De Cive by Thomas Hobbes (1651)

Chap. II. Of the Law of Nature concerning Contracts.

I. All Authors agree not concerning the definition of the Naturall Law, who notwithstanding doe very often make use of this terme 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 somwhat is done against the Law of Nature, one proves it hence, because it was done against the generall Agreement of all the most wise, and learned Nations: But this declares not who shall be the judg of the wisdome and learning of all Nations: Another hence, That it was done against the Generall consent of all Man-kind; 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 Man-kind, they comprehend all men actually endued with Reason. These therefore either doe Naught against it, or if they doe Ought, it is without their joint accord, and therefore ought to be excus'd; but to receive the Lawes of Nature from the Consents of them, who oftner Break, then Observe them, is in truth unreasonable: besides, Men condemne the same things in others, which they approve in themselves; on the other side, they publickly commend what they privately condemne; and they deliver their Opinions more by Hear-say, then any Speculation of their own; and they accord more through hatred of some object, through fear, hope, love, or some other perturbation of mind, then true Reason. And therefore it comes to passe, that whole Bodyes of people often doe those things by Generall accord, or Contention, which those Writers most willingly acknowledge to be against the Law of Nature. But since all doe grant that is done by RIGHT, which is not done against Reason, we ought to judg those Actions onely wrong, which are repugnant to right Reason, (i.e.) which contradict some certaine Truth collected by right reasoning from true Principles; but that Wrong which is done, we say it is done against some Law: therefore True Reason is a certaine Law, which (since it is no lesse a part of Humane nature, then any other faculty, or affection of the mind) is also termed naturall. Therefore the Law of Nature, that I may define it, is the Dictate of right Reason, 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 lyes.

Right Reason.

By Right Reason in the naturall state of men, I understand not, as many doe, 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 dammage, or benefit of his neighbours. I call it Peculiar, because although in a Civill Government the reason of the Supreme (i.e. the Civill Law) is to be received by each single subject for the right; yet being without this Civill Government, (in which state no man can know right reason from false, but by comparing it with His owne) every mans owne reason is to be accounted not onely the rule of His owne actions which are done at His owne perill, but also for the measure of another mans reason, in such things as doe concerne him. I call it True; that is, concluding from true principles rightly fram'd, because that the wHole breach of the Lawes of Nature consists in the false reasoning, or rather folly of those men who see not those duties they are necessarily to performe toward others in order to their owne conservation; but the Principles of Right reasoning about such like duties are those which are explained in the 2, 3, 4, 5, 6, and 7. articles of the first Chapter.

II. But the first and fundamentall Law of Nature is, That Peace is to be sought after where it may be found; and where not, there to provide our selves for helps of War: For we shewed 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 naturall Lawes, that hath been newly prov'd above; But this is the first, because the rest are deriv'd from this, and they direct the wayes either to Peace, or self-defence.

III. But one of the Naturall Lawes deriv'd from this fundamentall one is this, That the right of all men, to all things, ought not to be retain'd, but that some certain rights ought to be transferr'd, or relinquisht: 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 naturall 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, (i.e.) against the Law of Nature, whosoever he be, that doth not part with his Right to all things.

IV. 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 Signe, or meet Tokens, declares that he is willing that it shall never be lawfull for him to doe that again, which before, by Right, he might have done; but he conveys it to another, who by some sufficient Signe, or meet Tokens, declares to that other, that he is willing it should be unlawfull for him to resist him, in going about to do somewhat in the performance where he might before, with Right, have resisted him; but that the conveyance of Right consists meerly in not resisting, is understood by this, that before it was convey'd, he, to whom he convey'd 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 abolisht: Whosoever therefore acquires some Right in the naturall state of men, he onely procures himself security, and freedome from just molestation in the enjoyment of his Primitive Right: As for example, if any man shall sell, or give away a Farme, he utterly deprives himself only from all Right to this Farme, but he does not so from others also.

V. But in the conveyance of Right the will is requisite not onely of him that conveys, but of him also that accepts it. If either be wanting, the Right remaines: for if I would have given what was mine, to one who refus'd to accept of it, I have not therefore either simply renounc'd my Right, or convey'd it to any man; for the cause which mov'd me to part with it to this Man was in him onely, not in others too.

VI. But if there be no other Token extant of our will either to quit, or convey our Right, but onely Words; those words must either relate to the present, or time past; for if they be of the future onely, 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, unlesse in the interim he actually bestowes 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 doe 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.

VII. Neverthelesse, although words alone are not sufficient tokens to declare the Will; if yet to words relating to the future, there shall some other signes be added, they may become as valid, as if they had been spoken of the present: If therefore, as by reason of those other signes, it appear, that he that speaks of the future, intends those words should be effectuall 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 instanc'd in the 4. Article) on the declaration of the Will.

