Part I, Chapter XIV, 2

A person who performs first in a Contract is said to merit what he is to receive through the other's performance, and it is due to him. Likewise, when a prize is offered to many but given only to the winner, or money is thrown among a crowd for those who catch it, the gift is free, yet winning or catching it is to merit it and have it as one's due. For the Right passes when the prize is offered or the money thrown, though the outcome of the contest has yet to determine to whom it passes. These two kinds of merit differ, however: in a Contract, I merit through my own power and the contracting party's need; in the case of a free gift, I am enabled to merit only by the giver's generosity. In a Contract I merit the contracting party's relinquishment of his Right; in a gift I do not merit the giver's relinquishment of his Right, but merit receiving it rather than another once he has relinquished it. This, I think, is the meaning of the distinction made in the schools between Meritum Congrui and Meritum Condigni. For God Almighty has promised Paradise to those people who, though blindfolded by fleshly desires, can pass through this world according to the precepts and limits he has prescribed; the schoolmen say that whoever does so will merit Paradise Ex Congruo. But since no one can claim a Right to it by his own righteousness or any other power within himself, but only by God's free grace, they say no one can merit Paradise Ex Condigno. This, I say, is what I take the distinction to mean. But since disputants agree on the meaning of their own technical terms only so long as it suits them, I will make no assertion about what they mean. I say only this: where a gift is offered without specifying a recipient, as a prize to be contested, the winner merits the prize and may claim it as due.

If a Covenant is made in which neither party performs immediately but each trusts the other, then in the condition of mere nature—which is a condition of war of everyone against everyone—it is void upon any reasonable suspicion. But if a common power stands over both parties with sufficient Right and force to compel performance, it is not void. Whoever performs first has no assurance the other will perform later: the bonds of words are too weak to bridle human ambition, greed, anger, and other passions without fear of some coercive power. Such a power cannot be supposed in the condition of mere nature, where all are equal and each judges whether his own fears are justified. Whoever performs first therefore merely betrays himself to his enemy, contrary to the Right, which he can never abandon, to defend his life and the means of living.

But in a civil state, where a power has been established to constrain those who would otherwise break their word, that fear is no longer reasonable. Accordingly, the party bound by the Covenant to perform first must do so.

The cause for fear that invalidates such a Covenant must always arise after it is made: some new fact or other sign of unwillingness to perform. Otherwise it cannot make the Covenant void. What could not prevent a person from promising should not be admitted as a reason to prevent his performance.

Whoever transfers a Right also transfers, as far as lies within his power, the means of enjoying it. One who sells land is understood to transfer its grass and whatever grows upon it; one who sells a mill cannot divert the stream that drives it. And those who give someone the Right to govern as Sovereign are understood to give him the right to levy money for the maintenance of soldiers and to appoint magistrates to administer justice.

It is impossible to make a Covenant with brute beasts: not understanding our speech, they neither understand nor accept a transfer of Right, nor can they transfer any Right to another. Without mutual acceptance, there is no Covenant.

It is impossible to make a Covenant with God except through the mediation of those to whom God speaks, whether through supernatural revelation or through his deputies who govern under him and in his name. Otherwise we cannot know whether our Covenants are accepted. Thus those who vow anything contrary to a Law of Nature vow in vain, since it would be unjust to fulfill such a vow; and if they vow something commanded by the Law of Nature, the Law, not the vow, binds them.

The matter or subject of a Covenant is always something open to deliberation—for making a Covenant is an act of the will, that is, an act, indeed the final act, of deliberation. It is therefore always understood to concern something in the future that the party making the Covenant judges it possible for him to perform.

Thus a promise to do what one knows to be impossible is no Covenant. But if something previously thought possible later proves impossible, the Covenant is valid and binds the party, though not to the thing itself, to its value; or if even that is impossible, to an honest effort to perform as much as possible, for no one can be bound to do more.

People are released from Covenants in two ways: by performing or by being forgiven. Performance is the natural end of obligation; forgiveness restores liberty by transferring back the Right in which the obligation consisted.

