Early in the 1942 movie Casablanca, we’re treated to a memorable scene. Renault, the police captain, sitting on the terrace outside the café, says to Rick:
I have often speculated on why you don’t return to America. Did you abscond with the church funds? Did you run off with a senator’s wife? I like to think you killed a man. It’s the romantic in me.
Rick answers nonchalantly, ‘It was a combination of all three’. Renault, who doesn’t believe him, asks, ‘And what in heaven’s name brought you to Casablanca?
‘My health’, replies Rick. ‘I came to Casablanca for the waters’.
‘Waters, what waters’, demands Renault. ‘We’re in the desert’.
Looking Renault straight in the eye, Rick delivers the classic one-liner. ‘I was misinformed’.
And so, I shall argue, are we. You’ll have spotted the allusion in my title. Forty years ago, David Knowles gave a lecture, published in the Ampleforth Journal. This little-known piece has much to commend it – Knowles was a virtuoso historian who knew you always have to go back to the documents; but in one respect he too was misinformed.
One of the key sources – or so we’re told – for More’s life and career is the earliest biography by William Roper, The Life of Sir Thomas More, Knight. Roper, More’s son-in-law, wrote in the 1550s to show that ‘in his days’, More had been ‘accompted’ a man ‘worthy perpetual famous memory’. More’s champions twenty years after his death sought to refute the slur that his ‘silence’ in the Tower and reluctance to affirm the papal plenitude of power, put him in a lower division of martyrs to John Fisher, who had unequivocally denied Henry VIII’s Act of Supremacy and proclaimed that of Pope. The public slur was at the burning of Archbishop Cranmer at Oxford in 1556, when Dr Henry Cole preached that ‘it seemed meet, according to the law of equality, that as the death of the Duke of Northumberland of late made even with Thomas More Chancellor … so there should be one that should make even with Fisher of Rochester’.
This was tit-for-tat with compound interest. The deaths of Bishops Ridley, Hooper and Ferrar, Cole maintained, ‘were not able to make even’ with Fisher. It ‘seemed meet’ that Cranmer should be joined to them ‘to fill up their part of equality’. (Incidentally, I should make plain the account of the sermon is from a Catholic eye-witness and not from the more partisan John Foxe’s Acts of Monuments.) In other words, Fisher’s martyrdom was worth four times as much as More’s.
Roper first drafted his ‘Life of More’ in the reign of Edward VI when he had plenty of spare time, then revised it for possible publication in the reign of Mary Tudor, when Roper’s daughter and own son-in-law were among the Catholic Queen’s privy chamber intimates and Roper needed a boost to his reputation after voting in Parliament against the bill to confiscate the property of the Protestant exiles. Roper tells us for what it was More died, but he wrote long after the events he describes. He purports to quote More’s exact words to his accusers at his trial at Westminster hall on 1 July 1535:
Forasmuch as … this indictment is grounded upon an act of Parliament directly repugnant to the laws of God and His Holy Church, the supreme government of which, or of any part whereof, may no temporal prince presume by any law to take upon him, as rightfully belonging to the See of Rome, a spiritual pre-eminence by the mouth of our Saviour himself, personally present upon the earth, only to St Peter and his successors, bishops of the same see, by special prerogative granted, it is therefore in law amongst Christian men insufficient to charge any Christian man.
So here we have it – except, of course, we don’t. David Knowles thought these were More’s words, but I’m afraid they really can’t be. One of the things we know More had always questioned was that the Pope’s authority was ordained by Christ. More was a papal minimalist. He believed the General Council was the superior authority in the Church. It was Fisher who was the papal maximalist. In Fisher’s sermon at the first English condemnation of Luther at St Paul’s in 1521, he held that the Pope was the head of Christ’s universal Church jure divino (‘by the law of God’). In his ‘Refutation of Martin Luther’, Fisher argued that the Pope, like Christ, possessed the plenitude of power. While not expressly committing himself to papal infallibility (not of course finally decided until the First Vatican Council in 1870), Fisher exalted the Pope’s role in the Church in extravagant language. The Pope was above the General Council. He had ‘supreme authority’ within the Church. No one on earth was superior.
