OF THE LAW OF NATURE CONCERNING CONTRACTS.
1. That the law of nature is not an agreement of men, but the
dictate of reason. 2. That the fundamental law of nature, is to
seek peace, where it may be had, and where not, to defend
ourselves. 3. That the first special law of nature, is not to
retain our right to all things. 4. What it is to quit our right:
what to transfer it. 5. That in the transferring of our right,
the will of him that receives it is necessarily required. 6. No
words but those of the present tense, transfer any right. 7.
Words of the future, if there be some other tokens to signify
the will, are valid in the translation of right. 8. In matters
of free gift, our right passeth not from us through any words of
the future. 9. The definition of contract and compact. 10. In
compacts, our right passeth from us through words of the future.
11. Compacts of mutual faith, in the state of nature are of no
effect and vain; but not so in civil government. 12. That no man
can make compacts with beasts, nor yet with God without
revelation. 13. Nor yet make a vow to God. 14. That compacts
oblige not beyond our utmost endeavour. 15. By what means we are
freed from our compacts. 16. That promises extorted through fear
of death, in the state of nature are valid. 17. A later compact
contradicting the former, is invalid. 18. A compact not to
resist him that shall prejudice my body, is invalid. 19. A
compact to accuse one’s self, is invalid. 20. The definition of
swearing. 21. That swearing is to be conceived in that form
which he useth that takes the oath. 22. An oath superadds
nothing to the obligation which is made by compact. 23. An oath
ought not to be pressed, but where the breach of compacts may be
kept private, or cannot be punished but from God himself.
[Sidenote: That the law of nature is not an agreement of men, but
the dictate of reason.]
1. All authors agree not concerning the definition of _the natural
law_, who notwithstanding do very often make use of this term in
their writings. The method therefore wherein we begin from
definitions and exclusion of all equivocation, is only proper to
them who leave no place for contrary disputes. For the rest, if any
man say that somewhat is done against the law of nature, one proves
it hence; because it was done against the general agreement of all
the most wise and learned nations: but this declares not who shall
be the judge of the wisdom and learning of all nations. Another
hence, that it was done against the general consent of all mankind;
which definition is by no means to be admitted. For then it were
impossible for any but children and fools, to offend against such a
law; for sure, under the notion of mankind, they comprehend all men
actually endued with reason. These therefore either do nought
against it, or if they do aught, it is without their own consent,
and therefore ought to be excused. But to receive the laws of nature
from the consents of them who oftener break than observe them, is in
truth unreasonable. Besides, men condemn the same things in others,
which they approve in themselves; on the other side, they publicly
commend what they privately condemn; and they deliver their opinions
more by hearsay, than any speculation of their own; and they accord
more through hatred of some object, through fear, hope, love, or
some other perturbation of mind, than true reason. And therefore it
comes to pass, that whole bodies of people often do those things
with the greatest unanimity and earnestness, which those writers
most willingly acknowledge to be against the law of nature. But
since all do grant, that is done by _right_, which is not done
against reason, we ought to judge those actions only _wrong_, which
are repugnant to right reason, that is, which contradict some
certain truth collected by right reasoning from true principles. But
that which is done _wrong_, we say it is done against some law.
Therefore _true reason_ is a certain _law_; which, since it is no
less a part of human nature, than any other faculty or affection of
the mind, is also termed natural. Therefore the _law of nature_,
that I may define it, is the dictate of right reason,[4] conversant
about those things which are either to be done or omitted for the
constant preservation of life and members, as much as in us lies.
Footnote 4:
_Right reason._] By right reason in the natural state of men, I
understand not, as many do, an infallible faculty, but the act of
reasoning, that is, the peculiar and true ratiocination of every
man concerning those actions of his, which may either redound to
the damage or benefit of his neighbours. I call it peculiar,
because although in a civil government the reason of the supreme,
that is, the civil law, is to be received by each single subject
for the right; yet being without this civil government, in which
state no man can know right reason from false, but by comparing it
with his own, every man’s own reason is to be accounted, not only
the rule of his own actions, which are done at his own peril, but
also for the measure of another man’s reason, in such things as do
concern him. I call it true, that is, concluding from true
principles rightly framed, because that the whole breach of the
laws of nature consists in the false reasoning, or rather folly of
those men, who see not those duties they are necessarily to
perform towards others in order to their own conservation. But the
principles of right reasoning about such like duties, are those
which are explained in the second, third, fourth, fifth, sixth,
and seventh articles of the first chapter.
