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
nor too largely to be interpreted Wherefore when I say that an oath is stricti juris I am so to be understood that therein neverthelesse as in every oath how simply soever taken and free from exception all those exceptions and conditions both may and ought to be presumed which all Lawes allow unto an oath to the end that it may be binding whereof these that follow are the chief and those perhaps to which most of the rest may be reduced First it is to be presumed If God permit according to that of James If the Lord will we will live and do this or that Wherefore if Caius swear unto Titius that he will be at London the fift of January and pay the money he oweth him if he happen at that time to be kept in his bed by sicknesse or were robbed of his money by the way in this case he is not guilty of perjury The reason is that all things being subordinate unto divine will and providence and no man having power to dispose of all events he who doth what lyeth in his power to wards the performance of his promise hath fulfilled his oath for seeing that an impossible thing obligâ—th not as anon you will hear every oath is of common right to be understood with this clause If it please God or the like The second thing to be presumed is As farre as is lawfull for an unlawfull thing obligeth not As if a mâ—n should swear indefinitely to observe all the Statutes and Customes of a Corporation he were not thereby obliged to observe any that were not lawfull and honest The third thing to be presumed is A salvo to superiour power Wherefore if a son swear that he will perform some lawfull thing and his father ignorant thereof lay some other command upon him which hinders the perâ— formance of his oath the son is not obnoxious to the oath because by divine and naturall Law he is bound to obey his fathers commands And he who hath sworn not to stir from home if he be summoned by a lawfull Judge to appear is bound to go notwithstanding his oath The reason is that one mans act ought not to prejudice another mans right The fourth thing to be presumed is Rebus sic stantibus that is if things remain in the same state wherein they now are Whence he who hath sworn to restore a sword is not bound to restore it to a mad man And he who hath sworn to take a woman to wife is not bound to take her if he finde afterwards that she is with childe by another These and the like conditions whose reason is clear are fit in every oath to be presumed though they be not expressed and he would be too rigid an interpreter who should go about to exclude any of them But if any man shall admit more doubtfull exceptions and dissonant not only from the words of the oath but from all right reason and not approved by common right or consent of nations verily he shaketh the very foundations laid by God of an oath and openeth a large field unto all kinde of perjuries by his rash enterprize And so we leave our second Hypothesis of the strict interpretation of an oath SECT XI UPon which as also that before of the simplicity of an Oath I thought good more largely to insist though many things have fallen into my meditations not unworthy knowledge which neverlelesse for brevity sake I have omitted both because the clearer interpretation of them seemed unto me very necessary in these most dissolute times wherein men generally play with oathes as boyes do with Cockals and that there is very considerable use of these two Hypotheses in that which with Gods help I am about to say in my future Lectures The rest I shall more briefly dispatch The third Hypothesis An oath maketh not a former obligation void An oath hath naturally its obligatory power but constructive only not destructive that is it may lay an obligation where there was none before or strengthen one that lay before but it cannot take away that which it findeth or impose another which is repugnant unto it The reason is because by all obligation some right is conferred upon another for whosoever is obliged is obliged unto another and it seems most unjust that by the meer act of one the right of another without his own consent should be weakned Nor will iâ— make any thing to this purpose whether that obligation we suppose were naturall or acquisite Naturall and necessary obligation is that whereby we are bound unto the performance of some duty unto another which by the Law of nature we owe him in relation to our person which as I observed in our former Lecture some call obligation of Equity because it originally deriveth from the Law of nature which is both most equall and the rule of all equity such is the mutuall obligation between the husband and wife the father and son the master and servant the Prince and his subjects Acquisite and voluntary obligation which is also called Civill by a Synecdoche speciâ—i and of justice because it is just that a man should be bound unto that whereunto he hath voluntarily bound himself is that whereby we are ingaged unto the performance of some duty to another which we owe him by agreement and vertue of some proper and voluntary act such is the obligation which arises from promises vowes oathes leagues and other humane contracts and conventions If therefore an oath be oâ—fered unto any man containing any thing repugnant unto a former obligation whether naturall or acquisite aâ— if it be repugnant unto the obedience due unto a Parent or the Prince or if it be repugnant unto that which was lawfully sworn or promised before such an oath no man can take or taken fulfill with a safe conscience Who doth either of these is perjured SECT XII THe fourth Hypothesis followes which is so evident of it self that it is a rule of the Law and needeth no proof An impossible thing obligeth not And this is extended unto all kinde of impossibility which may happen in matter of Law Now a thing may be impossible either per se or per accidens Perse three wayes First by a naturall impossibility as for a man to flie a fish to speak Secondly by an impossibility of fact as for Caius staying this day at London to meet Titius tomorrow at Venice Thirdly by an impossibility of Law as it is said impossible for a man to do that which he hath no legall power to do in which sense that ordinary speech is to be understood Id tantum possumus quod jure possumus Thus it is impossible for the Maior of this City to confer upon any man the degree of Doctor If a man should swear an impossibility of any of these three kindes his oath were vain and from the beginning null and by consequence could not at all oblige him to endevour that which he sware
