Note: This piece was written for, and originally published by, Br. Alexis Bugnolo’s blog, FromRome.info, in two parts. Your humble blogger is the author.
THE PASSION OF ST. THOMAS MORE
The story of St. Thomas More and his ultimately fatal disagreement with King Henry VIII of England leapt from the history books into the popular imagination, at least that of the anglophone world, in the 1960 stage play by Robert Bolt, “A Man For All Seasons.” Bolt himself later wrote the screenplay for the critically acclaimed motion picture of the same name, released in 1966, for which he won one of the six “Oscars” awarded to the film.
Bolt’s work brought to the wider world the traditional perception of the case, at least among faithful Catholics and other adherents to the Biblical notion of marriage, as an unjust persecution of More and Bishop St. John Fisher by a tyrannical monarch bent on placing his own desires and ego above the law of God. In the play and film, both More and Fisher were convicted of treason and executed on the testimony of one man: Sir Richard Rich, a political weathervane who, at the time, was a minion of Thomas Cromwell. Cromwell served Henry, among other ways, as the “brains” behind (and possibly the instigator of) Henry’s scheme to break the English church away from communion with Rome, and after the rupture Cromwell and Rich undertook the dissolution and distribution for political favors of the English monasteries, thus destroying the spiritual fruit of centuries of devotion. Ironically, at about the same time as Bolt was writing his screenplay for the film, an English historian, J. Duncan M. Derrett, published a work contending that the trial of More was actually a fair one, conducted in accord with then-existing English law.i
The view of Derrett, an Anglican-educated legal positivist whose primary claim to fame was as a scholar of Hinduism and Indian law, and who also wrote several books on interpretation of the New Testamemt, was accepted by a general consensus of historians in the 1960’s and thereafter. Recently, however, in 2011, a comprehensive review of the available documentation of More’s trial has been publishedii, in which Derrett’s view of the trial is challenged. Derrett, the legal positivist, argued that More clearly broke the law (meaning the statutes, passed at the behest of Henry VIII, upon which More was indicted and tried), and yet the judges at his trial were amenable to reasonable arguments, having dismissed much of the original indictment against him. From this, Derrett concluded More was treated justly by the day’s standards.
On the contrary, American Catholic historian Henry Ansgar Kelly argues that Derrett’s view is unreasonable. In light of all the available records, and considering then-existing legal and procedural standards, Kelly concludes that More was actually the victim of a gross miscarriage of justice, convicted largely upon the perjured testimony of an agent of the King who desired More’s conviction out of personal animosity, before a court made up largely of men with vested personal interests in getting More out of the way permanently, and a jury comprised of employees of the king.
More was the eldest son of Sir John More, himself a lawyer who became a judge of the King’s Bench (also called Queen’s Bench when a Queen reigns). More received a top tier education, including a highly regarded London school, personal tutelage from the Archbishop of Canterbury, John Morton (later a Cardinal), and two years at Oxford. After beginning study of the law back home in London, More was admitted in 1496 to Lincoln’s Inn, one of the four prestigious Inns of Court, where he completed his legal education, becoming a full member of the Bar in 1501. At about the same time, More took up residence in the Carthusian monastery that was next door to Lincoln’s Inn, where he risked the ire of his father by seriously discerning whether he was called to the priesthood. Although More eventually concluded that he did not have a vocation to Holy Orders, his time in the monastery left its mark, as he continued for life to observe the holy habits which the monks had instilled in him, of prayer, fasting and the wearing of a hair shirt.
Having discerned his vocation to be that of husband and father, More married a farmer’s daughter, Joan Colt, in 1504 or 1505, with whom he had four children before her untimely death in 1511. Left with the care of four youngsters under six years of age, More shortly thereafter married a wealthy widow, Alice Middleton, who had one daughter. In addition to practicing law, More wrote a great deal, including works of poetry, history, and fiction, many of which are available free online, though some may be difficult for today’s readers to decipher as they are in old English spelling and typeface, if not in Latin. Perhaps his best-known work from this period is Utopia, a word invented by More which has become a common usage in modern English. The book combined satire, romance and political philosophy in a unique manner, describing a fictional society governed entirely by reason.
More first entered public service in 1510 as one of two “undersheriffs” of London, a quasi-judicial post he resigned to enter full time into the King’s service in 1518. Rising through the ranks in various titles, including under-treasurer and Speaker of the House of Commons, More became known as Henry VIII’s “intellectual courtier” as well as being “a very active citizen of London. He developed one of the largest and most lucrative law practices in the city. He took on greater responsibilities in governing Lincoln’s Inn, and he was elected to the prestigious Doctors’ Commons. He also represented the city’s business interests in foreign embassies, and still found time to write and to correspond with Europe’s leading intellectuals.”iii More further burnished his reputation as a defender of the Faith by assisting and supporting Henry in a vigorous exchange of polemics between the king and Martin Luther, capped by More’s Responsio ad Lutherum (in Latin) in 1523.
