The Two Laws in Thomas More: a Preliminary Reading of the Canon and Common Laws in His Career and Writings

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Volume 16 Number 4 Volume 16, Autumn 1970, Number 4 Article 3

The Two Laws in Thomas More: A Preliminary Reading of the Canon and Common Laws in His Career and Writings

R.J. Schoeck

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This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. THE TWO LAWS IN THOMAS MORE: A PRELIMINARY READING OF THE CANON AND COMMON LAWS IN HIS CAREER AND WRITINGS'

R. J. SCHOECK*

INTRODUCTION

T IS TOO EARLY in the day for most of us to begin with the Nineteenth Century English jurist's observation that "the state of a man's mind is as much a fact as the state of his digestion," and in any case we should want a text a little closer to More's time. In 1477, Chief Justice Brian said that, "It is common knowledge that the thought of man should not be tried, for the Devil himself knoweth not the thought of man"-or, in Law-French, "Comen erudition est l'entent d'un home ne sert trie, car

* Attended McGill University (no degree); M.A., Ph.D. Princeton University, 1949. The author, who has been professor of English at St. Michael's College, University of Toronto (1961-1971), is now Director of Research, Folger Shake- speare Library, Washington, D.C. He is a member of the editorial board of the American Journal of Jurisprudence, a member of the Columbia Seminar on Legal History and Political Philosophy, and has served as representative of legal history on the council of the Renaissance Society of America (1968-1970). 1 A paper given at the St. Thomas More Symposium held at St. John's University on October 9-10, 1970, under the auspices of the Anglo-American Associates. In its untruncated form, it will appear with full documentation in the volume of symposium papers to be edited by the chairman-organizer of the Symposium, Professor Richard S. Sylvester, and to be published in 1971. This paper, therefore, appears in the form in which it was presented, and no effort has been made to alter the touches and tonal emphasis which seemed appropriate for its oral delivery; nor will there be any footnotes (which of course were not part of the presentation), save for the one bibliographical note which follows, and the placing of names in parentheses to identify a number of the quotations. 16 CATHOLIC LAWYER, AUTUMN 1970 le Diable n'ad conusance de 'entent de More and, indeed, resurfaces again in the l'home." We shall return, near the end of 1590's in the controversy of Cosin and my paper, to the question of one's being Morice. The second is the matter of More's triable for thoughts and intentions-so close trial-in ways and for reasons which will I to the perilously balanced point on which think emerge. More tried to rest his defense: given More's silence (his argument ran), everyone had THE LEGAL CAREER OF 2 the reasonable right to suppose that by his SIR THOMAS MORE silence More was giving assent to the King's Act of Supremacy. The fact is that the civil Although he had been admitted to the law maxim, Qui tacet consentire videtur- bar several years earlier than 1510 and had or, as Harpsfield translates it, he that served his inn of court, Lincoln's Inn, and holdeth his peace seemeth to consent, cuts had played a notable role in the 1503 several ways, and much depends upon Parliament, Thomas More's first significant where one stands in one's interpretation. public legal office was that of under-sheriff of London, which he held from 1510 until Tout court, we are here to talk about the 1518. Considering that his mother's father interface-a currently fashionable term had been sheriff of London in 1503-1504 which subsumes, as I understand its am- and that much of his father's considerable bience, both the conflicts and the influences legal practice had been in the city, Thomas -between canon and common law as we More's appointment as under-sheriff and find this problem in the career and writings of Thomas More. We look towards, though we cannot hope yet to comprehend, the 2 Much of this paper builds upon several pub- larger role and importance of law in the lished papers and articles, as well as one as yet unpublished book. I would first cite a survey-article England of More, and ultimately that prob- which appeared in 2 CATHOLIC LAW. 61-67 lem should be related both to the practice (1956), as an introduction to More, and I would of the day (for which some of the rare next list the following in chronological order of their appearance: legal books on exhibit must be studied Rhetoric and Law in Sixteenth-Century En- more closely) and also to such criticisms gland, 50 STUDIES IN PHILOLOGY 110-27 (April of contemporary legal institutions and 1953); Canon Law in England on the Eve of the practice as those of St. German and Reformation, 25 MEDIAEVAL STUDIES 125-47 (1963); Sir Thomas More, Humanist and Law- Starkey, and to literary satires like those yer, 34 TORONTO Q. 1-14 (1964); Recent of Skelton and John Heywood. And so, Scholarship in the History of Renaissance Law, simply to examine the problem with re- 20 RENAISSANCE Q. 279-91 (1967); contributions to the NEW CATHOLIC ENCYCLOPEDIA (1967); spect to Thomas More; there are two Court of Arches, Doctor's Commons, Law- pivots, two great matters or issues about French, Thomas More; Tommaso Moro, 12 BIB- which this paper will turn. The first is the LIOTHECA SANCTORUM 608-14 (Rome, 1969). A series of lectures on Thomas More and the affair of Richard Hunne-because in its law (given at Yale University in November- central issue of heresy we have a prime area December 1967) is as yet unpublished. The lectures were: The Tudor Inns of Court; Thomas it is a case which continued of conflict, and More, Lawyer and Judge; and A Lawyer's Life to be discussed throughout the lifetime of of More: Roper's Saint's Life. THE Two LAWS IN THOMAS MORE his continuing close relations with the city major part of the Utopia); for normally, and with city companies is more easily un- having done his two readings at Lincoln's derstandable. Inn, he would have soon been made