The english inquisition: Constitutional conflict and ecclesiastical law in the 1590s

Historical Journal

Volumn 47, Issue 3, 2004, Pages 541-565

  Shagan, Ethan H ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

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EID: 84969242302     PISSN: 0018246X     EISSN: 14695103     Source Type: Journal    
DOI: 10.1017/S0018246X0400384X     Document Type: Article

References (122)

1. J. S. Morrill, ‘The religious context of the English Civil War’, Transactions of the Royal Historical Society, 5th ser., 34 (1984), pp. 155–78, at 157.
2. J. P. Sommerville, Royalists and patriots: politics and ideology in England, 1603–1640 (London, 1999), p. 214 and ch. 6 passim.
3. D. Alan Orr, ‘Sovereignty, supremacy, and the origins of the English Civil War’, History, 87 (2002), pp. 474–90, at 484.
4. This is a narrative which I would associate with works including Glenn Burgess, Absolute monarchy and the Stuart constitution (New Haven, 1996)
5. Conrad Russell, The causes of the English Civil War (Oxford, 1990)
6. D. Alan Orr, Treason and the state: law, politics, and ideology in the English Civil War (Cambridge, 2002). I would stress that I do not disagree with this narrative per se, which is an enormous improvement over earlier narratives which saw conflict between ‘Anglican’ absolutism and ‘puritan’ constitutionalism. I mean only to show how state-sponsored anti-puritanism could lead to constitutional conflict even without debates over sovereignty, and that the recent tendency to separate religious and constitutional issues - in part derived from the continuing emphasis on sovereignty as the central issue of early modern political thought - has prevented us from exploring other crucial issues.
7. Conrad Russell, who has often been accused of stressing ‘consensus’ in the Church of England in the decades after 1559, has since the 1990s explicitly recognized that ‘the Church of England, all through the period, was a deeply divided Church’ (Russell, The causes of the English Civil War, p. 84).
8. But for Russell these divisions, before the rise of Laud, concerned theological questions and the legitimacy of set forms of worship rather than constitutional issues. He has not seen officially sponsored anti-puritanism as having implications for the claims and powers of the state, perhaps because of what Peter Lake has called his ‘strongly policed boundary between religion and politics, between secular and religious ideology’ (Peter Lake, ‘Review article’, Huntington Library Quarterly, 57, no. 2 (1994), pp. 167–97, at 186).
9. One example of this appropriation of the via media by political historians is Alan Orr's discussion of the so-called ‘Erastian faction in the Long Parliament’, which included everyone from crypto-royalists to William Prynne, excluding only those radical presbyterians and radical Laudians who favoured clerical control over the church. See Orr, Treason and the state, p. 131 and ch. 4 passim.
10. On the line between public duty and private conscience in the early modern period, see the excellent collection of essays in John Morrill, Paul Slack and Daniel Woolf, eds., Public duty and private conscience in seventeenth-century England (Oxford, 1993).
11. Previous discussions of this text are in John Guy, ‘The Elizabethan establishment and the ecclesiastical polity’, in John Guy, ed., The reign of Elizabeth I: court and culture in the last decade (Cambridge, 1995)
12. Donna Hamilton, Shakespeare and the politics of Protestant England (Lexington, 1992), ch. 2.
13. Richard Cosin, An apologie for svndrie proceedings by iurisdiction ecclesiasticall, of late times by some chalenged, and also diuersly by them impugned (London, 1593), part III, sigs. Cir and Fir. All references to this tract are to the 1593 edition unless otherwise stated.
14. On this subject, see Roland G. Usher, The rise and fall of the High Commission (Oxford, 1913)
15. Patrick Collinson, The Elizabethan puritan movement (Oxford, 1967)
16. Brian P. Levack, ‘Law and ideology: the Civil Law and theories of absolutism in Elizabethan and Jacobean England’, in Heather Dubrow and Richard Strier, eds., The historical renaissance: new essays on Tudor and Stuart literature and culture (Chicago, 1988)
17. R. H. Helmholz, Roman canon law in Reformation England (Cambridge, 1990).
18. Cosin, An apologie for svndrie proceedings, part III, sig. Piv.
19. On the use of the High Commission against Catholics, see P. Tyler, The ecclesiastical commission and Catholicism in the north, 1562–1577 (Leeds, 1960).
