- CCCO
Corpus Christi College, Oxford
- LPL
Lambeth Palace Library
- TNA
The National Archives
The Elizabethan regime, like the regimes that preceded and followed it, depended on the sanctity of oaths to shore up its power and enforce its religious settlement. In particular, Elizabeth's government used oaths to accomplish two purposes. First, it sought to influence its subjects’ future actions, to bind their consciences in a way that ensured that they would remain obedient and loyal to the queen, even in the midst of a religiously-inspired rebellion. This first use of oaths is evident in the Elizabethan oath of supremacy wherein the juror, after having recognised Elizabeth as supreme governor of the realm ‘aswell in all Spirituall or Ecclesiasticall Thinges or Causes as Temporall’ and having renounced all foreign jurisdictions, promised from henceforth to ‘beare Faithe and true Allegiance to the Quenes Highnes her Heires and lawfull Successoures’ and to ‘assist and defende all Jurisdiccions Preheminences Privileges and Aucthorities granted or belonging to the Quenes Highnes her Heires and Successoures’.Footnote 1 Second, the Elizabethan regime used oaths of inquisition to discover the current thoughts and actions of English subjects whom it suspected of disloyalty. The most obvious example here is the ex officio oath. The judge, proceeding ex officio mero (by virtue of his office alone), swore the defendant to answer all subsequent questions truthfully. After taking the oath, the defendant could neither lie nor refuse to answer the questions without committing perjury. Oaths of inquisition such as the ex officio oath were often employed against seminary priests and Puritans as a means to gather information on their beliefs and networks.
For both of these oaths to be effective, the juror had to esteem oaths, that is, the person swearing the oath had to believe that the act of citing God as witness to the truth of his statement or promise (the definition of an oath) guaranteed the truth of the oath by making God the judge of the matter, a judge who would severely punish in this life and the next anyone who committed perjury by swearing falsely or inappropriately. One way to subvert the purposes of the Elizabethan regime, then, was to lie under oath. This was the strategy of some late Elizabethan Jesuits and seminary priests. Jesuits like Robert Parsons and Henry Garnet and the priests trained at Douai developed elaborate theories of equivocation and mental reservation that allowed them to dissimulate under oath. Their casuistry effectively devalued oaths, placing a higher worth on the mission to restore and perpetuate Catholicism in England than it did on the sanctity of oaths.Footnote 2
Another way to resist the Elizabethan regime's purposes in administering oaths was simply to refuse to swear the oath in the first place. This was the strategy of Sir Thomas Tresham, Lord Vaux, Sir William Catesby and their party, a group of Roman Catholic recusants who refused to take an inquisitive oath (in effect, an ex officio oath) before the Star Chamber in 1581 to answer to charges of harbouring the Jesuit Edmund Campion;Footnote 3 of Cuthbert Bainbrigg and Francis Johnson, two Fellows at Christ's College, Cambridge, who had preached sermons supporting aspects of Puritanism in 1589 and were imprisoned for refusing the ex officio oath;Footnote 4 and of Thomas Cartwright, Edmund Snape and their fellow ministers, a group of clerical Puritan leaders of the classis movement who declined to take the ex officio oath before the High Commission and before the Star Chamber in 1590 and 1591.Footnote 5 The advantage of this strategy was that the suspects did not commit perjury and thus did not risk the wrath of God for abusing his name. The disadvantage of this strategy was that, in the eyes of those administering the oaths, the refusal to swear the oath seemed to indicate that the nonjurors were guilty of the very charge of which they were accused. Why else would they refuse to swear the oath of inquisition? The burden thus fell on the defendants to explain their refusal to swear.
And explain they did. Both the accused and their legal counsel (parliamentary men like James Morice and Robert Beale) constructed elaborate justifications for refusing oaths of inquisition. One prominent argument involved claiming that the ex officio oath was illegal. This strand of argumentation has been well explored by historians. Mary Hume Maguire, Leonard W. Levy and James E. Hampson have documented the common law opposition to the ex officio oath in which figures like Robert Beale, James Morice and Sir Edward Coke constructed historical and constitutional arguments.Footnote 6 More recently, R. H. Helmholz has stressed the importance of canon and Roman law in resisting the oath.Footnote 7 Yet recusant and Puritan opponents of the ex officio oath employed other arguments against the oath, arguments hitherto unexplored by historians. Recusants and Puritans appealed not only to the law but also to their consciences. They claimed that swearing the ex officio oath was not simply illegal; it was sinful. Indeed, the Elizabethan regime's chief justifier of the ex officio oath, Richard Cosin, recognised that many of his opponents refused the oath ‘vnder pretence of conscience, and of a religious care not to offend God thereby’.Footnote 8
Taking my cue from Cosin, the theme of this article is the religious opposition to the ex officio oath. The central argument is that religious opposition to the ex officio oath was based on the majesty of God's name, the sanctity of oaths, and the law of God, and that this resistance was especially potent because it hijacked the Elizabethan regime's own rhetoric on oaths and turned it against the regime. The religious arguments against the ex officio oath were dangerous forms of resistance theory precisely because they were based on the same foundation that the regime depended upon to enforce its policy, namely the sanctity of oaths and the fear of perjury.
