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 succes→ sive transmission of them since; for, if one link in the chain fail, every tittle 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.

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 turned 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 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 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 and intention of the speaker or writer. To apply this distinction to the exam

* Next to personal security and liberty, the third absoInte right in every Englishman is that of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. The original of private property is probably founded in nature, but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; and are some of those civil advantages, in cxchange for which every individual has resigned a part of his natural liberty. The laws of England, therefore, are,

in point of honour and justice, extremely watchful in ascertaining and protecting this right. Upon this principle our great charter has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his equals, or by the laws of the land. By a variety of ancient statutes it is enacted, that no man's lands or goods shall be seised into the king's hands, against the great charter, and the laws of the land; and that no man shall be put out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law.-Blackstone's Comment. i, 138.-ED.

ples 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 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 promises 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 wellbeing, 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; 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 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 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 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 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. you choose therefore to make known your present intention, and yet 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.

If

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 these cases are not obliged to perform what the promise requires, because they wer. under a prior obligation to the contrary. From which prior obligation what is there to discharge them? Their promise,-their own act and deed. But an obligation, from which a man can discharge himself by his own act, is no obligation at all. The guilt therefore of such promises lies in the making, not in the breaking of them; and if, in the interval betwixt the promise and the performance, a man so far recover his reflection, as to repent of his engagements, he ought certainly to break through them.

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 afterward 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 any 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.

In like manner, a promise does not lose its obligation merely because it proceeded from an unlawful motive. A certain person, in the life-time of his wife, who was then sick, had paid his addresses, and promised marriage, to another woman;-the wife died; and the woman demanded performance of the promise. The man, who, it seems, had changed his mind, either felt or pretended doubts concerning the obligation of such a promise, and referred his case to Bishop Sanderson, 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.

A promise cannot be deemed unlawful, where it produces, when performed, no effect, beyond what would have taken place had the promise never been made. And this is the single case, in which the obligation of a promise will justify a conduct, which, unless it had been promised, would be unjust. A captive may lawfully recover his liberty, by a promise of neutrality; for his conqueror takes nothing by the promise, which he might not have secured by his death or confinement; 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 farther than to passive compliances; 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 promisee, 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.

5. Promises are not binding which are released by the promisee.

This is evident but it may be sometimes doubted who the promisee is. If I give a promise to A, of a place or vote for B; as to a father for his son; to an uncle for his nephew ; to a friend 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 B that he shall have this place, or may depend upon my.