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formed it, must have been intolerable to the old gentleman. The other party may object to the declaration of the ghost, but we will not insist on it, for we have evidence enough scripto without it, and more solid testimony than any spectre ever gave. We have already shown, from the whole tenor of the writing, that it was an Entail of the most rigid kind known in our law that was intended; and that the owner of the lands himself set forth in it, that he designed it for the preservation of his family, all idea of a lengthened succession to money being entirely out of the question.

Let us now advert to the deed executed by Mr Stewart, and observe what was ACTUALLY DONE by him for the purpose intended by him; and this will constitute the SE

COND PART OF OUR PROPOSED EN

QUIRY. The ordinary means of irritant and resolutive clauses were, no doubt, resorted to. These clauses were, however, directed against wadsetting only. But wadsetting is not a mode, at least not the ordinary, nor a right mode of putting away an estate. The common method of doing so is by selling and disponing; but these efficient clauses (without which an Entail cannot exist at all,) were not directed against those acts; and that single fact, joined to all the evident anxieties of the granter of the deed, is the clearest demonstration, that the whole was a mistake, an error, and a blunder. To lawyers it is unnecessary to dilate on the importance and indispensable necessity of those irritant and resolutive clauses, applying to all prohibited acts in an Entail, and we shall not load our paper with stating law which is now trite. For the sake of illustration, however, to persons who are not lawyers, we may add, that an Entail without these clauses applicable to what is forbidden, is like an ordinary deed, written by another than the granter, but without witnesses; or, to draw our similes from more familiar objects, it is like a trump without a tongue, or a watch without a main-spring; with this material difference, favourable to our side of the question, that while iron and steel can effectually supply the defects in these respective articles, the

Entail, after being fairly filled up and recorded, if wrong, is altogether irreparable, and resembles more a broken rummer glass, which, when it tumbles to the ground, is smashed to pieces, and is at an end for ever. If wrong, by wanting those clauses, which could alone make it of any value, it is of no more avail than so much waste paper, which may be judiciously employed in singeing fowls, or in lighting candles; and with reference to the present case, we contend, that all that was done in making that deed was no more than a bun dle of blunders, and of no importance whatever.

But, say the other party, "what we canna get in meal, we may get in maut: though there are no such irritant and resolutive clauses in Mr Stewart's deed, as to have made an Entail of Ascog, there is a prohibiting one: we shall endeavour to ride safely through on it; and though the estate has not been detained, yet we shall hold that the price has been so; and by means of an action, we shall get a kind of Entail of that price, to have it to go to us as the estate itself would have done, had it not been sold." But this won't do: it is a drowning man grasping at a twig; and it is evident that these heirs of tailzie, as they call themselves, must either "mak' a spoon or spoil a horn;" for while, on the one hand, it is clear that the will of the granter of a deed is that alone which can give it effect, we have demonstrated, in the distinctest manner, on the other, that Mr Stewart had not the smallest intention of any Entail of money. The whole tenor of the deed shows that he had no design of the kind; and there is no vestige of direction for any succession to the price or value of the estate, should the land, by any swirl of the law, slip through the fingers of the heir of the investiture, which there would have been, had Mr Stewart intended it, and contemplated the event which has actually happened, of the estate being sold. As to the prohibitory clause, it perhaps might have some effect, did it stand alone, for it might then in itself have a unique meaning, but it can have none in this case. When you sce a small open boat,

