The Elements of Law/Part I/Chapter 15

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Chapter 15: Of the Divesting Natural Right by Gift and Covenant[edit]

1. What it is we call the law of nature, is not agreed upon, by those that have hitherto written. For the most part, such writers as have occasion to affirm, that anything is against the law of nature, do allege no more than this, that it is against the consent of all nations, or the wisest and most civil nations. But it is not agreed upon, who shall judge which nations are the wisest. Others make that against the law of nature, which is contrary to the consent of all mankind; which definition cannot be allowed, because then no man could offend against the law of nature; for the nature of every man is contained under the nature of mankind. But forasmuch as all men, carried away by the violence of their passion, and by evil customs, do those things which are commonly said to be against the law of nature; it is not the consent of passion, or consent in some error gotten by custom, that makes the law of nature. Reason is no less of the nature of man than passion, and is the same in all men, because all men agree in the will to be directed and governed in the way to that which they desire to attain, namely their own good, which is the work of reason. There can therefore be no other law of nature than reason, nor no other precepts of NATURAL LAW, than those which declare unto us the ways of peace, where the same may be obtained, and of defence where it may not.

2. One precept of the law of nature therefore is this, that every man divest himself of the right he hath to all things by nature. For when divers men have right not only to all things else, but to one another's persons, if they use the same, there ariseth thereby invasion on the one part, and resistance on the other, which is war; and therefore contrary to the law of nature, the sun whereof consisteth in making peace.

3. When a man divesteth and putteth from himself his right, he either simply relinquisheth it, or transferreth the same to another man. To RELINQUISH it, is by sufficient signs to declare, that it is his will no more to do that action, which of right he might have done before. To TRANSFER right to another, is by sufficient signs to declare to that other accepting thereof, that it is his will not to resist, or hinder him, according to that right he had thereto before he transferred it. For seeing that by nature every man hath right to every thing, it is impossible for a man to transfer unto another any right that he had not before. And therefore all that a man doth in transferring of right, is no more but a declaring of the will, to suffer him, to whom he hath so transferred his right, to make benefit of the same, without molestation. As for example, when a man giveth his land or goods to another, he taketh from himself the right to enter into, and make use of the said land or goods, or otherwise to hinder him of the use of what he hath given.

4. In transferring of right, two things therefore are required: one on the part of him that transferreth; which is, a sufficient signification of his will therein: the other, on the part of him to whom it is transferred; which is, a sufficient signification of his acceptation thereof. Either of these failing, the right remaineth where it was; nor is it to be supposed, that he which giveth his right to one that accepteth it not, doth thereby simply relinquish it, and transfer it to whomsoever will receive it; inasmuch as the cause of the transferring the same to one, rather than to another, is in that one, rather than in the rest.

5. When there appear no other signs that a man hath relinquished, or transferred his right, but only words; it behoveth that the same be done in words, that signify the present time, or the time past, and not only the time to come. For he that saith of the time to come, as for example, to-morrow: I will give, declareth evidently, that he hath not yet given. The right therefore remaineth in him to-day, and so continues till he have given actually. But he that saith: I give, presently, or have given to another any thing, to have and enjoy the same to-morrow, or any other time future, hath now actually transferred the said right, which otherwise he should have had at the time that the other is to enjoy it.

6. But because words alone are not a sufficient declaration of the mind, as hath been shewn chap. XIII, sect. 8 words spoken de futuro, when the will of him that speaketh them may be gathered by other signs, may be taken very often as if they were meant de praesenti. For when it appeareth that he that giveth would have his word so understood, by him to whom he giveth, as if he did actually transfer his right, then he must needs be understood to will all that is necessary to the same.

7. When a man transferreth any right of his to another, without consideration of reciprocal benefit, past, present, or to come; this is called FREE GIFT. And in free gift no other words can be binding, but those which are de praesenti, or de praeterito: for being de futuro only, they transfer nothing, nor can they be understood, as if they proceeded from the will of the giver; because being a free gift, it carrieth with it no obligation greater than that which is enforced by the words. For he that promiseth to give, without any other consideration but his own affection, so long as he hath not given, deliberateth still, according as the causes of his affections continue or diminish; and he that deliberateth hath not yet willed, because the will is the last act of his deliberation. He that promiseth therefore, is not thereby a donor, but doson; which name was given to that Antiochus, that promised often, but seldom gave.

8. When a man transferreth his right, upon consideration of reciprocal benefit, this is not free gift, but mutual donation; and is called CONTRACT. And in all contracts, either both parties presently perform, and put each other into a certainty and assurance of enjoying what they contract for: as when men buy or sell, or barter; or one party performeth presently, and the other promiseth, as when one selleth upon trust; or else neither party performeth presently, but trust one another. And it is impossible there should be any kind of contract besides these three. For either both the contractors trust, or neither; or else one trusteth, and the other not.

9. In all contracts where there is trust, the promise of him that is trusted, is called a COVENANT. And this, though it be a promise, and of the time to come, yet doth it transfer the right, when that time cometh, no less than an actual donation. For it is a manifest sign, that he which did perform, understood it was the will of him that was trusted, to perform also. Promises therefore, upon consideration of reciprocal benefit, are covenants and signs of the will, or last act of deliberation, whereby the liberty of performing, or not performing, is taken away, and consequently are obligatory. For where liberty ceaseth, there beginneth obligation.

10. Nevertheless, in contracts that consist of such mutual trust, as that nothing be by either party performed for the present, when the contract is between such as are not compellable, he that performeth first, considering the disposition of men to take advantage of every thing for their benefit, doth but betray himself thereby to the covetousness, or other passion of him with whom he contracteth. And therefore such covenants are of none effect. For there is no reason why the one should perform first, if the other be likely not to perform afterward. And whether he be likely or not, he that doubteth, shall be judge himself (as hath been said chap. XIV, sect. 8), as long as they remain in the estate and liberty of nature. But when there shall be such power coercive over both the parties, as shall deprive them of their private judgments in this point; then may such covenants be effectual; seeing he that performeth first shall have no reasonable cause to doubt of the performance of the other, that may be compelled thereunto.

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, farther 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.

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.

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, have 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.

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.

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 (viz.) 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 covenants; 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.

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.

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.

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, 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.