He that performeth first in the case of a contract 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 Imerit 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 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 anything 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 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 abandon of defending his life and means of living.
But in a civil estate,where there 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.
He that transferreth any right transferreth the means of enjoying it,as far as lieth in his power.As he that selleth land is understood to transfer 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.
To make covenants with brute beasts is impossible,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 by mediation of such as God speaketh to,either by revelation supernatural or by His lieutenants that govern under Him and in His name:for otherwise we know not whether our covenants be accepted 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 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.
