duct 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 latter 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 choose 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.

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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 secretly aware of the impossibility, at the time of making the promise. For, when any one promises à 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 dispatch 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.

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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 ship-load 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 mar、 riage; 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