Robert Bolt’s screenplays for Lawrence of Arabia, Doctor Zhivago, and A Man for All Seasons are classics of the genre, no doubt aided by David Lean’s brilliant adaptations of Lawrence and Zhivago. One might go so far as to say that the three make up a trilogy: each focuses on a man, more or less extraordinary, not least for his commitment to himself, swimming against the tide of events. One might say that Bolt focuses intensely on the individual who is true to himself at all costs. Of course, the emphasis must be on “at all costs,” since T.E. Lawrence, Yuri Zhivago, and Sir Thomas More all pay a high price for their integrity. The tide of events is, it turns out, much harder to resist than one might first imagine.
Bolt’s portrayals have been hugely successful. I dare say that far more people have seen Lawrence of Arabia than have ever read Seven Pillars of Wisdom, Lawrence’s account of the events depicted. This is, of course, too bad, since Seven Pillars of Wisdom, especially in the original, so-called Oxford Edition, is a wonderful book. But it is Bolt’s Sir Thomas More that has completely eclipsed the historical St. Thomas More, especially in Catholic legal circles. One, not quite random, example will suffice. Judge William Pryor, a perennial shortlist candidate for a Supreme Court seat under Republican administrations, lately a vocal opponent of what he calls (attempting to imitate the late Antonin Scalia’s wit and his positivism, though how successfully is an open question) “Living Common Goodism,” has said that he is inspired by the example of St. Thomas More.
He is far from alone. One hears Bolt’s speech about giving the devil the benefit of law quoted all the time, for example. It is taken, usually, as some devastating objection to governing with an end in mind. Every agent acts for an end, cf. III Cont. gent. c.2, but not the civil authorities. Of course, More never said it. Bolt bowdlerized a quip quoted by William Roper, More’s son-in-law. One of More’s sons-in-law was complaining that Cardinal Wolsey’s doorkeepers made a nice living for themselves ushering petitioners into the prelate’s presence when he was chancellor of England. A claimant needed some help getting justice from Wolsey, and Wolsey’s household was more than willing to oblige—for a price. More, on the other hand, was so scrupulously just that a petitioner could get access to him and plead his case just as easily for himself. More responded that he would do justice between his father and the devil. Not quite the passionate defense of the “rule of law” one sees in the movie.
One can play this game all day. The fact of the matter is that the reputation of St. Thomas More as a good liberal rests on a profound ignorance of More’s writings and a fondness for Robert Bolt’s depiction. More was an enthusiastic Counter-Reformation polemicist, who defended not only the theology of the Church but also her legal system. One example stands out. Late in his life—in fact, shortly before his final, fatal confrontation with Henry VIII—More engaged in an exchange of pamphlets with the protestant lawyer Christopher St. Germain, which touched in large part on the inquisitorial procedure of the Roman Church as it existed under the decretals. This exchange sheds light on Thomas More as a Catholic and a lawyer—but not, notably, a liberal.
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More’s last years have to be understood not only in the context of Henry VIII’s adultery but also in the context of More’s work as a Counter-Reformation polemicist. For the latter, More had official standing. On March 7, 1528 (N.S.), Bishop Cuthbert Tunstall of London commissioned More to write books in English in defense of the Catholic faith against protestant books, especially books by Martin Luther, which had been appearing in English. From the language of the commission, it is apparent that Tunstall was concerned that the English translations of Luther’s books required English answers specifically. Tunstall urged More to bring to bear the full range of his eloquence and wit in defense of the Catholic faith against the protestants and conceded to More the license to keep and read the protestant tracts that would otherwise be forbidden.
More had already written a significant Counter-Reformation polemic when Tunstall commissioned him to take up the fight in English. In 1521, Henry VIII wrote a Defense of the Seven Sacraments against Luther’s Babylonian Captivity. Late in 1522, Luther, with his accustomed deference and tact, published an appalling Contra Henricum Regem Angliae. Henry asked More and Bishop John Fisher to respond. More responded to Luther quickly, though for unknown reasons the publication was delayed.
