The most excellent Hugo Grotius, his three books treating of the rights of war & peace in the first is handled, whether any war be just : in the second is shewed, the causes of war, both just and unjust : in the third is declared, what in war is lawful, that is, unpunishable : with the annotations digested into the body of every chapter / translated into English by William Evats ...

CHAP. XI. Of Promises.

• I. That Naturally a Right may arise from Promises. The contrary opinion refuted.
• II. A bare assertion obligeth not.
• III. That Naturally a single Promise obli∣geth, but from thence no Right accrues to another.
• IV. What that Promise is, from whence a Right ariseth to another.
• V. First, It is required that the Promiser have the use of Reason. The Law of Nature distinguisht from the Civil Law, about Minors.
• VI. A Promise made through Error, whe∣ther it obligeth Naturally, and how far.
• VII. A Promise made out of Fear binds, yet is he that caused that Fear bound to re∣mit the Promiser.
• VIII. That the Promise be valid, it ought to be in the power of the Promiser to ful∣fil it.
• IX. Whether a Promise made for something that is vitious do Naturally oblige, explain∣ed by distinction.
• X. What we are to judge of a Promise made to gain something that was before due.
• XI. The Form of a firm Promise.
• XII. The manner how a Promise may be validly made by others: Where also is dis∣cust that of Embassadours, exceeding their Commissions.
• XIII. Masters of Ships and Factors, how far they are obliged by the Law of Nature: Where also is observed the Error of the Ro∣man Laws.
• XIV. To make a Promise valid, Acception in him, to whom the Promise is made, is requisite.
• XV. Whether this Acception ought to be cer∣tified to the Promiser, explained by distin∣ction.
• XVI. A Promise may be revoked, the person to whom the Promise is made, dying before its acceptance.
• XVII. Whether it be revocable, the person dying, by whom the Promise was sent, ex∣plained by distinction.
• XVIII. Whether a Promise be revocable, being accepted by another, explained by a distinction.
• XIX. In what time a Charge may be added to a Promise.
• XX. How a weak Promise may be made firm and valid.
• XXI. A Promise made without cause is not naturally void.
• XXII. A Promise made for the Fact of ano∣ther, how far it obligeth Naturally.

I. That Natu∣rally a Right may arise from Pro∣mises.

BY our Method formerly designed, we are now to treat of obligations made by Promise; where we find Franciscus Connanus, a man eminently learned, oppo∣sing us, who holds, That those Promises that are not made for a valuable consideration, oblige not, either by the Law of Nature or Nations. And yet he confesseth, That they might justly be performed, in case the thing promised be such as might justly and honestly be fulfilled, though no such Promise had been made. To confirm which opinion, he produceth not only the testimonies of some Lawyers, but these Reasons also: First, That he who believes every rash Promise causlesly made, is no less to be blamed than he that believes none at all. Secondly, That it would endanger most mens Fortunes, were men bound to perform all their Promises, which for the most part are made more out of oftentation, than a premeditated Will and Purpose to fulfil them. Lastly, That it is fit that some things should be left to every mans honesty, and not to reduce all promises to a necessity of Performance. And whereas it is said, That it is dis∣honest not to perform what we have promised, the meaning is not that it is unjust, but that it argues lightness and inconstancy in the Promiser. Thus pleads Connanus, urging besides the Testimony of Cicero, who denies that those promises are to be per∣formed, which are to them to whom they are made, unprofitable; or that infer more damage to him that made them, than benefit to them to whom they are made. But yet in case the matter be not entire, (something having been performed by the one party) then he would have the other party obliged, not unto all that was promised, but unto that only that is in difference between them: And for those agreements that of them∣selves are not binding, they receive their obliging power, either from the Con∣tract wherein they are, or whereunto they are adjoyned, or from the delivery of the thing: From whence arise, partly Actions, partly Exceptions, and prohibited Reclaims. But as to those that may have their obligatory power according to the Laws, as those made by stipulation, with some others, they receive their binding faculty from the benefit of the Laws, whose efficacy is such as to make that which in it self is only honest, to be

