SOURCE: McQuade, Paula. “‘Except That They Had Offended the Lawe’: Gender and Jurisprudence in The Examinations of Anne Askew.” Literature and History 3, no. 2 (autumn 1994): 1-14.

[In the following essay, McQuade points out that Askew's Examinations reveal that she was aware that, unlike English civil courts, the ecclesiastical courts viewed her as a subject with legal rights at least equal to those of men.]

We owe The Examinations of Anne Askew to an intermediate source—the Protestant bishop John Bale.¹ While waiting out the uncertain English political climate in the Protestant outpost of Wesel, Germany, John Bale saw into print Anne Askew's two compact accounts of her examinations on suspicion of heresy, adding a voluble preface and interspersing his own editorializing commentary upon her brief text. Disseminated in England early in the reign of Edward VI (January 1547),² Bale's heavy-handedness with Askew's account is deliberate. He wants to make sure that his audience gets the point of Askew's text, the point which he himself sees: that a Protestant martyr can be every bit as good and inspiring as a Catholic martyr—even a match for such a martyr of the early Christian church as Blandina. ‘Prompt was Blandina, and of most lustye corage, in renderynge her lyfe for the lyberte of her faythe. No lesse lyvelye and quyck was Anne Askewe in all her enprysonynges and tormentes.’³ Through such a comparison, Bale portrays Anne Askew as a timeless Protestant saint, universal in significance, ready and willing to do what every good Christian should be prepared to do—suffer to the death for Christ's sake.

The outlook that Anne Askew takes up in her own account of her trial and imprisonment, however, differs considerably from John Bale's. A gentlewoman from an established Lincolnshire family, Anne Askew was no generic saint, and not even an easily categorized heretic during Henry VIII's turbulent last years. Prior to her conversion to Protestantism, Anne Askew lived the comfortable, albeit provincial, life of an English country gentlewoman. Married, with two small children, she lived with her husband Thomas Kyme on his family estate in Friskney, Lincolnshire.⁴ When her fervent ‘gospelling’—traveling from house to house expounding the gospel—got her into trouble with the local clergy, Askew left her Catholic husband to emigrate to London, where she joined her brother Edward and sister Jane who were in attendance at Court.⁵ In London, Askew's gospelling gained the attention of the city's ecclesiastical authorities, who arrested and examined her on suspicion of heresy. Released without indictment by the London commission, Askew was re-arrested three months later and brought before the King's Privy Council where she was re-examined and eventually illegally tortured by Lord Chancellor Richard Wriothesley and Richard Rich. During her second examination, Askew denied Christ's real presence in the consecrated Eucharist and was condemned to death as a heretic and burnt at the stake in Smithfield on 16 July 1546.⁶

While in prison awaiting her execution, Anne Askew decided to write an account of her arrest, examinations and torture at the hands of ecclesiastical and civil authorities in order to set out publicly the significance of her sufferings.⁷ As an account written with the expressed intent of publication, one would expect the The Examinations to echo the writings of John Bale in its insistence upon the cruelty of Askew's sufferings at the hands of her Popish persecutors. Instead of the pious hagiography one would expect from Bale's discussion of the text, what one finds in The Examinations is Anne Askew's bid for legal recognition as a female English subject whose common law rights have been violated during the course of her ecclesiastical examinations. As a married woman in sixteenth-century England, Anne Askew had no legal existence at the common law of England. Much of Askew's strategy in The Examinations consists of her attempt to open a space for female juridical identity by shrewdly playing her case into the ongoing jurisdictional conflict between the common law and ecclesiastical court systems. By deliberately foregrounding in her brief text the occasions when her common law rights are violated or suspended, Anne Askew forcefully counters Bale's categorization of herself as a generic Christian saint, and in so doing, provides a striking assertion of her sense of her rights under English law.

Askew's bid to be recognized as a subject with rights under English law directly challenges our standing notions of the relationship between gender and jurisprudence in early modern England. Social historians have lately documented the many ways in which a woman's legal status in the early modern period revealed her subordination.⁸ In marriage, writes Lawrence Stone, ‘the husband and wife became one person under law—and that person was the husband.’⁹ Until the late nineteenth century, English common law defined a married woman as a ‘femme covert’—literally ‘covered’ by her husband's identity—unable to hold property, inherit money, or initiate legal proceedings independent of her husband.¹⁰ Given that a married woman had no legally defined, separate existence under the common law of sixteenth-century England, how could Anne Askew as a woman, and a married woman at that, claim recognition as an English subject whose legal rights have been violated?