[Sidenote: That the fundamental law of nature, is to seek peace
where it may be had, and, where not, to defend
ourselves.]
2. But the first and fundamental law of nature is, _that peace is to
be sought after, where it may be found; and where not, there to
provide ourselves for helps of war_. For we showed in the last
article of the foregoing chapter, that this precept is the dictate
of right reason; but that the dictates of right reason are natural
laws, that hath been newly proved above. But this is the first,
because the rest are derived from this, and they direct the ways
either to peace or self-defence.
[Sidenote: The first special law of nature is, that our rights to
all things ought not to be retained.]
3. But one of the natural laws derived from this fundamental one is
this: _that the right of all men to all things ought not to be
retained; but that some certain rights ought to be transferred or
relinquished_. For if every one should retain his right to all
things, it must necessarily follow, that some by right might invade,
and others, by the same right, might defend themselves against them.
For every man by natural necessity endeavours to defend his body,
and the things which he judgeth necessary towards the protection of
his body. Therefore war would follow. He therefore acts against the
reason of peace, that is, against the law of nature, whosoever he
be, that doth not part with his right to all things.
[Sidenote: What it is to quit our right: what to convey it.]
4. But he is said to part with his right, who either absolutely
renounceth it, or conveys it to another. He absolutely renounceth
it, who by some sufficient sign or meet tokens declares, that he is
willing that it shall never be lawful for him to do that again,
which before _by right_ he might have done. But he conveys it to
another, who by some sufficient sign or meet tokens declares to that
other, that he is willing it should be unlawful for him to resist
him, in going about to do somewhat in the performance whereof he
might before _with right_ have resisted him. But that the conveyance
of right consists merely in not resisting, is understood by this,
that before it was conveyed, he to whom he conveyed it, had even
then also a right to all; whence he could not give any new right;
but the resisting right he had before he gave it, by reason whereof
the other could not freely enjoy his rights, is utterly abolished.
Whosoever therefore acquires some right in the natural state of men,
he only procures himself security and freedom from just molestation
in the enjoyment of his primitive right. As for example, if any man
shall sell or give away a farm, he utterly deprives himself only
from all right to this farm; but he does not so others also.
[Sidenote: The will of the receiver must necessarily be declared,
before the right be conveyed.]
5. But in the conveyance of right, the will is requisite not only of
him that conveys, but of him also that accepts it. If either be
wanting, the right remains. For if I would have given what was mine
to one who refused to accept of it, I have not therefore either
simply renounced my right, or conveyed it to any man. For the cause
which moved me to part with it to this man, was in him only, not in
others too.
[Sidenote: Words convey not, except they relate to the time
present.]
6. But if there be no other token extant of our will either to quit
or convey our right, but only words; those words must either relate
to the present or time past; for if they be of the future only, they
convey nothing. For example, he that speaks thus of the time to
come, _I will give to-morrow_, declares openly that yet he hath not
given it. So that all this day his right remains, and abides
to-morrow too, unless in the interim he actually bestows it: for
what is mine, remains mine till I have parted with it. But if I
shall speak of the time present, suppose thus; _I do give or have
given you this to be received to-morrow_: by these words is
signified that I have already given it, and that his right to
receive it to-morrow is conveyed to him by me to-day.
[Sidenote: Words of the future suffice to convey, if other
testimonies of our will be not wanting.]
7. Nevertheless, although words alone are not sufficient tokens to
declare the will; if yet to words relating to the future there shall
some other signs be added, they may become as valid as if they had
been spoken of the present. If therefore, as by reason of those
other signs, it appear that he that speaks of the future, intends
those words should be effectual toward the perfect transferring of
his right, they ought to be valid. For the conveyance of right
depends not on words, but, as hath been instanced in the fourth
article, on the declaration of the will.
[Sidenote: In matters of free gift, words of the future convey no
right.]
