by Gwyn, Peter
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.114 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.115 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.116 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.117
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.
One aspect of the lord chancellor’s role not mentioned here by Wolsey was his special responsibilities for law enforcement. Many of these responsibilities – and they were perhaps especially associated with supervising the work of the justices of the peace – he had acquired in the fifteenth century. By an Act of 1429 JPs were instructed to inform the chancellor of anyone suspected of taking part in a riot, unlawful assembly, insurrection or any similar offence who, in order to escape arrest, had fled into another county. An Act of 1439, which laid down certain property qualifications for JPs, also gave discretionary powers to the chancellor to appoint anyone whom he considered suitable for the office, irrespective of the property qualifications if there were not sufficient people who possessed them. An Act of 1487 laid down that the chancellor should act as a final court of appeal for any complaints against JPs.118 This association between chancellor and JPs probably only reflects the growing importance of the latter office during the fifteenth century, but it does illustrate the kind of supervisory role that the chancellor was expected to play over the whole range of judicial machinery. Also included here would have been the sheriffs, assize judges and the great number of extraordinary commissioners set up to deal with particular problems. Of course, the king’s involvement in all aspects was also substantial. It would appear, for instance, that he personally chose the sheriff for each county from a list of three drawn up by the chancellor, and he would no doubt have had views about all other appointments,119 even if the donkey work was done by the chancellor and his officials. It must also be true that, insofar as the maintenance of law and order depended to a great extent upon the political stability of the regime, the personality and effectiveness of the king had to be of the utmost importance, however little he involved himself in the day to day detail of law enforcement. Political stability was not a problem under Henry VIII, or at least not until the 1530s when the divorce and ensuing ‘break with Rome’ imposed considerable strains. However, unlike Edward IV who personally sat on a number of local commissions, Henry VIII saved himself for the exceptional cases, such as that against Buckingham in early 1521 where he personally examined the chief witnesses, and he did make those few rather stage-managed appearances in Star Chamber which have already been mentioned.
At the heart of Wolsey’s law enforcement policy was what he called ‘the indifferent ministrations of justice to all persons as well high as low’, and it was in Star Chamber that it was most publicly put into effect. The high and mighty were indeed made to appear there. The earl of Northumberland did so in May 1516, and in the same year the marquess of Dorset, Lord Bergavenny, Lord Hastings and Sir Richard Sacheverell, as we have seen; in 1517 it was the turn of Thomas Pygot, serjeant-at-law, and Sir Andrew Windsor, keeper of the great wardrobe, summoned because of an affray between their servants; the next year Sir Robert Sheffield, a royal councillor who had been Speaker of the House of Commons in Henry VIII’s second parliament; in 1519 Lord Edward Howard and two other Surrey JPs and Sir William Bulmer, a prominent royal official in the North of England, who, as we noted earlier, was forced to appear for wearing the livery of the duke of Buckingham. In 1524 and 1525 two other important Northern figures, Sir Robert Constable and Thomas Dacre, appeared.120 A list of other prominent men who at some time or other found themselves before Wolsey would include Sir William Brereton, Sir William Compton, Sir Henry Grey, Sir John Hussey and Sir Christopher Willoughby. Most of these men were royal councillors, and at least two, the marquess of Dorset and Sir William Compton, were personally close to the king. All, in one way or another, were taught ‘the law of Star Chamber, that they shall beware how from thenceforth they shall redress their matter with their hands’ – Wolsey’s words when, in a letter of August 1517, he informed Henry of the affray between Pygot’s and Sir Andrew’s servants. Later in the same letter, he made his famous reference to ‘the new law of Star Chamber’.121 There was in fact no such thing, but what it presumably reflected was a new determination on his part to ensure that the laws were enforced, irrespective of who broke them.
