The Law of War and Peace (1625)
by Hugo Grotius
I. How great the force of an oath is, even in the opinion of heathen peoples.
1. AMONG all peoples, and in every age, the force of an oath regarding promises, agreements, and contracts has always been very great. For as Sophocles says in the Hippodamia:
- The mind is wont by oath to be aroused
With earnest care to shun these evils twain,
That friends should blame, and gods should take offence.
‘Our ancestors,’ says Cicero, ‘provided that there should be no stronger bond for guaranteeing good faith than an oath.’
2. Hence at no time has it failed to be believed that a severe punishment awaits perjurers. So Hesiod said in regard to an oath:
- From such a source to mortal man disasters come,
Whenever they take oath with lying heart.
In their view even posterity might pay the penalty for the sins of ancestors,’ an opinion that was held only with regard to the worst crimes; and the wish also, without the act, might bring punishment on itself. Both of these statements are substantiated by Herodotus in the story of Glaucus, son of Epicydes, who had merely deliberated whether he should falsify his sworn pledge in regard to a deposit in trust; and in the same passage Herodotus records these verses of the Pythian prophetess:
- But from an oath is born a nameless child;
No hands, no feet, yet with great power he comes,
And all the house and stock annihilates.
Juvenal, recalling the same story, thus concludes:
- Such punishments the mere desire to sin
3. Cicero well said: ‘An oath is a religious affirmation. That moreover which you have firmly promised, as if with God as your witness, must be maintained.’ He adds also this: ‘Now, in fact, the matter belongs not to the anger of the gods, which has no existence, but to justice and good faith.’ If under the term anger Cicero means mental disturbance, the statement ought to be believed; but if he means some sort of a feeling or a wish to harm he should by no means be followed, as Lactantius rightly shows.
Let us now see whence the force of an oath arises, and to what point it extends.
II. That a deliberate intention is required, that is, that a person has willed to take oath.
First, the statement which we made about promises and contracts, that a mind possessed of reason and a deliberate intention are requisite, is in place here. If, then, a person has uttered the words of an oath without thinking that he is swearing, as is related of Cydippe,’ the same remark applies which is assigned to her by Ovid:
- The mind it is that swears; therewith have I not sworn.
This is taken from Euripides, who had said in the Hippolytus:
- The tongue has sworn; I swore not with the mind.
If any one has been willing to swear but unwilling to bind himself, he is none the less bound, because the obligation is inseparable from the oath and is a necessary result of it.
III. That the words of an oath are binding in the sense in which it is believed that they were understood by the one to whom the oath was sworn.
1. But if any one has deliberately uttered the words of an oath, yet without the intention of swearing, some writers state that he is not bound, but yet that he sins by swearing rashly. It is, however, nearer the truth to say that he is bound to make true the words which he has called God to witness. For that act, which is binding in itself, proceeded from a deliberate intention.
From this it naturally follows that in the main the statement of Cicero is true, that’ It is perjury not to do that which you have sworn to “on your conscience”.’ Akin to this is what Calypso, according to Homer, says in making oath to Ulysses:
- But I shall say the same my mind has thought.
2. Nevertheless there may be an exception in this, that the person taking oath should know, or should reasonably believe, that the words are understood differently by the one with whom he is dealing; for in calling to God to witness his words he ought to make them true as he thinks they are understood.’ And this is what the same Cicero said: ‘An oath sworn with the clear understanding, in the mind of him who swears, that it ought to be performed, should be kept.’ We read in Tacitus: ‘Those who were troubled by a guilty conscience became fearful, and by every kind of expedient tried to alter the words of the oath.’
Augustine says: ‘Men who, keeping the letter of the oath, have deceived the expectation of those to whom they have sworn, are perjurers.’ Also Isidore: ‘No matter how artful the words with which a person takes oath, nevertheless God, Who is the witness of the conscience, accepts it just as the man to whom the oath is made has understood it.’ This is what is called to take oath clearly.’ And so Metellus rightly refused to swear obedience to the Apuleian law, although there were some who said that the law was not valid on account of the illegality of its passage, and that the oath to support the law ought to be understood as binding only in case the law had been proposed and passed in due form.
