Question XI: Whether it is lawful to exact an oath from one who will perjure himself

It is CERTAIN that it is not lawful to require an oath in which two companions will be lacking, namely justice, or judgment; since no cause of exacting such oaths can arise, the one exacting will sin with the sin of the one swearing, mortally or venially.

The DIFFICULTY, however, will be if Truth will be lacking.

Concerning the three kinds of persons it may be doubted whether they are legitimate exactors of an oath from a perjurer, and they are: Judges, Plaintiffs, and Private persons.

AS REGARDS the Judge, I ASSERT that he can require an oath, the order of law being observed, from one whom he knows will commit perjury. Thus teach the Alensis, part 3, quaest. 31, m. 2, art. 6, quaest. 1, and both Holy Doctors adduced here, whom follow Richard. in 3, d. 39, art. 3, quaest. 3, Paludanus quaest. 2, Maior. quaest. 3, Gabr. quaest. 2, art. 3, dub. 11, Archid. cap. Ille, num. 2, 22, quaest. 5, ibi, Bellamera, and Turrecrem., Socinus regul. 210, Abulensis quaest. 198 on 5 Matth., D. Antonin. part 2, tit. 10, cap. 7, §. 10 and §. 3, Angel. V. Iuram. 3, num. 11, Sylvest. ibi 2, quaest. 9, Armilla vers. 33, Tabien. ibi quaest. 33, num. 34, and V. Periur. quaest. 3, Sotus lib. 8 de Iustitia, quaest. 2, art. 4, Navarr. summae, cap. 12, Covarr. de pactis, p. p., §. 6, num. 2, Pedraza Summae, on the second precept, §. 7, Alcozer summae, cap. 15, Toletus lib. 4 summae, cap. 21, num. 10, Sayrus lib. 5, cap. 5, Petrus de Ledesma, Tome 2, tract. 11, cap. 5, dubio 6, Azor. Tom. 1, lib. 11, cap. 11, Graff. part 2, decis. lib. 2, cap. 4, num. 5, Suarez de Iuram. lib. 3, cap. 14, num. 13 and 17, Lessius lib. 2 de iustitia, cap. 42, d. 10, num. 49, Philiarc. Tom. 1, part 2, lib. 3, cap. 16, Manuel, first Tome of the summa, cap. 191, whom Sanchez brings forward and follows in lib. 3 summae, cap. 8, numero 2.

SOME restrict it, that the Judge cannot do this of his own accord, but only at the instance of a party. Thus seem to think D. Thom., Richardus, Paludanus, Gabr., Socinus, Abul., D. Antonin., Angel., Sylvest., Tabiena, Navar., Sotus, Sayrus, Petr. Ledesma, Pedraza, Manuel, cited above: but more clearly Archid., Bellamera, Azorius, Maior, and Graffius.

BUT they are to be expounded as follows: when he would do it with no right compelling him, but of his own accord merely to instruct his conscience; but otherwise when the judge is bound ex officio to inquire, as in criminal causes, when he proceeds ex officio, as can be seen in Iulius Clarus lib. 5 receptarum in prac. crimin., quaest. 6, num. penult. Thus Durandus 3, d. 39, quaest. 5, ad 2, and there Paludanus quaest. 2, art. ult., ad 2, Turrecremata cap. Quamvis, num. 2, in solut. ad 3, 22, quaest. 1, Alens. loc. cit., Leonard. and Philiar. cited, after D. Bonavent., quaest. 3, corpore, where he says, if he is a judge, it accords, as far as the order of law goes, to inquire ex officio. Therefore, if he is not compelled to this, he ought not to exact such an oath. See Diana part 5, tract. 7, resol. 9, Bassaeus V. Iuram. 3, num. 9.

THEREFORE the assertion is PROVED from D. Bonaventure at the cited places, because the judge uses his right by reason of his office, has a legitimate cause for exacting, and he follows that oath of knowledge which the judge is bound to follow, in order that the process be legitimate; and if a party presses, he is so much the more bound.

