Read The King's Cardinal: The Rise and Fall of Thomas Wolsey (Pimlico) Online
Authors: Peter Gwyn
The Norwich episode shows Wolsey at his best,
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using that same mixture of carrot and stick that was such a feature of his conduct of foreign policy, and without which no agreement would probably ever have been reached. Even so, it took him about seven years from his first visit to the city in the autumn of 1517 to the signing of the final agreement. The case, therefore, illustrates not only his skill, but also the difficulties that he, and indeed any lord chancellor, faced. As in the disputes between leading families, what was involved was not simply a matter for the law – for in law both sides could usually produce a reasonable case – but a conflict of interest, which did not disappear just because a legal decision had been made. What was required was a genuine compromise, one sufficiently satisfactory to both sides as to create a vested interest in maintaining it. This was difficult to achieve, requiring a real mutual desire to settle – which almost by definition was lacking, at least initially – for otherwise there would have been no need to appeal to the lord chancellor. Fortunately, this desire did not have to depend upon goodwill, which was invariably in short supply. Self-interest informed by good legal advice, could bring it about, if only through fear of the consequences of not attempting to settle. It was this that gave Wolsey and his colleagues their chance.
It was, of course, the plaintiff who took the initiative in bringing a dispute to the lord chancellor’s attention, and, as we have noted earlier, it has been suggested that Wolsey as lord chancellor was a plaintiffs judge. One reason behind this suggestion is that it would provide an explanation for the increase in business. Believing him to be ‘a soft touch’, people would have been encouraged to bring to him cases that a stricter lord chancellor would not have entertained. And the result of Wolsey’s softness may have been a too high proportion of essentially frivolous or vexatious suits. The suggestion also fits well with a certain view of his character: the self-important
Wolsey who would find enormous pleasure in the ever-growing number of people appealing to him for help, and the over-confident Wolsey who believed that only he could solve other people’s problems. The trouble with both these approaches is that they do not relate very closely to what Wolsey actually did as lord chancellor; and the trouble with what he actually did is that, as has already been suggested, the evidence rarely permits one to evaluate Wolsey’s personal contribution to the legal proceedings. Moreover, to attempt to do so requires a considerable degree of expertise in the handling of legal records, and, to complicate the issue further, two people with just such expertise have come up with contradictory answers.
F. Metzger in his study of Wolsey’s work in chancery, has emphasized his formal correctness and indeed his genuine effort to deter frivolous or vexatious suits. Wolsey appears to have insisted that the mainpernors who in theory guaranteed that a plaintiffs complaint was genuine, should be real people rather than the fictional Does, Roes and Smith that had been increasingly allowed by his predecessors. He was the first lord chancellor to insist that bills of complaint should be signed by the plaintiff’s counsel and countersigned by a master in chancery. He also insisted on the strict rule of proof and was quite willing to refer a case back to the common law court if a plaintiff failed to show sufficient reason why he should not.
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On the other hand, J.A. Guy has argued that in Star Chamber Wolsey deliberately relaxed the rules to the great advantage of the plaintiff. He appears not to have insisted that the plaintiff produce sureties for the payment of damages to a wronged defendant.
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He made no effort to scrutinize bills of complaint, as his successor More was to do.
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He allowed the plaintiff to start the procedure by which the defendant was forced to appear in court before he had filed his bill of complaint, and to alter it right up until the moment the defendant had put in his first appearance, which must have made it that much more difficult for him to prepare his defence.
