Impulsive causes of oathes 130. they are twofold ibid. Intention of the party how to be judged 130 Intention frees not a man from perjury 224 Internal formes of oathes 188 Josephs oath 169 Joshuas oath 19. 132 Irritation of a lawful Superior cancels the bond of an oath 247 Judahs oath to Thamar 219 L. Law twofold 23 Lawful power required in an oath 206 Lawful to swear to an Infide◠122 M. Madmens and fools oathes 109 Manichees did swear frequently by the creature 159 Matter of an oath either indefinite or definite 66 Mentall reservation in oathes 198 Minde and intention of the party swearing 176 O. Oathes of those who are not in their owne power 115. without his consent in whose power they are 117 Oathes made to Infidels ought to be kept 122 Oathes are personall bonds 127 Oathes obtained by fraud 132 Oathes extorted by fear 135. by a slight fear 136. they bind ibid. Oathes made to Theeves are binding 138 Oathes by signes without words 151 Oathes by the creature 153. are unlawfull ibid. it is good to abstain from them 157 Oathes made by Idols 160. are double sin 161 yet they are obligatory 162 Oathes according to the custome of the countrey 174 Oathes given to Princes 183 Oathes of Allegiance taken by Jesuites 200 Oathes of Allegiance 73 Oathes upon condition 215 Oathes in complement 221 Oathes religious acts 6 Oathes ends of all contradictions 13 Oathes are the greatest humane faith that can be 15 Oathes assertory and promissory 17 Oathes invoke God both as a witnesse and a Judge 21 Oathes oblige the conscience 29 Oathes instituted of God 45 Oathes make not former Obligations void 58 Oathes of things simply impossible are not obligatory nor lawfull 66 Oathes against the law of a community 80 Oathes of things which the parties swearing think to be unlawfull 82 Oathes impeditive of some future good 86 Othes tending to some ones hurt 88 Oathes giving scandal hinder them not from binding 92 Oathes in cases indifferent both lawfull and binding 93 Oathes binde in the matter of least moment 94 Oathes of homage and Supremacy 98 Oathes of members of Communities 99 Oathes are of those things which are not evill in themselves 264. nor desirable ibid. good because necessary ibid. Oathes not to be taken with reluctancy nor an unsatisfied conscience 269 Object of an oath is a doubtful thing 11 Obligation what it is 23. it is twofold 26 Obligation of conscience ariseth precisely out of the debt of duty 27 Obligation of an oath is stricti juris 48. tempered with equity but not corrupted with favour 49 P. Paulus Cortesius and Peter Bembo too much affected to elegancy 35 Perjury is of three sorts 38 Perjury not taken away by any kinde of simulation 41 Philosophers and Divines are not to affect oratory 36 Pomponius his oath 140 Promissory oathes 17. under them Comminatory oathes are comprehended 19. what difference between them and Assertory oathes 29. to be understood in that sense as thé party to whom the oath is made intendeth 209 Proper matter of an oath 15 Proper obligation of a promissory oath 31 Q. Qualities required in one who deferreth an oath 120 R. Rational judgement required in an oath 106 Relaxation freeth a man from his oath 250 availeth nothing in contracts of Matrimony 256 Religion of an oath alwayes held most sacred 7 Regulus his oath 123 Rights of Rulers over their subjects perpetual 246 Rights fitting to be in Divine worship 180 Rites of the Old Testament all alike lawfull or unlawful 181 Romans oath 170 S. Sense of an oath how to be taken 190 Silences sworn to Theeves 144 Simplicity becometh an oath 37. to which two kindes of simulation are repugnant 39 Simulation is against the third Commandement 47 Single and double truth 228 Sins against the Conscience are grievous 83 Solemne rites of oathes 178 Solemnity of the act aggravates the sin of an oath 183 Some things require a milder interpretation 51 Some legall rites of society appertain even to theeves 140 Solution of the bond of an oath what it is 229. proper to a promissory oath 227 Solomons oath to Bathsheba 96 Speech of ambiguous and indefinite sense before it be distinguished is no proposition 212 Spontaneous oathes forbidden unlesse it be upon necessary and weighty occasions 131. 307 Summary of what is contained in the book 3 Superfluous things not to be put in definitions 10 T. Tacite antecedent consent 118. subsequent 119 Things cannot by their mixture produce a new species without some reall immutation 24 Things unlawful ex accidente 82 Two swearing mutually 125 Twofold obligation may arise out of an oath 143 U. Verball forms of oathes 163 Verball equivocation in an oath 192 Unlawfull things oblige not 53. 61 Unlawful things several wayes 76 Unlawfull things secundario 78 Unlawfull oathes to be refused even to danger of life 121 Unlawfull to promise any thing to an evill intent 218 Undue exaction of an oath is a grievous sin 267 Vows made to God and oathes to men are the strongest of all obligations 29 Use of oathes lawfull 257. in common discourse unlawfull 259 Use of promissory oathes in justice 266 W. What ought not to be performed ought not to be sworn 63 What truth is required in a promissory oath 227 What is not of faith is sin 269 What are not fit matters for oaths 12. what are ibid. Who swears by the creature doth it some way inrelatio◠God 9 Whosoever is obliged is obliged to another 58 Why an oath called Sacrament 7 Will cannot be forced 142 Words are interpreters of things conceived in the minde 150 FINIS Gen. 24. 9 Josh. 9. 15. Mat. 14. 7. Psal. 95. Psal. 56. 6. Psal. 12. 5. Psal. 110. 4. Psal. 132. 11. Jer. 4. 2. Amos 6. 12. Hor. 3. lib. 2. Ode 1 Cor. 15. 23. Gen. 41. 15. Mat. 5. 34.
amongst us the oaths of Homage of Royall Supremacy and the like No man denyeth these oaths either to be lawfull or obligatory but in respect of the frequent incertainty of the Laws whereunto they relate it may very well be doubted how far they oblige Doubtlesse the Subject to his power is obliged to defend all rights which appear either by law or custome Legitimate whether defined by the written Law or in force through long use of time or prescription â—â—at is so far as they are known or may morally be known But he is not equally obliged unto the observation of all those which are controverted or doubtfull especially since powerfull men are accustomed to stretch their Teathers and leap over the Landmarks of their neighbours not contenting themselves within the bounds of their own right Neverthelesse a subject ought to be always prepared in minde so soon as the justnesse of those things which are doubtfull shall appear to acknowledge and defend them SECT XVIII THe last case is where an oath is required of member of any Community as of a City University or Colledge Society of Merchants or Handicrafts men to observe the Statutes Customes and Liberties of that Corporation If you ask what the obligation is I answer first that the party sworn is obliged simply unto the observation as far as in him lyeth of all fundamentall Statutes By fundamentall I understand such as most necessarily and nearly concern the preservation of the publique estate order and honour of the whole body or Community But Secondly not that alwayes and necessarily to the rigour of the lettâ—r but as they are put in practise and received by custome and as they are with approbation observed by others Thirdly concerning the lesser Statutes appeartaining only unto externall form and decency which by the condition of the matter or form of the Sanction or any other probable conjecture a discreet man may judge not to have been framed with intention of rigid obligation he is obliged to observe thâ—m ordinarily yet so as wiâ—hout scruple of conscience he may sometimes having just cause for it pretermit that which is prescribed to be done by some Statute provided it be without scandall or contempt Fourthly the obligation is extended unto Statutes to be made for the futuâ—e provided they be possible just and honest Fifthly if any Statute after the oath takâ—n be abrogatâ—d or grown out of use the obligation of the oaâ—h as to the Statute ceaseth and he is not bound any longer to observe it unlesse he have sworn in expresse words unto the matter it self decreed by that Statute For in that case though the Statute be taken away the obligation remaineth Sixthly seeing Statutes of Corporations be very many and many of them unknown to many and that it is most difficult nay scarce possible to observe them all exactly and to an haire he who shall behave himself so honestly that willingly he omitteth nothing appertaining to his duty and is morally diligent to attain the knowledge of all those Statutes which tend thereunto and resolveth faithfully and without scandal to be serviceable unto the estate honour and peace of his Community as far as humane frailty will permit performeth doubtlesse with a very good conscience his faith given for the observation of the Statutes and by the rule of just and honest dischargeth the duties whereunto he obligeth himself And the like is to be understood of the publique Laws of a Kingdome SECT XIX ANd this shall suffice to be spoken of the first Classis of Cases But left it be thought my intention to permit too great a licence of oaths because I have so often said that this or that kinde of oath is not unlawfull I thought fit maturely to advertise you that I have said nothing this day nor shall hereafter that may give any man reason to believe it lawfull for him to swear at his pleasure it being well known unto me that an oath is a sacred thing not without great necessity and then seldome and with much reverence to be used But my meaning throughout is that an oath upon this or that occasion is not simply and generally unlawfull For example when I said on oath impeditive of a greater good is not unlawfull or an oath of an indifferent thing is not unlawfull my sense was that an oath ought not therefore to be concluded simply and generally unlawfull so it have all the rest of the due conditions only because it is impeditive of a greater good or only because it is of an indifferent thing or which comes all to one that there is not in those considerations any such impediment but it may be lawfull if it be otherwise necessary and in all other respects duly qualified The fourth Lecture Containing seventeen Cases Summary 1. The efficient cause of an oath and the things to be handled proposed 2. Oaths of children 3. Oaths of mad men and fools 4. Oaths of men drunk and enraged 5 6. Oath of one being in the power of another 7. The authority of him who giveth an oath 8. Faith to be kept with enemies heretiques perjured persons 9. Whether an oath oblige the Heirs of the party swearing and how far 10. Oath to be performed by the Heir or Successâ—r 11. Voluntary oaths 12. Oath obtained by fraud 13. Oath taken through some light fear 14. Oath extorted by force or fear 15. Money promised unto a Theif ought to be paid 16. Solution of objections 17. Whether silence promised unto a Theif be to be kept SECT I. THe principall difficulties appertaining properly unto the matter of an oath being finished in the foregoing Lecture we proceed unto the solution of those doubts which may be reduced unto the Efficient cause The Efficient cause of an oath is as to our purpose twofold the Agent to which effect properly belongeth and the Impulsive cause Again the agent is either principall or more remote from the effect For as two persons at the least to wit the person swearing who engageth his faith and the deferent as they speak who follow Cicero or person to whom the engagement is made must as tearms of this relation concur in the obligation of an oath So each hath his part in the work The first and especiall belongeth to the person swearing the second to the Deferent or person to whom the oath is made In both agents the condition or aptitude of the person is first to be considered next the extension of the obligation Wherefore in this kinde of efficient cause such doubts are in the first place to be considered as arise from the defect of some condition requisite on the part of the principall agent to qualifie him for an oath And two things especially are requisite unto such a qualification rational judgement and lawfull power For an oath ought to be taken with a minde both deliberate and resolved to perform the promise But he who is not indued with rationall judgement can neither be
