it can be released, against the will of the recipient, by the Pope alone, and by him only for a weighty cause and for the general good; for in this case there is question of the well-earned right of another, of which he can be deprived only by the highest spiritual power, and on good grounds. Often was application made to the Pope even when the bishop would have had power to act. To the question, whether the civil judge or the sovereign had power to release from an oath made to a man, if not by absolving from it, at least by declaring it null and void,-if not directly, at least indirectly, the answer given was as follows: (1) It is not beyond the power of the civil judge indirectly to remove the obligation of an oath made by a layman subject to him, if the matter promised by oath belongs to his jurisdiction, and if the public good demands it; (2) the civil magistrates, at least the sovereign, can, if the public good demands it, declare certain kinds of contract so utterly void, that the addition of no oath can make them valid, and (3) even that such oath shall carry with it no obligation, either of justice, or of religious duty; (4) he may for the common good forbid the fulfilment of the obligation promised by oath, in which case the obligation ceases; (5) the emperor may lay a prince or a state of the empire under the imperial ban, and, as a consequence, the subjects are freed from their oath of allegiance. Moreover, a husband, for example, may declare the oath of his wife to be null, and still more, he in whose favour it was made may release her from it.5 Princes may declare the oaths of their subjects null, since every oath is taken on the supposition that it does not prejudice the authority of the magistrates (salva superiorum auctoritate). The following were accepted as legal grounds for release from promissory oaths: (1) Immorality in the promise; (2) extortion of the oath by force or cunning; (3) a higher or a greater good hindered by its fulfilment; (4) want of judgment and deliberation in taking the oath; (5) doubt as to whether the oath was really taken; (6) removal of scandal to others; and also (7) of danger and occasion of sin. But never might the release from an oath, granted for the benefit of a sinner, serve as an authorisation for further sins in others.8

1 Smalzgrueber, 1.c. n. 96, 97.

As to the faculties given to the appointed confessors of princes for the release of oaths made by them, there is only question (1) of vota indeliberata, and (2) of a release which may be given in general by the universal principles of law, for these are always presupposed. On the subject of the authority given by Clement Vi. to the French King John, Bishop Fessler has given satisfactory information (Die Wahre und die Falsche Unfehlbarkeit, pp. 64, 65). That which is to be done 'secundum Deum' cannot be carried out contrary to God's commands.

• Thus Suarez, 1. ii. de Juram. c. xli. n. 2; Sanchez, 1. iii.; Moral. c. xxi. n. 2; Laymann, in c. viii. h.t. n. 2; and elsewhere. St. Thom. Sum. 2, 2, q. 89, a. 9, ad 3: Et in tali juramento non videtur habere locum dispensatio vel commutatio, nisi aliquid melius occurrat ad communem utilitatem faciendum, quod maxime videtur pertinere ad postestatem Papae, qui habet curam universalis Ecclesiae.' From the word 'maxime' Schmalzgrueber concludes, 1.c.: 'Ergo aliquando etiam ab Episcopo id fieri potest juxta rei et personarum qualitatem.'

Schmalzgrueber, 1.c. n. 100-104. Germoin, 1. ii. Animadvers. c. viii. cas. 72, n. 23. Suarez, de Relig. t. ii.

Marca, de Jurisdict. P. iv. cent. 1, tract. 4, 1. ii. c. xxxix. n. 5. P.

Surdus, Consil. 364, n. 25. Bianchi, t. i. 1. i. § 17, n. 3, p. 141.

• Innoc. III. c. 19, Venientes, h.t. In quo (juramento) debet intelligi jus superioris exceptum.' Cf. Greg. M. in Can. i. d. 85. Suarez, de Relig. 1.c. c. xxxviii. Sanchez, de Praecept. Decal. 1. iii. c. ii. n. 19. Gonzales, in l. ii. Decret. c. i. Ex administrationis, h.t. n. 8, fin. Bianchi, 1. c.

Schmalzgrueber, 1.c. n. 105.

• Alex. II. 1061 (Mansi, xix. 980; Jaffé, n. 3374, p. 390): Possumus in perjurio aliquo crimine lapsis misericordiae manum porrigere, sed non debemus ad futurae perditionis (al.: prohibitionis) exemplum licentiam dare.'

§ 11.

The Eastern Church affords a famous example of release from a promissorial oath. When the Emperor Mauricius (582-602) sent the General Philippikus to his troops they would not accept him; the venerable Patriarch Gregory of Antioch, in spite of illness, addressed to them a powerful speech to recall them to obedience. The rebels, deep as was the impression made by this speech, appealed to their solemn oath, which bound them to be firm in their resolve. To this Gregory replied that he, as bishop, had power to bind and to loose in heaven and on earth; and thus he silenced all scruples.2 In Spain the fifteenth Council of Toledo (688) had to pass judgment, at the request of the King Egiza, upon three separate oaths made by him.3 There are also

many such examples among the Popes before Alexander III. Nicholas I. released the Archbishop of Trêves, and others of the clergy, from oaths taken in prison;4 Leo IX. released Edward the Confessor from his promised journey to Rome, in consideration of a menacing rebellion; Gregory VII. (1080) set free Bishop Henry of Liége from an oath, extorted from him by Count Arnulf, that he would not demand back the property taken from him; he likewise declared to Count Robert of Flanders that his oath to the French King Philip had no binding power: the count had sworn to support the intruder Lambert, who had been guilty of simony. Paschal II. (1099-1115) declared the feudal oath taken reciprocally by the clergy of the church of Chartres to be null, and forbade it in future. Calixtus II. (March 4, 1120) pronounced not binding the oath of allegiance extorted from the nobles of the kingdom by the Spanish Queen Urraca, widow of Count Raymund: the queen desired to reign instead of her son, appointed by King Idelphons to be his heir; the Pope moreover added that the oath previously taken to her son retained its binding power. Hadrian IV. absolved the French Chancellor Hugo from the vow he had made, that he would offer to resign his office upon attaining the dignity of archdeacon, &c.10

1 Evagr. H. E. 1. vi. c. vi. 12.

2 Ibid. c. xiii. (Migne, PP. gr. 1. xxxvi. p. 2864).

3 Hefele, Conc. iii. p. 295 seq.

C. 2, c. xv. q. 6 (Jaffé, Reg. n. 2027, p. 238).

Mansi, xix. 1050. J. n. 3236, p. 374.

