Oath

OATH. - I. NOTION. - It is the invocation of God as witness to the truth of one's statement and to the actual undertaking of a future act or fact. The oath therefore presupposes the conviction that God exists and that he knows that of which he is called as witness; as far as depends on the one who swears, he desires and wills that God attest what he affirms by oath. From the fact that, in this first sense, the oath presupposes the conviction of the existence and omniscience of God, it follows at once that the atheist cannot swear; and from the fact that the oath consists in calling God as witness it likewise follows that it is not enough, in order to have a true and proper oath, to affirm that God knows all things, that God knows our thoughts, etc.

Sometimes, however, by the term oath is meant only a particularly solemn and binding form of affirmation: a mode of affirmation particularly conscious because of the psychological preparation it presupposes, particularly solemn because of the manner in which it is made, particularly worthy of belief and particularly binding (especially if it concerns a fact or an act to be performed).

The existence of the two concepts of oath, and in particular of the second, clearly emerges from Sacred Scripture, from legislation and from common usage. In Sacred Scripture, in fact, it is often said that God swears (e.g., Gen. 26:3; Ex. 6:8; 13:5; 33:1; Num. 32:11; Deut. 31:20; etc.); now certainly one cannot admit that God swears in the first sense indicated. As for legislation, it suffices to recall the law of 30 June 1876 no. 3184, by which the essentially religious character that the oath had had until then was taken away from it in order to give it the stamp of a solemn civil act; the religious aspect may be preserved for those who desire it; but it is no longer essential to the act of swearing. As for current usage, it suffices to reflect on the content that many give it, especially today: e.g., atheists, the indifferent, quite a few officials, etc.

II. MORALITY

Here we are concerned above all with the first sense and predominantly from the moral point of view. In order to grasp better the elements of the solution, we first examine the forms in which it presents itself and the motives from which it arises.

First of all, the invocation of God can be made to testify to the truth of an affirmation or to the actual status of an act or a fact. In the first case there is the assertory oath (for example, "I swear that I am innocent"); in the second case there is the so-called promissory oath (for example, "I swear that I will cause the constitution to be faithfully observed"). The latter contains the invocation of God that at the moment in which the swearer utters the promise he truly has the will to do what he promises; furthermore, the invocation of God to testify that this will shall continue also in the future and therefore that the act or fact promised will really come about. It thus resolves itself into a twofold divine testification: one of a will presently existing and one of a will enduring in the future.

A special form of oath is the imprecatory or execratory one. It consists in invoking God as witness of what is said or promised and at the same time as punisher of the swearer (or of his dear ones) in the event that he has sworn falsely. It presupposes therefore, besides the conviction that God exists and knows that for which He is called as witness, also the conviction that God is offended by a false testimony and punishes the perjurer.

Each of these oaths can be made with words (a verbal oath: for example, "I swear that I am innocent"); with gestures (a real oath: for example, raising the hand to heaven, touching the Cross, the Gospel), or with words and gestures together (a mixed oath).

As for the rite, the oath can be simple or solemn according to whether it is taken without particular ceremonies or with a special apparatus (for example, lighted candles, a Crucifix, upon the entrails of a victim, etc.).

Finally, the invocation of God can be explicit or implicit. To this latter form are to be traced the oaths by the life of the person to whom one is speaking (for example, Gen. 42, 15; 1 Kings 1, 26; 17, 55; 20, 3; etc.), by one's own head (Mt. 5, 36), by the earth (Mt. 5, 35; Jas. 5, 12), by heaven (Mt. 5, 34; 23, 22; Jas. 5, 12), by the temple (Mt. 23, 16), by the altar, the offerings (Mt. 23, 16, 18), by Jerusalem, etc., of which Scripture speaks so often. Such forms were born from the Jewish preoccupation with not expressly pronouncing the name of God.

