The Obligation of Promissory Oaths, Lecture 4

The Obligation of Promissory Oaths · Lecture 4

p. 104The fourth Lecture. Containing seventeen Cases.

Summary.

1. The efficient cause of an oath, and the things to be handled, proposed.

2. Oaths of children.

3. Oaths of mad men and fools.

4. Oaths of men drunk and enraged.

5, 6. Oath of one being in the power of another.

7. The authority of him, who giveth an oath.

8. Faith to be kept with enemies, heretiques, perjured persons.

9. Whether an oath oblige the Heirs of the party swearing, and how far.

10. Oath to be performed by the Heir or Success…r.

11. Voluntary oaths.

p. 10512. Oath obtained by fraud.

13. Oath taken through some light fear.

14. Oath extorted by force or fear.

15. Money promised unto a Theif ought to be paid.

16. Solution of objections.

17. Whether silence promised unto a Theif be to be kept.

SECT. I.

THe principall difficulties appertaining properly unto the matter of an oath, being finished in the foregoing Lecture; we proceed unto the solution of those doubts, which may be reduced unto the Efficient cause. The Efficient cause of an oath is, as to our purpose twofold; the Agent, to which effect properly belongeth, and the Impulsive cause. Again the agent is either principall, or more remote from the effect. For as two persons at the least, to wit, the person swearing, who engageth his faith, and the deferent, as they speak who follow Cicero, or person to whom the engagement is made, must as tearms of this relation concur in the obligation p. 106of an oath. So each hath his part in the work. The first, and especiall belongeth to the person swearing, the second to the Deferent, or person to whom the oath is made. In both agents, the condition or aptitude of the person is first to be considered, next the extension of the obligation: Wherefore in this kinde of efficient cause, such doubts are in the first place to be considered, as arise from the defect of some condition requisite on the part of the principall agent to qualifie him for an oath. And two things especially are requisite unto such a qualification, rational judgement, and lawfull power. For an oath ought to be taken with a minde both deliberate, and resolved to perform the promise; But he who is not indued with rationall judgement, can neither be deliberate, nor he who is not his own man, but in the power of another, make a stedfast and effectuall promise.

p. 107SECT. II.

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

SECT. III.

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

SECT. IV.

THe fourth and fifth cases are of oathes made by men who are drunk, or in rage, promising or threatning something, which in sobriety and cool bloud they would not have promised or threatned. The reason of doubt is, that whereas some judgement, at the least of a deliberate, minde is requisite to make an oath obligatory; Drunkennesse and wrath, which are but short fits of madnesse, so perturb the judgement, and for a time take away the use of reason, that till the one have slept, and the other reposed his minde, neither seemeth much to differ from a mad man. But of these oathes, this in the first place is certain, that neither kinde can be excused of sin, but whether drunkennesse, or the vehemency of anger p. 112aggravate the sin which is the act of swearing, or rather extenuate it, all are not agreed, nor seemeth it possible to answer simply and sufficiently unto this probleme by a single affirmation, seeing judgement in the point dependeth very much upon circumstances. But be it as it will, the question is not to this purpose. The nature of the doubt sheweth it to be unfit, that a drunken or angry man should swear at all, because during that distemper he cannot swear in judg…ment, but must necessarily blab out whatsoever his wine or passion (which are immoderate Counsellors) shall perswade, and which in cool bloud, and sober, he would give any thing were unsaid, or unsworn; neverthelesse we must distinguish of obligation. For first, the thing whereunto he swears, is either unlawfull, or lawfull and honest: If unlawfull, (as it happeneth for the most part, especially in oathes which fall vehemently from angry men blinded with eagernesse of revenge) it is evident that they oblige not; for it hath been sufficiently demonstrated that an unlaw…ull thing is not obligatory. Wherefore it was p…udently advis…d p. 113of Abigail, and piously followed by David, when animated by the unworthy reproach of an ungratefull man he had sworn the destruction of Nabal and his whole family, in that he dispensed with his oath, and withheld his hand from bloud. But if the thing sworn be lawfull, as that often is, which drunkards ostentatiously promise, then we must look Secondly, what and how great the excesse of drunkennesse was, whether in a degree to hinder only, or perturb the use of reason, or utterly to deprive of understanding, and transform the man into a beast. He who sware having wholly lost the use of his Reason, is bound when he is sober, seriously to repent, both of his debauchery and rash oath; but is not obliged to do as he sware, because during the act of swearing he had not that use of reason, without which there is no judging of things with deliberate understanding. But the use of reason hindred only, and not so taken away, but that he might, though drunken, in some measure judge and resolve, it seemeth he is in some measure obliged to fulfill his oath, at least in part, if it may p. 114be done without his very great hurt, and this both in respect of his antecedent deliberation sufficient to binde, and for punishment of his rashnesse, that he may learn for the future to be wiser, and lead a sober life, lest he stumble into that drunkennesse which will stick by him sober. But if performance of the oath be to the great hurt or inconvenience of the party swearing; as if a man being drunk, should promise to sell the land whereupon he keepeth his family for little or nothing, he seemeth not to be obliged. The reason is, that such a promise is a certain sign of the absence of his understanding. Wherefore seeing his minde was not fully free during the time of the oath, neither is the obligation full. Perhaps in this case it would not be the worst end of an ill business, if it should by both parties be wholly referred unto the arbitration of an honest and prudent man to be by circumstances determined, what part of the thing promised, the party sworn deserveth to make good in punishment of his drunkenness, and temerity.

