Henry VIII's Last Victim (50 page)

Surrey did, however, have a valid claim to the arms attributed to Edward the Confessor. In 1397 Richard II had granted Surrey’s ancestor, Thomas Mowbray, first Duke of Norfolk, the right to display those arms in his shield. In subsequent years the Mowbray and Howard Dukes of Norfolk had exercised that right as the noted instances of display at Thetford Priory, Framlingham Castle and Kegworth Church in Leicestershire revealed.
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Had Surrey’s ancestry been less impressive, his actions might have been overlooked. But the fact that he could, and did, boast of his descent from kings (and not only from Edward I by virtue of his Mowbray and Brotherton ancestors, but also from Edward III through his mother’s line) made his heraldic pretensions appear more
threatening. ‘For what intent and purpose you put the arms of St Edward in your coat armour or escutcheon?’ Surrey was asked, and why ‘at this time more than . . . at any other time before?’
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Lord Chancellor Wriothesley, whose father, uncle and grandfather had all been heralds, knew of Surrey’s rightful claim to the arms of Edward the Confessor through his Mowbray ancestry. This presented a huge obstacle in any attempt to charge Surrey with heraldic treason. Wriothesley sought to overcome it by concentrating, in his interrogation of Surrey, on the mythological claim. We do not know how Surrey responded, as all his answers have been lost, but Wriothesley’s approach was clearly adopted in order to undermine Surrey’s credibility and divert attention from the valid claim. It also served to highlight Surrey’s regal pretensions, especially if he could be entrapped into claiming legitimate descent from the last Saxon King.
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Wriothesly faced another obstacle in the actions – or rather, the lack thereof – of Christopher Barker, Garter King of Arms. He was England’s chief herald and it was his job to investigate and, if necessary, report any abuses. He had challenged the validity of Surrey’s arms at a meeting with the Earl in August 1545 and also claimed to have sought the aid of Surrey’s friend, Sir Edward Warner. But thereafter he had not deemed it necessary to report Surrey either to the Duke of Norfolk, who as Earl Marshal presided over the College of Arms for the King, or to Lord Chancellor Wriothesley. Why not? The logical answer is that Surrey, as he maintained at his trial, ‘had the opinion of the heralds therein’.
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In other words, Barker had been satisfied with Surrey’s armorial display once he had removed the offending Anjou quarter.

Much, therefore, hinged on Barker’s deposition:

Also concerning the Earl of Surrey, a little before he went to Boulogne, Richmond Herald wrote a letter to me to come with all speed to speak with the said Earl in a morning and thither I came and tarried the same morning the space of an hour ’or I spake with him. And at the last, he sent for me into a gallery in his house at Lambeth and there showed me a scutcheon of the arms of Brotherton and St Edward and Anjou and Mowbray quartered and said he would bear it. And I asked him by what title and he said that Brotherton bare it so. And I showed him it was not in his pedigree and he said he found it in a house in Norfolk in stone graven so and he would bear it. And I told him it was not his honour so to do. And so, at the last, he said he would bear it and that he might lawfully do it. And after that I saw him so wilful, I spake to Mr Warner in Paul’s to tell him that he might not do it.
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As a recent study of the heraldic charge against Surrey has shown, ‘three features of Barker’s deposition should have raised red flags in the mind of any well-informed reader’.
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First is the ‘also’ at the beginning – a telltale sign that the record we now have is incomplete. One plausible suggestion is that the missing text probably gave details about the quartering that Barker had forbidden.
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This raises the second flag: Barker does not actually specify which quarter or quarters he objected to. Instead he fudges the issue by referring to the whole coat, including the arms of Mowbray and Brotherton which the Howard Dukes of Norfolk and their heirs had always borne. Finally, the statement that Surrey had a right to the coat because ‘Brotherton bare it so’ is ludicrous. Thomas of Brotherton had no Mowbray ancestors, only Mowbray descendants (Thomas Mowbray was his great-grandson). Therefore, he could never have borne the Mowbray quarter. Surrey had either said Brotherton by mistake or Barker had written it down in error. Either way, the intention was ‘Mowbray bare it so’, not Brotherton, and Surrey backed up his defence by citing solid visual evidence.