It has recently been shown that there were only nine official prosecutions in Star Chamber during Wolsey’s chancellorship,122 which, given his public pronouncements on the many ‘enormities usually exercised in this his Realm’,123 might seem
a disappointingly low figure, suggesting, perhaps, that he was all talk and no action. In fact, the figures mislead. Tudor government relied very heavily, even in what might be considered criminal matters, on private initiatives, which it could and did encourage, for instance by making public its willingness to act. This could be done by using the JPs or assize judges as its mouthpieces, by issuing proclamations, or by setting up special commissions to hear complaints. But in the end it was up to the private individual to respond. Though not an official prosecution, any resulting case was very much to do with law enforcement. A good example would be a suit brought by one Alice Swettenham, initially against John and George Cotton and others for the murder of her husband, and subsequently, in conjunction with her father-in-law, against Sir William Brereton and others for the ‘maintaining and comforting’ of the murderers. Her husband had been hit while playing bowls ‘so that his brain came forth before and behind his head’. Not surprisingly, he never regained consciousness and was dead within a quarter of an hour.124 Wolsey and the Council may have had some sympathy for the widow, but it was the involvement of John Fitton and Thomas Bulkely, and above all Brereton, that concerned them most. These people, so the Swettenhams maintained, were ‘so kindred and allied, and so many belong unto them’ within the county of Chester, that they had successfully prevented the Swettenhams from obtaining justice there – hence their appeal to Wolsey and the Council.125 In allegedly helping the murderers to escape arrest, the three had allowed the man who had delivered the fatal blow, a servant of Brereton’s, to escape to a sanctuary at Knowle church in Warwickshire, while a relation of Brereton’s had released from prison, ‘without any authority of the law’,126 another who had taken part in the fatal assault. Wolsey and the Council went to considerable lengths to discover all the facts: a special commission was sent to Knowle to examine the murderers,127 while Wolsey himself on two occasions in 1518 examined Brereton, who was put to the considerable expense and inconvenience of appearing each day in Star Chamber during the lengthy investigations.128 The Council’s conclusion was that Brereton had been guilty of ‘comforting’ felons, and as a result in November 1518 he was fined 500 marks, to be paid in twice yearly instalments of 50 marks; if he defaulted part of his estates would become the property of the Crown.129
The fact that the comparatively humble Swettenhams could not only take on the Breretons, a leading Cheshire family and moreover one with court connections,130 but actually win, reflects well on early Tudor justice, and in particular on Wolsey’s administration of it. It may be that the Swettenhams had been encouraged to bring their complaint to the Council by Wolsey’s various orations on the subject of law enforcement, and certainly his handling of their complaints would have provided clear evidence that he had meant what he said. However, Wolsey did not confine his activity to speeches, or indeed to merely responding to private initiatives. In October 1518 the assize judges were required to report to the Council all those who had seriously offended against justice, ‘that is to say, who be retainers or oppressors, or maintainers of wrongful causes, or otherwise misbehaved persons’.131 Early in the following year local inquiries were instituted into the activities of all royal officials concerned with the administration of justice,132 and any suspected of negligence were to be summoned before the Council and not to be allowed to depart ‘until such time as they have made their purgation why they have not done their duties.’133 In November 1519 detailed instructions were drawn up concerning the duties of the sheriff and his officials.134 These, along with a revised oath to be sworn by the sheriff on taking office, were to be published. Wolsey appears to have been very anxious personally to acquaint not only the sheriffs but also the JPs with what their duties entailed. In what may have been a new departure, he encouraged the latter to attend each year the swearing-in of the sheriffs, when they could themselves be ‘new sworn’, and a homily would be read exhorting them to provide ‘equal right to the poor and to the rich’.135 In July 1526 Wolsey summoned an extraordinary meeting of the JPs to which one hundred and ten turned up, and all were required to give written answers to twenty-one articles concerning the prevalence of offences against justice in their localities.136
The extent of Wolsey’s concern for law and order may have been obscured by the lack of any significant new legislation on the subject during his chancellorship. Instead, he concentrated on personally supervising the local officials, and tactically this was sound. A crooked or merely biased sheriff could still cause considerable harm, albeit a harm limited by his brief tenure of office, which was usually just one year.137 It was still the sheriff who was responsible for the execution of common law writs, and by delaying them or by making a false return – stating, for instance, that a defendant could not be found in his county – he could make life very difficult for a plaintiff. He was also still responsible for the empanelling of juries, and thus in the best possible position to produce one that was favourable either to his own or someone else’s interests.138 All this made it very important that a close check should be kept on his activities. Similarly, the increasing use made of JPs who were not merely royal officials, but, like Sir William Brereton, leading lights in their locality, and thus in the best possible position to abuse the system made it all the more necessary to supervise their work.