p. 115SECT. V.

THe second doubt is, of his oath who is not in his own power, but anothers. As if a son or pupill in the power of Parents or Tutors, or a servant in his Masters, or wife in her husbands, or subject in his Princes, or a souldier in his Captains, or the like should take an oath without permission of his superiour; What and how far availeth this oath? I answer, he who is under the power of another ought not to determine of any of those things, wherein he is subject by an oath, without expresse consent of his Superiour, where it may conveniently be had, or at the least without his tacite consent; that is, where the party swearing may probably conjecture that his Superior, if leave were asked, would not refuse to grant it. If he doth otherwise, he sinneth in swearing, neither is he obliged to perform what he sware; nay he is obliged not to perform it, unlesse his Superiour being made acquainted with the matter give him leave; as is at large explained by Moses through this chapter p. 116in the case of a vow or oath, (for as to obligation they appear the same in this verse) made by a Virgin, whilest she is in the house of her Father, or by a wife in the house of her husband; The sum is, that the vow of a Virgin, if her Father knew of it, and contradicted it not, is valid, because by silence he seemeth to have given consent; but if he contradicted it, it is void. And the same by Analogy may be determined of all such as are under the power of others, so far as they are under such power: which for two reasons appeareth by that which hath been said. First, b…cause he doth injury unto another, who as it were by a right of his own, disposeth of the right of another; but by our fifth Hypothes…s no man is bound by an act injurious unto another, seeing that an unlawfull thing obligeth not. Secondly, every man is bound by his duty to be subject unto his Superiour, and obey his will in those things wherein he is Superiour: which obligation by our third Hypothesis, a subsequent oath cannot take away. Wherefore we must necessarily conclude, that the oath of one who is p. 117under the power of another without the others consent, is neither lawfull, nor obligatory.

SECT. VI.

