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Conscience and the Word of God: Religious Arguments against the Ex Officio Oath

Published online by Cambridge University Press:  06 June 2013

JONATHAN MICHAEL GRAY
JONATHAN MICHAEL GRAY*
Affiliation:
2600 Crystal Dr, Apartment 1509, Arlington, VA, USA; e-mail: [email protected]
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Abstract

When Roman Catholics and Puritans declined to swear the ex officio oath, they cited not only legal but also religious arguments. They appealed to their consciences and noted that Scripture disallowed the taking of the Lord's name in vain and the swearing of oaths against truth, justice or judgement. They then argued that the ex officio oath violated these biblical standards. Such arguments were powerful because they rested on the same theory of oath-taking that buttressed the Elizabethan regime's own use of oaths. The Elizabethan authorities could question the application of this theory, but they could not challenge the theory itself, for to do so would risk undermining the very mechanism that they used to enforce the Elizabethan settlement: oaths.

Type
Articles
Information
The Journal of Ecclesiastical History , Volume 64 , Issue 3 , July 2013 , pp. 494 - 512
Copyright
Copyright © Cambridge University Press 2013 

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References

1 Statutes of the realm, 1 Eliz. 1, c. 1, iv. 352.

2 For primary sources by later Elizabethan Catholics justifying dissimulated oath-taking see Robert Parsons, A treatise tending to mitigation towardes Catholike-subiectes in England wherin is declared, that it is not impossible for subiects of different religion, (especially Catholikes and Protestantes) to liue togeather in dutifull obedience and subiection, vnder the gouernment of his maiesty of Great Britany: against the seditions wrytings of Thomas Morton minister, & some others to the contrary: whose two false and slaunderous groundes, pretended to be drawne from Catholike doctrine & practice, concerning rebellion and equiuocation, are ouerthrowne, and cast vpon himselfe: dedicated to the learned schoole-deuines, cyuill and canon lawyers of the two vniuersities of England: by P. R., [Saint–Omer] 1607 (RSTC, 19417); [Henry Garnet], A treatise of equivocation: wherein is largely discussed the questions whether a Catholic or any other person before a magistrate beyng demaunded uppon his oath whether preiste were in such a place, may (notwithstanding his perfect knowledge to the contrary) without periury and securely in conscience answere, No, with this secreat meaning reserued in his mynde, that he was not there so that any man is bounde to detect it, ed. David Jardine, London 1851; and Holmes, P. J., Elizabethan casuistry (Catholic Record Society lxvii, 1981)Google Scholar. For secondary sources exploring these arguments see Zagorin, Perez, Ways of lying: dissimulation, persecution, and conformity in early modern Europe, Cambridge, Ma 1990, 186–220CrossRefGoogle Scholar; Carrafiello, Michael L., ‘Robert Parsons and equivocation’, Catholic Historical Review lxxix (1993), 671–80Google Scholar; and Tutino, Stefania, ‘Between nicodemism and “honest” dissimulation: the Society of Jesus in England’, Historical Research lxxix (2006), 534–53CrossRefGoogle Scholar.

3 For details on the trial of 1581 see John Bruce, ‘Observations upon certain proceedings in the Star-Chamber against Lord Vaux, Sir Tresham, Thomas, Catesby, Sir William, and others, for refusing to swear that they had not harboured Campion the Jesuit’, Archaeologia xxx (1844), 64–79Google Scholar; Levy, Leonard W., Origins of the Fifth Amendment: the right against self-incrimination, Chicago 1968, 100–5Google Scholar; and Trimble, William Raleigh, The Catholic laity in Elizabethan England, 1558–1603, Cambridge, Ma 1964, 119–21CrossRefGoogle Scholar.

4 For Bainbrigg and Johnson's story see Lake, Peter, ‘The dilemma of the establishment Puritan: the Cambridge heads and the case of Francis Johnson and Cuthbert Bainbrigg’, this Journal xxix (1978), 23–35Google Scholar.

5 For details on this story see Collinson, Patrick, The Elizabethan Puritan movement, Berkeley–Los Angeles 1967, 409–31Google Scholar.

6 Maguire, Mary Hume, ‘Attack of the common lawyers on the oath ex officio as administered in the ecclesiastical courts in England’, in Wittke, Carl Frederick (ed.), Essays in history and political theory in honor of Charles Howard McIlwain, Cambridge, Ma 1936, 199–229Google Scholar; Levy, Origins of the Fifth Amendment, chs iii–vi; James E. Hampson, ‘Richard Cosin and the rehabilitation of the clerical estate in late Elizabethan England’, unpubl. PhD diss. St Andrews 1997, 39–40, 51, 64–9, 169–81, 187–98. Levy did briefly touch upon the religious opposition to the ex officio oath based on conscience (pp. 177–9), but his summary was neither detailed nor comprehensive. Likewise, Hampson did cover Morice's scriptural arguments (pp. 56–7, 181–4), but his primary focus was on the legal arguments of Morice and Cosin.

7 Helmholz, R. H., ‘Origins of the privilege against self-incrimination: the role of the European ius commune’, New York University Law Review lxv (1990), 962–90Google Scholar.

