The Fictitious Oath

I. Notion. A fictitious oath is an oath emitted merely externally, that is, without the intention of swearing. An oath of this kind is invalid (n. 682).

II. Morality. 1. A fictitious oath is always illicit; for there is irreverence in the fact that God is invoked only externally, and therefore vainly. There is added proposition 25, condemned by Innocent XI,¹ whose condemnation favors the stated opinion (St. Alphonsus, III, 172).

2. A fictitious oath emitted in confirmation of what is false is a grave sin, because grave irreverence is present in the fact that God, even merely externally, is invoked as witness of what is false. But this obtains in an assertory oath when the asserted matter is false; in a promissory oath, when the will of fulfilling what was sworn is lacking (St. Alphonsus, cited place).

3. A fictitious oath emitted in confirmation of what is true is quite probably of itself only a light sin, because grave irreverence does not appear in the fact that someone merely externally invokes God as witness of what is true. I said of itself; for it is a grave sin: 1. if the oath is commanded by legitimate authority, because authority commands a true oath; 2. if it is done with unjust and grave deception of one's neighbor (St. Alphonsus, cited place).

¹ "With cause it is licit to swear without the intention of swearing, whether the matter is light or grave" (Denzinger-Bannwart, n. 1175).

III. Obligation. A fictitious oath of itself does not oblige, because it is invalid; it can, however, oblige, and indeed under grave obligation, by accident, for example if one's neighbor is deceived with grave harm, if neglect of the thing sworn carries grave scandal with it, etc.

IV. Things to be noted concerning oaths which are fictitious in appearance rather than in truth.

1. A promissory oath emitted without the intention of fulfilling what was sworn is a true oath, but a mortal sin, which is called perjury; moreover it obliges, as being valid (St. Alphonsus, III, 172).

2. A promissory oath emitted without the intention of obliging oneself seems to be a grave sin, because grave irreverence seems to be present in the fact that someone invokes God, and at the same time does not wish to be bound by His invoked authority.

S. Th. II-II, q. 89, a. 7-9.

755. The intrinsic effect of a promissory oath is the obligation of executing the thing sworn from the virtue of religion. - It is certain, both from Scripture (Num. XXX, 3; Mt. V, 33), and from reason, because he who does not fulfill a promise confirmed in His name inflicts injury upon the authority of God (can. 1317, § 1).

The obligation is grave from its genus, yet probably admits lightness of matter, just as a vow does.

It is proved: 1. directly. Because the obligation of a vow is graver than the obligation of an oath as promissory.¹ For the former is caused from the fidelity which we owe to God Himself, so that we pay Him what was promised; the latter is caused from reverence toward God, from which we are bound to verify that which through His name we promised before Him. But the obligation of fidelity regards God more directly than the obligation of reverence, for infidelity contains irreverence, not conversely, and infidelity toward a lord is the greatest irreverence. Therefore we are more strictly bound to do that which we promised to God Himself than that which we promised with God only as witness (a. 8). Whence if the obligation of a vow admits lightness of matter, a fortiori the obligation of a promissory oath does.

¹ We say: as promissory. For the obligation of an oath as assertory is greater: there it is a negative precept not to swear falsely, which is directly contrary to God; here it is an affirmative precept of fulfilling a sworn promise. But a negative precept obliges more than an affirmative.

2. indirectly. Because the violation of a promissory oath is not proved to be perjury strictly so called, as the adversaries² contend, saying: He who does not fulfill an oath makes it be false and lying, because he makes God witness of a lie. For he who does not fulfill what he sincerely promised does not make a lie; because he does not say or do against his mind, but only changes his mind, inconstant and unfaithful, as St. Thomas himself explains (II-II, q. 110, a. 3, ad 5). Therefore he who does not fulfill what he sincerely swore does not make God witness of a lie, provided he had the intention of fulfilling the oath; but he only acts inconstantly or unfaithfully in a thing promised under divine authority, and thus contracts irreverence toward God, which is a grave or light sin according to the gravity or lightness of his inconstancy or infidelity.

² For example, Cajetan, Toledo, Valentia, Lessius, Gabriel, Bonacina, etc. On the contrary, St. Antoninus, Sylvester, Soto, Suarez, Laymann, Navarrus, Sylvius, Azor, the Salmanticenses, Billuart, and almost all moderns.

In other words, violation of an oath as promissory is not a sin which directly opposes a divine attribute, and therefore it is not necessarily and always mortal.

