So far the evidence was inconclusive, dependent upon idle gossip and the chattering of Lady Rochford, but Catherine’s fate was sealed beyond reprieve when Culpeper himself confirmed Lady Rochford’s estimation by confessing that ‘he intended and meant to do ill with the Queen and that in like wise the Queen so minded to do with him.’36 Right or wrong, true or false, here was a confession of treason that was more than sufficient to cost the Queen her silly head, and Henry’s mercy, on which Catherine had so abjectly called, could not now be expected to save her.
At this stage in the narrative of these unhappy days, the reader is usually appalled by what appears to be the total and blatant disregard for the most basic and fundamental principles of justice. On what possible legal grounds could Thomas Culpeper, Francis Dereham, and Catherine Howard have been found guilty of treason? There is not a scrap of evidence to indicate an overt act of adultery; at worst, Dereham might conceivably have been guilty of misprision for having failed to disclose the existence of a precontract, and might have been said to have caused injury both to the State and the monarch, for having allowed Henry to marry under false pretences. Catherine could have been tried and condemned for bigamy, but not even the best efforts of the council could unearth positive proof that Culpeper had ever been the Queen’s lover. His only crime seems to have been the normal and masculine tendency of allowing his imagination too great a scope. The victims appear to have been falsely accused of crimes they never committed, and condemned on the most tenuous, distorted and vicious evidence possible – testimony which today would be thrown out of court as totally false and unacceptable. The credibility of the evidence and the nature of their crimes, however, must be viewed in terms of the social and ethical assumptions existing in the sixteenth century.
The law determining the character of treason under Henry VIII had been enacted in 1534. It extended the punishment for the most heinous act a subject of the Crown could commit to all who ‘do maliciously wish, will or desire by words or writing, or by craft imagine’ the King’s death or harm.37 Stated in this fashion, almost any word, expression, wish or deed could be construed as high treason. All that was necessary was to prove the malicious nature of the act or desire. In other words, the key to Tudor trials and to the reaction of the juries was simply the question of intent; no overt act was required. Condemnation upon the basis of presumptive treason was in no way regarded as being a miscarriage of justice, for thought must precede action; the imagined attempt implies the treasonous deed; and the execution of the criminal on the grounds of treasonous intent was simply the judicious nipping of treason in the bud.38 At the trial of Sir Thomas More in 1535, the King’s attorney-general argued quite logically that, ‘even though we should have no word or deed to charge upon you, yet we have your silence, and that is a sign of your evil intention and a sure proof of malice.’39
Culpeper, Dereham and the Queen were all caught on the basis of intent, on the secret malice that lay concealed within their evil hearts and the presumptive carnal desires that lay hidden in their imagination. In the case of Culpeper, the French Ambassador reported that he was condemned to death for having carnally known the Queen, ‘although he had not passed beyond words; for he confessed his intention to do so, and his confessed conversations, being held by a subject to a Queen, deserved death.’40 Dereham was executed upon a similar basis: ‘that his coming again to the Queen’s service was to an ill intent’ and that he and Catherine had ‘traitorously imagined and procured that he, Dereham, should be retained in the service of the Queen, to the intent that they might continue their wicked courses.’ To this the government added the further crime that Dereham had concealed the pre-contract, ‘to the intent of preferring the Queen to her royal marriage by which they deceived the King’.41 Catherine herself was executed for like causes, for the appointment of Dereham as her secretary and Katherine Tylney as her chamberer was construed as ‘proof of her will to return to her abominable life’.42 For a time even the Dowager Duchess was accused of presumptive treason, when she foolishly opened one of Dereham’s chests left in her keeping, and destroyed a number of the documents. Henry argued that the breaking of the coffers imported, ‘a marvellous presumption’ that the writings contained matters of treason and that the Duchess’s ‘intent’ had been to conceal such ‘letters of treason’.43 In the end the old lady of Norfolk escaped the charge of treason with its terrifying consequences. Instead, she was accused, along with other members of her clan, of misprision for having failed to divulge the truth about her granddaughter’s early activities, and for having deliberately contrived to deceive the King, by her assurances that Catherine was of pure and chaste living.
