The Dippers Dipped, Article 5
ARTIC. 5.
Concerning taking an oath, especially ex officio.
ANABAPTIST.
NO Christian may lawfully take an Oath,Pontan. Catal Inter errores Politicos Anabaptistarum recenset hos duos, non licere exercere judicia vel in f…ro contendere, non licitum esse dare juramentum. Sleid. com. l. 10. dicunt non licere Christianis in foro contendere, non jusj urandum dicere. no not though it be required by a Magistrate, especially such an Oath, whereby they may hazard their life, liberty, or estate.
THE REFUTATION.
Though this assertion of the Anabaptists as they maintaine it, hath a glosse and varnish put upon it of piety, prudence and justice; of piety, in preventing all occasion both of false and vaine oathes; of prudence, in not insnaring our selves; of justice, in not concurring actively to our own prejudice or wrong: yet upon due examination it will appear to be repugnant to all three; to piety, by robbing God of a part of his substantiall worship, to wit, a holy kind of invocation; to prudence, by unfurnishing our selves sometimes of our best defence, which is to cleare our innocency by oath; to justice, by depriving all Courts of justice of this soveraigne evidence of truth, and all humane society both of the surest tye of fidelity, and the readiest meanes to end all strife and controversie. For the farther manifestation whereof I am to cleare three points, 1. That oathes may lawfully be taken by Christians, 2. That some oathes may be lawfully exacted of them, and imposed upon them. 3. That oathes may be lawfully urged and exacted not only in civill, but in criminall causes, such as are commonly tearmed oathes ex officio, when a man is required to answer upon oath concerning some crime or fault objected to him, or articled against him. Some deny it to be lawfull to take any oath, others allow of oathes freely taken, but not imposed: a third sort dislike not all oathes imposed, but only except against oathes ex officio. These three questions hang as it were upon one string. For if no oath may bee lawfully taken, certainly none may be lawfully imposed, and if oathes may not be imposed, least of all the oath ex officio, whereby we hazard and endanger our lives, liberties, limbes or estate if we confesse, but our soules if we deny upon oath, what is truly laid to our charge. Againe on the contrary, if the oath ex officio in some cases may be lawfully imposed, then other oathes may be imposed with much lesse difficulty; and if oathes may be lawfully imposed, certainly they may be lawfully taken. Yet must these questions of necessity be handled apart, for the satisfaction of scrupulous consciences, who first must be perswaded of the lawfulnesse of taking an oath in generall, before they will suffer an oath to be imposed upon them: and secondly, that the Magistrate hath a lawfull power to exact oathes, before they will take such and such a kind of oath required of them.
To lay the foundation therefore firme, before wee build any thing thereupon. First I prove the lawfulnesse of taking oathes, the conditions prescribed by the prophet being observed,…er. 4. 2. namely that we sweare in judgement, righteousnesse and truth: in truth, not falsely; in judgement, not rashly; in righteousnesse, not wickedly, to the prejudice of equity, or breach of Christian charity.
ARGUMENT I.
Whatsoever God commandeth is lawfull, for Gods command is the rule of good, his command maketh that good which otherwise were evill, as Abrahams offer to kill his sonne, and the Iewes robbing the Egyptians of jewels of gold, and silver: and in like manner his prohibition makes that evill, which otherwise in it selfe were good, as working in a mans calling on the Sabbath, the sparing the fattest of the cattell for sacrifice by Saul; If every sinne be a transgression of the law: it cannot be sinne to fulfill it.
But God commandeth taking of oathes, as part of his worship, Deut. 6. 13. Thou shalt feare the Lord thy God and serve him, and sweare by his name. Deut. 10. 20. To the Lord thou shalt cleave, and sweare by his name, hee is thy praise, and he is thy God. And Ier. 4. 2. Thou shalt sweare, The Lord liveth, in truth, judgement, and justice. And to such as sweare in such a holy and religious manner God promiseth a blessing both outward, and inward; outward, Ier. 12. 16. If they will diligently learne the wayes of my people to sweare by my name, then shall they bee built in the midst of my people; inward, Psal. 63. 11. The King shall rejoice in God, and every one that sweareth by him, shall rejoice or glory in him.
Ergo, to sweare is lawfull for Christians,
ANABAP. ANSVVER.
It was lawfull to sweare when God commanded it under the law, but it is not now lawfull for Christians, sith Christ hath forbidden it in the Gospell.
REPLY.
1. The same God is Law-giver both to the Iewes, and Christians, and the same truth shineth in the law, and in the Gospell, only with this difference: in the law it shined through a tiffany or vaile of rites, and ceremonies: but in the Gospell as it were with open face. The vaile is now taken away, whereof religious swearing by the name of God was no part. For an oath containeth not a resemblance of Christ, but a worship of God. It is no type or sign of grace, but seale of truth, the sense whereof is meer morall, the law of it naturall, the use perpetuall, the worship performed in it to God is essentiall. When we call God to witnesse a hidden truth, in the sincerity of our intentions, wee agnize his Soveraigne greatnesse. For every oath is by a greater, Heb. 6. 16. we professe his all-seeing wisdome, we invocate his revenging justice, which are not rituall, but substantiall parts of worship. In which regard in the texts of the Prophet Ieremy above alleadged, swearing is joyned with the feare of God, and cleaving to him; both duties of the first table, required by the eternall and morall law of God.