How effective were Wolsey’s efforts to encourage a sense of responsibility and service in royal officials? Certainly his activities did sometimes result in their punishment. Perhaps the best example concerns Sir John Savage – like Brereton, a member of a leading Cheshire family, but one which through royal favour had extended its influence throughout the counties adjoining the Welsh border. Amongst the many offices that Savage held was that of sheriff of Worcestershire – most unusually, for life. In June 1516 he was summoned before the Council accused not only of ‘negligence’ but also of ‘cherishing’ the murderers of a Gloucestershire JP, John Pauncefote, who earlier in that year had been killed while travelling to attend the quarter sessions at Cirencester.139 Sir John Savage’s son, another John Savage, was also fully implicated in the murder, and it was he who, by taking refuge in the Clerkenwell sanctuary of the priory of St John of Jerusalem, turned what was really a rather sordid case of murder into an interesting legal and constitutional matter. This last aspect is not the present concern, though it certainly complicated Wolsey’s efforts to teach the Savage family ‘the new law of Star Chamber’. In November 1520 Sir John Savage did receive a royal pardon, but only after he had lost all his offices in Gloucestershire and Worcestershire and had agreed to pay a fine of 4,000 marks to the Crown and 1,000 marks to the widow and children of John Pauncefote. The ‘pardon’ may appear suspiciously lenient – and the whole question of the use made of pardons will be considered later – but what had happened was that a family which had, it emerged, systematically abused their position to further their own interests, even to the extent of involving themselves in the murder of another royal official, had been very severely punished.
Sir John Savage’s abuse of his office does seem to have been rather exceptional, and few other royal officials were treated even as harshly as he was. However, he was by no means the only one to be taken to task. Another who was summoned before the Council, in his case for failing to execute a royal writ, was the sheriff of Cumberland, Sir John Ratcliffe.140 Then in 1519 the activities of three Surrey JPs, Sir Matthew Browne, Sir John A Legh and Lord Edmund Howard, were closely investigated, and in July information against all three was brought by the attorney-general – in itself an unusual procedure – to the effect that ‘the good rule and execution of justice in the county of Surrey hath been of long time letted and misused by the great maintenance, embracery and bearing’ of the three defendants.141 Lord Edmund Howard quickly confessed and may have escaped the £100 fine the two others eventually received. Knowledge of their activities may have resulted directly from those local inquiries into the administration of justice that Wolsey had instituted early in 1519. Also probably associated with the
m is an ‘abbreviate of the deposition of certain Justices of the Peace of the county of Lincoln concerning sundry misorders of divers particular persons within the said shire’.142 Most of these depositions concerned the activities of Sir John Hussey, not only a leading Lincolnshire JP, but also a royal councillor much involved in judicial work at Westminster.143 It is a little worrying that in the previous year Hussey had been requested not to sit on the Council while the complaint of one Alice Hardiman, that he had protected the murderers of her husband, was investigated.144 In fact the Council decided that he had not, but
moved with pity and compassion to the intent the same Alice should cease her exclamations against the same Sir John, have willed the same Sir John to pay to the said Alice six pounds thirteen shillings and four pence for her costs … not intending that by the same payment that the said Sir John should be deemed and taken a convict of the said maintenance and bearing, but only of pity and compassion.145
One hopes that this is not another way of saying that Alice was bought off, just as one hopes that the fact that no action appears to have been taken against Hussey following the complaints of 1519 was not because he had too many friends in high places. There is no means of telling,146 but the mere possibility that there may have been some kind of cover up for someone in the royal favour – and it should be said that there is no evidence that Hussey was especially close to Wolsey – does raise the question of Wolsey’s integrity as lord chancellor, especially as regards his work in Star Chamber. Did some people escape punishment there because they were politically important to him, and – which is more usually alleged – were some people punished because they were his enemies?147