the performance of that which is promised It is also required that the same be speedily done vers 6 8 9 13 15. upon the day that he heard it As if he shâ—uld say if he conceal his dissent but a day he hath established the vow for ever for he is presumed to have been willing who slowly expresseth himself to be unwilling SECT VII HAving considered the party swearing the deferent or person to whom the oath is made cometh in the second place to be considered and is concerned in the third doubt wherein two cases occur one respecting his authority the other his faith The first case is where we make a question of his authority who requireth an oath of us For if he be a legitimate Superiour and so acknowledged by us nor require other oaâ—h of us then what is decreed by the Law and confirmed by daily and approved custome no man doubteth but such an oath may both lawfully be taken and ought faithfully to be performed But where he who requireth the oath seemâ—th to have no right so to doe but to usurp a power which belongeth not unto him it may very well be doubted whether it be lawfull to tâ—ke an oath by him so offered and if we take it whether and how far we are obliged by it First I say that a pious and constant man ought as much as in him lyeth to decline all oathes imposed by such as have no lawfull authority not onely because it is an ordinary thing to compell those upon whom they exercise Tyranny unto unjust promises but also beâ—ause every man is bound to defend his right and liberty to the utmost and not tamely to thrust himself into the yoake of anothers Tyranny But secondly if besides command such force be used as he cannot resist and there be no refusing with out extreme danger to avoid I say the certain consequence of a very great inconvenience a pious man but sadly heavily and with some expression of reluctancy may take such an oath provided the words of the oath which seldome hapneth upon this occasion contain nothing unlawfull in it self contrary to known Law or derogatory from the right of any third person otherwise he ought to refuse it even to the hazard of his life and to endure the utmost rather thâ—n oblige himself in an unlawfull bond Thirdly he who hath tâ—ken an oath given by a person who had no lawfull authority but in all other respects lawfull is many wayes bound unto the performance thereof SECT VIII THe second case is where hee unto whom the oath is to be made is an Infidell Heretick or one who hath formerly broke his faith First I say it is lawfull to swear unto an Infidel Heretick or perjured person it was done by the Patriarchs Isaac and Jacob also by Joshua and the Princes of the people of Israel these made leagues with strangers and Infidels and on both sides confirmed their mutual faith by solemn oathes Secondly I say that faith given unto such is in any wise to be kept We use to object unto Papists that they hold faith not to be kept with Hereticks wherein the Jesuites of this age exclaim that great injurie is done unto them They are ashamed forsooth in so clear light openly to professe a doctrine so wide of all right reason and pernicious to humane society But our men have proved even by shewing the places that some of their Doctors have defended that Conclusion whose books are neither prohibited nor expurgated But let them all deny it in words this at least is apparent if we may judge of their opinion either by the principles of their doctâ—ne or by their actions and reason of those actions as their own Historians of most unsuspected faith have related them there is no such cause why they should so confidently exclaim that we have slandered them In the mean time whilest they would shift of this opinion they tacitely acknowledge it either false or impious The Prophets sometimes reprove the Kings off Judah especially Eze k17 almost throughout the chapter that they kept not their faith sworn unto the Kings of Babylon the place is remarkable and by Chrysostâ—me largely and elegantly explained Nay in this kinde the faith of Reguluâ— and others is renowned in Heathen story who made good what they had sworn even unto enemies and Carthaginians a most perfidious Nation though to the hazard of their lives Silius adorneth Regulus with this commendation calling unto him as it were by an Apostrophe Their Fame to late posterity shall sound Faithfull to faithlesse Carthaginians found But you will object perhaps those vulgar sayings To deceive a deceiver is no deceipt and Cum Cretensibus cretizandum To which may be added those which Grotius useth on the speech of Brutus in Appian Romans knâ—w no faith nor Religion of an oath to a Tyrant the other out of the old Tragedian where one saith Thou hast broken thy faith the other replyeth Which I neither gave nor give unto any faithlesse person I answer that these taken from common practise rather shew what useth vulgarly to be done then what ought to be done or if you admit them for truths that they are onely approveable in such cases where the oath was taken upon condition either expressed as thus I swear to give you an hundred Crowns if within a month you