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Henry VIII's will – a forensic conundrum

Published online by Cambridge University Press:  25 March 2010

E. W. Ives
E. W. Ives
Affiliation:
University of Birmingham
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Abstract

The 30 December 1546 date for the finalizing of Henry VIll's will is vindicated and the text re-established as the king's own work, namely (1) the supposed priority of a copy dated 13 December is shown to be erroneous; (2) the hypothesis that the will was manipulated by faction is rejected because (a) a reconstruction of the operating procedure of the Dry Stamp Office indicates the strong probability of the traditional date, (b) analysis of provisions allegedly suggesting forgery reveals no valid grounds for suspicion, and (c) circumstantial evidence; (3) the real interest of the Seymour faction in January 1547 is demonstrated as lying in implementing the king's intentions. An hypothesis is offered as to the king's motives. The prominence given to reformers is explained as projecting forward a movement from orthodoxy to reform which was inherent in the Supremacy. The conciliar provisions for Edward's reign are argued to be an attempt to create a closed regency council which would prevent both faction and individual bids for supremacy. The fact that Edward Seymour could become de facto regent only by a coup which jettisoned the will, is a vindication of Henry's provisions.

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Articles
Information
The Historical Journal , Volume 35 , Issue 4 , December 1992 , pp. 779 - 804
Copyright
Copyright © Cambridge University Press 1992

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References

1 The original of Henry VIII's will is Public Record Office E23/4/1. Variant spelling apart, the transcription in Rymer, T., Fotdera (1704-1735), XV, 110–17, is excellent and is used hereafter, with the MS foliation given. The one significant error is at fo. 9v [Foedera, xv, 113] where ‘in cace…the Lady Mary do not kepe’ should read ‘do kepe’, so turning a repetition into an additional contingencyGoogle Scholar.

2 E.g. Elton, G. R., Reform and Reformation (1978), pp. 331–9; For other modern comment seeGoogle ScholarGuy, J., Tudor England (1988), pp. 196–9;Google ScholarHoak, D., The king's counsil in the reign of Edward VI (Cambridge, 1976), pp. 40-2, 286Google Scholar; Jordan, W. K., Edward VI: the young king (1968), pp. 49–57Google Scholar; Levine, M., ‘The last will and testament of Henry VIII’, The Historian, XXVI (1964), 471–85CrossRefGoogle Scholar and The tarty Elizabethan succession question, 1558-68 (Stamford, 1966), pp. 147–62;Google ScholarMiller, H., ‘Henry VIII's unwritten will’, in Wealth and power in Tudor England, ed. Ives, E. W.et al. (1978), pp. 87–105;Google ScholarScarisbrick, J. J., Henry VIII (1968), pp. 487–96Google Scholar; Smith, L. B., ‘The last will and testament of Henry VIII’, Journal of British Studies, II (1962), 14–27CrossRefGoogle Scholar and Henry VIII, the mask of royalty (1971), pp. 260–73Google Scholar; Starkey, D., Henry VIII, personalities and polities (1985), pp. 147–67Google Scholar.

3 Guy, , Tudor England, pp. 198-9, 481Google Scholar; Inner Temple, Petyt MS 538/47 fos. 398-406. I am grateful to the Acting Librarian of the Inner Temple for permission to consult this MS and for her assistance.

4 The substantial omission is a contingent remainder to children by Katherine Parr or any subsequent wife (ibid. fo. 401). That this was deliberate is indicated by the omission of ‘forenamed’ in the next reference to Katherine (fo. 4O5v). The minor differences (ignoring unimportant omissions or changes such as ‘ordeyne’ for ‘ordre’) arise from introducing formulae to avoid repetition, e.g. ‘whose names we haue resityd’.

5 Guy, , Tudor England, p. 198Google Scholar.

6 Petyt MS 538/47 fos. 398-406 is in a single hand throughout, including the list of witnesses, and has no place for, or representation of a royal signature. For an alternative possibility see below at n. 12.

7 Scarisbrick, , Henry VIII, p. 487Google Scholar; Foxe, John, Atts and monuments, ed. Cattley, S. R. (1838), V, 691–3 [‘Foxe’]Google Scholar.