most justly condemn did not most wickedly imitate But though others de facto exercise this power of dispensing with oathes yet the Pope only challengeth it unto himself de jure Many even before Luther have grievously complained of this thing and sharpely inveighed against the abuse of Papall Dispensations unto whose writings I referre the studious and betake my self by some arguments to prove the bond of an oath simply indispensable so that no power at all of dispensing with it is either in Pope or any other First because the obligation of an oath is of Divine naturall Law But Naturall Law is not subject to Humane Power seeing God alone is the Author and Lord of Nature nor could it ever yet be shewn that God hath granted unto any kinde or order of men authority to dispense with the Law of Nature Secondly because this power of dispensation being granted the chief end of an oath which is security as I may call it for the thing promised would utterly be overthrown for he unto whom the oath is made can have no assurance if the promise of the party swearing may be dispensed with that it should ever be fulfilled Thirdly because an oath in that very act and instant whereby it imposeth the obligation of swearing and the promise of performance acquireth right of the thing promised unto the party to whom the oath is made which two effects of an oath are so combined that the one granted or denyed the other also at the same time must necessarily be granted or denyed Wherefore suppose the obligation of the party swearing taken away by dispensation and it followeth that the right of him to whom the oath was made is also taken away by the same and farther that such Dispensation must be either needlesse or unreasonable needlesse and superfluous if it be done with his consent to whom the oath was made if against it unreasonable and unjust For he being willing the obligation as I shall shew may be remitted even without dispensation but to take away his right against his will is injury Fourthly because in a promissory oath obligation is not only made unto our neighbour as it is promissory but to God also as it is an oath Wherefore granting which is not to be granted that Superiours have power to take away the obligation whereby in regard of promise man is obliged to man yet would it be unsupportable presumption that dust and ashes should arrogate unto it self authority to take away the obligation whereby man is obliged unto God as witnesse and revenger Fifthly because humane dispensation is a matter of externall Judicature But the obligation of an oath is in the conscience within which is subject unto no Judge but God and belongeth not unto the Empire of man Wherefore he who claimeth the right of dispensing with oathes be he what he will assumeth unto himself divine Power seateth himself upon the bench of internall Judicature and exerciseth Dominion over the Conscience And such dispensation is de jure null and invalid even as that sentence is invalid unto all intents and purposes of the Law which is given by a Judge in a Court where he hath nothing to doe because there he is no Judge SECT IV. HEre the Patrons of Dispensation are wonderfully perplexed how to ward the blow of the first argument which is all they use to object unto themselves It costs them much sweat to rowl this stone for they see it is the part of the Popes Authority which lest his Kitching languish must in any case be maintained and they may put the gain in their eye seeing they cannot finde wherewithall to make a solid defence nor could ever yet agree amongst themselves by what right the Pope arrogateth unto himselfe this power of dispensation Which one thing were enough to argue them conscious of their weak pretences For as in waging war so in exercising power the cause which is not stedily asserted may well be presumed unjust Some deduce this power of dispensing with vows and oathes from the absolute and Oecumenicall Authority whereby the Pope is Lord of the Earth and Emperour of the whole World For seeing every person vowing or swearing is the Popes subject this condition say they is understood in every vow or oath to wit If it please our Lord the Pope Whereupon it followeth that when the Pope signifieth which he doth by way of dispensation that he is not pleased the thing sworn should be ratified the obligation presently ceaseth Which opinion granted the Pope at his pleasure may rescinde any oath either with just cause or without it Wherefore this rejected as too grosse others and among them some modern Jesuites deny that the Pope can dispense with oathes or dissolve Royall Contracts or that he ever did it properly that is by taking away the obligation or the obligation remaining by exempting any private person from the same But they say that he dispenseth only improperly that is by declaring the oath in that case not obligatory by reason of the hinderance of some good or consequence of some ill if the oath should be kept But on the contrary besides the evidence of his practice which sheweth that the Pope exerciseth in this matter more then declaratory power or which cometh to as much under pretence of declaratory power can determine of Leagues Vows Oathes Contracts between Kings or any other at his discretion being in this case Supreme and sole Judge whose sentence must be obeyed without appeal It is worthy consideration First that either the Cause is manifestly just why a thing promised by oath ought not to be performed as if it be impossible dishonest or any way unlawfull and then the party swearing may of his own authority nay ought withoutwaiting for dispensation from the Pope or any other to retract the thing sworn for where there is no obligation the Conscience is free and needeth no dispensation Or secondly that no just cause appeareth why the oath should not be kept and then it must be kept and he who either asketh or granteth Dispensation sinneth Because the obligation which neither can nor may be removed by humane power remaineth Or lastly that the thing is doubtfull and appeareth not by reason of difficulties on both sides whether the party swearing be bound to the performance of his promise and then it will be profitable to consult with pious and prudent men skilfull in divine Law and to resolve with their advice what is most expedient In which matter seeing knowledge is more requisite then power I understand not why the Pope should be fitter then another man unlesse it were certain the Pope excelled other men in prudence and piety for that which is not credible certainly is not necessary Thirdly others not satisfied with this declaratory Dispensation as detracting too much from the Popes authority have beaten out an answer of wonderfull subtilty that the obligation of an oath which is of divine Naturall Law may
De Iuramento SEVEN LECTURES CONCERNING THE OBLIGATION Of Promissory OATHES Read publickly in the Divinity School at OXFORD By ROBERT SENDERSON D. D. His MAJESTIES Publick Professor there Translated into English by His late MAJESTIES speciall Command and afterwards Revised and approved under His MAJESTIES own hand London Printed by E. C. for Humphrey Moseley Octavian Pulleyn and Andrew Crook and are to be sold at their shops in St. Pauls-Châ—â—châ—yard 1655. TO THE READER SHould I tell thee no more but the Authors Name and by whose Command this Book was made English 't were sufficient Commendation But because I intend not to waste many words know that whether thou be a Ruler or a Subject Single or Marryed this Book will concern thee Since thou canst not make any Oath Promise or Stipulation and thou canst not quietly live without them but mayst here read how far thou stand'st obliged So that whether thou lovest thy own conscience or thy Neighbours the Author and perhaps the Translator have here done thee a courtesie Farewell OF THE OBLIGATION OF OATHES The first Lecture NUMB. 30. 2. If a man vow a vow unto the Lord or swear an oath to binde his soul with a Bond he shall not break his word he shall do according to all that proceedeth out of his mouth The Summary 1. The things to be handled proposed 2. The definition of an oath 3. An Oath is a Religious Act. 4. In an Oath God is called to witnesse 5. The matter of an Oath is something in doubt 6. The end of an Oath is credit 7. The definition given containeth all the four kindes of Causes 8. Oaths assertory and promissory 9. Oathes Comminatory 10. Oathes Execratory 11. The definition and distinction of Obligation 12. Obligation to guilt and to punishment 13. An Oath is in the nature of it Obligatory 14. The different obligation of the Assertory and Promissory SECT I. I Shall handle this matter with the more expedition and your better profit as I conceive if in the very entrance I lay before your eyes as it were a generall Map of my future discourse for so both you may better understand my design and I more certainly bound my speech that I may either contain it within the due compasse or if it chance to start out a little it do not so loosly wander but that it may be maturely brought in order and reduced unto the point I shall therefore deliver the whole matter under three heads First That it may be the better understood of what I speak I wil shew what an Oath is in generall what a Promissory Oath is in particular what Obligation Then because the determination of uncertain things is to be drawn from such as are certain I shall propose certain axioms or generall rules derived from the fountains of naturall Law and confirmed by generall consent as Hypotheses and Touch-stones of the future disquisition from whence the decisions of particular cases are to be deduced and to which they are to be brought as unto their rules Canons These two necessarily premised of which one will give light to that which is to be spoken the other strength and foundation I shall come in the third place to salve those doubts which may have any difficulty in them worthy of debate or may serve to cast any scruple into the mindes and consciences of pious men which as it is the principall part of the whole work and by far the largest I shall endevour to bring all the variety of Cases into certain Classes and that according to the four kindes of Causes so far as it concerns the bond of obligation reserving to the conclusion of the work both those things which appertain to the solution of that bond and any other which I shall either finde to have been omitted in their due place or judge fit for the better regulation of life and Conscience to be annexed SECT II. THE draught of the whole future treaty thus delineated as in a map now I betake my self to the matter Where first is to be explained what an Oath is I shall not need to insist upon the name and the defining thereof for the ill custome of swearing is grown to that passe and the familiar abuse of this so sacred a thing is such in these debauched times that it can be unknown to no man nay not unto children what an Oath is Authors as the manner is variously expresse the definition of the thing it self according to their particular fancies That of Cicero is the most concise An Oath saith he is a religious affirmation Where by the way I both admire and am angry at the forward youths of this age who I know not out of what erroneous prejudice but I am confident to their own great hurt avoid Cicero as a writer of too much prolixity But I return if any man desire a fuller definition of an oath let him take this An Oath is a religious act by which God is called to witnesse for the confirmation of some matter in doubt Every member of this definition I shal particularly explain SECT III. FIrst I say it is a religious act Act is put as the Genus for though an Oath be properly in the Predicament of Relation yet because the relative respect which is in an oath is founded upon the act of the party swearing it is not for that reason impertinently defined by such an act for as much as in the definition of Relatives the matter or ground of that relation is usually put in for the Genus Now that it is a religious Act is manifest first by the authority of Scripture Deut. 6. 13. Thou shalt fear the Lord thy God and serve him and swear by his name From which place the Schoolmen unanimously conclude that an Oath is to use their term Cultus latriae that is an act of such holy worship as is due unto God alone Socondly It is manisest by the consent of all Nations amongst whom as led by one light of nature the religion of an oath hath been ever held most sacred insomuch that the very words Sanctity Religion and others of like sense are scarse in any other so frequently used amongst Heathen writers as in this matter of Oathes and though they had many rites amongst them which they held sacred yet to an Oath only for no other cause then that it was in a manner the most holy of their holy things remained as peculiar right by the name of Sacrament From whence that name passed afterwards into the Church from some similitude with the military Sacrament of the Romans yet to signifie some other things The French also at this day framing the Latine word Sacramentum unto their pronuntiation call an oath Unserement Thirdly it is manifest from most evident Reason because an Oath tends to the honour of God as being an acknowledgement of his truth wisdome justice and divine power For although a falfe oath or an oath lightly rashly
or otherwise unduly taken discover a certain irreverence to or rather contempt of God in the party swearing and savour too much of Atheisme the act neverthelesse of swearing in its own nature implies a reverence of the divine Name For since every oath is made for confirmation of that which is avouched by the party swearing and all confirmation ought to be made by something that is most certain and of greater authority Heb. 6. Menverily swear by the greater He who swears ipso facto acknowledgeth God to be his superior a witnesse of the highest authority of infallible truth the searcher of hearts and the most just and powerfull punisher of all perjury and falshood An oath therefore is a religious act SECT IV. SEcondly I say In which God is called witnesse Wherein are these three things God called as a witnesse and by way of invocation In all oathes God is chiefly called for although there was a solemnity heretofore amongst Heathens Jewes and Christians of swearing either by Creatures or at least in swearing not to expresse the name of God but the names of creatures only as might if need were be proved by infinite testimonies drawn both from Scripture and other authors to dispute which two things whether they be o◠how far they may be lawfull is not to the present purpose yet in every oath which is truly and formally an oath the testimony of God is either explicitly or implicitly used for both he who sweareth by idols which indeed are nothing 1 Cor. 8. 4. Jer. 5. 