The “Great Matter”iv
Henry first informed More of his theory of invalidity of his marriage to Catherine in September of 1527 at Hampton Court, which issue More thereafter referred to as the king’s “great matter.”v Citing Leviticus, the king stated his belief that Catherine’s brief marriage to his deceased older brother Arthur meant that, by marrying Catherine, Henry had “uncover[ed] the nakedness” of his brother’s wife, Lev. 18:16. Thus, claimed the king, her marriage to Henry was rendered barren, pursuant to Lev 20:21. More’s doubted that the referenced passages invalidated Henry and Catherine’s marriage, and opined as much, noting this would be true especially if, as Catherine maintained, she and Arthur had never consummated their union. Henry maintained that Leviticus ruled the issue, and suggested that More study it further.vi
While at this point the primacy of the Holy See was not yet the central issue, as Henry undertook to convince Rome to annul his marriage to Catherine, More did as Henry asked and made a serious study of the question of the royal marriage in Scripture, the fathers and Doctors of the Church such as Jerome, Cyprian and Gregory, and the records of the general Councils. More’s opinion of the validity of the marriage of Henry and Catherine did not change. Moreover, the review led him to conclude that Papal primacy had been instituted or established “by the corps of Christendom”, manifested through “the general counsell of the whole body of Christendome” or the “whole catholike church lawfully gathered together in a generall counsell” governed by the spirit of God, corroborated by continual succession of popes over at least a thousand years; thus it did not matter whether the primacy had been instituted immediately by God or ordained by the Church; “it had become a matter of consensus and authoritative tradition.”vii Thus, More concluded that no secular authority had the power to overrule any papal decree. This, of course, would ultimately prove to be the cause of the fissure between More and Henry, and between England and the Catholic Church.
In 1529, while working full time on judicial and administrative duties at Westminster and at court, and even as he began involvement as a representative of England in the lengthy peace negotiation which eventually produced the historic Treaty of Cambrai, More expanded his long-standing efforts to defend the Faith from the growing Lutheran heresy by writing A Dialogue Concerning Heresies, viii This was More’s first work published in the vernacular instead of in Latin, the purpose of which was, according to Ackroyd, “to celebrate that common culture [i.e.,that of Catholicism] which was under threat; by employing the stories and proverbs that were in the air around him and by drawing upon the resources of the medieval tradition of caricature and speech he was implicitly appealing to his audience to consider what would be lost if Christendom fell into schism. A religion and a way of life might disappear.” ix
Also in 1529, a more ominous development occurred as Henry’s long effort to convince the pope to annul his marriage to Catherine ended in failure. The pope had dispatched an aging Cardinal Campeggio from Rome to England to preside over a legatine court that would hear Henry’s case. The court opened on the last day of May, and on June 21, Henry and Catherine both appeared and made their arguments.x Catherine’s emotional speech protesting the annulment, delivered kneeling at her husband’s feet, probably was responsible at least in part for the court adjourning without reaching a decision, as was her written direct appeal to Rome to deny Henry’s case. Also of no small moment was the fact that troops in the service of Catherine’s nephew, Charles V, king of Spain, had invaded and sacked Rome two years earlier, and the occupation was effectively holding the pope, Clement VII, prisoner at Castel Sant’Angelo. Thus, the pope was unlikely to grant Henry an annulment even had he been so inclined, at the risk of further jeopardizing his personal situation.xi
The failure of Henry’s case was decidedly bad news for Cardinal Wolsey, whom Henry had charged with the responsibility of obtaining the annulment. In October 1529, after the legatine court was adjourned without a decision, Wolsey was indicted under the Statute of Praemunire, a fourteenth-century law that prohibited appeals of English court cases to the pope, and charged with overstepping his legatine authority. Having thus been effectively deposed as Lord Chancellor, Wolsey surrendered the Great Seal of his office to Henry on October 18 or 19.xii Wolsey retired to York, and later was arrested for treason, on November 4, 1530, but died before he could return to London.
Henry met with various councillors, including More, for several days to choose a successor, and on October 25 More was notified that he was to be the next Lord Chancellor. Henry gave him the Great Seal that same day, and he was ceremoniously installed on the marble Seat of Judgment in the Chancery.
What Were They Thinking?
Henry knew More did not support his “great matter”, and More obviously knew he was opposed to the king’s fondest wish at the time, i.e., to be rid of his marriage to Catherine so that he could make his mistress, Anne Boleyn, queen in her stead. Both men must have known that a confrontation was inevitable between the monarch’s desires and the position of the Church. Why, then, would Henry appoint More to the highest office in the land short of his own, and why would More accept the appointment?
