Question V

GRATIAN. PART I. As to what is asked in the fifth place—if what the archdeacon had sworn was lawful, whether the bishop who compelled the archdeacon to commit perjury would be guilty of perjury—it can easily be determined. For if one who consents is to be punished with a penalty equal to that of the doer, much more is one who compels proved guilty of the crime committed. Hence Pope Pius says:

When one who is compelled by his lord knowingly commits perjury, both are perjurers, both the lord and the soldier: the lord, because he commanded it; the soldier, because he loved his lord more than his soul. If he is free, let him do penance for forty days on bread and water and for the following seven years; if he is that lord’s slave, let him do penance for three forty-day periods and the appointed fast days.

Likewise. One who commits perjury in the hand of a bishop or upon a consecrated cross is to do penance for three years; but if upon an unconsecrated cross, he is to do penance for one year. One who was compelled and, not knowing it, committed perjury, and afterwards recognizes it, is to do penance for three forty-day periods.

Likewise from the Penitential of Theodore. If anyone, having been compelled for the redemption of his life or for any cause or necessity, commits perjury, because he loved his body more than his soul, let him do penance for three forty-day periods. Others adjudge three years, one of them on bread and water.

Likewise Pope Gelasius. If anyone shall have perjured himself and knowingly led others into perjury, let him do penance for forty days on bread and water and for the following seven years, and let him never be without penance. And if the others were aware of it, let them do penance likewise.

Likewise Augustine in the sermon on the beheading of Saint John, [that is, sermon 11 On the Saints]. One who provokes a man to swear and knows that he will swear falsely surpasses a murderer, because the murderer is about to kill the body, but the former the soul—indeed, two souls, both that of the one whom he provoked to swear and his own. You know that what you say is true and what he says is false, and you compel him to swear? Behold, he swears; behold, he commits perjury. What have you gained? Rather, you too have perished, who wished to be sated by his death.

The same in the sermon on perjuries, [that is, in sermon 30 On the Words of the Apostle, otherwise 28]. As regards one who demands an oath, it makes a great difference whether he does not know that the other will swear falsely or knows it. For if he does not know and for that reason says, “Swear to me,” so that confidence may be placed in him, it is not a sin; nevertheless, it is a human temptation. But if he knows that the man committed the deed and compels him to swear, he is a murderer. For the latter destroys himself by his perjury, but the former both placed and pressed the hand of the one killing.

Likewise from the Council of Mâcon, [I, c. 17]. If anyone shall have been convicted of having drawn others into false testimony or perjuries, or of having solicited them by any corruption, let him indeed not communicate until the end of his life; but those who are proved to have consented to him in the perjury are thereafter to be removed from all testimony and will be marked with infamy according to the law. PART II. GRATIAN. Likewise, one who hears someone swear falsely and remains silent commits an offense. Hence Augustine says in Questions on Leviticus, c. 1: “The soul that shall have heard the voice of one swearing falsely, etc.”:

This appears to say that a man sins when someone swears falsely in his hearing and he knows that the man swears falsely but remains silent. But he knows this if he was a witness to the matter about which the oath is sworn, either by seeing it or by being privy to it—that is, if he knew it in some manner, either perceived it with his own eyes, or the very man who swears disclosed it to him. For in this way he could have been privy to it. § 1. But between fear of this sin and fear of betraying men there very often exists no small temptation. For by warning or prohibiting him we can recall one prepared for perjury from so grave a sin; but if he shall not listen and in our presence shall swear falsely concerning a matter that we know, whether he is to be disclosed, so that after being disclosed he might even incur danger of death, is a most difficult question. But because he did not express here to whom this is to be disclosed—whether to the one to whom the oath is sworn, or to some priest who not only cannot persecute him by inflicting punishment but can also pray for him—it seems to me that a person frees himself from this bond of sin if he discloses it to such persons as can benefit rather than harm the perjurer, whether by correcting him or by appeasing God for him, if the perjurer himself also applies to himself the medicine of confession. GRATIAN. Therefore, if this man who hears someone swear falsely and remains silent commits an offense, as was said above, much more is one who compels another to swear falsely guilty. PART III. § 1. It is asked concerning one who thinks that by craftiness of words he circumvents the person to whom he furnishes an oath, whether he is guilty of perjury unless he observes what he is believed to have sworn. Isidore writes thus concerning this in Book II of the Sentences, [c. 31].

