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The Frog Farm Issue 03
Welcome to the third installment of the Frog Farm. You may notice that
this installment is less full of the hardcore legal issues-and-procedure
meat and potatoes type of thing that the first two were so crammed with.
Don't think of it as a regular thing -- what gets sent out is utterly
unpredictable. Of course, you can affect what gets sent out, by making
your own contributions to the list!
For your reading pleasure:
1) Final Judgment, 1881
2) Excerpt from Jonathan Swift's _Gulliver's Travels_
3) Quick Quotes
4) Swear Not w/George Gordon
5) The Short and Unhappy History of the Whiskey Rebellion
6) Excerpt from _They Thought They Were Free_
7) Famous Courtroom Defenses: Sir Thomas More
**
F I N A L J U D G M E N T
The following is a verbatim transcript of a sentence imposed
upon a defendant convicted of murder in the Federal District
Court of the Territory of New Mexico many years ago by a United
States Judge, sitting at Taos in an adobe stable used as a
temporary courtroom:
"Jose Manuel Miguel Xavier Gonzales, in a few short weeks it
will be spring. The snows of winter will flee away, the ice will
vanish, and the air will become soft and balmy. In short, Jose
Manuel Miguel Xavier Gonzales, the annual miracle of the years
will awaken and come to pass, but you won't be there.
"The rivulet will run its soaring course to the sea, the
timid desert flowers will put forth their tender shoots, the
glorious valleys of this imperial domain will blossom as the
rose. Still, you won't be here to see.
"From every tree top some wild woods songster will carol his
mating song, butterflies will sport in the sunshine, the busy bee
will hum happy as it pursues its accustomed vocation, the gentle
breeze will tease the tassels of the wild grasses, and all
nature, Jose Manuel Miguel Xavier Gonzales, will be glad, but
you. You won't be here to enjoy it because I command the Sheriff
or some other officer of the country to lead you out to some
remote spot, swing you by the neck from a knotting bough of some
sturdy oak, and let you hang until you are dead.
"And then, Jose Manuel Miguel Xavier Gonzales, I further
command that such officer or officers retire quickly from your
dangling corpse, that vultures may descend from the heavens upon
your filthy body until nothing shall remain but bare, bleached
bones of a cold-blooded, copper-colored, blood-thirsty, throat-
cutting, chili-eating, sheep-herding, murdering son-of-a-bitch."
United States of America v. Gonzales (1881), United States
District Court, New Mexico Territory Sessions.
Origin: TEXAS FATHERS * A PARALEGALS POINT Fido 1:106/1555.7
**
From Jonathan Swift's _Gulliver's Travels_, 1735:
[Gulliver is attempting to explain lawyers to his new master.]
There is a society of men among us, bred up from their youth in the art of
proving, by words multiplied for the purpose, that white is black, and black
is white, according as they are paid. To this society all the rest of the
people are slaves. For example, if my neighbor hath a mind to my cow, he hires
a lawyer to prove that he ought to have my cow from me. I must then hire
another to defend my right, it being against all rules of law that any man
should be allowed to speak for himself. Now in this case, I, who am the right
owner, lie under two great disadvantages. First, my lawyer, being practised
almost from his cradle in defending falsehood, is quite out of his element
when he would be an advocate for justice, which as an office unnatural, he
always attempts with ill will. The second disadvantage is that my lawyer must
proceed with great caution, or else he will he reprimanded by the judges, and
adhorred by his brethren, as one that would lessen the practise of the law.
And therefore, I have but two methods to preserve my cow. The first is to gain
over my adversary's lawyer with a double fee, who will then betray his client
by insinuating that he hath justice on his side. The second way is for my
lawyer to make my cause appear as unjust as he can, by allowing the cow to
belong to my adversary; and this, if it be skillfully done, will certainly
bespeak the favour of the bench.
Now, your Honour is to know that these judges are persons appointed to decide
all controversies of property, as well as for the trial of criminals, and
picked out from the most dexterous lawyers, who are grown old or lazy, and
having been biased all their lives against truth and equity, are under such a
fatal necessity of favouring fraud, perjury, and oppression, that I have known
several of them refuse a large bribe from the side where justice lay, rather
than injure the faculty, by doing anything unbecoming their nature or their
office.
It is a maxim among these lawyers, that whatever hath been done before may
legally be done again; and therefore, they take special care to record all the
decisions formerly made against common justice and the general reason of
mankind. These, under the name of "precedents", they produce as authorities,
to justify the most iniquitous opinions; and the judges never fail of
directing accordingly.
In pleading, they studiously avoid entering into the merits of the cause, but
are loud, violent and tedious in dwelling upon all circumstances which are not
to the purpose. For instance, in the case already mentioned, they never desire
to know what claim or title my adversary hath to my cow; but whether the said
cow were red or black, her horns long or short, whether the field I graze her
in be round or square, whether she waas milked at home or abroad, what
diseases she is subject to, and the like; after which they consult precedents,
adjourn the cause from time to time, and ten, twenty or thirty years, come to
an issue.
It is likewise to be observed, that this society hath a peculiar cant and
jargon of their own, that no other mortal can understand, and wherein all
their laws are written, which they take special care to multiply; whereby they
have wholly confounded the very essence of truth and falsehood, of right and
wrong; so that it will take thirty years to decide whether the field left me
by my ancestors for six generations belongs to me, or to a stranger three
hundred miles off.
In the trial of persons accused for crimes against the state, the method is
much more short and commendable: the judge first sends to sound the
disposition of those in power, after which he can easily hang or save the
criminal, strictly preserving all due forms of law.
Here my master interposed, saying it was a pity that creatures endowed with
such prodigious abilities of mind as these lawyers, by the description I gave
of them, must certainly be, were not rather encouraged to be instructors of
others in wisdom and knowledge; in answer to which I assured his Honour that
in all points out of their own trade, they were the most ignorant and stupid
generations among us, the most despicable in common conversation, avowed
enemies to all knowledge and learning, and equally disposed to pervert the
general reason of mankind in every other subject of discourse, as in that of
their own profession.
