The Obligation of Promissory Oaths, Lecture 2

The Obligation of Promissory Oaths · Lecture 2

p. 33The 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.

p. 34SECT. 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 p. 35to 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 p. 36Chaplet, 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.

p. 37SECT. 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 p. 38first 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.Ps 56:6Ps 12:5inward 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.

p. 39SECT. 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 p. 40faith 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 p. 41words 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 p. 42proceedeth 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.

p. 43SECT. 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. p. 44The Lord hath sworn, and will not Psal. 110. 4. Psal. 132. 11.Ps 110:4Ps 132:11repent. 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.Jer 4:2by 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, p. 45by 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 p. 46any 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 p. 47was 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 p. 48his 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 p. 49equity, to wit, by which judgement is turned Amos 6. 12.Amos 6:12into 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; p. 50and 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 p. 51this 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 p. 52rulers, 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 p. 53the 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, p. 54then 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, p. 55to 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 p. 56is, 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 p. 57any 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 p. 58briefly 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 p. 59between 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.

p. 60SECT. 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, p. 61much 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 monethmonth, 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 p. 62God 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 p. 63swearest: 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 p. 64swearing, 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.