22 ON THE HISTOKY OF LEASES OF LAlv'DS 



meliorations, deterioration and dilapidation, fixtures, &c., should 

 come within its domain, and by a fair and amicable adjustment 

 render litiij,ation unnecessary. In an ordinary reference arbiters 

 must be named to be legal, but where the reference is only a 

 clause of an agreement or deed involving other matters, it is safe 

 enough to leave the nomination of the arbiters to the time the 

 arbitration is to take place. 



Warning should l^e altogether dispensed with, and nothing but 

 a written agreement for a new term be sufficient answer to an 

 : ejectment at the end of the term. 



If the law of h}'potliec were abolished, it is the opinion of the 

 writer that the landlord would not have sufficient protection 

 from the Act of Sederunt. Irritancy through six months unpaid 

 rent after it became due, or failing to find security within the 

 same time, would be a fair substitute and could not adversely 

 affect third j)arties. 



The Tenure and Transfer of Zand. 



Having previously and at considerable length adverted to the 

 relations of landlord and tenant, it only remains to refer shortly 

 to the systems under which land is by the proprietor held and 

 transferred. The origin of the feudal sj'stem has been a matter 

 of dispute among the authorities. Some say that it is of Eoman 

 origin, and others — with whom the writer agrees — that it was 

 derived from the barbarians of Northern Europe. Considerable 

 strength is lent to the latter theory when it is noticed that the 

 only allodial property in Scotland is the Orkney and Shetland 

 islands, and derived from the Norwegians and Danes who settled 

 there in the nmth century^ Besides, there is nothing to justify a 

 supposition even, that the feudal system existed among the 

 Eomans previous to the irruption of the northern tribes. Among 

 them property was allodial, and no distmction made between real 

 and personal, movable and immovable property. But perhaps 

 the best way to dispose of the difficulty is to quote the beautiful 

 simile of Montesquieu in reference to the feudal system. He 

 compares it to a mighty oak, " whose tall head and majestic 

 boughs are alone seen in the distance; on approaching nearer, we 

 behold its mighty trunk ; but even then its roots remain invisible, 

 hidden in the bosom of the earth, and it is only by digging deep 

 into its dark recesses that the course and origin of these can be 

 discovered and explored." There is, however, no doubt but that 

 the feudal system obtained as strong a footing in Scotland as in 

 any other country in Europe, and while it perished as a social 

 institution with the abolition of military service in 1747, it still 

 exists as a powerful legal one, and to its abuses and defects refer- 

 ence will now be made. The feudal system gives a right of pro- 

 perty in the same subject to both superior and vassal. It may 



