welfare, will take care to keep his designs to himself, and to make no declarations about them, till he has well considered the matter, and finds no likelihood, that any thing will intervene, which may oblige him to fail in making them good. Or if he has been led to declare such favourable intentions, he will take care to abide by them, and to bring them into execution; unless the accidents which prevent him are such as may appear to the world, and such, too, as will justify him in the common opinion.

But

We may go one step farther in this way of speaking about what is future; we may not only declare what our present intentions are, but may add, that these intentions are not unsteady, that we are not only in earnest now, but will continue in the same mind when the time comes for putting these intentions in practice. This additional declaration does not confer any perfect right upon the person in whose favour it is made, or does not give him any strict demand upon us. it strengthens our reasons for making our designs good; both because it would be an instance of greater levity to change what seems to have been thus fixedly and unalterably resolved upon; and because a disappointment to those who are made to expect our favours will be so much more hurtful, in proportion as their expectations were raised higher. II. The second way of speaking concerning our pre- Promises what. sent intentions of giving a man hereafter what may be useful to him, or of doing for him hereafter some beneficial service, is by making him a promise. This is not merely a declaration of our present intentions in reference to some future gift or service, with a sufficient sign of our being in earnest, and of our having determined with ourselves to continue in the same mind; but it contains likewise a declaration that we now design to give him a right to demand such gift or such service hereafter.

III. *Grotius seems to make a small difference bePromises of givtween promises of giving and promises of doing, when he ing, the same in says, that the former are the first step towards the aliena- effect as promises tion of our goods, and that the latter are the actual alie- of doing."

nation of some part of our natural liberty. But it would be difficult, if we follow this distinction closely, to show that any demand at all is conferred by a promise of giving: because it does not appear what it is which he, to whom we make such a promise, has a demand upon. The distinction does not seem to allow that his demand is upon the person of the promiser; for he is not understood to have alienated any part of his liberty; this being supposed to be the peculiar effect of promises of doing. Nor is his demand upon the thing promised; because the distinction supposes that the thing is not alienated, but only that the first step is taken towards the alienation of it. But if a promise to give a man a thing confers upon him no right either over the person of the promiser or to the thing promised, it cannot possibly confer upon him any right at all: and if he acquires no right by the promise, then the promiser cannot be laid under any obligation by it.

But, in truth, there is not in this respect any difference between promises of giving and promises of doing: the obligation of them both is upon the person of the promiser; and they are, either of them, alie

* Grot. Lib. II. Cap. XI. § VI.

nations of his liberty. Before I make a promise of giving any particular thing to a man, I am at liberty whether I will give him it or not: but after the promise is made I have no moral power or right not to give; in regard to not giving I have parted with my liberty, by conferring upon him a right to demand, that I should act in such a manner as the promise expresses. He has no claim upon the thing promised, because I did not actually give him the thing, but only engaged that I would give him it; I did not make it his, but gave him a right to demand of me at some future time to do whatever act should be necessary to make it so.

Thus, promises of giving are in some sort promises of doing. The effect of them both is in one respect the same: they affect the liberty of the promiser, and tie him down to that particular action, which the promise contains or implies. If they are promises of giving they tie him down to the action of giving; if they are promises of doing they tie him down to the actions or services which are specified in them. Promises always IV. Promises are sometimes distinguished into such relate to future as are made in words of future time, and such as are made in words of present time. But this distinction is without foundation. What is called a promise in words of present time, can scarce be so explained as to give it the appearance of a promise: it is either an actual performance, or it is nothing at all.

time.

Promises of giving in words of present time are actual performances. If I say that I now give you such or such a thing; what is so given does, upon your acceptance, immediately become your own; this act is a direct alienation of my property. I may indeed delay putting you into possession, by adding that I will deliver to you at some future time what is so given. This exception, as to the time of delivery, may make the whole matter have the appearance of a promise rather than of an actual performance: but then it is to be observed that, as far as this exception is concerned, the words will be of future and not of present time. However, if we consider the effect of such an exception, we shall find that it is in itself no promise; nor does the act of giving become a promise by the addition of it. Such an exception, instead of conferring any particular right upon you, limits your claim; it is added for my benefit, and not for yours. Upon my giving you the thing, you had a right to immediate possession: and by engaging to give you possession at some future time, I only postpone this right. This will be clear, if we observe that when the time of delivery comes, you will have no other right to the actual possession of the thing, but what you would have had at the instant of giving, if I had not added this limitation. And certainly as such a limitation confers no right, either perfect or imperfect, it cannot with any propriety be called a promise, or part of a promise.

