The Right Virtue at the Right Time

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Lawyers are notorious for being clever, finding the right story to tell at the right time to win their case.  But we must admit that sometimes lawyers become so clever they outsmart themselves. In fact, some lawyers are so good at playing professional games that they forget exactly who they are when they take off their professional masks. That’s when it’s time to take a look at Robert Bolt’s play about Thomas More A Man for All Seasons.   More is also featured in the new PBS mini-series Wolf Hall. 

More  was in the early 16th century the most powerful lawyer  in England.  First, he had been an enormously successful  commercial lawyer, but soon he was picked by Henry VIII to be the Lord Chancellor, a role somewhat parallel to our Attorney General.  He was also an active participant in attempts to “reform” the Catholic Church.  But the reforms that More supported were  much milder than those proposed by Martin Luther.  One major point of contention between them was Luther’s rejection of the pope’s claim to supremacy over all Christians.

At first, Luther’s positions on the role of the pope were of only academic interest to More because his boss, the king, also rejected them.  But then Henry had a change of heart. Actually he had two changes of heart.  First, he fell in love with his mistress Anne Boleyn who he wished to make his queen.  This required an annulment  by the pope of Henry’s marriage to his wife of many years Catherine of Aragon.  The pope refused to grant the annulment.   Henry suddenly had a change of heart about the pope’s supremacy.  Henry decided that Luther was right in rejecting it.  Now Henry saw himself as the head of the church in England and quite capable of annulling the first marriage if he so wished.   And he convinced the parliament and English church officials to adopt his position. This put his Chancellor Thomas More in an exposed position, caught between his own personal allegiance to the “old” rule on papal supremacy and Henry’s adoption of the “new.”

More sought refuge  in the intricacies of the law.  More was a strong believer in the “technicalities” of the law. In the play in response to a suggestion that he should arrest an individual suspected of working against him, More states that he would not arrest the “the Devil himself until he broke the law.”  When his interlocutor replies that he would “cut down every law in England” to get the Devil,  More makes a most eloquent riposte: “And when the last law was down, and the Devil turned round on you— where would you hide, the laws all being flat?”  Legal technicalities are there to protect the innocent as well as the guilty.

More’s position is surprising when we realize that he himself  as Chancellor aggressively prosecuted as heretics clerics who promoted Lutheran beliefs.  Many were burnt at the stake for what now appears to be an unorthodox opinion on a question of theology.  Perhaps More sensed that he was about to be transformed from prosecutor to defendant.

In any case, that is what happened.  Henry imprisoned his queen and married his mistress.  Now he wanted all England, especially his Chancellor, to affirm the marriage’s validity.  But More’s sense of self (what some call a conscience) would not permit him to comply with the king’s wishes. Soon he was a criminal defendant.

He used all his lawyer tricks to avoid conviction.  He knew he could not be convicted  unless he broke some law, so More made sure not to do that.  More  also knew that he could not be prosecuted for treason, a capital offense, unless he spoke against the validity of the king’s new marriage.  So he took refuge in silence,  even refusing to discuss the King’s marriage  with his own family because he recognized that  casual conversations could put not only him, but also his family in peril.

No one was happy with More’s cunning attempt to avoid conviction.  Some criticized him because he was not brave enough to denounce the king; his wife scolded him because he was too stubborn to save himself and his family by mouthing the words the king demanded. But More refused to dishonor himself by swearing to facts he believed to be untrue.  To More, an oath was more than a legal technicality, it was “words we say to God…. When a man takes an oath he’s holding his own self in his own hands.”  A false oath might save him from punishment, but only at the price of berrayiing  his true self.

In the end, More’s silence permitted him to avoid the false oath that would dishonor him, but it didn’t  save his life. Cleverness was no defense against perjured testimony before judges who had prejudged him.  He was executed as a treasonous felon, although later honored by the Catholic Church as a saint and a martyr.

In retrospect, we might question whether More’s scruples were necessary in the circumstances.  Maybe one does not owe complete candor to a government that employs perjured testimony to convict you.  Still his refusal to dishonor his sense of self even under threat of death demands our admiration.  Some might call it “integrity,” a human wholeness, but I prefer the term “authenticity,” the refusal to abandon a sense of our true self no matter what the price.

Cleverness is a professional virtue, very important to lawyers and one More exhibited throughout his life.  But “authenticity” is a personal virtue that sometimes demands to be honored no matter what the strategic or tactical consequences.  Lawyers need to tell the right story at the right time, but they even need more to  practice the right virtue at the right time.

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