12
of management, which the preparation of such a code would impose, would give to its provisions that character of generality and comprehensiveness in which our existing legislation on this subject is sadly deficient.
There can be little doubt, however, that the defects in the Scotch law respecting the cost of leases, and the cost of enforcing covenants, and the natural impediments to landlords undertaking improvements, arising from the small holdings and the mountainous nature of the country, are adequate causes to account for the non-extension to the Highlands of the Lowland system of farming. Of these causes, the two first, the cost of leases and the cost of law proceedings, can be in a great degree removed. If that were done, it could then be ascertained with certainty, whether the natural obstacles I have pointed out would prevent the landlords making the necessary permanent improvements. Should it turn out, as I believe it would, that such improvements can only be beneficially made by the occupiers, then there are only two kinds of tenure suited to such a mode of improvement. Either the tenants should have tenant-right clauses in their leases, or else they should be allowed to become, by purchase, the owners in fee of their holdings.
In the meantime, it is interesting to inquire why neither of these arrangements has as yet been tried in Scotland, even on a small scale. Why are there no tenant-right or improvement clauses in Scotch leases, and why are there no peasant-proprietors?
The absence of tenant-right clauses arises from the nature of the Scotch leasing powers; they are all framed on the one plan of securing the capital expended in those improvements only that repay within the period of the lease. Throughout the greater part of Scotland, the proprietors have consequently no power to grant such improvement leases, and hence their non-adoption arises from the limited nature of Scotch law respecting leasing power. That law which works so admirably in the Lowland districts is not comprehensive enough; it supposes only one system of estate management, and when, from legal or natural causes, that system is not adopted, or becomes impossible, the Scotch law entirely fails to provide a remedy. This difficulty arising from property being so settled that the proprietors cannot make tenant-right contracts, is as great in this country as in Scotland, and the recent suggestions for legislation on this subject, that have emanated from the authors I have already quoted, all contemplate giving the proprietors power to make such agreements.
Those who are opposed to the recognition of the tenant's claim for compensation for improvements, think it a very forcible argument to point out the difficulties of making any contract on the subject, and of estimating the value of such improvements.
