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of lands in lease for agricultural purposes, has been forced, mostincongruously, into the analogy of a land benefice for militaryservice; and the law maxims applicable to the latter, have beenpreposterously applied to regulate the interpretation of the for-mer. It has fared better, however, with the military benefice,than with the tenure of the cultivator of the soil; for whilst theformer, from being held at will, came, through consuetudinarylaw, to be held for life, then as descendible to heirs, and at lastin full property, with complete right'of alienation, whether intervivos or mortis causa, the legal construction of lease stopt short,in its being made descendible, by succession, to heirs-at-law.Unless, then, when the lease is of length of endurance, exceed-ing so far the probability of the life of a person of age to enterinto a contract of lease, as to preclude the legal supposition thatthe proprietor preferred the tenant out of a predilection for hisperson, * the tenant can neither alienate it, nor dispose of it byhis latter-will, nor can it be compulsorily alienated from him tosatisfy his debts.
Nothing can be conceived more calculated, under many sup-posable circumstances, to discourage the Scots tenant from sink-ing capital upon the improvement of lands held in lease, thanthese absurd constructions of Scots law, which may virtuallyreduce his interest in his lease to the mere precarious tenure of aliferent; rendering him equally barren, as to improvement, as anheir of entail.
The constitution of the lease is matter of private legislation,as well as of legal construction; and as pactio tollit legem , thelanded proprietor has it in his power to emancipate the lease fromthese fetters of feudal barbarism, by expressly renouncing hi sjusdelectus persona, and giving the tenant full power to alienate ordispone his lease; and, considering the obvious expediency of sucha measure, it is not a little surprising, that, even at this day, in-stead of renouncing the legal construction, it should be very com-monly still farther cenfirmed, by express clauses excluding sub-tenants and assignees, legal or voluntary. The truth seems to bethis:—Professional lawyers are generally employed to draw upcontracts of lease; and, having their imaginations pre-occupiedby feudal ideas, suggested in the course of their Scots law stu-dies, they may have got into the habit of considering the jus de-lectus as an essential appendage of the landlord,—perhaps as re-
* By a very late decision of ottr Supreme Court, if the lease is only for en-durance of 19 years, the proprietor’s jus delectus is presumed to be retained.By other decisions, an endurance of 31 years makes the presumption, that itrenounced. Hie intermediate endurances are a debateable ground, for the re-gulation of future decisions. If the lease of the land is given by public roup,or, as is more common, by secret roup, in taking in sealed offers, qutsre , Whe-ther, according to the analogy of feudal law, this ought not legally to infer re*iijunciation of the jus delectus*