As to promises of doing in words of present time, if we would endeavour to express them so as to distinguish them from promises of the same sort in words of future time, we shall find them unintelligible. I know not how to promise a man a present service, unless I am actually doing it; and a promise of it, whilst I am actually doing it, is ridiculous.

This distinction is sometimes applied to promises of marriage: but it will be very difficult to show that there is any such thing as a promise

of marriage in words of present time, which is not an actual marriage. If the man promises to the woman, that he will marry her, this is promising in words of future time: if he declares that he does marry her, there is nothing naturally wanting but her acceptance to complete the marriage. It is only civil institution which prevents such a transaction from being looked upon in any other light. In almost all civil communities some particular forms and ceremonies are established for the celebration of marriage. And, consequently, if such forms and ceremonies are considered by the law as necessary to make the marriage binding upon the parties, the same law which makes them necessary, cannot call any act a marriage, where they have been omitted. Now, as a man's declaration that he does marry a woman is more than a promise of marriage; and yet civil laws, for the reason before mentioned, decline giving it the name of an actual marriage; a sort of middle name has been found out for it, and it has been called a promise; or because acceptance of such promise makes it mutual, it has been called a contract, in words of present time.

It may perhaps be apprehended that such a transaction is not called a marriage, but only a promise in words of present time, for want of consummation. But consummation in marriage is like actual possession in gifts. As in giving a thing by words of present time, the delay of actual possession does not change the act of giving into a promise; so neither does an agreement in words of present time between two parties, to take each other for man and wife, become no more than a promise by the delay of consummation.

In one view, indeed, all promises may be considered as expressed in words which relate to the present time. They declare a present intention of conferring upon the person to whom we make them, a demand upon us for some future performance. To tell a man that I will give him such a thing, or that I promise to give him it, or that I give him a demand upon me for it, are all of them expressions which the common use of language has made to be of one and the same import: and any of them confer on him a right over my person. They do not indeed alienate my property in the thing, or transfer it to him; but they alienate a part of my liberty, and bind me to the future performance of such an act as will transfer the thing to him. If I promise a man to serve him in such or such instances; if I say that I will do him such or such good offices; these and the like expressions tie me down to a particular way of acting; they give him a demand upon me so to act, or alienate the liberty which I had of acting in any other manner.

there

When promises of giving and promises of doing are thus explained, appears to be little difference between them. Both of them are in effect promises of doing; since each of them conveys a right to the person that we make them to, of demanding that we shall act agreeably to what is expressed in the promise. If it is a promise of giving, the demand of those to whom we make it, and consequently the personal obligation which we are under, is that we shall do such acts as are necessary to transfer to them the thing promised: if it is a promise of doing, the demand on their part, and the obligation on ours, is that we shall do such acts, whatever they are, as are contained in the promise.

Promises do not V. From hence, we may see the reason why the obliaffect the heirs of gations of a man's promise do not of themselves descend the promiser. to his heirs. They are alienations of his own liberty, and consequently, being obligations upon his person only, do not effect his property; even promises of giving confer no direct or immediate right to the thing promised, but only a demand upon the person of the promiser to give such a right hereafter. Where a man has charged his goods with any obligations, the heir, who cannot receive the goods in any other condition than what the ancestor leaves them in, is, by receiving the goods, involved in the obligations that are connected with them. But all obligations which reach no farther than the person of the promiser, cease with his person. And since the obligations of promises are of this sort, it is matter of bounty only when the heir undertakes to make good the promises of his ancestor.

No obligation from VI. Since a promise is an alienation of part of our promises, where liberty, by giving the person to whom we make it a dethere is no liberty. mand upon us to act in such a particular manner, as we have engaged for, the consequence is, that we cannot oblige ourselves farther by promise than our liberty reaches; for since no man can alienate what does not belong to him, no man can give up that liberty to another either in whole or in part, which he never had himself.