Passing now to the question of the root from which the oath arises, it can be said that it springs from the desire to give to one's affirmations an absolute value. Man in fact has the faculty of manifesting through particular oral or written signs his own ideas: he can communicate to others, through sounds freely fixed or signs freely chosen (the spoken word and the written word), the judgments he has formulated. Yet such communication is by no means necessary. Each of us can always prevent it, by hiding his own thought; more still: each of us has the possibility of communicating a content different from that which he in fact has in mind, that is, he can lie. This possibility remains even with the most solemn forms of affirmation, that is, with the oath in the second sense indicated. Nor can much help come from the testimony of others. Apart in fact from the consideration that it is very difficult for others to enter into our thought for the reasons mentioned above, there always remains the possibility that they too may lie. And so we are back at the starting point. An absolute certainty can be had only through the testification of one who can in no way be deceived nor deceive, of one who knows things as they are and says them as he knows them. This one can only be God. And it is precisely to Him that he who swears has recourse; in swearing he seems to say: "God who knows everything and therefore also this which I affirm, God who never lies, not even in the case we are considering, testifies that things are as I say; consequently they truly are as I say."

All this appears more evident in the promissory oath. Here in fact there also intervenes the affirmation that an act or a fact will be placed in the future; now such an affirmation cannot be known with absolute certainty either to the individual who makes it (since he cannot know with absolute certainty what he will want or what he will do in the future), nor to other men who could from the study of the individual's character and his tendencies derive at most what he will probably want or do, not what he certainly will want or do. Here too it is necessary once again to have recourse to God: He alone knows the free future; He alone therefore can make a testification of absolute value.

From what has been said some conclusions follow at once: 1) the oath always arises from the will to give others a special proof of the truth of one's affirmations; in particular the religious oath is born from the desire to give others an absolute value of the truth of one's words or of the effectiveness of one's promises; 2) consequently the oath presupposes a certain insufficiency and some distrust in man's possibility of furnishing a completely trustworthy proof of the truth of his affirmations; it wishes to remove that insufficiency through a particularly solemn form of affirmation or, more still, through the invocation of the divine testimony. Consequently: 3) the oath always includes, besides the will to invoke God as witness, also the external expression of that will. A purely interior oath would not be conceivable; a purely exterior invocation (a feigned oath) is conceivable instead; 4) the religious oath includes the affirmation that God has a knowledge and a veracity superior to any man. From this point of view it is a form of adoration. Yet such superior divine cognition and veracity is invoked not for itself, for the purpose of recognizing it and thus rendering homage to God, but as a means to give others an absolute certainty of the truth of our affirmations or of the seriousness and efficacy of our promises.

The question arises whether it is lawful to perform an act of that kind. Is it lawful to use divine knowledge and veracity as a means to supply our insufficiency?

To the question some responded negatively, appealing also to Sacred Scripture, especially to Mt. 5:33-37 ("You have heard that it was said to the ancients: do not violate the oath, but render to the Lord what you have sworn. But I say to you, do not swear at all; neither by heaven, for it is the throne of God, nor by the earth, for it is the footstool of his feet, nor by Jerusalem, for it is the city of the great King; nor shall you swear by your head, for you cannot make one of your hairs white or black. But let your speech be yes yes, no no; for what is more comes from evil") and to Jas. 4:12 (where the same concept is repeated). Thus did, among others, the Waldensians, the Beguines and Beghards, the Fraticelli, Wycliffe, the Hussites, the Anabaptists, the Mennonites, the Quakers, Kant and Fichte.

To them it is pointed out that in certain cases there exists the necessity of acquiring an absolute or almost absolute certainty of the truth of an affirmation or of the effectiveness of a promise. Consider, for example, the cases in which a charge requires the penalty of death or of life imprisonment (that is, the end of a life) and in which the truth or falsity of the accusation can be established only through the affirmation of the accused or of a witness; consider the case in which a people entrusts to a man the custody of the constitution, the defense of the homeland, etc. In such cases one does not see why there should not be the right to demand an absolute proof of the truth of his words. On the other hand such absolute proof is not possible except through a religious oath; consequently one does not see why a religious oath should not be legitimate.