The answer to this question lies in Anne Askew's shrewd, up-to-date awareness of her status under English jurisprudence in 1546 (the date of her first and second examinations). She was being investigated for heresy, and heresy was always an ecclesiastical, not a civil charge. Unlike the common law, canon law recognized women as autonomous subjects, able to initiate legal proceedings independently of their husbands and to be held legally responsible for their actions. In many ways this difference between the two court systems is not surprising, for the ecclesiastical court system evolved as the judicial branch of the Roman Catholic Church and therefore had jurisdiction primarily over matters of individual morals and conscience—church attendance, baptism, marriage, and divorce.¹¹ Anne Askew, a woman whose self-taught scripturalism empowered her to leave her religiously conservative husband Thomas Kyme, must have agreed with the ecclesiastical court's emphasis upon the answerability of the individual conscience, even if she did not agree with the court in its suspicions of her. In her Examinations Mistress Thomas Kyme claims her individual status in the only forum where, as a still-married women, she was able to do so—the ecclesiastical courts. Moreover, she lodges her claim in the strongest possible terms, concluding her narrative by reassuming her maiden name and thus publicly proclaiming her independent identity—she signs her text as—‘written by me, Anne Askewe’ (Examination I, p. 41).

Historically, however, the ecclesiastical courts were not promising venues for recognizing women's rights. In part this derived from their origin as forums for disciplining an all male clergy. Many of the ecclesiastical court's rulings were clearly biased towards men. Women, for example, were unable to claim ‘benefit of clergy’—the literacy test by which many men were able to avoid capital sentences.¹² And, while women could ‘plead the belly’ in cases of pregnancy, this differed from ‘benefit of clergy’ in that it simply postponed rather than averted capital punishment.¹³ Excluded by their gender from any position among the clergy, women were at a distinct disadvantage when they attempted to pursue their claims or get their interests validated within the legal forum of the ecclesiastical order.

A woman's chances of getting her rights recognized in an ecclesiastical court were even smaller when she was charged with a potentially capital offense like heresy. At the time of Anne Askew's first examination in 1545, the Six Articles offered the legally binding definition of orthodox—and unorthodox—religious belief in England. Propounded by Convocation and ratified by Henry VIII in 1539 (repealed under Edward VI in 1547), the Six Articles mandated belief in Christ's physical presence in the consecrated Eucharist, that is, the dogma of the real presence; lay communion by bread only; the celibacy of the priesthood and the irrevocability of a vow of chastity; the legitimacy of private masses not celebrated in a consecrated place; and the necessity of auricular confession.¹⁴ Denial of any one of the Six Articles constituted heresy. And the act was enforced: legal commissions were directed to every county in order to ensure the energetic detection and prosecution of heretics. Dozens of Protestants were imprisoned and executed.¹⁵ Protestants quickly nicknamed the act ‘the whip with six strings,’ to reflect both its doctrinal severity and its widespread enforcement.

Anne Askew, with her outspoken scripturalism, quickly fell under the suspicion of the authorities for heresy. She was arrested by Six Articles commissioners on 10 March 1546 and brought before the quest on charges of heresy.¹⁶ Political exigencies probably played no small part in her arrest. At the time of Askew's first arrest, conservative Privy Council members Stephen Gardiner and Thomas Howard were engaged with Edward Seymour in a factional battle for political control during the waning days of Henry's reign. With the arrest of Anne Askew on suspicion of heresy, the two men saw a chance to discredit Katherine Parr, the young Protestant Queen (and political ally of Seymour) in the eyes of the aging, suspicious King. Gardiner and Howard attempted to trace support for Askew to members of Queen Katherine Parr's intimate circle at court—Anne Stanhope, Duchess of Suffolk, and Lady Denny.¹⁷ Their attempt failed in part because of a ‘well-publicized (and possibly staged)’¹⁸ encounter between Katherine Parr and Henry in which the Queen submitted to the King's direction in religion and the King called off the inquiry.

The legal procedure governing Anne Askew's first examination, however, was complicated by an ongoing juridical competition between the common law and ecclesiastical courts. The definition and prosecution of heresy had traditionally fallen within the jurisdiction of the ecclesiastical courts. Ecclesiastical jurisprudence, however, differed sharply from the English common law. Particularly significant was the importance each system accorded to the rights of the accused. England was unusual among European countries for the openness with which it conducted its trials.¹⁹ In contrast, ecclesiastical procedure underwent a great deal of tightening up during the Inquisition; it allowed the accused none of the procedural safeguards which had already made England famous across Europe for its extraordinary liberality regarding the rights of the accused. For example, in contrast to the well-established common law tradition of a trial by a jury of one's peers—a quest—heresy trials proceeded ex-officio, meaning that the bishop (or papal legate) could act as both accuser and judge at the trial. Moreover, ecclesiastical procedure allowed the accused none of the procedural safeguards, such as the right to be accused by one named witness in open court, that were the mainstay of the common law tradition.²⁰ Ecclesiastical procedure in heresy trials contrasted sharply with the evolving, nationalist sense of English common law jurisprudence. Conflict between the two systems of jurisprudence was inevitable.