VII. From hence it follows, first, *that no promise No promise obliges to an impossi- can oblige us to an impossibility. It is certain, indeed, bility. that we could never perform such a promise; but when I say that it does not oblige us, I mean something more than this; I mean, that whatever folly there may be in making such a promise, there is no wrong or injustice in not performing it. For where a man has no demand upon us, we can do him no injury; and the person to whom we make a promise, can have no demand upon us, if the promise is void in its own nature. But since a promise consists in an alienation of a part of our liberty, it must be void, or must be as if there was no promise, where no such alienation has been made. Now we have not, and never could have, the liberty of doing what is impossible; we cannot, therefore, in respect of what is so, alienate our liberty; that is, we cannot make such a promise as will be binding upon us. Unlawful promises VIII. Secondly, fno unlawful promises can oblige those who make them. As they have not the liberty of doing what the law has forbidden them to do, they cannot alienate their liberty so as to give any person a demand upon them to do it. I speak of unlawful promises, I do not mean those only by which we engage to give or to do what the law of nature forbids to be given or to be done by us; where the matter of a promise is forbidden by any other law, by the positive law of God, for instance, or by the law of the land, or by the commands of our lawful superiors, as far as they have a right to command us, such a promise is void; we have done nothing by making it, and consequently have not obliged ourselves to the performance of it. The reason why we have done nothing by making it is, because the law, as far as we owe obedience to it, has taken away our liberty, and we cannot alienate our liberty where we have it not.

not binding.

When

IX. Thirdly, a second or any subsequent promise, A subsequent promise cannot bind, which is contrary to one that was formerly made, can- where it is contranot oblige us, or cannot make void the former promise. ry to a former proWhen we have once alienated a part of our liberty, it mise.

is not our own to dispose of again; when we have given one man a demand upon us to act in a particular manner, we have parted with our liberty in this respect, and cannot give another man a demand upon us to act in a contrary manner. What is here said of promises is equally true of all other sorts of voluntary obligations. Any former obligation takes away the liberty of the person who is engaged in it; and where he has no liberty, he can do no act which will be valid, and consequently none which can be binding upon him. Indeed, upon any other supposition, there would be no such thing as any possibility of a man's being obliged at all by his own act; which in morality is deemed an absurdity. For, if a second obligation could make void the first, then a third might make void the second, and a fourth might make void the third, and so on without end.

X. If the matter of a promise is impossible or unlaw- The obligation of ful at the time of making it, but the circumstances of a promise may be the promiser are such as may be altered, and a change in suspense. in his circumstances would render it possible or lawful for him to perform his promise; it may be questioned whether a promise of this sort is binding; because it may be thought, that as the promiser engaged for what he had, at the time of engaging, no natural or no moral power to perform, his act was originally void; and that no accident, which shall happen afterwards, can give a validity to what was so void in the first instance. But here it should be observed, that the act is not so far void from the beginning, as that no future event can make it binding. Where a man's words can be so interpreted as to have any meaning, we are always to follow that interpretation which will give them a meaning. And if the promiser had any meaning at all, it must be this-that he would give the thing or do the act promised, whenever it should be in his power, or whenever by any change in his circumstances it should become lawful. This condition is sometimes expressed in promises of this sort; and when it is not expressed, the rule of interpretation before laid down naturally leads us to suppose that it was implied. But where such a condition is either expressed or implied, notwithstanding the present impossibility or unlawfulness in the matter of the promise, the promiser does something: he gives those to whom he thus engages, a demand upon his person not to use his liberty otherwise, upon a supposed event, than according to the terms of his engagement; he might upon this event have his liberty, but he alienates it beforehand; if the matter of the promise ever can be possible or ever can be lawful, his liberty of acting is his own in possibility; and as far as it is his own, he consents to part with it. The obligation of these promises is in suspense, and then only takes place when the event happens which renders the matter of them possible or lawful.

Sometimes it depends upon ourselves, whether it shall be possible for us, or not, to perform our promises; some act or some endeavours of our own may put us into such a situation as will make the performance pos

Grotius, Lib. II. Cap. XI. § VIII.