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And upon a similar principle, a parcel of unap By whatever circuitous train of reasoning you propriated ground, which a man should pare, burn, attempt to derive this right, it must terminate at pough, harrow, and sow, for the production of last in the will of God; the straightest there@m, would justly enough be thereby made his fore, and shortest way of arriving at this will, is own. But this will hardly hold, in the manner the best. it has been applied, of taking a ceremonious pos Hence it appears, that my right to an estate session of a tract of land, as navigators do of new- does not at all depend upon the manner or justice discovered islands, Ly erecting a standard, en- of the original acquisition; nor upon the justice graving an inscription, or publishing a proclama- of each subsequent change of possession. It is tion to the birds and beasts; or of turning your not, for instance, the less, nor ought it to be imcattle into a piece of ground, setting up a land- peached, because the estate was taken possession mark, digging a ditch, or planting a hedge round of at first by a family of aboriginal Britons, who it. Nor will even the clearing, manuring, and happened to be stronger than their neighbours; ploughing of a field, give the first occupier a right nor because the British possessor was turned out to it in perpetuity, and after this cultivation and by a Roman, or the Roman by a Saxon invader; all effects of it are ceased.
nor because it was seized, without color of right Another, and in my opinion a better, account or reason, by a follower of the Norman adventurer; of the first right of ownership, is the following: from whom, after many interruptions of fraud and that, as God has provided these things for the use violence, it has at length devolved to me. of all, he has of consequence given each leave to Nor does the owner's right depend upon the take of them what he wants; by virtue therefore expediency of the law which gives it to him. On of this leave, a man may appropriate what he one side of a brook, an estate descends to the eldest stands in need of to his own use, without asking, son; on the other side, to all the children alike. or waiting for, the consent of others; in like man- The right of the claimants under both laws of ner as, when an entertainment is provided for the inheritance is equal; though the expediency of freeholders of a county, each freeholder goes, and such opposite rules must necessarily be different. eats and drinks what he wants or chooses, without The principles we have laid down upon this having or waiting for the consent of the other subject apparently tend to a conclusion of which guests.
a bad use is apt to be made. As the right of proBut then this reason justifies property, as far as perty depends upon the law of the land, it seems necessaries alone, or, at the most, as far as a com- to follow, that a man has a right to keep and take petent provision for our natural exigences. For, every thing which the law will allow him to keep in the entertainment we speak of (allowing the and take; which in many cases will authorize the comparison to hold in all points,) although every most flagitious chicanery. If a creditor upon a particular freeholder may sit down and eat till he simple contract neglect to demand his debt for six be satisfied, without any other leave than that of years, the debtor may refuse to pay it; would it the master of the feast, or any other proof of that be right therefore to do so, where he is conscious leave, than the general invitation, or the manifest of the justice of the debt? If a person, who is design with which the entertainment is provided; under twenty-one years of age, contract a bargain yet you would hardly permit any one to fill his (other than for necessaries,) he may avoid it by pockets or his wallet, or to carry away with him pleading his minority: but would this be a fair a quantity of provision to be hoarded up, or plea, where the bargain was originally just ?—The wasted, or given to his dogs, or stewed down into distinction to be taken in such cases is this: With sauces, or converted into articles of superfluous the law, we acknowledge, resides the disposal of luxury; especially if, by so doing, he pinched the property: so long, therefore, as we keep within guests at the lower end of the table.
the design and intention of a law, that law will These are the accounts that have been given of justify us as well in foro conscientiæ, as in foro the matter by the best writers upon the subject, humano, whatever be the equity or expediency of but were these accounts perfectly unexceptionable, the law itself. But when we convert to one purthey would none of them, I fear, avail us in vin- pose, a rule or expression of law, which is intended dicating our present claims of property in land, for another purpose, then we plead in our justifiunless it were more probable than it is, that our cation, not the intention of the law, but the words; estates were actually acquired at first, in some of that is, we plead a dead letter, which can signify the ways which these accounts suppose; and that nothing; for words without meaning or intention, a regular regard had been paid to justice, in every have no force or effect in justice; much less, successive transmission of them since; for, if one words taken contrary to the meaning and intenlink in the chain fail, every title posterior to it tion of the speaker or writer. To apply this dis falls to the ground.