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It would almost seem as if these two historians were writing about different people and, when Guy makes a point of saying that Wolsey in Star Chamber did not insist on bills of complaint being signed by counsel, a procedure which Metzger maintains that Wolsey introduced into Chancery,
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the non-expert comes near to despair. Of course, one way of explaining the contradictions would be to emphasize the different attitudes of the two courts rather than the personality of a particular lord chancellor – and this approach does seem to offer the best remedy to despair! Chancery, being the older and better established court, took a stricter view of procedural matters than the Council in Star Chamber. As time went by, and inevitably once it became a formal court, stricter procedures were to be introduced into Star Chamber. Meanwhile the flexibility which may have favoured the plaintiff had very little to do with Wolsey, but quite a lot to do with the stage in its evolution that the court had reached. However, more important than any difference between the two institutions is what they shared in common: that concern to listen to the
complaints of the king’s subjects. In this sense they were both plaintiffs’ courts, and would have failed in their duty if they had put difficulties in the plaintiff’s way, even if this meant that they were sometimes taken for a ride. Put in this context, Wolsey’s alleged leniency becomes almost meaningless. The chancellor was there to favour the plaintiff in the initial stages of a case. But, once the case was under way the plaintiff could expect no special treatment. Even the unfriendly Edward Hall considered that Wolsey was severe on perjury ‘so that in his time it was less used’,
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and a number of people ended up in Westminster Hall with papers on their heads declaring them to be perjurers.
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Of course, not all perjurers were plaintiffs, but if Wolsey was known to be severe on perjurers it must have at least deterred plaintiffs from making false complaints.
Someone who was both a plaintiff and, insofar as she deliberately based her case in Star Chamber on a forger’s evidence, a perjurer was Joan Staunton. Her suit, over land in Kidlington Oxon, can be seen as just of that frivolous and vexatious kind that Wolsey’s leniency attracted,
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because it would appear that she had no case to make – and certainly it led the acting clerk of the council, Sir Thomas Elyot, to wonder how Wolsey and his colleague might be spared the barking of such a bitch.
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However, Wolsey’s contemptuous dismissal of her case and the fact that the perjurer was condemned to spend a whole day in a pillory suspended by her ears, hardly supports the view of the over-lenient lord chancellor. Moreover, it must always have been the case that until the evidence had been presented in court and, for instance, in Joan Staunton’s case, it was shown that vital documents had been forged, it was very difficult to be certain whether a suit was merely frivolous and vexatious. This being so, such suits are an inevitable part of any legal system. It is not known whether the defendant to Joan Staunton’s suit received any costs or damages, but probably he did. A defendant in another case was awarded 6
s
for being forced to appear in court without sufficient cause being laid against him,
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and this was not a unique occurrence. Indeed, whatever the nature of his complaint, a plaintiff always risked the possibility of having to pay costs, and this must have acted as some deterrent to the wilful misuse of the conciliar courts.
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According to Hall, there was a class of litigant that Wolsey did go out of his way to encourage: ‘The poor men perceived that he punished the rich, then they complained without number, and brought many an honest man to trouble and vexation.’
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It is not necessary, of course, to take Hall’s rather jaundiced view of a chancellor who went out of his way to encourage the poor to bring their cases before him. The real difficulty is to decide whether the proposition is true. It does receive some support, though, from the fact that by three orders of 1517, 1518 and 1520 Wolsey felt compelled to set up ‘under-courts’ sitting in Westminster specifically to
hear poor men’s causes, for this does suggest that there were too many cases to be dealt with by the existing machinery.
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In 1520 these under-courts emerged in the more formal shape of the ‘king’s most honourable Council in his Court of Requests’, and though the personnel changed, this embryo court of requests remained in being for the rest of Wolsey’s period as chancellor. At the same time litigants could still bring their complaints before two councillors specially appointed to attend upon the king, and these two may have provided the poor with additional access to conciliar jurisdiction. There is, thus, no doubt that concern was shown for the special needs of the poor. What is more difficult to decide is just how poor the ‘poor’ were, and how far Wolsey was responsible for any increasing concern for their affairs during his period of office. There must have been some kind of yardstick by which to judge the poverty of a litigant, for in a case in 1519 the Council decided that the plaintiff was a gentleman with sufficient income to make use of the common law courts.
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However, what that yardstick was is not known, and by and large historians have been reluctant to allow that the poor really benefited. For Wolsey’s period Guy has come across only three litigants, out of a total of 1,268 whose social origins he has been able to discover, who were allowed to sue as paupers;
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but as the bulk of the records for poor men’s causes have either not survived, or have not been fully sorted, too much cannot be made of these figures.
