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

by Gwyn, Peter

  191 The fact that the French were opposed to Maximilian and Charles becoming principal signatories of the universal peace treaty – and perhaps to the treaty itself – is instructive; see LP, ii, app.52.

  192 For these figures I have relied on Wolfe, Crown Lands, pp.76 ff; Schofield, ‘Direct Lay Taxation’, table 40, pp.415-6; M.J. Kelly, ‘Canterbury jurisdiction’, app.ii, pp.292 ff. Some of the adding up, however, is mine!

  193 See pp.355 ff. below.

  194 Fox, Letters, p.112 (LP, ii, 4540).

  195LP, ii, 4170.

  196LP, ii, 4034.

  197LP, ii, 4055.

  198LP, ii, 4070, 4073, 4179.

  199 Macfarlane, pp.319-22. For Henry’s refusal in 1513 to allow Bainbridge to enter the country as legate see LP, i, 2512, 2517, 2611.

  200 Pastor, vii, p.244.

  201 Campeggio wrote from Lapalisse, en route from Lyons to Paris, on 28 May (LP, ii, 4194) and was in Calais by at least 21 June (LP, ii, 4243).

  202 A.F. Pollard, pp.115-16 is muddled; he realized that Castellessi’s deprivation was also involved but gives Wolsey’s legatine appointment as the first reason for Campeggio’s delay; Scarisbrick in Henry VIII, pp.69-70 has it as the only reason. He also places Campeggio’s stay in Boulogne.

  203LP, ii, 4271, 4284; also Chambers, ‘English representation’, pp.439-45; Pastor, vii, pp.170 ff.

  204LP, ii, 4179 – Gigli to Wolsey 20 May, and thus after Wolsey’s appointment as legate a latere.

  205LP, ii, 4289, 4350.

  206LP, ii, 4333, 4348.

  CHAPTER FOUR

  ‘WHERE CONSCIENCE HATH THE MOST FORCE’: WOLSEY AND THE LAW

  IN SOME RESPECTS IT IS POSSIBLE TO ATTACH TOO MUCH SIGNIFICANCE TO Wolsey’s appointment as lord chancellor in December 1515.1 In describing his rise to power, considerable emphasis has been placed on his growing relationship with the king, rather than on his holding of any particular office. Before 1515 he had held no important political office, and yet this had not prevented him from playing a significant role in royal government. Moreover, the office of lord chancellor, for all its prestige, did not automatically ensure that the incumbent became the king’s most influential minister. Neither Wolsey’s immediate predecessor, William Warham, nor his two successors, Thomas More and Thomas Audley, achieved that eminence, whereas Thomas Cromwell, who did, never became lord chancellor. It is not quite so obvious, therefore, as is usually assumed that it was an office that a power-hungry Wolsey was bound to seek. Power did accrue, including some patronage and a considerable income,2 but these came to anyone in royal favour. And there was one considerable drawback to the office: it involved a lot of work.

  By the early sixteenth century this work was largely judicial, and in particular required the holder of the office to preside over both his own court of Chancery and the judicial activity of the king’s Council sitting in Star Chamber.3 It has been estimated that during the fourteen years that Wolsey was lord chancellor over nine thousand cases were brought before these two bodies.4 They came in different shapes and sizes, many of them getting no further than an initial bill of complaint and therefore not requiring much attention from Wolsey. In any case he often delegated the essential work. Nevertheless the numbers are impressive, particularly since during his tenure of office the number of cases dealt with annually by the lord chancellor significantly increased. During the four legal terms, that is, for about six months of each year, Wolsey would spend the best part of every morning at Westminster Hall

  and there commune sometimes with the judges and sometimes with other persons. And that done he would repair into the Chancery, and sitting there until eleven of the clock, hearing suitors and determining of divers matters. And from thence he would divers times go into the Star Chamber, as occasion did serve, where he spared neither high nor low, but judged every estate according to their merits and deserts.5

  Perhaps what is most surprising about the time and effort that Wolsey put in, is that although the ‘high’ did appear before him, most of his cases concerned the purely private interests of individuals of no particular political significance. Why, then, did he bother? It was not as if he was short of things to occupy himself with, including many more glamorous or more important than determining whether or not George Blundell of Little Crosby in Lancashire had a life interest in the manor of Crosby,6 or what to do about an organ-builder’s bad debts.7 One obvious answer – so obvious, perhaps, that it can easily be overlooked – is that he had no choice. Henry VIII wanted him to be lord chancellor, and that being so, it was not for Wolsey to refuse. In any event, it seems likely that Wolsey was happy to take up the burdens of the chancellorship, not so as to satisfy his vanity, or to achieve his own private ends – both have been alleged8 – but because he genuinely believed that there was an important job for him to do.

