Friday, May 19, 2017

The Fall and Execution of Anne Boleyn


The Fall and Execution of Anne Boleyn

 

 

      Today, May 19, marks the anniversary of the execution in 1536 of Anne Boleyn on spurious charges of adultery and therefore (by one argument) treason.  While she would be included in Foxe’s Book of Martyrs, a 16th century effort at Protestant hagiography, all indications are that Anne died a Catholic; it is difficult to otherwise understand her request that the Eucharist be placed in her chambers at the Tower of London in the days before her execution.

      It was a convoluted process that brought Anne to execution.

      Previously, Henry VIII had been married to Catherine of Aragon.  That marriage would ultimately sour on the fact that only one of the children of Henry and Catherine survived infancy, that being Mary.  England was not, it was feared, ready to be ruled by a queen.  The only example of it doing so, that being the reign of the Empress Matilda (daughter of King Henry I) was referred to as the “Anarchy.”  Seeking to perpetuate the dynasty and avoid the possibility of civil war after his death, Henry pursued the Divorce (it was actually what we would refer to today as an annulment) so that he could marry Anne Boleyn.

      The Divorce could not easily be had consequent to at least a pair of factors.  Initially, on theological grounds, the basis for the Divorce was weak.  Second, Eleanor’s nephew, Charles V, was King of both Spain and the Netherlands and as well Holy Roman Emperor.  He was able to delay any decision on the Divorce, thereby depriving Henry of the one thing he did not have, namely time.  Ultimately, Henry would schism the English church from Roman communion (an act which earned for Henry his very own bull of excommunication).  The marriage to Catherine of Aragon was then annulled by Thomas Cramer, Archbishop of Canterbury. Now “single,” Henry proceeded to marry Anne Boleyn.  She, already pregnant at the time of the marriage, would be the mother of Elizabeth.  Elizabeth would be their only child.  Henry was now in no better position than he was before; two potential female heirs to the throne did not address the perceived need for a male heir.  Anne’s fortunes would ultimately be destroyed consequent to a series of events whose genesis is still greatly debated, but it is clear that the charges of adultery and incest for which she was convicted and executed were entirely fabricated.  Regardless, by some means Thomas Cromwell (now famous consequent to Wolf Hall and Bring Up the Bodies, both by Hilary Mantel) was told to make it happen, and he did.

      On April 30, 1536 Mark Smeaton, a court musician and hanger-on, was arrested, this being the first overt step in Cromwell’s plan to bring down Anne Boleyn.  According to one source, Cromwell had Smeaton brought to his own house and there tortured him.  Eventually, Smeaton would be racked and confess to have committed adultery with Anne Boleyn.  Some five additional men would be arrested on similar grounds. One of them, Wyatt, was not ultimately charged.

      The first trial (albeit indirect) of Anne Boleyn took place on May 12, 1536.  Anne, however, was not a participant in the trial.  Rather, at this trial each of Mark Smeaton, Henry Norris, William Brereton and Francis Weston were charged with multiple acts of adultery with the Queen.  Sadly, no transcript of the proceedings, if made (and that is doubtful), survives.  All were found guilty, thereby sealing Anne’s fate.  She did not attend the trial; rather, at that time she was confined in the Tower of London.  Her father, Thomas Boleyn, did sit on the jury – his vote in favor of their conviction sealed the fate of his children.

      On May 15, 1536, Anne Boleyn as well as her brother George were tried on allegations of adultery and incest.  As to Anne, the conclusion of this “trial” was a foregone conclusion.  Four of the men with whom Anne was accused of having engaged in adultery, Mark Smeaton, Henry Norris, William Brereton and Francis Weston, had already been convicted on May 12, and, so goes the adage, it does take two to tango.  George was convicted on the charges against him.

      Although some incomplete notes of this trial do survive, sadly no transcript is available; it would no doubt make interesting reading.  It is clear that both Anne and then George (George’s trial was separate and held after that of Anne) denied all charges against them.  Those denials (as well as the expected denials of the other men charged with having committed adultery with Anne) must be accepted at face value.  As has been demonstrated by several scholars, most conclusively Eric Ives, the author of the definitive biography of Anne, she and her various co-conspirators could not have been guilty of the charges made – even with the incomplete records available to us today, it can be demonstrated that in numerous instances Anne and a particular gentleman were charged with having committed adultery at a particular time and place when, in fact, either or both of them were at a different place or even two difference places.  The truth, however, was not the issue; the outcome of the trial was a foregone conclusion before it ever started.  Henry was tired of Anne, and Cromwell had been charged to bring about her fall. End of story.

