Reviews and Short Notices
Thomas More's Trial by Jury: A Procedural and Legal Review with a Collection of Documents. Edited by Henry Ansgar Kelly , Louis W. Karlin and Gerard B. Wegemer . Boydell. 2011. xvix + 240pp. £55.00.
Article first published online: 20 MAR 2013
© 2013 The Authors. Annual Bulletin of Historical Literature © 2013 The Historical Association
Annual Bulletin of Historical Literature
Volume 96, Issue 1, pages 62–63, December 2012
How to Cite
Lowe, B. (2012), Thomas More's Trial by Jury: A Procedural and Legal Review with a Collection of Documents. Edited by Henry Ansgar Kelly , Louis W. Karlin and Gerard B. Wegemer . Boydell. 2011. xvix + 240pp. £55.00. Annual Bulletin of Historical Literature, 96: 62–63. doi: 10.1111/1467-8314.12018
- Issue published online: 20 MAR 2013
- Article first published online: 20 MAR 2013
In this clever and innovative volume numerous scholars and jurists weigh in on Thomas More's trial for treason, and reconsider whether he was wrongfully convicted, or more specifically, whether his conviction legally fell under the 1534 Act of Treasons. The editors take issue with what has largely become the consensus interpretation put forth by Duncan Derrett, who in a 1964 article concluded that More was treated fairly. While not all the contributors here would necessarily overturn Derrett, the critical and initial essay by legal scholar Henry Ansgar Kelly is clearly revisionist in nature. Since there are five known contemporary accounts of the trial (all included in the appendix), and none are exhaustive, the first major task is to assess the reliability of each one. The official records known as the ‘Bag of Secrets’ are very sketchy, as is a report from one of the judges, John Spelman. Kelly believes that Derrett wrongly accepted as most authentic a narrative provided by More's son-in-law, William Roper, twenty years after the fact, even though an account from Reginald Pole and a document known as the Guildhall Report were both probably based on eyewitness testimony. Each source identifies a different set of charges, variously connected to whether More had violated all or part of the Act of Supremacy (1534) and/or the Act of Treasons, and thus committed treason by maliciously denying the royal supremacy.
Derrett, via Roper, believed that the part of the indictment related to More's silence on the matter and his possible conspiracy with Bishop John Fisher to deprive the king of his title was dropped, so that he was only tried on the charge of making a statement while in prison to Richard Rich impugning the royal supremacy. Kelly contends instead that More was tried and found guilty on the whole indictment, since in the other accounts there is no evidence of any charges being dismissed. In fact, it was the issue over the meaning of More's silence that proved most determinative in the verdict, and for Kelly, thereby makes it unjust. The Guildhall Report suggests that the judges interpreted silence as a sign of malice, but More contested this, because in the law it should have implied consent. And in any case, it could not be construed as malicious, which was a requirement in the treasons law for conviction.
This alternative scenario is a very plausible one, but I'm not sure it completely undermines Derrett's view of the trial. Kelly assumes throughout that Rich was lying without considering that More might have actually trusted a ‘friend’ to keep his confidence in speaking out against the supremacy, albeit theoretically. That More confessed his opposition after his conviction means that he did indeed hold treasonous beliefs, and so he just might have revealed them to Rich in an unguarded or naive moment of trust. In the end, it really depends on which accounts of the trial you consider to have the most credibility, and on whether you believe More himself could have stretched the truth.
From here, a strong, well-executed essay by R. H. Helmholz looks at the trial through the prism of natural law, which still exercised an important influence on English jurisprudence in the sixteenth century. In four areas the author demonstrates convincingly that a compelling argument could be made that More did in fact receive a fair trial within the confines of natural law. In summary, because there were always exceptions to the ‘right to silence’, because one witness could be enough to convict for treason, because one's conscience might be erroneous, and because particular statutes that seemed against the church could actually be seen as promoting true religion, the court's decision was actually reasonable and justifiable.
From here the book tries to contextualize the trial properly so as to prevent conflating early modern English common law with modern American law since on the surface there appear to be many similarities. This is a helpful section in that it explains how bills of attainder are outlawed in the US Constitution, and that US law requires that at least two witnesses testify to overt acts in order to convict someone of treason. In addition, there was no presumption of innocence in More's day, or rules of evidence, or jury instructions, or right to appeal, or power of judges to overturn verdicts, while hearsay was allowed and prosecutors could be witnesses. And yet, grand jury proceedings were conducted in secret then as now, and the principal role of judges is still to rule on points of law.
Elizabeth McCutcheon follows with a close look at three prison letters written by More reporting on his interrogations. Her essay shows that despite his brilliant yet obfuscating rhetoric, it was clear where More stood on the two statutes. Even though he played with words in order to avoid stating his views outright, it was still a very risky thing to do. The essay portion of the book concludes with a judicial commentary by Michael Tugendhat, a judge of the High Court, Queen's Bench, arguing that the trial really came down to the jury deciding what malicious meant and whether or not to believe Rich, just as it should be in a such a proceeding. (Of course, jury intimidation was also a factor.) Then a round table of various US and UK judges gives their impression of the trial, mostly concluding that there were different standards of justice in Tudor times and that malice for Henry VIII could have meant anything that proposed ‘trumping the authority that is vested in this title’ of Supreme Head (p. 133).
The interpretative essays are illuminating and convincingly argued for the most part, and the reader is also provided with a generous and very helpful array of twenty crucial documents in the extensive appendix, before being treated to a ‘docudrama’ of the trial as it might have really happened through a combining of the various accounts. A few typographical errors notwithstanding (1358 instead of 1558 on p. 13; Rembrances instead of Remembrances in the Table of Contents), this is a unique book that could have tended towards anachronism but, overall, successfully avoids falling into its traps. The essays are meticulously researched and legal jargon never gets in the way of historical understanding. Anyone interested in the particulars of one of the most renowned trials in history will find this book indispensable.