8 Cosin, Richard, An apologie for svndrie proceedings by iurisdiction ecclesiasticall, of late times by some chalenged, and also diuersly by them impugned … whereunto … I haue presumed to adionie that right excellent and sound determination (concerning oaths) which was made by M. Lancelot Androwes, London 1593Google Scholar (RSTC, 5821), pt iii, 132.

9 TNA (PRO), SP12/71, fo. 31r–v, printed in Strype, John, Annals of the reformation and establishment of religion, and other various occurrences in the Church of England, during Queen Elizabeth's happy reign: together with an appendix of original papers of state, records, and letters, Oxford 1824, i/2, 371–2Google Scholar; Kaushik, Sandeep, ‘Resistance, loyalty and recusant politics: Sir Thomas Tresham and the Elizabethan state’, Midland History xxi (1996), 56Google Scholar.

10 Bruce, John, ‘Narrative of proceedings in the Star-Chamber against Lord Vaux, Sir Thomas Tresham, Sir William Catesby, and others, for a contempt in refusing to swear that they had not harboured Campion the Jesuit’, Archaeologia xxx (1844), 94–5Google Scholar. See also Kaushik, ‘Resistance, loyalty and recusant politics’, 54–5.

11 Bruce, ‘Narrative’, 98.

12 LPL, ms 2004, fo. 85r.

13 LPL, ms 445, p. 442.

14 James Morice, A briefe treatise of oathes exacted by ordinaries and ecclesiasticall iudges, to answere generallie to all such articles or interrogatories, as pleaseth them to propound: and of their forced and constrained oathes ex officio, wherein is proued that the same are vnlawfull, n.p. 1590 (RSTC, 18106), 10; CCCO, ms 294, 391, printed in Thomas Cartwright, Cartwrightiana, ed. Albert Peel and Leland H. Carlson, London 1951, 37.

15 For a discussion on oaths as a form of worship and the gravity of abusing God's name by swearing incorrectly see Jonathan Michael Gray, ‘So help me God: oaths and the English reformation’, unpubl. PhD diss. Stanford 2008, 22–57.

16 Bruce, ‘Narrative’, 88–9; Kaushik, ‘Resistance, loyalty and recusant politics’, 54.

17 Bruce, ‘Narrative’, 92.

18 Tresham's exact words were: ‘perhiberem meae conscientiae falsum testimonium’: ibid. 93. See also HMC, Report on manuscripts in various collections, III: The manuscripts of T. B. Clarke-Thornhill, Esq., Sir T. Barrett-Lennard, Bart., Pelham R. Papillon, Esq., and W. Cleverly Alexander, Esq., London 1904, 17Google Scholar.

19 The argument that it was against God's law to accuse oneself was not developed at length by Tresham in his Star Chamber trial. In the private notes that he prepared for his trial, however, Tresham did observe that both Jesus and Paul required witnesses to accuse them before they responded, and that Jesus did not reject Judas even though he knew Judas was a thief because no one had accused Judas: BL, ms Add. 39830, fos 49r–50r. Perhaps Tresham did not articulate this argument during his Star Chamber trial because it would have been easy to reply that Tresham did have an accuser in Edmund Campion. Nevertheless, Tresham's argument here was quite similar to the one made by the Puritans in 1589 through 1591.

20 Bruce, ‘Narrative’, 92–3 (at p. 98 for Catesby also justifying his refusal of the oath on grounds of fear of being accused of perjury).

21 Morice, A briefe treatise, 23.

22 Ibid. 24.

23 Ibid. For a restatement of this argument focusing more on the oath of canonical purgation see James Morice, ‘A just and necessarie defence of a brief treatise made against generall oaths’, LPL, ms 234, fos 50v, 107r–109r.

24 Morice, A briefe treatise, 39; Hampson, ‘Richard Cosin’, 149–51, 194–5.

25 CCCO, ms 294, 383–4, printed in Cartwright, Cartwrightiana, 33.

26 Morice, A briefe treatise, 10.

27 The first quotation is from Cartwright and his companions: Cartwright, Cartwrightiana, 29. The second is from Edmund Snape: LPL, ms 2004, fo. 86v. Snape was quoting Romans xiv.23.

28 CCCO, ms 294, 383, printed in Cartwright, Cartwrightiana, 32.

29 Morice, A briefe treatise, 11–12; Cartwright, Cartwrightiana, 33. Morice devoted most of the second chapter of his ‘A just and necessarie defence’ to showing (against the assertions of Cosin) that none of the oaths approved in Scripture were general oaths like the ex officio oath: ‘A just and necessarie defence’, fos 58r–62r, 67v–83r.

30 LPL, ms 445, 440.

31 LPL, ms 2004, fo. 87r. Snape was probably referring to Genesis xiv.1–9, though in the biblical narrative Abraham's servant is not specifically named Eleazar.

32 Cartwright, Cartwrightiana, 29.

33 CCCO, ms 294, 384, printed in Cartwright, Cartwrightiana, 33.

34 Morice, A briefe treatise, 11, and ‘A just and necessarie defence’, fo. 47r–v; LPL, ms 445, 440; CCCO, ms 294, 383–4, printed in Cartwright, Cartwrightiana, 33. For the scriptural references see Judges xi; Matthew xiv; and Mark vi.

