A37049:564
A37049:564
London: printed for Dorman Newman, 1675
Modern spelling is a reading aid: the words are the author’s, only the spelling is modernized. Original shows the page as printed, with the transcription marks.
By what is said, then; We may, 1. Condemn Oaths in Trivial things, as Oaths in Complements; when men swear ⟨p. 134⟩they will not go one before an other. That men are welcome to their Houses: That they will not let them go so soon: That they shall drink so much, though it may not be to Excess: That they shall return some petty thing they have borrowed, and the like. 2. Rash Promises, such as are hastily and unadvisedly or doubtingly made. But ere we come to Particulars; let us consider what is condemned as Perjury, which is the Highest Degree.
By what is said, then; We may, 1. Condemn Oaths in Trivial things, as Oaths in Complements; when men swear ⟨p. 134⟩they will not go one before an other. That men are wellcome to their Houses: That they will not let them go so soon: That they shall drink so much, though it may not be to Excess: That they shall return some petty thing they have borrowed, and the like. 2. Rash Promises, such as are hastily and unadvisedly or doubtingly made. But ere we come to Particulars; let us consider what is condemned as Perjury, which is the Highest Degree.
There are these several sorts of Perjury mentioned; some whereof are more direct and immediate; some more mediate and indirect.
The first sort of Perjury is: When one upon Oath asserteth as a Truth, that which he knoweth is not a Truth, or doubteth of it; or is mistaken in it, through his own negligence, not being certain that it is as he sayeth, whether he affirm or deny: Thus Naboths false Witnesses were guilty; and many other Instances may be adduced.
The Second is: When one promiseth some-thing, which he mindeth not to perform, and confirmeth that with an Oath; he is no doubt •er •ured, because there is not a correspondent verity betwixt his Oath and his Purpose.
The Third is: When men promise and intend for the Time to perform; yet, upon no just Ground, fail afterwards in performing what they have sworn. This is Perjury, because there is not Truth in fulfilling the thing sworn, according to the Oath. These are direct Perjuries.
More largely again, a man may be said to forswear himself. 1. When he sweareth to perform a thing, which is simply, impossibly; especially while he knoweth it to be so: For as the former is not a swearing in Judgement and Truth; so this is a profane and wicked swearing, against Light and Judgement, of a manifest Lye and Falsehood: So that betwixt his Promise to perform such a thing, and the performance, there is implied a Contradiction▪ As for one to swear, to be to Morrow at Rome, who is to day at Glasgow; the very swearing is forswearing. 2. When one sweareth an Unlawful or Wicked thing, or confirmeth it with an Oath; like those Forty that swore to kill Paul; especially if that oath be contrary to some Duty which lieth formerly by Oath on the Person swearing: For, that is ⟨p. 135⟩not to swear in Righteousness and Justic •: Beside, that it draweth on a necessity, either of breaking that Oath, and so of being perjured, or of going on to fulfil it; and so of being doubly perjured▪ 3. Men are Forsworn and Perjured, when they fulfil a Wicked Oath; as Herod did, Mat. 14▪ in beheading John the Baptist; for, though he seemed not to over-turn, and make void his own Oath, but to keep it: Yet this (as also the former) over turneth and maketh void, the Scope and Nature of an Oath in General, and is a plain Contradiction to it, and maketh an Oath, which should be Vinculu • Aequitatis, a Bond of Equity: (there being Nulla Obligatio, But ad Officium, no Obligation but to Duty,) to be Vinculum Iniquitatis, a Bond of Iniquity: And so thwarteth with the very end wherefore such Oath's are appointed; In which respect David did better in not Executing his Rash Oath, but keeping the General Scope of all Oaths, when he refused not to hearken to Abigail's Counsel, even to the Non-performance of what he had sworn.