VIII. If any man conveigh some part of his right to another, and doth not this for some certain benefit received, or for some compact, a conveighance in this kind is called a Gift, or free Donation. But in free donation those words onely oblige us which signifie 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 wils it; there can no other token be assigned of the Will to give it, except some benefit either already receiv'd, or to be acquir'd; but is suppos'd, 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 mutuall good turne without agreement be expected; but no signe can be given, that he, who us' d future words toward him who was in no sort engag'd to return a benefit, should desire to have his words so understood, as to oblige himselfe thereby. Nor is it suitable to Reason, that those who are easily enclined to doe well to others, should be oblig'd 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 farre forth free, nor can be said to have already given: But if he promise often, and yet give seldome, he ought to be condemn'd of levity, and be called not a Donour, but Doson.

IX. But the act of two, or more, mutually conveighing their Rights, is call'd a Contract. But in every Contract, either both parties instantly performe what they contract for, insomuch as there is no trust had from either to other; or the one performes, the other is trusted, or neither performe. Where both parties performe presently, there the Contract is ended, as soon as 'tis 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.

X. 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 lesse transfer the right of future time, then if it had been made by words signifying the present, or time past: for the others performance is a most manifest signe 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 signe the party trusted knew himselfe to be thus understood, which, because he hindred not, 'twas an evident token of his Will to performe. 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 abolisht, and by consequence are obligatory; for where Liberty ceaseth, there beginneth Obligation.

XI. But the Covenants, which are made in contract of mutuall trust, neither party performing out of hand, if there arise a just suspicion in either of them, are in the state of nature invalid: for he that first performes by reason of the wicked disposition of the greatest part of men studying their owne advantage, either by right, or wrong, exposeth himself to the perverse will of him with whom he hath Contracted; for it suites not with reason, that any man should performe 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 shewed in the foregoing Chapter in the 9. Article. Thus, I say, things stand in the state of nature, but in a Civill State, when there is a power which can compell both parties, he that hath contracted to perform first, must first performe; because, that since the other may be compell'd, the cause which made him fear the others non-performance, ceaseth.


For, except there appear some new cause of fear, either from somewhat done, or some other token of the till not to performe from the other part, it cannot be judg'd 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.

XII. But from this reason, that in all Free-gifts, and Compacts, there is an acceptance of the conveighance of Right required: it followes, 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 oblig'd to him by Vow, except so far forth as it appeares to him by Holy Scriptures, that he hath substituted certaine men who have authority to accept of such like Vowes and Covenants, as being in Gods stead.

XIII. Those therefore doe vow in vain, who are in the state of nature, where they are not tyed by any Civill 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 tyed by their Vow, for no man is tyed to perform an unlawfull act; but if what is vowed, be commanded by some Law of nature, it is not their Vow, but the Law it self which ties them; but if he were free before his vow, either to doe it, or not doe it, his liberty remaines, because that the openly declar'd Will of the obliger is requisite to make an obligation by Vow, which in the case propounded is suppos'd not to be: Now I call him the Obliger to whom any one is tyed, and the Obliged him who is tyed.

XIV. Covenants are made of such things onely 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; therefore they onely concerne things possible, and to come; no man therefore, by his Compact, obligeth himself to an impossibility. But yet, though we often Covenant to doe such things as then seem' d possible when we promis'd them, which yet afterward appear to be impossible, are we therefore freed from all obligation? The reason whereof is, that he who promiseth a future incertainty receives a present benefit; on condition, that he return another for it: for his Will, who performes the present benefit hath simply before it, for its object, a certain good valuable with the thing promised; but the thing it selfe 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 it selfe covenanted for, but our utmost endeavour. for this onely is, the things themselves are not in our power.

XV. We are freed from Covenants two wayes, either by performing, or by being forgiven: By performing, for beyond that we oblig'd not our selves. By being for-given, because he whom we oblig'd our selves to by forgiving, is conceiv'd to return us that Right which we past 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.

XVI. Its an usuall question, Whether Compacts extorted from us, through fear, do oblige, or not: For example, If to redeeme my life, from the power of a Robber, I promise to pay him 100 l. next day; and that I will doe no act whereby to apprehend, and bring him to Justice, whether I am tyed 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 proceeded from fear, for then it would follow that those promises which reduc'd men to a civill life, and by which Lawes were made, might likewise be of none effect, (for it proceeds from fear of mutuall slaughter, that one man submits himselfe 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 doe oblige when there is some benefit received; and that to promisee and the thing promised, be lawfull: But it is lawfull, for the redemption of my life, both to promise, and to give what I will of mine owne to any man, even to a Thief. We are oblig'd therefore. by promises proceeding from fear, except the Civill Law forbid them, by vertue whereof, that which is promised becomes unlawfull.