Unfortunately, neither man left a clear record of his thinking on these questions, although much can be inferred from the records that do exist. For Henry’s part, his selection of More made sense from a purely practical perspective. More was, after all, well known and highly regarded throughout England. He had built a reputation as a first-rank lawyer, and had demonstrated the ability to deal with Parliament as Speaker of the Commons. The clergy had selected him as their polemicist in the fight against the Protestant heresy.xiii
Ackroyd then adds:
“Perhaps most importantly, he had worked closely with the king for more than ten years; Henry believed that he could rely upon his loyalty and good judgment as the proceedings against his marriage continued their serpentine course. But by appointing a layman as chancellor for the first time in almost a hundred years, Henry was also reasserting his own power over that of the Church. Wolsey’s fall and More’s appointment, therefore, were directly associated with the king’s desire to separate himself from Catherine of Aragon.” xiv
What, then, of More’s acceptance of the position? Did Henry discuss with him the “great matter” before offering him the Great Seal? The timing is unclear, though More later wrote that Henry asked him at some early point to ponder the question of the annulment, but declared that More should follow his conscience. Henry “…assigned the Archbishops of Canterbury and York as well as other dignitaries to persuade him of the merits of his case. But More proved obstinate, or merely impassive, and listened with great care to the various arguments without once changing his mind. He believed the original papal dispensationxv to have been valid and the marriage sound. Henry was disappointed but in More’s words, was “neuer the lesse graciouse lord.’ “xvi Henry, ever the astute politician, also had personal reasons to elevate More despite their differences over the “great matter,” because Catherine was very popular with the people, especially in London, and More’s support of her was well known. Having More as Lord Chancellor thus may have struck Henry as personal protection against charges of animus against his queen.xvii
As for More’s own reasons, in light of his history of personal piety and vigorous defense of the Catholic faith, and although there is no evidence that he was compelled or coerced to take the job, the future Saint probably viewed the appointment as not only the culminating honor in the career of any English man of laws, but as a tremendous opportunity to serve the Church. By possibly avoiding the schism between London and Rome that he already feared from the Lutherans, if only he could turn Henry’s mind back to obedience, More also would greatly serve the interests of Catherine, whom he held to be the rightful queen. In ascending to the post of Lord Chancellor, then, More not only served his king and his queen, but he also greatly pleased his father, his wife, and likely of most importance in his mind, his God.xviii
More Resigns His Post
Any illusions More may have harbored of changing the king’s mind as to his marriage to Catherine did not last very long. By all accounts he served admirably in the judicial aspects of the Chancellorship, taking on and clearing the backlogged docket left by Wolsey and consistently applying justice based in equity to lower court cases decided in more positivist fashion. He tried, diligently but largely without success, to impress upon common-law court judges a willingness to apply their reason and discretion to overturn juries where warranted, noting to his son-in-law William Roper the judges’ preference to hide behind jury verdicts so as to “…cast off all quarrels from themselves upon them.”xix This was indeed ironic given the outcome of his own trial several years later, as discussed below.
As Lord Chancellor, More also continued the campaign against heresies and heretics which he had pursued all his years of public service, issuing proclamations and a list of prohibited books, possession of which would result in summary arrest and imprisonment. Although Ackroyd debunks Protestant claims that More personally sanctioned or even participated in physical mistreatment of heretics, there is no doubt of More’s disdain for them and his support of their being dispatched at the stake, in the long-established practice of the land.xx
All along, however, throughout the thirty-one months of his tenure, Lord Chancellor More grew farther apart from Henry on the king’s “great matter.” As Chancellor, he never publicly and directly challenged the king, but he made it clear privately, to the king and to the many officials, secular and ecclesiastical, whom Henry recruited to persuade him, that he remained convinced of the validity of the marriage of Henry and Catherine. More also made his position clear by things he did not do, such as his refusal in June of 1530 to sign a letter to the pope, drafted at Henry’s instance, and signed by numerous noblemen and clerics, entreating His Holiness to grant Henry’s annulment. More was not, however, alone in his opinion; it was shared by many “nobles, lawyers and prelates,” which may help to explain why More did not lose his office sooner.xxi But Henry kept up the pressure, demanding in early 1531 that the assembled clergy of England grant him the title of “Sole Protector and Supreme Head of the English Church