The secrets of one's conscience: the minor strand in the opposition to the ex officio oath
One common religious argument against the ex officio oath was that it offended the conscience of the juror. Of course, this simple statement had a variety of meanings. In some cases it amounted to a claim of the inviolability of one's conscience in certain matters. To a limited extent Elizabeth acknowledged the inviolability of an individual's conscience since she proclaimed that as long as her subjects behaved themselves and followed her laws, she would not search their consciences in matters of religion.Footnote 9 In theory, Elizabeth recognised a sphere of conscience that was free (as long as it did not engender open action) and not subject to the state's coercion. Some Elizabethan Catholics exploited Elizabeth's rhetoric here and justified their refusal to take an oath of inquisition on the grounds that the questions asked of them after they had taken the oath would concern matters of religion. For example, Sir Thomas Tresham refused to take an oath of inquisition before the Star Chamber in 1581 because he objected that this was not merely a temporal cause. The articles read to him concerned more than just whether Edmund Campion was at Tresham's house, but whether Campion had said mass there, which Tresham considered a matter of religion and conscience.Footnote 10 Catesby likewise refused to take the oath of inquisition and offered instead ‘to sweare to my alleageance, or to any thinge concerninge her majestie or estate, or any other thing whatsoeuer, other then to discover matters of conscience, which I maye not doe without offence of my conscience’.Footnote 11 Most Catholics, however, did not object to the ex officio oath on grounds that it searched their consciences in matters of religion.
Puritans also avoided this argument, though a few of them did advance a somewhat analogous contention. Edmund Snape, for example, objected to the ex officio oath because it ‘transferreth the glory of God vnto man, by serchinge mens consciences’. The ex officio oath was ‘of the nature of Auricular confession’.Footnote 12 An anonymous discourse against the oath preserved in Lambeth Palace Library, and most likely drawn up by Bainbrigg and Johnson or Cartwright and Snape, expanded on this point, arguing that if auricular confession had been abrogated because of the violence it did to people's consciences, how much more should forced confessions upon an oath be removed.Footnote 13 James Morice, the Puritan attorney of the Court of Wards and parliamentary man who wrote two treatises against the ex office oath, attacked the oath since it forced men to reveal their ‘most secret and inward thoughtes’, while Cartwright and his companions avowed that ‘a mans owne private faults should remayne private to god & himself’.Footnote 14 Implicit in these arguments was the idea that no person could use an oath to violate another's conscience by searching it to discover secret, private sins – whether they had to do with religion or not. Yet Puritans did not bolster these arguments by building a case on the inviolability of private conscience. This was not their primary emphasis. As we shall see, they justified their refusal to swear with the law of God, not the secrecy of their personal consciences. Accordingly, the modern idea that each individual has his or her own private conscience in which no state or authority has the right to search was not a major ingredient in the recipes against the ex officio oath of either sixteenth-century Catholics or Puritans.
Conscience of oaths: the majesty of God, the word of God, and the major strand in opposition to the ex officio oath
The majority of English Catholics and Puritans who cited conscience as grounds for their resistance to the ex officio oath were referring to the great esteem that their consciences placed on the majesty of God's name and the sacredness of oaths. Because oaths concerned the holy name of God and were a form of worship, there were few activities that had greater potential to trigger one's conscience.Footnote 15 To swear incorrectly was a grave sin, and since an individual's conscience bore witness to his sins, swearing was a great matter of conscience. When an Elizabethan claimed that he could not swear the ex officio for the sake of his conscience, he usually meant that his conscience would not allow him to swear because it considered the ex officio oath to be an evil or blasphemous oath against God's law. The key, then, was to demonstrate that the ex officio oath clashed with God's ordinance for the use of his name as revealed in his Word.
