on those who observed them. The right of gleaning is given by the same law as well to the "stranger" as the "fatherless and poor." We have already infringed it, as we have decided that the stranger has no right to glean in the case of Worlledge v. Manning.
The law of Moses is not obligatory on us. It is indeed agreeable to Christian charity and common humanity, that the rich should provide for the impotent poor; but the mode of such provision must be of positive institution. We have established a nobler fund. We have pledged all the landed property of the kingdom for the maintenance of the poor, who have in some instances exhausted the source.
The inconvenience arising from this custom being considered as a right by the poor, would be infinite; and in doubtful cases, arguments from inconvenience are of great weight. It would open a door to fraud, because the labourers would be tempted to scatter the corn in order to make a better gleaning for their wives, children and neighbours. It would encourage endless disputes between the occupiers of land and the gleaner. It would raise the insolence of the poor, and leave the farmer without redress. Experience shews that during the time of harvest, the poor employ their time in gleaning, to the great detriment of husbandry. In many places the farmer ploughs the land while the shocks of corn are upon the ground. Is the cultivation of the country to stand still while the labourers are gleaning?
Is has been alleged as a reason for this claim, that the poor ought to have a share of benefit, at the time of general rejoicing. To this it may be answered, that they receive from the advanced price of labour, a recompense in proportion to their industry. [62] But to sanction this usage, would introduce fraud and rapine, and entail a curse on the country.
To conclude, as there is no evidence of this custom of gleaning prevailing uniformly throughout the kingdom, as the practice of it is uncertain and precarious, and as it would be attended with great public inconvenience, if it were enforced as a right, I am of opinion, that it is not part of the general law of the land; that the plea is therefore bad, and judgment must be given for the plaintiff.
Wilson, J.—I am of the same opinion with my Lord Chief Justice, and my brother Heath, on the question now before the Court.
No right can exist at common law, unless both the subject of it, and they who claim it, are certain, In this case both are uncertain. The subject is the scattered corn which the farmer chooses to leave on the ground, the quantity depends entirely on his pleasure. The soil is his, the culture is his, the seed bis, and in natural justice his also are the profits. Though bis conscience may direct him to leave something for the poor, the law does not oblige him to leave any thing. The subject then is uncertain and precarious.
Next, the persons claiming this right, are vague and undefined. The term poor is merely relative. Before the statute of the 43d of Eliz, there was no method of legally ascertaining who were of that description. Since that statute, justices and overseers are to determine what persons are of the number of poor, to whom also must be added the qualification of a settlement. It cannot be urged that the demurrer admits that the claimants are poor, because a demurrer admits nothing but what is well pleaded, and here the matter is ill pleaded on account of its uncertainty.
They who claim this right then, are equally uncertain and precarious.
The practice also of gleaning is itself uncertain and changeable. In some counties it is entirely excluded, in others partially admitted, and in others modified with every possible variety.
The law of Moses is not binding on us, except so far as we have thought proper to adopt it. There are many precepts of the Gospel which the law of England does not enforce as obligations. It is the duty of every man to “honour his father and mother,” but the law of England has no method to compel [63] such honour. Charity to the poor is also a Christian duty, but it must be voluntary, and cannot be compelled.
But if there be a right, there must also be a remedy if that right be infringed. Now if a rich man were to glean in a harvest field, to the exclusion of the poor, they could have no remedy. So if a farmer were to give permission to his brother, or friend of another parish, to glean his fields, the poor of his own parish could have no remedy in law, for what they might think a prior right.
Next, the authorities are to be considered. The passage cited from the Trials per
