Henry VIII's Last Victim (53 page)

The public gallery was packed with an assortment of well-wishers, ill-willers and voyeurs. A collective murmur of excitement flooded the court as an official, bearing the axe, appeared in the doorway. Surrey was behind him with the Constable of the Tower. Slowly he was conducted through the court to the bar. They were all there, sitting proud on the King’s Bench: Wriothesley in the Lord Chancellor’s robes, William Paget, who had sworn to ‘honestly stick’ by Surrey, John Dudley, who had recently received Surrey’s letter of ‘parables’, Edward Seymour, once Surrey’s dining companion but now, like the rest, his bitter foe. The only absentee was Henry VIII, who in his majesty did not attend state trials.

The Clerk of the Council spoke: ‘Henry Howard, Knight of the Noble Garter of England, otherwise called Henry Howard, Lord of Surrey, hold up thy hand.’ Surrey held up his hand. The indictment was read out. Surrey heard how he had ‘falsely, maliciously and treasonously’ borne the arms of Edward the Confessor; how there could be no justification because the arms pertained only to the King and his heir; how he had therefore encompassed ‘the peril, scandal and disinheritance of the said Lord King and the overthrow of this his realm of England’. Surrey was told that he was ‘a public enemy’, that he had been seduced by the devil, that he deserved death.

This was probably the first time that Surrey had heard the precise nature of the charge against him, for the law did not require the prosecution to present the accused with a copy of the indictment before the trial. Nor would there be any presumption of innocence. Nor was Surrey allowed legal counsel or sworn witnesses on his behalf. And there would be no chance of appeal. As Surrey’s elder son put it when he later faced his own treason trial, ‘I am brought to fight without a weapon.’
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‘Henry Howard, how do you plead?’

‘Not Guilty.’

‘How will you be tried?’

‘By God and the country.’

The jury was then sworn in. Surrey saw twelve familiar faces, some friendly, some less so. They were all knights and squires of Norfolk, the county where his crime had allegedly taken place. They were Sir William Paston, Sir James Boleyn, Sir Francis Lovell, Sir Richard
Gresham, Sir John Gresham, Sir John Clere, Sir Thomas Clere, Sir William Woodhouse, Christopher Heydon, Nicholas Lestrange, Miles Hubbert and Henry Bedingfeld. Of the twelve, seven had served with Surrey on county commissions on three or more occasions.
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One can state with reasonable confidence that each juror, or an immediate member of his family, would have enjoyed Howard hospitality at some stage in his life.
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Some, like Sir James Boleyn, were related to the Howards by marriage, while others, like Sir John Clere (elder brother to Thomas Clere, whose epitaph Surrey composed), were personal friends. But there were tensions too, be they longstanding rivalries, as with the Pastons, or more recent areas of friction, like the matter of Sir Richard Gresham’s windows, smashed by Surrey on his riotous spree through London in 1543.

Several jurors would have faced conflicts of loyalty. Christopher Heydon, for example, was on good terms with the Howards: a ‘Mr Heydon’ had stayed for several days at Tendring Hall in 1527, a ‘Lady Heydon’ received an annuity out of one of the Howard manors, Christopher’s grandfather had named the Duke of Norfolk supervisor to his will and Christopher’s election as a Member of Parliament for Norfolk in 1545 probably owed something to the Duke’s influence. But Heydon also had a sister who married the son and heir of John Corbet of Sprowston, the man with whom Surrey had quarrelled over the chapel of St Mary Magdalen. Corbet considered Heydon his ‘right worshipful friend’ and would later appoint him supervisor to his will.
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Another juror, Nicholas Lestrange, enjoyed Howard patronage, but was related by marriage to Surrey’s original accuser Sir Richard Southwell. Henry Bedingfeld of Oxburgh Hall, whose family had presented the Howards with a gift of poultry in September 1525, was also intimate with Southwell, who referred to him as his ‘cousin and assured friend’ and would bequeath him his personal armour and his ‘best battleaxe’.
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If Surrey had objections to any of the jurors, he had to keep quiet; an act passed in 1542 had prohibited the accused in treason trials from challenging the enpanelment of juries.
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Surrey was probably still assessing his chances when the prosecution introduced their case. The armorial charge was presented and then all the other allegations that had been collated against him in the preceding weeks were read out. These formed no part of the indictment, but were offered up as substantive proof of Surrey’s malicious intent. Many of the testimonies,
including all of Rogers’ and nearly all of Carew’s, were based on hearsay, but the rules of evidence in Tudor England were not strict.
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There is no transcript of Surrey’s trial, but enough has survived in the accounts of eyewitnesses and chroniclers to reveal that he countered the charges with all the strengths and deficiencies of his character. Recalling happier days in the classrooms at Tendring Hall and Kenninghall, Surrey drew on his classical education and the precepts of Quintilian: ‘where we cannot deny the truth of facts that are urged against us, we must try to show that the purpose of the act was not what is alleged.’
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Yes, Surrey admitted, he had assumed the Confessor’s arms, but he had meant no harm, and certainly no treason, for ‘all his ancestors, Dukes of Norfolk’ had borne them ‘without challenge or impeachment’ and he had ‘the opinion of the heralds therein’.