With the advent of Protestantism, the increase of heresy in England brought the latent conflict to a head. As early as 1529, Common Law lawyers in the House of Commons drafted a bill attacking the ex-officio proceedings of the ecclesiastical courts. While the bill was never incorporated into law, many of its provisions were incorporated into the Common's Supplication Against the Ordinaries in 1532, and more significantly, adopted by the Heresy Statute of 1534 (25 Henry VIII. c.14). The 1534 Heresy Statute was designed to limit the church court's jurisdiction in heresy trials by placing important common law safeguards upon ecclesiastical procedure.²¹ While the long-term importance of this statute has been recognized by legal historians, its immediate effect was short lived.²² The passage of the Act of the Six Articles in 1539, to which was appended more stringent provisions for prosecution of heresy,²³ nullified many of the common law reforms of the 1534 Statute. However, in 1544, just two years before Anne Askew's first examination, Common law lawyers in the House of Commons renewed their attack upon the autonomy of the ecclesiastical court system with the passage of 35 Henry 8 c.5. Essentially a reinstitution of the ground-breaking reforms of 25 Henry 8 c.14, 35 Henry VIII. c.5 revoked the ex-officio proceedings of the ecclesiastical court by mandating the use of a grand jury. In the future, a person could not be tried for heresy simply on the accusation of a presiding judge; instead, a grand jury of twelve men or ‘quest’ would determine whether the accused should stand trial. Moreover, 35 Henry 8 c.5 established other important procedural safeguards for heresy trials by preventing the arrest or committing to ward of any prisoner before indictment by the quest. This section of the statute extended a habeas corpus protection to the accused under ecclesiastical law, making it impossible for the ecclesiastical courts simply to send someone off to prison for an indefinite time to await charges which might or might not be forthcoming.²⁴

At the time of Anne Askew's first arrest in 1546, then, the common law and ecclesiastical courts were contending for superior jurisdiction in heresy trials. In sixteenth-century England, such juridical competition afforded unique opportunities for wily litigants who maneuvered their cases between the three competing court systems—the ecclesiastical courts, the common law courts, and the court of Chancery—in order to obtain the most favorable verdict. While no one court had an official appellate relation to another—that is, no court legally possessed the right to review the decision of a trial court—a court would often retry a case already decided in a rival court system. If the new court were to issue a conflicting judgment, the effective result would be to overturn the previous judgment, as the new court would prosecute any litigant who refused to abide by its ruling. Anne Askew was certainly familiar with this type of legal manipulation. In 1544, in her attempt to obtain a divorce from her estranged husband, Thomas Kyme, Askew played off the current competition between the ecclesiastical courts and the Court of Chancery. Unhappy with the denial of her divorce by the ecclesiastical court in Lincoln, Askew moved to London to retry her case in Chancery, a court whose emphasis on equity rather than the letter of the law would give it later in the century a reputation for sensitivity to ‘women's issues’.²⁵

Not only did Askew have personal experience manipulating the intricacies of the English court system, but she appears to have had extensive legal connections. Many of her friends, fellow gospellers and relatives were either Lawyers or students at the Inns of court. Askew pointedly remarks within The Examinations that her surety, Master Spylman is of Gray's Inn. Susan Brigden identifies Askew's cousin Brittayne as Christopher Brittayne, a lawyer of the Middle Temple.²⁶ And, Foxe identifies the ‘Master Haw of Gray's Inn’ who visits Anne following her appearance before Bishop Bonner as Edward Hall, lawyer, and author of The Union of the two Noble and Illustrious Families of Lancaster and York (The Chronicle).²⁷ While anyone of these men might have been able to apprise Askew of the ongoing juristic competition and of the importance this conflict held for her case, Askew's connection with Hall is particularly suggestive. Hall was a member of the Parliament in 1532, and he recorded the Commons complaints concerning the ex-officio proceedings of the ecclesiastical court within The Chronicle.²⁸ Given his stated awareness of the competition between the two courts, Hall would almost certainly have been aware of the passage of 35 Henry VIII. c.5 and of the significance it held for Askew's case. Fortified by her own experience manipulating the English court system, together with the legal advice she could have gained from any one of her friends, fellow gospellers, and relations who were either lawyers or students at the Inns of Court, Anne Askew recognized that the common law encroachments on ecclesiastical procedure in heresy trials meant that certain legal rights were due to her, even as a woman, when she was made individually answerable to a heresy charge. She seized the opportunity and used it, literally, to her death.

