Page images

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, when 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 vote : or if A be employed to introduce B's request, and I answer in any terms which amount to a compliance with it: then B is the promisee.

Promises to one person, for the benefit of another, are not released by the death of the promisee: for his death neither makes the performance impracticable, nor implies any consent to release the promiser from it.

6. Erroneous promises are not binding in certain cases ; as,

1. Where the error proceeds from the mistake or misrepresentation of the promisee.

Because a promise evidently supposes the truth of the account, which the promisee relates in order to obtain it. A beggar solicits your charity, by a story of the most pitiable distress; you promise to relieve him, if he will call again :-In the interval you discover his story to be made up of lies; this discovery, no doubt, releases you from your promise. One who wants your service, describes the business or office for which he would engage you :-you promise to undertake it ;—when you come to enter upon it, you find the profits less, the labour more, or some material circumstance different from the account he gave you :In such case, you are not bound by your promise.

2. When the promise is understood by the promisee to proceed upon a certain supposition, or when the promiser apprehended it to be so understood, and that supposition turns out to be false; then the promise is not binding.

This intricate rule will be best explained by an example. A father receives an account from abroad, of the death of his only son ;-soon after which, he promises his fortune to his nephew. -The account turns out to be false.— The father, we say, is released from his promise : not merely because he never would have made it, had he known the truth of the case,—for that alone will not do ;- but because the nephew also himself understood the promise to proceed upon the supposition of his cousin's death: or, at least, his uncle thought he so understood it; and could not think otherwise. The promise proceeded upon this supposition in the promiser's own apprehension, and as he believed, in the apprehension of both parties; and this belief of his, is the precise circumstance which sets him free. The foundation of the rule is plainly this: a man is bound only to satisfy the expectation which he intended to excite; whatever condition, therefore, he intended to subject that expectation to, becomes an essential condition of the promise.

Errors, which come not within this description, do not annul the obligation of a promise. I promise a candidate my vote :presently another candidate appears, for whom I certainly would have reserved it, had I been acquainted with his design. Here therefore, as before, my promise proceeded from an error; and I never should have given such a promise, had I been aware of the truth of the case, as it has turned out.—But the promisee did not know this ;-he did not receive the promise subject to any such condition, or as proceeding from any such supposition:

-nor did. I at the time imagine he so received it. This error, therefore, of mine, must fall upon my own head, and the promise be observed notwithstanding. A father promises a certain fortune with his daughter, supposing himself to be worth so much

-his circumstances turn out, upon examination, worse than he was aware of. Here again the promise was erroneous, but, for the reason assigned in the last case, will nevertheless be obligatory.

The case of erroneous promises, is attended with some difficulty : for, to allow every mistake, or change of circumstances, to dissolve the obligation of a promise, would be to allow a latitude, which might evacuate the force of almost all promises : and, on the other hand, to gird the obligation so tight, as to make no allowances for manifest and fundamental errors, would, in many instances, be productive of great hardship and absurdity.

It has long been controverted amongst moralists, whether promises be binding, which are extorted by violence or fear. The obligation of all promises results, we have seen, from the necessity or the use of that confidence which mankind repose in them. The question, therefore, whether these promises are binding, will depend upon this: whether mankind, upon the whole, are benefited by the confidence placed on such promises ? A highwayman attacks you—and being disappointed of his booty, threatens or prepares to murder you ;-you promise, with many solemn asseverations, that if he will spare your life, he shall find a purse of money left for him, at a place appointed ;

-upon the faith of this promise, he forbears from further violence. Now, your life was saved by the confidence reposed in a promise extorted by fear; and the lives of many others may be saved by the same. This is a good consequence. On the other hand, confidence in promises like these, greatly facilitates the perpetration of robberies : they may be made the instruments of almost unlimited extortion. This is a bad consequence : and in

the question between the importance of these opposite consequences, resides the doubt concerning the obligations of such promises.

There are other cases which are plainer; as where a magistrate confines a disturber of the public peace in gaol, till he promises to behave better; or a prisoner of war promises, if set at liberty, to return within a certain time. These promises, say moralists, are binding, because the violence or duress is just; but, the truth is, because there is the same use of confidence in these promises, as of confidence in the promises of a person at perfect liberty.

Vows are promises to God. The obligation cannot be made out upon the same principle as that of other promises. The violation of them, nevertheless, implies a want of reverence to the Supreme Being; which is enough to make it sinful.

There appears no command or encouragement in the christian Scriptures to make vows; much less any authority to break through them when they are made. The few instances of vows which we read of in the New Testament, were religiously observed.

The rules we have laid down concerning promises, are applicable to vows. Thus Jephtha's vow, taken in the sense in which that transaction is commonly understood, was not binding; because the performance, in that contingency, became unlawful.

ANNOTATIONS. *The obligation to perform promises." There is an important distinction between two classes of promises (including promissory oaths) corresponding to that between Moral [natural] precepts and positive precepts: of which the one relates to what is commanded because it is a duty, and the other, to what is a duty because it is commanded. So also in promises, in some cases the party promises because he is bound; in the other he is bound because he has promised. In

1 Acts xviii. 18; xxi. 23.

the one case there is merely the acknowledgment of an obligation; in the other, the obligation is created. And much confusion of thought arises from not distinguishing these cases.

For instance, it is the custom for the King to be publicly and solemnly crowned some time after his accession. And part of the ceremony of a coronation consists in his taking an Oath to maintain the Constitution, and not make an ill use of his power. Now some have thought or professed to think that this oath is a great security to our rights. But this is a mistake. It is indeed very proper that the King should thus solemnly declare before his People his determination to govern faithfully, and that the oath should remind him of his duties. But it does not bind him to anything that he was not bound to before. He has all the rights, and powers, and duties of a King, before the coronation, as much as after it. And a conscientious, man considers the very act of accepting any office as amounting to a promise that he will faithfully fulfil its duties. He will do what is right, not on account of any professions made by him, but because it is right. And, moreover, the King may, if he pleases, defer his coronation from year to year, or even dispense with it altogether. But it would be most absurd to suppose that he would thus be left at liberty to act differently from what the oath requires.

It is important to guard against confounding together two different kinds of contract; those in which a man promises something that he was already bound to (as in the case of the coronation-oath), and those in which he is not bound till he has made the promise. In any contract, for instance, of buying and selling, the obligation arises out of the agreement made, and did not exist before. If you engage to supply a man with certain goods at such and such a price, and he agrees to pay that price, you are, then, both bound to stand to the bargain, though you were originally free to decline it. So also in the case of marriage, the husband and wife are bound to each other by the marriage itself, and were not bound before. The marriage vow does not remind them (like the coronation-oath) of a duty already existing, but creates the duty. But, on the other hand, the connexion, for instance, between parents and children, and the duties thence arising, do not depend on any engagement made by them. If a father should promise to take

« PreviousContinue »