AS REGARDS the Plaintiff, many condemn him, all those who say above that it is lawful for the judge only at the instance of a party, because it is not he himself but the party who is considered to exact. Wherefore they seem to condemn the party itself, and that chiefly because there they absolutely condemn the private person seeking this oath, which the Plaintiff commonly is. With these D. Bonaventure also seems to speak in the places adduced. The reason is, because he seems driven by no necessity to the exaction of such an oath: others, however, seem to excuse it, among whom is D. Bonaventure in dubio quarto litt., where he excludes the private person only when he does it from his mere will without necessity: and in the cited question he affirms that a private person can exact such an oath to establish the truth. And although he speaks of idolatry, and denies it of a Christian committing perjury, insofar as he is considered in perjury alone, and, as perjury, it is private, without witnesses, whence we cannot use it for the truth but for the subversion of the truth; nevertheless from D. Bonaventure's doctrine the same follows, that it is lawful to exact it publicly from a perjurer, if the case should arise, so that we can use that oath for publicly confirming the truth, either per se or per accidens, insofar as truth is drawn out of its falsity, as I shall show also concerning the third assertion.

Now such necessity CAN be, if someone conducts another's cause publicly and would be mocked for infidelity or negligent management; if he needs to uncover the frauds of an adversary, to diminish his fame, and indeed to cast down calumnies. For confirming the contract, and for compelling the one swearing before a judge, who, since he judges of externals, will compel the fulfillment of the oath. Therefore Lessius lib. 7 de Iustitia, cap. 42, d. 10, num. 47, Suarez Tract. de Iuramento, lib. 3, cap. 14, num. 16, Sanchez in the place cited, numero quarto, Bassaeus, Diana, and others above follow D. Bonaventure.

I ASSERT that the Plaintiff can require an oath from a perjurer, to protect his right.

¶ It is PROVED from D. Bonaventure, quaest. cit., because he thus uses his right to confirm what is owed to him by another, nor is he bound to yield his right to avoid perjury proceeding from the malice of another; for he does not exact perjury, but an oath. Thus also Sanchez.

YOU WILL SAY that it is lawful also for the Judge only from necessity: therefore there is no difference, which S. Bonaventure and others posit between the Judge, or another public person, and a private one, that it is lawful for the former, not for the latter.

Suarez answers in that cap. 14, num. 17, and Sanchez num. 7, from D. Bonaventure in the cited question, that the diversity is in this: that for the Judge it accords with his office, so that as often as a juridical reason of using it occurs in this office of his, it is lawful; but not so for a private person, so that ordinarily it is not lawful by his own will, but only in some case of confirming a truth conducing gravely to his right, which rarely happens.

AS REGARDS every private person outside of Judgment, they commonly condemn it as mortal. Thus D. Augustinus serm. 10 de Sanctis, and it is related cap. ille, 22, quaest. 1, and serm. 28 de verbis Domini, and it is related cap. qui exigit, 22, quaest. 5, whom D. Bonaventure adduces and follows, and the authors of the first assertion agree.

BUT S. Bonaventure objects to himself, because it is lawful to require an oath from a Pagan, who swears blasphemously by idols, and sins more gravely than if he committed perjury by the true God, as I said quaest. 7.

The holy Doctor answers from D. Augustinus epist. 154 ad Publicolam that the reason is unequal, for one exacting an oath from an Idolater intends that oath for confirming a contract and establishing the truth. Now it is lawful from necessity to exact from someone something that he can do without sin, yet he will do it by sinning: on the contrary, one exacting from a perjurer acquires no utility from it, but causes only a subversion of the truth, and thus the end of the oath is perverted, and it is not saved by any good intention; as it is saved in the case of the idolater swearing, both because, as I said, it is ordered to establishing the truth, and also because Idolaters reckon themselves obliged to keep oaths made by their gods, just as Christians swearing by the true God.