6. are no Gods swears by those he thinks to be Gods and he who swears by any creature doth that in some sort in order and relation unto God because he calleth the creature to witnesse as it were something of God that is to say in which the truth goodnesse and power of God appeareth and which he both acknowledgeth that by the mercy of God he enjoyeth and would be loth by the justice of God to be deprived of For example if a man swear by his life by his soul by his head by his salvation c. it is as much as if he should say by that God to whom I owe my life my soul my head from whom I expect salvation c. And in this particular is the difference between an Oath and bare assertion or promise which two men make without any interposition of the divine Name either expresse or tacite Now in that God is called to witnesse therein an oath is distinguished from a Vow for in a Vow God himself is contracted withall as a party to whom vowes are immediately addressed But man is contracted withall in an oath and God brought in not as a party but witnesse Now in the definition I have said God to be witnesse simply and precisely not a judge and revenger which neverthelesse is added by some indeed truly but perhaps not necessarily and no superfluous thing should be brought into a definition I confesse he who swears doth both adduce God witnesse of truth and avenger of falshood but that primarily and perse this secondarily and by consequence For that God be witnesse unto truth appertaineth simply to the nature of testimony but that he punish falshood concerns not so much the nature of testimony as the effect But neither is it sufficient unto an oath that God be made the witnesse except he be also invocated for God may be brought a witnesse and that for the confirmation of a doubtfull thing too even without an oath As if for the confirmation of this Thesis Images are not to be adored I should alledge some places out of Scripture certainly this were to adduce the testimony of God for confirmation of a thing in doubt and yet as certainly this were no oath for it is quite another matter to cite God a witnesse in respect of a testimony already given which may be done without invocation and to invoke God a witnesse with respect unto a testimony now to be exhibited wherein the formality of an oath consisteth SECT V. THirdly I said and it is the last member of the definition that God is invoked a witnesse for the confirmation of some matter in doubt In which words is contained both the end and matter or object of the oath The materia circa quam or object of an oath is a Doubtful thing that is whose certitude so depends upon the credit of the speaker that it can be no other way conveniently found out Wherefore first the Scibilia of which kinde universall things be which are ever certain and like themselves nor can be otherwise Secondly particular things which rest upon the testimony of sense which are either so clear and certain in History universall tradition or other publick testimony free from all suspicion of falshood that they can leave no occasion of doubt with men of sound mindes are no fit matter for oathes For how ridiculous were it and unbeseeming a sober man to confirm by an oath that a triangle hath three Angles or that vertue is desirable for it self or that Aristotle was a Philosopher or that Cicero an Orator or that a youth disputing in the Schools and being to prove a proposition denied should lay arguments aside and swear it to be true Wherefore particular things such as are facts of peculiar persons with their circumstances which for the various chances and contingencies whereunto they are obnoxious are so mutable and doubtfull that no certainty thereof can be had by way of demonstration or other except that which depends upon the credit of men are those things unto the confirmation whereof oathes are properly of use which the Apostle intimates in that Heb. 6. An oath is the end of all contradiction As if he should say an oath is there to take place where there is no end of contradiction one imagine the Plaintiffe affirming the other imagine the Defendant denying except by the interposition of an oath one part of contradiction being confirmed the other part cease and the whole strife be determined SECT VI. ANd this Confirmation the Apostle in the place mentioned cals it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is the true end of an oath For since particular things would be uncertain and through their contingency doubtfull nor could be proved but by witnesses and all humane testimony would be infirm and fallible especially through two defects one of knowledge for we are ignorant of very much the other of conscience every man being a lyer and yet it would make for mens convenience that the things in controversie amongst them and mutually debated should be reduced to some certainty without which there would be amongst men no faith nor justice which are the most firm bonds of humane society there lyeth a necessity of flying to the testimony of God who can neither deceive nor be deceived And thus oathes are received by all nations from divine institution or the law of nature as a fit remedy for this disease In the judgement of
who confound me if I do it not that I will do this or that But ordinarily either this or that part is omitted and oathes are more succinctly given as by those examples in holy Scripture where God is introduced swearing after the manner of men is sufficiently manifest There you may finde God swearing sometime by a simple attestation without any execration as in these As I live saith the Lord I have worn by my self by my holinesse c. sometimes without any attestation by an execration only but that too for the honour and reverence of so great a Majesty and after the manner of men almost suppressing by an Aposiopesis words of ill omen elliptically and diminutely uttered as in that of the Psalme I sware in my wrath if they enter into my rest This in the mean time seemeth certain that every promissory oath under what forme soever conceived brief or large so it be an oath and no mere Asseveration or Obtestation virtually containeth both that is to say Attestation and Execration For in an oath both Execration supposeth Attestation as athing before it in nature and Attestation interreth Execration as its necessary consequent That of Plutarch is â—â—thy 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Every Oath concudeth with a curse of perjurie And thus much for the nature of a Promissory Oath SECT XI IT remains that in the last place I adde something of the nature and force of Obligation Of obligation Lawyers say much and with prolixity enough they define it to be a Bond of Law whereby a man is bound to pay that which he oweth Which definition will be no leste fit to explain those things which are internall and appertain unto the Court of Conscience then those which are externall and appertain to the Court of Judicature whether in Church or in Common-wealth if the terme of Law be not restrained to that which is humane and positive only but so extended as it take in also universal Law divine and naturall Now since every obligatory Bond as may be gathered from the definition derives it self from some Law as the Law is twofold the one part divine and naturall the other civill and humane so the bond or obligation arising from thence is also twofold to wit the naturall Bond which obligeth naturally and in foro externo by the vertue of divine Law and the civill Bond which obligeth civilly and in foro externo by vertue of humane Law Some call that the obligation of equity this the obligation of justice whether properly or improperly I dispute not for where we agree in the thing to what purpose were it to contend about the terms But whereas they adde a third kind of Obligation compounded of the former two that certainly is not very convenient or at the least not necessary For if a man be bound to the performance of the same duty as for example to feed his aged parents both by naturall Law and Civill this would be no new species of obligation mixed of the other two but rather two obligations conjoyned both in the subject and object in the subject for as much as they binde the same person and in the object forasmuch as they binde unto the same duty and yet naturally and originally distinct The reason is manifest for thiâ—gs cannot by their mixture produce a new species without some reall immutation of themselves Whence Aristotle defines Mistion Misoibilium alteratorum unionem For in all mistion there must be alteration and every alteration is a reall mutation as appears in the generation of mixed bodies out of the four elements not entire but broken and altered But where a new obligation is added unto a former one as in this case the civill to the naturall no reall mutation is made of either But the former obligation remains in the same state it was in before the accession of the new and latter But I will not stay upon these subtleties In the matter of oathes we consider the Morâ—ll or Naturall obligation only or at the least especially the other the Civiâ—l we leave to Lawyers SECT XII BEsides that distinction of obligation which ariseth from its Originall in relation unto the Law whence it deriveth there is yet another taken from the Object in relation unto the Debt to be paid at which obligation aimeth and whereunto it is carryed Now debts are twofold Debitum officii according unto which every man is bound by the precept of the Law to act and Debitum supplicii according to which every man is bound by the decree of the Law to suffer if he neglect his duty In the former sense we say that the mutuall exercise of Charity is a debt because the Law of God enjoynes it according to that Rom. 13. 8. Owe no man any thing but to lov one another In the latter sense we say that sins are debts as in the Lords Prayer Forgive us our debts and that externall death is a debt according to that Rom. 6. 23. The wages of sin is death Neverthelesse it 's to be observed that the latter debt is contracted by non-payment of the former So that if a man fully disingage his debitum officiâ—â— by obeying what the Law commandeth he remaineth not bound debito supplicâ—i to suffer that which the Law denounceth To this twofold debt anâ—wereth a twofold obligation of the very same denomination to wit obligation ad officium to the performance of duty and obligation ad supplicium to the sufferance of punishment or according to the usuall terms which comes all to one obligation to guilt and obligation to punishment But so as the former be in the intention of the Law as it is in its own nature chief and preferred before the latter for it is the part of a Tyrant not of the Law otherwise to inflict punishment then in relation to guilâ— and that speech of the Apostle is true even in this sense though perhaps more rightly to be understood in another The Law is not made for a righteous man The Law therefore intendeth primarily directly perse and simply to oblige unto duty and obedience But unto chastisement and punishment it obligeth only secondarily indirectly consequently and ex hypothesi that is to say supposing the neglect or contempt of duâ—y The Apoâ—tle seemeth to have joyned both these obligations together in Rom. 13. where he spâ—aks of the subjection due unto the Soveraign power Yâ—â— must needs saith he be subject not only for wrath but also for conscrence sake from which words I gather three things of concernment to my present intention The first is that we may be bound by a double bond to the performance of one and the same thing by the bond of duty and the bond of punishment for this is implyed in the words of conscience and wrath The second that the conscience of duty ought with all good men to be valued and preferred before the fear of punishment The third that the obligation of conscience ariseth
preciselv out of the debt of duty Whence also it is manifest that we when we speak of the obligation of oathes as it concerneth conscience are primarily and especially to be understood of the obligation which bindes us to the performance of Duty not of that whereby we are bound to suffer the punishment due unto perjury SECT XIII THese two distinctions of Obligations laid it is furth rmore to be understood that every oath is in its own nature binding inâ—omuch as if a man should swear without any intention to oblige himself nay although he should swear with an intention not to oblige himself neverthelesse the oath taken he becomes ipso facto obliged as in its place if it please God that I go so far I shall more fully shew Cicerâ— saith right Our Ancestors would have no bond for the obligation of faith stricter then that of an oath But what could be more clearly said in this matter then that which Moses saies in the text If a man vow a vow unto the Lord or swear an oath to linde his soul with a bâ—nd where that gemination after the manner of the Hebrewes hath much emphasis and fortifies the signification of the words As in multiplying I will multiply in blessing I will blesse that is I will exceedingly multiply I will greatly bless so ligando ligamen binding with a Bond that is strongly binding as if he should have said although even a bare promise oblige the conscience and that with the addition of an asseveration or obtestation it oblige more strictly yet a vow which is made to God and an oath which is made to men but with the witnesse of God are the strongest of all obligations Wherefore every oath obligeth the conâ—cience as well the Assertory as the Promissory Of the Promissory seeing it respecteth the time to come no man can doubt But of the Assertory perhaps not without reason there may be some question made because all obligation bindeth unto some thing that is future but it hath been said before that the difference of the Assertory Oath from the Promissory consisteth in this that that respecteth a thing present or past this a future But the solution is easie to wit that the obligation of an oath qua tale falleth not primarily upon the object or matter of Oath for so an Assertory Oath whose object is something past or present could not lay any obligation for the future But obligation falleth immediately and directly upon the subject that is the conscience of the swearer who in both kindes of oath is bound to the performance of some duty for the future SECT XIV WHich that it may be made more manifest and that withall it may moâ—â— clearly appear what the obligation of a Promissory Oath which I have undertaken to explain is I will do my best to shew what is common to both kindes of Oath so far as it concerneth the effect of obligation and what is peculiar unto a Promissory Oath And first it must be granted which is in it self so evident as its contradictory implyeth a manifest contradiction That all obligation to duty respecteth the duty to be performed de futuro that is at the least some time though perhaps a very small