nov. 1763, M. 15,516; affirmed on appeal, March 20, 1765, 2 Paton's Ap. Cases, 98.
that so much ignorance should be combined with so much ridiculous violence. The Committees of the Lords are not assembled by the voluntary attendance of members, but by the selection of a standing Committee, ever since the new Standing Orders of 1837. A small number, we believe five only, form each Committee, and these are chosen by the selecting body. Therefore all canvass is absolutely impossible. By the same Orders, no peer having any interest whatever in the Bill can be chosen, or if chosen can sit and vote. But with regard to voting money, it is as well known as that there are two Houses of Parliament, that neither the Lords nor any of their Committees can vote one farthing, or come to any resolution whatever respecting money. It is therefore not without reason that we have designated this attack as incredible, and as showing how far the bad example of some peers themselves has been surpassed by their imitators.
ART. XI.-DISMISSALS FROM THE ARMY.
is with much reluctance that we advert to the late proceedings of the military authorities; but the Law Martial is parcel of the law of the land, and we have no right to withdraw from the consideration of any question that arises in its administration. We speak with unfeigned respect of those who have given the advice and adopted the course lately taken regarding two young officers, cornets in the army, dismissing them from the service, and we entirely admit that the conduct of the parties may have been such as to justify, even to call for, not merely animadversion, but punishment; still the doubt arises whether the law has not been exceeded in their case.
It is perfectly clear that the Crown has the absolute and unqualified right to dismiss any officer or any soldier, and may