The Obligation of Promissory Oaths, Lecture 6
The sixth Lecture. Of the Internall Form and finall cause of an Oath; Containing seventeen Cases.
Summary.
1 Of the Internall form or Interpretation of an Oath.
2 Where the parties are agreed upon the sense of an oath.
3, 4 Whether verball equivocation avail any thing.
5, 6—or mentall Reservation?
7 That an oath is not to be eluded by a studyed subterfuge.
8 In what sense voluntary oathes are to be understood.
9, 10—And in what, oathes that are required.
11 How far the sense of an oath dependeth upon the scope of the same.
12 An oath upon condition.
13 Of the first and second Intentions of an oath.
14 When a lawfull thing is sworn for an evill end.
15 Whether the party swearing not intending to swear be obliged?
16 An Oath by the way of Complement.
17 When a man is doubtfull whether he have sworn or no.
18 A man willing to swear, but intending not to oblige himself.
SECT. I.
WE proposed a twofold form of an oath, Externall and Internall: the Externall following the signes and words, which are objects of our Externall senses we finished in our last Lecture. We come to the Internall, which consisteth in the sense and Interpretation of the words, and is the work of the minde. Now in this place I take the sense of the words not in respect of the Forms, by which we understand a thing to be sworn; for of this we have formerly spoken in the tryalls of oathes, (when we discoursed upon the outward form) but in respect of the promise confirmed by an oath, and contained in the words. A matter truly of great moment, and manifold use, and in either relation, worthy of your most diligent attention; for it is of much concernment, to know in what sense you swear, because he is forsworn, who performeth not what he promised, in the same sense wherein he promised, or ought to have promised it: and that not in oathes onelyonly, but in Vows, Promises, Leagues, Contracts, and all other conventions, wherein it behoveth an honest man that his dealing be fair, and his performance exactly agreeable with the true sense of his undertakings. Wherefore to the point. The words of an oath, are either clear, or ambiguous.
SECT. II.
THe first doubt is of the obligation of an oath, the words whereof are plain, and have a manifest unquestionable sense: where four cases occur. The first is, where the words of an oath or promise, are so clear either first by their proper and ordinary signification: or secondly, by the manner of speech received, in any Countrey: or thirdly, by mutuall consent of the parties, that their sense is fully agreed upon, by the persons interessed. For example of the first; I Caius promise unto thee Titius, to give thee possession of my Land in Tus…ulan, if within a months time thou pay me an hundred Crowns. Example of the second; John bargains with Peter for the hundred Marks which I owe you, I will deliver you to morrow an hundred of my Wethers; Or, for the benefit of your Land, I will pay you the yearly rent of three Bushels of Wheat. In the former of which examples, although an hundred be a word so ambiguous, that sometimes it signifies five score, sometimes six score, yet by the received use of it throughout England, the intention of the parties would be so manifest, that there could arise no controversie about the sense thereof because we all know that an hundred, when we speak of money signifieth five score, and when of Cattel six. So a Bushel in the latter example, is a measure, containing double the quantity in the Northern parts of this Kingdome, which it denoteth in the Southern. So wheresoever the bargain be made, the use of the place will so explain the ambiguity, that plain dealing men could by no means disagree about the signification of the words. Example of the third, Titius desiring to buy one piece of the land of Cai…s, bordering upon his own having formerly beaten the price, at their next meeting, asketh, Will you sell me your land at the price you set upon it? I will; though no peculiar mention be made of that piece which bordereth upon Titius; yet it is evident by the foregoing discourse, that the same was peculiarly understood. And this kinde of oath, obligeth the party swearing to perform his promise fairly, and in that sense upon which without elusion it is manifest the Contractors were agreed. And he who bargained to deliver an hundred Wethers, hath not made good his agreement till he deliver six score.
SECT. III.