2. As we have warrant for swearing in the old Testament, so also in the new; for Christ himselfe was made our Priest by oath. Heb. 7. 21. Those Priests were made without an oath, but this with an oath, by him that said unto him, The Lord sware and will not repent, thou art a Priest &c. By so much was Iesus made a surety of a better Testament. God his using an oath for confirmation of Christ his Priesthood warranteth the custome of giving, and taking an oath at the Inauguration of Emperours, Coronation of Kings, Consecration of Bishops, Ordination of Ministers, and generally the admission of any person of quality into any place of trust, or command, or weighty charge, in Church or Common-wealth. God himselfe using this kind of confirmation, confirmeth this kind and use of an oath. Neither are promissary oathes only approved by the Gospell, to bind our faith, and assure loyalty and fidelity, but also assertory, to cleare doubtfull truth, and end litigious suites; Heb. 6. 16. For men verily sweare by the greater, and an oath for confirmation is to them an end of all strife, even Christ himselfe who is AMEN, the faithfull witnesse, and in whom all the promises of God are yea and AMEN, often corroborateth his divine Essayes and heavenly promises, with that sacred ingemination AMEN, AMEN; which is virtually, if not formally, an oath according to the strict definition of an oath,…ic. ter. offic. which is, affirmatio religiosa, or as the Schooles define it more fully, affirmatio vel negatio interposita religione, a religious asseveration, or the affirming and denying any thing with a divine attestation.
Christ in the fifth of Matthew forbiddeth not all kind of swearing, but the ordinary and accustomary swearing then in use among the Iewes, and allowed by the Scribes and Pharisees, who erroneously conceived, that swearing by heaven and earth, or Ierusalem, or any creature, was no taking Gods name in vain, because in such oaths Gods name was not used. This practice of theirs our Saviour condemnes, and refutes their errour, Mat. 5. 34. Sweare not at all, neither by the heaven, for it is Gods Throne, nor by the earth, for it is his Footstoole, nor by Ierusalem, for it is the City of the great King, &c. But of this more in the solution of the adversaries objections.
ARGUMENT II.
That which hath been practised by God himselfe, the elect Angels and Saints speaking by divine inspiration, cannot be sinfull or unlawfull; else we should make God himselfe the Authour of sinne, and lay impiety or iniquity to the charge of holinesse and justice it selfe.
But the Scripture bringeth in, first, God swearing, Gen. 50. 24. Exod. 13. 5. 11. Exod. 33. 1. Numb. 14. 16. 23. 30. Num. 32. 10. 11. Deut. 1. 8. & 8. 35. Ios. 5. 6. Psal. 95. 11. & 110. 4. Heb. 6. 17. & 7. 21. 22. Secondly, Angels, Dan. 12. 7. I heard the man cloathed in linen, when he held up his right hand and his left to heaven, and sware by him that liveth. Rev. 10. 5. 6. And the Angell which I saw stand upon the Sea, and upon the earth, lifted up his hand to heaven, and sware by him that liveth for ever, that there should be time no longer. Thirdly the Saints Abraham, Gen. 21. 24. Iacob. 31. 53. Ioseph, Gen. 47. 35. Moses. Ios. 14. 9. David. 1. Sam. 20. 3. & 24. 22. Ionathan, 1. Sam. 20. 16. Eliah, 1. Kings 17. 1. Gedallah, 2. Kings 25. 24. Asa. 2. Chron. 15. 14. Obadiaah, 1. Kings 18. 10. Elisha. 2. Kings 2. 6. Ergo, swearing is not unlawfull.
ANABAP. ANSWER.
God giveth the law to us not to himselfe, and for the examples alleadged out of the old Testament, they are no good Precedents for us to follow, because the people of God were not forbidden to sweare by God in the law, but we are by Christ in the Gospell.
REPLY.
Though God be under no law, yet he is a law to himselfe, his nature is his law, which he never doth or can transgresse, violate or dispense with. He is all light, and there is no darknesse; all truth, and there is no falshood; all justice, and there is no iniquity in him.
Neither is it true that the Saints under the Gospell lie under a greater restraint in respect of oathes, then those under the law: for as they, so these have not refused upon just cause, and weighty occasions to appeale to God, and call him to attest the truth of their speeches, and sincerity of their intentions. For how many sacred attestations in this kind find we in the writings of the Apostle? neither can it bee said he used them being transported by passion, or out of infirmity, for his Epistles are inspired, and the religious asseverations in them, are no other then the dictates of the Holy Ghost. Such are these Rom. 1. 9. God is my witnesse whom I serve with my spirit in the Gospell of his Son, that without ceasing I make mention alwayes of you in my prayers, Rom. 9. 1. I say the truth in Christ, I lie not, my conscience also bearing witnesse in the Holy Ghost, that I have great heavinesse and continuall sorrow in my heart, 2. Cor. 1. 23. I call God for a Record upon my soule, that to spare you I came not as yet to Corinth, Gal. 1. 20. Now the things which I write unto you, behold, before God I lie not. Phil. 1. 8. For God is my Record, how greatly I long after you all in the bowells of Iesus Christ, 1. Thess. 2. 10. Yee are witnesses, and God also, how holily, and justly, and unblameably we behaved our selves among you that beleived.
ARGUMENT III.
No part of Gods true and substantiall worship can be sinfull; else vertue should be vice, and godlinesse it selfe wickednesse, light should bee darknesse, and good, evill. But swearing with such cautions and provisoes as are set downe by the Prophet Ieremy, is a part of Gods true and substantiall worship, for it is a religious invocation of his name, with an acknowledgement of his omniscient wisdom, and omnipotent justice: omniscient wisdom, whereby he knoweth all hidden things, and the very thoughts and intentions of the heart of man; and omnipotent justice, whereby he is able and will punish those sinnes, which come not within the walk of mans justice.
