De Iuramento.

SEVEN LECTURES CONCERNING THE OBLIGATION Of Promissory OATHES. Read publickly in the Divi­nity School at OXFORD.

By ROBERT SENDERSON D. D. His MAJESTIES Publick Professor there.

Translated into English by His late MAJESTIES speciall Command, and afterwards Revised and approved un­der His MAJESTIES own hand.

London, Printed by E. C. for Humphrey Moseley, Octavian Pulleyn, and Andrew Crook and are to be sold at their shops in St. Pauls-Ch [...]ch [...]yard 1655.

TO THE READER.

SHould I tell thee no more but the Authors Name, and by whose Command this Book was made English, 'twere sufficient Commendation; But [Page] (because I intend not to waste many words) know, that whether thou be a Ruler, or a Subject, Single, or Marryed, this Book will concern thee; Since thou canst not make any Oath, Pro­mise, or Stipulation, (and thou canst not qui­etly live without them) but mayst here read how far thou stand'st obli­ged; So that whether thou lovest thy own con­science, or thy Neigh­bours, [Page] the Author, (and perhaps the Translator have here done thee a courtesie.

Farewell.

OF THE OBLIGATION OF OATHES.

The first Lecture.

NUMB. 30. 2.‘If a man vow a vow unto the Lord, or swear an oath to binde his soul with a Bond, he shall not break his word, he shall do according to all that proceedeth out of his mouth.’
The Summary.
  • 1. The things to be handled proposed.
  • 2. The definition of an oath.
  • [Page 2] 3. An Oath is a Religious Act.
  • 4. In an Oath God is called to witnesse.
  • 5. The matter of an Oath is something in doubt.
  • 6. The end of an Oath is credit.
  • 7. The definition given, containeth all the four kindes of Causes.
  • 8. Oaths assertory and promissory.
  • 9. Oathes Comminatory.
  • 10. Oathes Execratory.
  • 11. The definition and distinction of Obli­gation.
  • 12. Obligation to guilt and to punishment.
  • 13. An Oath is in the nature of it Obli­gatory.
  • 14. The different obligation of the Assertory, and Promissory.

SECT. I.

I Shall handle this matter with the more expedition, and your better profit, (as I conceive) if in the very entrance I lay before your eyes as it were a generall Map of my fu­ture discourse; for so both you may better understand my design, and I more certainly bound my speech; that I may either contain it within the due compasse, or if it chance to start out a little, it do not so loosly wander, but that it may be maturely brought in or­der, and reduced unto the point. I shall therefore deliver the whole matter un­der three heads.

First, That it may be the better under­stood 1 of what I speak, I wil shew what an Oath is in generall, what a Promissory Oath is in particular, & what Obligation.

Then because the determination of uncertain things is to be drawn from 2 such as are certain, I shall propose certain axioms or generall rules, deri­ved [Page 4] from the fountains of naturall Law, and confirmed by generall consent, as Hypotheses, and Touch-stones of the fu­ture disquisition, from whence the de­cisions of particular cases are to be de­duced, and to which they are to be brought as unto their rules & Canons. These two necessarily premised, of which one will give light to that which is to be spoken, the other strength and foundation: I shall come in the third place to salve those doubts, which may have any 3 difficulty in them worthy of de­bate, or may serve to cast any scruple into the mindes and consciences of pi­ous men: which as it is the principall part of the whole work, and by far the largest, I shall endevour to bring all the variety of Cases into certain Classes, and that according to the four kindes of Causes so far as it concerns the bond of obligation; reserving to the con­clusion of the work, both those things which appertain to the solution of that bond, and any other which I shall either finde to have been omitted in their due place, or judge fit for the better regula­tion of life, and Conscience, to be an­nexed.

SECT. II.

THE draught of the whole future treaty thus delineated as in a map, now I betake my self to the matter. Where first is to be explained what an Oath is. I shall not need to insist upon the name, and the defining thereof: for the ill custome of swearing is grown to that passe, and the familiar abuse of this so sacred a thing is such in these debauched times, that it can be un­known to no man, nay not unto chil­dren, what an Oath is. Authors (as the manner is) variously expresse the defi­nition of the thing it self, according to their particular fancies. That of Cicero is the most concise, An Oath, saith he, is a religious affirmation. Where by the way I both admire and am angry at the forward youths of this age, who I know not out of what erroneous prejudice, but I am confident, to their own great hurt, avoid Cicero, as a writer of too much prolixity. But I return: if any man desire a fuller definition of an oath, let him take this, An Oath is a religious act, by which God is called [Page 6] to witnesse for the confirmation of some matter in doubt. Every member of this definition I shal particularly ex­plain.

SECT. III.

FIrst, I say it is a religious act. Act is put as the Genus; for though an Oath be properly in the Predicament of Relation, yet because the relative respect which is in an oath is founded upon the act of the party swearing, it is not for that reason impertinently defined by such an act; for as much as in the definition of Relatives, the matter or ground of that relation is usually put in for the Genus. Now that it is a religious Act, is manifest, first, by the authority of Scripture, Deut. 6. 13. Thou shalt fear the Lord thy God, and serve him, and swear by his name. From which place the Schoolmen unanimously con­clude, that an Oath is (to use their term) Cultus latriae, that is, an act of such holy worship as is due unto God a­lone.

Socondly, It is manisest by the con­sent of all Nations, amongst whom as [Page 7] led by one light of nature, the religion of an oath hath been ever held most sacred; insomuch that the very words, Sanctity, Religion, and others of like sense, are scarse in any other so fre­quently used amongst Heathen writers, as in this matter of Oathes; and though they had many rites amongst them, which they held sacred, yet to an Oath only, for no other cause then that it was in a manner the most holy of their ho­ly things, remained as peculiar right by the name of Sacrament. From whence that name passed afterwards into the Church, from some similitude with the military Sacrament of the Romans, yet to signifie some other things. The French also at this day framing the Latine word Sacramentum unto their pronun­tiation call an oath, Unserement.

Thirdly, it is manifest from most evi­dent Reason: because an Oath tends to the honour of God as being an acknow­ledgement of his truth, wisdome, ju­stice, and divine power. For although a falfe oath, or an oath lightly, rashly, or otherwise unduly taken, discover a certain irreverence to, or rather con­tempt of God in the party swearing, [Page 8] and savour too much of Atheisme: the act neverthelesse of swearing in its own nature implies a reverence of the divine Name. For since every oath is made for confirmation of that which is avouched by the party swearing; and all confir­mation ought to be made by something that is most certain, and of greater au­thority, (Heb. 6. Menverily swear by the greater:) He who swears, ipso facto ac­knowledgeth God to be his superior, a witnesse of the highest authority; of infallible truth, the searcher of hearts, and the most just, and powerfull pu­nisher of all perjury and falshood. An oath therefore is a religious act.

SECT. IV.

SEcondly, I say, In which God is called witnesse. Wherein are these three things; God called, as a witnesse, and by way of invocation. In all oathes God is chiefly called; for although there was a solemnity heretofore amongst Heathens, Jewes, and Christians of swearing either by Creatures, or at least in swearing not to expresse the name of God, but the names of crea­tures [Page 9] only, as might if need were be proved by infinite testimonies drawn both from Scripture, and other authors, (to dispute which two things, whe­ther they be, o [...] how far they may be lawfull, is not to the present purpose) yet in every oath which is truly and for­mally an oath, the testimony of God is either explicitly, or implicitly used; for both he who sweareth by idols, which indeed are nothing, 1 Cor. 8. 4. & Jer. 5. 6. are no Gods, swears by those he thinks to be Gods: and he who swears by any creature, doth that in some sort in order and relation unto God, because he cal­leth the creature to witnesse, as it were something of God, that is to say, in which the truth, goodnesse, and power of God appeareth, and which he both acknowledgeth that by the mercy of. God he enjoyeth, and would be loth by the justice of God to be deprived of For example; if a man swear by his life, by his soul, by his head, by his salvati­on, &c. it is as much as if he should say, by that God to whom I owe my life, my soul, my head, from whom I expect salvation, &c. And in this particular is the difference between an Oath, and [Page 10] bare assertion or promise, which two men make without any interposition of the divine Name, either expresse or tacite. Now in that God is called to witnesse, therein an oath is distinguished from a Vow; for in a Vow God him­self is contracted withall as a party, to whom vowes are immediately ad­dressed. But man is contracted withall in an oath, and God brought in not as a party, but witnesse. Now in the de­finition I have said God to be witnesse simply and precisely, not a judge and revenger; which neverthelesse is added by some indeed truly, but perhaps not necessarily; and no superfluous thing should be brought into a definition. I confesse he who swears doth both ad­duce God witnesse of truth, and aven­ger of falshood; but that primarily, and perse, this secondarily, and by consequence. For that God be witnesse unto truth, appertaineth simply to the nature of testimony: but that he punish falshood, concerns not so much the na­ture of testimony, as the effect. But nei­ther is it sufficient unto an oath, that God be made the witnesse, except he be also invocated; for God may be [Page 11] brought a witnesse, and that for the con­firmation of a doubtfull thing too, even without an oath. As if for the confir­mation of this Thesis, Images are not to be adored, I should alledge some places out of Scripture; certainly this were to adduce the testimony of God for confirmation of a thing in doubt, and yet as certainly this were no oath; for it is quite another matter to cite God a witnesse in respect of a testimo­ny already given, which may be done without invocation; and to invoke God a witnesse with respect unto a te­stimony now to be exhibited, wherein the formality of an oath consisteth.

SECT. V.

THirdly, I said, and it is the last member of the definition, that God is invoked a witnesse for the confirma­tion of some matter in doubt. In which words is contained both the end, and matter, or object of the oath. The materia circa quam, or object of an oath, is a Doubtful thing; that is, whose cer­titude so depends upon the credit of the speaker, that it can be no other way [Page 12] conveniently found out. Wherefore first, the Scibilia, of which kinde universall things be, which are ever certain and like themselves, nor can be otherwise; Secondly, particular things which rest upon the testimony of sense, which are either so clear and certain in History, universall tradition, or other publick testimony, free from all suspicion of falshood, that they can leave no occa­sion of doubt with men of sound mindes; are no fit matter for oathes. For how ridiculous were it, and unbesee­ming a sober man to confirm by an oath, that a triangle hath three Angles; or that vertue is desirable for it self; or that Aristotle was a Philosopher; or that Cicero an Orator; or that a youth disputing in the Schools, and being to prove a proposition denied, should lay arguments aside, and swear it to be true? Wherefore particular things, such as are facts of peculiar persons with their circumstances, which for the various chances, and contingencies whereunto they are obnoxious, are so mutable, and doubtfull, that no cer­tainty thereof can be had by way of demonstration, or other, except that [Page 13] which depends upon the credit of men: are those things, unto the confirmati­on whereof, oathes are properly of use: which the Apostle intimates in that Heb. 6. An oath is the end of all contradi­ction. As if he should say, an oath is there to take place where there is no end of contradiction; one, imagine the Plaintiffe, affirming; the other, imagine the Defendant, denying: except by the interposition of an oath, one part of contradiction being confirmed, the other part cease, and the whole strife be determined.

SECT. VI.

ANd this Confirmation (the Apo­stle in the place mentioned cals it [...]) is the true end of an oath. For since particular things would be uncer­tain, and through their contingency doubtfull, nor could be proved but by witnesses, and all humane testimony would be infirm and fallible, especially through two defects; one of knowledge, (for we are ignorant of very much) the other of conscience, (every man being a lyer) and yet it would make for mens [Page 14] convenience that the things in con­troversie amongst them, and mutually debated, should be reduced to some cer­tainty, without which there would be amongst men no faith, nor justice, which are the most firm bonds of hu­mane society; there lyeth a necessity of flying to the testimony of God, who can neither deceive nor be deceived. And thus oathes are received by all na­tions from divine institution, or the law of nature, as a fit remedy for this disease. In the judgement of all men, [...], saith Diodorus Siculus, and Dionysius Haliearnasseus, [...]: And the Apostle greater, and more elegantly then, both [...], an end of all strife, Heb. 6. When we arrive once at this point, Ne plus ultra; all humane dispute and contradiction must rest here. Not that every thing confirmed by an oath is simply certain (for then there would be no perjury, which alas is too com­mon) but because in this condition of mortality (wherein it seemeth unto di­vine wisdome profitable for mankinde that they should be conversant with much obscurity and incertainty of [Page 15] things, to the end that their mindes may be raised unto the things above which are more certain) there can be no greater humane faith then that which in an oath, by the invocation of the name of God, is as it were attested and confirmed from heaven.

SECT. VII.

IN this definition of an Oath exa­mined as you have heard, are in some sort contained all the causes of oathes. That first member in which it is said to be a religi­ous Act, to wit, of him who swea­reth, necessarily includeth the will of the Agent, that is to say, of the party swearing; (seeing every man is a free agent, and every humane act volunta­ry) as the primary Efficient cause. The second member expresseth the Formall cause of an oath, which is the attesta­tion of the divine Name, or invocation of God as a witnesse. The third mem­ber contains the other two causes, to wit, the Materiall and Finall. For the proper Matter of an Oath is the thing in doubt; that is, the truth whereof is [Page 16] not sufficiently confirmed to him, be­fore whom it is pleaded, by the bare testimony of the assertor; and the pro­per Finall cause of an oath is, that a doubtfull matter may have that cer­tainty through invocation of divine testimony, then which no greater can be had in the contingency of humane affairs. This which I have said, Auditors, is to the end it may render me the more excusable unto you for the prolixity I have used in explaining the definition of an Oath. Because when with the help of God I come to state dubious cases, which I intend to do with re­spect unto the four kindes of causes, I doubt not but you will then easily per­ceive, how profitable it will be to the studious, and advantagious unto my purpose, to have had a foreknowledge of these things, which concerning the nature of oathes have been by me so largely handled.

SECT. VIII.

BUt thus much of Oathes in gene­rall, what a Promissory Oath is in particular comes in the next place, but more briefly to be explained. Sundry divisions and distinctions of oathes ac­cording to the diversities they respect are extant in Divines and Lawyers: by some they are divided into Judiciall and Extrajudiciall; by some into pub­lick, and private; into simple, and so­lemn; into naked, and execratory; into absolute, and conditionall; by others, otherwise. But the noblest of all, and that which (as I remember) is not by any of them who have written of oathes, omitted, is that whereby they are distinguished into Assertory and Promissory. For whereas in every oath (as hath been said) the name of God is taken by the party swearing by way of invocation unto the testimony of some doubtfull matter, it is to be ob­served, that this may be done three waies. For a past matter may be doubted whether it were so, or not so: as, did you see Caius yesterday in the market­place [Page 18] or no? or a present one, whether it be so or not; as, have you the mo­ney I left in your hands, or have you it not? or a future one, whether it will be so or not: as, will you lend me an hundred pound to morrow, or will you not? So often therefore as God by an oath is invoked witnesse to a thing past or present, such an oath is usually called Assertory; Because the party swearing without any promise for the future, only asserts the thing to have been, or to be as he then sweareth. But if God by the interposition of an oath be invoked witnesse to a future thing, that oath is called Promissory, because the party swearing promiseth to per­forme something, or not to perform it hereafter. The chief use of the Asserto­ry is in judicature to determine suits, especially upon the question of fact. There is small use of the Promissory in judicature, but very much in promises, bargains, contracts. Many examples of this kinde of oath are found in sa­cred story, and elsewhere. The servant of Abraham devoutly sweareth faith­fully Gen. 24. 9 to observe his Lords commands in the choice of a wife for his masters [Page 19] son. Joshua and the princes of the people of Israel swear, but inconside­rately, Josh. 9. 15. to observe the League with the Gibeonites. King Herod sware, but Mat. 14. 7. very rashly, to give unto the daughter of Herodias whatsoever she should aske.

SECT. IX.

FUrthermore it is to be advertised, that under the title of an oath Pro­missory, is also comprehended the Com­minatory; such as was the rash oath of David for the destruction of Nabal, and the impious one of certain Jewes, who vowed that they would neither eat nor drink till they had killed Paul. These and such like are not properly Promises, which word seems rather to signifie something that may be grate­full unto another, but by a kinde of Synecdoche joyned with a Catachresis (which as it is otherwise familiar amongst good Authors, so especially in words which respect some future thing; as sperare for timere, and the like) the name of Promises may Metaleptically be extended to Comminations. So Gods Oath, whereby he sware in his wrath [Page 20] that the Israelites, who had tempted him with divers provocations in the wildernesse, should not enter into his rest, may and useth no lesse to be called promissory (though not so properly) then the other of his whereby he sware unto their fathers that he would give them the land of Canaan for an heri­tage.

SECT. X.

NEither is it materiall to the na­ture or effect of a promissory oath, whether the oath be barely ex­pressed, or with an execration added; for although there be some of the Schoolmen, unto whom that oath which is made by a simple calling to witnesse, seems to differ in specie, from that which is done with an execration added, they being induced unto that opinion for this reason, that God is in­voked by that as a witnesse, by this as a judge; yet if we more attentively con­sider the matter, we shall finde by what hath been said, that they come both to on [...] For every oath in what manner so­ever uttered, whether barely, or with [Page 21] execration, either expresly, or at the least implicitly, invoketh God both as a Witnesse and Judge, but primarily and perse as a Witnesse; secondarily and consequently as a Judge; and that is the most explicate form of an oath, whereby God is both explicitly called to witnesse, and whereunto an exe­cration, or imprecation is annexed: as if a man should swear thus, I call God to witnesse, 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 [Page 22] Psalme, I sware in my wrath, if they enter Psal. 95. 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 [...]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 [Page 23] 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 [Page 24] 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 thi [...]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 Mor [...]ll, or Naturall ob­ligation [Page 25] only, or at the least especial­ly; the other, the Civi [...]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, [Page 26] that the latter debt is contracted by non-payment of the former. So that if a man fully disingage his debitum offici [...], by obeying what the Law com­mandeth, he remaineth not bound de­bito supplic [...]i, to suffer that which the Law denounceth. To this twofold debt an [...]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 guil [...]: 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, [Page 27] indirectly, consequently, and ex hypo­thesi, that is to say, supposing the neglect or contempt of du [...]y. The Apo­ [...]tle seemeth to have joyned both these obligations together, in Rom. 13. where he sp [...]aks of the subjection due unto the Soveraign power, Y [...] must needs (saith he) be subject not only for wrath, but also for conscrence sake: from which words I gather three things of concernment to my present intention. The first is, that we may be bound by a double bond to the performance of one and the same thing; by the bond of duty, and the bond of punishment; for this is implyed in the words of conscience and wrath. The second, that the con­science of duty ought with all good men to be valued, and preferred before the fear of punishment. The third, that the obligation of conscience ari­seth preciselv out of the debt of duty. Whence also it is manifest, that we, when we speak of the obligation of oathes, as it concerneth conscience, are primarily and especially to be understood of the obligation which bindes us to the per­formance of Duty, not of that whereby we are bound to suffer the punishment due unto perjury.

SECT. XIII.

THese two distinctions of Obligati­ons laid, it is furth rmore to be understood, that every oath is in its own nature binding: in [...]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. Cicer [...] 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 b [...]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 [Page 29] 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 con [...]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 [Page 30] 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 mo [...] 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 [Page 31] 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 [Page 32] 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 o [...]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 [Page 35] 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 otherwise not unlearned, to become t [...]e more foolish, who whilest following Thomas, and Scotus, and many more, he compiled Commentaries upon the four books of Sentences, growing weary forsooth, of the termes used in the Schooles, as lesse Ciceronian; for Church (Flowers of Rhetorick!) chose rather to say Senate; for Ecclesiasticall Lawes, Senate-decrees, for predestination presig­nation, for ordination of Priests, initiation, for Angell Genius, for Bishop flamen, and the like, being all to besprinkled over with such kinde of powder. Of this disease also I finde Cardinal Peter Bembo, and Sebastian Castalian, somewhat [...]ick with others, but those few and more moderately. We will not, we may not be so elegant. An Oratour deserveth pardon, nay ought to be praised, when he is industrious in the choice of his words, if he speak not only aptly and clearly, but also with purity, and or­nament, it is his vertue; who some­times mis-becometh not his flowry [Page 36] Chaplet, and embroidery. But a Phi­losopher, or Divine, especially in Schola­stick Meditations, and knots of contro­versie, becomes a curious and adorned st [...]le, as the laborious Oxe would em­bossed Trappings. The materials up­on which we labour, being contented only to be taught, neither requireth ornament, nor will endure it. To be conversant in the Pulpit and in the School is not the same: and it is another thing to have a large field where the fluency of speech may finde room, and nourish­ment, and to be entangled in bryers, from which by any means to redeem a mans self without bloud and wounds is a great triumph. But why do I trouble my self with these things? If I use such words and expressions as are usuall in this kinde of discourse, as I must neces­sarily doe; I am lesse doubtfull of your excuse in that, then fear [...]ull that the prolixity of my excuse it self, may stand in need of another pardon: wherefore I leave Oratory, and hast to my Hypo­theses.

SECT. II.

