Regulating the Number of Proctors in the English Ecclesiastical Courts: Evidence from an Early Tudor Tract

Chapter 10
Regulating the Number of Proctors in the English Ecclesiastical Courts: Evidence from an Early Tudor Tract


R.H. Helmholz


No one has done more to enlighten us about the history of the legal profession in the courts of the medieval church than the scholar in whose honor this volume is being published. James Brundage first studied the canonistic literature on the subject and explored the records of the ecclesiastical courts. Then, in a series of first-rate articles, he illuminated one aspect after another of the history of “the ecclesiastical bar” in England. In them he promised, and later he produced, a justly acclaimed book drawing together these various aspects and placing them in the larger context of European legal history.1


Among the merits of his work has always been an ability to draw revealing connections between this medieval subject and some of the problems that beset the legal profession today. One of the questions that faced the medieval legal profession is also a matter of current interest: Who should be admitted to the practice of law? How many lawyers does society need?2 We are apt to think of this as a new problem. We hear it discussed, frequently in disquieting tones. In these discussions, it is commonly assumed that the admission of overly large numbers of young lawyers to the bar has been a recent development. Many people suppose it would be better to return to an earlier and happier time— when there were fewer lawyers and less litigation. However, in fact this subject has a long and more complicated history. The assumptions, the assertions, and even some of the general grousing about an “over-supply” of lawyers are not unprecedented. Professor Brundage has shown the topicality of his research in the history of the legal profession, and I hope this tribute to him may support and augment his efforts.


The Tract


The occasion for raising this particular question grows out of a happy find: the discovery in the Bodleian Library of a manuscript directly related to the subject. It is a short English tract about law and ecclesiastical lawyers written during the reign of Henry VIII (1509–1547). It was later copied in a seventeenth-century manuscript devoted to varied aspects of ecclesiastical jurisdiction.3 The tract was there given the simple title: “Touching the Number of Proctors etc.” The manuscript itself has no outward indication of provenance, and no other copies of it have so far been discovered. It is written in English throughout.


The tract’s immediate attention was confined to the principal ecclesiastical courts that then existed in the City of London: the Court of Arches, the Archbishop of Canterbury’s Court of Audience, and the Prerogative Court of Canterbury. Focusing on the proper size of the legal profession within those courts, the treatment discussed only the proctors, the men who (roughly speaking) performed the same role that attorneys did in the English common law.4 It had nothing to say, at least overtly, about the advocates, the more learned half of the profession. The original tract must have been written in the years very shortly after 1528. It was motivated by an ecclesiastical statute promulgated in that year, and it also states that there were then two papal legates (Warham and Wolsey) in England. The latter died in 1530. The Bodleian’s copy of the tract seems to have been made in the seventeenth century, perhaps because its subject remained timely.


This original tract was also timely in a broader sense. The 1520s and ’30s were years of controversy—one might even say agitation—about the proper status and future of the canon law and the ecclesiastical courts in England. Proposals for amendment and reform were being made.5 Some of them called for quite dramatic change. The controversy led up to the “Supplication of the Commons against the Ordinaries” (1532) and the nomination of a commission to reformulate the canon law applied in the courts of the English church.6 This particular document was, therefore, only one among many proposals dealing with the spiritual courts, although at least as far as I know, it was the only one to take up in any detail the merits of having a larger or smaller number of lawyers serving in them.


Its author, who unfortunately remains anonymous, stood somewhat outside the world of practicing ecclesiastical lawyers. He advocated a “secular” solution to the problem that concerned him, and he made no show of learned citations drawn from the ius commune, as a professional civilian would more likely have done. One might suppose, therefore, that he was a common lawyer. However, he clearly knew something of the canon law, and he did not advocate curtailment of ecclesiastical jurisdiction and expansion of the common law’s sphere of competence at the expense of the church, as would have been natural for a common lawyer. In terms of pure self-interest, he might even have been an aspiring proctor, who had been excluded from practice by the 1528 statute.


The tract itself is too long to print here, and it may not be important enough to warrant printing in any other venue. However, its contents are certainly worth describing, because it raised a question of both historical and modern importance. Attempts to control the number of lawyers serving in the ecclesiastical courts were not infrequent in medieval and early modern times, but for the most part, historians have had to guess about their background and the reasons that lay behind them. Here we need not guess at all. The author worked through the applicable arguments in detail. Along the way, he also provided valuable information about the legal profession and even the canon law more generally.