THe second Case is of an oath, where the words according to their common signification are clear enough, but the party swearing having no will to oblige himself in that sense intendeth another, whereof the words by reason of some ambiguity are not altogether incapable, and industriously concealeth his meaning in such sort, that the Auditors understand one thing, and he another. This is that verball equivocation, which amongst some other Casuists and Scholasticks, the Jesuites especially maintain and practise; examples whereof are most frequently found in assertory oathes; because by their Doctrine, the chief use of this equivocation is, when a man examined by an impotent Judge, or not legally, or having some other reason to dissemble the truth, fitteth the words u… to his occasion, by changing their genuine sense into one more strained and remote from the matter in question. As if a Jesuite apprehended, should swear that he were a Smith, meaning that his name was Smith; or an Apprentice commanded to tell where his Master is, should swear he dyed a monethmonth ago, meaning that he then dyed stockings. The like may happen in promissory oathes; as if a Generall having made a Truce with an Enemy for ten dayes, should give him a Camifado, because in the Capitulation mention was made of the dayes onelyonly, not of the night. Livy and others relate the story of the ten Romanes, taken by Haniball, and after they had sworn upon certain conditions to return unto his Camp dismissed, one of which (saith he, others say two) most unlike a Roman returned the same day, pretending something forgotten, but intending to absolve himself of his promise, and before night overtook his Companions: which deceiptfull trick of his was accounted so base, that he was not only scorned by the vulgar, branded with ignominy by the censors, but adjudged by the Senate to be taken, and by a publick Guard delivered unto Hannibal. Neverthelesse Jesuites so vigorously defend this equivocation, that Jo. Molanus Professor at Lovain, justifieth the murder of John Huss perpetrated against the publick faith engaged unto him for his safe Conduct, for this reason, that the Conduct undertook for his safe coming, not for the safety of his return. And now let Jesuites confidently complain of the great injuries done them, whilest we say they hold faith not to be kept with Hereticks; for if this be to keep faith, they need not much trouble themselves, with whomsoever it be contracted, whether it ought to be kept or broken. But whole Bookes of this Jesuitism are largely and solidly confuted by the Reverend Father in Christ, John Morton now Bishop of Duresm, Henry Mason, and other of our Countrey-men, worthy the perusall of such as desire further satisfaction in this point. In the mean time our result is, that the party swearing after this manner, both sinneth in his equivocall oath, and is notwithstanding that tacite equivocation bound in Conscience unto the performance of his promise in that sense, which the words yeeld of themselves, and are without constraint apt to beget upon the mindes of others: unlesse he act accordingly, he is not guiltlesse of perjury.
SECT. IV.
SOme reasons of this assertion I have already alleadged in the confirmation of our first Hypothesis, I shall now adde but briefly a few more. The first, an oath according unto the sum of that Hypothesis, ought to be most simply, and effectually understood; unto which simplicity this artifice of industrious ambiguity is repugnant. The second, it is a great profanation of the Name of God, to invoke him as witnesse and searcher of hearts to attest the truth of words which agree not with the heart of the party swearing; for what were this if not as far as lyeth in mans power to make God, who can neither deceive, nor be deceived, an Impostor and Patron of base dissimulation. The third equivocation is contrary to the very institution and nature of an oath, whose chief use is to be an end of strife and controversie, and to give as certain security in uncertain things, as humane nature is able to afford, it being Expediendarum litium maximum remedium. But that certainty which we seek in an oath, is los… in equivocation; for what certainty can there be in his answer, whose meaning is uncertainty? nor are Controversies thus ended but aggravated. The fourth, the party so swearing deludeth his neighbor, and knowingly