serjeant; and eventually, so distinguished a Plucknett has commented on the extent common lawyer would have become a to which More would have "ministered common-law judge. Instead, as we know, mingled law and equity as Under-Sheriff," More was drawn into the king's service. a point to which to return in developing A second point: in this case of the the consideration that More had long been Pope's ship, as during the trade negoti- experienced in mingling law and equity ations at Bruges, More manifested the before becoming Lord Chancellor. During results of study and experience in jurispru- his under-sheriff years, More seems to have dential thought of theologians and canon- moved into some work with maritime and ists, and he was skilled in the procedures international law, both of which drew heavily upon the procedures of Roman of both Roman and canon law. His admission to Doctor's Commons in 1514 rather than common law. His most famous is now more understandable, yet still re- case in this field came in about 1517-his markable, for here is a common lawyer ad- defense of the papal right to a ship which mitted to a professional association of es- Henry had stopped at Southampton and tablished, if not all distinguished, civilians claimed as a forfeiture. More was retained without a formal period of study at a uni- as counsel and interpreter for the papal in- versity with recognized faculties in the two terests, and the case was heard in Star laws, and indeed without any academic Chamber before Wolsey and other judges, degree-much less the advanced degree in where (Roper accounts in his biography), law and the specialized ecclesiastic or Sir Thomas More not only declared to equivalent practice that were required (at the ambassador the whole effecte of all their least a little later, if not in 1514). On a opinions, but also, in defens of the Pope's subsequent embassy to Bruges in 1520- side, argued so learnedly himself, that both 1521, references were made in the confi- was the foresaid forfeyture to the Pope dential Hanseatic dispatches to More's restored, and himself amonge all the hear- ers, for his upright and comendable skillful handling of "multasque rationes, demeanor therein, so greatly renowmed, jura, leges et canones." And other activities that for no intreaty wold the king from during the 1520's would have developed thenceforth be induced any longer to for- still further More's legal expertise in beare his service. Roman and canon law-all before he became Chancellor in 1529. This case of the Pope's ship explains why More never became a serjeant, for this In 1524 he was made high steward of event comes on the heels of his having been the University of Oxford, and a year later away for some months on the 1515 em- of the University of Cambridge as well. bassy to Bruges (during which he was per- These high stewardships were quasi- mitted to fill his office of under-sheriff by judicial, for in addition to other duties deputy and during which he wrote the More was involved (at one of the unrulier 16 CATHOLIC LAWYER, AUTUMN 1970 periods in the history of those universities) ous evidence of it in the Duchy records. in trying persons accused of crimes, though In Marny's time, 1509-1523, and probably of course, as Chambers goes on to com- also in More's, when important decrees were given, the chief common law justices ment, there were also aspects which More of the Duchy were present and party to the found pleasant. In 1525 More succeeded court's decisions. Sir Richard Wingfield as Chancellor of the Duchy of Lancaster, a separate administra- Duchy were present and party to the tion of many lands, estates and posses- court's decisions. Professor Hastings' con- sions; here More's offices were partly ad- clusion is that More "emerges from the ministrative, but doubtless largely judicial. details of the cases as a hardworking ad- The modern More scholar must disagree ministrator, a peacemaker more concerned with Chambers' statement that "very little to get at the causes of violence in the which interests us today is recorded of the countryside than to inflict harsh punish- business which came before him in the ments, a protector of the weak against the Duchy Court," for Margaret Hastings has strong, and an astute lawyer who could been at work on this business for some cut through the mass of detail to the heart years and has shown how potentially rich of the matter in hand." the extant records are. In a paper given at From the earliest days of his legal the Anglo-American Conference in 1965 practice, More seems to have been known she stressed the freedom of the Chancellor for his skill in arbitration, for he was in- of the Duchy to operate at a farther re- volved in some of the most complex estate move from "extraneous pressures ... royal questions of his period, to take but one whims and demands . . . and the larger kind of practice. We shall hear about the forces of change in Europe": thrust of his literary activities from Pro- As Chancellor of the Duchy, he was the fessor Martz and about his inner devotional king's lieutenant for the administration of life from l'Abb6 Marc'hadour-both vital justice, but, instead of having to administer dimensions in the totality of More-but it through King's Council, Star Chamber, let us never forget that More was continu- Masters of the Requests, and Chancery, ously a busy man of the law, who spent he could perform all his judicial duties within the one court beginning in his time most of his waking hours for the greatest to be regularly called the Court of Duchy portion of his adult life reading petitions Chamber. and other legal documents, hearing evidence and questioning witnesses, and She stresses the fact that the procedures of giving opinions or decisions. We can begin this court were more flexible than those of to appreciate the force of his lament that the Chancery, and that since 1485 More's the law (to borrow Bacon's later phrase) predecessors had been laymen, generally "drinks too much time"-or as More him- trained like More himself in one of the self wrote Peter Gilles (another humanist- Inns of Court. lawyer) in 1516:

