11. And forasmuch as in all covenants, and contracts, and donations, the acceptance of him to whom the right is transferred, is necessary to the essence of those covenants, donations, &c., it is impossible to make a covenant or donation to any, that by nature, or absence, are unable, or if able, do not actually declare their acceptation of the same. First of all, therefore, it is impossible for any man to make a covenant with God Almighty, further than it hath pleased him to declare who shall receive and accept of the said covenant in his name. Also it is impossible to make covenant with those living creatures, of whose wills we have no sufficient sign, for want of common language.
[Sidenote: Covenant how dissolved.]
12. A covenant to do any action at a certain time and place, is then dissolved by the covenanter, when that time cometh, either by the performance, or by the violation. For a covenant is void that is once impossible. But a covenant not to do, without time limited, which is as much as to say, a covenant never to do, is dissolved by the covenanter then only, when he violateth it, or dieth. And generally, all covenants are dischargeable by the covenantee, to whose benefit, and by whose right, he that maketh the covenant is obliged. This right therefore of the covenantee relinquished, is a release of the covenant. And universally, for the same reason, all obligations are determinable at the will of the obliger.
[Sidenote: Covenant extorted by fear, in the law of nature valid.]
13. It is a question often moved, whether such covenants oblige, as are extorted from men by fear. As for example, whether if a man for fear of death, hath promised to give a thief an hundred pounds the next day, and not discover him; whether such covenant be obligatory, or not. And though in some cases such covenant may be void, yet it is not therefore void, because extorted by fear. For there appeareth no reason, why that which we do upon fear, should be less firm than that which we do for covetousness. For both the one and the other maketh the action voluntary. And if no covenant should be good, that proceedeth from fear of death, no conditions of peace between enemies, nor any laws, could be of force, which are all consented to from that fear. For who would lose the liberty that nature hath given him, of governing himself by his own will and power, if they feared not death in the retaining of it? What prisoner in war might be trusted to seek his ransom, and ought not rather to be killed, if he were not tied by the grant of his life, to perform his promise? But after the introduction of policy and laws, the case may alter; for if by the law the performance of such a covenant be forbidden, then he that promiseth anything to a thief, not only may, but must refuse to perform it. But if the law forbid not the performance, but leave it to the will of the promiser, then is the performance still lawful: and the covenant of things lawful is obligatory, even towards a thief.
[Sidenote: Covenant contrary to former covenant, void.]
14. He that giveth, promiseth or covenanteth to one, and after, giveth, promiseth, or covenanteth the same to another, maketh void the latter act. For it is impossible for a man to transfer that right which he himself hath not; and that right he hath not, which he himself hath before transferred.
[Sidenote: An oath defined.]
15. An _oath_ is a clause annexed to a promise, containing a renunciation of God’s mercy by him that promiseth, in case he perform not as far as is lawful and possible for him to do. And this appeareth by the words which make the essence of the oath, _so help me God_. So also was it amongst the heathen. And the form of the Romans was, _Thou Jupiter kill him that breaketh, as I kill this beast_. The intention therefore of an oath being to provoke vengeance upon the _breakers_ of covenant; it is to no purpose to swear by men, be they never so great, because their punishment by divers accidents may be avoided, whether they will, or no, but God’s punishment not. Though it were a custom of many nations, to swear by the life of their princes; yet those princes being ambitious of divine honour, give sufficient testimony, that they believed, nothing ought to be sworn by, but the Deity.
[Sidenote: Oath to be administered to every man in his own religion.]
16. And seeing men cannot be afraid of the power they believe not, and an oath is to no purpose, without fear of him they swear by, it is necessary that he that sweareth, do it in that form which himself admitteth in his own religion, and not in that form which he useth, that putteth him to the oath. For though all men may know by nature, that there is an Almighty power, nevertheless they believe not, that they swear by him in any other form or name, than what their own, which they think the true, religion teacheth them.
[Sidenote: Oath addeth not to the obligation.]
17. And by the definition of an oath, it appeareth that it addeth not a greater obligation to perform the covenant sworn, than the covenant carrieth in itself, but it putteth a man into a greater danger, and of greater punishment.
[Sidenote: Covenants bind but to endeavour.]
18. Covenants and oaths are _de voluntariis_, that is, _de possibilibus_. Nor can the covenantee understand the covenanter to promise _impossibles_; for they fall not under deliberation: and consequently, (by chap. XIII. sect. 10 of the _Treatise of Human Nature_, which maketh the covenantee interpreter) no covenant is understood to bind further, than to our best endeavour, either in performance of the thing promised, or in something equivalent.
------- CHAPTER III.