Ergo, swearing after a religious manner cannot be sinfull.
ARGUMENT IV.
Whatsoever is necessary for the detecting and punishing of wickednesse and vice, and the acquitting of innocencie, and preservation of all humane commerce, and society, cannot be sinfull and unlawfull. For where God appointeth the ends, he appointeth also the meanes; and as the powers that are, are ordained by God, so the estates that are to continue among men, are established by him.
But the giving and taking of oathes, is necessary for all these ends, as the experience of all Societies demonstrate, and the practice of all Courts both Ecclesiasticall and civill, and the custome of all nations, wherein there is any use at all of distributive or commutative justice.
Ergo, taking and giving oathes cannot be unlawfull.
To these two latter arguments, because the Anabaptists have shaped as yet no answers, I forbeare to adde any thing for the confirmation or illustration of them, and now I come to refell their objections, and break in pieces those bulrushes, wherewith they fight against the lawfull use of oathes, as well publick as private.
If all oathes are forbidden simply,Obj. 1. then no Salves, or Provisoes, or limitations above mentioned will help the matter.
But all oathes are forbidden simply, Mat. 5. 34. But I say unto you sweare not at all, and Iames 5. 12. But above all things my brethren sweare not.
Ergo, no religious Christian must or may sweare upon any tearmes. To oppose as it were the prohibition of the Sonne to the command of the Father,Sol. 1. and to affirme that, what the Father commandeth in the Law, the Sonne forbiddeth in the Gospell, is to blaspheme with Marcion, and make the precepts of the holy Ghost to clash one against another. I answer therefore as before, that our Saviour forbiddeth not all kind of oathes, or manner of swearing, but such as was then in use, and allowed by the Scribes and Pharisees, who fondly and absurdly conceived, that to sweare by heaven or by earth, or any other creature was no breach of the third Commandement,Calv. instruct. adv. Anabap. Populus male instructus a suis doctoribus put abat non jurari cum obliquae sumebatur nomen Dei. Comment. in Matth. non prohibet, ae juremus, sed ne ju…emus per creaturas. because in such oathes they took not Gods name in vaine; and this is Saint Ieromes interpretation: Christ, saith he, forbids us not simply to sweare by the creatures, viz. either by the heaven, and earth, as the Scribes and Pharisees used to sweare, nor by the light, as the Manichees, nor by the Stars, as Iupiter in the poet, per sidera juro, nor by the life of their Princes, as the Egyptians and Romans, per genium Caesaris, or, per patrios cineres, by their parents ashes, as most of the heathen. For sith swearing is a part of divine worship, to sweare by any creature is to ascribe a deity unto it, and to commit idolatry. And if the originall be read without a comma or colon thus, sweare not at all neither by heaven, &c. then it is evident that Christ in these words forbids not the act of swearing, but the unlawfull form. But because in some ancient copies there is a colon after the prohibition Sweare not at all: I answer,
Secondly, that Christ here forbids all Christians to sweare upon any slight, or trifling occasion, or in their ordinary communication, but saith he, let your yea, be yea, and nay, nay; that is, affirme a truth, and deny a falshood simply and barely without making the holy and reverend name of God accessary to your vaine and triviall discourses; No grave or sageperson would endure to be brought in for a witnes in every petty matter of smal or no consequence, to which yet most men tremble not to call the Soveraigne Majesty of heaven and earth to testifie. An oath, saith Aristotle, is foreign, a thing most pretious and venerable, not unfitly compared by Saint Augustine, to a dangerous medicine, never to be applied but in a desperate disease: then and then only an oath is warrantable, when nothing but an oath can be availeable.
Christ, saith*Peter Martyr loc. com. clas. 2 c. 2. Legem a nobis exigit, u… ita fideliter & ex charitate si mul vivamus, quo nobis non opus sit juramento. August. Serm. 28. de verb. Apost. Dominus & Ia… cobus ideo pr… hibu…runt jus… jurandum, no ut illud prorsi e rebus humanis tollerent, sed quia cav remus a perj… rio non facil… jurando. Peter Martyr, requires that all Christians so carry themselves, that there need to be no oath among them. Saint Augustine further addeth, that to prevent the danger of perjury, Christ here forbiddeth all customary swearing, because perjury is a precipice and breakneck of the soule, Christ forbids us as it were to come neare the edge of the hill, and not at all to venture upon an oath unlesse we bee drawn thereunto, and lawfully required by a Magistrate or some other, in a case of great importance.
Secondly,Obj. 2. the Anabaptists dispute thus, Whatsoever commeth of evill is sinfull, but all oathes come from evill. (For Christ himselfe Mat. 5. 37. Saith, Let your communication be yea, yea, nay, nay: for whatsoever is more then these commeth of evill) Ergo, all oathes are sinfull.
But we answer,Sol. 1. First, that the Proposition is not currant. All that commeth from evill, or is occasioned by evill, is not sinfull. For, Ex malis moribus bonae nascuntur leges. The best lawes were enacted upon ill occasions, and very corrupt manners of men: apparell at the first came from evill, viz. shame for sin, and singular Antidotes, and remedies, were found by occasion of venemous humours, and maladies of the body: yet are they good and wholesome: so, though giving and taking oathes came at the first from evill, namely the want of charity, or fidelity in men, yet it doth not follow that oathes are evill or sinfull in themselves.
