The Elements of Law Natural and Politic [34]
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