Covenants entered into through fear in the condition of mere nature are binding. For example, if I Covenant to pay an enemy ransom or service in exchange for my life, I am bound by it. This is a Contract in which one party receives the benefit of life and the other is to receive money or service in return; consequently, where no other law forbids performance, as in the condition of mere nature, the Covenant is valid. Therefore prisoners of war trusted to pay their ransom must pay it. And if a weaker prince makes a disadvantageous peace with a stronger out of fear, he is bound to keep it unless, as said before, some new and just cause for fear arises that renews the war. Even in Common-wealths, if a thief forces me to promise him money to redeem myself, I am bound to pay it until civil law releases me. For whatever I may lawfully do without obligation, I may lawfully Covenant to do out of fear; and I cannot lawfully break what I lawfully Covenant.

An earlier Covenant makes a later one void. Someone who has transferred his Right to one person today has no Right left to transfer to another tomorrow; therefore the later promise transfers no Right and is null.

A Covenant not to defend myself against force with force is always void. As I have shown, no one can transfer or lay down his Right to save himself from death, wounds, and imprisonment—the avoidance of which is the sole end of laying down any Right. Hence in no Covenant does a promise not to resist force transfer any Right or impose any obligation. Someone may Covenant, “If I do not do such and such, kill me”; but he cannot Covenant, “If I do not do such and such, I will not resist when you come to kill me.” For by nature a person chooses the lesser evil, the danger of death in resisting, over the greater evil, certain and immediate death in not resisting. Everyone acknowledges this when criminals are escorted to prison and execution by armed guards, though those criminals have consented to the law under which they are condemned.

A Covenant to accuse oneself without assurance of pardon is likewise invalid. In the condition of nature, where everyone is a judge, there is no place for accusation; in a civil state, accusation is followed by punishment, which, being force, no one is obliged not to resist. The same is true of accusing people whose condemnation would bring one misery, such as a father, wife, or benefactor. If such an accuser's testimony is not given willingly, it is presumed to be corrupted by nature and therefore not admissible; and where someone's testimony would not be credited, he is not bound to give it. Nor should accusations extracted under torture be regarded as testimony. Torture should be used only as a means of finding clues for further examination and the search for truth. What a tortured person confesses in that situation aims to relieve his own suffering, not to inform his torturers, and therefore should not carry the authority of sufficient testimony. Whether he frees himself by true or false accusation, he does so by his Right to preserve his own life.

Since words, as I noted earlier, are too weak to hold people to the performance of their Covenants, human nature offers only two conceivable supports for them: fear of the consequences of breaking one's word, or glory and pride in appearing not to need to break it. The latter is a generosity too rare to count on, especially among those pursuing wealth, command, or sensual pleasure, who make up most of mankind. The passion one must count on is fear, with two very general objects: the power of invisible spirits and the power of the people one would offend. Though the former power is greater, fear of the latter is usually greater. Fear of the former is each person's own religion, present in human nature before civil society; fear of the latter does not exist in the same way, at least not strongly enough to keep people to their promises, since in the condition of mere nature inequalities of power become apparent only through the outcome of battle. Thus before civil society, or when it is interrupted by war, nothing can strengthen a Covenant of peace against the temptations of greed, ambition, lust, or other strong desires except fear of the invisible power each person worships as God and fears as an avenger of broken faith. All that two people outside civil power can do, therefore, is have each other swear by the God he fears. Such swearing, or an oath, is a form of speech added to a promise, by which the person promising signifies that if he fails to perform, he renounces the mercy of his God or calls down his vengeance upon himself. The heathen form was: “May Jupiter kill me otherwise, as I kill this beast.” Our form is: “I shall do this and that, so help me God.” Each person adds the rites and ceremonies of his own religion, to increase his fear of breaking faith.

It follows that an oath taken in any form or rite other than the swearer's own is in vain and is no oath. Nor can one swear by anything one does not regard as God. Though people have sometimes sworn by their kings out of fear or flattery, they thereby meant it understood that they attributed divine honor to them. To swear unnecessarily by God is simply to profane his name; and to swear by other things, as people do in ordinary conversation, is not swearing but an impious habit born of speaking with too much vehemence.

It also follows that an oath adds nothing to the obligation. A Covenant, if lawful, binds in the sight of God as much without an oath as with one; if unlawful, it does not bind at all, even when confirmed by an oath.

