decides the question the other way,* and attempts to separate the obligation to perform the promise, from the criminal affection which prompted it, and from the immoral tendency of the transaction. But it seems to me, that the subject-matter, the motives of the parties, and the general tendency, character, and circumstances of the entire transaction, ought to be viewed in connexion with the question of the performance of the promise, and as inseparable from it. If so, the opinion of Bishop Sanderson must be sustained. All the considerations of public policy are on the side of Bishop Sanderson's decision; and this is further evidence of its soundness. For, considerations of public policy, and the principles of good morals, always coincide, when both are viewed in all their connexions, tendencies, and influences.† A promise cannot be deemed immoral, where it produces, when performed, no effect beyond what would have taken place, had the promise never been made. And this is the single case, in which the obligation of a promise will justify a course of conduct, which, unless it had been promised, would have been unjustifiable. A captive may rightfully recover his freedom by a promise of neutrality; for his conqueror gains nothing by the promise, which he might not have secured by his confinement; and neutrality will be innocent in him, although unjustifiable in another. It is manifest, however, that promises which are substituted in the place of coercion, can extend no further than to passive compliances, for coercion itself could compel no more. Upon the same principle, promises of secrecy, in certain cases, ought not to be violated, although the public might derive advantage from the disclosure. Such promises contain nothing in them which ought to destroy or impair their obligation; for, as the information would not have been imparted upon any other condition, the public lose nothing by the promise, which they would have gained without it. This applies to the relation sub * Moral and Political Philosophy, p. 78. The views contained in this paragraph are fully sustained by the analogies of the purest branches of the law. See Story on "Constructive Fraud," in his "Commentaries on Equity Jurisprudence," pp. 290 - 324. And again, in his "Conflict of Laws," pp. 204, 209, 210, 213–215. This learned author seems to omit no fair occasion to bring into notice and enforce the morals of the law. sisting between a lawyer and his client, a confessor and the person confessing, both of which relations are highly confidential. Many writers on morals have laid down the position, that, where a perfect and an imperfect obligation clash, the perfect obligation is to be preferred. For this opinion, however, there seems to be no good reason, the terms perfect and imperfect, cannot justify such a distinction. The distinction between duties of perfect and imperfect obligation, is a legal and technical, rather than a moral distinction. The former may be enforced by law, the latter must be left to the conscience of each individual. The moral philosopher looks at them both from the same elevated point of view. The specific performance, therefore, of promises of every kind, so far as they are binding at all, is a perfect obligation. For, as the reason of the rule applies to all obligations, imperfect as well as perfect, the rule, that promises are void where the performance is immoral, extends to imperfect as much as to perfect obligations. Thus, if you promise a man your vote, and, between the time of promise and performance, he renders himself unfit to receive it, you are absolved from the obligation of your promise. Or if it be a case, in which you are bound, by oath or other obligation, to govern yourself by the qualifications of the candidates, and a candidate of higher qualifications appears, the promise must be broken through.* If the matter of a promise is impossible or immoral at the time of making it, but the circumstances are such as may be changed, and a change in the promiser's circumstances may render it possible, or consistent with good morals, for him to perform his promise at some time hereafter, it is binding. The meaning of the promiser at the time must have been 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 consistent with good morals. The obligation of such promises, in the mean time, is in suspense, but is revived when the event happens which renders the performance of them possible or moral. † Again, a promise is a personal concern, and the obligations of a man's promise do not descend to his heirs. Promises are obligations upon his person only, they do not affect his property. 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 liberality and indulgence only, when the heir to an estate undertakes to make good the promises of his ancestor.