3. Although in the case of other promises a tacit condition, which absolves the promisor, is easily understood, nevertheless this ought not to be admitted in the case of an oath. Here the notable statement of the Apostle in the Epistle to the Hebrews applies ‘Wherein God, willing more abundantly to show unto the heirs of promise the immutability of His counsel, confirmed it by an oath; that by two immutable things, in which it is impossible for God to deceive ‘ for so I think it right to translate yeudesqai, as plain speaking is called the truth (Daniel 7:16; 8: 26; x. I) – ‘we may have a strong encouragement.’ In order to understand these words, we ought to know that the sacred writers often speak of God ‘as having human feelings,’ and rather as He seems to us than as He is.
4. For in reality God does not change His decrees. Nevertheless He is said to change them and to be influenced by repentance as often as He acts otherwise than His words seemed to mean; and this may happen on account of a condition tacitly understood, which has ceased to exist; Jeremiah 18:8. It is possible to find examples in Genesis 20:3, Exodus 32:14, 1 Kings 21:29, 2 Kings 20:1, Isaiah 38:1, Jonah 3:5 and 11 . In this sense God cannot properly be said even to deceive us, and the word’ to deceive,’ which appears in the passage of the Epistle to the Hebrews, quoted above, ordinarily refers to an event which disappoints expectation. This can be seen both in other passages and in Leviticus 6:2, Joshua 24:27, Isaiah 58:2, Hosea 1:2, and Habakkuk 3. But this apparent deception occurs most easily in threats, because these confer right upon no one. It appears at times also in promises, when indeed there is a tacit condition secretly present.
5. For this reason, then, the Apostle names two things which denote unchangeability: the promise, because it confers a right; and the oath, because it admits of no tacit conditions or conditions in any way concealed, as we may see in the Psalms (86:30-6). For it is a different thing if the nature of the transaction itself openly indicates certain conditions. To such a case some refer the promise found in Numbers 14:30. But it is more true to say that the land was said to have been promised on oath to them not as individuals but as a people, to the descendants, undoubtedly, of those to whom God had sworn in verse 23. Such a promise, moreover, can be fulfilled at any time, and is not restricted to particular individuals.
IV. When an oath procured by means of fraud is binding.
1. From what I have said it can be understood what ought to be thought of an oath procured by means of fraud. If it is certain that the person who took an oath believed to be true some fact which is not true, and would not have sworn if he had not believed this, the oath will not be binding. If, however, it shall be doubtful whether he would not have taken the same oath even without the erroneous supposition, he will have to stand by his words, because in an oath the greatest possible simplicity is required.
2. And under this head I class the oath which Joshua and the leaders of Israel took to the Gibeonites. These had, in fact, been deceived by the Gibeonites, who pretended that they had come from a distant region. But it did not follow therefrom that Joshua and the leaders would not have spared them if they had known that they were a neighboring people. For they had said this to the Gibeonites ‘Peradventure you dwell among us. And how shall we make a covenant with you?’ These words are open to the interpretation that the Gibeonites were asked what sort of a treaty they desired, one of alliance or of surrender, or even that the Jews thereby indicated that they were not allowed to make a treaty of alliance with certain peoples; but the words do not also indicate that life would not be granted to them if they should surrender. For the divine law, which devoted those peoples to destruction, from comparison with the other law, was to be so understood that it would hold good unless the peoples concerned should obey the commands immediately on being summoned. This contention is proved by the story of Rahab – among others – who was spared on account of her good offices, and that of Solomon, who received the remnant of the Canaanites as subjects and payers of tribute.
3. This view is supported also by the statement in the book of Joshua, that there was no state of those seven peoples that made peace; they had, in fact, been hardened that they might not find favor. Since, then, it was credible that if the Gibeonites had declared the truth, which they did not do on account of fear, they would nevertheless have obtained the preservation of their lives on the condition of surrendering, the oath was valid, and valid in such a degree that by the authority of God most severe punishments were inflicted for the violation of it.