More largely again, a man may be said to forswear himself. 1. When he sweareth to perform a thing, which is simply, impossibly; especially while he knoweth it to be so: For as the former is not a swearing in Judgement and Truth; so this is a prophane and wicked swearing, against Light and Judgement, of a manifest Lye and Falshood: So that betwixt his Promise to perform such a thing, and the performance, there is implyed a Contradiction As for one to swear, to be to Morrow at Rome, who is to day at Glasgow; the very swearing is forswearing. 2. When one sweareth an Unlawful or Wicked thing, or confirmeth it with an Oath; like those Forty that swore to kill Paul; especially if that oath be contrary to some Duty which lyeth formerly by Oath on the Person swearing: For, that is
It may be Questioned here, Whether one man may be accessary to another's Perjury, if he constrain him to swear, of whom he hath a suspicion that he will forswear?
It may be Questioned here, Whether one man may be accessary to anothers Perjury, if he constrain him to swear, of whom he hath a suspition that he will forswear?
Answ. Distinguish 1. The matter in which, if it be of Grave Concernment, or of little Moment. 2, Distinguish, betwixt the Publicness and Privacy of it. 3. Distinguish betwixt Parties; as betwixt a Judge, who is to decide, and a Party that is the Pursuer.
Answ. Distinguish 1. The matter in which, if it be of Grave Concernment, or of little Moment. 2, Distinguish, betwixt the Publickness and Privacy of it. 3. Distinguish betwixt Parties; as betwixt a Judge, who is to decide, and a Party that is the Pursuer.
We say then. 1. A Party pursuing, in a Particular of his own Concernment; especially if it be of no great Concernment; may, Yea, should forbear pressing such a Person to swear, both for sparing the Party, and for respect to the Name of God; since he can hardly, in this Case, be very hopeful to gain by it.
2. We say, (notwithstanding in some Cases,) that the Judg may admit such to swear, especially in Public Scandals. 1. Because none can certainly know, but God may constrain them to swear Truth. 2. Because it is his way, left to decide all Controversies; and a Judge cannot eschew it, when it lieth on him to put a close to such a Controversy, at which he cannot win by any other means; though great Prudence is to be used in proceeding ⟨p. 136⟩in such a case, especially it being of that Nature as is in Scripture appointed to be decided by Oath, as Exod. 22.17.
2. We say, (notwithstanding in some Cases,) that the Judg may admit such to swear, especially in Publick Scandals. 1. Because none can certainly know, but God may constrain them to swear Truth. 2. Because it is his way, left to decide all Controversies; and a Judge cannot eschew it, when it lyeth on him to put a close to such a Controversie, at which he cannot win by any other means; though great Prudence is to be used in proceeding ⟨p. 136⟩in such a case, especially it being of that Nature as is in Scripture appointed to be decided by Oath, as Exod. 22.17.
The great question is concerning a promissory Oath, if in any case it may be made void, and cease to oblige, or, in what cases that may be?
That every Oath bindeth not according to the Letter, we suppose needeth no reasons to clear and confirm it: There are two ways in general how the obligation of an Oath promissory ceaseth. 1. When the Oath it self is null, and never had any obligation. 2. When by some other thing intervening, there is a loosing from the obligation which the Oath once had.
That it may be clear that, notwithstanding of this, Oaths are of a most strict Obligation, having the great and dreadful Name of God interposed in them; and that many things, what-ever weight be laid on them by men that way, do not loose from it, such as these following which we shall put by, in the first place.
That it may be clear that, notwithstanding of this, Oaths are of a most strict Obligation, having the great and dreadful Name of God interposed in them; and that many things, what-ever weight be layed on them by men that way, do not loose from it, such as these following which we shall put by, in the first place.
