The King's Cardinal: The Rise and Fall of Thomas Wolsey (Pimlico) (34 page)

In the common law courts the incidence of non-appearance was obviously a major stumbling block, so much so that the suspicion must be that many disputes were settled out of court; otherwise why should a plaintiff, knowing as well as the modern historian the improbability of any conclusion to the case, spend a considerable amount of time and money in even beginning to sue? And if this is so, the initial writ was merely a way of bringing sufficient pressure to persuade the defendant to begin negotiations – a tactic not unknown today! Nevertheless, it would appear that the conciliar courts were better designed to settle disputes, even if in the event they frequently did not. Flexibility, and not just of the bills of complaint, was the keynote of most conciliar procedures at this time. And this reflected an essential difference in approach between the two jurisdictions. The common law’s main concern was not to find remedies to disputes, but rather to tackle the much more specific task of deciding, by jury, whether or not the defendant had indeed done what the plaintiff had accused him of doing. The fact, for instance, that the defendant had clearly wronged the plaintiff but not precisely in the manner alleged, was not the common law courts’ concern. It was not their task to bring the parties together, or to act as arbitrators; and, moreover, their reliance on the jury not only to pass judgment on the facts but to some extent still actually to obtain them, by their answers to questions concerning the case, meant that the common law court lacked the machinery to get to the bottom of a complicated case.

It was very different with conciliar courts. There the plaintiff’s complaint and the defendant’s answers were written down at great length and then given in open court, with any additional points being made by counsel. Lengthy depositions were taken from witnesses, who themselves were submitted to detailed questioning. And when all the evidence had been presented, the chancellor was still left with a number of options before proceeding to a determination. He could refer the matter to judges, who had power to hear and consider all the evidence, for their expert opinion. On the basis of their report he could then proceed to a decision. On the other hand, if he felt that a less technical approach was required, he could bind the parties to accept arbitration. Judges or other legal experts would always be included as arbitrators, but important ‘non-experts’ would also be chosen. Often the latter would come from the locality in which the disputes had arisen, and since the commission for arbitration would often sit in that locality, it was much easier to arrive at all the facts. Another option was to attempt a compromise. This was the most flexible approach of all, but it had this disadvantage that unlike an arbitration award it was not enforceable at common law. It was, however, better than nothing, and was presumably only attempted where other approaches were deemed unlikely to succeed. It should be said that these options were more likely to be used in Star Chamber than in Chancery, but the essential point applies to both courts. Both were actively looking for remedies, and to that end were making use of men of the greatest expertise and authority, while the common law court’s task was the much more passive and circumscribed one of passing judgment on the facts presented. It may be that the mere fact of going to law would encourage people to settle out of court, and that therefore in practice the differences between the two approaches were not as great as they now seem to the historian. It should also be stressed that the conciliar courts do not appear to have been much more successful at arriving at a formal determination to a case than their so-called rivals. The danger is to exaggerate the advantages of the conciliar courts, but in view of their growing popularity we have to conclude that they offered some real benefits.

This popularity did not originate with Wolsey. However unreliable the statistics, they all point to the trends already noticed: a decline in the number of cases before the common law courts, and an increase in the number before the conciliar courts. Both trends had begun by 1450 and were maintained in the sixty-five years before Wolsey’s appointment. This being so, the personal contribution of any particular chancellor can only have been small. Since it was the litigants themselves who chose to bring their suits before the conciliar courts, the most dramatic thing that any chancellor could have done would have been deliberately to limit access to them. This he could have done in a number of ways: for instance, by accepting the common law view that enfeoffment to uses was an invalid transaction, or that non-written contracts and obligations should have no force at law. Or he might have refused to accept the fictitious reasons alleged by many litigants for bringing their cases before the conciliar courts. And that Wolsey recognized them to be fictitious is suggested by his decision in 1527 to allow defendants who denied any riot in their answers to be represented by attorneys and allowed to go home;
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if they had behaved even halfway as badly as was usually
alleged, it is unlikely that they would have been allowed this freedom. Wolsey, in fact, did nothing to make life harder for litigants to apply to his court. Indeed, he has been accused of going out of his way to encourage people to bring their suits before him from a mixture of discreditable motives including an overwhelming confidence in his own ability to settle any dispute and his personal antipathy to the common law deriving from his own ignorance of it. More generally, it is thought that he was too lenient and too flexible in his approach to the law, with the result that too many cases appeared before him that were frivolous or vexatious, or did not properly belong to the conciliar court. This, allegedly, had two consequences: it clogged up the conciliar machinery so that it ceased to be effective, and it posed a serious threat to the common law courts, whether this was Wolsey’s intention or not.
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All these matters must now be looked at.

