Shakespeare emphasizes throughout that the evidence against Buckingham consists entirely of reported words: “words of sovereignty,” “the duke said,” “certain words/ Spoke by a holy monk,” “says he,” “what he spoke/ My chaplain to no living creature but/ To me should utter.”
Treason for words was a shadowy area when Buckingham was tried, and had a varied legal history throughout the 1500’s. That words alone could constitute treason did not achieve statutory status until 1534, a provision repealed after Henry’s death. But “words” came and went and came again into the numerous treason statutes Parliament passed throughout the sixteenth century. The legal concept that words alone, without an overt deed, could constitute treason was unstable, and the legislation that at various times throughout the sixteenth century ratified this concept stands as a barometer of the government’s fears of the political climate in the country each time it passed. Buckingham’s trial preceded this series of changing treason statutes, however; he was tried under the 1352 act of treason (25 Edward III), and apparently argued in his defense that no overt act of treason stood in the charges against him (Bellamy, p. 151). That act provided, among other things, that “to compass or imagine the death of the king, his queen or the royal heir” was treason (Bellamy, p. 9), and “imagine” proved to be a slippery concept in the context of a treason charge. The nobles who comprised Stafford’s jury were perplexed about how to act on evidence that was both reported and written but that did not point to an active plot against the king’s life, and they asked Chief Justice Fineux for legal advice on the difference between felony and treason. His answer was that felony required an act, “but merely to intend the king’s death was high treason and such intention was sufficiently proven by words alone. In such cases no overt deed was needed beyond . . . the traitorous statement which revealed the intent in the mind” (Bellamy, p. 32). Once the peers have decided that Knevet’s allegations are true, therefore, Shakespeare’s Duke is simply referring realistically to the law: “The law . . . has done upon the premisses but justice” (II.1.62-63).
The justice thus historically reserved for Buckingham through Fineaux’s construction of the terminology of the 1352 treason statute is contrasted in I.2 with Henry’s treatment of the tax protest in Kent, which the text itself insists must be treated with the legally loaded word “rebellion.” Katherine (typically) meliorates that the protest of the clothiers “almost appears/ In loud rebellion,” but Norfolk corrects her, calling a spade a spade: “Not almost appears,/ It doth appear” (ll. 28-30). Popular disorders were another area in which definitions could be a matter of life and death, since the linguistic difference between “rebellion” on the one hand and “riot” on the other marked out for the government the boundaries between actions to be considered treasonable and those which were not. Bringing the charge of treason against the tax rebels was in fact debated in 1525—Wolsey apparently favouring the treason charge—but in the end the king’s counsel and judges concurred that the insurrection was to be dealt with as “only riot and unlawful assembly” (Bellamy, p. 21). By the time Henry VIII was written, however, legal interpretation of popular protest was decidedly less lenient. In 1595 the London apprentices rioted against the Lord Mayor, and in 1596 there was an abortive insurrection against enclosure in Oxfordshire,11 and though neither action was directed against the queen’s person, the leaders of both were charged with compassing to levy war and tried for treason: “Rebellion of all types was thenceforth a traitorous act and that very word which in earlier times had been associated with the withdrawal by peasants from their legal obligations and with assemblies of a riotous nature became synonymous with treason” (Bellamy, p. 81).
