Legal History Matters: From Magna Carta to the Clinton Impeachment

support.

Introduction

Amanda Whiting and Ann O’Connell

In Australia, as in the wider Anglo-American common-law world, scholarly research in the field of legal history and at the intersections of the disciplines of ‘law’ and ‘history’ is flourishing, with rich and vibrant new work regularly presented at national and international conferences convened by legal history associations and societies, debated in dedicated blogs, and published in specialist journals and scholarly monographs.¹ Yet the teaching of legal history has had an unsteady place in law courses offered in Australian universities and has now become effectively moribund, as we will shortly illustrate. This collection seeks to reinvigorate the study of history within the Australian law school curriculum. Apart from a few paragraphs in this short introduction, it does so by demonstration rather than by argument. Instead of mounting a theoretical case for the value of scholarly historical inquiry within the legal academy and for the education and training of legal professionals, it showcases what law students can achieve when they seek to understand legal precepts, processes and institutions historically.

The Displacement and Erosion of Legal History Teaching in Australian Law Schools

When the LLB degree was inaugurated at the University of Melbourne in 1860, it included a substantial component of the Bachelor of Arts curriculum, subjects such as Greek, Latin, modern European languages, English, Mathematics, Logic, Political Economy, Ancient History, History of the British Empire, and Constitutional and Legal History. According to the Chancellor’s Annual Report for that year, such a course of study would ‘secure a well grounded and liberal education for the [legal] profession’.² Thirteen years later, the Faculty of Law was established and legal instruction was formally distinguished from the Bachelor of Arts curriculum in order to give students a ‘more comprehensive and philosophical training’ in the law. Nevertheless, as the Chancellor’s 1873 Annual Report records, some Arts subjects were retained in the first two years of the LLB because ‘an acquaintance with these branches of learning [is] so necessary for an accomplished lawyer’.³ Shortly thereafter, attainment of the BA became a prerequisite for LLB candidates,⁴ and even after that precondition was removed, Arts subjects remained a component of the first two years of the law degree. This insistence upon the value of the liberal arts for the properly turned-out lawyer was not unique to colonial Melbourne, nor indeed to Australia. Rather, as eminent Canadian legal historian Wesley Pue showed, the proposition that training in law was essentially training in the character formation and civic virtues necessary for ethical and active citizenship and the propagation of British civilisation and political institutions chimed with the broad currents of legal education that ran through the British Empire and the United States at that time, and well into the twentieth century.⁵

Historical studies featured strongly in this expansive vision of legal education in Australia until about the middle of the twentieth century; thereafter they dwindled but clung on until the end of the century. As K O Shatwell, Dean of Sydney University Law Faculty, wrote in 1951, ‘nearly every law school within the British Empire which is concerned with the teaching of English law or with the teaching of systems of law based thereon, includes within its curriculum … the subject of legal history’.⁶ Indeed, while other Arts subjects diminished over time in the law school curriculum, history remained as an independent subject, or substantial component of other legal offerings.

Again, taking the Melbourne Law School as our case study and the often-opaque information in the Faculty Handbooks as our primary source,⁷ and with considerable simplification of a convoluted tale, it is evident that legal history in some form or other was taught continuously until 1990. The final honours exam in law had a separate paper on legal history from at least the 1920s. A subject called Legal History, offered sometimes in first year, sometimes in second year, was compulsory until 1969. Thereafter, until 1990, Legal History—with a strong Australian component introduced in 1973—was taught by Ruth Campbell as a third- or fourth-year advanced elective. After Campbell’s retirement, and a curriculum review, a new composite first-year History and Philosophy of Law subject was taught until the early 2000s. The separate subject titled Constitutional History (sometimes Constitutional and Legal History) had been a compulsory law subject since the early 1930s (it had been an Arts subject since 1860); when Legal History was relegated to an optional and later-year offering in 1971, Constitutional History replaced it until 1978 as the compulsory first-year subject. From slightly earlier, in 1965, the compulsory first-year Legal Process subject contained varying degrees of legal historical subject matter, chiefly concerning the development of the courts. In addition to these specifically legal historical offerings, the first-year subject British History (usually taught as a narrative of constitutional struggles and achievements) was a sometimes compulsory, sometimes semi-compulsory subject from the commencement of the LLB in the 1860s. At various times double-degree students could elect the Arts rather than the Law version of British History, and in some years, students could trade it for Constitutional (and Legal) History. This arrangement appears to have formally ceased in the mid-1970s, but law students continued to take first-year British History until the late 1980s.