The assumption is not true of all oathes, but of vaine, rash, or false oathes; or customary swearing, at every other word in an ordinary communication, these come from evill, (i.) the Devill, or from an ill habit, or a bad conscience.
The Anabaptists argue thus,Obj. 3. Those things that are future, are not in our power, therefore in swearing to doe such or such things, to performe such or such Covenants, is to expose our selves to the danger of Perjury.
But we answer.
That, if there were any force in this argument at all, it would overthrow all promises, as well as oathes; nay it would impeach our vow in Baptisme, to forsake the Devill and all his works, and to fight under Christs Banner, &c. For those things are not in our power, and therefore in those and all other promissory oathes, there is a condition tacite, or expressed, Si Deus voluerit, as farre as God shall enable us, or So help me God, or God being my helper.
In all such oathes by which we binde our selves to performe any future act, we sweare not simply to make good the event, which often is not in our power, but we engage our wills and utmost endeavours, neither are we guilty of perjury, if we would, and could not, but if we could and would not keep truth, and be as good as our words.
If the heathen have been more carefull to refraine the violation of the name of God by frequent and usuall swearing then we,Obj. 4. they shall rise up in judgement against Christians, and condemne them at the last day: for among them the Priests seldome or never sware, the Essens esteemed no better of swearing then of perjury, if a man among them were put to his oath, they accounted him a confessed lyer, and such an one who had lost his reputation among honest men. Plutarch in his Roman Problemes yeilds a reason why the Priest of Iupiter might never sweare, because they held it a great derogation to that venerable opinion all ought to have of him. Pythagoras was so strict in this point,Curtius l. 7. Grecorum cautio est acta consignare, & Deos invocare, nos religionem inipsa fide novimu… qui non reverentur homines, fallent Deos. Cic. pro Ros…. Comaedo. Sol. 1. that when he might have avoyded a mulct of three talents if he would have sworne, he chose rather to endure the penalty, then hee would take an oath in defence of the truth. The Scythians refused to take an oath enjoyned them by Alexander, and scoffed at the scrupulous caution of the Grecians, who would passe no act without signing it, and swearing to it; Scythae colendo fidem jurant, our Scythians faith is our band, and our promise our oath. Those who blush not to break their faith with men, will make no scruple of conscience to forsweare themselves by their Gods: An honest mans word is as good as his oath, and a prophane persons oath is no more to be regarded then his word.
All these examples of the heathen may bee alleadged to good purpose, to shame and confound those Christians in name, who rap out oathes by no allowance, who turn Christs meritorious sufferings in all his parts into blasphemies, and wound his very wounds. Assuredly if men shall give account at the day of judgment of every idle word, much more of execrable oathes: but it will not follow, we may not sweare lightly or rashly to the great dishonour of God, and scandall of religion; and therefore wee may not honour God by an oath, by calling him to witnesse in matters of greatest moment, whereby we agnize his soveraigne Majesty, we professe his all-seeing wisdom, we invocate his sin revenging justice, against all those who dare put his holy and dreadfull name, to that which their conscience tells them is a falshood.
Whereas it is said that an honest man will have as well a care of his word as his oath, and a dishonest man as little regard of his oath, as his word; this is but a vaine flourish: for an honest man who will have a care of his word, will have a greater care of his oath: and a twist …s stronger then a single string;Martyr. loc. com. class. 2. c. 7. Cum in S…nai darentur tabulae, statim ut lata lex est de perjurio totus orbis est concussus. Jer. 4. 2. and although many dishonest men will falsifie their word for their advantage, yet they will not so easily bee brought to forsweare themselves, in regard of the severe penalty of the law; and the infamy and horrour of the sinne of perjury: whereof the Hebrewes write, that at the giving of the tables in Mount Sinai, when the law was proclaimed against perjury, heaven and earth shook as it were trembling at so horrid a crime. The issue and effect of all is this, as God sweareth by himself for our comfort, so we may swear by him, for his glory: nay the Prophet goeth farther, we ought, and it is our duty to take an oath in truth, by the truth, and for the truth; in truth, that is, in a true and just cause; by the truth, that is, by God, who is the truth; and for the truth, that is, for the manifestation and confirmation of truth.
The second difficulty concerning oathes, is, whether they may bee imposed. I answer briefly, they may, both by supreame and inferiour Magistrates, deriving their authority from him; this I prove, First, by cleare testimony of Scripture: Secondly, by the examples of holy and religious men, who have both administred, and taken such oathes: Thirdly, by evidence of reason.
ARGUMENT I.
In the charge that Ioshuah gave to the Elders,Jos. 23. 7. 8. Heads, Iudges, and other officers of Israel; among other things, there is this remarkeable passage: Yee shall not make mention of the names of other Gods, nor cause to sweare by them; neither serve them nor bow your selves unto them: but cleave to the Lord your God as you have done this day, whence I thus frame my argument.
What the Rulers of Israel were forbidden to doe to other Gods, this passage sheweth, that they may and ought to doe to the true God.
But the Rulers of Israel are forbidden to make mention of, or cause any to sweare by the Gods of the heathen.
Ergo, they may, and ought to make mention of the name of the true God, and require, and cause men to sweare by him; when an oath shall be required of them.
ARGUMENT II.