Nevertheless it does not follow that someone can oblige himself by oath under light obligation in grave matter, as for a vow. For the disparity is that to promise is nothing other than to will to oblige oneself, whence the whole obligation of a promise immediately depends upon the will of the agent, who can promise or oblige himself more or less. But an oath is not directly for obliging but for the confirmation of truth by divine testimony, from which confirmation obligation naturally follows, because of the reverence of God; whence this obligation of an oath does not depend only and immediately upon the will of the one swearing, but upon the law of reverence owed to God, because it is a consequence of the testimony invoked. For someone cannot swear more or less, or invoke God as witness more or less, but he either invokes or does not invoke, and once He is invoked, God is patron of the obligation and urges fulfillment from the law of reverence owed to Him, which is greater or less not indeed according to the intention of the one swearing, but according to the gravity of the promise or of the promised matter sworn.

756. The conditions required for the validity of a promissory oath, both on the part of the act and on the part of the matter, are almost the same as for a vow.

Yet there are two exceptions:

1. An oath made in favor of a third party need not be made concerning a better good, but it suffices that it be concerning a good useful to one's neighbor. The direct end of a vow is the greater worship and honor of God; but the direct end of an oath is the confirmation of truth, which can also be had in a lesser good.

2. Even grave and unjust fear does not invalidate an extorted oath, as is now altogether certain from canon 1317, § 2, because although it renders the act involuntary in a certain respect, nevertheless it does not simply remove the voluntary. Whence an oath remains a human act and consequently is capable of inducing obligation; which nevertheless can, in the name of God, be relaxed by an ecclesiastical superior.

Nor should you say that God does not accept an oath extorted by injury, because an oath is not made in favor of God nor must it be accepted by Him, but is a simple appeal to His testimony; that God as patron gives authority to the promise is only a consequence of the invocation. Yet in the case the one swearing can use a restriction: I will give insofar as you have a right; but if he did not do this but truly invoked, he is bound to pay the promise, yet he can immediately seek back in judgment what he paid (a. 7, ad 3).

If a condition required for the validity of an oath is lacking, sin is committed, grave or light, in the same way as was said concerning a vow (n. 721). But he who swears fictitiously or merely externally is not obliged by force of the oath from religion, but can sometimes be held because of scandal or harm inflicted.

757. The obligation of a promissory oath must be fulfilled and ceases in the same way as was said concerning the fulfillment of a vow (n. 727) or its release from obligation (n. 732). Yet the obligation of an oath ceases not only by all the things by which the obligation of a vow ceases, but also by the renunciation of the third party or by condonation made by him in whose favor it principally redounds (a. 7, ad 2 and a. 9; can. 1319).

But three things should be noted: 1. that he who can irritate, dispense, or commute a vow can by that very fact do this concerning a promissory oath (can. 1320); 2. but if the dispensation of an oath tends to the prejudice of others who refuse to remit the obligation, the Apostolic See alone can dispense, and only because of necessity or utility of the Church or the common good (ibid.); 3. probably no oaths are reserved, even if they confirm reserved vows.

758. The obligation of a promissory oath is to be interpreted strictly, because the one swearing is judged to have wished to oblige himself as little as he could. Thus especially canon 1321, conformably to St. Thomas, a. 7, ad 4.

Hence: a) An oath per se, and unless the one swearing intended otherwise, follows the nature of the act to which it is joined: the accessory follows the principal; therefore if it is added to a vow, promise, or contract, its obligation will have the same extension, the same limits, and the same expressed or tacit conditions (can. 1318, § 1). Thus, for example, an oath of keeping a secret, residence, a contract such as betrothal, the statutes of a college, fidelity toward a regime, per se does not oblige beyond what is demanded by the matter of the secret, or the law of residence, or the nature of the contract, for example, of betrothal, or the custom had concerning the statutes of a college not to be published but already published, or the fidelity of a regime insofar as it is not opposed to a superior divine and ecclesiastical right.

b) "If an oath is added to an act directly tending to the harm of another or to the prejudice of the public good or of eternal salvation, the act obtains no firmness from it" (can. 1318, § 2).

c) Although an oath does not have the force of validating and confirming invalid or rescindable contracts, nevertheless, if the contract is invalid, it can induce an obligation of religion, if it is emitted absolutely and independently of the obligation of the contract, so that the one swearing is prohibited by religion from seeking the annulment of the contract, and, with the contract irritated, the obligation of religion remains until there is dispensation in it. Then, namely, there is a mere purpose confirmed by oath and a promissory oath broadly so called or standing of itself.

d) Oaths very often used: of not selling for less or not buying for more, of not granting or accepting a favor, of chastising a subject, etc., generally do not oblige, because the intention of swearing is lacking, or the matter is vain and useless, or finally the condition understood is lacking (for example, if the matter is not otherwise more opportune), or the state of things is sufficiently changed.

