Front Page Titles (by Subject) CHAPTER XIII: Of an Oath. - The Rights of War and Peace (2005 ed.) vol. 2 (Book II)
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CHAPTER XIII: Of an Oath. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 2 (Book II) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 2.
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Of an Oath.
I.How great the Authority of an Oath is, even in the Opinion of the Heathens.I. 1. In every Nation, and in every Age, an1 Oath has always been of the greatest Weight and Consideration in Promises, Agreements, and Contracts. For, as Sophocles says in his Hippodamia,
Our Ancestors, says Cicero,3could never find out any Thing stronger than an Oath to bind us to the faithful Discharge of what we had engaged.
2. And therefore it was ever a received Opinion, that some very grievous Punishment would attend Persons forsworn; as Hesiod has observed, speaking of Swearing,
Insomuch that5 Posterity was thought to be punished for the Faults of their Ancestors this Way; an Opinion that was never entertained but in Cases of the most enormous Crimes: Nay, that the bare Will and Design, without the Effect, would certainly draw down a Vengeance on it. Herodotus confirms both these, in his Story of Glaucus Epicydides, who had only deliberated with himself, whether he should falsify the Oath he had taken, of being true to a certain Trust reposed in him; where that Author produces these Verses of the Priestess of Apollo,<314>
And Juvenal reciting the same Affair, concludes thus,
3. Cicero says very judiciously and well, that An Oath is a religious Affirmation,9and whatever is promised after such a Manner, calling GOD, as it were, for a Witness to your Words, ought punctually to be performed. But as for what he adds, and this we are to do in Regard to Honour and Justice, and not out of any Fear of the Anger of the Gods; for there is no such Thing incident to their Natures. If by Anger he means a Passion or Disturbance, he is in the Right of it; but if he excludes all Desire or Will to make the Guilty suffer, it is no Ways to be allowed, as Lactantius judiciously proves. Let us see now whence this sacred Power of an Oath arises, and how far it extends.
II.That a deliberate Mind or Intention is required in such an Affair, I mean, that he who swears is willing to do so.II. First, What we have already said of Promises and Contracts, is also true in the Case of Oaths, that he who swears should be in his right Senses, and consider before-hand what he is going to do. And therefore, if a Man, not designing to swear, should inconsiderately utter Words importing an Oath,1 as is related of Cydippe, one might say of him what Ovid attributes to her,
2It is the Mind that swears; with that we never swore.
Taken out of Eurypides, who said in his Hippolytus,
But if any one willingly swears, tho’ he is not willing to be bound by that Oath, he is however obliged to stand to it, because an Obligation is inseparable from an Oath, and the immediate and inevitable Consequence of it.
III.The Words of an Oath oblige in that Sense in which he to whom we swear, is believed to understand them.III. 1. Some are of Opinion, that tho’ a Man solemnly pronounce the Words of an Oath, yet if it be not with an Intent to swear, he shall not be obliged by that Oath, but he sins by swearing rashly. But it is more reasonable to say, that he is bound to perform what he has called GOD to witness. For that Act, which is of<315> itself binding, proceeded from a deliberate Mind. And therefore, tho’ what Tully says holds generally good, that Not to do what you have in Conscience, sworn, is Perjury.1 As also what Calypso, in Homer, swearing to Ulysses, says,
2. Yet has it this Exception, if he who swears knows not, or has no Room to believe probably, that the Person he deals with takes the Words in another Sense; for he who calls GOD to witness what he is saying, is obliged to perform his Word3 in that Sense wherein he thinks it is taken by those with whom he deals; and this is what the same Cicero alledges,4You are obliged to stand to what you swear, if you swear in such a Manner that he who requires or administers the Oath, is persuaded that you ought to perform it. And in Tacitus we read,5Those who were conscious to themselves of Guilt, were much embarrassed, and endeavoured by divers Artifices to elude the Force of the Words of the Oath. And St. Austin,6They are perjured, who, tho’ they kept to the Words of the Oath, have yet deceived the Expectation of those they swore to. And7Isidore, Tho’ the Words of an Oath be never so craftily contrived, yet GOD, who is the Witness of the Conscience, takes it so, as he, to whom we swear, understands it. And this is what they call8Liquidò jurare, To swear with a safe Conscience. And therefore Metellus did well in refusing to give<316> his Vote with an Oath, for passing the Apuleian Law;9 tho’ there were other Senators, who, under Pretence that the Law was null, because unduly proposed, alledged, that the Oath was to be understood with this tacit Restriction, that they approved the Law, on Supposition it had been duly proposed and enacted.
3. For tho’ in other Promises some tacit Condition may be supposed, which may absolve the Promiser,10 yet in Oaths no such Thing is admitted; to which that remarkable Expression of the Apostle to the Hebrews is admirably pertinent, GOD willing more abundantly to shew unto the Heirs of the Promise, the Immutability of his Counsel, confirmed it by an Oath; that by two immutable Things, in which it was impossible for GOD to deceive, or lie, (for so I think the Word ψέυδεσθαι is properly rendered, as plain speaking is called Truth,11 Dan. vii. 16. viii. 26. x. 1.) we might have a strong Consolation. To understand which Words, we must know, that the Penmen of the Holy Scriptures do often speak of GOD, ἀνθρωποπαθω̂ς, after the Manner of Men, and rather as he appears to us, than as he is in himself.
4. For GOD does not really alter his Decrees; yet he is said to change, and12 repent, as often as he does otherwise than his Words seem to imply,13 by Reason of some Condition tacitly understood, which Condition then ceases, Jer. xviii. 8. You may find Instances of this Kind in Gen. xx. 3. Exod. xxxii. 14. 1 Kings xxi. 29. 2 Kings xx. 1. Isa. xxxviii. 1. Jonah iii. 5, 11. In which Sense too GOD may improperly be said to deceive us. And it is usual for the Word ψέυδεσθαι, which is in the aforesaid Passage to the Hebrews, to sign if any Event that does not answer our Expectation, as we may see in Levit. vi. 2. Jos. xxiv. 27. Isa. lviii. 11. Hos. i. 2.14Habak. iii. 17. and elsewhere. And this is a Thing frequent in Threats, because they confer no Right on any Body. And sometimes it is so in Promises, where there is a tacit Condition, as I have just now said.
5. And therefore the Apostle mentions two Things, which imply the Immutability of what GOD had declared he would do, a Promise, because it gives a Right to the Person to whom it is made; and an Oath, because it admits of no Conditions that are tacit, or any Ways obscure and concealed; as we find Psal. lxxxix. 30, 31, 32, 33, 34, 35, 36. But it is another Case, if the Nature of the Affair plainly discovers and points out any Conditions; to which some refer that of Numb. xiv. 30. Ye shall not come into the Land, concerning which I sware to make you dwell therein, save Caleb and Joshua. But the promised Land may be better understood as given by an Oath, not to such or such Persons, but to the People (or Nation) of the Jews in general, that is, to the Posterity of those to whom GOD had sworn, ver. 33. And such a Promise might be performed at any Time, not being limited to any particular Persons.
IV.An Oath procured by Fraud, when binding.IV. 1. From what has been said, we may learn what to judge of an Oath procured by Fraud or Surprise. For if it be certain, that he who swore1 supposed a<317> certain Fact which really is not as he supposed, and that unless he had believed so, he would not have sworn, that Oath shall not bind him.2 But if it be doubtful, whether he would not have sworn, tho’ he had not been thus mistaken, he shall then stand to his Words, because the most simple Interpretation is what is most agreeable to an Oath.
2. And hither I refer the Oath which Joshua,3 and the Princes of the Congregation of Israel, made to the Gibeonites; they were indeed deceived by the Gibeonites, who pretended to come from a far Country. Yet it does not thence necessarily follow, that if Joshua and the Princes had known that they had been their Neighbours, they would not have spared them. For as to what they said to the Gibeonites, Peradventure you dwell among us, and how shall we make a League with you? It may be taken in this Sense, that the Gibeonites were asked what Manner of League they desired, whether to be admitted as Allies, or as Subjects; or it might be to shew, that it was not lawful for the Jews to enter into an equal Alliance with certain Nations, but not that it was prohibited them to save the Lives of those who surrendered themselves to them. For the divine Law which commanded them to destroy those Nations,4 being compared with another Order, may be understood with this Limitation, Unless they immediately, and upon the very first Summons, submitted and did as was injoined them! Which among other Things is proved by the Story of Rahab,5 who for her good Services was saved; and by the Example of Solomon, who received those who were left of the Canaanites into the Number of his Subjects, and made them tributary.
3. And to this Purpose is what is observed in the Book of Joshua, that there was not a City of those seven People that ever offered to make Peace; for they were hardened on Purpose that they might be incapable of any Favour. Since then, it is very likely, that had the Gibeonites declared the Matter as it really was, which for Fear they did not, they would, however, have been allowed Quarter, upon Condition of their Obedience, the Oath was valid, insomuch that very grievous Punishments were, by GOD’s own Order, inflicted on them, who afterwards presumed to violate it.6 St. Ambrose, treating of this Story, speaks of it thus, Joshua did not think fit to break the Peace he had granted, because it was confirmed with the awful Solemnity of an Oath,7lest whilst he was blaming the Perfidiousness<318> of others, he himself should be worse than his Word, and forfeit his own Honour. But however, the Gibeonites did in some Measure suffer for their Fraud, being immediately, upon their Submission to the Hebrews, adjudged8 to a Sort of personal Slavery; whereas, had they dealt frankly, they might have been received as tributary States.
