St Thomas More Dinner

My paternal grandfather, in his younger days, was a fiery Primitive Methodist minister who devoted much energy to writing and distributing pamphlets denouncing the Roman Catholic Church in general, and the evils of the papacy in particular. The boys at my state primary school threw stones across the road at the Catholics going to the convent school up on the hill. I suppose they said that God was on their side because they had the advantage of gravity. Years later I found that one of my dearest friends on the Court, Maurice Casey, was one of those with that advantage, although he had availed himself of it some years before I became a target. My Methodist upbringing was more tolerant than my grandfather would have approved, but we didn't believe in saints, although we certainly believed in saintliness.

And so it's intriguing, to say the least - and goodness knows what grandfather would be thinking - that I should presume to accept an invitation to speak at a dinner organised by Catholic lawyers - at which alcohol would be drunk, but what else would you expect - about a man whom the Catholic Church has pronounced to be a saint. The recklessness of my presence here tonight is reinforced by the fact that I knew precious little about Sir Thomas More apart from what can be gleaned from the famous Holbein portrait, and from Robert Bolt's splendid play, "A Man for all Seasons," which I have seen on both stage and screen. That title, interestingly, was not bestowed by Robert Bolt but by Robert Whittinton, an Oxford scholar, in a Latin textbook for schools, which was published in 1520, long before More's death.

You will all know that I am not unaccustomed to speaking or writing on topics about which I know very little. These days I have the services of a speech writer, who can help fill the void of ignorance - more reliably at times than counsel - but in this instance I thought I really must find out for myself: what was it about this man that causes 20th century lawyers to hang his portrait on their office walls, to meet once a year to hear someone speak about him? Who was he? Because he has inspired - and this I soon found out - he has inspired numerous lectures and publications; even societies, one of them in France; a periodical, a little incongruously titled Moreana: all devoted to studying, contemplating, drawing lessons, instruction, inspiration, from the life, the writings, the words, of this man, executed as a traitor 460 years ago.

My researches were certainly a voyage of discovery. Among the discoveries were two which made me feel much more comfortable with my role this evening. The first concerns the London Charterhouse, the monastery in which More lived for four years while studying law. The Carthusian monks, whom More from his prison cell was later to see being dragged to their death for their refusal to take the Oath of Supremacy, included the Prior of a monastery in Epworth in Lincolnshire. The parish priest at St Stephen's Walbrook, where More grew up in the faith, came from that monastery too. Two hundred years afterwards, when the Charterhouse had been turned into a school, from that same village of Epworth, there came to it a young fellow called John Wesley.

The second discovery was that at the heart of More's stand against the Oath of Supremacy was a passion for the unity of Christendom, which of course, for him, meant the transcendence of the Church with its supreme head, the Pope. One could not call More an ecumenist. His concept of heresy was not very different from that of his contemporaries. But I was interested to read the observation of an Anglican scholar that if the Church had kept its freedom and held King Henry at bay, as it would have done had all its leaders been as faithful as More, Fisher, and the monks of the Charterhouse, England should have had a church with imagination large enough to find room for the Wesleys and their great mission.

More was a Renaissance man, multi-talented, perfectly described in the expression, "a man for all seasons." He was a man of the world, lawyer, courtier, diplomat, statesman. He was a family man, a sociable man, good company. He was devout, studious, a philosopher, a thinker, a writer. He was under and above all, of complete and incorruptible moral integrity. He refused to disobey his conscience, to bear witness to what, for him, was false, and for that he died, willingly. His refusal however, involved a rejection of the law, the law of the land, as the final determinant. And that could not have been a light matter for one so steeped in the law and so aware of its vital significance in a civilised society.

There is a splendid passage in "A Man for all Seasons," that builds on an actual conversation More's son-in-law William Roper recorded, that if he had to try a case between his own father and the devil, and the devil had the law on his side, he would hold for the devil. In the play - and you'll perhaps be familiar with the passage - Roper asks: "So now you'd give the devil benefit of law?" More replies: "Yes. What would you do? Cut a great road through the law to get after the devil?" "I'd cut down every law in England to do that," promised Roper. Then More's reply: "And when the last law was down, and the devil turned round on you, where would you hide, Roper?" Then, to himself: "This country's planted thick with laws, from coast to coast: man's laws, not God's - and if you cut them down, do you really think you could stand upright in the winds that would blow then?"

As a practising lawyer, he was pre-eminent in his profession. In his judicial office as Lord Chancellor, he significantly developed the availability of equitable remedies; but his contribution was not so much in the making of the law, but in strengthening public confidence in its administration and its impartiality. He was an early exponent of case management, holding himself readily available to hear cases, and dealing with them with such dispatch that there came a day when it was reported that "no more suits did remain." His friend and correspondent Erasmus wrote: "The King could not have chosen a first magistrate more just or more incorruptible." The same could not be said of those who were later to try him.