15. When there is a just cause, it is lawful to swear without intending that one should be believed, whether the matter be light or grave.

XIV. Question V. Does one who swears something true without the intention of swearing sin mortally? Response: Cajetan (II-II, q. 89, art. 5, dub. penult.), Covarrubias (Bk. 1, Variae, Part 5, n. 3), Armilla (s.v. Perjurium), Filguera (in his exposition of the condemned propositions) uphold the affirmative part — since it is a mockery of the divine name, and a deception contrary to the primary end of an oath. Suárez (Bk. III, ch. 17, n. 6) reckons this opinion too rigid, yet at the same time defines it as probable. Nonetheless, he defends the contrary as more probable, to which accede Cárdenas (dissert. 18, on the condemned propositions, ch. 2), Castropalao (disp. 1, punct. 8), Bonacina (disp. 4, q. 1, punct. 7), Lessius (On Justice and Law, Bk. II, ch. 42, dub. 8, n. 42), Sánchez (Bk. III, ch. 6), Viva (on the condemned propositions, n. 5), La Croix (Bk. III, part 1, dub. 14, n. 155), who all teach that to swear something true without the intention of swearing, in light matter, is only a venial sin, provided the oath is not made in judgment, in a contract, or in a similar circumstance, in which one's neighbor could suffer some detriment. The reason of these Doctors is that the lie which someone commits, when he swears something true without the intention of swearing, is injurious neither to God, nor to man: not to God, since he is invoked externally in confirmation of a truth; not to man, since it is taken as certain that neither a contract, nor anything in which a man could suffer some grave harm, is to be confirmed by this oath; and although one's neighbor may be deceived, since this oath is supposed to occur in human commerce, that deception is nonetheless not grave, since it inflicts no grave harm. These are the reasons for this opinion.

XVII. Question VI. Does one who deliberately swears without the intention of swearing utter a true oath? Response: Authors commonly teach that a true oath is not present, from the defect of the intention necessary for an oath; and no one calls this into doubt. But, for greater clarity of what has been said, it is worth explaining the proposed question... as briefly as possible. To explain, then, in a few words, what I myself think, I say that one who seriously, and deliberately, invokes divine testimony in confirmation of truth, saying, "By God it is so," truly utters an oath, and truly swears, although he may have the resolve of not swearing. To this I am moved, because the signification of words does not depend on man's will and effect. Given, then, that a man has once seriously and deliberately wished to invoke God in confirmation of truth, he can no longer, by an internal resolve, bring it about that this invocation not be an oath. And so that you may perceive the whole matter more clearly, you must observe that in a man swearing in this manner, two mutually contrary and conflicting intentions are found. The first intention, and deliberation, is that by which the swearer really invokes God as witness, and utters an external oath. The second is that by which he does not wish to swear. These two deliberate intentions mutually collide, and one prevails over the other.

Which, then, prevails? In fact, the former, since this is efficacious, and produces its effect, namely, the external swearing. The second intention is inefficacious, and a mere velleity, not an efficacious will. From this it plainly follows that this external oath is a true oath, since it proceeds from a deliberate will.

XVIII. You will object: An oath depends on the intention of the swearer; but one who swears without the intention of swearing does not have the intention of swearing: therefore he does not really utter a true oath, but only the external sound of an oath. Response: I have proposed this objection precisely so that our own opinion might shine forth more evidently. We grant, then, the first proposition; the second we deny, or, for the sake of clarity, we distinguish: one who swears without the intention of swearing does not have an efficacious intention of swearing — this I deny; an inefficacious one — this I grant. That intention is called efficacious which really produces an effect. The first intention, by which someone seriously and deliberately invokes divine testimony in confirmation of truth, saying, "By God it is so," is efficacious: for it produces its own effect, namely, the external invocation of divine testimony. The second intention, by which the swearer resolves that he does not wish to swear, is languid, and inefficacious, overcome and subdued by the former. For, in the mutual conflict of swearing and of not swearing, the former intention conquered, by force of which the oath was pronounced, and God was called to witness; and the external oath appeared to all, and the hearers took it as an oath, and finally the swearer himself wished to seem to the men he was addressing to have uttered a true oath. The second, internal intention has no power to impede the signification which those words, "By God it is so," present — in the same manner in which the second intention, by which a merchant might not wish to throw his goods into the sea, does not impede the first intention, by which he really does throw them, because the effect is really produced. There are, then, two intentions, both internal. But the first can be called external, because it externally produces its own effect, namely, the invocation of divine testimony; the second is merely internal, because it produces nothing externally. He would indeed wish to impede that external invocation from being a true oath; but he cannot accomplish this, because, by this very fact that the first intention prevails, of pronouncing seriously and deliberately those words which contain a true oath, the will can no longer take away from those words their own proper signification.

