by Gwyn, Peter
What is the evidence for Wolsey wishing people to bring their complaints before him? There were two principal ways in which he could have encouraged them. He could have set out to publicize the work of his courts, and especially that of Star Chamber; or, by deliberately going out of his way to favour the plaintiff, who was undoubtedly at most disadvantage in the common law courts, he could have encouraged the legal profession to advise its clients to make use of his courts. It has been suggested that he did both these things. To take the question of publicity first: not long after he became lord chancellor, on 2 May 1516, Wolsey made an important speech before a great assembly of the Council at which the king himself was present.50 There he spoke of the ‘enormities’ which were prevalent in the kingdom, ‘to the derogation of indifferent justice, as well as the causes of the continuance of the same enormities. For the redress and reformation whereof the same most reverend father advertised his highness in the name of the whole councillors of certain provisions by their diligent study excogitate.’ As if to emphasize that he meant business, Wolsey chose the same day for the appearance of the 5th earl of Northumberland before the Council for an offence which probably had to do with the ‘ravishment’ of a royal ward. And whatever the offence, it involved the public humiliation of a leading nobleman, one which ended with the earl being committed to the Fleet prison. Then in May 1517 there was a second great assembly, convened so that the king could pardon four hundred or so Londoners who had taken part in ‘the Evil May Day riots’, but Wolsey took the opportunity to refer again to ‘the enormities and things misbehaved and misordered within this Realm’.51 Two years later, on 27 October 1519, he delivered a ‘notable oration’ concerning the ‘due administration of justice’, following it up the next day by hearing the submission of Sir William Bulmer for wearing the duke of Buckingham’s livery in the king’s presence, and at the same time passing sentence upon two Surrey Justices of the Peace accused of ‘great maintenance, embracery, and bearing’ – all different ways of corrupting a jury.52 There seems little doubt that all these occasions were stage-managed for maximum effect. What effect was intended is not so clear, but they were almost certainly not attempts to popularize the conciliar courts.
‘Enormities’ is a rather general term, used not of defects in the common law but rather of abuses of it, especially by the powerful, such as the earl of Northumberland, and those such as the Surrey JPs whose task it was to administer the law. In other words, the propaganda was towards better law enforcement rather than the provision of better remedies for private problems. In practice, of course, the two things could not be separated. If a genuine riot accompanied a dispute over property, or if the claim quite often made in a bill of complaint that the plaintiff could not obtain justice in the local courts because of the undue influence of his opponents was true, then indeed ‘enormities’ were being committed. Even if they were not, it could be that litigants might be more willing to pretend that these things were occurring in order to get their private suits before Star Chamber, if it was known that a chancellor was anxious to put an end to them. Whether or not this happened under Wolsey, and whether he publicized the conciliar court in other ways – through, for instance, the justices of assize – is not known. Given that the conciliar courts were already popular, to have wasted time on such efforts would appear to have been uncharacteristically foolish, but, if he did, he had by 1527 clearly repented, because we know that in that year he was sending at least some categories of cases back to them. What is more likely is that his prestige and known abilities provided an additional attraction to litigants and their legal advisers; if they were looking for genuine remedies he may well have seemed an ideal man to provide them, as a brief glance at one or two particular cases will demonstrate.