1. That men stand to their covenants. 2. Injury defined. 3. That injury is done only to the covenantee. 4. The signification of those names, just, unjust. 5. Justice not rightly divided into commutative, and distributive. 6. It is a law of nature, that he that is trusted, turn not that trust to the damage of him that trusteth. 7. Ingratitude defined. 8. It is a law of nature, to endeavour to accommodate one another: 9. And that man forgive upon caution for the future: 10. And that revenge ought to respect the future only: 11. That reproach and contempt declared, is against the law of nature: 12. That indifference of commerce is of the law of nature: 13. That messengers employed to procure or maintain peace, ought to be safe by the law of nature.
[Sidenote: That men stand to their covenants.]
1. It is a common saying that nature maketh nothing in vain. And it is most certain, that as the truth of a conclusion, is no more but the truth of the premises that make it; so the force of the command, or law of nature, is no more than the force of the reasons inducing thereunto. Therefore the law of nature mentioned in the former chapter, section 2, namely, _That every man should divest himself of the right_, &c. were utterly vain, and of none effect, if this also were not a law of the same nature, _That every man is obliged to stand to, and perform, those covenants he maketh_. For what benefit is it to a man, that any thing be promised, or given unto him, if he that giveth, or promiseth, performeth not, or retaineth still the right of taking back what he hath given?
[Sidenote: Injury defined.]
2. The breach or violation of covenant, is that which men call _injury_, consisting in some action or omission, which is therefore called _unjust_. For it is action or omission, without _jus_, or right, which was transferred or relinquished before. There is a great similitude between that we call _injury_, or _injustice_ in the actions and conversations of men in the world, and that which is called _absurd_ in the arguments and disputations of the Schools. For as he, which is driven to contradict an assertion by him before maintained, is said to be reduced to an absurdity; so he that through passion doth, or omitteth that which before by covenant he promised to do, or not to omit, is said to commit injustice; and there is in every breach of covenant a contradiction properly so called. For he that covenanteth, willeth to do, or omit, in the time to come. And he that doth any action, willeth it in that present, which is part of the future time contained in the covenant. And therefore he that violateth a covenant, willeth the doing and the not doing of the same thing, at the same time, which is a plain contradiction. And so _injury_ is an _absurdity_ of conversation, as absurdity is a kind of injustice in disputation.
[Sidenote: That injury is done only to the covenantee.]
3. In all violation of covenant, (to whomsoever accrueth the damage) the injury is done only to him to whom the covenant was made. For example, if a man covenant to obey his master, and the master command him to give money to a third, which he promiseth to do, and doth not, though this be to the damage of the third, yet the injury is done to the master only. For he could violate no covenant with him, with whom none was made, and therefore doth him no injury. For injury consisteth in violation of covenant by the definition thereof.
[Sidenote: The signification of those names, just and unjust.]
4. The names of _just_, _unjust_, _justice_, _injustice_, are equivocal, and signify diversly. For justice and injustice, when they be attributed to actions, signify the same thing with _no injury_, and _injury_, and denominate the action _just_, or _unjust_, but not the man so. For they denominate him _guilty_, or _not guilty_. But when justice or injustice, are attributed to men, they signify _proneness_, and affection and inclination of nature, that is to say, passions of the mind, apt to produce just and unjust actions. So that when a man is said to be just, or unjust; not the action, but the passion and aptitude, to do such actions, is considered. And therefore a just man may have committed an unjust act; and an unjust man may have done justly, not only one, but most of his actions. For there is an _oderunt peccare_ in the unjust, as well as in the just, but from different causes. For the unjust man who abstaineth from injuries for fear of punishment, declareth plainly, that the justice of his actions dependeth upon civil constitution, from whence punishments proceed, which would otherwise in the estate of nature be unjust, according to the fountain from whence they spring. This distinction therefore of _justice_, and _injustice_, ought to be remembered, that when injustice is taken for guilty, the action is unjust, but not therefore the man; and when justice is taken for _guiltlessness_, the actions are just, and yet not always the man. Likewise when justice and injustice are taken for habits of the mind, the man may be just, or unjust, and yet not all his actions so.
[Sidenote: Justice not rightly divided into commutative, and distributive.]