In his discussion of this narrative, Ambrose says: ‘Nevertheless Joshua thought that he ought not to annul the peace, which he had granted, because it had been confirmed by a religious oath, lest, while censuring the faithlessness of others, he should himself break faith.’ However, the Gibeonites did suffer some punishment for their fraud, since by their surrender they were made subjects of the Jews. For they were. assigned to a kind of personal slavery, although if they had acted openly they might have been received as tributaries.
V. That the words of an oath should not be stretched beyond the meaning supported by ordinary use.
Yet the meaning of an oath ought not to be stretched beyond the usage. of ordinary speech. So when the other Jews had taken oath that they would not give their daughters in marriage to the Benjamites they did not perjure themselves even though they permitted the girls, who had been carried off, to live with the men who had taken them. It is, in fact, one thing to give, another not to demand the return of something that has been lost. Ambrose says in regard to this matter: ‘And that kindness seems not to have been without a punishment meet for the lawlessness of the men, since they were permitted to enter wedlock only by stealing wives and not through the sacrament of marriage.’
Not unlike is the case of the Achaeans. For when the Romans disapproved of some things which they had done and confirmed by oath they asked that the Romans themselves should make such changes as should seem best, and not place the Achaeans under the necessity of annulling what they had ratified by oath.
VI. That an oath to perform an unlawful act is not binding.
In order that an oath may be valid, the obligation taken ought to be lawful.’ Therefore a sworn promise relating to an illegal act will have no force either by the law of nature, or by divine interdict, or even by human law, which we shall discuss later. Philo the Jew well said:
Let everyone, who undertakes to perform an unjust act because of an oath, know that he will not be keeping but breaking an oath, which is worthy of great care and scruple, and by which honorable and upright acts are wont to be confirmed. He in fact adds fault to fault who joins an unlawful act to an oath wrongfully made, from which it would have been better to refrain. Let him abstain, then, from the unlawful act and let him pray to God to grant to him the mercy which is suitable for him. For to choose two evils, when you have it in your power to be relieved of one, is an evidence of an incurable frenzy and lack of sense.
An example may be given in the case of David, who spared Nabal, whom he had sworn to kill. Cicero gives a similar example in the vow of Agamemnon; Dionysius of Halicarnassus offers still another in the conspiracy of the decemvirs to seize the government. Seneca says:
- I do confess that I can keep my silent pledge,
If it is free from crime; sometimes good faith is crime,
where the Latin text has ‘meanwhile’ with the meaning ‘sometimes.’
Ambrose says: ‘It is in fact sometimes contrary to duty to fulfill a promise, to keep an oath.’ Says Augustine: ‘If good faith is shown in committing a sin, marvelous it is that it is called good faith.’ In his second letter To Amphilochius, Basil has the same teaching.
VII. That an oath is not binding which hinders a greater moral good.
1. Furthermore, even if the thing which is promised is not unlawful, but only hinders a greater moral good,’ under such a condition also the oath will not be valid; in truth we are under obligation to God to advance in goodness in such a way that we have not the power to cut off from ourselves the opportunity of growth in grace. It will not be out of place to quote a noteworthy passage of Philo the Jew, whom I cited above, as bearing on this point: ‘There are some people so controlled by a hard and unsociable nature, or by hatred of the human race, or by a harsh overmastering wrath, that they strengthen their savageness of character with an oath that they will not sit at table or stay in the same house with a certain man, that they will never do him a favor, that they will not receive; anything from him even until death.’ But the kind of oath, which ‘he said certain persons swore, never to do a favor to this or that man,’ the Jews called ‘an oath of beneficence,” an oath to do good,’ Leviticus, v. 6 According to the Jewish rabbis the formula of this was, ‘Let all the advantage you might receive from me be consecrated to God ‘; and with this the Syriac, in the old version of Matthew 15:5, agrees: ‘If you have ever received any good from me, let it be a gift consecrated to God’; for that is the meaning of the expression ‘given to God.’
