“Deus est procurator fatuorum”: Cloistered Nuns and Equitable Decision-Making in the Court of Chancery

Chapter 12
Deus est procurator fatuorum”: Cloistered Nuns and Equitable Decision-Making in the Court of Chancery


Elizabeth Makowski


In 1468, a subpoena was sued in the Chancery for the breach of a parol [verbal] promise. The defendant argued that the plaintiff’s only remedy lay in the Church courts. The Chancellor [the Bishop of Bath and Wells, Robert Stillington] was short with him. ‘You say that for breach of faith he must sue by the Canon Law; but in this case, because he is damaged by the non-performance of the promise, he shall have a remedy here.’ The defendant persisted that, had the plaintiff taken the trouble to obtain the defendant’s promise under seal, he could have sued in Covenant [by that writ in a common law court], and that it was ‘his folly not to have a deed.’ But the Chancellor dismissed the suggestion with the beneficent, if uncomplimentary maxim, Deus est procurator fatuorum.1


An uncomplimentary maxim, to be sure, but not quite the scathing indictment that it might seem. Chancellor Robert Stillington held a doctorate in civil law from Oxford and, unlike some of his predecessors, he took a real interest procedural law. Therefore, by both training and inclination, he was acutely aware of the challenges facing every fifteenth-century litigant in the courts of the crown.2


He knew, for example, that notarial registers bulged with exemplars of writs from which one was obliged to choose in order to commence an action. “If there was no writ, there was no remedy. And the forms had been frozen in an earlier period … A writ which departed from the proper form was considered to be void and unamendable.”3 If, like the plaintiff in Robert Stillington’s court, a litigant failed to secure written evidence of a promise, he would find no writ at all designed to remedy its subsequent breach; if he chose his original writ badly, his suit would be thrown out of court.


Separate from writ selection, there were myriad procedural technicalities. If a litigant, or one should say his lawyer, failed to meet a submission date, ignored a technicality in pleading, or hesitated to jump some other procedural hurdle, his case could be seriously jeopardized. In these circumstances, more than one “foolish” plaintiff found his or her way to that “court of conscience,” the English side of the Chancery. In this chapter, I examine the circumstances that led cloistered religious women to this court. Whenever possible, I identify their procuratores as well, those human agents upon whom the nuns depended for their fair share of “God’s justice.”


There were many kinds of petitions made to the Chancery, but they all fall into one of two broad categories: those for which the king’s courts provided no remedy, or no further remedy, and those for which a common law remedy theoretically existed.4 A great variety of alleged injustices could not be vetted in the courts of common law because of evidentiary lacunae. Breach of promise, when that promise was undocumented, and fraud occasioned by the failure of a litigant to secure written evidence for a transaction such as the repayment of a debt, are issues of this sort. Since breach of promise or fraud often involved dower rights, women as well as men became regular suitors in Chancery.5 The feoffment to use, particularly susceptible to pettifoggery, also made petitioners of wives and widows.


The practice among late medieval landowners of making living trusts called feoffments to use, was responsible for a dramatic increase in Chancery business. Designed to spare heirs, especially widows, the necessity of paying feudal incidents on landed property, these collusive agreements depended completely upon the reliability of the trustees (feofees) to honor a verbal compact.6 The 1453 case of Joan Lyngen illustrates the difficulties that could arise from such arrangements.7 Joan’s husband, Rauf Lyngen, had thought to provide her with a life interest in his manor of Sutton, free of death dues, by enfeoffing his friend, John Barre. Joan alleged that Barre had grudgingly followed Rauf’s wishes, but that her son, John Lyngen, had not. Joan’s petition asked the chancellor to redress the actions of her own son who, “not dredying God the kyng nor his lawes,” and “arrayed in mane [manner] of werre [war],” had with a group of 40 men invaded and despoiled what Rauf had intended for her use.


Without documented evidence of a promise broken or a deal gone wrong, would-be litigants could not secure a writ to sue in the king’s courts. But some cases that ended up in Chancery had actually begun in those courts but had foundered there on a point of principle or procedure. For instance, a plaintiff who secured a viable writ to sue at common law, but then abandoned his suit for some reason (however significant) would find his case summarily abated. Crown remedy had been exhausted. But if in his petition to Chancery he could claim a compelling reason for abandoning his suit, and a consequent lingering injustice, he had reason to hope for the matter to be reopened, and resolved, in this court of equity. A Chancery plea lodged by William Togode and his wife Alianore provides a classic example of such a suit.


Alianore’s deceased father, Thomas, had made testamentary bequests to charity, and to his daughters, Agnes and Alianore, but those bequests had been contingent on the repayment of a debt of £100 owed to him by a certain Richard Brakynburgh. At the time of his demise, Brakynburgh still owed Thomas that debt. Thomas’ widow, Elizabeth, remarried and her new husband, William Adams, launched a suit for non-payment of debt against Brakynburgh in the Court of Common Pleas. Adams had died, however, and his suit had been abated. As a result, Thomas’ testamentary bequests (the petition to Chancery underscores the one he made to charity) remained unfulfilled, while the number of persons still alive and legally able to execute his last wishes were steadily diminishing—madness and the monastery having claimed two of them.


