Question XVI: Whether an oath extorted by fear binds

There were some, whom St. Bonaventure reports, who thought that although an assertory oath extracted by force and unjustly is valid and binds, nevertheless a promissory oath does not bind. The Gloss also reports them cap. 2. verb. esse, de iureiurando.

It is, however, most certain that oaths of this kind bind. So St. Bonaventure here, and St. Thomas, whom all Theologians and Jurists follow, ad cap. si vero: et cap. Verum, de iure; et cap. Ad audientiam, de his, quae vi, where it is expressly defined.

It is proved by St. Bonaventure first: every oath that has its companions, Justice, Truth, and Judgment, is valid and obligatory; such is this one: Therefore.

Second, because a will that is coerced is a will truly operating in a human manner, from St. Augustine: but such is the will upon which fear is inflicted for an oath: Therefore.

Third: sin committed under coercion obliges to eternal punishment: but an oath is thus ordered to the keeping of truth: Therefore.

Where note that this argument was brought forward by the adversaries against us at quaest. 14. and set forth there.

Fourth, it is proved from the case proposed by St. Augustine: for a certain man, coerced by fear, was bound by an oath to betroth a harlot to himself, and St. Augustine says that, on the advice of Blessed Ambrose, that sworn promise was valid.

It is proved fifth in the body, by the argument brought forward for the preceding question, because a twofold obligation can arise from an oath: one to the man by reason of the promise made to him, and from this side an oath unjustly coerced does not bind; for a man by an injustice acquires no right, nor ought he to derive advantage from his own iniquity: the other, truly, to God, who is brought in as witness, and from this side it binds the one swearing to render to God the witness of truth by fulfilling the promise, confirmed by the testimony of His name. For that promise, although coerced under fear aroused, was nevertheless voluntary, because by no fear can the will be so compelled that the liberty of free choice is violated.

That this is matter of virtue is clear, because it is toward redeeming a grave vexation, which the Doctors cited by Sanchez cap. 11. num. 3. and by us at quaest. 15. assert to suffice, and deservedly; for it is an act of charity toward oneself.

Then there also intervene acts of fidelity, zeal for preserving honor, etc. By this argument Sanchez relies num. 14.

They object chiefly. A coerced vow, and likewise a coerced marriage are not valid: therefore neither are oaths.

Sanchez answers at num. 15. that in his opinion there is an easy response; for those two prior things are governed by Ecclesiastical law: but an oath is not invalidated out of reverence due to the name of God, and therefore the consequence is denied, because they are of unequal law.

He adds, however, that in the opinion of those who say that coerced vows and marriages are void by natural law, this argument can hardly be satisfied, and that this argument presses toward proving that these are void only by Ecclesiastical law.

Therefore St. Bonaventure, who teaches that these, namely vows and marriages, are void by the law of nature, as we saw at disput. de voto, quaest. 5. and in other places, where various obligations are treated, answers this argument easily, saying the reason is disparate; and as to the vow, he notes that it consists in the formal offering of some singular good above what is owed, in obedience to the Divine Majesty. But God wills voluntary sacrifices perfectly, since a sacrifice belongs to perfection. Yet if someone under fear of death vow to the Lord freely, it seems a free oblation, though somewhat imperfect, and therefore it is admitted probably.

As to marriage he answers, the reason is disparate, because marriage by its signification has it that it be a voluntary surrender and a union of love, imitating the union of Christ with the soul, and the Church; therefore the Apostle says, Ephes. 5. This is a great sacrament, but I speak in Christ, and in the Church, and therefore it demands a free offering, not so the oath.

You will say. If anyone swear an oath of marriage with Thecla, he is bound, even if he have sworn under coercion, unless it be relaxed by a supervening cause, as St. Bonaventure teaches ad ultimum, whom others follow, as cited by Sanchez lib. IV. de matrimonio, d. 20. num. 14. et d. 21. num. 2. etc. here at num. 21. against Sanchez himself and others there, who nevertheless confess the opinion of St. Bonaventure. Therefore apart from that signification of a spontaneous union a marriage is valid: therefore there is no disparity between an Oath and Marriage.

He answers, that an oath added has only the reason of an obliging force, which is clear, because without it it would not bind; whence it comes about that, since it is a stricter bond of the obligation not to gravely detract from Divine truth than of representing the Divine union with the Church, this yields to it.

That it is not per se a bond of marriage is proved; because if he should contract with another, the marriage holds, although he be bound on account of perjury to do penance. These are the words of St. Bonaventure; but of this in the third part, when I treat of marriage.

I assert second, that things contracted in the forum of the Church under fear, confirmed by oath, are judged void. It is proved by St. Bonaventure from that saying of Tully and of the Praetor: Things done under fear I do not hold valid.

Second, because wickedness ought not to result in advantage to anyone, as it is said.

The Saintly Doctor objects to himself against the first assertion. Fear falling upon a man of constancy excuses human contracts.