CHAPTER XV. OF OTHER LAWS OF NATURE

In a contract, the person who performs first is said to earn what the other party must give in return. It is due to him. Suppose a prize is offered to many people but only the winner will receive it, or money is thrown among a crowd for whoever catches it. Although this is a free gift, winning or catching it earns the prize, which is then due. The Right passes when the prize is offered or the money thrown, though the outcome of the competition determines who receives it. But these two kinds of earning differ. In a contract, I earn through my own ability and the other party's need. With a free gift, I can earn only because the giver is generous. In a contract, I earn a claim that the other party give up his Right. With a gift, I do not earn a claim that the giver give up his Right; instead, once he has given it up, I earn a claim that the gift be mine rather than someone else's. I think this is what the schools mean by their distinction between Meritum Congrui and Meritum Condigni. God Almighty has promised Paradise to people who, despite being blinded by bodily desires, make their way through this world according to his prescribed rules and limits. The schools say that someone who lives that way earns Paradise Ex Congruo. But no one can claim it as a Right based on his own righteousness or any other power within himself. It comes only through God's free grace. So they say no one can earn Paradise Ex Condigno. This is what I think their distinction means. But debaters do not agree on the meanings of their own technical terms any longer than agreement serves their purposes, so I will make no firm claim about their meaning. I will say only that when a gift is offered to anyone who meets a condition, as with a prize in a contest, the winner earns it and may claim it as due.

Suppose people make a Covenant in which neither performs immediately, but each trusts the other. In the natural condition, a war of everyone against everyone, any reasonable suspicion makes it void. But if a common Power stands over both parties, with the Right and strength to compel performance, the Covenant is not void. The person who performs first has no assurance that the other will perform later. Words alone are too weak to restrain people's ambition, greed, anger, and other Passions unless they fear a power that can force them to comply. No such power can be assumed in the natural condition, where everyone is equal and judges whether his own fears are justified. So whoever performs first merely gives himself up to his enemy. That goes against the Right he can never give up: the Right to defend his life and means of living.

In a civil state, however, there is a Power that can compel people who might otherwise break their word. There is no longer reasonable cause for that fear. So the party who has agreed by Covenant to perform first must do so.

For fear to invalidate such a Covenant, its cause must always be something arising after the Covenant was made, such as a new action or another sign that the other party will not perform. Otherwise it cannot make the Covenant void. Something that did not stop a person from promising should not be accepted as a reason not to perform.

Whoever transfers a Right also transfers the means of using it, as far as he can. Someone who sells land is understood to transfer the grass and whatever grows on it. Someone who sells a mill cannot divert the stream that runs it. And those who give a person the Right to rule with Soveraignty are understood to give him the Right to raise money to maintain soldiers and appoint magistrates to administer justice.

It is impossible to make a Covenant with animals. They do not understand our words and therefore cannot understand or accept a transfer of Rights. Nor can they transfer a Right to someone else. Without mutual acceptance there is no Covenant.

It is impossible to make a Covenant with God except through someone to whom God speaks by supernatural revelation, or through his representatives who govern under him and in his name. Otherwise we cannot know whether he accepts our Covenants. People therefore make vows in vain when they vow something contrary to any Law of Nature, because fulfilling such a vow would be unjust. If what they vow is required by a Law of Nature, the law, not their vow, binds them.

The subject of a Covenant must always be something a person can deliberate about. Making a Covenant is an act of the will: the final act of deliberation. It must therefore concern something yet to happen that the person making the Covenant judges possible to perform.

So a promise to do something known to be impossible is not a Covenant. But if something once thought possible later proves impossible, the Covenant remains valid. It then binds the person, if not to the thing itself, to its value. If even that is impossible, he must sincerely try to perform as much as he can. No one can be bound to do more.

People are released from Covenants in two ways: by performing or by being forgiven. Performance is the natural end of an obligation. Forgiveness restores liberty by transferring back the Right that was given up in accepting the obligation.

Covenants made out of fear in the natural condition are binding. Suppose I make a Covenant with an enemy to pay a ransom or provide service in return for my life. I am bound by it. This is a contract in which one party receives the benefit of staying alive and the other is to receive money or service. Where no other law forbids performance, as in the natural condition, the Covenant is valid. Prisoners of war who are trusted to pay their ransom must therefore pay it. A weaker prince who makes an unfavorable peace with a stronger prince out of fear must keep it, unless, as noted above, some new and justified cause of fear arises that warrants resuming the war. Even in Common-wealths, if a thief forces me to promise him money to buy my freedom, I must pay until civil law releases me from the obligation. Whatever I may legally do without being bound, I may legally promise to do out of fear. I cannot legally break a Covenant I have legally made.

An earlier Covenant makes a later one void. A person who transfers his Right to someone today does not still have that Right to transfer to someone else tomorrow. The later promise transfers no Right and is invalid.

A Covenant not to defend myself against force with force is always void. As I showed earlier, no one can transfer or surrender the Right to save himself from death, injury, and imprisonment. Avoiding these is the only purpose of giving up any Right. So a promise not to resist force transfers no Right in any Covenant and creates no obligation. A person can make this Covenant: “If I do not do this or that, kill me.” But he cannot make this one: “If I do not do this or that, I will not resist you when you come to kill me.” A person naturally chooses the lesser evil, the risk of dying while resisting, over the greater evil, certain and immediate death if he does not resist. Everyone acknowledges this by using armed guards to take criminals to prison and execution, even though the criminals consented to the law under which they were convicted.

A Covenant to accuse oneself without assurance of pardon is also invalid. In the natural condition everyone is his own judge, so there is no place for accusation. In a civil state, accusation leads to punishment, which is an act of force a person has no obligation not to resist. The same applies to accusing people whose conviction would bring him misery, such as his father, wife, or benefactor. Testimony from such an accuser, if not freely given, is presumed to be distorted by natural affection and should not be accepted. Where a person's testimony should not be believed, he has no duty to give it. Accusations extracted under torture should not count as testimony either. Torture should be used only to gather clues for further examination and investigation of the truth. A person confesses under torture to relieve his own suffering, not to inform those torturing him. So such a confession should not be accepted as sufficient testimony. Whether his accusation is true or false, he makes it under his Right to preserve his own life.

As I noted earlier, words are too weak by themselves to hold people to their Covenants. Human nature offers only two ways to strengthen them: fear of the consequences of breaking one's word, or the pride of appearing not to need to break it. The second is a generosity too rare to count on, especially among those seeking wealth, power, or physical pleasure, who make up most of humanity. The Passion we can rely on is fear. It has two very common objects: the power of invisible spirits, and the power of the people a person would wrong by breaking his word. Although the first power is greater, fear of the second is usually stronger. Fear of invisible powers is each person's own religion, which exists in human nature before civil society. Fear of other people does not exist to a sufficient degree before civil society to make people keep their promises. In the natural condition, differences in power cannot be known until battle settles them. So before civil society exists, or when war interrupts it, only one thing can strengthen a Covenant of peace against greed, ambition, lust, and other powerful desires: fear of the invisible Power each person worships as God and fears as an avenger of broken faith. When two people are not subject to civil Power, therefore, all they can do is ask each other to swear by the God he fears. Swearing an oath means adding a statement to a promise in which the person promising declares that, if he does not perform, he gives up his God's mercy or calls on God to punish him. The heathen formula was, “Otherwise let Jupiter kill me, as I kill this animal.” Ours is, “I shall do this and that, so help me God.” Each person adds the rites and ceremonies of his own religion to increase his fear of breaking faith.

An oath taken using a form or rite other than the one belonging to the person swearing it is pointless and is no oath at all. No one can swear by anything he does not consider God. People have sometimes sworn by their kings from fear or flattery, but in doing so they meant to attribute divine honor to them. Swearing by God unnecessarily merely profanes his name. Swearing by other things in everyday conversation is not really swearing at all, but an irreverent habit acquired through speaking too heatedly.

An oath also adds nothing to an obligation. A lawful Covenant binds a person before God just as much without an oath as with one. An unlawful Covenant does not bind at all, even if confirmed by an oath.

CHAPTER XV. ON OTHER LAWS OF NATURE