you look at what is complete; but not so when you observe the hull of a ship, on which po decks have ever been placed, and where no masts have been erected; and where, if neither decks nor masts can be added, the hull is useless. The illustration seems apt. Had there been nothing further intended than a prohibitory clause, if it marked what the granter of the deed intended, it might have been, like the boat, of some use. But it is clear that something more than a prohibition was intended in the writing of Mr Stewart; that that prohibition was meant merely to lead the way to more important clauses; and these not having been added, the prohibition is of no avail. As the hull of the ship, which was never to be finished, was no better than so much waste wood, so, the prohibition, without the Entail having been completed, by irritant and resolutive clauses applied to selling, was, in sound interpretation, of no more value than so much waste paper. The prohibition was, in reality, altogether subordinate to the irritant and resolutive clauses: it was a mere stage on the road, a step to something farther; unless, for the necessity, in point of language, of forbidding or prohibiting to be done, that of which the doing was to render null the act done, and forfeit the doer's right, the prohibition would never so much as have had an existence at all; and the greater clauses being, as to the selling of the estate, totally useless, the prohibition must be held, pro non scripto, on the maxims of accessorium sequitur principale ; major includit minimum; and that the servant must follow his master. It seems, therefore, evident, that the prohibitory clause in this bungled deed can be of no use whatever, and that no such effect, as the other party contends for, can follow from it. But one view still remains to be given, and it seems a very important one. What was the origin of irritant and resolutive clauses, as already explained?-Did they not take their rise from the strong and supereminent nature of the right of property-from this principle, that the right of ownership must be actually withdrawn from an owner or proprietor at the instant of his doing a prohibited act,

to give effect to the prohibition? The stool, in short, must be knocked from under him, and if it is not so, what he does stands good. But this Entail of Ascog was deficient in such clauses as could knock away the stool; the heir, notwithstanding them, still remained proprietor, and the question presents itself, What was the consequence of this? In answer, we say, that the right of property in an estate includes not only the power of parting with it, but also that of the free disposal of the price of it; and if a right does not include both, it is not a right of property; but Ascog, it is admitted, remained proprietor, and his heir, therefore, having put away the estate, has a title to dispose of the price of it in what manner he chuses. There is, in truth, something anomalous in the other party's plea : it seems, at once, to blow hot and cold, and in one breath to say, both that the heir is proprietor, and that he is not proprietor, which is quite inadmissible; and as he is acknowleged to be proprietor in the one respect of selling the lands of Ascog, he must be held to retain also the counterpart of the right in having the power of using their price. It seems to be improper to make any distinction between the effect of his sale, so far as regards the public, and its consequences to the heirs of Entail. If the right of property authorizes a valid sale to the purchaser, the same strong right puts the price of the estate in the seller's pocket, for his own purposes.

If there is a shadow of an argument on the other side at all, it seems to be in an attempt at an equitable plea, in saying, that though the irritant and resolutive clauses are defective, there is in the writing a prohibition to sell, which is not defective, and which ought to be given substantial effect to, by having the price of the lands vested to the same heirs as in the former destination. There seems, however, to be no equity whatever here. Equity consists in steping over strict law, and giving effect to certain intention, though a determination, on rigid legal principles, would not do so. But the other party cannot say that there was any intention in the part of Mr Stewart to make a destination and tailzie of

money such as they now contend for. But farther, we urge, that in matters of such writings the rules of equity are inapplicable. If a landed proprietor has signed his settlement of his estate written by another person, but with an imperfect testing clause to it, would it support the writing, to found on the granter's intention to favour the persons named, or to say that esto the estate should go away, the heir at law selling it must hand over the price to the persons intended to have been favoured by the blundered settlement? No support would arise in that way; and as little will accrue in the present instance from the similar argument. Proper irritant and resolutive clauses were as necessary in the one case as a testing clause was in the other; and if the supposed will of the granter of the intended settlement could not produce in the grantee a good claim to the price of the estate, the prohibitory clause in the other writing can have as little effect.

But on the part of the heirs, it has been sometimes imagined, that an argument might be drawn in their favour from the old doctrine, that entails are stricti juris; or, in other words, that without much attention to the design of the entailer, the words of the writing must be obeyed, and a strong effect be here given to the prohibitory clause. But it is clear that this kind of doctrine ought to be unavailing here, where the terms of the Entail do not say a word about investing money. The truth is, that Entail Law as, now explained by the present most able Lord Chancellor, has direct reference to the intention of the entailer, and the doctrine of stricti juris has been moulded accordingly, so as to exclude the application of it wherever it evidently runs counter to the will of the granter of the deed. Thus the great Roxburgh estates would have been long ago put away, on the ground of stricti juris, by means of feu rights, because that species of grants were permitted in the entail of these estates; and very long leases would have broken many a good tailzie, but for the justice of that great Judge, who would not al low the entailer's intention to be defeated in such manner, and by too

close an application of that antiquated regulation. Now, to apply this: suppose that the rule of stricti juris was much more applicable than it is here, the law would not allow the use of it to convert an imperfect Entail of land into as imperfect an Entail of money, contrary to any design on the part of the Entailer. We have said that the Entail of the money would be as imperfect as that of the land; for, as the proprietor had power to dispone away the land, so, were the money vested, the holder of the document of its security would evidently be entitled to uplift it, and it must ever and anon be invested and reinvested through all generations; a species of property being thus created of the most anomalous nature, and which, until of late, never entered even into the imagination of anybody.

But, Sir, here the debate must end; and taking in imagination my seat on the bench, I shall now proceed to deliver my

OPINION ON THE CASE.

This, my Lords, is a question of the greatest importance. The whole Judges, before the division of the Court, tried the same point of law in the case of Westshiel, and decided for the reinvesting by the narrowest majority. The case was appealed, and our acute and enlightened Lord Chancellor expressed the greatest doubts of the soundness of the judgement, mentioning, that "in England, where there is a legal power to sell, the most convenient doctrine is to hold that the voluntary settlement should neither bind the pur chaser nor the price. His Lordship remitted that cause to the Court of Session for further consideration, but, from particular circumstances, it was not proceeded in, and the solemn discussion of the subject lay over till it has been taken up in this case of Ascog. Now, my Lords, on the maturest deliberation, I am of opinion, that the irritant and resolutive clauses of this entail of Ascog having been found ineffectual to secure the estate itself to the heir of tailzie, that tailzie must be considered as totally at an end for any purpose of restriction whatever, and the follow ing are my reasons:

1mo., It was an Entail of lands,

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3tio., Whatever effect might in any case be given to a prohibitory clause, used alone, none can be given to it, where it has, as in this instance, been evidently inserted for the sole purpose of introducing irritant and resolutive clauses, and where these, as in this particular case, have been found altogether inadequate to their object.

4to., The right of property of the heir in possession was preserved to him by the defects in the irritant and resolutive clauses, and if his right of property was so preserved, he, in consequence of it, retained the power of disposal of the price of the subject.

HISTORICAL FRAGMENTS OF SCHILLER.

No I.-Continued.
The Siege of Antwerp.

THE certainty of their danger now awakened the activity of the confederates, and it was no fault of theirs, if the first part of the Prince's vow was not fulfilled. He had long beheld with anxiety the preparations which had been made in Zealand for the relief of the town. He saw clear ly that it was from that quarter that he had most to apprehend, and that, with all his works, he would scarcely be able to make head against the united power of the fleets of Zealand and Antwerp, if theyshould attack him at the same time, and at the proper moment. For a time, the delays of the Admiral of Zealand, which he had laboured by every means in his power to prolong, had been his security; but now the pressing necessity of relief expedited their preparations; and, without waiting for the Admiral, the States dispatched Count Justin Von Nassau, with as many vessels as they could collect, to the assistance of the besieged. This fleet anchored before Fort Liefkenshoek, which was in possession of the enemy; and, supported by some ships from the opposite Fort of Lillo, battered it so successfully, that the walls were shortly overthrown, and the fort taken by storm. The Walloons, who formed the garrison, displayed little of that firmness which might have been expected from the soldiers of the Prince of Parma: they shamefully aban

Scorus.

doned the fortress to the enemy, who were soon in possession of the whole Island of Doel, with the forts and batteries it contained. The loss of these places (which, however, were soon retaken,) affected the Prince of Parma so deeply, that he tried the officers by a Court Martial, and the more guilty among them were beheaded. In the meantime, this bold acquisition opened to the Zealanders a free passage to the bridge; and after concerting with the inhabitants of Antwerp, the period for attempting a decisive attack upon the bridge was fixed. It was determined, that while the Antwerpers should endeayour to blow up the bridge, by machines which they had already prepared, the Zealand fleet, with a sufcient stock of provisions, should be at hand, and ready to sail towards the town, through the opening made by the explosion; for, while the Prince of Parma was engaged in the erection of his bridge, an engineer, within the walls of Antwerp, was already preparing materials for its destruction. Frederick Gianbelli was the name of the man whom Fate had destined to be the Archimedes of the city, and to exert in its defence the same ingenuity, with the same want of success. He was born in Mantua, and had visited Madrid, for the purpose, as was reported, of offering his services

to Philip in the war of the Nether lands. But, wearied with expectation, the offended artist left the Count, with the determination of convincing the Spanish monarch, in the most effectual manner, of the value of those services which he had so little known how to estimate. He had recourse to Elizabeth, Queen of England, the declared enemy of Spain, who, after witnessing some proofs of his art, dispatched him to Antwerp. In this city he took up his abode, and in the present extremity devoted to its defence all his skill, his energy, and his zeal.

As soon as he learned that the project of erecting the bridge was seriously contemplated, and that the work was approaching its completion, he requested of the Magistrates two large vessels, from one hundred and fifty to five hundred tons burden, in which he proposed to lay mines. He also demanded fifty boats, which, being fastened together with chains and cables, and armed with axes, might be put in motion with the ebbing of the tide; and, in order to complete the destruction which the fire-ships had begun, might be directed in a wedgelike form against the bridge. But he had to deal with men who were completely incapable of comprehending an idea of an extraordinary nature, and who, even where the safety of their country was at stake, could never forget the calculating habits of commerce. His plan was found too expensive, and it was with difficulty, at last, that two smaller vessels, of seventy or eighty tons, and a quantity of boats, were allow ed him.

With these two vessels, one of which he called the Fortune, the other the Hope, he proceeded thus:He erected within the hold a hollow chamber of free-stone, five feet in breadth, four and a half in height, and forty in length. This chamber was filled with sixty hundred weight of the finest gunpowder of his own invention, and covered with large slabs and millstones, as heavily as the vessel would bear. Above these was erected a building of similar stones, which converged towards a point, and rose six feet above the deck of

VOL. XVIII.

the vessel. The building was filled with iron chains and hatchets, metal and stone bullets, nails, knives, and other instruments of destruction; while the other parts of the vessels, which were not occupied by the powder chamber, were also filled with stones, and the whole covered with planks. Several openings were left in the chamber, for the admission of the trains by which it was to be kindled. A piece of machinery was also placed in the chambers, which, after a certain period, struck out sparks, so as to explode the vessels, supposing the trains to give way. To mislead the enemy into the belief that these machines were intended only to set the bridge on fire, a firework was fixed upon the top, formed of sulphur and pitch, and constructed so as to burn for an hour. Still farther, to distract the attention of the enemy from the real seat of danger, he prepared thirtytwo schuyts, (or small flat-bottomed boats,) containing merely fireworks, and constructed with no other intention than that of deceiving the enemy. These fire-ships were to be despatched towards the bridge in four separate squadrons, at the distance of half-an-hour from each other, and to keep the enemy engaged for two whole hours; so that, exhausted by firing and fruitless expectation, they might be induced to relax their vigilance, when the real fire-ships ar rived. He prepared also some other ships, in which powder was concealed, to destroy the floating-work before the bridge, and to make way for the larger vessels. By this skirmish of the outposts, he hoped to engage the enemy's attention in that direction,-to allure them forward, and thus to expose them to the full and deadly operation of his mines.

The night betwixt the fourth and fifth of April was fixed on for the execution of this great undertaking. Some dark rumours of the intended attempt had spread through the Spanish camp, particularly after several divers from Antwerp had been discovered endeavouring to cut the cables of the vessels. A serious attack, therefore, was expected: they were mistaken only as to its nature, expecting to combat with men, ra4 Ꭰ

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