image

Legislative Council of Hong Kong

The link between Hong Kong’s oath saga and Henry VIII’s marital problems

Philip Dykes says the addition in 1534 of a promise of allegiance to a promissory oath has societies in knots today about its modern application

PUBLISHED : Friday, 18 November, 2016, 11:50am
UPDATED : Wednesday, 30 November, 2016, 10:57am

What is the link between Henry VIII’s marrying Anne Boleyn in 1533 to recent events that have convulsed the Hong Kong Legislative Council? The answer is the promissory oath, which all legislators must take to assume office.

It is well worth unpicking the thread that links Legco to Henry VIII’s marital problems because understanding the origin of loyalty oaths, and how they have developed over the past 500 years, throws light on the debate about some Legco members not being “sincere” in their oath-taking.

Hong Kong judge blasts localist radicals for oath-taking that bordered on contempt

A promissory oath is a statement of intention about future conduct that is binding on the conscience of the person because the maker invokes divine or religious sanctions in the event of non-performance. Although a person can affirm today, instead of swear, the invocation to conscience carries the same weight as an oath, and the sanctions for non-performance are identical.

Promissory oaths were common in the Classical period. They were used in private contracts and to seal treaties. They feature in the Old Testament and were carried over to the Christian era, even though Christ appeared to disapprove of them because they contemplated the possibility of God’s intervention through a unilateral act of solicitation by a mere mortal man.

In medieval times, a promissory oath was the basis of feudal relationships. A lord promised protection in return for a vassal’s promise of loyalty and service.

When is an oath not an oath? That’s a question for Hong Kong’s courts, not the legislature

It was Henry VIII who added a new dimension to oath-taking. He broke with Rome over his planned marriage and set himself up as head of the Church of England. This resulted in discontent because many of his subjects would not accept him in this new role. He needed to impose the new constitutional order on them. A new promissory oath was the solution.

In 1534, Parliament enacted the Act of Supremacy, which required people assuming public office to take an oath acknowledging the legitimacy of the recent regime change on pain of prosecution for treason.

The 1534 act did not succeed in imposing absolute conformity. The next 200 years saw a succession of acts of Parliament creating more obstacles to public office for Catholics and emerging non-conformist sects, such as the Baptists and the Quakers.

Simplifying the oath did not mean that debates about loyalty oaths ceased

At that time, it was not enough to require a person to take an oath acknowledging the sovereign’s supremacy and legitimacy. Under the complementary Test Acts, non-conformists had to repudiate all other religious authority by performing public acts of worship that were clearly inconsistent with their own private faiths and consciences. Failure to receive the sacrament in an Anglican church, for instance, resulted in a huge fine.

More rational 17th-century lawyers and political scientists questioned the need for promissory oath-taking. Thomas Hobbes wrote in Leviathan that an oath added nothing to an obligation because a lawful promise bound the conscience, with or without an oath; but an unlawful promise was not binding, even if confirmed on oath.

John Selden, an English jurist, noted in his book, Table Talk, that many oaths resulted in honest consciences being conflicted: “Now oaths are so frequent they should be taken like pills, swallowed whole: if you chew them you will find them bitter: if you think of what you swear, ’twill hardly go down.”

It was not until the 19th century, however, that disabilities for Catholics and non-conformists were removed and the loyalty oath became a simple promise of allegiance to the Queen, her heirs and successors. This oath was exported to colonies which, in time, became states, like Australia and Canada, that continue to recognise the Queen as head of state. However, simplifying the oath did not mean that debates about loyalty oaths ceased. In liberal democracies that have the Queen as head of state and with people holding a range of political opinions, the question is about trying to accommodate sincerely held political views with the principle of allegiance to a particular form of government under the Crown. For instance, in 1992, the Canadian Federal Court of Appeal dealt with the case of an American who wished to become a Canadian citizen but objected to swearing allegiance to the Queen.

Beijing’s ‘decree’ on oaths a warning to Hong Kong government

The court held that the oath requirement was constitutional because objectors could always seek changes to government, so long as they followed the prescribed route for amending the constitution. In 2014, the Supreme Court denied leave to appeal in a similar case, saying that the loyalty oath needed to be construed as referring to the Queen as the symbol of the Canadian system of government, and not to an individual.

The eight types of insincere oaths, as set out by former Beijing official

An amendment to legislation governing the Quebec provincial assembly was passed in 1982 to allow legislators to swear an oath to “the people of Quebec” in order to accommodate local political sentiment, but attempts to make similar changes at the federal level have not succeeded. In Australia, too, attempts to modify the loyalty oaths to remove references to the Queen have all failed.

In conclusion, I hope that the current debate about oaths ends more happily than it did in 1535 for Henry VIII’s former Lord Chancellor, Thomas More. Anyone who has seen the film, A Man for All Seasons, knows that the price of his clear conscience was his head.

Philip Dykes is a senior counsel who has been involved in the case of Sixtus Baggio Leung and Yau Wai-ching. He has an abiding interest in English legal history, having spoken in the past 12 months on the Magna Carta and the legal consequences of the Norman Conquest in 1066