To this add the entire behavior of Scripture. It speaks very often of the oath; sometimes it even reports its formula (cf. Num. 33:10; Deut. 1:34; II Kings 19:8; Jer. 22:3); all this without ever indicating or suggesting that it is a morally illicit act. Indeed more than once Scripture advises or commands swearing (cf., for example, Num. 5:19; 30:3-16; Deut. 6:13). As for the passage cited above from St. Matthew and that of St. James which repeats it, there Jesus intends to exclude the abuse and the frequency of the oath and suggests that perfection would be in never swearing; his disciples must reach such a degree of sincerity as to be believed on their word without need of resorting to an oath of any kind, neither "by heaven," nor "by the earth," nor "by Jerusalem." Otherwise it would be difficult to understand how, immediately afterward, a disciple of the faithfulness of St. Paul resorts to the oath with notable frequency (cf. Rom. 1:9; II Cor. 1:23; Gal. 1:20; Phil. 1:8, etc.). One can therefore conclude that the oath is licit; but one must immediately add that it cannot be a very frequent act, much less a habitual one; it is born of a certain distrust in human affirmations and of the desire to have a special, indeed absolute, proof of their truth. It is therefore by its nature an exceptional act, which cannot be repeated too often without losing its efficacy. On such concepts cf. also Eccles. 23:9-14; 27:15. Delving into these considerations and following the indication of Jer. 4:2 ("Iurabis: vivit Dominus in veritate et in iudicio et in iustitia"), Catholic moral theology has specified the conditions of the morality of the oath as follows: first of all truth; it is necessary that that by which one invokes the divine testimony correspond to reality at least as far as it is given to know, that is, that it correspond at least to what one has in mind, otherwise one would make of God a false witness. The second condition is justice: that is, that the affirmation can be made; not all truth can always be said and by everyone (for example, the sins submitted by the penitent to the confessor cannot licitly be manifested by the confessor); it is not moral that God interpose his authority to give value to an affirmation that the one swearing cannot make without injuring the moral order. If nevertheless this should happen the oath does not hold (can. 1318, 2). Finally judgment, that is, that there exist a true and proper necessity of swearing; therefore those who swear continually without any necessity, over trifles, over futilities, cannot be approved; the gravity of the fault depends on the frequency with which one swears and on the pettiness of the motives for which one does so. Applying this to the promissory oath, it is necessary that the one swearing truly have the serious will to do what he promises, that it be a matter physically and morally possible (that is, of a thing that he can do without requiring a special help from God and without offending the moral order); finally that there be a motive for confirming one's purpose with an oath.

A further question that arises concerns the obligations that spring from a valid and licit oath. The problem arises practically only for the promissory oath, since from the assertory oath no new obligation arises. The matter varies instead for the promissory oath, in which God is called as witness of the effective position of the act. Through it therefore one assumes the obligation to do what has been promised also out of regard for the divine testimony (in this sense canon 1317, 1 says: "Qui libere iurat se aliquid facturum, peculiari religionis obligatione tenetur implendi quod iureiurando firmaverit"). Such an obligation, however, cannot have a scope greater than that which was assumed with the promise itself (can. 1318, 1); consequently the oath is interpreted within this scope and holds as long as the object is possible and good, and ceases when the object ceases to be possible and honest or changes substantially (can. 1319, 2).