The first two decades of the sixteenth century saw a number of disputes over property and claims to wardship in the counties of Lancashire and Cheshire between the earl of Derby and Sir Thomas Butler of Warrington. Butler on more than one occasion claimed that he could obtain no justice either at the local assizes or at the duchy of Lancaster’s courts, because the earl ‘was and is of such strength and power in the said county’.53 He therefore wished his complaints to be considered before the Council in Star Chamber. There was probably something in Butler’s claim, though given the importance of his own family he probably exaggerated the Derby influence in order to justify his appeal to Star Chamber. The advantage of doing this was not necessarily just to receive a fair trial, but a trial which would be better able to take into account that along with the strictly legal issues involved there was also a conflict between two leading families. To resolve such a conflict compromises would have to be made, to secure which both the procedures and the prestige provided by the Council in Star Chamber would be useful. One would like to add to these advantages Wolsey’s chairmanship of the proceedings, but if this ever did come into Butler’s calculations it cannot have been the chief attraction, because he first brought his troubles to the Council long before Wolsey became lord chancellor.54 What has survived, though, is a letter from Derby to Wolsey, probably written in January 1521, in which he refers to another dispute that came before Star Chamber, this time with tenants from his lordship of Holland.55 Here the tenants seem to have won, despite the fact that it was admitted by the Crown ‘that the said earl by the rigour of the common law might put the said tenants from the said leases and liberties without any offence doing to the said law’.56
Would Derby have given way to his tenants without the intervention of Wolsey and the Council in Star Chamber, and, by extension, would there have been any hope of a settlement with Butler without such intervention? It may not be beside the point that Derby was heavily in debt to the Crown, and by an agreement renewed in 1517 had been forced to set aside the revenues of certain of his manors for the repayment of his debt.57 Consequently, Derby may well have been anxious to please the Crown in the hope that some of the debt might be cancelled. And in his letter to Wolsey he did express the hope that ‘by your good mediation and my reasonable petition and consideration seen afore your grace I doubt not that I shall have some favour at the King’s hand and yours’.58
Disputes between leading families were not infrequently brought before Star Chamber. In Wolsey’s time the peace of Leicestershire was disturbed by rivalry between Thomas marquess of Dorset on the one hand and Lord Hastings and his relative by marriage, Sir Richard Sacheverell, on the other. In 1516 all three appeared in Star Chamber to be examined about their illegal retaining and this was followed by charges being brought against them in King’s Bench. Despite this, in 1525 Sacheverell turned up at the Leicestershire assizes ‘with such a company that he ruleth the whole court’, and that this was not merely a partial view is suggested by the fact that the two judges presiding over the assize, Sir Robert Brudenell and Sir Anthony Fitzherbert, felt compelled to order him and his followers to leave. Sacheverell’s behaviour on this occasion led Dorset to file an ‘information’ against him, thereby suggesting that Sacheverell was guilty of a wrong done to the Crown rather than to himself, for such a procedure was more usually used by the Crown. However, one suspects that Sacheverell’s effort during the preceding years to ‘use himself in manner of comparison with the lord marquess’ may have had a good deal to do with Dorset’s action. In 1527 it was the turn of Lord Hastings, for in that year his dispute with Dorset over the exercising of certain offices in the county was brought before Star Chamber and then submitted to arbitration.59
Kent was another county whose whose leading families’ rivalries came to the attention of Wolsey and the Council. Most prominent was that between the Nevilles, led by Lord Bergavenny, and the Guildfords, and in 1516 Bergavenny was accused, not for the first time, of illegal retaining, and suffered the same fate as Dorset, Hastings and Sacheverell.60 There is no evidence to suggest any great rivalry between two other predominantly Kentish families, the Boleyns and the Wyatts, but given their close relationship with the king, it is perhaps not surprising
to find that in February 1528 Thomas Boleyn, recently created Viscount Rochford, and Sir Henry Wyatt treasurer of the chamber, promised Wolsey in Star Chamber that they would abide by the decision of the two chief justices and chief baron of the Exchequer in a dispute over property.61
At about the same time a much more serious dispute over property mainly in Lincolnshire, but also in Norfolk and Suffolk, was brewing. It concerned the inheritance of Lord Willoughby, who died in 1526, and the leading protagonists were Lord Willoughby’s brother and male heir, Sir Christopher Willoughby, on the one hand, and Lord Willoughby’s second wife and their daughter Katherine on the other. What made the conflict especially difficult to resolve was the support that the two women received from the duke of Suffolk. In 1527 he had secured the wardship of the daugter, with the obvious intention of getting his hands on the Willoughby inheritance, thereby establishing himself as a dominant figure in Lincolnshire. The matter was complicated in law because Lord Willoughby had contrived in 1512 to settle half his estate on Sir Christopher, but then, following his second marriage, he had bequeathed the whole of it, including the lands already promised to his brother, to Katherine. What, however, complicated it even more were the personalities and positions of those involved. At one point Sir Christopher decided to take the law into his own hands by making a forcible entry, despite a previous order from Wolsey and the Council not to, into one of the disputed manors – Eresby in Lincolnshire. As a consequence, Suffolk and Lady Willoughby brought a bill of complaint against him before Star Chamber.62 Wolsey was only involved with the beginnings of this dispute, which seems to have led to genuine disturbances of the peace and was to continue through most of the 1530s.63 Sir Thomas More, after succeeding Wolsey as lord chancellor, was to make an attempt to settle the matter, but with no real success.64 This may serve as a reminder that the lord chancellor and his fellow councillors were often unsuccessful in putting an end to major disputes between leading families. At the same time, it is easy to see why they offered the best hope for a solution: they had great authority, they could command the best legal expertise available, and in Wolsey they had a man who, if his conduct of foreign policy is anything to go by, was a past master at just the kind of negotiations that any successful solution would entail. The great sadness is that the documents do not really allow for any proper evaluation of Wolsey’s personal contribution to any particular case, with perhaps the exception of that which involved the prior of Norwich and the City Fathers.