V.The Words of an Oath not to be extended beyond their usual Sense and Acceptation.V. Nor should the Meaning of an Oath be extended beyond the usual Sense and Acceptation of the Words.1 And the Tribes therefore were not perjured, who, when they had sworn not to give their Daughters in Marriage to the Benjamites, did yet suffer them to keep and enjoy the Women they had stolen. For2 it is one Thing to give, and another not to demand again what is lost and gone. Of this Fact St. Ambrose speaks thus,3Which Indulgence of theirs was not without a Punishment in some Measure suitable to their ungovernable Passion, whilst they were only permitted to steal themselves Wives, and not to enter upon that State with the sacred Solemnity of lawful Matrimony. Not unlike this was that Request which the Achaeans made to the Romans,4 who did not approve of some Things which they had done, and confirmed by Oath, that the Romans would be pleased to alter what they had a Mind to; but not to oblige the Achaeans by any religious Vow to make void what they had established by Oath.
VI.The Oath that engages any Thing unlawful does not oblige.VI. That an Oath may be binding,1 the Obligation must be lawful: For, if a Thing promised upon Oath be forbidden, either by the Law of Nature, by the Divine Law, or even by an human Law, of which we shall quickly treat, it shall have no Power at all to oblige us,2Philo the Jew said well in this Case, ἴστω δε πα̂ς ἐνωμότως ἄδικα δρω̂ν ὅτι, &c. Let him who is going to do an unjust Action, because he swore he would, know, that he is so far from discharging his Oath by this Means, that here ally breaks it; an Oath is a sacred Thing, and deserves the greatest Circumspection and Care in the Management of it, as being the Seal and Sanction of just and honest Resolutions. For he does but add one Sin to another, who to a wicked Oath joins a wicked Action, since it would have been much better to have entirely desisted. And therefore let him refrain from such Actions, and implore the Mercy of GOD, which is essential to him, by asking Pardon for his rash Oath. And it would be down-right Folly, and unaccountable Madness, to chuse a double Evil when one might be excused for half. We have an Instance of this in David, who spared Nabal tho’ he had sworn to kill him. And3Cicero gives such another Precedent in Agamemnon’s Vow, and Dionysius Halicarnassensis,4 in the Conspiracy of the Decemviri to seize upon the Government. Accordingly Seneca says,5 <319>
(Where Interim signifies Interdum)
And St. Ambrose,6Some Promises cannot be complied with, nor some Oaths observed, without acting against a Principle of Duty. And7 St. Austin, If Faith and Honour be engaged to make Way for Ill, I wonder we should dare to call it Faith and Honour. The same does St. Basil teach us, in his second Letter to Amphilochius.
VII.Or if it hinders any greater moral Good.VII. 1. Nay,1 tho’ what is promised be not illegal and unjust,2 but only hinders some greater moral Good; in this Case also the Oath shall not be binding, because we stand so much indebted to GOD, for our Endeavours to grow and improve in Virtue, that it is not in our Power to deprive ourselves of the Liberty of doing all the Good we can. There is a remarkable Passage in that Philo Judaeus I just mentioned, not impertinent to the Affair in Hand, and is very well worth our inserting here, εἰσὶ δ’ οἱ τὴν ϕύσιν ἄμικτοι, &c.3There are some People of so morose and unsociable a Nature, either in Hatred to all Mankind, or as being so much in Slavery to their own Fury and Passion, that they confirm this unhappy Temper even by an Oath, swearing, for Instance, that they will never eat at the same Table, or lie under the same Roof, with such or such a Person; that they will never do this or that Man the least Piece of Service, nor indeed will they ever be beholden to him themselves for any as long as they live. What he says, that some People swore,4 that they would never do this or that Man any the least Piece of Service, the Hebrews called נרר הנאח, that is, εὐχὴν ὠϕελείας, The Vow of Assistance, or Beneficence: שבע לחטיב, An Oath to do Good, Lev. v. 4. The Form of this, as the Rabbins tell us,5 was מהדתחנה מני קדבן כל, or שאתא נהנחלי קרבן, All the Advantage that you might receive from me, be dedicated to GOD; agreeable to which is the Syriack, in the old Version of Matthew xv. 5.מני קרבני טרם רתתהנא, in Greek Δω̂ρον ὁ ἐὰν ἐξ ἐμον̂ ὠϕεληθη̂ς, that is, It is a Gift consecrated to GOD (for this is what is meant by קרבן, κορβα̂ν) by whatsoever thou mightest be profited by me.
2. The Hebrew Doctors, who were very ill Expositors in this Respect of the divine Law, thought that a Vow, to which this Sort of Consecration was added, was valid and binding, tho’ made in Prejudice to their own Parents: Which Opinion CHRIST refutes in the Place just cited, where the Word Τιμα̂ν, to honour, signifies to assist and be kind to, as appears by the parallel Place in St. Mark, and from St. Paul, 1 Tim. v. 3, 17. and Numb. xxiii. 11. But if the Oath, or the Vow, were designed to the Disadvantage of any other Person, in this Case too we might very justly say, that it is no Ways obliging, because, as we observed before, it is against that Proficiency and Advancement in doing Good, to which all our Endeavours ought to be directed.
VIII.Or if the Thing engaged for be impossible.VIII. It is to no Purpose to say any Thing at all of what can never be performed. For it is evident enough, that no Body can be obliged to a Thing absolutely impossible.<320>
IX.What if that Impossibility be only for a Time.IX. As for what is impossible indeed for the present only, or because one supposes it to be so, the Obligation continues in Suspence; but so, that he who swore upon such a Supposition1 is obliged to take all the Care he can to render that, which he has promised upon Oath, to become possible.
X.Men swear by the Name of GOD, and in what Sense they do it.X. The Form of Oaths may be different in Words, but the Substance is the same. For all are understood to appeal to GOD in this Manner; for Instance, Let GOD be my Witness, or Let GOD be my Avenger, which both amount to one and the same Thing. For1 when we call him to witness, who has a Power and Right to punish, we do at the same Time desire him to revenge our Perfidiousness; and he who knows all Things is an Avenger of the Crime, by the same Reason that he is a Witness of it. Plutarch says, Πα̂ς ὄρκος εἰς κατάραν τελευτα̂ τη̂ς ἐπιορκίας, Every Oath ends in a Curse upon Perjury. And to this the old Forms of making Treaties and Alliances, by Killing of Sacrifices, allude; as appears, Gen. xv. 9. and in what follows there. And that of the Romans, in Livy,2Tu Jupiter, ita illum ferito, ut ego hunc Porcum. Do thou, O Jupiter, smite him (if the Violater) as I do this Hog. And in another Place,3Deosprecatus, ita se mactarent, quemadmodum ipse agnum mactasset. He prayed the Gods so to kill him as he did that Lamb. And in4Polybius and Festus, Si sciens fallo, ita me Diespiter ejiciat, ut ego hunc lapidem. If I knowingly deceive you, let GOD cast me away as I do this Stone.
XI.And by the Name of other Things too, with a Regard to GOD.XI. 1. It was an old Custom to swear also by the Name of other Things and Persons, whether thereby wishing that those Things might prove hurtful to them, (if they swore falsly) as the Sun, the Earth, the Heavens, the Prince; or that they might be punished in them, as when they swore by their Head, their Children, their Country, their Prince: Nor did the Pagans only use to swear thus, but the Jews too, as the same1Philo informs us; for he says it is not fit when we swear upon every Occasion, immediately ἐπὶ τὸν ποιητὴν καὶ πατέρα τω̂η ὅλων ἀνατρέχειν, To have Recourse to the Creator and Father of all Things; but to swear by Parents, by Heaven, by the Earth, by the Universe. Something like this is observed by the2 Interpreters of Homer, who say, that the antient Grecians did not use Προπετω̂ς κατὰ τω̂ν θεω̂ν ὀμνύειν ἀλλὰ κατὰ τω̂ν προστυγχανόντων, To swear precipitately by the Gods, but3by such Things as were at Hand, as by the Scepter. And this Custom4Porphyry, and the5 Scholiast upon Aristophanes, say was brought up by Rhadamanthus, a Prince eminent for his great Justice. Thus we read (Gen. xlii. 15.) that Joseph swore by the Life of Pharoah, according to a received Custom of the Egyptians, as Abenesdras observes, and6Elisha by the Life of Elijah, (2 Kings ii. 2.) Nor does CHRIST, Matt. v. as some think, allow such Oaths to be less binding than those which are<321> expressly made in the Name of GOD; but because the Jews did not so much regard these, being prepossessed with such an Opinion as he was, who said Sceptrum non putat esse Deos,7he does not believe the Scepter to be the Gods; he shews that even these are true Oaths. For, as Ulpian has very well observed, He who swears by his own Life, seems to swear by GOD,8for he swears with an Eye and Respect to some divine Power: So CHRIST tells us, that he who swears by the Temple, swears by GOD who presides there, and that he who swears by Heaven, swears by GOD, whose Throne it is.