NEvertheless this conclusion is not so absolute, but it may admit of two exceptions; one respecting the party swearing, the other, the consent of the Superiour. For the party swearing, it is to be considered that there is scarse any person enjoying the use of reason so fully in the power of another, but he is at the least in some things at his own disposing; and of these every man may according to his discretion, even without leave, or acquainting his Superiour with the matter, so determine, as may be obligatory. The servant of Caius ought not to let out his labour to Titius, or lend, or give unto him any part of his Masters goods, without the consent of Caius; because things concerning the performance of duty, disposing of goods, or other service of the family, are wholly in the Masters power. But the servant or son of Caius may promise even without acquainting p. 118Caius to give unto Titius that which is peculiarly theirs, & if they confirm their promise by an oath, they are bound whether he will or no to perform it, because each hath free right, to dispose of that which is peculiarly his, and is as to that in his own power. Secondly, for the consent of the Superiour, it is to be observed, that unto the ratification of the oath of the inferiour, precedent consent expressed, is not necessarily required, but it sufficeth if it be tacite, whether antecedent, or subsequent. Tacite antecedent consent I understand to be, when from the lightnesse or equity of the thing, or other probable cause it may very well be presumed, that the Superiour if he had been asked, would have consented unto, or at least not forbidden the fact; as if Caius being from home, or not acquainted with the businesse, his wife should cloath a poor man with an old suit, or give an alms to a begger, or his son, or servant, upon his neighbours entreaty should lend an Oxe, or a Cart, or other Instrument of husbandry or housholdstuffe, or should contribute their assistance to build a neighbors house, or p. 119bring home his Corn. Tacite subsequent consent I understand to be, when the Superiour, in whose power it is to make any promise rashly made by the inferiour, if he see cause, invalid; coming afterwards to knowledge of the promise, doth not presently and openly contradict it, nor discovereth by any certain expression, that he so far disproveth the act, as that he would not have it fulfilled, according to that which is directed by Moses in the 6. 8. and other verses of this Chapter, where to make the vow of a daughter or wife invalid, an open and mature signification of the dissent of the father or husband is required. For it is not enough to render the daughters vow invalid, that the Father say it displeaseth him, but he must openly declare against it, vers. 13. 16. si renuendo renuat, and tollendo tollat; As if he should say, he must constantly withstand the fact, and by interposing his authority forbid the performance of that which is promised. It is also required that the same be speedily done, vers. 6, 8, 9, 13, 15. upon the day that he heard it; As if he sh…uld say, if he conceal his dissent p. 120but a day, he hath established the vow for ever; for he is presumed to have been willing, who slowly expresseth himself to be unwilling.

SECT. VII.

HAving considered the party swearing, the deferent or person to whom the oath is made cometh in the second place to be considered, and is concerned in the third doubt; wherein two cases occur, one respecting his authority, the other his faith. The first case is, where we make a question of his authority who requireth an oath of us. For if he be a legitimate Superiour, and so acknowledged by us, nor require other oa…h of us, then what is decreed by the Law, and confirmed by daily and approved custome, no man doubteth but such an oath may both lawfully be taken, and ought faithfully to be performed. But where he who requireth the oath, seem…th to have no right so to doe, but to usurp a power which belongeth not unto him, it may very well be doubted whether it be lawfull to t…ke an oath by him so offered; and if p. 121we take it, whether, and how far we are obliged by it. First, I say, that a pious and constant man ought as much as in him lyeth to decline all oathes imposed by such as have no lawfull authority: not onelyonly because it is an ordinary thing to compell those upon whom they exercise Tyranny unto unjust promises, but also be…ause every man is bound to defend his right, and liberty to the utmost, and not tamely to thrust himself into the yoake of anothers Tyranny. But secondly, if besides command such force be used as he cannot resist, and there be no refusing with out extreme danger, to avoid I say, the certain consequence of a very great inconvenience, a pious man, but sadly, heavily, and with some expression of reluctancy, may take such an oath, provided the words of the oath (which seldome hapneth upon this occasion) contain nothing unlawfull in it self contrary to known Law, or derogatory from the right of any third person; otherwise he ought to refuse it, even to the hazard of his life, and to endure the utmost rather th…n oblige himself in an unlawfull bond. Thirdly, p. 122he who hath t…ken an oath, given by a person, who had no lawfull authority, but in all other respects lawfull, is many wayes bound unto the performance thereof.

SECT. VIII.

THe second case is, where hee unto whom the oath is to be made, is an Infidell, Heretick, or one who hath formerly broke his faith. First I say, it is lawfull to swear unto an Infidel, Heretick, or perjured person; it was done by the Patriarchs, Isaac and Jacob, also by Joshua, and the Princes of the people of Israel; these made leagues with strangers and Infidels, and on both sides confirmed their mutual faith by solemn oathes. Secondly I say, that faith given unto such is in any wise to be kept. We use to object unto Papists, that they hold faith not to be kept with Hereticks; wherein the Jesuites of this age exclaim that great injurie is done unto them. They are ashamed forsooth in so clear light openly to professe a doctrine so wide of all right reason, and pernicious to p. 123humane society. But our men have proved, even by shewing the places, that some of their Doctors have defended that Conclusion, whose books are neither prohibited nor expurgated. But let them all deny it in words, this at least is apparent, if we may judge of their opinion, either by the principles of their doct…ne, or by their actions, and reason of those actions, as their own Historians of most unsuspected faith have related them, there is no such cause why they should so confidently exclaim that we have slandered them. In the mean time whilest they would shift of this opinion, they tacitely acknowledge it either false or impious. The Prophets sometimes reprove the Kings off Judah, especially Eze k17. almost throughout the chapter, that they kept not their faith sworn unto the Kings of Babylon; the place is remarkable, and by Chrysost…me largely and elegantly explained. Nay in this kinde the faith of Regulu… and others is renowned in Heathen story, who made good what they had sworn even unto enemies, and Carthaginians (a most perfidious Nation) though to the hazard of their lives. p. 124Silius adorneth Regulus with this commendation, calling unto him as it were by an Apostrophe.