8. If any man convey some part of his right to another, and doth not
this for some certain benefit received, or for some compact, a
conveyance in this kind is called a gift or free donation. But in
free donation, those words only oblige us, which signify the present
or the time past; for if they respect the future, they oblige not as
_words_, for the reason given in the foregoing article. It must
needs therefore be, that the obligation arise from some other tokens
of the will. But, because whatsoever is voluntarily done, is done
for some good to him that wills it; there can no other token be
assigned of the will to give it, except some benefit either already
received, or to be acquired. But it is supposed that no such benefit
is acquired, nor any compact in being; for if so, it would cease to
be a free gift. It remains therefore, that a mutual good turn
without agreement be expected. But no sign can be given, that he,
who used future words toward him who was in no sort engaged to
return a benefit, should desire to have his words so understood as
to oblige himself thereby. Nor is it suitable to reason, that those
who are easily inclined to do well to others, should be obliged by
every promise, testifying their present good affection. And for this
cause, a promiser in this kind must be understood to have time to
deliberate, and power to change that affection, as well as he to
whom he made that promise, may alter his desert. But he that
deliberates, is so far forth free, nor can be said to have already
given. But if he promise often, and yet give seldom, he ought to be
condemned of levity, and be called not a donor, but doson.
[Sidenote: The definition of contract and covenant.]
9. But the act of two, or more, mutually conveying their rights, is
called a _contract_. But in every contract, either both parties
instantly perform what they contract for, insomuch as there is no
trust had from either to other; or the one performs, the other is
trusted; or neither perform. Where both parties perform presently,
there the contract is ended as soon as it is performed. But where
there is credit given, either to one or both, there the party
trusted promiseth after-performance; and this kind of promise is
called a _covenant_.
[Sidenote: In covenants, we pass away our rights by words signifying
the future.]
10. But the covenant made by the party trusted with him who hath
already performed, although the promise be made by words pointing at
the future, doth no less transfer the right of future time, than if
it had been made by words signifying the present or time past. For
the other’s performance is a most manifest sign that he so
understood the speech of him whom he trusted, as that he would
certainly make performance also at the appointed time; and by this
sign the party trusted knew himself to be thus understood; which
because he hindered not, was an evident token of his will to
perform. The promises therefore which are made for some benefit
received, which are also covenants, are tokens of the will; that is,
as in the foregoing section hath been declared, of the last act of
deliberating, whereby the liberty of non-performance is abolished,
and by consequence are obligatory. For where liberty ceaseth, there
beginneth obligation.
[Sidenote: Covenants, in the state of nature, are in vain and of
none effect: not so in civil government.]
11. But the covenants which are made in contract of mutual trust,
neither party performing out of hand, if there arise[5] a just
suspicion in either of them, are in the state of nature invalid. For
he that first performs, by reason of the wicked disposition of the
greatest part of men studying their own advantage either by right or
wrong, exposeth himself to the perverse will of him with whom he
hath contracted. For it suits not with reason, that any man should
perform first, if it be not likely that the other will make good his
promise after; which, whether it be probable or not, he that doubts
it must be judge of, as hath been showed in the foregoing chapter in
the ninth article. Thus, I say, things stand in the state of nature.
But in a civil state, when there is a power which can compel both
parties, he that hath contracted to perform first, must first
perform; because, that since the other may be compelled, the cause
which made him fear the other’s non-performance, ceaseth.
Footnote 5:
_Arise._] For, except there appear some new cause of fear, either
from somewhat done, or some other token of the will not to perform
from the other part, it cannot be judged to be a just fear; for
the cause which was not sufficient to keep him from making
compact, must not suffice to authorize the breach of it, being
made.
[Sidenote: That no man can make compacts with beasts; neither with
God, without revelation.]
12. But from this reason, that in all free gifts and compacts there
is an acceptance of the conveyance of right required: it follows
that no man can compact with him who doth not declare his
acceptance. And therefore we cannot compact with beasts, neither can
we give or take from them any manner of right, by reason of their
want of speech and understanding. Neither can any man covenant with
God, or be obliged to him by vow; except so far forth as it appears
to him by Holy Scriptures, that he hath substituted certain men who
have authority to accept of such-like vows and covenants, as being
in God’s stead.
[Sidenote: Nor yet vow to God.]
13. Those therefore do vow in vain, who are in the state of nature,
where they are not tied by any civil law, except, by most certain
revelation, the will of God to accept their vow or pact, be made
known to them. For if what they vow be contrary to the law of
nature, they are not tied by their vow; for no man is tied to
perform an unlawful act. But if what is vowed, be commanded by some
law of nature, it is not their vow, but the law itself which ties
them. But if he were free, before his vow, either to do it or not do
it, his liberty remains; because that the openly declared will of
the obliger is requisite to make an obligation by vow; which, in the
case propounded, is supposed not to be. Now I call him the obliger,
to whom any one is tied; and the obliged, him who is tied.
