by Gwyn, Peter
Someone who was both a plaintiff and, insofar as she deliberately based her case in Star Chamber on a forger’s evidence, a perjurer was Joan Staunton. Her suit, over land in Kidlington Oxon, can be seen as just of that frivolous and vexatious kind that Wolsey’s leniency attracted,77 because it would appear that she had no case to make – and certainly it led the acting clerk of the council, Sir Thomas Elyot, to wonder how Wolsey and his colleague might be spared the barking of such a bitch.78 However, Wolsey’s contemptuous dismissal of her case and the fact that the perjurer was condemned to spend a whole day in a pillory suspended by her ears, hardly supports the view of the over-lenient lord chancellor. Moreover, it must always have been the case that until the evidence had been presented in court and, for instance, in Joan Staunton’s case, it was shown that vital documents had been forged, it was very difficult to be certain whether a suit was merely frivolous and vexatious. This being so, such suits are an inevitable part of any legal system. It is not known whether the defendant to Joan Staunton’s suit received any costs or damages, but probably he did. A defendant in another case was awarded 6s for being forced to appear in court without sufficient cause being laid against him,79 and this was not a unique occurrence. Indeed, whatever the nature of his complaint, a plaintiff always risked the possibility of having to pay costs, and this must have acted as some deterrent to the wilful misuse of the conciliar courts.80
According to Hall, there was a class of litigant that Wolsey did go out of his way to encourage: ‘The poor men perceived that he punished the rich, then they complained without number, and brought many an honest man to trouble and vexation.’81 It is not necessary, of course, to take Hall’s rather jaundiced view of a chancellor who went out of his way to encourage the poor to bring their cases before him. The real difficulty is to decide whether the proposition is true. It does receive some support, though, from the fact that by three orders of 1517, 1518 and 1520 Wolsey felt compelled to set up ‘under-courts’ sitting in Westminster specifically to hear poor men’s causes, for this does suggest that there were too many cases to be dealt with by the existing machinery.82 In 1520 these under-courts emerged in the more formal shape of the ‘king’s most honourable Council in his Court of Requests’, and though the personnel changed, this embryo court of requests remained in being for the rest of Wolsey’s period as chancellor. At the same time litigants could still bring their complaints before two councillors specially appointed to attend upon the king, and these two may have provided the poor with additional access to conciliar jurisdiction. There is, thus, no doubt that concern was shown for the special needs of the poor. What is more difficult to decide is just how poor the ‘poor’ were, and how far Wolsey was responsible for any increasing concern for their affairs during his period of office. There must have been some kind of yardstick by which to judge the poverty of a litigant, for in a case in 1519 the Council decided that the plaintiff was a gentleman with sufficient income to make use of the common law courts.83 However, what that yardstick was is not known, and by and large historians have been reluctant to allow that the poor really benefited. For Wolsey’s period Guy has come across only three litigants, out of a total of 1,268 whose social origins he has been able to discover, who were allowed to sue as paupers;84 but as the bulk of the records for poor men’s causes have either not survived, or have not been fully sorted, too much cannot be made of these figures.85 What is of some interest is Guy’s finding that of the 753 plaintiffs whose social origins are known, 245 were either yeomen, craftsmen or labourers.86 Admittedly the great majority of these belonged to the first category,87 which would undoubtedly have included some quite wealthy people, but that over 30 per cent came from such categories is some evidence for a special concern for the less powerful.
Direct evidence for Wolsey’s concern for poor men’s causes can be found in the detailed instructions drawn up for the reconstructed Council in the Marches of Wales in 1525, in which it was stated that the Council was to publicize the fact that the complaints of the poor and disadvantaged would be very much its concern. Their cases would always be considered first so as to save them as much inconvenience as possible, and, moreover, they were to be given free legal advice.88 The more general provision of free legal advice for the poor was something that the Venetian ambassador, Giustinian, specifically mentioned in his final report to the Venetian Senate in 1519, and in other ways, too, he praised Wolsey’s treatment of their cases: he had ‘the reputation of being extremely just: he favours the people exceedingly, and especially the poor; hearing their suits, and seeking to despatch them instantly; he also makes the lawyers plead gratis for all paupers.’89 Enough has already been said about the dangers of taking ambassadorial comments at their face value to deter us from relying too heavily on Giustinian’s favourable assessment, but there seems no reason for him to have written in this way unless he was at least reflecting a commonly held view. But, as so often, a word of caution must be introduced. Conciliar concern for poor men’s causes was no innovation of Wolsey’s. It was inherent in the notion that all the king’s subjects, irrespective of rank or condition, could appeal to him for justice; and from at least the early fifteenth century, when statutory provision had been made for free legal assistance, it had been realized that to make this notion a reality some practical help would have to be provided.90 As recently as 1495 an Act had been passed that entitled poor people, at the direction of the chancellor, not only to free legal advice but also to free legal writs.91 Wolsey may have used his discretionary powers more widely than some of his predecessors, but in showing a concern for the poor he was merely continuing and building upon their work.
On 17 July 1517 Wolsey and the Council considered two cases concerning a certain John Cole.92 In the first they decided that Cole’s cattle had been wrongfully detained, and that not only should they be returned but he should be awarded 20 marks in costs. The second case was more difficult. One Roger Langford maintained that Cole had stolen two of his oxen. This Cole denied, arguing that confusion had arisen from the fact that two out of twenty oxen he had purchased happened to be the same colour as Langford’s. Wolsey and his colleagues felt that there was no way of proving that the two oxen were Langford’s, but that Cole was partly responsible for the dispute because of his refusal to allow Langford to inspect them at the time that Cole had made the purchase. The Council, therefore, came to a decision worthy of Solomon, awarding one ox to Langford and allowing Cole to keep the other, while both were to pay their own costs. There is no suggestion that the Council thought that either case was frivolous or vexatious: these were genuine disputes which one has to presume the local courts had failed to resolve. One cannot fail to be impressed at the time and trouble taken over them, and that this happened in such cases can only have increased the king’s subjects’ confidence in royal justice and thus contributed to good government. But was it cost-effective? Should the Crown’s leading councillors have concerned themselves with such trivial matters? If they were dragged in every time an ox was stolen, then conciliar jurisdiction would grind to a halt. In fact this did not happen. It has been estimated that during Wolsey’s time the average length of litigation in Chancery was twenty months, a considerably shorter time than in Elizabeth’s reign, and for Star Chamber about a year.93 Neither figure suggests that the system was not coping, even if the pressure of business, in Star Chamber at least, was creating problems which Wolsey’s delegation of suits either to the localities or to under-courts at Westminster was not entirely solving. If business continued to increase, a greater formality would have to be introduced. This was to happen in the 1530s, but insofar as flexibility had been one of the chief attractions of conciliar jurisdiction, the changes were not all to the good.
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 criti
cism has been that he deliberately set out to sabotage the common law.94 Recent research has gone a long way to answer this criticism.95 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.96 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,97 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.98
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,99 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.100 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’.101 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.102 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.103
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.104 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.105 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?’106 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;107 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 1529.108 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.109 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.110 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.111 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.112 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.113