2. The Jewish rabbis, who are the worst interpreters of this .portion of the divine law, thought that a vow was perfectly valid in case the penalty of consecration had been added, even if the vow had been made against parents. That opinion is refuted by Christ in the passage cited; for according to his words ‘to honor’ is’ to do good to,’ as is apparent from the parallel passage of Mark and also from the words of Paul in 2Timothy, v. 3 and 17; also from Numbers 23:2. But even if an oath has been taken against other persons we shall rightly say that it is not binding, because, as we have said, it is a barrier to our growth in goodness.
VIII. That an oath is not binding to perform an act which is impossible.
It is not necessary to speak of impossibilities. It is, in fact, sufficiently evident that no one is bound to do that which is quite impossible.
IX. What if an act, for which an oath has been taken, is impossible for the time being?
As regards what is impossible for the time being, or in the opinion of the one who took the oath, the obligation is in suspense. Consequently, a person who has taken oath under such a supposition ought to do what he can to render his oath possible.
X. That an oath is sworn in the name of God, and in what sense.
In regard to form, oaths differ in words, but agree in substance. An oath ought to contain this element, that God is invoked, as, for example, in this way: ‘God be my witness,’ or ‘God be my judge,’ two expressions which amount to the same thing. For when a superior having the right to punish is called as a witness punishment of faithlessness is at the same time asked from him. And He who knows all things is the avenger, because He is a witness. Plutarch says: ‘Every oath comes to an end in curses in case one has committed perjury.’
To the same category belong the ancient formulas for treaties, for which it was the custom to use sacrificial victims, as appears from Genesis 15:9 ff. Similar are the Roman formulas in Livy ‘Do thou, Jupiter, so smite that people as I smite this pig.’ In another passage of the same author: ‘He prayed to the gods that they should so slay him as he himself had slain the lamb.’ See also the example in Polybius and Festus: ‘If I knowingly deceive, so may Jupiter cast me away as I cast away this stone.’
XI. But that an oath is sworn also in the name of other things with respect to God.
1. But it was also an ancient custom to swear in the name of other things or persons, either because they were invoking such things or persons to become harmful to themselves, as the sun, the earth, heaven, their ruler, or because they were demanding that they be punished in respect to such things as their heads, their children, their country, their ruler. And this was not a custom of the heathen nations only, but also of the Jews, as the same Philo teaches us.’ For he says that those who are about to take oath ought not for any and every thing and at once ‘to have recourse to the author and parent of all things,’ but should swear by their parents, heaven, earth, and the universe.
Similar to this is the point noted by the commentators on Homer, that the ancient Greeks were not accustomed ‘to swear easily by the gods but by other things at hand,’ as by the scepter; and Porphyry and the commentator on Aristophanes report that that oath was introduced by Rhadamanthus, a most just king. So Joseph is said to have sworn by the life of Pharaoh, in accordance with the accepted custom of the Egyptians, as Ebenesdras notes in the commentary on the passage; so Elisha swore by the life of Elijah.’
And in the fifth chapter of Matthew Christ does not, as some think, mean that such oaths shall be less lawful than those sworn explicitly in the name of God. But since the Jews had less regard for them, in accord with an opinion not unlike that of the man who said ‘He does not believe the scepter to be the gods,’ Christ shows that these also are true oaths. Ulpian, too, most excellently said ‘He who swears by his own safety seems to swear by God, for he, swears with respect to the divine power.’ So Christ shows that the man that swears by the Temple swears by God, who presides over the Temple, and the man that swears by heaven swears by God, whose throne is, as it were, in heaven.
2. But the Jewish teachers of those times were of opinion that men were not bound by oaths sworn by created things unless a penalty was added, as if the thing by which they swore were consecrated to God. This, then, is the oath called korban, or ‘by way of gift,’ of which there is mention not only in the passage of Matthew cited, but also in the laws of the Tyrians, as we learn from the discussion of Josephus, Against Apion. And not for any other reason should I think that the Oriental peoples were called karbanoi (barbarous) by the Greeks, a word found in Aeschylus and Euripides; note also karbana d audaV, of ‘barbaric speech,’ in the same Aeschylus.
This error Christ opposes in the passage cited. Tertullian says ‘The ancient Christians took oath by the safety of the ruler, which was more revered than all the Geniuses.’ In Vegetius there is a formula, of which we made mention above, according to which Christian soldiers swore not only by God but also by the majesty of the Emperor, which by the human race ought to be loved and cherished next after God.