[Sidenote: Compacts oblige not beyond our utmost endeavours.]
14. Covenants are made of such things only as fall under our
deliberation. For it can be no covenant without the will of the
contractor. But the will is the last act of him who deliberates;
wherefore they only concern things _possible_ and _to come_. No man,
therefore, by his compact obligeth himself to an impossibility. But
yet, though we often covenant to do such things as then seemed
possible when we promised them, which yet afterward appear to be
impossible, are we not therefore freed from all obligation. The
reason whereof is, that he who promiseth a future, in certainty
receives a present benefit, on condition that he return another for
it. For his will, who performs the present benefit, hath simply
before it for its object a certain good, equally valuable with the
thing promised; but the thing itself not simply, but with condition
if it could be done. But if it should so happen, that even this
should prove impossible, why then he must perform as much as he can.
Covenants, therefore, oblige us not to perform just the thing itself
covenanted for, but our utmost endeavour; for this only is, the
things themselves are not in our power.
[Sidenote: In what manner we are freed from compacts.]
15. We are freed from covenants two ways, either by performing, or
by being forgiven. By performing, for beyond that we obliged not
ourselves. By being forgiven, because he whom we obliged ourselves
to, by forgiving is conceived to return us that right which we
passed over to him. For forgiving implies giving, that is, by the
fourth article of this chapter, a conveyance of right to him to whom
the gift is made.
[Sidenote: Promises forced from us through fear of death, are valid
in the state of nature.]
16. It is a usual question, whether compacts extorted from us
through fear, do oblige or not. For example, if, to redeem my life
from the power of a robber, I promise to pay him 100_l._ next day,
and that I will do no act whereby to apprehend and bring him to
justice: whether I am tied to keep promise or not. But though such a
promise must sometimes be judged to be of no effect, yet it is not
to be accounted so because it proceedeth from fear. For then it
would follow, that those promises which reduced men to a civil life,
and by which laws were made, might likewise be of none effect; (for
it proceeds from fear of mutual slaughter, that one man submits
himself to the dominion of another); and he should play the fool
finely, who should trust his captive covenanting with the price of
his redemption. It holds universally true, that promises do oblige,
when there is some benefit received, and when the promise, and the
thing promised, be lawful. But it is lawful, for the redemption of
my life, both to promise and to give what I will of mine own to any
man, even to a thief. We are obliged, therefore, by promises
proceeding from fear, except the civil law forbid them; by virtue
whereof, that which is promised becomes unlawful.
[Sidenote: A latter compact contradicting the former, is invalid.]
17. Whosoever shall contract with one to do or omit somewhat, and
shall after covenant the contrary with another, he maketh not the
former, but the latter contract unlawful. For he hath no longer
right to do or to omit aught, who by former contracts hath conveyed
it to another. Wherefore he can convey no right by latter contracts,
and what is promised is promised without right. He is therefore tied
only to his first contract, to break which is unlawful.
[Sidenote: A promise not to resist him that prejudices my body is
invalid.]
18. No man is obliged by any contracts whatsoever not to resist him
who shall offer to kill, wound, or any other way hurt his body. For
there is in every man a certain high degree of fear, through which
he apprehends that evil which is done to him to be the greatest; and
therefore by natural necessity he shuns it all he can, and it is
supposed he can do no otherwise. When a man is arrived to this
degree of fear, we cannot expect but he will provide for himself
either by flight or fight. Since therefore no man is tied to
impossibilities, they who are threatened either with death, (which
is the greatest evil to nature), or wounds, or some other bodily
hurts, and are not stout enough to bear them, are not obliged to
endure them. Furthermore, he that is tied by contract is trusted;
for faith only is the bond of contracts; but they who are brought to
punishment, either capital or more gentle, are fettered or strongly
guarded; which is a most certain sign that they seemed not
sufficiently bound from non-resistance by their contracts. It is one
thing, if I promise thus: if I do it not at the day appointed, kill
me. Another thing, if thus: if I do it not, though you should offer
to kill me, I will not resist. All men, if need be, contract the
first way, and there is need sometimes. This second way, none;
neither is it ever needful. For in the mere state of nature, if you
have a mind to kill, that state itself affords you a right; insomuch
as you need not first trust him, if for breach of trust you will
afterwards kill him. But in a civil state, where the right of life
and death and of all corporal punishment is with the supreme, that
same right of killing cannot be granted to any private person.
Neither need the supreme himself contract with any man patiently to
yield to his punishment; but only this, that no man offer to defend
others from him. If in the state of nature, as between two realms,
there should a contract be made on condition of killing if it were
not performed, we must presuppose another contract of not killing
before the appointed day. Wherefore on that day, if there be no
performance, the right of war returns, that is a hostile state, in
which all things are lawful, and therefore resistance also. Lastly,
by the contract of not resisting, we are obliged, of two evils to
make choice of that which seems the greater. For certain death is a
greater evil than fighting. But of two evils it is impossible not to
choose the least. By such a compact, therefore, we should be tied to
impossibilities; which is contrary to the very nature of compacts.
[Sidenote: The compact of self-accusation is invalid.]
19. Likewise no man is tied by any compacts whatsoever to accuse
himself, or any other, by whose damage he is like to procure himself
a bitter life. Wherefore neither is a father obliged to bear witness
against his son, nor a husband against his wife, nor a son against
his father, nor any man against any one by whose means he hath his
subsistence; for in vain is that testimony which is presumed to be
corrupted from nature. But although no man be tied to accuse himself
by any compact, yet in a public trial he may by torture be forced to
make answer. But such answers are no testimony of the fact, but
helps for the searching out of truth; so that whether the party
tortured his answer be true or false, or whether he answer not at
all, whatsoever he doth, he doth it by right.
[Sidenote: The definition of an oath.]
20. Swearing is a speech joined to a promise, whereby the promiser
declares his renouncing of God’s mercy, unless he perform his word.
Which definition is contained in the words themselves, which have in
them the very essence of an oath, to wit, _so God help me_, or other
equivalent, as with the Romans, _do thou Jupiter so destroy the
deceiver, as I slay this same beast_. Neither is this any let, but
that an oath may as well sometimes be affirmatory as promissory; for
he that confirms his affirmation with an oath, promiseth that he
speaks truth. But though in some places it was the fashion for
subjects to swear by their kings, that custom took its original
hence, that those kings took upon them divine honour. For oaths were
therefore introduced, that by religion and consideration of the
divine power, men might have a greater dread of breaking their
faiths, than that wherewith they fear men, from whose eyes their
actions may lie hid.
[Sidenote: The swearing must be conceived in that fashion which he
uses who takes it.]
21. Whence it follows that an oath must be conceived in that form,
which he useth who takes it; for in vain is any man brought to swear
by a God whom he believes not, and therefore neither fears him. For
though by the light of nature it may be known that there is a God,
yet no man thinks he is to swear by him in any other fashion, or by
any other name, than what is contained in the precepts of his own
proper, that is (as he who swears imagines) the true religion.
[Sidenote: Swearing adds nothing to the obligation which is by
compact.]
22. By the definition of an oath, we may understand that a bare
contract obligeth no less, than that to which we are sworn. For it
is the contract which binds us; the oath relates to the divine
punishment, which it could not provoke, if the breach of contract
were not in itself unlawful; but it could not be unlawful, if the
contract were not obligatory. Furthermore, he that renounceth the
mercy of God, obligeth himself not to any punishment; because it is
ever lawful to deprecate the punishment, howsoever provoked, and to
enjoy God’s pardon if it be granted. The only effect therefore of an
oath is this; to cause men, who are naturally inclined to break all
manner of faith, through fear of punishment to make the more
conscience of their words and actions.
[Sidenote: An oath is not to be pressed, but where the breach of
contract can either be kept private, or not be punished
but from God alone.]
23. To exact an oath where the breach of contract, if any be made,
cannot but be known, and where the party compacted withal wants not
power to punish, is to do somewhat more than is necessary unto
self-defence, and shews a mind desirous not so much to benefit
itself, as to prejudice another. For an oath, out of the very form
of swearing, is taken in order to the provocation of God’s anger,
that is to say, of him that is omnipotent, against those who
therefore violate their faith, because they think that by their own
strength they can escape the punishment of men; and of him that is
omniscient, against those who therefore usually break their trust,
because they hope that no man shall see them.
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