Their Fame to late posterity shall sound,

Faithfull to faithlesse Carthaginians found.

But you will object perhaps those vulgar sayings, To deceive a deceiver is no deceipt, and Cum Cretensibus cretizandum. To which may be added those which Grotius useth, on the speech of Brutus, in Appian; Romans kn…w no faith nor Religion of an oath to a Tyrant: the other out of the old Tragedian, where one saith, Thou hast broken thy faith; the other replyeth, Which I neither gave, nor give unto any faithlesse person. I answer, that these taken from common practise, rather shew what useth vulgarly to be done, then what ought to be done; or if you admit them for truths, that they are onelyonly approveable in such cases, where the oath was taken upon condition; either expressed, as thus, I swear to give you an hundred Crowns, if within a month you rede…m your land which I have in Mortgage; or at the least tacite, as when two oblige themselves by p. 125mutuall oathes to fulfill mutuall promises with mutuall respect. For example; if Chremes the Master, swear unto his servant Sosia, to give him annually ten Crowns, and Sosia likewise swear unto Chermes, to serve him eight years; He of the two who first violateth his faith, presently absolveth the other from the bond of his oath. But if two oblige themselves mutually in promises of different kindes, or not at the same time, or otherwise without mutuall respect, faith violated by the one, absolveth not the others obligation, but each is bound to stand unto his oath, though the other have not performed his part. For example, a King simply, and without respect unto the allegiance of his subjects, sweareth to administer his government righteously, and according to Law; the subjects at another time simply, and without respect unto the duty of the Prince swear allegiance, and due obedience unto him; they are both bound faithfully to perform their severall duties; nor would the King be absolved from his oath, though Subjects should not perform their due obedience, nor subjects p. 126from theirs, though the King should turn from the path of justice.

SECT. IX.

HItherto of the condition both of the Agent, to wit, the party swearing as principall, and of the deferent or person to whom the oath is made as lesse principall: The fourth doubt followeth concerning the extention of the obligation in respect of both the persons; wherein two cases occur. The first concerneth the person swearing, Whether, and how far the oath obligeth his Heirs, and Successors? For example, Caius having bought a field of Titius, sweareth simply to pay him an hundred pounds within six months, within the time Caius dyeth, the question is, whether by vertue of the oath made, the Heire of Caius be bound to pay the money promised? I answer, the Heire of Caius in respect of the thing, which gave occasion unto the oath is bound to pay, forasmuch as he enjoyeth the field for which the money was promised: for the heire who inheriteth the estate of the person deceased, is bound de jure, p. 127to pay his just debts, it being most equall that an estate should passe with the engagements that are upon it. Nethelesse the hei… is not bound by vertue of the oath made by the person deceased, by which means if he pay not, he is unjust onelyonly, not perjured. The reason is, because an oath is a personall bond, and contracteth a spirituall obligation only, at the internall Bar of Conscience, not a civill, and temporall one at the externall Bar of Justice. But in personal things no man is bound without his own consent. If it be said, that Caius by his personall act may well oblige himself and his heirs unto some performance, as we see it daily done by instruments of Law; and therefore from the like, that he may also binde his heirs by an oath, especially, if he say in expresse words, that he sweareth for himself and his heirs. I answer, that there is not in either like reason. Because the personal obligation which is in the Conscience must necessarily be personall, as a mans conscience is proper unto himself; and cannot passe into another: but temporal obligation followeth a temporall thing, p. 128which seeing it may passe unto another person, may also lay an obligation upon another person; wherefore the heir is bound by the equity of the thing, not the vertue of the oath.

SECT. X.