The ease with which the government could ‘construct’ treason is obvious, but there was also an added advantage to the system – that the victims almost invariably had to acknowledge the justice of their accusations. Although Catherine and her two admirers vehemently denied adultery, in the end all confessed their faults. It was not torture that extorted the plea of guilty, for it was extremely difficult not to admit that somewhere in their relations they had harboured secret carnal thoughts. Nor did society and public opinion have any doubt that they were indeed guilty of presumptive treason. One chronicler recorded that Catherine was, ‘found an harlot’ before the King married her, and ‘an adultress after he married her’, while a servant of the Dowager Duchess declared that ‘they were worthy to be hanged one against another.’44 Even the French Ambassador, who viewed English politics with a critical eye and the King’s matrimonial difficulties with Gallic cynicism, described Culpeper as a gentleman of the King’s privy chamber who had shared the royal couch and, ‘apparently wished to share the Queen’s too’.45
A sceptical mind might remark at this juncture that, even allowing the legal basis of presumptive treason, it is still impossible to accept the evidence offered by the government to prove the Queen a harlot. Torture we know was used against Robert Davenport, a gentleman who must have keenly regretted his friendship with Francis Dereham. The threat of physical coercion was directed against Culpeper, and in all likelihood both he and Francis Dereham were exposed to the more unpleasant niceties of sixteenth-century interrogation. Certainly the documents are filled with suggestive and pregnant phrases that support such a conclusion: the council in London reported early in the proceedings against Dereham that, ‘this much we know for the beginning’; the Duchess of Norfolk was questioned ‘both to make her confess’ and ‘also to cough out the rest not yet discovered, if any such dregs remain amongst them’; and with Davenport and others, the lords of the council endeavoured to ‘travail and labour to find out the bottom of the pot if it may be gotten out’.46
Not only is there ‘vehement presumption’ that torture was used, but the methods by which the witnesses were questioned are reminiscent of the artful procedures practised in certain countries today. ‘Everyone’s faults’ were ‘toted on their heads’,47 and treason was constructed by the most devious means. All the individuals concerned were exposed to exhausting and excruciating hours of endless interrogation, and the Dowager Duchess found herself, ‘so meshed and tangled’ in her evidence that her inquisitors naturally concluded that ‘it will be hard for her to wind out again.’48 Words, sentences, passing remarks, all were seized upon and torn out of context; and Thomas Wriothesley asked the council to send him a complete set of examinations dealing with the Duchess, Dereham, and Catherine’s life, both at Horsham and Lambeth, ‘that we may peruse them and pick all such things out of them as may serve to the purpose of our business’.49 Thus it was that Dereham was suddenly confronted with the damning statement of Robert Davenport, who unhappily recalled that Dereham had once told him he was sure of his influence over Catherine, and that if the King ‘were dead I am sure I might marry her’.50 Here was clear evidence of maliciously wishing, willing and desiring the King’s death, and the punishment was execution by hanging, disembowelling and quartering.