even necessary. But this opinion of Connanus, taken so generally as he seems to express it, cannot be current: For in the first place it would thence follow, That those Articles of Agreement that are made between Kings, and between the people of diverse Nations, so long as nothing was on either side performed, were of no force; especially, in such places where are no set Forms of Leagues or Sponsions found. Besides, no Reason can possibly be given why Laws (which are but as it were so many common Covenants or Promises of the people, for so both Aristotle and Demosthenes term them) should add such an obliging force unto Agreements. And yet that every mans own Will endea∣vouring by all means to oblige it self, cannot do the same thing; especially where the Civil Law gives no restraint or Impediment unto it. Whereunto add, That the Domi∣nion of a thing may be transferred by the Will being sufficiently declared: And why therefore may not the Will have the same Right over a person, either to transfer Domi∣minion (which Right is less than Dominion it self) or to do something, seeing that we have the same power over our Actions, as we have over our Goods? And herein like∣wise we have the consent of the learned. Nay, the Hebrews hold that where the thing consulted about, will not admit of delay, our silence is equivalent to a Sponsion. For as the Lawyers say, No Title can be naturally more assured, than that which the Pro∣prietor doth willingly transfer to another: In the same manner it is said there is nothing so fit to preserve faithful dealing among men, as to observe and perform whatsoever is promised and agreed upon between themselves. So a Decree for the payment of Mo∣ney promised, though there were no other reason assigned why it should be due, but the free consent of him that promised it, is said to be agreeable to Natural equity. He, saith Paulus the Lawyer, doth naturally owe, and by the Law of Nations must give,* 1.1 up∣on whose word and promise we have relied: Where in the first place we must observe, That this word. [Oportet] Must, implies a kind of necessity: Neither may we admit of that which Connanus takes as granted, That we are then said to rely upon a mans faith, when the thing ceaseth to be entire (that is, when something is already performed by one party.) For Paulus in that place treats of a personal Action brought for a thing not due, which presently ceaseth as soon as something (upon what agreement soever) is paid: Because, even before, when nothing was as yet performed on either side, by the Laws of Nature and Nations, what was promised, ought to be given; although the Civil Law, to prevent the occasions of unnecessary suits, do give little or no encou∣ragement to exact it. But Tully in his Offices attributes so great a power to Promises,* 1.2 that he makes Faithfulness to be the very foundation of Justice; which Horace also calls the Sister of Justice: As the Platonists also do oft-times express Justice by 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉,* 1.3 Truth: Which Apuleius renders by the word Fidelity: And Simonides calls it Justice, not only to restore what we have received, but even to speak Truth, (that is, to per∣form what we have promised.) But to clear this yet better, we must carefully distinguish between the three degrees of speaking concerning things to come, which either are, or at least are reputed to be hereafter in our own power.

II. 1. That a bare assertion obli∣geth not.

The first consists in a bare assertion of what we purpose for the future, things thus standing, and in the same mind we now are: And hereunto it is requi∣red, that we speak sincerely, and without guile, what at that present time we think: But not with any resolution to continue in that thought, if the face of things change, or if other chances happen, which though we then foresee not, yet may otherwise incline us. For the mind of man hath not only a Natural Power,* 1.4 but a Right and Freedome to alter its counsels; and if there be any weakness or error in the change, as it often happens, that is not intrinsick to the change, but to the matter, in that we change from the better to the worse.

III. 2. A Promise though natu∣rally obliging, yet transfers no Right to another.

The Second degree is when the will confines it self for the time to come, giving some sign whereby the necessity of its perseverance is sufficiently declared, and this may be called a Pollicitation, or a Promise; which setting aside the Civil Law obligeth either ab∣solutely, or under some condition, yet gives no peculiar Right to another. For in ma∣ny cases it happens, that there may be an obligation within our selves when there is no Right given to another, as may appear by those debts of mercy and gratitude, where∣unto we may refer those of Constancy and Fidelity; and therefore no man can by the Law of Nature require the thing promised from the right owner by vertue of such a Pollicitation, nor can the Promiser be compelled by that Law to perform what he hath so promised.

