The Indictment of Sir Thomas More
The condemnation and subsequent decapitation of Sir Thomas More was universally looked upon, even in England, as one more case of judicial murder. Not only this, but the death of this witty and loveable Londoner must have affected the world of the sixteenth century something like the murder of John Fitzgerald Kennedy affected the world of the twentieth century. People could not believe that such a crime was even thinkable. Even More's sovereign is reported by Stapleton to have turned upon Ann Boleyn with the savage remark, "You are the cause of this man's death!"
The trial of Saint Thomas More, like the trial of Bishop John Fisher and the trial a century later of King Charles I, must be reviewed within a context all its own. Writers have explored for the past four centuries in minutest detail the events that made history on that hot July day, 1535, in ancient Westminster Hall, London. Even today one wonders if the complete story has been told. Official records many times have been lost; many are yet unpublished; some undoubtedly have been tampered with and are questionably reliable. Especially is this true of the records of the lengthy reigns of Henry VIII and Elizabeth I. In justice to the custodians of the records filed away in the archives of the Public Record Office (P.R.O.) it must be recorded here that every possible assistance is being given now to serious writers doing research for their works. The recent works of William R. Trimble (The Catholic Laity in Elizabethan England) and Philip Hughes (The Reformation in England, three volumes) attest this fact.
For that matter, it has been due to the painstaking research of Mr. J. Duncan M. Derrett that a final word has been spoken about the precise statute that Sir Thomas More was charged with having capitally transgressed. While the Statutes of the Succession and the Royal Supremacy did play an important role in the capital conviction of More, neither of them was the direct cause of his condemnation. The Act of Succession involved the former chancellor in a praemunire, a penalty, which touched the property and the person of the convicted individual but not his life. The Act of the Supremacy legislated no penalty at all.
Mr. Derrett's valuable contribution to the July, 1964, issue of the English Historical Review, "The Trial of Sir Thomas More." analyzes in extenso the text of the indictment and proves that More was convicted of a capital offence against the November, 1534, Act of Treasons (with some justice looked upon by some scholars as a second Act of Succession). His contribution is all the more valuable because it definitely establishes the relationship of the complete text of the indictment, not published until 1932, to the Act of Treasons, and thus illustrates and establishes the precise charge which brought the famous prisoner to the block on Tower Hill.
This Act of Treasons (26 Henry VIII, c. 13) was not new legislation. It merely updated a Statute of 1352 and owes its passage to an exigency peculiar to the time, the acceptance of the royal supremacy. The original Statute had made it high treason to "compass the king's death, to levy war upon him, to adhere to his enemies." It owes its revision to the fact that the Statute of the Supremacy legislated no penalty. Accordingly, the Statute of High Treasons put teeth into the Statute of the Supremacy by making it high treason, punishable by death, to deprive the sovereign of a title accorded him by parliamentary action.
A cursory reading of the Act of Treasons makes it clear that the indictment of Sir Thomas More is derived from the charge, and the sole charge alleged, that the king's "alter ego" had "maliciously" desired to deprive Henry of his parliamentary title "Caput Ecclesiae Anglicanae Supremum." This fact is clearly exposed by the text of the Act of Treasons: "If anyone after February 1st, 1535, do maliciously wish, will, or desire by words or writing, or by craft imagine, practice or attempt to deprive them (the sovereign, his queen, the heir apparent) or any of them of their title, or name of their royal estates (note the use of the plural here, i.e., estate temporal, estate ecclesiastical), shall have to suffer such pains of death and other penalties as is limited and accustomed in cases of high treason." (Italics added).
So brief an analysis, as this, of the indictment might be less tedious to follow to its conclusion if one prefaces the paragraphs, which follow with these sentences:
1. As early as 1515 the practical difficulty of impugning an Act of Parliament on theological and canonical grounds was ably illustrated by the case of Standish versus Kidderminster.