One of the earliest and most basic religious arguments against an oath of inquisition was put forth by the Roman Catholic lawyer Sir Thomas Tresham in 1581 during his Star Chamber trial. The Jesuit Edmund Campion had confessed on the rack to being at Tresham's residence, and the Star Chamber administered an oath of inquisition to Tresham in order to gain supporting evidence for Campion's accusation. Tresham refused to swear the oath and quoted Jeremiah iv. 2: ‘a lawful oath must have truth, judgement [iudicium], and justice’. The oath of inquisition, contended Tresham, lacked iudicium. The prosecuting attorney explained to the court that Tresham must be implying that in light of the papal bull Regnans in excelsis, Tresham did not consider the judges of the Star Chamber (who were members of the Privy Council) to be lawful judges, and therefore it was the Star Chamber who did ‘want iudicium in mynistring of an othe’. Tresham, however, denied that this was the case. It was not the judges who wanted iudicium but Tresham himself, for every person must have ‘iudicium iurantis’ (judgement of swearing) to take an oath. Tresham argued that ‘to sweare to such a lawfull acte against the iudgment of his concience, ys unlawfull, and a great synne’. It was Tresham's own conscience that judged that the oath lacked iudicium. Sir Walter Mildmay immediately observed that by this logic, ‘everie deponent maye refuse, yf he see iudicium to be wantinge in the thinge that he should depose unto’.Footnote 16 This would elevate the authority of the subjective conscience above that of God's lawful magistrates. Yet the subjectivity of conscience was not a recognised concept in the sixteenth century. For a conscience to be valid, it had to be based on the Word of God. The burden fell on Tresham to show why his conscience believed that the oath of inquisition lacked judgement.
Tresham grounded his conscience on the sanctity of God's name and the seriousness of the offence of perjury. Tresham noted that no matter how he swore he would open himself up to perjury: ‘yf I dyd sweare falselie I were periured, and yf I dyd sweare trulie, I should laye myselfe wyde open to periurie, because Mr. Campion had affirmatyvly accused me’.Footnote 17 Because Tresham did not believe that Campion had been at his house (though he admitted that he could not be sure of that since he might not have recognised Campion), to swear that Campion had been at his house would be to swear falsely against his conscience. Yet because Campion had asserted that he had visited Tresham's house, to swear that Campion had not been there would be to appear perjured since Campion's testimony provided evidence against him. Thus, whether Tresham swore that Campion had or had not been at his house, he ‘would call false witness to his conscience’.Footnote 18 Furthermore, Tresham believed that it was against God's law to accuse himself.Footnote 19 If he swore that Campion was at his house he would open himself up to charges of treason. If he swore that Campion was not at his house he would open himself up to charges of perjury. Hence, Tresham's conscience judged that the oath of inquisition lacked judgement or discretion because no matter how he swore, he would have to confront perjury (either actual or perceived) and open himself up to further charges (either treason or perjury).Footnote 20
Tresham's argument that he could not take the oath of inquisition because he feared perjury was not an argument that Puritans could adopt for their own, for while Tresham had an accuser (Campion) whose testimony he feared to contradict, the High Commission proceeded against Puritans ex officio mero, on basis of common fame alone. There was no official testimony that could serve as a base for an accusation of perjury if Puritans took the ex officio oath and then answered questions in a way that contradicted the report of common fame. The Puritan lawyer James Morice, however, constructed a different argument based on the same foundation, the majesty of God's name and the fear of perjury. Morice noted that ‘as concerning th'offence to God by the abuse of his Name and Maiestie, Haue we not learned before’ that to offer an oath to a person of defamed life and conversation is ‘a lightnes and wante of good discretion in the Magistrate, who thereby wittinglie doeth minister an occasion of perjurie’.Footnote 21 Morice reasoned that whenever the guilt or innocence of a man depended solely on his oath (be it an ex officio oath or an oath of canonical purgation), that is, whenever there was no evidence based on the testimony of other witnesses from which to check the truth of the defendant's sworn statement, then many men would rather hazard their souls by committing perjury ‘then put their bodies to shame and reproach’.Footnote 22 The ex officio oath was wrong because it encouraged perjury, a serious offence. If ecclesiastical judges really cared for the majesty of God and the state of deponents’ souls, they would not require such oaths.Footnote 23