After receiving Tunstall’s commission, More wrote his Dialogue of Sir Thomas More, Knight, better known perhaps as the Dialogue Concerning Heresies, a title introduced in a subsequent edition. More lived up to Tunstall’s call to be a sort of English Demosthenes against the heretics: the Dialogue has been praised for its literary qualities no less than for its polemical value. Then, More published The Supplication of Souls in the fall of 1529, responding to a sixteen-page pamphlet that is remembered primarily because Thomas More responded to it. In the spring of 1532, More began his engagement with William Tyndale, who had responded to his Dialogue in 1531. The Confutation of Tyndale’s Answer would sprawl into eight books, published in 1532 and 1533, and is More’s longest work.
If few have read T.E. Lawrence’s Seven Pillars of Wisdom, I am confident that no one has read any of these works, least of all the Catholic lawyers who invoke St. Thomas More in defense of liberalism. One gets (from them) a vision of More as a lawyer and politician who, as Robert Bolt would have it, defends the rights of conscience against the incursions of tyrannous power. One does not see, or at least I do not remember seeing, much recognition that More was an enthusiastic participant in Counter-Reformation polemics and a defender of the Church’s law as it existed. It is, of course, easier than ever to read More. Yale University Press has recently brought out the very fine Essential Works of Thomas More, edited by Gerard Wegemer and Stephen Smith, collecting many of his Counter-Reformation tracts, letters, and other writings in a handsome volume.
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As I said, one of More’s final public battles—that is, before his very public battle with Henry VIII, which concluded with More’s glorious martyrdom—was with the lawyer Christopher St. Germain. St. Germain had, during the 1520s, written a couple of dialogues concerning the English common law and ecclesiastical law. Eventually these dialogues were published in English as Doctor and Student. St. Germain’s treatise was one of the important introductory texts in the common law until Blackstone’s Commentaries were published a couple of hundred years later.
In December 1532, St. Germain published (anonymously) the Treatise Concerning the Division Between the Spiritualty and the Temporalty, allegedly in response to the increasing tensions between the laity and clergy in England. More, invoking Bishop Tunstall’s commission, published the Apology of Sir Thomas More, Knight, which was a lengthy response (via a digression) to St. Germain, in April 1533. In September, St. Germain responded to More’s apology with his dialogue, Salem and Bizance. More answered St. Germain again in November with his Debellation of Salem and Bizance, written in “few days.” Within a few months of November 1533, in the spring of 1534, More’s conflict with Henry VIII over the marriage to Anne Boleyn came to a head.
One ought to acknowledge, however, that More’s engagement with St. Germain was scarcely less dangerous than his refusal to acknowledge Henry’s marriage to Anne Boleyn or Henry’s pretended ecclesiastical supremacy. St. Germain was a protestant and was plainly part of Henry’s propaganda operation. Several editions of the Treatise Concerning the Division were published by the King’s printer. More’s sarcastic, penetrating critique could not help but attract unwelcome attention. Indeed, every indication is that it did. More, in his preface to the Debellation of Salem and Bizance, writing of the Apology, acknowledges that “some were very wroth therewith” and “diverse very great cunning men” were preparing answers to it. More no doubt understood that there were risks associated with pressing the point with the Debellation.
Among his many complaints, St. Germain criticized the practice (insofar as he understood it) of ecclesiastical courts summoning persons ex officio for examination for heresy without disclosing the identity of their accusers. According to St. Germain, this practice was authorized under Lucius III’s decretal Ab abolendam (c.9, X, de haereticis, V,7). St. Germain was, as Henry Ansgar Kelly has noted, simply expanding upon the House of Commons’ Supplication Against the Ordinaries of March 18, 1532. The Commons’ Supplication contained nine charges against the prelates of England, including a complaint about the practice of laity being summoned before their ordinaries and examined on charges of heresy without knowing who their accusers were. The Supplication may well have come out of Henry’s circle, so it is natural that St. Germain would keep up the propaganda support for a priority of the regime.
It is certainly true that Ab abolendam sets forth in very general terms a procedure by which laity could be summoned before their ordinaries for examination. The decretal speaks of those “qui vero inventi fuerint sola ecclesiae suspicione notabiles” (c.9, X, de haereticis, V,7 § Qui vero). And, unless they demonstrate their innocence to the bishop’s satisfaction, they are subject to the same penalties for heresy that are imposed upon heretical clergy and laity that have been found guilty. And it is certainly true that Boniface VIII’s decretal, Statuta quaedam (c.20, In VIto, de schismaticis, V,2), authorized withholding the identity of the accusers from the alleged heretic in cases of grave danger.
Richard Helmholz and Ansgar Kelly have both written on Thomas More’s specific knowledge of the canon law. Both take the position that More was not an expert in the decretals governing practice and procedure in the ecclesiastical courts, though More certainly defended the Church’s law. Ansgar Kelly takes the view that More, when push came to shove, knew enough about canon law, even if he was not an expert. And More was certainly familiar with some canonical texts. For example, Ansgar Kelly shows that More knew Lyndwood’s Provinciale, citing it in the fourteenth chapter of the third book of the Dialogue. Lyndwood’s commentary in the Provinciale was often of a technical, canonical nature.
It is likewise unclear how much canon law St. Germain really knew, except through the mediation of a couple of obscure manuals for confessors as opposed to the decretals or the standard commentaries on the decretals. For example, he holds out Ab abolendam as a one-off excess of Pope Lucius III. Ansgar Kelly observes that More knew that Ab abolendam had been confirmed for the most part by the Fourth Lateran Council in its decree Excommunicamus (c.13, X, de haereticis, V,7). Here one can go into the weeds very quickly. We can omit that for now. But, well founded or not, More’s response to St. Germain’s complaint is worth considering for a moment.
In the Apology, More accepts, at least arguendo, St. Germain’s charge that the prelates of England summon those suspected of heresy ex officio for examination. First, he says that the streets would swarm with heretics if no one could be examined for heresy without being confronted with a complaining witness. More claims that in many instances people will give a judge information secretly that they will not give openly. He also notes that in many cases, people, called to public examination, will perjure themselves before they give open testimony on a matter that has been proved with other evidence.
Second, More argues that, even if someone summoned to give account before his ordinary for heresy cannot be proved guilty of heresy, he should still be given a penance for behaving in such a manner that his neighbors took him for a heretic. This is an astonishing argument, especially in the context of More’s argument to this point. St. Germain complained of ordinaries summoning laity ex officio for examination for heresy based upon “secret” evidence. More’s response first was that the secrecy was necessary to encourage accusation. Next, in response to St. Germain’s claim that people may be compelled to do penance without proof, More says that if they lived in such a manner as to give rise to accusations of heresy, they ought to do penance notwithstanding whether or not heresy could be proved.
Finally, More analogizes to similar procedures in the common-law courts of England. He describes both bail procedure and grand jury procedure as analogies for the practice of being summoned ex officio and being put to penance. In both cases, the common-law courts might impose very stern punishments without the accused having a clear idea who had given evidence against him. Beyond this, More describes taking action as chancellor against public officials based upon secret evidence. This is, of course, scarcely less extraordinary than More’s previous argument. More’s defense of the canonical, inquisitorial procedure standing by itself is a challenge to the vision of More as a proto-liberal martyr of conscience. However, the fact that he saw the same procedures available in the English common law presents a much more serious challenge. None of the justifications More offers are notably liberal and none support the proposition that the English common law is a law of liberty, opposed to the Roman, continental tyranny of the civil law and the canon law.
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Robert Bolt’s Thomas More is a compelling character, to be sure. However, it is simply incorrect to take More as a proto-liberal martyr of conscience. More was an enthusiastic participant in Counter-Reformation discourse and a vigorous defender of the laws and procedures of the Roman Church. In his exchange with St. Germain, More defended in sweeping terms the authority of ordinaries to summon laity before their courts and examine them for heresy without disclosing the evidence against them. He defended, over the course of his exchange with St. Germain and in his other polemical writings, other practices which we can leave to one side for now.
More saw no conflict between a summons ex officio for examination for heresy and certain common-law procedures. This ought to give the liberals who claim More’s patronage pause, too. One of the essential arguments against the classical legal tradition (or the common good) is that the Anglo-American common law tradition is somehow opposed to the continental, canonical ius commune. This is false and demonstrably so. However, the example of St. Thomas More’s defense of summons ex officio shows just how false it is.
Pat Smith
