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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 prornisee 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 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 afterwards change it. In the latier 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 afterwards recede from them without a breach of good faith. If you chuse 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 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.
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 strictly 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 were 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 shipload 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 daughterin-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 'perfecť 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.
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 mani. fest, however, that promises which come into the place of coercion, can extend no further than to passive compliances; for coercion itself could compel no more. Upon the same principle,