Morice could make this argument because he was a common lawyer and was not himself on trial before the High Commission. Puritan ministers themselves could not challenge the ex officio oath on the basis that it encouraged perjury, for by doing so they would suggest to their judges that they themselves might be willing to commit perjury rather than answer incriminating questions truthfully. They could, however, still claim that the ex officio oath lacked judgement upon different grounds. Puritan ministers like Cartwright, Snape and their companions (as well as Morice who employed pretty much every argument possible against the ex officio oath) argued that the ex officio oath lacked judgement because it was a general oath. The ex officio oath was a general oath because deponents had to swear to answer truthfully whatever questions were to be offered to them without knowing in advance the content of the questions. (This is what separated the ex officio oath from the oath of inquisition employed by the Star Chamber. In a Star Chamber trial the defendant was given a bill of complaint before he swore his oath, and his oath bound him to answer only the questions which related to the bill of complaint.Footnote 24) Taking a general oath was like putting one's conscience on a rack.Footnote 25 It could not be done ‘without great offence to his [God's] diuine Maiestie’.Footnote 26 First, an oath was a form of worship. ‘As all other dewties of the worship of God’, an oath must have faith, for ‘whatsoeuer is not of faith is sinne’.Footnote 27 Yet how could one take an oath in faith if one did not know to what one was swearing? Cartwright and his companions did therefore ‘in this oth iustly condempe this popish conceit & blynd devotion that god will accept any good purpose in a service of his worshypp, wherin I walke by the light & leading of other men, myself being therin blynd & voyd of Iudgment’.Footnote 28
Second, general oaths were against Scripture. According to Morice and Cartwright, there were no examples in all of Scripture of a general oath.Footnote 29 Bainbrigg and Johnson averred that in Scripture, ‘the difficulties and ambiguities are debated before the oath be tacken’.Footnote 30 Snapp noted that Abraham's servant Eleazar did not take his oath to Abraham ‘tyll hee sawe the matter hee was sworne vnto; neyther then tyll hee knew when his oath tooke an ende’.Footnote 31 Finally, in a general oath, the ‘conscyence can have noe staye wheron to rest’.Footnote 32 Cartwright and his companions wanted the oath to be limited so that their ‘consciences may be delivered from fear of shipwracke, doubting lest that generall bond should hyde some speciall matter of perill’.Footnote 33 What if, by taking a general oath, the swearer bound his conscience to do something unlawful? Such was Herod's oath to Herodias, which resulted in the beheading of John the Baptist, and Jephthah's vow to slay the first thing that he saw upon returning home, which resulted in the sacrifice of his daughter.Footnote 34 These oaths were clearly wrong and, by extension, so was the ex officio oath. For all these reasons, the ex officio oath lacked judgement.
The Puritan argument that the ex officio oath was against judgement because it was a general oath that might bind them to do something unlawful was validated by the questions asked by the High Commission after the party had sworn his oath. In their investigation of the classis movement, the judges of the High Commission asked for names and deeds of other Puritan classis members. In essence, the party taken before the High Commission was asked to disclose his companions, to become an informant to the enemy. This, according to Cartwright's imprisoned associates, was in violation of the law of charity or love: ‘This othe is againste the lawe of righteousnesse and of love, wherby I am bounde to doe noe hurt to the innocent and just in ther well doinge, but rather to defend them for this othe contrarie therto, is vsed as an inquestion [sic] against the Churche and the teachers.’Footnote 35 Humfrey Fen, Edmund Snape and the rest of their companions grounded this law of charity on Scripture. They cited Proverbs xi. 13: ‘He that goeth abowt as a slaunderer, discoverethe a secret but he that is of a faithfull harte concealeth a matter.’ They noted that Rahab was commended for not telling the king of Jericho where the Israelite spies were hiding, that the Egyptian midwives hid Moses because they feared the Lord, that Jonathan refused to hand over David to King Saul, that Obadiah concealed one hundred of the Lord's prophets from the unjust wrath of Jezebel, and that Saul (who became Paul) wrongly consented to the stoning of Stephen.Footnote 36 All these precedents established the law of charity – that one should not betray one's innocent friends or even one's guilty friends as long as their offences were not capital such as murder, idolatry or treason.Footnote 37 To swear an oath that would force one to violate this law was wrong. William Tyndale had argued that if one swore an oath before a judge to answer all questions truthfully and then the judge asked the party to disclose information harmful to one's neighbour, the party should break his oath in order not to break charity with his neighbours.Footnote 38 Yet the problem with this solution was that it still offended one's conscience since it involved the breaking of an oath. Once a person had sworn the ex officio oath, reasoned Morice, his conscience was stuck between a rock and a hard place, for then he had to violate either the law against perjury or the law of charity.Footnote 39 A much better solution was not to swear in the first place. Cartwright and his companions agreed, observing that the only example in Scripture of a magistrate employing an oath to compel ‘men to depose for the discoverie of a righteous man’ was that of Ahab and Elijah. Yet Ahab was an evil ruler who was not to be imitated so this example demonstrated that the Puritans (like all of humankind) were ‘expressly forbidden to be a wittnes against or neyghbour without cause’.Footnote 40 Once again, then, Scripture had proved that the ex officio oath was against judgement.