      On May 14, Cramner, Archbishop of Canterbury, had declared the marriage of Henry and Anne to have been invalid ab initio, possibly (the papers as to his determination have been lost) on the basis of her prior contract of marriage to Henry Percy the son of the then Fifth Earl of Northumberland (this Henry would be the Sixth Earl). An alternative basis was that Mary Boleyn, Anne's sister, had been Henry's mistress, and on that basis the marriage could have been invalid based upon consangruity. Regardless as to why, Anne would not die as the Queen of England, having never been validly married to Henry, and their daughter Elizabeth (the future Queen Elizabeth I) was rendered illegitimate.

      All of Mark Smeaton, Henry Norris, William Brereton and Francis Weston, along with George Boleyn, would be executed on May 17.  Anne’s death would not take place until May 19.

      Famously, Anne was executed not with the traditional English ax, but rather by a French swordsman. I have never found a satisfactory explanation as to why the swordsman was requested over the axeman; Friedmann (another biographer of Anne) suggested, and Ives admits it as a possibility, that it was at Anne’s request, she desiring the French manner of execution in light of her having been raised in the French court. There is, however, a problem of chronology. Anne was consigned to the Tower on May 2, her alleged partners in adultery (other than her brother George) were tried on May 12, and she was tried on May 15.  The swordsman, normally resident in Calais, may have been ordered to come to England before Anne’s trial. If so, there is further evidence that the trials were for show and the verdicts were pre-determined; even though her trial had not yet taken place, the manner of her dispatch may have already been selected.  Still she came out ahead (no pun intended); her sentence was commuted to beheading – the regular sentence for a woman convicted of treason was burning at the stake.

      Anne was buried in St. Peter ad Vincula, the church on the grounds of the Tower of London.  There she joined Sir (now Saint) Thomas More, another of Henry’s victims, executed in 1535.

      Henry would marry Jane Seymour, his third wife, on May 30. She shortly thereafter became pregnant, ultimately delivering a son who would survive infancy.  That child was Edward VI.  Jane would die of complications from childbirth. While Henry would go on to marry three more times, namely to Anne of Cleves, Catherine Howard and Catherine Parr, none of them would have children by him. Edward VI would die, probably of tuberculosis, in his mid-teens.  Mary and then Elizabeth, the girls Henry feared could not rule, would in turn rule England.  As observed by Peter W. Hogg, Succession to the Throne, 33 Nat'l J. Const. L. 83 (2014):

 [W]hile Henry VIII was engaged in his obsessive quest for a male heir he could not know that his daughter Elizabeth by Anne Boleyn (the second of his six wives) was destined to become the greatest monarch England had ever known.  She became Elizabeth I (Good Queen Bess, as she was known), and ruled for 45 years (1558-1603, England's “golden age”).  Henry should have stopped worrying and settled down with Anne Boleyn instead of beheading her.