I. So that anyone may most easily perceive how opportunely I have prefixed Augustine's teaching against lying, before entering upon the most difficult controversy concerning the deceitful oath, it is worth setting forth beforehand certain general propositions, which are gathered, as it were, in summary, from St. Augustine's teaching, so that I may set them before the readers' eyes by a simple narration. Once I have explained these propositions, in comparison with the teaching of more recent authors, the discourse will return to them below.

II. All the difficulties which more recent writers turn over in their Books concerning equivocations and mental restrictions, and all the cases relevant to practice, St. Augustine brings under examination, both in his Book On Lying, and in that Against Lying. For, at the very beginning of the disputation, he attests that he wishes to institute a discourse concerning those expressions which greatly disturb the mind in daily speech; and he indicates the two chief purposes of his treatment: one, lest anyone wrongly condemn as a lie what is not a lie; the other, lest a lie be ever held lawful. "Great is the question concerning lying, which often disturbs us in our own daily actions; lest we either rashly accuse of lying what is not a lie, or judge that one must sometimes lie for some honorable, officious, and merciful reason" (Book on Lying, ch. 1).

III. The hinge of Augustine's disputation, in the two Books cited above chiefly, turns on this: that reasons be given for the concealment of truth in matters of the highest moment, such as for the preservation of life, of chastity, and for the keeping of secrets. And Augustine himself, with his own divine genius, could find no remedies beyond these which follow. The first is silence: "For most often," he says (Book Against Lying, ch. 10), "we conceal true things, not by lying, but by keeping silent." The other is an open and unconcealed signification, by which someone protests that he knows the truth, but is unwilling to reveal it: "I fear God, I do not betray them. I will neither betray, nor will I lie." No other way of concealing truth did Augustine recognize — not internal restrictions, not material locutions, not amphibologies of words, not other inventions of more recent authors, wherever they may be found.

IV. It is evident that Augustine was altogether ignorant of the doctrine of lying held by very many more recent writers, both his predecessors, and later Fathers, and the very defenders of lying themselves. Indeed, they would have disapproved it as false, on the grounds that they had determined that we cannot conceal truth, except either by silence, or by an open signification of our unwillingness to reveal it, or by lying.

V. No difference at all, as I indeed judge, is repeated in this controversy between Cassian, and other ancient defenders of lying, and certain more recent theologians, except that the ancients called it "lying" when they used a lie in extreme, or most grave, necessity — namely, to conceal a truth of the highest moment, such as for preserving bodily chastity, life, and procuring another's eternal salvation — and asserted this to be lawful. The more recent, by contrast, say for the most part that, in these circumstances, indeed even in far more trivial matters, it is not a lie; but an amphibological, or equivocal, saying, or a restriction — which was formerly called purely mental, is now called external — or, finally, a locution signifying nothing.

VI. All the arguments which more recent writers bring forward in favor of mental restrictions — chiefly those which they draw again from Sacred Scripture — Cassian, along with other Fathers, produced as patrons of his own opinion, to show that lies are lawful.

VII. They said that officious lies were to be employed as extreme remedies for escaping death, for preserving life, for procuring the eternal salvation of one's neighbor, of a worse condition than the opinion of very many more recent writers who defend such lies; for those who defended lies as licit were, in this respect, of a lesser evil condition than those who advocate altogether mental restrictions. Since the latter teach that men can make use of the same, whenever it is useful for the safety of body, honor, and the protection of family affairs — a matter already so defined.

VIII. Some more recent writers, who wrote on mental restrictions after the opinion was condemned by the Church, wrote, as I indeed judge, more loosely, in better judgment, than the ancients, and even than certain other modern patrons of restrictions. Since these latest, most recent writers teach, the proscribed restrictions having been set aside, that men have no need at all of these restrictions; that they need not weary their minds over them, from which these latest, most recent writers free the faithful, salvation always being safe... , indeed do not even torment and rack their brains in hunting out ambiguous words, as Sánchez would have it, nor in fitting equivocal words, or in the very restrictions of mind — as certain patrons of mental restrictions teach, and teach that they must, in order to protect not life, not chastity, but their own family goods, hurl a round "no" in the face of an importunate questioner — namely, that they must deny, absolutely, and without the inconvenience of restriction or equivocation, that they have the sum which the purchaser, seeking to pay, asks about, since then the words signify nothing, and the man speaks as a parrot.

