The King's Cardinal: The Rise and Fall of Thomas Wolsey (Pimlico) (33 page)

In trying to arrive at other explanations, it is necessary to establish how the kind of jurisdiction that has just been outlined had first come to be associated with the office of lord chancellor. Originally the chancellor – he seems only to have assumed the style of lord chancellor in the sixteenth century – had performed the function of royal secretary, a role that he quickly grew out of but without acquiring any very specific new functions. What special function he had remained, however, essentially administrative rather than judicial, and by the end of the thirteenth century he can perhaps best be described as the chief executive officer of the Crown, especially associated with that increasingly important – though almost impossible to define – institution, the king’s Council. One function of this body was to respond to the many petitions and complaints that the king’s subjects addressed to him, and as the number of these increased it became no longer convenient to deal with them on an ad hoc basis. Some more regular machinery was required, and the chancellor was the obvious person to set this up. Not only did he already possess the necessary prestige, but as a consequence of his original secretarial function he was still responsible for preparing, and authenticating with the great seal of England, the written commands of the king. He was, thus, in a good position to implement the royal response to petitioners’ requests for help. When precisely the chancellor began to act in a judicial capacity is not known, and there was probably no precise date, but by the early fourteenth century a court of Chancery was in existence, and by the end of that century it was well established.
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However, the emergence of this court did not prevent the king’s subjects from still wishing to appeal directly to him, nor was it intended to, for the notion that they should be able to was so intimately bound up with the belief in kingship itself that to prevent them would have been unthinkable, as well as politically unwise. As one plaintiff put it in 1499: ‘All and every of the king’s true subjects ought of right to be contented to sue and be sued before the king’s highness, which is the head of justice, and in his absence before the lords of his most honourable council.’
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Moreover, Chancery; like any other institution, quickly developed a life of its own – its own procedures, its own criteria for handling problems, and its own vested interests. In the process it lost a great deal of its initial flexibility. Thus as Chancery developed there took place what was essentially a re-run of what had occurred nearly two hundred years earlier at its emergence. The Council found that it was having to spend a considerable amount of time on legal business, and in order to cope it was having to develop its own procedures. One of these was that the lord chancellor now presided over the judicial business of the Council, and, not surprisingly therefore, many of its procedures were borrowed from Chancery.
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The Council, thus, ceased to be a body to which the subject appealed in exceptional circumstances, but instead became, though admittedly as only part of its function, a court to which in the normal course of events the legal profession
could recommend its clients to make recourse. This much had already taken place before Wolsey became lord chancellor.
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And although no essential changes were made during his period in office – that is, no decisive break was made between the Council’s judicial and other activities – the increase in judicial business eventually made such a formal separation virtually inevitable, if it was to continue to perform its other even more vital function of advising the king about every conceivable aspect of royal government. It is not, therefore, surprising that the break did occur under Cromwell’s supervision, during the 1530s.

One obvious reason why administrative and judicial machinery ceases to function effectively is that the problems it was designed to deal with change. In theory it is possible for the machinery to adapt, but in practice it is often easier for new machinery to be set up. And new problems do appear to have contributed to the emergence of Chancery. Enfeoffment to uses, copyhold tenure and unwritten contractual arrangements were all matters that, during the formative years of the common law, had either not existed or else had not been considered sufficiently important for the Crown to take an interest in them. By the fifteenth century this was no longer the case, but the difficulty was that the common law courts proved to be unwilling to take account of them. The only remedy was a petition to the king and his Council, but more especially to that new extension of the king’s Council, the court of Chancery.

It is not, however, nearly so obvious that any new concerns of litigants and their lawyers contributed to the emergence of Star Chamber. What seems to have happened is that the notion that any subject could petition the king was exploited by the common lawyers to enable their clients to approach what they took to be just another court – that is, Star Chamber. The fact that its procedures were more effective than the common law courts was by way of being a bonus. That this was so has been obscured until recently by the failure to recognize the great extent to which both Star Chamber and Chancery were dominated by disputes to do with property. In theory such cases should have been brought before the common law courts, but in order to get round this the lawyers, with at least the tacit consent of successive chancellors, had developed legal fictions.
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In Star Chamber the fiction would be that the plaintiff’s case had been prejudiced by the use of violence, usually in the form of riot. Since riot was defined as the assembly of three or more persons for an unlawful purpose, it was not difficult to allege that one had taken place. Moreover, to bring a property dispute even before the common law courts it had been usual to allege some degree of violence, if only forcible entry or trespass.
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In Chancery, the fiction was that the plaintiffs case had been prejudiced in the common law courts by the defendant’s unfair retention of vital documents. In both cases a fiction was used because people preferred to have their cases tried before the conciliar courts rather than the common law courts.

The question of whether litigants and their legal advisers were really making choices is important, because if they were, then various judgments commonly made
about Wolsey’s attitude to the law – even the fairly neutral one that he deliberately set out to popularize the conciliar courts – have to be rethought. Of course, insofar as there were some matters that the common law courts refused to consider, one cannot talk about choice, but the number of such cases was small. For instance, only 6 per cent of all cases coming before Chancery during Wolsey’s time turned on the issue of enfoeffment to uses – and this was precisely the same percentage as from 1474-83.
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As for cases to do with copyhold tenure, their number has been estimated as low as forty for the whole of Wolsey’s period in office.
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But more than any statistics, the legal fictions themselves suggest that a choice was being exercised, for if people had not been anxious to bring cases before the conciliar courts rather than the common law courts, there would have been no need to invent them.