The charge that Wolsey knew no law cannot be true, and is anyway largely beside the point. What is true is that he was not trained as a common lawyer, but this was equally true of his predecessors who, churchmen like Wolsey, had not been eligible for such training. On the other hand, unlike Wolsey, many chancellors, such as his two immediate predecessors, Warham and Morton, had been trained in canon and civil law. But not so Thomas Rotherham, chancellor from 1474 to 1483, who apparently reformed the office with some distinction.
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And though a training in canon and civil law may have been of some help, the fact was that the conciliar courts based their decisions on common law. But the point is that the one thing that no chancellor lacked was expert legal advice. In Chancery he was supported by a trained staff, including the master of the rolls, eleven masters in chancery and the so-called six clerks.
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In Star Chamber his support was even more impressive, though not so formally organized. Most of the judges and many other leading common lawyers were fellow royal councillors, and it was to such people that much of the essential legal work of the Council was delegated.
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Moreover, the fact that all the major courts were situated either in Westminster Hall itself or in adjoining rooms such as Star Chamber, made it very easy for the lord chancellor to consult with the judges at work there – which, according to Cavendish, Wolsey was accustomed to do.
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Just occasionally he would ask the advice of the judicial bench as a whole, as he did in 1526 when he asked whether a peacock should be considered a game bird and therefore wild, or a domesticated fowl – an apparently trivial matter but one of some legal consequence, because only a domesticated animal could be taken feloniously. And domesticated the judges decided a peacock was.
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If one looks at Wolsey’s personal qualifications for the chancellorship, they turn out to be more promising than is usually implied. As bursar of Magdalen College, and in the posts that followed, he would have been much involved in legal matters. The formal designation of chaplain to Henry
VII
conceals the fact that much of his work at court would have been administrative and legal. And once he became
almoner to Henry
VIII
, which he had by at least November 1509, he would have been directly involved in handling those bills of complaint that were still being presented to the king in person. The following year he was a royal councillor sitting in Star Chamber and directly concerned with its legal proceedings. Thus, when five years later he was appointed lord chancellor, he may not have equalled some of his predecessors in knowledge and experience but he surely possessed enough of each to perform the office adequately, and, given his natural abilities and capacity for hard work, to perform it with distinction. Be that as it may, any responsibility that Wolsey, or indeed any other lord chancellor, may bear for the popularity of the conciliar courts can only have been marginal, for, insofar as it can be explained at all, this was due to intrinsic differences in approach between them and the common law courts.

Nevertheless, it is precisely Wolsey’s personal contribution that inspired the author of the most important book on his activity in Star Chamber to call it
The Cardinal’s Court
. It could only be on the basis of a study of Star Chamber that such a claim could have been made, because as we have seen the figures for Chancery do not suggest any great increase in business under Wolsey. For Star Chamber just such an increase has been discovered for, as we noted earlier, the average number of cases handled there rose from 12.5 cases a year under Henry
VII
to 120 under Wolsey. The difficulty is to decide how far we can trust these figures – not from the point of view of any particular historian’s counting, but of what he has had to count with. Not only have the Council registers for this period disappeared, leaving us only edited extracts prepared for the Elizabethan lord chancellor, Sir Thomas Egerton, but what has survived – a mass of papers associated with particular cases – is extremely difficult to use because so much of it is undated.
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And without dates the statistics can offer only a crude impression. It has been possible to arrive at a yearly average for the whole of Henry
VII
’s reign, but there are no figures for any particular year. This means that we will never be able to tell precisely what impact Wolsey made, for rather than any dramatic jump when he took over, the rate of increase might have been steadily building up under his predecessor. Furthermore, the figure of 12.5 a year must wildly underestimate the amount of business for the earlier period, for not only does the identification, during the last twenty-five years, of about a hundred more cases for Henry VII’s reign suggest it, but even more so does the comment made in 1494, that the then chancellor had been so busy that he had ‘kept not the Star Chamber this eight days’.
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If there had been only 12.5 cases a year, this could hardly have deserved a mention.

