XXV. Nor does the voluntary[36] law of nations appear to make any alteration here. However, there is one exception, which is, that where equal terms have been agreed upon, if no fraud has been used, nor any necessary information withheld, they shall be considered as equal in an external[37] point of view. So that no action can be maintained in a court for such inequality. Which was the case in the civil law before Dioclesian's constitution. So among those, who are bound by the law of nations alone, there can be no redress or constraint on such account.[38]
And this is the meaning of what Pomponius says, that in a bargain and sale, one man may NATURALLY overreach another: an allowance which is not to be construed, as a right, but is only so far a permission, that no legal remedy can be used against the person, who is determined to insist upon the agreement.
In this place, as in many others, the word natural signifies nothing more than what is received by general custom. In this sense the Apostle Paul has said, that it is naturally disgraceful for a man to wear long hair; a thing, in which there is nothing repugnant to nature, but which is the general practice among some nations. Indeed many writers, both sacred and profane, give the name of NATURAL to what is only CUSTOMARY and HABITUAL.
[CHAPTER XIII.]
On Oaths.
Efficacy of oaths among Pagans—Deliberation requisite in oaths—The sense, in which oaths are understood to be taken, to be adhered to—To be taken according to the usual meaning of the words—The subject of them to be lawful—Not to counteract moral obligations—In what sense oaths are an appeal to God—The purport of oaths—To be faithfully observed in all cases—The controul of sovereigns over the oaths of subjects—Observations on our Saviour's prohibition of oaths—Forms substituted for oaths.
I. The sanctity of an oath with regard to promises, agreements, and contracts, has always been held in the greatest esteem, in every age and among every people. For as Sophocles has said in his Hippodamia, "The soul is bound to greater caution by the addition of an oath. For it guards us against two things, most to be avoided, the reproach of friends, and the wrath of heaven." In addition to which the authority of Cicero may be quoted, who says, our forefathers intended that an oath should be the best security for sincerity of affirmation, and the observance of good faith. "For, as he observes in another place, there can be no stronger tie, to the fulfilment of our word and promise, than an oath, which is a solemn appeal to the testimony of God."
II. The next point, to be considered, is the original force and extent of oaths.
And in the first place the arguments, that have been used respecting promises and contracts, apply to oaths also, which ought never to be taken but with the most deliberate reflection and judgment. Nor can any one lawfully take an oath, with a secret intention of not being bound by it. For the obligation is an inseparable and necessary consequence of an oath, and every act accompanied with an obligation is supposed to proceed from a deliberate purpose of mind. Every one is bound likewise to adhere to an oath in that sense, in which it is usually understood to be taken. For an oath being an appeal to God, should declare the full truth in the sense in which it is understood. And this is the sense upon which Cicero insists that all oaths should be performed and adhered to in that sense, in which the party imposing them intended they should be taken. For although in other kinds of promises a condition may easily be implied, to release the promiser; yet that is a latitude by no means admissible in an oath. And on this point an appeal may be made to that passage, where the admirable writer of the Epistle to the Hebrews has said, God willing more abundantly to shew unto the heirs of the promise the immutability of his counsel confirmed it by an oath: that by two immutable things, in which it was impossible for God to deceive, we might have a strong consolation. In order to understand these words, we must observe that the sacred writers, in speaking of God, often attribute to him human passions, rather in conformity to our finite capacities, than to his infinite nature. For God does not actually change his decrees, though he may be said to do so, and to repent, whenever he acts otherwise than the words seemed to indicate, the occasion, on which they were delivered, having ceased. Now this may easily be applied in the case of threats, as conferring no right; sometimes too in promises, where a condition is implied. The Apostle therefore names two things denoting immutability, a promise which confers a right, and an oath, which admits of no mental reservations.