one after the obligation contracted Nor is it hard to be observed if diligently considered that this happeneth unto every Oath as well Assertory as Promissory for whosoever sweareth obligeth himself ipso facto to manifest the truth in that which he is about to say whether it be in a matter past or present by an Assertory or in a future matter by a Promissory Oath And hitherto this obligation is alike common to both kindes so that if in either of them the words of the party swearing do not agree with his minde he becometh guilty of the breach of his duty and thence also 〈◊〉 necessary consequence obnoxious unto punishment But in the Promissory Oath besides this obligation which fals upon the conscience of the party swearing and is common to it and the Assertory quatenus juramentum there is another further obligation proper and peculiar unto it quatenus Promissorium which fals upon the matter of the Oath by vertue whereof the Promissory party swearing is bound not only in present to intend to do that which he sweareth that his words may agree with his minde but also to indevour for the future as much as in him lyeth to fulfill that which he hath sworn that his deeds may agree with his words that is he obligeth himself not only barely to promise that which he really intendeth but also farther obligeth himself to performe all that which he hath promised by Oath which the words of Moses in this verse clearly expresse If a man saith he vow a vow unto the Lord or swear an oath to binde his soule with a Bond he shall not break his word he shall do according to all that proceedeth out of his mouth And thus as fully as I oâ—ght asclearly as I could I have unfolded unto you my sense upon the first head of this discourse what an Oath is what a Promissory Oath what Obligation In my next Lecture with the help of God I shall proceed unto the rest in the order which I have proposed The second Lecture Summary 1. A Premonition concerning style 2. Hypothesis 1. Above all things simplicity becometh an oath 3. Simulation and deceipt are repugnant unto simplicity 4 5 6 7. Simulation doth not evade perjury 8. Hypothesis 2. An oath is stricti Juris 9. The interpretation of an Oath ought not to be too loose 10. All conditions are not to be expressed in an oath 11. Hypoth 3. An oath maketh not a former obligation void 12. An impossible thing obligeth not 13. An unlawfull thing obligeth not 14. The difference between an unlawfull oath and an oath of an unlawful thing SECT I. HAving explained in the former Lecture what an Oath is in generall what a Promissory Oath in particular and what Obligation I proceed as I promised to propose some Preoccupations or Hypotheses fitted for our purpose as foundations or if you please Canons or rules of the whole future discourse from whence are to be derived and to which are to be reduced the determinations of most doubts But before I do this of one thing by the way which I go not about to entreat of you as I should do if I could suspect your savour or beleeve the thing in it selfe unjust I desire only to premonish you that it 's my resolution so long as I can finde wherewithall to be any way significant in my expression of the matter to be handled not to labour farther for words muchlesse purity of language and least of all to trouble my selfe for elegance I leave that to such as have leisure and are delighted to take pains for that which is unnecessary I use to relate amongst my friends not without some sport and laughter what sweat it cost Paulus Cortesius a man
whether it be considered as to be sworn or as sworn Of a thing to be sworn the question is whether it be lawfull to swear after this or that manner Of a thing sworn the matter being stated whether the conscience be and how far it is obliged by the oath be it lawfull or unlawfull for obligation may arise from an unlawfull Act And this question only is proper to our purpose Neverthelesse I shall often cursorily expresse at the least where I finde that the same pot may whiten either wall what I think of the other question also especially since by intimation of my friends I understand it is expected by some and will be acceptable unto the most of you The matter therefore of an oath that I may return to the businesse is either definite or indefinite That which is certain and definite may be considered according unto its esse naturale or existence to wit whether it be a thing possible to be performed or impossible or according to its esse morale or quality to wit whether it be a thing necessary unlawfull or indifferent SECT III. THe first doubt is what obligation there is in an oath containing an impossible thing that is if a man should swear to do a thing which he is not able to do whether he be and how far he is obliged thereunto The Cases which occur in this doubt are especially three First where the thing to be sworn was from the beginning and during the act of swearing evidently and simply impossible either by impossibility of nature when the thing in it self and barely considered without respect unto circumstance implyeth a manifest contradiction or is repugnant unto the nature of any species of ens as if a man should promise to teach an Asse to speak Or impossibility of fact Cum res est in potentia as they speak remota ad fieri that is when there is no such repugnance in the nature oâ— the thing it self but it might be done yet through defect in some circumstance for example too great distance of place straightnesse of time or any other cause that potentia is so hindred that it cannot proceed unto act as if Caius being this day present at Oxford should promise to sup with Titius to morrow at Paris Or lastly impossibility of Law when a man undertaketh to do any thing which is forbidden him by the Law and whereunto he hath no legitimate power as if Caius not being heir should promise to give unto Julius some proportion of the goods of Titius deceased In answer to the doubt in this first case I say briefly An oath of a thing simply impossible is neither lawfull nor obligatory It is not lawfull because it is void both of judgement and truth for what man of sound judgement or of good credit can intend to do that which he knoweth impossible to be done Neither doth it oblige no not so far as to endevour much lesse to perform For it hath been already said that an impossible thing quatenus impossibilis obligeth not and it is foolish to endevour that which thou canst not effect SECT IV. THe second Case is when a thing in it self not impossible yet during the time of the oath given seeming so impossible that it is much more likely not to be then to be possible afterwards to be performed becometh at length by some interposed obstacle impossible for where the concourse of many things is so necessarily required to the perfecting of any design that one of many being wanting the rest must necessarily be frustrated as if a wheele or pin though a small one should be taken out of a watch the rest of the fabrick would be uselesse it can hardly happen but the pains taken in such a businesse must needs be fruitlesse For example if Caius should undertake by his industry to procure unto Titius a new and obscure man the Consulship at the next Commitia and to carry it against Competitors for birth glory vertue authority the most renowned of all the City I answer that such an oath is not lawfull without the expresse addition of some clause as If I can As far as lyeth in my power c. If you shall say it were needlesse to adde a clause which de lege communi ought to be presupposed I answer by the interpretation of the Law such clauses are presupposed where it may be presumed the party swearing could not foresee any thing which might be an impediment unto the performance of his promise but where that cannot but rather the contrary may be presumed to wit that he could not but foresee many impediments there so milde an interpretation is not granted de jure communi Neverthelesse this kinde of oath oblâ—gâ—th not to performance which we suppose to be impossible but to endevour so long as there is hope though small that it may be possible yea and the more the difficulties be and the greater their resistance the more industriously to persist and persevere with the more undaunted courage But if the thing be over apparently desperate and manifestly impossible the obligation ceaseth from the ground expressed that no man is obliged unto an impâ—ssibility SECT V. THe third case is when the party swearing verily beleeving the thing probable and faithfully intending to do it doubteth not by Gods help but he shall be able to make good his words neverthelesse afterwards by some emergent and unexpected accident which could not by any humane reason be foreseen or prevented findes the matter at the length become impossible As if Callias dwelling at Thebes having sworn to pay unto Socrates at Athens five talents at a day appointed should lose the money which he had carefully provided by theft rapine or cousenage or should be taken prisoner upon the way so that he were not able to make payment of the debt in due time Such an oath is lawfull though the clause If I can be not added the same being to be understood of course and by the common interpretation of the Law In which regard this seemeth unto me good reason of difference between this Case and that which preceded Seeing that the faith of promise be given unto the party unto whom we swear is the end of an oath it is expedient that so much as seemeth sufficiently conducing thereunto be fully expressed during the act of swearing that so our credit may be the more ratified unto the party but that so much on the other side be concealed as might render our credit the more suspected For as in an improbable matter the party swearing would not easily be credited but thought a forward rash and too confident man if without exception or expression of difficulty he should barely promise performance of a thing full of uncertainty so on the other side an exception added where there is no appearance of dangerâ— might render the party swearing suspected and shew as if he sought nothing else by so impertinent diligence but a shift or subâ—erfuge
for the violation of his faith Now this kinde of oath obligeth the party swearing if he cannot make all good to make good all he can and if great damage happen unto the other through non-performance of his oath to apply a remâ—dy to it at the least in part by some other benefit as opportunity may enable him especially if the obstacle hapned by his negligence want of prudence or other fault committed And so much for the first doubt SECT VI. THe second about an oath of a necessary thing followes By a necessary thing I understand that which lyeth upon us in respect of our duty by vertue of divine precept and even without an oath in such manner as if we do not though without an oath perform the same in due time and place we become guilty of sin such are to feed our needy parents to pay our debts and the like Whereunto belong those oathes required from the subject of allegiance to the King and of acknowledgement and defence of his royall supremacy which are taken in conceived words by such as are admitted unto the Magistracy or any publick office to the end they may faithfully performe the duty of the same Of the obligation of this kinde of oath there can be no controverâ—ie for unto those things whereunto we are bound even without an oath certainly we are much more obliged by an oath to wit the new obligation of an oath being added unto that before by a precept Wherefore we will stay no longer upon this doubt SECT VII THe third doubt is concerning an oath of an unlawfull thing I call that an unlawfull thing which cannot be done without sin forasmuch as it is contrary unto some divine precept all sin being averse unto the Law of God Now this kinde of oath is so unlawfull that not only the party swearing but he also by whose authority counsell or other means a man is compelled or inveigled so to swear committeth sin But of the party compelling I shall perhaps speak hereafter in the mean time the party so swearing committeth sin whether he intend to do as he sweareth or intend it not If he intend to do it he sinneth in willing an unlawfull thing and so sweareth not in justice if he intend it not he sinneth in lying and so sweareth not in truth But whether he intend it or not it is certain that he is in no wise obliged It cometh indeed very often to passe so contemptuous are men of the Majesty of God that through â—impatience of revenge fear of danger hope of profit importunity of friends a kinde of awe or complacence or some other occasion many are induced whilest they indulge too much unto their own affections to promise in the presence of God the performance of such things as they either at the present know certainly to be unlawfull or at least afterwards when they are free from their depraved affections easily perceive impossible without sin to be accomplished and yet such is the perversenesse of humane judgement bewitched with the tricks and delusions of that skilfull artificer in this art the Devill that you shall see many whom you cannot by any duty of conscience compell unto a good action neverthelesse so violently carryed by the religion of an oath unto wicked actions that what they have unlawfully sworn they think themselves through a most pernicious errour obliged by the bond of their oath irresistibly to accomplish But it hath been shewn before in our fifth Hypothesis and confirmed by manifest reasons that of an unlawfull thing as unlawfull there can be no obligation and that evill can receive no validity from an oath SECT VIII WHich that it may be the better understood and applyed unto the particular cases seeing that all unlawfull things are not of the same kinde and degree I think that it will be fit that I speak somewhat more distinctly of this matter Whatsoever therefore is unlawfull is unlawfull either ex se or ex accidente again that which is unlawfull ex se is so either primarily or secondarily things unlawfull ex se primarid and in the highest degree are such as are forbidden by God unto all mankinde whatsoever is against the sacred Law of God comprehended in the two Tables of the Decalogue whatsoever is repugnant either to our piety in the worship of God or brotherly charity in the works of justice and mercy is after this manner unlawfull And concerning a thing in this first manner unlawfull is the first Case As if a man should swear that he would sacrifice unto I dols or adore the image of the blessed Virgin which are sins of Commission or if he should swear never to be present at divine ordinances or hear holy Sermons or participate of the Lords Supper or sanctifie the Lords Day which are sins of omission against the precepts of the first Table Or if a man should swear to kill his father or cast his new born child out of doors or meet an adulteresse at an appointed place and hour to accompany others in theft robbery fraud or any the like crimes which are sins of commission Or if he should swear not to relieve his aged and needy father to give almes unto the poor not to pay his debts c. which are sins of omission against the precepts of the second Table In these and such like things simply and universally unlawfull the forementioned Hypothesis by the consent of all is likewise simply and universally of force and vigour to wit that there can be no obligation in such a vow promise oath either in its self or otherwise acquired Pacta quae turpem causam continent non sunt observanda say the Lawyers Nay though it were a grievous sin to vow swear bargain or otherwise to promise a thing generally unlawfull yet is the sin in performing the promise much greater which whosoever doth maketh himself guilty of a double crime one of the same kinde with the fact considered in its self put the case it be theft or murder another of violated religion through irreverence and abuse of the divine Name forasmuch as an evill thing is established as far as lyeth in his power by his authority SECT IX THe second Case is of a thing unlawfull ex se secundarid that is not in its own nature unlawfull to all but to some only according to the condition of their persons as they are members of some community or according to their particular vocation For it is unlawful and that ex se not ex accidente only for such as are members of any Politique body to doe any thing repugnant to the Laws of their Community which nevertheless as forbidden by God is not primarily immediately and in specie unlawfull but secondarily mediately and in genere by vertue of the general Divine Mandate which enjoyneâ—h obedience unto rules in all lawfull and honest things It is also in the same degree very near and upon the same gâ—ound unlawfull for such
as execute any Office Function or particular Calling as we usually tearm it though perhaps improperly that state or condition of life wherein a man is placed to do any thing incongruous with the nature or rule of that function or calling For a thing may be lawful to a Civill Magistrate which is not to a Minister of the Gospel and so on the contrary that may be lawfull to the Merchant which is not to the Husbandman that to the Master which is not to the servant that to the married man which is not to the batchelour and the like God having generally given them this Law that every of them faithfully perform the duties of his calling and modestly contain himselfe within the bounds thereof If therefore an English Merchant should swear to send Wooll to Hamburgh or any other merchandise prohibited by law to be transported out of this Realm or if any Magistâ—ate should swear that he would not punish theft or adultery or a Bishop or Presbytâ—r nâ—ver to preach nor administer the Sacraments or an Hiâ—de not to obey his Master commanding him to yoak his Oxen or reap his Corn whereof the first is repugnant unto the Laws of the Kingdom the râ—st unto the conditions of prâ—per vocations All these oaths would be of a thing in that degree whereof I have spoken unlawfull and the oaths themselves for that reason unlawfull and would not ordinarily oblige I say not ordinarily because there may perhaps be cases in which an oath that seemeth repugnant unto some Law of Community or Vocation though it ought not to be taken may nevertheless being once taken become obligatory For example in the penall Law disjunctive suppose this to be the Law of the City No Citizen thereunto elected shall refuse the office of Pretor if he do he shall be fined an huâ—dred Crowns Caius a Citizen thinking himself unfit to bear office or to avoid some inconvenience that might happen unto him from thence sweareth that he will never be Pretor of the City he is chosen by the Citizens he excuseth himself by his oath they regard not his oath but urge him to accept of the Magistracy What is the Law in this case at the bar of Conscience I answer he ought not to have sworn especially not compelled thereunto by any necessity for he might have refused though he had not sworn Nevertheless having sworn he seemeth to be obliged and not be in a condition without perjury to comply with the desire of the Citizens he is bound therefore to pay the fine and to refuse the Pâ—etorship I would be understood precisely in respect unto the point to which I now speak viz. the matter of the oath and also precisely in respect to the repugnants thereof unto the law of the City For in respect of the ends or cause nay even in respect of the matter it self as it is an hinderance of a greater publique good or for some other consideration there may be just reason in it to make the obligation void Nevertheless ordinarily as I have said an oath made against the Law of an whole Community or of a particular Vocation obligeth not And thus much be said of the things in themselves unlawfull SECT X. THe things which are not unlawfull ex se yet are unlawfull ex accidente follow Now a lawfull thing happeneth to become unlawful either by the error of the party swearing or by some ill effect of the thing sworn Wherefore the third case is where a man promiseth by oath performance of a thing perhaps lawfull in it self which nevertheless he believeth to be unlawfull or feareth not to be lawfull as if a man before these times upon his admission to a Benefice as they call it Ecclesiasticall should have promised to observe all the rites commanded by Ecclesiasticall Law in publique Service as the Surplice sign of the Cross at the Font kneeling at the Sacrament of the Lords Supper and the like which he nevertheless through some light prejudice thought to be superstitious and papisticall What is the obligation in this case I give you three things by way of answer First I say that such an oath during such an error cannot be taken without great sin for he sinneth grievously who sinneth against his Conscience though erroneous the judgement of the understanding being unto every man the first rule of working if the will follow not that judgement swerving from the rule it must necessarily be carried into obliquity It is an old saying He who goeth against his own conscience is on his way to Hell Certainly he who sweareth unto that which he thinketh to be unlawfull had sworn unto it though it had been really unlawfull and so the thing though lawfull to another is as to him unlawfull It is the Apostles sentence Rom. 14. 14. where he distinguisheth between that which is unclean of it self and that which is unclean to another plainly teaching that that thing which is not unclean nor unlawfull of it self may nevertheless be unclean and unlawfull unto him who esteemeth it to be unclean or unlawfull Secondly I say that such an oath obligeth not the reason is manifest by the third hypothesis for an oath cannot take away a former obligation nor introduce an obligation contrary unto it But the oath which is taken against the dictate of Conscience was preceded by another former obligation arising from that dictate For the dictate of Conscience whether right or erroneous ever bindeth at the least not to act against it Now a subsequent oath cannot remove this obligation but becometh rather invalid it selfe and loseth all strength and vigour Thirdly I say if the party swearing being afterwards better informed acknowledge and correct his error the oath which at first obliged not beginneth from thence forth to oblige for the power of obligation is as it were naturally and inseparably in an oath as the power of moving downwards is naturally and inseparably in a stone which power is always ready to put forth it self and to proceed unto act except it be hindered by some impediment Wherefore as a stone that it may move again after it hath rested a while needeth not any other new power to be derived unto it from without but of its own nature the obstacle being removed presently descends so an oath that obligation of erroneous Conscience which at first withstood its operation being removed without any delay or need of other help is of its own force obligatory SECT XI THere are other cases concerning things unlawfull by accident in respect of the evill effect of the same to wit as they may be impeditive of good or causative or at the least for we mast use such words occasionative of evill A good thing impeded may be antecedent or future The fourth case therefore is where the thing sworn seemeth to be unlawful in that it hindereth the performance of some antecedent good of a vow imagine or of a promise first made as iâ— he who had first
Successors For example Caius having bought a field of Titius sweareth simply to pay him an hundred pounds within six months within the time Caius dyeth the question is whether by vertue of the oath made the Heire of Caius be bound to pay the money promised I answer the Heire of Caius in respect of the thing which gave occasion unto the oath is bound to pay forasmuch as he enjoyeth the field for which the money was promised for the heire who inheriteth the estate of the person deceased is bound de jure to pay his just debts it being most equall that an estate should passe with the engagements that are upon it Nethelesse the heiâ— is not bound by vertue of the oath made by the person deceased by which means if he pay not he is unjust onely not perjured The reason is because an oath is a personall bond and contracteth a spirituall obligation only at the internall Bar of Conscience not a civill and temporall one at the externall Bar of Justice But in personal things no man is bound without his own consent If it be said that Caius by his personall act may well oblige himself and his heirs unto some performance as we see it daily done by instruments of Law and therefore from the like that he may also binde his heirs by an oath especially if he say in expresse words that he sweareth for himself and his heirs I answer that there is not in either like reason Because the personal obligation which is in the Conscience must necessarily be personall as a mans conscience is proper unto himself and cannot passe into another but temporal obligation followeth a temporall thing which seeing it may passe unto another person may also lay an obligation upon another person wherefore the heir is bound by the equity of the thing not the vertue of the oath SECT X. THe second case concerneth the person to whom the oath is made whether he who hath sworn the performance of a thing unto another the party unto whom he sware being deceased be bound to make it good unto the Heirs or Successors of the said party I answer ordinarily he is It is certain the party swearing is obliged if he expressed that he would perform the oath unto the heirs of the other It may also be taken for granted that he is bound though he expressed it not if the oath taken relateth to dignity because dignity varies not with the change of persons Whence if any subject or souldier swear fidelity unto his King or Generall the oath is to be taken as made unto them also who succeed unto that dignity The same may be said in matter of debt and sundry other things wherein consideration of duty or contract gave occasion of the oath If you shall enquire how it cometh to pass that the bond of an oath being personall as to the party swearing is not also personal as to the party unto whom the oath is made but passeth unto his heirs or successors or which comes to the same matter how it cometh to passe that a man may engage himself unto another and his successors though successors be not expressed in the oath but cannot oblige himself and his successors though they be expressed in the oath I answer the reason of the difference lies in this that in the one case obligation of a mans self is meant in the other obligation of others Any man may oblige himself spiritually as he will or pleaseth and therefore may by his proper act oblige himself as well to the successors of another as to the person himself but a man cannot lay an obligation upon another unlesse he also consent and therefore he can by his act spiritually oblige himself only Now whereas I said in answer unto the doubt in this case that the party swearing is ordinarily obliged the reason why I said so is because it may be that sometimes he is not obliged for seeing that the intention of the party swearing ought to be judged of according to the nature of the thing and subject matter where from the nature of the thing promised and other circumstances it may probably be conjectured that the party swearing intended only a personal promise unto the person unto whom he sware and not unto his successors the obligation of the oath divolveth not unto those successors SECT XI BUt of active causes this may suffice I passe to the impulsive which are partly externall and partly internall Internall when a man through the meere motion of his own will not compelled by any other freely offereth himself to take an oath or through some transportation of anger love or other passion of a perturbed minde or through delight in sin and impious custome of swearing rashly and without judgement besprinkleth his discourse with oathes Which vice both in respect of the heavinesse and frequency of the sin I could wish were more often and vehemâ—ntly reprehended in Sermons as I see it was diligently and sharply done in his time by the most devout man John Chrysostome left by the just judgement of God through oathes the earth mourn and the Lord swear in his wrath that he will not hold them guiltlesse who so contemn his dreadfull Name that they fear not to invoke his most sacred Majesty as witnesseâ— and arbiter without any necessity But I shall not say much concerning oathes of this kinde All spontaneous oathes are absolutely forbidden except upon weighty and necessary occasions It will be worth our while to hear Augustine of himself I swear saith he but as I conceive compelled thereto by great necessity whilest I see that I am not beleeved without it and that it is not expedient for him who believeth me not not to believe me As if he should have said we may only then swear when it is expedient that we be believed and cannot be believed without we swear And in this case in which only it is lawful a voluntary oath is the more binding for being voluntary because there is no straighter obligation then that which we take willingly upon our selves SECT XII WHerefore letting these passe I proceed to externall impulsive causes which are especially two Deceipt and Force The fifth doubt therefore is of an oath into which we are inveigled by craft and deceit that is when one man led into errour by another mans word or fact sweareth to performe something which if he had not been deceived by another he would not have sworn Of which we have an illustrious example in Joshua and the Princes of the people of Israel who deceived by the Gibeonites faigning themselves to be strangers come from a far countrey to desire a league with the people of God admitted them unto the league and sware a peace with them Nor did the Israelites when they found themselves deceived presume to retract the oath knowing themselves bound by the Religion thereof but granted life and peace unto the Gibeonites aâ— they had contracted Neverthelesse
