the popular meaning of a phrafe, and the ftrict grammatical fignification of the words differ, or, in general, wherever the promiser attempts to make his escape through fome ambiguity in the expreffions which he used.

Temures promised the garrifon of Sebaftia, that, if they would furrender, no blood fhould be fhed. The garrison surrendered; and Temures buried them all alive. Now Temures fulfilled the promise, in one fenfe, and in the fenfe too in which he intended at the time; but not in the fenfe in which the garrifon of Sebaftiq actually received it, nor in the fenfe in which Temures himfelf knew that the garrifon received it; which laft fenfe, according to our rule, was the fenfe he was in confcience bound to have performed it in.

From the account we have given of the obligation of promifes, it is evident, that this obligation depends upon the expectations which we knowingly and voluntarily excite. Confequently, any action or conduct towards another, which we are fenfible excites expectations in that other, is as much a promife, and creates as ftrict an obligation, as the most exprefs affurances. Taking, for inftance, a kinfman's child, and educating him for a liberal profeffion, or in a manner fuitable only for the heir of a large fortune, as much obliges us to place him in that profeffion, or to leave him fuch a fortune, as if we had given him a promise to do fo under our hands and feals. In like manner, a great man, who encourages an indigent retainer; or a minifter of ftate who diftinguishes and careffes at his levee, one who is in a fituation to be obliged by his patronage, engages, by fuch behaviour, to provide for him. This is the foundation of tacit promifes.

You may either fimply declare your prefent intention, or you may accompany your declaration with an engagement to abide by it, which conftitutes a complete promife. In the firft cafe, the duty is fatisfied, if you were fincere, that is, if you

enter

entertained at the time the intention you expreffed, however foon, or for whatever reason, you after. wards change it. In the latter cafe, you have parted with the liberty of changing. All this is plain; but it must be observed, that most of those forms of fpeech, which, ftrictly taken, amount to no more than declarations of prefent intention, do yet, in the ufual way of understanding them, excite the expectation, and therefore carry with them the force of abfolute promises. Such as, "I in"tend you this place."-" I defign to leave you "this eftate.""I purpose giving you my vote." "I mean to ferve you."-In which, although the "intention," the "defign," the " purpose," the

meaning," be expreffed in words of the prefent time, yet you cannot afterwards recede from them, without a breach of good faith. If you choose therefore to make known your prefent intention, and yet to reserve to yourself the liberty of changing it, you inuft guard your expreffions by an additional clause, as " I intend at prefent"-if I dont atter-or the like-and after all, as there can be no reafon for communicating your intention, but to excite fome degree of expectation or other, a wanton change of an intention which is once diflofed, always disappoints somebody; and is always, for that reafon, wrong.

There is in fome men, an infirmity with regard to promifes, which often betrays them into great diftrefs. From the confufion, or hefitation, or obfcurity with which they exprefs themselves, efpecially when overawed, or taken by surprise, they fometimes encourage expectations, and bring upon themselves demands, which, poffibly, they never dreamed of. This is a want, not fo much of integrity, as of prefence of mind.

III. In what cafes promifes are not binding.

1. Promifes are not binding, where the performance is impoffible.

But

But obferve, that the promiser is guilty of a fraud, if he be privately aware of the impoffibility, at the time of making the promise. For when any one promises a thing, he afferts his belief, at leaft, of the poffibility of performing it; as no one can accept or understand a promife under any other fuppofition. Inftances of this fort are the following. The minifter promifes a place, which he knows to be engaged, or not at his difpofal-A father, in fettling marriage articles, promifes to leave his daughter an eftate, which he knows to be entailed upon the heir male of his family-A merchant promifes a fhip, or share of a ship, which he is fecretly advised is loft at fea- An incumbent promifes to refign a living, being previously affured that his refignation will not be accepted by the bishop. The promifer, as in these cafes, with knowledge of the impoffibility, is justly answerable in an equivalent; but otherwise not.

When the promiser himself occafions the impoffibility, it is neither more or less than a direct breach of the promise; as when a foldier maims, or a fervant difables himself, to get rid of his engage

ments.

2. Promises are not binding, where the performance is unlawful.

There are two cafes of this; one, where the unlawfulness is known to the parties, at the time of making the promise; as where an affaffin promises his employer to difpatch his rival or his enemy; a fervant to betray his mafter; a pimp to procure a miftrefs; or a friend to give his affiftance in a scheme of feduction. The parties in thefe cafes are not obliged to perform what the promise requires, becaufe they were under a prior obligation to the contrary. From which prior obligation what is there to difcharge them? their promife--their own act and deed-but an obligation, from which a man can difcharge himself, by his own act, is no obligation at all. The guilt therefore of fuch promifes lies in the

making,

making, not in the breaking them; and if, in the interval betwixt the promife and the performance, a man fo far recover his reflection, as to repent of his engagements, he ought certainly to break through

them.

The other cafe is, where the unlawfulness did not exist, or was not known, at the time of making the promife; as where a merchant promifes his correfpondent abroad, to fend him a fhip-load of corn at a time appointed, and before the time arrives, an embargo is laid upon the exportation of corn-A woman gives a promife of marriage; before the marriage, the difcovers that her intended husband is too nearly related to her, or that he has a wife yet living. In all fuch cafes, where the contrary does not appear, it must be prefumed, that the parties fuppofed what they promised to be lawful, and that the promife proceeded entirely upon this fuppofition. The lawfulnefs therefore becomes a condition of the promise; and where the condition fails, the obligation ceafes. Of the fame nature was Herod's promise to his daughter-in-law, "that he would give her whatever "the 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 fo by the daughter's choice, by her demanding " JOHN the Baptift's head," Herod was difcharged from the obligation of it, for the reafon now laid down, as well as for that given in the last paragraph.

This rule," that promifes are void, where the "performance is unlawful," extends alfo to imperfect obligations; for the reafon of the rule holds of all obligations. Thus, if you promife a man a place, or your vote, and he afterwards render himself unfit to receive either, you are abfolved from the obligation of your promife; or, if a better candidate appear, and it be a cafe in which you are bound by oath, or otherwife, to govern yourfelf by the qualification, the promise must be broken through.

And

And here I would recommend, to young perfons efpecially, a caution, from the neglect of which, many involve themselves in embarrassment and difgrace; and that is, "never to give a promise which may interfere in the event with their "duty;" for if it do fo interfere, their duty must be difcharged, though at the expence of their promife, and not unufually of their good name.

The specific performance of promises is reckoned a perfect obligation. And many cafuifts have laid down, in oppofition to what has been here afferted, that, where a perfect and imperfect obligation clafh, the perfect obligation is to be preferred. For which opinion, however, there feems to be no reason, but what arises from the terms "perfect" 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.

and cc

It is the performance being unlawful, and not any unlawfulness in the fubject or motive of the promife, which destroys its validity; therefore a bribe. after the vote is given; the wages of proftitution; the reward of any crime, after the crime is committed, ought, if promifed, to be paid. For the fin and mischief, by this fuppofition, are over, and will be neither more nor lefs for the performance of the promise!

In like manner, a promife does not lofe its obligation, merely because it proceeded from an unlaw ful motive. A certain perfon, in the life-time of his wife, who was then fick, had paid his addreffes, and promifed marriage to another woman-the wife died; and the woman demanded performance of the promise. The man, who, it feems, had changed his mind, either felt or pretended doubts concerning the obligation of fuch a promife, and referred his cafe to Bishop SANDERSON, the most eminent in this kind of knowledge, of his time.

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