tinction to the examples just now proposed :-in The real foundation of our right is, THE LAW order to protect men against antiquated demands, OF THE LAND.
from which it is not probable they should have It is the intention of God, that the produce of preserved the evidence of their discharge, the law the earth be applied to the use of man: this in- prescribes a limited time to certain species of pritention cannot be fulfilled without establishing vate securities, beyond which it will not enforce property; it is consistent, therefore, with his will
, them, or lend its assistance to the recovery of the that property be established. The land cannot debt. If a man be ignorant or dubious of the be divided into separate property, without leaving justice of the demand made upon him, he may it to the law of the country to regulate that divi- conscientiously plead this limitation; because ho sion: it is consistent therefore with the same will, applies the rule of law to the purpose for which that the law should regulate the division; and, it was intended. But when he refuses to pay a consequently, "consistent with the will of God," debt, of the reality of which he is conscious, he or, “right,” that I should possess that share which cannot, as before, plead the intention of the statute, these regulations assign me.
and the supreme authority of law, unless he could
show, that the law intended to interpose its su- 1 1 nothing for all this, but the promise of the preme authority, to acquit men of debts, of the butcher, and the implied promise of his servant existence and justice of which they were them- and mine. And the same holds of the most imselves sensible. Again, to preserve youth from portant as well as the most familiar occurrences of the practices and impositions to which their inex- social life. In the one, the intervention of properience exposes them, the law compels the pay- mises is formal, and is seen and acknowledged; ment of no debts incurred within a certain age, our instance, therefore, is intended to show it in nor the performance of any engagements, except the other, where it is not so distinctly observed. for such necessaries as are suited to their condition II. In what sense promises are to be interpreted. and fortunes. If a young person therefore per
Where the terms of promise admit of more ceive that he has been practised or imposed upon, senses than one, the promise is to be performed he may honestly avail himself of the privilege of " in that sense in which the promiser apprehended, his nonage, to defeat the circumvention. But, if at the time that the promisee received it." he shelter himself under this privilege, to avoid a It is not the sense in which the promiser actually fair obligation, or an equitable contract, he extends intended it, that always governs the interpretation the privilege to a case, in which it is not allowed of an equivocal promise; because, at that rate, by intention of law, and in which consequently it you might excite expectations, which you never does not, in natural justice, exist.
meant, nor would be obliged to satisfy. Much less is it the sense, in which the promisee actually
received the promise; for, according to that rule, As property is the principal subject of justice, you might be drawn into engagements which you or of " the determinate relative duties," we have never designed to undertake. It must, therefore, put down what we had to say upon it in the first be the sense (for there is no other remaining) in place: we now proceed to state these duties in the which the promiser believed that the promisee best order we can.
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 CHAPTER V.
above form, to exclude evasion in cases in which Promises.
the popular meaning of a phrase, and the strict I. From whence the obligation to perform pro- in general, wherever the promiser attempts to
grammatical signification of the words differ; or, mises arises. II. In what sense promises are to be interpreted. expressions which he used.
make his escape through some ambiguity in the III. In what cases promises are not binding. Temures promised the garrison of Sebastia,
I. From whence the obligation to perform pro- that, if they would surrender, no blood should be mises arises.
shed. The garrison surrendered; and Temures They who argue from innate moral principles, buried them all alive. Now Temures fulfilled the suppose a sense of the obligation of promises to be promise in one sense, and in the sense too in one of them; but without assuming this, or any which he intended it at the time; but not the thing else, without proof, the obligation to perform sense in which the garrison of Sebastia actually promises may be deduced from the necessity of received it, nor in the sense in which Temures such a conduct to the well-being, or the existence himself knew that the garrison received it: which indeed, of human society.
