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4

On the other hand, deposition and the release of subjects from their oath of allegiance were distinct acts, which did not immediately and of themselves follow upon every sentence of excommunication, but had to be separately declared.1 By the public law of Christian States, excommunication brought with it temporal consequences, differing only according to the length of obstinate resistance to the sentence, and it was considered monstrous that a Christian people should be ruled by a prince who was cut off, and remained cut off, from the Church; therefore to the sentence of excommunication might be added a declaration that those consequences were come into force which followed also by the constitution of the State.2 In pronouncing a sentence of deposition, which was only done when all other means were exhausted, the Popes appealed not only to divine, but also to human law; and this was done also by the most eminent writers on the effects of excommunication. Since the Pope and the Council were the natural judges in all questions touching religion, it also belonged to them to point out to the people those princes who had fallen into heresy, or under the greater excommunication of the Church. This they could not do without observing and declaring that by the constitution and custom of their countries these princes had forfeited their right of governing, either for a time, or for ever, according to the state of the case. It was to the interest of the sovereign, and of the whole community, that such a declaration should not be left to be made by the people, or by the national assembly, which would have favoured every attempt at revolution, or even by the bishops of the country in question alone, who were also subjects of the king, but should be reserved to the Pope and General Council. Even when it was supposed that the subjects of a prince excommunicated for apostasy from the Faith were at once and necessarily set free from his rule and from their oath of allegiance, still a judgment to that effect was needed from the Pope, a sententia declatoria criminis, as in other cases also where the excommunication at once took effect by virtue of the

law (ipso jure); usually the loss of office was only added as an increase of punishment, and did not in fact follow upon every sentence of excommunication. Besides this, the acts of jurisdiction of an excommunicated and deposed prince were declared null and void, as, for example, Innocent III. (1212) declared in relation to the acts of the deposed Otho IV. of Germany.8 Such princes were no longer looked upon as lawful rulers, but as tyrants. Even though strictly speaking deposition of the prince could only be effected by the combined action of the spiritual and civil law, still the same effect was at once produced by an entire release of the subjects from the oath of allegiance, in releasing from which the Church was completely within her own sphere. 10

1 Suarez, de Cens. disp. 15, sect. 6, n. 3: 'Ut excommunicatus princeps dominio et omni jure in subditos privetur, necesse est, ut speciali poena et sententia declaretur aut imponatur' (Gosselin, ii. p. 339).

2 Cf. Phillips, Kirchenrecht, iii. § 125, p. 158; § 126, p. 190. For the Papal right of deposition the following are quoted: Bonavent. de Eccles. Hier. P. ii. c. i. (ed. Ven. v. p. 215); Raymund. de Pennaf. 1. i. tit. de Haeret. § 7; Aug. Triumph. q. 46; Antonin. Sum. P. iii. tit. 22, c. iii. § 7; Petr. Palud. de causa immed. Eccl. pot. Ant. Aug. jur. Pont. vet. epit. tit. 16, ap. Roccaberti, iv. 206. Several German law-books and others, apud Friedburg, de Finibus, &c. p. 29, n. 5.

Gregor. VII. Ep. ad princ. Germ. ap. Paul. Bernr. c. lxxviii.: 'Per quos . . . . eum secreto monuimus, ut poenitentiam ageret de sceleribus suis, quae quidem horrenda dictu sunt . . . . propter quae eum excommunicari non solum usque ad dignam satisfactionem, sed ab omni honore regni absque spe recuperationis debere destitui divinarum et humanarum legum testatur auctoritas.'

Ivo Carnot. Ep. 186, Opp. ii. p. 78; Gosselin, ii. p. 104, n. 2. Cf. Suarez, Defens. Fidei, 1. vi. c. iv: 'Licet respublica seu regnum hominum ex sola rei natura spectatum, prout fuit inter gentiles et nunc est inter ethnicos, habeat potestatem se defendendi a tyranno rege et illum deponendi in eum finem si necessarium fuerit, nihilominus regna Christiana quoad hoc habent aliquam dependentiam et subordinationem ad Pontificem summum, quia potest Pontifex alicui regno praecipere, ut se inconsulto contra regem suum non insurgat vel illum non deponat, nisi prius causa et ratione ab ipso cognita, propter moralia pericula et animarum dispendia, quae in his tumultibus popularibus moraliter interveniunt, et ad vitandas seditiones et injustas rebelliones.'