Moreover, much of the testimony was fo
unded on little more than idle, if imaginative, gossip, malicious and faulty memory, and a general desire to oblige the powers-that-be. It was, for instance, suddenly recollected that Katherine Tylney had said to Margaret Morton, ‘Jesus, is not the Queen abed yet?’,51 while Mistress Morton herself helpfully remembered in detail how she had first begun to believe that the Queen had evil intentions concerning Culpeper. She ‘never mistrusted the Queen’, she said, ‘till she was at Hatfield, where she saw the Queen look out of her privy chamber window on Mr Culpeper after such sort that she thought in her conscience that there was love between them.’52 More than one lady’s imaginative talents were exercised, as when a Mistress Anne Fox remarked that she had known for ‘a year past that the Queen was of ill disposition.’53
Considerably more than the condemned man’s life was at stake in treason trials. The government was not simply interested in what the Dowager Duchess harboured by way of seditious knowledge; it was also immensely curious about what she concealed in the form of cash deposits, and her interrogators were delighted when the old lady ‘fell on her knees’, and weeping ‘most abundantly, besought God to save His Majesty and to preserve him in long and prosperous life’, and then enhanced that prosperity by revealing where she had hidden some £800 in her mansion.54 In the same fashion, Lord William Howard, Catherine’s uncle, when imprisoned for his failure to divulge the truth about his niece’s character, added to his sins by claiming that most of his silver and plate had been lost at sea en route home from France. The King’s council was darkly suspicious of this explanation, and while the lord sojourned in the Tower, they gave orders to investigate whether this was true or some ‘crafty means to conceal and embezzle the same’.55
Political struggle for power as well as money lay behind much of the interrogation, for Catherine’s disgrace involved considerably more than a homily in Tudor morality. Enemies were quick to perceive in the scandal a means of implicating the entire Howard clan in a plot, which, if it had been credible, would have destroyed the whole conservative party. Efforts were made to dredge from the witnesses proof that the Howards had deliberately and maliciously misled the King into his fifth marriage, as a means of furthering their family political designs. Consequently the Duchess was tormented with such questions as:
in what sort she did educate and bring up Mistress Catherine, and what change of apparel she was wont yearly and ordinarily to give her? [When had she] first knowledge that the King’s Highness favoured Mistress Catherine’? [And after the King’s love became apparent] What apparel did she give her? What communication she hath had with Mistress Catherine of the King’s favour and what counsel and advice she gave her how to behave herself, and in what sort to entertain the King’s Highness and how often?56
There is little doubt that Audley, Seymour, Cranmer and others on the privy council opposed to the Howards, had high hopes of bringing down far more important game than Culpeper, Dereham or even the Queen. In fact, more than once it was suggested that the Duke of Norfolk’s ruin was imminent, and Marfllac reported that ‘of his future many presume ill and none good.’57
In the midst of such distortion, falsehood, and political malice, all the testimony is suspect from the start, and the only uncontroversial fact established was that Catherine was not a virgin at the moment of her marriage with the King, and that she might well have been the common-law wife of Francis Dereham. Unfortunately for the Queen and her associates, the truth of the testimony and the credibility of the witnesses were never paramount factors in determining the final outcome of their trials. Tudor England took pride in the fact that the common law forbade the use of torture, yet no one thought it a distortion of justice or of law that Davenport and the others involved with Catherine should have suffered upon the rack. The rights, liberties and privileges of the individual as embedded in the historic and common law of the realm had to be turned aside when appeal was made to the highest rule of the land – the welfare of the realm. The will of the State stood above the individual liberties of subjects; it even stood higher than justice itself. At stake was the most sacrosanct element of monarchy – the unquestioned succession. Every precaution had to be taken against doubt as to the purity of royal blood. Catherine and her lovers had committed the worst crime that could be committed, for they had confounded the succession ‘to the most fearful peril and danger of the destruction of your most royal person, and to the utter loss, disherison and desolation of this your Realm of England’.58 Kings might breed bastards with impunity, but Queens could not allow the breath of scandal to approach their lives. They could not even in the secret recesses of their hearts confess to adulterous desires, for in so doing they endangered the reputation of the royal offspring and the inheritance of the crown. In the eyes of the sixteenth century, it was obviously the benevolence of the deity that had prevented Catherine from giving birth to a royal heir, whose legitimacy would thereafter be in constant doubt. Catherine and her friends deserved death simply on the grounds that they had by their actions allowed adulterous rumour to touch the person of the Queen, and it made no difference whether those rumours were true or not. They still existed. Consequently, it made but little difference if the evidence on which the Queen was condemned was extorted by torture, or even if it was, strictly speaking, not true at all.
The veracity or falsehood of the testimony was the least important aspect of any trial for high treason, for the jury rarely if ever decided on the guilt or innocence of the prisoners. The question of guilt had already been settled by royal will, and the prisoners were considered guilty until proved otherwise. In the laconic words of Thomas Cromwell, the Abbot of Glastonbury was sent down to Glastonbury ‘to be tried and executed’.59 The outcome of the trial was never in doubt because the government always brought guilty men to court. Thus it was no great injustice to divide up and distribute Culpeper’s property before his trial and not after it. The role of a jury in treason cases was primarily declaratory, not to sit in judgment on matters of fact. The twelve good men and true rarely did what a modern jury does – listen to both sides of the case, evaluate the evidence, and then determine guilt or innocence. Instead, guilt was in most cases presumed from the start, and the jury simply publicized and revealed the truth. Trials in which a jury failed to find a traitor guilty on the basis of the government’s testimony were rare indeed in the sixteenth century, and the Tudors were justifiably wrathful when a jury failed in its manifest duty. One such case occurred in the house of peers in 1535, when the lords found William, Lord Dacres of the North innocent of the charges brought against him. Henry found it expedient to overlook this arrogant defiance of the royal pleasure, but when a London jury found Nicholas Throckmorton innocent of treason in April, 1554, Henry’s daughter Mary had the jury fined and imprisoned for ‘collusion and wickedness’.60
It was in no way regarded as being peculiar that foreign ambassadors and the entire privy council should have been present at the trial of Messrs Culpeper and Dereham. The lords of the council were not there to intimidate, but to lend dignity to the proceedings, which aimed at making public the awful truth of the culprits’ guilt. ‘Many people,’ said the French Ambassador, ‘thought the publication of these foul details strange, but the intention is to prevent it being said afterwards that they were unjustly condemned.’61 The more elevated the individuals involved, the more essential it was to achieve complete publicity. The government took the same attitude at the trial of Robert Davenport, who was ‘not only condemned by the order of the law, but [also] with such declaration of his offences as we think all the standers by did wonderfully both detest the man and the matter’.62
Once Thomas Culpeper had confessed his evil and seditious designs against the Queen’s virtue, events moved forward with grim determination. Over the weekend the unfortunate gentleman had been interrupted in his hawking and conducted to the Tower, a prisoner suspected of high treason. On Monday 4 November, Catherine was transported under armed guard to Syon. Not even imprisonment could impress
upon her the full magnitude of her sins, and she spent her time, ‘making good cheer, fatter and handsomer than ever’, and ‘taking great care of her person, well dressed, and much adorned; more imperious and commanding, and more difficult to please than she ever was when living with the King, her husband’.63 The council had not yet done with the Queen, and Cranmer and Wriothesley made periodic visits to inquire further into the details of midnight sessions with Culpeper. By the 22nd most of the evidence was in, and ‘proclamation was made at Hampton Court that she had forfeited her honour, and should be proceeded against by law, and was henceforth to be named no longer Queen, but only Catherine Howard.’64
By the first day of December the government was ready to strike at the Queen’s associates, and Culpeper and Dereham were arraigned at Guildhall, London, for their crimes of detestable and vile treason. Both men received the full and terrible penalty allotted by the law, and they humbly petitioned the King in his mercy to commute their punishment to the more humane death by decapitation. Though the council advised that the offence of Culpeper was so ‘very heinous’ that it warranted a ‘notable’ execution, Henry did extend his clemency to his late gentleman of the privy chamber, but Francis Dereham, whose claim upon the King’s indulgence was less, and who lacked influential friends, suffered the excruciating death reserved for traitors.65 True to the ethics of the age, both men died well. There were no last-minute pleas for mercy, no clarion cries for justice or statements of innocence. Instead, in the words of an eyewitness, on 10 December:
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