**
"...an...officer who acts in violation of the Constitution ceases to represent
the government." BROOKFIELD CO. V. STUART, (1964) 234 F. Supp 94, 99
(U.S.D.C., Wash.D.C.)
"...an officer may be held liable in damages to any person injured in
consequence of a breach of any of the duties connected with his office...The
liability for nonfeasance, misfeasance, and for malfeasance in office is in
his 'individual,' not his official capacity..." 70 AmJur2nd Sec. 50, VII Civil
Liability.
"Decency, security, and liberty alike demand that government officials be
subjected to the same rules of conduct that are commands to the citizen. In
a Government of laws, existence of the government will be imperiled if it
fails to observe the law scrupulously. Crime is contagious. If government
becomes a lawbreaker, it breeds contempt for the law...it invites every man
to become a law unto himself...and against that pernicious doctrine, this
court should resolutely set its face." OLMSTEAD V. U.S., 277 US 348, 485; 48 S
Ct. 564, 575; 72 LEd 944.
**
Swear Not
with George Gordon
A witness who has religious objections to either swearing or affirming to
tell the truth has a right to find some other way to express an obligation
to testify accurately, a federal appeals court ruled on December 19, 1985.
By a 2 - 1 vote, the 9th U.S. Circuit Court of Appeals ordered a federal
judge in Idaho to reinstate a Boise man's civil rights suit, which was
dismissed when he refused to either swear or affirm he would testify
truthfully at a pretrial deposition.
The civil rights suit was filed against the state of Idaho and Ada County
by George K. Gordon, who said a state judge sentenced him to jail for 12
days for contempt when he refused to swear or affirm to tell the truth
during proceedings in a civil suit.
Before trial, Gordon was summoned to an out-of-court deposition. He again
refused to swear or affirm he would tell the truth, and U.S. District Judge
Harold Ryan ordered his suit dismissed.
Here are some excerpts from the motion that George Gordon filed before the
Court:
"The question of whether the courts of Idaho can compel a liar to take an
oath to tell the truth and thereby force him to commit perjury is a serious
one. I contend that the answer is no. The 5th Amendment comes into play
here.
"Oh, but you say, there is no Fifth Amendment protection to remain silent
in a civil case, therefore refusing to testify or answer questions
concerning this civil examination does not come under the Fifth Amendment
protection and you are right if you say you cannot refuse to answer
questions after judgement in a civil action and I concur.
"But, I did not refuse to answer questions in any examination after
judgement. I refused to swear an oath and I contend that is another issue.
Let's examine the matter further. The Fifth Amendment is designed to
protect a man against self incrimination, testimony against himself. If a
liar is compelled to take an oath and then answer questions, he is then
compelled to commit perjury which is both a criminal felony and entrapment.
"I have told the court that I am a pathological liar. As my authority, I
claim my First Amendment right to freedom of religion. I claim as an
inalienable right to believe my conscience and whatever religious authority
I believe to choose as my guide in this matter. I contend that you cannot
question my religious belief, only the 'sincerity with which I believe it.'
"God tells us 'let God be true though every man be a liar.' Matthew 5:33.
'Again you have heard that it hath been said by them of old time, thou
shalt not forswear thyself, but shall perform unto the Lord thine oaths:
5:34 But I say unto you, swear not at all; neither by heaven; for it is
God's throne; 5:35 Nor by the earth; for it is his footstool: neither by
Jerusalem; for it is the city of the great King. 5:36 Neither shalt thou
swear by thy head, because thou canst make one hair white or black. 5:37
But let your communication be Yea, Yea, Yea; Nay, Nay: for whatsoever is
more than these cometh of evil.' Here is a direct order from Jesus Christ
that we are not to swear. I cannot speak for any other man but it is for
this cause that I cannot swear or take the oath.
"Let us examine one other piece of scripture while we are on the subject of
oaths. James 5:12 'But above all things my brethren, swear not, neither by
heaven, neither by the earth, neither by any other oath; but let your yea
be yea; and your nay, nay; lest ye fall into condemnation.'
"Now, I do not claim to be a Christian. I cannot determine whether I have
that status or not. I cannot believe that I hold such a status. But can I
then disregard a direct order from God himself? God himself has said every
man is a liar. Do you cast me in the dungeon for telling you the truth that
I am a liar?
"I contend that to compel me to tell the truth is like compelling a dog to
crow or a cat to bark. I concede that I have the capacity to tell the
truth. When I write it down or when I decide that I want to tell the truth
of the matter, I have the capacity. But to place me under oath, threat,
duress, and then coerce me to tell the truth, places me in jeopardy of
committing perjury and I claim my inalienable right to be free from such
force pursuant to the Miranda Doctrine. I claim the right to remain silent
when the question asked could result in an answer that could be used
against me in a criminal prosecution.
"Now to the question that I claim I cannot be compelled to answer. The
court asked the defendant this question: "Do you swear or affirm that the
testimony you are about to give will be the truth, the whole truth and
nothing but the truth?" I answered the question plainly: 'No.' Do you cast
me into the prison for telling you the truth or for perjury? I am alleged
to be in criminal contempt but the court has not made any judicial
determination as to whether it is because I lied, told the truth, refused
to lie, refused to tell the truth, or for not taking an oath, or for some
other cause not known to me at this time. I contend that before I can
return to court to answer this matter I must have the proper Fifth
Amendment safeguards. I demand all of my rights at all times and I waive
none of them at any time, for any cause or reason, including my right to
time and counsel of my choice pursuant to the Sixth Amendment.
"In conclusion to this question, I contend that this court has compelled
this defendant into a classic Fifth Amendment 'Catch-22' situation in which
the constitutional protection comes into play in this case. It is for this
cause that this criminal conviction must be reversed."
And so it was.
[Reprinted from `Freedom League', January 1986]
**
[I've lost the original citation for this tidbit. I remember it being the
only good thing in the entire book, though.]
