Chapter V (3)

2. It is uncertain whether this power of disannulling vows do belong also to other superiors,[79] to princes, to inferior magistrates, to pastors, masters, to commanders, as to their soldiers, as well as to parents and husbands. Some think it doth, because there is, say they, a parity of reason. Others think it is dangerous disannulling oaths and vows upon pretences of parity of reason, when it is uncertain whether we know all God's reasons: and they think there is not a parity, and that it extendeth not to others. 1. Because parents and husbands are so emphatically named in the contents in the end, ver. 16. 2. Because it had been as easy to God to name the rest. 3. Because there is no instance in Scripture of the exercise of such a power, when there was much occasion for it. 4. Because else vows signify no more in a kingdom than the king please, and in an army than the general and officers please, and among servants than the master please; which is thought a dangerous doctrine. 5. Because there will be an utter uncertainty when a vow bindeth and when it doth not to almost all the people in the world; for one superior may contradict it, and another or a hundred may be silent: the king and most of the magistrates through distance will be silent, when a master, or a justice, or a captain that is at hand may disannul it: one officer may be for it, and another against it; a master or a pastor may be for it, and the magistrate against it: and so perjury will become the most controverted sin, and a matter of jest. 6. Because public magistrates, and commanders, and pastors, have not the near and natural interest in their inferiors as parents and husbands have in their children and wives; and therefore parents have not only a restraining power, (as husbands here also have,) but also a disposing power of the relation of their infant children, and may enter them in baptism into the vow and covenant of christianity, the will and act of the parents standing for the child's till he come to age; but if you say that, upon a parity of reason, all princes, and rulers, and pastors may do so with all that are their inferiors, it will seem incredible to most christians. 7. Because public magistrates are justly supposed to be so distant from almost all their individual subjects, as not to be capable of so speedy a disowning their personal vows. Whatever this text doth, it is certain that other texts enough forbid covenants and combinations against the persons, or power, or rights of our governors, and not only against them, but without them, in cases where our place and calling alloweth us not to act without them. But it is certain that God, who commanded all Israel to be entered successively into the covenant of circumcision with him, would not have held them guiltless for refusing that covenant, if the prince had been against it. And few divines think that a subject, or soldier, or servant, that hath vowed to forbear wine, or feasting, or marriage, is discharged, if his prince, or captain, or masters be against it. Jonathan and David were under an oath of friendship, (called the Lord's oath, 2 Sam. xxi. 7). Saul as a parent could not discharge Jonathan, as being a man at full age. Quære whether Saul as a king being against it, did null the oath to David and Jonathan? No; the Scripture showeth the contrary. 8. Because else that benefit which God extendeth only to a weaker sort, would extend to any, the wisest and most learned persons through the world, whose vows to God, even for the afflicting of their own souls, may be nulled by the king or other superiors. Many such reasons are urged in this case.

3. It is uncertain whether this chapter extend to assertory or testimonial oaths (if not certain that it doth not): it speaketh but of binding their souls to God, which is to offer or do something which by error may prove prejudicial to them. But if a parent or husband (much more a king or general) might nullify all the testimonial oaths of their inferiors that are given in judgment, or discharge all their subjects from the guilt of all the lies or false oaths which they shall take, it would make a great change in the morality of the world.

4. It is not past all controversy how far this law is yet in force: seeing the Mosaical law as such is abrogated; this can be now no further in force than as it is the law of nature, or some way confirmed or revived by Christ. The equity seemeth to be natural.

_Rule_ XXXI. It is certain that whoever this power of disannulling vows belongeth to, and to whomsoever it may be given, that it extendeth not to discharge us from the promise or vow of that which is antecedently our necessary duty, by the law of God. Else they should dispense with the law of God, when none but the lawgiver can relax or dispense with his laws (unless it be one superior to the lawgiver): therefore none can dispense with the laws of God. But I speak this but of a duty necessary also as a means to our salvation, or the good of others, or the honouring of God: for otherwise as to some smaller things, the duty may be such as man cannot dispense with, and yet a vow to do that duty may be unnecessary and sinful: as if I swear to keep all the law of God, and never to sin, or never to think a sinful thought; to do this is good, but to vow it is bad, because I may foreknow that I shall break it.