and clergy.” The assembly eventually acceded to this demand after long negotiations, with a qualifying clause, “quantum per legem Dei licet”, or “so far as the law of God permits.” More continued throughout 1531 to balance his duties as Chancellor against his personal support of Catherine, going so far as to give speeches before both Houses of Parliament in which he stated that Henry’s efforts to annul the royal marriage stemmed not “out of love for some lady” but based on conscience and piety. After this point, More first sought to be released from his duties as a matter of personal health. xxii He remained through the summer, however, even as Henry banished Catherine to Kimbolton Castle in July, and into the next year as Cromwell and his allies worked to alienate Henry further from his loyalty to Rome, as there were still many prominent people who shared More’s view.xxiii
May of 1532 brought the controversy publicly to a head, when Cromwell prepared a bill in parliament to strip the bishops of their powers to arrest persons accused of heresy, and to transfer to the king all legislative and judicial power then vested in the ecclesiastical courts. More and his allies openly and loudly objected, arousing Henry’s anger, and after Henry prorogued parliament, the assembled clergy, on May 15, submitted to his demands. Henry had utterly destroyed the independence of the Church in England. The next day, Sir Thomas More resigned as Lord Chancellor.xxiv
The Final Straw
Despite resigning the Chancellorship, More remained a member of the royal council, and generally remained in the king’s good graces, if for no other reason than that Henry, having now proclaimed himself supreme head of the English Church, could not condone heresy without risking open revolution. Thus Henry did not yet openly endorse Cromwell’s continuing association with Tyndale and the other advocates of Lutheranism, whom More had so zealously opposed for years. More continued to write polemics against the heretics, thereby continuing his opposition to Cromwell although living away from Westminster, and not discussing openly his disagreements with Henry, instead telling friends and acquaintances he had resigned for reasons of health.xxv
The end of this uneasy peace between More and the king was, unsurprisingly, engineered by Cromwell. In March of 1533, a month after Henry had secretly married his mistress Anne Boleyn, who was already pregnant, Cromwell sent to parliament An Act in Restraint of Appeals. The Act (24 Hen. VIII c. 12), “…was a crucial step in Henry VIII’s assertion of royal supremacy. He had already moved against the clergy with accusations of praemunire and in 1532 forbade the payment of annates or first fruits to Rome. The Act, passed in the first week of April, forbade appeals to Rome and had two objectives—to allow Cranmer to give a ruling on Henry’s marriage to Catherine of Aragon which could not be appealed, and to intimidate the pope generally.” (Source.) Within two weeks of passage, Henry installed Thomas Cranmer, whom he and Cromwell had sponsored and mentored for several years to be a clerical advocate, as the first non-Catholic Archbishop of Canterbury. Cranmer quickly decreed the marriage of Henry and Catherine to have been invalid, and pronounced valid the king’s secret marriage to Boleyn. This was followed almost immediately, on April 12, by a royal proclamation that Anne Boleyn was now Queen of England. More refused to attend the sumptuous ceremonies of her coronation, which was taken as a public snub. “This was the point when Henry hardened his heart against him.” xxvi
From then on, presumably acting on Henry’s orders, Cromwell conducted several investigations aimed at bringing criminal charges against More as well as anyone who had sympathized with his support of Catherine. At some point during this period, More turned away from public polemics and toward meditation and prayer. In the face of the apparent destruction in his homeland of the faith he held so dear, More wrote A Treatise upon the Passion of Christ, both a private work of Biblical exegesis and meditation and a public exhortation to Catholics in England to hold to their faith. As Ackroyd notes:
“More believed, with much justification, that the destruction of the old religion was being undertaken at the behest of an arrogant and impetuous king, together with councillors who hoped to benefit from the disorder; the ‘reformation’ was being imposed, therefore, upon a nation which remained generally pious and devoted. The substitution of king for pope as head of the Church may not have seemed a particularly damaging or damning development, but More saw further and more clearly than most of his contemporaries; once the community of the faithful, the living and dead, was broken by schism then the faith itself would be placed in severe peril.”xxvii
Henry Increases His Pressure
The final steps against More were enabled by three further Acts of parliament drafted by the ubiquitous Cromwell.
- By the Act of Succession of March 1534, subjects were ordered to accept the king’s marriage to Anne as “undoubted, true, sincere and perfect.”
- In November the constitutional revolution was solemnized in the Act of Supremacy, which announced that Henry Tudor was and always had been “Supreme Head of the Church of England”; not even the qualifying phrase “as far as the law of Christ allows” was retained.
