unto man, the question I think must be thus resolved: 1. We must
distinguish between a lawful imposer or contractor, and a violent
usurper or robber that injuriously compelleth us to swear. 2. Between
the obvious, usual sense of the words, and an unusual, forced sense.
3. Between a sincere, involuntary misunderstanding the imposer, and a
voluntary, fraudulent reservation or private sense. 4. Between one
that I owe something to antecedently, and one that I owe nothing to
but by the mere self-obligation of my vow. 5. Between an imposer that
is himself the culpable cause of my misunderstanding him, and one that
is not the cause, but my own weakness or negligence is the cause. 6.
Between a case where both senses may be kept, and a case where they
cannot, being inconsistent. Upon these distinctions, I thus resolve
the question.
_Prop._ I. If I fraudulently and wilfully take an oath in a sense of
my own, contrary to the sense of the imposer, and the common and just
sense of the words themselves, I am guilty of perfidiousness and
profaneness in the very taking of it.[71]
_Prop._ II. If it be long of my own culpable ignorance or negligence
that I misunderstood the imposer, I am not thereby disobliged from the
public sense.
_Prop._ III. When the imposer openly putteth a sense on the words
imposed contrary to the usual, obvious sense, I am to understand him
according to his own expression, and not to take the oath, as imposed
in any other sense.
_Prop._ IV. If the imposer refuse or neglect to tell me his sense any
otherwise than in the imposed words, I am to take and keep them
according to the obvious sense of the words, as they are commonly used
in the time and place which I live in.
_Prop._ V. If it be long of the imposer's obscurity, or refusing to
explain himself, or other culpable cause, that I mistook him, I am not
bound to keep my oath in his sense, as different from my own (unless
there be some other reason for it).
_Prop._ VI. If the imposer be a robber or usurper, or one that I owe
nothing to in justice, but what I oblige myself to by my oath, I am
not then bound at all to keep my oath in his sense, if my own sense
was according to the common use of the words.
_Prop._ VII. Though I may not lie to a robber or tyrant that unjustly
imposeth promises or oaths upon me, yet if he put an oath or promise
on me which is good and lawful in the proper, usual sense of the
words, though bad in his sense, (which is contrary to the plain
words,) whether I may take this to save my liberty or life, I leave to
the consideration of the judicious: that which may be said against it
is, that oaths must not be used indirectly and dissemblingly: that
which may be said for it is, 1. That I have no obligation to fit my
words to his personal, private sense. 2. That I deceive him not, but
only permit him to deceive himself, as long as it is he and not I that
misuseth the words. 3. That I am to have chief respect to the public
sense; and it is not his sense, but mine, that is the public sense. 4.
That the saving of a man's life or liberty is cause enough for the
taking a lawful oath.
_Prop._ VIII. In case I misunderstood the imposed oath through my own
default, I am bound to keep it in both senses, (my own and the
imposer's,) if both be consistent and lawful to be done. For I am
bound to it in my own sense, because it was formally my oath or vow
which I intended. And I am bound to it in his sense, because I have in
justice made the thing his due. As if the king command me to vow that
I will serve him in wars against the Turk; and I misunderstand him as
if he meant only to serve him with my purse; and so I make a vow with
this intent, to expend part of my estate to maintain that war; whereas
the true sense was that I should serve him with my person: in this
case, I see not but I am bound to both.
Indeed if it were a promise that obliged me only to the king, then I
am obliged no further and no longer than he will; for he can remit his
own right: but if by a vow I become obliged directly to God himself as
a party, then no man can remit his right, and I must perform my vow as
made to him.
_Rule_ XIII. If any impose an ambiguous oath, and refuse to explain
it, and require you only to swear in these words, and leave you to
your own sense, Dr. Sanderson thinketh that an honest man should
suspect some fraud in such an oath, and not take it at all till all
parties are agreed of the sense.[72] And I think he should not take it
at all, unless there be some other cause that maketh it his duty. But
if a lawful magistrate command it, or the interest of the church or
state require it, I see not but he may take it, on condition that in
the plain and proper sense of the words the oath be lawful, and that
he openly profess to take it only in that sense.