The oath also ceases for an internal cause, when the final cause or the condition under which it was made is lacking (can. 1319, 3). From the outside it can be remitted by the one in whose favor it was made, or by irritation, commutation, condonation (can. 1319, 4) of those who enjoy the same powers regarding the vow (v.), unless the dispensation entails injury to the right of third parties, in which case only the Holy See can dispense in view of the supreme interests of the Church (can. 1320). The oath extorted by violence or grave fear can also be remitted by the competent ecclesiastical superior (can. 1317, 2). The binding bond, which the oath creates and which arises from the virtue of religion (can. 1317, 1) out of reverence due to the name of God, in the internal forum never binds beyond the intention of the one swearing and therefore must be interpreted according to it, but if he acts deceitfully, in the external forum the interpretation of the oath is entrusted by the ecclesiastical legislator to the one in whose favor it is made (can. 1321) and moreover the one swearing, in both forums, is bound to compensation for any damages. The obligation to observe the promissory oath and to be truthful in the assertory oath is in itself grave; nevertheless many theologians admit parvity of matter. In canon law the obligation of the oath is personal and cannot be fulfilled by means of a proxy (can. 1316, 2). Its violation is punished with special penalties (cf. cann. 1743, 3; 1757, 2, 1; 1795, 2; 2323; v. PERJURY).

Giovanni Battista Guzzetti

III. LAW

In various cases the Church obliges the taking of an oath, especially by anyone about to assume an ecclesiastical office or charge (the oath de munere fideliter implendo or another promissory oath).

Thus they are bound to take an oath, before beginning the exercise of their office or charge: cardinals (can. 234), bishops (can. 332 § 2), members of the diocesan Curia (can. 364 § 2, no. 1), the puntatori in Chapters (can. 395 § 4), diocesan consultors (can. 425 § 2), religious who must take part in the election of one of their superiors (can. 506 § 1), administrators of ecclesiastical property (can. 1520 § 4 and 1522 no. 1), judges and the other officials of tribunals (can. 1621), those who take part in processes of beatification or canonization (cans. 2037 and 2047), clerics who must be incardinated in a diocese other than their own (can. 117 no. 3) and, in certain cases, ordinands (cans. 956 and 994: the one provided for by can. 994 is, however, an assertory oath), etc.

Of particular importance, then, from the juridical point of view, is the oath in the process, an oath which can be either a means of proof in its own right, or an integrative element of a deposition.

1. The oath as a means of proof

It constitutes the most effective evidentiary remedy for the settlement of a suit, and it can be judicial or extrajudicial, according as it is tendered by the judge - it matters little whether at the request of a party - to one of the parties to the case, or is the result of an agreement of the parties aimed at bringing about the settlement of the suit.

The judicial oath, moreover, is distinguished into voluntary or decisory, which as a rule is tendered by one party to the other, and necessary, which is on the contrary tendered by the judge ex officio. This latter oath in turn can be either suppletory, which is the one aimed at supplementing the results of other proofs already admitted to the process, or estimatory, which occurs when the judge orders the injured party to assert by oath the amount of the damage suffered (when the case has as its object compensation).

In particular, as regards the suppletory oath, it must be considered: a) that it is much used in cases concerning the civil or religious status of a person; b) that it cannot be tendered in cases which have as their object facts or rights of particular importance, and in any criminal case (cans. 1829-31).

As regards the estimatory oath, the following two fundamental rules must be borne in mind: a) it is necessary, in the first place, that it appear (in order that the estimatory oath may be tendered by the judge to the plaintiff) that the right to compensation for the damage has already been judicially established and that the measure of that damage cannot be determined with certainty by other means; b) the estimatory oath cannot be referred, since it is reserved to the party who has suffered the damage and to his heirs (cans. 1832-33).

The decisory oath, finally, which is by far the most used of the three types of judicial oath, can be tendered only if the conditions established by can. 1835 are present, according to which: a) it must be a matter, first of all, for which cession or transaction is permitted, so that the oath in question cannot be tendered in criminal cases, in cases of public interest (and in particular in matrimonial cases), and in cases, generally, in which there is a dispute over goods whose alienation is not permitted except with the authorization of the competent ecclesiastical authority; b) the object of the oath must not be of excessive importance or value; c) the tender of the oath itself must come from persons and be directed toward persons who have by law the capacity to dispose of their own rights, so that minors, persons under interdiction and their representatives who are not furnished with special authorization are excluded from it; d) the oath must bear either on simple reports of facts, or on facts that are proper to the one to whom the oath itself is tendered.