8 Ibid, VI, 163-4, 170. 177. 181 (Paget, Edward Seymour, Dudley, Russell).

9 E23/4/1 fo. 16v has John Gates (gentleman of the privy chamber) signing at the top of the witnesses with the rest below, in two rough columns, continuous on the right (privy chamber staff), broken on the left (physicians) [reproduced Starkey, Hatry VIII, p. 161]. Petyt MS 538/7 fo. 406 follows the left hand column, then the right. For the names see below n. 57.

10 Both the ink of the insertions and the hand are different.

11 E.g. reading ‘transitory world’ for ‘life’, ‘observed’ for ‘reserved’ or ‘£200 in all’ for ‘in all £200’: Petyt MS 538/47 fos. 398v, 4O3v; £23/4/1 fos. 4v, 12, 16 [Fotdaa, xv, 111, 115, 117].

12 Close comparison of the texts shows that the variations are substantially to be explained by the Petyt MS deriving from £23/4/1. The shortened formulae are explicable as devices to avoid inessentials, so too the omission of the contingency to Katherine (which suggests that the document dates from Edward's reign). The clearest example of a copyist's error is at fo. 399 when a slip of the eye between two uses of ‘transitory life’ led to the deletion of correct text and the omission of 18 words. This internal evidence (see also nn. 4 & 9) rules out the alternative hypothesis that the Petyt MS was a draft produced between 26 December when the terms of the will were discussed and 30 December, the date of E23/4/1; the detail of legacies and witnesses would then be explicable as what was to be proposed.

13 Van der Delft to Mary of Hungary, 24 Dec. 1546: Cat. slate papers Spanish 1545-47, p. 533 [hereafter CSPS].

14 Eas/4/1 f04. 3, 16v; SP4/1/19 item 85 [Slats papers Henry VIII (1830-53), 1, 897-8] –see below p. 792; Letters and papers… of Ike reign of Henry VIII, XXI (a), 770 [hereafter L. ].

15 Starkey, D., ‘Court and government’, in Revolution reassessed, eds. Coleman, C. & Starkey, D. (Oxford, 1986), p. 55Google Scholar.

16 Fotdtra, XV, 100Google Scholar.

17 Ibid, XV, 101.

18 Pollard, A. F., England under Protector Somerset (1900), p. 5 asserted that the signature was autographGoogle Scholar; cf. Smith, , Journ. Brit. Studies, II, 22–5;Google ScholarLevine, , Historian, XXVI, 478–82 and Succession question, pp. 151-6Google Scholar.

19 Miller, , in Wealth and power, p. 94Google Scholar.

20 For the dispute over validity see ibid. pp. 93-4; , Levine, Succession question, pp. 151-5, 158-62Google Scholar.

21 SP4/1/3(6) [L & P., XX (2), 706 (I.ii) B].

22 Levine, , Succession question, p. 151Google Scholar; Surkcy, , Haay VIII, p. 160Google Scholar.

23 E.g. ibid. pp. 162–7; Elton, , Reform and Reformation, pp. 331–2Google Scholar.

24 Apart from Norfolk, Crammer and Surrey, all the main protagonists were in their 405.

25 Compare Wriothesley's complaint 28 Sept. 1546, his treatment of Anne Askew, his attempt to reconcile Gardiner to Henry and his altercation with Edward Seymour, with his role in the attack on Surrey; Surrey, who was placed under arrest in Wriothesley's house, failed to realize the change: Statt papers, I, 879–80;Google Scholar Foxe, V, 547, 691; CSPS 1545-7, p. 556; L. & P., XXI (2), 171, 541, 546, 547) 555, 756; Gammon, S. R., Statesman and schemer: William Lord Pagtt (1973), pp. 125–6 [hereafter ‘Pagtt’]Google Scholar; Smith, , Many VIII, pp. 262–3. Wriotheslcy wrote the paper on Surrey's offences which Henry annotated: see below p. 796Google Scholar.

