[167] CHAPTER XIII.

Of Oaths.

I. 1 Among, all peoples, and in every age, the force of Oaths in proposals, promises, and contracts, has always been very great. So Sophocles in the Hippodamia; Cicero.

2 And a heavy punishment was understood to await the perjured: so Hesiod. So that the posterity would have to expiate the crime of their ancestors, which was only believed in the case of the greatest crimes: and it was believed that even the will to commit perjury, without the deed, would bring down punishment. See Herodotus in the story of Glaucus, and Juvenal.

3 Cicero says well, An Oath is a religious affirimation: what you promise solemnly, God being referred to as witness, is to be kept. What he adds, For then the matter pertains, not to the anger of the gods, for there is no such feeling, but to justice and good faith, is not to be rejected, if by anger he understands a perturbation, a passion: but if a purpose or will of punishing, is by no means to be received, as Lactantius proves.

Let us now see whence the force of an Oath arises, and to what it tends.

II. First, that has place here, which we said of promises and contracts, that there is required a mind master of its reason and deliberate. Hence if any one, not thinking to swear, utters the words of an oath, it is not swearing. See in Ovid the story of Cydippe, [who read aloud on an apple which Acontius her lover had thrown at her, I swear that I will marry Acontius.] So Euripides in the Hippolytus.

168 But if any one, willingly swearing, wished not to bind himself, he is not the less obliged, because obligation is the necessary effect of an oath, and inseparable from it.

III. 1 But if any one utters the words of an oath, but with a purpose of not swearing, there are writers who hold that be is not bound, but that he sins by swearing rashly. But the sounder opinion is, that he is bound to make true the words to which he took God to witness: for that act, which is of itself obligatory, proceeded from a deliberate mind. And hence it follows that, as Cicero says, not to do what you intentionally swear is perjury. See Homer.

2 This is so, with the exception of the case in which you who swear, know or believe that he with whom you have to do takes your words otherwise: for in taking God to witness his words, he ought to perform them as he supposes them to be understood. So Cicero regulates an oath by the mens deferentis, the mind of the proposer. Tacitus speaks of men in fear changing the words of the oath: Augustine, of men keeping the words and balking the expectation. So Isidore. To swear without reserve is liquido jurare. So Metellus, rightly, would not swear to the Apuleian law, though it was void, as being informally passed.

3 For though in promises some tacit condition may be understood which absolves the promiser, that is not so in an Oath. So St Paul, Heb. vi. 18, That by two immutable things, in which it was impossible for God to deceive: speaking after the manner of men.

4 For God does not really change his decrees. He is said to change and to repent, when he acts otherwise than the words seem to imply, which be does on account of a condition tacitly understood, which has ceased. See the passages. And in this sense God may improperly be said to deceive us; the word often meaning to frustrate hope. See the passages. And this appears more plainly in threats, because they give no right: sometimes in promises, where there is a tacit condition.

5 Therefore the Apostle speaks of two things which mark immutability; the promise, which gives the promisee a right; and the oath, for that repels tacit and latent conditions. See the Psalms as quoted. For it is another thing if any conditions are openly indicated by the nature of the transaction. And to this some refer Numb. xiv. 30: Ye shall not come into the land concerning which I sware to make you dwell therein. But it is more exact to say that the land was sworn, not to the individuals, but to the People, namely, the posterity of those to whom God had sworn, as ver. 23. Such a promise may be fulfilled at any time, and is not restricted to certain persons.

IV. 1 From what has been said, it may be understood what is to be judged of an oath obtained by fraud. For if it be certain that the swearer supposed some fact which is not so, and would not have sworn except he had so believed, then the oath is not binding. But if it be doubtful whether, even without that fact, he would not have sworn the 169same, he must stand by his words, because simplicity in the highest degree is suitable in swearing.

2 To this I refer the oath of Joshua and the elders of Israel to the Gibeonites, Josh. ix. They were deceived by the simulation of the Gibeonites, but it did not follow that Joshua and the Israelites, if they knew that they were neighbours, would not have spared them. For what they said, ver. 7, Peradventure ye dwell among us, and how shall we make a league with you? may be understood as an inquiry whether the Gibeonites asked for a league of equality or of submission; or that they might shew that it was not lawful for the Hebrews to make leagues with certain peoples; not to imply that they would not spare their lives if they surrendered. For the divine law, which devoted those peoples to destruction, was to be understood by comparison with the rest of the law, in such sense that it was to take its course except any one attended to the warning, and did what was commanded them. This appears in the history of Rahab, who was spared; and of Solomon, who put the remainder of the Canaanites under a tribute of bond-service.