According to Lord Herbert of Cherbury, ‘the Earl (as he was of a deep understanding, sharp wit, and deep courage) defended himself many ways: sometimes denying their accusations as false, and together weakening the credit of his adversaries; sometimes interpreting the words he said in a far other sense than in that in which they were represented.’ He denied that his portrait had been ‘inspired by evil thoughts’ and ‘excused himself by saying that he had done nothing to the prejudice of anyone, nor had he acted maliciously’. He admitted to having said that his father was the most qualified man to govern the country after the King’s death and proceeded to argue his case, presenting the Duke’s ‘merits and services in comparison with those of those who had been preferred to him’. When questioned about his plan to make his sister the King’s concubine, Surrey ‘emphatically denied the truth of the allegation’, and upon the presentation of Mary’s written testimony, exclaimed: ‘Must I, then, be condemned on the word of a wretched woman?’

‘If he had tempered his answers with such modesty as he showed token of a right perfect and ready wit,’ thought the chronicler Raphael Holinshed, ‘his praise had been the greater.’ According to the Imperial ambassador, watching from the public gallery, Surrey ‘did not spare any of the Lords of the King’s Council, who were all present, and he addressed words to them that could not have been pleasant for them to hear’. Paget was branded a ‘catchpole’ – a derogatory reference to his father’s employment as a bailiff.
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‘Thou hadst better hold thy tongue,’ Surrey sneered, ‘for the Kingdom has never been well since the King put mean creatures like thee into the government.’ Surrey also
abused one of the King’s Justices – ‘You are false and to earn a piece of gold would condemn your own father!’ – and when one witness, recalling an argument that he had had with Surrey, bragged that he had returned a ‘braving answer’, Surrey gave the man a withering glare, then turned to the jury and asked them to judge, ‘whether it were probable that this man should speak thus to the Earl of Surrey and he not strike him’.

The trial had begun at nine o’clock. Surrey defended himself all morning, through lunch, and long into the afternoon. As the light receded from the courtroom, the lonely figure of the erstwhile Earl, illuminated by the uncertain flicker of candles, stood firm. Commentators marvelled at this feat of endurance, but the King’s commissioners were not impressed. The longer Surrey was allowed to talk, the greater his chances of swaying the jury. Finally, court was adjourned and the jurors retired to consider their verdict. According to the
Spanish Chronicle
, they only came to a decision once William Paget, who had slipped away during the proceedings, returned with a direct order from the King. One might dismiss this story as apocryphal were it not for a revealing letter written by Surrey’s grandson to Elizabeth I, thirty-eight years after the trial:

My grandfather was brought to his trial and condemned for such trifles as amazed the standers by at that time and is ridiculous at this day to all that hear the same. Nay, he was so faultless in all respects, as the Earl of Southampton that then was [Wriothesley], being one of his chiefest enemies, fearing lest his innocency would be a mean to save his life, told Sir Christopher Heydon, one of his jury, beforehand, that though they saw no other matter weighty enough to condemn him, yet it were sufficient cause to make him say guilty for that he was an unmeet man to live in a commonwealth.
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Heydon had evidently expressed some doubts about Surrey’s guilt. Had others done the same? It is impossible to tell, but if they had, it is likely that they too would have received a visit from the Chancellor.