_Rule_ XXXII. In some cases a vow may oblige you against that which would have been your duty if you had not vowed, and to do that which would else have been your sin: viz. if it be such a thing as is sin or duty but by some lesser accident, which the accident of a vow may preponderate or prevail against. As if you swear to give a penny to a wandering beggar, or to one that needeth it not, which by all circumstances would have been an unlawful misemploying of that which should have been better used; yet it seemeth to me your duty to do it when you have moved it. To cast away a cup of drink is a sin, if it be causelessly; but if you vow to do it, it is hard to say that a man should rather be perjured than cast away a cup of drink, or a penny, or a pin. The Jesuits think it lawful to exercise the obedience of their novices by bidding them sometimes cast a cup of wine into the sink, or do some such action which causelessly done were sin: and shall not a vow require it more strongly? Suppose it would be your duty to pray or read at such or such an hour of the day (as being fittest to your body and occasions); yet if you have (foolishly) vowed against it, it seemeth to me to be your duty to put it off till another time. For perjury is too great a thing to be yielded to on every such small occasion. Dr. Sanderson[80] _ubi supra_ giveth this instance: If there be a law that no citizen elected to it shall refuse the office of a prætor; and he that doth refuse it shall be fined: Caius sweareth that he will not bear the office: his oath is unlawful, (and disobedience would have been his sin if he were free,) yet it seems he is bound to pay his fine, and disobey the precept of the law, rather than break his vow.

_Rule_ XXXIII. There are so great a number of sins and duties that are such by accidents and circumstantial alterations, and some of these greater and some less, that it is a matter of exceeding great difficulty in morality to discern when they are indeed sins and duties and when not, which must be by discerning the preponderancy of accidents; and therefore it must be exceeding difficult to discern when a vow shall weigh down any of these accidents, and when not.

_Rule_ XXXIV. The exceeding difficulty and frequency of such cases maketh it necessary to those that have such entanglements of vows, to have a very wise and faithful counsellor to help them better to resolve their particular cases, upon the knowledge of every circumstance, than any book or general rules can do, or any that are not so perfectly acquainted with the case. And oh what great ability is necessary in divines that are employed in such works!

_Rule_ XXXV. Thus also the case must be resolved whether an oath bind that hindereth a greater good which I might do if I had not taken it. In some cases it may bind: as if I swear to acquaint none with some excellent medicine which I could not have known myself unless I had so sworn; or in case that the breaking of the oath will do more hurt to me or others than the good comes to which I omit:[81] or in case, all things considered, the doing of that good _hic et nunc_ is not my duty: see Dr. Sanderson of the difficulties here also, p. 78, 79.

_Rule_ XXXVI. No personal hurt or temporal loss is any sufficient cause for the violation of an oath.[82] He that taketh a false oath, or breaketh a promissory oath, for the saving of his life, or a thousand men's lives, or for lands or riches, or crowns and kingdoms, hath no considerable excuse for his perfidiousness and perjury, all temporal things being such inconsiderable trifles in comparison of the will and pleasure of God, and life everlasting: that which will not justify a lie, will much less justify perjury.[83]

_Rule_ XXXVII. If the matter of an oath prove only a temptation to sin, and not sin itself, it must be kept: but with the greater vigilancy and resolution. As if a man have married a froward wife that will be a temptation to him all his life, he is not disobliged from her.

_Rule_ XXXVIII. If the matter of an oath be such as maketh me directly the tempter of myself or others, it is a sin, and not to be kept, unless some greater good preponderate that evil. For though it be no sin to be tempted, yet it is a sin to tempt: though it be no sin to tempt by a necessary trial, (as a master may lay money before a suspected servant to try whether he be a thief,) nor any sin to tempt accidentally by the performance of a duty (as a holy life doth accidentally tempt a malignant person to hatred and persecution); yet it is a sin to be directly and needlessly a tempter of ourselves or others unto sin; and therefore he that voweth it must not perform it. As if you had vowed to persuade any to unchastity, intemperance, error, rebellion, &c.