THe second case concerneth the person to whom the oath is made, whether he who hath sworn the performance of a thing unto another, the party unto whom he sware being deceased, be bound to make it good unto the Heirs or Successors of the said party? I answer, ordinarily he is. It is certain the party swearing is obliged, if he expressed that he would perform the oath unto the heirs of the other. It may also be taken for granted, that he is bound though he expressed it not, if the oath taken relateth to dignity; because dignity varies not with the change of persons. Whence if any subject or souldier swear fidelity unto his King or Generall, the oath is to be taken as made unto them also who succeed unto that dignity. The same may be said in matter of debt, and sundry p. 129other things wherein consideration of duty, or contract gave occasion of the oath. If you shall enquire how it cometh to pass, that the bond of an oath being personall as to the party swearing, is not also personal as to the party unto whom the oath is made, but passeth unto his heirs, or successors: or which comes to the same matter, how it cometh to passe that a man may engage himself unto another, and his successors, though successors be not expressed in the oath; but cannot oblige himself, and his successors, though they be expressed in the oath. I answer, the reason of the difference lies in this, that in the one case obligation of a mans self is meant, in the other, obligation of others. Any man may oblige himself spiritually as he will or pleaseth, and therefore may by his proper act oblige himself, as well to the successors of another as to the person himself; but a man cannot lay an obligation upon another unlesse he also consent, and therefore he can by his act spiritually oblige himself only. Now whereas I said in answer unto the doubt in this case, that the party swearing is ordinarily obliged; the reason why I said so is, because it may be that sometimes he p. 130is not obliged; for seeing that the intention of the party swearing, ought to be judged of according to the nature of the thing, and subject matter, where from the nature of the thing promised, and other circumstances it may probably be conjectured, that the party swearing intended only a personal promise unto the person unto whom he sware, and not unto his successors, the obligation of the oath divolveth not unto those successors.

SECT. XI.

BUt of active causes this may suffice, I passe to the impulsive, which are partly externall, and partly internall. Internall, when a man through the meere motion of his own will, not compelled by any other, freely offereth himself to take an oath, or through some transportation of anger, love, or other passion of a perturbed minde, or through delight in sin, and impious custome of swearing rashly, and without judgement, besprinkleth his discourse with oathes. Which vice, both in respect of the heavinesse and frequency of the sin, I could wish were more often, and vehem…ntly reprehended in Sermons, as p. 131I see it was diligently, and sharply done in his time by the most devout man, John Chrysostome, left by the just judgement of God, through oathes the earth mourn, and the Lord swear in his wrath, that he will not hold them guiltlesse, who so contemn his dreadfull Name, that they fear not to invoke his most sacred Majesty as witnesse…, and arbiter without any necessity. But I shall not say much concerning oathes of this kinde. All spontaneous oathes, are absolutely forbidden, except upon weighty and necessary occasions. It will be worth our while, to hear Augustine of himself; I swear, saith he, but as I conceive compelled thereto by great necessity, whilest I see that I am not beleeved without it, and that it is not expedient for him who believeth me not, not to believe me. As if he should have said, we may only then swear, when it is expedient that we be believed, and cannot be believed without we swear; And in this case (in which only it is lawful) a voluntary oath is the more binding, for being voluntary; because there is no straighter obligation then that which we take willingly upon our selves.

p. 132SECT. XII.

WHerefore letting these passe, I proceed to externall impulsive causes, which are especially two, Deceipt and Force. The fifth doubt therefore is, of an oath into which we are inveigled by craft and deceit, that is, when one man led into errour by another mans word or fact, sweareth to performe something, which if he had not been deceived by another, he would not have sworn. Of which we have an illustrious example in Joshua, and the Princes of the people of Israel, who deceived by the Gibeonites, faigning themselves to be strangers come from a far countrey, to desire a league with the people of God, admitted them unto the league, and sware a peace with them; Nor did the Israelites when they found themselves deceived presume to retract the oath, knowing themselves bound by the Religion thereof, but granted life and peace unto the Gibeonites, a… they had contracted: Neverthelesse they found out an expedient, (imposing upon them the condition of servitude in the vilest p. 133offices) whereby the Gibeonites migh… pay for their craft, be kept in their duty, and not be able for the future to hurt Israel; of which fact saith Ambrose, Joshua thought not the peace which he had given to be revoked, because it was confirmed by the bond of an oath, lest whilest he argued others perfidious, he should break his own faith. By which example it is plain that an oath, though obtained by deceit, hath the strength of obligation. And lest that any man should think that Joshua and the Princes were too superstitious in this matter, they resisted not only the people who thought the Gibeonites, notwithstanding the oath, ought to be sl…in, rendering this reason of their advice, We have sworn unto them by the Lord God of Israel, now theref…re we may not touch them. But God so approved afterwards of the thing by a double sign. One when he bestowed upon Joshua, fighting for the Gibeonites against the Kings, who had made a confederacy for their destruction, a remarkable Victory, accompanyed with an illustrious miracle; the other, when above an hundred years after, King Sauls unjust violation of the League made p. 134with the Gibeonites was punished with three years famine, and at the length expiated with the death of seven of his sons, by Gods expresse Command publiquely hanged.