redeâ—m your land which I have in Mortgage or at the least tacite as when two oblige themselves by mutuall oathes to fulfill mutuall promises with mutuall respect For example if Chremes the Master swear unto his servant Sosia to give him annually ten Crowns and Sosia likewise swear unto Chermes to serve him eight years He of the two who first violateth his faith presently absolveth the other from the bond of his oath But if two oblige themselves mutually in promises of different kindes or not at the same time or otherwise without mutuall respect faith violated by the one absolveth not the others obligation but each is bound to stand unto his oath though the other have not performed his part For example a King simply and without respect unto the allegiance of his subjects sweareth to administer his government righteously and according to Law the subjects at another time simply and without respect unto the duty of the Prince swear allegiance and due obedience unto him they are both bound faithfully to perform their severall duties nor would the King be absolved from his oath though Subjects should not perform their due obedience nor subjects from theirs though the King should turn from the path of justice SECT IX HItherto of the condition both of the Agent to wit the party swearing as principall and of the deferent or person to whom the oath is made as lesse principall The fourth doubt followeth concerning the extention of the obligation in respect of both the persons wherein two cases occur The first concerneth the person swearing Whether and how far the oath obligeth his Heirs and
really be taken away by Dispensation of the Superiour but that it must not therefore be said that the Superior dispenseth with Divine and Natural Law because say they that Divine Law of Nature is that an oath so long as the strength and obligation thereof remaineth should be kept and with this Law the Superiour dispenseth not but by his Dispensation taketh away that strength of the oath whereby it obliged the party swearing before the Dispensation But this subtilty opened unto the quick would be found a meer trifle which availeth nothing or implyes a contradiction and is refuted by the Jesuite Achorius though Sayrus the Monk be about his ears for it So whilest these Cadmean brethren dispatch each other by mutuall blowes nor can finde any reason whereby to arm themselves in proof they really confesse that the cause which they have undertaken cannot be defended Wherefore I conclude that neither Pope nor Prince nor Synod nor Senate nor Ecclesiasticall nor Secular Superiour hath any right to dispense with Leagues Contracts Oathes or to absolve any man from that Bond wherein before the Dispensation granted he was engaged SECT V. WIth this first of Dispensation the next question or the second Case of Commutation of an Oath is allyed Now Commutation as the word expresseth is nothing else but translation of the obligation from one matter to another which whether greater lesse or equivalent seemeth in some respect to be more convenient And Commutation differeth from Dispensation as a species from the genus or part from the whole For if a Bond could be loosed either by the one or other it would be wholly unbound by Dispensation by Commutation in part onely The doctrine of Cafuists concerning Commutation amounteth to this sum First that a private man of his own authority without his Superiours Dispensation may commute a vow or oath into that which is evidently better which they confirm by Gods example who doth not always fulfill his temporall promises to the letter but often changeth them for the better and for confirmation of this opinion they bring the speech of Gregory He infringeth not his promise or purpose who changeth it for the better Secondly that promise cannot be commuted to that which is evidently worse or whereof question may be made whether it be better without authority of a Superiour qualified with legitimate power of judging and determining in that point Thirdly that by Commutation preexistent obligation is wholly taken off from the former matter and new obligation brought in and laid upon a different matter But this whole doctrine is built upon a false foundation to wit dispensability of an oath which being as we have proved null this superstructure of Commutation must necessarily fall to ruine Wherefore briefly I say that the bond of an oath cannot be remitted or losed either in whole by Dispensation or in part by Commutation without consent of all the parties But the consent of him unto whom the oath is made is more especially required because such right is acquired unto him as without his own consent ought not to be taken away For the example of God it suiteth not because his promises as they are all of free bounty so the temporall ones are also conditionall and to be understood with exception of the Crosse of the good pleasure of God and of that which he knoweth to be most profitable for us Neither is the case of a Vow and of an Oath altogether alike in respect of Commutation for in a vow seeing it is made to God alone some liberty may perhaps be granted unto the person vowing of changing the same into another which may be evidently better and more acceptable unto God there being nothing in this alteration injurious unto a third person but in an oath which is made unto man injury might be done him if it should without his consent and against his will be commuted into any other thing As if Caius sworn to pay ten pound unto Titius should give him an Horse worth ten pounds it would not satisfie his oath for it is not reasonable that a man should be forced to commute a thing due unto him Wherefore the bond of an oath cannot be loosed nor the obligation taken away by either of these inventions SECT VI. BUt it seemeth it may by the three wayes remaining to wit Irritation