More’s position was different. In all his voluminous writings, he avoided identifying authority in the Church with any one individual. The Pope, he readily informed Cromwell, was not above the General Council, which could depose an unworthy Pope. More’s conciliarism was qualified. He insisted that the General Council should be ‘lawfully’ assembled. The Pope could only be deposed for reasons of ‘incorrigible mind and lack of amendment’. Although the Pope was not above the General Council, the Council was not itself above the Pope unless the Pope had sinned and failed to acknowledge correction. More saw the General Council and the Pope as interdependent. And there was hardly a practical alternative, since the Council met infrequently. Whether a valid Council had been held since the fourth Lateran Council of 1215 was a point of debate, since the papacy refused to recognize the Councils convoked during the Great Schism (1378-1415), and the fifth Lateran Council of 1512-17 was poorly attended. In practice, More accepted papal authority – superiority in fact – for reasons of administrative and human convenience. What he never said was that the papacy was divinely ordained, as Roper said he said.
When Roper purports to quote More in the ‘Life’, he’s scripting the story for posterity. As any student of Renaissance literature knows, these early biographies were a genre. They dramatised the classical or recent past, merging fact with fiction to shape images of virtue or vice, putting speeches into the mouths of the leading characters to score moral or polemical hits. Roper is telling us not what More said, but what he ought to have said. He wrote on the testimony of hearsay, and in a quite different Reformation context to that of 1535.
So what really happened at More’s trial? The most important document is the indictment, which sets out the Acts of Supremacy and Treason, before alleging that More ‘falsely, traitorously and maliciously’ imagined and conspired to deprive the King of his title of ‘Supreme Head on Earth of the Church of England’. Eight treasonable acts were grouped under four counts. The first count held that at an interrogation on 7 May 1535, More had ‘maliciously’ refused to accept the King’s supremacy. To the questions posed by Thomas Cromwell and his legal team, More had replied: ‘I will not meddle with any such matters, For I am fully determined to serve God, and to think upon his passion and my passage out of this world’.
The second count claimed that on 12 May, More had written letters to Fisher, allegedly a known traitor, who was also attainted and imprisoned in the Tower for offences against the Act of Succession. More had upheld Fisher in his treasonable attitude and acquainted him with his own refusal to give an opinion on the Act of Supremacy. In these letters, More had criticised the Act. He had said: ‘The Act of Parliament is like a sword with two edges, for if a man answer one way it will confound his soul, and if he answer the other way it will confound his body’. On 26 May, More had written again to Fisher, advising him to answer spontaneously at his own interrogations and not to make use of any words or phrases from More’s letters smuggled to him in the Tower in case they became the grounds of a charge of conspiracy. Notwithstanding such advice, Fisher on 3 June had refused to answer on the supremacy, and had replied with words taken from More. He had said, ‘I will not meddle with that matter, for the statute is like a two-edged sword. And, if I should answer one way, I should offend my conscience. And if I should answer the other way, I should put my life in jeopardy; wherefore I will make no answer to that matter’.
The third count charged that on that very same day, More, when further examined, had ‘maliciously’ persevered in his silence, repeating the metaphor whereby the Act was likened to a two-edged sword. He had ended by saying: ‘Wherefore I will make thereunto none other answer because I will not be occasion of the shorting of my life’. To conceal their treasonable conspiracy, More and Fisher had burned their letters.
The fourth count was the big one. On 12 June, More in a long conversation with the Solicitor-General, Sir Richard Rich, was alleged to have admitted that the King might be accepted as Supreme Head of the Church of England, but denied that Parliament had the power so to declare him, thereby ‘maliciously’ depriving the King of his title. The conversation, according to the indictment, went like this. Rich had urged More to comply with the Acts, to which More replied: ‘Your conscience will save you, and my conscience will save me’. Rich then, protesting that he had no commission to examine More officially, put a ‘case’. Supposing it were enacted by Parliament that Rich should be King, and that it should be treason to deny the same, what would be More’s opinion? More agreed that Parliament had the power to make Rich King and that it would be an offence if he were then to deny it. He could be ‘bound’ by such an Act, because ‘he was able to give his consent to it’. But he said that the example was a ‘light case’. He then put a ‘higher case’. He asked Rich if an Act of Parliament could declare that God were not God. Rich conceded that Parliament could not do that. Rich then proposed a ‘case in the middle’. He cited the Act of Supremacy and asked why More should not accept this for the same reason as he had accepted that Parliament could make Rich King. More answered that the cases were not alike: ‘because a King can be made by Parliament and deprived by Parliament’, to which Act every subject ‘may give his assent’ in Parliament. On the other hand, a subject ‘cannot be bound’ to the royal supremacy, ‘because he cannot give his consent to that in Parliament’. And he added, although the King was accepted as Supreme Head in England, ‘yet many foreign places do not affirm the same’. This is what the indictment claimed was said.