SECT. XIII.

NEverthelesse this case will admit of a distinction. For the error whereinto the person sworn is led by the deceit of another, if it be about a circumstance only, or about the cause of a thing, as if it were extrinsick and accid…ntall, taketh not away the obligation, as appeared but now in the errour of the Israelites conc…rning the Gibeonites. The like might be said in case Caius should swear to take the widow of Titius to wife, beleeving her though poor to be rich, he must take her, this error rendereth not his oath invalid: and the the like is to be said of o…thes of the like kinde. But i… the error be about the substance of the thing, or its proper cause; as if Caius should swear to marry this particular woman under the name of Titia, beleeving her to be Titia, though she be not, & afterwards should find his error, p. 135he is not bound by oath; for an error in the substance of the thing, which was the proper cause of the oath, rendereth the promise invalid, and obligation void.

SECT. XIV.

THe sixth and last doubt is, of force, or of an oath extorted by fear, against the will of the party swearing, in such manner as if the fear were not, he would not swear; and truly this is a difficult and intricate question; neverthelesse I will endevour to explain it with as much brevity and perspicuity as I can. The first case is, where the fear is slight, and such as cannot easily affect a constant man, as if through the fear of unjust censure, or of derision, or displeasure of some powerfull person, a man should promise by oath the performance of something which would be inconvenient for him, and such as, were it not for the fear, he would neither doe nor promise. In answer, I must first repeat which in the whole matter of oathes is most religiously to be observed, that if any thing be proposed to be sworn, which p. 136is against the Law of God, against the duty of a Christian, against a vertuous life, against the Laws of the Countrey, against a former obligation, or in any other respect unlawfull, such an oath ought not through any hope of profit, or fear of danger; to be either taken, or performed. This presumed, I say, that a slight and empty fear ought to be contemned by a valiant man, (that is by an honest; for he cannot be honest who is not valiant) and every oath of this kinde to be constantly and boldly refused. The righteous are bold as a Lyon, P…ov. 26. 1. of which fortitude, he who is destitute can hardly doe any thing worthy of a good man. For he that observeth the winde shall not sow, and he that regardeth the clowds shall not reap, saith Solomon, Eccles. 11. 4. N…y it can hardly come to passe but he shall doe many things unbeseeming a good man; for by the Testimony of the same Solomon, Prov. 29. 25. The fear of man bringeth a S…are. But if any man being overseen, through want of courage, have suffered himself to be ensnared, he hath bound his soul with a bond, and is obliged to perform what he promised.

p. 137S…CT. XV.

THe second case is, where fear is great and just, and such as may affect a constant man, as the fear of captivity, loss of all his goods, of infamy, torture, and (which is the King of fear) of death it self. I say first, as before, if the oath contain any unlawfull thing, it ought not to be taken by any honest man, though to save his life, nor taken can be observed without sin. Hearken oh ye Christians unto the golden speech of an Heathen.

The man who's just and steady toHor. 3. lib. 2. Ode.

Himself, arm'd Tumults cannot bow;

Nor awed by the Tyrants look,

Is from his stable purpose shook.

