his labour with it; by which means the piece of ground becomes thenceforward his own, as you cannot take it from him without depriving him at the same time of something which is indisputably his. This is Mr. Locke's solution; and seems indeed a fair reason, where the value of the labour bears a considerable proportion to the value of the thing; or where the thing derives its chief use and value from the labour. Thus game and fish, though they be common whilst at large in the woods or water, instantly become the property of the person that catches them; because an animal, when caught, is much more valuable than when at liberty: and this increase of value, which is inseparable from, and makes a great part of, the whole value, is strictly the property of the fowler or fisherman, being the produce of his personal labour. For the same reason, wood or iron, manufactured into utensils, becomes the property of the manufacturer; because the value of the workmanship far exceeds that of the materials. And upon a similar principle, a parcel of unappropriated ground, which a man should pare, burn, plough, harrow, and sow, for the production of corn, would justly enough be thereby made his own. But this will hardly hold, in the manner it has been applied, of taking a ceremonious possession of a tract of land, as navigators do of new discovered islands, by erecting a standard, engraving an inscription, or publishing a proclamation to the birds and beasts; or of turning your cattle into a piece of ground, setting up a landmark, digging a ditch, or planting a hedge round it. Nor will even the clearing, manuring, and ploughing, of a field, give the first occupier a right to it in perpetuity, and after this cultivation and all effects of it are ceased. Another, and in my opinion a better, account of the first right of ownership, is the following; that, as God has provided these things for the use of all, he has of consequence given each leave to take of them what he wants: by virtue therefore of this leave, a man may appropriate what he stands in need of to his own use, without asking or waiting for, the consent of others; in like manner as, when an entertainment is provided for the freeholders of a county, each freeholder goes, and eats and drinks what he wants or chooses, without having or waiting for the consent of the other guests. But then this reason justifies property, as far as necessaries alone, or at the most, as far as a competent provision for our natural exigencies. For in the entertainment we speak of (allowing the comparison to hold in all points), although every particular freeholder may sit down and eat till he be satisfied, without any other leave than that of the master of the feast, or any other proof of that leave, than the general invitation, or the manifest design with which the entertainment is provided; yet you would hardly permit any one to fill his pockets or his wallet, or to carry away with him a quantity of provision to be hoarded up, or wasted, or given to his dogs, or stewed down into sauces, or converted into articles of superfluous luxury; especially, if, by so doing, he pinched the guests at the lower end of the table. These are the accounts that have been given of the matter by the best writers upon the subject; but, were these accounts perfectly un exceptionable, they would none of them, I fear, avail us in vindicating our present claims of property in land, unless it were more probable than it is, that our estates were actually acquired, at first, in some of the ways which these accounts suppose; and that a regular regard had been paid to justice, in every successive transmission of them since; for, if one link in the chain fail, every title posterior to it falls to the ground. The real foundation of our right is, THE LAW OF THE LAND. It is the intention of God, that the produce of the earth be applied to the use of man: this intention cannot be fulfilled without establishing property; it is consistent therefore with his will, that property be established. The land cannot be divided into separate property without leaving it to the law of the country to regulate that division; it is consistent therefore with the same will, that the law should regulate the division; and, consequently, "consistent with the will of God," right," that I should possess that share which these regulations assign me. By whatever circuitous train of reasoning you attempt to derive this right, it must terminate at last in the will of God; the straightest, therefore, and shortest way of arriving at this will, is the best. Hence it appears, that my right to an estate does not at all depend upon the manner or justice of the original acquisition; nor upon the justice of each subsequent change of possession. It is not, for instance, the less, nor ought it to be impeached, because the estate was taken possession of at first by a family of aboriginal Britons, who happened to be stronger than their neighbours; nor because the British possessor was túrned out by a Roman, or the Roman by a Saxon invader; nor because it was seized, without colour of right or reason, by a follower of the Norman adventurer; from whom, after many interruptions of fraud and violence, it has at length devolved to me. Nor does the owner's right depend upon the expediency