20. Roland Usher incorrectly suggested that opposition to the High Commission did not begin until after 1580: Usher, The rise and fall of the High Commission, p. 124.
21. The creation of Courts of High Commission in the Elizabethan period was itself a constitutional innovation with uncertain significance, since those courts were technically ecclesiastical yet could consider issues and require punishments that went far beyond the practices of the ordinary diocesan courts: see Usher, The rise and fall of the High Commission.
22. This text of the oath is in Lambeth Palace Library (LPL) MS 445, p. 438, part of a collection of arguments against the lawfulness of the oath.
23. See for instance John Strype, The life and acts of John Whitgft (3 vols., Oxford, 1822), III, p. 106.
24. See Usher, The rise and fall of the High Commission, ch. 6
25. Collinson, Elizabethan puritan movement, part 5, ch. 3 and part 6, ch. 2.
26. LPL MS 2019, fo. 3v.
27. R. H. Helmholz, Roman canon law in Reformation England, ch. 2 and ch. 5
28. Usher, Rise and fall of the High Commission, ch. 7
29. Gerald Bray, ed., Tudor church reform: the Henrician canons of 1535 and the reformation legum ecclesiasticarum, Church of England Record Society, vol. 8 (Woodbridge, 2000).
30. For an interesting recent discussion of the relationship between common law and civil or canon law in this period, see J. W. Tubbs, The common law mind: medieval and early modern conceptions (Baltimore, 2000).
31. R. H. Helmholz, ‘The privilege and the ius commune: the middle ages to the seventeenth century’, in R. H. Helmholz et al., The privilege against self-incrimination: its origins and development (Chicago, 1997).
32. John H. Langbein, ‘The privilege and common law criminal procedure: the sixteenth to the eighteenth centuries’, in Helmholz et al., The privilege against self-incrimination.
33. Charles M. Gray, ‘Self-incrimination in interjurisdictional law: the sixteenth and seventeenth centuries’, in Helmholz et al., The privilege against self-incrimination, p. 54.
34. Gray, ‘Self-incrimination in interjurisdictional law’.
35. Collinson, Elizabethan puritan movement, part 8, ch. 2.
36. As early as 1584, Robert Lewis referred the issue of whether to take the ex officio oath to the Dedham classis: R. G. Usher, ed., The presbyterian movement in the reign of Queen Elizabeth as illustrated by the minute book of the Dedham classis, 1582–1589 (London, 1905), p. 37.
37. The puritans' position was somewhat weakened by the fact that the radical separatists Henry Barrow and John Greenwood had responded very similarly to the High Commission in 1587: see Usher, The rise and fall of the High Commission, pp. 132–135.
38. Cited in Guy, ‘The Elizabethan establishment and the ecclesiastical polity’, p. 132.
39. LPL MS 445, p. 438.
40. LPL MS 2004, fo. 85r.
41. British Library (BL) Harleian MS 358, fo. 213r.
42. See Stuart Barton Babbage, Puritanism and Richard Bancroft (London, 1962)
43. Brian P. Levack, The civil lawyers in England, 1603–1641: a political study (Oxford, 1973).
44. James Morice, A briefe treatise of oathes exacted by ordinaries and ecclesiasticall iudges (Middleburg, 1590), sig. A4v.
45. LPL MS 2004, fo. 57r.
46. Cited in W. K. Jordan, The development of religious toleration in England, from the beginning of the English Reformation to the death of Queen Elizabeth (London, 1932), pp. 120 and 126.
47. Morice, A briefe treatise of oathes, sig. G2v.
48. Cosin, An apologie for svndrie proceedings, part III, sig. M3r-v.
49. An apologie for svndrie proceedings, part II, sig. QQ3v.
50. Cosin's arguments here were not only aimed at puritans and common lawyers, but also at a counter-discourse within the civil law tradition that opposed ex officio oaths using continental precedents: see Helmholz, ‘The privilege and the ius commune’, pp. 36–38.
51. Cosin, An apologie for svndrie proceedings, part II, sig. CCIV.
52. This was among the ideas that the puritan lawyer James Morice considered most dangerous in his unpublished manuscript reply to Cosin. He wrote that ‘ neither the honourable court of the Star Chamber, nor yet the high court of Chancery, concerning matters of equity or conscience are to be termed courts of the common law’, nor were ‘ecclesiastical laws and constitutions for the government of the Church’. This was because the common law was unique in being the ‘public, universal, and general law of the realm, without which this our policy and commonwealth cannot stand’ (LPL MS 234, fos. 123r-125r).