- In December the Treasons Act was passed, which labeled as high treason punishable by death “that if any person or persons, after the first day of February next coming, do maliciously wish, will or desire, by words or writing, or by craft imagine, invent, practise, or attempt any bodily harm to be done or committed to the king’s most royal person, the queen’s, or their heirs apparent, or to deprive them or any of them of their dignity, title, or name of their royal estates, or slanderously and maliciously publish and pronounce, by express writing or words, that the king our sovereign lord should be heretic, schismatic, tyrant, infidel or usurper of the crown,…” xxviii
Cromwell moved quickly after the passage of the Act of Succession. On April 12, 1534, More was summoned to appear, along with some number of others, at Lambeth Palace to take the Oath of Succession. After carefully examining both the statute and the oath, he refused to swear it, without explaining why, despite several attempts by Cromwell and the other commissioners, who included Archbishop Cranmer and various other lords and prelates, to elicit his reasoning. Later, More explained to his daughter that his refusal was because the oath went further than the statute itself, requiring the oath-taker to promise obedience to all other laws passed by that Parliament, including several pieces of overtly anti-Church and antipapal legislation. Again as analyzed by Ackroyd, “If More had sworn the oath, as presented to him with this wording, he would have concurred in the forcible removal of the Pope’s jurisdiction and the effective schism of the Church of England. This he could not do, even at the cost of his life.”xxix
More Is Imprisoned
For refusing the oath, More was confined to the Tower of London on April 17, where Fisher already had been sent for preaching publicly against the Succession. While in prison, More wrote A Dialogue of Comfort Against Tribulation, (online version), which has been described as “a masterpiece of Christian wisdom and of literature.” He and Fisher also exchanged a series of letters, which were burned by their respective personal servants, whom they were allowed to retain while in custody as was then customary.xxx This would later prove problematic for both.
After the passage of the Act of Supremacy and the Treason Act, a bill of attainder was enacted against More accusing him of seditious motives for his refusal of the oath of succession, effectively convicting him of a crime without trial. (Such laws are unconstitutional in the United States and were abolished in Britain in 1870.) Thus, before the year 1535 dawned, More’s imprisonment was for all practical purposes rendered permanent.xxxi
Even so, Henry continued to seek affirmation of his position concerning his marriage to Catherine and of his assumption of authority over the Church in England. This included escalating, through agents such as Cromwell and others, his efforts to convince More to support him, sending his agents to meet with More in the Tower on several occasions. The two most notable of these were his summoning before a commission including Cromwell and Sir Thomas Audley, More’s successor as Lord Chancellor, on June 3, who engaged More in conversation trying to draw out his reasons for refusing the oath of supremacy, and a visit to his cell a week or so later from the king’s Solicitor-General (the chief attorney for the government), Sir Richard Rich.
The conversation with Cromwell and Audley yielded a memorable comment from More concerning the oath he had refused to take. As related by More in a letter to his daughter, when asked to explain his refusal, More stated: “For if it so were that my conscience gave me against the statutes…it were a very hard thing to compel me to say either precisely with it against my conscience to the loss of my soul, or precisely against it to the destruction of my body.” xxxii As for the visit from Rich, the ensuing conversation became the most significant part of the evidence against More at his trial less than a month later. Rich was to accuse More of having told him that parliament had no authority to declare Henry the supreme head of the English Church; More, however, maintained that he told Rich parliament had the authority to make him (Rich) king, but could not make him pope, any more than it could make God not-God.
Why did Henry persist so, even at this late date, in trying to obtain a reversal of More’s position? As previously noted, the ordinary citizens of the realm were generally pious and loved their Church, so having the support of such a well-respected figure as More would have been extremely valuable to the king. But the king’s patience was not endless. As time passed and with each successive refusal by More to give in, the harshness of his confinement grew, first by being moved to a smaller, more unpleasant cell, then by reduction of the already poor quality of his diet, and finally by having his books and other personal property taken away (at the end of his conversation with Rich). At each step More maintained his steadfast position, refusing directly to deny the validity of Henry’s marriage to Anne Boleyn or of his assumption of ecclesial authority, while informing his captors and interlocutors on several occasions that temporal matters were no longer of any concern to him. Clearly, at this point More had ceased any hope of survival in this world and had commenced his passion.xxxiii
Indictment and Trial
As was his wont, having failed to persuade More to support him, Henry determined to do away with him instead. In accordance with English legal procedure at the time, a commission of oyer and terminer was appointed on June 26, 1535 for Middlesex County and the sheriff was ordered to convene a grand jury in Westminster Hall the following Monday, June 28. The grand jury, whose proceedings were not recorded, nor were the identities of the members, found the indictment to be “a true bill“, which simply means that it stated actionable charges against the defendant.
The indictment itself, presumably drafted by Cromwell,xxxiv is in Latin and quite verbose; Professor Kelly summarizes it thus:
“§1- Grand Jurors of Middlesex County present as follows:
- 2- Since, by the Act of Supremacy 26 H8 (1534) c.1 the King was accepted as Supreme Head of the Church in England,
- 3-and since by the Act of Treasons, 26 H8 1534, c.13, it was made high treason to deprive the King of his titles;
- 4-Nevertheless Thomas More on May 7, 1535, seduced by diabolical instigation, deliberately attempted to deprive King Henry of his title of Supreme Head when, before Thomas Cromwell and others, upon being asked whether he approved of the king as Supreme Head, he maliciously remained silent and refused to give a direct answer.
- 5-On May 12, More maliciously wrote to Bishop John Fisher, consenting to Fisher’s denial of the supremacy, telling him of his own silence, and calling the Act a two-edged sword.
- 6-On May 26, More again wrote to Fisher, warning him not to use these words, lest there appear to be a confederacy between them.
- 7-On June 3, Fisher remained silent on the question and called the Act a two-edged sword.
- 8-On June 3, More maliciously persevered in his silence.
- 9-Also on June 3, More likewise called the Act a two-edged sword
- 10-In order to conceal their treason, More and Fisher burned each letter as soon as it had been read.
- 11-On June 12, More told Richard Rich that subjects could not be obligated by an Act of Parliament making the king Supreme Head.
- 12-“And thus the aforesaid jurors say that the aforesaid Thomas More falsely, traitorously and maliciously by craft schemed, contrived, practiced and attempted to deprive” the king of his title of Supreme Head.”xxxv
More was summoned to appear before 12 commissioners (effectively judges) and 7 justices on July 1, 1535, whereupon the indictment was read to him. This was his first knowledge of its contents, and thus his one and only chance to respond to it.xxxvi The justices were all sitting judges in various English courts, presumably honorable men, though also presumably quite well aware of the king’s desires in the matter. The jury was drawn from “inhabitants of the Tower”, i.e., employees of the Crown. The commissioners were as follows:
- Sir Thomas Audley, Lord Chancellor;
- Thomas Howard, duke of Norfolk (Anne Boleyn’s uncle);
- Charles Brandon, duke of Suffolk (Henry VIII’s brother-in-law);
- Henry Clifford, earl of Cumberland;
- Thomas Boleyn, earl of Wiltshire (Anne’s father);
- George Hastings, earl of Huntingdon (father-in-law of the nieces of Reginald Pole; Pole was a cousin of Henry VIII);
- Henry Pole, lord Montague (brother of Reginald Pole);
- George Boleyn, lord Rochford (Anne’s brother);
- Andrew, lord Windsor;
- Thomas Cromwell;
- Sir Willliam FitzWilliam, treasurer of the king’s household; and
- Sir William Paulet, comptroller of the king’s household.xxxvii
Note that six of the twelve were related by blood or marriage either to the king or his new queen, and four were directly in the employ of the king. The other two, as holder of landed titles, were subject to being stripped thereof at the monarch’s whim at any time. All twelve, of course, as well as the twelve jurors selected from the employees of the king, could be charged with any crime Henry might desire to charge them with, or be found guilty after the fact by attainder. Finally it should be noted that in treason trials in that era, there was no presumption of innocence, the accused had no right to call witnesses, and there were no real rules of evidence as we know them today. As Ackroyd notes, “It was not a trial which More could have won.”xxxviii
While the indictment is an historical document free of substantive dispute as to its contents, the same cannot be said of the procedure and substance of what followed its reading to More before the commissioners and justices. As detailed by Professor Kellyxxxix, there are three more or less complete written descriptions of the trial generally known to historians: an eyewitness account made to Reginald Pole, which he included in a treatise he later wrote for Henry;xl an eyewitness report written in Latin and later translated into French, known as the Guildhall manuscript; and an account written by More’s son-in-law, William Roper, years after the fact, based on what he had been told immediately after the trial by persons who attended. Kelly notes the following discrepancies among these three accounts:
- The Pole account reports that More was accused only of one thing, of remaining silent when directed to swear the oath of supremacy.
- The Guildhall manuscript has More treating the indictment as having three “parts”: remaining silent about the Act of Supremacy, arming Bishop Fisher against the Act, and conspiring with Bishop Fisher to avoid the oath and cover up their collusion; this listing never mentions the conversation with Rich
- Roper’s recollection, by contrast, suggests that More was indicted solely on the basis of the Rich conversation.xli
Here, then, is the source of the disagreement between Derrett (see note i, below) and Kelly as to the substance of More’s conviction by the jury. Derrett held that, based on the discrepancy between the Guildhall manuscript and Roper’s recollection, More succeeded in convincing the judges to dismiss the three “parts” of the indictment, concerning his silence and his arming/conspiring with Fisher against the Act. Thus, his conviction was only for his alleged statement to Rich that parliament had no authority to declare Henry supreme head of the Church in England, which would in fact have been to attempt to
“deprive the king of his title.” (Indictment, Section 12.) Kelly, on the other hand, after a lengthy analysis of all the available accounts in light of then-existing law and procedure, concludes that any partial dismissal of the charges was most unlikely. He points out that several of the justices must have participated in the drafting of the indictment, and several also participated as justices in the trials of Bishop Fisher and the Carthusian priors who had been convicted and executed just a few days prior to More’s trial. He also points to several details about the conduct of the trial taken from the different accounts, positing that Derrett’s theory of a partial dismissal of the charges does not seem likely in light of all that is known.xlii
The conduct of the trial itself proceeded in the general order of the listing of charges in the indictment:
“The attorney general opened the proceedings by reading the indictment, which consisted of four basic charges. The Duke of Norfolk then offered More a final chance to escape with his life: “You see now how grievously you have offended his Majesty; yet he is so very merciful that if you will lay aside your obstinacy, and change your opinion, we hope you may obtain pardon and favor in his sight.” More replied–“stoutly,” according to reports–that he appreciated the offer, “but I beseech Almighty God that I may continue in the mind I am in, through his grace, unto death.”