IX. What in the teaching of certain more recent writers seems to me supremely to be deplored is this: that not only do they assert, but even teach, that those locutions which the ancients called lies are not lies — locutions which they themselves call material — and that they can lawfully be confirmed by oath.

He NOTES first, from D. Bonaventure in the body, and the end of the question, that one swears deceitfully in two ways. First, when the mind does not accord with the words of the oath. Secondly, when they do not accord with the will of him to whom the oath is given, in that we elude by amphibologies, or by windings of words, although the words and the mind of the swearer accord among themselves.

He NOTES secondly, that the mind is wanting in three ways. First, if you swear with the mind of swearing, and not of giving, and consequently also not of promising; for if you have the mind of promising, you have also the mind of giving, as is gathered from D. Bonaventure, who constituted a single defect from these two. And Valentia notes this disput. 6. quaest. 7. puncto 4. col. 1415. against Sotus lib. 8. de Iustitia, quaest. 1. art. 7. Caietanus 2. 2. quaest. 89. art. 7. Sanchez lib. 3. cap. 6. num. 3. et cap. 10. num. 2. who distinguish these two: to have the mind of promising, but not of fulfilling; and the mind of promising and of fulfilling. And indeed Sanchez cap. 10. num. 5. places this distinction also as the mind of D. Bonaventure art. 3. quaest. 2. because he says, the Church does not compel oaths extorted by fear, because it presumes that they were emitted with the mind of escaping danger, not of fulfilling the oath. But Sanchez does not show this for that reason, because the Holy Doctor presupposes it, absque animo even of obligating himself; nevertheless I judge this mode possible, which is the same according to what was handed down in the preceding question.

The SECOND mode is, if the mind of swearing is absent. The third, if the mind of obligating oneself is absent, even if you wish to swear; yet this mode, which Sanchez posits, suffers some difficulty; for he who wishes to undergo an oath, and knowingly wills it, knowing its bond, seems necessarily to will also the consequence of the bond of obligation. That such a one does not swear, Azor teaches p. p. lib. 11. cap. 4. quaestio 2. Sanchez lib. 5. cap. 11. num. 8. Sylvius quaest. 89. art. 7. quaestio 3. cap. 1. Sylvester V. Iuram. 4. quaestio 20. Bonacina de Iuram. puncto 7. nor does Bassaeus refuse it V. Iuram. 2. num. 2.

Valentia adds a FOURTH mode, when the swearer has neither the mind of swearing, nor of obligating himself by the oath. But this mode too is superfluous, for by the very fact that he does not swear, nor obligates himself by the oath; the will excluding swearing excludes also obligating oneself, which is the effect of the oath.

The FIRST mode indeed makes perjury mortal by the consent of all. So D. Bonaventure in the body, and others cited by Sanchez cap. 4. num. 16. for he truly deceitfully brings forward God as witness.

AS FOR the second mode, some judge it mortal. So Caietanus 2. 2. quaest. 89. art. 7. Armilla V. Periurium, num. 3. Couar. de pactis 1. part. §. 5.

The SECOND opinion is that to utter words sounding an oath, with the mind of not swearing, is then mortal, when that oath concerns false matter, whether of the present, or of the future: Next, if it concerns true matter, and the oath is legitimately required, whether by a Judge, or by a contracting party; but if it concerns true matter, yet is not legitimately required, it is not, he says, mortal, but a simple lie. So Sotus lib. 8. de Iustitia, quaest. 1. art. 7. ad 4. Aragon. 2. 2. quaest. 89. art. 7. ad 4. concl. 6. Petrus Ledesma 2. Tom. tract. 11. cap. 3. dub. 6. Lessius lib. 2. de Iustitia, cap. 42. et 43. Suarez tom. 2. de religione Tract. de iuram. lib. 3. cap. 17. and although Sotus speaks of one compelled to swear, yet his reason proves it of everyone not obligated to swear.

