As Bolt and Mantel knew, More’s most famous experience of “putting the case” occurred in his conversation with Rich on 12 June 1535. In the Tower of London, where More was imprisoned for his failure to take the oath of succession, Rich put forward a “case” about the powers of parliament. Suppose it were enacted by Parliament that he, Rich himself, should be king, would it be a treasonable offense to deny him the office? More consented Parliament could make Rich king. Then, More put a higher case. He asked if an act of Parliament could declare that God were not God. Rich conceded that Parliament could not and replied with a “middle- level case.” If More agreed that Parliament could make Rich king, why wouldn’t he consent to Parliament making King Henry VIII Supreme Head of the Church in England? “To this,” so reads the indictment, “the said Thomas More falsely, treasonously, and maliciously preserving in his said treachery and malice, and desiring to put forth and defend his aforesaide treasonous and malicious proposal and appetite, responded to the aforesaide Rich that the cases were not like because a king can be made by Parliament . . . but to the case of a primacy, the subject cannot be bound.” Of the four indictments against More at his trial, this was the only one he lost and, on its count alone, was sentenced to execution. Putting cases about the king’s new title, contrary to conventional practice, was not without criminal consequence. In the regime’s pursuit of More, even speaking hypothetically could be enlarged unlawfully into a charge of malice and used against him.
Or so More argued in his own defense. He denied Rich’s testimony at trial, but he did propose or put a case in his defense: “And yet if I had done so indeed, my lords, as Master Rich hath sworn, seeing it was spoken in familiar secret talk, nothing affirming, and only in putting of cases without other displeasant circumstances, it cannot justly be taken to be spoken ‘maliciously.’ And where there is no malice, there is no offence.” More’s characterization of his exchange with Rich indicates a collegial conversation according to the norms of the legal profession. “If I had so done indeed,” More told his jury by way of proposing still another hypothetical case, then what he said “in familiar secret talk” was nothing other than the exercise of putting cases. More’s points, if he said what Rich alleged, would be moot. The putting of cases was a technical form of legal discourse for exploring questions that differed from the discharge of conscience. More affirms nothing about what he believes in arguing this way. If he affirms nothing, he cannot be found guilty of malice.
More’s defense on this point cleverly called attention to the extreme scope of the Treason’s Act, which redefined “high treason” for the first time since 1352. Previously, the attempt to kill a king was declared treason, but the new act expanded that crime to any “wish, will, desire, by words or writing, or by craft [to] imagine” that the king should be denied any of dignities and titles, including his latest ones. To argue against the laws of 1534, More claimed, would result in the destruction of his body. But support of them would mean the loss of his soul. At his trial, even the putting of cases about these laws emerged as grounds of high treason, which at the same time was an assault upon how law could be discussed and analyzed. Legal argument itself could be grounds for execution. Such were the consequences when “malice” became the vehicle or excuse for conviction of high treason by words or verbal offense alone.
Even so, Rich’s testimony and accusation seamlessly fit with years of legislation aimed at, in part, prosecution of More. The first instance of “malice” used against him came in from the Act of Succession, where misprision of treason was applied against those who by “any words without writing, or any exterior deed or act, maliciously and obstinately publish, divulge, or utter anything or things to the peril of your Highness, or to the slander or prejudice of the said matrimony solemnized between your Highness and the Queen Anne, or to the slander or disherison of the issue and heirs which shall be inheritable to the crown of this realm.” What was “maliciously” done took prominent place in the Treason Act as well, the same bill used in More’s indictment, which declared it was treason to “maliciously publish and pronounce, by express writing or words that the king our sovereign lord should be heretic, schismatic, tyrant, infidel, or usurper of the Crown.” Variants of “malice,” too, resound in the records of More’s trial. At the start, we learn that More pleaded not guilty “and so reserved unto himself advantage to be taken off the body of the matter, after verdict, to avoid that indictment.” But More also added that “if those only odious terms—‘Maliciously, traitorously, and diabolically’—were put out of the indictment, he saw therein nothing justly to charge him.” More’s words here accurately pointed to the grounds of his conviction. Malice or maliciousness were the key terms to be used against him, and they carried wide latitude and application. The laws quoted above illustrate the king’s extension of malicious behavior from those who would deny his second marriage to anyone who found him to be a tyrant or schismatic.
(excerpted from conclusion)