of the law which gives it to him. On one side of a brook, an estate descends to the eldest son; on the other side, to all the children alike. The right of the claimaints under both laws of inheritance is equal; though the expediency of such opposite rules must necessarily be different. The principles we have laid down upon this subject, apparently tend to a conclusion of which a bad use is apt to be made. As the right of property depends upon the law of the land, it seems to follow that a man has a right to keep and take every thing which the law will allow him to keep and take; which in many cases will authorize the most flagitious chicanery. If a creditor upon a simple contract neglect to demand his debt for six years, the debtor may refuse to pay it would it be right therefore to do so, where he is conscious of the justness of the debt? If a person who is under twenty-one years of age, contract a bargain (other than for necessaries), he may avoidit by pleading his minority: but would this be a fair plea, where the bargain was originally just?-The distinction to be taken in such cases is this: With the law, we acknowledge, resides the disposal of property; so long, therefore, as we keep within the design and intention of a law, that law will justify us as well in foro conscientia, as in foro humano, whatever be the equity or expediency of the law itself. But when we convert to one purpose, a rule or expression of law, which is intended for another purpose, then we plead in our justification, not the intention of the law, but the words: that is, we plead a dead letter, which can signify nothing; for words without meaning or intention have no force or effect in justice; much less, words taken contrary to the meaning or intention of the speaker, or writer. To apply this distinction to the examples just now proposed;-In order to protect men against antiquated demands, from which it is not probable they should have preserved the evidence of their discharge, the law prescribes a limited time to certain species of private securities, beyond which it will not enforce them, or lend its assistance to the recovery of the debt. If a man be ignorant or dubious of the justice of the demand made upon him, he may conscientiously plead this limitation: because he applies the rule of law to the purpose for which it was intended. But when he refuses to pay a debt, of the reality of which he is conscious, he cannot, as before, plead the intention of the statute, and the supreme authority of law, unless he could shew, that the law intended to interpose its supreme authority, to acquit men of debts, of the existence and justice of which they were themselves sensible. Again, to preserve youth from. the practices and impositions to which their inexperience exposes them, the law compels the payment of no debts incurred within a certain age, nor the performance of any engagements, except for such necessaries as are suited to their condition and fortunes. If a young person therefore perceive that he has been practised or imposed upon, he may honestly avail himself of the privilege of his non-age, to defeat the circumvention. But, if he shelter him self under this privilege, to avoid a fair obligation, or an equitable contract, be extends the privilege to a case, in which it is not allowed by intention of law, and in which consequently it does not, in natural justice, exist. As property is the principal subject of justice or of "the determinate relative duties," we have put down what we had to say upon it in the first place; we now proceed to state these duties in the best order we can. CHAPTER V. Promises. I. From whence the obligation to perform promises arises. III. In what cases promises are not binding. 1. From whence the obligation to perform promises arises. They who argue from innate moral principles, suppose a sense of obligation of promises to be one of them; but without assuming this or any thing else, without proof, the obligation to perform promises may be deduced from the necessity of such a conduct to the well-being, or the existence indeed, of human society. If Men act from expectation. Expectation is in most cases determined by the assurances and engagements which we receive from others. no dependance could be placed upon these assurances, it would be impossible to know what judgment to form of many future events, or how to regulate our conduct with respect to them. Confidence therefore in promises, is essential to the intercourse of human life; because without it, the greatest part of our conduct would proceed upon chance. But there could be no confidence in promises, if men were not obliged to perform them; the obligation therefore to perform promises, is essential, to the same ends, and in the same degree. Some may imagine, that if this obligation were suspended, a general caution and mutual distrust would ensue, which might do as well; but this is imagined, without considering how, every hour of our lives, we trust to, and depend upon, others; and how impossible it is to stir a step, or, what is worse, to sit still a moment, without such trust and dependance. I am now writing at my ease, not doubting (or rather never distrusting, and therefore never thinking about it), that the butcher will send in the joint of meat which I