[Sidenote: Of accidental evil or temptation vowed.]

_Rule_ XXXIX. If the matter of an oath be such as accidentally layeth so strong a temptation before men, (especially before a multitude,) as that we may foresee it is exceeding likely to draw them into sin, when there is no greater good to preponderate the evil of such a temptation, it is a sin to do that thing, though in performance of a vow. When actions are good or evil only by accident, then accidents must be put in the balance against each other, and the weightiest must preponderate. As in matter of temporal commodity or discommodity, it is lawful to do that action which accidentally bringeth a smaller hurt to one man, if it bring a greater good to many; or which hurteth a private person to the great good of the commonwealth; but it is not lawful to do that which clearly tendeth (though but by accident) to do more hurt than good: as to sell powder and arms, when we foresee it will be used against the king and kingdom; or to sell ratsbane, when you foresee it is like to be used to poison men. Much more should the salvation of many or one be preferred before our temporal commodity; and therefore for a lesser good, we may not tempt men to evil, though but accidentally: as he that liveth where there is but little need of taverns or ale-houses, and the common use of them is for drunkenness, it is unlawful for him there to sell ale or wine, unless he can keep men from being drunk with it (as if they take it home with them, or be unruly, he cannot). For thus to be a foreknowing tempter and occasion, unnecessarily, is to be a moral cause. Two things will warrant a man to do that which by accident tempteth or occasioneth other men to sin: one is a command of God, when it is a duty which we do: the other is a greater good to be attained by the action, which cannot be attained in a less dangerous way. As in a country where there is so great a necessity of ale-houses and taverns that the good that is done by them is greater than the hurt is like to be, though some will be drunk; it is lawful to use these trades, though some be hurt by it. It is lawful to sell flesh, though some will be gluttonous; it is lawful to use moderate, decent ornaments, though some vain minds will be tempted by the sight to lust; as it is lawful to go to sea though some be drowned. To act a comedy, or play at a lawful game, with all those cautions, which may secure you that the good of it is like to be greater than the hurt, is not unlawful: but to set up a common play-house, or gaming-house, where we may foresee that the mischief will be far greater than the good, (though the acts were lawful in themselves,) this is but to play the devil's part, in laying snares for souls: men are not thus to be ticed to hell and damned in sport, though but accidentally, and though you vowed the act.

[Sidenote: Of scandal.]

_Rule_ XL. Thus also must the case of scandal be resolved:[84] as scandal signifieth an action that occasioneth another to sin, or a stumblingblock at which we foresee he is like to fall to the hurt of his soul, (which is the sense that Christ and his apostles usually take it in,) so it is the same case with this last handled, and needs no other resolution: but as scandal signifieth (in the late abusive sense) the mere displeasing of another, or occasioning him to censure you for a sinner, so you must not break a vow to escape the censure or displeasure of all the world. Otherwise pride would be still producing perjury, and so two of the greatest sins would be maintained.

_Rule_ XLI. Though in the question about the obligation of an oath that is taken ignorantly, or by deceit, there be great difficulties, yet this much seemeth clear: 1. That he that is culpably ignorant is more obliged by his vow or contract while he useth all the outward form, than he that is inculpably ignorant. 2. That though the deceit (as the force) of him that I swear to, do forfeit his right to what I promise him, yet my oath or vow obligeth me to do or to give the thing, having interested God himself in the cause. 3. That all such errors of the essentials of an oath or vow as nullify it, (of which I spake before,) or make the matter sinful, do infer a nullity in the obligation (or that it must not be kept). But no smaller error (though caused by deceit) doth disoblige.