William Adams, late husbond of the seyd Elizabeth, sued an action of dette ayenest the seid Richard [Brakynburgh] affore the Kyng’s juges of the comon place [common pleas] at Westmynster, proces therof contenued at their greate charge unto the tyme the seyd Richard was outelawed and he beying so outelawed, the seyd William Adams died, by whose deth the seyd Richard [Brakynburgh] hath aboyded all the seyd proces of the seyd action and also graciouse lord sythyns that suyte abated, the seyd Richard, [son of Thomas, the testator]one of the seid executors, ys [fell] oute of hys mynd and the seyd Agnes another of the seid executors is professid a nunne under the abbeysaunce of one Alice Fizlewes, abbes of the Mynoresse withoute Allgate of London and hath willed the seid xl li. unto remayne to the use of your seid besecheres, and that natt withstondyng, they can have none action by the comyn lawe ayenest the seyd Richard [Brakynburgh].8


While inequitable judgments and inelastic procedure in the courts of the crown accounted for much Chancery business, a number of petitions to the Chancellor involved disputes for which there were common law remedies. In these instances, petitioners alleged that fear prevented them from seeking out those remedies. Intimidation of a plaintiff by more powerful and well-connected members of society sometimes manifested itself violently, with litigants claiming that they did not dare to sue at common law for fear of death, injury, or the destruction of their property; it could also take subtler forms. In such cases, petitioners stated that they were unable to bring common law to bear against an individual whose influential connections provide him with immunity from the ordinary machinery of local justice. It should be noted that those influential adversaries might be lay or religious, male or female, and that their victims were not confined to the lower classes.


No less a personage than the abbot of Burton, for example, petitioned the chancellor to redress a wrong of some 20 years standing which had been perpetrated by the formidable prioress of Kings Mead, Derby, Isabel Stanley. A gentlewomen related to the most prestigious knightly families in the region, she had not only turned a deaf ear to the abbot’s annual requests for the rent due him from her house, but also had met the bailiff sent to distrain for it saying that he and his men would be “nailed with arrows” if they tried to do so again.9 It was this sort of situation, albeit with an even more aggressive and unscrupulous opponent, that typifies our first case under consideration.


In 1470, the abbess and convent of Denney petitioned the Chancellor to take action against the executors of Thomas Burgoyn, erstwhile Justice of the Peace, and lord of the manor of Impington. His property lay next to their own manor of Histon, and the nuns alleged that for over 20 years (since September of 1452 to be exact), Thomas had misused his powers, both those that naturally flowed from his local personal prominence and those conferred upon him and as a representative of the king’s justice, to visit a series of injuries upon them. Their petition stated that


… said Thomas Burgoyn robbed and wrongfully vexed by writs of trespass and otherwise the tenants and servants [of Histon manor] to the number of forty … and also caused them to be endited before himself, being Justice of the Peace and keeper of the books within said County Cambridge. And when writs of certiorari [ writs issuing from a superior court upon the complaint of a party that he had not received justice in an inferior court, or could not have an impartial trial] were sued for the removing of the same the same Thomas returned that there were no such records, how be it that the said servant and tenants were put in arrest and paid great sum for their deliverance … by the space of seven years to the great cost and damage of your said poor oratrices in defence of the same to the sum of £200.10


Nor did their neighbor’s gross subversion of local justice constitute his only wrong. The nuns maintained that Thomas had also forbidden their tenants and servants from attending their manorial courts, had impeded their officials from taking strays that wandered onto their fields, and had occupied some of the fens owned by the convent, all actions which over the course of many years had cost the convent a calculated £883.


Thomas Burgoyn’s particular power and influence helps to explain why the nuns of Denney delayed their suit until after the death of their nemesis. Yet even then, and even with undisputed evidence that Thomas had ordered his executors to pay his debts, their victory was not assured. Burgoyn’s executors, Alice and John Burgoyn, answered the petition of the nuns by stating that Thomas’ last will and testament instructed them to pay his debts, but that it did not mandate that restitution be made for the injuries and wrongs specified by the nuns. The nuns, in turn, replied that they would be prepared to support their claims for damages by having those claims examined by the court, and that they were “neither satisfied nor content” with the limited recompense offered by Alice and John.11


Before 1500, judgments of the court of Chancery are seldom recorded, but in this instance we can be guardedly optimistic about the outcome of the case. Robert Stillington may not have been the model of clerical virtue but, as noted above, he seems to have taken his duties as chancellor quite seriously.12 Furthermore, if the nuns of Denney had not recouped their losses in 1470 they might not have been in a position to incur still more legal fees by engaging in another battle with the Burgoyns some ten years later. Nor might they have had the confidence to succeed.


Their second suit was heard around 1480 by Chancellor Thomas Rotheram, Bishop of Lincoln.13 Like Stillington, he had a university degree and a clear interest in civil and canon law.14 The nuns and convent in this instance were co-petitioners with the abbot of Eynsham, who claimed traditional rights identical to those of Denney. They included the right to hold certain leets and lawdays (courts of record held periodically in a hundred, lordship, or manor, before the lord or his steward, and attended by the residents of the district) in Impington and to have their tenants’ pasture animals in common with those of the tenants of Histon. The violator of those rights was listed as none other than John Burygoyn, “gentilman of Impyton.” Less inclined than his father to row with his neighbors, or at least less able to taint their evidence (which consisted of court rolls) against him, John capitulated to the time-honored demands of the two petitioners. In a gesture befitting the “court of conscience” both the abbess of Denney and the abbot of Eynsham agreed that given the dimensions of the common pasture at Impington “they would not overcharge the comyn in the said fields with an outrageous number of beasts, countrary to reason.”15