The special judges who sat in King’s Bench on 1 July 1535 were Lord Chancellor Audley, Cromwell, the Dukes of Norfolk and Suffolk, the Earl of Wiltshire (Anne Boleyn’s father) and other privy councillors reinforced by the regular judiciary. A fortnight or so before, pretty much the same group had sentenced Fisher and a number of the London Carthusians to death. The Attorney-General, Sir Christopher Hales, led for the Crown. He was assisted by Rich as Solicitor-General. This was not regarded as improper, even though Rich was the prosecution’s chief witness. The prisoner had no copy of the indictment, no witnesses and no legal counsel. This was standard in treason trials. If a prisoner wished to demur to the indictment or raise a point of law, the courts were able to assign counsel, but otherwise the accused had to plead his own cause. The responsibility for ensuring ‘fairness’ (whatever that was in the circumstances) lay with the professional members of the judiciary and with the jury. In More’s case, the lack of counsel was no impediment, since he could equal or outshine the best legal minds. His disadvantage was that the jury had been rigged. Some have alleged the foreman was bribed, but I have yet to see the proof. What we can reasonably say is the jury included a man who diced regularly with Henry VIII and a City draper and informer called John Parnell, an aggrieved Chancery litigant who’d accused More of a corrupt judgement, and who’d gone on to marry the widow of one of the early Protestants More had put in the Tower for heresy, where this same unfortunate Protestant had died.
More heard the charges against him for the first time when his indictment was read out and he was arraigned. He was then required to plead to the indictment. He first tried a professional argument. He claimed that none of the charges constituted an offence under the Act of Treason, since the signs of ‘malice’ seemingly required by the Act to prove his criminality were not disclosed.
More lost this plea. The professional judges ruled that, if the words alleged were spoken, then by the presumption of the law ‘malice’ was shown, in the same way that indictments for theft or trespass were always ‘against the King’s peace’, even if no force was involved. If you’d said it, it was ‘malicious’ whether or not you’d said it with malice aforethought.
More then took a different tack. He argued that the first three counts of the indictment did not amount to a constructive offence and should be quashed. He accepted the facts as stated in these three counts, but pleaded that even if his refusal to answer were construed as an ‘act’, the legal presumption was that of the civil law maxim, qui tacet consentire videtur – ‘he who keeps silence seems to consent’. There is, course, no doubt that More said what he was said to have said in these early counts of the indictment. He’d said these things both in his letters to his daughter and friends, some of which still survive , and which had doubtless been intercepted as they left the Tower before being allowed through to their addressees, and he openly said them again to Cromwell and his interrogators when he’d been questioned.
The professional judges upheld More’s plea, with the result that three-quarters of the Crown’s case collapsed. Suddenly he was ahead of the game.
To the fourth count, More pleaded ‘Not Guilty’. This was not from choice. The right to challenge the validity of an indictment by claiming that it was insufficient in law, or that the Act upon which it was based was void, was not yet open to More procedurally. He would challenge the facts of the fourth count and the validity of the Act of Supremacy later in his trial, but for the moment he had to accept that the fourth count was legally sufficient in the eyes of the bench, since he’d already lost the argument that the word ‘maliciously’ did not require evidence of ‘malice’ to be disclosed.
