And upon a similar principle, a parcel of unap- By whatever circuitous train of reasoning you propriated ground, which a man should pare, burn, attempt to derive this right, it must terminate at plough, harrow, and sow, for the production of last in the will of God; the straightest there corn, would justly enough be thereby made his fore, and shortest way of arriving at this will, is own. But this will hardly hold, in the manner the best. it has been applied, of taking a ceremonious possession of a tract of land, as navigators do of newdiscovered islands, by erecting a standard, engraving an inscription, or publishing a proclamaon 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 exigences. 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 unexceptionable, 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," or, "right," that I should possess that share which these regulations assign me. 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 turned out by a Roman, or the Roman by a Saxon invader; nor because it was seized, without color 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 claimants 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 justice of the debt? If a person, who is under twenty-one years of age, contract a bargain (other than for necessaries,) he may avoid it 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 conscientiæ, 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 and inten tion 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 show, 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 nonage, to defeat the circumvention. But, if he shelter himself under this privilege, to avoid a fair obligation, or an equitable contract, he 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 pro mises arises. II. In what sense promises are to be interpreted. III. In what cases promises are not binding. I. From whence the obligation to perform promises arises. They who argue from innate moral principles, suppose a sense of the 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. Men act from expectation. Expectation is in most cases determined by the assurances and engagements which we receive from others. If no dependence 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 dependence. 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; that I shall find it upon table at one o'clock. Yet have 1 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 show it in the other, where it is not so distinctly observed. II. In what sense promises are to be interpreted. Where the terms of promise 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 in general, wherever the promiser attempts to grammatical signification of the words differ; or, 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 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 suitable 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 vou entertained at the time the intention you expressed, however soon, or for whatever these cases are not obliged to perform what the reason, you afterwards change it. In the latter promise requires, because they were under a prior case, you have parted with the liberty of changing. obligation to the contrary. From which prior All this is plain: but it must be observed, that obligation what is there to discharge them? Their most of those forms of speech, which, strictly taken, promise,-their own act and deed.--But an obliamount to no more than declarations of present gation, from which a man can discharge himself intention, do yet, in the usual way of understand-by his own act, is no obligation at all. The guilt ing them, excite the expectation, and therefore therefore of such promises lies in the making, not carry with them the force of absolute promises. in the breaking of them; and if, in the interval Such as, "I intend you this place"-"I design to betwixt the promise and the performance, a man leave you this estate"-"I purpose giving you my so far recover his reflection, as to repent of his vote"I mean to serve you."-In which, al- engagements, he ought certainly to break through though the "intention," the "design," the "" "pur-them. pose," the "meaning," be expressed in words of the present time, yet you cannot afterwards 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 aditional 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 hesitation, or obscurity, with which they express themselves, especially when overawed or taken by surprise, they sometimes encourage expectations, 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 impossible. But observe, that the promiser is guilty of a fraud, if he be secretly aware of the impossibility, at the time of making the promise. For, when any one promises a thing, he asserts his belief, at least, of the possibility of performing it; as no one can accept or understand a promise under any other supposition. Instances of this sort are the following: The minister promises a place, which he knows to be engaged, or not at his disposal:A father, in settling marriage-articles, promises to leave his daughter an estate, which he knows to be entailed upon the heir male of his family :-A merchant promises a ship, or share of a ship, which he is privately advised is lost at sea:-An incumbent promises to resign a living, being previously assured that his resignation will not be accepted by the bishop. The promiser, as in these cases, with knowledge of the impossibility, is justly answerable in an equivalent; but otherwise not. When the promiser himself occasions the impossibility, it is neither more nor less than a direct breach of the promise; as when a soldier maims, or a servant disables himself, to get rid of his engagements. 2. Promises are not binding, where the performance is unlawful. There are two cases of this: one, where the unlawfulness is known to the parties, at the time of making the promise; as where an assassin promises his employer to despatch his rival or his enemy: a servant to betray his master; a pimp to procure a mistress; or a friend to give his assistance in a scheme of seduction. The parties in The other case is, where the unlawfulness did not exist, or was not known, at the time of making the promise; as where a merchant promises his correspondent abroad, to send him a ship load of corn at a time appointed, and before the time arrive, an embargo is laid upon the exportation of corn:-A woman gives a promise of marriage; before the marriage, she discovers that her intended husband is too nearly related to her, or that he has a wife yet living. In all such cases, where the contrary does not appear, it must be presumed that the parties supposed what they promised to be lawful, and that the promise proceeded entirely upon this supposition. The