Seated in a chair because of his weakness, More attempted to answer each of the charges against him. On the charge of opposing the Henry’s marriage, More freely admitted that he had, “according to the dictates of my conscience,” told the King his true opinion. To do otherwise, he said, would have “basely flattered” his Majesty and made him “a wicked subject” and “a traitor to God.” Giving the King an honest answer, when asked for it, can hardly be treasonous, More contended.
On the second charge of not swearing to recognize the King as the supreme head of the Church when asked about the matter during his Tower interview, that “no law in the world can punish any man for his silence.” When told that his silence was “an evident sign of the malice of his heart,” More quoted a legal maxim that held that “he that holds his peace, gives consent.”
The third charge against More was that, while in the Tower, he wrote letters to Bishop Fisher inciting him to violate the Treason Act. The letters in question, which authorities claimed Fisher burned, could not be produced. More insisted that the letters counseled no violations of law. The letters, he said, merely told Fisher that he had followed his conscience when questioned on the matter of Henry’s supremacy of the Church, and that Fisher should “satisfy his own mind”– whatever position that took him to.
The fourth charge, described by More as “the principal crime objected against me,” concerned his Bell Tower conversation with Richard Rich a few days before. The indictment alleged that More, responding to a hypothetical question posed by Rich, told his visitor that the Parliament had no more power to enact the Act of Supremacy that it did to pass a law declaring God not to be God. The court called Rich to testify, and the solicitor-general gave his account of the conversation, confirming the charge laid out in the indictment. More emphatically rejected Rich’s testimony, saying that if Rich’s version were in fact true “then I pray I may never see God’s face.” More’s striking statement, given his intense and sincere religiosity, leaves little room to doubt but that Rich was flat-out lying. More added that he was “more concerned about Rich’s perjury” than he was about his own “danger.” He said that he had long regarded Rich as a liar, “a great gamester, and of no good name and character.” How likely was it, More asked his accusers, that he would choose, among all the people of the Realm, Richard Rich to confide “the secrets of my conscience?” More’s powerful answer to Rich’s accusation prompted the attorney general to call to other men who were present in More’s cell at the time of the supposed conversation to testify. Although neither men would likely risk the King’s ire that might come if they supported More’s account, they did him the next best favor and testified that they were too busy stuffing More’s books and carting them away to have paid any attention to the conversation between Rich and the prisoner.”xliii
The jury deliberated only fifteen minutes before finding More guilty. He was sentenced to be “hung, drawn and quartered”, the standard penalty for treason. Henry, however, out of respect for More’s service to the realm, commuted that awful sentence to death by decapitation. The sentence was carried out on Tower Hill on July 6, 1534. His last words were that he was dying “in the faith and for the faith of the Catholic Church, the King’s good servant and God’s first.”
A Fair Trial?
As noted at the outset, Professor Kelly and Professor Derrett disagree fundamentally as to the overall fairness of the proceedings against More. Derrett’s positivist outlook, coupled with his conclusion that the justices in fact dismissed three-fourths of the charges against More on his request, resulted in the conclusion that, by the standards of the day at least, More received a fair trial. Kelly’s analysis, however, reaches the opposite conclusion, the beginning of which states:
“The trial that Thomas More received was a typical trial by jury. Specifically, there was, as always, no accountability for the decision of the jury.
By objective standards, the jury was wrong to find him guilty of violating the Statue of Treasons upon which he was convicted, but they could not have been expected, given the realities of the pressures upon them, to do anything else. If any verdict could be said to have been implicitly ‘directed’, this was it. Far greater responsibility for this miscarriage of justice rested upon the commissioners, primarily upon those who helped to formulate the indictment, but ultimately upon all of them, for not speaking out against it at the trial. The justices of the King’s Bench and of Common Pleas, even before they were assigned to the commission of oyer and terminer, were at fault insofar as they participated in preparing the indictment or not protesting against it, and all of the commissioners were guilty of injustice in letting the conviction stand. More was not in fact guilty of violating the statute. He did not maliciously strive by words or deeds to deprive Henry VIII of his title of Supreme Head of the Church in England.”xliv
More and Bishop Fisher are today honored by the Roman Catholic Church on the same day, June 22, the date of Fisher’s execution. All martyrs for the Faith are deserving of the highest degree of veneration, having refused to deny the teaching of Christ even to the point of giving their own lives.
