18. No man is obliged 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 fear, through which he apprehends that evil which is done to him to be the greatest; and therefore by natural necessity he shuns it all he can, and it is supposed he can do 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 tied to impossibilities, they who are threatened either with death, (which is the greatest evil to nature), or wounds, or some other bodily hurts, and are not stout enough to bear them, are not obliged to endure them. Furthermore, he that is tied by contract is trusted; for faith only is the bond of contracts; but they who are brought to punishment, either capital or more gentle, are fettered or strongly guarded; which is a most certain sign that they seemed not sufficiently bound from non-resistance by their contracts. It is one thing, if I promise thus: if I do it not at the day appointed, kill me. Another thing, if thus: if I do it not, though you should offer to kill me, I will not resist. All men, if need be, contract the first way, and there is need sometimes. This second way, none; neither is it ever needful. For in the mere state of nature, if you have a mind to kill, that state itself affords you a right; insomuch as you need not first trust him, if for breach of trust you will afterwards kill him. But in a civil state, where the right of life and death and of all corporal punishment is with the supreme, that same right of killing cannot be granted to any private person. Neither need the supreme himself contract with any man patiently to yield to his punishment; but only this, that no man offer to defend others from him. If in the state of nature, as between two realms, there should a contract be made on condition of killing if it were not performed, we must presuppose another contract of not killing before the appointed day. Wherefore on that day, if there be no performance, the right of war returns, that is a hostile state, in which all things are lawful, and therefore resistance also. Lastly, by the contract of not resisting, we are obliged, of two evils to make choice of that which seems the greater. For certain death is a greater evil than fighting. But of two evils it is impossible not to choose the least. By such a compact, therefore, we should be tied to impossibilities; which is contrary to the very nature of compacts.
The compact of self-accusation is invalid.
19. Likewise no man is tied by any compacts whatsoever to accuse himself, or any other, by whose damage he is like to procure himself a bitter life. Wherefore neither is a father obliged to bear witness against his son, nor a husband against his wife, nor a son against his father, nor any man against any one by whose means he hath his subsistence; for in vain is that testimony which is presumed to be corrupted from nature. But although no man be tied to accuse himself by any compact, yet in a public trial he may by torture be forced to make answer. But such answers are no testimony of the fact, but helps for the searching out of truth; so that whether the party tortured his answer be true or false, or whether he answer not at all, whatsoever he doth, he doth it by right.
The definition of an oath.
20. Swearing is a speech joined to a promise, whereby the promiser declares his renouncing of God’s mercy, unless 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, do 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 confirms 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 custom took its original hence, that those kings took upon them divine honour. For oaths were therefore introduced, that by religion and consideration of the divine power, men might have a greater dread of breaking their faiths, than that wherewith they fear men, from whose eyes their actions may lie hid.
The swearing must be conceived in that fashion which he uses who takes it.
21. Whence it follows that an oath must be conceived in that form, which he useth who takes it; for in vain is any man brought to swear by a God whom he believes not, and therefore neither fears 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, than what is contained in the precepts of his own proper, that is (as he who swears imagines) the true religion.
Swearing adds nothing to the obligation which is by compact.
22. By the definition of an oath, we may understand that a bare contract obligeth no less, than 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 itself unlawful; but it could not be unlawful, if the contract were not obligatory. Furthermore, he that renounceth the mercy of God, obligeth himself not to any punishment; because it is ever lawful to deprecate the punishment, howsoever provoked, and to enjoy God’s pardon if it be granted. The only effect therefore of an oath is this; to cause men, who are naturally inclined to break all manner of faith, through fear of punishment to make the more conscience of their words and actions.
An oath is not to be pressed, but where the breach of contract can either be kept private, or not be punished but from God alone.