deceiveth, contrary to the precept, Ne juret in dolo, and to the ancient form, Si sciens fallo. The fifth, promise in the promissory is as affirmation and negation are in the assertory, and containeth an answer unto the question, or intergatory propos…d by the Deferent, which unlesse it quadrate and agree with the Intergatory proposed, is no truth, but a lye. For out of the question and the answer springeth as it were one proposition, which must be utterly false, where the answer is made in a different sense, from that wherein the question was asked. No… doth that qualification to which the Patrons of this simulation fly afford them refuge. To wit, that we may not use this equivocation at our pleasure, but onelyonly before an incompetent Judge, such as have no right to require an oath, or who compelleth us to swear without just cause, or exacteth that which is not due, or the like. But to omit that these are but their bare allegations only, not confirmed by authority of Scripture, of the antient Church, or indeed of good and solid reason, the force of these arguments by which we maintain the contrary, is neither overthrown, nor weakened by this qualification. And although it should be granted, that an unjust force might null that obligation, made to man, because it is not reasonable that an unjust act should acquire any right; yet no injury done unto us by men, can give us just cause to injure God, by casting off that obligation which we made unto him the searcher of hearts, to whom such right by every oath occurreth through the Invocation of his Name. To conclude, this Jesuiticall Doctrine licenseth the lust of lying and perjury unto impious men, notwithstanding that qualification, which though it remain, yet the sole judgement, when it is, and when not expedient to use it, is left unto the party swearing. Wherefore if a man against right and reason be constrained to swear, he ought either absolutely to refuse the oath or to take it in that sense wherein it is given without simulation or equivocation.
SECT. V.
THe third Case allyed unto this is of mentall Reservation, which the Jesuites defend with the same reasons, and define with the same qualification, they doe verball equivocation: For as in that by wresting the words pronounced unto another sense, so in this by some addition not pronounced, but conceived in minde, the party swearing eludeth the Intergatory. So they say a Priest, if he be examined by an Hereticall Magistrate, whether he be a Priest, may answer that he is no Priest; meaning of Bacchus or Apollo And an adulterous wife if she be questioned of adultery by her jealous husband, may swear unto him that she committed not adultery, meaning not to the end to tell him. The like they hold in promissory oathes, that a Traveller to save his life may swear to give money unto a Theef, though he never intend it; provided that when he sware, I will give thee so much, he understood if I owe it thee, or if thou demand it before the Magistrate. But as this mentall reservation is built upon the same sand with verball equivocation, so is it destroyed with the same dash; for it rooteth all faith and assurance out of men, makes God an Imposter, is deceitfull unto our neighbour, perverteth the use and end of oathes, setteth open a great gate to all kinde of lies and perjuries, and is so much worse then equivocation, as more difficult to be prevented. For equivocation foreseen or suspected may be prevented, by such diligent explication of the words, as may leave no loop-hole of ambiguity. But no humane art or providence, if men will be jugling, can prevent this pouch of this Reservation. Where will you finde a knot to tye this Vertumnus unto one shape?
Binde wicked Proteus in chain
A thousand fold, 'tis all in vain.
Jesuites and Priests reserving unto themselves the liberty to reserve any thing, are not afraid with a serious brow, to take our oath of Allegiance, though penned with such accuratenesse of words, as leaveth no hold for cavill, nor way for escape; yet that very clause where in expresse words they promise that they will faithfully observe all the premises according unto the tenor of the words pronounced by them, and according to the plain and naturall sense, and true intent of those words, without any equivocation or mentall reservation, they understand at the same time with this reservation; to wit, that I will tell you.
SECT. VI.
