Part 26

The whole controversy affords certainly an admirable illustration of the inconvenient state of the law before the passing of the Statute of Uses in the days of Henry VIII. The hearing of all causes touching the wills of dead men belonged to the spiritual courts of the Church, which did not own the king’s jurisdiction. The king’s courts, on the other hand, had cognisance of everything affecting real property. No lands or tenements could be bequeathed by will, because the courts of common law would not give effect to such an instrument. But legal ingenuity had found the means to enable wealthy persons to bequeath their lands as well as their goods to whomsoever they pleased. A man had only to execute a conveyance of his lands to a body of trustees, who thereupon became in law the owners, express provision being made at the same time that they were to hold it for his use so long as he lived, and after his death for the use of certain other persons named in his will, or for such purposes as might therein be indicated. By this indirect means a title in lands was very effectually conveyed to a legatee without any abatement of the original owner’s control over his own property so long as he lived. But the practice gave rise to a multitude of inconveniences. Private bargains, legal quibbles and subtleties, crafty influences brought to bear upon dying men, great uncertainty as to the destination of certain properties, were among its frequent results. At the very last moment, when the dying man, perhaps, was in imperfect possession of his faculties, mere words, or even a nod or sign, might affect the title to very large estates. And almost by the very nature of the case, wherever a trust was instituted like that of Sir John Fastolf, all the pettifogging devices of legal chicanery were necessarily brought into play, either to establish a title or to contest it.[238-1]

[Footnote 238-1: See the preamble to the Statute of Uses, 27 Henry VIII. c. 10.]

_Sir John Paston_

Sir John Paston now stepped into his father’s place, as heir to Caister and to Fastolf’s other possessions in Norfolk and Suffolk. But before he could vindicate his rights in any part of them it was necessary that he should wipe out that stain upon his pedigree which had been devised by calumny in bar of the claims made by his father. The case came before the king himself in council. An array of court rolls and other ancient records was produced by the family, to show that they had been lords of the soil in Paston from a very remote period. Some of their title-deeds went back as far as the reign of Henry III., and it was shown that their ancestors had given lands to religious houses in that reign. Indeed, so little truth was there in the imputation that John Paston the father was a bondman, that his ancestors, certainly by the mother’s side if not by the father’s also, had been the owners of bondmen. The evidences were considered satisfactory, and the family were declared by the king’s council to be fully cleared of the imputation. The lands, of which Lord Scales had taken possession for about half a year,[239-1] were restored to Sir John Paston by a warrant under the king’s signet, dated on the 26th July, little more than two months after the death of John Paston the father.[239-2]

[Footnote 239-1: _Itin._ W. Worc., 323, where it is said that Lord Scales ‘custodivit hospicium in Castre per spacium dimidii . . .’ The blank must surely be supplied by the word _anni_.]

[Footnote 239-2: Nos. 641, 643.]

[Sidenote: Tournament at Eltham.] After this Sir John Paston was much at court, and Lord Scales became his special friend. Even as early as the following April we find Sir John taking part in a tournament at Eltham, in which the king, Lord Scales, and himself were upon one side.[239-3] But the favour with which he was regarded at court both by the king and the Lord Scales appeared more evidently one year later, [Sidenote: A.D. 1468.] when the king’s sister Margaret went over to the Low Countries to be married to Charles, Duke of Burgundy. [Sidenote: Marriage of Margaret, sister of Edward IV., to Charles the Bold, Duke of Burgundy.] This match had been more than a year in contemplation, and was highly popular in cementing the friendship of England and Burgundy in opposition to France. On the 1st May 1467 a curious bargain or wager was made by Sir John Paston as to the probability of its taking effect within two years.[239-4] But on the 18th April 1468 he received a summons from the king to be prepared to give his attendance on the princess by the 1st June following, and to accompany her into Flanders.[239-5] Not only he, but his brother John Paston the younger, crossed the sea in the Lady Margaret’s train; and we are indebted to the latter for an interesting account of the marriage and of the tournaments which followed in honour of it. Young John Paston was greatly struck with the splendour of the Burgundian court. He had never heard of anything like it, he said, except the court of King Arthur.[239-6] But his brother seems to have found another attraction abroad which fascinated him quite as much as all the pageants and the tournaments in honour of the Lady Margaret.

[Footnote 239-3: No. 665.]

[Footnote 239-4: No. 667.]

[Footnote 239-5: No. 683.]

[Footnote 239-6: No. 684.]