* * Moreover, it may be well to recommend a caution, to young persons especially, from the neglect of which many have involved themselves in embarrassment and disgrace; that is, never to give a promise which may in any event interfere with their duty. For, if it so interferes, their duty must be discharged, though at the expense of their promise, and usually, in a measure, of their reputation. † Finally, when a promise is made to God, it is called a vow. The use of vows occurs occasionally in the Scriptures; Moses enacted several laws for the regulation and execution of them. "When thou shalt vow a vow unto the Lord thy God," says he, "thou shalt not slack to pay it; for the Lord thy God will surely require it of thee; and it would be sin in thee. But, if thou shalt forbear to vow, it shall be no sin in thee." We have instances. of vows too, in the New Testament. § The practice of making vows, therefore, finds authority, if not direct encouragement, in the Old and New Testament. They partake also, in some measure, of the nature of oaths, and their influence in strengthening and perpetuating good intentions and resolutions seems manifest. The violation of them is sinful, as it implies a want of reverence and regard to the Supreme Being. We may conclude with the wise man ; "When thou vowest a vow unto God, defer not to pay it; for he hath no pleasure in fools (that is, rash and vain persons); pay that which thou hast vowed. Better is it that thou shouldst not vow, than that thou shouldst vow and not pay." || *Rutherforth's Institutes of Natural Law, p. 90. Eccl. v. 4, 5. CHAPTER VI. OBSERVANCE OF CONTRACTS. A CONTRACT has been defined to be, the assent of two or more minds to the same thing. The minds of both parties, it is said, must be brought to act upon the same subject-matter, and must concur in opinion respecting it. But by a definition better suited to my purpose, because more easily applied, and capable of a more distinct and easy analysis, a contract is a mutual promise. Hence, contracts, in respect to their obligation, to the sense in which they are to be interpreted, and the cases in which they are not binding, are subject to the same rules as promises. From the principles before established, that the obligation of promises is to be measured by the expectation which the promiser in any way, voluntarily and knowingly, excites,* results the rule, which (in foro conscientia) governs the construction of all contracts, and which is capable, from its simplicity, of being applied with great ease and certainty; to wit, that whatever is expected by one party, and known to be so expected by the other, is to be deemed a part or condition of the contract. † But as contracts are so much more the object of municipal law, than of moral philosophy, I shall not dwell much upon them. A few general observations, however, relative to the connexion between law and morals, and their respective bearing on each other, so far as this subject is concerned, may be useful. 1. There is a gratifying and instructive coincidence between the rules of Christian morals, and the rules and doctrines of the law, in regard to contracts. "No man can be heard in a court of justice, to enforce a contract founded in, or arising from, moral or political turpitude. Again, "As far as it can be enforced by human sanctions, the rule of the municipal law is identical with the golden precept taught by Christianity, of doing to others as * See pp. 202, 204. + Paley's Moral and Political Philosophy, p. 83. we would that they should do to ourselves." Moreover, "Where the law cannot separate the honest from the fraudulent parts of any transaction, it provides for its own imbecility, by sternly repudiating the whole."* By the rule of the common law, if there be an intentional concealment or suppression of material facts in the making of a contract, in cases in which both parties have not equal access to the means of information, it will be deemed unfair dealing, and will vitiate and avoid the contract. There may be some difference in the facility with which the rule applies, between facts and circumstances that are intrinsic, and form material ingredients of the contract, and those that are extrinsic, and form no component part of it; though they create inducements to enter into the contract, or affect the price of the article. As a general rule, each party is bound, in every case, to communicate to the other his knowledge of material facts, provided he knows the other to be ignorant of them, and they be not open and naked, or equally within the reach of his observation. Thus, in the sale of a ship which had a latent defect known to the seller, and which the buyer could not by any attention possibly discover, the seller was held to be bound to disclose it, and the concealment was justly considered to be a breach of honesty and good faith. So, if one party suffers the other to buy an article under a delusion created by his own conduct, it will be deemed fraudulent and fatal to the contract; as, if the seller, by his acts, produces an impression upon the mind of the buyer, that he is purchasing a picture belonging to a person of great skill in painting, which the seller knows not to be the fact, and yet suffers the impression to remain, though he knows it materially enhances the value of the picture in the mind of the buyer. The seller must not practise any artifice to conceal defects, or make any representations for the purpose of throwing the buyer off his guard. The same principle was declared by Lord Hardwicke, when he stated, that, if a vendor, knowing of an incumbrance upon an estate, sells without disclosing the fact, and with knowledge that Story, Conflict of Laws, p. 204.- Manuscript Lecture of Simon Greenleaf, Esq., Royall Professor of Law in Harvard University. |