When More’s plea was entered, Sir Richard Rich gave his evidence for the Crown. We know – and David Knowles showed splendidly in his lecture – that the opinion of the Act of Supremacy attributed to More in the indictment was true in the sense that it closely corresponded to More’s own elliptical statements in his Tower letters. These were More’s views: the difference is – and this was agreed by prosecution and defence – it was only in his conversation with Rich that he’d ever said anything potentially within the scope of the Treason Act. Talking about ‘two-edged swords’ that were as dangerous to the soul as the body was to say exactly what More meant, but no one had yet been executed for a metaphor. We know exactly what More’s metaphor implied. If he denied the Act, he was a dead man. If he accepted it and took the oath of supremacy he was damned for ever in hell. But in saying things this way, he had not overtly denied the Act.
It all turns on the conversation between More and Rich. By a stroke of luck, a verbatim transcript of it by Rich is extant in the version presented to Cromwell. ‘So what use is that?’, you may be saying? Rich is bound to have fibbed. But in fact, this document can be made to sing for its supper and there is far more in it than one might at first sight suppose. It is damaged by damp and vermin and its text can be read only under ultra-violet light. Rich reported that More had said:
‘A King [ma]y be made by Parliament and a King deprived by Parliament to which act any [of his] Subjects being of the Parliament may give his consent, but to the case … [in question] a Subject can not be bound by cause he cannot give his consent … [in] Parliament Saying further that although the King were accepted in England [as Supreme Head] yet most Utter [i.e. foreign] parts do not affirm the same’. Whereunto the said Rich said, ‘Well Sir, God comfort you for I see your mind will not change, which I fear will be very dangerous to you, for I suppose your concealment to the question that hath been asked of you is as high offence as other than hath denied it, and thus Jesus send you better grace’.
The giveaway is in the last sentence. When Rich left the Tower, he did not believe that More had said anything new. Or to be precise, the whole conversation had been privileged. As the indictment had all along hinted and as other passages of Rich’s memo that I’ve not quoted here expressly confirm, this conversation fell within the legal limits of ‘putting of cases’, the protocol at the inns of court which professional lawyers used to argue hypothetical ‘cases’ in readings and moots. Sometimes these cases were very close to real cases, but they were still treated hypothetically, since otherwise a case that was still sub judice might be prejudiced by an opinion expressed by a judge or senior barrister in the audience. More and Rich began their conversation in this mode, and when Rich proposed a ‘case in the middle’, he invited More to continue the protocol. It would appear from his memo that Rich – at the stage he wrote it and submitted it to Cromwell – had not attempted to pervert anything.
Perhaps Cromwell knew better? More’s defence relied on professional privilege, which was subtle, perhaps too subtle for a jury, especially one that had been rigged. Cromwell may have thought it possible to secure a conviction on the basis of the words that More had actually spoken, as long as the jury had been directed that if More had spoken the words as alleged in the indictment, he was guilty of treason under the Act.
Or perhaps More slipped somewhere in his dealings with Rich and crossed the line? This is the verdict of Sir Geoffrey Elton, my own former teacher whose masterly study of Cromwell and the enforcement of the Henrician Reformation ends with a reassessment of More’s interrogations and trial. It is entirely possible. My objection to Elton is that the account of More’s words as reported by Rich in his memo does not disagree in the slightest with the fourth count of the indictment. So, if More crossed the line, what else did he say, and when?
Perhaps Rich panicked in the electric moment when the judges quashed the first three counts of the indictment and he was waiting to take the witness stand? Perhaps to help secure the conviction that he knew Henry VIII demanded, he embellished his story, or else did not make it completely clear that the context of his conversation with More was hypothetical? This is the view of Richard Marius, More’s most distinguished modern biographer.
Or perhaps Rich decided to commit perjury in the interval between the conversation and the trial? That is the pivot of Roper’s account. Roper reports Rich as ending his witness testimony with More’s outright denial of the Act of Supremacy. When in the conversation in the Tower, Rich had conceded that Parliament could not enact that God is not God, More is said to have retorted: ‘No more could the Parliament make the King Supreme Head of the Church’. According to Roper’s version of Rich’s evidence, the ‘case in the middle’ was never put. If this was indeed Rich’s testimony, it was false. As a report of More’s conversation with Rich, it is completely improbable. It contradicts Rich’s own transcript. And if More had actually said what he is purported to have said, he would have courted willing martyrdom against the precepts of the Catholic Church. His entire standpoint in the shape of the meticulously nuanced arguments of his Tower letters would be pointless.