[Sidenote: Sir John Paston and Anne Haute.] There lived, probably in the town of Calais, a certain Mrs. Anne Haute, a lady of English extraction and related to Lord Scales, whom Sir John Paston seems on this occasion to have met for the first time. Having been perhaps all her life abroad, she appears to have had an imperfect command of the English language; at least Sir John, in proposing to open a correspondence, wrote to her, ‘Mistress Annes, I am proud that ye can read English.’ For the rest we must not attempt to portray the lady, of whose appearance and qualities of mind or body we have no account whatever. But perhaps we may take it for granted that she was really beautiful; for though Sir John was a susceptible person, and had once been smitten before, his friend Daverse declared him to be the best chooser of a gentlewoman that he knew.[240-1] It is a pity that with this qualification his suit was not more successful. It went on for several years, but was in the end broken off, and Sir John Paston lived and died a bachelor.

[Footnote 240-1: No. 660.]

[Sidenote: A troubled inheritance.] But Sir John was heir to the troubles of a lawsuit, and his property was continually threatened by various claimants both at Hellesdon and at Caister. His mother writes to him on one occasion that Blickling of Hellesdon had come from London, ‘and maketh his boast that within this fortnight at Hellesdon should be both new lords and new officers. And also this day Rysing of Fretton should have heard said in divers places, there as he was in Suffolk, that Fastolf of Cowhaw maketh all the strength that he may, and proposeth him to assault Caister and to enter there if he may, insomuch that it is said that he hath a five-score men ready, and sendeth daily espies to understand what fellowship keep the place.’ For which reason Margaret Paston urges her son to send home either his brothers or Daubeney to command the garrison, for, as he well knew, she had been ‘affrayed’[240-2] there before this time, and she could not ‘well guide nor rule soldiers.’[240-3] Another time it is intimated to Sir John that the Duchess of Suffolk means to enter into Cotton suddenly at some time when few men should know what she is going to do.[240-4] And this intention she seems to have fully accomplished, for in the beginning of the year 1469 the Earl of Oxford sends Sir John a friendly warning that she means to hold a court there next Monday with a view to proving that the manor of Cotton Hemnales is holden of her by knight’s service.[241-1] So that altogether Sir John Paston’s inheritance was held by a very precarious tenure, and his mother, like a prudent woman, advises him ‘not to be too hasty to be married till ye were more sure of your livelode.’[241-2]

[Footnote 240-2: That is to say, menaced, if not attacked, an ‘affray’ being made upon her. It is curious to meet here our familiar word ‘afraid’ in its original form and signification.]

[Footnote 240-3: No. 671.]

[Footnote 240-4: No. 690.]

[Footnote 241-1: No. 696.]

[Footnote 241-2: No. 704.]

The old dispute with the executors, however, was compromised in the court of audience: and the Archbishop of Canterbury, Bishop Waynflete, and Lord Beauchamp granted to Sir John full right in the manor of Caister, and a number of other lands both in Norfolk and Suffolk.[241-3] Sir John soon afterwards conveyed a portion of the Suffolk property called Hemnales in Cotton and the manor of Haynford to the Duke of Norfolk and others.[241-4] William Worcester became friends with John Paston’s widow, imputed his old misunderstanding with her husband to the interference of others between them, and expressed himself well pleased that Caister was to be at her command. ‘A rich jewel it is at need,’ writes Worcester, ‘for all the country in time of war; and my master Fastolf would rather he had never builded it than it should be in the governance of any sovereign that would oppress the country.’ At the same time it seemed very doubtful whether Fastolf’s intention of founding the college there could be carried out, and Worcester had some conferences with Sir John Paston about establishing it at Cambridge. Bishop Waynflete had already proposed doing so at Oxford; but Cambridge was nearer to the county of Norfolk, and by buying a few advowsons of wealthy parsonages an additional foundation might be established there at considerably less cost than by the purchase of manors. In this opinion Sir John Paston and William Worcester coincided, and the former promised to urge it upon Bishop Waynflete.[241-5]

[Footnote 241-3: No. 675. The deed, perhaps, was found to be irregular afterwards, for its general effect was confirmed about five months later by another instrument. No. 680.]

[Footnote 241-4: No. 677.]

[Footnote 241-5: No. 681.]