lawfulness therefore becomes a condition of the promise; which condition failing, the obligation ceases. Of the same nature was Herod's promise to his daughter-in-law, "that he would give her whatever she asked, even to the half of his kingdom." The promise was not unlawful in the terms in which Herod delivered it; and when it became so by the daughter's choice, by her demanding "John the Baptist's head," Herod was discharged from the obligation of it, for the reason now laid down, as well as for that given in the last paragraph. This rule," that promises are void, where the performance is unlawful," extends also to imperfect obligations: for, the reason of the rule holds of all obligations. Thus, if you promise a man a place, or your vote, and he afterwards render himself unfit to receive either, you are absolved from the obligation of your promise; or, if a better candidate appear, and it be a case in which you are bound by oath, or otherwise, to govern yourself by the qualification, the promise must be broken through. And here I would recommend, to young persons especially, a caution, from the neglect of which many involve themselves in embarrassment and disgrace; and that is, "never to give a promise, which may interfere, in the event, with their duty;" for, if it do so interfere, their duty must be discharged, though at the expense of their promise, and not unusually of their good name. The specific performance of promises is reckoned a perfect obligation. And many casuists have laid down, in opposition to what has been here asserted, that, where a perfect and an imperfect obligation clash, the perfect obligation is to be preferred. For which opinion, however, there seems to be no reason, but what arises from the terms "perfect" and "imperfect," the impropriety of which has been remarked above. The truth is, of two contradictory obligations, that ought to prevail which is prior in point of time. It is the performance being unlawful, and not unlawfulness in the subject or motive of the promise, which destroys its validity: therefore a bribe, after the vote is given; the wages of prostitution; the reward of any crime, after the crime is committed; ought, if promised, to be paid. For the sin and mischief, by this supposition, are over; and will be neither more nor less for the performance of the promise. of mine, for a relation or friend of his; then A is the promisee, whose consent I must obtain, to be released from the engagement. If I promise a place or vote to B by A, that is, if A be a messenger to convey the promise, as if I should say, "You may tell В that he shall have this place, or may depend upon my vote;" or if A be employed to introduce B's request, and I answer in any terms which amount to a compliance with it: then B is the promisec. In like manner, a promise does not lose its obligation merely because it proceeded from an unlawful motive. A certain person, in the lifetime of his wife, who was then sick, had paid his addresses, and promised marriage, to another woman; the wife died; and the woman demanded Promises to one person, for the benefit of performance of the promise. The man, who, it another, are not released by the death of the proseems, had changed his mind, either felt or pre-misee; for, his death neither makes the perfortended doubts concerning the obligation of such a mance impracticable, nor implies any consent to promise, and referred his case to Bishop Sander-release the promiser from it. son, the most eminent, in this kind of knowledge, of his time. Bishop Sanderson, after writing a dissertation upon the question, adjudged the promise to be void. In which, however, upon our principles, he was wrong; for, however criminal the affection might be, which induced the promise, the performance, when it was demanded, was lawful; which is the only lawfulness required. 6. Erroneous promises are not binding in certain cases; as 1. Where the error proceeds from the mistake or misrepresentation of the promisee. Because a promise evidently supposes the truth of the account, which the promisee relates in order to obtain it. A beggar solicits your charity, by a story of the most pitiable distress; you promise to A promise cannot be deemed unlawful, where relieve him, if he will call again:-In the interval it produces, when performed, no effect, beyond you discover his story to be made up of lies;-this what would have taken place had the promise discovery, no doubt, releases you from your pronever been made. And this is the single case, in mise. One who wants your service, describes the which the obligation of a promise will justify a business or office for which he would engage you; conduct, which, unless it had been promised, you promise to undertake it;-when you come would be unjust. A captive may lawfully recover to enter upon it, you find the profits less, the his liberty, by a promise of neutrality; for his labour more, or some material circumstance difconqueror takes nothing by the promise, which he ferent from the account he gave you:-In such might not have secured by his death or confine- case, you are not bound by your promise. ment; and neutrality would be innocent in him, although criminal in another. It is manifest, however, that promises which come into the place of coercion, can extend no further than to passive compliance; for coercion itself could compel no more. Upon the same principle, promises of secrecy ought not to be violated, although the public would derive advantage from the discovery. Such promises contain no unlawfulness in them, to destroy their obligation: for, as the information would not have been imparted upon any other condition, the public lose nothing by the promise, which they would have gained without it. 3. Promises are not binding, where they contradict a former promise. Because the performance is then unlawful; which resolves this case into the last. 4. Promises are not binding before acceptance; that is, before notice given to the promisee; for, where the promise is beneficial, if notice be given, acceptance may be presumed. Until the promise be communicated to the promisce, it is the same only as a resolution in the mind of the promiser, which may be altered at pleasure. For no expectation has been excited, therefore none can be disappointed. But suppose I declare my intention to a third person, who, without any authority from me, conveys my declaration to the promisee; is that such a notice as will be binding upon me? It certainly is not: for I have not done that which constitutes the essence of a promise;-I have not voluntarily excited expectation. 2. When the promise is understood by the promisee to proceed upon a certain supposition, or when the promiser apprehended it to be so understood, and that supposition turns out to be false; then the promise is not binding. This intricate rule will be best explained by an example. A father receives an account from abroad, of the death of his only son;-soon after which, he promises his fortune to his nephew.The account turns out to be false.-The father, we say, is released from his promise; not merely because he never would have made it, had he known the truth of the case,-for that alone will not do;-but because the nephew also himself understood the promise to proceed upon the supposition of his cousin's death: or, at least his uncle thought he so understood it; and could not think otherwise. The promise proceeded upon this supposition in the promiser's own apprehension, and, as he believed, in the apprehension of both parties; and this belief of his, is the precise circumstance which sets him free. The foundation of the rule is plainly this: a man is bound only to satisfy the expectation which he intended to excite; whatever condition therefore he intended to subject that expectation to, becomes an essential condition of the promise. Errors, which come not within this description, do not annul the obligation of a promise. I pro mise a candidate my vote;-presently another candidate appears, for whom I certainly would have reserved it, had I been acquainted with his design. Here therefore, as before, my promise proceeded from an error; and I never should have given such a promise, had I been aware of the This is evident: but it may be sometimes truth of the case, as it has turned out.-But the doubted who the promisee is. If I give a promise promisee did not know this;-he did not receive to A, of a place or vote for B; as to a father for the promise, subject to any such condition, or as his son; to an uncle for his nephew; to a friend | proceeding from any such supposition; nor did 1 5. Promises are not binding which are released by the promisee. at the time imagine he so received it. This error, therefore, of mine, must fall upon my own head, and the promise be observed notwithstanding. A father promises a certain fortune with his daughter, supposing himself to be worth so much-his circumstances turn out, upon examination, worse than he was aware of. Here again the promise was erroneous, but, for the reason assigned in the last case, will nevertheless be obligatory. The case of erroneous promises, is attended with some difficulty: for, to allow every mistake, or change of circumstances, to dissolve the obligation of a promise, would be to allow a latitude, which might evacuate the force of almost all promises: and on the other hand, to gird the obligation so tight, as to make no allowances for manifest and fundamental errors, would, in many instances, be productive of great hardship and absurdity. It has long been controverted amongst moralists, whether promises be binding, which are extorted by violence or fear. The obligation of all promises results, we have seen, from the necessity or the use of that confidence which mankind repose in them. The question, therefore, whether these promises are binding, will depend upon this; whether mankind, upon the whole, are benefited by the confidence placed on such promises? A highwayman attacks you—and being disappointed of his booty, threatens or prepares to murder you; -you promise, with many solemn asseverations, that if he will spare your life, he shall find a purse of money left for him, at a place appointed;-upon the faith of this promise, he forbears from further violence. Now, your life was saved by the confidence reposed in a promise extorted by fear; and the lives of many others may be saved by the same. This is a good consequence. On the other hand, confidence in promises like these, greatly facilitates the perpetration of robberies: they may be made the instruments of almost unlimited extortion. This is a bad consequence: and in the question between the importance of these opposite consequences, resides the doubt concerning the obligations of such promises. There are other cases which are plainer; as where a magistrate confines a disturber of the public peace in jail, till he promise to behave better; or a prisoner of war promises, if set at liberty, to return within a certain time. These promises, say moralists, are binding, because the violence or duress is just; but, the truth is, because there is the same use of confidence in these promises, as of confidence in the promises of a person at perfect liberty. which we read of in the New Testament, were religiously observed. The rules we have laid down concerning promises, are applicable to vows. Thus Jephtha's vow, taken in the sense in which that transaction is commonly understood, was not binding; because the performance, in that contingency, became unlawful. CHAPTER VI. Contracts. A CONTRACT is a mutual promise. The obligation therefore of contracts, the sense in which they are to be interpreted, and the cases where they are not binding, will be the same as of promises. From the principle established in the last chapter, "that the obligation of promises is to be measured by the expectation which the promiser any how voluntarily and knowingly excites," results a rule, which governs the construction of all contracts, and is capable, from its simplicity, of being applied with great ease and certainty, viz. That Whatever is expected by one side, and known to be so expected by the other, is to be deemed a part or condition of the contract. The several kinds of contracts, and the order in which we propose to consider them, may be exhibited at one view, thus THE rule of justice, which wants with most anxiety to be inculcated in the making of bargains, is, that the seller is bound in conscience to disclose the faults of what he offers to sale. Amongst other methods of proving this, one may be the following: I suppose it will be allowed, that to advance a direct falsehood, in recommendation of our wares, by ascribing to them some quality which we know that they have not, is dishonest. Now compare with this the designed concealment of some fault, which we know that they have. The motives and the effects of actions are the only points of comparison, in which their moral quality can differ; but the motive in these two cases is the same, viz. to procure a higher price than we expect otherwise to obtain: the effect, that is, the prejudice to the buyer, is also the same; for he finds himself equally out of pocket by his bargain, whether the commodity, when he gets home with it, turn out worse than he had supposed, by the want of some quality which he expected, or the discovery of some fault which he did not expect. If therefore actions be the same, as to all moral purposes, which proceed from the same motives, |