1. No mans temporal loss in Goods, Name, or Estate, will loose him from his Oath, nor make it null and void, Psal. 15. ult 12. that our engagement by Oath is to something of its own nature indifferent, will not loose us, though there be here no other tie upon us to the thing, and that without the Oath we were free; yet the Oath once engaged in, will tie us, as is clear from that same 15th. Psal. For an Oath is of its own nature Obligatory, and according to Numb. 31. Persons at their own dispose must do even in such cases as they have bound their Souls. 3. Though we were engaged in the Oath by the deceit and guile of others, the deceit being circumstantial only, yet if the thing be not sinful, it bindeth us, as is clear in that Oath to the Gibeonites, wherein the deceit was such. 4. Though by fear or violence the Oath hath been extorted, yet the matter being lawful, it bindeth because of the honour of God's Name interposed. 5. Though it was sinful as to the manner, and rashly made at first, as that with the Gibeonites was; yet is it binding, if lawful in the matter, there being a great difference betwixt juramentum illicitum, an Oath unlawfully come under as to its manner, and juramentum de Re illicitâ, an Oath in an unlawful matter. 6. Though we could devise and find out some interpretation ⟨p. 137⟩or meaning of the words of the Oath that might seem to make for loosing us from its obligation; yet, if that was not meant at the first tendering of the Oath, but otherwise understood by him that did take it, it will not absolve nor excuse from the guilt of Perjury, To put afterwards a new gloss on it; because an Oath is stricti juris, and will not admit for any respect nor on any account, of interpretations prejudicial to the native truth of it, lest it should be found to be, according to Psal. 24. a Swearing deceitfully. 7. Though there may be a good meaning and intention in reversing the Oath, and going cross to it, men not doing so for a particular end of their own, but for a public good as is supposed; yet that will not absolve from the obligation of the Oath, nor from the guilt of Perjury, as is clear in God's punishing Saul's Family for breaking that Oath with the Gibeonites, even though he did it out of his Zeal to the Children of Israel and Judah, as the Scripture expressly affirmeth,
Though the Oath be conceived by a Creature, as at least the immediate object of it, and so sinfully made in that respect; yet, being made, it tieth from respect due to God, who shineth in his Creatures, Math. 23.19, 20, 21. 9. Though the thing become impossible, if that impossibility might have been prevented by our searching our selves as far as in us lay, we are not freed from the guilt of Perjury, though the thing Sworn do now by our own slothfulness become impossible; or if the thing Sworn might have been performed before any such impossibility came on; or if we might have prevented it by our suitable circumspection and diligence. 10. Though a sinful Oath, to wit, being made on a sinful promise, in it self, bind not; yet the sinful condition being fulfilled it bindeth; as in the case of Judah, his promising a Kid to Tamar, upon that wretched condition of prostituting her self to his sinful Lust, who did offer the performance of what he had engaged to, upon that most sinful condition now fulfilled; for the condition being fulfilled, the promise is absolute, and the sin was not in giving the Kid, but in the condition that was made, which is past. 11. Much less will it exempt any man from the guilt of Perjury, that in Swearing he had a meaning of the words of the Oath, contrary to what in common sense they bear, & in the construction of all indifferent persons, or to their ⟨p. 138⟩meaning sine juramento, or extra juramentum; or that he had any reservation in his own mind; the first is, Equivocation; the second is mental Reservation, that have no place in such an Oath which should be plain, single, and clear. Neither 1 •. will a dispensation from any other, as for instance, from the Pope, who hath no power to dispense in Oaths, nor from lawful Superiors, except it be in things wherein by our relation to such Superiors we are subjected to them, loose the obligation of our Oath, nor free us from the guilt of Perjury; if, I say, the matter of the Oath be in things to which their power over us doth not extend, in such things doubtless they cannot dispense. 13. The obligation of an Oath cannot be loosed, nor the guilt of Perjury evited by commutation of the thing sworn, for it must be according to what has proceeded out of our mouth, Numb. 30.2.
for thereby the prior or former Oath is not made null, but the posterior or latter is made null by the former, for juramentum non derogat juri alieno, because God is party, and we cannot reverse an obligation to him which He or other hath by a prior right and tie.
for thereby the prior or former Oath is not made null, but the posterior or latter is made null by the former, for juramentum non derogat juri alieno, because God is party, and we cannot reverse an obligation to him which Hee or other hath by a prior right and tye.