_Rule_ XIV. If any power should impose an oath, or vow, or promise,
which in the proper, usual sense were downright impious, or
blasphemous, or sinful, and yet bid me take it in what sense I
pleased, though I could take it in such a sense as might make it no
real consent to the impiety, yet it would be impious in the sense of
the world, and of such heinous consequence as will make it to be
unlawful. As if I must subscribe, or say, or swear these words, There
is no God; or, Scripture is untrue; though it is easy to use these or
any words in a good sense, if I may put what sense I will upon them,
yet the public sense of them is blasphemy; and I may not publicly
blaspheme, on pretence of a private right sense and intention.
_Rule_ XV. If the oath imposed be true in the strict and proper sense,
yet if that sense be not vulgarly known, nor sufficiently manifest to
be the imposer's sense, and if the words are false or blasphemous in
the vulgar sense of those that I have to do with, and that must
observe and make use of my example, I must not take such an oath,
without leave to make my sense as public as my oath. As if I were
commanded to swear, That God hath no foreknowledge, no knowledge, no
will, &c.; it were easy to prove that these terms are spoken primarily
of man, and that they are attributed to God but analogically or
metaphorically, and that God hath no such human acts _formaliter_, but
_eminenter_, and that _forma dat nomen_, and so that strictly it is
not knowledge and will in the primary, proper notion, that God hath at
all, but something infinitely higher, for which man hath no other
name. But though thus the words are true and justifiable in the
strictest, proper sense, yet are they unlawful, because they are
blasphemy in the vulgar sense: and he that speaks to the vulgar is
supposed to speak with the vulgar; unless he as publicly explain them.
_Rule_ XVI. If the supreme power should impose an oath or promise,
which in the ordinary, obvious sense were sinful, and an inferior
officer would bid me take it in what sense I pleased, I might not
therefore take it: because that such an officer hath no power to
interpret it himself; much less to allow me to take it in a private
sense. But if the lawgiver that imposeth it bid me take it in what
sense I will, and give me leave to make my sense as public as my oath,
I may take it, if the words be but dubious, and not apparently false
or sinful: (so there be no reason against it, _aliunde_, as from ill
consequents, &c.)
_Rule_ XVII. If any man will say in such a case, (when he thinketh
that the imposer's sense is bad,) I take not the same oath or
engagement which is imposed, but another in the same words, and I
suppose not inferior officers authorized to admit any interpretation,
but I look at them only as men that can actually execute or not
execute the laws upon me; and so I take a vow of my own according to
my own sense, though in their words, as a means of my avoiding their
severities: as this is a collusion in a very high and tender business,
so that person (if the public sense of the oath be sinful) must make
his professed sense as public as his oath or promise; it being no
small thing to do that which in the public sense is impious, and so to
be an example of perfidiousness to many.
_Rule_ XVIII. Though an oath imposed by a usurper or by violence is
not to be taken in formal obedience, nor at all, unless the greatness
of the benefit require it, yet being taken it is nevertheless
obligatory[73] (supposing nothing else do make it void). Man is a free
agent, and cannot be forced, though he may be frightened: if he swear
to a thief for the saving of his life, he voluntarily doth choose the
inconveniences of the oath, as a means to save his life. Therefore
being a voluntary act it is obligatory; else there should be no
obligation on us to suffer for Christ, but any thing might be sworn or
done to escape suffering: see of this Dr. Sanderson largely, Prælect.
iv. sect. 14-16. The imposition and the oath are different things: in
the imposition, a thief or tyrant is the party commanding, and I am
the party commanded; and his having no authority to command me, doth
nullify only his command, and maketh me not obliged to obey him, nor
to take it in any obedience to him; but yet if I do take it without
any authority obliging me, (as private oaths are taken,) it is still
an oath or vow, in which the parties are God and man; man vowing and
making himself a debtor to God; and God hath authority to require me
to keep my vows, when men have no authority to require me to make
them. All men confess that private vows bind; and the nullity of the
imposer's authority, maketh them but private vows. This case is easy,
and commonly agreed on.
_Rule_ XIX. If in a complex vow or promise there be many things which
prove materially unlawful, and one or more that are lawful, the
conjunction of the things unlawful doth not disoblige me from the vow
of doing the lawful part. Otherwise a man might make void all his vows
to God, and oaths and covenants with men, by putting in something that
is evil with the good; and so God, and the king, and our neighbours
would have their debts paid by our sin and injury done them on the
bye.
_Rule_ XX. If some part of that which you vowed become impossible,
that doth not disoblige you from so much as remaineth possible. As if
you vow allegiance to the king, and tyrants or disability hinder you
from serving him as subjects in some one particular way, you remain
still obliged to serve him by those other ways in which you are yet
capable to serve him. So if you had taken an oath against popery, to
preach against it, and reject the practice of it, and for ever
renounce it; this would not bind you from the common truths and duties
of christianity, which papists hold in common with all other
christians: nor could you preach against popery, if you were hindered
by imprisonment, banishment, or restraint; but you have still power to
forbear approving, consenting, subscribing, or practising their
errors; and this you are still bound to do.
_Rule_ XXI. Though you are not bound to do that of your vow which
changes have made impossible or unlawful, yet if another change make
them possible and lawful again, your obligation doth return afresh
(unless you made it with such limitation). It is not a temporary
cessation of the matter, or end, or correlate, that will perpetually
discharge you from your vow. If your wife be taken captive many years,
when she returneth, you are bound to the duties of a husband. If the
king be expelled by usurpers, you are bound at present to so much duty
as is possible, and to obey him as your actual governor when he
returneth. But in the case of servants and soldiers, and other
temporary relations, it is otherwise; for a removal may end the
relation itself. If you promise to preach the gospel, to medicate the
sick, to relieve the poor, to reform your families, &c. you are not
hereby obliged to do it while any unresistible impediment maketh it
impossible; but when the hinderance ceaseth, you are obliged to do it
again; the matter and your capacity being restored.
_Rule_ XXII. Therefore many a vow and promise may be lawfully
unperformed, which may not be renounced or disclaimed. When you are
taken captives you must forbear your duty to your king, your father,
your husband or wife, but you may not therefore renounce them, and
say, I have no obligation to them: no, not to the death; because they
are relations for life; and how improbable soever it may seem that you
should be returned to them, yet God can do it, and you must wait on
him.
_Rule_ XXIII. A former vow or promise is not nullified by a latter
that contradicteth it.[74] Otherwise a man might disoblige himself at
his pleasure. Yet he that maketh contrary vows, obligeth himself to
contraries and impossibles; and bringeth a necessity of perjury on
himself, for not doing the things impossible which he vowed. And in
some cases a later promise to men may null a former, when we made the
former with the reserve of such a power or liberty, or are justly
supposed to have power, to recall a former promise: or when it is the
duty of a mutable relation which we vow, (as of a physician, a
schoolmaster, &c.) and by a later vow we change the relation itself
(which we may still lawfully change).
_Rule_ XXIV. The _actus jurandi_ must still be distinguished from the
_materia juramenti_; and it very often cometh to pass that the act of
swearing (or the oath as our act) is unlawfully done, and was a sin
from the beginning, and yet it is nevertheless obligatory as long as
the _res jurata_, the matter sworn, is lawful or necessary.[75] Dr.
Sanderson instanceth in Joshua's oath to the Gibeonites. The nature of
the thing is proof enough; for many a thing is sinfully done, for want
of a due call, or manner, or end, that yet is done, and is no nullity.
A man may sinfully enter upon the ministry, that yet is bound to do
the duty of a minister; and many marriages are sinful that are no
nullities.
[Sidenote: What is the nullity of an oath.]
_Rule_ XXV. The nullity of an oath _ab initio_, is _quando realiter
vel reputative non juravimus_; when really or reputatively we did not
swear. The sinfulness of an oath is when we did swear really but
unlawfully as to the ground, or end, or matter, or manner, or
circumstances. Really that man did not swear, 1. Who spake not
(mentally nor orally) the words of an oath. 2. Who thought those words
had signified no such thing, and so had no intent to swear either
mentally or verbally. As if an Englishman be taught to use the words
of an oath in French, and made believe that they have a contrary
sense. 3. Who only narratively recited the words of an oath, as a
reporter or historian, without a real or professed intent of swearing.