if there ever had been a clash between I am constantly engaged in legal business, common law and equity, there is no obvi- either pleading or hearing, either giving an THE Two LAWS IN THOMAS MORE

award as arbiter or deciding a case as be deep in controversy with St. German judge. I pay a visit of courtesy to one man over conflicts between the two procedures, and go on business to another. I devote notably over the ex officio oath in heresy almost the whole day in public to other matters, as will shortly be seen in discuss- men's affairs and the remainder to my own. I leave to myself, that is to learning, nothing the Hunne affair. ing at all. Thus, to pinpoint: in 1528 two influen- When I have returned home, I must talk with my wife, chat with my children, and tial books appeared in England which in confer with my servants. All this activity different ways brought to bear upon the I count as business when it must be done- common law concepts of canon and/or and it must be unless you want to be a Roman law: Christopher St. German's stranger in your own home ... Doctor and Student and John Parkins' Profitable Book, the first published in At the age of about 52 he was appointed Latin, the second in Law-French, and both Lord Chancellor and served from October with remarkable printing histories. At 1529 to May 1532. He was of course not about this time a copy of a 1526 Decretum the first layman, but there had not been a of Gratian was bought by the son of a layman as chancellor for many years. Even chief justice of Common Pleas and anno- if we bear in mind Maitland's injunction tated throughout. From these and like that medieval clerics were not all canonists clues, it would appear then that the study any more than they were all saints, what of canon law by common lawyers was is notable is that for some time the Chan- more widespread than has hitherto been cellor had traditionally been the Arch- supposed. bishop of Canterbury or York-Morton, Warham, Wolsey-and consequently he was a cleric usually trained in canon law, RICHARD HUNNE AND probably Roman as well, and hence a per- THE STANDISH AFFAIR son with a training that equipped him to The affair of Richard Hunne occupied apply equity in his administration of the Englishmen of all classes for three decades, formalized common law. and the still-continuing problems of inter- preting this complex affair are of prime More's own practice had taken him into concern to historians of Lollardy and of Star Chamber and Chancery proceedings, the growing Lutheranism in Tudor En- and he would long have known that equity gland, to students of the ecclesiastical courts was there applied, and how it was applied. at the end of the Middle Ages, and to the In 1528 St. German began to develop his future biographer of Thomas More. For arguments for the greater application of all historians, indeed, it has been a matter equity in the common law, in the first of controversy for the past four centuries. Latin dialogue of what later became his Here our concern is with locating the celebrated Doctor and Student-later ex- events of this affair in the context of con- panding the ground of his argument to flicts between common and canon law. differences in procedure between common and canon law; and by 1533 More would Richard Hunne was a freeman and 16 CATHOLIC LAWYER, AUTUMN 1970 merchant of London, a well-to-do mem- finally brought before the bishop of Lon- ber of the Merchant Tailors and a citizen don on charges of heresy, and two days widely known (as More testifies) for his later (before any action was taken by the charitable practices and fair dealing. Over- bishop) he was found hanged in his cell night his name became a rallying cry for in the Lollards' Tower; a coroner's jury lay grievances against the clergy, and his was impanelled, but did not return its ver- legal causes widened into a conflict be- dict until February 1515. Meanwhile, on tween ecclesiastical and secular jurisdic- December 10 a Paul's Cross sermon was tion that foreshadowed the cutting of the preached against Hunne and on the six- canon-law ties between England and teenth he was signified post mortem; his Rome. corpse was turned over to the secular arm and burned at Smithfield on December 20, The facts of his story are as follows. 1514. The child had died in March 1511, His baby son, an infant of five weeks, died and Hunne himself in December 1514- on March 29, 1511, and the rector of the three turbulent years in the courts, and parish demanded the child's christening all men were discussing the case. robe (or binding-sheet) as a mortuary; the father refused. The rector, Thomas Dryf- Against this background, and that of the feld, having waited one year, brought suit issuance of Leo X's bull in 1514 pronounc- against Hunne for the mortuary on April ing that laymen had no jurisdiction over 26, 1512, suing in the archbishop's court churchmen in certain matters (Bulla re- of Audience. Two days later Hunne was formationis curiae), Parliament met in summoned and on May 13 appeared be- February 1515, with a sermon by the fore the court, where he denied the truth Abbot of Winchcombe on the opening of of Dryffeld's declaration; but Tunstall Convocation that was immediately the pronounced judgment on that date in favor focus of public attention and itself the of the rector. This much we know. What is cause of a wider cause c6I~bre. For Kid- not certain is the sequence of all the en- derminster preached against Parliament's suing court actions, or details of the plead- renewal of an act of 1512 (4 Henry VIII, ings in them. It is clear that on December c.2), the sometimes-called Criminous 27, 1512, Hunne was addressed by the Clerks Act, by denying any distinction be- parish priest with these words: "Hunne tween major and lesser orders: all orders thowe arte accursed and thowe stondist were holy orders, he insisted, and therefore accursed," and that the priest refused to any clerk was immune from the punish- proceed with vespers until Hunne left the ment of lay tribunals for criminal offenses. church. On January 25, 1513, Hunne in- This was an open challenging of the ac- stituted a suit for slander against the priest, cepted practice of the common law, and and a little later in Hilary term his suit it was presented as doctrinal and with in- for praemunire was filed. It seems clear transigence. that Hunne had been accused of heresy by At the opening of convocation it was this time, but if so he was not summoned preached that "little by little the laity were for a year. On December 2, 1514, he was encroaching, serpent-like, upon ecclesi- THE Two LAWS IN THOMAS MORE astical dominion" and the bull Supernae timately connected in the legal memoran- Dispositionis "contained the massive con- dum incorporated in Keilwey's Reports. solaticn of several clauses dealing hard It is not too much to say that in the debate blows upon the laity." Clerical morale, it that joined these issues not only had a has been argued, must have been strength- collision course been set between elements ened by this bull, and "there is every like- of the common and the canon law in lihood that the renewed confidence aroused England, but a direct challenging of canon- by the Fifth Lateran's Council's decree lay law jurisdiction had been issued; yet here, behind the notorious case of Richard as elsewhere, old socio-religious institu- Hunne. . . .Certainly the decree inspired tions survive within a new frame of refer- some strong opinions to be voiced." The ence. lords, where the spirituality had the majority vote dropped the statute that The 1515 Convocation sermon of would have renewed the Act of 1512, Kidderminster was the focus of the resent- although commons had passed a bill to ments of memb)ers of commons and of renew it. At this point, Dr. Henry Standish, others, and the speaker of the house was then warden of the mendicant friars in part of a group that requested the king to London and, later to be rewarded with a have the issue argued further. Accordingly, bishopric, defended the 1512 Act and the king chose lawyers and theologians to argued that the decree of Leo X had never argue the points involved before various been received in England. judges and theological counsel at Black- On April 17, 1515, the court of alder- friars on March 10, 1515. men of London appointed a committee to There at Blackfriars, Dr. Henry Stan- speak with the bishop of London about dish defended the Act of 1512 and asserted the matter, for in February the coroner's that a papal decree which forbade the con- report on Hunne's death had been shown venting of criminous clerks before a tem- to the jury and the jury found that Hunne poral judge as peccatum had been murdered by the jailor and his in se had never been received in assistant, together with the bishop of England. To the com- London's chancellor, Dr. Horsley. Feelings mons' request that the abbot renounce his of London citizens ran high indeed. Small opinions publicly at Paul's Cross, the wonder that the historian Polydore Vergil bishops replied that they would maintain should have written on March 3, 1515, these opinions with the utmost power. Par- that there was a great outcry in England, liament (and convocation) was prorogued and still less wonder that in the popular from April 5 until November, but during mind there should have been a connection this recess Standish continued to defend between the particular issue of Horsley as his position in public lectures. And Dr. the accused murderer of Hunne and the Horsley was still in custody, while Stan- more theoretical issue of criminous clerks dish was at large. But in November and the debate of Standish and Kidder- Standish was summoned before convoca- minster. The two issues are certainly in- tion and presented with four questions: 16 CATHOLIC LAWYER, AUrUMN 1970