IV. 3. What that Promise is that gives a Right to ano∣ther.

Thirdly, When the Will to the confinement adds some outward sign whereby its con∣sent to transfer its own proper Right to another is sufficiently declared: Which is a com∣pleat Promise, as having the like effect to the alienation of a mans Property. For it is the way to alienate a thing, or, at least, the alienation of some part of our Liberty or Freedome. Unto the former belongs our Promises to give, unto the latter our Promises to do something. And hereof the Scriptures do give us a no∣table

example, where they tell us, That God himself, who cannot be bound by any Law; yet professeth it to be contrary to his own Nature, not to perform what he pro∣miseth,* 1.5 Heb. 6.17, 18. From whence it is plain, That to perform our Promises is a duty springing from the Nature of Immutable Justice; which as it is in God, so is it in some measure, common to all such as have the use of right Reason. Let us hear the opinion of Solomon in this case, My Son, if thou hast been surety for thy Friend, thou hast given thy Faith to a stranger; or (as the Septuagint translate it) to thine Enemy: Thou art ensnared by the words of thy mouth: Thou are taken and bound by thine own Speech. Whereunto may be added that of Thales the Philosopher,* 1.6 Sponde noxa presto est; Engage freely, and thou art not far from harm. And that also of Chilo, Sponsioni non deest jactura; Engagements are seldome made to loss. Hence it is, that the Jews term a Promise, Vinculum, A Bond, which also in the Scriptures is compared to a Vow; as if by Vows and Promises we did contract (as it were) with God himself. From the same Root ariseth the Greek word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, which likewise signifies a Promise, namely, from 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, which signifies To have or to hold: Because he to whom any thing is promised, doth hold fast, and, as it were, bind the Promiser. These things promis'd, Connanus his Arguments are easily an∣swered; For what the Lawyers say, De nudo pacto non oritur actio; A bare Promise will bear no Action: hath respect only to what was introduced by the Roman Laws, which made Stipulation to be an infallible sign of a deliberate mind. Paulus the Lawyer speaks very warily of such Promises,* 1.7 If (saith he) we make a bare Promise to pay use, it avails nothing; for among Roman Citizens no Action ariseth from a bare Promise. The like Laws we grant to be in force among other Nations, Quae lex ad id praestandum, nos quod alicui promisimus,* 1.8 obligat? What Law (saith Seneca) binds us to perform all our Promises? Where he speaks of humane Laws and of rash and inconsiderate Promises. But if we respect the Law of Nature only, there may be other signs of a mind perfectly resolv'd, besides that which the Romans introduced by Stipulation, or if there be any other such like, which the Civil Law requires to beget an Action. But as to that Promise which is made rashly, and with∣out due consideration, neither do we admit it to have any obliging power, as Theophra∣stus hath well observ'd. Yea, and as to that which is deliberately done, but not with a purpose thereby to transfer our own proper Right to another,* 1.9 we deny that from thence there ariseth Naturally a Right to any man to exact the performance of it. Al∣though we do acknowledge, That from such a Promise there may arise an obligation, not in honesty alone, but in a moral necessity to do it. And as to that of Cicero we shall treat hereafter, when we shall discourse of the manner how Contracts are to be understood. But now let us see what Conditions are required to make a Promise valid.

V. To make a Promise com∣pleat, the use of Reason is required in the Promiser.

And in the first place it is requisite that he that promiseth should be endued with Reason, which renders the Promises of Mad-men, Ideots, and Infants void, and of no force; but the case of Minors is somewhat different: For although they are believed to be but of weak judgement, as Women also are; yet neither is this weakness of Judge∣ment lasting, nor is it of it self sufficient to invalid their acts. At what years a young man or woman arrives at the use of Reason cannot certainly be determined, but must be gues∣sed at, either by their daily Actions, or by the Customes of every Nation: Among the Jews, a young man after thirteen years of age might oblige himself by any solemn Promise he should make, and a young woman after twelve. But the Civil Laws, upon better reason, thought good to make void many of their Promises, not only among the Romans, but among the Grecians. And against some they introduced the benefit of Restitution: But these are the peculiar effects of the Civil Law, and do no whit apper∣tain to the Laws either of Nature or Nations; except only in this, that where they are received, it is agreeable to Nature that they should be observ'd. Insomuch that if a Foreigner shall contract with a Citizen, he shall be bound up by the Laws of that City, as if he were, for that time, a Subject of that Nation. But it were otherwise in case such a Contract were made either on the Seas, or in some desart Island, or by Let∣ters between two persons inhabiting diverse Nations. For then such Agreements should be regulated by the Law of Nature only, as are the Agreements made between such as are invested with the Supreme Power, as they are such: For in these, what they do pri∣vately, may by their Laws be made void, when it is done in favour to those powers, but not when done to their Punishment.

