This will not differ from the actual intention of the promiser, where the promise is given without collufion or referve; but we put the rule in the above form, to exclude evasion in cafes in which the popular meaning of a phrase, and the ftrict grammatical fignification of the words differ, or, in general, wherever the promifer attempts to make his escape through fome ambiguity in the expreffions which he used.

Temures promised the garrison of Sebastia, that, if they would furrender, no blood fhould be fhed. The garrifon furrendered; and Temures buried them all alive. Now Temures fulfilled the promife, in one fenfe, and in the fenfe too in which he intended it at the time; but not in the sense in which the garrifon of Sebaftia actually received it, nor in the fenfe in which Temures himself knew that the garrifon received it; which last sense, according to our rule, was the fenfe he was in conscience bound to have performed it in.

From the account we have given of the obligation of promifes, 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

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is as much a promise, and creates as strict an obligation, as the most express affurances. Taking, for inftance, a kinfman's child, and educating him for a liberal profeffion, or in a manner suitable only for the heir of a large fortune, as much obliges us to place him in that profeffion, or to leave him fuch a fortune, as if we had given him a promise to do fo under our hands and feals. In like manner, a great man, who encourages an indigent retainer; or a minifter of state, who distinguishes and caresses at his levee, one who is in a fituation to be obliged by his patronage, engages, by fuch behaviour, to provide for him.-This is the foundation of tacit promises.

You may either fimply declare your present intention, or you may accompany your declaration with an engagement to abide by it, which conftitutes a complete promife. In the first case, the duty is fatisfied, if you were fincere, that is,

if

you entertained at the time the intention you expreffed, however foon, 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, ftrictly taken, amount to no more than declarations of present intention,

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intention, do yet, in the ufual way of understanding them, excite the expectation, and therefore carry with them the force of absolute promifes. Such as, "I intend this place."

you

"I defign to leave you this estate.”—“ I pur

pose giving you my vote."—" I mean to serve "you."-In which, although the "intention," the "defign," the "purpose," the "meaning," be expreffed 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 expreffions by an additional claufe, as "I intend at present”– if I dont alter-or the like—and after all, as there can be no reason for communicating your intention, but to excite fome degree of expectation or other, a wanton change of an intention which is once disclosed, always disappoints fomebody; and is always, for that reason, wrong.

There is, in fome men, an infirmity with regard to promises, which often betrays them into great diftrefs. From the confufion, or hesitation, or obfcurity, with which they exprefs themselves, especially when overawed, or taken by surprise, they fometimes encourage expectations, and

bring upon themselves demands, which, poffibly, they never dreamed of. This is a want, not fo much of integrity, as of prefence of mind. III. In what cafes promifes are not binding.

1. Promises are not binding, where the performance is impoffible.

But obferve, that the promifer is guilty of a fraud, if he be privately aware of the impoffibility, at the time of making the promise. For when any one promifes a thing, he afferts his belief, at least, of the poffibility of performing it; as no one can accept or understand a promise under any other fuppofition. Inftances of this fort are the following. The minifter promifes 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 eftate, which he knows to be entailed upon the heir male of his family-A merchant promises a ship, or fhare of a fhip, which he is fecretly advised is loft at fea-An incumbent promises to refign a living, being previously affured that his refignation will not be accepted by the bishop. The promifer, as in these cafes, with knowledge of the impoffibility, is juftly anfwerable in an equivalent; but otherwife not.

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When

When the promiser himself occafions the impoffibility, it is neither more nor less than a direct breach of the promise; as when a foldier maims, or a fervant difables himself, to get rid of his engagements.

2. Promises are not binding, where the performance is unlawful.

There are two cafes of this; one, where the unlawfulness is known to the parties, at the time of making the promise; as where an affaffin promises his employer to dispatch his rival or his enemy; a fervant to betray his master; a pimp to procure a miftrefs; or a friend to give his affiftance in a scheme of feduction. The parties in these cases are not obliged to perform what the promife requires, because they were under a prior obligation to the contrary. From which prior obligation what is there to discharge them? their promife-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 fuch promises lies in the making, not in the breaking them; and if, in the interval betwixt the promise and the performance, a man fo far recover his reflection, as to repent of his engagements, he ought certainly to break through them.

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