Thomas More, we now know, was a sage and a saint, but was he guilty of the formal charges that led to his execution on July 6, 1535? Blamelessness before God and before the bench are often two different issues: Dietrich Bonhoeffer, for instance, was a courageous Christian witness, but he was also accused, not incorrectly, of conspiring to assassinate the leader of the Third Reich.
Questions about the justice or injustice of More’s trial propelled a fascinating conference held last month at the University of Dallas. “Thomas More on Trial,” the fourth annual conference of the Center for Thomas More Studies, drew a rare mix of humanities scholars and legal experts approaching the last days of Thomas More from their respective disciplines. The result was a lively and unpredictable discussion on More’s writings, thought, legal skills, probity, and, of course, trial, which took place on July 1, 1535.
Every aspect of the trial was scrutinized. What did it mean to take an oath in the sixteenth century? What were More’s legal rights, and were they respected? Was due process observed during the trial? Did Richard Rich perjure himself, or did he merely misremember his conversation with More that became the most damning piece of evidence submitted? How much pressure were the judges and the jury under from Henry VIII? Which, if any, of the four extant accounts of the trial is the most accurate? And how did More ensure that his side of the story would be heard through his writings without incurring further suspicion of treason?
The conference was filled with surprises. For instance, did you know that we have no copy of the oath which More famously refused to take? That no official transcript of the trial was made? That we are not certain whether there were one, three, or four formal charges? That, contrary to current legal practice, the more grave the case, the fewer the rights of the accused? That More’s civil rights, as defined by English law at the time, may have been more or less respected? In other words, there was nothing procedurally unusual about More spending years imprisoned in the Tower of London, undergoing several interrogations, being suddenly brought to court for trial, and hearing the charges against him (read in Latin) for the first and only time. And there was considered nothing untoward in having judges sitting on the bench with a vested interest (to put it mildly) in seeing More condemned, such as an uncle, a brother, and the father of Anne Boleyn.
As for those charges, there were at most four in number: that Thomas More maliciously refused to acknowledge the king’s supremacy over the Church in England; that he had conspired against the king with Bishop John Fisher; that he had instigated sedition by calling the Act of Supremacy a two-edged sword; and that he had, according to the testimony of Richard Rich, “maliciously, traitorously, and diabolically” denied Parliament’s power to declare the king head of the English Church.
The conference had an impressive line-up of knowledgeable speakers, but the arguable highlight (besides a dramatic reenactment of the trial that bore an eerie resemblance to the Good Friday reading of the gospel) was a panel of four judges, including Sir Michael Tugendhat, Judge of the High Court of England. The justices were given the task of assessing More’s trial, and their differing evaluations were intriguing. Chief District Judge Sidney A. Fitzwater from the Northern District of Texas referred to the verdict as “a legal killing,” while Judges Jennie Jatta (a bankruptcy judge from the Western District of Tennessee) and Sir Michael Tugendhat stressed the difficulty of passing judgment on a world as alien to us as sixteenth-century England (Sir Michael quoted an English proverb: “The past is a foreign country. They do things differently there”). Edith Jones, Chief Judge of the U.S. Court of Appeals for the Fifth Circuit, saw several substantive and procedural injustices in the trial and remarked that the case “shows the ultimate infirmity of the law,” an infirmity that the legal profession tries to minimize but cannot fully eliminate.
But was Thomas More guilty of high treason? Much depends on the technical meaning of malice, which features in two of the alleged counts, including the fourth and most important. (One of the controversial parts of the trial is that the presiding justices shouted “Malice!” several times during the proceedings, a practice which certainly must have affected the nervous jury and led to their verdict in a breathtaking fifteen minutes.) If malice means a mere intent to violate an Act of Parliament, then More was arguably guilty. But if malice means something more, such as the deliberate will to harm, then More was probably innocent, for his actions appear to have sprung from a genuinely charitable desire to serve his king even when disobeying him.
The issue of malice was particularly interesting since it shows some affinity to our current worldwide and aggressively expanding body of legislation against hate speech. On November 9, the morning after the two-day conference ended, a Dallas pastor was accused by angry protesters of hate speech for offering a sermon entitled, “Why Gay is not OK.” Like the broad use of “malice” which afforded judges and jury the legal cover to oblige the will of their ambitious monarch, one wonders whether the evolving definition of hatred will one day indict every criticism of a group that has garnered political or social sympathy, no matter how respectful, loving, or dispassionate that criticism may be.
When his sentence of execution was given, More said to his judges, all of whom he knew from his own tenure as chancellor:
More have I not to say, My Lords, but that, like as the Blessed Apostle St. Paul, as we read in the Acts of the Apostles, was present and consented to the death of St. Stephen, and kept their clothes that stoned him to death, and yet be they now both twain holy Saints in Heaven, and shall continue there friends for ever, so I verily trust and shall therefor [sic] right heartily pray, that though Your Lordships have now here in earth been Judges to my condemnation, we may yet hereafter in Heaven merrily all meet together, to our everlasting salvation.
The statement is classic More. It reveals his authentic desire for a happy reconciliation and a heart as forgiving as St. Stephen’s. But there is a subtext here as well. If More is St. Stephen in this comparison, then the English High Court is Saul of Tarsus, with the blood of a martyr on its hands. More is no doubt sincere in hoping to see these latter-day Sauls eventually become repentant Pauls, but the analogy presupposes their guilt, not his. Regardless of what we today may conclude about More’s legal innocence, there is little question about where More himself stood on the matter.
Perhaps the greatest surprise regarding this trial is not its outcome but its relative neglect. In an era that likes to talk about this or that “trial of the century,” it is astonishing that a capital case involving a first-rate legal mind, philosophical thinker, literary humanist, and, oh yes, canonized saint should have been on the backburner of our collective attention for so long. That, at least, is one injustice which the Center for Thomas More Studies has done much to correct.
Michael P. Foley is an associate professor of Patristics who teaches in the Great Texts Program at Baylor University. He is the author of Why Do Catholics Eat Fish on Friday? The Catholic Origin to Just About Everything (Palgrave Macmillan, 2005) and Wedding Rites: A Complete Guide to Traditional Vows, Music, Ceremonies, Blessings, and Interfaith Services (Eerdmans, 2008).