2. The text of the indictment clearly exposes the purpose of the Act of Supremacy, which the Act of Treasons was legislated to enforce.
a. There is no question that More was tried for more than one offence alleged against the Act of Treasons.
b. This offence was charged in the fourth "count" drawn up by the Crown. The court decided not to press the other three "counts," although any one of them would have been sufficient to convict.
c. More gave persuasive reasons why the seven "acts" charged in the first three "counts" involved no capital offence. He pleaded "not guilty" to the eighth "act," the fourth "count," the sole charge pressed by the Attorney General.
3. After considering the evidence the jury, in fifteen minutes, returned a verdict of "guilty as charged" and sentence was pronounced without a moment's delay.
4. One must consider here not only the juridical but also the moral aspect of the martyr's case. When one does this he must not forget that idealists and martyrs deal chiefly in abstracts, the law in concretes. This is why something must be said in this contribution about obedience to law qua law, a most difficult matter because the moral imperative of four centuries ago has found its counterpart in every age.
Just twenty years prior to the trial of Sir Thomas More a controversy convulsed State and Church which was ever after, especially in England, to have lasting effects upon Church-State relationships. It was on February 5th, 1515, that Henry VIII's third Parliament opened. Top priority on the agenda was the intention of Parliament to reenact a temporary Statute legislated 1512 (4 Henry VIII, c. 2). In effect this Statute deprived clerics in minor orders, charged with a felony, of "benefit of clergy," which brought their case from the ecclesiastical to the civil court.
At this moment in English history the Abbot of Winchcombe, Richard Kidderminster, was in London preparing to take his seat in the House of Lords. Abbot Kidderminster, arguing in behalf of the Church that the Statute of 1512 was contrary to the divine law, touched the match to the highly explosive question of just what rights did the Great Charter grant to "Ecclesia Anglicana." The Abbot delivered himself of a forceful and bitter sermon at St. Paul's Cross (the Columbus Circle of medieval London) choosing for his text this verse from Psalm 104, "Touch not my anointed."
Ignoring the wrath of Abbot Kidderminster, the House of Commons voted passage of the controverted Statute, but it was thrown out by the House of Lords. This far from terminated the matter, and finally King Henry VIII thought it expedient to charge a colloquy of learned men to give an opinion on the morality of the disputed Statute.
The Commons found, to their unconcealed astonishment and joy, that they had in their favor a most unexpected champion. He was an ecclesiastic of note, Father Guardian of the Franciscan Friary, Dr. Henry Standish, O.F.M. Conv. Father Standish came to the point at issue without overloading it with a surfeit of unnecessary words. Clerical privilege, he opined, must not be permitted, legally, to interfere with the common good.
For a second reading the Act of 1512 was brought into the Commons, passed and once more rejected by Lords. To be sure the Act of 1512 failed to become law but it achieved a Pyrrhic victory. It originated a sorry precedent which struck a telling blow at the power wielded by the Church in England, a blow which was to be followed by blows even more telling when the Henrician Schism was effected in 1534. It is interesting to note that Henry did not miss the point. "I will never," he warned the Bench of Bishops, "consent to your desire any more than my progenitors have done!" The contest has a somewhat prophetic aftermath. That Henry admired a compliant ecclesiastic and would continue to do so until his death is clearly seen from the "fate" meted out to Dr. Standish. He became Bishop of St. Asaph in 1518.
For a detailed analysis of the Standish versus Kidderminster case our readers are referred to Powicke's Reformation in England, pp. 17-18, and Hughes' Reformation in England, Vol. 1, pp. 151-154. Monsignor Hughes hangs his personal conclusion upon this sharp nail: "It needed little to turn the argument into a claim for royal supremacy." Which is exactly what it did.