35 Cartwright, Cartwrightiana, 30.

36 The quotation from Proverbs xi.13 is taken from the 1560 edition of the Geneva Bible. For Humfrey Fen's list of scriptural examples against the ex officio oath based on the law of charity see LPL, ms 2004, fo. 83r–v. For a similar list of examples drawn up by Whitgift's party to show how Puritans ‘shamefully abuse the scriptures for their defence of their pertinacie’ see BL, ms Lansdowne 120, fos 39v–40r. The scriptural examples are Joshua ii; Hebrews xi. 31; Exodus i. 17; 1 Samuel xix–xx; 1 Kings xviii.13; and Acts xxii.20.

37 The Puritans never observed that Rahab's protection of the Israelite spies, Jonathan's protection of David, and Obadiah's protection of the prophets could be construed as treason (and thus capital offences) by the rulers of Jericho, Saul and Jezebel respectively. They avoided this issue. Indeed, the Puritans strictly believed that their behaviour was righteous and in no way qualified as a capital offence.

38 The Puritans quoted Tyndale in LPL, ms 2004, fo. 77r. For Tyndale's original expression of this idea see his An answer to Sir Thomas More's Dialogue, ed. Henry Walter (Parker Society xlii, 1850), 147.

39 Morice, A briefe treatise, 10–11.

40 CCCO, ms 294, 395, printed in Cartwrightiana, 40. For Ahab and Elijah see 1 Kings xviii.

41 ms Lansdowne 68, fo. 116r, printed in Strype, John, The life and acts of the most reverend father in God, John Whitgift, D. D. the third and last lord archbishop of Canterbury, in the reign of Queen Elizabeth: who, under her majesty, in that station, governed the Church of England for the space of twenty years, London 1718, 365Google Scholar. For other citations in Puritan writings claiming that the ex officio oath was unlawful because it did not end all controversy see Morice, A briefe treatise, 9–10; LPL, ms 2004, fo. 53r; CCCO, ms 294, 388–9, printed in Cartwright, Cartwrightiana, 35–6. For Lancelot Andrews's argument that if an oath truly were the end of all controversy, perjury would abound see his Qvaestionis: nvnqvid per ivs diuinum, magistratui liceat, a reo Iusiurandum exigere? & id, quatenus ac quousque liceat?, in Cosin, An apologie, pt iii, 254–5.

42 ms Lansdowne 61, fo. 48r.

43 CCCO, ms 294, 385.

44 Cartwright, Cartwrightiana, 29.

45 CCCO, ms 294, 386; Cartwright, Cartwrightiana, 34.

46 Bainbrigg and Johnson put forth their argument in a series of petitions in March 1589. The most developed petition (probably to Lord Burghley) is ms Lansdowne 61, #7, especially fos 25v–26v. An early version of this petition from 11 March 1589, addressed to Tindall (Master of Christ's College, Cambridge), is Cambridge University Library, CUR Guard Book 6.1, no. 17. Another one, addressed to the vice-chancellor of Cambridge, from March 12 is Bodleian Library, Oxford, ms Tanner 84, no. 4. For Snape's recapitulation of this argument (including a visual mapping of it) see LPL, ms 2004, fos 85r–86v.

47 BL, ms Add. 48039, fo. 81r–v. The same argument exists in LPL, ms 2004, fos 52v–53r, which perhaps suggests that this anonymous portion of the manuscript was by Beale.

48 CCCO, ms 294, 386–8, 409; Cartwright, Cartwrightiana, 35.

49 ms Lansdowne 61, fo. 28r.

50 Cartwright, Cartwrightiana, 29–30.

51 Morice, ‘A just and necessary defence’, fo. 86r–v.

52 ms Lansdowne 61, fo. 26v.

53 Cosin, An apologie, pt iii, 193.

54 For background on Cosin's role in this controversy see Hampson, ‘Richard Cosin’, 16–29.

55 Cosin, An apologie, pt iii, 134–5, 186.

56 Shagan, Ethan, ‘The English inquisition: constitutional conflict and ecclesiastical law in the 1590s’, HJ xlvii (2004), 551–5Google Scholar.

57 Cosin, An apologie, pt iii, 97.

58 Ibid. pt iii, 135–56. For a condensed version of many of these arguments see Lancelot Andrews, Qvaestionis: nvnqvid per ivs diuinum, magistratui liceat, a reo iusiurandum exigere, appended to the end of Cosin's treatise, and Hampson, ‘Richard Cosin’, 155–62.

59 Cosin, An apologie, pt iii, 135.

60 Exodus xx.7; Deuteronomy v.11: NRSV.

61 Cartwright, Cartwrightiana, 31.

62 Cosin, An apologie, pt iii, 184.

63 Cartwright, Cartwrightiana, 44–5.

64 Cosin, An apologie, pt iii, 217–20.

65 Ibid. pt iii, 174. For similar statements see pt iii, 38–9, 48–9, 79–81.