last sense, according to our rule, was the sense in Men act from expectation. Expectation is in which he was in conscience bound to have permost cases determined by the assurances and en- formed it. gagements which we receive from others. If no From the account we have given of the obligadependence could be placed upon these assurances, tion of promises, it is evident, that this obligation deit would be impossible to know what judgment to pends upon the expectations which we knowingly form of many future events, or how to regulate and voluntarily excite. Consequently, any action our conduct with respect to them. Confidence or conduct towards another, which we are sensible therefore in promises, is essential to the intercourse excites expectations in that other, is as much a of human life; because, without it, the greatest promise, and creates as strict an obligation, as the part of our conduct would proceed upon chance. most express assurances. Taking, for instance, But there could be no confidence in promises, if a kinsman's child, and educating him for a liberal men were not obliged to perform them; the obli- profession, or in a manner suitable only for the gation therefore to perform promises, is essential | heir of a large fortune, as much obliges us to place to the same ends, and in the same degree. him in that profession, or to leave him such a for
Some may imagine, that if this obligation were tune, as if we had given him a promise to do so suspended, a general caution and mutual distrust under our hands and seals. In like manner, a would ensue, which might do as well : but this is great man, who encourages an indigent retainer; imagined, without considering how, every hour of or a minister of state, who distinguishes and our lives, we trust to, and depend upon, others; caresses at his levee one who is in a situation to and how impossible it is, to stir a step, or, what is be obliged by his patronage ; engages, by such worse, to sit still a moment, without such trust behaviour, to provide for him.-- This is the founand dependence. I am now writing at my case, dation of tacit promises. not doubting (or rather never distrusting, and You may either simply declare your present therefore never thinking about it) that the butcher intention, or you may accompany your declaration will send in the joint of meat which I ordered ; with an engagement to abide by it, which conthat his servant will bring it; that my cook will stitutes a complete promise. In the first case, the dress it; that my footman will serve it up; that I duty is satisfied, if you were sincere at the time, shall find it upon table at one o'clock. Yet have that is if vou entertained at the time the intention
you expressed, however soon, or for whatever these cases are not obliged to perform what the reason, you afterwards change it. In the latter promise requires, because they were under a prior case, you have parted with the liberty of changing. obligation to the contrary: From which prior All ihis is plain: but it must be observed, that obligation what is there to discharge them? Their most of those forms of speech, which, strictly taken, proinise,-their own act and deed.—But an obliamount to no more than declarations of present gation, from which a man can discharge himself intention, do yet, in the usual way of understand by his own act, is no obligation at all. The guilt ing them, excite the expectation, and therefore therefore of such promises lies in the making, not carry with them the force of absolute promises. in the breaking of them; and if, in the interval Such as," I intend you this place”—“I design to betwixt the promise and the performance, a man leave you this estate”—"I purpose giving you my so far recover his reflection, as to repent of his
de" " I mean to serve you."-in which, al- engagements, he ought certainly to break through though the “intention," the “ design," the "pur- them. pose," the “meaning," be expressed in words of The other case is, where the unlawfulness did The present time, yet you cannot afterwards recede not exist, or was not known, at the time of making from them without a breach of good faith. If you the promise; as where a merchant promises his choose therefore to make known your present correspondent abroad, to send him a ship load of intention, and yet to reserve to yourself the liberty corn at a time appointed, and before the time of changing it, you must guard your expressions arrive, an embargo is laid upon the exportation of by an alitional clause, as, I intend at present,” corn :-A woman gives a promise of marriage; ** if I do not alter,'' - or the like. And after all, before the marriage, she discovers that her intended as there can be no reason for communicating your husband is too nearly related to her, or that he has intention, but to excite some degree of expectation a wife yet living. In all such cases, where the or other, a wanton change of an intention which contrary does not appear, it must be presumed is once disclosed, always disappoints somebody; that the parties supposed what they promised to and is always, for that reason, wrong.