In addition to claiming that the ex officio oath was against truth in that it encouraged perjury and against judgement in that it was general and bound one to transgress the law of charity, Puritans cited many other general rules of swearing to prove that the ex officio oath was against the law of God. Hebrews vi.16 taught that an oath was ordained to end all controversy. Puritans maintained that the ex officio oath did not end controversy and was thus unlawful. For example, when Cartwright partly answered some of the High Commission's questions in writing and offered to make the same answer unsworn before the Commission, the Commission urged him to take the ex officio oath, and then they would inform him where his answer needed expansion. Cartwright refused to swear, retorting: ‘So shall not th'othe make an End of the Controversy: Which notwithstanding is the proper Use of an Oath.’Footnote 41 Another prohibition of Scripture was to swear an oath outside of one's power to fulfill. Bainbrigg and Johnson applied this rule to their case: ‘Yt is vnconscionable to tye the conscience of a man, to take the holie name of god in Witnes of that which him selfe knowethe before he speake he can not performe.’ More specifically, the questions that Bainbrigg and Johnson would be asked after taking the oath would concern sermons that they had preached months ago, and they claimed that it exceeded the power of their memory to report faithfully all they had said.Footnote 42 Scripture also forbade rash, unadvised swearing. Cartwright and his companions maintained that the ex officio oath was rash and unadvised because they had been granted neither ‘tyme of deliberation’ nor advice of counsel.Footnote 43 Finally, Scripture commanded that no one should take an oath in trivial matters. According to Cartwright and his companions, ‘in this othe commonly mene are examined of some matters not worth a question muche lesse worthe an othe’.Footnote 44 Considering ‘how harshly God will punish those that take his name in vain and how light triffles and small matters’ were asked after the ex officio oath had been sworn, Cartwright and his companions elected ‘for the peace of oure consciences to be held guiltie of men’ for refusing the oath than to ‘become guiltie of synne before God’.Footnote 45 In all of these arguments Puritans used basic, accepted theories of oath-taking to contend that they could not swear the ex officio oath without offence to God.
The most common religious argument against the ex officio oath also exploited the axiom that one should not take the Lord's name in vain, and again Puritans based their argument on Scripture. The first Puritans to make this argument were Bainbrigg and Johnson in 1589, though Snape replicated their argument exactly in 1591. According to these three, the law of God ordained only two ways of judicial proceedings. The first was by the examination of two or more witnesses. This was the common way of proceeding as evident from Deuteronomy xiii.12–15; xvii.2–7; xix.15; Numbers xxxv.30; John xviii.19–21; and 1 Timothy v.19. Only if there were no witnesses to be found could a magistrate lawfully proceed according to the second way: the examination of the party himself. This could be done without an oath as was the case with Achan (Joshua vii. 18–19) or with an oath as evident from Exodus xxii.10–11 or Numbers v. 9 (the ‘law of jealousy’). Yet where there were witnesses – as was the case for Bainbrigg and Johnson who were in trouble for public sermons delivered at St Mary's Church in Cambridge – then magistrates were bound by the law of God to proceed by calling witnesses to testify against the party.Footnote 46 Robert Beale articulated a similar argument in 1591 when he claimed that the law of Moses authorised proceeding by inquisition of the party only in two cases: when the crime was murder and the criminal not known, and when anyone attempted to seduce others away from God's true religion.Footnote 47 Cartwright and his companions shifted the emphasis away from the law of Moses to New Testament practice, contending that Jesus’ refusal to answer Caiaphas's questions about his teachings when witnesses could be called (John xviii.19–24) and Paul's similar demand that his Jewish accusers be brought forth during his trials before Felix and Festus (Acts xxiv, xxv) demonstrated that this was the only divinely sanctioned way of judicial proceeding if witnesses existed.Footnote 48 The foundation behind all of these variations was the claim that where human witnesses could be found, God should not be called as witness, for such an oath was an unnecessary oath, and unnecessary oaths were vain and blasphemous. Bainbrigg and Johnson wrote: ‘Where the calling of God to witnes is merely and altogether nedeles; there it can not be doon but the Name of God wil be taken in Vain.’ As such, they claimed that in their case, the ex officio oath ‘can not be used without sin’.Footnote 49 Likewise, Cartwright and his companions gave the following excuse for refusing the ex officio oath: ‘We hold it a takinge of the name of God in vaine to sweare when the matter maybe tryed and found out, eyther by witnesse or the parties vollontarie confession but the moste thinges vsually inquired in this othe are suche.’Footnote 50 Thus, by a clever application of biblical precedents, Puritans were able to cite the third commandment in justification for their refusal of the ex officio oath.
