The King's Cardinal: The Rise and Fall of Thomas Wolsey (Pimlico) (37 page)

Something that might have helped to relieve the pressure on the conciliar courts would have been a greater confidence amongst litigants in the workings of the common law courts, and arguably this was a matter Wolsey should have shown more concern for. Indeed a frequent criticism has been that he deliberately set out to sabotage the common law.
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Recent research has gone a long way to answer this criticism.
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It has been shown that leading common lawyers were closely involved in the workings of the conciliar court. This was especially true of Star Chamber, much of whose judicial work was carried out by the judges prominent amongst whom was the chief justice of King’s Bench from 1495 to 1525, Sir John Fineux, whose great contribution to the reform of the common law is only now beginning to be appreciated.
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And it was the common lawyers who were advising their clients to take their cases to Chancery and Star Chamber, and appearing there on their behalf. At the same time it is clear that Wolsey was quite prepared to return cases to the common law courts, especially in what one might call criminal matters. The people involved, such as the noblemen had up for illegal retaining in 1516, or Sir John Savage who in the same year was implicated in the murder of a Gloucestershire justice of the peace, might initially appear in Star Chamber, but their cases were actually tried in King’s Bench. One of the things that Wolsey was to be accused of in 1529 was the increase in injunctions,
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whereby common law courts were prevented from taking any action while the chancellor was considering the case, but it has proved impossible to find evidence for this. Ironically, it was the common lawyer, More, who as chancellor came into conflict with the judges over his use of injunctions – though in his view it was the judges who were at fault by failing to use their own discretion to mitigate the rigours of the common law.
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At a more personal level, there is no evidence at all of a concerted hostility to Wolsey amongst leading common lawyers. True, he did show some ‘dexterity’ in persuading Lewis Pollard, a justice of Common Pleas, of the legality of the 1522 loan,
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and he did clash with Sir Anthony Fitzherbert, another justice of Common Pleas, over the question of probate jurisdiction in York, though whether he or Fitzherbert was in the right it is impossible to say.
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But there is certainly no evidence that Wolsey ever conducted any vendetta against Fitzherbert, whom he had personally installed as a justice of Common Pleas, calling upon him ‘to minister justice indifferently to rich and poor and not to have a peakish heart but fortitude in all his judgments’.
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Fitzherbert seems to have been one of the more active justices of Wolsey’s time, being especially involved in Northern affairs, and in 1524 was a
member of an important commission to Ireland. It is true that he never became a chief justice, but any opportunities for doing so occurred after Wolsey’s fall anyway.
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All in all, Wolsey’s alleged ‘rebuke’ to Fitzherbert appears to have been an isolated incident, and should not be used to support any general theory of strong antagonism between Wolsey and the common lawyers. Furthermore, if the argument presented here, that the main feature of Wolsey’s chancellorship was continuity rather than innovation, is correct, then any sustained attack by him on the working of the common law is ruled out. For, as St German pointed out in his many works on conciliar jurisdiction written at this time, the two systems of law – the chancellor’s and the common lawyer’s – had co-existed for many years and necessarily complemented one another.
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Nevertheless it would be misleading to suggest that there was no worry expressed in Wolsey’s time at the increasing role of the chancellor’s ‘conscience’ in judicial matters and the possible threat that this posed to the common law. The mere fact that St German felt it necessary to defend the chancellor is evidence to the contrary, even if legal historians have recently tended to argue that any anxieties on this score were ill-founded.
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It now seems clear that there was never any separate corpus of conciliar law deriving from Roman and civil law, but that conciliar judgments were based upon the common law, if approaching it from a rather different perspective from that of the common law courts. The chancellor’s task was to complement the common law by providing particular remedies in cases where the common law’s intentions were defeated, either by the particularities of the case in question or by the refusal of the common law courts to take cognizance of new areas of litigation.
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A lot would depend on how many new areas there were and how frequently particular remedies, or, looking at it from another standpoint, worrying exceptions to the existing law were made. Too many new areas or too many exceptions would undermine the common law even if there was no positive determination by any chancellor to do so – and one person at least, the anonymous author of
A Replication of a Sergeant at the Laws of England
, writing in answer to St German’s first dialogue of his
Doctor and Student
, thought that this was what was happening in the 1520s. The consequence, according to the ‘sergeant’, was legal chaos, for ‘if the subject of any realm shall be compelled to leave the law of the realm, and to be ordered by the discretion of one man, what thing may be more unknown or more uncertain?’
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But one ‘replication’ does not make a summer, and there is no reason to suppose that this attack on the chancellor’s ‘conscience’ was typical of the views of the legal profession;
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indeed, the fact that so many of its members were deeply involved in the workings of the conciliar courts suggests quite the opposite. However, even St German was worried that the notion of ‘conscience’, if too widely interpreted, might be used to subvert the common law. A
writ of subpoena, used by the conciliar courts to summon people before them, should not, he argued, lie against statute, or against the maxims of the common law. He was also strongly against Chancery attempting to review decisions already taken in the common law courts, something that Wolsey would be accused of doing in the articles laid against him in 1529.
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There is no real evidence to suggest that he did, but when in that dispute between the earl of Derby and his tenants already referred to he defended the latter’s position while admitting that the earl ‘by the rigour of the common law’ was technically in the right, he was coming very near to doing so.
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Moreover, along with the theoretical worries expressed by both the ‘sergeant’ and St German, real disputes were taking place between the two jurisdictions – such as More’s with the judges over his use of injunctions and the even more serious one of 1482 in which Chief Justice Huse in consultation with his fellow justices took the view that an injunction against a plaintiff in a common law suit was not enforceable.
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Furthermore, the very development of the notion of ‘conscience’ in the second half of the fifteenth century is evidence of an awareness of the potential for conflict and of the need to develop a defence against attack by the common lawyers.