be lawful, and that the promise proceeded entirely There is, in some men, an infirmity with regard upon this supposition. The lawfulness therefore to promises, which often betrays them into great becomes a condition of the promise; which condistress. From the confusion, or hesitation, or dition failing, the obligation ceases. Of the same obscurity, with which they express themselves, nature was Herod's promise to his daughter-in-law, especially when overawed or taken by surprise," that he would give her whatever she asked, even they sometimes encourage expectations, and bring to the half of his kingdom.” The promise was upon themselves demands, which, possibly, they not unlawful in the terms in which Herod never dreamed of. This is a want, not so much delivered it; and when it became so by the of integrity, as of presence of mind.
daughter's choice, by her demanding “John the III. In what cases promises are not binding. Eaptist's head," Herod was discharged from the
1. Promises are not binding, where the perfor- obligation of it, for the reason now laid down, as mance is impossible.
well as for that given in the last paragraph. But observe, that the promiser is guilty of a This rule," that promises are void, where the fraud, if he be secretly aware of the impossibility, performance is unlawful,” extends also to imperat the time of making the promise. For, when fect obligations: for, the reason of the rule holds any one promises a thing, he asserts his belief, at of all obligations. Thus, if you promise a man a least, of the possibility of performing it; as no one place, or your vote, and he afterwards render can accept or understand a promise under any himself unfit to receive either, you are absolved other supposition. Instances of this sort are the from the obligation of your promise; or, if a better following: The minister promises a place, which candidate appear, and it be a case in which you he knows to be engaged, or not at his disposal :- are bound by oath, or otherwise, to govern yourself A father, in settling marriage-articles, promises to by the qualification, the promise must be broken leave his daughter an estate, which he knows to through. be entailed upon the heir male of his family :-A And here I would recommend, to young persons merchant promises a ship, or share of a ship, especially, a caution, from the neglect of which which he is privately advised is lost at sea :-An many involve themselves in embarrassment and incumbent promises to resign a living, being pre- disgrace; and that is, " never to give a promise, viously assured that his resignation will not be which may interfere, in the event, with their accepted by the bishop. The promiser, as in these duty;" for, if it do so interfere, their duty must cases, with knowledge of the impossibility, is be discharged, though at the expense of their justly answerable in an equivalent; but other-promise, and not unusually of their good name. wise not.
The specific performance of promises is reckWhen the promiser himself occasions the im- oned a perfect obligation. And many casuists possitility, it is neither more nor less than a direct have laid down, in opposition to what has been breach of the promise; as when a soldier maims, here asserted, that, where a perfect and an imperof a servant disables himself, to get rid of his fect obligation clash, the perfect obligation is to be engagements.
preferred. For which opinion, however, there 2. Promises are not binding, where the per- seems to be no reason, but what arises from the fornance is plauful.
terms "perfect” and “imperfect,” the impropriety There are two cases of this: one, where the of which has been remarked above. The truth unlawfulness is known to the parties, at the time is, of two contradictory obligations, that ought to of making the promise; as where an assassin pro- prevail which is prior in point of time. mases his employer to despatch his rival or his It is the performance being unlawful, and not enemy: a servant to betray his master; a pimp to unlawfulness in the subject or motive of the proprocure a mistress; or a friend to give his as- mise, which destroys its validity: therefore a bribe, sistance in a scheme of seduction. The parties in / after the vote is given; the wages of prostitution; G
the reward of any crime, after the crime is com- of mine, for a relation or friend of his; then A is mitted; ought, if promised, to be paid. For the the promisee, whose consent I must obtain, to be sin and mischief, by this supposition, are over; released from the engagement. and will be neither more nor less for the perfor If I promise a place or vote to B by A, that is, mance of the promise.