Conscience, the word of God and the sanctity of oaths
Religious opposition to the ex officio oath based on one's ‘conscience’ was really based on the Word of God. For example, in his Apologie Richard Cosin dismissed Morice's argument that one should take an oath only insofar as one's conscience allowed because, as Cosin rightly claimed, Anabaptists used the same argument as a pretext to reject all oaths. Morice retorted that the validity of one's conscience depended on the Word of God. His conscience was valid if it prevented him from taking an oath that would infringe on royal prerogative or cause him to break God's law.Footnote 51 Scripture was thus central to the religious arguments against the ex officio oath. And for Puritans like Bainbrigg, Johnson and Cartwright, it was a strict Scriptural literalism that demanded the direct application of biblical precedents to sixteenth-century society. Sixteenth-century society should reflect biblical society. ‘Whatsoever God will not have used’, proclaimed Bainbrigg and Johnson, ‘ought none either to use, or to urge others unto.’Footnote 52 The ex officio oath was wrong because there were no examples of it in Scripture. Cosin aptly grasped Bainbrigg's and Johnson's mode of argumentation: ‘there is no colour, nor shadowe in either of them: except they haue learned to reason out of euery single place of Scripture, both affirmatiuely and negatiuely thus, viz. This may be done in that case: and therefore, nothing else may be done’.Footnote 53 Indeed, the strict application of biblical precedent to sixteenth-century society that characterised the arguments of Bainbrigg, Johnson and Cartwright actually inhibited personal liberty of conscience. For these Puritans there was very little concept of adiaphora. Few and far between were the practices that were so indifferent that they could be equally approved or disapproved depending on the conscience of a particular individual. Because oaths involved the worship of God, there was absolutely no room for variation of conscience.
The Elizabethan regime countered these arguments in two ways, both of which were articulated in Cosin's An apologie for sundrie proceedings by iurisdiction ecclesiasticall, which was the regime's official defence of the ex officio oath.Footnote 54 The first was to reject strict biblicism and widen the concept of adiaphora. In his Apologie, Cosin attacked the claim of Bainbrigg and Johnson that man could do nothing not explicitly commended in the Word of God.Footnote 55 The ex officio oath, Cosin averred, fell under the category of adiaphora: it was a thing indifferent. Yet in light of Romans xiii, all indifferent things became matters of conscience when commanded by a magistrate. So those who truly had a godly conscience would take the ex officio oath out of deference to God's divinely ordained magistrate. Ethan Shagan has explored Cosin's argument in this regard and emphasised the radical ramifications of Cosin's logic in extending the power of the crown over the private consciences of subjects.Footnote 56 Shagan has not observed, however, that Cosin was not content to leave the ex officio oath as a matter of adiaphora and emphasise conscience only insofar as it pertained to obedience to God's ordained magistrate.
In the last section of his Apologie, Cosin addressed the biblical arguments of the Puritans and then himself used Scripture to establish the lawfulness of the ex officio oath. He applied 1 Peter iii.15 – ‘be ready to giue an account of euery one that asketh vs a reason, of the hope that is in vs, with meeknes and feare’ – to the ex officio oath.Footnote 57 He went through Old Testament examples such as 1 Samuel xiv.24–8; 1 Kings viii.31–2; Ezra x.5; and Nehemiah v.11–13 to show that both magistrates and priests could compel a person to swear. In opposition to Bainbrigg and Johnson, Cosin maintained that the biblical precedents of Achan (Joshua vii.19), the law of atonement for an unsolved murder (Deuteronomy xxi) and the law of jealousy (Numbers v) all established that an inquisition by the oath of the party was a standard, God-ordained way of judicial proceeding. Cosin glossed Leviticus v.1 to show that one could indeed testify against one's self. Finally, he cited the New Testament examples of Peter, John and Stephen answering questions before the Sanhedrin (Acts iv. 7–8; vii.1–53) as evidence that it was unlawful to refuse to answer the questions of a magistrate.Footnote 58 All these biblical examples supported Cosin's conclusion: ‘when an oathe is duely imposed, there is a necessitie enioyned the subiect to take it; doeth appeare by the commandement of God himselfe’.Footnote 59 Cosin, then, was playing the same game as the Puritans. He was employing a strict biblicism (Peter, John and Stephen did this so we cannot do anything else) not only to establish the lawfulness of the ex officio oath but also to argue that subjects were bound by the law of God to take the oath.
