CHAPTER X.

LORD CAIRNS' ACT.

SUCH therefore being the restrictions which judicial legislation has imposed on the power of settling land so that it shall not be alienable, we are now in a position to appreciate the mixture of law and custom by which even this rule was evaded, and land was, until the passing of Lord Cairns' Act, practically fettered to a family in perpetuity.

In the early part of this century an ordinary settlement of land, to take a very simple instance, was of this nature. On the marriage of A., land was settled on him for life, with a remainder in tail to his eldest son B. then unborn, and successive remainders in tail to his other sons in order of seniority, remainder to the heirs of A. in fee. B.'s contingent remainder was protected by the device of trustees to protect contingent remainders1. Unless A. had no sons at all, in which case he had an estate in fee, A. had only a life interest in the land. But if sons were born to him no alienation that he by himself could make would defeat their interests, for he could only deal with his own life estate in the land. B. also, unless he could persuade his father to join with him in barring the entail, could until he succeeded to the estate on his father's death, only alienate his own interest in the land, that is an estate in the land, so long as B.'s heirs survived, which was known as a base fee; he could not affect A.'s life interest in the land nor bar the estates tail in remainder of his younger brothers. Consequently

1 This is a simpler form than exists in practice.

CUSTOMARY SETTLEMENTS.

135

the land was safe from complete alienation by the tenant-intail alone, until he was in possession, and had attained the age of 21: but as soon as B., the tenant-in-tail in remainder, attained his majority, he was in a position to join with the tenant for life, A., in aliening or resettling the estate. On the coming of age of the eldest son therefore, and very frequently on the occasion of his marriage, a proposal was usually made to him that in return for a fixed annual allowance from his father he should join in a resettlement of the land, which would convert his estate tail into an estate for life, giving his eldest son unborn an estate tail in remainder, with successive estates tail to his other sons. This proposal, if assented to and carried into effect, had the result of postponing the time when the estate could be fully alienated for another generation, or from the time when B. the eldest son should come into possession of the land to the time when his eldest son should succeed. It was urged on the eldest son, a young man and necessarily inexperienced, by the prospect of an immediate and considerable increase in his income, which usually rendered his marriage possible, and by the strong traditions of the class to which he belonged, backed by the advice of his relatives and legal advisers. The disadvantages of his position have been summed up by Mr Cliffe Leslie in a passage that has become almost classical1.

It is commonly supposed that the son acts with his eyes open and with a special eye to the contingencies of the future and of family life. But what are the real facts of the case? Before the future owner of the land has come into possession, before he has any experience of his property, or of what is best to be done, or what he can do with regard to it, before the exigencies of the future or his own real position are known to him, before the character, number and wants of his children. are learned, or the claims of parental affection and duty can make themselves felt, while still very much at the mercy of a predecessor desirous of posthumous greatness and power, he enters into an irrevocable disposition by which he parts

1 Fraser's Mag. Feb. 1867. Cited Cobden Club Essays, p. 114.

with the rights of a proprietor over his future property for ever, and settles its devolution, burdened with charges, upon an unborn heir." Its advocates have represented it as "a solemn appeal from one generation to the next;" which is open to the answer that at least "the common interests of the nation should be represented in the more than diplomatic privacy of this negotiation between father and son. On closer examination this supposed solemn appeal to each generation dwindles to a hasty compact, dictated by somewhat sordid considerations of a momentary interest, to which the law lends the sanction of irrevocability."

Under this system the great estates of England became held by a series of life tenants each of whom had signalized his arrival at legal years of discretion by depriving himself of the power to deal freely with the land which must be his in the future, and by fixing the person to whom the land should devolve on his death before he had any knowledge of that person's character circumstances or ability, and indeed before he was even born.

The acts of the Reformed Parliament dispensed with the necessity of "trustees to bar contingent remainders", and established a personage known as the "protector to the settlement," usually the tenant for life in possession, whose consent by deed is now the only formality necessary to enable the tenant-in-tail in expectancy to bar the entail, not only against his heirs, but also against remaindermen and reversioners. But these changes had only the effect of simplifying the machinery of family settlements, and slightly cheapening their cost: they in no way interfered with the restrictions on alienation management and succession which family settlements imposed on the land. Indeed the opinion of the Real Property Commissioners, as expressed in their first Report, was that no changes were necessary in the system of family settlements'.

"The owner of the land is, we think, vested with exactly the dominion and power of disposition over it required for the public good, and landed property in England is admirably made to answer all the purposes to which it is applicable. Settle

1 1st Report, pp. 6, 7.

ments bestow upon the present possessor of an estate the benefit of ownership', and secure the property to his posterity. The existing rule respecting perpetuities has happily hit the medium between the strict entails of Scotch law, by which the property entailed is for ever abstracted from commerce, and the total prohibition of substitutions and the excessive restrictions of the power of devising established in some countries on the Continent. In England families are preserved and purchasers always find a supply of land in the market. A testamentary power is given which stimulates industry and encourages accumulation, and while capricious limitations are restrained, property is allowed to be moulded according to the circumstances and wants of every family"".

In 1856, however, greater power was given to the tenant for life, by an "Act to facilitate Leases and Sales of Settled Estates"," which, with the Acts amending it, was consolidated and improved by the Settled Estates Act of 1877. The general tenor of these Acts was to allow greater power of leasing and sale to the tenant for life, subject in each case to the approval of the Court of Chancery. The Court might authorise leases and sales of settled estates and timber "if it should deem it proper and consistent with a due regard for the interest of all parties entitled under the settlement5". To this extent power was given to the tenant for life, after going through an expensive and complicated application to the Court, to deal with the land more freely than he could under the settlement; but even this had a limitation. The settlor's wishes were still to be sacred, for the powers contained in the Act were not to be exercised if an express declaration that they should not be exercised was contained in the settlement.

Another series of Acts gave power to tenants for life to obtain capital for necessary improvements from Public Com

missioners for drainage and other like purposes. But all these powers were so fenced round with safeguards and expensive formalities as to rather discourage than lead to their use, and a vast quantity of English land is still undrained.

In 1882 however, with the consent and concurrence of a Liberal Lord Chancellor, Lord Selborne, an Act introduced by a Conservative Lord Chancellor, Lord Cairns, was passed. The Settled Land Act', which usually bears the name of its author, goes in theory nearly as far in the direction of freeing the land, as it is possible to do while the system of family settlements and estates tail is maintained. Any serious step further must be in the direction of their abolition.

As the result of this Act, it is not going too far to say that all land in England and Wales held under any family settlement or similar disposition may now be sold or otherwise dealt with by the private person then entitled to its income as beneficial owner, in nearly every way in which a prudent owner would deal with it, except that the resultant purchase money cannot be treated as income, but must either be invested in specified securities, or capitalized in the land by making improvements or paying off incumbrances. The scheme of the Act is to place the tenant for life in the position occupied by the Court under the previous Settled Estates Acts, and to make him the sole judge of the propriety of the particular improvements or dealings with the land contemplated, so long as they are within the classes of improvements and dealings sanctioned by the Act. Certain acts, such as the sale of the principal mansion on the settled estate, cannot be carried out without the intervention of trustees; certain others require an application to the Court. The honest attempt has however been made to reconcile the beneficial owner's power of freely dealing with the land with the settlor's power of determining the line in which the land shall descend. The settlor's power over his land has indeed been seriously curtailed, for the tenant for life can neither contract himself out of the Act, nor transfer his powers under the Act to any other person: neither can the settlor, by provisions in the settlement or otherwise, restrict the exercise by 1 45 and 46 Vic. c. 38. 2 Wolstenholme's Settled Land Act, p. 7.