OF which let this be first, Simplicity above all things becometh an Oath. That is to say, such is the nature, and obli­gation of an oath, as whosoever bin­deth himself to the performance of any thing by so sacred a bond, is wholly bound by the religion of his oath, both in his minde seriously to intend, and as far as lieth in his power, willingly to endevour, that he may faithfully per­form whatsoever he hath promised, without fraud, deceipt, double dealing, or simulation. Cicero, as in most things of this kinde, is right in this; What promise soever thou shalt expresly make as in the presence of God, is to be sto [...]d unto. He who shall do otherwise, being carelesse of the reall performance of that where­unto he is obliged by an oath, is judged here by Moses, to have broken his word, that is, basely and unworthily to have violated a sacred thing, and such an one as ought not rashly to be profaned, and to be guilty of evident or dissem­bled perjury. For seeing that there be three sorts of perjury, whereof the [Page 38] first is almost peculiar unto Assertory Oathes, viz. when a man swears that to be true which he either beleeves to be false, or doubteth at the least whether it be true or no; the other two apper­tain unto the Promissory, to wit, the second, when a man promiseth that by an oath, which he meaneth not to per­forme; and the third, when he ende­voureth not to perform that which he promised and intended: as to the guilt of perjury, especially at the Bar of Conscience, it matters not much, which way any of the three be commit­ted, openly or covertly; that being a symptome of a profane, this of a deceit­full heart; both which, except fraud be worthy of a greater hatred, are equally abo­minable unto the most holy God, who loveth the single in heart, and truth in the Psal. 56. 6. Psal. 12. 5. inward man. But such as turn aside unto their crooked waies, that is, Hypocrites and deceitfull persons, the Lord shall lead them forth with the workers of iniquity, that is, ac­count of them no better then of such as are openly profant and impious.

SECT. III.

UNto this simplicity of Oathes, two kindes of simulation are repugnant: one a parte ante, either preceding or ac­companying the act of swearing; the other a parte post, or following the act: of which, though the former be worst, neither is void of perjury. David see­meth to comprehend both in di [...]tinct, but parallel places, viz. Psal. 15. and Psal. 24. In one of which to the question, Who shall ascend into the Hill of the Lord? Amongst other things, he maketh this answer, He that hath not sworn deceitfully, that is, who did not swear with an in­tention to deceive: where all simulation a parte ante, to wit, about the tim [...], and in the act of swearing, is excluded. In the other two a like question, Who shall abide in thy holy tabernacle? Amongst other things, he returns an answer not much different from the former, He that sweareth to his own hurt, and changeth not; that is, who after he had obliged him­self by an oath, had rather perform that, though to his great losse which he hath inconveniently sworn, then violate his [Page 40] faith for any worldly profit; where all simulation a parte post is excluded. These things seem to me, either not at all to be thought upon, or not seriously by most men of these times, who unto all, (be it what it will) that is proposed by such as are able to hurt, fear not with­out difficulty to make a full, and for­mall oath; nay rather think themselves only wise, and not without some con­tempt, deride the simplicity, and vain fears of others, who that they may not hurt their consciences, seek a knot for­sooth in a bul-rush, and ravell into the forms prescribed by such as can pre­scribe. In the mean while they rest se­cure absolving themselves from all guilt, and fear of perjury; and think they have excellently provided for themselves and consciences, if during the act of swearing they can make any shift to defend themselves, either as the Jesuites doe with some equivocation, or mentall reservation; or by forcing upon the words some subtle, and unna­turall interpretation; or after they have sworne they can finde some loop-hole or artificiall evasion, whereby such art may be us [...]d with the oath, that the [Page 41] words remaining, the sense may be elu­ded with some sophisme, and the strength utterly lost. The ancient Chri­stians did not acknowledge this kinde of Theologie; nor the sounder Heathens this morall Philosophy. Far otherwise out of those Augustine said, they are perjured, who preserving the words deceive the expe­ctation of them to whom they have sworn. And out of these otherwise Cicero, Whatsoe­ver is so sworn, as the minde of him who took the oath may conceive, what ought to be per­formed, that is to be stood unto.

SECT. IV.

BUt that I may not seem to declaim or contend with authority only, I will prove by some reasons, that Perju­ry is not taken away by either kinde of simulation. The first reason. Of those many places of Scripture, out of which singlenesse of heart, as in all divine wor­ship, so in the duties of our lives, espe­cially in contracts, promises, vowes, and oathes is enjoyned. The present text, that I may omit others, requireth of him who taketh an oath in expresse termes, that he do according to all that [Page 42] proceedeth out of his mouth. Ut om­nino faciat, that is, that both at that time he faithfully intend to do, and af­terwards to his power faithfully ende­vour to do according to all that proceedeth out of his mouth, that is, according to the sense which the words by him ut­tered, after the common and received manner of speech, bear in the under­standing of the Auditors, and not ac­cording to that sense which he perhaps during the act of swearing in his se­cret thoughts reserveth unto himself, and fraudulently intendeth. Where­unto that agreeth which is brought out of Isidorus, With what artifice of words soever a man swear, God who is witnesse of his conscience, taketh the same as he under­standeth it, to whom the oath is made: and not according to the sense which the party sworne, when he begins to repent of the fact, goeth about to invent for fashion sake, as they speak; not fully and sincerely to perform the faith of his oath, as he ought, but that he may after a sort appear unto himself and others to have performed his duty, and with this arti­fice very warily, and providently to [...]ave avoided the crime of perjury.

SECT. V.

THE second Reason is drawn from the example of God himself, who as the Apostle writes, Heb. 6. for this very cause confirmed his promises made unto the faithfull by an oath, that he might witnesse unto them more abun­dantly, that is, as fully as could possi­bly be, and so as might leave no place to doubt, the immutability of his counsels in fulfilling of that which he had sworn to perform: and all this, to the end that they who should beleeve might have a strong consolation, and firm trust in him; which neverthelesse they could not have, if it were not impossible for God to lie, or deceive them to whom he had sworn by frustrating their expecta­tion. But he would deceive and fru­strate the hope and consolation in him of beleevers, if either whilest he sware, he intended not to doe a [...] he promised, or afterwards changing his minde, should no [...] perform i [...] in due time, nor after the same sense in which his pro­mises were by th [...]m according to the tenor of the words rightly under­stood. [Page 44] The Lord hath sworn, and will not Psal. 110. 4. Psal. 132. 11. repent. The Lord hath sworn in truth unto David, he will not turn from it.

SECT. VI.

THE third Reason from the nature of truth, which is first and chief of those three celebrated conditions of an oath extant in the Prophet Jeremy, incul­cated Jer. 4. 2. by all, and called by the School­men, the three companions of an oath; viz. Truth, Judgement, Justice. To which Truth is repugnant, not only that which is false, but that also which is feigned; not no­ly a bare and evident lie, but a cove­red one also, howsoever palliated. Certainly whosoever speaketh falsly un­to his neighbour, polluteth his speech with a lie: and he hath spoken falsly un­to his neighbour, who hath been the oc­casion of deceiving his neighbour of that hope which he had rationally con­ceived from his speech. Since there­fore by simulation of either kinde a Lie is not avoided, if through our fault our neighbour trusting to our words be deceived, surely neither is Perjury [...]rcided, if through our fault he be de­ceived, [Page 45] by trusting unto our oathes; seeing that Perjury is nothing else but a lie confirmed by an oath. So that Per­jury after an oath taken is the very same, that a Lie is in a bare promise.

SECT. VII.

THE fourth Reason, from the proper end of an Oath: which by that hath been said when we explained the definition of an oath, appeared to be confirmation of a thing in doubt; that is, that as great certainty may be had of things otherwise incertain and depen­ding upon the truth of men, as is possi­ble to be had in humane affairs. For an oath is instituted of God by the light of nature for a remedy of humane defects in the search of truth, that it might be the last mortal refuge for the defence of Verity, when all other kindes of proof are deficient. But this end would be utterly overthrown, nor could any certain credit be given to men, if it were lawfull for the party swearing at his pleasure, so to enervate that which he verbally pronounceth to the end to obtain belief, either by [Page 46] any tacite ambiguity in swearing, or after the oath taken, by any new in­vented and as it were posthume inter­pretation, that it lose its whole force, and become altogether ineffectuall. If either of these were lawfull, an oath would not be the end of all contradiction, but the beginning, and rather give oc­casion of new strifes, and contradicti­ons, then determine old ones. This door once opened, what can be imagi­ned so false, for the defence whereof some kinde of at least diversion or sub­terfuge might not be found out, where­by it might be delivered from the lie? In the mean time how great a perversi­ty is this, that what the wise God hath ordained for an aide of truth, should by impious man be turned into an instru­ment of falshood? Verily unlesse men had rather use the sacred ordinance of God to other ends, then that for which it was ordained (as a pious man can hardly doe) that which is the end of an oath ought likewise to be his end who taketh an oath; now that is to give such assurance unto the hearer, that he may become more secure, and certain of the truth of a matter which [Page 47] was before in doubt. But he who dis­sembleth, goes about to possesse the auditors with a false belief, and so not only suffereth others to be deceived, (which nevertheless seeing it might and ought to be hindred is against Charity) but intendeth also to deceive them, which besides that it is against all justice and honesty, is joyned with high indigni­ty to God, and contempt of his holy name. And to my understanding, scarce any kinde of perjury seemeth to be more diametrically opposed to the scope of the third precept in the Decalogue, or to those very words, Thou shalt not take the name of the Lord thy God in vain, then that which ariseth out of this si­mulation. For the word Vanity, to speak properly and adequately, as it taketh in all that is any way false, so in a kinde of peculiar manner, and most properly, it signifieth that which is false in such a manner, as beareth some shew of truth; so that if a man would expresse by a definition, the nature and essence of Vanity, (though it be ens rat [...]onis only, and hath no true essence) yet by analogie with ens reale, he could not do it better, then by framing an Idea [Page 48] his imagination compounded of Nothing as the Matter, and of a Lie as the Form. Thus Hope which feeds it self with a lie, and is at the length frustrated, and brought to nothing, is Vain hope. And to the present point, he who promiseth any thing to come certainly to passe, taketh the name of God for the confir­mation of truth, which neverthelesse comes all to nothing, that either not intended or not performed which he promised; the same directly, and to the letter, taketh the name of God in vain, vio­lateth Gods Commandement, and is guilty of the hainous crime of perjury. And thus you have a sufficient con­firmation of the first Hypothesis, concer­ning the Simplicity of oathes.

SECT. VIII.

THE second followes, which is of kin to this, and appertaineth to the right interpretation of an oath; briefly it is this, The obligation of an oath is stricti juris. I understand here jus stri­ctum, not in that sense wherein it oc­curreth so often amongst Lawyers, for the rigour of the Law, which is opposed to [Page 49] equity, to wit, by which judgement is tur­ned Amos 6. 12. into wormwood, and which is for the most part so interwoven with injury, that it is almost become a proverb, Sum­mum jus, summa injuria. But somewhat more mildly for so just an interpretati­on of the Law, and so circumscribed to her bounds, that the words of the Law be not stretched farther then is fit by way of complacence or favour to any party; or forced to serve any mans turn or profit. In a word, strictum jus is here so taken, as may not exclude the interpretation of Law, tempered with equity; but excludeth the interpreta­tion of the Law corrupted with favour. Now seeing to interpret, is nothing else but to expound a thing wherein there lyeth some ambiguity or obscurity; it is to be understood, that a threefold in­terpretation or exposition may be gi­ven of the same thing. Rigid, Favou­rable, Just; Rigid and favourable are the extremes: and, as most extremes be, vi­cious. And as there is for the most part a certain coincidence of extremes, but so unhappy an one, seeing they re­cede both waies from the medium, that they ever meet in that which is ill; [Page 50] and for the most part in that which i [...] worst; too rigid and too favourable an in­terpretation of the Law meet in this, that each of them by an unjust accepta­tion of persons, offereth in a manner violence unto the Law, wracking it with too subtle an exposition to the ease of one party, and grievance of the other; but with this difference, that he who is animated with hatred to the par­ties, presseth the more rigid interpreta­tion; and he who is led with affection, followeth the more favourable. But a mean between both, and just interpreta­tion, is that which without respect of persons investigate [...]h the true and ge­nuine sense of the Law, out of naturall equity and justice, and the words them­selves, as far as they agree with equity and justice. And this, if out of the words it may sufficiently appear, is in all cases exactly to be followed. But because it may happen, and often hap­peneth, that controversies arise about the proper and naturall sense of Lawes, and other matters which need interpre­tations; where for the dubiousnesse of the thing a just interpretation is not to be had, of necessity we must allow unto [Page 51] this mediocrity (as I may call it) her prudentiall Latitude. As the Ethicks say that the mediocrity of vertue con­sisteth not in an indivisible point, or Arithmeticall proportion, but in a Geometricall. In a Law therefore which is doubtfull, now a stricter, now a mil­der interpretation according to the na­ture of the thing in question, suppli­eth the place of a just interpretation: whereof the strict, being remoter from the favourable, comes nearer to the rigid; and the milde being nearer to the favourable, declines the more from the rigid. As in the Morals, that vertue which is the mean between Covetousnes, and Prodigality, the more remote it be from either extreme is called Liberality, or Frugality. There are therefore some things so ordained by nature, that they require as due, the allowance of a mil­der interpretation, to wit, such an one, as may not be bound up in the straight­nesse of words, but left more at liberty (to use Cicero's term) cum quodam laxa­mento: such for example is res testamen­taria in our Law. So by the rule of charity, the words and deeds of others, especially of Princes, Parents, and other [Page 52] rulers, the writings also of pious, and learned men (unlesse there lie very just cause of suspicion to the contrary) are to be handled with a milde interpreta­tion, according to the usuall saying, Doubtfull things are to be interpreted in the better sense. But there are di­vers other matters, as Priviledges, Deeds of contracts about debt, and most of those things which binde legally, and amongst them Oathes: in which when question is made of the true sense, it is much better, and more sutable unto the na­ture of the thing to use the stricter, then the milder interpretation.

S [...]CT. IX.

WHen I say therefore that an oath is stricti juris, that must be thus understood, the sense of an oath where it is sufficiently manifest in the words, is exactly to be stood unto: but where the sense is doubtfull, we must take di­ligent heed, lest we be too indulgent un­to our selves and our own affections, or yeeld unto our selves too free, and loose a license of interpretation, whereby we may become exempt from the bond of [Page 53] the oath in which we are bound; as also that for our own interest, and pro­fit sake, we impose not upon the oath which we have taken, or any part thereof, other sense then that which any other pious and prudent man (who be­ing unconcerned in the businesse, is of a [...]freer judgement) may easily gather out of the words themselves. The reason is twofold: one in respect of others, to wit, for the fear of scandall, lest a wea­ker brother led by our example, think it lawfull for him to do as he seeth we have done, though he be ignorant of those subtilties, by which alone we use to absolve our selv [...]s from the crime of perjury. Another in respect of our selves, for fear of perjury; of which hainous crime we become without question guilty, if that milder interpretation which encouraged us unto the oath, chance to deceive us. And this r [...]ason is founded upon the most generall, and profitable rule, which in doubtfull matters commands the choice of the safer part. But where the words of the oath proposed according to the common and obvious sense of them, seem to contain some un­lawfull thing, it is safer not to swear, [Page 54] then by a looser interpretation so to work them unto our sense, that we may more securely swear unto them; it be­ing apparent that this kinde of oath may be refused without danger of per­jury, but not apparent that it may be taken without fear or danger of the same.

SECT. X.

NEverthelesse heed is to be taken on the other side, lest this strict inter­pretation whereof we speak degenerate into the rigid one. For that which the Lawyers say of Priviledges, holds general­ly in things of like nature, and especi­ally in Oathes, that they are neither too strictly, 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, [Page 55] 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 oblig [...]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 m [...]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 [Page 56] 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 per [...] 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 [Page 57] 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 [Page 58] 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 i [...] 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 [Page 59] 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 speci [...]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 o [...] ­fered unto any man containing any thing repugnant unto a former obli­gation, whether naturall, or acquisite, a [...] 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, [Page 61] 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 [Page 62] 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 swor [...], thou wast then perjured when thou [Page 63] 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 [Page 64] 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.
  • [Page 64] 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 va [...]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 no [...] 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 [Page 65] 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 [...]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, whether it be considered as to be sworn, or as sworn. Of a thing to be sworn, the question is, whether it be lawfull to swear after this or that manner? Of a thing sworn, the matter being stated, whether the conscience be, and how far it is obliged by the oath? be it lawfull or unlawfull; (for obligation may arise from an un­lawfull Act) And this question only is proper to our purpose; Neverthelesse I shall often cursorily expresse, at the least where I finde that the same pot may whiten either wall, what I think of the other question also, especially since by intimation of my friends, I understand it is expected by some, and will be acceptable unto the most of you. The matter therefore of an oath, (that I may return to the businesse) is either definite or indefinite. That which is certain and definite, may be considered according unto its esse natu­rale, or existence; to wit, whether it [Page 67] be a thing possible to be performed or impossible; or according to its esse mo­rale, or quality; to wit, whether it be a thing necessary, unlawfull, or indif­ferent?

SECT. III.

THe first doubt is, what obligation there is in an oath, containing an impossible thing: that is, if a man should swear to do a thing which he is not able to do, whether he be, and how far he is obliged thereunto. The Cases which occur in this doubt, are espe­cially three. First, where the thing to be sworn was from the beginning, and during the act of swearing, evidently and simply impossible, either by impossibility of nature, when the thing in it self, and barely considered without respect un­to circumstance, implyeth a manifest contradiction, or is repugnant unto the nature of any species of ens, as if a man should promise to teach an Asse to speak. Or impossibility of fact, Cum res est in potentia (as they speak) remo­ta ad fieri; that is, when there is no such repugnance in the nature o [...] the [Page 68] thing it self, but it might be done, yet through defect in some circumstance, (for example) too great distance of place, straightnesse of time, or any other cause, that potentia is so hindred that it cannot proceed unto act: as if Caius being this day present at Oxford, should promise to sup with Titius to morrow at Paris. Or lastly, impossibi­lity of Law; when a man undertaketh to do any thing which is forbidden him by the Law, and whereunto he hath no legitimate power: as if Caius not being heir, should promise to give unto Julius some proportion of the goods of Titius deceased. In answer to the doubt in this first case, I say briefly, An oath of a thing simply impossible, is neither lawfull nor obligatory. It is not lawfull, because it is void both of judgement, and truth: for what man of sound judgement, or of good credit, can intend to do, that which he know­eth impossible to be done? Neither doth it oblige, no not so far as to endevour, much lesse to perform; For it hath been already said that an impossible thing, (quatenus impossibilis) obligeth not; and it is foolish to endevour that which thou canst not effect.

SECT. IV.

THe second Case is, when a thing in it self not impossible, yet during the time of the oath given seeming so im­possible, that it is much more likely not to be, then to be possible afterwards to be performed, becometh at length by some interposed obstacle impossible; for where the concourse of many things is so necessarily required to the perfe­cting of any design, that one of many being wanting, the rest must necessarily be frustrated (as if a wheele or pin, though a small one, should be taken out of a watch, the rest of the fabrick would be uselesse) it can hardly hap­pen but the pains taken in such a bu­sinesse, must needs be fruitlesse: For example, if Caius should undertake by his industry to procure unto Titius a new, and obscure man the Consulship, at the next Commitia, and to carry it against Competitors for birth, glory, vertue, authority, the most renowned of all the City. I answer, that such an oath is not lawfull, without the expresse addition of some clause; as, If I can, As far [Page 70] as lyeth in my power, &c. If you shall say, it were needlesse to adde a clause which de lege communi ought to be presupposed. I answer, by the interpretation of the Law, such clauses are presupposed, where it may be presumed the party swearing could not foresee any thing which might be an impediment unto the performance of his promise: but where that cannot, but rather the contrary may be presumed; to wit, that he could not but foresee many impediments, there so milde an interpretation is not granted de jure communi. Neverthelesse this kinde of oath obl [...]g [...]th, not to per­formance, which we suppose to be impos­sible, but to endevour so long as there is hope though small, that it may be possible: yea and the more the difficul­ties be, and the greater their resistance, the more industriously to persist, and persevere with the more undaunted courage. But if the thing be over ap­parently desperate, and manifestly im­possible, the obligation ceaseth, from the ground expressed, that no man is obliged unto an imp [...]ssibility.

SECT. V.