The error was realised before Barker’s deposition was shown to Henry VIII.
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But Surrey’s imputed words were not corrected. Instead Barker’s reference to the Mowbray and Brotherton quarters was cut. The only specific references left were to Anjou and St Edward, thus covering up the error and limiting the appearance of Barker’s equivocation over what he had specifically forbidden Surrey to bear. It also wilfully misled the King over Surrey’s right to the arms of Edward the Confessor. Henry VIII read in the doctored version of Barker’s deposition that ‘the Earl said that Brotherton bare them’, but this was impossible as St Edward’s arms were granted to Thomas Mowbray by Richard II in 1397, fifty-nine years after Brotherton’s death in 1338. Thus Wriothesley, who had already diverted Henry VIII from Surrey’s legitimate Mowbray right by concentrating on the mythological claim, further clouded the issue by allowing another invalid claim to be introduced.

There is, however, one aspect of the King’s version of Barker’s deposition that works in Surrey’s favour. Whereas the original statement is unclear as to why Richmond Herald wrote his letter summoning Barker to Lambeth, the King’s copy states that he had done so at Surrey’s behest. This means that Surrey had actively sought heraldic approval. That his
coat afterwards bore no trace of the Anjou quarter also suggests a willingness to follow any directive that Barker may have expressly given.

It was said that Barker was ‘a much honester man’ than his predecessor as Garter King of Arms, but his attempt before his appointment to the office to bribe one of his rivals into dropping out of the running suggests otherwise. The knighthood he received a month after Surrey’s trial also raises suspicion.
^fn7
,
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Yet he was, at least, honest enough never to claim that he had specifically forbidden Surrey from bearing the arms of Edward the Confessor. His discomfort is apparent at the end of his deposition where he attempts to shift the responsibility towards Surrey’s friend, Sir Edward Warner.

In his own deposition, Warner admitted that he had ‘at diverse times’ spoken to Surrey about his pedigree. He claimed that he had questioned the propriety of Surrey’s adoption of the Confessor’s arms, but had not, he admitted, advised against it ‘with precise words’. He had also spoken to Barker ‘diverse times’ about Surrey’s bearing of the arms of Anjou and Edward the Confessor and both had agreed ‘that he might not bear these said arms lawfully’. Barker had claimed that Surrey’s obstinacy had driven him to seek Warner’s aid. Warner, though, was under the impression that Barker had already dealt with the matter:

whereof I was glad thinking it was more seemly for him who, by his office had authority so to do, than for me to whom the matter did no whit appertain, nor at that time, for lack of skill, so well weighed the matter and his abuse therein as I have done since by better understanding. This is all I can say in this matter to my remembrance.
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At the last resort, then, neither Barker nor Warner had expressly forbidden Surrey from bearing the arms of Edward the Confessor. Nor should they have done, for although Surrey’s appropriation of the arms was ill considered, it was not illegal. Nevertheless, Wriothesley’s gentle massaging of the complex evidence made it seem, at least to the King, as though Surrey had committed the double crime of thwarting the rules of heraldry and of defying the arbiter of those rules, in this case the Garter King of Arms.

Wriothesley was still not satisfied. Section twelve of the Second Succession Act of 1536 stated that any kind of malicious threat to the King or the succession, or any attempt to disturb or deprive the King and his heirs of their royal titles and dignities ‘by words, writing, imprinting or by any exterior act or deed’ was high treason.
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The usurpation of royal arms, though not explicitly mentioned, was arguably covered by this section. But Surrey was a master of language, perfectly capable of justifying his bearing of the Confessor’s arms and arguing against any treasonable intent in so doing. The case against him had to be watertight. He simply could not be allowed to conjure an acquittal through linguistic wizardry. So the bill of indictment against Surrey was drawn up in such a way that he would have to be found guilty, no matter what.

