Two Lawyers Named Thomas

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Two Lawyers Named Thomas

Published in the Maryland Daily Record June 14, 2013

King Henry VIII of England and his intimates have recently been brought to televised life in The Tudors, and revivified in Hilary Mantel’s trilogy of historical novels, now two-thirds complete, about Lord Chamberlain Thomas Cromwell. The books and the television show run us through all the same events, and from a surprisingly similar perspective. A picture emerges.

In that picture, two lawyers seize the imagination: the aforesaid Thomas Cromwell (1485?-1540), and Thomas More (1478-1535), Lord Chancellor. Probably England’s two ablest men, each served for a time as Henry right hand, and in the end each was beheaded by Henry. Their career trajectories, then, were quite similar. Each sought to use the tools of government to make the British state do what, from his viewpoint, governments were supposed to do, and somehow each ended up being ground up in the gears of that very government. Both their deeds and their sanguinary ends provide food for contemporary thought.

No Constitutional Protections

Imagine, if you can, a world  in which there is a dominant monarchy to which only the current monarch’s firstborn legitimate male child could ordinarily succeed. Imagine a problem with that succession. And then imagine trying to resolve that problem without the aid and protections of the First, Fifth, and Eighth Amendments, without legal divorce (though the church had annulment power), with treason broadly defined (including adultery with the king’s wife and imagining the king’s death), and no right to counsel for those charged with it. It is a nightmare, and it was a nightmare for those who had to live through it, or, as the case may have been, die because of it.

First Amendment first: the absence of any clear separation of Church and State was a recipe for dysfunction. Under prevailing theory, the State, as well as the Church, had the right and responsibility to enforce religious orthodoxy. (Police power, if you will, extended to the souls as well as the bodies of the subjects.) But though the Church relied on the State for this, the Church claimed superiority over the State. And the Church denial of annulment could be an inconvenient thing when a queen could not provide a legitimate male heir, and the king felt the need to replace her with a queen who might. Henry’s solution was not to decree Church/State separation, but rather to proclaim himself the head of both, and thus to obtain from the unified Church and State the annulment he sought.

Meaning, however, that to disagree that Henry could be head of both Church and State courted charges of both treason and heresy. Another feature of the First Amendment, freedom of speech, would have helped, not to mention a limited definition of treason like that in Article III, Section 3 in the American constitution (only levying war, adhering to enemies, or giving enemies aid and comfort). With a more circumscribed definition of treason, to disagree with Henry’s arrogation of church powers, or speak in a theoretical way about Henry’s demise, would be harmless. In the legal culture of the 1530s, however, such things constituted treason, and sufficed to get you burned alive, beheaded, or hanged, drawn and quartered. Reasonable minds were not permitted to differ.

No Fifth or Eighth Amendment

In fact, because there was no Fifth Amendment, differing minds were not even permitted to be silent. After divorcing his first wife, Catherine of Aragon, and installing Anne Boleyn in her place, Henry required every Briton to swear support for the legitimacy of what he had done. This was what finally did in Thomas More, who disagreed and attempted to take refuge in silence, but was eventually deprived of that refuge by (depending on whom you believe), the skillful questioning or the perjury of the attorney general. Had More enjoyed a right to silence, matters might have been different for him, and for many unfortunates.

The difference is spelled out in the sanguinary punishments I have already mentioned. Both the television series and the novels give us sickening closeups of what these judicial killings were like. I need not and will not repeat these in any detail here. But it is worthy of note that More himself burned heretics. There was a definite poetic justice that there was no Eighth Amendment there for him either at the end. And, for that matter, for Cromwell, who superintended the undoing and execution of More as well as that of Anne Boleyn, Henry’s second wife.

Stalinism Is What You Get

This combination of missing rights and total control of both Church and State by an unchecked monarch led in the end to a polity historian and judge Jonathan Sumption has suggested was “Stalinist,” and I concur. So, the question posed by the examples of More and Cromwell is how a conscientious lawyer functions within a Stalinist system. My take: such a system may not prevent all aspirations to pursue justice, but it does provide its subjects, including lawyers, a most confusing frame of reference, in which barbaric things may appear proper.

The characterization of Cromwell as conscientious may strike some as strange, given how ruthlessly he ran More and Anne Boleyn to ground, given that More was just trying to keep his views to himself and Anne’s alleged treason consisted of the aforementioned entertaining the thought of Henry’s death (not her alleged adulteries). Not to mention that Cromwell engineered the expropriation of the monasteries a bit like Stalin going to work on the kulaks. Still, as Hilary Mantel has imaginatively and persuasively recreated him, Cromwell’s actions seemed to be consistent with an eye to the greater good, as Henry’s securing a legitimate male heir was a matter of urgent public importance, and the desirability of the monasteries sitting on an estimated 25% share of the national landed wealth was legitimately debatable, to say the least.

More’s Preference

More, similarly, died because he opposed Henry’s Stalinist consolidation of power, an opposition I think we can fairly deem conscientious. But it was conscientiousness in the service of a vision in which the Church was superior to the State, not separate from it. More, then, is no First Amendment hero. Plus, there were More’s incinerated heretics. And yet, even as to that, some perspective is demanded. More probably burned six; later on Queen Mary and then Queen Elizabeth killed hundreds. And, like Cromwell,[1] More seems not to have tortured people, in an era when that was an available tool of investigation.

In a Barbaric Legal Culture

The takeaway, I think, is this: In a barbaric legal culture, even conscientious lawyers are likely to find themselves acting a lot like barbarians. Take that Church and State issue: everyone saw the problem with each institution claiming priority. More’s solution was to become a Church partisan, Cromwell’s to become a State one. But either way, innocent blood flowed. Neither Thomas could envision, apparently, that the correct solution was the sovereignty of neither over either.

How much better things might have if these influential lawyers, best and brightest of their generation, could have imagined things like freedom of speech, civil divorce, narrowly-defined treason, freedom from self-incrimination, and separation of Church and State. But they couldn’t.

The Uncomfortable Question

Which begs the uncomfortable question: Is that the kind of thing our successors will be saying about us five hundred years from now?


[1] No one who has seen The Tudors can fail to remember how Anne’s musician Mark Smeaton was racked there, purportedly as part of Cromwell’s investigation of Anne’s adulteries. Though there are historical rumors to that effect, it is all but certainly untrue; indeed Mantel makes a plot point of Smeaton confessing almost spontaneously.

Copyright (c) Jack L. B. Gohn

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