(1) Can a secular court convent clergy gland upon reception there, was one area of before it? discussion. The judges of the common law (2) Are minor orders holy or not? eventually declared that those clergy who (3) Does a constitution ordained by were present at Standish's citation were pope and clergy bind a country guilty of praemunire. With the vague but whose use is to the contrary? terrible threat of praemunire over their (4) Can a temporal ruler restrain a heads, the bishops felt caught on the edge bishop? of the temporal sword. It would seem that the way of compromise had been worked The thrust of these questions is all too ob- out before the next meeting took place at vious, and the importance of Standish in Baynard's Castle, a royal palace by the the eyes of contemporary ecclesiastics can river, adjoining Blackfriar's. be judged by the note of one who was in 1515 both clerk of the parliaments and At Baynard's, Wolsey, as Hughes so prolocutor of convocation. He wrote in the aptly remarks (and Reynolds echoes), record of both assemblies: "in this parlia- "began his career as a cardinal as he was ment and convocation there arose the most to end it, kneeling before the king and dangerous discords between the clergy and begging his mercy from the pains and the secular power over the liberties of the penalties of praemunire"; but there is church; and the minister and the fomenter more of a pattern even than this to Wol- of all the trouble was a certain friar-minor sey's career, for in 1529 he would be com- of the name of Standish." pelled to admit that he had tried to sub- ject England to a foreign-based canon law. Against the questions or charges put to (It must be observed that the very term him in convocation, Standish appealed to 'canon law' changes in the period from the king for protection. The reply of the 1515 to 1535; but this must be studied bishops was that they were proceeding further.) Before a great assembly of both against Standish not for his counsel to the houses of parliament, of the common law king (as he was one of the king's spiritual judges, and of all the king's council, counsel) but for his public lectures else- Wolsey knelt before Henry and made a where. Both the commons and the bishops partial submission and a partial defense. exhorted the king's aid in accordance with The clergy for whom he was spokesman his coronation oath, the first to maintain had no desire to diminish the royal pre- his temporal authority to the full and the rogative, he said, but they did feel that second to leave Standish to the judgment the matter of bringing clerics before lay of the Church. judges was contrary to the laws of God A second meeting of judges, the king's and an infringement of the liberties of the counsel, and some of the commons, took Church. Wolsey thereupon begged the place at Blackfriars to consider Standish's king to allow the matter to be determined answers to the charges of convocation. The by the pope and his counsel at Rome. question of the 'reception' of papal decrees Henry's reply was that Standish had al- and the dependence of their validity in En- ready answered all points; and in an THE Two LAWS IN THOMAS MOu ensuing general discussion, Foxe and War- and a layman, a theologian and a common ham supported Wolsey, and the chief- lawyer, led the campaign for reform, and justice of the king's bench, Fineux, ob- both made charges about the Hunne affair served that the clergy could not determine which Thomas More answered in his questions of murder or felony and asked writings from 1529 to 1533. what point there could be in committing clergy to courts where they could not be Some further commentary is needed on the Hunne case. The rector's demanding tried. Henry finally ended the discussion by a child's christening robe as a mortuary declaring that he would maintain the payment was customary, though it was a rights of his crown and temporal juris- legal right often open to abuse. It may be diction as fully as his progenitors had that Hunne's argument in refusing lay in done; as for the bishops, he observed, denying that the robe belonged to the they had always been able to find a way baby, but this argument would surely have around canonical obligations whenever it been put forward in earlier, and unsuccess- suited them. When Warham put forth the ful, tests of mortuary payments; mortuary plea to delay the decision until the clergy could place the matter before the Pope for disputes in London as C.H. Williams has noted, were as recent as 1501 and 1502, a solution (at the cost of the clergy), and there is no reason to believe that the Henry apparently remained silent, thus citizen there involved did not purge him- withholding his consent. self as he was ordered to do. It has not Convocation proceeded no further with been brought forward in previous discus- its charge of heresy against Standish; a sions of the Hunne case that the child died royal investigation of the murder charge in the parish where he had been put to against Horsley found no real case against nurse, the father belonging to another him; and the attorney-general accepted his parish, and that Dryffeld was the rector plea of 'not guilty' and the case went no of the parish where the child died, not the further. But Dr. Horsley had to pay an parish where the father lived; this may well enormously heavy fine-and he lost out in have been a new ground of Hunne's re- his ecclesiastical career, having to turn to fusal to pay a mortuary to Dryffeld, and preferments outside of London. Standish this fact may be related to Dryffeld's by contrast, was made a bishop: the name having waited a year to bring suit against of the place, St. Asaph, being satirically Hunne at Lambeth. In any event, Hunne turned by some into 'Seynt Asse'. did appear before Tunstall, who was then Compromise had indeed been achieved, not chancellor of the diocese but chan- but only a very thin, a perilously thin cellor of Archbishop Warham and auditor covering had been placed over the real of causes. The issue was found for Dryf- issues and problems. The heavy hand of feld by Tunstall, but there is no indica- Wolsey kept the lid on until 1529, but by tion that Hunne paid or intended to pay; that time Lutheranism would have come however, excommunication would have to England and the lid would stay on no been indicated as consequent upon a fail- longer. Tyndale and St. German, a cleric ure or refusal to pay, it must be observed. 16 CATHOLIC LAWYER, AUTUMN 1970