Jaffé, n. 3880, 3881, p. 433 seq.

Jaffé, n. 3953, p. 440.

Mansi, xx. 370. He remarks: Perniciosius esse, illum per quem juretur, quam cui juretur, et Deum quam hominem offendere.'

8 Ivo Carn. Opp. ii. 233. J. n. 4748, p. 508.

Jaffé, n. 4995, p. 534.

10 Mansi, xxi. 804, 806. Jaffé, n. 7093, 7094, p. 675.

$12.

When subjects were released from their oath of allegiance to excommunicated princes, it was on the understanding that these princes had themselves been guilty of breaking faith with God;

the oath of obedience to them was always taken on the condition, expressed or understood, that they should fulfil the obligations they had undertaken to the Church and to their people. If they failed in this, the salvation of their subjects was endangered, for they were easily implicated in the crimes of their sovereign, indeed as a rule they were required by him to do things incompatible with their own higher duties. Although an oath taken to a prince who had broken his own faith was allowed to be in itself ipso facto no longer binding,2 yet for greater security, and that the fact might be fully confirmed, a special declaration on the part of the Pope was not to be looked upon as superfluous, or to be dispensed with, nay more, it was required by the universal rules given above. When the faithful were in immediate danger of falling away from the Faith, through the apostasy of a ruler, the Church had power to forbid obedience to be paid to him, and to release them from their oath of allegiance; she did not directly deprive him of his power, but made use of her own spiritual power in such a way as to remove the danger, and to secure the spiritual welfare of the sovereign and his subjects. Other weapons and direct means were employed against simply immoral kings, and in this case extreme measures were not to be resorted to as long as their subjects were in no danger.3

1 The decree of Innocent III. against Markwald, 1. i. Ep. 38, p. 32, says: Omnes, qui eidem fidelitate sunt vel sacramento astricti, apostolica auctoritate a sacramento absolvimus, et ne ipsi fidelitatem observent, modis omnibus prohibemus, cum fidelitatem quem aliqui Christiano principi juraverunt Deo ejusque sanctis adversanti et eorum praecepta calcanti nulla mandentur auctoritate servare.'

2 Augustin. Triumph. Sum. q. 40, a. 4: 'Utrum Papa possit Imperatoris subditos a juramento fidelitatis absolvere. . . . Dicendum, quod, sicut scribitur X de reg. jur. (75 in 6): frustra sibi fidem quis postulat abalio (eo) servări, qui (cui) fidem praestitam a se servare recusat. Planum est autem, quod in juramento fidelitatis, quod Imperator Ecclesiae praestat, continetur, quod ipse jurare faciet omnes illos, quibus regnum Italiae seu alia ad Ecclesiam pertinentia committit, ut ipsi Ecclesiae adjutores existant. Si ergo fidelitatem quam jurat, recusat observare, ipso facto ejus subditi sunt a juramento fidelitatis ejus absoluti.'

* Bianchi, t. i. 1. iii. § 1, n. 8-9, pp. 447-449.

46

§ 13.

The state of things at the present day is in many respects different. The oath, which is inconceivable apart from religion, and which is peculiarly a religious matter,1 came to be more and more profaned; it was made far too common; little or no importance was attached in private law to the promissory oath, and before long the assertorial oath used as testimony in a court of justice came to be the only one held in esteem. The duty of allegiance,' says Walter, may be strengthened by an oath, and this in itself has the same value as an oath affirming a fact. The nonfulfilment of an oath lawfully sworn should be punished precisely in the same way as false evidence given on oath, and this falls strictly within the sphere of conscience, and therefore of canon law. The task of exactly weighing all the points of conscience in such cases was so far beyond the civil courts that they were unable to enter into them, and were forced to leave the spiritual courts to decide as to the binding power of promissorial oaths, while they themselves merely carried out the sentence. This is no longer tolerated, and therefore in modern times the promissory oath has no civil effects, and is left completely to the sphere of conscience. One undeniable advantage is thus gained: the oath is now in less danger of being dragged into mere business transactions. But there is a certain inconsistency in the fact that a promissory oath taken in matters concerning private law is ignored by the State, while it is maintained in public law (i.e. the oath of allegiance), though the State has no tribunal for matters of conscience to decide the often delicate questions which come before it. As a last resort the power of self-interpretation steps in, and this it is which has brought political oaths so much into disrepute.'

seq.

1 Marx, Der Eid und die Eidespraxis, Regensb. 1855, p. 80 seq. 93

In early times the Church was forced to complain of the abuse of the oath by civil magistrates. Basil, Ep. 85 (Migne, PP. gr. t. xxxii. p. 465). Cf. Walter, Kirchenrechte, § 353 seq. 620 seq.

Walter, Naturrecht und Politik, § 106, p. 103 seq.