Reputatively he did not swear, 1. Who spake the words of an oath in
his sleep, or in a deliration, distraction, madness, or such prevalent
melancholy as mastereth reason; when a man is not _compos mentis_, his
act is not _actus humanus_. (2.) When a man's hand is forcibly moved
by another against his will to subscribe the words of an oath or
covenant; for if it be totally involuntary it is not a moral act. But
words cannot be forced; for he that sweareth to save his life, doth do
it voluntarily to save his life. The will may be moved by fear, but
not forced. Yet the person that wrongfully frighteneth another into
consent, or to swear, hath no right to any benefit which he thought to
get by force or fraud; and so _in foro civili_ such promises, or
covenants, or oaths may _quoad effectum_ be reputatively null; and he
that by putting his sword to another man's breast doth compel him to
swear or subscribe and seal a deed of gift, may be judged to have no
right to it, but to be punishable for the force; but though this
covenant or promise be null _in foro humano_, because the person
cannot acquire a right by violence, yet the oath is not a nullity
before God; for when God is made a party, he hath a right which is
inviolable; and when he is appealed to or made a witness, his name
must not be taken in vain. 3. It is a nullity reputatively when the
person is naturally incapable of self-obligation, as in infancy, when
reason is not come to so much maturity as to be naturally capable of
such a work; I say naturally incapable, for the reasons following.
_Rule_ XXVI. We must distinguish between a natural incapacity of
vowing or swearing at all, and an incapacity of doing it lawfully; and
between a true nullity, and when the oath is only _quasi nullum_, or
as null _quoad effectum_, or such as I must not keep. There are many
real oaths and vows which must not be kept, and so far are _quasi
nulla_ as to the effecting of the thing vowed; but they are not simply
null; for they have the effect of making the man a sinner and
perjured. They are sinful vows, and therefore vows. A natural
incapacity proveth it no vow at all; but if I am naturally capable,
and only forbidden, (by God or man,) this maketh it not no vow, but a
sinful vow, of which some must be kept and some must not.
[Sidenote: Cases in which a vow must not be kept.]
In these following cases a real vow is _quasi nullum_, or must not be
kept.
1. In case the thing vowed (all things considered) be a thing which
God hath forbidden to be done; that is, in case it be a thing in
itself evil; but if the thing in itself be a duty, though there be
some inseparable sins which we shall be guilty of in the performance,
we must not therefore leave the duty itself undone which we have
vowed: as if I vow to praise God, and yet am sure that I cannot praise
him without a sinful defect of that love and delight in him which is
due, I must not therefore forbear to praise him; else we must cast off
all other duty, because we cannot do it without some sin. But yet,
though in case of unwilling infirmity, we must thus do the duty though
we are sure to sin in it, yet in case of any chosen, voluntary sin,
which we have an immediate power to avoid, we must rather forbear the
duty itself (vowed or not vowed) than commit such a sin; as if I vow
to preach the gospel, and am forcibly hindered unless I would
voluntarily tell one lie, or commit one sin wilfully for this liberty;
I ought rather never to preach the gospel; nor is it then a duty, but
become morally impossible to me; as if in France or Spain I may not
preach unless I would take Pope Pius's Trent confession or oath. Nay,
if those very defects of love, and wandering thoughts, which now
inseparably cleave to my best performances, were morally and
immediately in my power, and I could avoid them, I ought not
electively and by consent to commit them, for any liberty of duty, but
rather to forbear the duty itself as no duty to me when it cometh upon
such conditions; for then it is supposed that I could serve God better
without that duty, because I could love him more, &c.