In these times of worldwide apostasy and heresy, however, it seems even more appropriate to hold up men like Fisher and More as examples of what a Christian man should be, whether he be clergy like Fisher or a devoted layman like More. Both literally died for that essential precept of the Church, the authority of the Holy See as given to Peter by Christ Himself, in a case where the pope was in practice standing for the word of Christ as to the permanence of sacramental marriage. Today, one fears that few, if any, bishops, and probably also very few laymen, would be willing to live up to these examples. Would that it were not so, and let us all pray for a return to their level of dedication and faith in the One, Holy, Catholic and Apostolic Church.
iJ. Duncan M. Derrett, The Trial of Sir Thomas More, in Sylvester, R.S. and Marc’hadour, G.P., eds., Essential Articles for the Study of Thomas More, Hamden, CT, 1977, pp. 55-78, 591-6, revised from original form in the English Historical Review 79 (1964), 449-77, cited in Kelly, et al., note ii., below.
iiKelly, Henry Ansgar, Karlan, Louis W. & Wegemer, Gerard B., eds., 2011. Thomas More’s Trial by Jury: A Procedural and Legal Review with a Collection of Documents. Woodbridge, Suffolk, U.K.: The Boydell Press.
iiiCenter for Thomas More Studies, University of Dallas: https://thomasmorestudies.org/docs/More_as_Statesman.pdf
ivAckroyd, Peter. 1998. The Life of Thomas More. New York: Doubleday.
vii The Correspondence of Sir Thomas More, 524, 498, cited in Ackroyd 1998, 271.
viiiSee also Center for Thomas More Studies, https://thomasmorestudies.org/library.html , The Dialogue Concerning Heresies, © CTMS, for free online version with study guides.
ixAckroyd, 1998, 281.
xIbid., 272-3; See also https://famous-trials.com/thomasmore/990-chronology, for June 21, 1529)
xiUltimately, no decision was ever rendered on the legatine trial, and in 1530, Clement VII made peace with Charles V and crowned him Holy Roman Emperor.
xiiAckroyd, 1998, 287.
xv The pope had granted dispensation for Henry’s marriage to Catherine to deal with the very issue Henry now raised in attempting to attack the validity of the union, that of the Biblical injunction against marrying one’s brother’s widow. See https://www.britannica.com/biography/Henry-VIII-king-of-England/Loss-of-popularity
xviAckroyd, 1998, 289.
xix Ibid., 296, quoting Roper, William, The Life of Thomas More, in Two Early Tudor Lives, ed. R.S. Sylvester and D.P. Harding (New Haven and London, 1962)
xx Ackroyd, 1998, 296-303.
xxii Ibid., 321-2.
xxiii Ibid., 323-4.
xxiv Ibid., 328.
xxv Ibid., 330-4
xxvii Ibid., 358.
xxviii Gee, Henry and Hardy, William John, eds., 1914., pp. 247-9. Documents Illustrative of English Church History. London: Macmillan.
xxix Ackroyd, 1998, 364.
xxx Ibid., 365, 373
xxxi Ibid., 379.
xxxii The Correspondence of Sir Thomas More, 557, cited in Ackroyd 1998, 387.
xxxiii Ibid., 384-92.
xxxiv Kelly, et al., 2011, p.4, citing Bellamy, John G., The Tudor Law of Treason, London, 1979, p. 145.
xxxv Kelly, et al., 2011, 7-8. The entire Latin text of the lengthy indictment, with English translation, appears as “Document 16” at pp. 175-85.
xxxvi Ibid., 6.
xxxvii Ibid., 3-4.
xxxviii Ackroyd, 1998, 399.
xxxix Kelly, et al., 2011, 8-10.
xl Pole, Reginald, 1539, Pro ecclesiasticae unitatis defensione (Rome); repr. Farnborough, 1965, fols 89v-90, edited and translated in Kelly, et al., Doc. 19. For an English translation of the whole work, see Dwyer, Joseph G., 1965, Pole’s Defense of the Unity of the Church, Westminster, MD.; cited in Kelly et al. at p 8
xli Kelly, et al., 2011, 8-9.
xliii Linder, Douglas O., The Trial of Sir Thomas More: An Account, https://famous-trials.com, University of Missouri-Kansas City Law School, 1995-2020.
xliv Kelly, et al., 2011, 48-9.