53. Cosin, An apologie for svndrie proceedings, part III, sig. N2v.
54. An apologie for svndrie proceedings, part II, sig. KK3r-v.
55. An apologie for svndrie proceedings, sig. KK3v.
56. An apologie for svndrie proceedings, part III, sig. OIr.
57. An apologie for svndrie proceedings, sig. N2v; part II, sig. KK3r; and many other examples.
58. An apologie for svndrie proceedings, part II, sig. OOIV. For another good example from Henry VII's reign, see part II, sig. LLIV.
59. An apologie for svndrie proceedings, sigs. KK4v and CC2v.
60. This theoretical point is made succinctly (at least by Tudor standards) at An apologie for svndrie proceedings, part III, sigs. H4v-I1r.
61. An apologie for svndrie proceedings, part I, sig. M3v.
62. An apologie for svndrie proceedings, part III, sig. S1v.
63. An apologie for svndrie proceedings, part II, sig. LL4r-v.
64. On conformist ideology in this period, see especially Peter Lake, Anglicans and puritans? Presbyterianism and English conformist thought from Whitgft to Hooker (London, 1988).
65. Cosin, An apologie for svndrie proceedings, part III, sig. FF1r.
66. Note here the similarity of this view of conscience to the view attributed to James VI and I by Kevin Sharpe in his ‘Private conscience and public duty in the writings of James VI and I’, in Morrill, Slack, and Woolf, eds., Public duty and private conscience.
67. Cosin, An apologie for svndrie proceedings, part III, sig. S3v.
68. An apologie for svndrie proceedings, sig. C2r-v.
69. A similar position was taken half a century later by Thomas Hobbes: ‘Theft, murder, adultery, and all injuries are forbid by the laws of nature; but what is to be called theft, what murder, what adultery, what injury in a citizen, this is not to be determined by the natural, but by the civil law.’ Cited in James Holstun, Ehud's dagger: class struggle in the English Revolution (London, 2000), p. 349.
70. Cosin, An apologie for svndrie proceedings, part III, sigs. D2v-D3r.
71. An apologie for svndrie proceedings, sig. DD3v.
72. On Whitgift and Cartwright, see Lake, Anglicans and puritans?, pp. 16–17.
73. Cosin, An apologie for svndrie proceedings, part III, sigs. AA4v-BB1r.
74. In his manuscript reply to Cosin, James Morice was quite specific in noticing the potential danger to property rights inherent in Cosin's arguments. He wrote that the whole purpose of Magna Carta had been ‘ that the kings of this realm should not challenge an infinite and absolute power to themselves (as some kings elsewhere did and yet do) without judgment and lawful proceeding to take away any man's liberty, life, country, goods, or lands. Well then, if the kings and princes of this realm (as he saith) are restrained to command by absolute power any of their subjects … but according to the law of the land, is it equal that ordinaries and judges ecclesiastical should be at liberty and suffered at their pleasure to cite, convent, and attach the king's people upon secret and sinister accusation, bare suspicion, or supposed fame?’ (LPL MS 234, fo. 243r-v).
75. Cosin, An apologie for svndrie proceedings, part I, sig. L4r-v.
76. An apologie for svndrie proceedings, sig. R4X.
77. Morice, A briefe treatise of oathes, sigs. F4r and G3v.
78. Cosin, An apologie for svndrie proceedings, part I, sig. R4r.
79. An apologie for svndrie proceedings, part III, sig. K3r-v.
80. An apologie for svndrie proceedings, part II, sigs. IIiv-II3v. Cosin's views of the exceptions to the rule against self-incrimination were controversial but far from unique, and he claimed the support of such important canonists as Bartolus de Saxoferrato, Panormitanus, and Julius Clarus.
81. On the controversial nature of Cosin's views, see Helmholz, ‘The privilege and the ius commune’.
82. Cosin, An apologie for svndrie proceedings, part II, sig. II3v.
83. An apologie for svndrie proceedings, sig. II4r.
84. An apologie for svndrie proceedings, sigs. II4v-KKiv.
85. An apologie for svndrie proceedings, part III, sigs. G3r and R4v. This argument that coerced oaths gave defendants a chance to clear themselves may sound far-fetched, but it is not without an element of truth, since the church courts were often used by individuals to defend their reputations against defamation.