26 Compare the story of Gardiner's exclusion from the council, with Gardiner's insistence that he was a member to at least 15 Jan. 1547, and the evidence that he was only present because of language and legal skills: Foxe, v, 691; vi, 124, 133, 165, 168, 171, 174, 177, 181, 189.

27 See below p. 792.

28 L. & P., XXI(2), 753(n); Journal oftht houst of lords (1846), I, 287, 289Google Scholar.

29 SP4/1/1 [L. & P., xx (2), 418]. The document being blotted was clearly the January 1547 schedule, not an earlier draft. That it came into physical contact with a September 1546 list indicates that the entries were made wherever the dry stamp records were housed when the court was at Whitehall.

30 SP4/1/1, 2, 4, 5, 6, 8, 9, 11-19 [L. & P., XX (2), 418, 706(2), 909, 1067; XXI (1), 148(2), 301. 650(2), 963, 1165, 1382, 1536; XXI (2), 199, 331, 475, 647, 770].

31 SP4/1/3, 7, 10 (L. & P.., XX (2), 706(1); XXI (1), 148(1), 650(1)].

32 SP4/1/3 [L. & P., xx (2), 706(1)] for Sept./Oct. 1545 is the most varied; later paper rolls arc more uniform, which may indicate a developing routine in Clerk's office and that a draft stage for the paper roll was introduced, of which no example has survived. The absence of the expected king's signature presents a problem. It occurs on only the paper roll for Sept./Oct. 1545 [S?4/1/3] and on none of the extant parchment rolls. This essay assumes that the latter were the ones presented to Henry but that he ignored the rules and gave assent only by word of mouth. The single royal signature on paper in Oct. 1545 is explicable by the then novelty of the procedure. The alternative, that the king regularly signed the fuller paper rolls after which Clerk drew up the extant parchment summaries as office minutes is unlikely; neither of the other extant paper rolls is signed and the parchment roll for January 1547 was clearly prepared in advance of any signing. Another possibility – dial the extant parchment rolls are duplicates of those signed by Henry – would not affect the argument of this paper but is also unlikely. As well as the improbability that every example of the postulated signed rolls disappeared and every duplicate survived, the purpose of two concurrent lists would need explaining. The function of the schedules was to authenticate the action of Clerk and the others; Clerk's signature on each one was clearly to certify what had been done and one would expect the king to countersign. That Henry would then want to retain the master copy is highly unlikely; it was Clerk who needed the record as a discharge and would undoubtedly have wanted the signed copies if there had been any. The argument here would also not be affected by the suggestion that the parchment list was an office memo in advance of what was to be put to the king. Yet it is hard to see why this would be needed, given that the fuller paper original already existed which Clerk could have signed equally well.

33 SP4/1/6, 7, 9, 10; cf. SP4/1/2, 3.

34 SP4/1/3(1-7) [L. & P., xx (2), 707 (l.ii) A-G].

35 SP4/1/3(5) [L. & P., XX (2), 706 (1. II) C].

36 Compare SP4/1/3 items 10-19 with SP4/1/3(6).

37 When it did not require a full membrane to complete a schedule, wastage was avoided by adding a strip of parchment of only the required length [e.g. SP4/1/8, /16, /18]. The January 1547 list [SP4/1/19] is unique in ending with two such strips. One (107 mm) contains three entries and space for Clerk's signature; the second (100 mm) contains the entries re the will and the commission and Clerk's actual signature. If the writer had been given all five entries to copy on one occasion, he would have added a strip which was large enough – and thereby also have avoided the awkwardness of writing over the join.

38 Lords journals, I, 289Google Scholar.

39 But the presumption must be that only the paper roll stage was omitted. The commission is noted as being preferred by Paget [SP4/1/19 item 86], i.e. presumably accompanied with a handlist in the usual way; if Clerk had taken the short cut of entering the record direct on SP4/1/19 without such a list, he would have had no proof that the stamping had been properly instigated. For the distinctive position of the will see below pp. 794-5.

40 SP4/1/14 items 10-n;/15 items 1-3 [L. & P., XXI (1), 1536; XXI (2), 199]; L. &. P., XXI (1), g.1383(98-100), g.1537(2).