Throughout her Examinations, Askew portrays her questioners as spending a great deal of time questioning her about the Eucharist, hoping to trap her into revealing her unorthodox beliefs. Askew displays great legal and rhetorical skill in avoiding their questions, usually relying upon scripture to answer for her:

Then asked he me, what my faythe and beleve was in that matter? I answered hym, I beleve as the scripture doth teache me. Then enquired he of me, what if the scripture doth saye, that it is the bodye of Christ? I beleve (sayd I) lyke as the scripture doth teache me. Then asked he agayne, what if the scripture doth saye, that it is not the bodye of Christ: My answere was styll, I beleve as the scripture infourmeth me.

(Examination I, p. 27)

This passage vividly suggests the interplay of juridical and religious identity in Askew's self-presentation. On the one hand, Anne Askew's steady answer—‘I beleve as the scripture doth teache me’—declares her devout scripturalism. Even at her execution, Anne was supposed to have steadfastly maintained her reliance upon the word of God as revealed in scripture, criticizing the sermon being preached by Dr. Nicholas Shaxton on her behalf by saying: ‘There he misseth, and speaketh without the book.’²⁹ Askew's response also, however, suggests her knowledge of sixteenth-century jurisprudence. By quoting scripture rather than answering in her own words, Askew is able to maintain her own beliefs about Christ's body in the Eucharist, while not incriminating herself under the Act of the Six Articles. Since there was no law in sixteenth-century England against self-incrimination, hers is a particularly shrewd legal strategy. The frustration this strategy causes her questioners is made clear by Askew's understated commentary: ‘And upon thys argument he tarryed a great whyle, to have dryven me to make hym an answere to hys mynde. Howbeit, I wolde not …’ (Examination I, pp. 27-28).

Anne Askew's real brilliance, however, lies in her insistent foregrounding of the times when the legal safeguards instituted by the passage of 35 Henry 8 c.5 are violated or suspended. According to 35 Henry 8 c.5, no accused person was to be imprisoned without first being formally indicted by a grand jury.³⁰ Throughout her Examinations, Anne Askew emphasizes that her lack of a formal indictment also means that she is being unlawfully detained. ‘Thys beynge done,’ she remarks,

we thought that, I shuld have bene put to bayle immedyatlye, accordynge to the order of the lawe. Howbeit, he wolde not so suffre it, but commytted me from thens to preson agayne, untyll the next morowe. And than he wylled me to apere in the guylde halle, & so I ded. Notwithstandynge they wolde not put me to bayle there neyther … and so commaunded me agayne to preson.

(Examination I, p. 40, emphasis added)

In this passage, Askew deliberately places her case within the legal precedents established by the passage of 35 Henry VIII. c.5. In refusing to grant her bail, the commission is illegally detaining her; they are not acting ‘according to the ordre of the lawe’ and Askew says as much in her pointed phrasing. Moreover, by reiterating words which emphasize the passage of time between her arrest and release—‘immedyatlye’ and ‘agayne’—Askew emphasizes to her audience the illegality of her detention.

In addition, Askew suggests throughout The Examinations, that the lack of her condemnation by a quest renders illegal her condemnation as a heretic. In her account of her first examination, Askew powerfully narrates her encounter with Christopher Dare, a London merchant and member of the quest. When her clever equivocation proves too much, the quest refuses to indict her. Under 35 Henry 8 c.5., without indictment by the grand jury or quest, she should then have been released.³¹ Instead, she is ordered to be examined by the Lord Mayor of London. Askew's account of the experience is carefully designed to underscore the illegality of this procedure: ‘Then they had me from thens, unto my lorde Mayre. And he examyned me, as they had before, and I answered hym dyrectlye in all thynges, as I answered the qweste afore’ (Examination I, p. 8). Askew's choice of language here, as always, is significant. The word ‘qwest,’ is a term of art referring specifically to the common law tradition of a trial by a jury of twelve men. Askew, through her repetition of the phrase ‘as I answered the qweste afore’ cleverly signifies the redundancy of the whole procedure; moreover, her subtle insertion of ‘qweste’ into the second phrase functions as a reminder that while that first examination may have been lawful, this second one is not.³² Askew's parting observation about her experience with the ecclesiastical authorities deliberately signals to her audience the illegality of her condemnation according to the legal parameters established by 35 Henry VIII. c.5: ‘And so we were condemned, without a quest’ (Examination II, p. 33). These insistent references by Askew to irregularities in legal procedure under 35 Henry 8 c.5 are a brilliant strategical move. For, by calling attention to specific violations of the legal rights accorded by the recent common law statute, Anne Askew demonstrates the relevance of her case to the ongoing jurisdictional dispute between the common law and ecclesiastical courts. She increases the significance of her case by attempting to make it a test of the enforcement of the one-year-old common law statute, 35 Henry 8 c.5, that limited ecclesiastical jurisdiction in heresy trials.