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What is of some interest is Guy’s finding that of the 753 plaintiffs whose social origins are known, 245 were either yeomen, craftsmen or labourers.
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Admittedly the great majority of these belonged to the first category,
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which would undoubtedly have included some quite wealthy people, but that over 30 per cent came from such categories is some evidence for a special concern for the less powerful.
Direct evidence for Wolsey’s concern for poor men’s causes can be found in the detailed instructions drawn up for the reconstructed Council in the Marches of Wales in 1525, in which it was stated that the Council was to publicize the fact that the complaints of the poor and disadvantaged would be very much its concern. Their cases would always be considered first so as to save them as much inconvenience as possible, and, moreover, they were to be given free legal advice.
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The more general provision of free legal advice for the poor was something that the Venetian ambassador, Giustinian, specifically mentioned in his final report to the Venetian Senate in 1519, and in other ways, too, he praised Wolsey’s treatment of their cases: he had ‘the reputation of being extremely just: he favours the people exceedingly, and especially the poor; hearing their suits, and seeking to despatch them instantly; he also makes the lawyers plead gratis for all paupers.’
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Enough has already been said about the dangers of taking ambassadorial comments at their face value to deter us from relying too heavily on Giustinian’s favourable assessment, but there seems no reason for him to have written in this way unless he was at least
reflecting a commonly held view. But, as so often, a word of caution must be introduced. Conciliar concern for poor men’s causes was no innovation of Wolsey’s. It was inherent in the notion that all the king’s subjects, irrespective of rank or condition, could appeal to him for justice; and from at least the early fifteenth century, when statutory provision had been made for free legal assistance, it had been realized that to make this notion a reality some practical help would have to be provided.
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As recently as 1495 an Act had been passed that entitled poor people, at the direction of the chancellor, not only to free legal advice but also to free legal writs.
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Wolsey may have used his discretionary powers more widely than some of his predecessors, but in showing a concern for the poor he was merely continuing and building upon their work.
On 17 July 1517 Wolsey and the Council considered two cases concerning a certain John Cole.
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In the first they decided that Cole’s cattle had been wrongfully detained, and that not only should they be returned but he should be awarded 20 marks in costs. The second case was more difficult. One Roger Langford maintained that Cole had stolen two of his oxen. This Cole denied, arguing that confusion had arisen from the fact that two out of twenty oxen he had purchased happened to be the same colour as Langford’s. Wolsey and his colleagues felt that there was no way of proving that the two oxen were Langford’s, but that Cole was partly responsible for the dispute because of his refusal to allow Langford to inspect them at the time that Cole had made the purchase. The Council, therefore, came to a decision worthy of Solomon, awarding one ox to Langford and allowing Cole to keep the other, while both were to pay their own costs. There is no suggestion that the Council thought that either case was frivolous or vexatious: these were genuine disputes which one has to presume the local courts had failed to resolve. One cannot fail to be impressed at the time and trouble taken over them, and that this happened in such cases can only have increased the king’s subjects’ confidence in royal justice and thus contributed to good government. But was it cost-effective? Should the Crown’s leading councillors have concerned themselves with such trivial matters? If they were dragged in every time an ox was stolen, then conciliar jurisdiction would grind to a halt. In fact this did not happen. It has been estimated that during Wolsey’s time the average length of litigation in Chancery was twenty months, a considerably shorter time than in Elizabeth’s reign, and for Star Chamber about a year.
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Neither figure suggests that the system was not coping, even if the pressure of business, in Star Chamber at least, was creating problems which Wolsey’s delegation of suits either to the localities or to under-courts at Westminster was not entirely solving. If business continued to increase, a greater formality would have to be introduced. This was to happen in the 1530s, but insofar as flexibility had been one of the chief attractions of conciliar jurisdiction, the changes were not all to the good.