He answers, that an oath is an invocation of God as witness, and consequently, since justice and Religion compel, it does not take away from it the honor of veracity, and of Truth; and that it is evil in itself to do this, and therefore it is not to be feared, but rather death is to be undergone, as it is said in Matth. 10. Do not fear those who kill the body, but cannot kill the soul. Wherefore it is also a stricter bond than a Vow, and marriage; for the oath pertains to a negative precept, not taking away from God the honor of naming Him as witness in vain; but a Vow pertains to the affirmative, as I said at quaest. 13. from Sanchez himself, who in lib. 3. cap. 9. num. 4. shows this of the assertory oath; and he undeservedly denies it of the promissory; for even the promissory oath is an invocation of the Divine name to attest truth, not only present, of the mind's obliging and promising itself, but also future, of fulfilling the promises. But what he says, that a greater evil is infidelity, which is incurred by the breaking of a vow, than the irreverence due to God, which is violated in perjury, by rendering Him false, is proved not to hold from what he said above: For, considering only the obligation of a promissory oath, which is what the controversy is about, it includes the testimony of God, as the attester of the truth of that external promise, as to the conformity of the voice with the mind, and with the future effect. Therefore this is contained in the negative precept of not taking the name of God in vain, and it is greater, by Sanchez himself, than the positive obligation of a vow, which commands fidelity. The reason is, because it is worse to inflict a direct passive injury on someone than to fall short of a given faith; for although this also includes a certain irreverence, it is nevertheless not equal to that which renders God as false; otherwise, if such irreverence, added to the infidelity of breaking a vow, overcomes the irreverence of rendering God false, as Sanchez says, it ought to make the breaking of a vow, in which these two crimes are present, a graver fault also than assertory perjury, in which there is only the irreverence of falsehood redounding upon God; and yet he had said the opposite in that very number. Wherefore with Medina lib. 5. de sacrorum hominum continentia, a cap. 22. and others, whom Sanchez confesses to hold probably, the bond of an oath is greater than the bond of a vow.

First, from the foundations of Sanchez I argue thus: By you at number 4. the obligation of an assertory oath is greater than that of a vow, for the reason that rendering God false outweighs the fidelity promised to God: therefore, since the breaking of a promissory vow, besides that fault of rendering God false, adds another of infidelity, and often also of injustice, and of defect of charity toward one's neighbor, it will be far more augmenting of wickedness than the sin of breaking a vow; and this is what St. Bonaventure says, that an obligatory oath is a bond with God and with men.

As to marriage, St. Bonaventure notes in 4. dist. 38. ad 1. that marriage is inferior to a vow, because this is a promise to God of a better good; but marriage is a promise made to man concerning a lower good; and therefore it follows that an oath is a greater bond than marriage itself, because it is greater even than a vow, which marriage also falls short of. But although St. Bonaventure says at the same dist. that marriage is a promise to God, and to men, nevertheless properly it is a promise to man: to God, however, inasmuch as by the virtue of the truth commanded by God we are bound to obey.

Satisfaction is indeed made for these coerced oaths by a momentary fulfillment, and at once it is whole to swear the oath again.

Observe, however, that these oaths bind under mortal guilt, as St. Bonaventure indicates ad 3. Div. Thom. ad 1. and other 21 Doctors, whom Sanchez reports at number 18. against the Angel, verbo iuram, 5. numero 10. The Saintly Doctor proves it from that of Matth. 10. Him rather fear, who can destroy both soul and body in hell.

You will say that the chapter Verum de iureiurando. commands that these not be punished as guilty of mortal fault.

It is answered, that there it speaks of the punishment, which ought to be greater by reason of the injury found in that oath.

Some make an exception, unless it be added to contracts reprobated by law; such as alienation of a dotal fund, renunciation of a future succession, contracts of minors without the solemnity prescribed by law; they say that an oath attached to these does not bind. Thus very many, probably, as cited by Sanchez num. 19.

Others, however, say that it is still invalid. So other many with Sanchez at number 20. The reason is that brought forward above at question 15. because although fulfilling the contract is an act of virtue, namely of redemption from vexation, and of truth, yet the obligation of the oath is not acquired by him who did the injury, but to God, who inflicted none. Moreover, because by natural law these oaths are not void; nor even by civil law, as Sanchez shows at num. 20.

Others extend it, so that if an oath be added to a vow, extorted under grave fear, it binds.

Others, however, deny it, as cited by Sanchez at num. 24.

Hence almost the question is decided: whether one released from prison, having sworn an oath of returning, is bound to return. And the question is, when the prison and the punishment to be inflicted are unjust; for if they are just, without doubt he is bound.