It is strange, then, to learn that although 1513, but that Hunne was by that time this case was over by May 1512, Hunne dead. not accursed by the parish was apparently In the winter of 1512-1513, the scope priest before December 27, 1512-well and power of praemunire had not yet been beyond the traditional forty days but there fully determined, but the penalties were is in fact no record of his having been ex- severe: complete loss of lands and goods, communicated at this stage of proceedings. at least. In his praemunire suit, Hunne The usual assumption here is that the named Dryffeld as the principal defendant. parish priest's denunciation (in December The defendant's plea was that the whole 1512) followed merely upon Hunne's process was lawful. To this Hunne de- failure to make the mortuary payment as murred. he had been ordered by the bishop in the Several possible pleas would have been preceding May. It is possible, but not open to Hunne-besides the two already likely, that Hunne had begun process for noted, that mortuaries as property ought a suit of praemunire before December not to fall within the jurisdiction of a (and that this would have been the cause spiritual court, or that the whole ecclesias- of his denunciation); but we cannot be tical system was a foreign system of law- sure. We know only that the praemunire is but we do not know, the proceedings recorded in Hilary term, 1513, and is pre- having been lost. More tells us that the ceded by an action for slander, sued out decision which would have been given on January 25, 1513. would have gone against Hunne, that Thomas More thought that Hunne "was detected of heresye before the praemunire it appered clerely to the temporall judge sued or thought upon," as he wrote in the and all that were anye thinge learned in the temporall lawe, that hys suite of ye Supplicacion of Soules, and then the parish praemunire was nothing worth in ye kinges priest's denunciation in December 1512 law, for asmuch as by plaine statute the would have been for heresy, not for refusal ple to the holden upon mortuaries, belongs to pay a mortuary. This explanation would unto the spirituall court. clarify the sequence, but if the denunciation were for heresy, the long delay before The inference to be drawn from More's his being summoned becomes an element comment is that the jurisdiction of the that needs explanation. Yet, it may well be spiritual court was clearly recognized by that the heresy process was simply set aside all, and that there had not been-at least, until the praemunire issue was settled. The not recently-any challenges of that juris- inference from the available evidence is diction. However, the statute or writ Cir- that Hunne's demurrer in the praemunire cumspecte Agatis (13 Ed. 1, 1285)- suit had been argued in the Michaelmas while it limited ecclesiastical courts to term of 1512 and effectively decided what was then interpreted as strictly ec- against Hunne, and that a formal judgment clesiastical business-could be seen as would have been entered in Hilary term carrying royal assent to that business. THE Two LAWS IN THOMAS MORE

Denounced by the parish priest on 27 to discuss the case only in this light, and December 1512, and claiming damage in his treatment is rather humorous, both to reputation and business, Hunne also in- discredit the rumours and to induce the stituted suit for slander. What is remark- reader to see the case in a chosen perspec- able is that his fellow-merchants seem to tive. Shortly afterwards, the case again ap- have reacted already (in response to some pears in a controversial work, The Sup- ecclesiastical pressure), and one must ask plication of Souls, in which More is whether Hunne was in fact vitandus by the answering similar charges made in Simon end of 1513. Fish's Supplication of Beggars, a violently anti-clerical work. (A While much has been made of More's year or two later, the common friendship with Tunstall, not enough stress lawyer Christopher St. Ger- man will attack More has been put on More's close connections from another quar- ter, but that must be a later with the city and its companies, which chapter in this complex story.) For now, we would have been as likely to give him a must simply declare that in the Dialogue bias towards London merchants as towards and the Sup- plication More is answering allegations the hierarchy; for in addition to his quasi- and rumours about the handling judicial office as one of the two under- of the charges of heresy against Richard Hunne-no sheriffs of London from 1510 to 1518, he more. However, acted for or with a number of the London we do learn that bitterness in London about the case companies on legal and business matters, continues nearly twenty years later, and we can test More's and was especially intimately involved essential accuracy in his handling with the Merchant Adventurers, and from of facts, even though he 1510 to 1512 he represented the City in does not present the full story. Parliament. But there is one further connection, seldom noted: More was brother- More tells us in the Dialogue that he in-law of the lawyer-printer John Rastell, knew the case intimately: who was soon after given wardship of So well I knowe it from toppe to toe that Hunne's two daughters. I suppose there be not very many menne While at first reading More does not that knoweth it much better. For I have not only been divers tymes present myself at seem concerned with questions of the con- certain examinacions thereof, but have flict of jurisdiction in the Hunne case, we also dyvers and manye times sunderley must consider the context of the oft-cited talked with almost all such, except the chapter in the Dialogue: first, that it be- dead man hymselfe, as most knew of the longs to the year 1528-1529, a period of matter. vigorous anti-clericalism, but not yet of a I do not know how to explain the con- splitting off from Rome; and second, that tradiction with a passage later in the it is part of a literary dialogue and that in Apology which very strongly implies that this chapter More is dealing only with what More had talked with Hunne: the Messenger knows by hearsay about the Hunne affair-consequently More chooses And yet for bycause I perceyued in him a 16 CATHOLIC LAWYER, AUTUMN 1970

great vayne gloryouse lykynge of hym logical counsellors on the progress of the selfe, and a great spyce of the same spyryt Standish matter and that his decision was of pryde that I perceyued byfore in Rych- final and, for the future of church-state arde Hunne when I talked with him .... Apology (Taft ed. at 142) relations in England, absolutely deter- minative.