ordered; that his servant will bring it; that my cook will dress it; that my footman will serve it up; and that I shall find it upon table at one o'clock. Yet have I nothing for all this, but the promise of the butcher, and the implied promise of his servant and mine. And the same holds of the most important as well as the most familiar occurrences of social life. In the one, the intervention of promises is formal, and is seen and acknowledged; our instance, therefore, is intended to shew it in the other, where it is not so distinctly observed. II. In what sense promises are to be interpeted. Where the terms of promises admit of more senses than one, the promise is to be performed" in that sense in which the promiser apprehended, at the time, that the promisee received it." - It is not the sense in which the promiser actually intended it, that always governs the interpretation of an equivocal promise; because, at that rate, you might excite expectations, which you never meant, nor would be obliged, to satisfy. Much less is it the sense in which the promisee actually received the promise; for, according to that rule, you might be drawn into engagements, which you never designed to undertake. It must therefore be the sense, (for there is no other remaining) in which the promiser believed that the promisee accepted his promise. This will not differ from the actual intention of the promiser, where the promise is given without collusion or reserve; but we put the rule in the above form, to exclude evasion in cases in which the popular meaning of a phrase, and the strict grammatical signification of the words, differ: or, in general, wherever the promiser attempts to make his escape through some ambiguity in the expressions which he used. Temures promised the garrison of Sebastia, that, if they would surrender, no blood should be shed. The garrison surrendered; and Temures buried them all alive. Now Temures fulfilled the promise in one sense, and in the sense too in which he intended it at the time; but not in the sense in which the garrison of Sebastia actually received it, nor in the sense in which Temures himself knew that the garrison received it: which last sense, according to our rule, was the sense in which he was in conscience bound to have performed it. From the account we have given of the obligation of promises, it is evident, that this obligation depends upon the expectations which we knowingly and voluntarily excite. Consequently, any action or conduct towards another, which we are sensible excites expectations in that other, is as much a promise, and creates as strict an obligation, as the most express assurances. Taking, for instance, a kinsman's child, and educating him for a liberal profession, or in a manner suit. able only for the heir of a large fortune, as much obliges us to place him in that profession, or to leave him such a fortune, as if we had given him a promise to do so under our hands and seals. In like manner, a great man, who encourages an indigent retainer; or a minister of state, who distinguishes and caresses at his levee one who is in a situation to be obliged by his patronage; engages, by such behaviour, to provide for him.-This is the foundation of tacit promises. You may either simply declare your present intention, or you may accompany your declaration with an engagement to abide by it, which constitutes a complete promise. In the first case, the duty is satisfied, if you were sincere at the time, that is, if you entertained at the time the intention you expressed, however soon, or for whatever reason, you afterward change it. In the latter case, you have parted with the liberty of changing. All this is plain: but it must be observed, that most of those forms of speech, which, strictly taken, amount to no more than declarations of present intention, do yet, in the usual way of understanding them, excite the expectation, and therefore carry with them the force of absolute promises. Such as, "I intend you this place"-" I design to leave you this estate"-“ I purpose giving you my vote"-"I mean to serve you." In which, although the "intention," the "design," the " purpose," the "meaning," be expressed in words of the present time, yet you cannot afterward recede from them without a breach of good faith. If you choose therefore to make known your present intention, and yet to reserve to yourself the liberty of changing it, you must guard your expressions by an additional clause, as "I intend at present""if I do not alter,”—or the like. And after all, as there can be no reason for communicating your intention, but to excite some degree of expectation or other, a wanton change of an intention which is once disclosed, always disappoints somebody; and is always, for that reason, wrong. There is, in some men, an infirmity with regard to promises, which often betrays them into great distress. From the confusion, or hesi❤ tation, or obscurity, with which they express themselves, especially when overawed or taken by surprise, they sometimes encourage expect→ ations, and bring upon themselves demands, which, possibly they never dreamed of. This is a want, not so much of integrity, as of presence of mind. III. In what cases promises are not binding. 1. Promises are not binding, where the performance is impos sible. |