Anne Askew, then, would seem to be doing everything right. She knows her legal rights, insistently foregrounds the instances where they are violated, and shrewdly seeks to avail herself of recent common law advances on ecclesiastical procedures for heresy trials. So why is she condemned to death as a heretic? One way of getting at an answer to this question is to examine the legal procedure—or lack of procedure—that governs Anne's second examination. Unlike her first examination, Askew's second examination is not a court proceeding. Instead, Anne is called before the King's or Privy Council to answer questions: first about her failed marriage; then, and in considerably more detail, about her religious beliefs. The Privy Council had no clearly-defined jurisdiction in Tudor England, as it pursued matters of internally-defined state security as the majority of its business.³³ Because of its preoccupation with the safety of the realm, the Privy Council was not bound to legal safeguards in its treatment of suspects. The majority of its examinations, like Anne Askew's, take place off the record. Thus, while the official minutes of the Privy Council briefly note Askew's appearance to respond to questioning about her failed marriage, they break off without recording her examination regarding her religious beliefs.³⁴ Even more significantly, the Privy Council was the only arm of Tudor government to use torture as a means of obtaining information from its suspects.³⁵ Once it had obtained the desired information, the Privy Council would simply hand the suspect over to the appropriate branch of the law for trial and punishment. In her second examination, then, Anne is confronted with an institution which operated outside any judicial order, making her strategy—of relying upon her presentation of herself as an English subject with specific legal rights—inapplicable, that is to say, futile.

The extra-legal operations of the Privy Council force Anne Askew to make a difficult decision. Either she can renounce her scripturalism and proclaim herself an orthodox conservative, thus saving her life but sacrificing her individual identity as a female, Protestant, legal subject; or she can openly admit her Protestantism, condemn herself to death, but maintain her identity as a religious, gendered subject under sixteenth-century jurisprudence. Her text suggests that Askew chooses the latter course of action. Throughout the first half of her second examination, Askew maintains her characteristic circumspection regarding questions of religion, answering Lord Chancellor Richard Wriothesley's demand for a direct answer on the subject of transubstantiation with a scriptural citation: ‘I sayd, I wolde not synge a newe songe to the Lorde in a [str]aunge lande’ (Examination II, p. 16). Midway through her second examination, however, Askew abruptly changes tactics. Immediately after a passage that is excised from some copies of the text,³⁶ Anne Askew writes movingly about her physical condition: ‘Then on the Sondaye I was sore sycke, thynkynge no lesse than to dye. Therfor I desyred to speake with Latymer it wolde no be. Then was I sent to Newgate in my extremyte of syckenesse. For in all my lyfe afore, was I never in soch payne’ (Examination II, p. 14). Why does Askew interrupt her account of her examination by the Privy Council with a description of a life-threatening physical illness? One answer is that Askew is purposefully attempting to shape her narrative upon an established literary model familiar both to her and to her potential Protestant readership through the biblical story of Saul of Tarsus, in which moments of profound psychological transformation are thematically marked by episodes of extreme physical suffering. Askew uses her description of her physical illness to mark a turning point in her text, suggesting to her readers that during this episode she is quite literally ‘thynkynge no lesse than to dye’—that is, contemplating confessing her religious beliefs to the Privy Council, and thereby igniting a process which without a recantation would inevitably lead to her death. Askew returns to the Privy Council the very next day and denies the real presence in the strongest possible terms, blaspheming against the reserved host after sacramental consecration. ‘And as for that ye call your God, is but a piece of breade … let it lye in the boxe but iii monthes, and it wyll be moulde, and so turne to nothy[n]ge that is good’ (Examination II, p. 33). Anne's homely outspokenness, in which she designates an element consecrated by the mass a bit of moldy, overkept bread, contrasts so sharply with her earlier refusal to engage in any debate over transubstantiation that it must represent a conscious choice. Rather than abandon her self-fashioned identity as a Protestant, female, English legal subject, Anne Askew deliberately courts extinction.

