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Lord Chancellor Audley and the commissions of oyer and terminer of 1536

Posted By on April 24, 2018

On this day in history, 24th April 1536, Sir Thomas Audley, Lord Chancellor to Henry VIII, set up two commissions of oyer and terminer, one for the county of Middlesex and the other for Kent.

These commissions were used to investigate and prosecute serious crimes, including treason. On 10th May 1536, the Grand Jury of Middlesex met and ruled that there was sufficient evidence against Queen Anne Boleyn, her brother Lord Rochford, Mark Smeaton, Sir Henry Norris, Sir Francis Weston and William Brereton for crimes committed in the county of Middlesex, at Hampton Court Palace and Whitehall, to send them to trial. Similarly, the following day, the Grand Jury of Kent met regarding alleged crimes committed by these same people at Greenwich Palace, East Greenwich, and Eltham Palace and ruled that they should go to trial.

Although it is not clear whether these commissions were set up with these people and crimes in mind, they were used to judge Smeaton, Norris, Weston and Brereton on 12th May for high treason. It this coincidental? I think not.

Click here to read more.

Picture: Thomas Audley, 1st Baron Audley of Walden, posthumous portrait, English School, Audley End.

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20 thoughts on “Lord Chancellor Audley and the commissions of oyer and terminer of 1536”

  1. Michael Wright says:

    I wonder what pressure was put on these men and by whom to come to the conclusions they did. We know the charges made were certainly for the most part made up. As you have mentioned in your books Claire, dates and times just don’t match with what Anne and the men are accused of. This whole process up until Anne’s execution was such an intentional miscarriage of the law. I am not forgetting that 5 other men were also murdered by King Henry in this joke of justice.

  2. Banditqueen says:

    One thing to point out is that although suspicions were enough to order Oyer and Terminer, not just arrests for the investigation, I don’t think this was a coincidence and Michael you are quite right, some personal pressure would have been felt by several members of both Juries as many of them were connected to the noble families who sat in judgement of Anne and George and the other men, by patronage, marriage or affinity. This was a system by which people advanced in the Court or in the counties of certain old families. It was by being closely linked to some lord with pull that you and your family did well. In return they relied on your loyalty and did as you did, because they couldn’t afford to lose favour. Retainers also married into the family that they owed alliance to and became bound to their patrons. These juries were selected because of those connections, something well known to Cromwell who knew everything and everyone and chosen because they could be relied upon to bring the right verdicts. No arrests had been made, but suspicious rumours had already floated around and Cromwell was going to invent as good a case as he could to make it convincing. Even if he had the King’s blessing, this was Cromwell at his worst, making sure as many ridiculous, but shockingly convincing charges against Anne could be made, so as the case looked water tight. We know it wasn’t, but nobody was going to bother checking the details so they could happily be invented. What was also needed was something real to base them on and unfortunately for Anne, she provided Henry and Cromwell with that herself. Anne’s overhead, possibly even public, teasing of Henry Norris has to be one of the stupidest confrontations in history. It was meant as a love game, courtly love was expected, but it went horribly wrong. I don’t believe Anne, the instigator, or Norris the respondent, meant anything harmful to the King or literally imagined the King’s death.

    However, in the air of suspicion, that was how it was taken and Henry was so angry that his confrontation with Anne in the garden, with Elizabeth, may have been over her words with Norris. Norris was a good friend to both the King and Queen, he admitted that he admired Anne and she teased him over his affection for her. However, for some unfathomable reason Anne let her tongue get the better of her and spoke words, which under new laws bordered on treason. She told Norris that if Henry died, he looked to have her, looking for dead men’s shoes. Norris was horrified and protested, ironically saying that if he ever thought such a thing, he wished his head struck off. Anne joked she could arrange that. She made things worse by drawing attention to the argument by sending her almoner to Norris swearing she was a good woman. Now we don’t really know, but some version of this must have reached Henry and by extension Cromwell, who then took decisive action to take whatever investigation was going on to the next level, interrogation of a suspect. Cromwell picked the chump, the most vulnerable and least valuable of Anne and Henry’s circle, someone whose own conversation with her was noted as a problem, although innocent, the court musician, Mark Smeaton.

    Smeaton of course confessed, not because he was tortured, although George Constantine, a retainer of Henry Norris, believed he was, this is not evidence as no warrant was issued and Cromwell took Smeaton to his home to question him off the books, but because he was deprived of food and drink and questioned over and over for 24 hours. Cromwell was a persuasive man. The psychological pressure alone would make Smeaton crack and he probably had a sigh crush on the Queen anyway. Anne found him mooning about after her and rebuked him. That was a way in for Cromwell. Fine clothes, position, money, gifts from Anne were turned into something seedy, but in fact it was normal to award good service in this way. Smeaton also named Norris as her lover. Now her conversation with him was taken as treason. In the minds of this Tudor government agent, this please the King or else man, there had to be more to all of this and the rumours, accusations and findings of the grand juries now all fell into place with the evidence and testimony Cromwell had gathered during his two days of interrogations.

    Henry had to have given leave for the juries and investigation, but it was Cromwell who put everything together and went as far as he could. It was Cromwell who put them together and probably gave them instructions, along with Chancellor Thomas Audley who would have a legal role in any prosecution, whose position gave him authority to try and investigate certain cases, plus it was Cromwell who made the charges up. He was, I believe thinking ahead, but he didn’t quite expect people to give him rope to hang themselves with. The confessions of Mark Smeaton may even have taken him by storm, but he now exploited his power over his prisoner, ensuring he didn’t recant, with, I believe, a promise of a more merciful death. Henry Norris is believed to have been tricked into a confession later on, but did declare himself innocent again in court and when confronted by the King. Henry even offered his friend his life if he confessed but Norris refused. If trial by combat was still legal, I can just imagine Norris using such a device to gain a righteous judgement. However, it was no longer the case and he had to put up with a rigged jury trial like everyone else.

    These charges include some which are only added later, which shows the mind of Cromwell at work. Anne had later accidentally talked of other conversations with Francis Weston who was arrested. Every slightly dubious conversation was taken to give credence to the ridiculous charges already in the indictment and although totally innocent and without conncern, everything Anne said and did twisted to back up a complete pack of lies, just so as Henry could condemn his wife to death and appear as the wronged husband and that his life was in danger. Henry wanted people to believe her capable of anything and see him as the victim. Then he could move on to a new wife and in his mind people would see him as being in the right and badly done to by a woman who had beguiled him and was capable of the most immoral and evil things. This was the reason for the incest charge. Incest is rightly seen as vile even today, even between consenting, adult siblings or even first cousins, but it was totally shocking in an age of divine judgement, belief that most sexual practices were deviant and a belief in hell. If Anne was capable of trying to get a child or sleeping with her own brother, she was capable of anything, even regicide. This all may have stuck in Cromwell’s jaw or he may have not even cared as he was going to be rewarded if he pulled this off, but it was his duty to paint the accused in as poor a light as possible and unfortunately for Anne and her reputation, he did just that.

    1. Michael Wright says:

      The King and Cromwell may have gotten what they wanted with the destruction of six innocent people but those six got the last word. Today we speak of Henry and Thomas as the villains while Anne, George and the other four are seen as those who were wronged. Unfortunately even after almost 5 centuries this correction still needs to be stressed. Thank you Claire for this site that does just that.

      1. Banditqueen says:

        Amen.

        1. Christine says:

          Aw Michael that’s nice of you thank you.

    2. Catherine says:

      BanditQueen,I love you! Who are you?

        1. Michael Wright says:

          Yes we do. And we learn a lot from her (and Christine)

        2. Banditqueen says:

          Thank you, Catherine, Claire, Michael and Christine, everyone, very kind of you and I feel the same and have learned so much shared information as well. Much appreciated.

  3. Christine says:

    The commissions do seem sinister and like Claire I don’t think it was coincidental, all these events were leading upto Annes fall, the argument that Alexander Ales witnessed between Anne and Henry he related to Elizabeth 1st many years later, it’s frustrating because we do not know what was said but I believe it was about the flammable remark Anne had made to Norris, somehow Henry must have heard of it, and quite understandably he was furious, his queen had actually dared to speak of his death had joked about it with one of his courtiers and close friend, Anne in an act of desperation gathered Elizabeth to her and tried to appeal to his sentimental nature, she was the mother of his child, she was his true and loyal wife she would never deceive him, but this time she had gone too far and I think she knew it, that witty tongue of hers that could mesmerise an audience that had enchanted Henry years before was to prove her undoing, unwittingly she had given Cromwell the ammunition he needed to destroy her.