The writings deleted from the chronicle sources and the contrast with the rebellious masses in Kent are part of the design favouring Buckingham that finds its most obvious expression and most immediate theatrical impact in Katherine’s generous defense of the Duke. This is not found in Holinshed; what is found there is the epistemological difficulty of accepting the surveyor’s charges that lies behind Katherine’s arguments in the play. In Holinshed, the narrating voice of the historian departed (copying Vergil) from an external account of the fact of accusation to an internal account of its motivation. Holinshed entered the informer’s mind, and interpreted for the reader Knevet’s action against Buckingham as inspired by two base motives that had nothing to do with loyalty to the king: he was “partlie prouoked with desire to be reuenged and partlie mooued with hope of reward” (p. 658).12 Katherine appropriates Holinshed’s omniscient narrative in her addresses to Wolsey and the surveyor: interrupting the cardinal, she ironically reminds him that it would become his religious role better to “Deliver all with charity” (I.2.143), while to Buckingham’s former servant she delivers the solemn warning that with his dubious accusations he risks eternal damnation: “You were the duke’s surveyor, and lost your office/ On the complaint o’th’tenants; take good heed/ You charge not in your spleen a noble person/ And spoil your nobler soul” (I.2.172-175). Henry ignores this observation of the surveyor’s unsavoury reputation in Act I, but in Act V he recalls how corrupt knaves can serve corrupt masters, and here Shakespeare ironically assigns to the king himself the play’s most cynical evaluation of the fallibility always possible in legal procedures ideally meant to discover and guarantee the truth:
The justice and the truth o’th’question carries
The due o’th’verdict with it: at what ease
Might corrupt minds procure knaves as corrupt
To swear against you? Such things have been done.
Katherine’s partisanship is an important maneuver in the text’s recovery of Buckingham from history’s official opprobrium, since both her character and her arguments operate strongly in his favour; and though the two never meet on stage, the link established between them in this scene is a recurring textual association that carries mutual reflexes on their legal situations. In II.1, Buckingham’s plight explicitly suggests to the Second Gentleman comparison with that awaiting Katherine:
2 Gent. If the duke be guiltless,
II.1 alternates attention between Buckingham’s fate, already decided, with gossip of the uncertainties now gathering around Katherine, and II.2 shows that the gossip is true. The syntagma between Buckingham and Katherine in these scenes is re-enforced by the echoes in the descriptions of their trials. Buckingham concedes that, in having a trial at all, he is “A little happier than my wretched father” (II.1.120), who had been attainted in Parliament and so “without trial fell” (II.1.111); but he avoids pronouncement on the justice of his trial by granting simply that it was formally correct: “I had my trial,/ And must needs say a noble one” (II.1.118-119). Wolsey, projecting the clerical trial in England (where Katherine’s defeat seems more probable than in Rome), repeats Buckingham’s adjective (at the same time adding one the Duke had refrained from using) when he points to the importance of observing legal form: “The Spaniard tied by blood and favour to her/ Must now confess, if they have any goodness,/ The trial just and noble” (II.2.89-91)—though Katherine herself will shortly disappoint Wolsey’s expectations, when she contests the possibility of getting a fair trial in England. As in Act II, the first two scenes of Act III juxtapose the two plot interests. Following the cardinals’ visit to Katherine in III.1, the next scene opens (eight years after Buckingham’s death) with the nobles’ complaints about Wolsey and with Surrey’s “Remembrance of my father-in-law, the duke” (III.2.8) that gives him personal reasons to seek revenge against the cardinal, and memory of Buckingham’s trial returns at greater length in the argument between Wolsey and Surrey in lines 254-69. The intersection of the fates of Katherine and Buckingham also appears in two crossed metaphors: proclaiming his innocence to the end, Buckingham goes to a death that is “that long divorce of steel” (II.1.76), while the divorced Katherine receives the news of Henry’s belated solicitousness for her welfare as appropriate to one who has already been condemned and executed: “O my good lord, that comfort comes too late:/ ‘Tis like a pardon after execution” (IV.2.120-121).
Despite the passage of time, the play refuses to forget Buckingham, and he is explicitly named in IV.1, this time in connection with Anne, as the Two Gentlemen who meet to describe her coronation (in 1533) recall for the audience that “At our last encounter,/ The Duke of Buckingham came from his trial” (IV.1.4-5). Appearing innocently as fatuous court gossip in the mouths of nameless newsmongers, the anachronism that self-consciously harks back to 1521—together with that of 3 Gentleman’s reference to “York Place” rather than “Whitehall” (as if Wolsey’s fall from power in 1529 were too recent to avoid the linguistic confusion [“’tis so lately altered that the old name/ Is fresh about me”]—is a reminder of changing legal and political fortunes in Henry’s reign, strategically inserted into this high-point of Anne’s career. The play avoids showing Anne’s subsequent fall, but the audiences of 1613 already knew the trajectory of her story, and some at least must have reflected, even as they watched the splendour of the coronation ceremony, that her moment of glory would not last long, and perceived the ironies of imminent change that placed her in the same lengthening list with Wolsey, Buckingham, Katherine, and others.