If the phrase "when I talked with him" is Thus the king's assertion of his view of to refer only to Thomas Philippis and not sovereignty and jurisdiction is to be studied to Hunne, then this is a very careless sen- with care: tence on a crucial point. More thought, from his knowledge of the case, that By the ordinance and sufferance of God Horsley was not guilty. He was also con- we are King of England, and the Kings of vinced that Hunne had been a heretic, and England in time past have never had any in the Dialogue he brings forward the superior but God alone. Wherefor know you well that we will maintain the right of evidence of an Essex carpenter accused of our Crown and of our temporal jurisdic- heresy six or seven years after Hunne's tion, as well in this point as in all others, hanging, who named Richard Hunne as in as ample a wise as any of our pro- one of those who came together secretly genitors have done before us. And as to for heretical readings. But the strongest your decrees, we are well informed that argument by More is that, you yourselves of the Spiritualty do ex- pressly contrary to the words of many of them, as has been well shown to you by My self was present in Poules when the some of our spiritual Counsel; neverthe- bishop, in the presence of the Mayre and less, you interpret your decrees at your the aldermen of the citie, condemned him pleasure. Wherefor, consent to your desire for an heretic after his death. And than more than our progenitors have done in were there read openly the depositions by time past we will not. which it was wel proved that he was con- victe as well of diuers other heresies, as of For the influence of this affair upon misbelief toward the holy sacrament of the More's career and thought, a few aulter. And thereupon was the judgment words. given that his body should be burned, and First, it is difficult to believe that it would so was it. Now thys is (quod 1) to me a not have coloured his thinking during the full profe. months he was away from England immediately after the meeting of Parliament When we turn from the Hunne affair to in February 1515 and while he was writing the Standish, the evidence is less contra- the first draft of his Utopia during his dictory; the issues are clearly drawn, and Flemish embassy. This collision of the perhaps the clearest is the opposition of spiritual and the temporal laws, together Standish and Kidderminster, the direct with the failure of the Fifth Lateran Coun- challenging by Kidderminster of the com- cil to achieve reform, surely go far (as I mon law position and the direct challeng- think) to explain the note of urgency in ing by Standish of the traditional liberties Book I of the Utopia. And while there is of the church. Further, it is clear that the little in More's writings that is a direct King consulted carefully with his theo- commentary on the criminous clerks ques- THE Two LAWS IN THOMAS MORE tion, it is worth recalling that in his Utopia At no time did More sit down to write those priests who commit any offense out a full brief on the Hunne affair; in his whatsoever suffered no temporal punish- Supplication of Soules, first, he is answer- ment; instead, they were left only to God ing Simon Fish's satiric and often delib- and their own consciences: erately exaggerated attack in A Supplica- tion for the Beggars (1528); in his •.. even if they have committed any crime, Dialogue (1529), he is dealing with the they are subjected to no tribunal but left Lutheran case, but the mood, the control, only to God and to themselves. They judge the pace, are such that one can read with to lay human hands upon one, it wrong good humour-and in Book III, chapter however guilty, who has been consecrated to God in a singular manner as a holy 15, More's fullest treatment of the Hunne offering. It is easier for them to observe affair, he persuades the Messenger in the this custom because their priests are very dialogue that the popular notions are mis- few and very carefully chosen. conceptions. The remaining works which refer to Hunne are in one respect at least elsewhere, Second, as I have commented of a kind. The Confutation (part I, 1532; was officially we must realize that More part II, 1533), the Apology and Debella- before he became concerned with heretics tion (both 1533) are replies (the first to before he became Chancellor of England, Tyndale, the second and third to Chris- Chancellor of the Duchy of Lancaster, topher St. German, though he wrote before, even, he wrote the Utopia in 1515. anonymously and More did not identify The implications of this point are several, his anonymous opponent with the author and I am sure they will be discussed. of Doctor and Student). They have a The above passages from Thomas common method and a common tone More's writings dealing with the Hunne which is not-good-humoured. affair have been torn from their contexts The greater part of the Debellation is in very different works, and, therefore, devoted to More's defense of the existing something must be said about their weight laws for the investigation and trial and and usefulness. One must here also stress punishment of heretics. More in his con- the obvious: More's cited writings are all clusion (Works at 1031/ sig. T.viii/) in the vernacular, whereas heretofore the almost misses St. German's main thrust. canon law was of course a matter for For More lays the consent of the general Latin. Christopher St. German's writings council and "the generall approbacion of are notable for pioneering discussion of all christen realmes" against the changes equity, procedure and other matters in which St. German proposes; but that is English. Inevitably there would be prob- precisely what St. German denies, for he is lems of terminology (one must note prob- doing nothing less than challenging the lems in citations, e.g., and the carrying over into English of Latin tags familiar traditional system of canon law, with its enough to those trained in canon law in authority, procedures and jurisdiction. Latin), but other difficulties as well. These More argues against this "generall appro- I must defer for later treatment. bacion"; he layeth his own reason. And 16 CATHOLIC LAWYER, AUTUMN 1970 what is his own "irrefragable resen"? The current a general dissatisfaction with the Hunne case is therefore presented with a machinery of the courts Christian; "popu- need and greater urgency by St. German. lar feeling, in London at any rate," a dis- To Fish, it had been an example of what tinguished Tudor historian has written, results from a court-system whose proce- "had been inflamed by quarrels between dure is secret; but he scarcely challenges the laity and the ecclesiastical courts over that system as a whole. St. German is church-dues and jurisdiction," and there challenging the system, and he uses the was much bitterness towards the secrecy of Hunne affair as an example; his division the ecclesiastical courts. The dry wood of spirituality and temporalty is deliber- needed only a strong spark to burst into ately a dividing, with a lessening and sub- flame. The coroner's jury and its findings, ordinating of the spirituality. (But the together with the popular outcry over debate of More and St. German on canon Hunne's death and against Dr. Horsley, v. common law must be deferred.) point to what our generation can call only a credibility gap. And, we must observe As to More's view of the conflict be- further, there seems to be very little evi- tween common law and canon law that dence that the Fifth Lateran Council, emerges during the Hunne affair and the then sitting, was very much concerned, or sequential Standish case, at this stage of sufficiently concerned, with these matters More studies I can only assert my opinion which so deeply troubled the laity; clearly, that More did not accept the dominant there was no effort to communicate what view of Parliament, of commons (which few efforts had been made towards reform perhaps represented the view of a major- to the laity. In England the effulgent figure ity of English common lawyers-though of Wolsey, as Pollard graphically writes, this is by no means certain) that Parlia- "had been invoked to pale the ineffectual ment could solve disputed points of canon fires of an insurgent house of commons," law. Rather, as Dorrett has pointed out, after these fire-warnings had been con- he shared the continental view that Par- tinuously ignored by Rome. This early in liament could not. But much further study the history of the Reformation, it is of More's legal writings and of his legal notable that Richard Hunne was a mer- philosophy needs to be done. chant; not that heresy or even strong anti- To generalize only from this one case clericalism was a characteristic peculiar to would be to act like the tourist who ex- his class, but that Hunne as a merchant en- claimed, "all Indians walk in single file. joyed a high degree of independence and At least the one I saw did." a high social status, whereas the city's parish clergy tended to be of a much lower Yet this one case, with its wealth of social position. We can say with firmness secondary materials, points clearly towards that when the stand was taken against what a wider body of events, evidence and so many of the London citizenry had long literature, and towards several conclusions. thought were the unreasonable demands of First, no one can deny that there was the clergy, particularly in areas of mortu- THE Two LAWS IN THOMAS MORE ary payments and ecclesiastical procedure, one would have to conclude for England at it is no surprise that such a stand was made least that the long-overdue reform of the by a merchant. canon law (which had been on the agenda of the Fifth Lateran Council) was in fact Cooperation there was and had been too late to prevent the gathering storm, between secular and ecclesiastical jurisdic- even if it had been successfully dealt with tions, but it turned on a perilous balance. before the close of that council in April While one would not use so anachronistic 1517, for the split had been manifestly a concept as the consent of the governed widening in 1515, and October 1517 was here, nonetheless it would appear that in already too late. England the close cooperation of which Logan speaks in his study of excommunication was possible, and would continue, THE TRIAL OF SIR THOMAS MORE only so long as the secular power so con- sented. Once challenged seriously, and with There is no need to recapitulate the story the tacit support of the king, the force of of More's trial-already well told by Cham- the ecclesiastical arm fell to the ground. bers, it has more recently been twice told by Reynolds, and there is of course the Further, it follows-if my reading of the Hunne case is accurate-that the Refor- version by Bolt in A Man for All Seasons, mation in England began in 1515 but was which has already influenced the way that interrupted. Checked by a number of forces our students picture and think of the trial. -and not least by the enormous and then- Yet some aspects deserve commentary in increasing concentration of power in the the light of our present discussion. hands of Wolsey (so much of it illegal, Long imprisoned in the Tower; yet the i.e., contrary to or without the sanction of length of that imprisonment, while it grabs existing canon law) -the Reformation was our hearts with fear and pity, the length is held back until 1529. Then, at the time of not so extraordinary as the quality of the Wolsey's fall (though not primarily for that solitary life More lived, as we know from reason), the forces for reform began to the evidence of the Prayer Book and from swell, and there is merit in echoing the the Tower writings. The final events in clich6 that the 1529 Parliament, the so- More's case moved swiftly, after the trial called Reform Parliament, began where the of John Fisher on June 17, 1535, and his 1515 and 1523 Parliaments had left off. beheading on the June 22. A grand jury at These observations and conclusions have Westminster returned a true bill against an important bearing for the history of the More, described as "late of Chelsea," on Reformation in England; but, for the mo- June 28, and the trial was set for July 1. ment, I would urge that the Hunne affair Crucial to the concluding part of the in- is vital for understanding the relations be- dictment is the charge of the jurors that tween ecclesiastical and secular jurisdic- "the aforesaid Thomas More, falsely, trai- tions in England: and that, from a reading torously, and maliciously" deprived the of the case as has here been put forward, king of the dignity, title, and name of the 16 CATHOLIc LAWYER, AUTUMN 1970

