Countries are often judged by the functioning of their legal system. This is usually viewed in two ways. Primarily, the laws which countries chose to pass and uphold are often used to gauge the general morality of their customs. For example, when Brunei recently made homosexual intercourse an offence punishable by death, there was international outrage and boycotts were organised against certain Bruneian institutions. This type of criticism, whilst often justified, is — however — always open to the influence of cultural relativism. Similarly, criticising laws enacted in the past, such as the Buggery Act of 1533, is often justified but can theoretically be rebutted by the argument that England had a different moral standard back then.

Derek Bentley

For this reason, I’ve opted to look at the second way a legal system in a country can be judged: through the meta-legal analysis of the application of laws. This way, it’s not the content of the laws which is of importance but rather the very functioning of the legal system. Abuse of the legal system as a whole, rather than the mere implementation of unjust laws, can be much more damaging for a country’s populace, as it undermines the impartiality of the law and allows for tyrannical acts, from which no one can be sure they are safe. It is for this reason that misuses or abuse of law are so vehemently condemned. An example of this would be the wrongful application of laws to people who have been incorrectly found guilty, whether that be by accident or design. For example, the wrongful hanging of John Perry, his mother, and his brother, in 1661 is a notable example of the death penalty in England being wrongfully applied — even if by accident — and the case of Derek Bentley (a mentally handicapped man who was wrongfully hanged in 1953), among other examples of innocent people being found guilty of capital offences, played a large part in the death penalty’s abolition in Britain in 1965 (and 1973 for Northern Ireland).

Sir Richard Empson (left), Henry VII (middle), and Sir Edmund Dudley (Right)

The Tudor dynasty, akin to its medieval predecessors, was one rife with abuse of the law — as well as one which saw the creation and perpetuation of laws which would be seen as unjust in today’s age. Henry VII’s decision to backdate his reign by one day, thereby making all those who fought against him at Bosworth guilty of treason, and his later Rex de Facto Act in 1495 which denounced what he had done both demonstrate Henry VII’s manipulation of the law. However, it is his Council Learned in the Law, established in 1495, which best exemplifies Henry VII’s spider-like grasp over the legal system. The brainchild of Reginald Bray and headed by Richard Empson and Edmund Dudley (the latter only following Bray’s death in 1503), the Council was — in the words of historian John Guy — ‘personal monarchy at its height’. The brilliance at play here was that the Council Learned, far from an official court, was merely a tribunal. It was essentially just a group of lawyers. This allowed it to issue subpoenas in the name of the King which the accused could not appeal, as it did not constitute an official court. Thus, the Council Learned was — as G. R. Elton vehemently protested — technically never acted illegaly, rather it acted extralegally, operating outside of the law and skirting the restrictions which limited official courts. This being said, the Council Learned greatly angered much of the gentry and pretty much the entire nobility, as it represented a huge shift in power towards the Crown. Thus, even though Empson and Dudley were only guilty of a few actual crimes (forcing confessions, bribing juries, etc…), they were nonetheless executed in 1510 under the charge of ‘constructive treason’.

Similarly, Henry VII’s son, Henry VIII, ruled over an unfair justice system. Under Henry VIII, the King maintained a strong grasp of the legal system, although this manifested itself primarily through the Henrician Reformation’s transfer of various laws from ecclesiastical courts to royal ones. A prime example of this is the Buggerty Act of 1533. Buggery (by this definition comprising any anal sex and any sex between a person and an animal) had already been an offence, punished through ecclesiastic courts. However, by moving the offence to the royal courts, Henry VIII cemented the offence into English legislation. Although it was repealed under Mary I, who preferred such matters to be dealt with in ecclesiastical courts, it was revived by Elizabeth I in 1563. In fact, the Act was only repealed as a result of the Offences against the Person Act of 1828 and the crime of buggery as a capital offence persisted until 1861.

John Fisher, Bishop of Rochester

Another aspect of Tudor law which is damning is the fairly regular use of ex post facto law. This type of law allows for a criminal to be prosecuted for a crime on the grounds of a law passed after the crime was actually committed. In the United States, the Constitution forbids this, however, there is technically no law in England which prohibits parliament from passing ex post facto laws. Perhaps the most notable example of this in Tudor history is the case of Richard Roose. Roose was a cook in the household of John Fisher, Bishop of Rochester, who was executed for attempting to poison Fisher. Roose was actually unsuccessful in his attempts — which he claimed to have thought was just the putting of laxatives into the food in ‘jest’ — as Fisher did not eat the dinner. However, two servants (a man named Bennet Carwen and ‘an old Widow’ did die as a result of the poisoning). As well as deciding that Roose should be attained without a trial — unusual, since Roose had already been arrested — Parliament passed An Acte for Poysoning (1531) which, in conflict with its prior state, made murder by poisoning high treason and punishable by death by boiling, as opposed to hanging, drawing, and quartering. Thus, even though neither the target (John Fisher) nor the victims (the two servants) were not the Crown or a representative of the Crown, Roose was sentenced to death by boiling, one of the most painful, torturous, and humiliating punishments possible.

The example of Richard Roose, punished for a crime which didn’t exist at the time he’d committed it, and the Council Learned, which gave Henry VII unprecedented control over the English legal system, make it painfully clear that in Tudor England, the law was not so much a tool of justice as it was a means by which the monarch could enforce its will, punish its enemies, and render ‘following the law’ a meaningless concept, as the legality of any action was something that could never, in theory, be known.