1 800# On Subfettitig of Land. ^^ 



obfervations upon a queftion which I confider as materially 

 connefted with the profperity of agriculture in this and every 

 other country : namely, Whether tenants ought to be allow- 

 ed liberty of fubfetting their farms, where they have not a- 

 greed to denude themfelves of that liberty ? That they have 

 not fuch a right by common law, is a doftrine lately advanced, 

 and I believe partially confirmed by a few decifions of our Su- 

 preme Court ; but, taking the matter in the abllraiSt^, thefe 

 decifions, unfupported as they are by Statute law, cannot 

 have further weight againft the right, than merely what ought 

 to be attached to the colle£live voice of an equal number of 

 individuals of the fame knowledge and information. 



In the Agricultural Survey of an eaflern county, highly cele- 

 brated for fuperiority in rural fcience, the learned and refpedt- 

 able perfonage employed to draw up the work, fays, (p. 128. 

 of the quarto edition), " It is now an underftood principle at 

 common law, that, unlefs the tenant fliall llipulate this power, 

 and that there fhall be a fpecial covenant to that efFe61: in the 

 leafe, he can neither alTign not fubfet ; or, in other words, if 

 the leafe fliall be filent upon this point, the tenant lias no 

 fuch power : " and he afterwards adds, that " the principles 

 upon which this rule has been eftablifned, feem to me to be 

 grounded upon good fenfe and found policy.'' 



By the word noiVy in the hrft part of the quotation, it ap- 

 pears that this rule has been but lately eftablifhed, and that 

 the law of Scotland was formerly interpreted in a different 

 manner. But by whom has this alteration been introduced ? 

 Was it enabled by the Three Eftates in Parliament affembled ? 

 No : but by the will of perfons who are themfelves proprie- 

 tors of land, ?.nd who probably have imbibed old feudal pre- 

 judices, which prevent them from obferving that fuch a rule 

 (for we will not call it a law) contributes to fak the fpirit 

 of the tenantry, and to ftop the progrefs of agriculturai im- 

 provements. 



Mr Erikine, in his Inftitutes of the Law of Scotland, feems 

 t© entertain a different opinion upon this pfoint; and it is fur- 

 prifing that the Jurifdidion Adt, which aboiiihed the old feudal 

 rule, that a vaifai could not be received on aii eila^te wit-hout 

 the confent of the fuperior, did not alfo abolilli the feudal 

 claufes in leafes, prohibiting a fubfet of land, or, in other 

 words, do away the power retained by proprietors, to prevent 

 any perfon from potfefhnv land, whether thev had their ner- 

 mifl'ion or not ; which is exactly fimilar to the feu'diil rule, that 

 a vaffal could not be received without the confent of the fu- 

 perior. In this rcfpctt, the Ruffian boor is fuperior to the 

 Britiili farmer; for, according to the ingenious INIi; Tooke, it 

 is perfedtly indifferent to the ov.'ner 9f the ellat?, in ik\iz\ man- 



licr, 