What the Saints of God are recorded to have done, and they are no where reproved for the doing thereof, in holy Scripture, we may doe; for all those things were written for our example, 1. Cor. 10. 6. But the Saints of God are recorded in holy Scripture, to have exacted, and taken oaths imposed: for Abraham, Gen. 24. 23. maketh his servant sweare by the Lord God of heaven, that he should not take a wife to his sonne of the daughters of the Canaanites: David being urged by Saul, sware, 1. Sam. 24. 21. 22. that he would not cut off Sauls seed after him. Ezra made the chiefe Priests, and all Israel, to sweare that they would put away their strange wives, according to the commandement of God, Ezrah 10. 5. Nehemiah 5. 12. called the Priests and tooke an oath of them, that they should doe according to their promise, that they should restore unto their brethren their lands, their vin…-yards, their olive-yards, their houses, and also the hundred part of their monie,Harm. confes. sec. 19. nempe Helvetica. c. 30. Damnamus Anab aptistas, qui negant Magistrat ui juramenta prestanda esse. Augusta. … confes. art. 16. Christianis licet exercere judicia lege contrahere, tenere proprium jusjurandum postulantibus; Magistratibus dare. Etinfra, Damnant Anabaptistas, qui interdicunt haec civilio officia Christianis. and of the corn, wine, and oile; they exacted of them.
Ergo, Christians may lawfully both impose and take oathes.
ARGUMENT III.
All Christian Magistrates may command those who are subject to their authority, such things as are lawfull and necessary for the discharge of their office, and the preservation of humane society.
But oathes are things lawfull, as is proved in the former question; and they are necessary for the execution of the Magistrates office, and the preservation of humane society: For without such oathes the Common-wealth hath no sure tye upon publick officers, and Ministers; nor Kings upon their subjects, nor Lords upon their tenants: neither can mens titles be cleared in causes civill, nor justice done in causes criminall; nor dangerous plots and conspiracies, be discovered against the State.
Ergo, Christian Magistrates may command those that are under their authority, to take oathes; and this is the constant judgement of the reformed Churches.
But they object,Obj. 1. no man may be enforced to any act of Religion, for Tertullian saith acutely and truly, nec Religionis est Religionem cogere; It is against Religion, to compell or enforce Religion. But the taking of an oath whereby we invocate God, is an act of Religion: Therefore no man may or ought to bee enforced to take an oath.
There are two sorts of acts of Religion,Sol. inward and outward; First inward, as to adhere to God; to love him, to beleive in him, and put our confidence, and place our happinesse chiefly in him: these, and such like acts of Religion cannot be enforced. Secondly outward, as comming to Church, receiving the Sacrament, and making confession of our faith;2 Chron. 24. 23. fasting and prayer: these latter may be enforced, as wee see by the example of Iosiah, who compelled all Israel to serve the Lord, and by the speech of the King in the Parable,Luke 14. 23 who made a great supper, and bade many guests, and when they had made their severall excuses, said to his servant, Goe to the high waies and hedges, and compell them to come in, that my house may be full. Among these latter acts of Religion is the taking of an oath, which though in all leagues, and covenants, and holy vowes, it ought to be free; yet in diverse cases for the manifestation of truth in legall proceedings, and setting a period to otherwise endlesse suits, may lawfully be exacted and imposed.
No Christian Magistrate,Obj. 2. or any other, may incroach upon the Soveraigne prerogative of Almighty God. But it is the Soveraigne prerogative of Almighty God, to bind the consciences of men, therefore no Magistrate, or any other, may impose an oath: whereby the consciences of men are tyed and bound.
As it is the prerogative of God to search the heart,Sol. 1. so also to bind the conscience immediately, and directly: the lawes, ordinances, or commands of men, may work upon the outward man, but they cannot engage the conscience directly and immediately, or by themselves; but so farre only as they may be included in the generall command of God, which is to obey those that are set over us in such things, as are not repugnant to his will. Whence it is, that the Apostle pressing the doctrine of obedience to higher powers, saith, Rom. 13. 5. that wee must needs be subject, not only for wrath, but for conscience sake.
This very particular of swearing by Gods name, when we are required thereunto, is commanded by God himselfe; Ier. 4. 2. and so the Magistrates command hath strength and power, to tye the conscience from Gods command.
None ought to be put to their oath who are like to forsweare themselves, for this both the Civill and Common law forbiddeth,Obj. 3. because it is a kind of thrusting men downe a steep hill, to the ruine of their soules by perjury. But such is the condition of the greater sort of men, that it is very likely, for hope of reward, or to save their lives, limbes, liberty, or estate; they will streigne a veine in their heart, and take a false oath: therefore men ought not to be put to their oathes.
If a man be defamed for a prophane person,Sol. 1. or common swearer, and much more if he have been convicted of perjury, he ought not to be put to his oath; lest where before he dasht, he may the second time make shipwrack of his faith, and a good conscience. But the rule of the law is, Supponitur esse bonus, qui non probatur esse malus; He is suppased to be an honest man, against whom there are no proofes, or strong presumptions, that he is otherwise.
Though the Magistrate in some cases for the publick good exact an oath of many men who forswear themselves, yet is not the Magistrate any way author of, or accessary to their perjury. For he requireth them to swear truly, not falsely; and for ought that he knoweth, they may as well cleare themselves, as condemne themselves upon their oath; neither doth there appeare unto him any cause, or just suspition, that the party to be sworne, is like to take a false oath; for if there doe, both in conscience and in discretion, he will be shie of administring an oath to such a person, in such a case.