Yet here is observable a great deal of difference between omissions
and commissions. A man may never commit a sin that good may come by
it, though he vowed the good; but a man may ofttimes omit that which
else would have been his duty, to do some good which he hath vowed;
for negative commands bind _semper et ad semper_; but the affirmative
do not (at least as to outward duty); therefore in case of necessity a
man may himself consent to the present omission of some good, for the
escaping of greater, unavoidable omissions another time, or for the
performing of a vow or greater duty which is to be preferred.
2. A vow is not to be kept, when the matter of it is unjust and
injurious to another (unless you have his consent): as if you vow to
give away another man's lands or goods, or to do him wrong by word or
deed; or if you vow to forbear to pay him his due, or to do that which
you owe him: as if a servant vow to forbear his master's work (unless
it be so small an injury as he can otherwise repair); or a husband, or
wife, or parents, or children, or prince, or subjects should vow to
deny their necessary duties to each other. Here man's right together
with God's law doth make it unjust to perform such vows.
3. A vow is as null or not to be kept, when the matter is something
that is morally or civilly out of our power to do: as if a servant, or
a child, or subject vow to do a thing, which he cannot do lawfully
without the consent of his superior: this vow is not simply null, for
it is a sinful vow (unless it was conditional). Every rational
creature is so far _sui juris_, as that his soul being immediately
subject to God, he is capable of obliging himself to God; and so his
vow is a real sinful vow, when he is not so far _sui juris_ as to be
capable of a lawful vowing, or doing the thing which he voweth. Such a
one is bound to endeavour to get his superior's consent, but not
without it to perform his vow; no, though the thing in itself be
lawful. For God having antecedently bound me to obey my superiors in
all lawful things, I cannot disoblige myself by my own vows.
Yet here are very great difficulties in this case, which causeth
difference among the learnedest, pious casuists. 1. If a governor have
beforehand made a law for that which I vow against, it is supposed by
many that my vow is not to be kept, (the thing being not against the
law of God,) because the first obligation holdeth. 2. Yet some think
that magistrates' penal laws binding but _aut ad obedientiam aut ad
pœnam_, to obedience or punishment, I am therefore obliged in
indifferent things to bear his penalty, and to keep my vow.[76] 3. But
if I first make an absolute vow in a thing indifferent, (as to drink
no wine, or to wear no silks, &c.) and the magistrate afterwards
command it me, some think I am bound to keep my vow; because though I
must obey the magistrate in all things lawful, yet my vow hath made
this particular thing to be to me unlawful, before the magistrate made
it a duty. 4. Though others think that even in this case the general
obligation to obey my superiors preventeth my obliging myself to any
particular which they may forbid in case I had not vowed it, or
against any particular which they may command. 5. Others distinguish
of things lawful or indifferent, and say that some of them are such as
become accidentally so useful or needful to the common good, the end
of government, that it is fit the magistrate make a law for it, and
the breaking of that law will be so hurtful, that my vow cannot bind
me to it, as being now no indifferent thing; but other indifferent
things they say belong not to the magistrate to determine of (as what
I shall eat or drink, whether I shall marry or not, what trade I shall
be of, how each artificer, tradesman, or professor of arts and
sciences shall do the business of his profession, &c.) And here the
magistrate they think cannot bind them against their vows, because
their power of themselves in such private cases is greater than his
power over them in those cases. All these I leave as so many questions
unfit for me to resolve in the midst of the contentions of the
learned. The great reasons that move on both sides you may easily
discern. 1. Those that think an oath in lawful things, obligeth not
contrary to the magistrate's antecedent or subsequent command, are
moved by this reason, That else subjects and children might by their
vows exempt themselves from obedience, and null God's command of
obeying our superiors. 2. Those that think a vow is obligatory against
a magistrate's command, are moved by this reason, Because else, say
they, a magistrate may at his pleasure dispense with all vows, except
in things commanded before by God: for he may come after and cross our
vows by his commands, which, against the pope's pretensions,
protestants have denied to be in the power of any mortal man. And God,
say they, hath the first right, which none can take away. I must not
be forward in determining where rulers are concerned; only to those
that may and must determine it, I add these further materials to be
considered of.