The THIRD opinion is that of Valentia 2. 2. d. 6. quaest. 7. puncto 4. toward the end; where, in the case in which one is not obligated to swear, but the oath is unreasonably extorted, he thus distinguishes: If the swearer speaks the truth, then he sins only venially, when he wills to signify that he has the mind of swearing; because it is a lie not pernicious, as the Authors of the second opinion also say; otherwise if he does not will to signify this, but something else disparate; then there is no fault. But if he swears falsely, and wills those external words of the oath to be referred to ratifying false matter, it is mortal. This the Authors of the first opinion teach: but if he does not refer those words to false matter, nor can anyone think this, and take scandal from it; but only uses his right, usurping those words to signify something true in his mind; or he usurps them only materially, willing to confirm nothing by them; it will be only venial. Indeed Sanchez num. 10., following Valentia, adds that it is not even venial, which Soto also holds, when one unjustly compelled usurps those words materially.

AS FOR D. Bonaventure, he seems in quaest. 1. art. 3. to speak only of one truly swearing, without the mind of obligating himself; yet concerning this too he seems to infer consequently, that it is not indeed a true oath, yet it is lethal; for by the very fact that there is the mind of not obligating oneself, there is also present the mind of swearing not truly, but with the mouth only, as Sanchez notes num. 7. cap. 4. Therefore the same seems to be said of both. And quaest. 2. he seems to infer it also of him who is compelled to swear: But in Distinction 38. quaest. 3. in corpore he teaches that even a simple lie, by reason of scandal, can become mortal; much more if it appear confirmed by an oath. Finally, in d. 39. quaest. 3. he excuses one who professes oaths from sole invincible incaution from falsity.

THUS therefore, if the swearer speaks the truth, it will be only venial, unless it is justly required; for then he is bound to swear, and to swear truly, as D. Bonaventure teaches loc. cit. in corpore, so that the sole external utterance of what is false before a judge renders one infamous, as is had in 6. quaest. 1. cap. infames, and D. Thomas also reports it quaest. 98. art. 3. argumento 3. The same is to be said in legitimate contracts. But if he swear falsely, it will be mortal. And thus D. Bonaventure seems to approach the second opinion, and in some degree the last opinion.

I ASSERT first, that words sounding an oath, uttered without the mind of swearing, if they are true (and are not justly required), are a venial fault.

IT IS PROVED from D. Bonaventure loc. cit. quaest. 3. in the last argument, because it is only a superfluous invocation of the Divine name, which is not of itself mortal. Nor is there contempt of the Divine testimony, since God does not then require that honor. For thus it would be mortal, if I were to feign saying a prayer of supererogation, as Sanchez notes num. 9. Nor is any loss brought to the end of the oath, as the authors of the first opinion cry out, because the obligation is observed for the due times of human contracts, of lawsuits, and of decrees, as I said.

I ASSERT secondly, that such words are mortal, when the oath is legitimately required.

IT IS PROVED from D. Bonaventure in the body, because then justice is gravely injured, and the offense of this oath is occasioned.

I ASSERT thirdly, that if the words of the oath fall upon false matter, and cannot be saved by equivocation, they are mortal, since they are ordered to confirming that falsity.

It is CONFIRMED by the Doctors of the first opinion: For that external worship of latria, which sounds an oath, is exhibited to undue matter, namely a false thing. And so it is mortal, just as to exhibit the external worship of latria to idols.

The SAME is proved also of one compelled to swear; for, as D. Bonaventure teaches art. 3. quaest. 2. ad 3. Those things that are evil of themselves cannot become good through fear. For concerning these the Holy Doctor says the Divine precept must be observed: Fear ye not them that kill the body. But rather fear him that can cast both body and soul into hell.

AS FOR the third mode indeed, in which one swears, but deceitfully, without the mind of obligating himself: First, the Abbot cap. si vero, num. 10. holds, when the oath is unjustly extorted, that perhaps in a perfect man it is a venial fault; but in the imperfect, none. But of one swearing of himself, he says nothing. But others then excuse the compelled one when he adds some condition by which the oath be true, as one swearing to a robber that he will give the money (understanding) if he ought.

The COMMON opinion is that in every event it is mortal. So Caietanus 2. 2. quaest. 89. art. 7. ad 4. D. Antonin. 2 part. tit. 10. cap. 6. casu 5. Armilla verb. Iuram. num. 14. et V. Periurium, num. 3. Tabiena V. Iurare, quaest. 11. num. 12. Scotus in 3. d. 39. quaest. unica, art. 3. Nauarr. summa, cap. 12. Couarr. de pactis, p. p. §. 5. num. 3. et 4. Decret. 2. part. cap. 3. §. 5. num. 3. Alcozia sum. cap. 15. fol. 51. Salzedo additione ad regulam, num. 584. Bernardus Diaz, Aragon. 2 2. quaest. 89. art. 7. Less. lib. 2. de Iustitia, cap. 42. dub. 8. num. 42. Suarez de relig. Tract. de Iuramento, lib. 3. cap. 17. num. 10.