The Background


The English ecclesiastical courts had emerged as regular, professional institutions by the second half of the thirteenth century. In 1295, Archbishop Winchelsey had issued ordinances regulating the most important of these, the Court of Canterbury.7 Among them was a provision specifying that there should be 16 advocates and ten proctors serving in the Court.8 How these two numbers were selected we do not know, but it is a reasonable assumption that they were regarded as suitable for the amount of litigation being heard at the time. However, over the course of years between then and the sixteenth century, the limitation to ten proctors must have come to seem inadequate. In practice, the number of serving proctors had been allowed to increase upon nomination by the archbishops. The tract asserted that currently 21 men were authorized to act as proctors in the London courts, more than twice the number permitted under the original statutes.9 To some, this seemed like too many, quite apart from the violation of the statute’s terms. Prominent among the objectors were the men serving as proctors at the time. They had managed to convince the archbishop that their number should be cut back.10 His new statute of 1528 had therefore sought to restrain the multitudo numerosa of proctors and return to the older, statutory level.11 The statute could not reasonably have deprived those who were presently acting as proctors of their livelihood, but it could and did require that no more men be appointed until the number had been reduced to ten by attrition. Only when the numbers fell below that level would new proctors be named. In the meantime it excluded entry into the profession.


We know something about the historical developments leading up to the problem. Over the course of the fourteenth and fifteenth centuries, the amount of litigation in the English ecclesiastical courts had grown. The records for the London courts have not survived from the medieval period, probably the result of the Great Fire of 1666, but evidence from the records of other English ecclesiastical courts clearly indicates an expansion in amounts of litigation between the late thirteenth century and the fifteenth.12 More causes were being heard. More lawyers were needed. However, starting in the 1470s, this situation had begun to change. An expanded use of actions based upon the statutes of Praemunire earlier enacted in Parliament was being directed against litigants in the courts of the church. It had brought the increase to a halt.13 Indeed a marked decline set in. Although the English ecclesiastical courts had long been able to maintain their jurisdiction in a few areas which the common lawyers claimed were outside the proper scope of ecclesiastical jurisdiction, this permissive regime had come to an effective end by the first quarter of the sixteenth century. The old common law rules were made effective in new ways, and their substantive reach was given an expanded scope. Other, less tangible, factors may also have played a part in this movement, but in any event the accustomed amount of ecclesiastical litigation had shrunk substantially by the 1520s.14


Because the livelihood of proctors depended largely upon the fees they received in each cause, their incomes would also have declined during these years.15 By 1528, many of them would have been earning significantly less than their counterparts had half a century before, some of them less than what they themselves had earned only a few years earlier. It cannot have been coincidental that they were unhappy with this situation. Nor is it surprising that they made their unhappiness known to Archbishop Warham. The presence of a larger supply of proctors than the number called for in Winchelsey’s statutes may have been tolerable to them in 1475; 50 years later it had apparently become the cause of a substantial loss in income. There was less litigation to go around. Hence followed an attempt to “turn the clock back” to 1295. It was about this attempt that the tract was written. It opposed the changes called for by the 1528 statute.


The Arguments


This tract was a work of controversy. Its author brought up what appear to have been all the arguments he could think of against the restriction in the number of proctors contained in the new statute. Although he did try to be fair—at least he made a show of objectivity—it is clear that his primary purpose was simply to attack the statute and allow the larger number of proctors to continue to practice. We should not, therefore, expect that all the arguments he brought forward would prove equally convincing, or even wholly consistent one with the other. But any one of them might be enough to persuade. He made six different points:


Unlawful Association


The tract began its analysis of the statute with a short description of the motivation that lay behind it. The author was in no doubt about this. Although issued in the name of the Archbishop, the statute was the result of the initiative of the existing proctors. He did not blame the aged Warham. The proctors had “abused his Grace’s benignity,” inducing him to issue the statute limiting the number of proctors in order to fulfill their own “covetous intent.”16 This point permitted the author to make the first of his arguments, a legal one: action taken by what he called an “incorporation of men” joined together to protect their economic interests, was inherently suspect. Such a “confederacy” among them was unlawful under English law, at least without the consent of the monarch. That applied here. The London proctors were acting in concert and they were motivated exclusively by self-interest. As a matter of principle, and particularly where justice was at stake, such a confederacy should not be allowed to dictate policy.


This was the same argument that would surface more prominently during the seventeenth-century controversies about monopolies.17 Monopolies were regarded as inherently likely to cause harm and inconvenience to the realm. The proctors who were responsible for the 1528 statute had, the tract asserted, worked for “the advancement of their singular weal only” rather than for the “common weal.” The proper business of the legal profession should be to promote the public interest, not to line the pockets of existing practitioners.18 The statute went in the wrong direction.


The tract’s author was not naïve about the difficulties inherent in dealing with the concentration of power in the hands of one of these confederacies. The entrenched group of proctors would not be easy to unseat. Few individuals had either the necessary interest or the resources to challenge this statute. No litigant would “suppose the same to touch him so much that he should … put himself to business against so many and so rich a company as the said Proctors be.”19