Secondly I say, If a matter be extorted by force, or prevalent fear, which is neither unlawfull, nor injurious to any man, but more or lesse inconvenient onelyonly unto the party swearing; as if a Traveller falling amongst Theeves, who with their swords at his breast, should threaten him death, unlesse he sware unto them to ransome his life, with a p. 138sum of money, the party may in this case lawfully promise the money, and ratifie the promise with an oath. The reason is, that of two ills proposed, a man may, and a wise man ought to use the lesse, and the losse of money is a lesse ill then the losse of life. Thirdly, I say, that this oath obligeth, and that the money promised unto the Theeves, is in any wise to be paid: which though it seem to have been said sufficiently manifest; yet because this assertion hath considerable adversaries, and amongst them Cicero, a man of singular judgement, and as rightly principled in all that concerneth the bond of an oath, (this, one thing excepted) as was possible for a Gentile; it will not be wide of our purpose to confirm this assertion with some reasons. First, therefore he who sweareth a lawfull and possible thing, is bound to perform it: but to pay money promised unto a Theef is neither unlawfull nor impossible: therefore he is bou…d. Secondly, he chose that which then seemed unto him best, and which if one of the two were now necessarily to be taken by him he would choose again: wherefore p. 139it seemeth that what was prudently chosen cannot honestly be refused. Thirdly, that which was promised to a certain end, ought by the party promising to be performed, when he hath obtained his end. Because every contract upon condition, that condition being performed, ought also to be performed; which is the very basis whereupon the obligation of conditionall vows is supported; But he who contracted for his ransome with a Theef, did it to the end that he might redeem his life; therefore having redeemed his life, and enjoyed the end at which he aimed, he ought to perform that which he promised. Fourthly, the wisdome of the flesh ought ever to be suspected, as an enemy unto the purity of the heart, and a trap unto the peace of the Conscience; and what is the wisdome of the flesh if this be not, where profit seemeth to strive with honesty, nay honesty being rejected, profit to be imbraced? That man will not much trouble his minde, whether money promised be to be paid, who esteemeth Faith and Religion beyond riches; and quietnesse of minde, beyond all worldly p. 140gain. Fifthly, Regulus and others, (as hath been said) who kept their faith with enemies, though upon the hardest conditions, are celebrated by Heathen Writers: And Cicero himself commendeth Pomponius the Tribune, who performed that whereunto he sware compelled through fear, adding this applause, So much in those times was an oath esteemed.

SECT. XVI.

BUt they who are of another opinion object: First, that enemies are of a different nature from theeves, and pirats. For say they, we may deale with enemies as we doe with adversaries, with these by the Civill Law; with those by the Law of Nations; and therefore faith ought to be kept with them, but with theeves, enemies of mankinde, there is no society of law, and therefore none of faith. I answer first, skilfull Lawyers affirm some legall rites of society to appertain even unto theeves, of whom if we should borrow money, it ought by the Law of Nations to be restored; wherefore … p. 141pari, promises made unto th…m ought to be performed. Secondly, though no performance were due unto the thee…, as a person unworthy thereof; for which reason, breach of bare promise might perhaps be more excusable, yet ought we at least to perform our faith unto God. Secondly they object, that through such contracts honest men may be undone by rogues, which would be a publick mischief. I answer, nay rather the lives of honest men saved from rogues, which will be a publick good. But, Thirdly say they, by this means robbery and rapine would be established, whilest theeves passe not only unpunished, but rewarded. I answer, if it be so, it's so only by accident, through their vice, not his who doth not any way help the theeves, nor approve of their fact by promising, nor approveth of it by performing his promise, but rather in providing for his own safety, prevented so much of their wickednesse, that they remained theeves only, and not murderers. Fourthly, they object, that the obligation of an oath ariseth from a deliberate act of the judgement and will, where the p. 142will ther…fore is so far from freedome, that its action may rather be called coaction, there followeth no obligation. I answer, and it is confessed by all, that the wil cannot be forced. There may indeed be coaction, in respect of an externall and remote principle of action, but in respect of the nearest principle, which in all humane action, is the will; there can be coaction. He therefore who maketh an oath unto a theef, that he may save his life, doth it willingly with an unwilling minde, wherefore this kind of oath is not simply, but mixedly involuntary; that is to say, an action partly unwilling, because it is not done willingly, partly voluntary, because it is done with election, though not the freest, yet free enough to deserve the name rather of voluntary, then involuntary, because choyce of two things being granted unto the agent, it is in his power to take which he had rather: And he willeth, who had rather. He therefore is not truly said to have sworn unwillingly, who when he might have let it alone, chose rather to swear. For death being threatned except he would swear, it was left to his choyce, whether he p. 143would rather suffer the mischief threatned, or be redeemed from that mischief, by the obligation of an oath. He considered, he chose to be obliged, therefore he would be obliged; and he who confesseth that he would be obliged, argueth absurdly that he was constrained; and therefore is not obliged. Fifthly, they object, that the Traveller oweth the theef nothing, and therefore is not bound to pay him any thing, seeing as hath been said, all obligation relateth unto some debt: now that nothing is owing unto the theef is proved, because no right can be founded upon injury, and it seemeth to be most unjust, that a man should by his injurious fact acquire any right unto himself: therefore unto the theef, who terrified the traveller, and contrary to the duty of an honest man, extorted from him an unjust oath, no right accreweth; and so neither is the party sworn obliged. I answer, a twofold obligation may arise from an oath: one unto the person, to whom the oath was made, as a party; the other to God, by whom the oath was made, as witnesse, and revenger. Many things may hinder the p. 144former obligation, so that he to whom the oath was made, may acquire no right nor any thing in conscience be due unto him from the party sworn: and from this kinde of obligation, and debt proceedeth the objection. But the obligation ceasing in respect of the man, who offered injury and violence; yet the obligation made unto God remaineth; to whom irreverence is offered when a man admitteth of an oath which he intendeth not to fulfill; and injury, when having admitted of it, he regardeth it not.