The commonest doubt is, Whether an error about the very person that I swear to, and this caused by his own deceit, do disoblige me? All grant that I am obliged notwithstanding any circumstantial error (as if I think a woman rich whom I marry, and she prove poor; or wise and godly, and she prove foolish or ungodly: yea, if the error be about any integral part; as if I think she had two eyes or legs, and she have but one): and all grant that an error about an essential part, that is, which is essential to the relation or thing vowed, (if inculpable at least,) disobligeth: as if I took a man in marriage thinking he had been a woman; or if I took a person for a pastor, a physician, a counsellor, a pilot, that hath no tolerable ability or skill in the essentials of any of those professions. But whether I am bound if I swear to Thomas thinking it was John, or if I marry Leah thinking she is Rachel, is the great doubt. And most casuists say I am not: and therefore I dare not be bold to contradict them.[85] But I much suspect that they fetched their decision from the lawyers; who truly say, that _in foro civili_ it inferreth no obligation: but whether it do not oblige me ethically, and _in foro conscientiæ et cœli_, I much doubt,[86] 1. Because it seemeth the very case of Joshua and the Israelites, who by the guile of the Gibeonites were deceived into an _error personarum_, taking them to be other persons than they were: and yet that this oath was obligatory, saith Dr. Sanderson, is apparent, (1.) In the text itself, Josh. ix. 19. (2.) In the miracle wrought for that victory which Joshua obtained in defending the Gibeonites when the sun stood still, Josh. x. 8, 13. (3.) In the severe revenge that was taken on the lives of Saul's posterity for offering to violate it, 2 Sam. xxi. 2. 2. And this seemeth to be the very case of Jacob, who took not himself disobliged from Leah notwithstanding the mistake of the person through deceit. And though the _concubitus_ was added to the contract, that obliged most as it was the perfecting of the contract, which an oath doth as strongly. 3. And the nature of the thing doth confirm my doubt; because when I see the person before me there is the _individuum determinatum_, in the _hæc homo_, and so all that is essential to my vow is included in it: if I mistake the name, or the quality, or birth, or relations of the person, yet my covenant is with this determinate person that is present, though I be induced to it by a false supposition that she is another. But this I leave to the discussion of the judicious.

_Rule_ XLII. The question also is weighty and of frequent use, if a man vow a thing as a duty in obedience to God and conscience, which he would not have done if he had taken it to be no duty, and if he afterwards find that it was no duty, is he obliged to keep this vow? And the true answer is, that the discovery of his error doth only discover the nullity of his obligation to make that vow, and to do the thing antecedently to the vow; but if the thing be lawful, he is bound to it by his vow notwithstanding the mistake which induced him to make it.

_Rule_ XLIII. Vows about trifles (not unlawful) must be kept though they are sinfully made.[87] As if you vow to take up a straw, or to forbear such a bit or sort of meat, or garment, &c. But to make such is a great profanation of God's name, and a taking it in vain as common swearers do.

_Rule_ XLIV. A general oath, though taken upon a particular occasion, must be generally or strictly interpreted (unless there be special reasons for a restraint, from the matter, end, or other evidence). As if you are afraid that your son should marry such a woman, and therefore swear him not to marry without your consent; he is bound thereby neither to marry that woman nor any other. Or if your servant haunt one particular ale-house, and you make him forswear all houses in general, he must avoid all other. So Dr. Sanderson instanceth in the oath of supremacy, p. 195.

_Rule_ XLV. He that voweth absolutely or implicitly to obey another in all things, is bound to obey him in all lawful things, where neither God, nor other superior or other person is injured; unless the nature of the relation, or the ends or reasons of the oath, or something else, infer a limitation as implied.

_Rule_ XLVI. Still distinguish between the falsehood in the words as disagreeing to the thing sworn, and the falsehood of them as disagreeing from the swearer's mind. The former is sometimes excusable, but the latter never.

There are many other questions about oaths that belong more to the chapter of contracts and justice between man and man; and thither I refer them.

[47] Viris gravibus vehementer displicere animadverti, quod ab indis testimonium jure-jurando exigitur, cum constet eos facillime pejerare, utpote qui neque juramenti vim sentiant neque veritatis studio tangantur, sed testimonium eo modo dicant, quo credunt. Judici gratissimum fore, aut a primo suæ factionis homine edocti sunt. Hos igitur jurare compellere et ipsis exitiosum propter perjuria, &c. Acosta, p. 345.