Monday, May 15, 2017

Additional Questions on 2017 Annual Reports to the Kentucky Secretary of State


Additional Questions on 2017 Annual Reports to the Kentucky Secretary of State
      Various companies, both those organized in Kentucky and those qualified to transact business in Kentucky, are now receiving their annual report forms from the Kentucky Secretary of State. There are some changes on the form of which you should be aware.
      But first, it is absolutely necessary that every company either organized in Kentucky or qualified to transact business in Kentucky properly complete and file the annual report. A domestic company that does not file its annual report will be subject to administrative dissolution. Foreign companies that do not file an annual report will have their certificate of authority to transact business in Kentucky revoked. While administrative dissolution can be cured, it will cost, at minimum, several hundred dollars to accomplish that task. Conversely, revocation of a certificate of authority is not subject to cure, and a new registration with the state will have to be accomplished. In either instance, it is far easier to complete and submit the annual report.
      On the annual report for corporations, the company secretary must be identified. Also, be sure the list of other officers and of the directors is up to date. As clarified on this year’s annual report form, if an LLC is manager-managed, the names and addresses of those managers must be set forth. If conversely the LLC is member-managed, it is not necessary to name any of the members.
      But back to those new questions. The 2017 annual report form includes a number of questions including the county(ies) in which the business operates, its size, whether it is woman, veteran or minority owned and its line of business. This information is being sought in order that the office of the Secretary of State will be better able to respond to questions. For example, a third party might request from them a listing of all of its veteran owned businesses. With this new information, the Secretary of State could respond to that inquiry.
      It is important to note, however, that all of these questions are optional; the annual report form will be complete and will be accepted even if some or none of these new questions are answered. Annual report forms are of public record, and any information you might disclose with respect to these new questions will likewise be publicly available.

The Trial of Anne Boleyn


The Trial of Anne Boleyn


      On this day in 1536, Anne Boleyn, as well as her brother George, was tried on allegations of adultery and incest.  The conclusion of the “trial” was a foregone conclusion.  On May 12, four of the men with whom Anne was accused of having engaged in adultery, Mark Smeaton, Henry Norris, William Brereton and Francis Weston, had already been convicted, and, so goes the adage, it does take two to tango. 


      Although some incomplete notes of the trial do survive, sadly no transcript is available; it would no doubt make interesting reading.  It is clear that both Anne and then George (George’s trial was separate and held after that of Anne) denied all charges against them.  Those denials (as well as the expected denials of the other men charged with having committed adultery with Anne) must be accepted at face value.  As has been demonstrated by several scholars, most conclusively Eric Ives, Anne and her various co-conspirators could not have been guilty of the charges made – even with the incomplete records available to us today, it can be demonstrated that in numerous instances Anne and a particular gentleman were charged with having committed adultery at a particular time and place when, in fact, either or both of them were at a different place or even two difference places.  The truth, however, was not the issue; the outcome of the trial was a foregone conclusion before it ever started.  Henry was tired of Anne, and Cromwell had been charged to bring about her fall. End of story.


      On May 14, Cramner, Archbishop of Canterbury, had declared the marriage of Henry and Anne to have been invalid ab initio, possibly (the papers as to his determination have been lost) on the basis of her prior contract of marriage to Henry Percy the son of the then Fifth Earl of Northumberland (this Henry would be the Sixth Earl). An alternative basis was that Mary Boleyn, Anne's sister, had been Henry's mistress, and on that basis the marriage could have been invalid based upon consangruity. Regardless as to why, Anne would not die as the Queen of England, having never been validly married to Henry, and their daughter Elizabeth (the future Queen Elizabeth I) was rendered illegitimate.


      All of Mark Smeaton, Henry Norris, William Brereton and Francis Weston, along with George Boleyn, would be executed on May 17.  Anne’s death would not take place until May 19.

Friday, May 12, 2017

Sixth Circuit Court of Appeals Rejects Substance Over Form Doctrine


Sixth Circuit Court of Appeals Rejects Substance Over Form Doctrine

        In a February, 2017 decision, the Sixth Circuit Court of Appeals rejected the application of the “substance-over-form” doctrine to reverse the effect of a tax minimization plan that was implemented in compliance with the Internal Revenue Code. In addition, the opinion has the benefit of citing Suetonius, The Twelve Caesars.  Summa Holdings, Inc. v. Commissioner of Internal Revenue, ____Fed.3d____, 2017 WL 631663 (6th Cir. Feb. 16, 2017).
       The tax planning at issue involved the payment of distributions from a “domestic international sales corporation” (DISC) to Roth Individual Retirement Accounts of certain of the manufacturing company’s shareholders. Suffice it to say that this tax planning technique is entirely permissible and does, initially, require payment of tax of the funds transferred to the Roth IRA. In this instance, however:
[T]he Commissioner balked. He acknowledged that the family had complied with the relevant provisions [of the Internal Revenue Code]. And he acknowledged that the purpose of the relevant provisions was to lower taxes. But he reasoned that the effect of these transactions was to evade contribution limits on Roth IRAs and applied the “substance-over-form doctrine” to recharacterize the transactions…
       That determination was upheld by the Tax Court, and this appeal to the Sixth Circuit followed.
        Rejecting this effort at re-characterization, the Six Circuit wrote:
Every word of the “substance-over-form doctrine,” at least as the Commissioner has used it here, should give pause. If the government can undo transactions that the terms of the Code expressly authorize, it's fair to ask what the point of making those terms accessible to the taxpayer and binding on the tax collector is. “Form” is “substance” when it comes to law. The words of law (it's form) determine its content (it's substance). How odd, then, to permit the tax collector to reverse the sequence - to allow him to determine the substance of a law and to make it govern “over” the written form of the law - and to call it a “doctrine” no less.
       From there the court would go on to determine that the use of the DISC/Roth IRA was permissible under the wording of the Internal Revenue Code, and could not be set aside by the Commissioner based upon some theory of abuse of the intent of the Internal Revenue Code.