Another approach to this question of choice is to look at what was happening in the common law courts. Here the picture that emerges seems to be one of falling popularity, and this over a considerable period. Using the profits of sealing fees as a measure of the amount of business coming before its two most important courts, King’s Bench and Common Pleas, it has been shown that business began to decline in the 1430s, reaching a low point in the 1520s. In the 1530s there was a recovery of a sort, to be sustained in the next decade, but it was not until the 1550s that a really substantial increase took place, bringing the figures to above those for the first two decades of the previous century.
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The fact that the common law courts had for so long been losing business does not in itself prove that a choice was being made, even when coupled with the increase of business in the conciliar courts. Neither do the figures correlate quite as well as at first glance they appear to. Even at their lowest ebb the common law courts dealt with many more cases than the conciliar courts, and the fall in numbers in the former in no way corresponded to the increase in the latter. Moreover, when business in the common law courts did pick up, there was no falling off in business in the conciliar courts. The relationship between the varying fortunes of the two systems of law is thus not very clear-cut, but that there was some connection seems sufficiently likely to merit a closer examination of the state of the common law itself.

The defects of the common law at this time have been much, arguably too much, emphasized. There has never been a period when its workings have not been heavily criticized, and the criticism has always followed a similar pattern: over-complexity leading to absurd anomalies, long delays, and perhaps above all expense – so great that only the wealthy can afford to make use of it. A problem that is less prevalent now was the enormous difficulty experienced in getting people to appear in court. During the Easter term 1470 eighty defendants to actions of trespass brought by private individuals, that is in civil cases before King’s Bench, put in an appearance. Three hundred and fifty did not. In the Michaelmas term 1488 before that same court, 838 civil cases had to be delayed, 685 of them because of the non-appearance of the defendant.
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And not only was non-appearance just as prevalent in civil suits brought before other common law courts, but also in criminal cases.
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That it existed on such a scale suggests some serious defects in the machinery of law enforcement, but for the moment it is the point of view of the plaintiff in a civil case that will be our concern. A study of the enrolment of civil suits in King’s Bench reveals that many plaintiffs were so disheartened that they abandoned their cases at an early stage, precisely because of this failure of the defendant to turn up.
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Non-appearance was not such a problem in the conciliar courts even though the theoretical penalties under the common law, resulting in the distraint of goods or outlawry, were if anything more severe.
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One reason for this may have been that in the conciliar courts the initiative in serving the processes by which a defendant was compelled to appear, begun either by a summons under the privy seal or a subpoena, lay not with the disinterested sheriff but with the plaintiff who would be much more determined to ensure the appearance of the defendant.
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A more important factor may have been the defendant’s realization that behind the plaintiff loomed the figure of the lord chancellor, and in the case of Star Chamber the lords of the king’s Council as well. By the early sixteenth century the common law processes had become all too familiar, and the ways and means of escaping them, or of at least minimizing their consequences, had been brought to a fine art. To borrow a metaphor used by the historian of King’s Bench, the result was that the penalties for non-appearance were viewed in rather the same way as many people today view library fines – irksome but not sufficiently so to make one return the book.
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This was not the view taken, as yet, of the conciliar processes. Defendants were still too reluctant to risk the wrath of the lord chancellor.

The greater effectiveness of the conciliar processes must have encouraged plaintiffs and their legal advisers to make use of these courts. They would also have had to take into account which courts provided them with the best chance of winning their case, and, having won it, of having the decision enforced. Again, it looks as if on both counts the balance of advantages lay with the conciliar courts. The common law’s insistence upon correct pleading meant that many cases were lost on a technicality. The wrong date, the wrong name, the wrong place – any of these could lead to the defendant suing out a writ of error before King’s Bench, thereby effectively putting an end to the case against him; and as the errors could be either in the indictment itself or in any of the writs of process required to secure his appearance, there were plenty of opportunities for them to creep in. Of course, there is much to be said for the law being on the side of the defendant,
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though perhaps rather less so in civil than in criminal cases. And whether or not the bias served the interests of justice, it did not serve the interests of the plaintiff. The conciliar courts, on the other hand, did not offer such opportunities for the defendant to escape. The great virtue of the English bill used in these courts was its
flexibility and greater concern with matter than with form. The plaintiff was allowed to state his complaint with a good deal of freedom, and the defendant was forced to answer it in a reasonably direct way. Some formulae were involved, and there were those legal fictions already mentioned, but dealing with these was simplicity itself compared with the technicalities of pleading before the common law courts.
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As regards the effectiveness of any decisions, the balance was not so obviously in favour of the conciliar courts, and at least in one respect not at all. For in theory, only the common law courts could pronounce a final judgment in matters of land ownership. All that the conciliar court could do was to pronounce on the merits of the particular case brought before it: on the evidence presented, X had a better case than Y and therefore ‘in conscience’ should enjoy possession of the land in dispute. What it could not say was that X owned the land.
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Many conciliar decrees explicitly reflected their provisional nature: X should enjoy the land until such time as Y could produce further evidence, or even until Y had proved his case in the common law courts.
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But even if the decree took a more positive line, sometimes going so far as to forbid further litigation, in theory its provisional nature remained. And one suspects that practice was of rather greater concern to the plaintiff than theory: he wanted protection or repossession now rather than for the future, and against the particular person who was threatening his enjoyment of the land. The difficulty for the historian is to decide which of the two kinds of courts did best provide this kind of protection, if only because neither seems to have been very good at it.