For him, the Oath of Supremacy was a denial of fundamental truth. He could not make such a denial. Moreover, he resisted the temptation of those who urged him to take it even though he did not really mean it. An oath to him was a specific invitation to God to act as a witness, and to judge the truth of what he said. He therefore could not affirm what he did not know to be true. To do so would be to imperil his immortal soul. Would that the oath today was similarly regarded. Nowadays, it is largely meaningless. For those to whom it has significance, it is, I am sure, unnecessary. They will tell the truth anyway. For those to whom it has no significance, it is an empty ritual - I favour abandoning it. Certainly, there should, if only as a matter of form, be a clearly stated commitment to the truth. But to involve a God in whom the deponent has no real belief whatever is almost a blasphemy.

I have heard More described as a "secular saint" and that's perhaps a fair description. Certainly he did not eagerly seek martyrdom. Rather, although there came a time when he plainly could see it coming, he did his utmost to avoid it, invoking the law at every turn. As a lawyer, he thought it quite proper to shelter behind such legal thickets as were available to him. He did not sign the 1530 letter to the Pope, urging him to invalidate Henry's marriage to Catherine of Aragon. As was his duty, he introduced the King's Great Matter to Parliament the following year, although plainly without supporting or approving it. He declined to swear the Oath of Supremacy, but refused to speak to or answer questions about his opinion on it. He was in consequence able to plead, successfully, in his defence, that he could not be punished for keeping his silence; indeed, that under the common law "he that holdeth his peace seemeth to consent." In cross-examining the patently untruthful Richard Rich, he employed all the forensic skills at his command. That his exposure of the man's perjury was to no avail probably did not surprise him. The very fact of the perjury confirmed how the die was cast.

Why then did he so vigorously defend himself? Lord Rawlinson, one time Attorney-General of England, in a lecture printed in the New Zealand Law Journal of December 1978, suggests it was to demonstrate the distortion of law and process which he knew his trial entailed - "the tyrannical application of the law of treason by King and Council as a political exercise by the State of the weapon of judicial murder."

He had the opportunity to demonstrate that at the end, after the verdict. For his successor as Lord Chancellor at once proceeded to give judgement, but More, the lawyer, knew that now he was entitled to say, and must say, what he had been so careful up to now not to say. "My Lord", he said, "when I was toward the law, the manner in such case was to ask the prisoner before judgement why judgement should not be given against him." (A point, may I interpolate, which I had occasion to make early in my judicial career in one of the few judgements of which I am quite proud, Evans v Bradford, in about 1981 NZLR, and which I see still needs to be made from time to time). And of course the Judges had to listen, while More made his great statement about the conflict between law and conscience, with his insistence that conscience must prevail. "Forasmuch as this indictment is grounded upon an act of Parliament directly repugnant to the laws of God and his Holy Church ... it is therefore in law, amongst Christian men insufficient to charge any Christian man."

I was brought up on Dicey's theory of the sovereignty of Parliament. I don't remember whether he had anything to say about this particular limitation to parliamentary sovereignty, but the question More raised has never, and probably can never, be satisfactorily resolved. More's was, partly at least, a statement of basic constitutional principle. Law to him was founded on divine authority, and law-making power came ultimately from God. Plainly, that authority could not extend to making laws that were contrary to God's law. Could a similar constitutional argument be mounted today? Indeed, could any constitutional argument prevail against duly enacted legislation? In his well-known paper to the first Canada-Australasia Law Conference in 1988, published in that year's NZLJ, the then Sir Robin Cooke suggested it could be - that the Court would have power to strike down, or at least refuse to recognise, a law that was contrary to reason, or to some fundamental and universally accepted human right, or to our basic democratic constitutional order - perhaps a statute purporting to disenfranchise a section of the electorate, or to deprive them of their property, or that was contrary to the express terms of the Treaty of Waitangi. Yet, in the recent collection of essays on the constitution, edited by Philip Joseph, David McGee, the Clerk of the House of Representatives, opined that it is inconceivable that legislation could be successfully impugned as being beyond the constitutional powers of Parliament.

In the lead essay in that collection however, Sir Robin returned to this point, even though limiting his comment to one particular aspect, namely, whether Parliament could lawfully abolish the monarchy. He quoted an argument that this cannot be done even in the United Kingdom, "because the Queen is one of the three elements of Parliament and cannot eliminate herself without eliminating Parliament." But in this particular situation of course there is a pragmatic alternative to the theoretical, for ultimately it would be for the Courts to decide the issue, and they would be unlikely to differ from a parliamentary decision that plainly reflected the view of all sectors of the electorate. Thus the courts would give legitimacy to what, technically, would have been a revolution.