THey lye neverthelesse at a ward to put by perjury; for say they, of the verball and mentall sentence one entire sentence is compounded, in which taken altogether there is no falsehood. For example, if a Priest swear in express words that he is no Priest, with the addition reserved in his minde, but not uttered, that I should tell it you; this whole sentence say they put together is true, viz. I am not a Priest that I should tell it you. Nor doth any reason seem to forbid a man the liberty, if he please, to compose his speech of verball and mentall terms. For why in our prayers, if one should pronounce those words only our daily bread, and expresse those other give us this day in his thought only, should the speech be intire and lawfull, and acceptable unto God; and unlawfull to doe the like in an oath? That this Jesuiticall Legerdemain may fully be discovered; First, it is admirable that these most acute Artificers should not perceive the Fabrick of this defence not to be raised, but upon the utter ruines of faith in all humane judgements, contracts, and promises. For the argument they use, if it were of any weight, would as well justifie the practise of this equivocation before a lawfull Judge, and in a just matter, (which they say ought not to be) as before an incompetent Judge, and in an unjust matter; seeing that a sentence composed of the verball and mentall parts, is in each of the same truth or falsehood. And this answer may suffice ad hominem: but ad rem, I say secondly, that a sentence composed, as hath been said, of the verball and mentall parts, may be admitted when a man converseth with his own thoughts, as in private meditation, or when he addresseth himself to God alone, as in prayer or thanksgiving. But when the hath to do with men, as in oathes, where he is to bear such testimony as may be heard, and understood by others, a sense mixed of verball and mentall parts, is in no wise to be admitted. The reason of this difference is manifest, because that which he beareth hidden in his brest, is no further known unto others then he declareth it by word of mouth. But to God before whom nothing is hidden, the darkest secrets of the heart are transparent. So that when men pray or meditate, it is all one, as to the point of truth or falsehood, whether they pronounce their whole thoughts, or part of them, or none at all. But men who cannot dive into the heart further then words and actions discover it, must weigh the truth or falsehood of a speech by those things only which may yeeld testimony unto the hearers. Which since those reservations which are kept within cannot effect, the truth of a speech is to be judged only by the words pronounced, and not by mentall Reservation:
SECT. VII.
THe fourth Case followeth the fact; for as before, and in the act of swearing, there ought to be a purpose of fulfilling the promise in the same sense wherein it was proposed, without any equivocation or mentall reservation: so ought there afterwards to be a desire and endeavour in due time faithfully to perform the same, according unto that sense wherein it was sworn, without any evasion or subterfuge; and as it is one kinde of perjury to strain the words during the act of swearing, unto another sense, then that wherein they are understood by the Auditors, so is it another kinde of perjury having sworn honestly, not to proceed sincerely, but decline, and elude the strength of the oath, (though the words be preserved) with some new forged invention, variously turning and dressing the words to cloke the guilt of their Consciences, as Tacitus saith of some. Stobaeus telleth a prety tale from Herodotus of one Archetimus, who had deposited money in the hand of his friend Cydias; Archetimus upon a time desirous to have the same restored, Cydias loath to part with the gold, disclaimeth that he ever received it. The matter brought before the Judges, the Plaintiffe accuseth, the Defendant denyeth, each with like confidence, neither by any witnesse. The Judges other proofs being wanting decreed the determination of the controversie by Oath; the day is appointed, Cydias in the mean time putteth the gold into an hollow staffe which he had cunningly boared, and withall counterfeiteth sicknesse; then appearing at the time with his staffe as newly recovered, delivereth the same unto Archetimus to hold, whilest he approached the Altar, and till he had performed the solemnity of his oath; This done with a most composed minde and countenance he sweareth that he had received gold from Archetimus, but had restored it again unto him. At which Architemus netled with his losse, and transported with indignation to see perfidiousnesse joyned with so much impudence, threw the staffe so hard against the pavement, that it brake, and discovered the money, the fraud of Cydias, and the whole truth of the matter: Which act the writer of the story cals an imbroydered ly; and observeth, that Cydias in reward of his perfidy came to a miserable end. Many such examples are extant both in Historians and common practise, out of which I shall collect some profitable observations. The first is, that even dishonest men are so far touched with some Conscience, and obligation of an oath; that though none at all or very small regard be had to justice and honesty; yet through an instinct of nature, they think themselves bound to quit themselves of their faith engaged, by performance of the same. The second, that unl esse corrupt affections be vigorously withstood, that spark which is left in us of naturall light will goe near to be altogether extinguished by them, or so raked up in that heap, that we shall rather give our mindes artificially to palliate, then sincerely to avoid perjury. Thirdly, that he who desireth to keep himself free from all spot of perjury, must diligently ponder every word in its own strength, and sense of the oath which he is to take, that if it ought not to be kept, it may not be taken, or if it be fit to be taken, it may be fulfilled without deceit or simulation; for unadvisedly to chop up holy things is impious, and too late when they are once swallowed, to chew them. And so much for the first doubt, which amounteth unto this sum, That the words of an oath where they are so clear in themselves, that amongst honest men there can be no question of their meaning, the party swearing is obliged in that sense which they apparently afford, and may not either in swearing, or when he hath sworn, stretch those words upon the Last of his interest, by any studyed Interpretation.