Even after being condemned to death, Anne Askew never abandons her insistence on her legal rights. In one of the most moving sections of The Examinations, Askew describes how her accusers sent her to be racked in the hope that she would confess her religious non-conformity and implicate members of Queen Katherine Parr's circle. Continuing to record any departures from due civil procedure, Askew's account emphasizes that Richard Rich and Lord Chancellor Wriothesley ‘racke me [with] their owne handes’—an action as morally shocking as it was patently illegal.

Then they ded put me on the racke, bycause I confessed no ladyes nor gentyllwomen to be of my opynyon, and theron they kepte me a longe tyme. And bycause I laye styll and ded not crye, my lorde Chauncellour and Mastre Riche toke peynes to racke me [with] their owne handes, tyll I was nygh dead.

(Examination II, p. 45)

The English men and women who read The Examinations were clearly shocked by Askew's account of two members of the Privy council racking a young gentlewoman. John King has suggested that it was this passage of The Examinations, detailing ‘the use of the full rigor of torture, an unheard of practice in Tudor England,’ which was most instrumental in making Askew's case a ‘reformist cause-celebre.’³⁷ Interestingly, Anne Askew seems to have played knowingly upon the politically explosive content of her experience. ‘I understande,’ Askew wrote from prison in a letter to her friend and fellow martyr John Lassels, ‘the counsell is not a lyttle dyspleased, that it shulde be reported abroade that I was racked in the towre. They saye now, that they ded there was but to fear me, wherby I perceyve, they are ashamed of their uncomelye doynges …’ (Examination II, p. 51).

As striking, however, is Askew's refusal to dwell upon the intense physical pain of being racked. The reader gets a sense of the physicality of Askew's experience only obliquely, through her wry references to her inability to stand up and the coldness of the tile floor. ‘Then the lyesetenaunt caused me to be loused from the racke. Incontynentlye I swounded … After that I sate two longe houres reasonynge with my lorde Chaunellour upon the bare floore’ (Examination II, p. 47). Why does Anne Askew minimize her bodily pain? In her thoroughgoing study, The Body in Pain, Elaine Scarry argues that torture should be seen as a complex system of power which works by inflicting intense bodily pain to ‘unmake’ a person's world. The ‘intense pain’ of torture, argues Scarry, ‘destroys a person's self and world, a destruction experienced spatially as either the contraction of the universe down to the immediate vicinity of the body, or the body swelling to fill the entire universe.’³⁸ When torture is viewed not as a means of obtaining information, but as a system of power aimed at producing intense pain in order to obliterate consciousness, Anne Askew's refusal to dwell upon her bodily pain takes on a new light. In recasting her experiences for publication before an international audience of fellow-believers, Anne Askew refuses to dwell upon her immense physical pain because for her to do so would be to allow her narrative to play into Wriothesley and Rich's extra-legal abuse of power.³⁹ Hers is a narrative of a women seeking to be treated only according to her newly possible legal rights. After Askew's death, John Foxe would write in his Acts and Monuments that the injuries which Askew sustained at that rack were so severe that she had to be carried to her execution.⁴⁰ In The Examinations, however, Askew depicts herself as calmly sitting on the floor, ‘reasonynge’ with her correspondingly irrational persecutor. ‘He,’ Askew writes, ‘with manye flatterynge wordes, persuaded me to leave my opynyon. But my Lorde God (I thanke his everlastynge goodness) gave me grace to persever, and wyll do (I hope) to the verye ende’ (Examination II, p. 42).

Her hopes were answered. According to Foxe, Askew remained resolute in her convictions to the end of her life. Even when she was tied to the stake, Askew refused a last minute offer of pardon from the king. ‘I came not thither,’ she is reputed to have said, ‘to deny my Lord and master.’⁴¹ Sadly, less than six months later, the beliefs for which Askew died were to become legal—and eventually orthodox—with the accession of Edward and the Protectorate.⁴² But I would like to close by suggesting that to focus upon what might seem to be the senselessness of Askew's death would be to apply our own, modern standards to a text which resists easy classification. Although she lost her life, Anne Askew did succeed in styling herself as a Protestant, female subject with legal rights equal to men in the only forum available to her—the ecclesiastical courts. And perhaps even more significantly, in her attempt to use the common law as a means of safeguarding her ability to hold unorthodox belief, Anne Askew prophetized the much more gradual development of women's rights—and civil liberties—in English law. ‘Fynde no faute in poore women,’ Askew admonished the Bishop of Winchester, ‘except they had offended the lawe’ (Examination I, p. 10).

