The law of nature consisteth not in consent of men, but reason.
1. What it is we call the law of nature, is not agreed upon by those, that have hitherto written. For the most part, such writers as have occasion to affirm, that anything is against the law of nature, do allege no more than this, that it is against the consent of all nations, or the wisest and most civil nations. But it is not agreed upon, who shall judge which nations are the wisest. Others make that against the law of nature, which is contrary to the consent of all mankind; which definition cannot be allowed, because then no man could offend against the law of nature; for the nature of every man is contained under the nature of mankind. But forasmuch as all men are carried away by the violence of their passion, and by evil customs do those things which are commonly said to be against the law of nature; it is not the consent of passions, or consent in some error gotten by custom, that makes the law of nature. Reason is no less of the nature of man than passion, and is the same in all men, because all men agree in the will to be directed and governed in the way to that which they desire to attain, namely, their own good, which is the work of reason: there can therefore be no other law of nature than reason, nor no other precepts of natural law, than those which declare unto us the ways of peace, where the same may be obtained, and of defence where it may not.
That every man divest himself of the right he hath to all things, is one precept of nature.
2. One precept of the law of nature therefore is this, that every man divest himself of the right he hath to all things by nature. For when divers men having right not only to all things else, but to one another’s persons, if they use the same, there ariseth thereby invasion on the one part, and resistance on the other, which is war, and therefore contrary to the law of nature, the sum whereof consisteth in making peace.
What it is to relinquish and transfer one’s right.
3. When a man divesteth and putteth from himself his right, he either simply relinquisheth it, or transferreth the same to another man. To relinquish it, is by sufficient signs to declare, that it is his will no more to do that action, which of right he might have done before. To transfer right to another, is by sufficient signs to declare to that other accepting thereof, that it is his will not to resist, or hinder him, according to that right he had thereto before he transferred it. For seeing that by nature every man hath right to every thing, it is impossible for a man to transfer unto another any right that he had not before. And therefore all that a man doth in transferring of right, is no more but a declaring of the will, to suffer him, to whom he hath so transferred his right, to make benefit of the same, without molestation. As for example, when a man giveth his lands or goods to another, he taketh from himself the right to enter into, and make use of the said lands or goods, or otherwise to hinder him of the use of what he hath given.
The will to transfer, and the will to accept, both necessary to the passing away of right.
4. In transferring of right, two things therefore are required: one on the part of him that transferreth, which is a sufficient signification of his will therein; the other, on the part of him to whom it is transferred, which is a sufficient signification of his acceptation thereof. Either of these failing, the right remaineth where it was: nor is it to be supposed, that he which giveth his right to one that accepteth it not, doth thereby simply relinquish it, and transfer it to whomsoever will receive it: inasmuch as the cause of transferring the same to one, rather than to another, is in the one, rather than in the rest.
Right not transferred by words de futuro only.
5. When there appear no other signs that a man hath relinquished, or transferred his right, but only words, it behoveth that the same be done in words, that signify the present time, or the time past, and not only the time to come. For he that saith of the time to come, as for example, to-morrow I will give, declareth evidently, that he hath not yet given. The right, therefore, remaineth in him to-day, and so continues, till he have given actually. But he that saith, I give, presently, or have given to another anything, to have and enjoy the same to-morrow, or any other time further, hath now actually transferred the said right, which otherwise he should have had at the time that the other is to enjoy it.