This doctrine, if rightly weighed, is not sufficiently understood by Sanchez num. 4. For S. Bonaventure does not will that it always be a sin for anyone who is not a judge to receive an oath from a perjurer, but only denies that outside a public action, or judgment, a necessity of exacting can arise; for in judgment, or public action, the covenants of contracts are confirmed, and perjuries serve per accidens, so that those who have sworn to observe them are compelled publicly, and for the other ends related above. But if S. Bonaventure wished that, given an equal cause, it be lawful to exact an oath from a Pagan whom we know will swear by idols (although we do not intend to press him so that he swear by them, which is by no means lawful:) but not lawful to exact an oath from a faithful man whom we know will swear falsely by God; the opposite argument would return again: namely, how is it that what is graver is lawful? Therefore the sense of D. Bonaventure is, that it is lawful in judgment, or in public acts, to exact an oath from an idolater, even if we know he will swear by idols, because such an oath in those acts serves for establishing covenants, pacts, and the truth, as the same S. Bonaventure notes on the first before the second, in which he hands down this doctrine of diversity; but that it is not lawful secretly, privately, at pleasure (as S. Bonaventure says in dub. litt.) to exact from a perjurer, since no utility arises from it, nor can any right end be intended, and only the subversion of truth results. Therefore in solemn acts of contracts and covenants, and much more in judgment, one fulfilling the office of a plaintiff can do this; and such are the cases I related above from Sanchez num. 4 and 7; for if you deal only with the one swearing himself, privately, he will certainly deny to you that he swore, as often as you wish to summon him to execution. And in this way D. Thom. also seems to understand it, quaest. 8, art. 4, ad 4, where he compares both in the bare act of swearing, in which the malicious one seems to sin more by committing perjury by God than by swearing truly to an Idol; nevertheless, as to the cause, if it is present, they teach that we can use evil for the good of that cause; otherwise the argument would not sufficiently solve it, because the idolater, as I suppose, swears worshipping the idol, and is not invincibly and wholly ignorant, and therefore he does worse. The same, I judge, Sotus thinks, lib. 8 de Iustitia, quaest. 2, art. 4, Aragon. 2, 2, quaest. 89, art. 6, d. 2, ad 2, Clavim Reg. lib. 5, cap. 3, num. 20, and cap. 5, num. 1.

I ASSERT that it is not lawful privately to extort an oath from a perjurer.

It is PROVED from D. Bonaventure, whom I alleged above and who is followed, and by Sanchez himself num. 5, from D. Augustinus saying in that Sermon 11 de Sanctis that this exactor of an oath kills his own soul, and the soul also of the perjurer.

It is PROVED secondly from D. Bonaventure, because he is drawn to such perjury without necessity, nor does any good end intervene, as I showed, but only the subversion of truth and contempt of God, which is mortal. From these I conclude that Suarez in that cap. 14, num. 17, and Sanchez num. 7, do not well assign the diversity related above, why it is lawful to exact an oath from one who will swear by idols and not from one who will commit perjury by God, namely because utility and cause are found totally and ordinarily in the case of an oath exacted from a Pagan, not in this one, in which regularly the cause is lacking. For on the contrary, each brings forward more cases in which there is a cause for exacting an oath, even from a perjurer: therefore there is no difference. It is confirmed, for infidels are for the most part barbarous, and lacking in fidelity.

THEREFORE in private acts, lacking witnesses, they are equal, so that it is not lawful to exact an oath from either, indeed less from the idolater. Per accidens, however, it is possible for an Idolater to be morally faithful, and therefore for it to be exacted, if I probably know that he will confirm, if it is necessary, and ratify publicly the oath: which can be promised and presumed with more difficulty of the perjurer, who is of bad faith, and worse than a Barbarian morally faithful, or a man of human fidelity.

NOTE, that in cap. Clericos, de cohabitatione clericorum it is forbidden that an oath of dismissing concubines be sought from clerics, on account of the danger of transgression: therefore when it is probably known that he will not fulfill it, it is not lawful to exact the oath.

OR say, that the Pagan and the Perjurer are compared in the reason of the oath, such that the perjurer is exacted without that whereby his oath could serve, as the oath of the Pagan would serve.

For this comparison is made not ex professo; for thus each ought to be considered in the same condition, whether, and circumstance; but only in this, that, since it is defined that an oath cannot be exacted from a perjurer.

It is objected that if it can be exacted from an Idolater, who sins more gravely, why not also from that one?

It is answered that this one, of whom we speak, insofar as he is in a private act, not however in genus, cannot be exacted from, because it serves for nothing: just as an oath by the gods serves in the way it is exacted from Pagans for confirming covenants; for thus it serves, because it can be proven and sustained for preserving our right.