[48] Vid. Sanderson de Juram. Prælect. vii. Sect. 14. Juramentum oblatum reluctante vel dubitante conscientia non est suscipiendum: 1. Quia quod non est ex fide peccatum est. 2. Quia jurandum est in judicio: quod certe is non facit qui contra conscientiæ suæ judicium facit, &c. ad finem.

[49] See the fourteenth Article of the church of England, against voluntary works, over and above God's commandments, as impious.

[50] Stoici indifferentia distinguunt: 1. Ea quæ neque ad fœlicitatem neque ad infœlicitatem conferunt, ut sunt divitiæ, sanitas, vires, gloria, &c. Nam et sine his contingit fœlicem esse; cum earum usus vel rectus fœlicitatis, vel pravus infœlicitatis, author sit. 2. Quæ neque appetitum neque occasionem movent, ut pares vel impares habere capillos, &c. Laert. in Zenone.

[51] Plutarch. Quest. Roman. 44. Why may not priests swear? Resp. Is it because an oath put to free-born men, is as it were the rack and torture offered them? For certain it is that the soul as well as the body of the priest, ought to continue free, and not to be forced by any torture. Or that we must not distrust them in small matters, who are to be believed in great and divine things? Or because the peril of perjury would reach in common to the whole commonwealth, if a wicked, and ungodly, and forsworn person should have the charge and superintendency of the prayers, vows, and sacrifices made in behalf of the city? Page 866.

[52] See before, chap. iii. gr. direct. 10.

[53] See part i. chap. ix. tit. 2, 3.

[54] See Casaubon's Exercit. 202.

[55] Cotta in Cic. de Nat. Deor. l. 1. to prove that some hold there is no God, saith, Quid de sacrilegis, de impiis, de perjuris dicemus, si carbo, &c. putasset esse Deos, tam perjurus aut impius non fuisset, p. 25, 26.

[56] One of Canutus's laws (26.) was, that perjured persons, with sorcerers, idolaters, strumpets, breakers of wedlock, be banished the realm: cited by Bilson of Subject. p. 202. How few would be left in some lands if this were done!

[57] Plut. in Lysand. Cicer. de Leg. lib. iii. Curt. lib. vii. Arist. Rhet. c. 17.

[58] Ælian. Vari. Hist. lib. xiv.

[59] Though as Moder. Polic. saith, Princ. 7, It is a huge advantage that man hath in a credulous world, that can easily say and swear to any thing: and yet so palliate his perjuries as to hide them from the cognizance of the most. Gabionitarum irritum fœdus, calliditate licet extortum, nonnullis intulisse exitium, &c. Gildas in Prolog.

[60] Haud amentum justitiæ est fides, i. e. dictorum conventorumque constantia et veritas. Cicero.

[61] Lege distinctionem Grotii inter ἐπιορκεῖν et ψευδορκεῖν, Annot. in Matt. v. 33. Modern Policy, (supposed Dr. Sandcroft's,) Princ. 7. 1. We are ready to interpret the words too kindly, especially if they be ambiguous; and it is hard to find terms so positive, but they may be eluded indeed, or seem to us to be so, if we be disposed. 2. Some are invited to illicit promises, _qua illicite_, because they know them to be invalid. 3. Some are frighted into these bonds by threats and losses, and temporal concernments, and then they please themselves that they swear by duress, and so are disengaged. 4. Some are oath-proof, &c.

[62] It is one of Solon's sayings in Laertius, p. 51, Probitarem jure-jurando certiorem habe. What will not an atheistical impious person say or swear, for advantage?

[63] Nunc nunc qui fœdera rumpit, Ditatur: Qui servat eget. Claudian.

[64] See Dr. Sanders. p. 47, and 197.

[65] Cicero de Leg. lib. 1. proveth that right is founded in the law of nature, more than in man's laws; else, saith he, men may make evil good, and good evil, and make adultery, perjury, &c. just by making a law for them.