It was on the 7th of May, 1535, that the royal commissioners, sparked by Cromwell, so the first count in the indictment reads, called upon More in the Tower cell he occupied (this cell is "off limits" today but may be visited upon application to the Governor of Her Majesty's Tower of London for a pass. So, too, may the cell occupied by St. John Fisher. Both are in the Bell Tower.) More was interrogated, on the king's order, to learn if he "acknowledged and took the king for supreme head on earth of the Church of England." Cromwell reported to the king the "malicious" conduct of the prisoner, proven when he gave an evasive reply.
Presumably the official questioning was done in the Latin tongue because the report relates that he spoke in English these words: "I will not meddle with any such matters, for I am fully determined to serve God, and to think upon His passion and upon my own passage from this world."
The second "count" dealt almost entirely with Sir Thomas More's "dealings" with a "known traitor," i.e., Bishop Fisher of Rochester, who had already been delivered of this life upon Tower Hill, June 22nd. The Crown gave in detail what evidence it could muster to prove that More and the Bishop of Rochester were each violently opposed to the Statute of the Royal Supremacy, that More had coached Bishop Fisher how to deport himself, how he had warned him to use great care lest he incriminate More, and that it was clear that More willed maliciously to deprive the monarch of one of his titles granted him by consent of Parliament.
A third "count" sought to establish proof that More, when questioned for the second time on June 3rd, not only refused to answer but, motivated by the malicious intention of stirring up sedition against his king, had described the Statute of the Supremacy as a two-edged sword. He had declared, so the charge stated, that if one took the oath with an uneasy conscience, he would endanger the life of his soul. If he refused, because of conscientious scruples, to swear to the Royal Supremacy, he would imperil the life of his body. Thus he was impaled upon the horns of a dilemma.
Strange to say, the Crown based its case against Sir Thomas More, the charge alleged in the fourth "count," on the weakest evidence at hand, the word of a rascal. The witness was none other than the Crown's own Solicitor General, Baron Rich. English State Trials by Lord Campbell characterizes this star witness for the Crown as "one of the most sordid as well as unprincipled men who have ever held office in England."
The charge fathered by Rich alleged that he and the prisoner at the bar had engaged in a very lengthy conversation in the Tower. More, he swore, had indeed admitted that the king might be declared supreme head of the Church of England, but he had questioned the capacity of Parliament so to declare him to be. Thus, in More's opinion, concluded Rich, a doubtful Statute could not possibly bind the king's subject in conscience.
If it was strange that the Crown rested its case on the word of such a rascal as Rich, it is almost all the more strange that the jury accepted this man's word against the word of a man so highly esteemed as Sir Thomas. All the way it was the word of a known scoundrel against the word of a known and acknowledged character of the highest moral integrity. Even the agents who were with Rich and More at the time this long conversation took place refused to be drawn into the perjury. They smugly asserted that they were too busily engaged packaging the prisoner's books for removal from the cell to have heard what was discussed.
One rarely meets up with an angry More, but we do this time; we encounter a very angry and indignant More indeed. His reply to Rich mirrors the reply of his fellow-sufferer, Bishop Fisher. When on trial for his life, for contravening the Statute of Treasons, St. John Fisher had this to say to the perfidious Rich: "Mr. Rich, I cannot but marvel to hear you come in and bear testimony against me of these words (that the king could not be Supreme Head), knowing in what secret manner you came in to me."
More's handling of the Solicitor General, like Fisher's, is another of the classics of criminal procedure.
As for you, Master Rich, in good faith I am sorrier for your perjury than for my own peril. But I wish now the court to understand that neither I, nor any man else to my knowledge, ever took you to be a man of such credit as, in any matter of importance, I or any other, would at any time consent to communicate with you. And I have known you from your youth onward, for we long dwelt together in the same parish (Chelsea). I am sorry I am now compelled to testify you were esteemed then very light of tongue, a great dicer, and of no commendable report of fame. In your house at the Temple also were you thus accounted. I am sorry. Master Rich, to have to disclose such things. But you drive me to it in my own defence.