2. But the Jewish Rabbins of those Times were of Opinion, that an Oath made by created Things was not obligatory, unless some Penalty were added to it, as if the Thing by which they swore were consecrated to GOD. And this Oath they called Κορβα̂ν, or ἐν τῷ δέρῳ, By Way of Gift, whereof Mention is made not only in St. Matthew, but also in the Tyrian Laws, as we learn from Josephus, in his Dispute against Appion.9 And for the same Reason, I suppose, it was that the Greeks called the Eastern People, Καρβανοω̂ς,10 which Word we find in Aeschylus11 and Euripides;12 and Καρβάνα δ’ ἀυδὰς, in the same Aeschylus. CHRIST, in the above-mentioned Passage, opposes this Error. And Tertullian13 informs us, that the antient Christians used to swear by the Life of their Prince, a Thing more august and venerable than any Genius whatever. And in Vegetius we find a certain Form, which we took Notice of before, wherein the Christian Soldiers swore, not only by GOD, but by the Majesty of the Emperor, which, next to GOD, is what ought to be valued and reverenced by all Mankind.
XII.It is an Oath, tho’ sworn by false Gods.XII. Nay more,1 if any one swears by false Gods, his Oath shall bind him, because, whatever chimerical Notion he may have in his Mind, yet he thinks of the Deity in general, and therefore the true GOD, if he be forsworn, looks upon it as done in Contempt to him.2 And tho’ we see indeed, that the holy Men of Antiquity have never proposed an Oath in that Form, much less have taken it themselves, which I admire that3Duarenus should have allowed; yet, if they<322> could not prevail with those they had Business with to swear otherwise, they, however, dealt with them, they, for their Parts, swearing as they ought, and receiving from them such an Oath as they could get. We have an Instance of this in Jacob and Laban, Gen. xxxi. 53.4 This is what St. Austin says, Even he who swears but by a Stone, if he swears falsly, is perjured: And then, The Stone does not hear you speak, but GOD punishes you for your Deceit.
XIII.The Effects of an Oath; whence arises a twofold Obligation, one at the Time of Swearing, the other after; this distinctly explained.XIII. 1. The principal Effect of an Oath is to end all Disputes, Πάσης ἀντιλογίας πέρας εἰς βεβαίωσιν ὁ ὅρκος, says the divine Author to the Hebrews, An Oath for Confirmation is the End of all Strife. Not unlike to this is that of Philo,1 Ὅρκος μαρτυρία θεον̂ περὶ πράγματος ἀμϕισβητουμένου, An Oath is the Testimony of GOD in doubtful Cases. And that of Dionysius Halicarnassensis, Τελευταία δε πίστις ἅπασίν ἐστιν, &c.2The utmost Assurance that either Greeks or Barbarians can give, and which no Time can efface, is when by their Oaths and Vows they make the Gods the Sureties of their Contracts and Agreements.3 So was an Oath among the Aegyptians, Μεγίστη παρ’ ἀνθρώποις πίστις, The greatest Pledge of human Fidelity.4
2. He then who swears is obliged to two Things. First, That his Heart agree with his Words, which Chrysippus5 terms ἀληθορκεɩ̂ν, To swear truly. Secondly, That his Actions answer his Words, which he calls εὐορκεɩ̂ν, To swear well; he who offends in the former Case is said,6 ψευδορκεɩ̂ν, To swear falsely; he who in the latter, ἐπιορκεɩ̂ν, To be perjured, as the same Chrysippus nicely distinguishes them, tho’ sometimes they are confounded.
XIV.When an Oath lays us under an Obligation both to GOD and Man, and when to GOD only.XIV. And indeed, if the Matter be such, and the Words so conceived, that they regard not only GOD, but also some certain Person, that Person, no Doubt of it, shall from that Oath be entitled to a Right, as including a Promise or Contract, which ought to be taken in the most simple and plainest Sense. But if the Words of the Oath ado not directly regard that Person, by conferring any Right on him; or if they do respect him, yet so as that somewhat may be opposed to his Claim, then the Force of the Oath will be such, that that Person shall acquire no Right, but that the Swearer shall nevertheless be obliged before GOD to make good his Oath.1 We have an Instance of this in him, who by an unjust Fear has extorted a Promise upon Oath. For he obtains no Right, or at least such a one only, as he is obliged to give up, because in acquiring it he was the Cause of Damage to him whom he forced to promise. Thus we read, that the Hebrew Kings were both2 reproved by the Prophets, and punished by GOD,3 for break-<323>ing their Faith, which they had sworn to the Kings of Babylon to maintain inviolable. Cicero commends Pomponius,4 the Tribune, for keeping his Word and Promise, tho’ what he swore was forced from him by the Fright they put him into; So great, says he, was the Reverence of an Oath in those Days. And therefore, not only Regulus,5 how unjust soever his Confinement was, was obliged to render himself a Prisoner; but also those6 ten that Cicero mentions, were obliged too to return to Hannibal, for this was what their Oath had laid upon them.
XV.The Opinion that an Oath given to a Pyrate, or Tyrant, binds not before GOD, confuted.XV. 1. Nor does this take Place only in Relation to publick Enemies, but in Regard to every other Enemy; for it is not so much the Persons to whom we swear,1 as GOD, whom we invoke as a Witness to what we swear, that creates this Obligation. And therefore Cicero2 is not to be minded, when he says, that it is no Perjury, if a Man does not pay the Money which he promised with an Oath to Pirates, or Robbers, for saving his Life; because a Pirate, or Robber, has no Claim to the Right of Arms, but is a common Foe to all Mankind, and with whom we ought not to keep either our Word or our Oath. And the same, in some other Place he says of a Tyrant,3 as Brutus does in Appian,4 οὐδὲν πιστὸν ἐστὶ Ῥωμαίοις πρὸς τυράννους οὐδ’ ἔνορκον, The Romans think it no Point of Honour or Duty to observe either Faith or Oath to Tyrants.
2. But tho’, by the Law of Nations, there is a great Difference between an Enemy in Form, and a Pirate, as we shall shew hereafter, yet will not that Difference be of any Weight in this Case, where we have to do with GOD; for tho’5 the Condition of the Person be such as he cannot claim a Right, yet that signifies nothing, since it was GOD we are engaged to, and therefore an Oath is sometimes called a Vow;6 nor is what Cicero says allowable, that there is no common Right that ought to be observed with Respect to a Pirate. For by the Law of Nations whatsoever is deposited with us by a Thief,7 is to be restored to him,8 if the right Owner does not appear, as Tryphoninus well observes.
3. Wherefore I cannot approve of their Opinion,9 who think it Discharge enough, if a Person does but barely lay down the Sum, which he has promised to pay a Robber, tho’ he immediately takes it back again; because, when we swear to GOD, our Words ought to be understood in the plainest Sense, and so as they may have a real Effect. And therefore he who came back to his Enemy privately,<324> and then went off again, did not, in the Judgment of the Roman Senate, satisfy his Oath of Returning.10
XVI.Whether an Oath given to one who does not regard his Word be to be kept; explained by a Distinction.XVI. 1. As to that of Accius,1 T. Fregisti fidem. A. Quam neque dedi, neque do infideli cuipiam. T. You have broke your Faith. A. Which I neither gave, or ever do give, to a Person who has none himself; may in this Sense be allowed, if our Promise made, and confirmed by Oath,2 was grounded upon another’s Promise, as upon a Condition to which ours related; for that Condition not being performed, makes void our Promise. But if the Promises were of different Kinds, and did not respect each other, then each Promise is to be faithfully discharged by the Persons who swore; and hence it is, that Silius commending Regulus, addresses himself to him in the following Terms,
2. A plain Inequality in Contracts, naturally gives sufficient Cause either to repeal or reform them, as I have said before. And tho’ the Law of Nations has made some Alteration in it, yet by the Civil Law, which is of Force where both Parties are of the same Nation, they often have Recourse to what is allowed by the Law of Nature, as we have also proved elsewhere. But here too, if an Oath intervene, tho’ little or nothing be due to the other, yet our Faith given to GOD must be punctually observed.4 And therefore the Psalmist reckoning up the Qualities of a good Man, adds this as one of them, He that sweareth to his Neighbour, and disappointed him not, tho’ it were to his own Detriment.5
XVII.He who is bound to GOD alone does not oblige his Heir after him.XVII. But it is to be observed, that where there is no Right transferred to the Person with whom we deal, on the Account of some Defect, as aforesaid, but we are engaged only in Respect of the Oath that we made to GOD, there the Heir of him who made the Oath is not bound.1 For as the Goods of the Deceased pass to the Heir, so do also the Charges and Incumbrances, but not any other Obligations, which were only the Result of meer Piety, Gratitude, or Sincerity. For these have nothing to do with what is strictly termed Right, as it is now established, as we did not forget to observe elsewhere.
XVIII.It is no Perjury not to keep one’s Word, or Oath, to him who does not desire that it should be kept; or if that Quality or Circumstance of Condition, under which, and in Consideration of which the Oath was made, ceases.XVIII. But also where there arises no Right to the Person who receives it, yet if the Oath seems to respect the Advantage of a third Person, and1 that Person will not accept thereof, the Oath shall not oblige him who gave it,2 nor if the Quality<325> of the Person ceases, in Regard to which a Man swore; as if a Magistrate shall cease to be a Magistrate, the Obligation ceases. In Caesar,3Curio thus speaks to Domitius’s Soldiers, How is it possible that you should be bound by an Oath to him, who having thrown away the Ensigns of Power, and renounced his Command, is become a private Man, and a Prisoner under another’s Power? And presently adds,4 the Oath has lost its obliging Force, by the Loss of the Imposer’s Liberty.