XII. That an oath is binding even if one swears by false gods.
But also if any one has sworn by false gods the oath will be binding. For although possessed of false notions, he nevertheless has a respect for divinity under a general aspect; and so, if perjury has been committed, the true God interprets it as done to His harm. We see that holy men never proposed an oath in such a form, and still less swore in that way (I wonder that Duaren considered such a form allowable); but nevertheless, if those with whom they had dealings could not be induced to take oath in any other way, they made contracts with them, and they themselves would swear as their duty required, but they would accept from the others such an oath as could be procured.
An example of this kind is found in the case of Jacob and Laban (Genesis 31:53). This is what Augustine says: ‘Whoever swears by a stone, if he swears falsely, is perjured’; and further: ‘The stone does not hear you speaking, but God punishes if you deceive.’
XIII. The effects of an oath; hence from an oath a twofold obligation arises, one at the moment of the oath, another afterward; this is clearly explained.
1. The chief effect of an oath is to put an end to disputes. ‘In every dispute the oath is final for confirmation,’ says the inspired writer of To the Hebrews. Similar to this is the statement of Philo ‘An oath is the witnessing of God in a matter under dispute.’ Not unlike it is the statement of Dionysius of Halicarnassus: ‘The strongest pledge of good faith among men, both Greeks and barbarians, which no time will destroy, is that which makes the gods sponsors by means of sworn agreements.’ Thus among the Egyptians an oath was ‘the strongest pledge of men to one another.’
2. Therefore the person who takes an oath is bound in two ways: first, that his words should agree with his intent, which Chrysippus calls ‘to swear truly’; and secondly, that his action should be consistent with his words, which the same writer calls ‘swearing faithfully.’ The person who does wrong in regard to the first requirement is said by the same Chrysippus ‘to swear falsely’; in the second, ‘to perjure himself,’ a distinction which is clear enough, though these matters are at times wont to be confused.
XIV. When, as a result of an oath, a right is acquired for a man and for God; when for God alone.
If the matter should be such, and the words of an oath so phrased that they may be referred not only to God but also to a man, without doubt a right will be acquired for the man from the oath itself, as if from a promise or contract, which ought to be understood in the simplest way. But if either the words do not have a man in view for the conferring of a right upon him, or if they do have him in view, but if there is something which can present an obstacle to his claim, then the force of the oath will be such that the man will indeed acquire no right, but nevertheless he who has sworn will be under obligation to God to keep his oath.
An example of this occurs in the case of one who by means of an unjust fear furnished the cause of a sworn promise.’ For he acquires no right, or a right which he is obliged to relinquish, because he caused the loss. Thus we see that the Jewish kings were both rebuked by the prophets and punished by God, because they had not kept their sworn pledge to the Babylonian kings. Cicero praises the tribune Pomponius, who kept the oath which he had sworn under the compulsion of fear;’ so great,’ he says,’ was the power of an oath in those times.’ For such reasons not only Regulus was obliged to return to imprisonment, most unjust though it was, but also those ten, whom Cicero mentions, had to return to Hannibal; for an oath had been taken.
XV. Refutation of the opinion that one who has given his oath to a pirate or a tyrant is not obligated to God.
1. The principles stated are applicable not merely with respect to public enemies, but to any persons whatsoever. For not only the person to whom the oath is given is taken into consideration, but also God, by whom one swears, and the reference to God is sufficient to create an obligation. Therefore we must thrust Cicero aside when he says that there is no perjury if the ransom for life, which had been agreed upon even under oath, is not paid to pirates, for the reason that a pirate is not entitled to the rights of war, but is the common enemy of mankind, with whom neither good faith nor a common oath should be kept. Elsewhere he said the same thing about a tyrant, as Brutus also did, according to Appian: ‘With a tyrant the Romans keep no faith, have no scruple regarding an oath.’