THe third case is, when the party swearing verily, beleeving the thing probable, and faithfully inten­ding to do it, doubteth not (by Gods help) but he shall be able to make good his words; neverthelesse afterwards by some emergent, and unexpected ac­cident, which could not by any hu­mane reason be foreseen or prevented, findes the matter at the length become impossible. As if Callias dwelling at Thebes, having sworn to pay unto So­crates at Athens five talents at a day ap­pointed, should lose the money which he had carefully provided, by theft, rapine, or cousenage, or should be taken prisoner upon the way, so that he were not able to make payment of the debt in due time. Such an oath is lawfull, though the clause, (If I can) be not added, the same being to be understood of course, and by the common inter­pretation of the Law. In which re­gard this seemeth unto me good reason of difference between this Case, and that which preceded. Seeing that the [Page 72] faith of promise, be given unto the party unto whom we swear, is the end of an oath; it is expedient that so much as seemeth sufficiently conducing there­unto, be fully expressed, during the act of swearing, that so our credit may be the more ratified unto the party; but that so much on the other side be concealed, as might render our credit the more suspected. For as in an im­probable matter the party swearing would not easily be credited, but thought a forward, rash and too con­fident man, if without exception or expression of difficulty he should barely promise performance of a thing full of uncertainty: so on the other side, an exception added where there is no ap­pearance of danger [...] might render the party swearing suspected; and shew as if he sought nothing else by so im­pertinent diligence; but a shift or sub­ [...]erfuge for the violation of his faith. Now this kinde of oath obligeth the par­ty swearing, if he cannot make all good, to make good all he can; and if great da­mage happen unto the other through non-performance of his oath, to apply a rem [...]dy to it, at the least in part, by [Page 73] 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 contro­ver [...]ie; for unto those things where­unto [Page 74] 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 [Page 75] 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 [...]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 [Page 76] 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 [Page 77] 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 [Page 78] 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 [Page 79] 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 enjoyne [...]h obedience unto rules, in all lawfull and honest things; It is also in the same degree very near, and upon the same g [...]ound unlawfull for such as execute any Office, Function, or particular Calling, as we usually tearm it, though perhaps im­properly that state or condition of life wherein a man is placed to do any thing incongruous with the nature or rule of that function or calling. For a thing may be lawful to a Civill Magistrate, which is not to a Minister of the Gospel, and so on the contrary that may be lawfull to the Merchant, which is not to the Husbandman, that to the Master which is not to the servant, that to the married man, which is not to the batchelour, and the like; God having generally given them this Law, that every of them faithfully perform the duties of his cal­ling, and modestly contain himselfe [Page 80] within the bounds thereof. If therefore an English Merchant should swear to send Wooll to Hamburgh, or any other mer­chandise prohibited by law to be trans­ported out of this Realm; or if any Magist [...]ate should swear that he would not punish theft, or adultery; or a Bi­shop or Presbyt [...]r, n [...]ver to preach nor administer the Sacraments; or an Hi [...]de not to obey his Master, commanding him to yoak his Oxen or reap his Corn; whereof the first is repugnant unto the Laws of the Kingdom, the r [...]st unto the conditions of pr [...]per vocations: All these oaths would be of a thing in that degree whereof I have spoken unlawfull; and the oaths themselves for that reason unlawfull, and would not ordinarily oblige. I say not ordinarily, because there may perhaps be cases in which an oath that seemeth repugnant unto some Law of Community or Vocation, though it ought not to be taken, may nevertheless being once taken become obligatory. For example, in the penall Law disjunctive; suppose this to be the Law of the City, No Citizen thereunto elected shall refuse the office of Pretor; if he do, he shall be fined an hu [...]dred Crowns. Caius a Citizen thinking [Page 81] himself unfit to bear office, or to avoid some inconvenience, that might happen unto him from thence, sweareth that he will never be Pretor of the City; he is chosen by the Citizens, he excuseth him­self by his oath, they regard not his oath, but urge him to accept of the Ma­gistracy; What is the Law in this case at the bar of Conscience? I answer, he ought not to have sworn, especially not compelled thereunto by any necessity; for he might have refused though he had not sworn. Nevertheless having sworn, he seemeth to be obliged, and not be in a condition without perjury to comply with the desire of the Citizens: he is bound therefore to pay the fine, and to refuse the P [...]etorship. I would be under­stood precisely, in respect unto the point to which I now speak, viz. the matter of the oath, and also precisely, in respect to the repugnants thereof unto the law of the City: For in respect of the ends or cause, nay even in respect of the mat­ter it self, as it is an hinderance of a greater publique good, or for some other consideration, there may be just reason in it to make the obligation void. Ne­vertheless ordinarily, as I have said, an [Page 82] oath made against the Law of an whole Community, or of a particular Vocation, ob­ligeth not. And thus much be said of the things in themselves unlawfull.

SECT. X.

THe things which are not unlawfull ex se, yet are unlawfull ex accidente, follow. Now a lawfull thing happeneth to become unlawful, either by the er­ror of the party swearing, or by some ill effect of the thing sworn. Wherefore the third case is, where a man promiseth by oath performance of a thing perhaps lawfull in it self, which nevertheless he believeth to be unlawfull, or feareth not to be lawfull; as if a man (before these times) upon his admission to a Benefice (as they call it) Ecclesiasticall, should have promised to observe all the rites commanded by Ecclesiasticall Law in publique Service, as the Surplice, sign of the Cross at the Font, kneeling at the Sacrament of the Lords Supper, and the like; which he nevertheless through some light prejudice, thought to be superstitious and papisticall; What is the obligation in this case? I [Page 83] give you three things by way of answer. First, I say, that such an oath, during such an error cannot be taken without great sin: for he sinneth grievously, who sinneth against his Conscience though erroneous; the judgement of the un­derstanding, being unto every man the first rule of working, if the will follow not that judgement, swerving from the rule it must necessarily be carried into obliquity. It is an old saying, He who goeth against his own conscience, is on his way to Hell. Certainly he who sweareth unto that which he thinketh to be un­lawfull, had sworn unto it, though it had been really unlawfull; and so the thing though lawfull to another, is as to him unlawfull. It is the Apostles sentence, Rom. 14. 14. where he distin­guisheth between that which is unclean of it self, and that which is unclean to another, plainly teaching that that thing which is not unclean, nor unlawfull of it self, may nevertheless be unclean, and un­lawfull unto him who esteemeth it to be unclean, or unlawfull. Secondly, I say, that such an oath obligeth not: the reason is manifest by the third hypothesis; for an oath cannot take away a former [Page 84] obligation, nor introduce an obligati­on contrary unto it. But the oath which is taken against the dictate of Consci­ence was preceded by another former obligation arising from that dictate. For the dictate of Conscience, whether right or erroneous, ever bindeth at the least not to act against it. Now a subsequent oath cannot remove this obligation, but becometh rather in­valid it selfe, and loseth all strength and vigour. Thirdly, I say, if the party swearing being afterwards bet­ter informed, acknowledge and cor­rect his error, the oath which at first obliged not, beginneth from thence forth to oblige; for the power of obligation is as it were naturally and inseparably in an oath, as the power of moving downwards is naturally and inseparably in a stone, which power is always ready to put forth it self, and to proceed unto act, except it be hinder­ed by some impediment: Wherefore as a stone that it may move again, after it hath rested a while, needeth not any o­ther new power to be derived unto it from without, but of its own nature, the obstacle being removed presently [Page 85] descends: so an oath, that obligation of erroneous Conscience, which at first withstood its operation, being removed, without any delay, or need of other help, is of its own force obligatory.

SECT. XI.

THere are other cases concerning things unlawfull by accident, in respect of the evill effect of the same; to wit, as they may be impeditive of good, or cau­sative, or at the least (for we mast use such words) occasionative of evill. A good thing impeded may be antecedent or fu­ture. The fourth case therefore is, where the thing sworn seemeth to be unlawful in that it hindereth the performance of some antecedent good: of a vow ima­gine, or of a promise first made: as i [...] he who had first bound himself with a vow to some work of piety or charity, should afterwards take an oath which might hinder the performance of his former vow. For example, if bound by a vow to give weekly the half of his gain to the poor, he afterwards swear to contribute his whole gain to the use of war; or as if Caius having promised to [Page 86] sell his land to Titius at a certain price, should afterward swear to se [...]l it unto Julius at a greater rate. Th [...]s case hath no difficulty, for it is clearly answered, and the answer is founded upon the third Hypothesis, That such an oath is neither lawfull, nor obligatory; because that former obligation however con­tracted, whether by agreement, or by vow, or by bare promise, or by meer du­ty remaineth valid, and putteth a bar upon all subsequent acts to the con­trary.

SECT. XII.

THe fifth case is, when that which is sworn seemeth impeditive of some fu­ture good, as if one should swear that he would never be surety for another, nor a Minister of the Gospel, being of parts very fit for that calling; or having the sole knowledg of some useful Art, never to discover it unto any man; or the like. The reason of the doubt [...]s, that the lesser good, in comparison with the greater good, holdeth in some sort the proportion of ill; wherefore an oath, though otherwise honest, yet if it hin­der [Page 87] a greater good, seemeth to be evill. Of the doubt in this case, no general and certain solution, able to comprehend all particular sorts, can be given, because it is imployed in comparing the greater and lesser good, which depend [...]th very much upon the laying of circumstances, wherein the variety being infinite, all cannot be comprehended under certain and definite rules, but the matter for the greatest part must be left to the arbitra­tion of some prudent person thereupon to determine, as by weighing arguments on both sides, with as much faith and diligence as he can, may at length seem unto him pro hic & nunc most expedient; yet in the mean time seeing it is not simply true (except warily understood) that every man is alway [...]s bound to do that which is best; for solution of the doubt, in this case it may be said that an oath is not unlaw [...]ull, nor loseth its force of obligation precisely, because it hindereth a greater good, unlesse other circumstances also concur (as they u­sually do) which may either prove it unlawfull, or not obligatory. An ex­ample will illustrate the thing: [...] is taught by the inventor Titius, a medi­cine [Page 88] of soveraign vertue or some other excellent art, but upon condition of an oath, That during the life, or without the leave of Titius, Caius shall not dis­cover the same unto any man. The non­communication of so great a secret seemeth to be against the publick good, and yet by the dictate of reason Caius is obliged bona fide to perform what he promised, otherwise injury would be done unto Titius, whom it concerneth, that the secret be not divulged, which without such an oath first taken, had not been communicated unto Caius himself.

SECT. XIII.

IT remains in the next place that we treat of things unlawfull by accident, in as much as they seem to be causative, or at the least occasionative of some evill, and that either to the party swearing, or to others. Wherefore the sixth case is, where the thing sworn is hurtfull to the party swearing, either by bringing upon him certain temporall loss, or by exposing him to the danger of temptation. As if Caius should swear unto Titius the spend­thrift [Page 89] to lend him an hundred Crowns, never a thousand to one to be repaid, which, would be to his loss; or if Fa­bius at the request of his wife made up­on her death bed to defend her children from a step-mother, should binde him­selfe by oath from second marriage, whereby perhaps he might expose him­self to the danger of burning. I answer first, that this kinde of promise is not rashly, or without mature deliberation to be made, nor except there be weighty reason for it, yet that it is not simply unlawfull: for although all occasion of evill be diligently to be avoided; ne­vertheless seeing nothing which is not in it self, but by some other reason un­lawfull, can necessarily, and universal­ly be an occasion of evill; and seeing there is not any thing simply and in it self unlawfull, only because it may be an occasion of evill; all promises of this kinde ought not simply to be condemned, e­specially if probable danger of any great inconvenience, upon diligent conside­ration appeared not unto the party swearing at the time when he took his oath. Secondly, I say, if the oath turn to the temporall hurt of the party [Page 90] swearing only, without injury to a third person; the party swearing is bound though to his great loss, except the party to whom he hath sworn be willing to release him of his oath. They are the express words, Psal. 15. That sweareth to his own hurt, and changeth not. Where in the Hebrew, the first word is of the preter tense, (juravit in malum) the later of the future (& non mutavit) as if he should have said, It is the duty of a godly man, having sworn unto his neighbour that which he cannot per­form without his own great damage, to be constant nevertheless, and to ratifie that which he hath promised, and (as it is in our Text) to doe according unto all that proceeded out of his mouth. Thirdly, I say, the oath obligeth, though it exposeth unto hazard of temptation, except it be otherwise vicious. Because if that might suffice to make an obligation void, there would hardly remain any thing that might oblige, seeing through the cunning of th [...] Devill and corrupti­on of the heart of man there is nothing so free from danger of evill, but it may become unto our destruction (except we be protected through the mercy of [Page 91] God) a snare of temptation: yet through the assistance of Divine grace, this ob­ligation should rather be an usefull buckler against the darts of the Temp­ter, for as much as thou art engaged to yeeld the lesse, and strive the more, be­cause thou art bound by the Religion of an oath, not to doe that whereunto thou art tempted.

SECT. XIV.

THe seventh case is, where the thing sworn seemeth unlawfull in re­spect of the danger of scandal, which might thereby be given unto others, we through our fact affording them occa­sion of ruine. Many warnings, and those very heavy ones to avoid scandall, are extant in the Epistles of St. Paul, that especially to the Rom. 14. & 1 Cor. 8. 10. And verily a good Christian ought to take most diligent heed in all his conversation, not only to preserve his own, but not to offend anothers Conscience, not only to seek his own, but the convenience of many, and to consider as well what is expedient for them as lawfull for himself, lest other­wise [Page 92] he abuse his liberty to the destru­ction of his brother. But how far law­full things ought to be forborn that scandal may be avoided, is neither in few words to be said, nor the business of this present discourse. All that seemeth fit to be said of it in this place is, that the danger of scandall only, if there be no other reason why the thing should be thought unlawfull, is not sufficient to hinder the obligation of an oath taken, as hath been said in the pre­cedent case of the danger of tentation, seeing that either holdeth in all points the same proportion.

SECT. XV.

HAving now weighed the chief cases of things impossible, necessary, and unlawfull, I proceed to the rest of the other doubts. The fourth doubt is of an oath rei liberae; that is to say, of a thing which is neither necessary, nor unlaw­full, but in the mean and indifferent. In which indifference seeing it ariseth from a twofold cause, from the will of the Legislator neither commanding nor forbidding; and from the levity of the [Page 93] thing; two cases answerably occur. The first case is, when a thing is not by any precept, or interdict Divine or humane legitimate so detrrmined, but every man prohic & nunc, according to the exigence of circumstances, may at his choyce doe or not doe as he seeth expedient; Let him doe what he will, he sinneth not, 1 Cor. 7. 36. As if Caius should swear to sell his land to Titius, or to lend him an hundred Crowns; The answer is brief, an oath in this case is both lawfull and binding. The second case is, where a thing is so triviall, that it is not worth the deliberation of a wise man, nor matters a straw whether it be done or not done, as to reach up a chip, or to rub ones bearb, &c. or for the slightness of the matter is not much to be [...]steemed; as to give a boy an ap­ple, or to lend a pin, &c. An oath of a thing indifferent after this manner is altogether unlawfull. For it argues ei­ther irreverence of the name of God, (if through an habit of swearing, as it is too common) it be used unawares; or if wittingly and knowingly, of open contempt; for God is not to be invoked witness, except in doubts worthy his [Page 94] vindication, and where the cause is as­well weighty as just. And in this all agree. But what of the obligation? It is the opinion indeed of most Romish Casuists, that an oa [...]h or a sinall and tri­viall thing is in the natu [...]e thereof nul, and bindeth not, because forsooth a small matter is not proportionable to an oath, and Lex non [...]ur at de minimis But I wonder they who w [...]uld be thought to see into other things like Lynx, should be blind in one so appa [...]ent, except it be done to give place unto that rotten di­stinction of mortall, and ven all sins, a Iea­ven with Wch they have [...]oully corrup­ted the whole lump of mo [...]al Theology. But that an oath is binding in a matter of the least moment is evident; First, be­cause weighty, and trivial things have a like respect unto truth and falsehood. Secondly, because in the assertory oath, he who affirms otherwise of the thing (be it never so small) then it is, is per­jured; wherefore a simili, he also in the promissory, who doth otherwise then he sweared to do. Thirdly, because God would else be made witnes of falsehood. Fourthly, because every party swear­ing is bound to perform all he promised [Page 95] as far as he is able, and it is lawful: but to give an apple to a boy is both possi­ble and lawfull; he is bound therefore to perform it, he ought not so to have sworn, but having sworn he ought to fulfill his oath.

SECT. XVI.

THe fifth doubt remaineth, where we swear unto a thing indefinite and uncertain; and it containeth three cases especially. The first case is, when one man delivereth himself as it it were in­to the power of another, promising to perform whatsoever the other will im­pose upon him; as when a Prince swears unto his favorite, to give him in ac­knowledgement of his faithfull service whatsoever he shall desire; or a friend, or servant, swears unto his friend or master to obey what he shall command. In this case I say first, that this kind of oath, if it be simply understood accor­ding to the tenor of the words, is unlaw­ful. He injureth God, whose servant every man is, who maketh himself a servant to man and slave to anothers rashnesse. Se­condly, I say, that something else must [Page 96] necessarily be understood to make it lawfull. For example, I swear to doe as you will have me, meaning whatso­ever is just, honest, possible; and so far, and in this sense it obligeth. The Kings of the Persians and Jews seem antiently to have used this, as a solemn form, and for the fuller oftentation of their grace, and magnificence, to have sworn in­definitely; Ask what thou wilt, and it shall be given thee even to the half of my Kingdome; so sware Assuerus King of Persia unto the Queen his wife; and she asking a just and necessary thing, he according to his oath commanded it to be done. But Solomon having promised almost in the same form the Queen his mother to give her what she should ask, and she in favour of Adonia ask­ing a thing, which Solomon already ac­quainted with the ambition of the man thought too unjust, Solomon not­withstanding his oath, fulfilled not the the desire of his mother. By which fact he sufficiently shewed that he sware with no other intention of perform­ance then as the thing asked should be just. By which example he hath taught us, that in oaths indefinitely made un­to [Page 97] the will of others, the condition ever to be understood, is, if the request by the rule of good and honest be mo­destly asked, it is just and reasonable it should be faithfully performed. There is yet a third example of an oath of this form, Matth. 14. where Herod the Tetrarch to favour the Danceresse his brothers daughter, sware to give her what she would ask: she asked a most wicked thing, the head of an in­nocent man, and not condemned, to be cut off, and put in a Charger. The King commanded it to be done for the [...]aths sake, and them which sate at meat with him. For alas! the religious, and the bashfull Prince was ashamed in the presence of so many guests not to ful­fill that, though with most execrable wick [...]dnesse, whereunto he had bound himself by the Sacrament of an oath. Let Herods be an example unto us of warning, but Solomons of imitation: and let us remember that an oath so indefinitely made, is ever to be under­stood with i [...] just exception, and to be extended unto those things only which in probability were thought upon du­ [...]ing the act of swearing, and not [Page 98] unto those which if they had then been thought upon, the oath had not been taken.

SECT. XVII.

THe second case is, when subjects are required to take an oath for pre­servation and defence of Laws and Li­berties, Priviledges, Prerogatives, and preheminences of some superiour pow­er, as of a King, a Commonwealth, or Lord Paramount; such as are 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, [...]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 [Page 99] 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 [Page 100] the whole body or Community. But Secondly, not that alwayes and necessari­ly, to the rigour of the lett [...]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 th [...]m ordinarily; yet so as wi [...]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 futu [...]e, provi­ded they be possible, just, and honest. Fifthly, if any Statute after the oath tak [...]n be abrogat [...]d or grown out of use, the obligation of the oa [...]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 [Page 101] 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 [Page 103] 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 Suc­cess [...]r.
  • 11. Voluntary oaths.
  • [Page 105] 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 [Page 106] 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 deliberate, nor he who is not his own man, but in the power of another, make a stedfast and effectuall promise.

SECT. II.

WHerefore the first doubt is, How far the oath of a person not in­dued with the faculty of judgement, obligeth? Which defect seeing it may arise from divers causes, divers cases are therefore contained under this head. The first is of Children so soon as they attain unto the use of reason, which at what time of their age it may happen is not, nor do I think can be defined, seeing some are sooner, and some later ripe; The Civil Laws of the Romans, and the municipall of most Nations, pitch upon certain years under which they admit not children either to take assertory oaths, or to be compelled un­to promissory: such amongst us is the age of 16. he who is younger, is neither admitted to be a witnesse in judgement, nor required to take the oath of All [...] ­giance, nay if he have taken an oath, it is nul in Law; this is right at the Bar of Justice, not at the Bar of Conscience. Children should be taught from their tender age by their parents, and pu­pils by their Tutors, early to under­stand, [Page 108] and duly weigh the power and efficacy of an Oath, the guilt and punish­ment of perjury, that they may beware the wicked custome of the one, and hor­rid crime of the other. For it can hardly be imagined of what necessary or lawfull use the oathes of children should be, they being both unfit to judge, and not in their own power, un­lesse parents in whose power they are should require it at their hands, for the faith [...]ull performance of some com­mands. As fame reports Han ball, a­bout the ninth year of his age, to have been set by his Father Amilcar before the Altar during the time of Sacrifice, and there bound by oath to be a perpetuall enemy to the Romane name. But oh shame! what is become of Domestick Discipline amongst Christians? Chil­dren scarse able to speak, are heard in every street tearing the sacred and dreadfull name of God with profane lips, and oathes, both without fear, and punishment: seasoned with the a­bominable stench of which vice like new vessels, it will hardly out when the cask becometh aged, and rotten. But I would not be carryed away with the [Page 109] tide of grief, and indignation, I re­turn to the point, and say, that oathes of children before they attain to years (as we call them) of discretion, or know what deceit is, through defect of judge­ment, are neither lawfull, nor obligatory. But so soon as they are capable of de­ceit, and can in some, though small measure understand what the nature, and force of an oath is, which happeneth for the most part [...] about the seventh year of their age, and earlier in many forward wits, or such in whom malice supplyeth age; the oath of a childe, though it be absolutely unlawfull (unlesse that one case, if a parent require it, may be excepted) being taken obligeth, if there be in it no other impediment. The rea­son is, because an act in its own nature obligatory, such as is the act of swear­ing, proceedeth from a minde indued in some sor [...] with the faculty of judg­ing.

SECT. III.

THe second case is, of the oathes of mad men, and the third of fooles: to whom the vice of unseasonable belch­ing [Page 110] forth of oathes, even when they think least upon it, is familiar; which although we may, and God who is most mercifull, and expecteth not an harvest where he sowed not, perhaps will forbear to impute unto them for sin, because it proceedeth from invin­cible error, yet most certain it is of e­very oath, and pronounced by our Sa­viour, that it cometh of evill; from the instigation of the Devill, and common corruption of mans heart, through which all the children of Adam are in­flexible unto good, and wax unto all kinde of wickednesse: to make a doubt whether such oathes be lawfull or un­lawfull, were vain and uselesse. For to weigh whether things be lawfull or unlawfull, belongeth to such only as can in some measure judge, whether done or to be done they agree with their rule the Law of God, and right reason: which Law it were in vain to plead unto such as are destitute of that faculty, and void of understanding; Certainly he who requireth reason of a mad man, is mad with reason. This kinde of oath therefore as much as it is the act of a distracted person, is in [Page 111] no wise binding; except otherwise frantick, he enjoy his reason by lucid intervals; in which case it bindeth no lesse during the time he so enjoyeth the use of his reason, then one made by a man of sound and reposed judge­ment.

SECT. IV.

THe fourth and fifth cases are of oathes made by men who are drunk, or in rage, promising or threatning something, which in sobriety and cool bloud they would not have promised or threatned. The reason of doubt is, that whereas some judgement, at the least of a deli­berate, minde is requisite to make an oath obligatory; Drunkennesse and wrath, which are but short fits of mad­nesse, so perturb the judgement, and for a time take away the use of reason, that till the one have slept, and the o­ther reposed his minde, neither seem­eth much to differ from a mad man. But of these oathes, this in the first place is certain, that neither kinde can be excused of sin, but whether drun­kennesse, or the vehemency of anger [Page 112] aggravate the sin which is the act of swearing, or rather extenuate it, all are not agreed, nor seemeth it possible to answer simply and sufficiently unto this probleme by a single affirmation, seeing judgement in the point depend­eth very much upon circumstances. But be it as it will, the question is not to this purpose. The nature of the doubt sheweth it to be unfit, that a drunken or angry man should swear at all, be­cause during that distemper he cannot swear in judg [...]ment, but must necessarily blab out whatsoever his wine or passion (which are immoderate Counsellors) shall perswade, and which in cool bloud, and sober, he would give any thing were unsaid, or unsworn; neverthelesse we must distinguish of obligation. For first, the thing whereunto he swears, is either unlawfull, or lawfull and ho­nest: If unlawfull, (as it happeneth for the most part, especially in oathes which fall vehemently from angry men blind­ed with eagernesse of revenge) it is evident that they oblige not; for it hath been sufficiently demonstrated that an unlaw [...]ull thing is not obligatory. Wherefore it was p [...]udently advis [...]d [Page 113] of Abigail, and piously followed by David, when animated by the unwor­thy reproach of an ungratefull man he had sworn the destruction of Nabal and his whole family, in that he dispensed with his oath, and withheld his hand from bloud. But if the thing sworn be lawfull, as that often is, which drunk­ards ostentatiously promise, then we must look Secondly, what and how great the excesse of drunkennesse was, whe­ther in a degree to hinder only, or per­turb the use of reason, or utterly to deprive of understanding, 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 [Page 114] 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 [Page 116] 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, b [...]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 Hypothes [...]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 [Page 117] 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 [Page 118] 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 houshold­stuffe, or should contribute their assi­stance to build a neighbors house, or [Page 119] 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 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 sh [...]uld say, if he conceal his dissent [Page 120] 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 oa [...]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, seem [...]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 t [...]ke an oath by him so offered; and if [Page 121] 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 be [...]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 th [...]n oblige himself in an unlawfull bond. Thirdly, [Page 122] he who hath t [...]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 [Page 123] 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 doct [...]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 Chrysost [...]me largely and elegantly explained. Nay in this kinde the faith of Regulu [...] 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. [Page 124] 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 kn [...]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 rede [...]m your land which I have in Mortgage; or at the least ta­cite, as when two oblige themselves by [Page 125] 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 [Page 126] 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 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, [Page 127] to pay his just debts, it being most equall that an estate should passe with the engagements that are upon it. Ne­thelesse the hei [...] 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, [Page 128] 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 [Page 129] 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 [Page 130] 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 vehem [...]ntly reprehended in Sermons, as [Page 131] 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 witnesse [...], 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, a [...] they had contracted: Neverthelesse they found out an expedient, (imposing upon them the condition of servitude in the vilest [Page 133] offices) whereby the Gibeonites migh [...] 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 sl [...]in, rendering this reason of their advice, We have sworn unto them by the Lord God of Israel, now there­f [...]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 [Page 134] 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 accid [...]ntall, taketh not away the obligation, as ap­peared but now in the errour of the Israelites conc [...]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 o [...]thes of the like kinde. But i [...] 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, [Page 135] 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 [Page 136] 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, P [...]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. N [...]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 S [...]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.

S [...]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
Hor. 3. lib. 2. Ode.
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 [Page 138] 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 bou [...]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 [Page 139] 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 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 [Page 140] 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 [...] [Page 141] pari, promises made unto th [...]m ought to be performed. Secondly, though no performance were due unto the thee [...], 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 [Page 142] will ther [...]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 [Page 143] 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 [Page 144] 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 [Page 145] unto the Magistrate, albeit he have sworn to the contrary. It seemeth he is of opinion that the oath is not obli­gatory, but the three reasons he giveth, as he proposeth them, barely, and briefly without further confirmation give me no satisfaction. First, he saith, that this oath is of an unlawfull thing. If so, there is an end, other arguments are needlesse. But this he taketh without proof for granted: If it be thought un­lawfull, because it's the duty of a good Commonwealths man, to give notice of lewd persons unto the Magistrate, that so they may receive condign punish­ment; it is granted, but it doth not therefore follow that it is alwayes sin, not to give notice, seeing the affirma­tive precepts of duty oblige not sim­ply unto the performance of the same, but when we are able, and it is required by the exigence of circumstances. Se­condly, he saith, that such a kinde of oath seemeth to have a certain kinde of Collusion with the theeves, which is pronounced so timerously as sheweth he had not much faith in this argument, [Kinde of Collusion, a certain kinde, and seemeth to have]. Which whether [Page 146] it be true or not, who would under­take to prove, that it is not lawfull for a Traveller, if to the apparent ha­zard of his life, he fall amongst theeves, to doe something which might seeme to have a certain kinde of Collusion with them? That which he bringeth in the third place, the impediment of Justice, encouragement of wicked per­sons in their impiety, occasion of lead­ing others into the like hazard of their lives through such silence, would be prevalent indeed, if the Traveller were gotten out of their hands safe and un­sworn. But we suppose, except he had sworn, he had been slain. I ask there­f [...]re whether in such certain danger of [...]e, was it lawfull for him to swear, or not lawfull? If not lawfull, (and certainly the two first arguments either prove that or nothing) he had perish­ed; and who then should have given the Magistrate information of the theeves? The inconveniencies which are object­ed from this silence, might they not (seeing dead men are enjoyned perpe­tuall silence) be objected from his death? But if it were lawfull to swear, then it is also lawfull to keep the oath, [Page 147] except some emergent accident as it may fall out, unexpectedly do render the thing lawfull when it was sworn after­wards unlawfull. Let this therefore, till the contrary be proved by stronger ar­guments, remain both in this case & the rest, where deceit, fear, tyranny, and the like are exercised; That an honest man either ought not to swear at all, (which if the thing it self be not unlawfull seemeth hard in imminent, and apparent danger) or ought religiously to observe his oath. And thus much for the Effi­cient cause of oathes. In which I was desirous to have been briefer, if the mat­ter would have born it; My discourse hath encreased upon my meditations, beyond what I expected, and yet whilest I study brevity, I have willingly omit­ted many things whereof I might pro­fitably have spoken.

The fifth Lecture. Of the Externall Form of an Oath, Containing ten Cases.

Summary.
  • 1 Oathes by signes onely without words.
  • 2 Oathes by the Creature.
  • 3 Oathes by Idols.
  • 4 How to know whether a man have sworn or no.
  • 5 The first tryall, the form of the words.
  • 6 The second, the force of the words.
  • 7 Of Josephs form; by the life of Pha­raoh.
  • 8 Third triall, the custome of the Countrey.
  • 9 Fourth, the intention of the party swearing.
  • 10 The use of the said trialls.
  • 11 The solemn rite of an oath.
  • 12 Whether solemnity increase obligation.
  • 13 Solemnity of oathes omitted.

SECT. I.

THe Materiall and Efficient causes of oathes have been handled in the foregoing Lectures; We come to speak of the Formall cause. Now the form of a thing being either externall or internall, the cases of this Classis are so under two heads to be divided, as may bring those things which appertain unto the words, or signes of an oath, because they are received by the interior senses, under the name of Externall form; and those things which appertain unto the sense and interpretation of the same, which is the work of the minde, under that of Internall form. An oath in re­spect of externall form, consisteth of signes only, or of words only; or of both: wherefore the first doubt is of the oath which is made by signes only without words. There have been, who have thought, except the words I swear, or the Name of God be expressely used, as I swear I will perform it, by God I will doe it, I call God to witnesse, So God help me, or the like, that it is but a bare promise, and no oath; and there­fore [Page 150] obligatory under perill of false­hood only, not of perjury; so that he who fulfilleth not his promise, which ought also to be performed, is guilty of violated faith, but not of a violated oath. And amongst the Casuists, Bar­tolus is said to have judged words, at the least some, so necessary unto an oath, that unlesse the testimony invoked were in expresse words pronounced, it could not formally be an oath, nor under that name obligatory. But these two opinions are worthily rejected by all. For seeing words are but interpreters of things conceived in the minde, whereof they are characters, if it be possible for those things conceived, (though per­haps not so conveniently, yet suffici­ently) to be signified by other means, as writing, nods, signes, &c. to the understanding of others; no necessity en­joyneth the use of words. So mutes, they who have had their tongues cut out, and such as lie speechlesse upon their death-beds, when they contract Marriage, make their Wills, or perform any thing which cannot be done with­out a clear and undoubted significati­on of their assent, which they are [Page 151] unable to expresse by word of mouth, use by nods, by lifting up the hands or other signes, to signifie their answer unto the question asked. Which signi­fication is no lesse valid unto all intents and purposes of the Law, then if it had been expressed by word. And it is the very same in an oath, to which so God be any way invoked wit­nesse, whether expressely by word of mouth, or tacitely by any signes, where­by the persons whom it concerneth, may manifestly perceive that the party desireth as in the presence of God to engage his faith, such an act is both formally an oath, and fully sufficient to oblige the conscience, according to that verse which Stobaeus bringeth out of an old Comedian.

The oath is firm, if I but give a nod.

He is therefore very much deceived, and his own impostor, who thinketh himself either free from, or more loose in his obligation, because he uttered no word that might expresse an oath. If to another asking him a question, as in the presence of God witnesse and ar­biter, by the manner of his behaviour he seem plainly to consent; or if where [Page 152] it may be advantagious unto him, (in respect of some wordly gain) that he should seem to have sworn unto the words of another, he knowingly and wit­tingly make use of a friend, to witnesse though falsely that he hath so sworn, he hath bound by that fact his soul with a bond, and ought no lesse to doe according unto all that which pro­ceeded out of the mouth of the party asking or requiring; then if it had proceeded out of his own mouth: if the thing be lawfull, he must perform it; but if he know it to be unlawfull, he cannot by this trick evade perjury.

SECT. II.

FUrthermore as oathes may be sworn by signes only, without words, so they may and most commonly are by words only, without signes; as ap­peareth by those rash ones, which slip out in common discourse, and others. Now the words of an oath may be considered yet two wayes, either in re­spect of the things by which it is sworn, or according to the manner of ex­pression, and form of speech in which [Page 153] it is sworn. Wherefore the second doubt is concerning the obligation of an oath, in respect of that whether person or thing, by whom or which it is sworn, where two cases occur. The first ease is, whether he who sweareth by the creature be, and how far he is obliged? That oathes by the Creator are bind­ing is most certain, and generally granted; but of oathes by the creature there is some doubt: Neverthelesse by way of answer, I say first, that to swear by a creature absolutely, ultimately, and terminatively so as to constitute the end, and strength of the oath in any creature without relation to God, is simply unlawfull: The reason is ma­nifest, because by that means the re­verence due unto God only, is given unto the creature. For an oath, as hath been said, is Cultus Latriae, which ought not to be given to any creature, for as much as the party swearing, by invo­cation of God as witnesse, and reven­ger, acknowledgeth him ipso facto, search­er of hearts, to whom it is known whether the minde agree with the words, and the most just and power­full punisher of sinners, whereof nei­ther [Page 154] is in the power of any created thing. Nay such an oath were even by the con­session of Papists apparently idolatrous. Secondly I say, to swear by the creature relatively, and as it were transitively, as Papists use to doe by the blessed Virgin, or other Saints, or reliques of Saints, that is (as they expound it) not ultimately and terminatively to place the worship upon them, but relatively, and transitively, to passe it by, and through them upon God, is at the least superstitious; because it ap­peareth neither by light of reason, nor testimony of Scripture, that the power of searching hearts, or punish­ing perjury, is by God entrusted with, or delegated unto any of his creatures how holy soever. Thirdly I say, to mention any creature in swearing with­out mention of the Name of God, as if a man should swear by his head, y his soul, by his salvation, by this fire, by this bread, &c. (though for the danger of scandall, and shew of evill, it were much better to abstain from such forms, yet) meerly for this reason, that we ought to swear by God only, is not unlawfull. Because either in [Page 155] these forms we swear not at all, or by God only. Which that it may be the better understood, lest I should seeme to bring some new, and suspected do­ctrine into the Church, or to be in­dulgent unto that execrable custome of swearing by the creature, which to the grief of good men is grown so common; It is to be noted, that in forms of this kinde, wherein mention is made of some creature, as it were by way of swearing, that the oath ne­verthelesse is in truth often sworn in­terpretatively by God himself. As in all those which after the common man­ner of utterance have in them a kinde of execratory sense, Upon my soul, Up­on my salvation I will doe this or that: where the sense is, Let not God blesse my soul, Let not God give me eternall Sal­vation, if I doe it not. And in those also wherein such things are nomina­ted as are apt to stir us up unto some remembrance of God; as when the Jews anciently sware By heaven, By this holy sacrifice, &c. meaning By God whose Throne is in Heaven, By God unto whom this holy Sacrifice is offered, &c. But where the names of such things are used, [Page 156] which have not in their nature any spe­cially or obvious aptitude of raising us unto any thought of God, nor seem to imply any execratory sense, as if a man should swear at the table, or at the chimney, By this bread, By this fire, &c. though by the manner of the expression, these forms may seem to be a particu­lar kinde of oath, yet in truth, and in­terpretatively they are not oathes, but rather meer obtestations, as anon in the third doubt shall be more fully ex­plained. Fourthly, I say, every oath made by the creature, whether lawfully or un­lawfully, that is, whether it be termina­ted in the creature (as the worship of Images is by the vulgar Papists) which is Idolatrous, or sworn by the creature transitively, that thence mediately, and ultimately it may extend to God, (with which little trick the Popish Do­ctors endevour to defend their Image­worship) which neverthelesse is super­stitious: if it be really and formally an oath, and not an obtestation only, obli­geth no lesse the party swearing unto the performance of his promise, then if he had sworn in expresse words by God himself. The reason is, because in every [Page 157] oath truly and formally such, God is in some sort invoked witnesse. Fifthly, I say, though by that perhaps which I have now said, this kinde of oath may in some sort be defended, as not simply and generally unlawfull, at least if it be understood, as I have expressed it: yet seeing it is certainly no lesse obligatory then other oathes, and that no necessity enjoy neth the use of it; (be­cause where it is expedient to swear, we may use other forms, and where it is not expedient, we ought not to swear at all) It is the duty of that Christian who would seriously provide for the peace of his own conscience, wholly to abstain from this kinde of form. Whereunto they will easily be perswaded who shall throughly consider the Originall, or issue of the same. It's Originall it oweth partly to the Idolatry of the Chaldae­ans, AEgyptians, and other superstitious Nations, who sware by the Sun, the Fire, and other creatures which they e­steemed Gods; partly unto the rever­ence of the Divine Name and Majesty amongst the people of God, which hap­pily in the beginning just and pious, in processe of time degenerated by de­grees [Page 158] into superstition, the debauchery of oathes so heightned by evill custom, that ordinarily they chose rather to swear by obvious things, then as Philo saith, to have recourse unto the Creator, and Father of all things. The same practise a­mongst the Antient Greeks, (most of whose rites and manners may easily be tracked from emulation of the He­brews) is observed by Interpreters of the Greek Poets, who write that they were not ordinarily wont to swear by the Gods, but by such things as were next [...]at hand, or before the eyes, as Bread, Fire, Water, Fowl, Serpents, and the like: But that which seemeth to have been begun in reverence of Divine power, is at length shrunk unto so great irre­verence and contempt of the same, that through the craft of the Devill, and just judgement of God suffering sin for the punishment of sin; piety degene­rated into superstition shot up again into open impiety. For when once they began to abstain from the name of God, and swear by the Creature, licenti­ousnesse of oathes would admit of no bounds; nor stand in any awe of per­jury; A Poet elegantly decides the per­jury of a Prince.

[Page 159] Who thought his Scepter not the Gods. He thought it lawfull having sworn by his Scepter, to doe otherwise then he ought to have done, had he sworn by the Gods. Augustine saith of the Maniches, they sware frequently by the crea­ture, and without any scruple. That a­mongst the Jews, from the time this custome of swearing by the creature waxed strong, the reverence of oathes decayed very much, is most apparent by the words of our Saviour, Mat. 5. & 23. Which two places laid together afford a sense, tending to the correction of a double, (perhaps a treble) errour. First, that the Jews granted unto themselves, so they abstained from the Name of God, liberty of swearing in every tri­fle. Secondly, that they thought it no sin to sweare though by God, if that were true which they sware. Thirdly, that whilest they sware but by the creature and not by God, they thought a falsehood no perjury: for so they per­versely interpreted that place, Thou shalt not for swear thy self, but shall render thy oathes unto the Lord. Wherefore Christ teacheth that oathes taken not in the Name of God, but of creatures, are as truly [Page 160] oathes, and as fully obligatory as those wherein God is expresly menti­oned. And thus much shall suffice for the former case.

SECT. III.

THe latter case is of an oath made by Idols or false Gods. For solution of the doubt in this case, First I say, that such oathes are simply unlawful, apparently Idolatrous, and expressely prohibited by God; for they direct the true worship due unto the true God only, unto Gods which are not true; contrary unto the precept, Deut. 6. 13. Thou shalt fear the Lord thy God, and serve him, and swear by his Name. And God himself grievously upbraideth his peo­ple with this sin, Jer. 5. 7. How (saith he) shall I pardon thee for this? Thy chil­dren have forsaken me, and sworn by them that are no Gods. Secondly I say, that such oaths oblige upon pain of perjury, and ought to be observed, and that he who hath violated his faith so given in a lawfull thing, is perjured; so saith Augustine, Because he hath sworn by such as he ought not, and done contrary to his oath, that which [Page 161] he ought not to have done, he hath committed double sin. And again, he who sweareth by a stone, if he swear a falsehood, is perjured. You may perhaps object, that this wherein God is not invoked witnesse, seeing a false God is no God, can be no oath, and therefore is not obligatory. I answer, though a false God be indeed no God, (because as truth and ens, so falsehood and non ens are converti­ble) he is neverthelesse a God in the opinion of him who sweareth; which is sufficient to induce obligation. And therefore such an one ex Hypothesi is a true oath; to wit, the erroneous Con­science of the party supposed; foras­much as he is bound in conscience to perform the thing which according to the judgement of his conscience he hath confirmed by an oath. Where faith sworn by a false god is violated, injury is done unto the true God. Because the party swearing, Though under false markes, yet by a generall comprehension re­flecteth upon Divine power. Whence Au­gustine, The stone doth not bear thee speaking, but God punisheth thee not performing: alluding, as I conceive, unto the so­lemn rite of the Romans, where the [Page 162] party swearing held a flint in his hand, and pronounced these words, If I knowingly deceive, let Jupiter cast me from all good men, as I this stone; which said, he threw the stone immediately from him; and they who had performed this ceremony, were said Jovem Lapidem jurare. He therefore who forsweareth by a false god, shall finde the true God revenger of his perjury, and contempt of Divine Power, and Religion, saith the Au­thor of the Book of Wisdome. Nay Au­gustine is so confident, that he feareth not to affirm it lesse evill to swear by a false god truly, then by the true God falsely. Which speech of his may not be un­derstood at large, and upon the whole matter, but strictly as to the falsehood and perjury, which in that place are only considered. Thirdly I say, upon the obligatory power of this kinde of oath, dependeth the solution of that question which was put by one Publicola unto blessed Augustine, handled at large by the Author, in his whole Epistle, 15. 4. Whether it be lawfull to require an oath of one who we know will swear by Idols. Augustine holdeth the affirmative, and proveth it first by example of Abraham, [Page 163] who confirmed the League contracted with Abimelech by oathes mutually given and received, Gen. 21. and of Ja­cobs Covenant made with Laban, Gen. 31. Then by reason, because other­wise there would be no convenient means whereby Leagues might be made, and publick faith, and peace preserved with Idolaters: nor doth the true God any where forbid the good use of faith, though wickedly sworn by false gods. If it be said, that this were to partake of anothers sin: Augustine answereth, we do not by this means associate our selves with him who sweareth by false gods, Devils, in the evill of sin, but in the good of his contract, whereby he en­gageth, and performeth his faith. And so much for the second doubt.

SECT. IV.

THe third doubt followeth, which considereth the manner of expres­sion and verball form of an oath. The reason of the doubt is, that seeing every oath, truly, and formally such, obligeth under guilt of perjury, but not such forms as are not oathes: it [Page 164] were needfull we should be able, a­mongst those forms which seem to be oathes, by some note or character to know which are, and which are not properly, and formally oathes. In which matter I confesse, of so many of the Casuists as in this straightnes [...]e of time I could peruse, I finde none sa­tisfactory, some of them touching this question lightly; others handling it indistinctly. To the end therefore I may propose something concerning this point more distinctly, as my hast to other things will permit; It is to be noted that unto a bare assertion or pro­mise, some confirmation of faith is usu­ally added, and that by Asseveration, Ob­testation, or by an Oath: which three albeit they may seem little distant, and rather to differ in degree, then kinde; neverthelesse intrinsecally, formally, and specifically they are each distinct from other. It is true, this distincti­on, through their affinity, the end at which they aim, and words whereby they are expressed, is oftentimes so obscure, that it is very hard, either not altogether to confound them, or skilfully and dexterously to distin­guish [Page 165] them. Wherefore that every one of these may be the better discerned from other, four things, which may serve as tryals of every form of speech, whether it be an Oath, an Obtestation, or meer Asseveration, are to be con­sidered, viz. The form of words, the proper and genuine sense of the same, the custome of the Countrey, and the intention of the party swear­ing.

SECT. V.

FIrst, it may be sometimes sufficient­ly apparent, by the very Form of the words, whether a man have sworn or not. Swear unto me that you will give me an hundred. I swear; or By God I will: or I promise Before God I will: or As God help me I will give you them. If any of these, or the like, be answered, it is an oath, whosoever useth such form, is ipso facto obliged; and if he perform not the thing promised, guilty of perjury. But in this, now, Will you give me an hundred? I will give you them, the very words adding no fur­ther confirmation of faith, make but [Page 166] a bare Promise. You told me you would give me an hundred; will you give me them? Certainly I will: Believe me I will not de­ceive you. Here some kinde of confirma­tion is added unto the promise, but it is plain by the very form, that this is but a meer Asseveration, neither an Oath, nor so much as an Obtestation, seeing God is neither called to witnesse, nor any other pawn of faith engaged. How shall I know that you will give me that hun­dred which you promised? Here's my hand, By the faith of an honest man, I will give you them; As truly as the Sun shineth, I will doe it; Never believe me more, if I dot not, &c. The words themselves shew that they contain more then a bare asseveration, but they are not an oath yet. These therefore are rather Ob­testations, wherein for further Con­firmation of a matter promised, or as­severed, we interpose something which is dear unto us, or certain, and ma­nifest unto all, as a pawn of our faith. Wherefore if it plainly appear by the meer form, that the thing assumed for confirmation of the promise be pro­perly an Oath, a bare Asseveration, or an Obtestation, there needeth no fur [...]her [...]x­amination.

SECT. VI.

BUt because it happeneeh very often through the resemblance of some ambiguous or large signification of a word, or some other cause, that it can­not certainly be judged by the words uttered, whether it be an oath or no; in the second place, we must be atten­tive unto the proper and genuine sense of those words, and from thence make the Judgement. For it may appear by the forms, that all those speeches which appeal unto the Name of God; or wherein the Greek [...], the Latine Per, or the English By, are used, with the ac­cusative case, are formally oathes. Led by which reason only Soto conceived, so much difference between the terms, By my faith, and In faith; By my troth, and In troth, that he determined those to be formally oathes, these none. But if the genuine sense of the words be well looked into, there will be no dif­ference between the Propositions, By and In, being applyed unto the same thing; for we are to judge of them, as the thing they are applyed unto is Sa­cred [Page 168] or Civill. The form By God, is properly an oath, by vertue of the words: for the Name of God is a sacred thing, and he who speaketh after that manner calleth God to witnesse. But that By my faith, (though by the custom of some Countrey, or intention of him who speaketh, it may be an oath) is no oath by vertue of the words, but a meer Asseveration, or at the most an Ob­testation. Because humane faith is not a sacred, but a civill thing; and he who speaketh after that manner, calleth not God to witnesse, but speaketh as he believeth, or declareth, that the thing is uttered with serious and sincere deliberation of minde. For the genu­ine Interpretation of the words, By my faith, whether in an assertory or promis­sory matter, is this, I speak from my heart; I tell you my very thought; I pawn my faith to you that the thing is so; If to my knowledge I deceive you, let me never be believed more, &c. Wherefore the interposition of faith, maketh not an oath by vertue of the words, unlesse perhaps it recall us to some oath which we have formerly made. As in this University, when a man is required to answer unto a [Page 169] question, by vertue of his Oath, accor­ding to this form, You shall speak by your faith given unto this University. And when Convocations are solemnly called, whereunto the Doctors, Masters Regent, and Non-Regent, are warned by the Bea­dles to repair, Per fidem, per fidem, per fidem. The like in my opinion, (though others I know think otherwise) is to be said of that of Paul, By our rejoycing 1 Cor. 15. 23. which I have in Christ I dye daily; to wit, that it is properly no oath, but a seri­ous asseveration only, that as he was subject unto death, so he was daily pre­pared for death, when it should please God to call him.

SECT. VII.

NOw it may perhaps by so much as hath been said, be conveniently determined, what is to be thought of those words, whereupon Interpreters variously dispute, of Joseph unto his Brethren. By the life of Pharaoh ye are Gen. 41. 15. Spies. Some are of opinion that Joseph having been long conversant with Pharaohs Courtiers, as infected with a touch of their disease, began [Page 170] to savour at the least in this point of their manners and example, the AEgypti­ans being accustomed to swear by the Kings life; as the Romans in latter ages were by the Genius of the Emperour. But I cannot easily suffer my self to judge otherwise of the words and actions of men famous for piety then necessity compelleth. I see divers of the Anti­ents in contributing unto the fame of the Saints, too indulgent unto their own wits, whilest they would cover apparent defects, with specious excuses. An error much more pardonable then theirs, who in this Age delighted with the contrary, love to be curious en­quirers into the faults of devout men; and lest matter should be wanting un­to calumny, by perverting blamelesse actions, bestow cracks upon Crystall glasses, as it were in the washing. O­thers allow a more favourable Interpre­tation unto the speech of Joseph, that he used for once only this form of swearing, familiar unto the Courtiers, as an accomplishment of his disguise, and that he might more skilfully repre­sent the person of an AEgyptian Prince, which he counterfeited, lest he should [Page 171] be discovered by his Brethren. But I doe not like to lay this burthen, though somewhat lighter, upon the shoulders of the most holy man without any ne­cessity. The third opinion is theirs, who absolve Joseph from all guilt; but with this reason, that they think it was lawfull for any man before Christ forbad that kinde of oath, to swear by the creature. Which opinion I con­fesse so far, as it acquitteth Joseph of sin, I allow; but of the reason for it I cannot allow. For first, it appear­eth not that Christ did more especially forbid oathes by creatures, then such as are made by God; for he generally pro­hibited the unnecessary ones of either kinde. A new prohibition of that which was alwayes unlawfull, would have been needlesse: And that which he spake of oathes by the creature in particular, tendeth to shew that this kind of oath once made contrary to what the Jews thought of it, is no lesse ob­ligatory, then those which are made by the Name of God expressed. Se­condly, neither is it true, that it was law­full before Christ for pious men by any dispensation, or divine indulgence, to [Page 172] swear by the creature, seeing that wor­ship is due unto God alone; as from Deut. 6. and Jer. 5. hath been proved; which latter place, though perhaps it peculiarly concerned them who swear by Idols, and false Gods: yet the strength of the argument which the Prophet useth, generally taken, com­prehendeth them also who swear by creatures; seeing that it may likewise be truly said of creatures, that they are not Gods. Thirdly, the nature of an oath, as appeared by the definition thereof, sheweth sufficiently that it was never lawfull to swear by creatures: Heathens themselves confessing that divine Invo­cation belongeth unto the essence of an oath. Which things being so, and this reason insufficient to excuse Joseph of all crime: the fourth opinion fol­loweth, which explaining the genuine sense of Josephs words, supposeth him not to have sworn at all, and therefore not to have sinned in swearing amisse: For if he sware by the life of Pharaoh, either the life of Pharaoh was invoked as witnesse, which were ridiculous to think; or contained some execratory, or imprecatory thing in it, which what [Page 173] it could be without a very harsh and forced Interpretation of the words, is not easie to divine. But the sense of his words will be very plain, and easie, if they be expounded by an Indicative speech, thus; By the life of Pharaoh, ye are spies; that is, as true and certain as it is that Pharaoh liveth, so true and certain it is that ye are spies; like that, By this Sun that shineth I tell you true, which is as much as to say, this is so true whith I tell you, as it is true that the Sun shineth. Whereof neither in my opinion is formally an oath, but an asseveration rather confirmed by a ve­hement obtestation. I am not ignorant that much may be said for the contrary, which though it be not of weight to make me alter my judgement; neverthe­lesse it is of weight to make me think it fit that every man should be left freely to his judgement, provided he condemn not anothers, and grant me this, That it cannot at least by vertue of the words, ex­cept it appear by other means, be clearly proved that Joseph sware, seeing the words contain no Invocation of wit­nesse, nor of vengeance.

SECT. VIII.

THe third trial whereby an oath is to be known, is the custome of the Coun­trey, place, or Community. For there may be some speeches which neither by their Form, nor force and naturall sens [...] of the words appear to be oathes, yet through received use in some Nation and common estimation may be ac­counted oathes; as on the other side, such as by the tenor of the words a man would take for oathes, may be esteemed no oathes. The reason is, becaus [...] the value of words, is like that of money, not by Nature, but agreement, or rather use: that is, their worth is according­ly as they are esteemed. To finde an example thereof, we neeed goe no fur­ther then some of our own forms: for whereas Faith and Truth (especially as to this purpose) are words of the same sig­nification and efficacy, in asmuch as he who is void of truth, is void of faith, and he who is void of faith, is void of truth also. Neverthelesse our Countrey­men through long use are possessed with an opinion, that he who says, In faith, sweareth, and he who saith, In [Page 175] truth, sweareth not; as also that In Truth is but a meer asseveration, and By my troth, an oath. Of which things it were a folly to demand other reason then custome;

To whose Arbitriment belongs,
The right, the Law, the rule of tongues.

Whence it followes that he who whilest he looketh only at the form or force of the words, taketh the liberty in common discourse of such kinde of speeches, without discretion, or scruple, as have by long use obtained amongst us the force and estimation of oathes, violateth the precept of Christ against swearing; scandalizeth his brother, and exposeth himself unto the danger of perjury.

SECT. IX.

THe fourth and last triall whereby an oath may be known, is the minde, and intention of the party swear­ing. For be it so, that a form of speech appear not by the words themselves, nor by the common estimation of men to [Page 176] be an oath: Neverthelesse if a man using such a form, either through mistake imagine himself to have sworn, or through some deceitfull intention would be thought to have sworn; that form, though it be not really, and in it self an oath, will have neverthelesse as to that man, the full obligation of an oath to all effects; and if he vio­late his faith so given, he is guilty at the Bar of Conscience, not onely of falsehood, but perjury: for as by the judgement of the Apostle, he who esteemeth a thing common or impure, which in it self is not impure, maketh it neverthelesse impure as to him; and is bound to abstain from it as if it were really common, and impure. So by the rule of contraries, he who e­steemeth a thing holy, which in it self is not holy, maketh it neverthelesse holy as to him, and is bound to abstain from it as a thing really holy. And if errour in the understanding excuse not from obligation, much lesse may deceitfulnesse in the will: Because it is most just that an impious and fraudu­lent man, should fall into the pit, which he digged for his neighbour, and that [Page 177] his feet should be caught in the snare which he set for another.

SECT. X.

THe use of the four trials which I have explained, is this, that to know when a question or scruple of Consci­ence ariseth concerning any form of speech, which seemeth to be an oath, whe­ther or no it be truly and formally an oath, and consequently contain the force of obligation? Recourse may pre­sently be had unto these trials, and the examen of the form made by them as Diagnostick signs, and that in the order which I have proposed, begin­ing with the first, and running through the rest, as there shall be occasion; that is, except the examen appear sufficiently made by the way, to shew it to be an oath. For that which is an oath, may appear to be but an affirmation, by the examination of some one mark; but it cannot be denyed to be an oath, till the whole examen be perfected through every mark. The ends of this examen are two, the one before the oath, that a man may bethink himself, whether [Page 178] it be fit to use such a form, or no? the other after the form used, that he may understand how far he is obliged.

SECT. XI.

OUr discourse hath been hitherto of such oathes, as are made by signes without words, or of such as are made by words without signs; we come now to speak of such as are compound­ed of both. Now signs are joyned with words, for the greater either solemnity of the act, or dignity of the person. Wherefore a fourth doubt is concerning a solemn oath, where the first case, or first question is, of the Rites and Ceremo­nies used in solemn oathes. Of the rites of the Gentiles many have written many things, which elsewhere to recite were not worth the while, much lesse to our present purpose. Alexander Neo­politanus taketh, notice of some of the chief of them; Those were esteemed most sacred, where touching the Altars of the Gods, they sware in conceived words; and those next, in which they sware Jovem lapidem. Now they are said to sware in conceived words, who [...]ither [Page 179] all repeat the formall words of an oath, or some one, the rest signifying their consent unto his words, by some word or sign. Holy Scripture maketh men­tion of two rites especially amongst the antient Hebrews. Whereof one was peculiar unto such oathes, as Superi­ours by their authority required of their inferiours for the faithfull per­formance of their commands. The first example of this kinde is Gen. 24. where Abraham requiring an oath of fidelity from his servant concerning the choyce of a wife for his son, commandeth the servant to put his hand under his thigh. The like Jacob upon his death bed command­ed his son Gen. 47. when he committed his buryall in the land of Canaan unto Josephs care. Which rite whether ob­served in token of faith, whereby they believed in the blessed seed, which was to come from the thigh of Abraham; or in Commemoration of the Covenant which was made with Abraham when he was circumcised; or for any other cause, we finde not founded upon any expresse command of God, but to have been for ought we can gather of free Institution. By which the perverse and superstitious [Page 180] severity of those men, who blame all rites in Divine Worship as execrable and abominable Idols in the Christian Church, which for decency and order sake are instituted by humane autho­rity, without the expresse precept of God, is the more to be admired. The other rite amongst the people of God was elevation of the right hand towards Heaven, during the act of swearing; and this was used in oathes voluntarily taken, and not by command of others. Which rite whether through imitation of the Hebrews, as in many other things; or by a kinde of naturall direction, looking towards the God, whom they believed to dwell in the most high place; the people of most Nati­ons have observed. And of this as of the former, we have the first example in the story of Abraham, Gen. 14. but no more founded for ought we know up­on any speciall command of God then the other. Neverthelesse the use there­of encreased so much upon posterity, that by a Metonymie of the Adjunct, we finde the phrase of lifting up the hand, frequently put for the act of swearing, yea and the word [...] which properly [Page 181] signifieth the right hand, is not seldome taken for an oath by the Hebrews and Arabians. Whence some of the Inter­preters understand those words, Psal. 148. 11. to be spoken of an oath; Whose mouth speaketh vanity, and their right hand is a right hand of iniquity, or rather of ly­ing and falsehood; for so properly the Hebrew words [...] signifie. Yea even God himself, where he is repre­sented swearing after the manner of men, useth that kinde of speech, I lift up my hand to heaven, and swear by my right hand, Deut. 32. 40. To this rite are frequent allusions in the Propheticall Books of either Testament. And here we have another occasion of wonder, that this Ceremony should not only be tolerated in Christian Churches, but approved by those very men, who are so far from approving the use of other rites of the Old Testament (though they be all alike lawfull or unlawfull amongst Christians) that they will not endure them, but cry out importunate­ly to have them banished from all de­vout Congregations. As concerning the rites of Christians, that I may o­mit the rest of the various Ceremonies [Page 182] used in the primitive Church, and ac­cording to the differences of times and places variously observed: There is one which derived unto us from the Primitive times is yet in use, viz. to swear in conceived words, laying the hands upon the holy Gospels of God. And this kinde of oath, in which besides the pronunciation of the words, some visible externall gesture of the body is used; as touching the Altar, the Thigh, the Book, casting away the Stone, lifting up the Hand, and the like, is usually called a Corporalloath.

SECT. XII.

OF these rites which are used in so­lemn oathes, the second case, or the second question is, Whether, and how far they strengthen the obligation of an oath: that is, Whether a solemn and corporall oath have any greater strength of obligation then a simple oath; whence the violation of the one might contract heavyer guilt, then that of the other. In answer, I say first, that it is grant [...]d, by Casuisis, not only of the Romish party, but also of the reformed Chur­ches, [Page 183] that the solemnity of the act ag­gravateth the sin of an oath, as well as of a vow, seeing oathes and vows are in most things alike, especially in their obligatory vertue. To swear corporally is more then by writing or bare speech, saith one of them; and another, By how much the solemnities are encreased, by so much greater is the perjurie. Secondly I say, al­though we yeeld the perjury to be more grievous, yet a solemn oath of it self, and in its own nature, is not more obligatory then a simple one; because the obligation of an oath, as it is an oath, (for it obligeth also as it includeth a promise, but I say as it is an oath) ari­seth precisely from this, that God is invoked a witnesse, and revenger no lesse in a simple oath, then in the so­lemn, and corporall; for the Invocati­on is made precisely by the pronunci­ation of the words, which is the same both in the simple and solemn, and not by any corporall motion, or concomi­tant sign, in which the solemnity of the oath consisteth. Wherefore, Thirdly I say, that solemnity aggravateth the s [...]n of perjury is accidentall, but yet necessarily and inseparably, not con­tingently; [Page 184] and that for two reasons. First, in respect of the greater deliberation. For to this end is the solemnity of ex­ternal rites ordained, that it mightstrike the minde with the greater reverence of the act, and as it were sense of Reli­gion, to the end the agent might be bent upon the act with the greater attention and deliberation: and every sin caeteris paribus is the more grievous, by how much it is against the more deliberate and precedent act of the will. Secondly, the perjury of a solemn oath is the more grievous, because it giveth the greater scandal. For with the more solemnity a thing is done, the more attentively it is observed by most; and therefore if there be offence in it, the example will be the more notorious and pernicious. Fourthly I say, seeing it is granted to be expedient in an oath, which is part of Gods Worship, that for the greater reverence of the Act, a cer­tain solemnity of rites and Ceremonies should be used, as also a prescribed form of words; it seemeth that no just reason can be given, why both the moderate use of solemnity, and a certain form of words should be banished from the o­ther [Page 165] parts of publick Worship. I con­fesse though I have thought upon the thing with my self, and enquired much of others, I could never yet finde out, why these should not be taken from oathes, as superstitious additions, or be retained in the rest of Gods service, as profitable helps to piety. I leave it to him who can unriddle it: it is beyond my skill.

SECT. XIII.

THe fifth doubt remaineth, which is neither difficult, nor shall be tedi­ous, and it is of an oath wherein some part of solemnity is omitted, in respect of the dignity of the person: As when an Oath is given unto a Prince, or some great Officer, at his Coronation, or time when he receiveth trust and ho­nour, the ordinary rites (as the Touch and Kisse of the Book, &c.) omitted; the words unto which he is to swear be­ing read unto him, he is only admo­nished upon the word of a Prince, or upon his Honour, &c. faithfully to observe the same. Unto which admo­nition, if he moving his hand unto his brest, answereth only that he promiseth, [Page 186] the oath is accounted taken: In this case I say briefly, that the party sworn is no lefse obliged in Conscience, to the faithfull performance of the things promised, then if he had pronounced with his own mouth every word, and syllable, and had exactly accomplished therest of the Ceremonies, and Solemni­ties. And thus much shall sufsice to be said of the externall form of an oath. Perhaps ye expected, as I had de­termined, that those things which appertain unto the Internall form of an oath, should have been comprehended also in this Lecture. But that part containeth some doubts of great use, and moment, and worthy of larger room, espcially that part which ex­plaineth in what sense an oath ought to be understood. Wherefore lest I should injure you with too much pro­lixity, or the matter with two much brevity, I shall doe my endeavour that in the next Lecture, together with the finall cause, (which containeth not ma­ny doubts, nor much difficulty) I may finish that which I have to say of the In­ternall form.

The sixth Lecture. Of the Internall Form and finall cause of an Oath; Containing seven­teen Cases.

Summary.
  • 1 Of the Internall form or Interpretation of an Oath.
  • 2 Where the parties are agreed upon the sense of an oath.
  • 3, 4 Whether verball equivocation avail any thing.
  • 5, 6—or mentall Reservation?
  • 7 That an oath is not to be eluded by a stu­dyed subterfuge.
  • 8 In what sense voluntary oathes are to be understood.
  • 9, 10—And in what, oathes that are required.
  • 11 How far the sense of an oath dependeth [Page 188] upon the scope of the same.
  • 12 An oath upon condition.
  • 13 Of the first and second Intentions of an oath.
  • 14 When a lawfull thing is sworn for an evill end.
  • 15 Whether the party swearing not intending to swear be obliged?
  • 16 An Oath by the way of Complement.
  • 17 When a man is doubtfull whether he have sworn or no.
  • 18 A man willing to swear, but intending not to oblige himself.

SECT. I.

WE proposed a twofold form of an oath, Externall and Intern­all: the Externall following the signes and words, which are objects of our Externall senses we finished in our last Lecture. We come to the Internall, which consisteth in the sense and Inter­pretation of the words, and is the work of the minde. Now in this place I [Page 189] take the sense of the words not in re­spect of the Forms, by which we understand a thing to be sworn; for of this we have formerly spoken in the tryalls of oathes, (when we discoursed upon the outward form) but in respect of the pro­mise confirmed by an oath, and con­tained in the words. A matter truly of great moment, and manifold use, and in either relation, worthy of your most diligent attention; for it is of much concernment, to know in what sense you swear, because he is for­sworn, who performeth not what he promised, in the same sense wherein he promised, or ought to have promi­sed it: and that not in oathes onely, but in Vows, Promises, Leagues, Con­tracts, and all other conventions, where­in it behoveth an honest man that his dealing be fair, and his performance exactly agreeable with the true sense of his undertakings. Wherefore to the point. The words of an oath, are ei­ther clear, or ambiguous.

SECT. II.

THe first doubt is of the obligation of an oath, the words whereof are plain, and have a manifest unquestionable sense: where four cases occur. The first is, where the words of an oath or promise, are so clear either first by their proper and ordinary signification: or secondly, by the manner of speech recei­ved, in any Countrey: or thirdly, by mutuall consent of the parties, that their sense is fully agreed upon, by the persons interessed. For exam­ple of the first; I Caius promise unto thee Titius, to give thee possession of my Land in Tus [...]ulan, if within a months time thou pay me an hundred Crowns. Example of the second; John bargains with Peter for the hundred Marks which I owe you, I will deli­ver you to morrow an hundred of my Wethers; Or, for the benefit of your Land, I will pay you the yearly rent of three Bushels of Wheat. In the former of which examples, although an hundred be a word so ambiguous, that sometimes it signifies five score, [Page 191] sometimes six score, yet by the received use of it throughout England, the in­tention of the parties would be so ma­nifest, that there could arise no con­troversie about the sense thereof because we all know that an hundred, when we speak of money signifieth five score, and when of Cattel six. So a Bushel in the latter example, is a measure, containing double the quantity in the Northern parts of this Kingdome, which it de­noteth in the Southern. So whereso­ever the bargain be made, the use of the place will so explain the ambiguity, that plain dealing men could by no means disagree about the signification of the words. Example of the third, Titius desiring to buy one piece of the land of Cai [...]s, bordering upon his own having formerly beaten the price, at their next meeting, asketh, Will you sell me your land at the price you set upon it? I will; though no peculiar mention be made of that piece which bordereth upon Titius; yet it is evident by the foregoing discourse, that the same was peculiarly understood. And this kinde of oath, obligeth the party swearing to perform his promise fairly, [Page 192] and in that sense upon which without elusion it is manifest the Contractors were agreed. And he who bargained to deliver an hundred Wethers, hath not made good his agreement till he deliver six score.

SECT. III.

THe second Case is of an oath, where the words according to their com­mon signification are clear enough, but the party swearing having no will to oblige himself in that sense intendeth another, whereof the words by reason of some ambiguity are not altogether incapable, and industriously conceal­eth his meaning in such sort, that the Auditors understand one thing, and he another. This is that verball equi­vocation, which amongst some other Casuists and Scholasticks, the Jesuites especially maintain and practise; ex­amples whereof are most frequently found in assertory oathes; because by their Doctrine, the chief use of this equivocation is, when a man examined by an impotent Judge, or not legally, or having some other reason to dis­semble [Page 193] the truth, fitteth the words u [...] ­to his occasion, by changing their genuine sense into one more strained and remote from the matter in questi­on. As if a Jesuite apprehended, should swear that he were a Smith, mean­ing that his name was Smith; or an Apprentice commanded to tell where his Master is, should swear he dyed a moneth ago, meaning that he then dyed stockings. The like may happen in pro­missory oathes; as if a Generall having made a Truce with an Enemy for ten dayes, should give him a Camifado, be­cause in the Capitulation mention was made of the dayes onely, not of the night. Livy and others relate the story of the ten Romanes, taken by Ha­niball, and after they had sworn upon certain conditions to return unto his Camp dismissed, one of which (saith he, others say two) most unlike a Roman returned the same day, pretending something forgotten, but intending to absolve himself of his promise, and be­fore night overtook his Companions: which deceiptfull trick of his was ac­counted so base, that he was not only scorned by the vulgar, branded with ig­nominy [Page 194] by the censors, but adjudged by the Senate to be taken, and by a publick Guard delivered unto Hannibal. Ne­verthelesse Jesuites so vigorously defend this equivocation, that Jo. Molanus Professor at Lovain, justifieth the murder of John Huss perpetrated against the publick faith engaged unto him for his safe Conduct, for this reason, that the Conduct undertook for his safe com­ing, not for the safety of his return. And now let Jesuites confidently com­plain of the great injuries done them, whilest we say they hold faith not to be kept with Hereticks; for if this be to keep faith, they need not much trouble themselves, with whom­soever it be contracted, whether it ought to be kept or broken. But whole Bookes of this Jesuitism are largely and solidly confuted by the Reverend Fa­ther in Christ, John Morton now Bishop of Duresm, Henry Mason, and other of our Countrey-men, worthy the per­usall of such as desire further satisfa­ction in this point. In the mean time our result is, that the party swearing after this manner, both sinneth in his equivocall oath, and is notwithstand­ing [Page 195] that tacite equivocation bound in Conscience unto the performance of his promise in that sense, which the words yeeld of themselves, and are without constraint apt to beget upon the mindes of others: unlesse he act accordingly, he is not guiltlesse of perjury.

SECT. IV.

SOme reasons of this assertion I have already alleadged in the confirmati­on of our first Hypothesis, I shall now adde but briefly a few more. The first, an oath according unto the sum of that Hypothesis, ought to be most simply, and effectually understood; unto which simplicity this artifice of industrious ambiguity is repugnant. The second, it is a great profanation of the Name of God, to invoke him as witnesse and searcher of hearts to attest the truth of words which agree not with the heart of the party swearing; for what were this if not as far as lyeth in mans power to make God, who can neither deceive, nor be deceived, an Impostor and Patron of base dissimula­tion. [Page 196] The third equivocation is con­trary to the very institution and nature of an oath, whose chief use is to be an end of strife and controversie, and to give as certain security in uncertain things, as humane nature is able to afford, it being Expediendarum litium maximum re­medium. But that certainty which we seek in an oath, is los [...] in equivocation; for what certainty can there be in his answer, whose meaning is uncertainty? nor are Controversies thus ended but aggravated. The fourth, the party so swearing deludeth his neighbor, and knowingly deceiveth, contrary to the precept, Ne juret in dolo, and to the an­cient form, Si sciens fallo. The fifth, promise in the promissory is as affirma­tion and negation are in the assertory, and containeth an answer unto the question, or intergatory propos [...]d by the Deferent, which unlesse it quadrate and agree with the Intergatory pro­posed, is no truth, but a lye. For out of the question and the answer springeth as it were one proposition, which must be utterly false, where the answer is made in a different sense, from that wherein the question was asked. No [...] [Page 197] doth that qualification to which the Pa­trons of this simulation fly afford them refuge. To wit, that we may not use this equivocation at our pleasure, but onely before an incompetent Judge, such as have no right to require an oath, or who compelleth us to swear without just cause, or exacteth that which is not due, or the like. But to omit that these are but their bare allega­tions only, not confirmed by authority of Scripture, of the antient Church, or indeed of good and solid reason, the force of these arguments by which we maintain the contrary, is neither over­thrown, nor weakened by this quali­fication. And although it should be granted, that an unjust force might null that obligation, made to man, be­cause it is not reasonable that an unjust act should acquire any right; yet no injury done unto us by men, can give us just cause to injure God, by casting off that obligation which we made unto him the searcher of hearts, to whom such right by every oath oc­curreth through the Invocation of his Name. To conclude, this Jesuiticall Doctrine licenseth the lust of lying [Page 198] and perjury unto impious men, not­withstanding that qualification, which though it remain, yet the sole judge­ment, when it is, and when not expe­dient to use it, is left unto the party swearing. Wherefore if a man against right and reason be constrained to swear, he ought either absolutely to refuse the oath or to take it in that sense wherein it is given without simulation or equivocation.

SECT. V.

THe third Case allyed unto this is of mentall Reservation, which the Je­suites defend with the same reasons, and define with the same qualification, they doe verball equivocation: For as in that by wresting the words pronounced unto another sense, so in this by some addition not pronounced, but concei­ved in minde, the party swearing elu­deth the Intergatory. So they say a Priest, if he be examined by an Hereti­call Magistrate, whether he be a Priest, may answer that he is no Priest; mean­ing of Bacchus or Apollo And an adul­terous [Page 199] wife if she be questioned of adul­tery by her jealous husband, may swear unto him that she committed not a­dultery, meaning not to the end to tell him. The like they hold in promisso­ry oathes, that a Traveller to save his life may swear to give money un­to a Theef, though he never intend it; provided that when he sware, I will give thee so much, he understood if I owe it thee, or if thou demand it be­fore the Magistrate. But as this mentall reservation is built upon the same sand with verball equivocation, so is it de­stroyed with the same dash; for it root­eth all faith and assurance out of men, makes God an Imposter, is deceitfull unto our neighbour, perverteth the use and end of oathes, setteth open a great gate to all kinde of lies and perjuries, and is so much worse then equivocation, as more difficult to be prevented. For equivocation foreseen or suspected may be prevented, by such diligent explicati­on of the words, as may leave no loop-hole of ambiguity. But no humane art or providence, if men will be jugling, can prevent this pouch of this Reservation. Where will you finde [Page 200] a knot to tye this Vertumnus unto one shape?

Binde wicked Proteus in chain
A thousand fold, 'tis all in vain.

Jesuites and Priests reserving unto themselves the liberty to reserve any thing, are not afraid with a serious brow, to take our oath of Allegiance, though penned with such accuratenesse of words, as leaveth no hold for cavill, nor way for escape; yet that very clause where in expresse words they promise that they will faithfully ob­serve all the premises according unto the tenor of the words pronounced by them, and according to the plain and na­turall sense, and true intent of those words, without any equivocation or mentall reserva­tion, they understand at the same time with this reservation; to wit, that I will tell you.

SECT. VI.

THey lye neverthelesse at a ward to put by perjury; for say they, of the verball and mentall sentence one en­tire [Page 201] sentence is compounded, in which taken altogether there is no falsehood. For example, if a Priest swear in ex­press words that he is no Priest, with the addition reserved in his minde, but not uttered, that I should tell it you; this whole sentence say they put together is true, viz. I am not a Priest that I should tell it you. Nor doth any reason seem to forbid a man the liberty, if he please, to compose his speech of verball and mentall terms. For why in our pray­ers, if one should pronounce those words only our daily bread, and expresse those other give us this day in his thought only, should the speech be in­tire and lawfull, and acceptable unto God; and unlawfull to doe the like in an oath? That this Jesuiticall Leger­demain may fully be discovered; First, it is admirable that these most acute Artificers should not perceive the Fa­brick of this defence not to be raised, but upon the utter ruines of faith in all hu­mane judgements, contracts, and pro­mises. For the argument they use, if it were of any weight, would as well justifie the practise of this equivoca­tion before a lawfull Judge, and in a [Page 202] just matter, (which they say ought not to be) as before an incompetent Judge, and in an unjust matter; seeing that a sentence composed of the verball and mentall parts, is in each of the same truth or false­hood. And this answer may suffice ad hominem: but ad rem, I say secondly, that a sentence composed, as hath been said, of the verball and mentall parts, may be admitted when a man converseth with his own thoughts, as in private meditation, or when he addresseth him­self to God alone, as in prayer or thanks­giving. But when the hath to do with men, as in oathes, where he is to bear such testimony as may be heard, and under­stood by others, a sense mixed of ver­ball and mentall parts, is in no wise to be admitted. The reason of this dif­ference is manifest, because that which he beareth hidden in his brest, is no further known unto others then he de­clareth it by word of mouth. But to God before whom nothing is hidden, the darkest secrets of the heart are trans­parent. So that when men pray or meditate, it is all one, as to the point of truth or falsehood, whether they pronounce their whole thoughts, or [Page 203] part of them, or none at all. But men who cannot dive into the heart further then words and actions discover it, must weigh the truth or falsehood of a speech by those things only which may yeeld testimony unto the hearers. Which since those reservations which are kept within cannot effect, the truth of a speech is to be judged only by the words pronounced, and not by mentall Reser­vation:

SECT. VII.

THe fourth Case followeth the fact; for as before, and in the act of swearing, there ought to be a purpose of fulfilling the promise in the same sense wherein it was proposed, without any equi­vocation or mentall reservation: so ought there afterwards to be a desire and endeavour in due time faithfully to perform the same, according unto that sense wherein it was sworn, without any evasion or subterfuge; and as it is one kinde of perjury to strain the words during the act of swearing, unto ano­ther sense, then that wherein they are [Page 204] understood by the Auditors, so is it ano­ther kinde of perjury having sworn honestly, not to proceed sincerely, but decline, and elude the strength of the oath, (though the words be preser­ved) with some new forged invention, variously turning and dressing the words to cloke the guilt of their Consciences, as Taci­tus saith of some. Stobaeus telleth a pre­ty tale from Herodotus of one Archeti­mus, who had deposited money in the hand of his friend Cydias; Archetimus upon a time desirous to have the same restored, Cydias loath to part with the gold, disclaimeth that he ever received it. The matter brought before the Judges, the Plaintiffe accuseth, the De­fendant denyeth, each with like con­fidence, neither by any witnesse. The Judges other proofs being wanting de­creed the determination of the contro­versie by Oath; the day is appointed, Cydias in the mean time putteth the gold into an hollow staffe which he had cunningly boared, and withall coun­terfeiteth sicknesse; then appearing at the time with his staffe as newly recovered, delivereth the same unto Archetimus to hold, whilest he approached the Altar, [Page 205] and till he had performed the solemni­ty of his oath; This done with a most composed minde and counte­nance he sweareth that he had received gold from Archetimus, but had restored it again unto him. At which Archite­mus netled with his losse, and trans­ported with indignation to see perfi­diousnesse joyned with so much impu­dence, threw the staffe so hard against the pavement, that it brake, and dis­covered the money, the fraud of Cydias, and the whole truth of the matter: Which act the writer of the story cals an imbroydered ly; and observeth, that Cydias in reward of his perfidy came to a miserable end. Many such examples are extant both in Historians and com­mon practise, out of which I shall col­lect some profitable observations. The first is, that even dishonest men are so far touched with some Conscience, and ob­ligation of an oath; that though none at all or very small regard be had to justice and honesty; yet through an instinct of nature, they think themselves bound to quit themselves of their faith en­gaged, by performance of the same. The second, that unl esse corrupt affections be [Page 206] 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 [Page 208] 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 understand [...]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 [Page 209] 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 [Page 210] 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 wh [...]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 [Page 211] 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 [Page 212] 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 some assurance of that which before was uncertain. But what certainty can be had in words of an uncertain sense? Thirdly, in regard of the party swearing, who if he take the oath up­on that condition, prepareth either scandall for his neighbour, or a snare for himself; for this kinde of covin cannot be imagined to have other drift, then either that others might be drawn by our example, (though against their Conscience) to take the same oath, which is to give scandall unto our neighbour; or that something else by vertue of that oath might afterwards be required of us, which is either un­lawfull, or inconvenient, and that were [Page 213] to set a snare for our selves. Where­fore let a prudent man beware how he suffer himself thus to be imposed upon, or esteem the fear or favour of any at that rate, to swallow the bait, wherein he knoweth certainly, there is an hook. Assuredly that the act of swearing may be duely performed, it is expedient the sense of the words be most clearly agree­ed upon, by all the interessed parties, which the Ancients call Liquido ju­rare.

—Scis tamen & liquido juratus dicere posses.

And it appeareth by an old form, the deferent when he offered an oath to the party about to swear was wont to say, Qua de repeto liquido jures.

SECT. XI.

BUt enough of these, I come to the third doubt, which is of the sense of an oath according to the latitude or ex­tent of the same, That is, whether the sense of the words be, and how far it is to be measured by the scope. The first case is, where the cause of an oath [Page 214] was particular, yet the words are gene­rall. For example, Papall usurpation was the cause of the oath of Royall Supremacy, he arrogating unto himself the exercise of Supreme Jurisdiction in spiritualibus, throughout this Kingdome. I answer, such an oath is obligatory, according to the expresse words in the utmost la­titude: The reason is, that the intenti­on of a Law, though made upon parti­cular occasion, is generall, to provide a­gainst all future inconveniencies of the like kinde, or nature. And therefore albeit in the preamble of a Law, par­ticular mention be often made of that grievance, which gave occasion to enact the same, yet those words wherein the Law is contained, are for the most part generall; which is done industriously, and on purpose by Lawgivers, that other things of like nature may fall within their comprehension. Where­fore as Lawyers take their Responsall upon the sense of the Law, not from the preamble, but body of the Statute; so of the right interpretation of an oath, ought judgement to be made, not from the preface, but from the body of an oath.

SECT. XII.

THe second Case is, how far an oath is to be understood with some condi­tions. I answer briefly, First, if the words contain an expresse Condition the party swearing is not bound, till the condition be performed. As if Caius promise Titius an hundred Crowns to morrow, if Titius give him this day possession of such or such land; the possession not given, Caius is not bound by his promise. Secondly, if there be no expresse Condition, yet all those conditions and exceptions which are presumed by Law and common custome are to be understood, as I will do this or that, If God permit, If it be not against the right of another, If things remain as now they stand, If I be able, If be it lawfull, &c. as was said more at large in the explanation of the second Hypo­thesis.

SECT. XIII.

THe third Case is of the first and se­cond Intention. For the seemeth to have fulfilled his oath, who doth according to that which he intended in the second intention, which is the end; although he perform it not according to the sound of the words, which con­tain the first intention only, or means. For example, if a man engage himself by vow, oath, or promise, to allow ten shillings a month to the poor of such a Parish, and in January and February give nothing, but in March send them thirty shillings. I answer, that if the party swearing intended to oblige himself unto the substance of the thing only, and not unto the circumstances and manner of it, he is not obliged unto that way which the words seem to insinuate. Whence in the example propounded, if he had paid a whole three moneths pension in the first moneth, doubtlesse he had performed his promise; yet it may be that by accident, and conse­quence he might become obliged, even unto the manner of the thing, because [Page 217] every man is obliged, caeteris paribus, and if there be no other impediment, in doubtfull matters to choose that which is safest: As in the example proposed, it were safer to pay the pen­sion in the manner promised, that is, rather every month ten, then in the third thirty, both in respect of the danger of sudden death, and uncertain events, and to avoid those scruples which may arise even from neglected circumstances. I should therefore advise a pious man, that he be carefull to fulfill every of his vows, oaths, promises, according unto the tenor of the words, and of his intention, as far as conveniently he may, even to the slightest circum­stance; lest through contempt of small matters, he create scruples unto himself, or by degrees get such an ha­bit, as may cause him to contemn greater. But however unto one thing I exhort all, and it is the sum and top­stone of this whole discourse, concern­ing the sense and interpretation of oathes, that above all they be watch­full, lest they be too indulgent unto themselves in this businesse, or whilest they pamper their own desires, weaken [Page 218] the bond of an oath with over milde, and loose interpretations, and so ex­pose themselves unto the danger of per­jury. And thus mu [...]h shall suffice to be spoken of the Formall cause.

SECT. XIV.

THere remaineth a little to be said of the Finall Cause; The first doubt is, when a thing lawfull in it self is promised with an ill intention, or to an ill end. First I say it is simply un­lawfull to promise any thing, though lawful, with an evill intention, or to an evill end: The reason is, because as one defect in any humane action is enough to render the whole action evill, (for good is the effect of an entire cause, evill of a partiall) so especially a defect dero­gating from the end, which holdeth the principall place in morall things; at which that speech of our Saviour is thought to aim, But if thine Eye be evill, thy whole body shall be full of dark­nesse. Secondly I say, if any man shall have sworn any thing unto another for a dishonest end, yet without any dis­honest [Page 219] conditions to be performed by the party, he is obliged to fulfill the promise. If a man promise a woman a Jewell, intending with himself to engage her by that token unto immo­dest love, neverthelesse without shew of any unchast condition, he is bound by the promise. The reason of each is, because it is lawfull to give a Jewell, but to give it upon lewd conditions, un­lawfull. Thirdly I say, that which is promised upon dishonest unlawfull con­ditions, the conditions performed ought to be fulfilled, at least if the thing be lawfull. If a man promise a sum of money unto another, for adul­tery, false witnesse, or any other wicked exploit, he is bound when the other hath performed the conditions, to stand to his promise and pay the money. So Judah rightly understood himself obliged to send the Kid unto Thamar his daughter in law, as the promised price of her Whoredome. The reason is, that although the bargain were, yet the thing promised in that bargain is not unlawfull. Wherefore it ought not to have been done, but being done it is valid. And by what [Page 220] hath been said it is sufficiently clear, that an unlawfull oath of a lawfull thing may be obligatory.

SECT. XV.

THe second doubt reflecteth upon the Intention of the party swearing. That Intention I mean, not which aim­eth objectively at the matter of the oath, or thing promised, whereby we enquire what the party swearing intended by this promise, in what sense, and how he obliged himself: For of such inten­tion we have already spoken, when we discoursed upon the sense and inter­pretation of an oath: but that inten­tion is here understood, which aimeth objectively at the act of swearing; where­by we enquire whether he intended to swear, or to oblige himself, or not. Upon which Scholastique dispute, very much, but more subtilly then profi­tably, I shall contract as much of them as is usefull into a narrow room. The first Case is, when a man through evill custome heedlesly aboundeth with unnecessary oathes; I say first, that this kinde of swearing is most certainly a [Page 221] very grievous sin; not only Originally and in respect of the Cause; because it floweth from a depraved habit; but al­so formally, and in respect of the Act, for asmuch as an act in it self sacred, is rashly exercised, not in Judgement, and without reverence. Secondly I say, that such oathes, if the act of swearing through the impetuosity of the minde were altogether inconsiderate, are not obligatory. But if any delibera­tion of minde were present, though small, they are in part obligatory. The reason of either member of this asser­tion is, because deliberation of minde is required to make any humane act binding, and the measure of the obliga­tion ariseth from the measure of the deliberation.

SECT. XVI.

THe second Case is, when in Honour, or Complement (for so Cafuists speak) a man giddily sweareth in a mat­ter of small moment. For example, if one contending with another, and p [...]essing him by way of respect unto [Page 222] precedence should swear (as it often happeneth) not to stir out of the dore, sit at the Table, or touch the cup, till the other were first out, or fet, or had begun. Nay since commonly the per­sons so striving both swear the same thing, if such oathes were obligatory, one of them must needs be foresworne, because of necessity one must doe that, which each sware he would not doe. First I say as before, that an oath of this kinde is rash, and not with­out sin, because without judgement. Secondly, that it is neverthelesse in it self obligatory, except the act were alto­gether void of deliberation. But thirdly, that such obligation may either be stop­ped or taken away in such manner, as who doth otherwise then he hath sworn, may avoid Perjury. That is to say, the obligation may be stopped, if it be understood with a tacite condition, or exception; in this sense, If it please you, or if the thing be left unto me, I will not stir till you goe first. It may also be taken away, because seeing it proceeded from consideration of the place due unto the other, that other receding from his right, the obliga­tion [Page 223] ceaseth, as (God willing) when I come to the solution of the bond shall more plainly appeat.

SECT. XVII.

THe third Case is, whether a man doubtfull whether he have sworn, or no, be bound by by his oath? Some think he is not bound: from the rule of the Law; In doubtfull cases possession is the better title. But seeing this rule is of force in things appertaining only unto commutative Justice; as if the Heir of Caius should doubt whether the goods of the deceased bequeathed unto him by will were lawfully gotten; some, and more truly perhaps, think he is bound, unlesse he can clear his doubt. The reason is, because of doubtfull things the safer is to be chosen: and certainly it is more safe to think him­self obliged, then not obliged; because by that error he exposeth himself at the most, but to temporall inconvenience, by this unto the danger of perjury.

SECT. XVIII.

THe fourth case, whether man willing to swear, yet intending not to ob­lige himself, be neverthelesse obliged? Most of the Scholasticks and Casuists, they especially who were before Cajetan, deny him to be obliged; and Ovids Cy­dippe defendeth herself from perjury at this ward,

It is the minde with which we sweare,
And I had no such meaning there.

But the opinion of Cajetan, and his followers is sounder, who hold the par­ty deliberately swearing to be bound, whether he intend to oblige himself or not. For the act of swearing is both in it self obligatory, and proceeded from a deliberate minde. Therefore obliga­tion, unlesse it be otherwise impeded, must necessarily follow. Wherefore seeing that obligation floweth necessa­rily and naturally from an oath, it is not in the power of man to hinder or remove it; for the nature of things sta­ted, no man can hinder their necessary [Page 225] effects. Were it not ridiculous, if he who hath signed, and sealed a bond, shal plead that he had no intention thereby to ob­lige himself? Nay, would he not be ob­liged notwithstanding that plea? He therefore who taketh an oath, is as much obliged by the act of swearing, whatso­ever he intended, or professe he intend­ed. For he who intended the cause, is presumed also to intend the necessary ef­fect of that cause.

And thus, the goodnesse of God di­recting, and your patience accompany­ing me, at length I have finished this difficult and scattering dispute concerning the Bond of an Oath: the other part of this Treatise, which concerneth the Solution of the Bond, I shall shortly (by Gods help) deliver in one Lecture.

The seventh Lecture. Of the Solution of the Bond of an Oath; and of the use and abuse of Oathes; containing five Cases, and so many Conclusions.

Summary.
  • 1 What truth is required in a promissory oath.
  • 2 What the solution of the Bond is.
  • 3 Whether an oath may be dispensed with­all?
  • 4 The Popes power of dispensing with oathes examined.
  • 5 Whether an oath may be commuted.
  • 6 The Superior may invalidate the oath of his Subject.
  • 7 The matter of an oath ceasing, the obliga­tion ceaseth.
  • 8 An oath may be released by him unto whom it is made.
  • [Page 227] 9 It is not unlawfull to swear.
  • 10 The custome of swearing in ordinary [...]dis­course evill.
  • 11 A man ought not to swear without ne­cessity.
  • 12 Cautions in oathes required by others.
  • 13 An oath is not to be taken with an unsa­ti [...]fied Conscience.

SECT. I.

THe solution of the bond or tye where­with he who sweareth bindeth his soul, and whereof we have hitherto so largely discoursed, is the task of this day, and conclusion of the work proposed. Of which solution before we descend unto the particular kindes, two things are to be observed in generall. First, that solution of the bond is proper unto a Promissory oath, and hath nothing to doe at all with the Assertory. In every oath whether as­sertory, or promissory, there ought to be truth; but with this difference, in [Page 228] the assertory, a single truth, and for the present sufficeth, where in the promis­sory a double truth is required, one re­specting the present, the other the fu­ture. The present truth regardeth the act of swearing, and consisteth in this, that the party swearing say true when he sweareth; that is, that his minde agree with his words, and that he be re­solved to hold unto that which he pro­miseth. Which act of swearing in the promissory wholly agreeth as to the truth and falsehood with the act of swearing in the assertory. For the mat­ter of that truth in either act, seeing it regardeth the time present, passeth as it were into a kinde of immutable neces­sity, in as much as an oath, so soon as it is made, may instantly be said to have been true or false; which truth or falsehood, when the act hath once pas­sed, is as impossible to be altered, as it were to make a fact to have been no fact. That obligation therefore whereby the party swearing is bound for the present to say truth, falleth upon the act it self of swearing; and is inseparably conjoyned with that act, and for that reason cannot be loosed, nor separated [Page 229] from the oath: and of an assertory oath, except this for the present, there is no further obligation, because the matter thereof is some fact past or pre­sent. But in a promissory oath, the matter whereof is a thing to be per­formed for the future, another truth is also required for the future, which re­gardeth the matter of the oath; and consisteth in this, that the party swear­ing make that which he hath promised to be true; that is, that he fulfill his promise. Now seeing the matter of a promissory oath, to wit, things to be performed for the future, are through the uncertainty of future events, ob­noxious to manyfold changes and al­terations: hence it cometh to passe, that the obligation which falleth upon that matter, and whereby the party swearing is bound in future to fulfill his promise, is mutable, and separable from the oath. And this is that, which we call Solution of the Bond. From whence also followeth that which is to be observed in the second place; to wit, that the solution of the Bond in a promissory oath, ought not to be un­derstood in relation unto the former [Page 230] obligation, which ariseth from truth for the present, and is common with this, and the assertory oath; but ought to be un­derstood only in relation unto the la­ter obligation, which ariseth from truth for the future; which is proper and peculiar unto this. That is to say, every person swearing promissorily, ipso facto, and by vertue of the act of swearing is simply, and indissolubly obliged in present, to intend faithfully and from his heart to effect that afterwards which he promiseth; but having sworn, it may come many wayes to passe, that he may not be bound for the future, to ful­fill that afterwards which he formerly promised and intended. In a word thus, He is alwayes forsworn, who in­tendeth not that which he promiseth; but he is not alwayes forsworne, who performeth not that which he promised.

SECT. II.

NOW that a thing promised may neverthelesse lawfully, and with­out danger of perjury or other sin, not be performed, must necessarily happen [Page 231] one of these two wayes, either that there was no obligation from the be­ginning, or that it was (by solution of the bond) since taken away. If the thing promised were, when it was sworn, ei­ther impossible, or unlawfull, the oath taken unto the same imposeth no obli­gation, nor needeth solution, but pe­nitence; for as much as in so swearing grievous sin is contracted, but no bond; for we have already shewn, that impos­sible things, and unlawfull things are in no wise obligatory. Wherefore so­lution of the bond supposeth antecedent obligation, and implyeth that the same may be afterwards so taken away, or at the least obstructed, that he who was formerly bound up so close with the bond of his oath, that he might not under pain of perjury doe otherwise then he had promised, is now no far­ther bound unto the performance of his promise. The businesse therefore now in hand is to find out a certain rea­son, whereupon he who hath obliged himself by the bond of an oath unto the performance of a thing, may rest se­cure in his Conscience that he is deli­vered from that bond; and no farther [Page 232] bound unto the performance of that promise. To which solution those five wayes commonly assigned, we shall ex­amine in their order.

SECT. III.

THe first Case is of the dispensa­bility of an oath; Whether and in what the dispensation of a Superiour, may take away the obliga­tion thereof. Dispensation, as the word is commonly taken, signifieth exemp­tion of a person from the ordinary course of Law granted, by speciall fa­vour of him who is in authority. As if a man who is subject to any Law, should by especiall grace of his Prince be exempted from obedience unto that Law, as we see daily practised in U­niversities, where upon reasonable grounds dispensations are usually granted unto particular persons, where­by they are in some things freed from the observation of the Statutes. Now the right of dispensation is founded upon that equity, which requireth that sometimes the rigour of Law be in some things [Page 233] remitted, to the end that equity may not be excluded. For seeing Laws were of necessity made in generall tearms, and have regard unto that which is commonly and for the most part good and profitable for the publick, which ne­verthelesse pro hic & nunc, may happen to be unprofitable, or at the least lesse convenient; it therefore seemed good, where that which is established by Law appeareth to be exceeding burthensome, or inconvenient to some private per­son, and the publick to receive no great detriment by the omission thereof, that the Prince, or other legitimate Superiour, should have power to deter­mine, that the Law in such cases is not to be observed. And this is that which in Law we call Dispensation. Now what power is in secular Princes to dis­pense with their Laws, the same doe the Popes of Rome arrogate to themselves in dispensing with Vows and Oathes. Whose impudence in this kinde, whilest they absolve subjects of their Allegi­ance to Kings, null Leagues and Con­tracts made by Princes, untye the straightest knots of vows and oathes by commutation, relaxation, dispensa­tion, [Page 234] contrary command, or other ar­tifices at their pleasure, and for their profit, I could wish some who most just­ly condemn, did not most wickedly imitate. But though others de facto exercise this power of dispensing with oathes, yet the Pope only challengeth it unto himself de jure. Many even before Luther have grievously complain­ed of this thing, and sharpely inveigh­ed against the abuse of Papall Dispen­sations; unto whose writings I referre the studious, and betake my self by some arguments to prove the bond of an oath simply indispensable, so that no power at all of dispensing with it, is either in Pope or any other. First, because the obligation of an oath is of Divine naturall Law. But Naturall Law is not subject to Humane Power, seeing God alone is the Author and Lord of Nature: nor could it ever yet be shewn, that God hath granted unto any kinde or order of men, authority to dispense with the Law of Nature. Se­condly, because this power of dispensa­tion being granted, the chief end of an oath, which is security (as I may call it) for the thing promised, would ut­terly [Page 235] be overthrown: for he unto whom the oath is made can have no as­surance, if the promise of the party swearing may be dispensed with, that it should ever be fulfilled. Thirdly, because an oath in that very act and instant, whereby it imposeth the obligation of swearing, and the promise of perform­ance, acquireth right of the thing pro­mised unto the party to whom the oath is made; which two effects of an oath are so combined, that the one granted or denyed, the other also at the same time must necessarily be granted or denyed. Wherefore suppose the obliga­tion of the party swearing taken away by dispensation, and it followeth that the right of him to whom the oath was made, is also taken away by the same; and farther, that such Dispensation must be either needlesse, or unreasonable: needlesse and superfluous, if it be done with his consent, to whom the oath was made; if against it, unreasonable and un­just. For he being willing, the obli­gation (as I shall shew) may be re­mitted, even without dispensation; but to take away his right against his will, is injury. Fourthly, because in a pro­missory [Page 236] oath, obligation is not only made unto our neighbour, as it is pro­missory, but to God also as it is an oath. Wherefore granting, which is not to be granted, that Superiours have power to take away the obligation, whereby in regard of promise man is obliged to man; yet would it be unsupportable presumption, that dust and ashes should arrogate unto it self authority to take away the obligation, whereby man is obliged unto God as witnesse and re­venger. Fifthly, because humane dispen­sation is a matter of externall Judica­ture. But the obligation of an oath, is in the conscience within, which is subject unto no Judge but God; and belongeth not unto the Empire of man. Wherefore he who claimeth the right of dispensing with oathes, be he what he will, assumeth unto himself divine Power, seateth himself upon the bench of internall Judicature, and exerciseth Dominion over the Conscience. And such dispensation is de jure null, and invalid; even as that sentence is in­valid unto all intents and purposes of the Law, which is given by a Judge in a Court where he hath no­thing [Page 237] to doe, because there he is no Judge.

SECT. IV.

HEre the Patrons of Dispensation are wonderfully perplexed, how to ward the blow of the first argument, which is all they use to object unto themselves. It costs them much sweat to rowl this stone, (for they see it is the part of the Popes Authority, which lest his Kitching languish, must in any case be maintained) and they may put the gain in their eye; seeing they can­not finde wherewithall to make a solid defence, nor could ever yet agree amongst themselves, by what right the Pope arrogateth unto himselfe this power of dispensation. Which one thing were enough to argue them conscious of their weak pretences. For as in waging war, so in exercising power, the cause which is not stedily asserted, may well be presumed unjust. Some deduce this power of dispensing with vows, and oathes, from the ab­solute and Oecumenicall Authority, [Page 238] whereby the Pope is Lord of the Earth, and Emperour of the whole World. For seeing every person vowing or swear­ing is the Popes subject, this condition say they is understood in every vow or oath, to wit, If it please our Lord the Pope. Whereupon it followeth, that when the Pope signifieth, which he doth by way of dispensation, that he is not pleased the thing sworn should be ratified, the obligation presently cea­seth. Which opinion granted, the Pope at his pleasure may rescinde any oath, either with just cause or with­out it. Wherefore this rejected as too grosse, others, and among them some modern Jesuites deny, that the Pope can dispense with oathes, or dissolve Roy­all Contracts, or that he ever did it properly; that is, by taking away the obligation, or the obligation remain­ing by exempting any private person from the same: But they say that he dispenseth only improperly; that is, by declaring the oath in that case not obligatory, by reason of the hinderance of some good, or consequence of some ill, if the oath should be kept. But on the contrary, besides the evidence [Page 239] of his practice, which sheweth that the Pope exerciseth in this matter more then declaratory power, or (which com­eth to as much) under pretence of de­claratory power, can determine of Leagues, Vows, Oathes, Contracts be­tween Kings, or any other at his dis­cretion, being in this case Supreme and sole Judge, whose sentence must be obeyed, without appeal. It is worthy consideration, First, that either the Cause is manifestly just, why a thing promised by oath ought not to be per­formed, as if it be impossible, dishonest, or any way unlawfull; and then the party swearing may of his own autho­rity, nay ought withoutwaiting for dis­pensation from the Pope or any other, to retract the thing sworn: for where there is no obligation, the Conscience is free, and needeth no dispensation. Or secondly, that no just cause appeareth why the oath should not be kept: and then it must be kept; and he who either asketh, or granteth Dispensation, sinneth; Be­cause the obligation which neither can nor may be removed by humane power, remaineth. Or lastly, that the thing is doubtfull, and appeareth not by reason [Page 240] of difficulties on both sides, whether the party swearing be bound to the performance of his promise: and then it will be profitable to consult with pious, and prudent men, skilfull in divine Law, and to resolve with their advice what is most expedient. In which matter seeing knowledge is more re­quisite then power, I understand not why the Pope should be fitter then another man, unlesse it were certain the Pope excelled other men in pru­dence, and piety; for that which is not credible, certainly is not necessary. Thirdly, others not satisfied with this declaratory Dispensation, as detracting too much from the Popes authority, have beaten out an answer of wonder­full subtilty, that the obligation of an oath, which is of divine Naturall Law, may really be taken away by Dispensa­tion of the Superiour: but that it must not therefore be said, that the Superi­or dispenseth with Divine and Natural Law; because say they, that Divine Law of Nature is, that an oath so long as the strength and obligation thereof remain­eth, should be kept; and with this Law the Superiour dispenseth not, but by [Page 241] his Dispensation taketh away that strength of the oath, whereby it obli­ged the party swearing before the Dispensation. But this subtilty open­ed unto the quick would be found a meer trifle which availeth nothing, or implyes a contradiction; and is re­futed by the Jesuite Achorius, though Sayrus the Monk be about his ears for it. So whilest these Cadmean brethren dispatch each other by mutuall blowes, nor can finde any reason whereby to arm themselves in proof; they really confesse that the cause which they have undertaken, cannot be defended. Wherefore I conclude that neither Pope, nor Prince, nor Synod, nor Se­nate, nor Ecclesiasticall nor Secular Superiour, hath any right to dispense with Leagues, Contracts, Oathes, or to absolve any man from that Bond wherein before the Dispensation grant­ed he was engaged.

SECT. V.

WIth this first of Dispensation, the next question, or the se­cond Case of Commutation of an Oath is allyed. Now Commutation (as the word expresseth) is nothing else but trans­lation of the obligation from one matter to another, which whether greater, lesse, or equivalent, seemeth in some respect to be more convenient. And Commutation differeth from Dispen­sation, as a species from the genus, or part from the whole. For if a Bond could be loosed either by the one or other, it would be wholly unbound by Dispensation, by Commutation in part onely. The doctrine of Cafuists con­cerning Commutation, amounteth to this sum: First, that a private man of his own authority, without his Su­periours Dispensation, may commute a vow, or oath, into that which is evi­dently better; which they confirm by Gods example, who doth not always fulfill his temporall promises to the letter, but often changeth them for the [Page 243] better; and for confirmation of this opinion, they bring the speech of Gre­gory, He infringeth not his promise or purpose, who changeth it for the better. Secondly, that promise cannot be com­muted to that which is evidently worse, or whereof question may be made, whe­ther it be better, without authority of a Superiour qualified with legitimate power of judging and determining in that point. Thirdly, that by Commu­tation preexistent obligation is wholly taken off from the former matter, and new obligation brought in and laid upon a different matter. But this whole doctrine is built upon a false founda­tion, to wit, dispensability of an oath; which being (as we have proved) null, this superstructure of Commutation must necessarily fall to ruine. Wherefore briefly I say, that the bond of an oath cannot be remitted or losed, either in whole by Dispensation, or in part by Commutation, without consent of all the parties; But the consent of him unto whom the oath is made, is more especially required, because such right is acquired unto him, as without his own consent ought not to be taken [Page 244] away. For the example of God it suiteth not, because his promises as they are all of free bounty, so the temporall ones are also conditionall, and to be understood with exception of the Crosse, of the good pleasure of God, and of that which he knoweth to be most profitable for us. Neither is the case of a Vow, and of an Oath altogether alike in respect of Commutation; for in a vow seeing it is made to God a­lone, some liberty may perhaps be granted unto the person vowing of changing the same into another which may be evidently better, and more ac­ceptable unto God, there being no­thing in this alteration injurious unto a third person: but in an oath which is made unto man, injury might be done him, if it should without his consent, and against his will be commuted in­to any other thing. As if Caius sworn to pay ten pound unto Titius, should give him an Horse worth ten pounds, it would not satisfie his oath, for it is not reasonable that a man should be forced to commute a thing due unto him. Wherefore the bond of an oath cannot be loosed, nor the obligation [Page 245] taken away by either of these inven­tions.

SECT. VI.

BUt it seemeth it may by the three wayes remaining; to wit, Irritation of the Superiour, Cessation of the mat­ter, and Relaxation of the party. Where­fore the third Case is, of solution of the bond by irritation declared by the Su­periour. Now Irritation, (for so with the Casuists, we must speak, though barbarously) signifieth an act of the legitimate superiour, whereby of his Authority he rendereth an oath made by his Subject without his consent null and void. For that legitimate Supe­riours may rescinde Vows, and Oathes, of such as are not free, but under their Authority, Moses teacheth (as when we were upon the efficient cause we observed) largely throughout this chapter. The reason is, that he who is in the power of another, is not in his own, nor can oblige himself in things wherein he is subject, without leave from his Superiour; and there­fore [Page 246] he ought not by any act of his to bring obligation upon himself with­out the others consent, either expres­sed, or upon reasonable grounds pre­sumed. For the rights of Rulers over their Subjects are by the immoveable and e­ternall Law of God perpetuall. More­over the duty of Subjects together with the right of obedience and subjection, are by the same perpetuall Law, per­petually and indispensably obligatory. Which antecedent obligation (by our third Hypothesis) obstructeth the ef­fect of a subsequent oath, in such man­ner as it cannot be binding: for the for­mer obligation ever prejudgeth the latter, and rendreth every act introductive of new, and contrary obligation, invalid. Wherefore in this case I say first, that a Subject ought not by oath to promise any of those things wherein he is subject unto another, without the consent of his Superiour at the least presumed. Secondly, that if he have sworn, and the thing be lawfull, he is so long obliged unto performance, as it appeareth not to be against the will, dignity and profit of his Supe­riour. Thirdly, that the Superiour if [Page 247] he have by expresse consent, whether before or after, once ratified the promise of his subject, cannot make the same afterwards void, or null the obligation thereof. Fourthly, if the Superiour so soon as he cometh to know of the mat­ter, openly and peremptorily, declaring his dissent, forbid the performance of the same, that the transitory obligation pre­sently ceaseth, and the subject by vertue of his former obligation of duty, which is permanent, and perpetuall, is bound notwithstanding his oath to obey his Superiour. Whence if any man sub­ject unto the power of another, whether Master, Father, or Prince, voluntarily compelled by force or fear, or misled through fraud, or example of others, happen to make any oath, whereunto he believeth his Master, Father, or Prince, had he bi [...] present, would not have con­descended; the same hath sinned against his duty in swearing, and is bound in no wise to fulfill that oath. Resolved therefore upon this question, that irri­tation of a legitimate Superiour may cancell the Bond of an Oath.

SECT. VII.

THe fourth Case is of the solution of the Bond, by cessation of the matter, or some considerable alteration happen­ing unto the principall cause of an oath: And it is then to be supposed that the matter ceaseth, when between the time of the oath sworn, and that wherein it is to be performed, the state of things is so changed, that if the party could have foreseen what would have followed, he would by no means have sworn. I answer briefly, that the matter of the Vow, Oath, or Pro­mise ceasing, the obligation thereof must also cease: as in naturall and artificiall things, where matter is defective, the action of the agent must be likewise of necessity deficient. For neither can fire burn except it have combustible mat­ter, nor a Carpenter make a fourm without wood. Wherefore if a Soul­dier swear obedience unto his General, the War ended, and the Generall re­formed, he is not bound by his oath to yeeld him obedience. And if a [Page 249] Father swear never to alter the Will whereby he made his son his Heir, yet finding his Heir afterwards practising upon his life by poyson, the Father is no farther bound by his oath, but notwithstanding the same may alter his will, and adopt another Heir. The same may be said where a man having heard the Statutes of any College or Society read unto him, sweareth to ob­serve them; if these Statutes happen afterward to be revoked or abrogated, the party swearing is absolved from the bond of his oath. The reason is, that the root of obligation being pul­led up, the branch must needs wither. Now the matter which gave occasion unto the oath, was the root of that obligation which sprang from the oath. For an Oath followeth the nature and condition of the Act wherewith it is joyned, that is the matter which it containeth; as an accessory followeth the nature of its principal: and Accessories, say the Law­yers, are extinct, if you destroy the Principals.

SECT. VIII.

THe last Case is of Solution of the Bond by Relaxation of a party; to wit, of him to whom the oath was made: as if Caius should promise any thing to Titius, whether Titius remitting the obligation, Caius be obsolved of his promise? Where the first thing to be observed is, that this kinde of speech To remit an Oath, and the other which resembleth it, To favour a man of his oath, are not alwayes taken by good Authors in the same sense. For sometimes they are used in relation to an oath to be made, and so he is said to remit an oath un­to another, or to favour him of his oath, who the other being prepared to swear, contented with his good will, waveth his oath, and crediteth him without it; or for any other reason requireth not an oath from a person of whom he hath right to require it. But for the most part they are taken with relation unto an oath made, and so he is said to remit or favour a person of his oath, who pardoneth the performance of that which the per­son had promised, nor though he have [Page 251] right to doe it, requireth the thing due by vertue of that oath. So Sue [...]onius saith, that Tiberius [...]voured a Roman Knight of his oath, suffering him to put a­way his wif [...] taken in Adultery with his son in law, though he had sworn never to re­pudiate her. And the Emperours Anto­ninus, and Verus, signified to one who had sworn never to be of the order, and yet was created Duumvir, that they f [...]oured him of his oath. And this is that remission or favouring of an oath which Casuists call Relaxation. Whereof I say first, that this Relaxation taketh place in Oathes, Leagues, Bargains, and other humane Contracts, not so in Vows. The reason of this difference is, becaus [...] vows are made unto God as a party, but man hath power to remit those on­ly which are made to man. Secondly, I say, if an oath be sworn in favour of another, that is in order unto his ho­nour, power, profit, or other conve­nience, that it is not binding, ex [...]pt he in whose favour it is made, accept, and ratifie the same. As in our Law, a bond obligeth not Caius to pay an hundred pounds unto Titius, though [...]gned with the hand of Caius, and [Page 252] sealed with his seal; except Caius de­liver it unto Titius, and Titius, or some other accept of it, in his name, and to his use. Thirdly I say, an oath so made, if the person unto whom it is sworn confirm the same, and expect the performance, cannot be relaxed by any third person. The reason is, because no man can take away right acquired un­to another, without consent of the party. Whence it followeth, that the obligation (as we have formerly said) of an oath cannot be taken away by dispensation, except the party be wil­ling. Fourthly I say, if he to whom the oath is sworn remit it, and would not have it be kept, that the par­ty swearing is forthwith absolved, and no more obliged in conscience to perform the thing which he had pro­mised. Wherefore Caius being sworn to pay Titius an hundred pound, if Titius afterwards remit the debt, he is no farther bound by his oath. The reason is, because any man may recede from his own right, and pardon a debt due unto himself, and the debt being absolved, it must needs follow, that the obligation cease, seeing so­lution [Page 253] of the debt is the period of ob­ligation, as appeared by the definiti­on of the same, and amongst us by the form of a bond, the conditions where­of performed, the bond becometh void, and of none effect. If you object that the debt is not absolved, because the promise is not performed. I an­swer, it is the same to all intents and purposes of the Law, whether it be really fulfilled or acknowledged by the party whom it concerneth as fulfilled. The reason is, because the acceptation of the person interessed, is interpretatively payment: and so, the matter as it were ceasing, the obligati­on ceaseth, much after the manner whereof we have spoken in the fore­going Case. And this is that which Lawyers call Acceptilation, by which (though a Civill Solution, and not real) they affirm obligation to be no lesse ta­ken away then by the reall. If again you object, that although the obligation made to man might be taken away, by Relaxation, yet it seemeth the obliga­tion to God should remain, as was answered in case of an oath extorted by fear. I answer that the bond relaxed, [Page 254] after the manner expressed, doth no in­jury unto God in the violation of an extorted oath, because a promise made in favour of another, is only directed unto God as witnesse of the pro­mise made unto man, and revenger of the violation of that faith which is en­gaged unto the other; which faith see­ing he violateth not, but fulfilleth his promise, he is wholly absolved from all obligation, both towards God and man. Fifthly I say, that solution of the Bond by Relaxation of the party, ex­tendeth so far as pleaseth the party relaxing. As if Caius have sworn to pay Titius an hundred pounds, and Titius have afterwards remitted fifty pounds, the obligation is not wholly absolved, but in part. That is, the bond as to the fifty pound remitted is void, but it remaineth good as to the fifty pound not remitted. Again, if Caius have sworn to pay Titius an hundred pounds within 20 dayes, and Titius per­ceiving that Caius cannot without in­convenience unto himself pay the mony at the time appointed, give him other twenty days: This Relaxation made by Dilation, or propagation of the [Page 255] time, remitteth so much of the obliga­tion, that he is not bound to pay the money within the time limited, by his oath; yet he is bound, and that by vertue of his first oath, to make pay­ment within forty dayes. Sixtly I say, that Relaxation by a party is of force, so far as that party is concerned, but is not of force to the prejudice of a third person. The reason is, because any man may by act remit, as much of his own right as he pleaseth, but no man can diminish the right of another, with­out his knowledge and against his will. Let men therefore so recede from their own, that the rights of others receive no detriment. Thus Abraham, Gen. 14. receded from his right, when after the victory won upon the four Kings, he bestowed his whole share of the spoyl upon the King of Sodome, reserving un­to the three Commanders, his fellows in arms, their due proportions. Whence Caius sworn to pay an hundred pound unto Titius and Julius, if Titius pardon him his part of the debt, he is absolved as to that which was due unto Titius; but remaineth bound as to that which is due unto Julius. Upon the same [Page 256] ground Relaxation by consent of the parties availeth nothing in Contracts of Marriage; because therein mans profit is not regarded only, but the Ordinance of God also, to whom great injury would be done, if that contract though with mutuall consent of the party should be violated. For the vertue, and and efficacy, which this Relaxation, whereof we now speak, hath to null obligation, supposeth that act which introduced obligation, to have consi­dered nothing else but the good, and profit only of the party relaxing. If any other party be by right of his own interessed, that the obligation should not be remitted, the obligation is not remitted.

SECT. IX.

NOw the sum of what hath been said concerning Solution of the Bond in an Oath is briefly this, That the Bond of an Oath cannot be released by Dispensation of any Superiour, or Com­mutation, so as to free the Conscience of the party swearing from performance [Page 257] of the promise: but may neverthelesse be rescinded and made void by a Supe­riour having lawfull authority, cease through defect of the matter; or be relaxed by him unto whom the promise was made, so as to lose all strength of obligation. The promise which I made at my entrance upon the Office of Publique professor, being now (by Gods assistance) performed, according to my talent, with as much brevity, p [...]rspicuity and fidelity, as I have been able; I thought fit to adde some few admonitions concerning the use and abuse of Oathes, as Corollaries, whereby our lives, and Consciences may be profi­tably directed, not by way of exhor­tation, as they use in Sermons, but remembring I teach in the School, and not in the Church, by way of Thesis, or practicall Conclusions, briefly proposed, and clearly explained.

SECT. X.

THe first Conclusion is against Anabap­tists and Socinians, That the use of Oathes is lawfull. I prove it first by [Page 258] the practise in the Old Testament. The godly Patriarchs sware; Controversies were determined by oath according to the Institution of Moses in the Law; the Prophets prescribed the condition of oathes to be observed. Nor can any just reason be rendered, why this should be lawfull for the pious under the Old, and not for the faithfull under the New Testament; seeing it is apparent from the end of an oath, whose use is perpetuall, that it appertaineth not unto the Ceremoniall Law abrogated by Christ; and from the form which seemeth to have nothing common with the type. I prove it, secondly, by the exam­ple of God, of Angels, of Apostles: those being often introduced in holy Scripture, swearing after the manner of men, these Historically. Thirdly, by the custome of all Nations, who di­rected by the light of Nature, have judged the bond of an oath for the convenience of Civill Society, the surest confirmation of Faith, then which there can be no clearer discovery of the Law of Nature. Fourthly, from the end of an oath, which is the confinmation of truth in doubtfull matters, where [Page 259] all other proofs are defi [...]int; which end seeing it is necessary for the com­posing and determination of Contro­versies, it must needs be that the ne­cessary means unto the end, should be at the least lawfull. Fifthly, from the nature of an oath containing nothing in it self which is intrinsecally evill; for neither is a religious act evill, nor the Confirmation of a doubtful thing evill, nor Invocation of Divine testimony evill; of which members the essentiall defi­nition of an oath consisteth.

SECT. XI.

THe second Conclusion, The use of Oathes in common discourse is unlawfull. The first proof is from the nature of an oath, Because every religious act being a part of Divine Wotship ought to be performed with due reverence, and with some both preparation and atten­tion; all which must needs be far off, when oathes are rashly scattered with­out judgement, or heedlesly without consideration. The second from the end, which is the confirmation of a [Page 260] doubtfull businesse, seeing our ordinary discourse is for the most part upon fri­volous matters, which either are not doubtfull, or not of moment to require religious confirmation; or if they were, would be little more credited for his oath, who maketh swearing his common custome; for such will be as­soon believed, if that which they say seem true, without an oath, or if other­wise, no whit the sooner for swearing. The third from the Cause whence such kinde of Oathes are derived; which is either a vitious habit contracted by long and pernicious custome; which habit is the fruit, and mark of a pro­fane, if not Atheisticall heart; or some exorbitant perturbation of the mind [...], as excessive anger, intemperate joy, with which whilest the minde boyles, the mouth foameth to the dis­honour of God; and at which those words of James seem peculiarly to aim; Chap. 5. vers. 1 [...]. But above all things, my Brethren, swear not, neither by Heaven, neither by the Earth. In the foregoing ver [...]es, he exhorteth the faithfull to suffer injuries with patience, and in the following v [...]r [...]e teacheth the Chri­stian [Page 261] how to entertain himself whether he be sad or cheerfull: a place worthy to be the exercise of learned men, and something more diligently considered, then as yet it hath been by Interpreters. Perhaps this cursory Paraphrase upon the words such as it is may contribute something towards that end; as it seemeth unto me they expresse thus much. Set the examples of antient Prophets and holy men before your eyes. If ye suffer adversity, imitate their patience. If in all things you cannot attain to that perfection, yet thus far at least, except ye be extreme neg­ligent, you may goe with ease, above all things, take heed lest too impatient of your grief, or too much transported with your joy, ye break forth into rash oathes, to the dishonour of God, and shame of Christian conversation. But rather contain your selves, whether troubled or rejoycing, within the bounds of modesty; mingle not heaven, and earth [...] let not all things be filled with your oathes and cla­mours; if you affirm orderly a thing, let it be with calmnesse, and a meer affirmation, or negation: But if either of these passions be more impetuous, and strive to overflow the narrow channels of your bosomes, it will be your wisdomes to let it forth unto the glory of [Page 262] God. Doe you demand by what means? I will tell you: Is any amongst you afflicted? Let not his impatience break forth into oathes and blasphemies, the floodgates of wrath; but rather let him pray, and humbly implore God that he would vouch­safe him patience, till his heavy hand be removed. Is any merry? Let him not bellow it forth in Oathes, like a Baccha­nalian, but rather sing it in Hymnes and Psalmes unto the praise of God; who hath made his cup to overflow, and crowned him with happy dayes. If any man admit not this latitude unto the Apostles words, let him use his own judge­ment. I have onely expressed that which I think probable, and give no man Law. But to return, if I have digressed; it is certain that the words of James altogether condemn that evill custome, which is now grown amongst high and low▪ men of all sorts inveterate. It would cost me many leaves to sum up that which hath been declared against this impi­ous use by holy Fathers, ancient Do­ctors of all Nations, Hebrews, Greeks, Latines, yea even Heathens; of many take a few: Sirach the wisest of the [Page 263] Hebrews, Accustome not thy mouth to swear­ing: As a servant that is continually beaten, shall not be without a blew mark, so he that sweareth, and nameth God continually, shall not be faultlesse. A man that useth much swearing shall be filled with iniquity. Amongst the Greeks, Eusebius the Hea­then Philosopher, Many (saith he) ex­hort men to swear the truth, but I am of opinion that men ought not easily to swear at all. Amongst the Latines, Augustine; Beware of oathes as much as you may, be­cause it were better not to swear, though a truth; not that it is sin to swear truth, but that it is a most grievous one to swear false­hood; into which he may the sooner fall, who accustometh himself to swearing. And in another place, a false oath is destructive, and even a true one dangerous. But what need is there of other testimonies, seeing this dayly and unnecessary use of swear­ing is so positively forbidden, as scarse any thing more in holy Scriptures; by Christ himself; But I say unto you swear Mat. 5. 34. not at all; and by his Apostle St. James, in the place cited, Above all things swear not.

SECT. XII.

THe third conclusion, An oath ought not to be made but upon a just, weighty and necessary occasion. An oath is of those things which are neither evill in themselves, as murther, sacriledge, perjury, and all other vices be; nor of those which are desirable of them­selves, as deeds of Charity, Justice, Obe­dience and all other vertues; but of such as are good only because necessary, by Hypothesis, and for their end, and not desirable, but in order unto that end, of which sort are all those which are ordained for the redresse of some defect, as Physick. For as a medicine was not invented for it self, but for health; and as there would be no use thereof, if mens bodies were not obnoxious unto diseases, (Honour the Physitian for necessity sake:) so an oath is instituted for the confirmation of faith amongst men; nor would be of any use, if mankinde were not alasse too subject unto ignorance, and perfidy; [Page 265] which perhaps was our Saviours meaning by those words, Matth. 5. 37. cometh of evill. Wherefore as the use of Physick, where it seemeth not ne­cessary to the preservation of life and health, is to be avoided: so oathes are likewise to be avoided where necessa­ry preservation of humane society, and confirmation of faith seem not to require them. That admonition of Epictetus (as all the rest of that Sto­ick) is wholesome, Avoid an oath, if you can, wholly: if not, as much you may. An oath is a sacred thing, but by how much the more sacred, by so much the more dangerous, if unduely taken. As medicines of the greatest ver­tue and efficacy are the more hurtfull unto the body, if rashly and unskilful­ly administred. The use of assertory oathes is necessary in Common-wealths, especially in Courts of Justice, for the investigation of truth in matter of particular fact, whereunto belong oathes, witnesses, Compurgators, &c. In extrajudiciall and private businesses, it is not so frequent, yet it may be sometimes necessary; to wit, where it [Page 266] concerneth a man very much to be believed, and he cannot be believed except he swear. The promissory oath is of no use in Justice, but of very great in extrajudicials, both publique and private. First publique, to keep sub­jects in allegiance unto their Princes; for the confirmation of Leagues and Contracts of Kings and Common­wealths; for the observation of Laws, and Statutes; and consequently honor, order, and peace of politique bodies, and Societies; for the faithfull ad­ministration of publique Offices, and the like. And also private, as the An­tients often used it, for establishment of Contracts; performance of Condi­tions between buyer and seller; pay­ment of debts; restitution, loans, pro­fits, trusts, &c. But in most matters of private concernment, other wayes may be taken with lesse scruple of Conscience, and better assurance a­gainst the perfidy of wicked men: as Pawns, Feoffees, Bonds, Witnesses, and other judiciall obligations. And where such may be conveniently used, it is best to abstain altogether from oathes; [Page 267] lest by frequent swearing, and upon slight occasions, the too familiar use of a thing so sacred degenerate into contempt; or whilest we practise swear­ing, we learn perjury. Augustine saith truly; Except a man have tryed, he cannot know how hard a thing it is to shake off the custome of swearing; and not to doe that rashly, which sometimes he must doe ne­cessarily.

SECT. XIII.

THe fourth Conclusion; It is a grie­vous sin, unduly to exact an oath. Now he exacteth unduly, First, who com­pelleth another to take an oath, which is neither ordained by the Law, nor received by custome, nor established by undenyed prescription, without In­termission. Secondly, who exacteth an oath evidently repugnant, or which seemeth by that sense, which the words bear, according to their use in common speech, to be repugnant unto a former oath lawfully taken. Thirdly, who compelleth another to [Page 268] 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 [Page 270] 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 guil [...]lesse that ta­keth his Name in vain, to fear and tremble, lest whilest we behold on every side the plentiful [...] 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, [Page 271] 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 oath [...]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 bese [...]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 [Page 272] we flye all unnecessary Oathes, con­stantly refuse those which are unlaw­fully requi [...]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
  • [Page] Any man may recede from his own right. 252
  • Asseverations, Attestations, and Oathes dif­fer. 164
  • Assuerus [...]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
  • [Page] 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.
  • [Page] 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 s [...]earing, how far bound by his oath. 126
  • Herods oath. 4. 19. 97
  • He that [...]wears by Idols, swears by them he thinks to be Gods. 9
  • How to know whether a man have sworn o [...] [...]o. 163
I.
  • [Page]Jacobs covenant with Laban. 163
  • Jesuites defend AEquivocation. 194
  • Impossible things oblige not. 60. things may be impossible three wayes. ibid.
  • 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
  • [Page] 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
  • [Page] 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 [Page] 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
  • [Page] 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
  • [Page] 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
  • [Page] 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
  • [Page] 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.

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