1. It is most necessary to the decision of this case, to understand
how far the inferior that voweth was _sui juris_, and had the power of
himself when he made the vow, as to the making of it, and how far he
is _sui juris_ as to the act which he hath vowed; and to that end to
know, in a case where there is some power over his act, both in his
superior and in himself, whether his own power, or his superior's, as
to that act, be the greater.
2. It is therefore needful to distinguish much between those acts that
are of private use and signification only, and those that
(antecedently to the ruler's command) are of public use and nature, or
such as the ruler is as much concerned in as the inferior.
3. It is needful to understand the true intent and sense of the
command of our superior; whether it be really his intent to bind
inferiors to break their vows, or whether they intend only to bind
those that are not so entangled and pre-engaged by a vow, with a tacit
exception of those that are.[77] And what is most just must be
presumed, unless the contrary be plain.
4. It must be discerned whether the commands of superiors intend any
further penalty than that which is affixed in their laws: as in our
penal laws about using bows and arrows, and about fishing, hunting,
&c.; whether it be intended that the offender be guilty of damnation,
or only that the threatened temporal penalty do satisfy the law; and
whether God bind us to any further penalty than the superior
intendeth.
5. The end of the laws of men must be distinguished from the words;
and a great difference must be put between those forbidden acts that
do no further harm than barely to cross the letter of the law, or will
of a superior, and those that cross the just end of the command or
law; and that either more or less, as it is more or less hurtful to
others, or against the common good: for then the matter will become
sinful in itself.
6. Whether perjury, or the unwilling violation of human laws, be the
greater sin, and which in a doubtful case should be most feared and
avoided, it is easy to discern.
_Rule_ XXVII. A vow may be consequently made null or void, 1. By
cessation of the matter, or any thing essential to it, (of which
before,) or by a dispensation or dissolution of it by God to whom we
are obliged. No doubt it is in God's power to disoblige a man from
his vow; but how he ever doth such a thing is all the doubt:
extraordinary revelations being ceased, there is this way yet
ordinary, viz. by bringing the matter which I vowed to do, under some
prohibition of a general law, by the changes of his providence.
_Rule_ XXVIII. As to the power of man to dispense with oaths and vows,
there is a great and most remarkable difference between those oaths
and vows where man is the only party that we are primarily bound to,
and God is only appealed to as witness or judge, as to the keeping of
my word to man; and those oaths or vows where God is also made (either
only or conjunct with man) the party to whom I primarily oblige
myself. For in the first case man can dispense with my oath or vow, by
remitting his own right, and releasing me from my promise; but in the
second case no created power can do it. As e. g. if I promise to pay a
man a sum of money, or to do him service, and swear that I will
perform it faithfully; if upon some after bargain or consideration he
release me of that promise, God releaseth me also, as the witnesses
and judge have nothing against a man, whom the creditor hath
discharged. But if I swear or vow that I will amend my life, or reform
my family of some great abuse, or that I will give so much to the
poor, or that I will give up myself to the work of the gospel, or that
I will never marry, or never drink wine, or never consent to popery or
error, &c.; no man can dispense with my vow, nor directly disoblige me
in any such case; because no man can give away God's right: all that
man can do in any such case is, to become an occasion of God's
disobliging me: if he can so change the case, or my condition, as to
bring me under some law of God, which commandeth me the contrary to my
vow, then God disobligeth me, or maketh it unlawful to keep that vow.
And here because a vow is commonly taken for such a promise to God, in
which we directly bind ourselves to him, therefore we say, that a vow
(thus strictly taken) cannot be dispensed with by man; though in the
sense aforesaid, an oath sometimes may.
The papists deal most perversely in this point of dispensing with
oaths and vows; for they give that power to the pope over all the
christian world, who is a usurper, and none of our governor, which
they deny to princes and parents that are our undoubted governors: the
pope may disoblige vassals from their oaths of allegiance to their
princes, (as the council of Lateran before cited,) but no king or
parent may disoblige a man from his oath to the pope: nay, if a child
vow a monastical life, and depart from his parents, they allow not the
parents to disoblige him.
