It has been said that the word “violate,” as used in the indictments, could not have applied to Anne, because she was the seductress, and that since only the rape of the Queen was treason under the 1351 statute, none of the men should have been indicted for treason on this count.34 Yet in the sixteenth century the word “violation” had a broader meaning (as it does now), and did not just mean rape, but dishonor, transgression, desecration, irreverence, or infraction. It is clear that the word is used in these senses in the indictment, while adultery with the King’s consort was treason under the 1534 Act of Succession because it impugned his issue; the very words of the act were used in the indictments to allege the “slander, danger, detriment, and derogation” of Henry’s heirs, and the royal justices ruled that the Queen’s offenses were treason under that act.35
Anne’s conduct was made out to be all the more disgraceful, given that she had been pregnant four times during this period and presumably hopeful of presenting Henry VIII with a living son. The accusation of adultery with Norris in October 1533 might well have been leveled to imply that Norris was responsible for Anne’s second pregnancy, which became evident in December that year, and that the guilty pair had compromised the succession; it even prompted some people to wonder if Norris was in fact Elizabeth’s father, even though there is no suggestion of this in the indictments.
Similarly, charging Rochford with committing incest with Anne in November 1535 may have been intended to suggest that he fathered the son of which she miscarried. Warnicke believes that were the fetus normal, there would have been no cause to go to such lengths to show that the King could not have been its father, and that the salacious details of Anne inciting her brother and the other men were intended to prove that she was a witch. Yet there is no mention of witchcraft in the indictment, nor of a deformed fetus. These shocking and damning factors would surely have been exploited by Anne’s accusers, rather than kept secret, and made the case against her more convincing to contemporary eyes.
The final charge—of conspiring the death of the King—was the most heinous, for it was high treason of the first order. There could be no doubt that if guilty, this woman deserved to die.
Certainly the charges were shocking—Strickland was horrified by their “extravagant and unverified coarseness, which cannot be permitted to sully the pages of any work intended for family reading”—but it would be wrong to take them at face value, especially that of plotting regicide. Such folly would have been barely understandable were it driven by a grand passion, but Anne could not even have been motivated by love, given that she was allegedly bent on marrying any one of her supposed lovers and sleeping with them all at different times.
Jane Dormer later opined that Anne, “much wanting to have a man-child to succeed, and finding the King not to content her,” resorted to taking four lovers, and finally her brother, to achieve her desire. Yet it is highly unlikely that she was motivated in this way, because if Henry were indeed impotent, which is again unlikely, he would surely have known that any child she conceived was not his. No, it would appear that these charges were drawn up with the specific purposes of character assassination and providing a foolproof means for getting rid of her. Describing Smeaton as “a person of low degree” emphasized how far the Queen had stooped to gratify her desires, and the charge of treasonable incest—graphically enlarged upon in the indictment—was clearly meant to arouse outrage and revulsion.
That, George Wyatt observed, was “the most odious” of the accusations. “Partly it is incredible, partly by the circumstances impossible. Incredible, that she had it as her word, the spirit of her mind, that she was Caesar’s all, not to be touched of others”—Wyatt is here echoing his grandfather’s famous poem, “Noli me tangere”—and yet had been “held with the foul desire of her brother. Impossible, for the necessary and no small attendance of ladies ever about her, by office appointed to wait upon her continually, would have been witnesses to her doings.” Moreover, Anne was aware of the danger in which she stood, and could not have been “more wary and wakeful, if for none other cause [but] to take away all color from her enemies, whose eyes were everywhere upon her, and their malicious hearts bent to make some where they found none; as plainly enough as was to be seen when they were driven to those straits to take occasion at her brother’s being more private with her.” They feared that “his conference with her might be for the breaking off [of] the King’s new love.”36
Close scrutiny of the facts suggests that thirteen out of the twenty-one charges were impossible, and that if, four and a half centuries later it can be established that only eight were even plausible—which in itself suggests that even these were not genuine offenses—then the case against Anne is shaky indeed.37 Furthermore, allegations that a number of unspecified offenses had been committed “on diverse days before and after” the stated dates on which the crimes had purportedly been committed would be difficult to disprove, and Cromwell was doubtless aware of this; it was a “catchall guarantee.”38 It is also evident that Cromwell was not as thorough as he should have been. In no fewer than twelve instances, either Anne or her alleged accomplice can be shown not to have been in the specified location. For example, she was accused of committing adultery with Brereton on December 8, 1533, at Hampton Court, but the court was at Greenwich on that date.39 And because it can be shown that quite a few of the dated offenses could not have been committed in the places specified, then the rest of the charges are also undermined.40
It has been argued, however, that while the substance of the charges was sound, the details were subject to clerical error or faulty memories, given the lapse in time since the offenses were committed, the confusing amount of detail in the indictments41 and the speed with which they were drawn up. If Cromwell manufactured these charges, he surely would have taken care to ensure that the details were correct;42 his political survival, indeed, his very life, would have depended on him concocting a watertight and credible case against the Queen. So these discrepancies in location cannot be taken as conclusive proof that the charges were fabricated. Yet there are other disturbing aspects to consider.
On all but one of the dates cited, Anne was pregnant. Indulging in sex during pregnancy was scandalous in itself, because intercourse was forbidden until forty days after delivery. For centuries the Church had enforced the teaching that sex was only for procreation, and that taboo still persisted. But aside from that, in so indulging, Anne had—in sixteenth-century eyes—irresponsibly put her unborn children at risk and compromised her chances of bearing an heir.
On the other occasion cited, she was lying in after a confinement. She was alleged to have incited Norris to commit adultery on—and even before—October 6, 1533, one month after she had given birth to Princess Elizabeth. Is it likely that a woman who recently emerged from her lying-in, and was in all probability still bleeding, would have felt like embarking on an adulterous affair, which was allegedly consummated just six days later, and at Westminster, when the court had not left Greenwich?
Furthermore, Anne had not yet been churched following her confinement; this was a public ceremony of blessing and thanksgiving for a woman’s recovery from the perils of childbirth, dating from biblical times, when, following the Levitical law, women were deemed to be unclean after bearing a child and required to go to the Temple for a ceremony of purification, a ritual observed by the Virgin Mary after the birth of Jesus. In England, mothers were traditionally churched on the fortieth day after delivery, in accordance with the biblical date of the presentation of Mary and Jesus at the temple; prior to the Reformation, there remained a strong element of purification, with the woman presenting herself veiled at the church door and sprinkled with holy water before entering the church itself. Churching signaled a woman’s resumption of sexual relations with her husband after a period of ritual seclusion and avoidance. There was a strong social taboo against couples having sex before the wife was churched, and in accusing Anne of committing adultery at this tim
e, Cromwell, who is hardly likely to have been unaware of the date of Elizabeth’s birth, was no doubt determined to make her crime appear even more heinous. Yet as far as Anne was concerned, again, it is improbable that she would have been eager or even able to embark upon an adulterous affair at this time, when she was still in seclusion with her women.
At the beginning of December 1533, Anne’s family knew she was pregnant again; she was suffering from the tiredness and exhaustion common at that early stage of pregnancy, and from disturbed sleep,43 yet she was charged with seducing William Brereton during November and December.