3 And to this view belongs what is said in the book of Joshua, xi. 19, 20, that none of the seven cities of Canaan made peace, for God had hardened their hearts that they might have no favour; wherefore it is probable that if the Gibeonites had stated the actual fact, they would have obtained their lives on condition of submission; the oath therefore was good. So much so, that God inflicted heavy punishment for the violation of it. 2 Sam. xxi. 6. So Ambrose maintains this oath. And the Gibeonites were punished for their deceit with personal servitude, whereas, if they had acted openly, they might have escaped on condition of paying a tribute.

V. But the signification of an oath is not to be extended beyond the received usage of speech. Therefore those were not perjured, Judges xxi. 7, who, when they had sworn that they would not give their daughters to wife to the tribe of Benjamin, still permitted them to live with those who had taken them by violence. For it is one thing to give, another, not to ask back rigorously. So Ambrose. Not dissimilarly the Achæans, when the Romans were dissatisfied with something which they had done and sworn to, requested the Romans to change it themselves, and not to ask them to make void what they had sworn to uphold.

VI. That an oath may be valid, the obligation must be lawful. Wherefore there is no force in a sworn promise concerning a thing unlawful, either by Natural Law, or Divine Prohibition, or Human, of which we shall speak afterwards. So Philo Judæus. Thus David spared Nabal, whom he had sworn to kill. Cicero mentions, as an example, Agamemnon’s vow; Dionysius, the conspiracy of the decemvirs. So Seneca, Ambrose, Augustine, Basil.

VII. 1 Even if the thing promised be not unlawful, but something impeding a greater moral good, the oath will not be valid: because we 170are bound by God to aim at a moral progress; so that we may not take this liberty for ourselves. So Philo Judæus, of persons who in anger, &c. swear that they will not change their minds, or do good to this or that man. The forms of such oaths occur in Hebrew. [See.]

2 A vow of anything to God that another might not have it, was held valid by the Hebrew masters, even against parents; which Christ condemns. Even if the vow be against others it is not binding, because it is opposed to our moral progress.

VIII. Oaths concerning things impossible we need not speak of: for no one can be compelled to do what is impossible.

IX. As to what is for the time or by supposition impossible, the obligation is suspended; so that he who has sworn on the supposition, ought to do all that he can, that he may render possible what he has sworn.

X. The Forms of Oaths differ in words, agree in substance. They ought to have this meaning, that God is called upon, suppose in this way: May God be my witness; or, May God be my Judge; which two forms come to the same thing. For when a superior, having the right of punishing, is called in as a witness, he is also called upon to punish perfidy: and He who knows all things is the Avenger, because he is the Witness. Plutarch says every Oath ends in imprecations on the false swearer. To this view belonged the ancient forms of leagues, in which victims were slain: of which see the meaning in the passages quoted. So Abram’s sacrifice, Gen. xv. 9.

XI. 1 But it is also an old custom to swear, mentioning other things or persons, either as imprecating harm from them, as the sun, the earth, heaven, the prince; or as calling to be punished in them, as one’s head, children, country, prince. And this was done not only by the heathen, but by the Jews; as Philo shews. He says that those who are going to swear, ought not forthwith to go up to the Creator and Father of all, but to swear by parents, heaven, earth, the universe. And so Eustathius notes that the ancient Greeks did not commonly swear by the Gods, but by other things present; as by the sceptre; and this was instituted by Rhadamanthus. [See.] So Joseph swore by the life of Pharaoh, following the Egyptian custom; and Elisha to Elijah, As thy soul liveth, 2 Kings ii. 2.

And Christ, in Matth. v., does not, as some suppose, teach that these oaths are less lawful than those in which God’s name is expressed, but that they were true oaths, though the Hebrews thought more lightly of them. As Ulpian says, that he who swears by his own salvation, swears by God; so Christ taught that he who swears by the temple, or by heaven, swears by God.

2 The Hebrew teachers of that time held that men were not bound in oaths in which they had sworn by created things, except the thing sworn by, were, as a penalty, vowed to God. This Is the oath of Corban, which is not only mentioned In Matthew, but also was known to the Tyrians, as we learn from Josephus against Appion. And hence 171I suppose the oriental peoples were called Korbani, as in Æschylus and Euripides^*. Christ refutes this error.

Tertullian says that the ancient Christians swore by the Safety of the Prince. In Vegetius, as above stated, the formula is, By God and the Majesty of the Emperor, which, after God, is to be reverenced and honoured by men.

XII. Moreover he who swears by false gods is bound; because, though under false notions, he refers to the general idea of Godhead: and therefore the true God will interpret it as a wrong to himself if perjury be committed. We do not find that holy men ever proposed an oath in that way, much less that they swore such an oath, which I wonder that Duarenus permits^†. But if those with whom they were dealing could not be brought to swear otherwise, they contracted with them, taking such an oath as was to be had, as Jacob from Laban, Gen. xxxi. 51. So Augustine says, He who swears by a stone, if he swear falsely, is perjured: not that the stone hears the speaker, but that God punishes the perjurer.

XIII. 1 The principal effect of an oath is to put an end to strife, as the writer to the Hebrews, vi. 16. So Philo, Dionysius, Diodorus.

2 Therefore the swearer must swear sincerely, so that his words agree with his thoughts, and swear faithfully, so that his deeds agree with his words: the violations of these duties we might call false swearing and perjury, but the distinction is not adhered to. [See the Greek words.]

XIV. And if the matter be such, and the words so conceived, that they refer not to God only but to a man also, [as if I swear to give you a thing,] then, undoubtedly, the man acquires a right by the oath, as from a promise or contract simply. But if the words do not regard a man as conferring on him a right, or regard him, but have something opposed to them; then the effect of the oath will be that the man will acquire no right; but he who has sworn to God will be obliged to stand by his oath. This is exemplified when one, by inspiring unjust fear, has given occasion to a sworn promise. So we see the Hebrew kings rebuked by the prophets, and punished by God, for not keeping their faith with the Babylonian kings. Cicero lauds Pomponius, who kept an oath given under terror: such, he says, was the force of an oath at that time. And hence Regulus was bound to return to his imprisonment, though unjust; and those ten whom Cicero mentions, to return to Annibal.

XV. I And this is not only true between public enemies, but any parties: for respect is not had to the person to whom the oath is made, but to God by whom we swear; and this is sufficient to produce 172an obligation. Therefore Cicero is to be repudiated when he says that it is no perjury if we do not pay the price which we have promised to robbers for sparing our life, not even if we have sworn: because a robber is not an open enemy, having the rights of war, but a common enemy of all men: which also the same Cicero says elsewhere of tyrants, as does Brutus in Appian.

2 But though, In the Instituted Law of Nations, it is true that an enemy differs from a robber, as we shall shew below; yet this difference cannot have place when, though the right of the person fail, our business is with God: on which account an oath is called a vow. Nor is that true which Cicero assumes, that we have no common ground of rights with robbers: for that a deposit is to be restored when made by a robber, if the owner do not appear, is rightly ruled by Tryphoninus.

3 Wherefore I cannot approve what is delivered by some writers, that he who has promised anything to a robber may discharge his duty by a momentary payment, and be allowed forthwith to take back what he has paid. For words used in an oath, and so, towards God, are to be understood with entire simplicity; and therefore, so as to have effect. And therefore, he who returned to the enemy clandestinely and came away again, did not satisfy his oath that he would return, as was rightly judged by the Roman Senate.

XVI. 1 Are oaths to a faithless person not to be kept: as Accius, quoted in Cicero’s Offices, holds?

Not if the sworn promise had evidently respect to another promise which was a sort of implied condition. But they are to be kept, if the promises are of a diverse kind, and without mutual reference: for then each must observe what he has sworn. And thus Regulus is praised by Silius for keeping faith with the faithless.

2 That inequality in contracts, by Natural Law, gives ground either for rescinding or remodelling them, we have said above. And though the Law of Nations has changed something in this matter, we are often allowed by the Civil Law, which is of force over those who are parts of the same people, to return to the Natural Law. But here if an oath have been introduced, although nothing, or lees than the contract, may be due to the person, our faith to God is to be kept. So Ps. xv. 4, He that sweareth to his neighbour, and disappointeth him not, though it were to his own hinderance.

XVII. But it is to be observed, that when there is no right of a person produced, in consequence of some of these defects, but only our faith engaged to God; the heir of the swearer is not bound. Because as the goods pass to the heir, that is, the things about which men deal, so do the burthens upon them: but not the obligations which any one was liable to, as duties of piety, kindness, or good faith. For these do not belong to what is strictly called jus or right, as we have shewn.

XVIII. So when a right is not acquired by a person, in virtue 173of another’s oath, yet if the oath respect the utility of any one, and he will not have this utility, the swearer is not bound. Also he is not bound if the quality under which he swore has ceased. So in Cesar, Curio addresses those who had been Domitius’s soldiers: Who could hold you by an oath, when he himself, throwing away the ensigns of authority, and laying down his command as a private man and a captive, has himself become subject to others? And afterwards he says that their oath is rescinded by his degradation.

XIX. It is made a question whether that which is contrary to an oath is only unlawful, or also void.

For this we must distinguish: if good faith alone be engaged, an act done against the oath is valid; as a testament, a sale. But not, if the oath be so expressed that it contains at the same time a full abdication of power to do the act.

And these are the natural consequences of oaths; from which we must form a judgment of the oaths of kings, and the oaths which foreigners swear to foreigners, when the act is not necessarily subjected to the laws of the place.

