The Obligation of Promissory Oaths, Lecture 5

The Obligation of Promissory Oaths · Lecture 5

p. 148The fifth Lecture. Of the Externall Form of an Oath, Containing ten Cases.

Summary.

1 Oathes by signes onelyonly without words.

2 Oathes by the Creature.

3 Oathes by Idols.

4 How to know whether a man have sworn or no.

5 The first tryall, the form of the words.

6 The second, the force of the words.

7 Of Josephs form; by the life of Pharaoh.

8 Third triall, the custome of the Countrey.

9 Fourth, the intention of the party swearing.

10 The use of the said trialls.

11 The solemn rite of an oath.

12 Whether solemnity increase obligation.

13 Solemnity of oathes omitted.

p. 149SECT. I.

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

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

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

SECT. II.

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

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

SECT. III.

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

SECT. IV.

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

SECT. V.

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

p. 167SECT. VI.

BUt because it happeneeh very often through the resemblance of some ambiguous or large signification of a word, or some other cause, that it cannot certainly be judged by the words uttered, whether it be an oath or no; in the second place, we must be attentive unto the proper and genuine sense of those words, and from thence make the Judgement. For it may appear by the forms, that all those speeches which appeal unto the Name of God; or wherein the Greek foreign, the Latine Per, or the English By, are used, with the accusative case, are formally oathes. Led by which reason only Soto conceived, so much difference between the terms, By my faith, and In faith; By my troth, and In troth, that he determined those to be formally oathes, these none. But if the genuine sense of the words be well looked into, there will be no difference between the Propositions, By and In, being applyed unto the same thing; for we are to judge of them, as the thing they are applyed unto is Sacred p. 168or Civill. The form By God, is properly an oath, by vertue of the words: for the Name of God is a sacred thing, and he who speaketh after that manner calleth God to witnesse. But that By my faith, (though by the custom of some Countrey, or intention of him who speaketh, it may be an oath) is no oath by vertue of the words, but a meer Asseveration, or at the most an Obtestation. Because humane faith is not a sacred, but a civill thing; and he who speaketh after that manner, calleth not God to witnesse, but speaketh as he believeth, or declareth, that the thing is uttered with serious and sincere deliberation of minde. For the genuine Interpretation of the words, By my faith, whether in an assertory or promissory matter, is this, I speak from my heart; I tell you my very thought; I pawn my faith to you that the thing is so; If to my knowledge I deceive you, let me never be believed more, &c. Wherefore the interposition of faith, maketh not an oath by vertue of the words, unlesse perhaps it recall us to some oath which we have formerly made. As in this University, when a man is required to answer unto a p. 169question, by vertue of his Oath, according to this form, You shall speak by your faith given unto this University. And when Convocations are solemnly called, whereunto the Doctors, Masters Regent, and Non-Regent, are warned by the Beadles to repair, Per fidem, per fidem, per fidem. The like in my opinion, (though others I know think otherwise) is to be said of that of Paul, By our rejoycing 1 Cor. 15. 23.1 Cor 15:23which I have in Christ I dye daily; to wit, that it is properly no oath, but a serious asseveration only, that as he was subject unto death, so he was daily prepared for death, when it should please God to call him.

SECT. VII.

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

p. 174SECT. VIII.

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

To whose Arbitriment belongs,

The right, the Law, the rule of tongues.

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

SECT. IX.

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

SECT. X.

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

SECT. XI.

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

SECT. XII.

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

SECT. XIII.

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