By whatever artifice of words one may swear, nevertheless God, who is witness of the conscience, accepts it as the one to whom the oath is sworn understands it. Moreover, one who both takes the name of God in vain and ensnares his neighbor by deceit becomes guilty in two ways.

Likewise from a sermon of Saint Augustine, [sermon 30 On the Words of the Apostle]. Behold, I say to your charity that one who swears falsely by a stone is also a perjurer. Why do I say this? Because many are deceived even in this and think that, because that by which they swear is nothing, they are not held by the crime of perjury. You are altogether a perjurer, because you swear falsely by that which you do not consider holy. If you do not consider it holy, the one to whom you swear considers it holy. For when you swear, you swear not to yourself or to the stone, but to your neighbor. You swear to a man before a stone; but is it not also before God? The stone does not hear you speaking, but God punishes you for deceiving. But that passage of Gregory in Book XXVI of the Moralia, [c. 7], is objected:

Human ears judge our words to be such as they sound outwardly. But divine judgments hear them outwardly such as they are brought forth from within. § 1. Certainly let him who explains another’s intention and will by various words know that one ought to consider not the words but the will and intention, because the intention ought not to serve the words, but the words the intention. GRATIAN. Therefore, if divine judgments hear our words outwardly such as they are brought forth from within, and if intention ought not to serve words but words intention, it is evident that God does not accept an oath as the one to whom it is sworn understands it, but rather as the one who swears understands it, since our words sound to the recipient not from within but from what is uttered outwardly. § 1. Likewise, it is objected that one who swears upon a stone while thinking that he swears upon the sacrosanct Gospel is bound just as if he had sworn upon the Gospel, even though the one to whom he swears had him swear upon the stone precisely so that, by not observing what he promises, he might not be held by the guilt of perjury. § 2. Likewise, the case is objected of citizens who believe that they swear that they will obey their consuls in all things that shall have been commanded to them for the honor of their city. But lest, by refusing obedience, they be ensnared by the guilt of perjury, a document is placed beneath the hands of those about to swear in which something other than what they suppose themselves about to swear is contained—namely, that they will not divert the Po into the Nile or do something of this kind. Therefore, if, contrary to what they had believed themselves to have sworn, they should deny obedience to their consuls, would God accept that oath according to the intention of the recipient, or not rather according to the intention of the one swearing? § 3. Likewise, if an innocent person charged with adultery or theft wished to assert his innocence, but should swear that he was as free from the charges as is contained in that document which he supposes himself to have written with his own hands, whereas it is contained in it that he is guilty of the charges, would he be reckoned a perjurer by the Lord? Or could he be accused of having sworn that he had incurred the guilt of adultery or theft? No. Hence John Chrysostom also says:

The reason for this oath is that everyone who swears, swears for this purpose: that he may speak what is true. And therefore the Lord wills there to be no distance between an oath and our speech, because, just as no faithlessness ought to be in an oath, so also no lie ought to be in our words, because both perjury and lying are condemned by the penalty of divine judgment, Scripture saying: “The mouth that lies kills the soul.” Therefore, whoever speaks the truth swears, because it is written: “A faithful witness will not lie.”

The same. One who is prepared to commit perjury appears already to be a perjurer before he commits perjury, because God judges not from works but from thoughts and from the heart. GRATIAN. From all these things it is gathered that oaths are judged by God according to the intention of the one furnishing them, not of the one receiving them. How then, according to Isidore, does God accept an oath, by whatever artifice of words one may swear, as the one to whom it is sworn understands it? But just as it is one thing to swear with crafty artifice of words and another simply to declare one’s intention by swearing, so it is one thing to receive an oath made with a simple intention and another to employ craftiness in receiving it, because, just as no one is able before God to harm another person, so neither is one able to benefit another contrary to that person’s intention. But God, the despiser of duplicity, considers the simple intention of each party and, on the part both of the recipient and of the one furnishing the oath, spurns and hates artifice of words. PART VI. § 1. Concerning the age of persons swearing, however, it is asked at what age anyone ought to be compelled to swear. Concerning this it is found determined as follows in the first book of the Capitularies, [c. 63]:

Little children who are below the age of reason are not to be compelled to swear. And one who has once committed perjury is thereafter neither to be a witness nor to approach an oath, nor to serve as a sworn person in his own cause or another’s.