SECT. VIII.
THe second doubt is, where the sense of the words is in question, and the Cases are three. The first of spontaneous oaths, as in promises proceeding from the meer motion of good will, and a kinde of liberty of the minde, rather then duty of right or respect. The common and true answer is, that these promises are to be taken according to the intention of the party swearing, because every man is the best interpreter of himself. For example, if any of us should binde our selves by a vow, or promise, to give unto the poor of a Village, or Collector for them ten shillings a month; if the poor, seeing month as we use it is an ambiguous word, should by the promise pretend unto the first pension upon the 28. day of January, and so for the rest of the months upon the same day, taking a month for the space of four weeks, which is one signification of the word; and he on the other side should say that it was not due till the last of January, and so forth, taking month for the twelfth part of a year, according to the distribution of the year in the Calender, which is another signification of the word, it were most just that the ambiguity should be interpreted, rather in his sense then theirs; because that Pension was not due in justice, and before the promise, but in charity, and by vertue of the free promise, without agreement or contract. And of this kinde of oath ought these words to be understood which are cited in the glosse upon the Canon Law, It is manifest that God taketh not the oath as he unto whom it is sworn, but as he who sweareth understand…th the same. But that this may rightly be apprehended, two things are observable: One, that it holdeth especially in spontaneous oathes and promises, for in such as are required the reason differeth, as shall be said anon: The other, that the party swearing is in the present case obliged to hold unto his promise in that sense which he either really intended when he sware, or was willing the Auditors should beleive. And not in any which he shall please afterwards to impose. For God who beholdeth the heart, is not deluded by words. Nor ought the intention to serve the words, but the words the intention.
SECT. IX.
THe second case is of oathes and promises, which are offered unto, or required of the party swearing, whether of right, or under pretence of right; such especially as Rulers of authority command their Subjects, or Laws ordain, as with us those of Supremacy and Allegiance, those which the Statutes of the University require of Graduates, and the like; Also those which either party in lawfull Covenants demandeth of the other or are used in Bargains, Leagues and other mutuall Contracts, for the confirmation of mutuall faith. For answer in this case I say, that this kinde of oath ought regularly to be understood in that sense which the party unto whom the oath is made seemeth probably to intend; so that the party swearing is bound under pain of perjury to fulfill his promise, (if it be lawfull and honest) according to the intention of the deferent. The words are understood according to the minde, and intention of him to whom the oath is made, saith the Lawyer. The reason is, because this kinde of oath is taken to the end he to whom it is sworn, may by interposition of the same be assured, that the promise of the party swearing shall be performed unto him; but he would be no wh…t the more assured of that performance, if the words were to be interpreted at the will of the party swearing, and not according to his own sense; for there is a different nature of obligation, where debt is claimed by promise, and where promise is claimed by debt. God himself who is by Law no mans debtor, maketh himselfe through his free promises our debtor; and he who obligeth himself by a voluntary vow, oath, or promise unto any deed of Charity, ipso facto contracteth debt. But because this debt is not founded upon his right unto whom the promise is made, but floweth meerly from the free act of the party promising, it is most just that he should be his own Interpreter, who is most concerned to know how much, how far, and in what sense he intended to oblige himself. On the other side where the promise is founded upon some antecedent right, either that of subjection, and duty, by Superior Authority, or of Justice, and contract by agreement, between parties; Because he to whom the promise is made hath right to enquire the same, and is most concerned that it be faithfully performed, reason requireth that the obligation of the promise should rather be judged according to his mind, and interpretation, then by the sense of the party promising.