VI. A Promise made through er∣ror, how far Naturally it obligeth.

Concerning a Promise made by an error or mistake in the person promising, the que∣stion is yet more difficult. For we are to distinguish between that Error which is about the substance of the thing promised, and that which concerns not the substance; and then we are to consider whether the Fraud gave occasion to the Promise or not. Again, whe∣ther he with whom we have to do be guilty of the Fraud or not. And lastly, Whether the Act be strictly due, or binds only in Honesty and Conscience. For the opinions of Lawyers do vary according to the variety of these cases, declaring some acts to be void

and others valid. But so, that according to his will and pleasure that is injured, the promise may be either revoked or reformed. But most of these distinctions proceed from the Roman Laws; as well from the old Civil Law, as from the Praetorian: And some of them are either not altogether true, or not well digested. But yet it sufficeth to chalk out a way for us to find out the natural truth; for as concerning the force and efficacy of Laws, this hath ever been allowed of by the general consent of almost all Nati∣ons, That when a Law is enacted upon the presumption of such a Fact as was not re∣ally so done as was suggested, and believed, that Law is not obliging, because the truth of the Fact failing, the foundation of that Law faileth with it. But when a Law is grounded upon such a presumption, may be gathered from the matter of that Law, from the Words, and from other Circumstances. The like may be said in this case, if a Promise be made upon the belief of such a fact as indeed never was done, that Promise naturally is of no force; because the Promiser did not give his consent absolutely to the thing promised, but upon such a condition (if not exprest, yet presumed) as really was not: As in that case mentioned by Cicero, of him who falsly believing his own Son to be dead, appointed a stranger to be his heir. And yet in case the Promiser were neglective, either in his diligence to examine and search out the truth of his Sons death, or in his care of expressing his own sense, and did thereby occasion any damage to the person to whom he made that Promise, he shall be obliged to repair it: Not upon the account of his Promise made, but for the damage, which through his neglect, was su∣stained by him to whom it was made; whereof we shall speak more anon. But if there were an error or mistake in the person promising, and yet that Error was not the cause of the Promise made, the act shall be valid, because there was nothing wanting of a true consent: But if in this case also the person to whom the Promise was made, did by any fraud of his, directly or indirectly, occasion that error, what damage soever shall accrue to the Promiser by reason of that Error, shall be by him repaired. But if the Promise were but in part occasioned by an Error, then as to the other part the Promise shall stand good.

