But obferve, that the promiser 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 leaft, 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 promises a place, which he knows to be engaged, or not at his difpofal-A father, in fettling 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 fhip, which he is fecretly advised is loft at fea-An incumbent promifes to refign a living, being previously affured that his refignation will not be accepted by the bifhop. The promifer, as in thefe cafes, with knowledge of the impoffibility, is juftly answerable in an equivalent; but otherwife not.

When the promifer himself occafions the impoffibility, it is neither more nor less than a direct breach of the promife; as when a soldier maims, or a fervant difables himfelf, to get rid of his engage

ments.

2. Promifes 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 promife; as where an affaffin promises his employer to difpatch his rival or his enemy; a fervant to betray his mafter; a pimp to procure a mistress, or a friend to give his affiftance in a scheme of feduction. The parties in thefe cafes 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 difcharge them? their promife-their own act and deed but an obligation, from which a man can difcharge himself, by his own act, is no obligation at all. The guilt therefore of fuch promifes lies in the making,

making, not in the braking them; and if, in the interval betwixt the promife and the performance, a man fo far recover his reflection, as to repent of his engagements, he ought certainly to break through them.

The other cafe is, where the unlawfulness did not exist, or was not known, at the time of making the promife; as where a merchant promifes his correfpondent abroad, to fend him a fhip-load of corn at a time appointed, and before the time arrives, an embargo is laid upon the exportation of corn-A woman gives a promise of marriage, before the marriage, The discovers that her intended husband is too nearly related to her, or that he has a wife yet living. In all fuch cafes, where the contrary does not appear, it must be presumed, that the parties fuppofed what they promised to be lawful, and that the promise proceeded entirely upon this fuppofition. The lawfulnefs therefore becomes a condition of the promise and where the condition fails, the obligation ceafes. Of the fame nature was Herod's promife to his daughter-in-law, "that he would give her whatever "The 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 fo by the daughter's choice, by her demanding " JOHN the Baptift's head," Herod was difcharged from the ob ligation of it, for the reafon now laid down, as well as for that given in the last paragraph.

This rule," that promifes are void, where "the "performance is unlawful," extends alfo to imperfect obligations; for the reafon 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 abfolved from the obligation of your promife; or, if a better candidate appear, and it be a cafe in which you are bound by oath, or otherwife, to govern yourfelf by the qualification, the promife muit be broken through,

And

And here I would recommend, to young perfons especially, a caution, from the neglect of which, many involve themselves in embarraffment and difgrace; and that is, "never to give a promise "which may interfere in the event with their "duty;" for if it do fo interfere, their duty must be discharged, though at the expence of their promise, and not unusually of their good name.

The specific performance of promises is reckoned a perfect obligation. And many cafuifts have laid down, in oppofition to what has been here afferted, 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 reafon, but what arifes 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 fubject or motive of the promife, which deftroys its validity; therefore a bribe, after the vote is given; the wages of proftitution; the reward of any crime, after the crime is committed, ought, if promifed, to be paid. For the fin and mifchief, by this fuppofition, are over, and will be neither more nor lefs for the performance of the promise.

In like manner, a promife does not lofe its obligation, merely because it proceeded from an unlawful motive. A certain perfon, in the life-time of his wife, who was then fick, had paid his addreffes, and promised marriage to another woman-the wife died; and the woman demanded performance of the promise. The man, who, it feems, had chang ed his mind, either felt or pretended doubts concerning the obligation of fuch a promise, and referred his cafe to Bifhop SANDERSON, the most eminent in this kind of knowledge, of his time.

Bishop SANDERSON, after writing a differtation upon the question, 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 promife, the performance, when it was demanded, was lawful; which is the only lawfulness required.

Á 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 fingle cafe, in which the obligation of a promife will justify a conduct, which, unless it had been promifed, would be unjuft. A captive may lawfully recover his liberty, by a promife of neutrality; for his conqueror takes nothing by the promife, which he might not have fecured by his death or confinement: and neutrality would be innocent in him, although criminal in another. It is manifeft, however, that promises which come into the place of coercion, can extend no farther than to paffive compliances; for coercion itself could compel no more. Upon the fame principle, promises of fecrefy ought not to be violated, although the public would derive advantage from the difcovery. Such promifes contain no unlawfulness. in them, to destroy their obligation; for, as the information would not have been imparted upon any other condition, the public lofe nothing by the promife, which they would have gained without

it.

3. Promifes are not binding, where they contradict a former promise.

Because the performance is then unlawful, which refolves this cafe into the last.

4. Fromifes are not binding before acceptance; that is, before notice given to the promifee, for, where the promife is beneficial, if notice be given, acceptance may be prefumed. Until the promife be communicated to the promifee, it is the fame only

as

as a refolution in the mind of the promifer, which may be altered at pleasure. For no expectation has been excited, therefore none can be difappointed.

But fuppofe I declare my intention to a third perfon, who, without any authority from me, conveys my declaration to the promifee; is that fuch a notice as will be binding upon me? It certainly is not: for I have not done that which constitutes the effence of a promise-I have not voluntarily excited expectation.

5. Promifes are not binding which are released by the promisee.

This is evident; but it may be fometimes doubted who is the promisee. If I give a promise to A, of a place or vote for B; as to a father for his fon; to an uncle for his nephew; to a friend of mine, for a relation or friend of his; then A is the promifee, whose confent 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 meffenger to convey the promise, as if I fhould fay, "you may tell B, that he fhall have this

place, or may depend upon my vote;" or if A be employed to introduce B's requeft, and I answer in any terms which amount to a compliance with it, then B is the promisee.

Promises to one perfon, for the benefit of another, are not releafed by the death of the promifee. For his death, neither makes the performance impracticable, nor implies any confent to release the promiser from it.

6. Erroneous promises are not binding in certain. cafes; as,

1. Where the error proceeds from the mistake or mifreprefentation of the promifee.

Because a promise evidently supposes the truth of the account, which the promifee relates in order to obtain it. A beggar folicits your charity by a ftory of the most pitiable diftrefs-you promife to relieve