The real foundation of our right is THE LAW OF

THE LAND.

It is the intention of God, that the produce of the arth be applied to the use of man; this intention cannot be fulfilled without eftablifhing property; it is confiftent therefore with his will, that property be eftablished. The land cannot be divided into feparate property, without leaving it to the law of the country to regulate that divifion; it is confiftent therefore with the fame will, that the law fhould regulate the divifion; and confequently, "confiftent with the "will of God," or "right," that I fhould poffefs that share which thefe regulations affign me.

By whatever circuitous train of reafoning you at tempt to derive this right, it muft terminate at laft in the will of God: the ftraighteft therefore, and shortest way of arriving at this will, is the best.

Hence it appears, that my right to an eftate does not at all depend upon the manner or juftice of the original acquifition; nor upon the juftice of each fubfequent change of poffeffion. It is not, for inftance, the lefs, nor ought it to be impeached, because the eftate was taken poffeffion of at firft by a family of aboriginal Britons, who happened to be stronger than their neighbours; nor because the British poffeffor was turned out by a Roman, or the Roman by a Saxon invader; nor because it was feized, without colour of right or reafon, 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 fide of a brook, an eftate defcends to the eldest fon; on the other fide, to all the children alike. The right of the claimants under both laws of inheritance is equal; though the expediency of fuch oppofite rules muft neceffarily be different.

The principles we have laid down upon this fubject apparently tend to a conclufion of which a bad ufe is

apt

apt to be made. As the right of property depends upon the law of the land, it feems 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 cafes will authorize the moft flagitious chicanery. If a creditor upon a fimple contract neglect to demand his debt for fix years, the debtor may refuse to pay it would it be right therefore to do fo, where he is conscious of the juftice of the debt? If a person, who is under twenty-one years of age, contract a bargain (other than for neceffaries), he may avoid it by pleading his minority: but would this be a fair plea, where the bargain was originally juft ?-The diftinction to be taken in fuch cafes is this. With the law, we acknowledge, refides the difpofal of property: fo long therefore as we keep within the defign and intention of a law, that law will juftify us, as well in foro confcientia, as in foro humano, whatever be the equity or expediency of the law itfelf. But when we convert to our purpose, a rule or expreffion of law, which is intended for another purpofe; then, we plead in our juftification, not the intention of the law, but the words; that is, we plead a dead letter, which can fignify nothing for words without meaning or intention have no force or effeci in juftice, much less words taken contrary to the meaning and intention of the speaker or writer. To apply this diftinction to the examples juft now propofed in order to prote&t men against antiquated demands, from which it is not probable they fhould have preferved the evidence of their discharge, the law prefcribes a limited time to certain fpecies of private fecurities, beyond which, it will not enforce them, or lend its affiance to the recovery of the debt. If a man be ignorant, or dubious of the juftice of the demand made upon him,'he may confcientioufly plead this limitation; becaule he applies the rule of the law to the purpofe for which it was intended. But when he refufes to pay a debt, of the reality of which he is confcious, he cannot, before, plead the intention of the ftatute, and the

as

fupreme

Supreme authority of law, unlefs he could fhew, that the law intended to interpofe its fupreme authority, to acquit men of debts, of the exiftence and juftice of which they were themselves fenfible. Again, to preferve youth from the practices and impofitions, to which their inexperience expofes them, the law compels the payment of no debts incurred within a certain age, nor the performance of any engagements, except for fuch neceffaries as are fuited to their condition and fortunes. If a young perfon therefore perceive that he has been practifed or impofed upon, he may honeftly avail himself of the privilege of his nonage to defeat the circumvention. But, if he fhelter himself under this privilege, to avoid a fair obligation, or an equitable contract, he extends the privilege to a cafe, in which it is not allowed by intention of law, and in which confequently it does not, in natural justice, exist.

As property is the principal fubject of Juftice, or "of the determinate relative duties," we have put down what we had to fay upon it in the firft place: we now proceed to ftate thefe duties in the best order

we can.

CHAP.

CHAP. V.

PROMISE 3,

1. FROM whence the obligation to perform promifes II. In what fenfe promifes are to be interpreted. III. In what cafe promifes are not binding.

I. From whence the obligation to perform promises arifes.

They who argue from innate moral principles, fuppose a sense of the obligation of promifes to be one of them; but without affuming this, or any thing elfe, without proof, the obligation to perform pro mifes may be deduced from the neceffity of fuch a conduct, to the well being, or the existence, indeed, of human fociety.

Men act from expectation. Expectation is in most cafes determined by the affurances and engagements which we receive from others. If no dependance could be placed upon thefe affurances, it would be impoffible 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 effential to the intercourfe of human life; because, without it, the greatest part of our conduct would proceed upon chance. But there could be no confi dence in promises, if men were not obliged to perform them the obligation therefore to perform promises is effential, to the fame end, and in the fame degree.

1

Some may imagine, that, if this obligation were fufpended, a general caution and mutual diftruft would enfue, which might do as well; but this is

imagined,

imagined, without confidering, how every hour of our lives we truft to, and depend upon others; and how impoffible it is, to ftir a step, or, what is worse, to fit ftill a moment, without such truft and dependance. I am now writing at my eafe, not doubting (or rather never diftrufting, and therefore never thinking about it) but that the butcher will fead in the joint of meat, which I ordered; that his fervant will bring it; that my cook will drefs it; that my footman will ferve it up; and that I fhall find it upon table at one o'clock. Yet have I nothing for all this, but the promife of the butcher, and the implied promife of his fervant and mine. And the fame holds of the most important, as well as the moft familiar occurrences of focial life. In the one the intervention of promifes is formal, and is feen and acknowledged; our inftance, therefore, is intended to fhow it in the other, where it is not fo diftin&tly obferved.

II. In what fenje promijès are to be interpreted.

Where the terms of a promife admit of more fenfes than one, the promile is to be performed" in that fenfe in which the promifer apprehended at "the time that the promifce received it.”

It is not the fenfe in which the promifer actually intended it, that always governs the interpretation of an equivocal promife; becaufe, at that rate, you might excite expectations, which you never meant, nor would be obliged, to fatisfy. Much lefs is it the fenfe, in which the promifée actually received the promife; for according to that rule, you might be drawn into engagements which you never defigned to undertake. It must therefore be the fenfe (for there is no other remaining) in which the promifer believed that the promifee accepted his promife.

This will not differ from the actual intention of the promifer, where the promife is given without collation or referve; but we put the rule in the above form, to exclude evafion in cafes in which

the