Jurors were not expected to keep the court waiting for long. They were held in virtual imprisonment by a bailiff who ensured that they had no food, drink or fire. Only once they had reached a unanimous verdict were they allowed to leave their chamber and receive sustenance.
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In this way, many cold, tired, hungry jurors must have been worn down. There was also the threat of reprisals. Those who reached
‘unjust’ verdicts might find themselves hauled up before the Council in Star Chamber to be rebuked, and sometimes punished, for their decision. Seven years after Surrey’s trial, the men who acquitted Sir Nicholas Throckmorton of treason even found themselves behind bars.
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The tantalising prospect of a share in the confiscated Howard patrimony probably also helped to remind others of their duty. Finally, there was the bill of indictment. Surrey’s jury was not allowed to consider arguments of justification, no matter how convincing. The indictment, already adjudged a ‘true bill’, declared that anyone other than the King or Prince who bore the arms of Edward the Confessor was a traitor. Surrey himself had admitted that he had borne the arms. It was enough.

At five in the afternoon, the jury filed back into the courtroom. The foreman, Sir William Paston, stood up and announced the verdict: ‘Guilty and he should die.’ The blade of the axe that had preceded Surrey’s entry into the courtroom was now turned towards him. ‘Of what have you found me guilty?’ he is said to have bellowed from the dock, ‘surely you will find no law that justifies you, but I know the King wants to get rid of the noble blood around him and to employ none but low people.’ After the prisoner had been silenced, Lord Chancellor Wriothesley pronounced the sentence:

Henry Howard, you are to be taken to the place from whence you came; from there to be dragged through the City of London to the place of execution called Tyburn. There to be hanged, cut down while still alive, your privy parts to be cut off and your bowels to be taken out of your body and burnt before you, your head to be cut off and your body divided into four parts, the head and quarters to be set at such places as the King shall assign.

‘The Earl had too great a blood to have so foul a thought. He was known to be thankful to God and too pitiful a man to embrace so wild an act.’ Such was the view of one seventeenth-century commentator. It was shared by Gilbert Burnet, who stated in the first part of his
History of the Reformation of the Church of England
(1679) that Surrey’s fall ‘was generally condemned as an act of high injustice and severity . . . He was much pitied, being a man of great parts and high courage, with many other noble qualities.’
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By then a legend had grown up around the Earl of Surrey. One should hardly be surprised. Modern times furnish us with enough examples of the romanticisation of young lives, full of promise, cut
short before their time. There seems to be a basic human need to embalm tortured souls, preserve their innocence and hold them up as
exempla
for future generations. Following the publication of Tottel’s
Miscellany
in 1557, Surrey was celebrated as the pioneer of polite verse – ‘his was love exalted high / By all the glow of chivalry.’
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It was not an image that sat well with treason. Later writers either ignored the circumstances of Surrey’s death or fashioned them into an epic tragedy.

For Thomas Chaloner, writing in the first decade of Queen Elizabeth’s reign, the ‘wound’ of Surrey’s execution was still painfully fresh. Had the young ‘hero’ not fallen victim to ‘Envy’ and ‘Slander’ then, thought Chaloner, ‘our generation would have seen nothing greater, or more distinguished with illustrious deeds, than this man, so great was the courage in his blazing heart, so great the spirit in his noble visage.’
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In 1580 Thomas Churchyard, who had spent part of his youth in Surrey’s service, painted his master as an almost Christ-like figure:

His virtues could not keep him here, but rather wrought his harms,

And made his enemies murmur oft, & brought them in by swarms.

Whose practice put him to his plunge, and lost his life thereby,

Oh! cancered breasts that have such hearts, wherein such hate doth lie.
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