Yet not all of the arguments against the state oaths of the Elizabethan regime employed a strict biblical literalism. More important than the direct application to the sixteenth century of the practice of swearing in the Bible was the general theory of oath-taking revealed in the Bible. Examples of swearing in the Bible were less relevant than God's commands about swearing. Tresham, for example, did not cite the judicial practice of swearing in Hebrew or Roman Israel as evidence for refusing an oath. Yet both Roman Catholics and Puritans founded their respective arguments on the third commandment: ‘You shall not make wrongful use of the name of the Lord your God, for the Lord will not acquit anyone who misuses his name.’Footnote 60 The most wrongful use of God's name was perjury, so swearing against one's conscience was to be avoided at all costs. In addition to swearing in truth, Jeremiah iv. 2 also taught that judgement and justice also had to accompany all lawful oaths. To swear an oath that could lead to an accusation of perjury or to swear an oath without knowledge showed a lack of judgement. Furthermore, vain swearing was an abuse of God's name, so no one should take an oath when it was unnecessary or when it concerned light or trivial matters. These basic biblical rules for oath-taking were the foundation of the Elizabethan religious opposition to the ex officio oath. When Catholics or Puritans refused to swear a state oath out of conscience, it was a conscience of the majesty of God's name and the sanctity of oaths as revealed by the Word of God. For example, the first and most important reason that Cartwright and his companions gave for their resistance to the ex officio oath was that
wee fynde oure selves much moved in conscience to refuse it in that [it is] aboute a dutie of Gods worshippe (such as is an oath whearein whosoever taketh his name in vaine shall not be guiltlesse) desiringe for warrant and securitie to oure consciences, some proofe oute of the worde of God by the mouthe of his servants the ministers yett are not thearein satisfied.Footnote 61
Catholics and Puritans opposed the ex officio oath because they maintained that the particular qualities of the oath or their particular circumstances rendered the oath perjurous or vain, and they esteemed the name of God too much to swear a perjurous or vain oath.
Of course, it may be objected that the arguments discussed above were not sincere but rather window-dressing employed to justify the refusal of the oath. Perhaps Puritans and Catholics refused the ex officio oath less out of a conscience of oaths, and more because they did not want to disclose details of illegal activities (such as hosting Edmund Campion or holding classis meetings) or accuse their compatriots. Cosin made such an accusation, and to some extent it is certainly true.Footnote 62 The very fact that Puritans used both legal and religious arguments to justify their refusal to take an oath suggests that their sole concern was not merely a conscience of the majesty of God's name. This is especially true of Bainbrigg, Johnson and Morice, who employed every argument in the book (indeed, Morice wrote the book) to excuse their refusal to swear. Bainbrigg, Johnson and others formulated religious arguments against the ex officio oath after they had refused to take it as a way to legitimise their behaviour. Nevertheless, even though the original motivation for refusing Elizabethan state oaths may not have been a conscience for the majesty of God's name, it is hard to escape the conclusion that characters like Bainbrigg, Cartwright, Snape, Morice and Beale did eventually believe that the ex officio oath was offensive to God. Just as Henry viii's conscience came to believe that his marriage with Katherine of Aragon was truly against God's law (even though his initial motivation to seek a divorce may have been his infatuation with Anne Boleyn), so did the consciences of some Puritans and Catholics come to believe that oaths of inquisition were against God's law.