5. Concerning the justice of actions, the same is usually divided into two kinds, whereof men call the one _commutative_, and the other _distributive_; and are said to consist, the one in proportion _arithmetical_; the other in _geometrical_: and _commutative_ justice, they place in permutation, as buying, selling, and bartering; _distributive_, in giving to every man according to their deserts. Which distinction is not well made, inasmuch as injury, which is the injustice of action, consisteth not in the inequality of the things changed, or distributed, but in the inequality that men, contrary to nature and reason, assume unto themselves above their fellows. Of which inequality, shall be spoken hereafter. And for _commutative_ justice placed in buying and selling, though the thing bought be unequal to the price given for it, yet forasmuch as both the buyer and the seller are made judges of the value, and are thereby both satisfied, there can be no injury done on either side, neither party having trusted, or covenanted with the other. And for _distributive_ justice, which consisteth in the distribution of our own benefits, seeing a thing is therefore said to be our own, because we may dispose of it at our own pleasure, it can be no injury to any man, though our liberality be farther extended towards another, than towards him; unless we be thereto obliged by covenant: and then the injustice consisteth in the violation of that covenant, and not in the inequality of distribution.
[Sidenote: It is a law of nature, that he that is trusted, turn not that trust to the damage of him that trusteth] 6. It happeneth many times that man benefitteth, or contributeth, to the power of another, without any covenant, but only upon confidence and trust of obtaining the grace and favour of that other, whereby he may procure a greater, or no less benefit, and assistance to himself. For by necessity of nature, every man doth in all his voluntary actions intend some good unto himself. In this case it is a law of nature, _That no man suffer him, that thus trusteth to his charity, or good affection towards him, to be in the worse estate for his trusting_. For if he shall so do, men will not dare to confer mutually to each other’s defence, nor put themselves into each other’s mercy upon any terms whatsoever, but rather abide the utmost and worst event of hostility; by which general diffidence, men will not only be enforced to war, but also afraid to come so much within the danger of one another, as to make any overture of peace. But this is to be understood of those only, that confer their benefits (as I have said) upon trust only, and not for triumph or ostentation. For as when they do it upon trust, the end they aimed at, namely to be well used, is the reward; so also when they do it for ostentation, they have the reward in themselves.
[Sidenote: Ingratitude defined.]
7. But seeing in this case there passeth no covenant, the breach of this law of nature is not to be called _injury_. It hath another name, to wit, _ingratitude_.
[Sidenote: It is a law of nature, to endeavour to accommodate one another.]
8. It is also a law of nature, _That every man do help and endeavour to accommodate each other as far as may be, without danger of their persons, and loss of their means, to maintain and defend themselves_. For seeing the causes of war and desolation proceed from those passions, by which we strive to accommodate ourselves, and to leave others as far as we can behind us, it followeth, that that passion by which we strive mutually to accommodate each other, must be the cause of peace. And this passion is that charity defined chapter IX. section 17.
[Sidenote: And that man forgive, upon caution for the future.]
9. And in this precept of nature, is included and comprehended also this, _That a man forgive and pardon him that hath done him wrong, upon his repentance and caution for the future_. For _pardon_ is peace granted to him, that, having provoked to war, demandeth it. It is not therefore charity, but fear, when a man giveth peace to him that repenteth not, nor giveth caution for maintaining thereof in the time to come. For he that repenteth not, remaineth with the affection of an enemy; as also doth he that refuseth to give caution, and consequently, is presumed not to seek after peace, but advantage. And therefore to forgive him is not commanded in this law of nature, nor is charity, but may sometime be prudence. Otherwise, not to pardon upon repentance and caution, considering men cannot abstain from provoking one another, is never to give _peace_. And that is against the general definition of the law of nature.
[Sidenote: And that revenge ought to respect the future only.]
10. And seeing the law of nature commandeth pardon, when there is repentance and caution for the future, it followeth, that the same law ordaineth, _That no revenge be taken upon the consideration only of the offence past, but of the benefit to come_; that is to say, that all revenge ought to tend to amendment, either of the person offending, or of others, by the example of his punishment; which is sufficiently apparent, in that the law of nature commandeth pardon, where the future time is secured. The same is also apparent by this, that revenge when it considereth the offence past, is nothing else, but present triumph and glory, and directeth to no end: and what is directed to no end, is therefore unprofitable; and consequently the triumph of revenge, is vain glory: and whatsoever is vain, is against reason; and to hurt one another without reason, is contrary to that, which by supposition is every man’s benefit, namely peace; and what is contrary to peace, is contrary to the law of nature.
[Sidenote: That reproach and contempt declared is against the law of nature.]
11. And because all signs which we shew to one another of hatred and contempt, provoke in the highest degree to quarrel and battle, (inasmuch as life itself, with the condition of enduring scorn, is not esteemed worth the enjoying, much less peace) it must necessarily be implied as a law of nature, _That no man reproach, revile, deride, or any otherwise declare his hatred, contempt, or disesteem of any other_. But this law is very little practised. For what is more ordinary than reproaches of those that are rich, towards them that are not? or of those that sit in place of judicature, towards those that are accused at the bar? although to grieve them in that manner, be no part of the punishment for their crime, nor contained in their office. But use hath prevailed, that what was lawful in the lord towards the servant whom he maintaineth, is also practised as lawful in the more mighty towards the less; though they contribute nothing towards their maintenance.