Bianchi, t. iii. 1. i. c. i. § 6, n. 9, pp. 52, 53. • S. Thom. Sum. 2, 2, q. 12, a. 2, in corp. Kober, 1.c. pp. 117, 118.

* Innoc. III. 1. xv. Ep. 31, p. 566: Sicut ea, quae a Catholicis et devotis principibus rationabiliter ordinantur, firma debent et illibata servari, sic ea, quae a perfidis tyrannis improbe statuuntur, maxime tempore, quo excommunicationis vinculo tenentur astricti, carere debent robore firmitatis, cum tales legitime nequeant jurisdictionis officium exercere ab unitate fidelium separati. Cum igitur Otto, jam non nominandus imperator, sed impius persecutor, cum suis fautoribus anathematis vinculo sit innodatus et a debito fidelitatis ipsius absoluti sint universi, nos omnia, quae idem excommunicatus vel aliquis ejus officialis contra clericos vel ecclesias statuit aut statuerit, sive contra principes aut eorum fautores, qui memorato tyranno suum subduxerint obsequium, ut libertatem et justitiam tam Ecclesiae quam Imperii tueantur, denunciamus irrita et inania esse eaque de communi fratrum nostrorum consilio auctoritate apostolica omnino cassamus.' Cf. ib. Ep. 36, p. 569; Ep. 84, 85, p. 603.

Thus St. Bernard designated Roger of Sicily, after the excommunication and decrees of Innocent II., Ep. 127, ad Guitm. p. 138 seq.; Ep. 130, ad Pisan. p. 140 seq. Cf. Ep. 136, 139; Ep. 140, ad Loth. p. 146. Cf. Bianchi, t. ii. l. v. § 12, n. 1, p. 319. But when Roger had made his peace with the Pope, and been recognised by him, St. Bernard wrote to him most respectfully (Ep. 207-209, ad Roger. Reg. Sicil.).

10 Thence it happened that for brevity many ascribed to the Church the right of deposing. Thus Gerhoch von Reigersberg says, in Psalm. xxix. seq. 630: 'Ordo clericalis, cujus nimirum est officium, non solum plebejos, sed etiam reges increpare atque regibus aliis descendentibus alios ordinare.' Cf. Neander, Kirchengeschichte, ii. p. 390, b. iii. a.

§ 9.

A doubt has been raised, not indeed in the Middle Ages, but of late, as to the power of the Church to release from oaths, whether of allegiance or of any other nature. It will be well to set forth here the universal teaching of canonists and moral theologians. The question now before us is clearly not of the oath taken in a court of justice, but of the extra-judicial oath; not of the oath of assertion (jusjurandum assertorium), but of the oath of promise (jusjurandum promissorium). All are agreed that an oath is not binding if it fail in the requisite justice of its object, for an oath, by which God is called to witness, is a solemn religious act, and cannot bind to evil. It is not lawful to take an oath against religion, good morals, or the rights of a third person, or dangerous to salvation and the public welfare;2 oaths, for example, to assassinate or put to death unjustly, such as Herod's oath," are forbidden, and are not binding. Every

binding oath must have as its accompaniment truth, judgment (i.e. deliberation), and justice (veritatem in mente, judicium in jurante, justitiam in objecto). Although an oath to which especially the last of the three requisites is wanting does not bind, still the Church insists so strongly on the binding nature of an oath in itself, and therefore on the presumption of its power of binding in any individual case, that where the slightest doubt exists as to what is included in the oath she requires application to be made to her for release from the obligation, even though it be only a seeming obligation.5 Such cases could not be left to the subjective judgment of private persons; and since, from the custom of rendering a contract more binding by the addition of an oath, many cases of the kind came under the judgment of the Church, it was her duty to lay down exact laws for such questions as they arose; but in so doing, she did not call in question the competence of the civil judges to receive complaints in the matter of contracts.6