OTHERS thus distinguish: If the oath is reasonably required, it is venial; but if unreasonably, and the swearer does not intend to signify to the other that he wills to obligate himself by that oath, there is no sin; but if he wills to signify it, it is venial. So Valentia 2. 2. d. 6. quaest. 7. puncto 4.

Sanchez ADDS num. 6. that he must necessarily be understood, when in that oath there is present the mind of fulfilling the thing promised by the oath (although he himself does not explain it), since if that mind were wanting, he must necessarily say it is a mortal perjury, since he himself holds it to be a true oath, and as such to obligate.

BUT Sanchez did not see that Valentia d. 6. quaest. 7. puncto 4. col. 1415. and quaest. 6. puncto 1. col. 1330. asserts these to be so connected, that if the mind of doing is wanting, the mind of promising is also wanting; and conversely it follows, If he has the mind of not promising, and of obligating himself by the oath, he does not have the mind of fulfilling the thing by the force of that oath. But what someone might say: I swear, but although I do not will to be obligated by this oath, I will give this; such a restriction is per accidens to the oath.

Therefore we, with D. Bonaventure, are bound to assert the same that we asserted of him who swears without the mind of swearing, namely, that it is mortal in an oath justly exacted, with the things said in the preceding question preserved proportionally.

I ASSERT first, that one swearing without the mind of obligating himself sins mortally, if the oath is justly required. So those cited above, and others, with whom almost the whole of Bassaeus subscribes loc. cit.

IT IS PROVED from D. Bonaventure quaestione prima articuli tertii in corpore, because he unjustly deceives his neighbor in a grave matter, and to this end uses, as an instrument of the oath, an external act (for it is not truly an oath, as I shall say in question 13.); he invokes therefore externally the name of God after the manner of an oath, and so gravely abuses the means of naming God vainly under the formula of an oath, mocking God himself, and to the ruin of the human race, for the preservation of whose peace oaths were instituted; and he enervates the faith owed to an oath. Very many use this reason; among whom those are judged to be related in the preceding question for the first opinion.

I ASSERT secondly, that one swearing without the mind of obligating himself (if the oath is unreasonably extorted) sins only venially, if he does not apply the words to confirming a false promise.

IT IS PROVED on the foundation of D. Bonaventure, because this is not an oath, but only a simple lie, as I shall say in question 4. and the same was said in the preceding question, in the first assertion, and then he uses his right, using equivocations. So Sanchez in number 10.

Sanchez, moreover, ADVERTS that one can use amphibolic words from a just cause, not only when they admit several senses of themselves, but also from some circumstance, of place, of time, etc.; indeed, when they render the true sense from the mind of the utterer; as if one denies that he has done something that he did (understanding that it is to be concealed). The same hold Syluest. V. Iuram. 4. quaest. 7. Nauarr. cap. Humana aures 12. quaest. 5. in quaest. 2. num. 12. Valentia 2. 2. d. 5. quaest. 13. puncto ultimo. Salon. 1. 2. quaest. 69. art. 2. controu. 11. in quarta ratione, Tolet. lib. 4. summae, cap. 21. num. 9. Manuel de ordine iudicatio cap. 10. num. 4. et primo tomo summae, cap. 191. num. 7. Philiarch. Tom. 1. part. 2. lib. 3. cap. 14. Suarez de Iuram. lib. 3. cap. 11. num. 6. Lessius lib. 2. de Iustitia, cap. 42. dub. 9. num. 48. Sà verbo Iuram. num. 6. Sanchez lib. 3. cap. 6. num. 15. D. Bonauent. passim. Vide Dianam part. 2. t. 15. res. 25. et part. 3. tract. 6. miscell. resol. 30. Although Caietanus 2. 2. quaest. 89. art. 7. Sotus lib. 5. quaest. 6. art. 2. cap. 7. Malder. opusc. de restrict. ment. cap. 4. et 10. Syluius 2. 2 quaest. 89 art. 7. quaestio 3. Azor. tom. 1. lib. 11. cap. 4. quaestio 5. Henriq. lib. 6. cap. 19. Layman. lib. 4. tract. 3. cap. 13. Coninch. de act. quatern. lib. 1. d. 10. dub. 3. Aragon. 2. 2. quaest. 62. art. 2. et quaest. 89. art. 7. say it is perjury, unless the amphibolic words obtain that amphibolic sense from themselves; with whom Bassaeus V. Iuramentum 3. num. 10. hesitates, so that he may proceed more safely, although he grants the opposite opinion probable, which I follow.

