« AnteriorContinuar »
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 poffeffion. 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 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 fignify nothing: for words without meaning or intention have no force or effect in juftice, 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 afsistance 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, unlefs he could shew, that the law intended to interpose its fupreme 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 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 juftice, 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,
CH A P. V.
P R O MIS E s.
1. 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 well-being, or the existence, indeed, of human fociety.
Men act from expectation. Expectation is in most cases determined by the assurances and engagements which we receive from others. If no dependance could be placed upon these as