Roper’s supposed perjury is the one ‘fact’ about Thomas More’s trial that everyone knows. It ushers in the climax of Robert Bolt’s ‘A Man for All Seasons’ – both in the stage version and in the film directed by Fred Zimmerman that won six Academy Awards. According to Variety, the trade journal of the US entertainment industry, ‘A Man for All Seasons’ is ‘proof’ that a movie ‘without sex, violence or songs’ can be a box office hit. But in a critical respect, Bolt cheated. Richard Rich was his baddie, and every good story needs one. But what was Rich’s motive for his perjury? In ‘A Man for All Seasons’ Bolt invents one. Early in the film while Wolsey is still Lord Chancellor, Rich asks More for a job. He wants to be a politician. More declines. He’ll find Rich a job, but as a teacher. Rich isn’t satisfied. He knows, as indeed we do too, that to be a teacher is to be regarded by those in power as a dud. He’ll be poorly paid and badly treated. So he goes to Cromwell and offers his services as an informer. Cromwell gives him a job, and QED!
Very few people have ever troubled to look beyond Roper’s account of More’s trial. In fact, there are other reports – contemporary ones, written during or within days of the trial and not twenty years later. None mentions Rich’s perjury. The Paris Newsletter, which circulated in French on the Continent within a fortnight, and which contains an accurate summary of the trial, has nothing about Rich. Nor is perjury mentioned in the much fuller Latin report.
In the film of ‘A Man for All Seasons’, Bolt follows Roper almost word for word:
NORFOLK: Repeat the prisoner’s words!
RICH: He said ‘Parliament has not the competence.’ Or words to that effect.
CROMWELL: He denied the title?
RICH: He did.
MORE: In good faith, Rich, I am sorrier for your perjury than my peril.
This image will never be erased from the consciousness of the English-speaking world. With the charge of perjury ringing in his ears, a charge that it is far from certain the historical More had ever levelled, Roper sends Rich straight to hell.
Roper went on to claim that Rich’s two assistants, Sir Richard Southwell and one Palmer, who were present in the Tower, refused to give evidence when called by the Crown as supporting witnesses. (In Bolt’s account they are in Ireland on the King’s business and unavailable.) Roper’s innuendo is that More’s trial was invalid because he was convicted on the evidence of one witness alone, contravening the two-witness rule at common law in treason trials. During the crucial conversation, Southwell and Palmer had been ‘trussing up’ More’s books; it’s presumed that they’d heard what was said. But, says Roper, when put on the witness stand, the pair chickened out, claiming they’d been too distracted to hear anything. No other report of More’s trial mentions the incident. No other report mentions the two witness rule. In fact, there WAS no two witness rule in treason trials in Henry VIII’s reign. The rule was devised by Mary’s Tudor’s judges. It became a legal precedent in the treason trial of Sir Nicholas Throckmorton, a leading Protestant who’d opposed Mary’s marriage to Philip of Spain. Throckmorton got off – he was one of the very few in Tudor England to get a ‘not guilty’ verdict. There had to be a reason, and the one given was there had only been one witness. But this was not previously settled; rather it was debating point among lawyers, which makes it probable Roper all along had Throckmorton’s trial in mind when he finally revised this section of his Life of More.
When given the right of reply at his trial, More submitted that there was no case to answer. He argued persuasively that his conversation with Rich was privileged. He never contested that the words as reported in the indictment were spoken. His defence was that the conversation was ‘off the record’ and so lacked treasonable intent. He said (possibly a little optimistically) that the whole history of his relationship with Henry VIII had been one of mutual trust, and that even if it were alleged that he had withheld his assent to the Act of Succession, he had already been imprisoned for this, and it was a principle of English law that ‘no man can be punished twice for the same offence’.
Every one of these submissions was overruled. The jury was then sent to consider its verdict. They returned after a quarter of an hour with the ‘guilty’ verdict. It is likely they’d been legally directed from the bench that the case turned on a simple issue of fact. Did More speak the words as alleged with Rich? If so, the context of the conversation was irrelevant.