Six years separated Buckingham’s death for treason in 1521 from the first rumours (which Henry angrily denied as untrue) of problems in the marriage between Katherine and the king, reported in the chronicles for 1527. The chronological gap obscures—and contemporary historical narratives did not point out—the common causality behind Henry’s antagonism to Buckingham and Katherine. Modern historians have long agreed that by the early 1520’s Henry had come to see in each of them a major threat to the continuation of his dynasty: Katherine’s non-production of a male heir was linked to Henry’s fear of any of Edward III’s male descendants who might contest the succession of Mary, whose sex weakened her claim to rule. But this is an evaluation that, even had they wanted to, Elizabethan chroniclers could hardly make, and between the temporally disjunctive fates of Buckingham and Katherine they wove no such political thread.. In their accounts they chronicled events that stayed within the boundaries of the regime’s official truths, and in this version Henry systematically eliminated potential problem-makers descending from Edward III because they were traitors and he sought annulment from Katherine because the marriage was against God’s law. By choosing to start with Buckingham’s trial for treason and linking him to Katherine, Shakespeare makes an association not easily visible in his chronicle sources. And yet, even as they are linked by the artistic logic of syntagma, metaphor, and chronological foreshortening, the play backs away from underlining the dynastic logic that historians now find so easily identifiable. In I.2 Henry puts an obvious question to the Surveyor: “How grounded he his title to the crown/ Upon our fail? To this point hast thou heard him/ At any time speak aught?” (I.2.144-46). But the Surveyor’s answer points to necromancy, not ancestry: “He was brought to this/ By a vain prophecy of Nicholas Henton” (ll. 146-47). Holinshed did not call attention to the dynastic logic that linked Katherine to Buckingham, but he did report the Duke’s dangerous closeness to the throne, through the surveyor’s account of Buckingham’s treasonous statement that “if ought but good come to the king, the duke of Buckingham should be next in bloud to succeed to the crowne” (p.659). Shakespeare suppresses this: about Buckingham’s royal blood the play remains completely silent. Not present either is Buckingham’s trial that occupies several pages in the chronicles. Henry has already publicly pronounced his own certainty of the duke’s guilt, however, so that the verdict surprises no one:
2 Gent. Pray speak what has happen’d.
1 Gent. You may guess quickly what.
2 Gent. Is he found guilty?
1 Gent. Yes truly is he, and condemn’d upon’t. (II.1. 6-8)
This is the only instance in any of the history plays in which conspiracy and the guilt of treason are left in doubt. In place of the gallows confession that would justify the state’s version of truth are Buckingham’s obstinate affirmations of loyalty, his equivocal evaluation of the course of justice and his pardon for those responsible for his death:
I have this day receiv’d a traitor’s judgment,
And by that name must die; yet heaven bear witness,
And if I have a conscience, let it sink me,
Even as the axe falls, if I be not faithful.
The law I bear no malice for my death,
‘T has done upon the premisses but justice:
But those that sought it I could wish more Christian:
Be what they will, I heartily forgive ‘em.
The theory of the law’s verdicts, as the word’s two Latin roots suggest, is that they pronounce truth, but the audience has been supplied with none of the usual theatrical evidence that nails down guilt, and Buckingham is sent to his death, in a text that signals various reasons to doubt that justice has been wrought. Having Katherine as his chief defender is an enormous boost to Buckingham’s reputation; but the doubts Shakespeare creates in his case also have reflexes that are pertinent to Katherine—in part by illustrating how non-conflicting evidence and uniformity of opinion about the events of the past are difficult to achieve, but principally by suggesting that—despite ideal theories of the law’s independence—the reality of law in Henry’s reign made both victims of partisan injustice brought about by Henry’s obvious power to bend legal process in the direction determined by his will.