Notes

1. An earlier version of this paper was presented at the 1992 MLA convention, on a panel organized by Janel Mueller, ‘Textual Production in the Reign of Edward VI’. She has read and commented on successive drafts of this essay with her characteristic combination of intellectual rigor and emotional support. Doug Bruster, Bonnie Gunzenhauser, John King, Carol Neely and Richard Strier also read and provided insightful and probing commentary on various stages of this essay. Jim Navarre provided help with sixteenth-century law and much else.

2. In English Reformation Literature: The Tudor Origins of the Protestant Tradition (Princeton, 1982), pp. 73-75, John King writes that Askew's First Examination was printed in Wesel soon after her execution, in November 1546. King notes that the Latter Examination was printed in Wesel on January 16, 1547, suggesting that copies of her work would not have been available in England prior to the death of Henry on 28 January 1547.

3. John Bale (ed.), The Examination of Anne Askew, 2 Vols. (Wesel, 1546 & 1547). S.T.C. #851. All further citations from the text will be noted parenthetically within the text. I will denote Examinations I for the First Examination and Examinations II for the Lattre Examination. In citing, I have followed the modern form for i/j, u/v, vv/w and have expanded the contractions.

4. H. C. Parker (ed.), The Select Works of Iohn Bale (Cambridge, 1849), pp. 198-9.

5. Susan Brigden, Reformation London (Oxford, 1989), p. 371.

6. Brigden, p. 375.

7. Although it is arguably one of the earliest examples of specifically English female textual production in the earliest modern period, The Examinations of Anne Askew has received scant critical attention. Much of the best work has focused upon the text's relation to Tudor politics and religion. See especially, Brigden's Reformation London; John King's English Reformation Literature. Elaine Beilin is the only author to provide a detailed analysis of Askew's life and work. See, variously, ‘Anne Askew's Self-Portrait in The Examinations’ in Margaret Hannay (ed.), Silent But for the Word (Kent, Ohio, 1985); ‘Anne Askew's Dialogue with Authority’ in Contending Kingdoms: Historical, Psychological and Feminist Approaches to the Literature of Sixteenth-Century England and France (Detroit, 1991), pp. 313-22; and Redeeming Eve (Princeton, 1987).

8. For an overview of the relationship between women and the common law, see L. Stone, The Family, Sex and Marriage in England (New York, 1979). For a more fluid interpretation which stresses the way in which women often ‘made shift’ in their dealings with the law see Frances E. Dolan, ‘Home-rebels and house-traitors': Murderous Wives in Early Modern England,’ Unpublished draft, circulated to the Renaissance Workshop at the University of Chicago, 1991. Also see Maria Lynn Cioni, Women and Law in Elizabethan England, with Particular Reference to the Court of Chancery (New York, 1985). For a seventeenth-century view on the relationship between women and law in England, see T. E., The Lawes Resolution of Women's Rights Or the Lawes Provision for Women (London, 1632).

9. Stone, p. 136.

10. The inequalities which a married English woman faced at the common law were not lifted until the passage of the Married Woman's Property Act in 1870. R. Altick, Victorian Peoples and Ideas (New York, 1973), p. 315.

11. On the ecclesiastical court system, see M. Ingram, Church Courts, Sex and Marriage in England, 1570-1640 (Cambridge, 1987).

12. In her book, The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (Cambridge, 1987), Cynthia Herrup suggests that jurors frequently used ‘benefit of clergy’ as a discretionary means of reducing the sentences of male felons. For more on the social context of justice, see Cynthia Herrup, ‘Law and Morality in Seventeenth-Century England,’ Past and Present, 106, (1985), pp. 102-123.

13. On the way in which the widespread use of the benefit of the clergy discriminated against female defendants, see Herrup, Common Peace, pp. 142-3.

14. On the Six Articles, see G. R. Elton, The Tudor Constitution, 2d ed., (Cambridge, 1982), pp. 400-401 and J. Guy, Tudor England (Oxford, 1988), p. 185.

15. Guy, England, p. 185.

16. Wilson, p. 187.

17. King, pp. 24-5.

18. Guy, England, p. 196.

19. Michel Foucault writes that, ‘in most European countries with the notable exception of England, the entire criminal procedure, right up to the sentence, remained secret.’ Discipline and Punish, trans. by A. Sheridan (New York, 1979), p. 35.