XIX.When that which is done contrary to one’s Oath becomes void.XIX. It is an Inquiry too, whether an Act done contrary to an Oath, be only unlawful or void? Where we must distinguish, that if our Faith only be engaged,1 the Act done contrary to our Oath shall stand good, as in a Testament of Sale. But the Oath shall not be of Force, if it be so framed, that it comprehends an absolute renouncing of any Power to do that Act.2 And these Things do naturally attend any Oath; whence we may easily judge of the Oaths of Kings and of Foreigners to one another, when the Act is not subject to the Law of the Place.
XX.How far the Prince’s Power extends concerning what his Subjects have sworn to Strangers, or Strangers to them, explained by a Distinction.XX. 1. Let1 us now see what Power and Authority Superiors, that is, Kings, Fathers, Masters, and Husbands (as to what regards a conjugal State) are intitled to. And here the Act of our Superiors cannot make void an Oath which is truly obligatory, so that it should not be fulfilled; for that belongs both to natural and divine Right. But because all our Actions are not fully in our own Power, but they have some Dependence on our Superiors, therefore our Superiors have a double Power over us, concerning that which is sworn; the one directly over the Person swearing, the other over the Person to whom he swears.
2. The Act of the Superior may restrain the Person swearing, either before he swears, by making such an Oath void, as far as the Right of an Inferior is subject to the Power of a Superior; or, after he has sworn, by forbidding the Performance of it. For an Inferior, as such, could not bind himself without the Consent of his Superior, beyond which he had no Power. After this Manner, by the Hebrew Law, the Husband had Power to make void the Vow of his Wife, the Father that of his Children, so long as they were under the Power of his Government. Seneca proposes this Question,2What if there should be a Law made, that no Man should do what I have promised my Friend to do for him? Which he thus answers, The same Law dispenses with the Performance that forbids me to promise. But some Acts may be mixt, and made up of both, as when the Superior orders, that what the Inferior shall swear in such and such Circumstances, as, suppose, through Fear or Want of Judgment, shall be binding only so far as he, the Superior, approves of it. And upon this Foundation are built the Dispensations and Absolutions,3 which Princes in former Times did exercise by themselves, which<326> Power, by their Consent, is now executed by the Heads of the Church, the more effectually to prevent any Thing contrary to Piety.4
3. So the Act of a Superior may be directed against the Person to whom it is sworn, either by taking from him that Right which he has gained, or if he has no Right, by forbidding him to claim any Right by that Oath.5 And this may be done two Ways, either by Way of Punishment,6 or for the publick Good7 by Vertue of that eminent Power which a Sovereign has over the Goods of his Subjects. And hence we may learn, what Power Princes have over the Oaths of their Subjects, where he who swears, and he to whom it is sworn, are of different Nations.8 But he who upon his Oath has promised any Thing to an injurious Person, as to a Pirate, acting as such,9 cannot, by Way of Punishment, take away from him, that Right which he has given him by his Promise. For then Words would have no Effect,10 which is a Circumstance that ought wholly to be avoided. And for the same Reason, the Right of that which is promised, cannot be recompensed with the Right of that which was before disputed11 if the Agreement were made, after that Disputebegan.
4. Yet may a human Law take away that Clog and Impediment, which itself had laid upon some particular Kind of Acts, if an Oath intervene, either in general Terms, or under some certain and precise Form; which the Roman Laws have done in such Impediments12 as do not directly respect the publick Advantage, but the private Benefit of him who swears. And if this be so, the Act sworn shall be<327> of Force in the same Manner, as it naturally would be if there was no such human Law, either by obliging his Faith only, or by giving also a true Right to another,Ch. 11. of this Book, § 3, 4. according to the different Nature of the Acts, which we have explained in another Place.
XXI.What Manner of OathsChristforbids when he prohibits Swearing at all.XXI. 1. We must observe here by the Way, that what is said in the Precepts of CHRIST, and by St. James, of not Swearing at all, does not belong properly to affirmative Oaths,1 of which we have some Instances in St. Paul, but to obligatory Oaths, which promise something future and uncertain This is plain from the Opposition, in the very Words of CHRIST, Ye have heard it hath been said by them of old Time, thou shalt not forswear thyself, but shalt perform unto the LORD thine Oath; but I say unto you, swear not at all. And by the Reason given by St. James, Μὴ εἰς ὑπόκρισιν πέσητε, that ye fall not into Hypocrisy, that is, that ye be not found Deceivers, for so the Word ὑπόκρισις, signifies in the Greek, as appears Job xxxiv. 30. Matt. xxiv. 51. and in several other Places.
2. The same may be proved by our Saviour’s Words, ἔστω δε λόγος ὑμω̂ν, ναὶ, ναὶ; οὐ, οὐ; Let your Communication be Yea, yea; Nay, nay; which St. James thus expounds, ἔστω δε ὑμω̂ν τὸ ναὶ, ναὶ; καὶ τὸ οὐ, οὐ; Let your Yea be yea, and your Nay, nay; where there is evidently the Figure which the Rhetoricians call Πλοκὴ, as in that Passage,
And in another like it, Ad illam diem Memmius erat Memmius.3To that Day Memmius was Memmius. For the former Yea and Nay signify a Promise, the latter the fulfilling of that Promise. For Ναὶ, or Yea, is a Form used by a Person promising, and is explained Rev. i. 7. by Amen, or So be it, and it is of the very same Signification in the Syriack, אין, answering to the Rabbinical הין, as does the Arabick زَڎَم, as among the Roman Lawyers4 Μάλιστα, Yes, and Quidni, why not? are Particles of Speech that denote the Consent of the Person to the Agreement that is proposed to him. In St. Paul, 2 Cor. i. 20. it is taken for the Accomplishment of a Promise, when he says, that All the Promises of GOD in CHRIST, are Ναὶ καὶ ἀμήν, Yea and Amen, that is, are certain and undoubted. And from hence arises that old Way of Expression amongst the Jews, Justi Hominis,5 Ναὶ est ναὶ & non, est non. An honest Man’s Yea is yea, and his No is no.
3. On the contrary, they whose Words and Actions disagree, are said to be Ναὶ καὶ οὐ, Yea and Nay, 2 Cor. i. 18, 19. That is, their Yea is Nay, and their Nay is Yea. So St. Paul himself expounds it; for when he said he did not ἐλαϕρὶᾳ χρήσασθαι, Use Lightness, he adds, his Word was not Ναὶ καὶ οὐ, Yea and Nay. Festus relating the several Significations of the Word Nauci, writes thus, Some derive it from the Greek,6 Ναὶ καὶ οὐχι, Nai cai ouchi, and say that it imports a fickle inconstant Creature. Now if Ναὶ καὶ οὐ, Yea and Nay, signifies Fickleness and Inconstancy, it will follow that Ναὶ, ναὶ; οὐ, οὐ; Yea, yea, and Nay, nay, signify Constancy.
4. So that our Saviour’s Words imply, what7Philo the Jew expresses, Κάλλιστον καὶ βιωϕελέστατον καὶ ἅρμοττον, &c. It is the best Thing in the World, the most convenient, and most agreeable to a rational Nature, to abstain from Swearing, and to accustom oneself so to Truth, as that our Word may be taken as soon as an Oath.8 And in another Place, Ὁ τοὐ σπουδαίς λόγος ὅρκος ἔστω βέβαιος, ἀκλινη̂ς, ἀψευδέστατος. The Word of a good Man ought to pass for a firm, unchangeable, and sin<328>cere Oath. And, as Josephus says of the Essenes,9 Πὰν τὸ ῥηθὲν ὑπ’ αὐτω̂ν ἰσχυρώτερον ὅρκου, τὸ δε ὀμνύειν αὐτοɩ̂ς περιίσται, Every Word spoken by them was firmer than an Oath, and therefore they looked upon an Oath as superfluous.
5. Pythagoras10 seems to have borrowed this Maxim from the Essenes, or some of the Jews whom they followed, Μὴ ὀμνύναι θεοὺς, ἀσκεɩ̂ν γὰρ ἀὐτὸν δεε͡ιν ἀξιόπιστον παρέχειν,11Not to swear by the Gods, for every one should take Care12to be believed without his Oath. Curtius tells us, [[13 the Scythians thus addressed Alexander, Do not expect that the Scythians should oblige themselves to you by Swearing, they take an Oath of Fidelity in being always as good as their Word. And Cicero, for Roscius the Comedian, Whatever Punishment the immortal Gods have appointed for a perjured Person, the same is designed by them for the Liar and the Fraudulent; for they are not so much offended with Men for breaking their Words upon Oath, as for their Treachery and Perfidiousness, whereby they intend to cheat and circumvent others. Remarkable is the Saying of Solon,14 Καλοκαγαθίαν ὅρκου πιστοτέραν ἔχε, Be of that Probity, as to be believed more for your Honesty than your Oath. And Clemens Alexandrinus says, that it is the Duty of a good Man, Τὸ πιστὸν τη̂ς ὁμολογίας ἐν ἀμεταπτώτω καὶ ἑδραίω δεικνύειν βίωτε καὶ λόγω,15To shew the Sincerity of his Promises by the Firmness and Uniformity of his Life and Conversation. And Alexis the Comedian,
And Cicero, in his Oration for L. Cornelius Balbus, tells us, that when one at Athens, who was a Man of known Probity, had given in his publick Evidence, and was coming to the Altar to confirm it upon his Oath, all the Judges unanimously cried out, that he should not swear; because they would not have it thought, that his Oath ought to be depended on, more than his bare Word.]]
