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that they had a just power of conferring a right to it upon whom they pleased, is to suppose the question resolved, and a partition of land to have already taken place.
Another says, that each man’s limbs and labour are his own exclusively ; that, by occupying a piece of ground, a man inseparably mixes 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 ; be- : cause 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 chuses, 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 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.
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 everything 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 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 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.
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
1 of the obligation of promises to be one of them ; but without assuming this, or anything 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; and that I shall find it upon the 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