The course adopted by the Church necessarily differed much, according to the oaths brought before her. In many cases the interpretation of the oath sufficed. This was the course of Innocent III. as to the oath of the King of Aragon to maintain his father's base coinage; and also as to the promise of the Archbishop of Naples to observe the ordinary legal procedure everywhere, even when the notoriety of the case made it unnecessary. In other cases, again, he who had made the oath was compelled to carry it out, and he to whom it was made was compelled to make restitution; sometimes for a sufficient cause absolution or relaxation was given, often with the imposition of a penance. Innocent III. commissioned the Archbishop of Mainz to declare null and void the oath of the canons of Würzburg, by which they had sworn to the Bishop of Hildesheim, who held their see, to pay his family after his death two thousand marks, and not to obey his successor until the money had been paid.10 The same Pope declared the Duke of Austria free from his promise of marriage, by reason of the nonfulfilment of conditions on the other side.11 Even an oath made under pressure needed relaxation or absolution from the Church.12 The declaration that an

oath was null was called absolution, precisely as the declaration of innocence of an accused person was also called absolution.1

13

1 C. 22, Inter cetera, § 1. Porro, c. xxii. q. 4. Cf. the other canons, especially c. 5, 18.

2 Schmalzgrueber, in 1. ii. Decret. tit. 24, § 6, n. 71-74. Reiffenstuel, in h. tit. § 3, n. 73 seq.

3 Joh. Saresb. Polycr. 1. iii. c. xi. p. 499: 'Rex incredulus salubrius incautum et perfidum solvisset juramentum, quam in exstinguenda lucerna verbi, auferendo praeambulum gratiae, veritatis occidendo praeconem mensam pollueret convivium incestaret, regiam pessumdaret majestatem, dum incestui cuncta serviunt et obtemperant saltatrici. Ethica quidem regula est, quia non omnia sunt semper promissa solvenda, si forte aut accepturo damnosa aut perniciosa sint promittenti . . . . ipsoque jure cautum est, ut nulla promissio, quae turpem aut tristem habeat exitum, impleatur.'

Hieron. in can. 2, c. xxii. q. 4. Also Godfrey of Vendôme, Tract. de Ord. Episc. (Migne, clvii. p. 282).

Phillips, Lehrb. der Kirchenrechte, § 310, p. 1176.

Phillips, 1.c. § 177, n. 3, p. 495 seq.

C. Quanto, 18, de Jurejur. ii. 24 (Innoc. III. 1. ii. Ep. 28, p. 558); c. Ad nostram, 21, ibid. (1. i. Ep. 415, p. 392 seq.).

Alex. III. c. 7, Ad nostram, h.t. in relation to a pledge taken to obtain a loan.

C. Cum quidam, § Illi vero; c. Quanto, 1.c.

10 Innoc. 1. ii. Ep. 216, p. 775. To such oaths the words of the same Pope apply, c. Sicut nostris, 27, h.t.: Non juramenta, sed perjuria potius sunt dicenda, quae contra utilitatem ecclesiasticam attentantur.' What is here meant by'utilitas ecclesiastica' the context shows; it is a question of injury to episcopal rights by the canons.

Ib. 1. vi. Ep. 201, p. 225.

12 C. 2, Pervenit (Gregor. VII.); c. Si vero, 8 (Alex. III.); c. 15, Verum (Celestin. III.); c. 21, Ad nostram (Innoc. III.).

13 Pallavicin. Hist. Conc. Trid. 1. xi. c. ii. n. 10.

$ 10.

The question, who had power to absolve from an oath, was answered as follows. Passing over the case of an oath of promise to God, which is a vow, and in the matter of dispensation must be dealt with accordingly, we come to the case of a promise to a fellow-man; here we must distinguish whether or not the oath, on the side of him to whom it was made-the recipient-contains anything immoral. If it does, it may be relaxed by the bishop, for such an oath can give no right to him to whom it was made, and can make no contract binding; if it does not,