...The subsequent victory of George Washington's Continental Army over the
British forces, however, did not resolve the dispute over who had the power to
decide the taxes that would be paid by the American people. It merely changed
the locus of the debate...THE TAXING POWER GRANTED [TO] THE NEW GOVERNMENT WHEN
THE CONSTITUTION WAS OFFICIALLY ADOPTED IN 1788 WAS FAR MORE EXTENSIVE THAN
PARLIAMENT HAD DREAMED OF ASSUMING IN THE DECADES BEFORE THE WAR OF
INDEPENDENCE. And many Americans were as opposed to the federal claims as they
had been to those of the Crown.
...The section of the new law mandating the whiskey excise tax was of great
significance, because it almost immediately sparked the first outbreak of
violent opposition to the brand-new government. A second provision of the law,
however, would have far more long-term importance to the people of the United
States. For it was under this second provision, granting the Treasury
Department the power to collect taxes, that [Alexander] Hamilton in 1792 first
established the Office of the Commissioner of Revenue, the predecessor of what
is today known as the Internal Revenue Service.
...The protest against [the] whiskey tax came in several stages. First, there
were speeches and demonstrations and organizing meetings. Then in September,
1791, sixteen frontiersmen disguised in women's clothing assaulted an excise
tax collector named Robert Johnson. They stole his horse, cut his hair, tarred
and feathered him, and left him in a "mortifying and painful situation." [9]
After several more years of scattered acts of violence, the federal government
began to lose patience. In the summer of 1794, U.S. Marshal David Lenox headed
west from Philadelphia armed with subpoenas ordering the appearance of over
sixty distillers before the federal district court in Philadelphia. John
Neville, a retired military commander who was one of the first agents hired by
the new commissioner of revenue, became his local guide.
The federal marshal and the tax collector began serving the subpoenas on July
15. On the next day, the local militia surrounded the house where Neville was
staying, a battle broke out, and one militiaman was mortally wounded.
The line had been drawn in the frontier dust. As news of the outrage flowed
back to Philadelphia, then the capital of the nation, President Washington and
Secretary Hamilton decided that an overwhelming response was required. On
August 4, 1794, Supreme Court Justice James Wilson sent Washington an official
ruling that "from the evidence which has been laid before me, I hereby notify
you that in the counties of Washington and Allegheny, the laws of the United
States are opposed, and the execution thereof obstructed by combinations too
powerful to be suppressed by the ordinary course of judicial proceedings, or by
the powers vested in the marshall of that district." [10]
Justice Wilson's ruling was required before Washington could federalize the
militias of Pennsylvania, New Jersey, Virginia and Maryland. On September 30,
accompanied by this ragtag army of thirteen thousand [almost as many as the
number that fought in the Revolution!], Washington, Hamilton and Secretary of
War Henry Knox headed west to meet with two emissaries of the rebels. At the
meeting, Washington told the Westerners that he regarded "the support of the
laws an object of first magnitude" and that nothing short of "unequivocal
proofs of absolute submission" would suffice.
"The most substantial roundup of suspects...occurred on November 13. Mounted
troops struck in the dead of night, in some cases literally dragging men from
bed and without permitting the prisoners to dress themselves for the journey
ahead. About 150 half-naked frontiersmen, some of them with bare feet, were
then 'driven before a troop of horse at the trot through muddy roads seven
miles from Pittsburgh.'" [11]
Eventually, about twenty of the tax protesters, mostly obscure frontier
farmers, were dragged to Philadelphia and tried for treason. In the end, the
juries acquitted all but two of the prisoners. With the absolute right of the
federal government to collect taxes firmly established, Washington chose to be
magnanimous, and pardoned the two convicted felons. Thus ended what to this day
remains the most widespread and violent resistance to federal taxes in the
history of the United States.
[9] Thomas P. Slaughter, _The Whiskey Rebellion: Frontier Epilogue to the
American Revolution (New York: Oxford University Press, 1986), p. 113
[10] John C. Chommie, _The Internal Revenue Service_ (New York: Praeger
Publishers, 1970), p. 3
[11] Slaughter, _Whiskey Rebellion_, p. 218
Also see Charles Adams' _Fight, Flight, Fraud: The Story of Taxation_
(Curacao: Euro-Dutch Publishers, 1982).
**
Excerpted and condensed without permission from Milton Mayer's _They
Thought They Were Free; the Germans, 1933-45_ (U. of Chicago Press, 1955).
The following comments are attributed to a German philologist (pp. 166-172):
``What no one seemed to notice," ... ``was the ever widening
gap ... between the government and the people. ... And it became
always wider. ...
``What happened here was the gradual habituation of the
people ... to be being governed by surprise; to receiving
decisions deliberated in secret; to believing that the situation
was so complicated that the government had to act on information
which the people could not understand, or so dangerous that ...
it could not be released because of national security. ...
``This separation of government from people ... took place
so gradually and so insensibly, each step disguised (perhaps not
even intentionally) as a temporary emergency measure or
associated with true patriotic allegiance or with real social
purposes. And all the crises and reforms ... so occupied the
people that they did not see the slow motion underneath ...
``... the whole process of its coming into being, was above
all *diverting*. It provided an excuse not to think for people
who did not want to think anyway. I do not speak of your `little
men' ...; I speak of my colleagues and myself, learned men, ... .
Most of us did not want to think about fundamental things and
never had. ... Nazism gave us some dreadful, fundamental things
to think about ... and kept us so busy with continuous changes
and `crises' and so fascinated ... by the machinations of the
`national enemies,' without and within, that we had no time to
think about these dreadful things that were growing, little by
little, all around us. ...
``To live in this process is absolutely not to be able to
notice it ... unless one has a much greater degree of political
awareness ... than most of us had ever had occasion to develop.
Each step was so small, so inconsequential, so well explained or,
on occasion, `regretted,' that ... unless one understood what
the whole thing was in principle, what all these `little
measures' that no `patriotic German' could resent must some day
lead to, one no more saw it developing from day to day than a
farmer in his field sees the corn growing. ...
``How is this to be avoided ... Many, many times since it
all happened I have pondered that pair of great maxims ...
`Resist the beginnings' and `Consider the end.' But one must
foresee the end in order to resist ... the beginnings. ... and
how is this to be done ...? ...
``Your `little men', ..., were not against National
Socialism in principle. Men like me, who were, are the greater
offenders ...
``... One doesn't see exactly where or how to move. ... Each
act, each occasion, is worse than the last, but only a little
worse. You wait for the next and the next. You wait for one great
shocking occasion, thinking that others, when such a shock comes,
will join with you in resisting somehow. You don't want to act,
or even talk, alone; you don't want to `go out of your way to
make trouble.' ... And it is not just fear ... that restrains
you; it is also genuine uncertainty.
``Uncertainty is a very important factor, and, instead of
decreasing as time goes on, it grows. Outside, in the streets,
..., `everyone' is happy. One hears no protest, and certainly
sees none. ... you speak privately to your colleagues, some of
whom certainly feel as you do; but what do they say? They say,
`It's not so bad' or `You're seeing things' or `You're an
alarmist.'
``And you *are* an alarmist. You are saying that *this* must
lead to *this*, and you can't prove it. ... On the one hand, your
enemies ... intimidate you. On the other, your colleagues pooh-
pooh you as pessimistic or even neurotic. You are left with your
close friends, ... people who have always thought as you have.
``... in small gatherings of your oldest friends, you feel
that you are talking to yourselves, that you are isolated from
the reality of things. This weakens your confidence still further
and serves as a further deterrent to - to what? It is clearer
all the time that, if you are going to do anything, you must
*make* an occasion to do it, and then you are obviously a
troublemaker. So you wait...
``But the one great shocking occasion, when tens or hundreds
or thousands will join with you, never comes. *That's* the
difficulty. If the last and worst act of the whole regime had
come immediately after the first and smallest... But of course
this isn't the way it happens. In between come all the hundreds
of little steps, some of them imperceptible, each of them
preparing you not to be shocked by the next. Step C is not so
much worse than Step B, and, if you did not make a stand at Step
B, why should you at Step C? And so on to Step D.
``And one day, too late, your principles ... all rush in
upon you. The burden of self-deception has grown too heavy, and
some minor incident, in my case my little boy ... saying `Jew
swine,' collapses it all at once, and you see that everything,
everything, has changed and changed completely under your nose.
The world you were born in - your nation, your people - is not
the world you were born in at all. The forms are all there, all
untouched, all reassuring, the houses, the shops, the jobs, the
mealtimes, the visits, the concerts, the cinema, the holidays.
But the spirit, which you never noticed because you made the
lifelong mistake of identifying it with the forms, is changed.
Now you live in a world of hate and fear, and the people who hate
and fear do not even know it themselves; when everyone is
transformed, no one is transformed. ...
``... Life ... has flowed to a new level, carrying you with
it, without any effort on your part. On this new level you live
... more comfortably every day, with new morals, new principles.
You have accepted things you would not have accepted five years
ago, a year ago, things that your father ... could not have
imagined.
``Suddenly it all comes down, all at once. You see what you
are, what you have done, or, more accurately, what you haven't
done (for that was all that was required of most of us: that we
do nothing). ... You remember everything now, and your heart
breaks. Too late. You are compromised beyond repair."
**
[Note that there's a lot of background supplied to explain the context.
Here's a fellow who refused to take an oath based on religious freedom
long before George Gordon..]
From _Statesman & Saint: Cardinal Wolsey, Sir Thomas More & the Politics
of Henry VIII_, by Jasper Ridley:
In January 1533, Henry secretly married Anne Boleyn, who was already
pregnant by him. In April, an Act of Parliament made it high treason to
appeal from any court in England to the papal court in Rome. In May,
Cranmer held a special court at Dunstable and gave judgment that Henry's
marriage to Catherine was unlawful. It was then announced that King Henry,
being a bachelor, had married Anne Boleyn a few months earlier, and she was
now the queen...On Whit Sunday, June 1, Anne was crowned queen..In
December, the Council issued a proclamation abrogating the Papal supremacy
over the Church of England, and ordering that the Pope must in future be
referred to as "the Bishop of Rome". At the same time, the conspiracy of
Elizabeth Barton, the Nun of Kent, was exposed. It brought More into
danger.
Elizabeth Barton had first attracted attention about 1526 by her trances
at Courtopestreet near her native village of Aldington in Kent. As
villagers crowded around her, they heard a hollow voice speaking as if from
out of her belly. The voice ordered Elizabeth to enter the nunnery of St.
Sepulchre's in Centerbury. There she met her confessor, Dr. Edward Bocking,
who was a monk of Christchurch, Canterbury. Under his guidance, she began
to experience revelations of a controversial character. She went to see
Wolsey -- probably in 1528 -- and told him that she had seen a vision of
him with three swords: One representing his power as Legate, the second his
power as Lord Chancellor, and the third his power to grant the king a
divorce.
The Lady of Courtopestreet ordered the nun to go to the king, to tell him
to burn English translations of the Bible and to remain loyal to the Pope,
and to warn him that if he married Anne Boleyn, he would die within a month
and that within six months the people would be struck down by a great
plague. She gained access to Henry, and passed on the warning to him. He
listened with surprising patience, and showed no irritation, but henceforth
she was kept under observation.
Both Warham and Fisher were impressed by her sanctity and by her
revelations. Fisher believed what she said about the warnings, and realized
the political use which could be made of them in opposition to the divorce.
More was much more cautious. He first heard from Elizabeth Barton and her
visions from Warham, and, relying on the archbishop's report, had formed a
favorable opinion of her. When she became active as a prophet of the
disasters which would follow if Henry married Anne Boleyn, More met several
of her closest collaborators. At Christmas 1532, Father Resby, a Friar
Observant of Canterbury, told him about her prophecies. Father Rich, a
Friar Observant of Richmond, who was an active propagandist for Catherine
of Aragorn, told him more about her prophecies at Shrovetide in February
1533, and invited him to meet her.
A meeting between More and the nun was arranged in the little chapel in
the monastery of Sion some time in the summer of 1533; but More, if we are
to believe the account of the meeting which he gave to Cromwell, was very
careful of what he said to her. They discussed the case of a young woman of
Tottenham, of whom More had heard, who was persuaded by the nun that her
visions were illusions planted by the Devil; but More assured Cromwell that
"we talked no word of the King's Grace or any great personage else".
Soon afterwards, he wrote to the nun, impressing on her the need for
caution. He reminded her of how the Duke of Buckingham had been executed
largely because he spoke incautiously to a monk:
It sufficeth me, good Madam, to put you in remembrance of such thing
as I nothing doubt your wisdom and the spirit of God shall keep you from
talking with any persons, specially with lay persons, of any such manner
things as pertain to princes' affairs, or the state of the realm, but only
to common and talk with any person, high and low, of such manner things as
may to the soul be profitable for you to show and for them to know.
More had been cautious, but not cautious enough. The nun, Bocking, Resby,
Rich and her other associates were convicted of high treason and executed
after they had recanted at Paul's Cross. Fisher and More were accused of
misprision of treason -- of failing to inform the authorities when they
knew that high treason had been committed. Both their names were included
in a bill of attainder which was introduced in Parliament pronouncing them
guilty and sentencing them to the usual punishment of imprisonment for life
and forfeiture of their property.
Like Wolsey four years earlier, More faced the prospect of being sentenced
to prison for life, or until the king chose to release him, and like
Wolsey, he relied entirely on the king's pardon. But in other respects, the
two fallen favorites reacted differently to the same situation. Whereas
Wolsey preserved his dignity, and petitioned in the language of a humble
supplicant only to save his college, not himself, More pleaded in the most
abject fashion for his pardon. Most other courtiers would have done the
same in his predicament, though Fisher, like Wolsey, did not. Fisher
disclaimed any intention to commit misprision of treason. He said that he
knew that Elizabeth Barton had told the king that he would die within a
month if he married Anne Boleyn; but he had no idea that she had said this
to anyone else, and he could not see how she could be held to have
committed high treason if she had made this prophecy only to the king
himself.
More repudiated the nun, dissociated himself from the opposition to
Henry's divorce, and expressed his support for Henry's policy and the
marriage to Anne Boleyn. He could not justify this, like his earlier
compromises of conscience, by claiming that it enabled him to remain in the
government and to influence Henry's policy in the right direction. Did he
act simply out of the same cowardice of which he had accused Tewkesbury,
Bayfield and Bainham, when they recanted to avoid a far more terrible
ordeal than More faced? Or was he influenced by his respect for authority,
by the duty to submit to the higher powers and avoid any action which could
encourage sedition, and by his instinctive and reasoned disapproval of
anything which could be interpreted as putting the dictates of an
individual's conscience above his duty to obey the state?
When he heard that his name had been included in the bill of attainder, he
wrote two letters to Cromwell, describing all that had taken place when he
met Elizabeth Barton and her accomplices. But explanations and excuses were
not enough, and on 5 March he wrote letters of complete submission to Henry
and Cromwell. After thanking Henry for having "of your incomparable
goodness" appointed him as Lord Chancellor, he assured him that he had
revealed to Cromwell all that he had done in the case of "the wicked woman
of Canterbury". He begged the king to delete his name from the bill. "Most
gracious Sovereign, I neither will, nor well it can become me, with Your
Highness to reason and argue the matter, but in my most humble manner,
prostrate at your gracious feet, I only beseech Your Majesty with your own
high prudence and your accustomed goodness consider and weigh the matter."
He wrote that his only remaining ambition was that after his short life and
Henry's long one, "I should once meet with Your Grace again in Heaven and
there be merry with you."
His letter to Cromwell was much longer. He protested that he had never
done anything to hinder the king's pleasure in connection either with his
divorce or with Papal supremacy. When the king first asked him for his
opinion about the divorce, he had told him tthat he was not convinced that
the marriage to Catherine was unlawful, and so the king decided to employ
other counsellors to work for the divorce. Since then, he had never said
anything to anyone about the matter, and he had refused to read a book that
Catherine's confessor, Abel, had written against the divorce. Now that the
king had married Anne Boleyn, whom More called "this noble woman really
anointed Queen", he would "neither murmur at it nor dispute upon it", but
would pray for both Henry and Ane and the children of their marriage like
all other faithful subjects. As for Papal supremacy, he said that he had
never felt particularly strongly in favour of it until he read the
arguments supporting it in Henry's book _The Assertion of the Seven
Sacraments_.
More's name was deleted from the bill, and he remained at liberty. Fisher
was sentenced by the Act, but was pardoned by the king after paying a
substantial fine. He was, in fact, guilty of a far more serious offense
than any he had been charged with, for he had been secretly urging the
emperor to invade England and save the realm from schism and heresy.
Parliament also passed the Act of Succession, which enacted that the
king's commissioners might require anyone to swear an oath to uphold the
statute and the right of the children of Henry and Anne to succeed to the
throne. Anyone who refused to take the oath would be guilty of misprision
of treason, with the usual consequences. The oath was taken first by the
members of the king's council, by the bishops, and by the highest
dignitaries in the country; afterwards it was put to JPs, and by them to
heads of households, and many heads of households administered it to their
families and servants. By these means, Henry forced all the leading persons
in England either to swear to support the divorce and the right of Anne's
children to succeed to the crown, or to disclose their opposition and
suffer imprisonment for life. More was one of the first to be asked to take
the oath. He was served with a notice to appear before the commissioners at
Lambeth Palace on Monday, April 13, 1534.