XVII. Whosoever shall contract with one to doe, or omit somewhat, and shall after Covenant the contrary with another; he maketh not the former, but the latter Contract unlawfull: for, he hath no longer Right to doe, or to omit ought, who by former Contracts hath conveyed it to another; wherefore he can conveigh no Right by latter Contracts, and what is promised, is promis'd without Right: He is therefore tyed onely to his first Contract; to break which is unlawfull.

XVIII. No man is oblig'd 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 feare through which he apprehends that evill which is done to him to be the greatest, and therefore by naturall necessity he shuns it all he can, and 'tis suppos'd he can doe 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 tyed to impossibilities, they who are threatned either with deathe (which is the greatest evill to nature) or wounds, or some other bodily hurts, and are not stout enough to bear them, are not obliged to endure them. Farthermore, he that is tyed by Contract is trusted, (for Faith only is the Bond of Contracts) but they who are brought to punishment, either Capitall, or more gentle, are fettered, or strongly guarded, which is a most certain signe that they seem' d not sufficiently bound from non resistance by their Contracts. Its one thing if I promise thus: If I doe it not at the day appointed, kill me. Another thing if thus: If I doe it not, though you should offer to kill me, I will not resist: All men, if need be, contract the first way; but there is need sometimes. This second way, none, neither is it ever needfull; for in the meer state of nature, if you have a mind to kill, that state it selfe affords you a Right; insomuch as you need not first trust him, if for breach of trust you will afterward kill him. But in a Civill State, where the Right of life, and death, and of all corporall punishment is with the Supreme; that same Right of killing cannot be granted to any private person. Neither need the Supreme himselfe contract with any man patiently to yeeld to his punishment, but onely this, that no man offer to defend others from him. If in the state of nature, as between two Cities, there should a Contract be made, on condition of killing, if it were not perform'd, we must presuppose another Contract of not killing before the appointed day. Wherefore on that day, if there be no performance, the right of Warre returnes; that is, an hostile state, in which all things are lawfull, and therefore resistance also. Lastly, by the contract of not resisting, we are oblig'd of two Evills to make choice of that which seemes the greater; for certaine Death is a greater evill then Fighting; but of two Evills it is impossible not to chuse the least: By such a Compact therefore we should be tyed to impossibilities, which is contrary to the very nature of compacts.

XIX. Likewise no man is tyed by any Compacts whatsoever to accuse himself, or any other, by whose dammage he is like to procure himselfe a bitter life; wherefore neither is a Father oblig'd to bear witnesse against his Sonne, nor a Husband against his Wife, nor a Sonne against his Father; nor any man against any one, by whose meanes he hath his subsistance; for in vain is that testimony which is presum'd to be corrupted from nature; but although no man be tyed to accuse himself by any compact, yet in a publique tryall he may, by torture, be forc'd to make answer; but such answers are no testimony of the fact, but helps for the searching out of truth; insomuch as whether the party tortur'd his answer be true, or false, or whether he answer not at all, whatsoever he doth, he doth it by Right.

XX. Swearing is a speech joyned to a promise, whereby the promiser declares his renouncing of Gods mercy, unlesse 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, Doe 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 confirmes 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 custome took its Originall hence, That those Kings took upon them Divine Honour; for Oathes were therefore introduc'd that by Religion, and consideration of the Divine Power men might have a greater dread of breaking their Faiths, then that wherewith they fear men, from whose eyes their actions may lie hid.

XXI. Whence it followes, that an Oath must be conceived in that forme which he useth, who takes it; for in vain is any man brought to Swear by a God whom he beleeves not, and therefore neither feares 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 then what is contain'd in the precepts of his own proper, that is, (as he who Swears imagines) the true Religion.

XXII. By the definition of an Oath we may understand, that a bare Contract obligeth no lesse, then 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 its selfe unlawfull; but it could not be unlawfull if the Contract were not obligatory. Furthermore, he that renounceth the mercy of God obligeth himselfe not to any punishment, because it is ever lawfull to deprecate the punishment howsoever provok'd, and to enjoy Gods Pardon if it be granted. The onely effect therefore of an Oath is this, To cause men who are naturally inclin'd to break all manner of faith, through fear of punishment, to make the more Conscience of their words and actions.

XXIII. To exact an Oath, where the breach of contract, if any be made, cannot but be known, and where the party compacted, withall wants not power to punish, is to do somewhat more then is necessary unto self-defence, and shewes a mind desirous not so much to benefit it selfe, as to prejudice another. For an Oath, out of the very form of swearing, is taken in order to the provocation of Gods anger, that is to say, of him that is Omnipotent against those who think, that by their own therefore violate their Faith, because they 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.