Supreme Head on earth of the Church of is clear, "were quite often treated as equiv- England. alent to overt deeds in trials of treason." It is then, perhaps not so remarkable that More's first reply stressed the fact that the woolier minds among the Tudor com- he was being tried under acts passed while mon lawyers could with some force of he was imprisoned, and that during this sincerity have believed that the withholding time of imprisonment he had kept silent of consent, particularly by the king's former on all matters pertaining to the State. lord chancellor, be construed as treasonable. Greatness or high place gave no se- Touching, I say, this challenge and ac- cusation, I aunswere that, for this my curity against the suspicion of treason, as taciturnitic and silence, neyther your lawe we know from the histories of the Buck- nor any lawe in this world is able iustly inghams, Poles, Wyatts and others during and rightly to punishe me, vnlesse you may the reign of Henry VIII. besydes laye to my charge eyther some worde or some facte in deede. Then there is the quite different matter (Harpsfield at 185) of Rich's testimony. It does More no good now, as it would have done him no good It is at this point that More argued that then, to point out that generally in ecclesiastical matters involving good faith, con- if the rule and Maxime of the ciuill lawe tracts, and the like, two witnesses would be good, allowable and sufficient, that Qui have been required; certainly, in heresy tacet, consentire (he that holdeth his peace seemeth to consent), this my silence im- proceedings, it would be most unusual to plyeth and importeth rather a ratification find fewer than two witnesses to establish and confirmation then any condemnation the guilt of the accused. Heresy was a kind of your Statute. of treason of the soul; there are parallels, (Harpsfield at 185-86) and we should not be surprised by an awareness of such parallels. But on this More, it is clear, rested his case upon this point, at least, the courts christian would subtle principle, supported as it was by civil have given a witness somewhat more safe- law tradition-but he was speaking to men guards than did the court that tried More. trained in the common law, not civilians or even canonists. It was a delicate principle, Roper quotes two of More's speeches in and the tactics of arguing upon it to such some detail, and they are so vital that they a body of judges must be seen as a desper- must be quoted again here. While speaking ate remedy. Professor Elton has recently to the discharge of his own conscience and reminded us of how relatively undeveloped to the demurrer that the particular law the law of treason was on the eve of the under which he was being charged was Henrician Reformation, and so it was. contrary to the laws and statutes of En- Mere treasonable utterances had already gland, he cites Magna Charta: been construed by fifteenth-century com- Quod Anglicana ecclesia libera sit, et ha- an overt mon-law judges as constituting beat omnia Jira sua integra et libertates deed within the meaning of the statute of suas illoesas. 25 Edw. II, st. 5, c.2 (1352): words, it (Roper at 93) THE Two LAWS IN THOMAS MORE