if A be a messenger to convey the promise, as if In like manner, a promise does not lose its I should say, “You may tell B that he shall have obligation merely because it proceeded from an this place, or may depend upon my vote;" or if unlawful motive. A certain person, in the life- A be employed to introduce B's request, and I time of his wife, who was then sick, had paid his answer in any terms which amount to a comaddresses, and promised marriage, to another pliance with it: then B is the promisec. woman;—the wife died; and the woman demanded Promises to one person, for the benefit of performance of the promise. The man, who, it another, are not released by the death of the pro seems, had changed his mind, either felt or pre- misee; for, his death neither makes the perfortended doubts concerning the obligation of such a mance impracticable, nor implies any consent to promise, and referred his case to Bishop Sander- release the promiser from it. son, the most eminent, in this kind of knowledge, Erroneous promises are not binding in cerof his time. Bishop Sanderson, after writing a tain cases; as dissertation upon the question, adjudged the pro 1. Where the error proceeds from the mistako mise to be void. In which, however, upon our or misrepresentation of the promisee. principles, he was wrong; for, however criminal Because a promise evidently supposes the truth the affection might be, which induced the promise, of the account, which the promisee relates in order the performance, when it was demanded, was to obtain it. A beggar solicits your charity, by a lawful; which is the only lawfulness required. story of the incst pitiable distress; you promise to
A promise cannot be deemed unlawtul, where relieve him, if he will call again :-In the interval it produces, when performed, no effect, beyond you discover his story to be made up of lies ;-this what would have taken place had the promise discovery, no doubt, releases you from your pronever been made. And this is the single case, in mise. One who wants your service, describes the which the obligation of a promise will justify a business or office for which he would engage you; conduct, which, unless it had been promised, -you promise to undertake it;-when you come would be unjust. A captive may lawfully recover to enter upon it, you find the profits less, the his liberty, by a promise of neutrality; for his labour more, or some material circumstance difconqueror takes nothing by the promise, which he ferent from the account he gave you :-In such might not have secured by his death or confine case, you are not bound by your promise. ment; and neutrality would be innocent in him, 2. When the promise is understood by the proalthough criminal in another. It is manifest, misee to proceed upon a certain supposition, or however, that promises which come into the place when the promiser apprehended it to be so underof coercion, can extend no further than to passive stood, and that supposition turns out to be false; compliance; for coercion itself could compel no then the promise is not binding. more. Upon the same principle, promises of
This intricate rule will be best explained by an secrecy ought not to be violated, although the example. A father receives an account from public would derive advantage from the discovery. abroad, of the death of his only son ;-soon after Such promises contain no unlawfulness in them, which, he promises his fortune to his nephew.to destroy their obligation : for, as the information The account turns out to be false.—The father, would not have been imparted upon any other we say, is released from his promise; not merely condition, the public lose nothing by the promise, because he never would have made it, had he which they would have gained without it. known the truth of the case,—for that alone will
3. Promises are not binding, where they con- not do;—but because the nephew also himself tradict a former promise.
understood the promise to proceed upon the supBecause the performance is then unlawful; position of his cousin's death: or, at least his which resolves this case into the last.
uncle thought he so understood it; and could not 4. Promises are not binding before acceptance ; think otherwise. The promise proceeded upon that is, before notice given to the promisee; for, this supposition in the promiser's own apprehenwhere the promise is beneficial, if notice be given, sion, and, as he believed, in the apprehension of acceptance may be presumed. Until the promise both parties; and this belief of his, is the precise be communicated to the promisee, it is the same circumstance which sets him free. The foundaonly as a resolution in the mind of the promiser, tion of the rule is plainly this: a man is bound which may be altered at pleasure. For no ex- only to satisfy the expectation which he intended pectation has been excited, therefore none can be to excite; whatever condition therefore he intended disappointed.
to subject that expectation to becomes an essential But suppose I declare my intention to a third condition of the promise. person, who, without any authority from me, con Errors, which come not within this description, veys my declaration to the promisee; is that such do not annul the obligation of a promise. i proa notice as will be binding upon me? It certainly mise a candidate my vote ;--presently another is not: for I have not done that which constitutes candidate appears, for whom I certainly would the essence of a promise ;-I have not voluntarily have reserved it, had I been acquainted with his excited expectation.
design. Here therefore, as before, my promise 5. Promises are not binding which are released proceeded from an error; and I never should have by the promisee.