It is not possible, relying on Faculty Handbooks alone, to appreciate what legal history lecturers thought they were teaching, or students thought they were supposed to have grasped; the subject descriptions are often sparse or vague, the booklists indicative or aspirational. Dissatisfaction with the experience of teaching the subject, and anxiety about its place in the curriculum and status in the law school, is, however, evident in the academic writing of legal history scholars in Australia and other common-law countries, as well as the reflections of some of their pupils. Shatwell, a staunch champion of legal history at Sydney, bemoaned the ‘deeply unsatisfactory’ nature of much legal history instruction for its failure to properly situate past legal institutions and practices in their social, political and economic contexts, and he damned a teaching style that sprinkled ‘a few clichés’ about medieval and early modern jurists and their works which no teacher seriously expected students to remember or care about.⁸ Leslie Downer, an accomplished medieval scholar who taught legal history at The University of Western Australia from 1951 to 1955 and then at Melbourne between 1956 and 1962, cited with wry amusement the observation of an American colleague that practising lawyers assumed ‘all legal history is either of practical use in ad hoc litigation or it is insufferably pedantic’ and complained that law schools devalued or misunderstood legal history so much that lecturers avoided it like ‘an article infected with the plague’. Legal history, he concluded, would be an ‘inescapable casualty in the war of the syllabus’ so long as law schools remained ‘uncertain’ and suspicious of its place in the legal academy.⁹ Reflecting on the situation in Canada a decade after Downer’s bleak assessment, Graham Parker observed that law schools have always agreed that students should be taught something about legal history, but remained deeply uncertain about what, or why. His own ‘bitter experience’ teaching a broad survey course to first year LLB students who possessed no understanding of general history and little substantive legal knowledge led him to conclude that it was a pointless exercise for all concerned.¹⁰ In 2005, Ben Golder confidently asserted Australian law students ‘largely view legal history … as at best a charming irrelevance and at worst a painful imposition upon their time, as something to be endured whilst waiting for the real teaching of law to begin’.¹¹ Justice Michael Kirby, reminiscing in 2009 on his legal history instruction in Sydney in the late 1950s, recalled attending lectures that were mostly ‘tedious and unmemorable’, save for the inspiring ‘story of liberty’ narrative presented in the few classes on the English and American revolutions.¹²

Whether through commitment to an idealised yet vague notion of legal history studies as a civilising force to improve the character and general knowledge of law students, or due to a reluctance to sever it entirely during curriculum review, through either ideology or inertia, legal history endured in Australian law schools despite the concerns of many involved. Then, for reasons that have not been fully explored in accounts of the decline of legal history, the subject started to be edged out. Adelaide legal historian Wilfrid Prest observed that student interest in the subject—such as it was—had begun to flag by the 1960s, and by the 1970s, with the rise of Australian cultural nationalism, the heavy English bias in the conventional legal history syllabus alienated both students and academics.¹³ To measure the health of the subject, Prest conducted two surveys of Australian law schools, in 1982 and again in 2005.

As Prest readily admits, the survey results are at best ‘indicative and provisional rather than conclusive’ because the responses of law school deans may have misunderstood the purpose of the questions or had a very different understanding of what is entailed in historical study of the law rather than, for example, a few ‘background’ lectures about ‘foundations’ or ‘development’ of a doctrine or institution.¹⁴ The results are nevertheless alarming. Of the ten Australian law schools in existence in 1982, two offered no separate legal history course; three offered a compulsory subject that contained an element of legal history in the syllabus, although that element was not necessarily large; and five offered optional, later-year legal history subjects, four with low enrolments.¹⁵ The 2005 survey revealed an even more depressing picture. Of the ten law schools that participated in the earlier exercise, four did not teach legal history, and six offered a subject or subjects with some legal history content. Of the nineteen newer law schools, twelve offered no legal history subjects at all, and seven reported that legal history was a component of other subjects.¹⁶ The conclusion was inescapable: ‘there has been a marked contraction in the teaching of legal history since the 1980s, despite the legal history research boom, and the growth in both numbers and the size of university law schools’.¹⁷

