In Scotland, as in England, entails appear first to have taken their rise from the feudal usages. It has been observed by lord Karnes, that while the feudal system was in its vigor, every estate was iu fact entailed, because no proprietor had any power to alter the order of the succession. But when the stricter feudal principles gave way, and the power of alienat ing land began to be recognized, the holders of estates sought to secure, by deed, in their own families the lands which they possessed. The form first adopted for this 'purpose was the simple destination, whereby the estate was simply limited to a particular series of heirs, without prohibition to alienate, or declaration of forfeiture for contravention of the will of the grantor. In this form, the deed must have resembled the early Eng lish entails. The feudal law of primogeniture having been received as a principle of com mon law, the estate would naturally descend from father to son in the line indicated by the deed. But, as it was held that those succeeding under this deed were not restrained from alienating, the practice of adding prohibitory clauses was introduced. Entails in this form were held to bind the heir from granting gratuitions" alienations; but he was not restrained from selling the estate, or burdening it with debt. Early in the 17th c., a further addition was made to the form of the deed by the introduction of irritant and resolutive clauses, i.e., clauses declaring the act of alienation to be null, and to infer the forfeiture of the estate. The form thus adopted, which resembles closely the form of the Roman deed already noticed, was fortified by a decision of the court of session in the Stormont E., M. 13,994, holding that an estate so protected could not be attached by creditors. This decision created much difference of opinion amongst lawyers as to the power of the grantor thus to protect an estate from the onerous act of the heir, in consequence of which the famous Scotch E. act, 1685. c. 22, was passed, by which it was enacted that an estate conveyed by a deed fortified by prohibitory, irritant, and resolutive clauses, and recorded in a particular register, should he effectually secured in the line of destination. This act has always been most strictly viewed by Scottish law yers; and entails which have been found deficient in any of the prescribed requisites, have been regarded by the courts as utterly ineffectual. The first lord Meadowbank,
in a judgment which has always been regarded as a leading authority, laid it down that entails "are the mere creatures of statute," and that where the interests of third parties are concerned, every part of an E. is liable to the strictest interpretation (Hamilton v. Macdowall, 3d Mar., 1815). The operation of the old E. act was found, notwith standing, to be of the most oppressive character. Statutes were in consequence passed from time to time, empowering heirs of E. to exercise larger powers of ownership than could be granted under the act 1685, and to make provisions for their families. At length, by 11 and 12 Vict. c. 36, and 38 and 39 Vict. c. 61, the power of fettering lands by a strict E. has been finally destroyed. By this act, heirs under an existing E. may disentail, with the consent of certain heirs next in succession; and in all entails made after 1st Aug., 1848, and also in old entails where the heir in possession was born since 1st Aug., 1848, the heir of E. in possession may, by means of a sim ple deed of disentail, free his estate from the restrictions of the entail.
In America, before the rebellion, the English law as to estates tail prevailed. But in the United States the law of entails has been gradually abandoned by the several states; and property can now be fettered, to a limited extent only, by means of executory devices (q.v.). In France, the power of creating entails has varied much at different periods, from the right to make a perpetual E., which appears to have been the orig inal principle, to a limitation to four, and at one time to two degrees. • But by the code Napoleon, ss. 896-897, entails are now absolutely prohibited. In Spain, also, entails, which were permitted under certain restrictions, have been entirely abolished by a law of the tortes in 1820. Thus it will be seen that the right of securing land in a particular family, which commends itself to the natural feelings, has been found so oppressive in operation, and so injurious to the public interest, that after an existence of more than 600 years it has been practically discarded almost simultaneously by the general consent of modern nations.