20. On ecclesiastical procedure in heresy trials, and how it contrasted with the evolving English sense of a national common law jurisprudence, see John Guy, ‘The Legal Context of the Controversy: The Law of Heresy,’ in John Guy, Ralph Keen, Clarence Miller and Ruth McGugan (eds.), The Complete Works of Thomas More, 12 Vols. (New Haven, 1987), Vol. 10, pp. xlvii-lxvii.

21. Guy, ‘Legal Context’, passim.

22. Guy, ‘Legal Context’, lxvii, writes that the passage of the 1534 Heresy statute ‘marks a major turning point in English legal history’ and suggests that its passage ‘did more in the long term to undermine the independent, inquisitorial jurisdiction of the ecclesiastical courts and Roman-canonical procedure in England than any other Henrican measure, except the Act of Appeals and that which confirmed the earlier Submission of the Clergy.’

23. Guy, Tudor England, p. 185, writes that under the penal clauses of the Six Articles, ‘Denial of transubstantiation became punishable by automatic burning—even the pre-1534 heresy law had permitted one recantation.’

24. On the passage of 35 Henry 8 c.5, and the important limitations it placed on ecclesiastical procedure in heresy trials, see Elton, p. 396 and Guy, Tudor England, p. 194. For the actual statute see, Statutes at Large, 7 Vols. (London, 1863), Vol. 2.

25. Cioni, Women, observes as follows: ‘While many of the difficulties which women encountered could not be remedied at the common law unless all technical requirements were fulfilled this was not the situation in equity and especially in Chancery; that Court was ready to help female litigants and even, beginning during the later part of the sixteenth century, to establish rights for them which were denied at the common law.’ (1).

26. p. 371.

27. John Foxe, The Acts and Monuments of the English Church, 8 Vols. (New York, 1965), Vol. 5, p. 540.

28. Hall was a member of parliament for Wenlock, Shropshire. Describing the commons grievances against the ex-officio procedure of the ecclesiastical court, Hall writes ‘they sore complayned of the crueltie of the Ordinaires, for callying men before theym Ex officio … For the Ordinaires woulde sende for men and ley Accusations to them of Heresye, and say they were accused, and ley Articles to them, but no Accuser should be brought furth, which to the Commons was very dredefull and grevous’ (784). Quoted in Guy, ‘Legal Context’, p. lvii.

29. Foxe, p. 550.

30. ‘No person,’ the statute reads, ‘shall be arrested or committed to ward for any such offense before he be indicted.’ Statutes At Large, n. pag.

31. The statute reads, ‘No person shall be put to his Trial upon an Accusation concerning any of the Offenses compromised in the Statute of 31 Henry VIII. c.14 [The Act of the Six Articles] but only upon such as shall be made by the Oath of twelve Men before commissioners authorized. Statutes at Large, n. pag.

32. Later in the text, Askew further foregrounds the fact that she is being unlawfully re-examined: ‘But as I sayd afore, both to the qwest and to my Lorde Mayre, so saye I now agayne …’ (Examination I, p. 25).

33. On the role of the Tudor Privy Council, see Elton, pp. 86-108.

34. Wilson, pp. 207-208.

35. Elton, p. 172.

36. Four lines, detailing Bale's attack on Secretary Paget, are excised from the copy at Manchester College, Oxford (King, p. 79). John King has examined them and has suggested to me that the censorship was the work of Edwardine publishers who attempted to turn The Examinations into successful pro government propaganda by excising Bale's attack on William Paget, who had survived the political tumult which followed Henry's death to become Secretary of State in the Seymour administration. Other editions leave the passage intact. For more information on publishing and censorship during the Protectorate, see King, pp. 76-121.

37. King, p. 25.

38. The Body in Pain: The Making and Unmaking of the World (Oxford, 1985), pp. 1-60.

39. In a recent article, Janel Mueller uses Foxe's account of the death by burning of Protestant resisters of the Marian orthodoxy to challenge the transhistorical validity of the political signification which Scarry ascribes to torture. ‘Rather than the unmaking of selves, voice, or world,’ Mueller argues, ‘Foxe's narratives consistently inscribe triumphant makings on the part of condemned heretics, and concomitant unmakings on the part of their persecutors.’ ‘Pain, Persecution and the Construction of the Subject in Foxe's Acts and Monuments,’ presented at the UCLA conference, ‘Books in Chains; Bodies in Flames’ (March 1993).

40. Foxe, p. 550.

41. Foxe, ibid.

42. King, pp. 74-75.