_Rule_ XXIX. In the determining of controversies about the obligation
of oaths and vows, it is safest to mark what Scripture saith, and not
to presume, upon uncertain pretence of reason, to release ourselves,
where we are not sure that God releaseth us.
_Rule_ XXX. That observable chapter, Numb. xxx. about dispensations,
hath many things in it that are plain for the decision of divers great
and usual doubts; but many things which some do collect and conclude
as consequential or implied, are doubtful and controverted among the
most judicious expositors and casuists.
1. It is certain that this chapter speaketh not of a total nullity of
vows _ab initio_, but of a relaxation, or disannulling of them by
superiors. For, 1. Bare silence (which is no efficient cause) doth
prove them to be in force. 2. It is not said, She is bound, or not
bound; but, Her vow and bond shall stand, ver. 4, 7, 9, 11: or, shall
not stand, ver. 5, 12: and, He shall make it of none effect, ver. 8.
The Hebrew, ver. 5, signifieth, _Quia annihilavit pater ejus illud_.
And ver. 8, _Et si in die audire virum ejus, annihilaverit illud, et
infregerit vitam ejus_.[78]--3. It is expressly said, that she had
bound her soul before the dissolution. 4. It is said, The Lord shall
forgive her, ver. 5, 8, 12, which signifieth a relaxation of a former
bond. Or at the most, the parent's silence is a confirmation, and his
disowning it hindereth only the confirmation. So the Chaldee
paraphrase; the Samaritan and Arabic, _Non erunt confirmata_; the
Syriac, _Rata vel irrita erunt_.
2. It is certain that a father hath the power of relaxation here
mentioned as to an unmarried daughter, in her youth living in his
house, and a husband over his wife; for it is the express words of the
text.
3. It is certain that this power extendeth to vows about all things in
which the inferior is not _sui juris_, but is under the superior's
care and oversight, and cannot perform it (in case there had been no
vow) without the superior's consent.
4. It is certain that it extendeth not only to matters concerning the
governors themselves, but concerning vows to God, as they are good or
hurtful to the inferiors.
5. It is certain that there are some vows so necessary and clearly for
the inferior's good, that in them he is _sui juris_, and no superior
can suspend his vows: as to have the Lord for his God; and not to
commit idolatry, murder, theft, &c. No superior can disoblige us here;
for the power of superiors is only for the inferior's indemnity and
good.
6. It is certain that the superior's recall must be speedy or in time,
before silence can signify consent, and make a confirmation of the
vow.
7. It is certain that if the superior have once ratified it by silence
or consent, he cannot afterwards disannul it.
8. It is agreed, that if he awhile dissent and disannul it, and
afterwards both inferior and superior consent again, that it remaineth
ratified.
9. It is agreed that the superior that can discharge the vow of the
inferior, cannot release himself from his own vows. If the pope could
release all men, who shall release him?
But in these points following there is no such certainty or agreement
of judgments, because the text seemeth silent about them, and men
conjecture variously as they are prepared. 1. It is uncertain whether
any but women may be released by virtue of this text: 1. Because the
text expressly distinguishing between a man and a woman doth first
say, _Si vir_----If a man vow a vow unto the Lord, or swear an oath to
bind his soul with a bond, he shall not break his word; he shall do
according to all that proceedeth out of his mouth. And 2. Because
women are only instanced in, when Scripture usually speaketh of them
in the masculine gender, when it includeth both sexes, or extendeth it
to both. 3. And in the recapitulation in the end, it is said by way of
recital of the contents, ver. 16, "These are the statutes which the
Lord commanded Moses between a man and his wife; between the father
and his daughter--in her youth in her father's house:" as if he would
caution us against extending it any further. And though many good
expositors think that it extendeth equally to sons as to daughters,
in their minority, because there is a parity of reason, yet this is an
uncertain conjecture: 1. Because God seemeth by the expression to
bound the sense. 2. Because God acquainteth not man with all the
reasons of his laws. 3. Because there may be special reasons for an
indulgence to the weaker sex in such a weighty case. And though still
there is a probability it may extend to sons, it is good keeping to
certainties in matters of such dreadful importance as oaths and vows
to God.
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.