VII. A Promise made through fear obligeth.

Concerning those Promises that are made through Fear, questions do arise no less perpiext. For herein they do usually distinguish of Fears, which are either great and vehement, or light and slender: If great, then they consider whether it be so absolute∣ly, or in respect only of the person fearing: Then whether it be occasioned justly or unjustly; and whether by him to whom the Promise was made, or by some other: As also they distinguish of the Acts, whether free and generous, or grievous and burdensome; and according to this diversity, are some Acts said to be void, others revocable at the pleasure of the Promiser, and others to be wholly renewed. Concerning every one of these cases, there are great differences in opinions. But I do wholly incline to those who hold, That setting aside that Authority of the Civil Law, which sometimes takes away, and sometimes moderates the binding power of such promises: He that promi∣seth any thing through Fear, is obliged to perform what he hath so promised; because the consent he gave was not conditional, as in the case of Error, but absolute. For as Aristotle well observes, He that for fear of being shipwrackt, throws his goods overboard,* 1.10 would willingly preserve them on condition that he might not be wreckt; but upon a seri∣ous consideration of the present danger he is in, he absolutely resolves that his goods ra∣ther than himself, shall perish. But yet we must also crave this allowance, That if he to whom the Promise was made, did occasion not a just, but an unjust Fear, though but slight; and that thereupon the Promise was so made, he is bound to discharge the Promiser if he desire it: Not that the Promise is in it self void, but for the damage that he sustained who made it, by reason of the injury done him.* 1.11 But what excepti∣ons the Law of Nations admits herein, shall in its proper place be hereafter explain∣ed. But that some Acts are rescinded, which were made through Fear, being occasi∣oned not by him with whom we have to do, but by another, is an effect of the Civil Law, which doth often either null or revoke Acts, though freely done, if they that do them be of weak Judgement. Seneca argues according to the Law of Nature, when he tells us, That whatsoever either Force or Fear or Necessity makes us to grant,* 1.12 may be revoked, if that Force or Necessity be imposed on us by him to whom the grant is made. But what, saith he, is that to me, what thou art compelled or necessitated to do, if not by me? Meam culpam oportet esse, ut mea poena sit; It is necessary that the Fault should be mine own, if the Punishment be so. Now what we have before said concerning the force and effi∣cacy of the Civil Law, were not amiss to be here repeated:* 1.13 But what force or strength Oaths do add unto Promises to confirm them, shall be shewed anon.

VIII. What is pro∣mised ought to be in the power of the Promiser.

Again, That a Promise may be strong and binding, it is necessary, That the thing promised either now is, or hereafter may be in the power of the Promiser. Where∣fore in the first place, we may be sure, That no Promise can bind us to that which is in it self unlawful: For, Id possumus quod jure possumus; That only we can do, which we can

do, which we can lawfully do. All promises receive their vigor from his Right that makes them, beyond which they are of no force. Agesilaus being once challenged upon his promise, answered, Bene si justum sit, seu minus dixi tantum, non & promisi; Ye do well to urge it, if what I promised were just; but if not, I only said it but did not promise it. But if the thing promised be not now in our power, but may be, then doth the strength of that Promise hang in suspence; because the Promise was but conditional, namely, if at any time it shall lye in my power. But if that condition whereby the thing may be in our power, be also in our power, then is he that made the Promise, obliged to do whatso∣ever is morally fit, that his Promise may be fulfilled. But the Civil Law nulls many Promises of this kind also for profit, which the Law of Nature would bind us unto: As when a man or woman shall promise to marry another hereafter, being now already mar∣ried: And not a few other Promises made by Minors and Children, whilest under their Parents tuition.

XI. Whether a Promise made to do an act simply evil obligeth.

But here it may be demanded, Whether a Promise for the performance of an act in it self vicious, doth naturally oblige: As if a man should Promise a Reward to him that should kill another. That this is a wicked Promise doth sufficiently appear by this, That it was made to excite a man to do a wicked Act. But yet not every thing that is viciously done, doth lose the effect of a just Right, as is manifest in things prodigally given, wherein notwithstanding there is this difference, That so soon as the gift is pro∣digally given,* 1.14 the obliquity ceaseth: For the gift contracts no soil from the giver, and therefore it may without sin be possest by those to whom it is given. But in Promises made to a vicious end, the vice remains so long till the crime be perpetrated: For so long the very fulfilling of the Promise being an incentive to vice, must needs be sinful; which begins to cease, when the crime is committed. Whence we may con∣clude, that the force and efficacy of such a Promise until that time did hang in suspence, as I said before, concerning the thing promised, being not in our own power. But the crime being done, then the obligation arising from that promise breaks sorth, which from the beginning was not intrinsically wanting, but hindred by a vice that was accidental. An example hereof we have in Judah the Son of Jacob,* 1.15 who performed his Promise unto Thamar, whom he dealt with as with an Harlot, by sending her the reward which by the Law of Nature, then in force, was due unto her. Though it be otherwise by the Civil Law, as may appear by the sentence which C. Aquilius past in the like case. But in case that Promise were occasioned by the fraud or injustice of the person to whom it was made, or if it were made upon any unequal terms or conditions, how it is to be rectified, is another Question, whereof we shall speak anon.