86. See Martin Ingram, Church courts, sex, and marriage in England, 1570–1640 (Cambridge, 1987)
87. Ralph Houlbrooke, Church courts and the people during the English Reformation (Oxford, 1979).
88. Cosin, An apologie for svndrie proceedings, part II, sig. PP2r.
89. An apologie for svndrie proceedings, part III, sig. F3v.
90. An apologie for svndrie proceedings, sigs. R3r and G2r. There had been debate previously (and there would be again in the time of Edward Coke) over whether the High Commission should be allowed to imprison offenders even though imprisonment was not a traditional ecclesiastical penalty. I have chosen not to discuss this interesting and constitutionally vexed debate here for reasons of space.
91. An apologie for svndrie proceedings, sig. Gir-v.
92. An apologie for svndrie proceedings, part II, sig. KK2v.
93. An apologie for svndrie proceedings, part III, sig. Q3r.
94. Guy, ‘The Elizabethan establishment and the ecclesiastical polity’, p. 141.
95. Cosin, An apologie for svndrie proceedings, part II, sig. II3r.
96. An apologie for svndrie proceedings, part III, sig. G4v.
97. An apologie for svndrie proceedings, part III, sig. K1v. See also part III, sig. R4v; part III, sig. FFir, and many other places.
98. An apologie for svndrie proceedings, part III, sig. L4r-v.
99. An apologie for svndrie proceedings, sig. Qir.
100. An apologie for svndrie proceedings, sigs. L4v and AA2v.
101. An apologie for svndrie proceedings, sig. FF2v.
102. An apologie for svndrie proceedings, sig. H1v. See also part III, sig. L4v; part III, sig. AA3r.
103. An apologie for svndrie proceedings, part II, sig. NN3v.
104. An apologie for svndrie proceedings, part III, sigs. CC1v-CC2r.
105. An apologie for svndrie proceedings, sig. L4v.
106. An apologie for svndrie proceedings, sigs. Qiv-Q2r.
107. An apologie for svndrie proceedings, sig. O1r-v. Elsewhere (part III, sig. FF2v) Cosin seems to contradict this statement, suggesting that formerly abjured heretics cannot be interrogated about their alleged heresies precisely because for relapsed heretics punishment of ‘life and limb’ rather than mere correction is required.
108. An apologie for svndrie proceedings, part II, sig. MM2r.
109. An apologie for svndrie proceedings, part III, sig. CC3v.
110. An apologie for svndrie proceedings, part I, sig. D3r.
111. An apologie for svndrie proceedings, part III, sig. B1v.
112. On this conspiracy theory, see also An apologie for svndrie proceedings, part II, sig. AA3v.
113. An apologie for svndrie proceedings, part III, sig. Pir.
114. Cosin also stated in the preface to his 1593 tract that the much shorter 1591 edition had been written at the request of his (unnamed) patron for the use of that patron's colleagues, a strong hint that Whitgift was the sponsor of the project: Cosin, An apologie for svndrie proceedings, part I, preface sigs. A4r-B2v.
115. In 1596, Whitgift defended Cosin and attacked James Morice in an interview before the queen, for which he was severely rebuked by another (unnamed) member of the privy council: LPL MS 3470, fos. 174r-175r.
116. Paraphrasing the final paragraph of Andrewes' tract, printed in Cosin, An apologie for svndrie proceedings, part III, sig. LL1r.
117. James Morice, in his manuscript response to Cosin, tried to re-appropriate Andrewes by claiming that even he opposed the use of oaths for ‘crimes capital and bloody’: BL Harleian MS 1694, fo. 72r.
118. W. Speed Hill, gen. ed., The Folger Library edition of the works of Richard Hooker (7 vols., Cambridge, MA, 1977–1998), III, p. 480.
119. John Guy has suggested that Hooker actually opposed Cosin, but in this case Guy, too, has concentrated on questions of sovereignty and ‘absolutism’ and hence neglected their fundamental agreement on the central issue. See Guy, ‘The Elizabethan establishment and the ecclesiastical polity’, p. 148.
120. Hamilton, Shakespeare and the politics of Protestant England, ch. 2. Hamilton argues that Shakespeare's King John was written in response to this text and was intended to support the puritan/common law position.
121. Cosin, An apologie for svndrie proceedings, part III, sig. Y3v.
122. An apologie for svndrie proceedings, part I, sig. A2r.