2. Although it is true that according to the established law of nations there is a difference between a public enemy and a pirate, that will be pointed out by us below – yet the difference cannot be in point here where, even if the right of the person fails, we have to reckon with God; and for this reason an oath is called a vow. Again, that is not true which Cicero assumes, that there is no common
ground of right with a robber. For Tryphoninus was right in giving the opinion that, according to the law of nations, if the true owner does not appear a deposit must be returned to a robber.’
3. Consequently I am not able to approve of the view held by certain persons, that one who has promised anything to a robber can discharge the promise with a momentary payment, so that it may be permissible for him to recover what he has paid. For in an oath the words relating to God ought to be understood in the simplest manner possible and so as to have effect. And so the man who secretly returned to the enemy and went away a second time did not satisfy the oath in regard to his return, as was rightly judged by the Roman senate.
XVI. Whether one who has given his oath to a faithless person ought to keep his oath; explanation, with a distinction.
1. There is this in Accius:
- T. Your good faith you have broken.
A. Faith which I neither gave, nor do I give,
To one who faithless is.
The rule here implied can be approved if the sworn promise clearly was related to the promise of him to whom the oath was given, and that had been blended with it, forming as it were a condition; but it cannot be approved if the promises are of a different kind and without mutual relation. For in the latter case each must absolutely make good what he has sworn, and on this account Silius in praising Regulus thus addresses him:
- You who through ages long with fame increasing still
Will be recalled as he who kept his faith
With faithless Carthage.
2. We said above that inequality in contracts gives naturally an opportunity for annulling or correcting them. And although the law of nations has changed this somewhat, nevertheless by municipal law, which is valid between the different parts of the same people, a return is often made to that which was lawful by nature, as we likewise showed above. But in this case also, if an oath has been added, even if nothing, or a little, is due to the person, faith will have to be kept with God. And so the writer of the Psalms, when enumerating the virtues of a good man, adds this also: ‘He that sweareth to his own detriment, and changeth not.’
XVII. That when a person has given his oath to God alone his heir is in no degree obligated.
This, again, must be noted, that when in consequence of some such defect as I have mentioned no right is created for a person but good faith is pledged to God, no binding obligation rests upon the heir of the man who took the oath. For as the property passes to the heir, that is, things bought or sold among men, so also the burdens on the property; but not in like manner other obligations, to which a person has been subject by reason of a duty imposed by religious feeling, gratitude, or good faith. These obligations do not, in fact, belong to what is in a strict sense called among men a right, as we remember having explained elsewhere also.
XVIII. That he is not guilty of perjury who does not keep his oath to a person that does not wish to have it kept, or in case the special character of the person, to whom the oath was sworn because of that character, has been laid aside.
But also where no right is created for a person, if nevertheless the oath has in view the advantage of some other person, and the other person does not wish to have that advantage,’ the one who took the oath will not be bound. So also he will not be bound if the condition under which he swore to some one has ceased, as if a magistrate should cease to be a magistrate. In the second book of Caesar’s Civil War Curio speaks to those who had been the soldiers of Domitius as follows: ‘How could he hold you bound by your oath when he has thrown aside the insignia of office, laid down his command, and as a private citizen and a captive has come under the power of another?’ Presently he says that the oath was annulled by the loss of civic rights.
XIX. When anything which is done contrary to an oath becomes void.
The question is raised, whether anything done contrary to an oath is merely unlawful, or also void.
In this matter I think that a distinction ought to be made. If good faith alone has been pledged, the act done contrary to the oath will be valid, as, for example, the making of a will, or a sale; but such an act will not be valid if the oath was so phrased that it contained. at the same time full abdication of the right of action.
These distinctions, at any rate, naturally accompany an oath. In accordance therewith judgement should be passed on the oaths of kings, and the oaths which foreigners take to one another, since
in such cases the act is not subject to the law of the place.
XX. What power the act of superiors has with respect to that which a subject has sworn, or with respect to an oath given to a subject, is set forth, with distinctions.
1. Let us now see what powers are possessed by superiors, that is, by kings, fathers and masters, and also by husbands, so far as conjugal rights’ are concerned. The act of superiors cannot indeed bring it to pass that an oath does not have to be fulfilled, in so far as the oath was truly binding; for such fulfillment is required by both the law of nature and divine law. However, because our acts are not fully within our own power, but are related in such a way that they are dependent also on our superiors, there maybe a twofold action by superiors concerning whatever is sworn, the one action directed against the person who takes the oath, the other against the person to whom the oath is given.