If Shakespeare made the questions surrounding Buckingham more opaque than he found them, he greatly simplified the welter of legal problems that followed the belated awakening of Henry’s conscience about his marriage to his brother’s widow. Contradictions in the jurisdictions of law, in the legal past, and in legal procedure (not to mention the contradictions in Henry’s professed beliefs about the Pope’s power to dispense) emerged at every stage of the historical struggle between Henry and Katherine, and though Henry persistently opposed the Pope’s ecclesiastical power of dispensing his marriage to Katherine with the superior authority of God’s law enunciated in Leviticus, the Bible itself contained conflicting laws about marriage to a dead brother’s wife. (Leviticus xx, 21 affirms that “If a man shall take his brother’s wife, it is an impurity: he hath uncovered his brother’s nakedness; they shall be childless”, but Deuteronomy xxv, 5, enjoins a deceased man’s brother to marry the widow. Anne Boleyn’s sister Mary had been Henry’s mistress, thus creating impediment for marriage with Anne—for which Henry asked the Pope for dispensation—but Henry opted for Leviticus and a strictly to-the-letter construction of “brother’s wife” that ignored any problems of affinity in “wife’s sister” when he decided to challenge the 1503 bull of dispensation that had permitted Katherine and Henry to marry in 1509.) The legal moves and counter-maneuvers over seven years of litigation were intricate, but in the end both Henry and Katherine averred, though from different sides, that the basic question was whether or not the marriage between Katherine and Arthur had been consummated. And this is precisely the question that Henry VIII ignores.
Katherine always maintained that she had been a virgin when she married Henry; in 1527-28, Henry began to gather witnesses he would later use to affirm that she was not.13 The bull of dispensation that had permitted them to marry did not clarify this point for either side, since it had slipped the strange word “perhaps” into the preamble: “forsan consummatum.”14 After this uncertain opening description of marital relations between Katherine and Arthur, Julius’s bull goes on to dispense the impediment of affinity between Henry and Katherine. But affinity depended on consummation. Without affinity, the impediment was that incurred by the act of formal betrothal, “the justice of public honesty,” which—precisely because there was no affinity produced by coitus—required specific dispensation. If the marriage with Arthur had not been consummated, therefore, Julius had dispensed the wrong impediment. Henry’s awareness of the legal loophole open to him through public honesty is clear from the letter that was part of the documents dispatched to his agents in Rome in 1532: “For in the bull is expressed that the pope dispensed [upon affinity], which springeth not without carnal [copulation], and no mention is made of. . . justice of public honesty. . . . And so his bull was nothing worth, and consequently for lack of a sufficient dispensation, the marriage was not good, the impediment of justice and of public honesty letting the same” (quoted in Kelly, p. 154). But for Henry to avail himself of the defect of public honesty perforce necessitated his admission of the queen’s virginity at marriage. Unwilling to forego his argument that in divine law non-dispensable affinity existed between him and Katherine and gamble on the less heinous irregularity committed in ecclesiastical law, Henry relinquished the argument of public honesty that did in fact technically impugn the legality of his marriage, and to the end encouraged the public belief that Katherine’s relationship with Arthur had been consummated.15
The comparison of two texts that are nearly identical except for the crucial question of Katherine’s virginity illuminates the sensitivity of Tudor chroniclers to political issues and exposes the weight of censorship (whether official or self-imposed) to which their texts were exposed.16 Here is an excerpt from Katherine’s self-defense at Blackfriars in the version John Stow published in 1592:17
I haue beene your wife these twentie yeeres or mo, and you haue had by me diuers children, and when yee had me at the first, I take God to be my iudge, that I was a verie maid, and whether it be true or no, I put it to your conscience. If there be anie iust cause that you can alledge against me either of dishonestie or in matter lawfull to put me from you, I am content to depart to my shame and rebuke: and if there be none, then I praie you to let me haue iustice at your hand.18
Holinshed’s version is almost identical—except for the absence of the line I have emphasized above:
I haue beene your wife these twentie yeares and more & you haue had by me diuerse children. If there be anie iust cause that you can alleage against me, either of dishonestie, or matter lawfull to put me from you; I am content to depart to my shame and rebuke: and if there be none, then I praie you to let me haue iustice at your hand (p. 737).
