1803.] TJ. oughts on CofT/lruBlve Rejiriciions. "^ I 



TO THE CONDUCTOR OF THE FARMER'S MAGAZINE. 



Thoughts on ConJlruBlve Re/Iri^ions, Jo far as they nffccl the Tc' 

 nautry of Scotland, 



Sir, 



A qiieftion has lately been agitated In feveral counties of Scot- 

 land, whether conftrudlive reftriOions can be impofed upon the 

 tenantry, in confequence of ambiguous and undefined claufes 

 being contained in their leafes ; and various attempts have been 

 made by proprietors to regulate the mode of cropping in the laft 

 year of the tenant's poiTeffion, even when the leafe was altoge- 

 ther open in that refpe<51:. The pretence generally offered for 

 fuch interference is drawn from the general claufc engrolTed iu 

 all leafes, viz. the engagement to manage the land in a hulband- 

 man like manner, or words to that import. Upon this ground, 

 many tenants have had their proceedings interrupted by inter- 

 dicls from the judge ordinary of the bounds, which are eafily 

 obtained : a vexatious and expenfive procefs nccefTarily follows ; 

 and before matters can be judicially afcertained, the {it2i{ox\ for 

 executing the intended work is over, and of courfe much lofs 

 and Ikaith fuftained by the tenant. 



I believe that hardly one of thefe procefTes has been deter- 

 mined upon a fixed principle, and that fpecialities have generally 

 been laid hold of as the baiis upon which the decifion is given. 

 This feems to be a favourite rule with our Scottifh courts of 

 juftice, but is attended with bad confequenQe to the public. It 

 prevents people from knowing what is really the law of the 

 land, and hence " the glorious uncertainty of the law'' is a 

 fcanding toall amongft its practitioners. 



It appears to me, that no obligation can juflly be impofed up- 

 on the occupier of a farm, unlefs that he has exprefsiy confent- 

 ed to the performance of it in the inftrument or deed under 

 which he poficfTes the farm ; and that to impofe one burden 

 under the pretence of fecuring the performance of another, 

 is an arbitrary attempt to opprefs the occupier. The leafc 

 given by the owner to ihe occupier may be conlldered as the law 

 which the parties have made for themfelvcs, therefore no obli- 

 gation is incumbent upon the tenant except thofe enumerated 

 within the four corners of that inftrument. 



So far the generality of people are agreed ; but a line of dif- 



tindtion may perhaps now be drawn. It will be alleged, on the 



landlord's iide, that no more is demanded than what is contained 



'in the leafe. The tenant is bound to labour ard cuUivate his farm 



according 



