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
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
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
amongst us the oaths of Homage of Royall Supremacy and the like No man denyeth these oaths either to be lawfull or obligatory but in respect of the frequent incertainty of the Laws whereunto they relate it may very well be doubted how far they oblige Doubtlesse the Subject to his power is obliged to defend all rights which appear either by law or custome Legitimate whether defined by the written Law or in force through long use of time or prescription â—â—at is so far as they are known or may morally be known But he is not equally obliged unto the observation of all those which are controverted or doubtfull especially since powerfull men are accustomed to stretch their Teathers and leap over the Landmarks of their neighbours not contenting themselves within the bounds of their own right Neverthelesse a subject ought to be always prepared in minde so soon as the justnesse of those things which are doubtfull shall appear to acknowledge and defend them SECT XVIII THe last case is where an oath is required of member of any Community as of a City University or Colledge Society of Merchants or Handicrafts men to observe the Statutes Customes and Liberties of that Corporation If you ask what the obligation is I answer first that the party sworn is obliged simply unto the observation as far as in him lyeth of all fundamentall Statutes By fundamentall I understand such as most necessarily and nearly concern the preservation of the publique estate order and honour of the whole body or Community But Secondly not that alwayes and necessarily to the rigour of the lettâ—r but as they are put in practise and received by custome and as they are with approbation observed by others Thirdly concerning the lesser Statutes appeartaining only unto externall form and decency which by the condition of the matter or form of the Sanction or any other probable conjecture a discreet man may judge not to have been framed with intention of rigid obligation he is obliged to observe thâ—m ordinarily yet so as wiâ—hout scruple of conscience he may sometimes having just cause for it pretermit that which is prescribed to be done by some Statute provided it be without scandall or contempt Fourthly the obligation is extended unto Statutes to be made for the futuâ—e provided they be possible just and honest Fifthly if any Statute after the oath takâ—n be abrogatâ—d or grown out of use the obligation of the oaâ—h as to the Statute ceaseth and he is not bound any longer to observe it unlesse he have sworn in expresse words unto the matter it self decreed by that Statute For in that case though the Statute be taken away the obligation remaineth Sixthly seeing Statutes of Corporations be very many and many of them unknown to many and that it is most difficult nay scarce possible to observe them all exactly and to an haire he who shall behave himself so honestly that willingly he omitteth nothing appertaining to his duty and is morally diligent to attain the knowledge of all those Statutes which tend thereunto and resolveth faithfully and without scandal to be serviceable unto the estate honour and peace of his Community as far as humane frailty will permit performeth doubtlesse with a very good conscience his faith given for the observation of the Statutes and by the rule of just and honest dischargeth the duties whereunto he obligeth himself And the like is to be understood of the publique Laws of a Kingdome SECT XIX ANd this shall suffice to be spoken of the first Classis of Cases But left it be thought my intention to permit too great a licence of oaths because I have so often said that this or that kinde of oath is not unlawfull I thought fit maturely to advertise you that I have said nothing this day nor shall hereafter that may give any man reason to believe it lawfull for him to swear at his pleasure it being well known unto me that an oath is a sacred thing not without great necessity and then seldome and with much reverence to be used But my meaning throughout is that an oath upon this or that occasion is not simply and generally unlawfull For example when I said on oath impeditive of a greater good is not unlawfull or an oath of an indifferent thing is not unlawfull my sense was that an oath ought not therefore to be concluded simply and generally unlawfull so it have all the rest of the due conditions only because it is impeditive of a greater good or only because it is of an indifferent thing or which comes all to one that there is not in those considerations any such impediment but it may be lawfull if it be otherwise necessary and in all other respects duly qualified The fourth Lecture Containing seventeen Cases Summary 1. The efficient cause of an oath and the things to be handled proposed 2. Oaths of children 3. Oaths of mad men and fools 4. Oaths of men drunk and enraged 5 6. Oath of one being in the power of another 7. The authority of him who giveth an oath 8. Faith to be kept with enemies heretiques perjured persons 9. Whether an oath oblige the Heirs of the party swearing and how far 10. Oath to be performed by the Heir or Successâ—r 11. Voluntary oaths 12. Oath obtained by fraud 13. Oath taken through some light fear 14. Oath extorted by force or fear 15. Money promised unto a Theif ought to be paid 16. Solution of objections 17. Whether silence promised unto a Theif be to be kept SECT I. THe principall difficulties appertaining properly unto the matter of an oath being finished in the foregoing Lecture we proceed unto the solution of those doubts which may be reduced unto the Efficient cause The Efficient cause of an oath is as to our purpose twofold the Agent to which effect properly belongeth and the Impulsive cause Again the agent is either principall or more remote from the effect For as two persons at the least to wit the person swearing who engageth his faith and the deferent as they speak who follow Cicero or person to whom the engagement is made must as tearms of this relation concur in the obligation of an oath So each hath his part in the work The first and especiall belongeth to the person swearing the second to the Deferent or person to whom the oath is made In both agents the condition or aptitude of the person is first to be considered next the extension of the obligation Wherefore in this kinde of efficient cause such doubts are in the first place to be considered as arise from the defect of some condition requisite on the part of the principall agent to qualifie him for an oath And two things especially are requisite unto such a qualification rational judgement and lawfull power For an oath ought to be taken with a minde both deliberate and resolved to perform the promise But he who is not indued with rationall judgement can neither be
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.
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