He is PROVED from the Holy Doctor on cap. 7. Ioan. where Christ says: Go you up to this festival day; but I go not up to this festival day, and yet he ascended. But that utterance was completely true in the mind of Jesus. I go not up manifestly, and for celebrating the solemnity, or for the passion, but that I may instruct some separately in need of it.

SO many note, from D. Chrysostom homil. 47. in Ioannem post medium Tom. 3.

It is PROVED secondly, from D. Bonaventure in 3. d. 38. dub. 1. where from D. Jerome the amphibology of the Hebrew midwives is praised, because of which God is said to have built houses; and the Holy Doctor calls those midwives most spiritual.

THIRDLY it is proved from D. Bonaventure from Genes. 27. ibidem num. 6. from the deed of Jacob, who feigned himself Esau, and said of himself that he was such and such, and had done what the Father had commanded; and yet he is excused by the Holy Fathers Ambrose, Augustine, and others, whom D. Bonaventure reports loc. cit. et post eum Peterius ibi disp. 5.

SIMILARLY Abraham Genes. 22. going up the mountain to immolate his son, said that he would return with the boy. And Genes. 26. concerning his wife he says she is his sister. And cap. 42. et 44. Joseph says that he is a diviner. And Iudic. 9. Ierunt ligna. And 4. Reg. 10. Jehu said that he wished to worship Baal, which examples the Holy Doctor reports in 3. d. 38. quaest. 2.

It is PROVED fourthly from D. Bonaventure in 3. d. 39. art. 1. quaest. 1. with whom D. Gregory also concurs there lib. 26. moral. cit. and it is reported cap. Humana aures 22. quaest 5. ibi: The ears of men judge our words to be such as they sound outwardly. But the Divine judgments hear them to be such as they are uttered from the depths: Therefore he wills that truth be measured by words in their intrinsic seat from the intention of the utterer, not from the external words alone. The same D. Hilary expressed lib. 4. de Trinitate cap. 5. and it is reported cap. Intelligentia, de verborum significatione there, The understanding of words must be taken from the causes of speaking: Because the thing is not subject to the word, but the word to the thing.

It is PROVED fifthly from D. Bonaventure in 3. d. 38. in dub. litt. num. 4. et 5. et quaest. 1. in corpore, et quaest. 2. ad argumenta. To lie is to go against the mind, and so the reason of the lie stands in the habitude of words to the mind. Therefore whether they are true or false in themselves, it is per accidens; but they are to be considered with respect to the mind of the utterer, and in the deformity of the words with respect to it stands the formal reason of the lie. So also Sanchez num. 15. who again confirms it from D. Bonaventure in the quaest. 2. cited, argumento 6. with Bassaeus num. 10.

In this stands a lie, that words are uttered against the institution of their end; but words were instituted for this, that man express what he bears in mind.

But OUTSIDE of necessity it is not permitted to use amphibologies, which is proved from D. Bonaventure in 3. d. 38. quaest. 2. ad tertium argumentum, because man was made that he might contract with others, and live together economically, and politically; but for this it was necessary that they mutually communicate their own intentions and wills in a human manner; but this is done by words. Wherefore in legitimate contracts and fellowship we ought to use words instituted for that end, to signify candidly to our neighbors our conceptions. On this reason many, cited by Sanchez lib. 3. cap. 6. num. 12. try to prove that it is always true, that never may amphibologies be used; otherwise an approach would lie open to deceits, the commerce of words would be taken away, its assurance, etc.

INDEED, since in the corrupt state we are compelled to live together, and are often assailed by the unjust with questions and malicious speeches, an approach would rather lie open to very many evils than that satisfaction be given to one asking sincerely, with open mind. Therefore cautious prudence is needed. For thus also Christ did not always render oracles at a nod to the Jewish plotters, but with parables rather obscure, by which in several ways he could multiply responses.

From these it is clear, and Sanchez rightly gathers num. 10. that a case can occur in which not only when solicited, but even spontaneously we can rightly use amphibolic sayings, anticipating some evil, or for appeasing a neighbor, for restoring a fame unjustly taken away, etc. The same says Philiarchus de off. Sacerd. tom. 1. part. 2. lib. 3. cap. 14.

The SAME will be in the case in which one guilty has unjustly disclosed his accomplices in the crime, or a witness has unjustly betrayed before the judge a crime of the Accused that was hidden, that he can offer himself to swear that they are not guilty, understanding that they ought not to be disclosed: