“Qui tacet consentire videtur”: Sir Thomas More, the Act of Supremacy, and the Defining Trial of Tudor England

The day the ax fell on the neck of Sir Thomas More, July 6, 1535, was the day that the approach to the practice of law and the enumerated powers of the English monarch were forever changed and consummated. More, who had served as Lord Chancellor of England from 1529 through 1532 for Henry VIII, was charged with treason upon refusing to assent to the Act of Supremacy. His legal battle between 1534-35 is marked with brilliant moments of legal nuance that More had long employed as a lawyer, yet it proved insufficient to save his life. Sources, both among More’s contemporaries and those of today, look to More as a hallowed being: a saint and martyr in the Roman Catholic Church, a historical precursor to the modern concept of the conscientious objector, and a man dedicated to a sense of civil servitude that is intrinsically intertwined with one’s own conscience. While each of these claims are justified in their own right, it still begs the question as to whether or not what happened to More was just; whether his imprisonment, trial, and execution were all legal processes and extensions under the law of Tudor England? It is easier for the contemporary corpora of thought to condemn the actions of Henry’s government, yet legal procedure during the sixteenth century and the powers of the monarch and Parliament that condemned More were in a state of flux. Was Sir Thomas More, scholar and martyr, proven to be justifiably wrong?

Henry VIII was a steadfast opponent against Lutheranism as it quickly spread across the continent, remaining faithful to the Catholic Church.[1] However, this changed when Henry’s first wife, Catherine of Aragon, could not produce a male heir. Seeking a son, Henry attempted to divorce Catherine on the grounds that the marriage had been canonically invalid.[2] With his petition for an annulment of the marriage denied by the Pope, Henry sought legitimate ways to end the marriage and marry his mistress, Ann Boleyn.

Henry was concurrently being influenced by the works of William Tyndale, a Protestant theologian and political philosopher, who was one of the first to assert that a monarch’s power is derived not from the governed, but from God himself.[3] Although More rejected this notion, Henry was rather taken with it. This idea of divine rule coupled with the concern for a legitimate heir, as well as the various forces working to move Henry away from the Church of Rome, created the perfect storm for Henry to break from the Catholic Church and assert his dominance over his realm in the 1534 Act of Supremacy.[4]

Although the Act of Supremacy was preceded by both the law of praemunire as well as the 1533 Statute in Restraint of Appeals, this was an unprecedented step. The Act, which required a fealty oath on penalty of treason, posed a serious problem for Catholics. This would mean a rejection of the authority of the Pope, of the precepts of the Catholic Church, and a condemnation of their souls per opera sua. This was especially significant for More, an ardent supporter of the Church.

More resigned as Chancellor, refused the oath, and was imprisoned. While awaiting trial, More rejected the oath of fealty several more times. During his imprisonment, Parliament passed legislation that enumerated further powers to Henry, and listing as high treason any action by those who

Maliciously to wish, will or desire by words or writing or by craft imagine, invent, practice 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 deprive them or any of their dignity, title or name of their royal estates, or slanderously and maliciously publish and pronounce by express writing or words, that the kind, our sovereign lord, should be heretic, schismatic, tyrant, infidel, etc.[5]

Legally, it would appear, More was cornered. He would not assent to the oath of fealty, recognize the Act of Supremacy, affirm the marriage of Henry to Anne, denounce the authority of the Pope, deny his conscience nor the foundations of law and monarchy that had become the modus operandi of English governance.[6] More initially armed himself against these charges with silence, relying on the understanding that “qui tacet consentire videtur,” or, “silence denotes consent.”[7] This would ultimately help him defeat most of the accusations made against him, but not all.

In his trial, More was accused specifically of maintaining malicious intent against the character of the King. Having quickly dismissed the first three charges of malicious refusal of the fealty oath, treasonous communiqués between himself and John Fisher, and of sedition, More was eventually convicted on the charge that he “’maliciously, traitorously, and diabolically’ denied Parliament’s power to declare the king to be head of the Church in England.”[8] It should be noted that this was in spite of More establishing the fact that the Act of Supremacy violated the Magna Carta, which states in the first clause

In the first place we have granted to God, and by this our present charter confirmed for us and our heirs forever that the English Church shall be free, and shall have her rights entire, and her liberties inviolate; and we will that it be thus observed… We have also granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever.[9]

Significant, foundational portions of English common law recognize the fact that the Church is to be free, and the necessity of it to function separately from the needs and wants of the political realm (if not always the case). More brought forward this fact and was ultimately dejected. Even though he had also managed to refute the character and testimony of those called to perjure themselves against him, the court had a predetermined judgment in mind for Thomas More.[10] This outcome was farcical at best. Within the statutes established by Parliament by the time More was tried, he was clearly in violation of the laws that governed the land. His argument, which was focused around the need for direct, conscionable objection on the part of the judges as guardians of the laws of England, as well as the duty and inability for any earthly government to remove itself from Christendom, was both accomplished and indicative of a different government – the one he had mastered and led while Chancellor – as opposed to the one which he now defended himself against. He had become, indeed, a stranger in his own land.

More’s trial and execution were legal in the eyes of English law as it was practiced during his examination – presenting a new law and a “new” England. However, in regards to continuity with English common law and the understanding of the relationship between the people, the monarch, and the polity that More had come to understand, it was a grave miscarrying of justice. He was placed at the will of a monarch who sought dynastic preservation and consolidation of authority over the concepts and practices that had long governed England and its dominions. The religious shift for Henry was merely a political action necessary to achieve the temporal ends he so desperately longed for, regardless of who was in the way and what else it changed within his realm. This rejection extended to a move away from ‘Christendom,’ a shift towards divine monarchy, a positioning of the government that allowed for dual Church-State governance in one body, and denied the very precepts of English common law and its associated practices. More was ultimately the victim of a drastic shift in the identity and functioning of the polity that he had served so well.

-Nicholas Sawicki

References:

[1] R.W. Chambers, Thomas More (Westminster, MD: The Newman Press, 1935), 193.

[2] Christopher Hollis, Thomas More (Milwaukee: The Bruce Publishing Company, 1934) 131.

[3] Algernon Cecil, A Portrait of Thomas More (London: Eyre and Spottiswoode, 1937), 232-260

[4] Daniel Sargent, Thomas More (New York: Sheed & Ward, Inc., 1933), 216-221.

[5] Hollis, Thomas More, 228 citing an Act of Parliament from 1534.

[6] Gerard Wegemer, Thomas More: A Portrait of Courage (Princeton: Scepter Publishers, 1995), 211-212.

[7] Ibid, 211

[8] Wegemer, Thomas More: A Portrait of Courage, 211.

[9] ‘Magna Carta’ The British Library, accessed October 18, 2015, http://www.bl.uk/magna-carta/articles/magna-carta-english-translation

[10] Hollis, Thomas More, 232-236

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