Sir John Paston had now some reason to expect that with the settlement of this controversy he would have been left for life in peaceful possession of Caister. That which his father had not been able to attain was now apparently conceded to him: and even if Sir William Yelverton was still dissatisfied, the other executors had formally recognised his rights in the court of audience. But before many months had passed it appeared that Yelverton could still be troublesome, and he found an ally in one who had hitherto been his opponent. [Sidenote: Sir Thomas Howes unites with Yelverton,] Sir Thomas Howes was probably failing in health--for he seems to have died about the end of the year 1468[242-1]--when he made that declaration ‘for the discharge of his conscience’ to which we have already alluded. Scruples seem to have arisen in his mind as to the part he had taken with Sir John Paston’s father in reference to the administration of Fastolf’s will, and he now maintained that the will nuncupative which he himself had propounded along with John Paston in opposition to an earlier will propounded by Yelverton and Worcester, was a fabrication which did not truly express the mind of the deceased. We may observe, though the subject is exceedingly obscure, that of the three wills[242-2] printed in Volume III., each of which professes to be the will of Sir John Fastolf, the third, which is in Latin, is clearly a will nuncupative declaring the testator’s mind in the third person, and defining the powers of the executors in regard to his goods and chattels.[242-3]

[Footnote 242-1: _See_ preliminary note to No. 703.]

[Footnote 242-2: Nos. 385-7.]

[Footnote 242-3: The other two have relation to his lands, and are not inconsistent with each other; but the first is drawn up in the name of the testator himself, while the second speaks of him in the third person. The second is, in fact, a note of various instructions given by the testator in reference to his property on the 2nd and 3rd days of November before he died, and its contents may have been fully embodied in the first, when the will was regularly drawn up; but the first is printed from a draft which is probably imperfect.]

[[Sidenote: Sir Thomas Howes unites with Yelverton, _not an error: sentence continues below_]]

It was apparently this nuncupative will that Howes declared to be spurious. The validity of the others touching his lands depended upon the genuineness of a previous bargain made by Fastolf with John Paston, which was also disputed. But it was the nuncupative will that appointed ten executors and yet gave John Paston and Thomas Howes sole powers of administration, except in cases where those two thought fit to ask their assistance. This will seems to have been drawn up mainly by the instrumentality of one Master John Smyth, whom Howes afterwards denounced as ‘none wholesome counsellor.’[243-1] Howes now combined with Yelverton in declaring it to be spurious.[243-2]

[Footnote 243-1: No. 681.]

[Footnote 243-2: Nos. 688-9.]

[Sidenote: and they sell Caister to the Duke of Norfolk.] The result of this allegation was that Yelverton and Howes took it upon them, as executors of Sir John Fastolf, to recommend to Archbishop Bourchier that the Duke of Norfolk should be allowed to purchase the manor of Caister and certain other lands in Norfolk, and that the money received for it should be spent in charitable deeds for the good of Fastolf’s soul. The transaction was not yet completed,[243-3] but the duke immediately proceeded to act upon it just as if it were. He did not, indeed, at once take possession of the place, but he warned the tenants of the manor to pay no money to Sir John, and his agents even spoke as if they had the king’s authority. On the other hand, Sir John had the support of powerful men in the king’s council--no less persons than the great Earl of Warwick and his brother, the Archbishop of York, who had lately been Lord Chancellor, and was hoping to be so again. The Earl of Warwick had spoken about the matter to the duke even in the king’s chamber, and the archbishop had said, ‘rather than the land should go so, he would come and dwell there himself.’ [Sidenote: Archbishop Nevill.] ‘Ye would marvel,’ adds the correspondent who communicates the news to Sir John Paston, ‘ye would marvel what hearts my lord hath gotten and how this language put people in comfort.’ It had its effect upon the Duke of Norfolk, who saw that he must not be too precipitate. He was urged on, it seems, by the duchess his wife, but he would go and speak to her and entreat her.[243-4]

[Footnote 243-3: ‘The bargain is not yet made,’ says an anonymous writer on the 28th October. _See_ No. 690. Nevertheless an ostensible title had been conveyed to the duke by a formal document on the 1st October. _See_ No. 764.]

[Footnote 243-4: Nos. 688, 690.]

On the other hand, Yelverton and Howes seem to have been pretty confident that my Lord of York would not be chancellor again unless their bargain with the duke was ratified. The Nevills were no longer regarded with favour at court. The coolness which had existed between the king and Warwick ever since the marriage with Elizabeth Woodville had last year come to an open rupture, and the Archbishop of York had been at the same time dismissed from the office of chancellor. Soon after the new year a reconciliation was effected through the medium of private friends, and the archbishop conducted his brother the Earl of Warwick to the king at Coventry.[244-1] But real confidence was not restored, and party spirit was anxious that it never should be. Nor could the public at large, perhaps, imagine the deep grounds of distrust that Warwick had already given to his sovereign.

[Footnote 244-1: W. Worc., 512-13.]