SECT. X.
THe third case is, where the Deferent offering an oath of ambiguous sense, desireth only that the words be sworn, leaving it unto the judgement of the party swearing, to take them in what sense he pleaseth. I say it may very well be suspected that some deceit is couched in them, and that a pious prudent man ought therefore to refuse an oath proffered upon such conditions: which I shall make good by a threefold proof. First, in regard of the oath it selt, in which the first thing required is truth; for a speech of indefinite, and ambiguous sense, before it be distinguished, is no true proposition, indeed no proposition, seeing a proposition as by the definition thereof is known even to children, ought to signifie a truth or falsehood without ambiguity. Secondly, in regard of him to whom it is sworn. For the proper end of an oath is, that he to whom it is made may have some assurance of that which before was uncertain. But what certainty can be had in words of an uncertain sense? Thirdly, in regard of the party swearing, who if he take the oath upon that condition, prepareth either scandall for his neighbour, or a snare for himself; for this kinde of covin cannot be imagined to have other drift, then either that others might be drawn by our example, (though against their Conscience) to take the same oath, which is to give scandall unto our neighbour; or that something else by vertue of that oath might afterwards be required of us, which is either unlawfull, or inconvenient, and that were to set a snare for our selves. Wherefore let a prudent man beware how he suffer himself thus to be imposed upon, or esteem the fear or favour of any at that rate, to swallow the bait, wherein he knoweth certainly, there is an hook. Assuredly that the act of swearing may be duely performed, it is expedient the sense of the words be most clearly agreeed upon, by all the interessed parties, which the Ancients call Liquido jurare.
—Scis tamen & liquido juratus dicere posses.
And it appeareth by an old form, the deferent when he offered an oath to the party about to swear was wont to say, Qua de repeto liquido jures.
SECT. XI.
BUt enough of these, I come to the third doubt, which is of the sense of an oath according to the latitude or extent of the same, That is, whether the sense of the words be, and how far it is to be measured by the scope. The first case is, where the cause of an oath was particular, yet the words are generall. For example, Papall usurpation was the cause of the oath of Royall Supremacy, he arrogating unto himself the exercise of Supreme Jurisdiction in spiritualibus, throughout this Kingdome. I answer, such an oath is obligatory, according to the expresse words in the utmost latitude: The reason is, that the intention of a Law, though made upon particular occasion, is generall, to provide against all future inconveniencies of the like kinde, or nature. And therefore albeit in the preamble of a Law, particular mention be often made of that grievance, which gave occasion to enact the same, yet those words wherein the Law is contained, are for the most part generall; which is done industriously, and on purpose by Lawgivers, that other things of like nature may fall within their comprehension. Wherefore as Lawyers take their Responsall upon the sense of the Law, not from the preamble, but body of the Statute; so of the right interpretation of an oath, ought judgement to be made, not from the preface, but from the body of an oath.
SECT. XII.
THe second Case is, how far an oath is to be understood with some conditions. I answer briefly, First, if the words contain an expresse Condition the party swearing is not bound, till the condition be performed. As if Caius promise Titius an hundred Crowns to morrow, if Titius give him this day possession of such or such land; the possession not given, Caius is not bound by his promise. Secondly, if there be no expresse Condition, yet all those conditions and exceptions which are presumed by Law and common custome are to be understood, as I will do this or that, If God permit, If it be not against the right of another, If things remain as now they stand, If I be able, If be it lawfull, &c. as was said more at large in the explanation of the second Hypothesis.
SECT. XIII.
THe third Case is of the first and second Intention. For the seemeth to have fulfilled his oath, who doth according to that which he intended in the second intention, which is the end; although he perform it not according to the sound of the words, which contain the first intention only, or means. For example, if a man engage himself by vow, oath, or promise, to allow ten shillings a month to the poor of such a Parish, and in January and February give nothing, but in March send them thirty shillings. I answer, that if the party swearing intended to oblige himself unto the substance of the thing only, and not unto the circumstances and manner of it, he is not obliged unto that way which the words seem to insinuate. Whence in the example propounded, if he had paid a whole three moneths pension in the first monethmonth, doubtlesse he had performed his promise; yet it may be that by accident, and consequence he might become obliged, even unto the manner of the thing, because every man is obliged, caeteris paribus, and if there be no other impediment, in doubtfull matters to choose that which is safest: As in the example proposed, it were safer to pay the pension in the manner promised, that is, rather every month ten, then in the third thirty, both in respect of the danger of sudden death, and uncertain events, and to avoid those scruples which may arise even from neglected circumstances. I should therefore advise a pious man, that he be carefull to fulfill every of his vows, oaths, promises, according unto the tenor of the words, and of his intention, as far as conveniently he may, even to the slightest circumstance; lest through contempt of small matters, he create scruples unto himself, or by degrees get such an habit, as may cause him to contemn greater. But however unto one thing I exhort all, and it is the sum and topstone of this whole discourse, concerning the sense and interpretation of oathes, that above all they be watchfull, lest they be too indulgent unto themselves in this businesse, or whilest they pamper their own desires, weaken the bond of an oath with over milde, and loose interpretations, and so expose themselves unto the danger of perjury. And thus mu…h shall suffice to be spoken of the Formall cause.
SECT. XIV.
THere remaineth a little to be said of the Finall Cause; The first doubt is, when a thing lawfull in it self is promised with an ill intention, or to an ill end. First I say it is simply unlawfull to promise any thing, though lawful, with an evill intention, or to an evill end: The reason is, because as one defect in any humane action is enough to render the whole action evill, (for good is the effect of an entire cause, evill of a partiall) so especially a defect derogating from the end, which holdeth the principall place in morall things; at which that speech of our Saviour is thought to aim, But if thine Eye be evill, thy whole body shall be full of darknesse. Secondly I say, if any man shall have sworn any thing unto another for a dishonest end, yet without any dishonest conditions to be performed by the party, he is obliged to fulfill the promise. If a man promise a woman a Jewell, intending with himself to engage her by that token unto immodest love, neverthelesse without shew of any unchast condition, he is bound by the promise. The reason of each is, because it is lawfull to give a Jewell, but to give it upon lewd conditions, unlawfull. Thirdly I say, that which is promised upon dishonest unlawfull conditions, the conditions performed ought to be fulfilled, at least if the thing be lawfull. If a man promise a sum of money unto another, for adultery, false witnesse, or any other wicked exploit, he is bound when the other hath performed the conditions, to stand to his promise and pay the money. So Judah rightly understood himself obliged to send the Kid unto Thamar his daughter in law, as the promised price of her Whoredome. The reason is, that although the bargain were, yet the thing promised in that bargain is not unlawfull. Wherefore it ought not to have been done, but being done it is valid. And by what hath been said it is sufficiently clear, that an unlawfull oath of a lawfull thing may be obligatory.
SECT. XV.