supported But he who contracted for his ransome with a Theef did it to the end that he might redeem his life therefore having redeemed his life and enjoyed the end at which he aimed he ought to perform that which he promised Fourthly the wisdome of the flesh ought ever to be suspected as an enemy unto the purity of the heart and a trap unto the peace of the Conscience and what is the wisdome of the flesh if this be not where profit seemeth to strive with honesty nay honesty being rejected profit to be imbraced That man will not much trouble his minde whether money promised be to be paid who esteemeth Faith and Religion beyond riches and quietnesse of minde beyond all worldly gain Fifthly Regulus and others as hath been said who kept their faith with enemies though upon the hardest conditions are celebrated by Heathen Writers And Cicero himself commendeth Pomponius the Tribune who performed that whereunto he sware compelled through fear adding this applause So much in those times was an oath esteemed SECT XVI BUt they who are of another opinion object First that enemies are of a different nature from theeves and pirats For say they we may deale with enemies as we doe with adversaries with these by the Civill Law with those by the Law of Nations and therefore faith ought to be kept with them but with theeves enemies of mankinde there is no society of law and therefore none of faith I answer first skilfull Lawyers affirm some legall rites of society to appertain even unto theeves of whom if we should borrow money it ought by the Law of Nations to be restored wherefore â— pari promises made unto thâ—m ought to be performed Secondly though no performance were due unto the theeâ— as a person unworthy thereof for which reason breach of bare promise might perhaps be more excusable yet ought we at least to perform our faith unto God Secondly they object that through such contracts honest men may be undone by rogues which would be a publick mischief I answer nay rather the lives of honest men saved from rogues which will be a publick good But Thirdly say they by this means robbery and rapine would be established whilest theeves passe not only unpunished but rewarded I answer if it be so it 's so only by accident through their vice not his who doth not any way help the theeves nor approve of their fact by promising nor approveth of it by performing his promise but rather in providing for his own safety prevented so much of their wickednesse that they remained theeves only and not murderers Fourthly they object that the obligation of an oath ariseth from a deliberate act of the judgement and will where the will therâ—fore is so far from freedome that its action may rather be called coaction there followeth no obligation I answer and it is confessed by all that the wil cannot be forced There may indeed be coaction in respect of an externall and remote principle of action but in respect of the nearest principle which in all humane action is the will there can be coaction He therefore who maketh an oath unto a theef that he may save his life doth it willingly with an unwilling minde wherefore this kind of oath is not simply but mixedly involuntary that is to say an action partly unwilling because it is not done willingly partly voluntary because it is done with election though not the freest yet free enough to deserve the name rather of voluntary then involuntary because choyce of two things being granted unto the agent it is in his power to take which he had rather And he willeth who had rather He therefore is not truly said to have sworn unwillingly who when he might have let it alone chose rather to swear For death being threatned except he would swear it was left to his choyce whether he would rather suffer the mischief threatned or be redeemed from that mischief by the obligation of an oath He considered he chose to be obliged therefore he would be obliged and he who confesseth that he would be obliged argueth absurdly that he was constrained and therefore is not obliged Fifthly they object that the Traveller oweth the theef nothing and therefore is not bound to pay him any thing seeing as hath been said all obligation relateth unto some debt now that nothing is owing unto the theef is proved because no right can be founded upon injury and it seemeth to be most unjust that a man should by his injurious fact acquire any right unto himself therefore unto the theef who terrified the traveller and contrary to the duty of an honest man extorted from him an unjust oath no right accreweth and so neither is the party sworn obliged I answer a twofold obligation may arise from an oath one unto the person to whom the oath was made as a party the other to God by whom the oath was made as witnesse and revenger Many things may hinder the former obligation so that he to whom the oath was made may acquire no right nor any thing in conscience be due unto him from the party sworn and from this kinde of obligation and debt proceedeth the objection But the obligation ceasing in respect of the man who offered injury and violence yet the obligation made unto God remaineth to whom irreverence is offered when a man admitteth of an oath which he intendeth not to fulfill and injury when having admitted of it he regardeth it not SECT XVII ONe case yet remaineth peculiar unto this place and that is where a man falling amongst theeves to save his life is constrained to promise them silence by an oath that is never to reveal their theft unto any man or to discover their names unto the Magistrate It is very hard to determine any thing in this kinde saith Frederick Baldwine late Professor at Wittenberg yet addeth that he thinks it safer that the person keep not the silence promised but discover the matter unto the Magistrate albeit he have sworn to the contrary It seemeth he is of opinion that the oath is not obligatory but the three reasons he giveth as he proposeth them barely and briefly without further confirmation give me no satisfaction First he saith that this oath is of an unlawfull thing If so there is an end other arguments are needlesse But this he taketh without proof for granted If it be thought unlawfull because it 's the duty of a good Commonwealths man to give notice of lewd persons unto the Magistrate that so they may receive condign punishment it is granted but it doth not therefore follow that it is alwayes sin not to give notice seeing the affirmative precepts of duty oblige not simply unto the performance of the same but when we are able and it is required by the exigence of circumstances Secondly he saith that such a kinde of oath seemeth to have a certain kinde of Collusion with the theeves which is pronounced so
timerously as sheweth he had not much faith in this argument Kinde of Collusion a certain kinde and seemeth to have Which whether it be true or not who would undertake to prove that it is not lawfull for a Traveller if to the apparent hazard of his life he fall amongst theeves to doe something which might seeme to have a certain kinde of Collusion with them That which he bringeth in the third place the impediment of Justice encouragement of wicked persons in their impiety occasion of leading others into the like hazard of their lives through such silence would be prevalent indeed if the Traveller were gotten out of their hands safe and unsworn But we suppose except he had sworn he had been slain I ask therefâ—re whether in such certain danger of â—â—e was it lawfull for him to swear or not lawfull If not lawfull and certainly the two first arguments either prove that or nothing he had perished and who then should have given the Magistrate information of the theeves The inconveniencies which are objected from this silence might they not seeing dead men are enjoyned perpetuall silence be objected from his death But if it were lawfull to swear then it is also lawfull to keep the oath except some emergent accident as it may fall out unexpectedly do render the thing lawfull when it was sworn afterwards unlawfull Let this therefore till the contrary be proved by stronger arguments remain both in this case the rest where deceit fear tyranny and the like are exercised That an honest man either ought not to swear at all which if the thing it self be not unlawfull seemeth hard in imminent and apparent danger or ought religiously to observe his oath And thus much for the Efficient cause of oathes In which I was desirous to have been briefer if the matter would have born it My discourse hath encreased upon my meditations beyond what I expected and yet whilest I study brevity I have willingly omitted many things whereof I might profitably have spoken The fifth Lecture Of the Externall Form of an Oath Containing ten Cases Summary 1 Oathes by signes onely without words 2 Oathes by the Creature 3 Oathes by Idols 4 How to know whether a man have sworn or no. 5 The first tryall the form of the words 6 The second the force of the words 7 Of Josephs form by the life of Pharaoh 8 Third triall the custome of the Countrey 9 Fourth the intention of the party swearing 10 The use of the said trialls 11 The solemn rite of an oath 12 Whether solemnity increase obligation 13 Solemnity of oathes omitted SECT I. THe Materiall and Efficient causes of oathes have been handled in the foregoing Lectures We come to speak of the Formall cause Now the form of a thing being either externall or internall the cases of this Classis are so under two heads to be divided as may bring those things which appertain unto the words or signes of an oath because they are received by the interior senses under the name of Externall form and those things which appertain unto the sense and interpretation of the same which is the work of the minde under that of Internall form An oath in respect of externall form consisteth of signes only or of words only or of both wherefore the first doubt is of the oath which is made by signes only without words There have been who have thought except the words I swear or the Name of God be expressely used as I swear I will perform it by God I will doe it I call God to witnesse So God help me or the like that it is but a bare promise and no oath and therefore obligatory under perill of falsehood only not of perjury so that he who fulfilleth not his promise which ought also to be performed is guilty of violated faith but not of a violated oath And amongst the Casuists Bartolus is said to have judged words at the least some so necessary unto an oath that unlesse the testimony invoked were in expresse words pronounced it could not formally be an oath nor under that name obligatory But these two opinions are worthily rejected by all For seeing words are but interpreters of things conceived in the minde whereof they are characters if it be possible for those things conceived though perhaps not so conveniently yet sufficiently to be signified by other means as writing nods signes c. to the understanding of others no necessity enjoyneth the use of words So mutes they who have had their tongues cut out and such as lie speechlesse upon their death-beds when they contract Marriage make their Wills or perform any thing which cannot be done without a clear and undoubted signification of their assent which they are unable to expresse by word of mouth use by nods by lifting up the hands or other signes to signifie their answer unto the question asked Which signification is no lesse valid unto all intents and purposes of the Law then if it had been expressed by word And it is the very same in an oath to which so God be any way invoked witnesse whether expressely by word of mouth or tacitely by any signes whereby the persons whom it concerneth may manifestly perceive that the party desireth as in the presence of God to engage his faith such an act is both formally an oath and fully sufficient to oblige the conscience according to that verse which Stobaeus bringeth out of an old Comedian The oath is firm if I but give a nod He is therefore very much deceived and his own impostor who thinketh himself either free from or more loose in his obligation because he uttered no word that might expresse an oath If to another asking him a question as in the presence of God witnesse and arbiter by the manner of his behaviour he seem plainly to consent or if where it may be advantagious unto him in respect of some wordly gain that he should seem to have sworn unto the words of another he knowingly and wittingly make use of a friend to witnesse though falsely that he hath so sworn he hath bound by that fact his soul with a bond and ought no lesse to doe according unto all that which proceeded out of the mouth of the party asking or requiring then if it had proceeded out of his own mouth if the thing be lawfull he must perform it but if he know it to be unlawfull he cannot by this trick evade perjury SECT II. FUrthermore as oathes may be sworn by signes only without words so they may and most commonly are by words only without signes as appeareth by those rash ones which slip out in common discourse and others Now the words of an oath may be considered yet two wayes either in respect of the things by which it is sworn or according to the manner of expression and form of speech in which it is sworn Wherefore the second doubt is concerning the obligation of an oath in