Monday, May 8, 2017

Effort to Compel Publication Rejected


Effort to Compel Publication Rejected


      In a recent decision from the Kentucky Court of Appeals, it affirmed a trial court dismissal of a compliant seeking an order that the Courier-Journal must publish certain allegations Flint v. Gannett Co., Inc., No.2016-CA-000046-MR, 2017 WL 1103021 (March 24, 2017).

      Flint filed suit against the Courier-Journal seeking an order that it publish his allegations of legislative corruption.  The trial court dismissed the action.

On this appeal, the Court of Appeals determined, based upon settled Supreme Court decisions on the scope of the First Amendment law, that a court cannot order a newspaper to publish particular materials.  On that basis the dismissal of the complaint was affirmed.

Based upon Flint’s repeated filing of suits and conduct including filing suit against judges that rule against him,  the Court of Appeals ordered that he pay Gannett’s costs.

Administratively Dissolved California LLC May Not Appeal Adverse Tax Ruling


Administratively Dissolved California LLC May Not Appeal Adverse Tax Ruling

      In a recent decision, a California State Court of Appeal rejected an effort by an administratively dissolved LLC to appeal an adverse decision against it. Creditors Adjustment Bureau, Inc. v. Big Valley Cold Storage LLC, 2017 WL 1076371 (Cal. App. 5th Dist. Feb. 22, 2017).
      Creditors Adjustment Bureau, Inc. (“CAA”) was awarded a default judgment against Big Valley Cold Storage LLC (“Big Valley”). Initially, after CAA filed its complaint, Big Valley Cold Storage sought to answer, but it's response to the complaint was rejected on the basis that it had not paid a filing fee and as well filed an answer without representation by an attorney. Ultimately, a default judgment was entered against Big Valley. Some six months later, Big Valley would retain counsel, who was unsuccessful in seeking to have the default judgment set aside. Specifically, CAA alleged that as the Franchise Tax Board had suspended Big Valley’s status as an LLC, it lacked the capacity to defend the action or to prosecute an appeal. From there, the appeal followed.
      On appeal, Creditors Adjustment was successful in arguing that, as Big Valley had been administratively dissolved consequent to its failure to pay taxes, it lacked the capacity to bring an appeal of the default judgment. Specifically, under California law:
In support of its request for dismissal of the appeal, plaintiff presented a printout from the Secretary of State’s Web site, showing that Big Valley is currently suspended by the Franchise Tax Board (the Board) and the Secretary of State.  The Board may suspend the powers, rights and privileges of a limited liability company that fails to pay its taxes or fails to file a required tax return.  (Rev. & Tax. Code, §§ 23301, 23301.5, 23302, 23305.5, subd. (a)(2).) The Secretary of State may suspend the company’s powers, rights and privileges if the company fails to file the required statement of information with the Secretary of State. (Corp. Code, §§ 17702.09, 17713.10.)
A corporation or other entity that has had its powers suspended for failure to pay its taxes lacks the legal capacity to prosecute or defend a civil action, or to appeal from an adverse judgment.  (Bourhis v. Lord 92013) 56 Cal.4th 320, 324; Tabarrejo v. Superior Court (2014) 232 Cal.App.4th 849, 861-862.) “The same rule applies when a corporation fails to file the required statement of information.” (Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1486 (Friends).) The suspended entity may, however, be sued and have a default judgment entered against it. (Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1306.)
The policy underlying the statutory provisions regarding failure to comply with the tax statutes is “ ‘to prohibit the delinquent corporation from enjoying the ordinary privileges of a going concern, in order that some pressure will be brought to bear to force the payment of taxes.’ ” (Peacock Hill Assn. v. Peacock Lagoon Constr. Co. (1972) 8 Cal.3d 369, 371.) The delinquent entity may revive its powers by complying with the applicable statutory requirements and, in the case of the failure to pay taxes or file a tax return, obtaining a certificate of reviver from the Board. (Rev. & Tax Code, § 23305; Corp. Code, § 17713.10, subd. (d).) Once its powers are revived, the corporation or other entity may again sue and defend in court. (Friends, supra, 200 Cal.App.4th at p. 1486.)
      Of course, similar result would not happen in Kentucky. Initially, the Kentucky Department of Revenue does not have the authority to effect the administrative dissolution of a business organization. Rather, that capacity is reserved exclusively to the Secretary of State. Second, under Kentucky law, a company that has been dissolved, whether voluntarily, administratively or judicially, continues to be a business organization with the capacity to initiate and defend all legal actions. See, e.g., KRS § 275.300(4)(a)-(b).