On March 5, More had written to Henry and Cromwell promising that he would
never do anything to hinder Henry's marriage or the repudiation of Papal
supremacy. Thirty-nine days later, he refused to take the oath of
succession, knowing that it meant imprisonment for life. He had made
statements in the House of Lords in favor of the divorce which he knew were
untrue; he had refused to give any encouragement to the opponents of the
divorce, or even to read their books; and he had promised not to do
anything against the divorce. But he would not swear to uphold it. On this
issue More, who had so often compromised and lied, would not compromise and
would not lie. He had quite made up his mind about this, and was determined
not to give way...He had argued that it was seditious for a Protestant to
refuse to burn the Bible when ordered to do so by the king, but he would
now refuse to take an oath when ordered to do so by the king. He had always
refused to recognize the right of an individual to put his conscience
before obedience to authority, but now he would claim that his conscience
forbade him to obey authority. The persecutor was ready to endure
persecution.
On the Monday morning, a very warm spring day, More presented himself at
Lambeth Palace. A number of London clergymen had also been summoned to take
the oath that day; but though they had arrived before More, he was
interviewed first as a sign of respect due to him as a former Lord
Chancellor. Cranmer, Cromwell, Audley and the other commissioners invited
him to take the oath, but he refused. They tried to persuade him, but as he
was adamant, they suggested that he should walk in the garden and take time
to reconsider his attitude. In view of the heat of the day, he preferred to
wait indoors, while the priests who had been summoned were interviewed and
required to swear.
When More was invited in again, the commissioners told him that all the
others had sworn, and again urged him to do so. He said that he would not
criticize anyone who had sworn, but would not swear himself unless the oath
could be redrafted in a form which would make it compatible with his
conscience for him to swear it. Cranmer argued that if More would not
criticize those who sword, he must be in some doubt as to whether to swear
or not; but it was certain that a subject should obey his prince, and the
king had ordered him to swear. The certainty of the duty to obey the king
should prevail over the doubt which More felt about swearing, and More
should therefore take the oath. More was impressed by this argument, but
said that the logical consequence of it was that if a man had any doubts as
to what his conscience required him to do, an order from the king would
settle it, and he could not accept this proposition. Eventually, the
commissioners ordered him to be placed in the custody of the Abbott of
Westminster, and after being held prisoner for a few days in the abbot's
house, he was sent to the Tower. On Tuesday, Fisher refused to take the
oath, and he, too, was sent to the Tower.
More was a prisoner in the Tower for fifteen months. He was not
ill-treated, though his health deteriorated. He was allowed books and
writing materials until his last three weeks of imprisonment, and had a
servant to wait upon him, like every gentleman in prison. He was regularly
visited by his daughter, Margaret, and at least once by his wife. He had to
endure her attempts to persuade him to submit and take the oath, and thus
regain his freedom and the family property. Margaret Roper, too, tried hard
to persuade him. She herself had sworn the oath, with the qualification
that she took it as far as the law of God allowed. It was an escape clause
that the authorities were prepared to give to her, but not to More, and he
would not have accepted it if he had been offered. He repeatedly stated
that he would not condemn anyone who took the oath, but he would not take
it himself. Nor would he tell anyone, not even Meg, why he refused to take
it.
He wrote several books in the Tower, and also letters to his friends,
especially to his daughter Margaret Roper. The books and letters contain no
trace of More the humanist, More the lawyer, More the king's counsellor or
More the persecutor of heretics, but only of the More who had wished, long
ago, to spend his life in a Carthusian monastery, and the More who spent
Fridays in the New Building at Chelsea in prayer and mortification of the
flesh.
In these books, More reveals his inner feelings and his vision of the
world in their most tortured form. He sees life as a place of suffering.
"Before we come to the fruitful Mount of Olives", he wrote in _De Tristitia
Christi_:
we must (I say) cross over the valley and stream of Cedron, a valley
of tears and a stream of sadness whose waves can wash away the blackness
and filth of our sins. But if we get so weary of pain and grief that we
perversely attempt to change this world, this place of labour and penance,
into a joyful haven of rest, if we seek Heaven on earth, we cut ourselves
off forever from true happiness, and will drown ourselves in penance when
it is too late to do any good...
He was obsessed by suffering, especially the sufferings of Christ, arguing
that Christ endured far greater pain than any other martyr, even than those
whose sufferings might appear to have been greater and more prolonged; for
More was sure that Christ used his divine powers to ensure that he suffered
far greater pain than any ordinary man would have experienced in similar
circumstances...
He also wrote of the fall of Adam and Eve, which was brought about because
the woman talked too much, and because, like many gentlewomen, she was
prepared to talk to strangers, instead of saying, "My husband shall answer
you":
And because that the woman's preaching and babbling to her husband did
so much harm in the beginning, and would, if it were suffered to, proceed
do always more and more, therefore St Paul commandeth that a woman shall
not take upon her to teach her husband, but that her husband should teach
her, and that she should learn of him in silence, that is to wit, she
should sit and hear him, and hold herself her tongue. For St Paul well
foresaw, that if the wife may be suffered to speak too, she will have so
many words herself that her husband shall never have one.
In November 1534, Parliament passed the Act of Supremacy, which enacted
that the king was Supreme Head of the Church of England. Another Act was
passed that made it high treason to seek to deprive the king of any of his
titles. As a result of these two Acts, a man could be executed as a traitor
if he stated that the king was not Supreme Head of the Church. In addition
to the oath of succession, the king's subjects could now be required to
take the oath of supremacy and to swear that they believed the king to be
Supreme Head of the Church; those who refused to take the oath would be
guilty of high treason through having denied the king's titles.
In April 1535, the priors of the Charterhouses of London, Beauvale in
Nottinghamshire, and the Isle of Axeholme in Lincolnshire, and a Carthusian
monk of Sion, were asked to swear the oath of supremacy. They replied that
they would not acknowledge the king to be the Head of the Church of
England. This was enough to convict them, and they were tried and sentenced
on April 29. They were hanged, drawn and quartered at Tyburn on May 4.
Three other monks of the Charterhouse of London refused to take the oath,
and were imprisoned in the Tower. They were kept, for a time, chained up by
the leg and neck to the posts in their dungeon, where they were secretly
visited by More's adopted daughter, Margaret Clement, who brought them
food. On April 30, the day after the trial of the first Carthusians, More
was examined in the Tower by Cromwell and several lawyers in the service of
the council. Cromwell asked him whether he would acknowledge the king to be
Supreme Head of the Church; but he refused to answer. Fisher was also
interrogated in the Tower and asked whether he accepted that the king's
divorce and his marriage to Anne were valid and that he was Head of the
Church. He asked to be excused from replying, as the answer might
incriminate him.
On June 3, More was again examined in the Tower by Cromwell, Cranmer,
Audley, Suffolk and Wiltshire. He was informed that the king ordered him to
say whether he agreed that the king was Head of the Church, but again he
refused to answer. When pressed, he replied that the question was like a
double edged sword. If he did not believe the king to be Supreme Head of
the Church -- and he would not say whether he did or not -- then, by
swearing that he believed it, he would perjure his soul, and by refusing to
swear he would endanger his life. He did not think it right that a man
should be forced to answer such a question, in such circumstances, as to
what he believed. Cromwell said that More, when he was Lord Chancellor, had
forced persons suspected of heresy to answer whether or not they believed
that the Pope was Head of the Church, knowing that they would violate their
conscience by saying Yes and would be burned if they said No; so why should
More not answer his question? More said that there was a distinction
between the two cases, because at the time when he was examining heretics,
the law of every country in Christendom laid down that the Pope was Head of
the Church, whereas now the doctrine that the king was Head of the Church
was accepted in only one country and rejected in every other country in
Christendom.
A few days later, the authorities discovered that More had been writing
letters to Fisher, which were carried by More's servant. In several of
these letters, which More wrote at the end of May, he had told Fisher that
he was refusing to reply when asked for his opinions about the king's
supremacy over the Church, but suggested that Fisher should not adopt the
same line in case it was taken as proof that they had conspired together.
As a result, he was deprived of writing materials on June 12, and
apparently also of his books. He could hardly complain of this, for when he
was Lord Chancellor he had ordered that heretics should not be allowed
books or writing materials in prison. When he was questioned on June 14
about his letters to Fisher, he said that he had written only to comfort
Fisher, knowing that he was a fellow prisoner in the Tower. He also told
them that he had written to his daughter Margaret to tell her that there
was no need to worry about him, because he was afraid that Meg, who was
pregnant, might panic and attempt to flee to avoid arrest if she thought
that he had been proceeded against for treason. He told them that Margaret
had repeatedly urged him to submit and acknowledge the king's supremacy.
On May 22, Pope Paul II, hearing that Fisher was in danger of being
sentenced to death, created him a cardinal. The Pope afterwards stated that
his chief motive in doing this was to save Fisher's life by a public
demonstration of support which would deter Henry from offending all the
powers of Europe by executing a cardinal. It had the opposite effect. Henry
was infuriated when he heard the news, and is said to have declared that he
would cut off Fisher's head and send it to Rome to have the cardinal's hat
put on it. Fisher was brought to trial on June 17 on a charge of high
treason for depriving the king of one of his titles by denying that he was
Supreme Head of the Church of England. Fisher admitted that he did not
accept Henry as Head of the Church, but argued that he was not guilty, for
the statute enacted that it was high treason to deny the king's title
"maliciously", and he had not acted out of malice. This argument was
rejected, as it had been in the case of the Carthusian monks, and Fisher
was sentenced to death. Three more Carthusians were hanged, drawn and
quartered at Tyburn on June 19; and on the 22nd, Fisher, whose sentence had
been commuted by Henry to death by the axe, was beheaded on Tower Hill.
More was brought to trial on the same charge in Westminster Hall on July 1
before special Commissioners sitting with a London jury. The judges were
hardly impartial, for Cromwell, Norfolk, Suffolk, and Anne Boleyn's father
and brother, Wiltshire and Rochford, were among the commissioners, with the
Lord CHancellor, Audley, presiding. Unlike Fisher and the Carthusians, More
denied that he had ever said that the king was not Head of the Church, but
claimed that he had always refused to answer the question, and that silence
could never constitute an act of high treason. When the prosecution argued
that silence implied consent, he replied that if this was so, his silence
must be interpreted as consenting to the Act which made Henry Head of the
Church. Thus, while Fisher and the Carthusians took their stand for the
Papal Supremacy, More rested his defense on a legal quibble. The
prosecution cited the statement that he had made on June 3, and in his
letter to Fisher, that the Act was like a two-edged sword in requiring a
man either to swear against his conscience or to suffer death; but More had
been careful, in making this statement, to put it as a hypothetical case,
without admitting that he himself was in this predicament.
It was difficult for the prosecution to maintain that anything that More
had said or done constituted a malicious denial of the king's title. But
the Solicitor General, Sir Richard Rich, then gave evidence of a
conversation he had had with More on June 12, when he visited More in the
Tower in another attempt to persuade him to take the oath, and also,
apparently, to remove More's writing materials and books. (The official
report of Rich's evidence at the trial differs in some respects from
Roper's account of the incident. In his evidence, Rich said that he visited
More on June 12 to persuade him to take the oath; Roper does not give the
date, but states that it took place when Rich came, with Southwell and
Palmer, to remove More's books.)
Rich said to More that the king in Parliament could enact any law, and
that all subjects were bound to obey. He asked More whether, if Parliament
passed an Act requiring everyone to swear allegiance to Rich as king, More
would be compelled by law to comply. More admitted that he would be forced
to obey such a law, but said that this was a light case, and he would put a
higher case to Rich: if Parliament passed an Act that God should no longer
be God, would this Act take effect? Rich agreed that no Act of Parliament
could prevent God from being God, but put a half-way case to More: if
Parliament enacted that the king was Supreme Head on earth of the Church of
England, why should not More accept this, just as he would accept an Act
which made Rich king? According to Rich, More replied that the cases were
not similar, because a king can be made by Parliament and deprived by
Parliament, "to which every subject present in Parliament could give his
consent"; but as to the supremacy over the Church, a subject cannot be
bound, "because he cannot give his consent to that in Parliament; and
although the king is so accepted in England, yet many foreign countries do
not affirm the same".