But if the figures must be treated with the utmost caution, there is other evidence to suggest that the number of cases before the Council in Star Chamber during Wolsey’s period as lord chancellor was growing. Most convincing are the indications that legal business was occupying too much of the Council’s time, and the various attempts by Wolsey to ease the workload.
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The decision taken in June 1517 to sit in Star Chamber on Mondays, Tuesdays, Thursdays and Saturdays may provide the first evidence of increasing business, especially when taken in
conjunction with a further decision in October of that year that the Council should also sit on Wednesdays and Fridays, which under the previous arrangement had been reserved for Chancery sittings. Also in 1517, Wolsey set up a temporary tribunal or ‘under-court’ to sit at Westminster in order to hear poor men’s causes. In the following year this temporary arrangement was renewed, and soon became permanent.

In late 1525 and early 1526 Wolsey was busy with various schemes for reforming the royal household, central amongst which was one to separate off the legal work of the Council. The task was to be undertaken by twenty-eight named royal councillors, not of the first rank, together with ‘the residue of the judges’, ‘the remnant of the barons of the exchequer’, the attorney-general, and serjeants-at-law. Some such move was inevitable once the number of cases before the Council rose beyond a certain point: a body whose principal duty was to advise the king on all matters of policy and administration could not allow its time to be dominated by essentially legal matters. Sometime during the 1530s Cromwell was to take the inevitable step of implementing Wolsey’s scheme of ten years earlier. A privy council was set up to provide advice on policy and to involve itself in administrative decisions, while the legal work was to continue to be carried out in Star Chamber in what was from this date a formal court separate from the Council, though sharing its personnel.
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In 1526 Wolsey drew back from implementing his own scheme, perhaps because, unlike Cromwell, he was himself lord chancellor and it would not so obviously relieve him from the pressure of work. That some relief was needed is suggested by his decision in June 1529 to delegate his work in Chancery to a commission,
⁴⁸
though no doubt the divorce proceedings had a good deal to do with it. Instead of a separation of functions Wolsey hit upon a policy of delegating suits to the localities in which they originated. In May 1526 it was decided to set up commissioners in every shire to deal with these suits. In fact this does not seem to have happened, but cases were sent to the Council in the Marches of Wales, which in the previous year had been reorganized under the titular leadership of the Princess Mary, and to the duke of Richmond’s Council in the North established in that same year. There were other reasons for such a policy. Since one of the problems for litigants was the expense not only of their own journeys to London but also of their witnesses’, the hearing of their case in their own locality should have resulted in cheaper and quicker justice. Nevertheless, the projected reforms of 1525 and 1526, plus the decision in February 1527 to have all ‘minute cases’ (presumably those of relatively little importance) remitted to the assize judges, suggest that this policy of delegating was largely motivated by the desire to limit the amount of time that the Council needed to set aside for legal business. It has been argued that the policy was not a success.
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This may be true, although the lack of any systematic records for Mary’s and Richmond’s Councils makes any assessment almost impossible. Some
cases were returned to Star Chamber, the litigants apparently being unwilling to be fobbed off with what they took to be second best. But if this was the case, it only strengthens the view that it was they who wanted the Council in Star Chamber, not the Council, and more specifically Wolsey, who wanted them.