Speaking thus against the intrusion of the the entire matter within a single paragraph, authority of the State into a field reserved, I shall read him entire: as he argued, to the Church, More was interrupted by the chancellor, Audley, who Nowe when Sir Thomas More, was tha- asked More if he set his judgment against voydinge of the Indictment, had taken as many exceptions that of so many learned men, the bishops as he thought meete, and [many] moe reasons then I can nowe re- and the universities. More replied: member alleaged, The Lord Chauncelour, loth to haue the burthen of the Iudgmente If the number of Bishoppes and vniuer- wholye to depend vppon himself, there sytyes be so material! as your lordeshippe openlye asked thadvise of the Lord Fitz seemethe to take it, Then se I litle cause, James, then Lord Chief Justice of the kings my lorde, why that thing in my consciens Bench, and ioyned in Comission with should make any chainge. For I nothinge him, whether this indictment were sufficient doubte but that, thoughe not in this realme, or not. Who, like a wise man, awneswered: yeat in Christendome aboute, of thes well "My lords all, By St Julian" (that was euer lerned I Bishoppes and vertuous men that his oath), "I must needes confes that if are yeat alive, they be not the fewer parte thacte of parliament be not vnlawfull, then that be of my mind therein. But if I should is not the Indictment in my conscience in- speake of those whiche already be dead, of sufficient." whom many be nowe holy sainctes in heaven, I am very sure it is the farre* It was indeed, to echo Reynolds on this greater parte of them that, all the while point, rather late in the day to question the [they] lived, thoughte in this case that waye sufficiency of the indictment, and Fitz- that I thinck nowe. And therefore am I james's answer is most guarded: not bounde, my lord, to conforme my if the Act consciens to the Councell of one Realme of Parliament was lawful, then is the in- against the generall Councell of Christen- dictment sufficient. But if it were not, Fitz- dome. james's guarded reply (couched in the negative) does not dare to go that far. Yet The thrust of More's conciliar thought sur- that, surely, is the point. faces here: his argument and appeal are

anchored upon a General Council of Chris- CONCLUSION tendom, not upon a Pope, and least upon the single historic figure who was then sit- That Thomas More lived in a complex ting in the chair of Peter. Although it may age is a truism. Indeed, one might well be said that this is a theological, or eccle- quip that all ages are complex (to those siological point, I would insist that it does that live in them), only some are more have very deep implications for More's complex than others. Yet Tudor historians legal thought. His notion of the universal and all scholars dealing with the literature competence and jurisdiction of the canon and thought and institutions of the period law of the church of Christendom is in- would substantially agree that there were volved, and he would not subordinate that profound transformations taking place law to the law of one realm. within the lifetime of Thomas More, and not least within the legal institutions, con- One final point, and as Roper contains cepts, and the very language of the law. 16 CATHOLIC LAWYER, AUTUMN 1970

But More himself did not question-ever, modifying the views, of the many who anywhere, so far as I know-the organic would otherwise be won straight over by notion of the two arms of the law, the advocates of the New Lutheran Learning. secular (or civil) and the ecclesiastical; But I think as much as all else there was for only the first of which he was respon- that in More which could not abide a false sible (as lord chancellor), and the second case or position and have it win by default; of which (as a layman) he did not control, simply, he had to answer St. German. yet in which he played a significant, if as yet undetermined, role. To a lawyer like More, the matter of jurisdiction which was so much the heart It seems unmistakably clear to me that of the Hunne affair was a vital matter, and More was a legal amphibian, who could it connected intimately with his own case. move and did work within the two systems After the verdict had been delivered in his and within their interface-and, still fur- own trial-and only then-More gave ther, that he believed in the possibility, in- forth his mind in one last great speech, as deed the necessity, of the two systems we all know, declaring that he had all the working together. A dissenter may ask, councils of Christendom and not just the didn't everyone? I should have to answer council of one realm (and councils of the quite firmly, no! There were many who past, not just the minds of the present) to fought the power or the abuses of the eccle- support him in the decision of his con- siastical system, like Roy and Tyndale and science. (And may I interject that I have a number of others-and perhaps those elsewhere offered a reading of Roper's Life who complained against the language, or of More as a Tudor saint's life about a man power, or mysticism of the common law with a superlatively developed conscience?) provide a needed parallel-but there was If the Hunne affair turned upon the juris- at least one who wrote, and this we know diction of two courts over a mortuary gar- for certain, powerfully and persuasively ment and the attendant causes between a against the ecclesiastical system in toto, layman and his parish priest, his bishop, Christopher St. German. Thomas More and all that, More's trial turned on the was not writing against straw men; there Erastian question of state dominion or was a challenge, and from 1529 to 1534 he jurisdiction over the Church and his con- tried to meet that challenge. After .1532, science. More died, not so much for any May 15 to be precise, with the Submission one historic Pope-friend of Erasmus and of Clergy he must have known that he had of so many diplomats with Roman experi- failed, that the fight was lost. Why then ence that he was, he could have had no continue the fight? There was first the illusions about Julius or Leo or Clement effort to defend the Church or the hierarch, VII, their dilatory successory who helped or even more importantly what More con- the Reformation to come to a boil in En- ceived as Christendom against charges gland through his calculated strategy of which he thought inaccurate or unjust, and doing nothing over Henry's divorce pro- progressively malicious. There was sec- ceedings-or even for an isolated, general ondly the hope of changing the minds, or notion of the papacy. More's death, as Pro- THE Two LAWS IN THOMAS MORE fessor Sylvester has recently written, "re- canon laws as well, More died as he had sulted directly from his belief that no lay lived: a lawyer who accepted and practiced ruler could have jurisdiction over the within the structure of a double legal sys- Church of Christ," and his concept of the tem that until the eve of the Reformation Church was more compatible with a post- had functioned with its delicate balances, Vatican II concept than with a Tridentine. an implicitly organic structure of two arms of the law, of two great court systems Born into a lawyer's family, trained in which if they did not reinforce or comple- the household of an ecclesiastic who was ment each other had at least demonstrated both archbishop of Canterbury and Lord that they could coexist-less than perfectly, Chancellor of England, schooled in the of course, but with some considerable effi- common law to which he devoted so much ciency and with no little justice-and he of his mature life and skilled in much of could not accept a subordinating of the one the lore and technique of the civil and system to the other.