given such a promise, had I been aware of the This is evident: but it may be sometimes truth of the case, as it has turned out.—But the doubted who the promisee is. If I give a promise promisee did not know this;-he did not receive to A, of a place or vote for B; as to a father for the promise, subject to any such condition, or as his son; to an uncle for his nephew; to a friend proceeding from any such supposition; nor did I
At the time imagine he so received it. This error, which we read of in the New Testament, were therefore, of mine, must fall upon my own head, religiously observed. and the promise be observed notwithstanding. A The rules we have laid down concerning profatter promises a certain fortune with his daughter, mises, are applicable to vows. Thus Jephtha's supposing himself to be worth so much-his cir- vow, taken in the sense in which that transaction cumstances turn out, upon examination, worse is commonly understood, was not binding; because than he was aware of. Here again the promise the performance, in that contingency, became was erronsous, but, for the reason assigned in the unlawful. las 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 obliga
CHAPTER VI. tion of a promise, would be to allow a latitude,
Contracts. which might evacuate the force of almost ali promises: and on the other hand, to gird the A CONTRACT is a mutual promise. The obliobligation so tight, as to make no allowances for gation therefore of contracts, the sense in which manifest and fundamental errors, would, in many they are to be interpreted, and the cases where instances, be productive of great hardship and they are not binding, will be the same as of absurdity.
From the principle established in the last chapter, “that the obligation of promises is to be
measured by the expectation which the promiser It has long been controverted amongst moralists, any how voluntarily and knowingly excites," whether promises be binding, which are extorted results a rule, which governs the construction of by violence or fear. The obligation of all promises all contracts, and is capable, from its simplicity, results, we have seen, from the necessity or the of being applied with great ease and certainty, use of that contidence which mankind repose in viz. That them. The question, therefore, whether these Whatever is expected by one side, and known promises are binding, will depend upon this; to be so expected by the other, is to be deemed a whether mankind, upon the whole, are benefited part or condition of the contract. by the confidence placed on such promises ? A The several kinds of contracts, and the order highwayman attacks you—and being disappointed in which we propose to consider them, may be of this booty, threatens or prepares to murder you; exhibited at one view, thus -Fou promise, with many solemn asseverations, that if he will spare your life, he shall find a purse
Hazard. of money left for him, at a place appointed ;-upon the faith of this promise, he forbears from further
Contracts of Lending of Money.
| Inconsumable Property. violence. Now, your life was saved by the confulence reposed in a promise extorted by fear; and the lives of many others may be saved by the
Partnership 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:
CHAPTER VII. and in the question between the importance of these opposite consequences, resides the doubt
Contracts of Sale. concerning the obligations of such promises. The rule of justice, which wants with most
There are other cases which are plainer; as anxiety to be inculcated in the making of bargains, where a magistrate confines a disturber of the is, that the seller is bound in conscience to disclose public peace in jail, till he promise to behave the faults of what he offers to sale. Amongst better; or a prisoner of war promises, if set at other methods of proving this, one may be the liberty, to return within a certain time. These following: proruses, say moralists, are binding, because the I suppose it will be allowed, that to advance a Violence or duress is just; but, the truth is, be- direct falsehood, in recommendation of our wares, cause there is the same use of confidence in these by ascribing to them some quality which we know promises, as of confidence in the promises of a that they have not, is dishonest. Now compare person at perfect liberty.
with this the designed concealment of some fault, which we know that they have. The motives
and the effects of actions are the only points of Vores are promises to God. The obligation comparison, in which their moral quality can cannot be made out upon the same principle as differ; but the motive in these two cases is the that of other promises. The violation of them, same, viz. to procure a higher price than we expect nevertheless, implies a want of reverence to the otherwise to obtain: the effect, that is, the preSupreme Being; which is enough to make it | judice to the buyer, is also the same ; for he finds sinful.
himself equally out of pocket by his bargain, There appears no command or encouragement whether the commodity, when he gets home with in the Christian Scriptures to make vows; much it
, turn out worse than he had supposed, by the les any authority to break through them when want of some quality which he expected, or the they are made. The few instances* of vows discovery of some fault which he did not expect.
If therefore actions be the same, as to all moral Acts xviii. 18. xxi. 23.
purposes, which proceed from the same motives,