A man of conscience for our time

I recently attended an excellent conference on St. Thomas More’s trial at the University of Dallas. Sir Thomas, who had been Lord Chancellor of England under Henry VIII, was imprisoned in the Tower of London for refusing to swear an oath that parliament had prescribed. For his refusal, he was convicted by a legislative bill of attainder for ‘‘misprision of treason” (being silent about someone’s treason), which resulted in life imprisonment and the confiscation of all his property.

This bill of attainder, which is a judgment of guilt passed by parliament, is expressly outlawed in our United States Constitution. If people are to be convicted of crimes in the United States, it must be by judicial trial, not by legislative vote. (Impeachment or removal from office, of course, is another matter.)

More was brought to trial on July 1, 1535 for the further charge of treason, for allegedly maliciously denying the King’s recently assumed title of “Supreme Head of the Church in England,” which effectively made the king of England rather than the pope of Rome the ultimate authority over the Church there. This separated the Church of England from the Roman Catholic Church, which it had been part of for a thousand years, ever since Pope Gregory the Great sent St. Augustine of Canterbury to Britain to evangelize the Angles.

There were four counts of his indictment, all of which were based on More’s conduct after he was imprisoned in the Tower. It was claimed that his silence on the king’s titles amounted to a malicious denial of them, that his communication by letter with Bishop John Fisher, a fellow prisoner in the Tower, amounted to a conspiracy to deny the king’s title, that he and Fisher had both used the image of a “two-edged sword” (we would say a Catch-22 or “damned if you do, and damned if you don’t”) when describing the statutory requirement to take an oath affirming the king’s titles, and that he had denied that Henry was the Supreme Head of the Church in England in a conversation with Richard Rich, a government official who later himself became Lord Chancellor, when Rich came to the Tower to confiscate More’s books.

Saint Thomas, who first learned of the formal charges at the trial itself (they were read aloud in Latin at the commencement of the trial), replied that according to a well-known maxim of law, “Silence betokens consent,” and thus they could not claim that his mere silence was treasonous. The statute he was alleged to have violated required a malicious denial, by word or deed, of the King’s title. There was no right to counsel in those days, no presumption of innocence, no right to remain silent. Bishop Fisher had burnt the letters that passed between them, and therefore there was no physical evidence of a conspiracy, and Thomas More denied that he had written anything in violation of the statute.

The crucial incriminating evidence was provided by Richard Rich, who testified that More had denied the king’s title in their conversation in the Tower. More swore that he did no such thing. The jury took fifteen minutes to return a guilty verdict, after which More argued that the statute under which he was convicted violated Magna Carta, the first provision of which had guaranteed the freedom of the Church in England from temporal interference, and the King’s own coronation oath. But there was no judicial review recognized for what we would call unconstitutionality, and the presiding judge ruled that “if the Act of Parliament be not unlawful, then is not the Indictment, in my conscience, insufficient.” Meaning, presumably, that Parliament is the last word on whether a law is legally binding. So he was judged guilty, and condemned to the violent death of a traitor.

He was beheaded on Tower Hill on July 6, 1535 for following his conscience, which was thoroughly Catholic. The United States Constitution only allows conviction for treason by overt act, proved by the testimony of at least two witnesses. As we have seen, there was no overt act in the case of More, and there was only one witness against him, who most probably perjured himself.

We now enjoy rights under our constitutional system which were denied St. Thomas, like the right to remain silent, the right to counsel, the presumption of innocence, and the ability to challenge the constitutionality of laws. As G.K. Chesterton wrote in 1929, almost a century ago, “Thomas More is more important at this moment than at any moment since his death, even perhaps the great moment of his dying; but he is not quite so important as he will be in about a hundred years’ time.” Which is roughly now.

Here in Massachusetts and in the United States, pressures to conform to the anti-Christian dictates of political correctness and override the rights of conscientious objection, whether it be in the area of abortion, embryonic stem cell research, homosexual marriage and adoption, are on the rise. St. Thomas More, whom Pope John Paul II proclaimed patron saint of statesmen in the year 2000, is truly more important than ever.

Dwight G. Duncan is a professor at Southern New England School of Law. He holds degrees in both civil and canon law.