The Obligation of Promissory Oaths, Lecture 3

The Obligation of Promissory Oaths · Lecture 3

p. 63The 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.

p. 6414. 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 p. 65learning, 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.

p. 66SECT. 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 p. 67be 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 p. 68thing 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.

p. 69SECT. 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 p. 70as 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.

p. 71SECT. 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 p. 72faith 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 p. 73some 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 p. 74we 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 p. 75in 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 p. 76errour 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 p. 77in 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 p. 78obligation 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 p. 79such 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 p. 80within 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 p. 81himself 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 p. 82oath 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 p. 83give 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 p. 84obligation, 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 p. 85descends: 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 p. 86sell 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 p. 87a 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 p. 88of 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 p. 89to 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 p. 90swearing 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 p. 91God) 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 p. 92he 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 p. 93thing; 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 p. 94vindication, 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 W^ch 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 p. 95as 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 p. 96necessarily 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 p. 97the 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 p. 98unto 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 p. 99which 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 p. 100the 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 p. 101in 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.

p. 102SECT. 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 p. 103because 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.