41 Starkey, , Haay VIII, p. 160Google Scholar.

42 See below n. 46.

43 CSPS, 1547-9, pp. 340-1.

44 Executors: Bromley, Denny, Herbert, Montague, North, Edward Wotton; Assistants: Peckham, Seymour, Southwell. [Starkey, Haay VIII, p. 163 lists Dr Nicholas Wotton as a newcomer in error for North; Dr Wotton had been sworn PC 7 April 1546: Acts oftheprity council, 1542-7 (1890), p. 371 (hereafter APC)]. The widespread assumption that all executors and assistants had been privy councillors probably derives from the account Paget gave in 1550: see below p. 789Google Scholar.

45 Cf. the expressions used for Henry's condition on 26 December 1546 - ‘as the king grew more in sickness’; ‘having been very sick and in some peril, after his recovery’; ‘a little before the death of the king… he then being 01 extremis’; ‘more than three weeks before the death of the king, his grace then being very sick’; Foxe, v, 691; VI, 163, 170, 177.

46 APC, 1542-7, p. 566. Hoak, , King's cowed, p. 345 takes this entry as evidence of Henry's favour to Thomas Seymour and therefore argues that the ‘no, no’ could not have been in the context of this appointmentGoogle Scholar.

47 Foxe, VI, 177Google Scholar.

48 Ibid, VI, 164.

49 Ibid, V, 691–2; VI, 170, 180-1.

50 E23/4/1 fo. 11v [Foedera, XV, 114-15].

51 Miller, , in Wtalth and power, pp. 97–104Google Scholar.

52 Ibid. pp. 104–5.

53 E23/4/1 fos. II, IIV [Fotdtra, xv, 114].

54 Miller, , in Wealth and power, pp. 89–91Google Scholar.

55 E23/4/1 fos. 11V, 12 [Foedera, xv, 115].

56 Surkey, , Henry VIII, p.163Google Scholar. No inference should be drawn from the fact that the king's will was published only in part [ibid. p. 163; Tytler, , Rtigns of Edward VI and Mary, I, 15–16]Google Scholar; Paget's reading of' ‘a great part’ of the will covered the succession, the arrangements for the minority, the payment of debts and the completion of promises, i.e. all but its first section dealing with the king's faith, exequies and charitable provisions, and the last, dealing with bequests and legacies: Lords journals, I, 291Google Scholar.

57 John Gates, gentleman of the privy chamber; E[dmund] Harman, groom of the privy chamber, king's barber; William Sayntbarbe, groom of the privy chamber; Henry Nevell, groom of the privy chamber; Richard Coke, groom of the privy chamber; David Vincent, groom of the privy chamber; Patrick [Reynold], king's apothecary; George Owen, king's physician; Thomas Wendye, queen's physician; Robert Huycke, king's physician.

58 Starkey, , Henry VIII, p. 163Google Scholar.

59 This is technically highly implausible. The will was written ‘in a booke of paper’ [see below n. 60]. Hence the suggestion calls for the remarkable clerical feat of estimating the place for witnesses to sign in a blank gathering, where the text to be copied had yet to be agreed and would, in the event, extend over 32 sides.

60 SP4/1/19 item 85 [L. & P., XXI (2), 770].

61 House of commons, 1509-38, ed. Bindoff, S. T. (1982), III, 7–8Google Scholar. Another witness, Richard Coke, was brother-in-law to Sir William Cecil, Lord Keeper Bacon, Sir Thomas Hoby, John Lord Russell, and Sir Henry Killigrew, became MP and died 1579: ibid, I, 691.

62 See the first article objected against him: Stow, John, Amales (1615), p. 601Google Scholar; Hoak, , King's coned, p. 96Google Scholar.