An even bleaker picture emerges from our investigations into legal history offerings (as published in university websites and online handbooks) by Australia’s thirty-eight law schools in 2020. These results, too, must be taken as provisional rather than conclusive, because three websites functioned poorly and could not return meaningful information. Furthermore, since (unlike Prest’s surveys) the deans were not consulted, they did not have the opportunity to propose that foundational or introductory legal process courses we excluded from our tally in fact had genuine historical components. Nevertheless, the results are dismaying. Of the thirty-five law schools we were able to investigate, only four currently offer stand-alone legal history subjects, whether compulsory or elective. Two more teach subjects that incorporate some legal history content. Twenty-nine appear to teach no legal history at all. For scholars who care about legal history, this is deeply troubling.

Yet subject descriptions can disguise as well as reveal. The many later-year or final honours subjects with bland official titles like Advanced Legal Research or Legal Research Project may well offer students the opportunity to engage deeply with a legal history topic under the supervision of one of the growing number of legal academics who research and write legal history, but they have not turned up in our results. The legal history essays in this volume perfectly illustrate this point. They were all written by JD students taking the capstone subject Legal Research between 2014 and 2019. The titles of the subject ‘streams’—‘Magna Carta: History, Myth, Law’ and ‘Treason, Sedition, Heresy and Dissent: Political Trials in History’—are not recorded in the Handbook and do not register in any keyword search of the Melbourne Law School or University websites. A thorough and carefully calibrated inquiry into the actual content and depth of legal history teaching is thus necessary if we are accurately to establish the state of the discipline in the curriculum of Australian law schools at the present time.

What Is to Be Done?

A systematic proposal to enhance law school willingness to teach legal history would need to address the multiple factors that have contributed to the subject’s erasure from the Australian legal education landscape. We offer no diagnosis or cure here, other than to recognise the analyses of scholars and learned commentators who point to a range of causes, including: the commodification of legal education and the associated trend to present it as practical and vocational training, stripped of any intellectual content that cannot be immediately applied to a commercial purpose; the tyranny of audit culture and student teaching evaluations that make academics wary of offering difficult or non-vocational subjects; the reluctance of fee-paying students to take up subjects they imagine will be considered frivolous in the legal job-market; and, it must be admitted, the subject’s reputation for insularity and a narrow reliance upon internal legal source materials, in apparent ignorance of the newer and inter-disciplinary methods and approaches in historical scholarship more broadly.¹⁸

We also reiterate that this problem, too, awaits further (and necessarily historical) research. Such careful inquiry might find, for example, that a legal history course or teacher renowned by some students as irrelevant and tedious has been remembered by others as enriching and inspiring; that a subject was relegated to optional status and its teacher persuaded to move on not because the content was anachronistic and the delivery opaque, but because the syllabus was too radical or challenging; that although law schools once considered history an essential adornment, hardly any law teachers wanted to do the hard work of mastering historical content, and so teaching responsibility was pushed onto younger, more precariously employed and ill-prepared colleagues; or even that there was, and still is, an appetite among law students to study history, but the opportunities to do so are ill-timed or absent, and students lack the confidence to try.

Meanwhile, we suggest that legal history should be done. By that we mean not that law students should read what academics have written about past legal doctrines, institutions or practices, in the kind of introductory or survey courses that too often bemuse or bore pupils and frustrate teachers. Rather, we propose that students might be shown how to locate and interpret primary sources in order to find out more about something in the past that puzzles, concerns or inspires them. Rejecting defences of legal history’s value that rely upon its utility for lawyers, influential American legal historian Christopher Tomlins has written of the power of inspiration in lyrical terms:

Inspiration lies in the constellation that forms in the encounter between the informed mentalité of the observing scholar and the phenomenon that is observed, the past event or practice or idea that the scholar encounters. Inspiration transcends the temporal caesura that cuts present observation off from past phenomena. The inspiration that draws us to history is not located in the past at all. It is located in the present, in the conjunction between scholar and observed phenomenon that can only occur in the present.¹⁹

We quote this passage to endorse it, incorporating ‘student’ in the definition of ‘scholar’. Historians write about the past, but the audience they address is a present one and the motivation, the spark, the inspiration for the inquiry arises as a question in and for the present, too. But we would not so readily dismiss the argument for utility or application, which can sometimes sit profitably alongside inspiration. After all, highly successful Australian novelist Kerry Greenwood was inspired to write her Phryne Fisher historical detective series (subsequently adapted for television) through her engagement with legal history in the subject taught by Ruth Campbell at Melbourne.²⁰

There are many creative ways to teach legal history, and many earnest defences of the discipline.²¹ The pathway we offer here, and illustrate through the essays in this volume, is to create opportunities for students to use the Advanced Legal Research or final honours thesis subject to undertake an extended piece of legal history research and writing, so they can take the necessary time to develop historical research skills while also deepening their understanding of the legal matter under investigation. Law students come to the capstone subject in their final or penultimate semester, already adept at ‘thinking like a lawyer’; earlier historical training, if any, has often been bleached out. The key preliminary work for a legal history teacher is thus to challenge that carefully assembled skill, to make the familiar—a case report, a statute—strange, and to destabilise the taken-for-granted mental habit of thinking like a lawyer so students can wonder about new ways of interpreting their own and other people’s encounters with law in past and present societies. The authoritative sources of law for lawyers—decided cases, statutes—have to be read like any other historical document, critically, sceptically, and students have to learn to ask what else they need to find out in order to understand what legal documents, ideas, events and practices meant to people in the past and how these can be interpreted to speak to modern audiences.²²

Two of the chapters in this volume, authored by Matthew Psycharis and Phoebe Williams, were written for the ‘Magna Carta’ elective which was offered to coincide with the 800th anniversary of the charter in 2015. To prepare for seminar discussions, students were required to read medieval scholar Stephanie Trigg’s essay about the Australian copy of the Magna Carta as a ‘secular relic’, learned articles and popular commentary on official commemorative websites, some modern cases that invoke the charter, and, of course, read the full text of the document itself (in modern English).²³ They were then guided to develop individual research projects that investigated some of the different meanings that the Magna Carta has had for past societies, and how and why it has been invoked, remembered, misremembered, applied and annulled.

The other seven chapters, by Lisette Stevens, Samuel O’Connor, Xavier Nicolo, Alexandra Harrison-Ichlov, Jack Townsend, Simon Pickering, and Katharine Kilroy were written for the Political Trials elective. Students taking this legal research stream were introduced to some key scholarship about the concept of the ‘political trial’,²⁴ required to read closely a small number of texts of historical political trials—such as Charles I’s treason trial in 1649, James Naylor’s blasphemy trial in 1656, the application to ban Salman Rushdie’s Satanic Verses in 1990²⁵—and, as a practical exercise, to consider what questions they would ask, and what additional source materials they would need, if they were to explore the meanings of these events for the past societies in which they occurred, or their continuing resonance in the present. Some students generated project ideas from the rich online trials archive created by Douglas Linder;²⁶ others were drawn to a topic through their general knowledge, or a trial’s presentation in literature, cinema or television.

Accepting that it is unlikely for legal history to return as a compulsory subject, and probably unsatisfactory, for the reasons we have given above, for it to be taught in a comprehensive or survey manner, we present these papers by JD students in the Melbourne Law School’s capstone Legal Research subject as evidence that students have a hunger to do some legal history and that it can be both academically rewarding and personally enriching for them to do so.

Notes

1In 2011 Christopher Tomlins counted the number of US law professors with an expressed interest in legal history and celebrated the fact that ‘History is busting out all over the US law school world’: Christopher Tomlins, ‘Review Essay—The Consumption of History in the Legal Academy: Science and Synthesis, Perils and Prospects’, (2011) 61(1) Journal of Legal Education 139, 139. The field has become even more vibrant since then. Some leading scholarly associations, journals and blogs by jurisdiction include—America: American Society for Legal History(ASLH) (founded in 1956), its quarterly journal Law and History Review and the Legal History Blog http://legalhistoryblog.blogspot.com/ ; Canada: the Osgoode Society for Canadian Legal History (founded in 1979) and Canadian Legal History Blog http://osgoodesocietycanadianlegalhistory.blogspot.com/ ; Great Britain: the Biennial British Legal History Conferences founded in 1972, and the Journal of Legal History launched eight years later; Australia and New Zealand: the Australasian Law and History Conference, first held at La Trobe University in Victoria in 1982 and the Australian and New Zealand Law and History Society which grew from these conferences in 1993, and the journals Australian Journal of Legal History, Legal History and law&history and the blog at https://anzlhs.org/ . There are too many monographs and volumes to list, and it would be invidious to mention only a few.

2Quoted in ‘A Short History of the Law School’, Faculty of Law Handbook (The University of Melbourne, 1963) 7–14 at 10. The ‘Short History’ was reproduced in the Handbook annually from 1963 to1974.

3‘A Short History’, above n 2, 11.

4This requirement was in place from at least 1887: The Melbourne University Calendar 1887 , Regulations, Chapter VI, p 101.

5W Wesley Pue, ‘Educating the Total Jurist?’ (2005) 8 Legal Ethics 208, especially 212–13.

6K O Shatwell, ‘The Study of Legal History’ (1951) 2(1) University of Western Australia Law Review 94, 94.

7Digitised copies of The University of Melbourne Law School Handbooks from 1922 to1995 can be viewed at < https://digitised-collections.unimelb.edu.au/handle/11343/140 >.

8Shatwell, above n 6, 94–95; Bohdan Bilinsky, ‘Shatwell, Kenneth Owen (1909–1988)’ (2012) Australian Dictionary of Biography , National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/shatwell-kenneth-owen-15518/text26730 , accessed online 15 May 2020.

9L J Downer, ‘Legal History—Is it Human?’ (1963) 4 Melbourne University Law Review 1, 6, 8–9.

10 Graham Parker, ‘The Masochism of the Legal Historian’ (1974) 24 (3) University of Toronto Law Journal , 279, 280–81.

11 Ben Golder, ‘Book Review’ (2005) 27(1) Sydney Law Review 181, 181.

12 Michael Kirby, ‘Teaching Legal History in Australia: Decline and Fall?’ (2009) 13 Legal History 1, 4–5.

13 Wilfrid Prest, ‘Legal History in Australian Law Schools: 1982 and 2005’ (2006) 27(2) Adelaide Law Review 267, 270.

14 Prest, above n 13, 273.

15 Prest, above n 13, 270.

16 Prest, above n 13, 273.

17 Prest, above n 13, 275.

18 Shatwell, above n 6; Parker, above n 10; Prest, above n 13, 275–6; Kirby, above n 12; Pue, above n 5 and ‘Globalisation and Legal Education: Views from the Outside-In’ (2001) 8(1) International Journal of the Legal Profession 87; Margaret Thornton, ‘The Demise of Diversity in Legal Education: Globalisation and the New Knowledge Economy’ (2001) 8(1) International Journal of the Legal Profession 37 and ‘Among the Ruins: Law in the Neo-Liberal Academy’ (2001) 20 Windsor Yearbook of Access to Justice 3; Robert W Gordon, ‘Introduction: J Willard Hurst and the Common Law Tradition in American Legal Historiography’ (1975) 10(1) Law & Society Review 9, ‘Critical Legal Histories’ (1984) 36 Stanford Law Review 57, and ‘Forward: The Arrival of Critical Historicism’ (1996–7) (49) Stanford Law Review 1023.

19 Tomlins, above n 1, 164–5.

20 Judy Campbell and Colin Campbell, ‘Peace, Justice Loomed Large for Lecturer’, Obituaries, The Sydney Morning Herald , 29 March 2013; see also the Tribute on the Melbourne Law School Alumni webpage: < https://law.unimelb.edu.au/alumni/mls-news/issue-9-june-2013/vale-dr-ruth-campbell >.