It begins by citing the pertinent clauses of the Second Succession Act and then blazons the arms of Edward the Confessor – ‘
azure, a cross fleury, between five martlets gold
.’ These arms, the indictment states, ‘are the unique and singular property of our present Lord the King alone and of his aforementioned most noble ancestors, the kings of this realm of England, and not of any other persons whatsoever in the shape and form in which the aforesaid present Lord King and his aforesaid ancestors used, bore and possessed them as a privilege of the said Crown of England.’ Moreover, ‘the aforesaid arms and insignia with three labels called
three labels silver
’ belong ‘uniquely’ to Prince Edward as heir to the throne ‘and not to any other subjects’.

Yet Henry Howard, a Knight of the Most Noble Order of the Garter, lately of Kenninghall in the county of Norfolk, otherwise called Henry, Earl of Surrey, who has not kept God before his eyes, but has been seduced at the devil’s instigation and who, by taking no account of the allegiance he owes and his aforesaid rank, but like a false and malicious traitor and a public enemy of the aforesaid most mighty and most serene Lord our present King . . . in order to accomplish and fulfil his false, malicious and treasonable intentions and aim and encompass the peril, scandal and disinheritance of the said Lord King and the overthrow of this his realm of England as far as lies within his powers, contrary to the allegiance which he owes his monarch, did, on the 7th day of October in the 38th year of the reign of the aforesaid Lord the King, at Kenninghall in the aforesaid county of Norfolk, in the house of his father Thomas the Duke of Norfolk, falsely, maliciously and treasonously, in full public view in that same place, have, raise and bear and in addition treasonably in that same place and time did cause to be made and painted right next to his own coat of arms, that is, those of Henry Howard, the aforesaid arms and insignia of our Lord the present King, along with the three labels called ‘three labels silver’, in order to crush, destroy, bring to nought and scandalise the true and indubitable title of the aforesaid Lord the present King to the Crown of this his realm of England.

In addition his purpose was treasonously to disinherit and block the advancement of the said most excellent Lord Prince Edward from his true and indubitable title in the case of, and towards, the Crown of this realm of England . . .
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Surrey, the indictment concludes, not only went against the ‘form and effect’ of the Second Succession Act as well as ‘diverse other statutes recently published’ in his attempt ‘to cause scandal, peril, derogation and contempt’ towards Henry VIII and his title, but he also threatened rebellion in his ‘opposition to the peace of the said Lord King and his rank’. The indictment is long and full of convoluted clauses, but at its heart is a basic syllogism: it was treason to threaten the succession; in usurping royal arms and insignia, Surrey had threatened the succession; ergo Surrey was a traitor.

Of course the indictment was specious. The arms of Edward the Confessor were not the exclusive preserve of royalty. Surrey had a legitimate right to bear them, although Wriothesley, as we have seen, had done his level best to obscure that right. On this particular issue, therefore, no treason had been committed. Yet the indictment ruled out any arguments of justification. Surrey’s jury would have no cause to debate the niceties of the case. If the indictment’s interpretation of the statute, and its practical application of Surrey’s ‘crime’ to it, was ruled valid, then the jury would have to determine Surrey’s guilt or innocence according to its flawed logic.

On 31 December 1546 a special commission was appointed to enquire into treasons in Norfolk and on New Year’s Day it issued a precept to the sheriff of the county to summon a grand jury to determine the validity of the indictment. On 7 January that jury met at Norwich Castle and found the indictment a ‘true bill’, grounded upon the Second Act of Succession. A commission of ‘oyer and terminer’ was then appointed to hold sessions in London to try, with a jury from Norfolk, the Earl of Surrey upon the indictment returned against him. The date was set for 13 January 1547.
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^fn1
Norfolk is referring here to Agnes, the Dowager Duchess of Norfolk, who was arrested for her alleged concealment of Catherine Howard’s adultery. Agnes was in fact Norfolk’s stepmother, not his mother-in-law.

^fn2
patching
: deceitful.

^fn3
fere
: companion.