Likewise from the Council of Elvira. Boys are not to be compelled to swear before fourteen years of age. A girl also, if, being of childish age in her father’s house, she shall have bound herself by oath without his knowledge, and her father, when he hears of it, shall immediately contradict it, her vows and oaths will be void, and she will be corrected more easily.

Likewise Pope Cornelius. It also appears honorable that one who dares to swear upon holy things should do this while fasting, with all honorableness and fear of God, and that boys should not be compelled to swear before fourteen years of age. GRATIAN. Furthermore, there are certain times in which we are prohibited from swearing. Hence in the Council held at Saint-Médard:

The holy synod decreed that from Septuagesima until the octave of Easter, and from the Advent of the Lord until the octave of Epiphany, and also on the fasts of the Ember Days, on the Greater Litanies, on Sundays, and on the Rogation Days, no one is to presume to swear upon the holy Gospels, except concerning concord and peacemaking. PART V. GRATIAN. Concerning the form of fidelity, and what each person owes to his lord, or conversely, it is found as follows in the letter of Bishop Fulbert:

Having been admonished to write something concerning the form of fidelity, I have briefly noted for you from the authority of books these things that follow. One who swears fidelity to his lord ought always to keep these six things in memory: harmless, safe, honorable, useful, easy, possible. Harmless, namely, lest he cause harm to his lord concerning his lord’s body. Safe, lest he cause harm to him concerning his secret or concerning the fortifications through which he can be safe. Honorable, lest he cause harm to him concerning his justice or concerning other causes that appear to pertain to his honor. Useful, lest he cause harm to him concerning his possessions. Easy or possible, lest he make difficult for him the good that his lord could easily do, or render impossible for him what was possible. It is just that the faithful man guard against these injuries. § 1. But because it is not sufficient to abstain from evil unless what is good is done, it remains that in the same six things mentioned above he faithfully furnish counsel and assistance to his lord, if he wishes to appear worthy of his benefice and to be secure concerning the fidelity that he swore. § 2. The lord also ought to render the same in return to his faithful man in all these things. If he does not do so, he will deservedly be judged to have acted in bad faith, just as the former, if he shall have been discovered either doing or consenting to their violation, is faithless and a perjurer.

[PALEA.

Augustine. If any layman profanes by violating the oath that he swears to his king and lord, and afterwards shall have dealt perversely and deceitfully with his kingdom and plots against his life by some contrivance, because he perpetrates sacrilege by laying his hand upon the Lord’s anointed, let him be anathema unless he shall have amended himself through a worthy satisfaction of penance, as was established by the holy synod—that is, let him leave the world, lay down arms, enter a monastery, and do penance all the days of his life. Nevertheless, at the end of his life let him receive communion with the Eucharist. § 1. But if a bishop, priest, or deacon shall have committed this crime, let him be degraded. ] PART VI. GRATIAN. Accordingly, as appears from the foregoing, a lie ought neither to be uttered in simple speech nor confirmed by oath. Moreover, a lie is proved to exist not only in words but also in feigned works. Hence Ambrose says in a sermon delivered on the Sunday concerning Abraham:

Beware of lying, brothers, because all who love lying are sons of the devil. § 1. A lie exists not only in false words but also in feigned works. For it is a lie to call oneself a Christian and not to do the works of Christ. It is a lie to profess oneself a bishop, priest, or cleric and to perform things contrary to this order.

Likewise Jerome, [on chapter 4 of the Epistle to the Ephesians]. Whenever we speak either at an inopportune time, or in an inopportune place, or not as is fitting for the hearers, so often evil speech proceeds from our mouth to the destruction of those who hear. Therefore let us consider what we say, because for every idle word we are to render an account on the day of judgment. PART VII. GRATIAN. A cleric, however, ought not to furnish an oath to a layman. Hence it is read in the Council of Reims:

Let no one of the ecclesiastical order presume to swear anything upon the holy Gospels to any layman, but let him say simply, with truth and purity: it is, or it is not. But if there is anything charged against him, according as those who are of the same order shall judge, let him either be corrected or clear himself. [PALEA. A cleric likewise ought not to furnish an oath to a bishop, except perhaps one to whom he commits the administration of the church. Hence Urban II says:

Let no bishop compel his clerics to swear to him, except perhaps those to whom the administration of ecclesiastical affairs shall have been committed. ]