The third difficulty concerning oathes is, whether the oath ex officio, be lawfull; that is, whether a Magistrate Ecclesiasticall or temporall, may require and exact an oath of a man, which in duty hee is bound to take, in a case which concernes himselfe; and may tend to his owne prejudice, and dammage. As in Ninus his victories, every former conquest, was gradus futurae victoriae, a degree and step to a latter; so it falleth out in the determination of the difficulty concerning oaths: the resolution of the former question, is a step and furtherance to the latter. For if oathes be lawfull, the Magistrate may enjoyne them by his authority; and if he may impose any oath, especially the oath ex officio: without which, the ordinary proceedings, as well in Ecclesiasticall Courts as temporall, will be stopt; and all speedy course of justice hindred: and although what hath been formerly alleadged in justification of the imposition of oathes, might suffice to resolve the consciences of men, not forestalled with prejudicated opinions: yet because this kind of oath hath been of late cryed down with much vehemency, and bitternesse; for the satisfaction of scrupulous minds, I will endeavour to bring more pregnant proofes, for the lawfull and necessary use thereof, then I have yet found in any, who have travelled most in this argument, especially to bring water to their owne Mills.
ARGUMENT I.
Every oath which may be taken in truth, judgement, and righteousnesse, is lawfull; such is the oath ex officio. Ergo, lawfull.
The Proposition is the Prophet Ieremies, the assumption is thus proved, according to each part of it. First it may be taken in truth, neither is it required otherwise to be taken; the Tenour of it being, There are Articles in Court against you, or questions to be demanded of you; you shall answer the truth, and the whole truth, and nothing but the truth; so farre as you know, and by law you are bound, so help you God. Secondly, it may be taken in judgement, for before wee are required to give answer to any particular, the Articles are distinctly read unto us, and we may deliberately and judicially shape our answer thereunto at the present, if we perfectly remember every circumstance, and find no scruple in the interrogatory: or we may crave farther time to bethink our selves, to give a fuller answer. Thirdly, it may be taken in righteousnesse: for if we be innocent by our oaths, we shall acquit our selvs, and if guilty, we shall give way to justice to proceed: and as it is a righteous thing to acquit an innocent,Jos. 7. 19. so also to detect a Malefactor, in which regard Iosuah perswadeth Achan to glorifie God by confession of his sinne.
ARGUMENT II.
For what we have a President from the actions of our Saviour, we may lawfully doe. For Saint Bernard saith truly, every action of Christ serveth for our instruction.
But we have a President from Christ, for answering directly upon oath in a case criminall; which proved also Capitall. Matth. 26. 63. 64. the high Priest said unto him, I adjure thee by the living God, that thou tell us whether thou be the Christ, the Sonne of God. Iesus said unto him, thou hast said. Neverthelesse I say unto you, hereafter shall you see the Sonne of man sitting at the right hand of power, and comming in the clouds of heaven; then the high Priest rent his cloathes, saying, he hath spoken blasphemie.
Ergo, we may lawfully answer upon oath, in a cause criminall; concerning our selves.
ANABAP. ANSWER.
That as it was no robbery in Christ to be equall with God, so it was no blasphemie in him to say that he was the Sonne of God: and therefore this answer of Christ was in no cause criminall; and consequently, his example no President for us in the like.
REPLY.
It is true, that neither Christ himselfe, nor any of his holy Martyrs or Saints, who have been put to most cruell torments, and death, were guilty of any such sin or crime before God, for which they notwithstanding suffered such things: yet, because either by the Roman lawes, or in the opinion of the Magistrate, those things of which they were accused, were esteemed crimes; and they punished as Malefactours: their examinations, and trials, are truly said to bee proceedings in criminall, yea and capitall causes: and the patient is as much prejudiced, and infinitely more wronged, if he suffer death, or bonds, upon his confession of the fact: if it be no crime at all. Therefore this example serves to that end, for which it is brought.
If it had been either unlawfull for the high Priest to require Christ to answer upon oath, concerning that which the high Priest judged a capitall crime, or for Christ to have given a direct answer in such a case; he would have reproved the high Priest for adjuring him in such manner as he did: or at least answered him with silence as he did Pilate, and him also, in other questions.
ARGUMENT III.
What was appointed by the law of God, cannot be in its own nature sinfull; or repugnant to the law of nature. For though some part of the law of God delivered by Moses, doe not now bind us to the performance thereof: yet wee are bound to beleive that law was just, and holy, and good; and commanded nothing in its own nature sinfull, or repugnant to the law of nature, or right reason.
But answering upon oath in casues criminall,Exod. 22. 11. Num. 5. 19. 1 Kings 8. 31. Ezra 10. 5. 11 which might tend much to the prejudice and dammage of the examined, was appointed by the law of God.
Ergo, answering upon oath in causes criminall, is not sinfull and repugnant to the law of nature.
ANABAP. ANSVVER.
Neither are the judicials of Moses now in force, neither was any oath ex officio, administred to the Jewes, like to ours.
REPLY.
This argument is not brought to prove the necessity of taking an oath now in those very cases, as namely of jealousie, loan, and the marriage of strange wives, but the lawfulnesse of demanding, and taking an oath in causes criminall in generall.