And now the fun really started. Up until this point, More had been forced to bite his lip. So far, he’d given his opinion in a metaphor. But once the verdict was in, prisoners in treason trials had a unique opportunity if they knew the law and were good at public speaking, This was the moment when the prisoner could plead a motion in arrest of judgement. He could legally attack the indictment on the grounds that it was insufficient in law or because the legislation was ultra vires, or void. This had not been possible earlier, but now the moment had arrived. And this is exactly what More did. He spoke out unequivocally.
Lord Chancellor Audley fumbled with the procedure. He began to pass sentence, but More interrupted him. He argued that his indictment was invalid because the Act of Supremacy was repugnant to God’s law and the beliefs of the Catholic Church. The King cannot be Supreme Head of the Church. Human law, which included common law and parliamentary statutes, had to be consistent with God’s law and the law of reason. The law of reason conformed to God’s law and the law of nature, and was recognized by jurists as moral or fundamental law. When human law went against reason, it was void, and an unreasonable Act of Parliament was void.
When Audley interjected that the Act of Supremacy had been approved by the bishops, universities and ‘best learned of this realm’, More spoke to the issue of competence. He answered that Parliament’s competence was to be judged by God’s law and the law of reason as determined by a competent majority. And a competent majority was framed not by reference merely to the ‘well-learned bishops’ and ‘virtuous men’ who happened to be alive at any one time in any particular country or State. It was framed by reference to Catholic tradition since the time of the Apostles: both those who were alive and those who were dead.
According to the European reports of the trial, More cited some contemporary parallels. He argued that, despite threats to establish national churches on the Continent, no schisms had resulted. He named countries, notably France, which had failed to break with Rome despite Henry VIII’s entreaties. The inference must be that moral or fundamental law had dissuaded these countries. Hearing this, the Duke of Norfolk, who had just returned from just such a fruitless mission to France, interrupted to claim that More was showing his resolve to frustrate the King’s policy, thereby demonstrating the ‘malice’ established by the verdict. More denied that his intentions were malicious.
More next addressed the conflict of laws. He held that ‘this realm, being but one member and small part of the Church’ could not legislate in a manner ‘disagreeable with the general law of Christ’s universal Catholic Church’. A local or national law could not override the general law of Christendom in a matter of belief. The fact that there happened ‘to be made in some place a law local to the contrary’ made no difference. ‘No more than the City of London, being but one poor member in respect of the whole realm, might make a law against an act of Parliament to bind the whole realm’. This was the point More made in a letter to his daughter, Margaret, where he argued that a man ‘is not by a law of one realm so bound in his conscience, where there is a law of the whole corps of Christendom to the contrary in matter touching belief, as he is by a law of the whole corps’.
More was in his stride now, speaking out. He alluded to the King’s coronation oath, and implied that Henry VIII had committed perjury by enacting the Reformation statutes when he was sworn to defend the Church and uphold the legislative independence of the Church and clergy as guaranteed by chapter 1 of Magna Carta.
But the crux was ‘conscience’: the point where issues of competence and the conflict of laws intersected. More said that neither individuals nor national States were competent to determine what someone should believe in ‘conscience’. Individuals or national assemblies had no status in the matter, or else anarchy would ensue. ‘Conscience’ must conform to Catholic tradition as this had evolved since the time of the Apostles. The General Council of the Church was the point of reference. The reports are sketchy at this point, but More had fully explained his reasoning in the ‘letter’ sent by his daughter to Alice Alington. In a doubtful case such as the Act of Supremacy, no one could be compelled to swear on oath that the ‘local’ law of a ‘particular’ part of Christendom was lawfully made ‘standing his own conscience to the contrary’, nor could they be bound to change their conscience to conform to that law, except in cases where the General Council of the Church reached a decision in favour of that law. The sole exception was in cases where ‘a general faith grown by the working of God universally through all Christian nations’ reached a consensus that was equivalent to a decision of the General Council. More’s anti-Lutheran writings had always said that the ‘general faith’ of Christendom was the correlative or equivalent of the decrees of the General Council of the Church. He meant that the ‘explicit’ and ‘implicit’ consensus of the General Council and of the faithful was the only infallible sign of the authenticity of a dogmatic position. The Act of Supremacy lacked this ‘consensus’. And so, More concluded, ‘therefore am I not bound, my lord, to conform my conscience to the council of one realm against the General Council of Christendom’.