X. Concerning a Promise of that which was formerly due.

* 1.16But when any Promise is made for some cause formerly due, it is not thereby the less due, if we look unto Natural Right, according to what we have already said concern∣ing our acceptance of that which is anothers: Because Promises are Naturally debts, though there be no cause preceding; but here also, if any damage accrue by extor∣tion, or if there be any inequality in the agreement made, that damage is to be re∣paired, according to such Rules as shall be set down anon.

XI. The manner of a firm Pro∣mise made by our selves.

Now as to what appertains to the manner of promising, it requires, as I said before, concerning the Alienation of Dominion, some external Act or Sign sufficient to testifie the consent of the Will which may be done, sometimes by a beck or nod, but is usually done either by voice or writing.

XII. Of the like made by o∣thers.

But we may also be bound up by another mans act, if it appear that we have de∣puted and empowred him to act for us, either as our Instrument in that particular business, or under some general notion or qualification. And it may likewise hap∣pen, that where the Commission is to act in general, he that is so commissionated, may oblige us, by acting contrary to his private Instructions: For here are two di∣stinct Acts of the Will, the one whereby we oblige our selves to confirm and ratifie whatsoever our Agent shall do in such a business;* 1.17 the other, whereby we oblige our said Agent, that he shall not act beyond our secret Instructions: This we ob∣serve, in relation to those things which Ambassadours do Promise for their Masters, by vertue of their Instructions or Letters of Credence, but exceeding their secret Com∣mands.

XIII. The obligati∣tions of Ma∣sters of Ships and Factors, how far they naturally ex∣tend.

From hence also we may conclude, That such Actions as are brought against Masters of Ships and Factors (who have the charge of goods transported by Sea into foreign parts) which are not so much Actions, as qualities of Actions) are grounded upon the very Law of Nature. And here we cannot but note the error of the Roman Laws, which by the fact of the Master do bind every one of the Mariners for and in the whole, which is both repugnant to Natural Equity, which seems to be satisfied if every Ma∣riner be bound for what concerns himself: And also damagable to the Common∣wealth; for men would thereby be deterred from Navigating the Seas, fearing to be so strictly, and, as it were, infinitely bound by the fact of the Master. Inso∣much,

that in Holland, a Countrey of late famous for Merchandizing, this Roman Law both of old was, and now is of no force: Nay, rather on the contrary, it is decreed, That the Master and Mariners in general, shall each of them be bound no farther than to the value of the Ship, and the goods that are therein transported.

XIV. To a good Promise acce∣ptation is re∣quisite. A pretending demand ar∣gues an acce∣ptance, if no alteration ap∣pear.

But that a Promise should transfer a Right in the thing promised, the acceptance of him to whom it is promised, is no less requisite, than it was in the case afore∣said of Alienation: And herein Tertullian in his Book of Fasts, speaks like a Civili∣an, Votum cum à Deo acceptatum est, Legem in posterum facit; A Vow, (though freely made, yet) when it is by God accepted, is as binding as a Law. And here also a pre∣ceding demand of a thing promised, (if no alteration appear) shall be judged an ac∣ceptance. Neither doth that which the Civil Law hath introduced concerning such Promises as are made to Cities hinder this: Which notwithstanding hath so far pre∣vailed with some, that they hold that the sole Act of the Promiser is by the Law of Nature sufficient to transfer a Right: For the Roman Law saith not, That the Pro∣mise is fully compleat, and of force before it be accepted; but that it is not lawful to revoke such a Promise, but that it may be always accepted, which effect is not from the Law of Nature, but meerly from the Civil Law. Not much unlike unto that which the Law of Nations hath introduced in favour to Infants, Ideots and Mad∣men. For, for these, as the will and purpose of possessing things that are gained by occupancy, so the will and purpose to accept of things promised creates a Right.

XV. Whether it be requisite that the acce∣ptation should be made known to the Promiser.

It is also sometimes controverted, Whether to make a Promise fully effective, it be requisite that the thing promised be not only accepted, but that the acceptance be also made known to the Promiser, before it can obtain its full effect. And certain it is, that either way the Promise made may be binding: As for Example, either thus, This will I do if it shall be accepted; or thus, This I will do, if I shall understand that it will be accepted. And if the Promise do imply a mutual obligation on both sides, then it is to be understood in the latter sense. But if the Promise be free and sponta¦neous, then it is best to believe that it was meant in the former sense, unless it shall ap∣pear otherwise.