[Sidenote: That indifference of commerce is of the law of nature.]
12. It is also a law of nature, _That one man allow commerce and traffic indifferently to one another_. For he that alloweth that to one man, which he denieth to another, declareth his hatred to him, to whom he denieth. And to declare hatred is war. And upon this title was grounded the great war between the Athenians and the Peloponnesians. For would the Athenians have condescended to suffer the Megareans, their neighbours, to traffic in their ports and markets, that war had not begun.
[Sidenote: That messengers employed to procure or maintain peace, ought to be safe by the law of nature.]
13. And this also is a law of nature, _That all messengers of peace, and such as are employed to procure and maintain amity between man and man, may safely come and go_. For seeing peace is the general law of nature, the means thereto, such as are these men, must in the same law be comprehended.
sp 2 ------- CHAPTER IV.
1. A law of nature, that every man acknowledge other for his equal. 2. Another, that men allow _æqualia æqualibus_. 3. Another, that those things which cannot be divided, be used in common. 4. Another, that things indivisible and incommunicable, be divided by lot. 5. Natural lot, primogeniture, and first possession. 6. That men submit to arbitration. 7. Of an arbitrator. 8. That no man press his counsel upon any man against his will. 9. How to know suddenly what is the law of nature. 10. That the law of nature taketh place after security from others to observe the same. 11. The right of nature not to be taken away by custom, nor the law of nature abrogated by any act. 12. Why the dictates of nature are called laws. 13. Whatsoever is against conscience in a man that is his own judge, is against the law of nature. 14. Of _malum pœnæ, malum culpæ_; virtue and vice. 15. Aptitude to society fulfilleth the law of nature.
[Sidenote: A law of nature, that every man acknowledge other for his equal.]
1. The question, which is the better man, is determinable only in the estate of government and policy, though it be mistaken for a question of nature, not only by ignorant men, that think one man’s blood better than another’s by nature, but also by him, whose opinions are at this day, and in these parts, of greater authority than any other human writings. For he putteth so much difference between the powers of men by nature, that he doubteth not to set down, as the ground of all his politics, that some men are by nature worthy to govern, and others by nature ought to serve. Which foundation hath not only weakened the whole frame of his politics, but hath also given men colour and pretences, whereby to disturb and hinder the peace of one another. For though there were such a difference of nature, that master and servant were not by consent of men, but by inherent virtue; yet who hath that eminency of virtue, above others, and who is so stupid, as not to govern himself, shall never be agreed upon amongst men, who do every one naturally think himself, as able, at the least, to govern another, as another to govern him. And when there was any contention between the finer and the courser wits, (as there hath been often in times of sedition and civil war) for the most part, these latter carried away the victory; and as long as men arrogate to themselves more honour than they give to others, it cannot be imagined, how they can possibly live in peace: and consequently we are to suppose, that for peace sake, nature hath ordained this law, _That every man acknowledge other for his equal_. And the breach of this law, is that we call _pride_.
[Sidenote: Another, that men allow _æqualia æqualibus_.]
2. As it was necessary that a man should not retain his right to every thing, so also was it, that he should retain his right to some things; to his own body, for example, the right of defending, whereof he could not transfer; to the use of fire, water, free air, and place to live in, and to all things necessary for life. Nor doth the law of nature command any divesting of other rights, than of those only which cannot be retained without the loss of peace. Seeing then many rights are retained, when we enter into peace one with another, reason and the law of nature dictateth, _Whatsoever right any man requireth to retain, he allow every other man to retain the same_. For he that doth not so, alloweth not the equality mentioned in the former section. For there is no acknowledgment of worth, without attribution of the equality of benefit and respect. And this allowance of _æqualia æqualibus_, is the same thing with the allowing of _proportionalia proportionalibus_. For when a man alloweth to every man alike, the allowance he maketh, will be in the same proportion, in which are the numbers of men to whom they are made. And this is it men mean by _distributive justice_, and is properly termed _equity_. The breach of the law is that which the Greeks call Πλεονεξία, which is commonly rendered _covetousness_, but seemeth to be more precisely expressed by the word _encroaching_.
[Sidenote: Another, that those things which cannot be divided, be used in common.]