63 House of commons, 1309-58, II, 383–4Google Scholar.

64 Foxe, VI, 189Google Scholar.

65 The treasurer, Edward Wotton, could obviously not attend, Bromley could, but apparently never did: , Hoak, King's council, pp. 40-1, 285–6Google Scholar. Relying on DNB, Hoak comments on Bromley's alleged incapacity [cf. also Starkey, , Hmiy VIII, p. 163]Google Scholar, but this ignores his subsequent promotion to CJQB: Spelman, John, Reports, ed. Baker, J. H. (Selden Soc. 94, 1978), II, 360Google Scholar; Abbott, L., ‘Public office and private profit’, in The mid-Tudor polity c. 1540-1560, ed. Loach, J. & Tittler, R. (1980), pp. 140–1Google Scholar. It is safer to explain Bromley's absence from the council but pride in the appointment [see below n. 97], by determination to avoid political involvement; he escaped in 1553 by the narrowest of margins: ibid. p. 147.

66 Starkey, , Henry VIII, pp. 162–3Google Scholar.

67 Richard Rich and John Baker led the attack on Wriothesley [Jordan, Edward VI: the young king, p. 71 n.; , Guy, Tudor England, p. 198Google Scholar; Gammon, , Paget, pp. 111, 122, 261 ]Google Scholar; William Wightnum to William Cecil, 10 May 1549: Tytler, P. F., England tader the reigns of Edward VI and mary (1839), I, 169Google Scholar.

68 For an alternative explanation of the assistants, see below pp. 800-1.

69 William Paget to Edward Seymour, 7 July 1549: Miller, , in Wealth and power, p. 87. The passage indicates that Paget and Seymour could only begin detailed planning at the last moment, and thus that cither Henry kept control until late in January or that it was too risky to assume he would not recover. If Paget was referring strictly to Seymour's ‘place’ as at the date of writing, the passage also indicates that the scheme to proceed beyond an initial protectorate limited by the will (31 Jan. 1547) to the effective regency of the protectorate by Edwardian patent (12 Mar. 1547) [APC, 1547-50, pp. 67-74], was not agreed until after the king's deathGoogle Scholar.

70 Tytler, , Rrigns of Edward VI and May, I, 15–16Google Scholar.

71 Fotdera, XV, 101Google Scholar.

72 It could then be argued that Henry's valid will was the 1544 version which included Gardiner as an executor: Foxe, V, 691; VI, 163Google Scholar.

73 L. & P., XXI (2), 713; CSPS, 1547-9, p. 2.

74 Smith, , Haay VIII, pp. 244-7, 253–5Google Scholar; Scarisbrick, , Haay VIII, pp. 482–3Google Scholar.

75 SPI/227 fo. 123 [L. & P., XXI (2), 555(14)].

76 Foxe, V, 690–1Google Scholar.

77 State palters Henry VIII, I, 883–5;Google ScholarFoxe, VI, 138[L. & P., XXI (2), 487-8, 493]Google Scholar.

78 See above n. 26.

79 Foxe, V, 691–2.Foxe's account (from Denny) nates that each of Browne's attempts was to place Gardiner as an executorGoogle Scholar; more probably Paget was correct to say that the second was when the assistants were named, though his claim to have himself pressed Gardiner's claims seems less plausible: Foxe, VI, 163–4Google Scholar.

80 Scarisbrick, , Henry VIII, p. 475Google Scholar.

81 Foxe, V. 691Google Scholar.

82 Ibid, VI, 163-4, 170, 177, 181.

83 G. Redworth overlooks this point in attempting to substitute personality for faction as the dynamic of events in 1546-7: In defence of the church catholic (Oxford, 1990), pp. 231–47Google Scholar.

84 Foxe, VI, 163Google Scholar.

85 On the following see: Scarisbrick, , Henry VIII, pp. 413-18, 420–2; andGoogle ScholarThe Reformation and the English ptople (Oxford, 1984), pp. 61–81;Google ScholarThe king's book, ed. Laccy, T. A. (1932), pp. 31-7, 65-77, 158, 163–5Google Scholar; Dickens, A. G., The Reformation in England (2nd edn 1989), pp. 157-9, 211–14,Google ScholarKreider, A., English thantries: the nod to dissolution (Cambridge, Mass., 1979), pp. 123-4, 127, 134-8, 151–3Google Scholar.

86 Foxe, V, 563-4, 692Google Scholar.

87 Bowker, M., ‘The supremacy and the episcopate: the struggle for control, 1534-1540’, Historical Journal, XVIII (1975), 243Google Scholar.

