Investigation, furthermore, shows that even after nearly 500 years, three-quarters of these specific allegations can be disproved. In twelve cases Anne was elsewhere or else the man was. Accusing Anne of soliciting Norris at Westminster on 6 October, with intercourse following on 12 October, was particularly careless and medically improbable; she was at Greenwich recovering after childbirth, indeed possibly still in purdah pending being churched. Two more charges can be ruled out if we presume that Anne was with the king at the alleged time. Soliciting Smeton at Greenwich on 13 May 1535 can also be discounted, since it supposedly led to intercourse there on 19 May, by which time Anne was actually at Richmond. The only offences for which there are not alibis are those alleged at Greenwich in November 1533 and over Christmas 1535-6. Perhaps the Crown just hit lucky, but in the latter case there is a darker possibility. Everyone, prisoners included, would remember where they had spent their most recent Christmas. Carelessness about facts except where it might be noticed must bring the whole adultery allegation into question. The Crown, however, was wise to that and had added to each charge the catch-all phrase: ‘and on divers other days and places, before and after’. Thus, even if a dated charge was challenged, the force of the indictment would remain.
20
Only a wife confined to a closed nunnery could hope to escape that trap.
The detailed particulars of Anne’s adultery were thus fiction. What, however, reveals the depth of government cynicism is that they were also immaterial. To have intercourse with a queen who consented was no crime at common law - ill-advised, to be sure, but punishable only by the Church courts as an affront to morality.
21
The adultery charges were there to prejudice opinion by repeating the phrase ‘treasonably violated the queen’ five times. Not that there had been any violation. Given Anne’s alleged consent, that too collapsed! The indictments, were, in fact, a device by the Crown to extend existing treason law in novel and oppressively retrospective ways. And there can be no doubt that this was deliberate, because the legal term for rape
- felonice rapuit-
was carefully avoided. In 1542 the Crown would effectively admit it had acted
ultra vires
by securing a statute making adultery with a queen high treason. Other accusations were also deliberate distortions. Anne was accused of corrupting the men’s allegiance with gifts. She supposedly did this at Westminster on 27 November 1535, when she was actually at Windsor. The other occasion was at Eltham on 31 December, when the queen certainly had gifts to give. It was New Year’s Eve! Her lovers were said to quarrel among themselves and vie for her favour - disputes made to seem worse by hints about sexual excess which, we have seen, derived from Smeton. The inference the prosecution intended should be drawn even reached France, where one rumour was that Henry was to be poisoned, after which one of the men would marry Anne and take the throne. The queen, in turn, was said to become incensed whenever any of them paid attention to another woman. The story that Anne had poisoned Katherine and intended to poison Mary was dragged in, even though it was not in the indictment.
22
The Crown also slipped in a statutory treason by alleging ‘slander, danger, detriment and derogation of the heirs’ of Henry and Anne. This was a virtual quotation from the 1534 Succession Act and the judges responded on cue by ruling that the offences would be treason under that statute.
23
Anne, in other words, was a traitor to her own daughter.
The determination of the Crown to secure convictions is also seen in the gossip that was shared with the court, what John Spelman meant by saying that ‘all the evidence was of bawdry and lechery, so there was no such whore in the realm.’ Its effect was deliberately enhanced by the decision not to try Anne first as the principal and the men only then as accessories. Instead, the four commoners were tried first on the basis of Anne’s Tower revelations before she had had an opportunity to challenge the construction placed on them. John Hussey wrote the next day to Lady Lisle of the huge impact this produced, even taken with a pinch of salt:
Madam, I think verily, if all the books and chronicles were totally revolved [turned over, and to the uttermost persecuted [prosecuted] and tried, which against women hath been penned, contrived, and written since Adam and Eve, those same were, I think, verily nothing in comparison of that which hath been done and committed by Anne the Queen; which though I presume be not all thing as it is now rumoured, yet that which hath been by her confessed, and others, offenders with her, by her own alluring, procurement and instigation, is so abhominable and detestable that I am ashamed that any good woman should give ear thereunto. I pray God give her grace to repent while she now liveth. I think not the contrary but she and all they shall suffer.
24
When Anne came into court two days later, her guilt had already been established in law; adulterers necessarily come in pairs.
25
The charge that this farrago of bawdry and lechery was designed to embellish, and the one that mattered, came last in the indictment - treasonable conspiracy to procure the king’s death. The specific allegation was that the plotters met at Westminster on 30 October 1535 and at Greenwich on 8 January 1536, although given the cover-all addition ‘at divers other days and places’ it hardly mattered that on the first the court was at Windsor and on the second at Eltham. But the really dangerous element in this charge was the assertion that the queen had many times promised to marry one of her lovers, once the king was dead, and had often said that the king never had her heart. The accusation was general, and Weston’s behaviour could easily be inverted and presented as supporting it. Chapuys, however, makes it clear that Norris was the particular target and that gifts by Anne to him were interpreted as tokens of this contract. This was very evidently based on Anne’s assertion on 29 April that Norris was waiting for dead men’s shoes. On her own admission she had discussed with the groom of the stool what would happen ‘if the king dies’ - or was it ‘when the king dies’, or ‘as soon as the king is dead’, or even, ‘if only the king were dead’? To speculate about and to wish for may be a wafer apart. Imagining the king’s death was treason by the original treason law of 1352, but it had recently been clarified that this also included words said. For good measure, the indictment did in fact claim that the king’s life had been endangered by the impact of the revelations; yet not only did the public pursuit of Jane Seymour show this supposedly enfeebled monarch decidedly in rut, the trial appears to have been silent on a construction which opened every adulterer to a charge of causing grievous bodily harm.
The point which is crucial in the argument about guilt or innocence is that the events on which this key conspiracy charge was based occurred on 29 and 30 April, and that the details were revealed by Anne’s frenzied disclosures in the Tower on and after 2 May. Anne and the others were not arrested and charged on the basis of carefully collected information; they were arrested, and the facts (so-called) then came to light. The judicious sequence of suspicion, investigation, evidence and arrest which Cromwell reported is a lie. Indeed, in the case of one of the accused, William Brereton, there seems to have been no evidence at all. Anne showed little reaction to the news of his late arrest, and despite his efforts, George Constantine never managed to discover the grounds for the charge against his old schoolfcllow. The appearance of Brereton among the queen’s ‘lovers’ is indeed odd. He was not a prominent courtier; Wyatt described him as ‘one that least I knew’, and as the king’s contemporary, he was an older man in the background of the Boleyn faction.
26
He was a dependant of Norris and, as we have seen, may well have been in on the secret of Anne’s wedding. However, he had wider links at court, with the duke of Norfolk and especially with the latter’s son-in-law, Richmond, so that when Norfolk and Anne fell out, Brereton was pulled two ways. All this might suggest that Brereton was unlucky to be singled out in May 1536 - a small fish caught up with the main catch. In fact, his arrest reveals the brutal pragmatism behind the choice of victims. He was picked on as an act of gratuitous malice (or perhaps rough justice), following an earlier and quite separate altercation with Cromwell.
Using his place at court, William Brereton had secured a virtual monopoly of royal appointments in Cheshire and North Wales. He exploited this authority to further Brereton interests, was a nuisance to Cromwell’s local agent, Bishop Rowland Lee, and promised to be an obstacle to plans then in their infancy to settle the Welsh border.
27
However, what really marked Brereton was a notorious judicial murder. His victim was a Flint-shire gentleman, a John ap Gryffith Eyton, whom he blamed for the death of a Brereton retainer. In 1534, William exploited his local muscle to arrest Eyton and send him under armed guard to London. Although Eyton was acquitted, Brereton had him rearrested, possibly with Anne Boleyn’s help, returned him to Wales and, after a rigged trial, saw him hanged - and all this in defiance of Cromwell’s efforts to save him.
28
In his
Metrical Visions
twenty years later, George Cavendish still echoed the feeling that Brereton’s fate was a deserved retribution:
Furnished with rooms I was by the king,
The best I am sure he had in my country.
Steward of the Holt, a room of great winning
In the Marches of Wales, the which he gave to me,
Where of tall men I had sure great plenty
The king for to serve, both in town and field,
Readily furnished with horse, spear and shield.
God of his justice, foreseeing my malice,
For my busy rigour would punish me of right,
Ministered unto Eyton, by colour of justice -
A shame to speak, more shame it is to write:
A gentleman born, that through my might
So shamefully was hanged upon a gallows tree,
Only of old rancour that rooted was in me.
Lo, here is th‘end of murder and tyranny!
Lo, here is th’end of envious affection!
Lo, here is th‘end of false conspiracy!
Lo, here is th’end of false detection
Done to the innocent by cruel correction!
Although in office I thought myself strong,
Yet here is mine end for ministering wrong.
29
The irony of Brereton hanging an enemy on a flimsy charge of felony, and then being himself executed on a flimsy charge of high treason, was a moral too good to forget.
Under analysis, the case presented by the Crown in May 1536 collapses. But one decisive argument for innocence remains - the evidence the Crown was unable to produce. In the Tudor court, privacy was a rare commodity. The queen would normally be attended, day and night. In no way could she pursue a liaison unaided. Any alteration in routine (for example insisting on sleeping alone or travelling away from court) would raise immediate comment. Even with Lady Rochford’s help, Henry’s fourth wife, Katherine Howard, had to entertain her suitor, Thomas Culpeper, in a privy! When Katherine did admit Thomas to her bedchamber, Jane Rochford had to be present, though she feigned sleep, and this conniving took her to the block along with the queen. But where was Anne Boleyn’s accomplice? How could a queen live a nymphomaniac life without help? Here is ‘the dog that did not bark’. Indeed, far from being accused or even smeared by association with their disgraced mistress, Anne’s attendants switched their service to Jane Seymour. Anne could simply not have behaved as alleged.
30
What seems to have come out from the interrogations of the women amounted to no more than ‘pastime in the queen’s chamber’. Thus it was said that she danced with her ladies and the king’s gentlemen in her bedchamber (something that was perfectly usual), and much was made of her being handed from partner to partner in the course of the dance.
31
If such stories had any point beyond darkening the atmosphere, it was in order to make out the most difficult case of all, that against Rochford. He, in particular, was accused of leading Anne into the dance - and so of handing her to the next man in the set. Much was made of Anne and George exchanging a kiss in public - although English women were famed for this across Europe and anyway, George was her brother - but the Crown claimed that this had been ‘deep kissing’.
32
Anne was accused of writing to tell George she was pregnant - a very sinister act. He was also asked about a suspiciously long stay alone with his sister in her room. Deliberately misrepresented, conventions of the court, courtly love and even family affection could be made damning.
One or two items among all the rest do, however, give pause. There was the accusation that the king had been held up to ridicule, that his clothes had been laughed at, and so too his attempts at writing verse.
33
Anne’s ramblings about Weston show that the licence she tolerated sometimes went quite far, while her own probing of the private emotions of the courtiers suggests an inability to keep a safe regal distance. She could not break herself of that even in the Tower, wanting to know how the other accused were housed and who made their beds, and when told that nobody did, joked that if they could not make their pallets they might be able to make ballets (ballads). There was a good deal in the response of one of her attendants (the not very favourite aunt), that ‘Such desire as you have had to such tales has brought you to this.’
34
Evidence of excessive high spirits never sounds good in a law court, and ‘pastime in the queen’s chamber’ does seem to have got somewhat out of hand. The lack of a son compelled Anne to continue playing the mistress, but did she go over the top in response to the appearance of a rival in Jane Seymour?
35
Alternatively, was Anne instinctively demonstrating to Henry that other men still found her exciting, or was she even hoping to make Henry jealous? Or perhaps there always something febrile in the game of courtly love. It has, indeed, been suggested that ‘unguarded speech and gossip’ is alone sufficient to account for Anne’s destruction. It triggered suspicion about the queen and the others and once an investigation began the consequence was inexorable.
36
This is unlikely, given the clear evidence of a political coup. But while loss of control within her household is not by itself sufficient to explain her destruction, it was where Anne was vulnerable and Cromwell ruthlessly exploited the weakness.