of the Superiour Cessation of the matter and Relaxation of the party Wherefore the third Case is of solution of the bond by irritation declared by the Superiour Now Irritation for so with the Casuists we must speak though barbarously signifieth an act of the legitimate superiour whereby of his Authority he rendereth an oath made by his Subject without his consent null and void For that legitimate Superiours may rescinde Vows and Oathes of such as are not free but under their Authority Moses teacheth as when we were upon the efficient cause we observed largely throughout this chapter The reason is that he who is in the power of another is not in his own nor can oblige himself in things wherein he is subject without leave from his Superiour and therefore he ought not by any act of his to bring obligation upon himself without the others consent either expressed or upon reasonable grounds presumed For the rights of Rulers over their Subjects are by the immoveable and eternall Law of God perpetuall Moreover the duty of Subjects together with the right of obedience and subjection are by the same perpetuall Law perpetually and indispensably obligatory Which antecedent obligation by our third Hypothesis obstructeth the effect of a subsequent oath in such manner as it cannot be binding for the former obligation ever prejudgeth the latter and rendreth every act introductive of new and contrary obligation invalid Wherefore in this case I say first that a Subject ought not by oath to promise any of those things wherein he is subject unto another without the consent of his Superiour at the least presumed Secondly that if he have sworn and the thing be lawfull he is so long obliged unto performance as it appeareth not to be against the will dignity and profit of his Superiour Thirdly that the Superiour if he have by expresse consent whether before or after once ratified the promise of his subject cannot make the same afterwards void or null the obligation thereof Fourthly if the Superiour so soon as he cometh to know of the matter openly and peremptorily declaring his dissent forbid the performance of the same that the transitory obligation presently ceaseth and the subject by vertue of his former obligation of duty which is permanent and perpetuall is bound notwithstanding his oath to obey his Superiour Whence if any man subject unto the power of another whether Master Father or Prince voluntarily compelled by force or fear or misled through fraud or example of others happen to make any oath whereunto he believeth his Master Father or Prince had he biâ— present would not have condescended
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
transform the man into a beast He who sware having wholly lost the use of his Reason is bound when he is sober seriously to repent both of his debauchery and rash oath but is not obliged to do as he sware because during the act of swearing he had not that use of reason without which there is no judging of things with deliberate understanding But the use of reason hindred only and not so taken away but that he might though drunken in some measure judge and resolve it seemeth he is in some measure obliged to fulfill his oath at least in part if it may be done without his very great hurt and this both in respect of his antecedent deliberation sufficient to binde and for punishment of his rashnesse that he may learn for the future to be wiser and lead a sober life lest he stumble into that drunkennesse which will stick by him sober But if performance of the oath be to the great hurt or inconvenience of the party swearing as if a man being drunk should promise to sell the land whereupon he keepeth his family for little or nothing he seemeth not to be obliged The reason is that such a promise is a certain sign of the absence of his understanding Wherefore seeing his minde was not fully free during the time of the oath neither is the obligation full Perhaps in this case it would not be the worst end of an ill business if it should by both parties be wholly referred unto the arbitration of an honest and prudent man to be by circumstances determined what part of the thing promised the party sworn deserveth to make good in punishment of his drunkenness and temerity SECT V. THe second doubt is of his oath who is not in his own power but anothers As if a son or pupill in the power of Parents or Tutors or a servant in his Masters or wife in her husbands or subject in his Princes or a souldier in his Captains or the like should take an oath without permission of his superiour What and how far availeth this oath I answer he who is under the power of another ought not to determine of any of those things wherein he is subject by an oath without expresse consent of his Superiour where it may conveniently be had or at the least without his tacite consent that is where the party swearing may probably conjecture that his Superior if leave were asked would not refuse to grant it If he doth otherwise he sinneth in swearing neither is he obliged to perform what he sware nay he is obliged not to perform it unlesse his Superiour being made acquainted with the matter give him leave as is at large explained by Moses through this chapter in the case of a vow or oath for as to obligation they appear the same in this verse made by a Virgin whilest she is in the house of her Father or by a wife in the house of her husband The sum is that the vow of a Virgin if her Father knew of it and contradicted it not is valid because by silence he seemeth to have given consent but if he contradicted it it is void And the same by Analogy may be determined of all such as are under the power of others so far as they are under such power which for two reasons appeareth by that which hath been said First bâ—cause he doth injury unto another who as it were by a right of his own