In general, the tender of the judicial oath is established by decree of the judge, to be notified to the party to whom the oath is tendered, indicating to that party the term within which that party must make known which of the attitudes that the law allows it intends to assume. Indeed the party to whom the oath is tendered can accept it outright, in which case it declares itself in substance ready to swear on the formula notified. The party can moreover refuse to swear (and non-appearance on the day fixed for the carrying out of the oath is to be equated with refusal, unless the existence of a legitimate impediment is demonstrated). If the refusal is justified, the tender of the oath loses all procedural effect, whereas, conversely, if the refusal is not justified it will be for the judge to evaluate, with his prudent appreciation, whether it should or should not be equated with a confession.

Lastly, the oath can be referred by the party to whom it is tendered to the one tendering it (with the exception of the estimatory oath). In that case, the reference of the oath determines, as is obvious, a reversal of positions, inasmuch as the burden and the advantage of the oath pass from the one referring to the one tendering it; and since the reference is moreover equivalent to a new and definitive tender, it is subject to the same conditions fixed for its tender. By effect of the reference the one tendering it is bound to the oath, provided that he has no legitimate grounds of refusal to oppose (cf. cans. 1835 and 1836 § 5). And if he refuses, the case is resolved to his detriment (can. 1836 § 4) inasmuch as he succumbs in the claim or in the objection.

The judicial oath produces different effects, according to its species.

Indeed the decisory oath is so called because the judge is obliged to decide the case according to the outcome of the oath; and this effect is produced even when, in the case of a reference of the oath, the one tendering it has refused to swear (can. 1836). Moreover the decisory oath brings about the unappealability of the sentence pronounced on the basis of it (can. 1880 no. 5), save for the remedy of restitutio in integrum (can. 1926).

As for the effects proper to the estimatory oath, this binds the judge only when the opposing party has accepted its outcome or when the judge himself does not consider that outcome excessive, in which case the judge can, however, reduce the measure of the damage to more equitable limits.

Finally, as for the suppletory oath, it should be borne in mind that its having been taken does not of itself preclude the adducing of other proofs (can. 1861 § 1), given the greater evidentiary possibilities that the suppletory oath offers the judge, in allowing him to form his own conviction on the basis of the results of the oath itself, suitably examined and evaluated in comparison with those of the means of proof previously carried out.

Norms entirely identical have been issued (and will enter into force from 6 Jan. 1951) for the Eastern Church (cf. the motu proprio Sollicitudinem nostram, 6 Jan. 1950, cans. 353-60 and 404 no. 5, in AAS, 42 [1950], pp. 77-79 and 88).

2. The oath in confirmation of a judicial deposition

As an integrative element of the testimony of a witness or of the deposition of a party, the oath can be of three kinds. First of all there is the preliminary oath or de veritate dicenda, which is a promissory oath, moreover not strictly necessary in cases in which there is a dispute over merely private rights; it is moreover forbidden to tender such an oath to the accused, in criminal trials (cans. 1744, 1746, 1758, 1767, 2037 § 3, 2145 § 2).

Furthermore, the oath de veritate dicorum is for the most part required, in the judicial practice of the Church, in spiritual cases or in criminal ones. Such an oath is assertory and can concern the deposition given either in whole or in part (cans. 1768, 1824 § 3, 2037 § 3).

Lastly, there is another type of promissory oath, namely the oath de secreto servando, with which the judge has the faculty to bind the party or the witness to secrecy until the publication of the acts or, if there are the dangers referred to in can. 1623 § 3, without limitation of time (cf. cans. 1769, 1944 § 1, 2037).

Also the experts may be administered the above-mentioned oaths; and, in any case, the expert, before beginning his assignment, must take the oath de munere fideliter implendo (can. 1797).

For Eastern canon law the above-cited motu proprio establishes (at cann. 266, 268, 280, 289-291, 320) norms identical to those mentioned above for Latin law; only the regulation of the oath of the parties is more complete.

Ferdinando Della Rocca