XVI. Whether a Promise made may be revo∣ked before it be accepted.

Again, Hence it follows, That such a Promise made before Acceptance (for till then no Right passeth) may be revoked, without the imputation of either Inju∣stice, yea, or Levity, if it were really so intended, when made, That it should not be of Force, till it were accepted, so till then it could transfer no Right. It may also be revoked, in case the person shall dye to whom such a Promise was made, before he hath accepted of it. Because the Acceptance was referred to his own choice, and not to his heirs. For it is one thing, to be willing to give away my Right to such a man, to be by him transferred to his Heirs; and another thing, to be willing to give it unto his Heirs immediately: It is very material to consider on whom we be∣stow a benefit. Of this opinion was Neratius, who could not believe that a Prince would have granted that to him being dead, which he had granted unto him, believing him to be alive.

XVII. Whether it may be revo∣ked, if the party dye who was authorized to make it. Explained.

A Promise may also be revoked upon the death of the person who was autho∣zed to make it; because the binding power was in his words: But not so, if the grant be sent by a Messenger or a Carrier, because the obliging power is not in him, but in the Instrument he carries. And therefore those Letters importing the consent of the party may be conveyed by any man. We must also distinguish between him that is deputed only to signifie the Promise we make, and him that is authorized by us to make that Promise himself. In the former case a revocation shall take place, although it be not so exprest to him that carries the Promise or Grant: In the latter case, the revo∣cation is of no force; because the obliging power depended upon the Will of him that is sent to make it; who if he do make it whilest it is in his power so to do, that is, before the revocation be made known unto him, the grant shall be valid, and the person that made it justified. So also in the former case, though the Donor dye, yet may the gift be accepted, as being on his part perfect and compleat, although subject to a revocation: which is apparent in Ambassadours. But in the latter case it cannot, because the gift is not actually given, but only commanded to be given. But where the matter will admit of a debate, it may be presumed, that the will of the Prince was, That his Commands should be executed, unless some great alteration should happen in the mean time: As namely, the death of the person commanding. 'Tis true, there may be many conje∣ctures that may be of force to perswade us to think otherwise, which may easily be admitted, That so what was in a good cause commanded to be given, may notwith∣standing abide with us. And thus may that question that hath been heretofore muted, be answered, Whether the heir of him that was so commanded, may be sued at Law.

XVIII. Whether a Promise be revocable af∣ter it hath been accepted of by another.

Controversies also do usually happen, concerning the accepting of a thing in the be∣half of another: Wherein also we must distinguish between that Promise that is made to me of something to be given to another, and that promise which is made in the name of him to whom the thing is to be given. If the Promise be made to me (setting aside that Query introduced by the Roman Law, Whether any benefit do accrue unto me by it.) The Right of accepting the thing seems naturally to be given to me, and the power of transferring that Right unto another, if he also will accept thereof; so that he that made the Promise hath no Right in the mean time to revoke it; but I to whom the Promise was made may remit it. For this sense, as it is no whit repugnant to the Law of Nature, so is it most agreeable to the words of such a Promise: Neither can it be said, not at all to concern me, That another by me should receive a benefit. But if the Promise be made in his name to whom the thing is to be given, we must then en∣quire, Whether he that accepts of what is promised, hath a Special Command so to do, or an order so general, as may be thought sufficient to include it; or whether he hath no such order at all. If it do appear that he hath such order or authority to accept thereof, I do not then conceive it necessary to enquire any farther, Whether the person so impowred be a Free-man or not, as is usually done by the Roman Laws; but conclude rather, That the Promise is fully compleat by that acceptance: For it sufficeth to signi∣fie our consent, though by a Servant, whose will is reputed ours, if we authorize him, and he accept thereof. But if he that accepts of the Promise, have no such order from him to whom the Promise is made, but is deputed by the Promiser, then hath the Promiser no power to revoke the Promise, until he whom it concerns, do either ac∣cept thereof, or reject it. Yet so, notwithstanding, That he, who in the mean time, hath accepted of the Promise made, hath no power to remit it, because he is not depu∣ted to accept of any Right to the thing promised, but to bind the Promiser to observe and perform his Promise, in sustaining the thing promised: So that if the Promiser shall retract, he may be said to break his Faith, but he cannot be said to invade any mans Right or Propriety.