disposeth of the right of another but by our fifth Hypothesâ—s no man is bound by an act injurious unto another seeing that an unlawfull thing obligeth not Secondly every man is bound by his duty to be subject unto his Superiour and obey his will in those things wherein he is Superiour which obligation by our third Hypothesis a subsequent oath cannot take away Wherefore we must necessarily conclude that the oath of one who is under the power of another without the others consent is neither lawfull nor obligatory SECT VI. NEvertheless this conclusion is not so absolute but it may admit of two exceptions one respecting the party swearing the other the consent of the Superiour For the party swearing it is to be considered that there is scarse any person enjoying the use of reason so fully in the power of another but he is at the least in some things at his own disposing and of these every man may according to his discretion even without leave or acquainting his Superiour with the matter so determine as may be obligatory The servant of Caius ought not to let out his labour to Titius or lend or give unto him any part of his Masters goods without the consent of Caius because things concerning the performance of duty disposing of goods or other service of the family are wholly in the Masters power But the servant or son of Caius may promise even without acquainting Caius to give unto Titius that which is peculiarly theirs if they confirm their promise by an oath they are bound whether he will or no to perform it because each hath free right to dispose of that which is peculiarly his and is as to that in his own power Secondly for the consent of the Superiour it is to be observed that unto the ratification of the oath of the inferiour precedent consent expressed is not necessarily required but it sufficeth if it be tacite whether antecedent or subsequent Tacite antecedent consent I understand to be when from the lightnesse or equity of the thing or other probable cause it may very well be presumed that the Superiour if he had been asked would have consented unto or at least not forbidden the fact as if Caius being from home or not acquainted with the businesse his wife should cloath a poor man with an old suit or give an alms to a begger or his son or servant upon his neighbours entreaty should lend an Oxe or a Cart or other Instrument of husbandry or houshold-stuffe or should contribute their assistance to build a neighbors house or bring home his Corn. Tacite subsequent consent I understand to be when the Superiour in whose power it is to make any promise rashly made by the inferiour if he see cause invalid coming afterwards to knowledge of the promise doth not presently and openly contradict it nor discovereth by any certain expression that he so far disproveth the act as that he would not have it fulfilled according to that which is directed by Moses in the 6. 8. and other verses of this Chapter where to make the vow of a daughter or wife invalid an open and mature signification of the dissent of the father or husband is required For it is not enough to render the daughters vow invalid that the Father say it displeaseth him but he must openly declare against it vers 13. 16. si renuendo renuat and tollendo tollat As if he should say he must constantly withstand the fact and by interposing his authority forbid
they found out an expedient imposing upon them the condition of servitude in the vilest offices whereby the Gibeonites mighâ— pay for their craft be kept in their duty and not be able for the future to hurt Israel of which fact saith Ambrose Joshua thought not the peace which he had given to be revoked because it was confirmed by the bond of an oath lest whilest he argued others perfidious he should break his own faith By which example it is plain that an oath though obtained by deceit hath the strength of obligation And lest that any man should think that Joshua and the Princes were too superstitious in this matter they resisted not only the people who thought the Gibeonites notwithstanding the oath ought to be slâ—in rendering this reason of their advice We have sworn unto them by the Lord God of Israel now therefâ—re we may not touch them But God so approved afterwards of the thing by a double sign One when he bestowed upon Joshua fighting for the Gibeonites against the Kings who had made a confederacy for their destruction a remarkable Victory accompanyed with an illustrious miracle the other when above an hundred years after King Sauls unjust violation of the League made with the Gibeonites was punished with three years famine and at the length expiated with the death of seven of his sons by Gods expresse Command publiquely hanged SECT XIII NEverthelesse this case will admit of a distinction For the error whereinto the person sworn is led by the deceit of another if it be about a circumstance only or about the cause of a thing as if it were extrinsick and accidâ—ntall taketh not away the obligation as appeared but now in the errour of the Israelites concâ—rning the Gibeonites The like might be said in case Caius should swear to take the widow of Titius to wife beleeving her though poor to be rich he must take her this error rendereth not his oath invalid and the the like is to be said of oâ—thes of the like kinde But iâ— the error be about the substance of the thing or its proper cause as if Caius should swear to marry this particular woman under the name of Titia beleeving her to be Titia though she be not afterwards should find his error he is not bound by oath for an error in the substance of the thing which was the proper cause of the oath rendereth the promise invalid and obligation void SECT XIV THe sixth and last doubt is of force or of an oath extorted by fear against the will of the party swearing in such manner as if the fear were not