Sir John Paston, nevertheless, was advised to put his trust chiefly in the friendship of the Nevills and in the probable reinstatement of the archbishop as Lord Chancellor. Another means, however, was not to be neglected. Sir Thomas Howes might be gammoned, or bullied, or got over in some way. He and Yelverton did not agree so well that it need be a very hard matter to separate them. Sir John’s friends hoped to secure for him the good offices of the Bishop of Ely and a certain Master Tresham, who, it was thought, could put it nicely to Sir Thomas Howes half in jest and half in earnest, putting him ‘in hope of the moon shone in the water,’ and telling him that such efforts were made ‘that either he should be a pope, or else in despair to be deprived _de omni beneficio ecclesiastico_ for simony, lechery, perjury, and double variable peevishness, and for administering without authority.’ Such were a few of the humours of the controversy.[244-2]

[Footnote 244-2: No. 690.]

[Sidenote: Sir John ‘wages’ men. A.D. 1469.] Better, however, than the friendship of the great, was the security to be derived from keeping Caister well guarded; and Sir John Paston immediately set about ‘waging’ men to add to the little garrison.[244-3] With this he seems to have been much occupied from November till January following, when by repeated letters from the king he was commanded to desist from making any assembly of the lieges, and to appear personally before the council at Westminster.[244-4] The matter, apparently, was hung up for a time without any decision being come to by the council. The friendship of Archbishop Nevill could have done little to recommend the cause of Sir John Paston to the king. On the other hand, if favour had anything to do with the result, his cause was warmly advocated by Lord Scales, the king’s own brother-in-law, on account of Sir John’s intended marriage with his kinswoman, Anne Haute.[245-1] And it is certain that Judge Yelverton had conferences with Lord Scales in the hope of coming to some kind of understanding. But King Edward, as we have already said, had a real desire to be impartial in the disputes and quarrels of his subjects; and doubtless it was from a feeling of this that Sir John Paston and his mother rejoiced to hear that it was the king’s intention to visit Norwich in the course of the ensuing summer. The rumour of this intention, it was believed, had a powerful influence in inducing the Duchess of Suffolk to remain at her family seat at Ewelme, in Oxfordshire, that she might be out of the way if sent for by the king, and plead age or sickness as her excuse.[245-2] The attempt made by her son to dispossess Sir John Paston at Hellesdon could best be judged of on the spot. And in Norfolk, too, the king would learn what was thought of the Duke of Norfolk’s claim to Caister.

[Footnote 244-3: No. 691.]

[Footnote 244-4: No. 698.]

[Footnote 245-1: Nos. 704, 706, 707.]

[Footnote 245-2: No. 704.]

So it was hoped that the king’s presence in the county would tell most favourably on Sir John Paston’s interests. And there was one circumstance in particular of which advantage might be taken. As Edward was to go from Norwich on pilgrimage to Walsingham, his way would of necessity lie through Hellesdon and Drayton. The lodge whose walls the Duke of Suffolk had caused to be broken down could hardly fail, from its conspicuous position, to meet his eye, and perhaps some friend in the king’s suite could be got to call his attention to it and tell him the story of the outrage. This Thomas Wingfield engaged to do, and promised to get the king’s own brother, the Duke of Gloucester, to join him in pointing out the ruin. Promises were also obtained from Earl Rivers, the queen’s father, and from her brother Lord Scales and Sir John Woodville, that they would urge the king to command the Dukes of Norfolk and Suffolk to forbear claiming title to the lands of Sir John Fastolf. And by the time the king took his departure from Norwich the Pastons were encouraged to believe that steps had already been taken to end their controversy with one if not with both dukes. Unfortunately the belief, or at least the hope that it gave rise to, proved to be utterly unfounded.[246-1]

[Footnote 246-1: No. 716.]

[Sidenote: The ruined lodge is shown to the king.] The king rode through Hellesdon Warren on his way, as it had been expected that he would do. The ruined lodge was pointed out to him by William Paston, Sir John’s uncle; but his answer was altogether at variance with what the Woodvilles had led them to expect. The king said the building might have fallen by itself, and if it had been pulled down, as alleged, the Pastons might have put in bills at the session of _Oyer and Terminer_ held by the judges when he was at Norwich. William Paston replied that his nephew had been induced to hope the king himself would have procured an amicable settlement with both the dukes, and therefore had forborne to vindicate his rights by law. But the king said he would neither treat nor speak for Sir John, but let the law take its course.[246-2]

[Footnote 246-2: _Ibid._]

_Civil War--Public and Private_