that worship is due unto God alone as from Deut. 6. and Jer. 5. hath been proved which latter place though perhaps it peculiarly concerned them who swear by Idols and false Gods yet the strength of the argument which the Prophet useth generally taken comprehendeth them also who swear by creatures seeing that it may likewise be truly said of creatures that they are not Gods Thirdly the nature of an oath as appeared by the definition thereof sheweth sufficiently that it was never lawfull to swear by creatures Heathens themselves confessing that divine Invocation belongeth unto the essence of an oath Which things being so and this reason insufficient to excuse Joseph of all crime the fourth opinion followeth which explaining the genuine sense of Josephs words supposeth him not to have sworn at all and therefore not to have sinned in swearing amisse For if he sware by the life of Pharaoh either the life of Pharaoh was invoked as witnesse which were ridiculous to think or contained some execratory or imprecatory thing in it which what it could be without a very harsh and forced Interpretation of the words is not easie to divine But the sense of his words will be very plain and easie if they be expounded by an Indicative speech thus By the life of Pharaoh ye are spies that is as true and certain as it is that Pharaoh liveth so true and certain it is that ye are spies like that By this Sun that shineth I tell you true which is as much as to say this is so true whith I tell you as it is true that the Sun shineth Whereof neither in my opinion is formally an oath but an asseveration rather confirmed by a vehement obtestation I am not ignorant that much may be said for the contrary which though it be not of weight to make me alter my judgement neverthelesse it is of weight to make me think it fit that every man should be left freely to his judgement provided he condemn not anothers and grant me this That it cannot at least by vertue of the words except it appear by other means be clearly proved that Joseph sware seeing the words contain no Invocation of witnesse nor of vengeance SECT VIII THe third trial whereby an oath is to be known is the custome of the Countrey place or Community For there may be some speeches which neither by their Form nor force and naturall sensâ— of the words appear to be oathes yet through received use in some Nation and common estimation may be accounted oathes as on the other side such as by the tenor of the words a man would take for oathes may be esteemed no oathes The reason is becausâ— the value of words is like that of money not by Nature but agreement or rather use that is their worth is accordingly as they are esteemed To finde an example thereof we neeed goe no further then some of our own forms for whereas Faith and Truth especially as to this purpose are words of the same signification and efficacy in asmuch as he who is void of truth is void of faith and he who is void of faith is void of truth also Neverthelesse our Countreymen through long use are possessed with an opinion that he who says In faith sweareth and he who saith In truth sweareth not as also that In Truth is but a meer asseveration and By my troth an oath Of which things it were a folly to demand other reason then custome To whose Arbitriment belongs The right the Law the rule of tongues Whence it followes that he who whilest he looketh only at the form or force of the words taketh the liberty in common discourse of such kinde of speeches without discretion or scruple as have by long use obtained amongst us the force and estimation of oathes violateth the precept of Christ against swearing scandalizeth his brother and exposeth himself unto the danger of perjury SECT IX THe fourth and last triall whereby an oath may be known is the minde and intention of the party swearing For be it so that a form of speech appear not by the words themselves nor by the common estimation of men to be an oath Neverthelesse if a man using such a form either through mistake imagine himself to have sworn or through some deceitfull intention would be thought to have sworn that form though it be not really and in it self an oath will have neverthelesse as to that man the full obligation of an oath to all effects and if he violate his faith so given he is guilty at the Bar of Conscience not onely of falsehood but perjury for as by the judgement of the Apostle he who esteemeth a thing common or impure which in it self is not impure maketh it neverthelesse impure as to him and is bound to abstain from it as if it were really common and impure So by the rule of contraries he who esteemeth a thing holy which in it self is not holy maketh it neverthelesse holy as to him and is bound to abstain from it as a thing really holy And if errour in the understanding excuse not from obligation much lesse may deceitfulnesse in the will Because it is most just that an impious and fraudulent man should fall into the pit which he digged for his neighbour and that his feet should be caught in the snare which he set for another SECT X. THe use of the four trials which I have explained is this that to know when a question or scruple of Conscience ariseth concerning any form of speech which seemeth to be an oath whether or no it be truly and formally an oath and consequently contain the force of obligation Recourse may presently be had unto these trials and the examen of the form made by them as Diagnostick signs and that in the order which I have proposed begining with the first and running through the rest as there shall be occasion that is except the examen appear sufficiently made by the way to shew it to be an oath For that which is an oath may appear to be but an affirmation by the examination of some one mark but it cannot be denyed to be an oath till the whole examen be perfected through every mark The ends of this examen are two the one before the oath that a man may bethink himself whether it be fit to use such a form or no the other after the form used that he may understand how far he is obliged SECT XI OUr discourse hath been hitherto of such oathes as are made by signes without words or of such as are made by words without signs we come now to speak of such as are compounded of both Now signs are joyned with words for the greater either solemnity of the act or dignity of the person Wherefore a fourth doubt is concerning a solemn oath where the first case or first question is of the Rites and Ceremonies used in solemn oathes Of the rites of the Gentiles many have written
that when he sware I will give thee so much he understood if I owe it thee or if thou demand it before the Magistrate But as this mentall reservation is built upon the same sand with verball equivocation so is it destroyed with the same dash for it rooteth all faith and assurance out of men makes God an Imposter is deceitfull unto our neighbour perverteth the use and end of oathes setteth open a great gate to all kinde of lies and perjuries and is so much worse then equivocation as more difficult to be prevented For equivocation foreseen or suspected may be prevented by such diligent explication of the words as may leave no loop-hole of ambiguity But no humane art or providence if men will be jugling can prevent this pouch of this Reservation Where will you finde a knot to tye this Vertumnus unto one shape Binde wicked Proteus in chain A thousand fold 't is all in vain Jesuites and Priests reserving unto themselves the liberty to reserve any thing are not afraid with a serious brow to take our oath of Allegiance though penned with such accuratenesse of words as leaveth no hold for cavill nor way for escape yet that very clause where in expresse words they promise that they will faithfully observe all the premises according unto the tenor of the words pronounced by them and according to the plain and naturall sense and true intent of those words without any equivocation or mentall reservation they understand at the same time with this reservation to wit that I will tell you SECT VI. THey lye neverthelesse at a ward to put by perjury for say they of the verball and mentall sentence one entire sentence is compounded in which taken altogether there is no falsehood For example if a Priest swear in express words that he is no Priest with the addition reserved in his minde but not uttered that I should tell it you this whole sentence say they put together is true viz. I am not a Priest that I should tell it you Nor doth any reason seem to forbid a man the liberty if he please to compose his speech of verball and mentall terms For why in our prayers if one should pronounce those words only our daily bread and expresse those other give us this day in his thought only should the speech be intire and lawfull and acceptable unto God and unlawfull to doe the like in an oath That this Jesuiticall Legerdemain may fully be discovered First it is admirable that these most acute Artificers should not perceive the Fabrick of this defence not to be raised but upon the utter ruines of faith in all humane judgements contracts and promises For the argument they use if it were of any weight would as well justifie the practise of this equivocation before a lawfull Judge and in a just matter which they say ought not to be as before an incompetent Judge and in an unjust matter seeing that a sentence composed of the verball and mentall parts is in each of the same truth or falsehood And this answer may suffice ad hominem but ad rem I say secondly that a sentence composed as hath been said of the verball and mentall parts may be admitted when a man converseth with his own thoughts as in private meditation or when he addresseth himself to God alone as in prayer or thanksgiving But when the hath to do with men as in oathes where he is to bear such testimony as may be heard and understood by others a sense mixed of verball and mentall parts is in no wise to be admitted The reason of this difference is manifest because that which he beareth hidden in his brest is no further known unto others then he declareth it by word of mouth But to God before whom nothing is hidden the darkest secrets of the heart are transparent So that when men pray or meditate it is all one as to the point of truth or falsehood whether they pronounce their whole thoughts or part of them or none at all But men who cannot dive into the heart further then words and actions discover it must weigh the truth or falsehood of a speech by those things only which may yeeld testimony unto the hearers Which since those reservations which are kept within cannot effect the truth of a speech is to be judged only by the words pronounced and not by mentall Reservation SECT VII THe fourth Case followeth the fact for as before and in the act of swearing there ought to be a purpose of fulfilling the promise in the same sense wherein it was proposed without any equivocation or mentall reservation so ought there afterwards to be a desire and endeavour in due time faithfully to perform the same according unto that sense wherein it was sworn without any evasion or subterfuge and as it is one kinde of perjury to strain the words during the act of swearing unto another sense then that wherein they are understood by the Auditors so is it another kinde of perjury having sworn honestly not to proceed sincerely but decline and elude the strength of the oath though the words be preserved with some new forged invention variously turning and dressing the words to cloke the guilt of their Consciences as Tacitus saith of some Stobaeus telleth a prety tale from Herodotus of one Archetimus who had deposited money in the hand of his friend Cydias Archetimus upon a time desirous to have the same restored Cydias loath to part with the gold disclaimeth that he ever received it The matter brought before the Judges the Plaintiffe accuseth the Defendant denyeth each with like confidence neither by any witnesse The Judges other proofs being wanting decreed the determination of the controversie by Oath the day is appointed Cydias in the mean time putteth the gold into an hollow staffe which he had cunningly boared and withall counterfeiteth sicknesse then appearing at the time with his staffe as newly recovered delivereth the same unto Archetimus to hold whilest he approached the Altar and till he had performed the solemnity of his oath This done with a most composed minde and countenance he sweareth that he had received gold from Archetimus but had restored it again unto him At which Architemus netled with his losse and transported with indignation to see perfidiousnesse joyned with so much impudence threw the staffe so hard against the pavement that it brake and discovered the money the fraud of Cydias and the whole truth of the matter Which act the writer of the story cals an imbroydered ly and observeth that Cydias in reward of his perfidy came to a miserable end Many such examples are extant both in Historians and common practise out of which I shall collect some profitable observations The first is that even dishonest men are so far touched with some Conscience and obligation of an oath that though none at all or very small regard be had to justice and honesty yet through an instinct of nature