  However, before looking more closely at Wolsey’s intentions, more detail about his work as lord chancellor is called for. Of the nine thousand and more cases already referred to, 7,526 came before Chancery9 and about 1,685 before the Council in Star Chamber.10 Chancery was, thus, though not the one on which Wolsey left most mark, by far the busier of the two judicial bodies. It had been in existence for well over a hundred years, and so its procedures and jurisidictional scope were well-established, as was its popularity. The number of cases coming before it under Wolsey increased, though not by very much, to about 540 a year; Morton and Warham had presided over an average of about five hundred.11 In Star Chamber the increase appears to have been much more dramatic: in Henry VII’s reign the number of cases averaged 12.5 per annum, while under Wolsey it averaged 120.12

  Such an increase might suggest that Wolsey took positive steps to popularize the Council’s judicial activity,13 but if so this did not involve the introduction of any new category of cases. By far the largest category, comprising 41 per cent, was concerned with disputed title to land, however much this had to be disguised in order to justify bringing such cases before the Council rather than the common law courts.14 A second category had to do with disputes over rival claims to jurisdiction within towns: sometimes, as in Norwich, between the town government and the Church, and sometimes, as in Newcastle, between the town government and certain of its guild merchants. Another category concerned trade and commerce and included cases brought against people who had offended against proclamations regulating economic activity as well as against those who had failed to pay their debts. Yet another category had to do with disputes between landlord and tenant, over such matters as enclosure, poaching, rights of way and tithes. The Council also dealt with testamentary and defamation cases. In fact, as it was in theory open to anyone to bring any kind of complaint, there was nothing that might not provide the subject of a case, even if the Council might merely refer it to one of the regular law courts. In other words, the only limits to its jurisdiction were those it chose to make, and the choices it was making were no different in Wolsey’s time than they had been previously. A category that has been traditionally associated with the Council in Star Chamber included all cases to do with the perversion of justice and good government, whether by royal officials, juries, or anyone else. It is not, of course, surprising that the Council should have wanted to concern itself with such cases, but their number was comparatively small, comprising only about 15 per cent.

  A brief survey of the cases coming before Chancery during Wolsey’s period of office reveals a very similar picture. There were, it is true, some categories which, if not peculiar to Chancery, were particularly associated with it. For instance, unlike the common law courts, Chancery was prepared to recognize that a man holding his land by copyhold tenure had legal rights. It was also prepared to recognize the increasingly popular, though still controversial, form of conveyance, the enfeoffment to uses. Like Star Chamber, however, it was happy to deal with commercial matters, especially those concerned with that most difficult of areas, contractual obligation and debt. But its involvement here was much greater: it has been estimat
ed that whereas 28 per cent of cases in Chancery during this period involved commerce, in Star Chamber it was only 3 per cent.15 On the other hand, as in Star Chamber, by far the largest category of cases in Chancery involved disputed title to land, and the proportion of such cases in both courts was very similar: 46 per cent in Chancery compared with 41 in Star Chamber.16 Moreover, it would appear that, as in Star Chamber, it was here that the increase in Chancery business, such as it was; occurred. In fact, it has been suggested that by the 1520s there had been a significant reversal in the proportion of property to commercial cases compared with the 1470s, when commercial cases had predominated.17 Whether this was so or not – and the statistics are fraught with problems – what does seem reasonably clear is that Wolsey made no alteration to the scope of Chancery’s jurisisdiction. As with Star Chamber, he allowed no new kinds of cases to be brought before him. This being so, one obvious explanation for the increasing popularity of these two courts during his period of office is ruled out.

  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.18

  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.’19 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.20

  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.21 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.22 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.23 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 1474-83.24 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.25 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 prof
its 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.26 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.27 And not only was non-appearance just as prevalent in civil suits brought before other common law courts, but also in criminal cases.28That 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.29