Furthermore, even if the majesty of God's name and the sanctity of oaths were not the real reason behind the refusal of the ex officio oath, these arguments were still a powerful card to play because the same card was part of the Elizabethan regime's own ideological deck. In fact, Cartwright and his companions brilliantly concluded their petition against the ex officio oath by demonstrating that the general theory of oath-taking upon which they founded their objections to the ex officio oath was the same theory espoused by the pillars of English Protestantism. They noted the exposition of Jeremiah iv.2 in the Book of homilies, they showed that Alexander Nowell in his catechism rejected swearing in unnecessary or trivial matters as vain swearing, they observed that John Foxe had cautioned judges to require oaths sparingly lest they give an occasion for perjury, and they quoted the condemnation of vain and rash swearing in the Thirty-Nine Articles.Footnote 63 What works were more seminal in the determination of English Protestant orthodoxy than the Book of homilies, Nowell's Catechism, Foxe's Acts and monuments and the Thirty-Nine Articles of 1563?
In this regard, it did not matter whether the religious arguments against taking these oaths were sincere or just window-dressing. Because the arguments employed by the recusant and Puritan opponents of the ex officio oath were founded on the same general theory of oaths espoused by the Elizabethan regime, the regime could not simply dismiss them out of hand. Cosin could reject the strict biblicism of Bainbrigg and Johnson or he could employ his own version of it, mining the Bible for examples of oath-taking that seemed to support the ex officio oath. Yet he could not reject or alter God's general commands about the majesty of his name and oath-taking. For example, Cosin conceded to Morice that general oaths were wrong, but then he denied that the ex officio oath was a general oath.Footnote 64 Similarly, Cosin agreed that perjury was a heinous sin and that judges should not administer an oath to a man when they feared that perjury would be the result of that oath, but Cosin maintained that in the case of the ex officio oath, the fear of perjury would trump the party's desire to escape punishment:
Indeede we all confesse, that where there is great & apparant probabilitie, that the party is such a man, who wil rather for sweare, then confesse a trueth against himself; vpon such a man, an oath should not be imposed: But where the penaltie is not capitall, nor of mutilation, nor none other particular strong presumption to induce such suspition touching the partie; and especially where he stands afore charged vpon good, and probable grounds, to haue (in deede) committed such a fact; there the law will not intend, or presume; but that he will make further discouery, rather than to be forsworne: quia nemo praesumitur immemor salutis aeternae [because no one is presumed to be unmindful of his eternal salvation].Footnote 65
The best that Cosin could do, then, was to assert that God's prohibition against misusing his name did not apply to the ex officio oath. He could challenge only the application of the Puritan theory of oath-taking; he could not challenge the theory itself because the crown needed its subjects to respect oaths. To undermine the sanctity of oaths would be to undermine the entire judicial system, not to mention the oath of supremacy and the ex officio oath in particular. The Elizabethan regime had to place a high esteem on the majesty of God's name, for it was through oaths that it sought to shore up its power. Thus, the Catholic and Puritan claims that they could not take the ex officio oath out of a conscience for the majesty of God's name was a powerful argument.
To conclude, the Elizabethan religious opposition to the ex officio oath was founded upon a conscience of the majesty of God's name and the sanctity of oaths. Puritans and early Elizabethan Catholics based their reasoning either upon a strict biblicism that allowed no other form of swearing except that found in Scripture or upon the application of God's general commandment against false or vain swearing to the specific circumstances wherein they were tendered an oath. This religious opposition to the Elizabethan state oaths was more potent than the constitutional opposition to the oath of supremacy and the ex officio oath for two reasons. First, divine law took precedence over temporal law. By making their refusal to swear a matter of the worship of God and the holiness of his name, Puritans and early Elizabethan Catholics constructed their arguments upon a law that no temporal ruler could abrogate or alter. A conscience grounded in the Word of God – however erroneous – could be changed only by reasoning from the Word of God, a fact that Cosin well recognised. There was no greater authority than the Word of God and no greater activity than the worship of God. Constitutional arguments based on the Magna Carta and English customs of personal liberty paled in significance by comparison. Second, by justifying their refusal to swear through a conscientious upholding of the majesty of God's name and the sanctity of oaths, Puritans and early Elizabethan Catholics relied on a theory of oath-taking that was not only widely recognised but also essential to the Elizabethan regime. The regime needed its subjects to value oaths highly and to take them with the utmost gravity. Perjury and vain swearing had to be condemned, for otherwise the oath of supremacy and the ex officio oath would lose their efficacy. Puritans and early Elizabethan Catholics simply adopted this same rhetoric and intensified it so as to claim that the ex officio oath was a vain oath or would lead to perjury. They could thus claim that they had a greater conscience of oaths than did the Elizabethan regime. Such an argument was powerful because, unlike constitutional arguments, the regime could not easily contradict it without calling into question the very mechanism upon which it relied: oaths.