The first opinion is, that he is bound to return to prison, however injurious, even if death impends. So Romanus leg. stipulationes, numero 78. ff. de verb. obligat. Caietanus 2. 2. quaestione 89. art. 7. Angelus V. Iuram. 5. num. 37. Sylvester ibi, num. 4 quaest. 26. Tabiena ibi, quaest. 10. num. 11. Armilla num. 13. Toletus lib. 4. summae, cap. 22. Suarez. The SECOND opinion is, that he is never bound. So Abbas cap. si vero, num 4. de Iureiur. Sylva nuptialis lib. 3. num. 44. Angelus V. carcer. num. 4. Sylvester V. accusatio, quaest. ultima, ubi Tabiena quaest. 10. n. 14. et verb. carcer, quaest. 1. Guttierrez de iuramento, p. p. cap. 57. a num. 24. Sà V. Iuram. num. 11. and Sayrus says it probable, lib. 12. cap. 18. num. 17.

The THIRD opinion limits it, when unjust death impends. So the Gloss Clem. Pastoralis V. violentiam, de sent. et re iudic. And there Anchara num. 12. Imola num. 60. Cardinal. ibi v. Notorium, notab. 4. Abb. cap. inter alios in fine, de immunitate Ecclesiae. Everardus in suis Topicis, loco a vi, energia, seu efficacia iuramenti, num. 62. Praepositus cap. Ius Gentium, num. 10. dub. 1. Iason leg. si duo patroni, § finali, num. 4. ff. de Iureiur. Hippolytus singulari 177. malitiis hominum, which Curtius the younger repeats, leg. Admonendi, num. 69. ff. de Iureiur. Ioan. de Selva de Iureiur. 3. part. quaest. 1. num. 31. Boerius decis. 215. num. 30. Maior in 4. dist. 15. quaest. 22. ad 2. D. Antonin. 2. part. tit. 10. cap. 6. casu 2. Rosella V. accusatus, Bauerias Tract. de virtute iuram. effectu 60. num. 112. Couar. lib. 1. variarum, cap. 2. num. 7. Octavianus Ofascus in decisione Pedemontana, 66. num. 12. Plaza de delictis, lib. 1. cap. 22. num. 6. Seraphinus de privil. iuramenti, privil. 132. Iulius Clarus lib. 5. receptarum, in pract. crimin. quaest. 21. num. 27. Duennas, regula 393. limit. 4. Farinacius in sua pract. criminali, part. 1. tom. 2. tit. de carceribus, quaest. 3. a num. 124. where he reports others, Gomez de Almezcua Tract. de potestate in seipsum, lib. 2. cap. 10. num. 1.

The FOURTH opinion extends it, that this oath does not bind, when not only death but also any unjust danger to the person is feared; not, however, if these concern only domestic goods. So Abb. cap. sicut el 3. num. 4. de iureiurando.

The FIFTH opinion extends it, so that this oath does not bind even when an unjust sentence is feared in regard to reputation, or detriment to one's estate. So Vasquez prima secunda, dist. 174. cap. 5. Who nevertheless at num. 38. limits it, when the keeper of the prison is a participant in the iniquity of the judge; for if that keeper would release him in good faith, and danger impends over him if the prisoner does not return, then it would be an act of virtue to return with the danger, that the salvation of the innocent not be lost.

In so great a variety of Doctors I shall set down what is to be drawn from St. Bonaventure.

FIRST, the Saintly Doctor at the end of the body, asserts that one is bound by a coerced oath only when it concerns a thing licit. Then, if the oath has been gravely coerced, relaxation can be sought, and be given by the Church. As to a licit oath, however, he says that death is rather to be undergone than that it be broken. So ad 3.

It must be asked, therefore: whether in the doctrine of St. Bonaventure it is a just thing to throw away one's life and all one's goods; and indeed as to goods and reputation it occasions little difficulty; therefore only this weighs on me: whether one can hand over one's life to an unjust death.

This indeed cannot be drawn from that third argument, in the second place, where he argues: Fear falling upon a man of constancy excuses. But he answers, that in the matter of justice it does not excuse, and thus death is rather to be desired than that a just oath be violated. In our case, however, the question is: whether it is just.

Probably, indeed, it seems to me that it should be asserted with the third opinion, which is the doctrine of Baldus lib. de vita, et honestate clericorum, num. 6.

The REASON is, because the matter of this oath is not licit, but rash, and that return is an unjust killing of oneself, by offering oneself to an unjust death. Therefore it is not an act of patience, but of rashness; nor an act of fidelity to a tyrant extorting faith for an unjust killing. Nor is it to redeem a vexation; rather it is to return to a most grave vexation, since it comes to the homicide of oneself; and this seems to be the sense of St. Bonaventure, who in 3. dist. 37. num. 10. in dub litt. asserts that one sins in the same way by killing himself and by killing his neighbor; but that a neighbor is killed even when we can rescue him from death and do not wish to, he says in Compend. Theol. lib. 6. cap. 64. These things I see do not prove that to be the opinion of St. Bonaventure; therefore it will be elucidated more clearly in the following question.