In the spring of 1534, when she was supposedly trying to seduce Weston and Smeaton, Anne’s pregnancy was advancing visibly,44 and she was deeply preoccupied with the defiance of Katherine and Mary; the refusal of Sir Thomas More, Bishop Fisher, and others to take the oath to the Act of Succession, which recognized Elizabeth as Henry’s heir; the treasonable utterances of Elizabeth Barton, the Nun of Kent, against herself; and the Pope’s pronouncement that the King’s marriage to Katherine was good and valid. In April and May, the alleged dates of her crimes, she was six to seven months gone with child. It is barely credible that she could have indulged in perilous extramarital affairs at this time—perilous not only because sex was then regarded as a risk to the unborn child, but also because of the danger of being caught. And even if she had indulged, it should be noted that when she was supposed to be cavorting with Smeaton at Greenwich on May 19 and Weston at Westminster on May 20, she was in fact at Richmond with the King, having gone there on May 17 to keep Whitsuntide. The court remained there until at least May 26, and then stayed at Hampton Court from June 3 to 26, so Anne could not have slept again with Weston on June 20 at Greenwich, as was alleged.45
The indictment made it clear that Anne was invariably the instigator of adultery. This does not sound like the woman who had held Henry VIII at bay for over six years,46 but this argument does not take into account the fact that a woman’s desire can intensify after the establishment of a sexual relationship, or because of hormonal changes. It is not very likely, though, that Anne was desperate to seduce anyone when she was recovering from her confinement.
By February 1535, as we have seen, Anne knew that she was being kept under constant surveillance. Yet two months later, the indictment would have us believe, she persuaded Smeaton, whom she had seduced a year before, to have sex with her again, and this at a time when, once again, she was in the early stages of pregnancy.
In October that year, when she is said to have been plotting the King’s death—which was absurd in itself, since Katherine of Aragon was still alive then, and Henry’s demise would certainly have prompted a rising in favor of Lady Mary’s right to succeed, or even full-scale civil war and the possible intervention of the Emperor—Anne discovered that she was once more with child, but at this time, the indictment claims, she seduced her brother Rochford, a crime guaranteed to inspire the deepest public revulsion. The implication was, of course—as with the offenses in 1533—that the baby was not the King’s.47 And then, despite her new hope of bearing the son who would ensure her future as queen, she gave gifts to the men who were planning to kill the King on her behalf, one of whom she was allegedly planning to marry. What would it have profited her to ally herself in marriage with any of these men? Not one of them could have satisfied her ambition in the ways the King had. Moreover, when she was supposed to be conspiring against Henry on November 27, 1535, at Westminster, she was at Windsor; again, she was at Eltham on January 8, 1536, when she was supposed to be plotting the King’s death at Greenwich. The date of this latter charge may be significant, because it was the day after Katherine of Aragon died; but even with Katherine dead, if Anne had attempted to assassinate Henry in order to rule in Elizabeth’s name, she would still have had to contend with Lady Mary and her powerful supporters, not the least of whom was the Emperor. The illogicality in the charges strongly suggests that they were cobbled together in a hurry, without being carefully scrutinized.
As for the “harms and perils” that befell the King’s body as a result of the stress engendered by discovering his wife’s crimes, it is unlikely that this had anything to do with the effects of Henry’s jousting accident becoming manifest at this time, as has been suggested, for it was not until the following year, 1537, that he confided to Norfolk’s heir, Henry Howard, Earl of Surrey, that “to be frank with you, which we desire you in any wise to keep to yourself, an humor [has] fallen into our legs;” if he’d had this problem since the time of Anne’s fall, there would have been no way of keeping it quiet, and no need for secrecy.
Possibly the “harms and perils” referred to the fear and paranoia resulting from his lucky escape from his murderous wife, but in mentioning the danger to the King’s heirs, it would appear the indictment was implying that he was suffering from sexual impotence, although the latter is unlikely to be true, as will become clear in due course. On the other hand, this might just have been a ploy to win him his subjects’ sympathy. Certainly there would be little evidence of Henry suffering any harms and perils in the weeks to come, when he was “lustily and publicly pursuing Jane Seymour.”48
Close analysis of the charges in the indictment against Anne Boleyn suggests that they are intrinsically flawed, although perhaps not as flawed as hitherto thought. Many have concluded that they were trumped up. If the Queen was truly guilty, and this was discovered in the manner that Cromwell described, there should have been sufficient credible evidence against her to support such charges, and no need to manufacture what seems to be a travesty of a case, although we do not have all the documentary evidence. It does seem that a degree of manipulation was at play, in order to ensure a conviction, but that is not necessarily to say that Anne was innocent. Nor should we conclude that justice was maliciously subverted or that her prosecutors knew that the charges were contrived: given the nature of the evidence, the Crown’s case was weak in the detail, even though it might have believed its substance to have been sound. In a word, Anne was probably framed. That has been my position in two earlier books, and to claim, as one author recently did,49 that I accepted the official charges without question, is absurd.