all obligation both towards God and man Fifthly I say that solution of the Bond by Relaxation of the party extendeth so far as pleaseth the party relaxing As if Caius have sworn to pay Titius an hundred pounds and Titius have afterwards remitted fifty pounds the obligation is not wholly absolved but in part That is the bond as to the fifty pound remitted is void but it remaineth good as to the fifty pound not remitted Again if Caius have sworn to pay Titius an hundred pounds within 20 dayes and Titius perceiving that Caius cannot without inconvenience unto himself pay the mony at the time appointed give him other twenty days This Relaxation made by Dilation or propagation of the time remitteth so much of the obligation that he is not bound to pay the money within the time limited by his oath yet he is bound and that by vertue of his first oath to make payment within forty dayes Sixtly I say that Relaxation by a party is of force so far as that party is concerned but is not of force to the prejudice of a third person The reason is because any man may by act remit as much of his own right as he pleaseth but no man can diminish the right of another without his knowledge and against his will Let men therefore so recede from their own that the rights of others receive no detriment Thus Abraham Gen. 14. receded from his right when after the victory won upon the four Kings he bestowed his whole share of the spoyl upon the King of Sodome reserving unto the three Commanders his fellows in arms their due proportions Whence Caius sworn to pay an hundred pound unto Titius and Julius if Titius pardon him his part of the debt he is absolved as to that which was due unto Titius but remaineth bound as to that which is due unto Julius Upon the same ground Relaxation by consent of the parties availeth nothing in Contracts of Marriage because therein mans profit is not regarded only but the Ordinance of God also to whom great injury would be done if that contract though with mutuall consent of the party should be violated For the vertue and and efficacy which this Relaxation whereof we now speak hath to null obligation supposeth that act which introduced obligation to have considered nothing else but the good and profit only of the party relaxing If any other party be by right of his own interessed that the obligation should not be remitted the obligation is not remitted SECT IX NOw the sum of what hath been said concerning Solution of the Bond in an Oath is briefly this That the Bond of an Oath cannot be released by Dispensation of any Superiour or Commutation so as to free the Conscience of the party swearing from performance of the promise but may neverthelesse be rescinded and made void by a Superiour having lawfull authority cease through defect of the matter or be relaxed by him unto whom the promise was made so as to lose all strength of obligation The promise which I made at my entrance upon the Office of Publique professor being now by Gods assistance performed according to my talent with as much brevity pâ—rspicuity and fidelity as I have been able I thought fit to adde some few admonitions concerning the use and abuse of Oathes as Corollaries whereby our lives and Consciences may be profitably directed not by way of exhortation as they use in Sermons but remembring I teach in the School and not in the Church by way of Thesis or practicall Conclusions briefly proposed and clearly explained SECT X. THe first Conclusion is against Anabaptists and Socinians That the use of Oathes is lawfull I prove it first by the practise in the Old Testament The godly Patriarchs sware Controversies were determined by oath according to the Institution of Moses in the Law the Prophets prescribed the condition of oathes to be observed Nor can any just reason be rendered why this should be lawfull for the pious under the Old and not for the faithfull under the New Testament seeing it is apparent from the end of an oath whose use is perpetuall that it appertaineth not unto the Ceremoniall Law abrogated by Christ and from the form which seemeth to have nothing common with the type I prove it secondly by the example of God of Angels of Apostles those being often introduced in holy Scripture swearing after the manner of men these Historically Thirdly by the custome of all Nations who directed by the light of Nature have judged the bond of an oath for the convenience of Civill Society the surest confirmation of Faith then which there can be no clearer discovery of the Law of Nature Fourthly from the end of an oath which is the confinmation of truth in doubtfull matters where all other proofs are defiâ—int which end seeing it is necessary for the composing and determination of Controversies it must needs be that the necessary means unto the end should be at the least lawfull Fifthly from the nature of an oath containing nothing in it self which is intrinsecally evill for neither is a religious act evill nor the Confirmation of a doubtful thing evill nor Invocation of Divine testimony evill of which members the essentiall definition of an oath consisteth SECT XI THe second Conclusion The use of Oathes in common discourse is unlawfull The first proof is from the nature of an oath Because every religious act being a part of Divine Wotship ought to be performed with due reverence and with some both preparation and attention all which must needs be far off when oathes are rashly scattered without judgement or heedlesly without consideration The second from the end which is the confirmation of a doubtfull businesse seeing our ordinary discourse is for the most part upon frivolous matters which either are not doubtfull or not of moment to require religious confirmation or if they were would be little more credited for his oath who maketh swearing his common custome for such will be assoon believed if that which they say seem true without an oath or if otherwise no whit the sooner for swearing The third from the Cause whence such kinde of Oathes are derived which is either a vitious habit contracted by long and pernicious custome which habit is the fruit and mark of a profane if not Atheisticall heart or some exorbitant perturbation of the mindâ— as excessive anger intemperate joy with which whilest the minde boyles the mouth foameth to the dishonour of God and at which those words of James seem peculiarly to aim Chap. 5. vers 1â— But above all things my Brethren swear not neither by Heaven neither by the Earth In the foregoing verâ—es he exhorteth the faithfull to suffer injuries with patience and in the following vâ—râ—e teacheth the Christian how to entertain himself whether he be sad or cheerfull a place worthy to be the exercise of learned men and something more diligently considered then as yet it hath been by
Interpreters Perhaps this cursory Paraphrase upon the words such as it is may contribute something towards that end as it seemeth unto me they expresse thus much Set the examples of antient Prophets and holy men before your eyes If ye suffer adversity imitate their patience If in all things you cannot attain to that perfection yet thus far at least except ye be extreme negligent you may goe with ease above all things take heed lest too impatient of your grief or too much transported with your joy ye break forth into rash oathes to the dishonour of God and shame of Christian conversation But rather contain your selves whether troubled or rejoycing within the bounds of modesty mingle not heaven and earthâ— let not all things be filled with your oathes and clamours if you affirm orderly a thing let it be with calmnesse and a meer affirmation or negation But if either of these passions be more impetuous and strive to overflow the narrow channels of your bosomes it will be your wisdomes to let it forth unto the glory of God Doe you demand by what means I will tell you Is any amongst you afflicted Let not his impatience break forth into oathes and blasphemies the floodgates of wrath but rather let him pray and humbly implore God that he would vouchsafe him patience till his heavy hand be removed Is any merry Let him not bellow it forth in Oathes like a Bacchanalian but rather sing it in Hymnes and Psalmes unto the praise of God who hath made his cup to overflow and crowned him with happy dayes If any man admit not this latitude unto the Apostles words let him use his own judgement I have onely expressed that which I think probable and give no man Law But to return if I have digressed it is certain that the words of James altogether condemn that evill custome which is now grown amongst high and low men of all sorts inveterate It would cost me many leaves to sum up that which hath been declared against this impious use by holy Fathers ancient Doctors of all Nations Hebrews Greeks Latines yea even Heathens of many take a few Sirach the wisest of the Hebrews Accustome not thy mouth to swearing As a servant that is continually beaten shall not be without a blew mark so he that sweareth and nameth God continually shall not be faultlesse A man that useth much swearing shall be filled with iniquity Amongst the Greeks Eusebius the Heathen Philosopher Many saith he exhort men to swear the truth but I am of opinion that men ought not easily to swear at all Amongst the Latines Augustine Beware of oathes as much as you may because it were better not to swear though a truth not that it is sin to swear truth but that it is a most grievous one to swear falsehood into which he may the sooner fall who accustometh himself to swearing And in another place a false oath is destructive and even a true one dangerous But what need is there of other testimonies seeing this dayly and unnecessary use of swearing is so positively forbidden as scarse any thing more in holy Scriptures by Christ himself But I say unto you swear not at all and by his Apostle St. James in the place cited Above all things swear not SECT XII THe third conclusion An oath ought not to be made but upon a just weighty and necessary occasion An oath is of those things which are neither evill in themselves as murther sacriledge perjury and all other vices be nor of those which are desirable of themselves as deeds of Charity Justice Obedience and all other vertues but of such as are good only because necessary by Hypothesis and for their end and not desirable but in order unto that end of which sort are all those which are ordained for the redresse of some defect as Physick For as a medicine was not invented for it self but for health and as there would be no use thereof if mens bodies were not obnoxious unto diseases Honour the Physitian for necessity sake so an oath is instituted for the confirmation of faith amongst men nor would be of any use if mankinde were not alasse too subject unto ignorance and perfidy which perhaps was our Saviours meaning by those words Matth. 5. 37. cometh of evill Wherefore as the use of Physick where it seemeth not necessary to the preservation of life and health is to be avoided so oathes are likewise to be avoided where necessary preservation of humane society and confirmation of faith seem not to require them That admonition of Epictetus as all the rest of that Stoick is wholesome Avoid an oath if you can wholly if not as much you may An oath is a sacred thing but by how much the more sacred by so much the more dangerous if unduely taken As medicines of the greatest vertue and efficacy are the more hurtfull unto the body if rashly and unskilfully administred The use of assertory oathes is necessary in Common-wealths especially in Courts of Justice for the investigation of truth in matter of particular fact whereunto belong oathes witnesses Compurgators c. In extrajudiciall and private businesses it is not so frequent yet it may be sometimes necessary to wit where it concerneth a man very much to be believed and he cannot be believed except he swear The promissory oath is of no use in Justice but of very great in extrajudicials both publique and private First publique to keep subjects in allegiance unto their Princes for the confirmation of Leagues and Contracts of Kings and Common-wealths for the observation of Laws and Statutes and consequently honor order and peace of politique bodies and Societies for the faithfull administration of publique Offices and the like And also private as the Antients often used it for establishment of Contracts performance of Conditions between buyer and seller payment of debts restitution loans profits trusts c. But in most matters of private concernment other wayes may be taken with lesse scruple of Conscience and better assurance against the perfidy of wicked men as Pawns Feoffees Bonds Witnesses and other judiciall obligations And where such may be conveniently used it is best to abstain altogether from oathes lest by frequent swearing and upon slight occasions the too familiar use of a thing so sacred degenerate into contempt or whilest we practise swearing we learn perjury Augustine saith truly Except a man have tryed he cannot know how hard a thing it is to shake off the custome of swearing and not to doe that rashly which sometimes he must doe necessarily SECT XIII THe fourth Conclusion It is a grievous sin unduly to exact an oath Now he exacteth unduly First who compelleth another to take an oath which is neither ordained by the Law nor received by custome nor established by undenyed prescription without Intermission Secondly who exacteth an oath evidently repugnant or which seemeth by that sense which the words bear according to their use in