he would not swear and truly this is a difficult and intricate question neverthelesse I will endevour to explain it with as much brevity and perspicuity as I can The first case is where the fear is slight and such as cannot easily affect a constant man as if through the fear of unjust censure or of derision or displeasure of some powerfull person a man should promise by oath the performance of something which would be inconvenient for him and such as were it not for the fear he would neither doe nor promise In answer I must first repeat which in the whole matter of oathes is most religiously to be observed that if any thing be proposed to be sworn which is against the Law of God against the duty of a Christian against a vertuous life against the Laws of the Countrey against a former obligation or in any other respect unlawfull such an oath ought not through any hope of profit or fear of danger to be either taken or performed This presumed I say that a slight and empty fear ought to be contemned by a valiant man that is by an honest for he cannot be honest who is not valiant and every oath of this kinde to be constantly and boldly refused The righteous are bold as a Lyon Pâ—ov 26. 1. of which fortitude he who is destitute can hardly doe any thing worthy of a good man For he that observeth the winde shall not sow and he that regardeth the clowds shall not reap saith Solomon Eccles. 11. 4. Nâ—y it can hardly come to passe but he shall doe many things unbeseeming a good man for by the Testimony of the same Solomon Prov. 29. 25. The fear of man bringeth a Sâ—are But if any man being overseen through want of courage have suffered himself to be ensnared he hath bound his soul with a bond and is obliged to perform what he promised Sâ—CT XV. THe second case is where fear is great and just and such as may affect a constant man as the fear of captivity loss of all his goods of infamy torture and which is the King of fear of death it self I say first as before if the oath contain any unlawfull thing it ought not to be taken by any honest man though to save his life nor taken can be observed without sin Hearken oh ye Christians unto the golden speech of an Heathen The man who 's just and steady to Himself arm'd Tumults cannot bow Nor awed by the Tyrants look Is from his stable purpose shook Secondly I say If a matter be extorted by force or prevalent fear which is neither unlawfull nor injurious to any man but more or lesse inconvenient onely unto the party swearing as if a Traveller falling amongst Theeves who with their swords at his breast should threaten him death unlesse he sware unto them to ransome his life with a sum of money the party may in this case lawfully promise the money and ratifie the promise with an oath The reason is that of two ills proposed a man may and a wise man ought to use the lesse and the losse of money is a lesse ill then the losse of life Thirdly I say that this oath obligeth and that the money promised unto the Theeves is in any wise to be paid which though it seem to have been said sufficiently manifest yet because this assertion hath considerable adversaries and amongst them Cicero a man of singular judgement and as rightly principled in all that concerneth the bond of an oath this one thing excepted as was possible for a Gentile it will not be wide of our purpose to confirm this assertion with some reasons First therefore he who sweareth a lawfull and possible thing is bound to perform it but to pay money promised unto a Theef is neither unlawfull nor impossible therefore he is bouâ—d Secondly he chose that which then seemed unto him best and which if one of the two were now necessarily to be taken by him he would choose again wherefore it seemeth that what was prudently chosen cannot honestly be refused Thirdly that which was promised to a certain end ought by the party promising to be performed when he hath obtained his end Because every contract upon condition that condition being performed ought also to be performed which is the very basis whereupon the obligation of conditionall vows is
much lesse to perform it But the nature of a thing impossible by accident only is somewhat different As if a man having sworn to pay an hundred pound within a moneth which is not impossible perse be hindred by some unexpected accident in such sort that he cannot make the sum within the time appointed Albeit he be not obliged in conscience to the performance of his promise to wit the payment of the whole debt within the time limited which is now rendred impossible neverthelesse he is obliged to do what he can viz. to pay as much and that as soon as he is able The reason of both is that because in this case impossibility only impedeth the obligation The obligation is only so far taken away as the performance is impossible but in the rest remaineth And he who cannot pay all he oweth ought yet to pay all he can SECT XIII THe fifth Hypothesis An unlawfull thing obligeth not An unlawfull thing is whatsoever is against any precept of God in the Decalogue or a vertuous life whatsoever is repugnant unto our piety towards God or our charity towards our neighbour whatsoever is averse to the common good or peace Ecclesiasticall Politicall Domesticall in a word whatsoever is sinfull Hereunto appertain those common sayings An oath is not the bond of iniquity In sinfull promises revoke thy faith c. The reason is because every unlawfull thing is against duty but all obligation is to duty Furthermore whatsoever is unlawfull is in some sort forbidden by God either immediately or by consequence but Gods prohibition obligeth unto the not doing of that which is forbidden which obligation a subsequent oath as appears by the third Hypothesis cannot make void Nay he who hath sworn to do that which he cannot do without sin is so far from being obliged unto the performance