SECT. XVII.

ONe case yet remaineth peculiar unto this place, and that is where a man falling amongst theeves, to save his life, is constrained to promise them silence by an oath; that is, never to reveal their theft unto any man, or to discover their names unto the Magistrate. It is very hard to determine any thing in this kinde, saith Frederick Baldwine, late Professor at Wittenberg; yet addeth, that he thinks it safer that the person keep not the silence promised; but discover the matter p. 145unto the Magistrate, albeit he have sworn to the contrary. It seemeth he is of opinion that the oath is not obligatory, but the three reasons he giveth, as he proposeth them, barely, and briefly without further confirmation give me no satisfaction. First, he saith, that this oath is of an unlawfull thing. If so, there is an end, other arguments are needlesse. But this he taketh without proof for granted: If it be thought unlawfull, because it's the duty of a good Commonwealths man, to give notice of lewd persons unto the Magistrate, that so they may receive condign punishment; it is granted, but it doth not therefore follow that it is alwayes sin, not to give notice, seeing the affirmative precepts of duty oblige not simply unto the performance of the same, but when we are able, and it is required by the exigence of circumstances. Secondly, he saith, that such a kinde of oath seemeth to have a certain kinde of Collusion with the theeves, which is pronounced so timerously as sheweth he had not much faith in this argument, [Kinde of Collusion, a certain kinde, and seemeth to have]. Which whether p. 146it be true or not, who would undertake to prove, that it is not lawfull for a Traveller, if to the apparent hazard of his life, he fall amongst theeves, to doe something which might seeme to have a certain kinde of Collusion with them? That which he bringeth in the third place, the impediment of Justice, encouragement of wicked persons in their impiety, occasion of leading others into the like hazard of their lives through such silence, would be prevalent indeed, if the Traveller were gotten out of their hands safe and unsworn. But we suppose, except he had sworn, he had been slain. I ask theref…re whether in such certain danger of …e, was it lawfull for him to swear, or not lawfull? If not lawfull, (and certainly the two first arguments either prove that or nothing) he had perished; and who then should have given the Magistrate information of the theeves? The inconveniencies which are objected from this silence, might they not (seeing dead men are enjoyned perpetuall silence) be objected from his death? But if it were lawfull to swear, then it is also lawfull to keep the oath, p. 147except some emergent accident as it may fall out, unexpectedly do render the thing lawfull when it was sworn afterwards unlawfull. Let this therefore, till the contrary be proved by stronger arguments, remain both in this case & the rest, where deceit, fear, tyranny, and the like are exercised; That an honest man either ought not to swear at all, (which if the thing it self be not unlawfull seemeth hard in imminent, and apparent danger) or ought religiously to observe his oath. And thus much for the Efficient cause of oathes. In which I was desirous to have been briefer, if the matter would have born it; My discourse hath encreased upon my meditations, beyond what I expected, and yet whilest I study brevity, I have willingly omitted many things whereof I might profitably have spoken.