6. That Passage of Hierocles upon the golden Poem, does not disagree with what our Saviour advances, Ὁ σέβου ὅρκον ἐν ἀρχῃ̑ παραγγέιλας, &c. He who in the Beginning commanded us to reverence an Oath, did thereby forbid us to swear about Things16that are casual, and altogether uncertain in their Event and Issue. For such Things are trifling and hazardous, and therefore it is neither decent nor safe<329> to swear about them at all. And Libanius highly commends a Christian Emperor, because ἐπιορκίας τοσον̂τον ἀποστατῷν, ὥστε, &c. he was so far from perjuring himself, that he dreaded even to swear the Truth. And Eustathius, upon that of the fourteenth Odyss. (v. 171.) Ἀλλ’ ἤτοι ὅρκον μὲν ἐάσομεν, But we will allow an oath, says thus, Οὐ χρεία ὅρκου ἐν τοɩ̂ς ἀδήλοις, &c. in doubtful Matters there is no Occasion for an Oath, by Way of Confirmation, but of Prayers for Success.
XXII.What Circumstances have by Custom, without Swearing, the Force and Obligation of an Oath.XXII. And therefore in many Places, instead of an Oath, it is customary1 to ratify a Promise by joining of the right Hands of the two Parties together, which was πίστις βεβαιωτάτη παρὰ τοɩ̂ς Πέρσαις, the strongest Tye of Faith among the Persians; [[2 or by some other Sign and Circumstance, and is so powerful an Engagement, that if the Promiser does not faithfully perform what he has promised,3 he is no less detested than if he had been really perjured. And it used to be particularly said of Kings and great Persons, that their Word was as good as an Oath. For they ought to be such as to be able to say with Augustus, Bonae fidei sum,4I am a Man of my Word; and with Eumenes,5that they would sooner lose their Lives than be worse than their Word. And very pertinent to this, is that of Gunther the Genoese,
And Cicero, in his Oration for Dejotarus, says, in Commendation of Julius Caesar, that his Hand was not more to be depended on in War and Battle, than in what he had promised by it. And it is observed by Aristotle,7 that in the Heroes Days, if a King did but lift up his Scepter, it was as good as his Oath.<330>
[1 ]The Subject of this Chapter is handled by Pufendorf, B. IV. Chap. II.
[2. ]This is a Fragment of the Tragedy here specified. It is preserved by Stobaeus. The Original, of which our Author has only given us the Translation, stands thus,
[3. ]De Offic. Lib. III. Cap. XXXI.
[5. ]See Servius, in Excerpt. Fuldens. upon I Aeneid.Grotius.
On which the antient Commentator says not one Word. So that our Author may have confounded the Comment with the Text.
[7. ]See Zechariah V. 1, 2, 3. and St. Chrysostom, De Statuis XV. interpreting that Passage. Grotius.
[8. ]Sat. XIII. v. 208.
[9. ]De Offic. Lib. III. Cap. XXIX.
[1 ]There is such another Story in the Metamorphoses of Antonius Liberalis, about Ctesylla and Hermochare.Grotius.
[2. ]In the very same Place,
And immediately after,
[4. ]Because Hippolytus thought the Nurse intended that some honest Action was to be concealed, he did not imagine that she meant Adultery and Incest. Grotius.
[1 ]De Offic. Lib. III. Cap. XXIX.
[2. ]Odyss. Lib. V. v. 188.
[3. ]St. Austin, Epist. CCXXIV. speaking of a Prisoner of War, who going upon his Parole out of the Carthaginian Camp, returned thither again immediately, and then went to Rome: Those who removed him from the Senate, did not so much regard what he intended when he swore, as what they, to whom he took the Oath, expected from him. See also what follows there. Look for what is very excellently said upon this Subject in the Council of Trosli, Concil. Tom. III. Edit. Sirmond. And in Hincmarus’s little Treatise De divortio Lotharii & Tethbergae, upon Interrog. VI. where, agreeably to his Opinion, it is very justly said of GOD,
In the Profession which the Jews in Spain make with an Oath, If you don’t do it with the same Intention as I declare to you, your Words were heard and understood by us to mean.Grotius.
[4. ]Quod enim ita juratum est, ut mens (deferentis) conciperet fieri oportere, id servandum est. De Offic. Lib. III. Cap. XXIX. But Cicero there speaks of the Intention of the Person swearing, not of the Manner how the Terms of the Oath are understood by the Person who requires or administers the Oath. The Word deferentis, which was in the common Editions in our Author’s Time, is not in the Manuscripts, nor in the best printed Copies. See my second Note on Pufendorf, B. IV. Chap. II. § 15.
[5. ]Hist. Lib. IV. Cap. XLI. Num. 2.
[6. ]Epist. CCXXIV.
[7. ]Lib. XI. De summo bono, Cap. XXXI. 1. It is quoted, Caus. XXII. Quaest. V. C. quacumque.Grotius.
[8. ]Donatus upon that Passage in the Fair Andrian,
Because if my Master puts me to swear whether I laid it there or no, I may do it with a safe Conscience. Liquido, that is, purè & manifestè, openly and plainly.Nicetas, in his Life of Alexius, blaming Andronicus Comnenus’s Deceit, says, Χρεὼν μὴ ὑπονοθεύειν, &c. We ought not to adulterate our Words, by giving them another Turn, but to speak them freely in the Acceptation such Expressions bear. And the same Author, in another Place, speaking of Alexius, who catched at Words contrary to their Design and Meaning, Τοɩ̂ς ῥήμασι τουτοις ἐγκαθίσας, ὡς ἁι μυɩ̂αι τῷ μώλωπι, Sticking on what was said, as Flies upon a Sore. The Court of Arcadius did very heinously offend against this Rule, which made a Person who had come to Constantinople, to be murdered at Chalcedon, tho’ they had upon their Oaths promised him Safety. Zozimus, Cap. V. Add to this what is below, Chap. XVI. § 2. Grotius.
[9. ]Appian, De Bell. Civil. Lib. I. p. 626. Edit. Toll. (368. H. Steph.)
[10. ]The Respect due to GOD certainly requires we should, as much as possible, avoid leaving any Thing to be understood in our Oaths; that other Men may have no Pretext for suspecting we are not very scrupulous in an Act of Religion like this. But, as our Author himself allows of certain Conditions, manifestly implied in the Nature of the Thing, Num. 5. there may be others, which, tho’ not so clearly connected with the Thing to which one swears, as considered in itself, shall be such, that there may be very good Reason to believe, that the Case in Question did not come into the Person’s Mind who swore, and that if he had thought of it he would not have sworn, why then should not such an Oath be void of itself, as well as a Promise made without an Oath? Our Author in this Place, and all along, reasons on a false Supposition, viz. that an Oath contains two distinct Obligations; and in some Measure changes the Nature of the Acts to which it is added; a Supposition destroyed in the Chapter of Pufendorf already quoted, which answers to this.
[11. ]Our Author thus explains himself on this Passage, in his Annotations, “We say improperly a Person deceives (ψέυδεται) when another mistakes, for Want of understanding of what is said. Thus the Prophet Ezekiel deceived Zedekiah, when he told him he should not see Babylon. The King imagined he should never be carried Prisoner to that City; but he was carried thither blind; and thus did not see Babylon, which was the Prophet’s Meaning.”
[12. ]See Jonah iv. 2. The Council of Toledo VIII. Cap. II. For to swear, in GOD, is upon no Account whatever to alter what he himself has decreed; but to repent, is to change what he has ordained, whenever he pleases.Gratian has put this in Caus. XXII. Quaest. IV. But pray explain it as in our Text. Grotius.
[13. ]See Seneca, Natur. Quaest. XI. 37. Grotius.
[14. ]Add Job xli. 1. Hosea ix. 2. Grotius.
[1 ]As Hippolytus, whom we spoke of just now; upon that of Sophocles in Oedipus Coloneus,
The Scholiast delivers himself thus, καὶ ἀυτοὶ οὐ νομίζουσι, And they think themselves no Ways to blame for receiving him, and promising him Safety, since they did not know before that he laboured under any domestick Guilt. And to this Purpose is that Passage,
For he himself was deceived when he swore. Grotius.
[2. ]See Pufendorf, § 7. of the Chapter already quoted, where he treats of an Oath.
[3. ]But see what I have said at large in Note 1 on the same Chapter.
[4. ]Yes, and if compared with the Reason subjoined to the Commaned of destroying them, Exod. xxiii. 33. Deut. vii. 4. For that Reason ceased in those who undertook to observe the Precepts of Noah’s Sons, and pay Tribute. So Maimonides and Samson Mi-cosi, and Moses de Kotzi, in Praecep. juben. XV. and XVIII. are of Opinion. Grotius.
[5. ]And by an Instance in the Inhabitants of Gezer, in the History of Joshua xvi. 10. And that the Gergesenes, or Gezerites, remained till our Saviour’s Days, appears from the Gospel, Matt. viii. 28. For these submitted at the very first, and therefore are not reckoned in the Catalogue of Enemies, Deut. xx. 17. Jos. ix. 1. Grotius.
[6. ]De Offic. III. Cap. X. Grotius.
[7. ]This Reason doth not hold good, for the Moment a Man is deceived in an Agreement, he is not guilty of Perfidiousness, if he doth not stand to what he had promised only on Supposition that he was not deceived.