21 Too many to itemise here. In addition to the articles already cited above, a necessarily selective list includes: Markus D Dubber and Christopher Tomlins, eds, Oxford Handbook of Legal History (Oxford University Press/Oxford Handbooks Online, 2018); Alfred L Brophy, ‘Introducing Applied Legal History’ (2013) 31 Law and History Review 233; Elizabeth Dale, ‘It Makes Nothing Happen: Reasons for Studying the History of Law’ (2009) 5, Law, Culture and the Humanities 3; Diane Kirkby, ‘Law[yer]s’ History, Conversationally Speaking’ (2002) 7 Australian Journal of Legal History 47; Jim Phillips, ‘Why Legal History Matters’ (2010) 41(3) Victoria University of Wellington Law Review 293; Karen M Tani, ‘Poverty Law 101: The Law and History of the US Welfare State’ (2012) 39(1) Fordham Urban Law Journal City Square 1.

22 Articles by Gordon, above n 18, and Brophy, above n 21, are always assigned reading for the first seminar.

23 Stephanie Trigg, ‘Parliamentary Medievalism: The Australian Magna Carta as Secular Relic’ (2011) Australian Literary Studies 20. Commemorative websites include Magna Carta Trust < https://magnacarta800th.com/ > and the Library of Congress Online Exhibition Magna Carta: Muse and Mentor . Cases include Jago v District Court of NSW [1989] HCA 46 and Antunovic v Dawson [2010] VSC 377. A modern translation of the Magna Carta appears on the British Library website: .

24 The starting point being L Bilsky, ‘Political Trials’, in Neil J Smelser and Paul B Baltes, eds, International Encyclopedia of the Social and Behavioral Sciences (Elsevier, 2001), 11712–17.

25 ‘The Trial of Charles Stuart, King of England, before the High-Court of Justice, for High Treason’, in A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanours from the Reign of Richard II to the Reign of King George II , in Six Volumes, the Third Edition, with annotations (London, 1742); Proceedings in the House of Commons against James Nayler, for Blasphemy (1656) 5 St Tr 802; R v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury (1990) 87 ILR 418.

26 Douglas O Linder, Famous Trials < http://www.famous-trials.com/ > and < http://law2.umkc.edu/faculty/projects/ftrials/trialslite51-100.html >.

Meeting More’s Challenge

How the Magna Carta Helped Build a Robust Lex Anglicana

Matthew Psycharis

When Thomas More went to the scaffold in June 1535, his death not only heralded the ascendancy of the new Ecclesia Anglicana, it also marked a break with a centuries-long shared legal history between the Continent and England. Ecclesiastical courts, applying Roman canon law, had long been a popular forum for dispute resolution.¹ Litigants enjoyed a right of appeal to Rome.² English and continental lawyers would share treatises on the canon law, and English sovereigns would seek legal opinions on matters of public law from the great continental universities.³ The language of English law was cosmopolitan, with legal French and Latin reflecting those origins and sources of the English law which were shared with the Ius Commune.⁴ Canon law and continental thought were seen as wellsprings of justice.⁵

But this legal culture did not last. It is the fallout of this break with tradition that causes the central problem of this chapter: partially free of juristic noise from the Continent, the Lex Anglicana⁶ was free to develop its own identity in new ways. But, at least in the years immediately before and after the Henrician Reformation, the English law seemed weak and incoherent. Before his death, More had challenged England’s temporal lawyers to identify the proper basis of England’s system of temporal, common laws:

the custom of the whole Christian people … has the force of a more powerful law than has any custom [or statute] of any people in temporal matters, since the latter relies only on human agreement, [while] the former is procured and prospers by divine inspiration.⁷

This charge to identify the proper basis of English law is what I will call ‘More’s Challenge’. Much has been written on how the English law adapted to its new circumstances. In a recent book, Sobecki suggests that a humanist legal culture, developed in the Inns of Court, strove to impose uniformity of reasoning and interpretation on England’s laws.⁸ David Harvey has documented how the advent of the printing press further helped bring uniformity of meaning and interpretation to the laws of the early-modern state.⁹ And Schauer, Williams, Baker and others have identified how the increasing use of precedent in mid-sixteenth-century courts helped add consistency to legal interpretation.¹⁰ But in all of these analyses, the role of the Magna Carta (hereafter referred to as the ‘Charter’)¹¹ remains largely unexplored. The traditional assumption is that the Charter was little discussed and seldom applied in the Reformation period. This chapter challenges that assumption, and interrogates the following premise: that in the fields of legal thought, print and practice, the Charter had an influential role to play in the development of English law in the period of 1520–60.