All these instances come home to the point in question, and the argument holdeth strong à comparatus after this manner. No sufficient reason can be alleadged, why oathes may not bee imposed and taken as well by Christians under the Gospell, as by Jewes under the Law in causes criminall, reflecting upon themselves: but oathes were lawfully demanded and taken by the Jewes in causes criminall, therefore they may be so by Christians. That such oathes were by Gods law injoyned to the Jewes, appeareth first in case of Ioane or trust, Exod. 22. 10, 11. If a man deliver to his neighbour an Asse, an Oxe, or a Sheep, or any beast to keep; and it die, or be hurt, or driven away, no man seeing it: then shall an oath of the Lord be between them, both that hee hath not put his hands to his neighbours goods; and the owner of it shall accept thereof, and he shall not make it good: but if it bee stolne from him, he shall make restitution unto the owner thereof. In the case of jealousie, Numb. 5. 19. And the Priests shall set the woman before the Lord, and uncover the womans head, and put the offering of memoriall in her hands; which is the jealousie offering: and the Priest shall have in his hand the bitter water, that causeth the curse; and the Priest shall charge her by an oath, and say to the woman, if no man hath lyen with thee, and if thou hast not gone aside to uncleannesse with another, instead of thy husband, be thou free from this bitter water, which causeth the curse, &c. In the case of trespasse, 1. Kings 8. 31. If any man trespasse against his neighbour, and an oath be laid upon him, to cause him to sweare; and the oath come before thine Altar in this house: then heare thou in heaven, and doe, and judge thy servants, condemning the wicked, to bring his way upon his head; and justifying the righteous, to give him according to his righteousnesse. In case of prohibited marriages, Ezra 10. 5. 11. Then arose Ezra, and made the chiefe Priests, the Levites, and all Israel to sweare; that they would put away their strange wives of the people of the land: and they sware. And Ezra stood up, and said unto them, ye have transgressed, and have taken strange wives, to increase the trespasse of Israel. Now therefore make confession unto the Lord God of your fathers, and doe his pleasure; and separate your selves from the people of the land, and from the strange wives. It is true, these cases are not everyway paralel to ours, for our Priests have no receipt at this day, to make the water of cursing; nor are we prohibited to marry with forreyners, so wee marry in the Lord: neither doe we put men to their oathes in actions of trespasse, but if the party accused deny it, we convince him by witnesses: yet this exception cutteth not asunder the sinewes of the former argument. For though the cases in particular bee very different, yet they agree in this generall; that oathes have been lawfully urged and exacted of men, touching matters dammageable, criminall and penall to themselves: and if oathes may be lawfully imposed and taken in this kind, to satisfie the humour of a jealous husband, or still the clamour of a private person wronged, how much more is it equall and just, that this be done upon the judges office, who is no way privately interessed, and for the satisfaction and preservation of the Church or Common-wealth, to remove a common scandall and offence by the parties clearing himselfe, or his condigne punishment?
ARGUMENT IV.
What is just and equall and may bee done without breach of Gods law in Temporall Courts, cannot be unjust, nor derogatory to the divine law in Spirituall.
But oaths ex officio though not known by that name, are usually taken & held to be just and lawfull in temporal Courts, namely, Leet-Courts, Sessions, Assises, Chancery, and Court of Request. For the Jury are upon oath to present all annoyances, abuses, and transgression of penall Statutes, whereof themselves may be, and often are guilty; and the Defendants in Court of Request and Chancery, answer upon oath to bills put against them, the particulars whereof often deeply concern them; and in case they give not a direct and full answer, they proceed against them, pro confessis: and if they answer directly and fully, in case they are faulty, either by denying they forsweare themselves, or by confessing the matter of fact, they consequently condemne themselves: nay which is very considerable, they who are the greatest oppugners of our Ecclesiasticall Courts, and greatest sticklers for the discipline of Geneva, are forced to make use of the oath ex officio themselves. For Comperell was appointed by the consistorie of Elders of Geneva to be examined upon oath concerning three interrogatories about dancing, whereof two concerned what he had in his very purpose and intention of mind; and this their practice was agreeable to the decree of a Nationall Synod held in France, in the year 1565. whereby by it is resolved that the faithfull may bee constrained by the Consistorie to tell the truth, so farre forth as it derogateth nothing from the authority of the Magistrate. This constraint could not be by fine, or imprisonment, or torturing the body: for in so doing, then they should trench upon the Civill Magistrates right, but by imposing of an oath, which is a kind of torturing of the conscience.
Ergo, oathes ex officio are just and lawfull in Spirituall Courts.
ARGUMENT V.
If the oath of purgation, whereby a man in a cause criminall is required to take his corporall oath, that he is not guilty of such an offence, wherewith he is charged, bee lawfull; the oath ex officio cannot be unlawfull: for they are either the same, or at least stand upon the same ground. But oaths of purgation as they have been very ancient, so they have bin alwayes held lawfull, and in many cases necessary.
Ergo, the oath ex officio is also lawfull.
Now for an oath of purgation we find it as ancient as the Trojan warres,…ictis Creten…, l. 2. de bello Trojan. Agamemnon being suspected to be nought with Hippodamia, commanded an Host, or Sacrifice to bee brought, and drawing his sword, he divided it in two parts; and passing between them with his bloody sword, sware that hee had never defiled Hippodamia by incontinence. In the eighth generall Councell, Action 5. when Photius the heretick was demanded by the Councell whether he would admit of the Ordinances of the holy Fathers, and he answered not any thing thereunto; the President of the Synod signified unto him, that by that his silence he should not escape, but the rather be condemned; silence in such a case evidently arguing guilt. In a Councell held at Tribur a layman,Can. 21. in case of vehement suspition, is appointed to purge himselfe by his oath: and a Priest to be interrogated by the consecration of the holy Sacrament; and before this, Sixtus the third an ancient Bishop of Rome, Gra…. 12. q. 4. c. mandastis. Greg. Ep. 23. ad lustin. & l. 2. Ep. 8.upon the accusation of one Bassus, did willingly make his purgation upon oath; and Gregory the great injoyned Leo, Memius, and Maximus, three Bishops; to cleare and purge themselves of severall crimes by their oathes.
ANABAP: OBIECT.
