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to another person a right to its performance, which he cannot violate without injustice.
“ Temures,” says Paley, in illustration of this position, “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 was the sense in which he was in conscience bound to have performed it*.”
If we knowingly and voluntarily by signs merely, not less than by language, awaken expectation in another, that is, if our conduct towards any person be such as designedly on our part to produce a natural expectation on his, we are as much bound by the laws of morality to fulfill this expectation, as if it had been excited by a promise in words. It becomes all, therefore, as they value their own peace and respectability of character, and more especially does it become those of a warm temperament, an ardent and generous disposition of mind, to deliberate, to weigh well the import of their words, before making a promise, lest they be led by surprise, or goodnature, or importunity, to encourage expectations which, without doing injustice to themselves, or to their families, or to the interests of the community, they may not be able to fulfil. When, from whatever cause, such promises are made, we find ourselves placed in trying circum
* Moral Phil. v. i. p. 127.
stances,--trying to our virtue and happiness; and though the result may not impair our intégrity, it may greatly affect the estimation in which we are held, and consequently our power of doing good.
Another question of which moralists and casuists have thought it requisite to attempt a solution is, In what cases are promises not binding ? To this it may briefly be replied, that man is morally bound to fulfil his engagements, whether the person to whom the
promise was made, or with whom the contract was entered into, has any power to enforce the fulfilment. He can only be released from his obligation by a physical incapability of performing, or by the previous unlawfulness of the stipulation into which he has entered. He may and he ought to feel the sinfulness of having promised, or engaged to perform, what by no exertions on his part he can possibly accomplish ; but he can have no ground for moral disapprobation for not doing that which to him is impossible. If he was aware of this impossibility at the time that he made the engagement, he is very criminal, inasmuch as he has fraudulently awakened expectations, knowing that it was beyond his power to gratify them.
If it be immoral in us to perform a certain action, it cannot be lawful for us to do it; and consequently, we are not bound to do it, merely because we have entered into an engagement to that effect. We may, and it is very proper that we should suffer from remorse, for having promised or contracted to do what was in itself sinful in us in any circumstances to perform; but we can feel none in consequence of our non-performance. We have just cause to regret our error ; but to fulfil our engagement could only furnish an additional ground of self-condemnation. The criminality of such promises and engagements lies in making them; the sincerity of our repentance is proved by breaking them.
A memorable example of an unlawful promise and oath we have in the case of Herod. He promised to his daughter-in-law, “ that he would give her whatsoever she asked, even to the half of his kingdom.” There was nothing exceptionable in the terms in which Herod made this promise. It is presumed that he had a right to give away the half of his kingdom. But he could have none to take away the lives of innocent human beings. So far, therefore, from being bound by his oath to comply with the unlawful demand of Herodias, he was laid under the strongest moral obligation, for the reasons already assigned, to resist and refuse it. It
proper here to remark, that a promise or engagement may be highly criminal, from the time and manner in which it was made, and the dispositions in which it originated, and yet it may be unlawful to break it. Cases of this nature, it is presumed, are of rare occurrence ; but as the question involved in it was thought to be of sufficient importance to merit a dissertation from a most distinguished casuist of a former age, it is meet that I should allude to it. “ A certain
in the lifetime 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 on 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 promise, the performance, when it was demanded, was lawful*.”
Are extorted promises binding ? They are so in every case in which the thing promised is lawful, that is, when the promise is of that nature that it may be performed without infringing on my duty to God, to my neighbour, or to myself. If the extorted
promise refers to what is in itself unlawful, of course it ought not to be performed.
ON THE DUTIES OF CONTRACT WHICH RELATE TO COMMER
A CONTRACT differs from a promise, in its being the mutual and voluntary engagement of two parties, in which each comes under an obligation to the other, and each reciprocally acquires a right to what is promised by the other.
The observations made in the former chapter, as to the sense in which a promise is to be interpreted, and the cases in which promises are not binding, will be found generally applicable to contract. We are also to recall to our recollection what has been already advanced concerning the importance of veracity and fidelity to the virtue, industry, and happiness of mankind.
* Paley's Mor. Phil. v. i. p. 135.
If that provision, by which human beings are enabled to barter what they do not want for a commodity which they require, be infinitely important to the comfort and moral improvement of the race, then is every act of infidelity in regard to commercial bargains a direct attack on the industry, civilization, and happiness of man. The individual guilty of it, not only sins against God, by violating an explicit commandment, but does what in him lies to frustrate the ends of his government, by weakening the support of public confidence, and reducing human society to a state of anarchy, idleness, and misery.
He, therefore, who does not honestly use his best exertions to fulfil the engagements he has entered into, is deserving of punishment. From the difficulty of distinguishing between mere misfortune and fraudulent insolvency, it sometimes happens that the innocent may suffer the disgrace due to the guilty. But this is an evil for which perhaps in this world there is no remedy. If infidelity to commercial engagements be a crime which very deeply affects the most valuable interests of mankind, it is right that, like other crimes against human society, it should be punished; though the general infliction of punishment on this class of delinquents may in some very rare instances fall on individuals who ought to escape. The great facility with which a dishonest man may in