In interrogating this premise, it will first be argued that (the few) previous surveys of the Charter in this period have failed to properly consider the Tudor context: that is, we cannot look for uses of the Charter according to its modern status as a ‘liberty document’. Rather, we must appreciate that the early-Tudor political philosophy was medieval in character.

Second, in recognising this, it is possible to better appreciate what the concerns of Tudor lawyers were. A model is developed, and three principal concerns are identified: (a) that there were no coherent rules about the relative priority of statute, custom and maxim (i.e. priority amongst sources of law and authorities); (b) that there were no standard legal texts; and (c) that by virtue of this, the law had become uncertain and inaccessible.

Third, it will be argued that in responding to these concerns, a new humanist legal ‘theology’ emerged out of the old medieval polity, giving an answer to More’s Challenge. The Charter played the role of canonical scripture in the development of this schema of law.

Fourth, the importance of the Charter potentially helped, in some way, to spur the first publication of statute books, disseminating the ‘Gospel’ of the new temporal legal theology. While it is not argued that the Charter was singly causative of all that happened to produce a robust Lex Anglicana, it is argued that the story of the Charter is interwoven with the great changes in legal culture that occurred in this period. In this way, the fate of the Charter mirrored the role played by standard texts in the development of the new Ecclesia Anglicana.

The Traditional View—The Charter as an Impotent Temporal Law

The traditional view is that Thomas More went to the scaffold a man soon to be vindicated.¹² The Charter—that great expression of lay custom, ‘the first statute’, the liberty document—went unused, and was impotent to prevent the perceived abuses that took place in the half-century following 1534.¹³ This is an old view. In 1892 Bémont noted that ‘Parliament approved docilely the political and religious coups d’états of the sixteenth-century, and the Great Charter rested in the shade’.¹⁴ In their treatments of the history of the Charter, Cross,¹⁵ Thompson¹⁶ and Maitland¹⁷ have made similar observations.

The ‘obscurity of the Charter’ is a position that has been reiterated in more recent scholarship,¹⁸ and it is a view that is, at least at face value, empirically supported. The journal for the first parliament of Henry VIII records three readings and unanimous approval of a bill ‘pro Libertatibus Ecclesie Anglicanae’ (‘for the freedom of the English Church’—Charter, ch 1).¹⁹ But in subsequent records of Henry’s parliaments, there is no mention of the liberty of the Church (Charter, ch 1) or the liberty of the subject (Charter, ch 29).²⁰

This trend is also observed in the case law. I have surveyed the reported cases from the reigns of Henry VIII, Edward VI, Mary I and Elizabeth I (until her excommunication in 1570).²¹ What is remarkable is that, over a half-century characterised by social and religious change, the Charter is not once cited in defence of liberty of the subject.²² (For the cases, see Appendix I to this chapter.)

The uses of the Charter (or lack thereof) reflect a general pattern in early Tudor society. A study conducted by John Guy shows that, in 1521–30, the average annual case load of the common law courts (King’s Bench and Common Pleas) was at 35 per cent of the average case load in the 1450s.²³ In 1531–40, it was at 60 per cent of the base 1450s load.²⁴ Something had made the common law courts undesirable or inaccessible to litigants. Paradoxically, at the very time when the common law stood as one of the few safeguards to individual liberty, it and the Charter seemed to dwindle in use and relevance.

A Riposte to Tradition—Reframing the Problem

It seems, then, that More was right. The temporal law could do little in the face of perceived Henrician terror, and it would fall upon the people of later centuries to place the Charter within the canon of modern English constitutionalism.²⁵ But this conclusion can be challenged.

First, while the modern literature is correct in observing that the Charter was not used as a liberty instrument during this period, such an observation is