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Herod's promise to his daughter-in-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 inter“ fere in the event with their duty;" for, if
it do so interfero, 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 “ perfect” 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 any unlawfulness in the subject or mo, tive 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 ques tion, 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 neutra
lity; 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, al. though criminal in another. It is manifest, 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, 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, where 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 communịcated 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