This indictment of Baron Rich all but concluded the calm defence of the prisoner. What more, after all, was there left to say? His trial, all in one day, July 1st, 1535, would require no lengthy "Warren Report" to preserve it for future historians to reconstruct. But there is one portion of his summing up speech to the Bench that will never be forgotten: "I verily trust, and shall right heartily pray, that though your Lordships have now here on earth been Judges to my condemnation, we may yet hereafter in Heaven merrily all meet together, to our everlasting salvation, there to be merry forever and ever. Do you pray for me in this world, and I shall pray for you elsewhere. And I bid you carry one last message from me to His Grace, the King. Tell him I remain his bedesman still. That I pray God to give him good counsel. That I die the king's good servant, but God's first."
There will always be the temptation for us to convict the Bench and the jury of bad faith. While it is altogether possible that the conviction and condemnation were a foregone conclusion from the moment Sir Thomas More entered Westminster Hall, it is still not possible to declare that, "everyone knows that it was a case of bad faith; that the prisoner at the bar never had a chance of a fair hearing, of a morally just sentence." Even the quarter of an hour deliberation on the part of the jury does not necessarily mean that the jury did not abide by strong convictions in its condemnation of Sir Thomas. At least we must believe that conviction of guilt rested upon the fact that More had disobeyed the Statute of Treasons, that he stood convicted of having "maliciously willed to deprive" Henry VIII of his title in law, Caput Ecclesiae Anglicanae Supremum.
Sentence was pronounced, the barbarous penalty of quartering, immediately commuted by the king's most gracious mercy to simple decapitation. Five days later, July 6th, More paid the penalty of being not only the king's but God's good servant. Devout Catholics were to remember the date, July 6th, 1535, when eighteen years later, to the day, July 6th, 1553, Henry's son and heir, Edward VI, was to leave this sorry world. Wasn't it more than coincidence, these men and women with long memories were asking of one another.
The fall of the axe did not cut off the head of the moral problem, which has survived even to this day. Ought Sir Thomas More have obeyed a statute, which in conscience he believed to be directly contrary to God's law? That, of course, is the problem of the moral imperative involved here. There are two chief schools of thought who have argued this case ad infinitum. There is that school of responsible jurists that argues well for the status quo, that More ought to have obeyed the law of the land and then ought to have labored for its repeal or of its amendment in such a way that his uneasy conscience would be eased of the burden of moral guilt. Mr. Derrett would seem to be of this opinion:
In this discussion there is no trace of doubt but that if Parliament decided not to repeal an impugned statute, or the courts held that the statute was not repugnant, More would accept that situation as for practical purposes sound and reliable. One would be under a duty to agree. But if one's agreement failed, the decision stood. Law is law, even if it was wrong. And this attitude is exactly what one would expect in More's career, his training, and his mentality. His conscience was his own affair; it might have been better if the law of England agreed with it, but even if it did not, it was still the law. There was no human tribunal to which the issue could go on appeal.
Those who abhor such reasoning, and they are not a few, would argue that Saint Thomas More, a lawyer and jurist of no mean name himself, was compelled by the moral imperative to foreswear the Oath. This school of thought teaches that enactments, which command the performance of decidedly immoral or amoral acts, must not be obeyed under any circumstance. An example might be cited in pointing to a decree demanding candidates for political office to renounce their religious beliefs and convictions. In fact, Sir Thomas More posed just such a situation. If Parliament legislated that there was no God, would one be obliged to accept such legislation?
The authors speak of another species of unjust laws, which may be obeyed under certain well-defined circumstances because basically they were legislated for the bonum commune. An example of this would be a law subjecting human beings to strict slavery, or certain tax laws, which are completely out of proportion to the needs of the government, which legislated the law. Since such a law would not dictate per se but only per accidens an evil enactment, one might still, under certain circumstances, have to obey them, precisely in virtue of the principles of natural law.
Think what you will about Mr. Derrett's conclusion, no one will contest his ultimate summation of the case Henry VIII versus Sir Thomas More. "His life, ending as it did, served as an inspiration from the moment of his execution."
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