XX. 1 Let us now consider what the authority of superiors, that is of kings, fathers, masters, husbands (in marital matters), can do [in modifying the effect of oaths]. The act of a superior cannot effect that an oath, so far as it was obligatory, is not to be performed; for that it is to be so, is a matter both of Natural and of Divine Law. But because our acts are not fully in our power, but in such a way that they depend on superiors, therefore there may be a double act of a superior as to the matter sworn; one direct, on the person of the swearer, the other, on the person to whom the oath is made.

2 The act of the superior may be directed on the person of the swearer, either before swearing, rendering the oath void, in so far as the right of the inferior is subject to the superior; or after the swearing, forbidding that it be fulfilled. For the inferior, as inferior, was not able to bind himself except so far as it should please his superior; he had no further power. And thus by the Hebrew Law the husband might make void the vows of his wife. Seneca proposes this question: If a law be made that no one shall do what I had promised my friend I would do, what then? And he solves it, saying, The same law which forbids me defends me. But there may be a mixed act of both parties; as if the superior should direct that what the inferior shall swear in this or that case, say from fear or from weakness of judgment, shall be valid, only if he himself approves of it. And on this ground may be defended the absolutions from oaths which were formerly granted by princes; and are now, by the consent of princes, for the sake of piety, granted by the governors of the Church.

3 The act of the superior may be directed on the person of him to whom the oath is made, by taking from him the right which he has thus acquired: or even, if he have no right, by forbidding that 174he receive anything in virtue of such oath: and that, in two ways, either as a penalty, or for public utility, in virtue of his Eminent Dominion. And hence it may be understood, if the swearer be not under the same subjection as the person sworn to, what the governor of each may do in respect to the oath.

^* He who on oath has promised anything to a mischievous person, as such, as for instance a robber, cannot take from him the promised right on the ground of penalty: for then his words would have no effect, which is by all means to be avoided.

In like manner what is promised cannot be given as a compensation for a right which was in controversy before, if the agreement took place after the controversy began.

4 Human Law may take away the impediment which it had thrown in the way of certain acts, if an oath, either in general, or in a particular form, be introduced: which the Roman Law did in the case of those impediments which regard, not directly public utility, but the private utility of the swearer. And if this be done, the act so sworn will be valid in the same manner as it would, without the Human Law, have been valid by Natural Law; either only by binding good faith, or by giving a right to another, according to the different nature of such acts, as already explained.

XXI. 1 It is here to he noted in passing, that what is said in the precepts of Christ, and in St James, of not swearing, does not properly apply to an oath of assertion, of which there are some examples in St Paul himself, but to an oath of promise with regard to an uncertain future. This plainly appears in the words of Christ, Matth. v: and in the reason which St James adds, v.12, lest ye fall into condemnation, ὑπόκρισιν, is, lest ye be found fallacious. See the passages.

2 The same is proved by the words of Christ, Let your words be yea, yea, and nay, nay: which St James explains, Let your yea be yea, and your nay, nay: that is, let your yea mean a sincere consent, and your nay a resolute refusal. See the illustrations.

3 On the contrary, those whose acts are at variance with their words are those whose word is yea and nay, 1 Cor. i. 18, 19, that is, their yea is nay, and their nay is yea: as St Paul himself explains. See Festus’s etymology of naucum.

4 Therefore Christ said the same thing as Philo, that the best thing is that our word should be as our oath. So the Essenes, according to Josephus.

5 Pythagoras seems to have taken this from the Essenes, or those who followed the Essenes. His precept is, Not to swear by the gods, for you ought to act so that men believe you without an oath: so the Scythians in Curtius: so Cicero for Roscius; Solon; Clemens Alexandrinus; Alexis the Comic Poet. Cicero relates that at Athens, when a certain man, noted for his holiness and gravity, had to give his testimony, and approached the altar to swear, the judges with one 175voice refused to have the oath administered, his character being guarantee sufficient.

6 The maxims of Hierocles on the Golden Poem are not different, He who said, Reverence an oath, by that very precept enjoined you to abstain from swearing with regard to future uncertain matters. About such it is neither worthy nor safe to swear. So Libanius in praising the Christian Emperors: Eustathius on the Odyssee.

XXII. Hence, in many cases, instead of an oath, was introduced a practice that good faith should be confirmed by giving the right hand, or some other sign; with this implication, that if the promise was not fulfilled, the promiser was held no less detestable than if he had perjured himself. Especially it is a common saying, concerning kings and princes, that their word goes for their oath. For they ought to be such that they can say with Augustus: I am a man of good faith: and with Eumenes, that they would sooner forfeit their life than their word: as also Gunter says to Ligurinus.

Cicero in his oration for Deiotarus, praises Cesar by saying that his band was as firm in pledging truth as in fighting battles. And in the heroic times, a sceptre was set up as the king’s oath, as Aristotle notes.