There was very long silence. Audley seems to have been dumbfounded. At any rate, he stumbled. There was no precedent in living memory for such a plea. Not only was More’s motion a virtuoso performance, it raised moral and philosophical issues of the highest order. Finally, Audley turned to the Lord Chief Justice, Sir John Fitzjames, and asked whether the indictment was sufficient in law or not. He lamely replied, ‘”My lords all, by St Julian” (that was ever his oath), “I must needs confess that if the act of Parliament be not unlawful, then is not the indictment in my conscience insufficient.”‘
Unpick that if you can. More’s motion was rebutted with a double negative; what alternative was there in the King’s court? The presumption was that Acts of Parliament were both reasonable and lawful. More’s adversary in 1533, Christopher St German, when discussing ‘the power of the Parliament’, had made the same presumption. He had given a similar answer to the equivalent of More’s motion: ‘I hold it not best to reason or to make arguments whether they [i.e. Parliament] had authority to do that they did or not. For I suppose that no man would think, that they would do any thing, that they had not power to do.’
I put it to you that the notion Thomas More ‘so silently’ died is one of the most brilliantly constructed myths in the history of religion and the State. Any yet, what did all this mean? What is its historical significance? Two opinions at opposite end of the moral spectrum were expressed by eye-witnesses most likely present in Westminster hall on the day. The author of the Paris Newsletter – almost certainly a French diplomat with a ringside seat in Westminster hall – recounts More’s motion in arrest of judgement as delivered ‘for the declaration of [his] conscience and satisfaction of [his] soul’. Far more mundanely, Sir John Spelman, one of the professional judges, who was sitting on the bench and whose notes on the trial survive, regarded More’s motion as a technical legal plea addressed to the insufficiency of the indictment and the lack of competence of the Act of Supremacy. He wrote: ‘[More was] found guilty, and the said Chancellor gave judgment. And the said More stood firmly upon the statute of 26 Hen. 8, for he said that the Parliament could not make the king Supreme Head, etc.’.
Spelman found it reassuring that More in the end spoke out unequivocally, removing any residual doubt that he had denied the royal supremacy and so making it clear that he was – after all – a traitor. More’s discussion of ‘conscience’ didn’t seem to interest him.
Bolt’s ‘A Man for All Seasons’ creates the myth that More’s motion in arrest of judgement was a defence of individual conscience. Plainly it was not. It was a defence of an individual’s right to frame his or her own ‘conscience’, but the operative framework wasn’t that of individual opinion. Quite the reverse. Thomas More held that the Church was never to be judged by such opinions. The view that individuals could read the Bible and then make judgements about religious doctrine and the Church was a Protestant position. Catholic ‘conscience’ was rooted in the ‘consensus’ or ‘common faith’ of Christendom, whether this was ‘explicit’ in the decrees of the General Council of the Church or ‘implicit’ in the ‘general faith grown by the working of God universally through all Christian nations’.
More’s agenda was rooted in his view of authority and tradition. The key was the Catholic oral tradition. His anti-Lutheran writings argued that Catholic tradition not expressly warranted by Scripture was as valid as if documented in Scripture, providing it was authenticated by the Church. The test of what was authenticated by the Church was ‘consensus’. The Church was not to be judged by the opinions of individuals, even if their beliefs were rooted in what they held to be Scripture. Only the ‘consensus’ of the Church could canonize Scripture. And the oral tradition was equally if not more important. God had revealed himself to his Church ‘partly by writing, partly without, and that in those two manners the revelations of God still abide and continue in his church’. The Holy Spirit inspires consent, whereupon ‘we believe as well the church concerning God’s words taught us by the church and by God [en]graved in men’s hearts without scripture, as his holy words written in his holy scripture’.
The effect of More’s view of ‘conscience’ is demonstrated by his tussle with Audley and Cromwell in the Tower. They told him that in the last resort, the King might compel him ‘by his laws’ to make a ‘plain answer’ to the royal supremacy ‘either the one way or the other’. More said he would not ‘dispute the King’s authority’, but ‘it seemed to me somewhat hard’. If ‘conscience’ indeed ‘gave me against the statutes’, then ‘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’.
Cromwell retorted that this scruple of ‘conscience’ had not weighed in More’s judgement when he and the bishops had examined suspected heretics while he was Lord Chancellor. An oath ex officio was used to compel the heretics ‘to make a precise answer’ to the questions. Where was the difference? Why could the King, now that the Act of Supremacy was passed, not ‘compel men to answer precisely to the law here?
More had his answer ready. The two cases were not alike. The ex officio oath could only be used in conformity with the received doctrines of the Catholic Church. ‘I said there was a difference between those two cases because that at that time as well here as elsewhere through the corps of Christendom the Pope’s power was recognized for an undoubted thing’. It was not ‘a thing agreed in this realm and the contrary taken for truth in other realms’. In the absence of an ‘explicit’ or ‘implicit’ Catholic ‘consensus’, there could be no requirement for a man to be ‘bound’ in conscience.
Cromwell answered grimly, ‘They were as well burned for the denying of that as they be beheaded for denying of this, and therefore as good reason to compel them to make precise answer to the one as to the other’. But More didn’t get it. He thought the cases were morally different. ‘Obstinate’ heretics were ‘well burned’. He had repeatedly said so. The heretics were not allowed consciences, since they’d deviated from the authority and tradition of the Catholic Church. Individual opinions of conscience were not admissible. They were not protected by the law of reason. As More concluded, ‘the reasonableness or the unreasonableness in binding a man to precise answer standeth not in the respect or difference between beheading or burning, but because of the difference in charge of conscience, the difference standeth between beheading and hell’.
In the Preface to the stage version of ‘A Man for All Seasons’, Bolt imagines More as a man who possesses ‘an adamantine sense of his own self’. He knows exactly how far he will bend; he becomes unyielding when asked ‘to retreat from that final area where he located his self’. Thereafter, this ‘supple, humorous, unassuming and sophisticated person set like metal’. He could ‘no more be budged than a cliff’. All this makes for thrilling drama, but misplaces the way that the historical More understood his ‘conscience’. At one point, Bolt has More say to the Duke of Norfolk: ‘what matters to me is not whether it’s true or not but that I believe it to be true, or rather not that I believe it, but that I believe it’.
This definition of conscience is not More’s. It’s the one which Cranmer and his fellow advisers crafted for Henry VIII in the later stages of his divorce suit, and which the King was soon citing vigorously against the Pope. Henry argued that the Pope could be lawfully resisted when a man was guided by ‘conscience’ or ‘private law’ as written in his heart by the Holy Spirit. In the public sphere, the moral law was ‘established and confirmed’ by the agreement of all nations and was perpetual. It was the foundation of ‘public law’. This element of Henry’s argument is not so far from More’s. But Henry also maintained that the Holy Spirit could inscribe the moral law on the hearts of individuals. The result was ‘private law’, which ‘is of more dignity than the public law’. It was ‘private law’ which moved an individual’s ‘conscience’. And when a man was ‘moved by the private law of his conscience’, there was ‘no reason’ why ‘he should be bound to the public law’. ‘Conscience’ sets a man free. Its dictates must be obeyed, especially when a man discovers that his marriage is against God’s law! A man whose ‘private conscience’ tells him that his marriage is unlawful is ‘bound to make a divorce with her’. As Henry VIII finally perfected the soundbite, ‘We must obey our conscience: and in other things the church’.
That Henry VIII – not Thomas More – believed ‘Yes, a man’s soul is his self!’; ‘what matters to me is not whether it’s true or not but that I believe it to be true, or rather not that I believe it, but that I believe it’ is the final twist. Roles are reversed and ‘history’ is seemingly rewritten. The trouble with any discussion of ‘For what did Thomas More so silently die’ is that we always seem to end up back in Casablanca.