THe second doubt reflecteth upon the Intention of the party swearing. That Intention I mean, not which aimeth objectively at the matter of the oath, or thing promised, whereby we enquire what the party swearing intended by this promise, in what sense, and how he obliged himself: For of such intention we have already spoken, when we discoursed upon the sense and interpretation of an oath: but that intention is here understood, which aimeth objectively at the act of swearing; whereby we enquire whether he intended to swear, or to oblige himself, or not. Upon which Scholastique dispute, very much, but more subtilly then profitably, I shall contract as much of them as is usefull into a narrow room. The first Case is, when a man through evill custome heedlesly aboundeth with unnecessary oathes; I say first, that this kinde of swearing is most certainly a very grievous sin; not only Originally and in respect of the Cause; because it floweth from a depraved habit; but also formally, and in respect of the Act, for asmuch as an act in it self sacred, is rashly exercised, not in Judgement, and without reverence. Secondly I say, that such oathes, if the act of swearing through the impetuosity of the minde were altogether inconsiderate, are not obligatory. But if any deliberation of minde were present, though small, they are in part obligatory. The reason of either member of this assertion is, because deliberation of minde is required to make any humane act binding, and the measure of the obligation ariseth from the measure of the deliberation.
SECT. XVI.
THe second Case is, when in Honour, or Complement (for so Cafuists speak) a man giddily sweareth in a matter of small moment. For example, if one contending with another, and p…essing him by way of respect unto precedence should swear (as it often happeneth) not to stir out of the dore, sit at the Table, or touch the cup, till the other were first out, or fet, or had begun. Nay since commonly the persons so striving both swear the same thing, if such oathes were obligatory, one of them must needs be foresworne, because of necessity one must doe that, which each sware he would not doe. First I say as before, that an oath of this kinde is rash, and not without sin, because without judgement. Secondly, that it is neverthelesse in it self obligatory, except the act were altogether void of deliberation. But thirdly, that such obligation may either be stopped or taken away in such manner, as who doth otherwise then he hath sworn, may avoid Perjury. That is to say, the obligation may be stopped, if it be understood with a tacite condition, or exception; in this sense, If it please you, or if the thing be left unto me, I will not stir till you goe first. It may also be taken away, because seeing it proceeded from consideration of the place due unto the other, that other receding from his right, the obligation ceaseth, as (God willing) when I come to the solution of the bond shall more plainly appeat.
SECT. XVII.
THe third Case is, whether a man doubtfull whether he have sworn, or no, be bound by by his oath? Some think he is not bound: from the rule of the Law; In doubtfull cases possession is the better title. But seeing this rule is of force in things appertaining only unto commutative Justice; as if the Heir of Caius should doubt whether the goods of the deceased bequeathed unto him by will were lawfully gotten; some, and more truly perhaps, think he is bound, unlesse he can clear his doubt. The reason is, because of doubtfull things the safer is to be chosen: and certainly it is more safe to think himself obliged, then not obliged; because by that error he exposeth himself at the most, but to temporall inconvenience, by this unto the danger of perjury.
SECT. XVIII.
THe fourth case, whether man willing to swear, yet intending not to oblige himself, be neverthelesse obliged? Most of the Scholasticks and Casuists, they especially who were before Cajetan, deny him to be obliged; and Ovids Cydippe defendeth herself from perjury at this ward,
It is the minde with which we sweare,
And I had no such meaning there.
But the opinion of Cajetan, and his followers is sounder, who hold the party deliberately swearing to be bound, whether he intend to oblige himself or not. For the act of swearing is both in it self obligatory, and proceeded from a deliberate minde. Therefore obligation, unlesse it be otherwise impeded, must necessarily follow. Wherefore seeing that obligation floweth necessarily and naturally from an oath, it is not in the power of man to hinder or remove it; for the nature of things stated, no man can hinder their necessary effects. Were it not ridiculous, if he who hath signed, and sealed a bond, shal plead that he had no intention thereby to oblige himself? Nay, would he not be obliged notwithstanding that plea? He therefore who taketh an oath, is as much obliged by the act of swearing, whatsoever he intended, or professe he intended. For he who intended the cause, is presumed also to intend the necessary effect of that cause.
And thus, the goodnesse of God directing, and your patience accompanying me, at length I have finished this difficult and scattering dispute concerning the Bond of an Oath: the other part of this Treatise, which concerneth the Solution of the Bond, I shall shortly (by Gods help) deliver in one Lecture.