1. No mans temporal loss in Goods, Name, or Estate, will loose him from his Oath, nor make it null and voyd, Psal. 15. ult 12. that our ingagement by Oath is to somthing of its own nature indifferent, will not loose us, though there be here no other tye upon us to the thing, and that without the Oath we were free; yet the Oath once engaged in, will tye us, as is clear from that same 15th. Psal. For an Oath is of its own nature Obligatory, and according to Numb. 31. Persons at their own dispose must do even in such cases as they have bound their Souls. 3. Though we were engaged in the Oath by the deceit and guile of others, the deceit being circumstantial only, yet if the thing be not sinful, it bindeth us, as is clear in that Oath to the Gibeonites, wherein the deceit was such. 4. Though by fear or violence the Oath hath been extorted, yet the matter being lawful, it bindeth because of the honour of God's Name interposed. 5. Though it was sinful as to the manner, and rashly made at first, as that with the Gibeonites was; yet is it binding, if lawful in the matter, there being a great difference betwixt juramentum illicitum, an Oath unlawfully come under as to its manner, and juramentum de Re illicitâ, an Oath in an unlawful matter. 6. Though we could devise and find out some interpretation ⟨p. 137⟩or meaning of the words of the Oath that might seem to make for loosing us from its obligation; yet, if that was not meaned at the first tendering of the Oath, but otherwise understood by him that did take it, it will not absolve nor excuse from the guilt of Perjury, To put afterwards a new gloss on it; because an Oath is stricti juris, and will not admit for any respect nor on any account, of interpretations prejudicial to the native truth of it, lest it should be found to be, according to Psal. 24. a Swearing deceitfully. 7. Though there may be a good meaning and intention in reversing the Oath, and going cross to it, men not doing so for a particular end of their own, but for a publick good as is supposed; yet that will not absolve from the obligation of the Oath, nor from the guilt of Perjury, as is clear in God's punishing Saul's Family for breaking that Oath with the Gibeonits, even though he did it out of his Zeal to the Children of Israel and Judah, as the Scripture expresly affirmeth, 2 Sam. 21.2. 8.
Though the Oath be conceived by a Creature, as at least the immediate object of it, and so sinfully made in that respect; yet, being made, it tyeth from respect due to God, who shineth in his Creatures, Math. 23.19, 20, 21. 9. Though the thing become impossible, if that impossibility might have been prevented by our searching our selves as far as in us lay, we are not freed from the guilt of Perjury, though the thing Sworn do now by our own sloathfulness become impossible; or if the thing Sworn might have been performed before any such impossibility came on; or if we might have prevented it by our sutable circumspection and diligence. 10. Though a sinful Oath, to wit, being made on a sinful promise, in it self, bind not; yet the sinful condition being fulfilled it bindeth; as in the case of Judah, his promising a Kid to Thamar, upon that wretched condition of prostituting her self to his sinful Lust, who did offer the performance of what he had engaged to, upon that most sinful condition now fulfilled; for the condition being fulfilled, the promise is absolute, and the sin was not in giving the Kid, but in the condition that was made, which is past. 11. Much less will it exempt any man from the guilt of Perjury, that in Swearing he had a meaning of the words of the Oath, contrary to what in common sense they bear, & in the construction of all indifferent persons, or to their ⟨p. 138⟩meaning sine juramento, or extra juramentum; or that he had any reservation in his own mind; the first is, Aequivocation; the second is mental Reservation, that have no place in such an Oath which should be plain, single, and clear. Neither 1 •. will a dispensation from any other, as for instance, from the Pope, who hath no power to dispense in Oaths, nor from lawful Superiours, except it be in things wherein by our relation to such Superiours we are subjected to them, loose the obligation of our Oath, nor free us from the guilt of Perjury; if, I say, the matter of the Oath be in things to which their power over us doth not extend, in such things doubtless they cannot dispense. 13. The obligation of an Oath cannot be loosed, nor the guilt of Perjury evited by commutation of the thing sworne, for it must be according to what has proceeded out of our mouth, Numb. 30.2. Psal. 15.4. 14. Nor can it be loosed, and Perjury eschewed, by any posteriour tye and Oath: