On 24th April 1536, Sir Thomas Audley, Henry VIII’s Lord Chancellor and Thomas Cromwell’s right hand man, set up two commissions of oyer and terminer at Westminster.
‘Oyer and terminer’ comes from the French ‘to hear and to determine’ and denotes a legal commission formed to investigate and prosecute serious criminal offences, such as treason, committed in a particular county. A grand jury in the county would first investigate the alleged offence and then approve a bill of indictment, if there was sufficient evidence. The case would then go on to the commission of oyer and terminer, the court with jurisdiction to try the offence(s).1
The two commissions of oyer and terminer set up by Audley were for offences committed in the counties of Middlesex and Kent and covered the crimes of misprision, treason, rebellion, felonies, murder, homicide, rioting, plotting, insurrection, extortion, oppression, contempt, concealment, ignorance, negligence, falsities, deception, conspiracy and being an accessory to these crimes.2 The job of the commission was to investigate alleged crimes and to determine if there was indeed a case. These commissions were not common-place; in fact, there were only seventeen set up during the whole of Henry VIII’s reign.3 The fact that these commissions were so rare, combined with the fact that they were set up to judge offences in the counties of Middlesex and Kent – the counties of the grand juries which would later investigate the alleged offences of Anne Boleyn – suggest that the plot against Anne Boleyn was well underway at this time. These commissions surely could not have been a coincidence.4
Historian Eric Ives5 notes that Henry VIII’s signature was not on the patent of the oyer and terminer. This may suggest that the commissions were ordered not by the King, but by Thomas Cromwell and Thomas Audley. Both Ives and Alison Weir explain how these commissions were usually only ordered after an arrest. For example, in the case of Sir Thomas More, an oyer was only issued after he had been interrogated for eight weeks. Nobody had been arrested for treason in April 1536, so why the commissions? Could it be that Cromwell and Audley wanted to move quickly before the King could change his mind? Before Anne could talk him round?
Did the setting up of these commissions signal the end for Anne Boleyn? Was this event “virtually a death warrant for Anne”?6 I believe so. I think it is too much of a coincidence; these commissions in 1536 were certainly only used in the case of the coup against the Boleyns. No other case of treason was investigated at this time. However, G W Bernard7 believes that Henry VIII was fully committed to Anne Boleyn right up until her arrest and that the commissions need not have been set up to deal with Anne. He notes that as late as 25th April Henry VIII was sending instructions to Richard Pate, his ambassador in Rome, regarding his divorce from Catherine of Aragon. But was Henry just keeping up appearances or were Cromwell and Audley acting alone at this point? It’s impossible to know, but something was amiss.
(Extract taken from The Fall of Anne Boleyn: A Countdown by Claire Ridgway, p57-58)
Click here for an interactive timeline of the fall of Anne Boleyn in April/May 1536.
Notes and Sources
- Ives, Eric (2004) The Life and Death of Anne Boleyn, Blackwell Publishing, p322
- Encyclopædia Britannica. Eleventh Edition. (1911), Cambridge University Press
- Wriothesley, Charles (1875) A Chronicle of England During the Reigns of the Tudors, from A.D. 1485 to 1559, Camden Society, p190, Baga de Secretis Pouch VIII
- Weir, Alison (2009) The Lady in the Tower: The Fall of Anne Boleyn, Jonathan Cape, p89.
- Ibid.
- Friedmann, Paul (2010) Anne Boleyn, Amberley, p228
- Bernard, G W (2011) Anne Boleyn: Fatal Attractions, Yale University Press, p134
Thanks for the detailed explanation of oyer and terminer, Claire.
My opinion: No way would Cromwell and Audley dare to act alone, I think the King’s signature was deliberately left off of the documents. Assuming that Cromwell and Audley initiated the investigation without Henry’s “official” consent would assume that Henry VIII was a king to be easily manipulated and played for a fool…and I don’t have that image of him at all (at least not in this type of scenario…)
He was the all powerful ruler of England, and the Church of England at that point. Those men would have been risking their own lives to commission this attack without Henry’s knowledge, and Cromwell was to self-important for that type of game.
Imagine if someone dared to investigate/initiate charges against Anne in 1533 when she was so beloved by Henry! Heads would roll and they wouldn’t be Anne’s and the innocent men that were taken down with her in 1536.
I agree with you … no way that they would move without Henry’s knowledge and approval. Also, I don’t think Henry’s actions in April, communicating with Rome and tricking the Spanish ambassador into acknowledging Anne …. necessarily shows commitment to his wife. I think instead those things are designed both to feed Henry’s ego (so he can show the world he was right, no matter what) and to weaken Mary’s position, at least by undercutting her support system.
I agree, Esther, I think he would have still wanted to rest of Europe to ‘play ball’ whatever his personal plans. Anne was his wife and he expected people to acknowledge that.
If professional historians can’t figure out what exactly was going on, I doubt I can, but it’s still interesting to speculate (and I’m sure the mystery is exactly what the arrangers of the whole thing wanted). However, I’m not inclined to put too much faith in the argument that was genuinely committed to the marriage until May, because he was making gestures of commitment. Look at what happened to Wolsey a few years earlier — signs of favour, telling him to remove his cap and then wham!
It is so hard to believe that a year has gone by since you set up the The Fall of Anne Boleyn: A Countdown page and published the book. Now the journey begins again. Personally, I will see it differently because of the wealth of information that has been shared on this website and read in so many books this past year. Still, it’s so amazing to think about how quickly everything happened. In less than 3 weeks, Queen Ann will be arrested, charged, found guilty and executed. Overwhelming to imagine.
just thinking are we all so very glad that none of us lived back in henrys court ,sure we would all be in the tower for treason,it seems to me you were damned if you did and damned if you didn’t ,depending on henrys mood ,religion and who he favoured as wife at the time .you had no chance at all.
Margaret,I agree,but Henry did’nt really ahve a good mood unless he got his way at all time,and to him it never seemed he got his,never got that son did he. So I really think that he died with a very guilty mind,as look at all he ruined in one life spane. Hope all is well. THX Baroness von Reis x
hi baroness thank u ,all is well with me ,hope the same for you ,and I agree with you henry did want his way all the time and when he executed people he of coarse like all cowards blamed it on someone else when in reality he was the one that signed the death warrants ,he should have been overthrown ,he was out of control,and a very spiteful man.
Totally agree with the Henry’s ego thing concerning Chapuy Esther, I posted something on the same thought wave as you. Well said.
One thing that history shows us about King Henry VIII is that he was an expert dissembler. He could pat you on the back like it was good old times with bluff King Hal only to find yourself in front of the Council up on charges a short while later having to defend yourself.
I believe that Henry VIII was an integral part to the fall of Anne Boleyn and her family and he was playing both sides of the fence as he continues to for the rest of his reign. He wanted the investigation and the leg work all complete so by the time the Boleyns had found out just what was going on, it would be too late to stop it.
This way, Henry could also play the “victim” card and gain sympathy from his subjects for being “bewitched” which is why he moved heaven and earth to pursue Anne Boleyn and marry her.
It is amazing to look at the entire cast of characters that were present at Henry VIII’s court from the beginnings of his reign and just how many of them had been executed or were in disfavor by the time of Henry’s death.
Even though no-one had been arrested, suspician was enough for a commission to investigate. In the cases of rebellion and riot oyer and terminer had been used in the reign of Richard II to establish guilt of the crimes previously committed during the peasants revolt in 1381. In these cases the crimes had already been committed; the local juries and commissions were used to arrest and interrogate and to investigate these crimes. Whether or not this was lawful, or these commissions were misused at that time has been debated by Dodds and other historians. In this case I believe that Henry must have given the order; but distanced himself from it until formal charges and arrests were made. Cromwell could not have given such an order on his own; Henry would need to approve it or give the order to investigate and establish if there was a case to answer. I suspect that Henry already had suspicians about Anne, the investigations confirmed those suspicians and charges resulted both from that and the arrest and torture of Smeaton. The so called evidence that they looked at and found Anne guilty prior to her ordeal must have come from somewhere; and it must have been of such a nature that they were persuaded that she was guilty. Henry himself obviously believed the false charges against his wife and again, whatever Cromwell presented him with; just the detail of the Charge Sheet must have been convincing enough to allow Henry to accept them as true and agree to his wife’s condemnation and death. Plot or not; it all fell very well for the King; and if the oyer and terminer was set up ahead of any lawful investigation or arrest; then Cromwell’s plot must have been well in place; unless of course that too was a co-incidence?