All in all, there seems little point in denying that there was a problem, but it was one that probably had little to do with the intentions of any particular lord chancellor and a good deal to do with the preferences of litigants and their legal advisers. No one was forcing them to make use of Chancery and Star Chamber, except perhaps the common law courts. If these refused to deal with matters that litigants thought important, or to alter their procedures, then they had only themselves to blame if people were increasingly ignoring them.

In fact, rather more was being done to reform the common law during the early sixteenth century than has sometimes been allowed for, especially in King’s Bench. Important procedural changes involving the use of the fictitious bill of Middlesex and the writ of
latitat
were being developed, and by the action of assumpsit the common law was moving into areas such as defamation and the enforcement of promises of all kinds, including failure to pay debts, which previously it had been reluctant to consider. Probably the real breakthrough did not occur until the early 1540s, by which time the cost of these new procedures had fallen considerably, permitting business in King’s Bench to begin to recover.
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And it was not until the second half of the century that the common law courts were willing to concern themselves with another growth area, copyhold tenure.
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Of course, given the conservatism of the legal profession at any period, it takes time for new procedures to be recognized. Going to law is risky enough without attempting to introduce innovations, which may be successfully challenged by one’s opponents. People require some degree of certainty concerning the workings of the law before they can be expected to make use of it, and it is probable that more injustice would result from too much change than actually results from too little. Historians have, perhaps, a tendency to overlook this, and are consequently overcritical of the time
it takes for changes in the law to take place. Chief Justice Fineux, for example, was clearly a great reforming and interventionist judge, but if the profession would not follow him – and many innovations, such as the bill of Middlesex, had been available for many years before they were widely used – there was little he, or the lord chancellor, could do. Precisely because this is a question of usage, reform is unlikely to be achieved by any fiat from on high. And when governments have tried to hurry lawyers along, the lawyers have usually been quite successful in resisting.
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Given Wolsey’s responsibility for the administration of justice and his enthusiasm for tackling any problem that came his way it is a little surprising that only one reference to his concern for law reform has survived; and since it appears in a letter to Wolsey from one of the least endearing of Tudor personalities, the future lord chancellor and betrayer of Thomas More, Richard Rich, it is difficult to attach much weight to it.
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What can be said is that Wolsey made no effort to resist any of the changes that were taking place; indeed, he may even have been sympathetic, which is more than can be said for many of the common lawyers. But whatever his personal views, he had no intention of battling with the common lawyers in order to bring them about. Late in 1522, or early 1523, considerable worries were expressed about judgments being made by John Stokesley, deputed to be sole judge in certain conciliar cases. The precise nature of these worries is not clear, but they appear to have had to do with his giving judgments in property cases. It may be that some common lawyers saw this as a raid on their own preserve – though, as we have seen, many property cases were appearing in the conciliar courts, and with their connivance. They may also have been worried that he was departing too far from common law precedents. But whatever the nature of the anxiety, Wolsey responded by setting up a high powered commission of inquiry, consisting entirely of trained common lawyers and including the chief baron of the Exchequer and two justices of Common Pleas.
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Their task was to ‘examine such cases as Mr Stokesley hath given judgement in the White Hall, and to make report whether they be allowable or not’. Their decision appears to have been that they were not, for shortly afterwards Stokesley was removed from the Council.
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It was a minor victory for the common law, and one that was made possible by Wolsey’s intervention – further proof that he was never its inveterate enemy.

There can be no doubt that Wolsey was an extremely active lord chancellor, who used that office’s existing machinery to the full. In the process he may have further increased the popularity of Chancery and Star Chamber, and in doing so may also have focused attention on the differences in procedure and attitude between the conciliar and common law courts, raising some worries that the former’s might swamp the latter’s. But far from this being deliberate, he took the view – and it was almost certainly the majority view – that the two systems were necessary and
complementary. After his fall in October 1529 the king was to ask him, apparently on the advice of his judges and learned counsel, to surrender York Place, the London residence of the archbishops of York. Wolsey argued that no individual archbishop had the right to surrender something that belonged to the office rather than to the man. In doing so, he took the opportunity to warn Henry’s councillors

to put no more [into Henry’s head] than the law may stand with good conscience, for when you tell him ‘this is the law’ it were well done you should tell him also that ‘although this be the law, yet this is conscience. For law without conscience is not good to be given unto a king in counsel for a lawful right, but always to have a respect to conscience before the rigour of the common law … Therefore, in his royal place of equal justice [the king] hath constituted a chancellor, an officer to execute justice with clemency where conscience is oppressed by the rigour of the law. And therefore the court of Chancery hath been heretofore commonly called the Court of Conscience because it had jurisdiction to command the high ministers of the common law to spare execution and judgement where conscience hath most effect
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The circumstances may suggest special pleading on Wolsey’s part, but his words carry conviction. They also provide a succinct account of the history and role of the lord chancellor that could hardly be bettered. It was a role that Wolsey performed with distinction.