2. The person who takes the oath can be directed, either by making the oath void before it is sworn, in the degree that the right of the inferior is subject to the power of the superior, or by forbidding that the oath be fulfilled after it has been taken. For the inferior, in so far as he was inferior, could not have put himself under obligation except in so far as his act should meet the approval of his superior; for he would have no power beyond that. On such grounds, according to the Hebraic law, husbands could annul the oaths of their wives, and fathers the oaths of their children so long as these were subject to parental authority. This question is proposed by Seneca ‘What if a law should be passed that no one should do what I had promised that I would do for a friend?’ He answers thus: ‘The same law which forbids me also defends me.’
But an act may also result from the mingling of the rights of both parties, as if a superior should order that what an inferior has sworn in this or that case, as, for example, in consequence of fear, or from weakness of judgement, shall be valid only on the condition that it be approved by himself. Under such a condition absolutions from oaths can be defended. Such absolutions were formerly granted by princes, but now, with the permission of the princes, by the dignitaries of the Church, in order that greater regard may be had for religious scruple.
3. Furthermore, the act of the superior can be directed against the person to whom the oath is sworn by taking from him the right which he has acquired, or, if there is no right, by forbidding that he should receive anything in accordance with such an oath. This, again, by virtue of the power of sovereignty, may be done in two ways, either for a punishment or for the public advantage. In case the one who takes the oath is not under the same governmental authority as the one to whom the oath is sworn, it can be understood from this what power the rulers of the two parties have in respect to the oath.
However, a person who has promised something on oath to a guilty person as such, as, for example, a pirate, for this very reason cannot take away from him the promised right under the name of penalty; for then his words would be of no effect, a result which ought in every way to be avoided. And for a similar reason what has been promised cannot be given as a compensation for a right which was in controversy before, if the agreement was entered into after the controversy began.
4. Again, a human law can remove an impediment, which it had placed on acts of a certain kind, if an oath either in general terms, or in a special form, has been added. This the Roman law did in the case of those impediments which did not have directly in view the, public good, but the private advantage of the one taking the oath. If such a case arises, the sworn act will be valid in the same way that it would naturally have been valid without human law, either by binding good faith only, or also by giving a legal right to another, according to the diverse nature of acts, which has been set forth by us elsewhere.
XXI. To what kind of oath the teachings of Christ in regard to not taking an oath are properly applicable.
1. The fact ought here incidentally to be noted, that what is said in the teachings of Christ and by St. James against the taking of oaths does not, properly speaking, apply to an oath of assertion, of which there are some examples extant in the writings of the Apostle Paul,’ but to the promise of a future uncertainty. This is plainly shown by the opposition in the words of Christ: ‘Again ye have heard that it was said to 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.’ A second point is the reason, which James adds: ‘that ye be not found deceptive’; for upokrisewV has that force among the later Greek writers, as appears from Job 34:30, Matthew 24:5, and elsewhere.
2. The same thing is convincingly shown by the words of Christ,’ But let your speech be Yea, yea, Nay, nay,’ which James explains thus: ‘But let your yea be yea; and your nay, nay.’ Here the figure is clearly what the rhetoricians call ‘interlocking,’ as in the verse:
- From that time on is Corydon for us the only Corydon.
Also in another similar passage: ‘Up to that day Memmius was Memmius indeed.’ For the former ‘yea’ and’ nay’ indicate a promise, the latter its fulfillment.’ Yea,’ in fact, is a word of promising, and so is explained as’ amen’ in Revelation 1:7; it has the same meaning as the Syriac word for ‘so be it’ in this passage. The corresponding words of Rabbinical Hebrew and Arabic have a like force, just as among the Roman jurists’ yes indeed’ and ‘why not’ are the expressions for one replying to an agreement. Paul, in 2 Corinthians 1:20, takes it as the medium of a promise when he says that all the promises of God in Christ are ‘yea and amen.’ Hence comes the ancient expression of the Jews,’ that of a just man the yea is yea, and the nay is nay.’
3. On the other hand, those whose deeds differ from their words are said by those teachers to be ‘yea and nay’ (2 Corinthians 1:18-19; that is, their ‘yea’ is ‘nay’ and their ‘nay’ is ‘yea.’ So the Apostle Paul himself explains. For having declared that he did not ‘show fickleness,’ he added that his word was not ‘yea and nay.’ Festus, reporting many opinions concerning the meaning of the word naucum, thus writes: ‘Some say that it is from the Greek words meaning ” yes and no “, and signifies an unreliable person.’ If ‘yes and no’ indicates unreliability, it follows that ‘yea, yea, and nay, nay’ will signify constancy.
4. Christ, then, says the same thing as Philo: ‘It is best, most useful, and most in harmony with a rational nature to abstain from oaths and so to accustom oneself to veracity that the bare words may be accepted in place of an oath.’ Also in another passage: ‘Let the speech of a good man be as an oath which is firm, unchangeable, and incapable of deception.’ Josephus says this about the Essenes: ‘Whatever they have said is stronger than an oath; and it is considered by them a superfluity to take an oath.’
5. From the Essenes, or from those of the Jews whom the Essenes imitated, Pythagoras seems to have borrowed the doctrine expressed in the maxim: ‘An oath ought not to be taken by the gods; for every man ought to take care that he should be believed without an oath.’ On the authority of Curtius the Scythians say of themselves to Alexander: ‘Do not think that the Scythians make their friendship firm by an oath; they take oath by keeping faith.’ Cicero, in the speech For Roscius the Comic Actor, says: ‘The same punishment has been appointed by the immortal gods for the deceitful man as for the perjurer. For the gods are wont to be angry, and incensed, not on account of the formula of words which contains an oath, but by reason of the faithlessness and wickedness by which snares are set for another.’
Well known is the saying of Solon: ‘Let him be of such uprightness that he will be believed rather than his oath.’ Clement of Alexandria, too, said that it was the duty of a good man to show faith in his promises by the firmness and steadfastness of his words and life. Alexis the comic actor says:
- My nod is just as valid as an oath.
In the oration For Cornelius Balbus Cicero says that at Athens when a certain man, who had lived among them with uprightness and dignity, had given his testimony publicly and was approaching the altar to take oath, with one accord all the judges cried out that he should not take oath; for they did not wish his faith to seem bound by religious scruple rather than regard for the truth.
6. The comment of Hierocles on the Golden Verses does not differ from the teaching of Christ: ‘He, who in the beginning had told us to reverence an oath, by that very injunction had bidden us to abstain from swearing concerning those matters which can either happen or not happen, and which are subject to the uncertain outcome of chance. Such things in fact ought to be considered of slight moment, and they are changeable, whence it is neither worth while, nor safe, to swear concerning them.’ Among the praises of a Christian emperor, Libanius has this,’ that he is so averse to perjury that he fears even to swear to the truth.’ In commenting on the words of The Odyssey:
- But yet an oath we surely shall allow,
Eustathius says: ‘In matters that are uncertain an oath should not be used for confirmation, but prayers for a possible outcome.’
XXII. What unsworn pledge of good faith has by custom the force of an oath.
In many places instead of an oath it is found that good faith is pledged by joining the right hands,’ which was ‘the strongest bond of faith among the Persians ‘; or by some other sign having such force that, if the promise should not be fulfilled, the promisor is considered no less detestable than if he had committed perjury. Especially regarding kings and princes it was a very common saying that their pledge of faith was as good as an oath. In fact they ought to be such that they can say with Augustus, ‘I am a man of good faith’; and with Eumenes, that they would rather lose their lives than break faith. Also the verses of Gunther, in the Ligurinus bear on this point:
- In his bare word the king is wont to show
Right and respect greater than any oath.
Cicero, in his oration For Deiotarus, praises the right hand of Gaius Caesar, ‘as not stronger in wars and battles than in promises and good faith.’ Aristotle, too, noted that in heroic times the holding of the scepter upright counted as the oath of kings.