But they object out of the law,Obj. 1. Nemo tenetur seipsum accusare vel prodere, sive propriam turpitudinem raevelare: No man is bound to accuse or detect himselfe, or lay open his own shame: But by taking the oath ex officio, he bindeth himselfe, if he be a Delinquent, to discover his own crimes; and so lay open his nakednesse: therefore no man is bound to take the oath ex officio.
No man is bound to goe to the Magistrate, and indict himselfe,Sol. and give the first notice of any crime he hath committed: but the case is altered, when upon a fame, or strong presumptions, he is legally called before a Judge, and according to forme of law, required upon oath to testifie the truth. For then, as saith Aquinas, Non ipse se prodit, sed ab alio proditur, dum ei necessitas respondendi imponitur, per oum cui obedire tenetur: He doth not detect himselfe, but is detected by another; when the Iudge to whom he is bound to answer directly, by interrogation upon oath extorts the truth from him.
Neither doth the law, nor the Judge principally,2. nor in the first place intend by ministring such an oath to intangle, much lesse condemne him out of his own mouth; but find out the truth and clear the party thereby, if he be innocent; and in such case by refusing the oath, he wrongs himselfe and his own cause.
We cannot follow a better President then our Saviour,Obj. 2. but he when he was examined of his Disciples and Doctrine, Io. 18. 19. would give no direct answer, whereof the high Preist might have taken advantage; but puts him off, v. 20, 21. to those that heard him, saying, I spake openly to the world, I ever taught in the Synagogue, and in the Temple, whither the Jewes alwayes resort; and in secret have I said nothing; why askest thou me? aske them that heard me. Therefore we ought not to confesse ought against our selves by oath, or otherwise: but put our adversaries to the proofe.
In a case where other proofe may be had,Sol. 1. there is no necessity for a man to give advantage to his adversary by his owne confession: but in case there be no other evidence, and the lawfull Magistrate to whom we are bound to give a direct answer in obedience to his lawfull command, this example of our Saviour doth not warrant us to use any evasion or tergiversation.
The example of our Saviour was truly alledged above to the contrary,2. for though upon a bare interrogation of the high Preist, hee did not discover himselfe unto him, what he was: yet upon his adjuration, which was a requiring to answer upon oath, hee acknowledgeth himselfe to be Christ the Sonne of God.
Every oath ought to be for confirmation,Obj. 3. to put an end to all strife, Heb. 6. 16. But this oath ex officio, is not ministred to make an end of any Litigious suite, but rather to begin it, and set it on foot; for as soone as Articles are put in against a man, before any pleading of the cause on either side, this oath is usually tendered.
There are two sorts of oathes,Sol. 1. promissory of things to come, assertotory of things past. In promissory, there is no respect at all had to compose any difference, or controversie, but to assure loyalty or fidelity: in assertory oathes, one end is ending strifes, but not the only end; neither doth the Apostle imply, that every controversy may be decided and ended by a single mans taking his oath. For this oath may be suspected, and the contrary thereunto deposed by others; and sometimes evidence of fact controls his oath: but the meaning is, that in controversies among men, the oath of an honest man, is a great meanes to set a period to farther waging of Law.
Even this oath tendeth to the speedier ending of controversies; and oftentimes it stops all farther proceedings, when the party burthened by presumptions, is cleared and dismissed upon his oath.
Though this oath be given in the beginning of a suit, to lay a firme ground, and foundation thereon: yet the intention of him that ministreth the oath, is by clearing the matter of fact, to proceed more speedily to the Quaestio Iuris; and the pleading it, and more maturely deciding it: and so this oath tendeth to the sooner ending of strife.
Either the crimes objected against any man are manifest,Obj. 4. or hidden: if they bee open and manifest, there needs no oath ex officio to discover them, but witnesses only are to be produced, which in such cases cannot be wanting: and if they be hidden and secret, then the Apostles rule takes place, 1. Cor. 4. 5. Therefore judge nothing before the time, untill the Lord come, who both will bring to light the hidden things of darknesse, and will make manifest the Counsels of the hearts; and then shall every man have praise of God.
The Apostle speaketh not in that place against any judiciall proceedings,Sol. 1. but against private, rash, and uncharitable judging of our brother, and taking his words in the worst part, without any just ground; or censuring not so much his outward actions or speeches, as inward intentions, known only go God. Such perverse judging, our Saviour condemneth, Matth. 7. 1. And this Apostle Rom. 2. 1. Therefore thou art unexcusable O man, whosoever thou art that judgest.
As in the skye sometimes there is cleare light, and perfect day, sometimes perfect darknesse, and yet besides these, a third condition which we call twilight, neither so light as day, nor so dark as night: so the actions of men, for which they are questionable in Spirituall or Temporall Courts, are of three sorts; some are altogether hidden, of which there can be brought no sure proofe, nor strong presumption; the judgement of these must be reserved to the last day, when Christ shall reveal the secrets of all hearts: some are done as it were in the face of the Sunne, whereof there may be strong and evident proofes brought; in such cases a Judge ought to proceed secundum allegata, & probata; and not put the conscience of any man as it were upon the wrack, to extort the truth from him by oath. Lastly, some are of a mixt nature, neither fully open and manifest, nor altogether hidden, such whereof there are strong presumptions, and a generall fame, but no pregnant proofe: in such cases the oath ex officio is of use, whereby the truth may be more and more discovered, and the party either cleared upon his deniall, or convicted upon his confession; or held pro confesso, by his evasions and tergiversations, and refusing to be put to the test of his oath.