[66] How often perjury hath ruined christian princes and states all history doth testify. The ruin of the Roman empire by the Goths, was by this means. Alaricus having leave to live quietly in France, Stilico comes in perniciem Reipub. Gothos pertentans, dum eos insidiis aggredi cuperet, belli summam Saulo pagano duci commisit: qui ipso sacratissimo die Paschæ, Gothis nil tale suspicantibus, super eos irruit, magnamque eorum partem prostravit. Nam primum perturbati Gothi, ac propter religionem cedentes, demum arma corripiunt, victoremque virtute potiori prosternunt exercitum: hinc in rabiem furoris excitantur. Cœptum iter deferentes, Romam contendunt petere, cuncta igne ferroque vastantes: nec mora; venientes urbem capiunt, devastant, incendunt, &c. Paul. Diaconus, lib. 3.

[67] Sanders. p. 30, 31.

[68] Sanders. p. 32-41.

[69] Sanders. p. 41-44. Ubi de justo sensu ambigitur, longe satius est et naturæ rei accommodatius, strictiore quam benigniore uti interpretatione. ibid. p. 44.

[70] Sanders. p. 45.

[71] They were ill times that Abbas Uspergensis describeth Chron. p. 320. Ut omnis homo jam sit perjurus, et prædictis facinoribus implicatus, ut vix excusari possit, quin sit in his, sicut populus, sic et sacerdos: Oh that this calamity had ended with that age! Et. p. 321. Principes terrarum et barones, arte diabolica edocti, nec curabant juramenta infringere, nec fidem violare, et jus omne confundere.

[72] Sand. p. 193. Cas. 48.

[73] Sanders. p. 122-133.

[74] Sanders. p. 50.

[75] Sanders. p. 55, 56. In quo casu locum habet quod vulgo dicitur, Fieri non debet, factum valet: possumus ergo distinguere, juramentum dici illicitum duobus modis. Vel respectu rei juratæ, vel respectu actus jurandi: Juramentum illicitum respectu rei juratæ nullatenus obligat: Juramentum illicitum respectu actus jurandi obligat, nisi aliunde impediatur.

[76] Sanderson, p. 72, 73. Dico ordinarie quia fortassis possunt dari casus in quibus juramentum quod videtur alicui legi communitatis aut vocationis adversari, etsi non debuerit suscipi, susceptum tamen potest obligare: ut e. g. in lege pœnali disjunctiva. See the instances which he addeth. Joseph took an oath of the Israelites, to carry his bones out of Egypt, Gen. l. 25. What if Pharaoh forbid them? Are they acquit? The spies swore to Rahab, Josh. ii. 12, 18. Had they been quit if the rulers had acquit them?

[77] Read of this at large, Amesii Cas. Cons. l. v. c. 5. qu. 4.

[78] And si infringendo infregerit ea vir ejus, v. 12. Vir ejus infregit ea, v. 13.

[79] Dr. Sanderson, Prælect. 4. sect. 5. p. 104, 105, limiteth it to De his rebus in quibus subest: in those same things in which one is under another's government; adding, sect. 6, a double exception: Of which one respecteth the person of the swearer, the other the consent of the superior: the first is that As to the person of the swearer, there is scarce any one that hath the use of reason that is so fully under another's power, but that in some things he is _sui juris_, at his own power: and there every one may do as pleases himself, without consulting his superior, so as that by his own act, without his superior's license, he may bind himself. 2. As to the consent of a superior, A tacit consent, antecedent or consequent, sufficeth. Quasi diceret, si dissensum suum vel uno die dissimulet, votum in perpetuum stabilivit.

[80] Sanderson, p. 73.

[81] Sanders. Præl. iii. sect. 12.

[82] Psal. xv. 4.

[83] Sanders. p. 80, 81.

[84] Sanders. p. 82.

[85] Ibid. p. 122.

[86] Sanders. p. 120, 121. This seemeth the case of Isaac in blessing Jacob: the _error personæ_ caused by Jacob's own deceit did not nullify the blessing, because it was fixed on the determinate person that it was spoken to.

[87] Sanders. p. 84.