School students and undergraduates who study the English Tudor dynasty tend to focus on the long, eventful reigns of Henry VII’s son, Henry VIII, and Queen Elizabeth I. Henry VII (hereinafter referred to as “Henry”) who had a relatively short reign, is noted principally for the Battle of Bosworth Field in which he successfully overcame a dynastic rival to take the English Crown. In ascending to the throne after decades of civil war and upheaval many historians consider that he brought relative peace and security to a troubled land.
Unlike many English monarchs before and after him, Henry avoided war and focused on stabilising his country, thereby ensuring the continued prosperity of his dynasty. The kingdom that he had to rule was unstable. Many of the nobles who held large fiefdoms in different parts of England, including the Percy family whose lands were in the far north, well away from Henry’s influence, maintained their own unruly, often unlawful agendas and their loyalty could not be guaranteed.
One particular headache that Henry inherited was a legal system that was in a parlous state. English Law i.e. the Common Law that had evolved after the Norman Conquest was moribund and the courts and magistrates were very susceptible to corrupt practices. The gentry, essentially lesser nobles who were the magistrates of their day, dispensed what modern observers would see as a rather rudimentary form of justice and like the higher nobility they were preoccupied with maintaining status and privilege. Individual lawyers, many of whom were equally self serving, were not held in very high esteem by the general populace.
The English pre-Reformation Catholic Church maintained a not dissimilar system of Church Courts that very harshly applied a complex system of Cannon Law rules that dispensed a self serving form of Church Law. This benefitted a small number of clergy and was rested on vague notions of Latin enscripted legal maxims that few beyond a small number of highly-educated priests and bishops could even vaguely understand.
One particular low water mark of the English justice system was the law relating to mortgage redemption. Essentially, by around 1500, we had reached the point whereby if a mortgagor who for some reason failed to attend an appointment at which his mortgagee was scheduled to redeem a mortgage, according to the Common Law, he could still be entitled to forfeiture, even in circumstances where he was to blame for the non attendance or had inserted a spurious clause into the mortgage agreement.
Henry promoted himself as having ultimate regal authority and therefore as the ultimate dispenser of justice, in a sense, a point of last resort that for some may have been a point of first resort. Accordingly, he encouraged people to petition him direct. In time he delegated this function to his small group of trusted advisors who effectively became “the Star chamber”.
Henry was by no means a radical reformer. He was as much concerned about protecting his position and undermining his opponents and enemies as he was about dispensing justice, and he came down as hard on those who rebelled against him as any other monarch of his age.
However, Henry did appear to have a sense of what was “right and wrong” and he was not restrained by some of the establishment niceties of his age. He reigned well before the age of detailed records and statistics but historical anecdote suggests that he had some notion of justice and that he was not prepared to tolerate the excesses or self serving attitudes of corrupt lay nobility and senior clergy. Effectively, the largely unaccoladed Henry short-circuited an entire legal system. He saw through the Common Law’s moribund procedures and created a timely, cost-effective means of redress.
One should not herald Henry as a reformer who was far ahead of his time. As is noted above he was as much concerned about protecting his position as any other contemporary ruler. Using the divine right mantle typically adopted by many monarchs of his era, he portrayed himself as the ultimate purveyor of justice, the King who would put right what others, namely the common law judges and the lay and clerical nobility, had not done.
In the infant Tudor state, “the Star Chamber” was a relatively accessible body. Essentially, an ordinary person, necessarily of some means but none the less a commoner, could present before the king or his advisers and plead a case. Procedures were rudimentary but not too convoluted and, anecdotally at least, it appears that despite some historians scepticism about Henry’s motives, he had insights about justice that many of his contemporaries did not, and he did some good.
Over the years the justice dispensed by the “Court” of Star Chamber evolved into the legal system known as the Law of Equity, essentially a completely separate system of courts that gave rise to a number of key ideas. These included the Equity of Redemption that addressed the mortgage redemption iniquity highlighted above. It also established maxims since such as “Equity will not suffer a wrong to be without remedy” one of many notions that has at its core Henry’s notion of direct, regally dispensed justice.
There was no question of those who petitioned Henry’s Star Chamber being allowed to participate in a mediation type forum or having their discussions facilitated. It was a hierarchical body comprised of trusted nobility and courtiers that dispensed justice “down” to petitioners. It was accommodating to lawyers and was not completely devoid of complexity. However, until they stagnated hundreds of years after Henry’s death, the Star Chamber’s successor, the Courts of Equity that grew out of it, dispensed a quite timely, effective brand of justice that was perhaps reminiscent of the arbitration system that we have today.
The notion of equitable justice that was initially conceived of by Henry with the attendant principle of relatively simple access to law is very reminiscent of modern day civil mediation, arbitration and adjudication. Modern litigants do not have to cope with a moribund common Law system rife with the medieval injustices identified above but like their mediaeval predecessors they do have to contend with uncertainty of outcome, complex procedures, expense, delay and in some instances inequality – the very antithesis of mediation.
In much the same way that the Star Chamber could be approached without a lot of faff and decisions could be made promptly, a mediation, arbitration or adjudication can be arranged very promptly and without breaking the bank. There is considerable emphasis on the practical and what is viable or workable rather than abstruse points of law. Perhaps the best thing about these concepts is that whilst they are reminiscent of Henry’s notions of justice, they are not points of last resort. As had been frequently emphasised, if the will is there they can be initiated if not tomorrow, next week.
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.