It would be left to later generations to expose the flaws in the indictment. “Her very accusations speak and plead for her,” opined Wyatt, “all of them carrying in themselves open proof to all men’s consciences of mere matter of quarrel, and indeed of a very preparation to some hoped alteration.” It would have been difficult for Anne to conceal one illicit ongoing love affair, but concealing five would have been an impossibility.50
Already people expected the prisoners to be convicted. On May 11, before any trial had taken place, the Abbot of Cirencester wrote informing Cromwell that he had already promised Sir Henry Norris’s stewardship of his abbey to Sir William Kingston, “when it is void;” it is clear that the matter had been the subject of an earlier communication.51
Urgent arrangements were already in hand for the accused to be put on trial. On May 10, even before the second true bill had been found, the justices sent a precept to the Constable of the Tower, commanding him to “bring up the bodies of Sir Francis Weston, knt, Henry Norris Esq., William Brereton Esq., and Mark Smeaton, gent.,” all committed to the Tower for high treason by the King’s Council, at Westminster for trial “on Friday next,” two days hence. And at the foot of each indictment, in the margin, were afterward added the words Billa vera (True bill), with a memorandum that the documents had been sent to the Duke of Norfolk, Earl Marshal and High Steward of England, “to do all matters concerning the Queen and Lord Rochford” on Monday, 15 May, at the Tower.52
The outcome of it all, according to a letter sent on May 10 by Sir John Dudley (who had been among those at the meeting at Hampton Court the previous day) to Lady Lisle, was not in doubt: “As touching the news that are here, I am sure it needeth not to write to you, for all the world knoweth them by this time. This day was indicted Mr. Norris, Mr. Weston, William Brereton,
Markes [sic.], and my lord of Rochford. And upon Friday next they shall be arraigned at Westminster. And the Queen herself shall be condemned by Parliament.”53
…
Interestingly, although Wyatt and Page had been in the Tower for five days, they were not mentioned in the indictments. In fact, Cromwell had already written to Wyatt’s father to reassure him that his son would not be harmed, which is in itself suspicious, given that none of the accused had yet been tried and that the outcome of their trials was as yet unknown. Overflowing with gratitude, the aging Sir Henry Wyatt sent him a reply on May 11, stating that neither he nor his son would ever forget Master Secretary’s kindness. Not that Wyatt deserved it, his father thought: in two letters to Cromwell written at this time, he referred despairingly to his son’s sexual adventures, and to “the displeasure he hath done to God.”54
Page was also to escape trial. The influence of FitzWilliam, to whom he was related, might have been a factor,55 but Page and Wyatt were Cromwell’s men, indeed his friends, and their incarceration in the Tower may have been intended to show that the investigations into the Queen’s misconduct were entirely impartial.
On May 11, Cromwell visited the King at Hampton Court, where he discussed with him and finalized the arrangements for the coming trials before returning to York Place late in the day.56 Norfolk, who was to preside over the hearings, was as yet unaware that his fellow commissioners had found a true bill against the Queen, and on the evening of May 11, Sir William Paulet sent a messenger after Cromwell to let him know that:
… my lord of Norfolk showed me that he had no knowledge that the indictment was found, and asked me whether the parties should proceed to their trial or not. I told him I knew not. As to commissioners, he said he knew not how many were required, nor whether they ought to be barons or not. Therefore he could not tell whom to name; and if he knew, he would name no one till he learned of the King’s pleasure. So he willed me to advertise you.57