PART I. 14.

tract are words

past, present,

the words are of the time present, or past, but also where they are of the future: because all contract is mutual translation, or change of right; and Signs of contherefore he that promiseth only, because he hath both of the already received the benefit for which he promiseth, and future. is to be understood as if he intended the right should pass for unless he had been content to have his words so understood, the other would not have performed his part first. And for that cause,

in buying, and selling, and other acts of contract, a promise is equivalent to a covenant; and therefore obligatory.

He that performeth first in the case of a con- Merit what. tract, is said to MERIT that which he is to receive by the performance of the other; and he hath it as due. Also when a prize is propounded to many, which is to be given to him only that winneth; or money is thrown amongst many, to be enjoyed by them that catch it; though this be a free gift; yet so to win, or so to catch, is to merit, and to have it as DUE. For the right is transferred in the propounding of the prize, and in throwing down the money; though it be not determined to whom, but by the event of the contention. But there is between these two sorts of merit, this difference, that in contract, I merit by virtue of my own power, and the contractor's need; but in this case of free gift, I am enabled to merit only by the benignity of the giver in contract, I merit at the contractor's hand that he should depart with his right; in this case of gift, I merit not that the giver should part with his right; but that when he has parted with it, it should be mine, rather than another's. And this I think to be the meaning of that distinction

PART I.

14.

Covenants of mutual trust,

of the Schools, between meritum congrui, and meritum condigni. For God Almighty, having promised Paradise to those men, hoodwinked with carnal desires, that can walk through this world according to the precepts, and limits prescribed by him; they say, he that shall so walk, shall merit Paradise ex congruo. But because no man can demand a right to it, by his own righteousness, or any other power in himself, but by the free grace of God only; they say, no man can merit Paradise ex condigno. This I say, I think is the meaning of that distinction; but because disputers do not agree upon the signification of their own terms of art, longer than it serves their turn; I will not affirm any thing of their meaning: only this I say; when a gift is given indefinitely, as a prize to be contended for, he that winneth meriteth, and may claim the prize as due.

If a covenant be made, wherein neither of the when invalid. parties perform presently, but trust one another; in the condition of mere nature, which is a condition of war of every man against every man, upon any reasonable suspicion, it is void but if there be a common power set over them both, with right and force sufficient to compel performance, it is not void. For he that performeth first, has no assurance the other will perform after; because the bonds of words are too weak to bridle men's ambition, avarice, anger, and other passions, without the fear of some coercive power; which in the condition of mere nature, where all men are equal, and judges of the justness of their own fears, cannot possibly be supposed. And therefore he which performeth first, does but betray himself to his

enemy; contrary to the right, he can never aban- PART I. don, of defending his life, and means of living.

But in a civil estate, where there is a power set up to constrain those that would otherwise violate their faith, that fear is no more reasonable; and for that cause, he which by the covenant is to perform first, is obliged so to do.

The cause of fear, which maketh such a covenant invalid, must be always something arising after the covenant made; as some new fact, or other sign of the will not to perform: else it cannot make the covenant void. For that which could not hinder a man from promising, ought not to be admitted as a hindrance of performing.

14.

end, containeth

He that transferreth any right, transferreth the Right to the means of enjoying it, as far as lieth in his power. right to the As he that selleth land, is understood to transfer means. the herbage, and whatsoever grows upon it: nor can he that sells a mill turn away the stream that drives it. And they that give to a man the right of government in sovereignty, are understood to give him the right of levying money to maintain soldiers; and of appointing magistrates for the administration of justice.

with beasts.

To make covenants with brute beasts, is impossi- No covenant ble; because not understanding our speech, they understand not, nor accept of any translation of right; nor can translate any right to another: and without mutual acceptation, there is no covenant.

To make covenant with God, is impossible, but Nor with God without special by mediation of such as God speaketh to, either by revelation. revelation supernatural, or by his lieutenants that govern under him, and in his name: for otherwise we know not whether our covenants be accepted,

PART I.

14.

No covenant, but of possible and future.

Covenants how made void.

Covenants extorted by fear are valid.

or not. And therefore they that vow anything contrary to any law of nature, vow in vain; as being a thing unjust to pay such vow. And if it be a thing commanded by the law of nature, it is not the vow, but the law that binds them.

The matter, or subject of a covenant, is always something that falleth under deliberation; for to covenant, is an act of the will; that is to say, an act, and the last act of deliberation; and is therefore always understood to be something to come; and which is judged possible for him that covenanteth, to perform.

And therefore, to promise that which is known to be impossible, is no covenant. But if that prove impossible afterwards, which before was thought possible, the covenant is valid, and bindeth, though not to the thing itself, yet to the value; or, if that also be impossible, to the unfeigned endeavour of performing as much as is possible: for to more no man can be obliged.

Men are freed of their covenants two ways; by performing; or by being forgiven. For performance, is the natural end of obligation; and forgiveness, the restitution of liberty; as being a retransferring of that right, in which the obligation consisted.

Covenants entered into by fear, in the condition of mere nature, are obligatory. For example, if I covenant to pay a ransom, or service for my life, to an enemy; I am bound by it: for it is a contract, wherein one receiveth the benefit of life; the other is to receive money, or service for it; and consequently, where no other law, as in the condition of mere nature, forbiddeth the performance, the

14.

covenant is valid. Therefore prisoners of war, if PART I. trusted with the payment of their ransom, are obliged to pay it: and if a weaker prince, make a disadvantageous peace with a stronger, for fear; he is bound to keep it; unless, as hath been said before, there ariseth some new, and just cause of fear, to renew the war. And even in commonwealths, if I be forced to redeem myself from a thief by promising him money, I am bound to pay it, till the civil law discharge me. For whatsoever. I may lawfully do without obligation, the same I may lawfully covenant to do through fear: and what I lawfully covenant, I cannot lawfully break.

venant to one,

A former covenant, makes void a later. For a The former coman that hath passed away his right to one man makes void the to-day, hath it not to pass to-morrow to another : later to anoand therefore the later promise passeth no right,

but is null.

ther.

nant not to de

void.

A covenant not to defend myself from force, by A man's coveforce, is always void. For, as I have showed be- fend himself is fore, no man can transfer, or lay down his right to save himself from death, wounds, and imprisonment, the avoiding whereof is the only end of laying down any right; and therefore the promise of not resisting force, in no covenant transferreth any right; nor is obliging. For though a man may covenant thus, unless I do so, or so, kill me; he cannot covenant thus, unless I do so, or so, I will not resist you, when you come to kill me. man by nature chooseth the lesser evil, which is danger of death in resisting; rather than the greater, which is certain and present death in not. resisting. And this is granted to be true by all men, in that they lead criminals to execution, and

For