[8. ]As were the Brutians formerly by the Romans.Gellius, X.3. Festus, in the Word Brutiani.Grotius.
[1 ]See what I have said on Pufendorf, B. IV. Chap. II. § 13. Notes 1, 2, &c.
[2. ]Josephus says, (Antiq. Jud. Lib. V. Cap. II.) οὔτε προτοεπομένων, οὔτε κωλυόντων. Neither encouraging them to it, nor forbidding them.Seneca, Excerp. VI. 2. He is obnoxious to the Law, who himself relieves an Exile; but not he who suffers him to be relieved.Symmachus says, Why does he endeavour to scare a religious Mind with unjust and causeless Fears, because he asserts that you ought to make a Conscience of granting what you cannot take away again without rendering yourselves odious. (Lib. X. Epist. LIV.) Grotius.
[3. ]Offic. Lib. III. Cap. XIV.
[4. ]Livy, Lib. XXXIX. Cap. XXXVII Num. 21.
[1 ]This Matter is handled very well by St. Ambrose, De Offic. I. and some other Authors, from whom Passages are inserted in Caus. XXII. Quaest. IV. And to the same Purpose is the seventh Canon of the Council of Ilerda, in Concil. Gall. Tom. III. and many Things in Hincmar’s Works. Grotius.
[2. ]De specialibus Legibus. (p. 771. Edit. Paris.) Grotius.
[3. ]He maintains, that Agamemnon ought not to have sacrificed Iphigenia, tho’ he had made a Vow to sacrifice to Diana, the most beautiful Thing his Kingdom should produce that Year, and nothing exceeded his Daughter in Beauty. De Offic. Lib. IV. Cap. XXV.
[4. ]It is in the Speech which that Historian makes Caius Claudius, Uncleto Appius, one of the Decemvirs, deliver in a full Senate. That Senator observes to the Decemvirs, that, supposing they were under a secret Obligation one to another, even by Oath, as perhaps they were, says he, not to resign their Office; they ought to consider, that such an Oath would be impious, as being contrary to the Liberty of the Citizens, and the Good of their Country; so that they would be so far from being guilty of Perjury, that they would do well in not standing to such an Engagement. For, he adds, the Gods are pleased with being called to witness just and honest Agreements, not such as are unjust and dishonest. Antiq. Rom. Lib. XI. Cap. XI. p. 662. Edit. Oxon.
[5. ]Hercul. Oet. v. 480, 481.
[6. ]Offic. Lib. I. Cap. I.
[7. ]De bono Conjugali, Cap. IV. This is cited in the aforesaid Question. See too Gailius, De pace publica, Lib. I. Cap. IV. § 16. and the Story of Albinus, in Paul Warnafred, Lib. XI. Cap. XXVI. Grotius.
[1 ]See Note 1. on Pufendorf, B. IV. Chap. II. § 10.
[2. ]Such an Oath was that of Honorius, who swore that he would never make Peace with Alaric, as Zozimus relates the Affair. See C. amongst several other Things in the above-mentioned Question, and the Council of Ilerda in Conc. Gall. Tom. III. Canon VII. and Hincmar too in the aforesaid Treatise, at Interrog. XIV. L. De divortio, at Interrog. VI. and XIV. Grotius.
[3. ]De specialib. Legib. p. 771.
[4. ]See Baba Kama, Cap. IX. § 10. and the learned Constantine’s Observations there. Grotius.
[5. ]See this more at large in our Author’s Notes on St. Matthew xv. 5. as also Selden, De Jure Nat. & Gent. secundum Hebraeos, Lib. VII. Cap. II.
[1 ]He is obliged so to do as he would have been by a Promise made without an Oath. See Chap. XI. of this Book, § 8. Num. 4. Thus when the Patriarch Abraham sent his first Servant to Charan, making him swear he would fetch a Wife for his Son Isaac from that Country, who should be one of his own Kindred, he says, that if he found no one, who would come with him, he should be free from his Oath, Gen. xxiv. 8.
[1 ]St. Ambrose, to the Emperor Valentinian, What is Swearing but an Acknowledgment of his divine Power, whom you appeal to as a Witness of your Faith and Sincerity. See an excellent Form of Chaganus Avaror. in Menander’s Excerp. Legat.Grotius.
[2. ]In their Treaty with the Albians, Lib. I. Cap. XXIV. Num. 8.
[3. ]In the Promise made by Hannibal to his Soldiers, for encouraging them, Lib. XXI. Cap. XLV. Num. 8.
[4. ]Festus, under the Word Lapis.Polybius, Lib. III. Cap. XXV. p. 251. Edit. Amst.
[1 ]De specialibus Legibus.Grotius.
[2. ]Eustathius on Iliad. Lib. I. ver. 234.
[3. ]Apollonius, speaking of Socrates, in Philostratus, VI. ὤμνυ τα̂υτα οὐχ’ ὡς θεοὺς, ἀλλ’ ἵνα μὴ θεοὺς ὤγνυ. He swore by these Things, not as Gods, but that he might not swear by the Gods.Grotius.
[4. ]In his Treatise De abstinentiâ Animal. where he says Rhadamanthus made a Law, ordering the Cretans to swear by Animals, Lib. III. p. 285, 286. Edit. Lugd. 1620. But the superstitious Philosopher attributes all this to the Respect which was paid, and which, according to him, ought to be paid to Animals; not to any Motive of reverencing the Divinity by swearing by other Things, to avoid using the Name of GOD too freely.
[5. ]In the Comedy of the Birds; where, on the Authority of Sosicrates, (not Socrates) an antient Writer of the History of Crete, he says, that Rhadamanthus, was the first who forbid swearing by the Gods; and ordered that his Subjects should swear by a Goose, a Dog, or a Ram, and such like Animals. On ver. 521.
[6. ]Add 2 Kings iv. 30. Cant. ii. 7. Grotius.
[7. ]Ovid says this of Agamemnon, who swore he had taken no Liberties with Briseis, a young Captive whom he had taken from Achilles, Remed. Amoris. ver. 783, 784. This Oath is in Homer, Iliad. XIX. ver. 258, &c. But Agamemnon there swears by Jupiter, the Earth, the Sun, and the Furies; not by his Scepter.
[8. ]So does Gratian think, Caus. XXII. Quaest. I. Grotius.
[9. ]For this he quotes Theophrastus, who, in his Treatise Of Laws, not now extant, said it was forbidden by the Tyrian Laws, to use the Forms of Oaths established in other Nations, and among others that called Corban. From which Josephus concludes that his Nation, and its Customs, were not unknown to other People, since that Sort of Oath was used only by the Jews, Lib. I. p. 1046, 1047.
[10. ]But the Grammarians derive this from the Carians, a People of the Lesser Asia, whom Homer calls Βαρβαροϕώνους, Iliad. II. v. 867. See Erasmus’s Adagia, under the Proverb Carica Musa. This Etymology is, at least, more plausible than that of our Author. The Grecians were not sufficiently acquainted with the Jews, to take from any Sort of Oath used by them, a Name to signify all the Eastern Nations. Besides, the Word Κάρβανοι, is found in Aeschylus, a Greek Author, who wrote long before the Vow called Corban was introduced; for we find no Mention of this Sort of Vow made in the sacred Writers. It is an Invention of later Ages, when the Doctors had several Ways corrupted the Doctrine of Moses.
[11. ]In two different Places which Gronovius quotes. One is in the Tragedy of Agamemnon,
Ver. 1070. p. 208. Edit. H. Steph. The other in the Suppliants,
Ver. 124. p. 312. which the Scholiast explains thus, Νοεɩ̂ς καὶ τὴν βάρβαρον ϕωνήν. You understand that barbarous Word.
[12. ]I know not in what Part of Euripides our Author found this Word. I doubt whether that Poet has used it at all. It does not appear in Mr. Barnes’s Index, who, I think, would not have omitted a Word which occurs so seldom. Nor do I believe it is in Sophocles. It is very possible that our Author, trusting to his Memory, has confounded what he had read in Lycophron, from whom a Passage is quoted, where he uses that Word.
[13. ]Apolog. Cap. XXXII. XII.
[1 ]Wisdom, Chap. XIV. Οὐ γὰρ ἡ τω̂ν ὀμνυμένων δύναμις, ἀλλ’ ἡ τω̂ν ἁμαρτανόντων δίκη ἐπεξέρχεται, ἀεὶ τὴν τω̂ν ἀδίκων παράβασιν. Which the Latin Translator turns thus, Non enim Juratorum virtus, sed Peccantium poena perambulat semper Injustorum praevaricationem. It is not the Power of them they swear by, but the Vengeance which constantly pursues Sinners, that always haunts and attends the Frauds and Collusion of the unjust and perjured. Grotius.
[2. ]Our Author, in a Note on the apocryphal Book last quoted, applies this to a Passage of Seneca, quoted Chap. XX. of this Book, § 51. Note 6.
[3. ]In his Commentary on the Title of the Digest. De Jurejurando. But Ziegler here justly observes that our Author has mistaken the Sense of that learned Lawyer, who only allows of tendering an Oath to a Turk, for Example, tho’ it is well known he will swear by Mahomet. See Duaren’s first Treatise, De Jurejurando, Cap. XI. Tom. I. Opp. Edit. Lugd. 1579. p. 235, and the other Treatise on the same Subject, Cap. IV. Tom. II p. 11. As to the Question itself, consult what I have said on Pufendorf, B. IV. Chap. II. § 4. Note 2. second Edition.