The missing line would have been, after all, an inconvenient statement in a history that so often affirmed as historical fact that Katherine’s marriage to Arthur had been consummated.
Like Holinshed, the play also suppresses any mention of Katherine’s virginity; unlike Holinshed, however, it takes no stand at all regarding the consummation of her first marriage. Henry’s “conscience” is frequently—and by people out of Henry’s ear-shot, ironically—alluded to, but even in Henry’s longest public explanation, the real nature of the legal problem behind his “scruple” is kept vague:
My conscience first receiv’d a tenderness,
Scruple and prick, on certain speeches utter’d
By th’Bishop of Bayonne, then French ambassador,
Who had been hither sent on the debating
A marriage ‘twixt the Duke of Orleans and
Our daughter Mary: i’th’progress of this business,
And so it is with Katherine at Blackfriars in II.4. In her defense she recalls her obedience as a wife, and fidelity in “My bond to wedlock” ever since marriage to Henry. She has been sexually faithful to Henry, but the real issue, that concerned her sex life with Arthur, is skirted.
The delicacy about consummation with Arthur is noteworthy, particularly since her sexual activity with Arthur had been turned into such public material—a matter of prolonged international scrutiny, legislated on by Parliament and inscribed in the rolls of public statute, a subject for jokes in the chronicles about Arthur’s thirst when he rose in the morning after spending a hot night in the middle of Spain. But Shakespeare maintains silence about what happened privately between Katherine and Arthur, while he is not so delicate about Anne. Sands’ sexual badinage and his immediate physical familiarity with Anne in I.4 create a problematic introduction to her, and the tone set here continues. In addition to the scabrous dialogue in II.3 in which Anne and the Old Lady argue the economics of maidenhead (e.g., “for little England/You’d venture an emballing”), we also hear that Henry’s conscience “Has crept too near another lady” (II.2.18); “Our king has all the Indies in his arms,/And more and richer, when he strains that lady:/I cannot blame his conscience” (IV.1.45-47); “Believe me sir, she is the goodliest woman/That ever lay by man” (IV.1.69-70); it is “not wholesome to/Our cause, that she should lie i’th’bosom of/Our hard-rul’d king”(III.2.99-101)—with a double meaning of “hard-rul’d” certainly intended; at her coronation procession “Great-bellied women,/ That had not a week to go, like rams/ In the old time of war, would shake the press” (IV.1.76-78). In short, Katherine’s sexual conduct—which Henry, Parliament, and the Tudor chronicles turned into the central issue of debate in the litigation—is muted in the play, whereas Anne’s sexuality clearly is not.
Neither Henry nor Katherine was present when the legatine court first met on May 31, 1529, and received from Henry’s confessor, the Bishop of Lincoln, the pope’s commission to the legates. On the next day the royal couple received their summonses to appear on June 18, the day on which the public trial opened at Blackfriars (Kelly, pp. 75-78). Henry was represented by proxy, but Katherine appeared together with her legal counsel to announce her intention of appealing to Rome. On June 21, the court reconvened. It is this session which is reported in such detail by Hall, Holinshed, Cavendish, and Stow, and dramatized by Shakespeare in II.4.
The stage directions of the First Folio name four bishops—Lincoln, Ely, Rochester, St. Asaph—as among those crowding the stage in the trial scene, but of these only one—the Bishop of Lincoln—gets to speak. Lincoln was, as indicated above, of the king’s party; the silent bishops of Ely, Rochester, and St. Asaph were of the queen’s. In historical fact, John Fisher, the Bishop of Rochester, was known to have been courageously outspoken in the queen’s defense, and in Cavendish’s account of the events after Katherine’s departure from court on June 21, Fisher publicly contradicted Henry’s public announcement (compliantly backed by the Archbishop of Canterbury) that all the bishops had subscribed a document allowing their doubt of the marriage, and his protest contains a clear accusation of forgery: