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. -- -----BEGIN PGP PUBLIC KEY BLOCK----- Version: 2.2 mQCNAiuhO1QAAAEEAOuUGP0QKhow6Fao1yAZklOAoU+6sXt8978TaJYQQ+NTHMx7 zlnmG6d6LWarPgwIwyCyygEMU+2zAClde08YHOSI/zH+2rvLSaddgPcGJlf7V7+K uhu3nBJM6dhEBKY2P3UfO+CmQQemQ3Q8yR4m8HEpno1VRzUIh2QAFfmIg8VVAAUR tDNJYW4gTSBTY2hpcmFkbyA8aW1zQHRodW5kZXItaXNsYW5kLmthbGFtYXpvby5t aS51cz4= =WIMt -----END PGP PUBLIC KEY BLOCK-----