thereof that he is rather obliged in no wise to perform the same But you will say for a man not to fulfil his oath is perjury nay verily if the thing be unlawfull whereunto thou wert sworâ— thou wast then perjured when thou swearest thou are not perjured when thou repentest And therefore to fulfill an unlawful thing because thou hast sworn it is to heap wickednesse upon perjury like Pelion upon Ossa or drunkennesse to thirst to fulfill rather the measure of perjury then thy oath to persevere in perjury with obdurity and impenitence SECT XIV NEvertheless concerning this Hypothesis I must advertise that this question Whether this or that oath be lawfull differs very much from that Whether this or that oath oblige For although it be certain that what ought not to be performed ought not to be sworn neverthelesse it may come and doth come very often to passe that what ought not to have been sworn ought notwithstanding to be performed Of this the league made by Joshua with the Gibeonites is a most evident example The difference lyeth in this where an oath is therefore unlawfull because that which a man swears is an unlawfull thing there he sinneth both waies in swearing and in performing as if one should swear to slay an innocent and do it he is guilty both of perjury and murder And such an oath is in no waies binding which is the true sense of this last Hypothesis But where an oath of a thing which is not unlawful becometh otherwise unlawfull by some externall defect or through some undue circumstance it may oblige the party swearing to the performance of his promise except there appear other impediment And in this case cometh in that vulgar speech Fieri non debet factum valet We may therefore distinguish an oath may be said unlawfull two waies either in respect of the thing sworn or the act of swearing An oath unlawfull in respect of the thing sworn doth in no wise oblige an oath unlawfull in respect of the act of swearing obligeth except it be hindred by some other cause But thus much of these Hypotheses which I thought fit to lead in the ensuing discourse being props and supporters whereupon those things whereof I shall speak hereafter concerning the bond of an oath and the sollution of that bond are sustained The third Lecture Containing sixteen Cases Summary 1 2. The use of method and order of the things to be handled of the matter of an oath 3. Oath of a thing simply impossible 4. Oath of an impossible thing and from the beginning improbable 5. Oath of an impossible thing and from the beginning probable 6. Oath of a necessary thing 7. Oath of an unlawfull thing 8. Oath of a thing simply unlawfull 9. Oath of a thing unlawfull by Circumstance 10. Oath of a thing which seemeth unlawfull to the party swearing 11. Oath repugnant to former obligation 12. Oath hindring some good 13. Oath tending to the hurt of the party swearing 14. Oath giving scandall to another 15. Oath of an indifferent thing 16. Oath to do what another would have to be done 17 18. Oath to preserve Lawes and observe statutes 19. Caution concerning a right understanding of the things mentioned SECT I. I Begin here to launch into a vaâ—t sea being to fulfill the promise and speak of the doubtfull cases of conscience which appertain unto the bond of an oath which I shall do according unto the four kindes of Causes But before I weigh anchor give me leave to advertise you that I shall noâ— trouble my self very much in the Method of those things which are to be handled Truly the use of Order in all kindes of study and discourse is very great and necessary without which a man by assiduous and abundant reading may perhaps acquire unto himself a masse of various learning but that confused indigested and without any great profit on the other side that excessive curiosity of method which I finde some too industruously to affect I have ever thought fit to be avoided as a kinde of troublesome superstition and no small remora to such as are studious it shall satisfie me so to reduce all that which I am about to deliver unto certain Classes that at the least some reason of resemblance or analogie may shew why I do it nor shall it trouble me much if a fault be found that the sense and interpretation of an oath is not well reduced to the formall or some effect of it to the finall cause Now seeing where all the causes concurre to produce an effect Matter in the first place is required as the first subject of generation in the next the Efficient Cause which by acting produceth the form in the third the â—orm which by the action of the efficient is to be introduced into the matter Lastly the End for whose sake the efficient operateth We as it were following these steps of nature will begin with Matter and thence in their order proceed unto the rest SECT II. BY the matter of an oath I mean that about which it is imployed and for the confirmation whereof it is made
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
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