    1. Banditqueen says:

      I would love to know exactly what “evidence” or testimony was presented to these Grand Juries, particularly as much of the case is based on Mark Smeaton and Anne’s later rambling . Nothing was raised about her conversation with Henry Norris in the indictment or trial. He is of course, additionally implicated by Smeaton, but if much of this is coming from the Grand Jury, exactly what they were told, to find enough evidence to prosecute or try or for guilt is important. Unfortunately, we haven’t got a clue.

      A Grand Jury of Oyer and Terminer is instructed to remain secret if no arrests are made and to submit their findings into the Indictment. No arrests have as yet been made, so I assume whatever the Juries heard was at this stage secret. It is rather strange, however, that much of what they came up with appears later in the full Indictment. The Jury is only just meeting and will bring the Indictment in a few days time. The charges must therefore have been prepared in a hurry and handed to the jury with instructions to confirm them.

      Cromwell had taken a leave of absence to prepare all of this. I can just imagine the secret intelligence coming from the palace and his spies and the instructions going back and forth to the Jury. I can imagine everyone being on edge and a feeling something is not right. Then, suddenly Cromwell has his ‘evidence ‘. He probably couldn’t believe his ears. There is no doubting what Anne said bordered on treason, save for the context it was said in, which is why I suspect it wasn’t actually used. I think Cromwell and Henry had concocted enough of a damming case without specifics with regards to treason, just by saying she conspired with each of the men involved, for why else would she sleep with them if not to procure them to plot the King’s death. The dead men’s shoes incident was outrageous, but I don’t think Cromwell took it seriously. It was a bad joke, gone wrong. He had more serious testimony, he had lies and allegations of numerous love affairs, or so he claimed, he had the Queen joking about the King’s ability in bed with her brother, he claimed, he had dubious questions over the parentage of Princess Elizabeth, he had the rumours spread by the Countess of Worcester and he had a confession. Everything else he could invent and he had enough to take to the Grand Jury who could be relied upon to give the right verdicts and Indictment and then the rest allowed him to go to the King, confident Henry would order arrests and a trial. This is a vicious conspiracy against an innocent woman.

      Considering the job of the High Chancellor of England is to conduct trials and hear cases based on fairness or equity rather than mere common law and to guarantee the neutrality of the Court and that role was more or less always the same, Audley couldn’t have veered further from that if he tried. This was unfair and unjust, a complete stitch up from beginning to end.

  4. Esther says:

    A Google search revealed that a commission of oyer and terminer was used in a perjury case in the 1780’s; fans of the Lipscomb/Walker theory (great weight on Anne’s conversation with Norris on the 28th) may note that these commissions may have been set up to deal with perjury charges arising out of Henry Percy’s 1532 oath of no pre-contract.

    Seriously, though, I do not buy the “evil Cromwell” meme at all …. I think it was Henry who wanted charges that would leave Anne permanently shamed and disgraced.. After all, he would have blamed her for the failure to have a son — and considering the break with Rome was to allow a marriage that would give him a boy, this made him look ridiculous. He also would be angry that she thought the money from the monasteries should go to charitable and educational purposes instead of letting him get glory making war on France.

    1. Claire says:

      I don’t go with the evil Cromwell either, it just doesn’t make sense. If you consider the very different behaviour of 1536 and 1541 I really feel that it points to Henry knowing exactly what was going on and being behind it all.

      1. Christine says:

        Yes Henry began to see his marriage as cursed just like his first one, God was displeased with him and he showed his wrath by refusing him sons, the fact he had Mary and Elizabeth. amounted to nothing as they were female, according to Henry his marriage was childless because whilst he had daughters, it was sons he wanted, he wanted a way out of this marriage and he didn’t want no lengthy dragged out divorce either, interestingly he went down the same route as with Katherine, both hers and Annes marriages were annulled because they had never been, Katherine because she had been married to Arthur and Anne because he had slept with her sister, the dreadful charges against her was just to gain sympathy and to make her hasty death look justified, and to make sure his third marriage was legal and any children born legitimate.

  5. Banditqueen says:

    I think there is something in more than one of the theories. I suspect Henry had been expressing concerns about his second marriage for weeks. I don’t buy the evil Cromwell, but I do believe he made suggestions that something more permanent may be found as an answer to the King’s problems. With the King’s authorization and lead he went about the business of putting the legal framework in place, the case together, then things fell into place, by accident, the rumours and conversations reported back to him, gave him grounds for a full investigation and arrests ordered by the King as a result of all of this. I don’t see how one theory can be isolated from the others. Henry and Cromwell joined forces to conspire to bring the harshest charges against Anne and events fell into place to give credence to the lies. What I don’t believe either planned was the full extent of the investigation, that so many men would be accused. Cromwell was happy to accuse anyone, if it added weight to his case against the Queen, because he picked up on any bit of gossip from the Tower and palace, turning it into fanciful exchanges of love between the Queen and her alleged lovers. He placed spies in the Tower and everything Anne said was recorded, leading to more arrests and more invention. Anne recalled an innocent joke as part of courtly love and Weston ended up in the Tower. It was expected that a Queen be involved in games of courtly love and normally nothing would be thought but now that Henry wanted her gone and suspicions were raised, everything she said and did was fair game. Henry, obviously was the man who gave the orders, backed everything Cromwell did, the bits and pieces were put together by his minister and as much ‘evidence ‘ as possible was gleened from every innocent encounter with the men of her household or the King’s. Every visit to her rooms was examined, every glance, every flirtation, every conversation, every possible meeting, to gage who could be possible lovers and the details were completely invented by Cromwell. However, it was Mark Smeaton who was the key to making everything stick and his confession condemned Anne and three men. We don’t know for certain what other information Cromwell gathered but it is to be guessed at that Anne’s women were asked about men who had visited the Queen in the evening. The Queen had a household to mirror the King’s, which included gentlemen, she held parties in her quarters which included several ladies and gentlemen, the men arrested all knew both Anne and Henry well and were all in long years of service, they were reasonably well trusted and liked by both, so there was no reason to think they had anything but legitimate business when they came to Anne’s apartments and we are not talking of her bedroom. She most probably had other people around her and was modest and kept all decorum. There is nothing to show she was ever alone and if her brother came to see her, well he is family and you wouldn’t give any mind to his visits.

    Cromwell and his team could only have gone on a fishing trip, talking to anyone who could give him something to use, something to make his case sound plausible. I would suggest he found out very little, but what little he did hear he blew up to sound like a conspiracy. George and the Queen laughing about the King for example became a great scandal and slanderous talk about Henry in bed. The odd joke was turned into a hot love affair during which Anne and these men all plotted together or separately to bring about the King’s death. Mark Smeaton confessed to sleeping with Anne on three occasions. He said Henry Norris had also been known to sleep with Anne. Henry and Cromwell knew about her foolish dead men’s shoes, so that made sense. Judge Spellman wrote that Lady Worcester accused the Queen of goodness knows what, we are not told. However, we do know that this woman was a gossip and possibly an adulterous person who was accused of loose living by her brother. She retorted that the Queen was up to no good and this conversation was also reported to Cromwell and the King. It is my guess that he questioned Elizabeth, Countess of Worcester and she talked and talked, nothing but rubbish, but instead of dismissing it as gossip, Cromwell saw ‘,truth ‘ in her words. It was treason to gossip about the Queen, especially if it wasn’t true, but Cromwell was building a case for court. Ridiculous as her testimony probably was, unwittingly Lady Worcester had helped to condemn her mistress. In an age were most third party testimony and hearsay was accepted on the word of the sworn person, she probably didn’t even have to go to the trial. Her deposition was enough. Far from Lady Rochford, the normal scapegoat for George being the Queen’s lover, I suspect Lady Worcester accidentally placed him in Anne’s rooms and Cromwell had his case.

    Henry was ultimately responsible, because he was King, he alone could order a full investigation, but that doesn’t discharge Cromwell as being the one who collected the evidence and blew up out of all proportion, innocent exchanges between Anne and the King’s gentlemen in order to get a conviction. Ultimately, Thomas Cromwell invented an entire litany of fake meetings which don’t stand up to scrutiny and he planned the legal framework in order to get the right result. I accept Henry was responsible for giving the orders, but I also believe Cromwell pushed the idea that Anne was guilty in the first place, planning his strategy while absent from court. Anne fell into a trap, Cromwell found as much information from her interactions to close the trap. Some of the innocent conversations that she had also made her look guilty and the magnitude of the accusations made the case convincing. I also believe Henry believed the lies because it was convenient, much more convenient than if he had have gone for an annulment as he originally intended. Henry gave the original authorization, but Cromwell brought it all together, while Anne innocently gave him the fire to fuel the flames.

  6. Christine says:

    I think where Annes ladies were concerned Cromwell tried some passive aggressive bullying, imagine the scenario, Master Secretary wishes to question you on the queens activities, what on earth do you say, yes there is music and jesting in her apartments, several men are usually there, the queens brother Lord Rochford for one, Norris etc what does he want you to say, the courtly love ritual that has been apparent for several centuries has been darkened into something sordid so innocent smiles and words look and sound like adulterous affairs, her women must have been afraid and I wouldn’t be surprised if some of them babbled anything, Cromwell twisting their words, all he seemed to have against Anne was as Bq mentions just gossip and hearsay which would not stand up in court today, he was a crooked lawyer but that didn’t matter he had his ‘evidence’, Starkey said Cromwell used Annes sexiness to destroy her, she had always been a flirt and loved the company of men, therefore it was not hard to make the flimsiest of charges seem plausible, also she had said no doubt in temper that she would poison the princess Mary so it was quite easy to make her plot to kill Henry seem likely, years later Elizabeth 1st burnt most of the trial documents and so we do not know the extant of evidence against her mother, they could well have been damning and their destruction was possibly out of respect for her mothers memory, of course Elizabeths enemies liked to bring up Anne Boleyns ghost as a slur on the queen, ‘the bastard daughter of that infamous concubine’ as she was called, her mothers shame was something which Elizabeth kept to herself in the deepest recesses of her heart, several centuries later when the queen mum died princess Margaret had her mothers private correspondence destroyed, in keeping with hiding the skeletons in the family cupboard, maybe some things really are best left secret.

    1. Banditqueen says:

      Yes, indeed, a lot more could have been twisted and there appears to have been much more recorded than was used in Anne’s actual trial. Cromwell told the King, for effect probably that there were rumours that she had slept with over 100 men. Obviously, he would look like a fool to bring this as evidence as it really would sound unsubstantiated. There had been no suggestion that Anne was a Messalina, holding orgies every night in the palace, but the charges he did invent were damming enough. The accusations about Anne wanting to kill Mary and Katherine and even Henry Fitzroy, may not have been used either, but we do know that was a possibility because of Henry’s later remarks to his son that she had intended to kill him. Just where this came from is anyone’s guess but it points to Henry further blackening his wife’s name because Anne never said any such thing, even in her wild mumbling when she was under extreme stress in 1534/5, which is when she did wish Katherine and Mary would die as she couldn’t conceive while they lived. These were statements made in moments of madness and there is no evidence that she ever intended or attempted to put such things into practice. There is certainly nothing to support a direct threat against any member of the King’s family or her rival, Queen Katherine. Henry in the weeks following the unjust executions of some of his friends and his wife did have to put up with a degree of questioning and shock being expressed and even criticism, so it is not surprising he was justifying his actions. There is some evidence that Anne may have shown favour to Fitzroy and been involved in arranging his marriage to Mary Howard. Henry could simply have been assuring his confused son that his half step mother was not such a great person after all. He might have had a moment of regret and was again trying to convince himself he had acted in a righteous way. We don’t have all of the documents, it is very true, so we can only tease these things out but most certainly, there’s a lot of gossip that Cromwell could have used, much of it damming. This is where the preparation in advance comes in, with a case already being built before anything happened or any investigation took place and I think Cromwell limited the charges to those areas he had already decided upon. Like a prosecution attorney now, he was limited to what he could prove or persuade a jury was true and maybe saying Anne wanted to poison everyone was not as believable as he hoped.

      1. Christine says:

        The trial itself according to one observer was just all bawdy talk and lechery, I imagine a bit like a few girls discussing their love life’s today in the works canteen, i bet most of the peers who sat on her trial were embarrassed as some were old men, and the Duke of Norfolk, Annes own uncle wincing as the gory details came spilling out, it must have seemed inconceivable to any who knew her personally that Anne just wasn’t this awful lasvicious woman whom they were talking about, there were so many inconsistencies with the evidence that just did not add up, several dates where she was supposed to have committed adultery could be disproved, one occasion she was recovering from the birth of Elizabeth and had not been churched, it’s very unlikely that she felt inclined to amorous adventures and as Weir states, she was probably still bleeding and besides, men and both women held childbirth as a sacred event and it would have been against the beliefs of the day to have sex before she went through the ritual of being churched, in a modern court today the judge would dismiss the case as there was no evidence just womens gossip, ‘she said I said so to speak’, Lady Worcester I think was the woman who set the cat among the pigeons with her reckless remark about what the queen got upto in her apartments, as it all seems to stem from there, such talk was dangerous and she should have known better but maybe she thought they was not being overhead, but someone must have overheard and I think it’s highly likely Cromwell did question her, her remarks do sound deragotory towards Anne and when things are repeated they always sound much much worse, at her trial also there were no defence she defended herself, she had to listen to a load of filth said about her and here was a woman who had always prided herself on her virtue and piety, it was a dreadful miscarriage of justice which resonates today.

        1. Banditqueen says:

          I entirely agree with you, for she would have to have been an escape artist and have two doubles to be in two or three places at the same time. In addition to this, she had a baby and was confined in a room with a lot of women for 40 days afterwards, and not even Henry was allowed in. The poor woman found herself pregnant another two times and lost both babies. She was distraught and so was the King, but Anne was then vulnerable. I don’t know why this second miscarriage was so much more trouble than the first one, but Henry went to extreme lengths to first hide his desire to end his marriage to Anne and then to do so. Bang on the head having an effect on his brain? Enemies at the gates, plus a more vulnerable Queen? Questions we can’t really answer, but there is something very disturbing about trials based on salacious gossip. It is no better than the Salem Witch trials or some modern day so called historic abuse cases, many of which are based on nothing more than false allegations and rumours and have been proved thus. In the case of Anne and the Salem trials more than the reputation of someone was on trial, their lives are also in danger. Adultery wasn’t a crime, but violations of the Queen was, so was treason and the conspiracy to kill Henry put everyone in real mortal danger. A Queen of England had never stood trial before, publicly, let alone been executed, so the outcome was shocking. However, had Anne been guilty, Henry could say he was justified in law, no matter that she was his wife. She wasn’t and he knew she wasn’t or didn’t care.

          I feel sorry for Lady Worcester because although she obviously gave a lot of gossip up, I doubt she intended to be a crown witness and condemn the Queen. To me she was a foolish woman, used and dupped into her testimony. It was probably a lot of bawdy nonsense and you are right, Norfolk must have been really uncomfortable judging his niece like this. The jury was chosen for their loyalty to the King and affinity to the anti Boleyn factions at Court. I think half were affiliated to the Duke of Suffolk. It was a set up and a huge miscarriage of justice.

  7. Christine says:

    Yes and in today’s juries the defendant is allowed to say wether they want them to sit on their trial and more importantly, juries must not know the defendant, as they can be biased for and against them, Anne must have thought that the worse that could happen to her was exile, banished from court and maybe sent to a nunnery, something her proud spirit would rage against but she knew she would have little choice in the matter, many noble women had entered nunneries, some ex queens and kings daughters down the centuries, so it would have been nothing new, there they lived out their lives in piety as one of Christs handmaidens, she could never have guessed in her wildest imaginings that they had planned something entirely different and so terrible for her, she did not know it indeed how could she, no queen of England had ever been executed, before and she was to go down in history as the first one.

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