XIX. In what time a charge may be added to a Promise.

By what hath been already said, it may easily be conceived, what we are to judge concerning such a charge as is usually added unto a Promise. For such a charge may be imposed, as long as the Promise is not yet made perfect by acceptance, nor the Faith of the Promiser given, that it shall be irrevocable. But yet this charge added for the use and benefit of a third person is also revocable, until it shall be by that third person accepted: Although some there be, that, as well in this, as in other the like questions, are otherwise perswaded. But he that throughly considers the matter, will quickly dis∣cern so much of natural reason and equity in what hath been said, that he will judge all farther proofs to be needless and superfluous.

XX. A Promise in it self invalid, how it may be made firm.

It is also sometimes Controverted, How a Promise occasioned by an error (or mi∣stake) in the Promiser may be made good, if, the truth being known, the Promiser notwithstanding his mistake, be willing to stand to his Promise. The like question may be put concerning Promises occasioned by fear, force, or the like, when the cause there∣of shall afterwards cease, as in the case of Matrimony, and the like. For the confir∣mation of which Promises, some are of opinion, that nothing is requisite but the inter∣nal acts of the mind, which being conjoined with the former external act, sufficeth to contract a firm obligation. Others disallowing this, because they cannot admit that any outward Act should be a competent sign of an internal act subsequent to it, do require a new verbal Promise and Acceptance. But the middle opinion is the safer, which re∣quires some outward act, but not such as is verbal, seeing that the retaining of the thing promised by the person to whom it was promised, and the relinquishing of it by the person promising, or some such like act, are sufficient to testifie the mutual consent of both parties.

XXI. Promises made without cause not na∣turally void.

They also must not be omitted, lest we should confound the Civil Law with the Law of Nature: That by the Law of Nature, Promises as well as Gifts may be good and valid, though there be no cause or consideration exprest wherefore they were made.

XXII. He that pro∣miseth for the fact of another how far he standeth bound.

Neither is any man bound by his Promise that he makes for the fact of another man, to make good all that wherein they differ, so as he omits nothing of that which on his part may be done, to procure that man to do it, unless either the words of the Pro∣mise or the nature of the business do naturally require a stronger obligation. So Livy in the like case, He thought himself discharged of his Promise, forasmuch as he left nothing unattempted that lay in him, to have had it performed.

Notes

• * 1.1

  Condictione Indebiti.
• * 1.2

  Lib. 1.
• * 1.3

  Apul. de Plat. Plat. lib. 1. de rep. Three degrees of speaking of things to come.
• * 1.4

  See Q. Eliza∣beth's dealing with the Hol∣lander, B. 2. c. 14. §. 12.
• * 1.5

  Neh. 9.8. 1 Cor. 1.19.10.13. Prov. 6.1.
• * 1.6

  Stipulatus & sponsio are such Promises as are made with solemni∣ty. Numb. 30.4, 5, 6. Vox mea, facta tua est.
• * 1.7

  Sent. lib. 2. tit. 14.
• * 1.8

  De Promisso non Sponso; jam non pro∣mittunt de te, sed spon∣dent. Seneca Ep. 19.
• * 1.9

  Rash Promises bind not.
• * 1.10

  Eth. Nic. 3.
• * 1.11

  See Chap. 17.6.19. and P. 3. ch. 19. §. 1.
• * 1.12

  Lib. 4. cont. 26.
• * 1.13

  See B. 3. c. 19. §. 4.
• * 1.14

  Things pro∣digally given may lawfully be retained.
• * 1.15

  Judah's Pro∣mise to Tha∣mar. Gen. 38. Val. Max. l. 8. lib. 2. n. 2. Ch. 12. §. 9. 10, 11.
• * 1.16

  See Book 2. c. 6. §. 2.
• * 1.17

  Of Ambassa∣dours exceed∣ing their pri∣vate Com∣mands.