[4. ]Sermon XXVIII. De verbis Apostoli; it is quoted, C. Ecce dico, Caus. XXII. Quaest. V. Grotius.
[1 ]De Legis. Allegor. Lib. II. p. 99. Edit Paris.
[2. ]Procopius Persic. Ὅρκους ὁ τω̂ν ἐν ἀνθρώποις, &c. An Oath, which is looked upon by all Mankind to be the last and strongest Pledge of mutual Faith and Veracity. Grotius.
[3. ]Antiq. Rom. Lib. VI. Cap. LXXXIV. p. 319. Edit. Oxon. (406. Sylburg.)
[4. ]Diodore of Sicily, Bibliothec. Lib. I. Cap. LXXVII. p. 49. Edit. H. Steph.
[5. ]The Passage of Chrysippus is preserved by Stobaeus, Serm. XXVIII. p. 196. Edit. Genev. 1609. Our Author has quoted and explained it, in his Notes on St. Matthew v. 33. But this is at the Bottom no more than a Dispute about Words, of which Sort we have a great Deal in Stoick Philosophy.
[6. ]This false Swearing is forbidden. Exod. xx. 11. And the Perjury, Levit. xix. 12. as the Hebrews assert, praecep. jubent. CCXL. Grotius.
[1 ]St. Austin, in his 224th and 225th Epistles, tells us, that an Oath, tho’ we were drawn into it by Force, ought in Reverence to GOD to be kept. Grotius.
[2. ]See Jeremiah xxxix. 5. Ezekiel xvii. 12, 13, 15. Grotius.
[3. ]This Example is of no Service toward establishing our Author’s Hypothesis. For, first, according to his own Principles, every Treaty made with a Conqueror, even without an Oath, is valid by the Law of Nations, how unjust soever the Fear was by which the Person was obliged to make it. See B. III. Chap. XIX. § 11. So that the Oath which bound the Treaty between King Zedekiah and Nebuchadnezzar, would only have rendred the Violation of that Treaty more criminal. Secondly, Zedekiah probably designed to swear truly, and considered the Treaty as good and valid; as he would have done that which he might have extorted, by the Superiority of his Arms, from a People on whom he had no more Right to make War, than the King of Babylon had to fall on his Dominions. So that no Consequence can be drawn from thence, against such as have no Design of Swearing truly, and do not think themselves obliged to stand to an Agreement where Force is employed. Thirdly, GOD had declared to Zedekiah, by his Prophets, that he required that Prince should religiously stand to what he had promised the King of Babylon; against whom he could not rebel without the highest Imprudence.
[4. ]That Tribune having accused Lucius Manlius of holding the Dictatorship beyond the Time prescribed by the Laws, the Dictator’s Son, afterwards surnamed Torquatus, went to Pomponius, and finding him alone, swore he would kill him if he would not promise on Oath, not to molest his Father. Whereupon Pomponius desisted; to which the People consented, as soon as they knew his Reason. De Offic. Lib. III. Cap. XXXI. See Livy, Lib. VII. Cap. V. and Polybius, Lib. VI. Cap. LVI.
[5. ]But our Author himself elsewhere maintains, that such Promises are valid in their own Nature, and independently of an Oath, B. III. Chap. XXIII. § 6.
[6. ]Those ten Prisoners who returned to Hannibal’s Camp for one Moment, under Pretence of having forgot something, thereby committed a Fraud, which would have rendered them guilty of a Violation of Fidelity, even though they had not sworn. See B. III. Chap. XXIII. § 13.
[1 ]Gregoras, εἰς θεὸν ἡ ἐπιορκία τὸ τη̂ς περιϕρονήσεως ἀνατίθησιν ἔγκλημα. Perjury charges GOD with Negligence.Grotius.
[2. ]De Offic. Lib. III. Cap. XXIX.
[3. ]De Offic. Lib. III. Cap. VI.
[4. ]De Bell. Civil. Lib. II. p. 838. Edit. Amst. (515. H. Steph.)
[5. ]Plutarch, in his Lysander, ὁ ὅρκω παρακρουόμενος, &c. He who deceives his Enemy by an Oath, confesses that he fears him, but despises GOD.Grotius.
[6. ]It is called so only improperly. For there is in Reality a wide Difference between a Vow and an Oath. See Pufendorf, B. IV. Chap. II. § 8. Votum fit Deo; Juramentum per Deum, says our Author himself, in his Notes on Numbers xxx. 3.
[7. ]Digest. Lib. XVI. Tit. III. Depositi, &c. Leg. XXXI. § 1. And to an Usurper too, as the Prienenses did to Orofernes.Polybius and Diodorus Siculus, in Excerpt. Peires.Grotius.
[8. ]In that Case, and others of the same Kind, we do not deal with a Thief considered as such, and as using Extortion; but as with any other Person. We renounce our Right to taking an Advantage of the infamous Character of such a Contractor.
[9. ]Lessius is quoted for this Opinion, Lib. II. De Justitiâ & Jure, Cap. XLII. Num. 27.
[10. ]This is the Fact mentioned at the Close of the preceding Paragraph. Livy gives us the following Account of it. One of them, (the Captives) returned home, imagining he had satisfied his Oath by returning privately. As soon as the Thing was known, it was laid before the Senate; who unanimously voted he should be seized, put under a Guard, and carried back to Hannibal. Lib. XXII. Cap. LXI. Num. 4. See Aulus Gellius, Noct. Attic. Lib. VII. Cap. XVIII.
[1 ]In Cicero, De Offic. Lib. III. Cap. XXVIII.
[2. ]C. pervenit. III. de jure jurando. Add L. lege fundo, in fine D. de legecommissoria.Grotius.
[3. ]De Bell. Punic. Lib. VI. v. 63, 64.
[4. ]This is grounded only on the false Supposition of two distinct Obligations in Promises made by an Oath. The Truth is, the Moment it appears there is a real Inequality, to which Consent was not given, the Oath falls of itself. See Pufendorf, in the Chapter often quoted, § 11.
[5. ]Psal. xv. 4. Our Author, in his Note on this Text, gives a different Explication of the Word, which he here renders Tho’ it were to his own Detriment. Having observed, that the Vulgate Latin has followed the LXXII. Interpreters, who read as if the original Word had been עלרה, To his Neighbour, instead of להרע, he only says, others translate, He who hath sworn to afflict himself, (that is, has made a Vow to fast) and doth not fail to keep his Vow. But if we follow the common Translation, Tho’ it were to his own Detriment, there is no Necessity of understanding this as spoken of Promises bound by an Oath, in which there is an Inequality sufficient of itself to render them null. It is well known that several Persons are tempted to break their Word, even tho’ given under Oath, when they cannot keep it, without suffering some Inconvenience or Loss, which they did not foresee, tho’ it be not such as forms a reasonable Exception to the Obligation contracted. He, who resists such a Temptation, may be justly called a good Man, such as the Psalmist describes.
[1 ]See Pufendorf, in the Chapter answering to this, § 17. with the Notes in the second Edition.
[1 ]Plautus, in his Ruden, I beg that you would discharge him from his Oath. (Act. V. Scen. III. v. 58, 59.) Grotius.
[2. ]See to the same Purpose in L. Si duas, § Gentium, D. de excusat. tut. and in Gaillius, II. Obs. CXLIV. Num. 8. and de Arrestis, X. 9. and in Azorius’s Moral Institutions, V. 22. Qu. 6. Part 1. Grotius.
[3. ]De Bello Civil. Lib. II. Cap. XXXII.
[1 ]That is, if a Person has only sworn not to do a certain Thing, as not to marry; or to give somewhat, without actually transferring his Right to it. See Pufendorf, B. IV. Chap. II. § 11.
[2. ]As when we give or mortgage a Thing to a Person, which was before given, or mortgaged, to another, by an Act, accompanied with an Oath, Mr. Vitriarius, in his Institut. Juris Nat. & Gent. Lib. II. Cap. XIII. § 28. brings the Example of a Prince, who, making a Treaty of Alliance with another, has sworn to conclude no such Treaty with any Person whatever, and afterwards should enter into an Alliance with a third.
[1 ]St. Augustin, Epist. CCXL. and CCXLI. Grotius.
[2. ]De Benefic. Lib. IV. Cap. XXXV. On this Question see Pufendorf’s Law of Nature and Nations, B. IV. Chap. II. § 24. and what I have said on the Abridgment of The Duties of a Man and a Citizen, B. I. Chap. XI. § 6. Note 3. in the third and fourth Editions.
[3. ]Suetonius, in his Tiberius, XXV. And so it was in Spain for a great While, as is observed by Ferdinand Vasques, de Success. creat. Lib. II. Sect. 18. Grotius.
[4. ]See Note 3. on Pufendorf, B. IV. Chap. II. § 24. It is on popish Principles that some Protestant Doctors, even at this Day, pretend, that if Princes have a Power to dispense with the Oaths of their Subjects, they have it not as Princes, but as invested with the Right of Bishops; as Mr. Bohmer observes, in his Jus Ecclesiasticum Protestantium, Lib. II. Tit. II. § 30. See also what he says, Tit. XXIV. § 23, &c. concerning other Things, in which the Protestants in this Case imprudently follow the Principles of the Canon Law.
[5. ]If he had acquired no Right, the Oath is void of itself; so that there is no Need of a Dispensation.