they think themselves bound to quit themselves of their faith engaged by performance of the same The second that unl esse corrupt affections be vigorously withstood that spark which is left in us of naturall light will goe near to be altogether extinguished by them or so raked up in that heap that we shall rather give our mindes artificially to palliate then sincerely to avoid perjury Thirdly that he who desireth to keep himself free from all spot of perjury must diligently ponder every word in its own strength and sense of the oath which he is to take that if it ought not to be kept it may not be taken or if it be fit to be taken it may be fulfilled without deceit or simulation for unadvisedly to chop up holy things is impious and too late when they are once swallowed to chew them And so much for the first doubt which amounteth unto this sum That the words of an oath where they are so clear in themselves that amongst honest men there can be no question of their meaning the party swearing is obliged in that sense which they apparently afford and may not either in swearing or when he hath sworn stretch those words upon the Last of his interest by any studyed Interpretation SECT VIII THe second doubt is where the sense of the words is in question and the Cases are three The first of spontaneous oaths as in promises proceeding from the meer motion of good will and a kinde of liberty of the minde rather then duty of right or respect The common and true answer is that these promises are to be taken according to the intention of the party swearing because every man is the best interpreter of himself For example if any of us should binde our selves by a vow or promise to give unto the poor of a Village or Collector for them ten shillings a month if the poor seeing month as we use it is an ambiguous word should by the promise pretend unto the first pension upon the 28. day of January and so for the rest of the months upon the same day taking a month for the space of four weeks which is one signification of the word and he on the other side should say that it was not due till the last of January and so forth taking month for the twelfth part of a year according to the distribution of the year in the Calender which is another signification of the word it were most just that the ambiguity should be interpreted rather in his sense then theirs because that Pension was not due in justice and before the promise but in charity and by vertue of the free promise without agreement or contract And of this kinde of oath ought these words to be understood which are cited in the glosse upon the Canon Law It is manifest that God taketh not the oath as he unto whom it is sworn but as he who sweareth understandâ—th the same But that this may rightly be apprehended two things are observable One that it holdeth especially in spontaneous oathes and promises for in such as are required the reason differeth as shall be said anon The other that the party swearing is in the present case obliged to hold unto his promise in that sense which he either really intended when he sware or was willing the Auditors should beleive And not in any which he shall please afterwards to impose For God who beholdeth the heart is not deluded by words Nor ought the intention to serve the words but the words the intention SECT IX THe second case is of oathes and promises which are offered unto or required of the party swearing whether of right or under pretence of right such especially as Rulers of authority command their Subjects or Laws ordain as with us those of Supremacy and Allegiance those which the Statutes of the University require of Graduates and the like Also those which either party in lawfull Covenants demandeth of the other or are used in Bargains Leagues and other mutuall Contracts for the confirmation of mutuall faith For answer in this case I say that this kinde of oath ought regularly to be understood in that sense which the party unto whom the oath is made seemeth probably to intend so that the party swearing is bound under pain of perjury to fulfill his promise if it be lawfull and honest according to the intention of the deferent The words are understood according to the minde and intention of him to whom the oath is made saith the Lawyer The reason is because this kinde of oath is taken to the end he to whom it is sworn may by interposition of the same be assured that the promise of the party swearing shall be performed unto him but he would be no whâ—t the more assured of that performance if the words were to be interpreted at the will of the party swearing and not according to his own sense for there is a different nature of obligation where debt is claimed by promise and where promise is claimed by debt God himself who is by Law no mans debtor maketh himselfe through his free promises our debtor and he who obligeth himself by a voluntary vow oath or promise unto any deed of Charity ipso facto contracteth debt But because this debt is not founded upon his right unto whom the promise is made but floweth meerly from the free act of the party promising it is most just that he should be his own Interpreter who is most concerned to know how much how far and in what sense he intended to oblige himself On the other side where the promise is founded upon some antecedent right either that of subjection and duty by Superior Authority or of Justice and contract by agreement between parties Because he to whom the promise is made hath right to enquire the same and is most concerned that it be faithfully performed reason requireth that the obligation of the promise should rather be judged according to his mind and interpretation then by the sense of the party promising SECT X. THe third case is where the Deferent offering an oath of ambiguous sense desireth only that the words be sworn leaving it unto the judgement of the party swearing to take them in what sense he pleaseth I say it may very well be suspected that some deceit is couched in them and that a pious prudent man ought therefore to refuse an oath proffered upon such conditions which I shall make good by a threefold proof First in regard of the oath it selt in which the first thing required is truth for a speech of indefinite and ambiguous sense before it be distinguished is no true proposition indeed no proposition seeing a proposition as by the definition thereof is known even to children ought to signifie a truth or falsehood without ambiguity Secondly in regard of him to whom it is sworn For the proper end of an oath is that he to whom it is made may have
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.
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