This was the kind of dispute that was all too common in the later Middle Ages, arising as it did out of competing claims to jurisdiction over a particular area between secular and religious bodies, but the problems of Norwich do appear to have been especially intractable.65 They had defeated the effort of Wolsey’s predecessor, Warham, to solve them, and in fact conflict between the church and the city had been intermittent since at least the 1420s. What was in dispute was the prior’s jurisdiction both over an area of the city called Tombland, including the fairs that were held there, and over land outside the city owned by the priory but to which the citizens of Norwich had rights of commons. Wolsey’s settlement involved the Priory surrendering all claims over Tombland, while in return the citizens gave up their rights of commons. In achieving this various other compromises were arrived at. The priory was to be exempt from all tolls within the city, and the citizens were to be given priory land just outside, which, in order to make it viable, had to be drained. Indicative of his personal interest is the fact that this was apparently carried out at Wolsey’s expense. The episode involved him in at least one trip to Norwich;66 in the drawing up of a ‘book’ in which the conflicting claims were set out; in an an ultimatum in 1522 to settle the matter within the week or else to submit to a decision imposed by outside commissioners, in drawing up a composition, or agreement, late in 1523, and in a threat of quo warranto proceedings in 1524. In August of that year a final agreement was reached, and in 1525 it was incorporated into a new city charter.67
Wolsey was instrumental in at least two other similar, though relatively minor, disputes: one between the Charterhouse and the city of Hull concerning an area of the town called the Trippett and a rather more complicated franchise case concerning Bishop’s Lynn.68 In both cases solutions appear to have been found, and although the second did not, it seems, involve the conciliar courts, it illustrates Wolsey’s skill at bringing constructive pressure to bear. Here the key seems to have been provided by the use of the quo warranto proceedings to challenge the franchisal rights of everyone in Bishop’s Lynn, and then to discontinue the proceedings when the parties agreed to settle their differences – a ploy he had also used at one point in his negotiations with the the prior and city of Norwich.
The Norwich episode shows Wolsey at his best,69 using that same mixture of carrot and stick that was such a feature of his conduct of foreign policy, and without which no agreement would probably ever have been reached. Even so, it took him about seven years from his first visit to the city in the autumn of 1517 to the signing of the final agreement. The case, therefore, illustrates not only his skill, but also the difficulties that he, and indeed any lord chancellor, faced. As in the disputes between leading families, what was involved was not simply a matter for the law – for in law both sides could usually produce a reasonable case – but a conflict of interest, which did not disappear just because a legal decision had been made. What was required was a genuine compromise, one sufficiently satisfactory to both sides as to create a vested interest in maintaining it. This was difficult to achieve, requiring a real mutual desire to settle – which almost by definition was lacking, at least initially – for otherwise there would have been no need to appeal to the lord chancellor. Fortunately, this desire did not have to depend upon goodwill, which was invariably in short supply. Self-interest informed by good legal advice, could bring it about, if only through fear of the consequences of not attempting to settle. It was this that gave Wolsey and his colleagues their chance.
It was, of course, the plaintiff who took the initiative in bringing a dispute to the lord chancellor’s attention, and, as we have noted earlier, it has been suggested that Wolsey as lord chancellor was a plaintiffs judge. One reason behind this suggestion is that it would provide an explanation for the increase in business. Believing him to be ‘a soft touch’, people would have been encouraged to bring to him cases that a stricter lord chancellor would not have entertained. And the result of Wolsey’s softness may have been a too high proportion of essentially frivolous or vexatious suits. The suggestion also fits well with a certain view of his character: the self-important Wolsey who would find enormous pleasure in the ever-growing number of people appealing to him for help, and the over-confident Wolsey who believed that only he could solve other people’s problems. The trouble with both these approaches is that they do not relate very closely to what Wolsey actually did as lord chancellor; and the trouble with what he actually did is that, as has already been suggested, the evidence rarely permits one to evaluate Wolsey’s personal contribution to the legal proceedings. Moreover, to attempt to do so requires a considerable degree of expertise in the handling of legal records, and, to complicate the issue further, two people with just such expertise have come up with contradictory answers.
F. Metzger in his study of Wolsey’s work in chancery, has emphasized his formal correctness and indeed his genuine effort to deter frivolous or vexatious suits. Wolsey appears to have insisted that the mainpernors who in theory guaranteed that a plaintiffs complaint was genuine, should be real people rather than the fictional Does, Roes and Smith that had been increasingly allowed by his predecessors. He was the first lord chancellor to insist that bills of complaint should be signed by the plaintiff’s counsel and countersigned by a master in chancery. He also insisted on the strict rule of proof and was quite willing to refer a case back to the common law court if a plaintiff failed to show sufficient reason why he should not.70 On the other hand, J.A. Guy has argued that in Star Cha
mber Wolsey deliberately relaxed the rules to the great advantage of the plaintiff. He appears not to have insisted that the plaintiff produce sureties for the payment of damages to a wronged defendant.71 He made no effort to scrutinize bills of complaint, as his successor More was to do.72 He allowed the plaintiff to start the procedure by which the defendant was forced to appear in court before he had filed his bill of complaint, and to alter it right up until the moment the defendant had put in his first appearance, which must have made it that much more difficult for him to prepare his defence.73
It would almost seem as if these two historians were writing about different people and, when Guy makes a point of saying that Wolsey in Star Chamber did not insist on bills of complaint being signed by counsel, a procedure which Metzger maintains that Wolsey introduced into Chancery,74 the non-expert comes near to despair. Of course, one way of explaining the contradictions would be to emphasize the different attitudes of the two courts rather than the personality of a particular lord chancellor – and this approach does seem to offer the best remedy to despair! Chancery, being the older and better established court, took a stricter view of procedural matters than the Council in Star Chamber. As time went by, and inevitably once it became a formal court, stricter procedures were to be introduced into Star Chamber. Meanwhile the flexibility which may have favoured the plaintiff had very little to do with Wolsey, but quite a lot to do with the stage in its evolution that the court had reached. However, more important than any difference between the two institutions is what they shared in common: that concern to listen to the complaints of the king’s subjects. In this sense they were both plaintiffs’ courts, and would have failed in their duty if they had put difficulties in the plaintiff’s way, even if this meant that they were sometimes taken for a ride. Put in this context, Wolsey’s alleged leniency becomes almost meaningless. The chancellor was there to favour the plaintiff in the initial stages of a case. But, once the case was under way the plaintiff could expect no special treatment. Even the unfriendly Edward Hall considered that Wolsey was severe on perjury ‘so that in his time it was less used’,75 and a number of people ended up in Westminster Hall with papers on their heads declaring them to be perjurers.76 Of course, not all perjurers were plaintiffs, but if Wolsey was known to be severe on perjurers it must have at least deterred plaintiffs from making false complaints.
