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
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
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
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
common speech to be repugnant unto a former oath lawfully taken Thirdly who compelleth another to swear unto an unlawful thing to wit against his duty to God to his Superiours against the Laws of the Kingdome against a good life Fourthly who offereth an oath of ambiguous sense or any way captious thereby to ensnare the conscience life liberty or fortune of his neighbour Fifthly who without necessity either terrifieth any person by threatnings compelleth him by authority or inveigleth him by perswasion example deceipt or other means to an oath which he knoweth to be against the Conscience of that person Would to God all such as are in Authority would seriously consider with what a foul and indelible brand Jeroboam the son of Nebat hath stigmatized his name and Conscience in causing the people of Israel to sin and how grievously they provoke the Lord to wrath who abuse the power he hath given them for the edification unto the destruction of others SECT XIV THe fifth Conclusion An Oath is not to be taken with a relucting and unsatisfied Conscience The first proof because that which is not of faith is sin The second because we ought to swear in Judgement which certainly he doth not who goeth against the judgement of his Conscience The third because such an action must needs be occasioned by regard had unto some temporall advantage or fear of some losse or hope of some profit or desire to obtain favour or the like And how ill doth it become a Christian to prefer the world before God durt before heaven the body before the soul temporall gain before eternall joy the follies of this before the hopes of eternall life externall peace before the quiet of Conscience The fourth because the party so swearing evidently exposeth himself to the danger of perjury For he who through fear or hope of any temporall losse or gain may be induced to swear will hardly if the like fear or hope disswade be induced to perform his oath and yet Heathens themselves have numbred perjury amongst the most hainous crimes which kindle the anger of the immortall Gods not against the guilty only and their posterity but even to the destruction of whole Nations How much more ought wee acknowledging the only true God who hath solemnly professed that he will not hold him guilâ—lesse that taketh his Name in vain to fear and tremble lest whilest we behold on every side the plentifulâ— and luxurious crop of Oathes and Perjury grown already ripe for the Harvest God the most just Judge to the utter destruction of so perfidious and profane a generation should instantly thrust in the sharp sickle of his judgements We have already been sensible that our most mercifull Father is provoked unto wrath and his infinite patience wounded and as I may say overcome with our intolerable wickednesse converted into fury Where all are extream it is not easie to say for what particular crime Yet certainly he who seriously considereth how far we have been since God hath smitten us with a more heavy hand from bewailing those most grievous sins of oathâ—s and perjury nay rather how vastly they are encreased here through the uncontrouled and unpunished licentiousnesse of oathes and blasphemies there through the foul Hypocrisie of perjury hid under the specious pretence of Religion cannot choose but think upon those words of the Prophet Jeremiah Through Oathes the Land mourneth Wherefore Men Fathers and Brethren I beseâ—ch you as many as are here present and all whereever they be who wish well unto the publique peace of this Church and Kingdom or to the private of their own souls and Consciences that we take most diligent heed lest we fall into contempt of Gods most holy Name and violation of our own faith that we flye all unnecessary Oathes constantly refuse those which are unlawfully requiâ—ed faithfully perform those which we have lawfully taken as far as is in our power couragiously restrain the licentiousnesse of sin in oathes and continually implore our great and good God that he would give us being taught by his correction and humbled under his most powerfull hand hearts to flye unto his mercy to acknowledge his Justice to implore his grace for the remission of all our sins amendment of our lives and salvation of our soules by and through the merit of our Lord Jesus Christ to whom with the Father and the holy Spirit three Persons and one God be the Kingdome the power and the glory for ever and ever Amen Amen FINIS An exact and large Table of the most remarkable things contained in this Book The Number denotes the Page ABraham's league with Abimelech 163 Accessaries extinct by the principal ceasing 249 Act of an Oath implies reverence of the Divine Name 8 Advisement to be took before one swear 206 All obligation to duty respecteth duty de futuro 30 Any man may recede from his own right 252 Asseverations Attestations and Oathes differ 164 Assuerusâ—is â—is oath to Esther 96 B. Bond of an Oath is indispensable 234. 247 By my faith and by my truth are oathes 167. 175 C. Childrens oaths 109 Christ generally forbids unnecessary oathes 171 Commutation of an oath is unlawful 242. Confirmation the true end of an oath 13 Conscience to be preferred to fear of punishment 27 Cydias his oath 240 D. Davids oath touching Nabal 19 Debts twofold 25 Definition of an oath Dictates of conscience binde us not to act against it 84 Difference between an oath and a vow 10. between an oath and an assertion ibid. in Doubtful matters the safest part is to be taken 53 Doubting of an oath 223 Drunken mens oathes 111. it is unfit for them to swear 112 Duty of subjects perpetually obligatory 246 E. Efficient cause of an oath twofold 105 Egyptians oathes 157. 170 Enraged mens oathes 111. it is unfit for them to swear 112 Error in the substance makes the oath invalid 134 Every oath is in its nature binding 30 Evill can receive no validity from an oath 76 Exceptions and conditions to be prefumed in oathes 54 Excessive curiosity of method to be avoided 65 Extent and latitude of an oath 215 F. Faith and justice firm bonds of humane society 14. Final cause of an oath 16. 218 First and second intension of an oath 216 Force of words 167 Formes of oathes 149 Formes of words 165 G. God swearing 21 God chiefly called for a witnesse in all oaths 8. especially in true and formal oathes 9 God is invocated in all oathes 10 God not to be invocated as witnesse but in doubts worthy his vindication 93 H. Hannibals oath 108 Habit of swearing 220 Heirs of the party sâ—earing how far bound by his oath 126 Herods oath 4. 19. 97 He that â—wears by Idols swears by them he thinks to be Gods 9 How to know whether a man have sworn oâ—â—o 163 I. Jacobs covenant with Laban 163 Jesuites defend AEquivocation 194 Impossible things oblige not 60. things may be impossible three wayes ibid.
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
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