The King's Cardinal: The Rise and Fall of Thomas Wolsey (Pimlico) (40 page)

My suggestion would be that many historians have failed to take this into account, and have taken the rhetoric of early Tudor pronouncements on law and order at its face value.
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What may give some support to this are the very facts that are produced to show that law enforcement was an exceptionally difficult problem. It now seems reasonably well established that only between 10 and 30 per cent of all those brought to trial were convicted and, what is more, that the number of defendants who escaped trial by not putting in an appearance was sometimes as high as 80 per cent, and only rarely fell under 50 per cent.
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The elaborate process by which defendants should have been forced to appear, leading eventually to distraint of goods or outlawing if they failed to respond, had, by the end of the fifteenth century, become very ineffective.
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However, the vast majority of those defendants who did put in an appearance escaped trial by the payment of money, either as a fine, if they admitted their guilt, or for a pardon. As a result, very few people actually had their cases submitted to a jury and even fewer were found guilty. If, for instance, one combines the figures for the Michaelmas terms of 1488 and 1490, it emerges that of the 112 defendants who appeared only six were actually tried, only three were found guilty, and only one failed in the end to receive a pardon – and as a consequence was executed.
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These are remarkable figures, but the conclusion need not be that the system was in total chaos. Indeed, for the figures to have been in one sense so bad – and there is no reason to suppose that those of 1488 and 1499 were untypical – suggests that at the very least the early Tudors had a different perception of what was acceptable, or, perhaps even more importantly, realistic. This is not to say that early Tudor society was more violent than others, or that crime was less easily detectable. Both have been suggested, and some play is frequently made of the fact that there was no police force.
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Yet the presence of a police force today does not prevent a great many cases going undetected, nor indeed has it put an end to violence. Moreover, there is no good reason to believe that our society is any better than early Tudor society at preventing the rich and the powerful from abusing the
legal system. What is different is that the nobility and landed gentry have been forced, over a very long period of time, to share their power with other sections of the community, and there has also occurred a greater specialization of functions, of which the emergence of a police force is but one example. The near monopoly of power exercised by the nobility and landed gentry has thus been broken. Whether that monopoly resulted in an early Tudor version of the Hobbesian nightmare portrayed by some historians is another matter, but all that its breakdown means is that nowadays it is more likely to be the wealthy business man, the large industrial company or a powerful trade union that abuses the system rather than the nobleman or the country squire. Things have changed, but not all that much and not necessarily for the better.

The intention of this detour has been to provide some criteria by which to judge Wolsey’s achievements in this field. If early Tudor society is thought of as violent and disorderly, then what he did will not appear to add up to very much. But if the more optimistic view offered here is taken, then his achievement will appear much more considerable. Only a comparatively few people appeared before him in Star Chamber on what may loosely be called criminal charges, because only comparatively few people deserved to; and those who were guilty ‘got away’ with only a fine or a pardon not because Wolsey lost his nerve or was weak, but because he held the accepted view that these were appropriate punishments. As regards the powerful, an appropriate punishment meant ensuring that they were made fully aware that they were not above the law, but this did not usually mean that they were deprived of their natural role as leaders in their localities, partly because that was difficult to do. An occasion on which it might have been attempted was when the action involved was treasonable, though even in such cases the Crown was well aware that to cut somebody’s head off solved very little because the victim’s family and friends remained to seek their revenge. Thus attainders were often reversed, and kings were usually anxious – but some more anxious than others
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– to restore to favour families that had been in opposition to them. In other words, the realities of the power structure in late medieval and early modern England imposed a certain degree of leniency and compromise upon the Crown’s and Wolsey’s treatment of the powerful, but only in the way that a different power structure demands different compromises today.

But it was not just a question of effective political manipulation. There were also genuine ambiguities that were difficult to reconcile. On the one hand, early Tudor society was one in which the arts of war were very much extolled and the joust and tourney were still the major recreations of the great, and on the other hand it condemned the riot and the brawl. It was a society in which the great man’s retinue was still an essential part of any royal army, yet one which declared that ‘illegal’ retaining was undesirable. It was a society which still considered ‘good lordship’ a cardinal virtue, but saw ‘maintenance’, the use of undue influence to protect one’s servants’ or clients’ legal interests, as an evil. No judgement upon the effectiveness of law enforcement can be made without these ambiguities being kept in mind.

What needs to be done is to concentrate on the Crown’s ability to define and then impose acceptable limits to the exercise and influence of the great, while not expecting these limits to be narrow ones. Thus in Wolsey’s period Sir William Brereton was forced to appear in Star Chamber for aiding and abetting murderers, but he was not as a result deprived of office and influence in Cheshire. In 1516 George Neville Lord Bergavenny was charged, not for the first time, with illegal retaining, but he continued to act as royal councillor and in any war his ‘legal’ retinue was always welcome to the Crown. That at about the same time Thomas Grey marquess of Dorset was charged with the same offence is of particular interest because, unlike Bergavenny, he was personally close to the king – and, it should be said, remained so after his case had been tried. It is perhaps too often assumed that a person’s appearance in Star Chamber in such a case involved his disgrace and downfall, and it is an assumption based upon a misconception about the Crown’s and Wolsey’s intentions. These were well explained by Wolsey in that letter to Henry in the autumn of 1517, already quoted, in which he commented on the affray between the servants of Thomas Pygot and Sir Andrew Windsor:

I trust at the next term to learn them the law of Star Chamber that they shall beware how from thenceforth they shall redress their matter with their hands. They be both learned in the temporal law, and I doubt not good example shall ensue to see them learn the new law of the Star Chamber which, God willing, they shall have indifferently ministered to them according to their deserts
.
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What Wolsey wanted to do was to teach them, and, by their example, others that no one, especially those with responsibility for the administration of justice, should see themselves as being above the law. But learning their lesson was never intended to entail their dismissal from office, for if that were the case there would have been no point in teaching them. And in fact Thomas Pygot retained his important office of king’s serjeant until his death in 1520, while so successful did Andrew Windsor’s career continue to be that in December 1529 he was created a lord. Admittedly, this elevation came after Wolsey’s downfall, but there is nothing to suggest that relations between him and Wolsey were seriously impaired by the events of 1517. Windsor continued to play a most active part in the administration of conciliar justice, and he could only have done this if Wolsey had been confident that he had indeed learnt his lesson.

We noted earlier that there had never been any such thing as that ‘new law of Star Chamber’, and that what Wolsey had in mind was simply to put into effect the laws of the realm as they then existed. In attempting to sum up his efforts at law enforcement, we should perhaps emphasize this new determination. There is little doubt that, following the departure of the elderly, and politically not very influential, Warham, the arrival of someone with Wolsey’s enormous vitality and persuasion marked a new departure, and the fact that he was so close to his monarch must have added further to his authority. Just as this helped to make the conciliar courts even more popular and effective than they had been earlier, so it also helped to ensure that the machinery of justice was well maintained and the law better enforced. Of course, Wolsey did not solve the problems of law and order, because
there are never any solutions to them. This being so, one should not be surprised that during the fifteenth and sixteenth centuries the same difficulties – such as illegal retaining and maintenance – and the same solutions, for instance in the form of barely effective statutes, keep recurring. But this is no more evidence of royal ineffectiveness than the similar failure to cope with human fraility today. These problems do not go away; they can only be kept within limits. One way of doing this is for authority constantly to reiterate that such practices are undesirable, and another is to make examples of those offenders who are caught. Wolsey did both.

That the powerful were brought within the law is evidence of Wolsey’s success in this area of government, and is much to his credit – but not to his alone. At this level, law and order is much more a political than a ‘police’ problem, and there is no way that the high and mighty would have submitted to correction if behind the figure of the lord chancellor had not loomed that of Henry
VIII
. Moreover, always necessary to any successful policy of law enforcement is a high degree of political stability, and for that Henry’s father and his ministers must take some of the credit, though just how much and in what ways is still a matter of considerable controversy.
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It has been argued that in this vital area of law enforcement Henry
VII
made very little sustained effort.
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My own inclination is rather to the opposite view that he did too much, and if that is right one last suggestion about Wolsey’s attitude in this area may be made.

One of the chief agencies of Henry
VII
’s administration, at least by 1500, was the ‘king’s Council learned in the law’. Its most famous members were Richard Empson and Edmund Dudley, those two of his father’s ministers that Henry
VIII
felt it expedient to sacrifice at the beginning of his reign because of their unpopularity. Both had legal training and experience, as had all those known to have been members. Like any Tudor council, its duties were multifarious: for instance, it heard suits between parties in just the same way as the Council in Star Chamber did. However, the main thrust of its activity was in that area that particularly concerned the king’s own rights and the collection of revenue resulting from them. Moreover, unlike the Council in Star Chamber, it did itself initiate the majority of the cases that came before it. It was thus an especially hard-nosed body with a tendency to forget about the rights of the subjects in pursuing, however legitimately, the king’s.
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Wolsey made no attempt to revive the Council Learned, which had ceased to function as a conciliar court at Henry
VII
’s death. Instead, he worked essentially through the normal channels; that is, Chancery and the king’s Council sitting in Star Chamber. And though his chancellorship may have witnessed a significant increase in the latter’s legal business, the body itself was not only well established but, unlike the Council Learned, consisted of anybody of real importance, including nobles, who had been notably absent from the Council Learned. There may not have been anything overtly sinister about their exclusion; it could be that they were not put on it for the good reason that they were not learned in the law. But whatever the explanation, the result was a specialized and unrepresentative
body, that did arouse antagonism.

If, along with his use of bonds and recognizances to attach leading subjects to the Crown under financial penalty, it is permissible to see the Council Learned as in some way characteristic of Henry
VII
’s approach to government, and if one then compares this approach with what Henry
VIII
and Wolsey were doing, the picture that emerges might also be described as a gradual ‘return to normalcy’. This is not to say that Henry
VIII
and Wolsey were more complacent, but they were more relaxed and confident; and what was absent was that sense of strain, almost paranoia, that had been discernible during the previous reign. There were going to be difficulties for them. There was a serious riot in London in May 1517. There was the suspicion of an aristocratic plot, probably in 1518. There was considerable opposition to the ‘Amicable Grant’ in 1525. There was widespread discontent following the bad harvest of 1527. Arguably, indeed, by the end of the 1520s the rather heady confidence of the earlier period of Wolsey’s ascendancy was dwindling. Nevertheless, the overall impression is of stability and of a government which felt itself to be very much in control of its own affairs. As a result, there was less of an obsession with furthering the Crown’s own interests, and less of a need ‘to keep all Englishmen obedient through fear’. Instead, the emphasis could now be placed on ‘the indifferent ministration of Justice to all persons high as well as low’. Moreover, it was a justice that was ministered at the highest level by a chancellor who did not doubt that ‘the king ought of his royal dignity and prerogative to mitigate the rigour of the law, where conscience hath the most force.’
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