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is equal; though the expediency of such opposite rules must necessarily be different.
The principles we have laid down upon this sub. ject, apparently tend to a conclusion of which a bad use is apt to be made. As the right of property depends upon the law of the land, it seems to follow, that a man has a right to keep and take every thing which the law will allow him to keep and take; which in many cases will authorize the most flagitious chicanery. If a creditor upon a simple contract neglect to demand his debt for six years, the debtor may refuse to pay it: would it be right therefore to do so, where he is conscious of the justice of the debt? If a person, who is under twenty-one years of age, contract a bargain (other than for necessaries,) he may avoid it by pleading his minority: but would this be a fair plea, where the bargain was originally just ?-The distinction to be taken in such cases is this: With the law, we acknowledge, resides the disposal of property; so long, therefore, as we keep within the design and intention of a law, that law will justify us, as well in foro conscientiæ, as in foro humano, whatever be the equity or expediency of the law itself. But when we convert to one purpose, a rule or expression of law, which is intended for nother purpose, then we plead in our justification, not the intention of the law, but the words: that is, we plead a dead letter, which can signify nothing; for words without meaning or intention have no force or effect in justice; much less, words taken contrary to the meaning and intention of the speaker or writer. To apply the distinction to the examples just now proposed;-In order to protect men against antiquated demands, from which it is not probable they should have preserved the evidence of their discharge, the law prescribes a limited time to certain species of private securities, beyond which it will not enforce them, nor lend its assistance to the recovery of the debt. If a man be ignorant or dubious of the justice of the demand made upon him, he may conscientiously plead this limitation: because he applies the rule of law to the purpose for which it was intended. But when he refuses to pay a debt, of the reality of which he is conscious, he cannot, as before, plead the intention of the statute, and the su
preme authority of law, unless he could show, that the law intended to interpose its supreme authority, to acquit men of debts, of the existence and justice of which they were themselves sensible. Again, to preserve youth from the practices and impositions to which their inexperience exposes them, the law compels the payment of no debts incurred within a certain age, nor the performance of any engage. ments, except for such necessaries as are suited to their condition and fortunes. If a young person therefore perceive that he has been practised or imposed upon, he may honestly avail himself of the privilege of his non-age, to defeat the circumvention. But, if he shelter himself under this privilege, to avoid a fair obligation, or an equitable contract, he extends the privilege to a case, in which it is not allowed by intention of law, and in which consequently it does not, in natural justice, exist.
As property is the principal subject of justice or of" the determinate relative duties," we have put down what we had to say upon it in the first place; we now proceed to state these duties in the best order we can.
1. From whence the obligation to perform promises arises.
II. In what sense promises are to be interpreted. III. In what cases promises are not binding. I. From whence the obligation to perform promises arises.
They who argue from innate moral principles, suppose a sense of obligation of promises to be one of them; but without assuming this, or any thing else, without proof, the obligation to perform promises may be deduced from the necessity of such a conduct to the well being, or the existence indeed, of human society.
Men act from expectation. Expectation is in most cases determined by the assurances and engagements which we receive from others. If no dependance could be placed upon these assurances, it would be impossible to know what judgment to form of many future events, or how to regulate our conduct with respect to them.
Confidence therefore in promises, is essential to the intercourse of human life; because without it, the greatest part of our conduct would proceed upon chance. But there could be no confidence in promises, if men were not obliged to perform them; the obligation therefore to perform promises, is essential, to the same ends, and in the same degree.
Some may imagine, that if this obligation were suspended, a general caution and mutual distrust would ensue, which might do as well: but this is imagined, without considering how, every hour of our lives, we trust to, and depend upon, others; and how impossible it is to stir a step, or, what is worse, to sit still a moment, without such trust and dependance. I am now writing at my ease, not doubting (or rather never distrusting, and therefore never thinking about it,) that the butcher will send in the joint of meat which I ordered; that his servant will bring it; that my cook will dress it; that my footman will serve it up; and that I shall find it upon table at one o'clock. Yet have I nothing for all this, but the promise of the butcher, and the implied promise of his servant and mine. And the same holds of the most important as well as the most familiar occurrences of social life. In the one, the intervention of promises is formal, and is seen and acknowledged; our instance, therefore, is intended to show it in the other, where it is not so distinctly observed.
II. In what sense promises are to be interpreted. Where the terms of promise admit of more senses than one, the promise is to be performed "in that sense in which the promiser apprehended, at the time, that the promisee received it.".
It is not the sense in which the promiser actually intended it, that always governs the interpretation of an equivocal promise; because, at that rate, you might excite expectations, which you never 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, you might be drawn into engagements, which you never designed to undertake. It must therefore be the sense (for there is no other remaining) in which the promiser believed that the promisee 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 above form to exclude evasion in cases in which the popular meaning of a phrase, and the strict grammatical signification of the words, differ; or, in general, whereever the promiser attempts to make his escape through some ambiguity. in the expressions which he used.
Temures promised the garrison of Sebastia, that, if they would surrender, no blood should be shed. The garrison surrendered; and Temures buried them all alive. Now Temures fulfilled the promise in one sense, and in the sense too in which he intended it at the time; but not in the sense in which the garrison of Sebastia actually received it, nor in the sense in which Temures himself knew that the garrison received it which last sense, according to our rule, was the sense in which he was in conscience bound to have performed it.
From the account we have given of the obligation of promises, it is evident, that this obligation depends upon the expectations which we knowingly and voluntarily excite. Consequently, any action or conduct 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 situ ation 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 afterward 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 afterward 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. 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