Did Anne Boleyn Have a "Fair Trial"?

On May 15, 1536, Anne Boleyn and her brother, George, were convicted of adultery and incest and sentenced to death.

To modern eyes, what happened to those swept up in Anne Boleyn's fall is appalling, a gross miscarriage of justice. Even five hundred years later, we have documentary evidence to prove the charges in the indictment false. But according to the standards of the day, the criminal trial was fair and followed the standard legal procedures. King Henry wanted everything to be strictly "by the book." He knew the eyes of the world were watching this stunning course of events, an anointed queen on trial for treason.

In the Tower after her arrest, Anne Boleyn asked her jailor, William Kingston if she was "to die without justice." Kingston replied that even the poorest of the king's subjects had justice. Anne is recorded to have laughed at that, and some interpret that to be her ironic acknowledgement that the "justice" she was to receive was merely a formality before the inevitable execution.

If the letter "From the Lady in the Tower" is to be believed, Anne hoped an "open trial" would allow her to prove her innocence before the world. But it doesn't seem Anne ever had any doubt she and the others would be found guilty.

In the Tudor era, there was no presumption of innocence. 

The accused had the burden of proving their innocence, but the design of the judicial system made that almost impossible.

The preliminary court investigated the allegations, heard testimony and questioned witnesses. They presented their findings in the indictment. The indictment was taken as more-or-less established fact by the trial court, not something to be challenged by the defendants on an evidentiary basis. The question before the trial court was how the accused would respond to these facts.

For the most part, people believed the accused had to be guilty, or they wouldn't have been charged with the crime in the first place.

Many believed if a person was truly innocent, God would intercede with a miracle to prove it. Anne herself may have believed this, as evinced by her statements to William Kingston that it wouldn't rain until she was delivered from the Tower, or if she died, there would be a great punishment visited on England within seven years.

As John Strype explains it:

... thinking probably that God (who takes care of innocency) would vindicate her, by giving, or withholding the clouds of Heaven. [...] This she spake no doubt in the confidence of her innocency; and God's righteous and visible judgments for the most part, for shedding innocent blood. And indeed within the seventh year following, happened a dreadful pestilence in London, and many commotions and insurrections to the end of this reign.

The jurors were selected by the prosecution. 

Out of the fifty-plus peers in England, twenty-six were summoned. Many were hostile to the Boleyn and Howard families for one reason or the other, or owed their positions to the king's favor. In short, they were selected because they could be relied upon to deliver the verdict the king wanted. This was standard procedure.

Had the jury returned a verdict the monarch deemed "contrary to the evidence," the jurors could be fined or imprisoned. It wasn't a frequent occurrence, but it did happen. There's no doubt that was on the jurors' minds when they sat in judgement on the queen the king obviously wanted to be rid of.

It was also lawful to try a defendant again for the same crime if they were acquitted. William Brereton once convinced the king (supposedly with Anne's help) to re-instate murder charges against a man who had killed one of retainers. The man was convicted and hanged the second time around.

The accused had no advocates or legal representation to assist in their defense. 

The chief justice of the trial was ostensibly supposed to ensure that the proceedings against the accused were entirely lawful and did not impugn the few rights a defendant had. William Hawkins explained the reasoning behind this in 1721 when he wrote that if the accused was innocent, they would be as effective as any lawyer, but if he was guilty, his demeanor and speech would reveal it.

Consider that most common defendants might be kept in a squalid prison for months, where they had to pay for their own food, bedding, and water for washing - then brought before the court filthy and starving, and expected to answer eloquently to charges they had just heard for the first time. The nobility had the advantage of comfortable conditions, but they didn't necessarily know the law well enough to ague effectively in their own defense.

The accused did not know the charges until the trial began.

Until the 1600s, there was no precedent for allowing the accused to know the charges for which they were to stand trial until the day they stepped into the courtroom. In other words, they were forced by the nature of the system to come up with a defense on the spot.

Most defendants were imprisoned before the trial, and held incommunicado. The could not gather evidence on their own behalf beforehand, nor call for witnesses to come and help them defend themselves.

Had Anne Boleyn known the charges beforehand, and if she had access to her own records, she could easily have proven she was not in the locations where the alleged offenses took place and could not possibly have committed the crimes.

No witnesses were called. 

All of the witnesses had already given their testimony and been questioned by the preliminary court which had drawn up the indictments. There was no chance for the defendant to cross-examine them.

The sworn depositions of the witnesses were considered - essentially - an established fact beyond question.

In 1571, during the trial of the Duke of Norfolk, the Duke tried to question the testimony of one of the witnesses. One of the judges retorted, "He is sworn, there needeth no more proving." 

The notion that sworn testimony was somewhat sacrosanct lasted for a long time within the English legal system. The law held that no one would dare to swear falsely for fear of the punishment God would unleash upon them.

To avoid the somewhat sticky situation in which defendants denied sworn testimony, the defendants were not sworn. But without the oath, their words had less weight than those of the sworn witnesses for the prosecution.

In 1554, defendant Nicholas Throckmorton attempted to bring in witnesses to testify on his behalf, but the witnesses were not "suffered to speak." When Throckmorton tried to protest, the chief justice on the case told him he had no grounds for complaint, for he had been permitted to speak in his own defense as long as he liked.

Hearsay was accepted as evidence.

We don't know what Lady Bridget Wingfield supposedly said on her deathbed, because the trial records do not survive. Years after her death, Bridget's husband - known to be hostile to Anne Boleyn - appeared at the trial to recount the statement as evidence for the prosecution.

Lancelot de Carles claims some of the major testimony against Anne Boleyn came from Sir Anthony Browne (as identified by John Hussee), who reported Browne had chided his sister - the Countess of Worcester - for appearing promiscuous, and in response, the Countess claimed the queen's behavior was worse.

Browne reported the Countess had told him Anne allowed men into her room at inappropriate times, and accused Anne of incest with George. There is no mention of the Countess being questioned or testifying directly about these matters - nor of the fact that the Countess secretly owed Anne a substantial amount of money, unbeknownst to her husband.

The last piece of hearsay evidence comes from the trial of George Boleyn. He was handed a piece of paper with the last charge of the indictment written upon it and cautioned to read it silently. George defiantly read it aloud. It was a claim that his sister had told Jane Parker the king was impotent. It does not appear that Anne herself was asked to corroborate whether she had said this to Jane.

There was also no right to remain silent, or to protect a defendant against self-incrimination. 

The panicked babble of Anne after her arrest was used as evidence against her in the court. Indeed, Anne's arrest seemed to be engineered in order to take advantage of this trait she had of talking without guarding her words when she was frightened. Orders were given that every word she spoke was to be recorded, and her ladies were never to speak to the queen without Lady Kingston being present.

Testimony derived from torture was legal.

It's believed Mark Smeaton was tortured - or threatened with torture - in order to force a confession that he was Anne Boleyn's lover. George Constantine, the servant of Henry Norris, wrote about:

the saying was that he [Mark] was first grievously racked, which I never could know of a truth.

Torture was believed to be a tool for compelling "obstinate" persons to reveal the truth. It wasn't used as a punishment, or sadistic intent, but rather as a way of forcing the accused person to acknowledge what the prosecution believed to be factually established guilt. "Whereby he may be the better brought to confess the truth," one warrant reads. Another, written by Queen Elizabeth within a few months of her ascension, authorizes a man

to be brought to the rack, and to feel the smart thereof as the examiners by their discretion shall think good, for the better of boulting out the truth of the matter.

In the official records, warrants authorizing torture in criminal trials were issued eighty-one times between 1540 and 1640. There are undoubtedly more that aren't accounted for because of missing documents, gaps in the record and so forth. Certainly, a warrant for the torture of Mark Smeaton does not exist, but it could be part of the records of Anne Boleyn's trial which were apparently destroyed.

The nobility was exempt from the threat of torture. Only Mark Smeaton was eligible. It's probably not coincidental that Mark was the only one who confessed.

The threat of an incredibly painful death was probably also a factor. As a commoner, Smeaton would have experienced the full horrors of being drawn and quartered. In exchange for his confession, his sentence would be commuted to simple beheading, alongside the gentlemen. He may have needed no further incentive.


In short, there was little chance Anne Boleyn or any of her accused lovers had a chance of being found not guilty. 

In court, Anne and George gave the eloquent, "intelligent and plausible" defense of the innocent that was supposedly as good as a lawyer's assistance, but it availed them nothing. They were both found guilty, as Anne knew they would be. (In her post-conviction speech, she regretted her innocent brother would die with her, though he had not been put on trial yet.)

They were all encouraged to confess and throw themselves on the mercy of the king, but except for Smeaton, they all insisted upon their innocence. Norris, it's said, even offered to defend Anne's honor in a "trial by combat," an old legal tradition in which it was believed God would protect an innocent man and allow him to triumph in single combat.

Historian John Strype claimed to have seen a letter from Anne to Henry in which she angrily rejected a plea bargain which would require her to confess, and would insist upon her innocence, even if it meant death. Norris also is quoted as saying he would rather die a thousand deaths than condemn an innocent woman through falsehood.

Anne Boleyn did the one thing she could to restore her reputation, something even more powerful than the oath sworn by her accusers: she swore on the sacrament that she was innocent, both before consuming it, and afterward. The Tudors believed lying on the host merited instant damnation, an unforgivable sin. Anne would never have falsely sworn her innocence right before meeting her Maker. She called Kingston to witness it to make sure it would be recorded - just as her panicked words after her arrest had been - but this time, she would use that system to grasp the only vindication she could.

It was the only vindication she would get. She had hoped the trial would allow her to prove her innocence to the world, regardless of the actual verdict. However, none of the transcripts of the trial, examinations, or depositions survive. It's rather curious, for the records of the investigation of Katheryn Howard survive intact. But of Anne's trial, we have only the salacious indictment, and the verdict, slightly augmented by eyewitness testimony.

It's speculated the records were purposefully destroyed because the lack of evidence against the queen was troublesome, even given the lax standards of the day. It seems whomever destroyed them was relying on posterity continuing the contemporary presumption that a person charged with a crime must be guilty of it. They seem to have hoped Anne Boleyn would simply fade from the records and be forgotten as a shameful blot on history. They could never have anticipated our enduring fascination with her. Perhaps this, then, is the miracle Anne Boleyn hoped for.