The extent of parliamentary sovereignty is certainly not a purely hypothetical question. It is a question which could conceivably arise in my own jurisdiction as well as in that of the courts. Assenting to legislation is one of my constitutional functions. There is debate as to whether I have a reserve power to refuse assent. This is a power that has never been exercised in this country, and there are those who would argue that that very fact means that it does not exist. I am not so sure. There may be a good argument for accepting the existence of the power, but coupled with a convention that it should not be exercised except where that is necessary for the protection of the constitution, or for some other extraordinarily good reason. One thing is, I think, certain, and that is that a Governor-General wishing to exercise the power could only do so after giving solemn, and perhaps public warning, of his intention to do so. He or she would probably prefer to resign rather than put the issue to the test; and might feel impelled to resign after having exercised the power. Sir Thomas More resigned - he handed back the Great Seal the day after the Submission of the Clergy Act was passed - but that did not save him. A Governor-General would be luckier. I hope.

A much more practical moral dilemma is posed for those who believe a constitutionally-enacted law requires them to act contrary to conscience. It is an age-old dilemma. Thomas More teaches us several things here, even this long after his death. The first is that we have to be sure that our conscience is fully instructed. When his judges put it to More that he was not supported by the English bishops and universities, he was able to say "I have for every bishop of yours above one hundred; and for one Council or parliament of yours I have all the Councils made these thousand years. And for this one realm I have all other Christian realms." Protestant though I am, there are, and must be, limits to one's right to assert one's own view.

The second thing is that defiance of the law should be the last, the very last, and not a first, resort. More thought it wrong to cause public embarrassment to lawful authority, or to disturb peace and order. In his Apology he explained that if he thought a law repugnant to the law of God, he would give his advice and counsel in favour of a change, not publicly, but "in place and time convenient." It is better to offer advice quietly in the right quarters, and to endure the law meantime, rather than stir up trouble publicly and bring the law into derision. Even if conscience forbids obedience, it is better to keep one's own counsel rather than cause chaos and sedition. The lawyer in particular has a responsibility to the law, and to the law's institutions.

The third is that if we must take a stand for conscience' sake, we must be prepared for, and accept, the consequences. That is not to say that we may not take full advantage of the law's protection. But once it is clear that there is no protection, then the law must take its course There cannot be a distinction, at least in terms of guilt or innocence, between those who disobey the law for reasons of conscience, and those who disobey for other reasons. Thus I cannot agree, for instance, with the recent argument that a pardon should be granted to those who were properly convicted for offences during protests over South African rugby tours, dreadful mistakes though those tours plainly were.

I recently learnt that way back in 1920, James Liston, then Coadjutor Bishop of Auckland, was prosecuted for sedition and acquitted, and I rather hoped that that wonderful man, who incidentally became a firm friend of my father, might provide a modern day parallel to Thomas More. But his was not really a case of conscience - he had been talking about the conduct of the British in Ireland - and so I shall tell you about a Methodist minister instead: Ormond Burton, awarded the Military Medal and the Medaille d'Honneur in World War 1, but later turned pacifist, chairing the Christian Pacifist Society through the years of World War 2.

He did not take to heart the second of Thomas More's lessons - to endure the law meantime - but rather insisted on proclaiming his pacifist creed from soap boxes on Wellington street corners, to the fury of the citizens who heard him, and who were incited to disorder and violence, largely directed at him. On one occasion he was thrust head first down one of the city's insalubrious public toilets. But he was undeterred, and continued to preach. The result of course was that there were criminal charges; not against his assailants, but against him for holding meetings likely to be injurious to the public safety. Like Thomas More, he took such legal points as were open to him, and you can read about these in the Law Reports of 1940 and 1941. But it was to no avail. He was imprisoned four times. To its shame, the Church expelled him from the ministry. After the war, he found a job as custodian at the Wellington Technical College. Within four years or so he was the headmaster. The church recanted, apologised, and readmitted him. He subsequently retired to Otaki where he spent his time caring for Rangiatea, the great Maori Church built by Te Rauparaha and Octavius Hadfield, last year tragically destroyed by fire. I remember him as a deeply spiritual, challenging man, passionate in his beliefs.

I began with a Methodist minister, and I finish with one, both men of passionate faith. Such a man too was Thomas More, but he of course was a giant among men. I am grateful for the opportunity this occasion has given me to learn so much about him; and although I am no theologian, no moral philosopher, for the opportunity to share some of the very random and not particularly profound thoughts that came to me as I learnt. It would surely be fitting to conclude with some of St Thomas More's last recorded words, addressed to his judges, but which we might fairly adapt and in which we might all fairly join: "May we yet hereafter in heaven merrily all meet together to our everlasting salvation. And thus I desire Almighty God to preserve and defend the Queen's Majesty and send her good counsel."