More denied that Rich was speaking the truth, but, adhering to his policy
of silence, did not give his own account of the conversation. It has
generally been assumed that Rich committed perjury, in connivance with
Cromwell and the prosecution, in order to provide the evidence necessary to
convict More. This is, on the whole, the most likely explanation. Rich was
at the beginning of a long career in which he would do all that was
required of him by the authorities at every turn in royal policy. (The
unforgettable scene in Robert Bolt's play _A Man For All Seasons_, in which
More is informed that Rich has been rewarded for his perjury at the trial
by being appointed Attorney General for Wales, is a justifiable piece of
dramatic license. Rich had previously been Attorney General for Wales, but
in October 1533 had been promoted to be Solicitor General for England --
the second law officer of the Crown.)
It is unlikely that Rich succeeded in trapping More into making an
unguarded statement on June 12; but his evidence is very similar to the
statement which More himself, in his letter to Margaret Roper, states that
he made to Cromwell and the commissioners on June 3. He then argued that it
was legitimate to force a man to violate his conscience as the alternative
to being killed, in order to uphold a law which was universally recognized
throughout Christendom, but not in the case of a law that was recognized
only in England. His argument meant that a law of the English Parliament
did not in all circumstances have the binding effect of the accepted
doctrines of the international Church; and it did not perhaps need a very
great exaggeration by Rich to distort this. But even if Rich's evidence had
been true, it was obviously straining the law to hold that a man was
maliciously seeking to deprive the king of his title because he had said to
the Solicitor General, in a private conversation, that a subject is not
bound on the question of supremacy over the Church "because he cannot give
his consent to that in Parliament".
The jury were out for only a quarter of an hour before giving their
verdict of "Guilty". There is no evidence that the jury was packed, but
although most Londoners had a high opinion of More and a low opinion of
Queen Anne, they had no sympathy with anyone who resisted the king's
proceedings against that foreign priest, the Bishop of Rome. More and the
handful of Papalist supporters who opposed the breach with Rome had even
less support in London than the obstinate heretics who preached doctrinal
innovation in religion and preferred to be burned rather than recant. The
jury were obviously not impressed by More's legal hair-splitting; it was
clear enough, from his whole conduct during the preliminary examinations
and at the trial, that he refused to accept the king as Head of the Church.
Audley was about to sentence him to death, when More reminded him that in
the days when he was a judge, it was usual to ask a convicted prisoner if
he had anything to say before sentence was passed. After Audley had given
him leave to speak, he said everything that he believed about the supremacy
but had been careful not to say until the jury had given their verdict.
There are two versions of his speech. One was published in Paris a few
weeks after the trial; the other is Roper's version in his book about More,
written twenty years later, and repeated shortly afterwards by Harpsfield.
The two accounts agree in substance. More declared that Parliament had no
power to abolish the Papal supremacy over the Church. When Audley
interrupted to say that most learned doctors took the opposite view, More
said that for every bishop supporting the royal supremacy, there were a
hundred learned men throughout Christendom who supported his position; and
that against the Act of Parliament were the opinions of all the General
Councils of the Church for the last thousand years. "Not only have you no
authority, without the common consent of Christians all over the world, to
make laws and frame statutes, Acts of Parliament or Councils against the
said union of Christendom, but you and the others sin capitally in doing
so." In both accounts, More said that just as the city of London could not
make laws which contravened the laws of the realm, so the English
Parliament could not make valid laws which contravened the general law of
Christendom. Norfolk intervened to comment that More's statement had made
his wickedness plain.
According to the version published in Paris, More added that he had only
been proceeded against because of his constant opposition to Henry's
marriage. Roper and Harpsfield say nothing about this, even though they
were writing in Mary's reign, when any condemnation of the divorce of
Mary's mother and the marriage to Anne would have been very popular with
the queen and the authorities. If More did in fact say this, it was of
course untrue. Whatever More may have thought, he had not publicly opposed
Henry's marriage, and had often pointed this out to Henry and Cromwell; and
though More had been sentenced to life imprisonment for refusing to swear
the oath supporting the marriage, he was sentenced to death for refusing to
swear that the king was Head of the Church. The supremacy had become the
essential issue by 1535, and even if More had been an enthusiastic
supporter of the divorce, he would have been executed for refusing to
accept the royal supremacy. The Paris report is therefore probably wrong,
and Roper and Harpsfield right, on this point.
When More had finished, Audley passed sentence of death -- the full
sentence required by law, that More was to be hanged, cut down while still
living, castrated, his entrails cut out and burned before his eyes, and
then beheaded. As he was being taken back to the Tower, Margaret Roper and
his son, John, broke through the cordon of guards to embrace him. After he
had bidden them farewell, as he moved away, Margaret ran back, again broke
through the cordon, and embraced him again. At the Tower, he was informed
that he was to die before 9 a.m. on July 6, the Eve of St Thomas of
Canterbury's Day, and that the king, in his mercy, had commuted the
sentence to death by the axe. On the night before his execution, he sent
Margaret his hairshirt, so that noone should see it on the scaffold and so
that she could treasure that link that was a secret between the two of
them. Only in his relationship with his daughter Margaret did this strange,
tortured, cruel man reveal a tenderness and a capacity to love.
Margaret Roper could not bring herself to attend the execution, and
Margaret Clement, alone of all More's family and household, was present. As
he walked to the scaffold, people noticed that he had allowed his beard to
grow in prison. On the way, he was accosted by an embittered woman who felt
aggrieved by a judgment which he had given against her when he was Lord
Chancellor. He told her that he remembered her case well, and believed that
he had given the right decision. He was also approached by more friendly
strangers. One of them offered him a glass of wine, which he refused,
because Jesus had been offered only gall on the cross.
He had been told that the king expected him to make only a very short
speech on the scaffold, and he complied with Henry's last order to him.
After telling the people to pray for the king, he told them that he died
the king's servant, but God's first.
--
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