3. If there pass no other covenant, the law of nature is, _That such things as cannot be divided, be used in common, proportionably to the numbers of them that are to use the same, or without limitation, when the quantity thereof sufficeth_. For first supposing the thing to be used in common, not sufficient for them that are to use it without limitation, if a few shall make more use thereof than the rest, that equality is not observed, which is required in the second section. And this is to be understood, as all the rest of the laws of nature, without any other covenant antecedent: for a man may have given away his right of common, and so the case be altered.
[Sidenote: Another, that things indivisible and incommunicable, be divided by lot.]
4. In those things which neither can be divided, nor used in common, the rule of nature must needs be one of these, _lot_, or _alternate use_: for besides these two ways, there can no other equality be imagined; and for alternate use, he that beginneth, hath the advantage; and to reduce that advantage to equality, there is no other way but lot, in things, therefore indivisible and incommunicable, it is the law of nature, _That the use be alternate, or the advantage given away by lot_; because there is no other way of equality. And equality is the law of nature.
[Sidenote: Natural lot, primogeniture, and first possession.]
5. There be two sorts of lots; one arbitrary, made by men, and commonly known by the names of _lot_, _chance_, _hazard_, and the like; and there is _natural lot_, such as is _primogeniture_, which is no more but the chance, or lot, of being first born, which it seemeth they considered, that call inheritance by the name of κληρονομία, which signifieth _distribution_ by lot. Secondly, _prima occupatio_, first seizing, or finding of a thing, whereof no man made use before, which for the most part also is merely _chance_.
[Sidenote: That men submit to arbitration.]
6. Although men agree upon these laws of nature, and endeavour to observe the same; yet considering the passions of men, that make it difficult to understand by what actions, and circumstances of actions, those laws are broken, there must needs arise many great controversies about the interpretation thereof, by which the peace must needs be dissolved, and men return again to their former estate of hostility. For the taking away of which controversies, it is necessary that there be some common _arbitrator_ and _judge_, to whose sentence both the parties in the controversies ought to stand. And therefore it is a law of nature, _That in every controversy, the parties thereto ought mutually to agree upon an arbitrator, whom they both trust; and mutually to covenant to stand to the sentence he shall give therein_. For where every man is his own _judge_, there properly is no judge at all; as where every man carveth out his own right, it hath the same effect, as if there were no right at all: and where is no judge, there is no end of controversy: and therefore the right of hostility remaineth.
[Sidenote: Of an arbitrator.]
7. An _arbitrator_ therefore, or he that is judge, is trusted by the parties to any controversy, to determine the same by the declaration of his own judgment therein. Out of which followeth first, that the judge ought not to be concerned in the controversy he endeth; for in that case he is a party, and ought by the same reason to be judged by another. Secondly, that he maketh no covenant with either of the parties, to pronounce sentence for the one, more than for the other. Nor doth he covenant so much, as that his sentence shall be just; for that were to make the parties judges of the sentence, whereby the controversy would remain still undecided. Nevertheless for the trust reposed in him, and for the equality which the law of nature requireth him to consider in the parties, he violateth that law, if for favour, or hatred to either party, he give other sentence than he thinketh right. And thirdly, that no man ought to make himself judge in any controversy between others, unless they consent and agree thereto.
[Sidenote: That no man press his counsel upon any man against his will.]
8. It is also the law of nature, _That no man obtrude or press his advice or counsel to any man, that declareth himself unwilling to hear the same_. For seeing a man taketh counsel concerning what is good or hurt of himself only, and not of his counsellor, and that counsel is a voluntary action, and therefore tendeth also to the good of the counsellor, there may be often just cause to suspect the counsellor: and though there be none, yet seeing counsel unwillingly heard, is a needless offence to him that is not willing to hear it, and offences tend all to the breach of peace, it is therefore against the law of nature to obtrude it.
[Sidenote: How to know suddenly what is the law of nature.]
9. A man that shall see these laws of nature set down and inferred with so many words, and so much ado, may think there is yet much more difficulty and subtlety required to acknowledge and do according to the said laws in every sudden occasion, when a man hath but a little time to consider. And while we consider man in most passions, as of _anger_, _ambition_, _covetousness_, _vain glory_, and the like, that tend to the excluding of natural equality, it is true. But without these passions, there is an easy rule to know upon a sudden, whether the action I be to do, be against the law of nature, or not. And it is but this: _That a man imagine himself in place of the party with whom he hath to do, and reciprocally him in his_. Which is no more but a changing, as it were, of the scales. For every man’s passion weigheth heavy in his own scale, but not in the scale of his neighbour. And this rule is very well known and expressed in this old dictate, _Quod tibi fieri non vis, alteri ne feceris_.
[Sidenote: That the law of nature taketh place after security from others to observe the same.]