[6. ]A Criminal, for Example, is assured of something on Oath; a young Woman has promised to marry him. The Sovereign may deprive that Criminal of a Right of claiming such a Promise, tho’ bound with an Oath.
[7. ]A Man, for Instance, has sworn to pay another in such a Time, a Sum that he owes him. It happens that the State has Occasion to employ the Debtor in the Wars, or some other Way; and that he could not be useful to the State, were he obliged to pay his Debt at the Time fixed. In such Case the State deprives the Creditor of his Right to demand the Payment.
[8. ]The Sovereign of him who has sworn, not being able directly to deprive the Person in whose Favour the Oath was taken, and who does not depend on him, of the Right he has thereby acquired, may, for good Reasons, discharge his own Subject from his Oath. And the other has no Reason to complain, when the Discharge is granted for just Reasons; because he knew, or ought to have known, that the Person who has sworn, could oblige himself only as far as his Sovereign should think proper, in such Things as are subject to his Direction. On the contrary, the Sovereign of him to whom the Oath was taken, cannot discharge him who took it, and whom we suppose not to depend on him. But he may deprive his own Subject of the Right which he had acquired by such an Oath; which, in the Main, comes to the same as if he who swore was discharged from his Oath.
[9. ]He has no Need of it; since the Oath is null of itself.
[10. ]This Reason is good, when there is nothing that can hinder a Man from contracting a real Obligation by Swearing. But when the Engagement is null, the Words of the Oath ought to have no Effect.
[11. ]See Pufendorf, B. V. Chap. XI. § 6.
[12. ]Our Author here seems to follow the common Opinion, grounded on a Law of the Code, Lib. II. Tit. XXVIII. Si adversus venditionem, Leg. I. where the Emperor Alexander Severus refuses the Benefit of Restitution in Integre, to a Minor, engaged in the Army, on Account of the Oath by which he had confirmed a Sale, made to his own Prejudice. But that Law contains only a Rescript in Regard to a particular Case; nor doth it speak of all Sorts of Oaths, but of an Oath taken in Person (Juramentum corporaliter praestitum. See Pufendorf, B. IV. Chap. II. § 16.) which was considered as having more Force than one taken by Writing or by Proxy, &c. There might likewise be some particular Circumstances in that Case, either in Regard to the Person pretending to be injured, or in Regard to the Injury itself which determined the Emperor to make the Oath stand good, without designing to establish a general Rule, contrary to the Civil Law, according to which an Oath has no more Force than a single Contract. But Martin, a scholastick Lawyer, mistaking the Sense of this Rescript, persuaded the Emperor Frederick II. to join to it a Constitution, which extended this Exception of an Oath to all Contracts in general, made by Minors, at the Age of Puberty, as Mr. Schulting very well observes, Enar. partisprimae Digest. in Tit. De Minoribus, &c. § 3. See also Cujas, on the Title of the Code, under which this Rescript appears, and Pufendorf, as above quoted, § 11. All this is derived from the Authority of the Canon Law, which, without having any Regard to the Civil Laws, by which an Act is declared null, teaches that the Oath joined to it, renders it valid, of what Nature soever it be. See Note 3. on Pufendorf, B. IV. Chap. II. § 19. Second Edition, and Mr. Bohmer’s Jus Ecclesiasticum, Lib. II. Tit. XXIV. § 23, &c.
[1 ]Rom. i. 9. ix. 1. 2 Cor. i. 23. xi. 31. Phil. i. 8. 1 Thess. ii. 5. 1 Tim. ii. 7. Grotius.
[2. ]Virgil, Eclog. VII. v. 70.
[3. ]Our Author has quoted this Example, either from Aquila Romanus, an antient Rhetorician, who gives it in the very Words here set down, p. 19. Antiq. Rhet. Lat. Edit. Pithaei. or from Martianus Capella, p. 174.
[4. ]Words used in replying to a Stipulation. See Digest. Lib. XXXII. De Legatis & Fideicomm. III. Leg. XXXIX. § 1. and Lib. XLV. Tit. I. De verborum obligat. Leg. I. § 2.
[5. ]See Buxtorf’s Florilegium Hebraicum, p. 329.
[6. ]You had better in this Passage of Festus write it οὐκὶ, as it is often in Homer, for this comes nearer the Word Nauci.Grotius.
[7. ]De Decalogo.Grotius.
[8. ]De specialibus legibus.Grotius.
[9. ]Antiq. Jud. Lib. II. Cap. VII.
[10. ]For Hermippus, the Pythagorean, as Origen against Celsus (Lib. I.) asserts, said that Pythagoras’s Philosophy was derived from the Jews. And both Josephus and Jamblichus the Pythagorean have ascribed it to the Hebrews.Grotius.
[11. ]Diogenes Laertius, Lib. VIII. §22.
[12. ]Philo, Ἤδη γὰρ ὅτε ὀμνὺς, &c. For he who is put to his Oath, is suspected of being false to his Word. (De Decalog.) In Sophocles’s Oedip. Colon. Oedipus has expressed himself thus,
M. Antonin, in his Description of a good Man; Μήτε ὅρκου δέρμενος, One who has no Occasion to swear, (Lib. III.§ 5.) St. Chrysostom, De Statuis. XV. Εἰ μὲν πιστεύεις, &c. If you believe that he is an honest Fellow, do not lay him under the Necessity of an Oath; and if you know he is a Rogue, do not force him to be perjured.Grotius.
[13. ][[Footnote number missing in text, supplied from Latin edition. Lib. VII. Cap. VIII. Num. 28.]]
[14. ]Diogenes Laertius, Lib. I. § 60.
[15. ]Stromat. Lib. VII. Cap. VIII. p. 861. Edit. Potter.
[16. ]St. Chrysostom very well animadverts upon this, in his twelfth De Statuis, Ὅτι κᾀν μὴ συναρπασθεɩ̂ς μηδὲ ἄκων, &c. Tho’ you did it without Compulsion, Passion, or Inconsiderateness, yet sometimes from the very Nature of the Thing will you be forced, with your Consent and Knowledge, to forswear yourself. And presently after, Σϕαλερὸν μὲν οὐν, &c. It is dangerous for a Man even to swear to what relates to himself. For we are often in Circumstances, wherein we are forced to do what we would not, or unable to do what we would.Grotius.
[1 ]This is mentioned by Eustathius, upon the 24th Odyss.Aristophanes’s Scholiast, ad Nubes, (v. 81.) Crantzius, Saxon. XI. 27. In C. Ad Aures de his quae vi metúsve causâ aequantur Juramentum & Fides interposita.Grotius.
[2. ][[Footnote number missing in text, supplied from Latin edition. Diodorus Siculus, Biblioth. Histor. Lib. XVI. Cap. XLIII. p. 533. Edit. H. Steph. As to the Persians, see the President Brisson, De Regno Persico, p. 107, &c. and Lib. II. p. 270. Edit. Sylburg. Another still more remarkable Passage might have been quoted from the Scholiast on Aristophanes. The Poet, in his Acharnenses, v. 307. makes the Chorus say, that the Lacedemonians keep neither Altars, Faith, nor Oath sacred. Whereupon the Scholiast says, that Treaties and Alliances were made in three different Manners; by Words, by Actions, and by the Hands. By Words, As when the Parties were sworn. By Actions, When Sacrifices were offered. By the Hands, when the Contractors joined their right Hands, which was called Giving their Faith. After which he quotes a Passage from Homer, (Iliad. Lib. II. v. 341.) Nothing is more common among the Antients than the Custom under Consideration; and several modern Writers have quoted great Numbers of Passages on the Subject. Among others, see Everhard Feithius, Antiq. Homeric. Lib. IV. Cap. XVII. Martin Kempius, De Osculis, Dissert. XVII. § 2. with our Author’s Notes on Zachary xiv. 13. Tobit vii. 16.]]
[3. ]Thus in Holland, where there are Mennonites, who, misunderstanding some Passages of the New Testament, think the Use of an Oath absolutely prohibited by the Gospel, the Magistrates require of that Sect only a bare Affirmation, which in Regard of them is as Binding as an Oath, and subjects them to the Penalties inflicted for Perjury, if they lie or falsify their Faith. See Mr. Huber’s Praelect. Jur. Civil. Tom. II. in Tit. De Jurejurando, p. 335. Edit. Thomas.
[4. ]Isocrates speaking of Evagoras, King of Salamis, Ὁμοίως τὰς, &c. He kept his Word and Promise as religiously as his Oaths.Symmachus, X.19. Nothing is more to be depended on, than the Promises of Princes. And Nicetas of Alexius, Brother of Isaac, Lib. III. Βασιλεν̂σι παρὰ πα̂ν, &c. Kings ought above any other Consideration to have the greatest Regard to the punctual Discharge of their Oaths.Cicero, for Cornelius Balbus, They say at Athens, that when one of their People, who was a Man of known Probity, had given in his publick Evidence, and (as it is a Custom among the Greeks ) was coming to the Altar to confirm it upon his Oath, all the Judges unanimously cried out, that he should not swear.Grotius.
[5. ]This is related by Plutarch, Eumenes, being sollicited to abandon Perdiccas, replied he would sooner lose his Life than violate his Promise to that General. Vit. Eumen. Tom. I. p. 585. Edit. Wech.
[6. ]Lib. III. ver. 510, &c. where the Poet puts these Words in the Mouth of Frederick Barbarossa.
[7. ]Politic. Lib. III. Cap. XIV. p. 357. Tom. II. Edit. Paris.