Saturday, May 6, 2017

The Sack of Rome and the Papal Swiss Guard


The Sack of Rome and the Papal Swiss Guard


        Today marks the anniversary of the Sack of Rome in 1527 by troops of Charles V,  Holy Roman Emperor.

        Since the late 15th Century Italy (or at least the region we today identify as Italy – the notion of the region as a nation was long in the future) had been repeatedly invaded by forces from Northern Europe, each seeking to claim dominion over one area or another. Rival claimants to the crown of Naples caused as much trouble as did anything, but economic rivalry between for example Genoa and Venice did nothing to calm the waters.  Pope Alexander VI gave command of the papal army to his son/nephew (which is a matter of dispute) Cesare in order to bring some order, and Pope Julius II would actually don armor and lead his army into battle, again in an effort to bring some stability to the situation.  While Erasmus would condemn Julius for doing so, he did ignore the fact that the targeted cities surrendered to him.

        But back to the Sack of Rome.  Charles’ forces were at this point battling the League of Cognac, it being comprised of France, Milan, Venice, Florence and the Papal States (keeping track of the various Leagues through the Italian Wars is a troubling task; the League of Cambrai was initially formed against Venice by the Papacy, France, Spain and the Holy Roman Empire. Later the initial members would be allied against France with Venice as an ally. Later Venice and France would be against the Papacy, Spain and the Holy Roman Empire). After a significant victory over the French army the troops were restive in that they had not been paid – most were mercenary. Pillaging Rome would be a way of paying the troops. The city was not well defended, although its formidable walls did need to be and were breached.  Their commander having fallen in the course of the attack, discipline immediately broke down among the troops, and a sack of over three days began.

        The Pontifical Swiss Guard, created only in 1506 under Pope Julius II, rose to the occasion. Of its then number of 189, 147 would fall defending Pope Clement VII, affording him time to take refuge in the Castel Sant’Angelo (Hadrian’s Mausoleum). In recognition of this event, new members of the Pontifical Swiss Guard are sworn in on May 6.  Earlier today, in the continuation of that tradition, Pope Francis I officiated at the swearing in of a number of new Swiss Guards.

           There was in 2013 an event unique to the Guard, namely the recognition of a Pope’s retirement. Benedict XVI left the Vatican as Pope, flying to the Castle Gandolfo. The Swiss Guard accompanied him to the castle and there stood guard. When the moment his resignation became effective, and Benedict became not Pope but Pope Emeritus, the Guards left their station at the castle and returned to Rome. While the Vatican has its security forces, and they no doubt continued to provide protection for Benedict, the Swiss Guard serve the Pope.

        Of course this was not the only sack of Rome – it had fallen many times in its long history. It fell to the Normans in 1084, in 546 by the Ostrogoths, in 455 by the Vandals, in 410 by the Visigoths and in 387 BC by the Gauls.