263
As the latitude of that statute, of 31 years’ lease, is never al-most embraced by Scots tenantry, for the reasons already assign-ed, the only relief as to the power,of leasing, is the granting tothe possessing heir the power of letting leases (without imposi-tion of any conditions on the tenant) for 14 years and one life,or for 19 years,,—held, it would seem, as equivalent durations;—a period by much too short to admit of a proper recompense tothe tenant, for any considerable improvement, of expensive out-lay and distant return; a description of character applicable toall the most important parts of agricultural improvement, -j-The statute, indeed, confirms every latitude already existingin entails; although they should contain, either expressly or byimplication, powers of leasing more ample than what are givenby this statute itself. But here, too, the genius of the Scots law,at least as of old understood, militates against that length oflease which would be necessary to give the tenant interest in im-provements of expense and permanency, by the short enduranceof lease, which, in construction, it confounds with that alien a-iion which the entail prohibits. If the entail, then, is entirely si-lent as to length of leases, the question comes to be, What lengthof lease, in legal construction is to be held equivalent to aliena-tion? Whether, like our old law writers, (who seem to haveknown nothing at all, as to what was necessary to excite a spiritof improvement), we shall hold a ten years lease as a quasi alie-nation, or extend the period to 99 years, ‘when, according to dieaccountants, an annuity comes to be of equal value with a perpe-tuity ? J Or, whether we shall fix on some intermediate period ?Or, if so, by what rule it shall be fixed ? Or, if the entail, whilst11 debars alienation, shall positively grant a latitude of leasing,t0 a greater extent than what shall fall under the denomination°f quasi alienation, (supposing that point to be settled), whetherdie clause debarring alienation shall be enlarged in its interpreta-tion, to correspond with the given latitude of leasing; or the givenlatitude of leasing be curtailed within the period which is legal-ly constructed into alienation ?
fheyas delectus personae, in regard to his tenant, supposed intile eye of Scots law a necessarily inherent right in the landlord,tends, equally as the policy of entail, to damp in the tenant thespirit of liberal improvement, by depriving him of the proper se-curity he should possess, of reaping the fruits of his industry.
Though intended for purposes extremely different, the holding
t In Trance, 27 years leases were supported by law; though there, as climatedoes so much, there is no such urgent need of stimulating industry by superiorkngth of lease.
t These are debateable points; in regard to -which, it is to be hoped, a ge-"cral decision will be given, in the cause at issue between the Earl of tVemyssnod tlie unants on Nidpath, and executors of the Duke of Queeusberry.