THE NEW SCHAFF-HERZOG
laws have extended the term of responsibility in oath-taking. The German law puts it at sixteen. (2) The person taking the oath is to be of sound mind and sober. The canon law is 2. Judg- very explicit on this point: only one ment in who is jejunus, " fasting," can prop- Swearing, erly take a solemn oath (XXII., v. 16), consequently such an oath was, as a rule, taken only before noon. (3) That the person have not committed perjury. The condition of judicium in jurante logically obliges that the oath must not be taken by those who are without any knowledge of God. Of practical importance is it to know whether the person is only pretending to be an atheist in order to avoid being put under oath — as frequently happens — but even where the person is self-deceived into thinking that he is an atheist or only shams atheism there is a manifest impropriety in administering the oath as it borders on blasphemy to compel a person who professes to be an atheist to call upon God as his witness that he is speaking the truth.
From the second condition, justitia in objecto, " the justice in the object," the canon law omitted to deduce the right consequences. Yet 3. Justice the canon law compels by legislation in the such oaths as are intended to establish Object, the plea of nullity only in case it affords protection to the oath-taker, as a wife in giving consent to the transfer of title to her dower, or a daughter renouncing her inheritance; indeed Boniface VIII. would compel the secular judges to treat as valid what according to the common law was null because it had been sworn to. The glossator Martinus induced the Emperor Frederick I. to rule according to this principle that an oath not otherwise invalid could not be nullified by a person taking it who nevertheless had no right to take it (Authentica " Sacramento, puberum " on L. 2 C. adv. vend. ; cf . F. C. von Savigny, Geschichte des Romischen Rechts im Mittelalter, iv. 162-170, Heidelberg, 1834^51). It is plainly a desecration of the oath that the canon law made a tool of it to vitiate rather than to promote worthy purposes intended by the civil law. And it thereby, aside from the injury often done indirectly to a third party, gives occasion to a very frequent misuse of the oath, whereby from the religious standpoint it can be allowed only when later legislation withdraws entirely from the promissory oath its legal efficacy and makes it only of accessory importance, even as it has according to Roman law. But this is to deprive it of all legal obligation, whereas the proper object of the oath was to increase this obligation. From the definition of an oath as a promise given to God the canon law draws the inference that in respect to every promissory oath the Church as the organ of ecclesiastical j urisdiction was to decide : ( 1 ) Whether the oath was binding, and here first of all comes in the interpretation of the oath, for if it should turn out that the oath was intended to effect a sinful purpose then it was not only not binding but it was perjury and as such must be punished by church penalties; and (2) in case it is binding, at least toward God, it was for the spiritual judges to decide whether it should be carried out or whether the
Church acting in the place of God should release the person from his oath (relaxio juramenti or absolutio a juramento in the Evangelical sense). The connection in which this theory of relaxio juramenti stands with the fundamentally false mediating position between God and the individual which the Roman Church on all occasions arrogates to itself is easy to understand, and it is no less easy to perceive that it must have as its consequence that the pope has the right to release from the oath of allegiance whenever, in his judgment, the magisterial rights have been forfeited. But on the Protestant side there should be just as little doubt that the theory and its consequences are to be rejected as absolutely worthless, as if forsooth the competency of the Church to decide matters of right depended on the binding power of an oath. It is a lamentable confusion of ideas that formerly the relaxio juramenti was counted among the episcopal rights of the sovereign (cf . J. H. Bohmer, Jus ecclesiasticum Protestantium, 5 vols., Halle, 1720-63). All that the Church can properly do in relation to oaths is to appeal to the conscience, according to the Word of God. The decision of troubles arising from legal matters the Church can only leave to the courts whether such matters be sworn to or not, and the courts on their part can not enforce obligations which are without standing in the civil law. Here should be clearly brought out that the efficacy which the canon law gives to the promissory oath as distinguished from what it has in civil law is to be contrasted with the importance which in truth attaches to it when the parties to the oath do not stand on equal footing to the law so that contracts between them involve moral and not legal duties and claims. Here of course the community of objective religion supplants the community of objective rights. Before any international law could be recognized there was an impulse of the deepest and truest quality for contracts between peoples who were strangers to one another, and between individuals of such nations, which contracts were sealed with oaths so that they might have the greatest possible force.
From the demand for Veritas in mente, " truth in the mind," flows first of all the inadmissibility and inefficacy of mental reservation in the case of oaths; and further that an oath which had been extorted or which rested on vital error had the importance of a true, proof-bringing and binding oath, although canon law does not unconditionally concede this point respecting the promissory oath.
In respect to its form the idea is excluded that an oath is an appeal to any other than God. Nothing further is necessary to express this intention to call God to witness than the use of the words " I swear."
In order to surround the oath-taking with due solemnity, as where it is given in courts and in public offices, certain formulas have come into use, which partly rest upon the idea that bodily contact with an object considered by the swearer to be sacred, as a copy of the Gospels or a reliquary, has a tendency to excite a stronger religious feeling. So arose the formula of the solemn " bodily " oath: " So help me God and his holy Gospel " (or " Word "), with the addition in some formulas,