88 Strype, John, Etclesiastual memorials (Oxford, 1820-1840), II(i), 161Google Scholar; Hughes, P., The Reformation in England (1961), II, 65Google Scholar.

89 Foxe, V, 561Google Scholar.

90 Charles Wriothesley, Chrmucle, ed. Hamilton, W. D., Soc, Camden., n.s. XI (1875), 169–70;Google ScholarFoxe, V. 553-61, 564. Note also the assumption that penitent survivors of Anne Askew's group would be pardoned:Google ScholarStatt papers, V, 577Google Scholar; APC, 1543-7, p. 562; L. & P., XXI (2), 596, 629, 630. The anabaptist smear on Katherine is Gardiner's insinuation that ‘the religion’ she maintained ‘taught the people that all things ought to be in common’: ibid, V, 558.

91 The heir ‘shalbe at and in the governaunce of suche of your counsailloun and nobles of your realme as your Majestie shall name and appoynte by your laste will’; Statutes of the realm, III (1817), 661Google Scholar.

92 Notably Wriothesley.

93 But see above n. 67.

94 The will occasionally vuo ‘executon and counsellors’ as a collective term, e.g. when referring to what was strictly the council's responsibility for the rule of the prince and the realm until he was married and over eighteen: E23/4/1 fo. 13v [Foedera xv, 116], but in the main the roles are distinguished. The group appears to have acted exclusively under the name of executon until 7 Feb. and thereafter as privy counsellors or executors as appropriate until 24 Feb. when, acting for the last time as executon, they took legal advice on the will: APC, 1547-50, pp. 3-38. For procedures see below p. 803.

95 E23/4/1 fo. 14v [Foedera, xv, 116].

96 Hoak, , King's council, pp. 252–3Google Scholar.

97 Spelman, Rtports, II, 360Google Scholar.

98 E23/4/1 fos. 8, 8v, 9v, 13 [Foedera, xv, 113, 115].

99 Note the contrast which the will implies between the councillors appointed under its provisions and those subsequently appointed by an [adult] Edward: E23/4/1 fo. 13v [Foedera, xv, 115-16], The council's veto on the marriages of Mary and Elizabeth was without time limit.

100 E23/4/1 fo. 13, 13v [Foedera, xv, 115-16].

101 E23/4/1 fo. 13 [Foedera, xv, 115].

102 E23/4/1 fos. 12-13 [Foedera, xv, 115).

103 Jordan, , Edward VI: the young king, pp. 156-7, 207Google Scholar; Bush, M. L., The government policy Of Protector Somerset (1975), pp. 113–17Google Scholar. The effect of this provision was frustrated when the protectorate council ceased to rely on the authority of the will: see the attempt to answer Princess Mary, Foxe, VI, 7–8, and below p. 804Google Scholar.

104 E23/4/1 fos. 8, 8v, 9v, 13 [Foedera, xv, 113, 115].

105 APC 1547-59, p. 10. No patent is enrolled or listed as having passed the dry stamp. The absence of chancery enrolment does not negate the privy council register entry: Somerset's second proectorate patent [24 Dec. 1547] was not enrolled.

106 Bromley was the absentee; the Wottons were both abroad.

107 APC 1547-50, PP- 5-6.

108 E23/4/1 fo4. 8, 8v, 9v [Foedera, xv, 113].

109 E33/4/1 fo. 11 [Foedera, xv, 114]; see above n. 69.

110 APC 1547-30, p. 64.

111 See below, p. 793.

112 Miller, , in Wealth and power, pp. 90-1, 97Google Scholar; Hoak, , King's council, pp. 43–4Google Scholar.

113 Jordan, , Edward VI: the young king, p. 71; see alsoGoogle ScholarHoak, , King's council, pp. 234–6, although this interprets the phrase ‘submitted him selfe for the safetie of the rest’ as Wriothesley surrendering to save his allies when what is meant is avoiding confiscation of his property: British Library, Add. MS 48126 fo. 15Google Scholar.

114 APC 1547-50, pp. 67-74.