Published online by Cambridge University Press: 15 February 2010
The printing press was recognized by early modern commentators, just as it has been by historians, as an important invention that had profound effects on the arts and sciences. Legal historians have not missed the potentially transformative effects of printing—not only might lawyers found heterodox arguments upon the precise words of printed texts, rather than relying upon the “common learning,” but the absence of texts from the “common learning” in the printed canon meant legal historians themselves labored for many years under a misapprehension as to the nature of medieval English law. However, little work has been undertaken on the precise impact of printing upon the English legal profession, particularly in the shorter term. Common lawyers, particularly in the sixteenth century, were a group who increasingly relied upon, and cited, textual material as the foundation of their arguments on all points of law. Over the course of the sixteenth century, lawyers came increasingly to rely upon prior cases, and particularly prior judged cases, as the basis of legal arguments and of the correctness of those arguments. Advocates and judges were all faced with a large, and still growing, body of manuscript material, and a sizeable collection of printed works. Attitudes towards printed material is an important topic for historians of early modern law for suggesting which sources of legal ideas were given more prominence in the period.
1. For early modern comments on the effects of the printing press, see Eisenstein, E. L., The Printing Press as an Agent of Change (Cambridge: Cambridge University Press, 1979), 20–21Google Scholar. A. D. S. Johns has suggested that this view of the press was not universally accepted in early modern Europe. For a summary of his views, see Johns, A. D. S., “How to Acknowledge a Revolution,” American Historical Review 107 (2002): 121–22CrossRefGoogle Scholar, http://www.historycooperative.org/journals/ahr/107.1/ah0102000106.html (accessed February 26, 2009).
2. Ibbetson, D. J., “Legal Printing and Legal Doctrine,” Irish Jurist (N.S.) 35 (2000): 346Google Scholar; and Ibbetson, D. J., “Case-Law and Doctrine: A Historical Perspective on the English Common Law,” in Richterrecht und Rechtsfortbildung in der Europäischen Rechtsgemeinschaft, ed. Schulze, R. and Seif, U. (Tübingen: Mohr Siebeck, 2003), 32Google Scholar.
3. See I. S. Williams, “Legal Reasoning and Legal Culture, c.1528–c.1642” (PhD thesis, University of Cambridge, 2008), 69–78.
4. The literature is vast. General discussions of the topic include: Eisenstein, Printing Press; Eisenstein, E. L., “An Unacknowledged Revolution Revisited,” American Historical Review 107 (2002): 87–105CrossRefGoogle Scholar, http://www.historycooperative.org/journals/ahr/107.1/ah0102000087.html (accessed February 26, 2009); Febvre, L. and Martin, H.-J., The Coming of the Book (London: NLB, 1976)Google Scholar; Johns, A. D. S., The Nature of the Book: Print and Knowledge in the Making (Chicago: University of Chicago Press, 1998)CrossRefGoogle Scholar; Johns, “How to Acknowledge a Revolution”; Love, H., Scribal Publication in Seventeenth-Century England (Oxford: Clarendon, 1993)CrossRefGoogle Scholar; McKitterick, D., Print, Manuscript and the Search for Order, 1450–1830 (Cambridge: Cambridge University Press, 2003)Google Scholar. Ross has produced a study of the attitude of common lawyers towards the printing of legal materials and the concomitant risk that nonspecialists would obtain access to them (Ross, R. J., “The Commoning of the Common Law: The Renaissance Debate over Printing English Law, 1520–1640,” University of Pennsylvania Law Review 146 : 323–461)CrossRefGoogle Scholar. That is a very different issue to that under discussion here, which is concerned only about the role of print within the common law and between common lawyers.
5. A. Cromartie has recently discussed the importance of legal ideas for an understanding of political debate before 1642 (Cromartie, A., The Constitutionalist Revolution (Cambridge: Cambridge University Press, 2006)CrossRefGoogle Scholar, and A. Zurcher has examined the use of legal language in the works of Spenser to suggest new, more historically accurate, interpretations of those texts (Zurcher, A., Spenser's Legal Language: Law and Poetry in Early Modern England (Cambridge: D. S. Brewer, 2007)Google Scholar.
6. See, especially, notes 84–102 and text, below.
7. For example, in Shapiro, B. J., A Culture of Fact, England, 1550–1720 (Ithaca, N.Y.: Cornell University Press, 2000)Google Scholar.
8. R. J. Serjeantson, Testimony, Authority and Proof in Seventeenth-Century England (PhD thesis, University of Cambridge, 1997). Shapiro acknowledges the overlap between ideas of proof in the common law and the rhetorical tradition in Shapiro, B. J., “Classical Rhetoric and the English Law of Evidence,” in Rhetoric and Law in Early Modern Europe, ed. Kahn, V. and Hutson, L. (New Haven, Conn.: Yale University Press, 2001)Google Scholar.
9. Baker, J. H., “Why the History of English Law Has Not Been Finished,” Cambridge Law Journal 59 (2000): 79CrossRefGoogle Scholar, http://journals.cambridge.org/action/displayIssue?jid=CLJ&volumeId=59&issueId=01&iid=1442 (accessed February 26, 2009).
10. The rediscovery of the common learning has been almost entirely the work of Baker, with some early work by Thorne. See, for example, Baker, J. H., The Oxford History of the Laws of England. Vol. VI, 1483–1558 (Oxford: Oxford University Press, 2003): 467–72Google Scholar.
11. On the decline in education at the Inns of Court, and the change in the nature of the readings see, for example, Prest, W. R., The Inns of Court under Elizabeth and the Early Stuarts 1590–1640 (London: Longmans, 1972), 119–21Google Scholar; Baker, J. H., ed., Readers and Readings in the Inns of Court and Chancery, Publications of the Selden Society Supplementary Series 13 (2000): 236–37Google Scholar; and Ibbetson, D. J., “Common Law and Ius Commune,” in The Selden Society Lectures, 1952–2001 (Buffalo, N.Y.: W. S. Hein, 2003), 693–94Google Scholar. Some writers, such as Mirow, suggest that the education at the Inns of Court was still of high quality—the readings on recent statutes provided information on current law at a sophisticated level (Mirow, M. C., “The Ascent of the Readings: Some Evidence from Readings on Wills,” in Learning the Law: Teaching and the Transmission of Law in England, 1150–1900, ed Bush, J. A. and Wijffels, A. (London: Hambledon, 1999)Google Scholar). This may be true, but by moving away from the fifteenth-century canon of readings, and towards a freer choice, the system of truly “common” learning declined. Although the Inns may have still served a useful educational function, the education was no longer directed to providing a core knowledge and understanding among all students. On the core readings, see S. E. Thorne's introduction to Readings and Moots at the Inns of Court in the Fifteenth Century, ed. Thorne, S. E., Publications of the Selden Society 71 (1952): lxvii–lxviiiGoogle Scholar.
12. See Ibbetson, “Case-Law and Doctrine,” 32.
13. On this medieval tradition, see Abbott, L. W., Law Reporting in England, 1485–1585 (London: Athlone, 1973), 19Google Scholar. References to the “books” continued but seem to have meant exclusively printed books. See notes 41–51 below and text.
14. One collection of moot cases from the 1520s (Bodleian Library Rawlinson Manuscript C.707 (unfoliated)) does contain marginal references to what are probably printed law books (see, e.g., cases 14, 33, 69 and 75). The volume is exceptional when compared to other volumes of moots from the same period (such as British Library Additional manuscript (hereafter BL.MS.Add.) 35939) and it is possible that the cases were a later addition to the text.
15. Baker, J. H., An Introduction to English Legal History, 4th edition (London: Butterworths, 2002), 198Google Scholar.
16. Wimbish v. Tailbois 1 Plowden 58-58v (1550).
17. The dictionary is Rastell, J., Exposiciones terminorum legum anglorum (London: John Rastell, 1523)Google Scholar. Abridgements were produced by Statham (Statham, N., Abridgment des libres annales [Rouen: Guillaume le Talleur for Richard Pynson, 1490]Google Scholar) and, more successfully, by Fitzherbert (Fitzherbert, A., La graunde abridgement [London: John Rastell and Wynkyn de Worde, 1516]Google Scholar).
18. On the grant of the patent see Baker, J. H. “The Books of the Common Law,” in The Cambridge History of the Book in Britain: Volume III, 1400–1557, ed. Hellinga, L. and Trapp, J. B. (Cambridge: Cambridge University Press, 1999), 427–29Google Scholar.
19. Tottell, the first patentee, was not a lawyer. Some of the more innovatory of the early printed law books had been produced by the Rastells, who combined legal training with printing. Baker has observed that law printers reprinted the same printed works, rather than different manuscripts. In some instances, this led to texts that were unusual in the manuscript tradition becoming the standard printed edition (Baker, Oxford History of the Laws of England, 494 and 507).
20. Staunford, W., An Exposicion of the Kinges Prerogative (London: Richard Tottell, 1567)Google Scholar is dated by D. E. Yale as having been written in 1548 (Yale, D. E., “‘Of No Mean Authority’: Some Later Uses of Bracton,” in On the Laws and Customs of England, Essays in Honor of Samuel E. Thorne, ed. Arnold, M. S., Green, T. A., Scully, S. A., and White, S. D. (Chapel Hill: University of North Carolina Press, 1981)Google Scholar, 383n14.
21. Mirow, “Ascent of the Readings,” 242–46.
22. Littleton, T., Litletons Tenures (London: Richard Tottell, 1557)Google Scholar, title page. This proclamation is missing from some of the surviving copies. A copy in the British Library includes this information, but those available through Early English Books Online do not. See Bennett, , English Books and Readers, 1475–1557 (Cambridge: Cambridge University Press, 1952), 79–80Google Scholar, for the text.
23. Littleton, T., Les tenures de Monsieur Littelton (London: Richard Tottell, 1567)Google Scholar, title page.
24. On references to civilian material in argument in the period under discussion here, see Williams, Legal Reasoning and Legal Culture, 115–33.
25. On attorneys in early modern England, see Brooks, C. W., The Pettyfoggers and Vipers of the Commonwealth (Cambridge: Cambridge University Press, 1986)CrossRefGoogle Scholar. It seems probable that attorneys would have relied more upon printed texts than manuscripts: Attorneys were not typically members of the group(s) within which manuscripts circulated, although this would not have prevented them obtaining copies of the manuscripts produced by professional scribes.
26. Bacon, F., “Proposition Touching Amendment of Laws,” in The Works of Francis Bacon, vol.13, ed. Spedding, J., Ellis, R. L., and Heath, D. D. (London: Longmans, 1857–74), 65Google Scholar.
27. Coke, E., Les Reports de Edward Coke (London: Thomas Wight, 1601)Google Scholar, sig.iii-iiiv and Coke's letter dedicatory to Lord Buckhurst accompanying a manuscript report of Shelley's Case (1581), Cambridge University Library Manuscript (hereafter CUL.MS.) Dd.13.24, f.51. The only difference between the earlier manuscript and the later printed text is that the manuscript has the word “case” instead of “Judges.” Coke echoed his concern about the fallibility of human memory in the context of the proof of facts in legal disputes in The Countess of Rutland v. The Earl of Rutland 5 Co.Rep. 26v (1604), where he made it clear that written evidence would generally be overcome by the “uncertain testimony of slippery memory.” Shapiro considers there to have been a general preference for written records over witness testimony because of the perceived fallibility of human memory (Shapiro, Culture of Fact, 12), although the only evidence provided is from the Restoration.
28. Mary Portington's Case 10 Co.Rep. 37 (1613). Ibbetson has also raised the possibility of print enabling lawyers to rely upon text, rather than shared knowledge, thereby enabling heterodox ideas to develop (Ibbetson, “Legal Printing and Legal Doctrine,” 346). Evidently this discussion relates to Eisenstein's rejection of an earlier view that print merely reproduced (and thereby reinforced) earlier ideas (Eisenstein, Printing Press, 35 and 71). As will be seen below, at least some lawyers quite clearly used print in just such a conservative manner.
29. For evidence that common-law books were unusually reliable for the period, see notes 75–80 below and text.
30. Bennett suggests that competition between the early law printers led to updating of works to reflect new developments (Bennett, English Books and Readers, 77). However, the discussion only considers statutory material, which was subject to a different patent and was updated throughout the sixteenth century.
31. On the development of the tort of defamation, see Helmholz's, R. H. introduction to Select Cases on Defamation to 1600, ed. Helmholz, R. H., Publications of the Selden Society 101 (1985): xi–cxiGoogle Scholar.
32. See Dyer, J., Les Reports des Divers Select Matters & Resolutions (London: W. Rawlins, S. Roycroft, and M. Flesher, 1688)Google Scholar, “La Table al Reportes del le Seigneur Dyer,” sub. Action sur le Case. These cases total 109 lines of text, equivalent to around two and a half folio sides in a volume of 377 folios!
33. For example, Sir William Waldegrave v. Agas Cro.Eliz. 192 (1590), where Thomas Egerton relied upon Broughton v. Bishop of Coventry and Lichfield (1584), a case that survives in a number of manuscripts (see Ibbetson, D. J., A Historical Introduction to the Law of Obligations [Oxford: Oxford University Press, 1999], 119n140Google Scholar).
34. Baker, J. H., “English Law Books and Legal Publishing,” in The Cambridge History of the Book in Britain: Volume IV, 1557–1695, ed. Barnard, J. and McKenzie, D. F. (Cambridge: Cambridge University Press, 2002), 475Google Scholar.
35. Ibbetson, D. J., “Report and Record in Early-Modern Common Law,” in Case Law in the Making, the Techniques and Methods of Judicial Records and Law Reports, vol. 1, ed. Wijffels, A. (Berlin: Duncker & Humblot, 1997), 64Google Scholar. Ibbetson's statistics do not include any indication of the size of the sample, making direct comparisons difficult.
36. The material consulted was taken from CUL.MS.Gg.ii.19 and covered 109 folio sides. In addition to the reduced length in comparison to the sample from Plowden's Commentaries, the hand in the manuscript is much larger than the printed text in Plowden. The slightly lower ratio of printed material to unprinted in the 1630s is a function of the research methodology: Ibbetson counted references to printed cases and identifiable manuscript references (such as the reports of Bendlowes), but provides no statistics on casuistic material that cannot be attributed to either print or manuscript sources (for example, references to a lawyer's memory). My survey distinguished only between cases associated with a printed text and those that cannot be so attributed, thereby grouping the references to identifiable manuscript sources with material of unknown or nontextual provenance.
37. Ibbetson, D. J., “Law Reporting in the 1590s,” in Law Reporting in Britain, Proceedings of the Eleventh British Legal History Conference, ed. Stebbings, C. (London: Hambledon, 1995), 84–85Google Scholar.
38. Dodderidge provides some evidence of manuscript circulation. He references a Corbett's Case (1595) in his commonplace, British Library Hargrave Manuscript (hereafter BL.MS.Harg.) 407, f.53, noting that “the report of this case was given to me by Master Coke Attorney General of the Queen out of the book of the reports.”
39. Sir Edward Dimmocke's Case (1609) BL.MS.Harg. 33, f.22v.
40. See note 70 below.
41. Holwood v. Hopkins (1600) in Helmholz, Select Cases on Defamation, 91.
42. The difficulties in understanding the record were recognized by Edward Coke, who described it as of “less perspicuity” than law reports (Coke, E., Le Tierce Part des Reports de Edward Coke (London: Company of Stationers, 1610)Google Scholar, sig.Ciiv). On the continuing difficulties in using the record see Baker, “History of English Law,” 70–73 (the record contains “thousands of miles of abbreviated Latin … their enormous bulk is counterbalanced by severe verbal economy,” which “studiously bypassed the debates, the compromises and the intellectual processes which governed the moves or the decisions,” observing that “[o]ur plea roll scholar needs a strong arm, a flexible neck and back, an immunity to dust and soot, working knowledge of Victorian knots, an ability to speed-read abbreviated Latin (if possible, upside-down), and above all a due sense that that not every word of a record is true or factually meaningful.”).
43. See Williams, English Legal Reasoning, 82–86.
44. See I. Williams, “Early Modern Judges and the Practice of Precedent” in Judges and Judging in the History of the Common and Civil Law, Proceedings of the 18th British Legal History Conference, ed. J. Getzler and P. Brand (forthcoming).
45. Walmesley's remark does not just utilize the medieval language of the “books” to refer to print, it is also the first occasion where the medieval language of “precedent” (which was otherwise confined to references to the record) was applied to law reports (for more detail see Williams, “Early Modern Judges”).
48. For an example of a manuscript report being similarly rejected, see Pillesworth v. Feake (1602) BL.MS.Add. 25203, f.480, where Anderson CJ claimed that a King's Bench case was not law.
49. For James, see note 58 below.
50. James v. Hayward CUL.MS. Gg.ii.19, ff.152v and 153 (1630). The case concerned whether a gate across the highway was a nuisance or not, and therefore whether the defendant could abate the nuisance by dismantling the gate or would be liable in trespass for so doing. Croke was of the view that the gate was not a nuisance. He is reported as saying that “I am confident that there is no book in law that an open gate is a nuisance” (f.152v) and that a passerby could open the gate, but not dismantle it as “it does not appear by the said book or any other” that this could be done (f.153).
51. The Diary of Sir Richard Hutton, 1614–1639, ed. W. R. Prest, Publications of the Selden Society Supplementary Series 9 (1991): 89 and 93. Thomas Coventry had been a prolific manuscript reporter around 1600. There are many surviving copies of his reports, which are some of the fullest for the period; see Ibbetson, D. J., “Coventry's Reports,” Journal of Legal History 16 (1995): 281–303CrossRefGoogle Scholar, http://www.informaworld.com/smpp/content~content=a780937374~db=all~order=page (accessed February 26, 2009).
53. For Hobart, see Henry E. Huntington Library Ellesmere Manuscript (hereafter HEH.MS.El.) 2007 and for Julius Caesar HEH MS.El. 2924.
54. HEH.MS.El. 2011, f.3v. I hope to address the role of these arguments in the extrajudicial debates over prohibitions in a forthcoming article.
55. HEH.MS.El. 2008, f.2.
56. HEH.MS.El. 2008, slip between ff.1 and 2.
57. HEH.MS.El. 2010.
58. British Library Lansdowne Manuscript 160, f.414 (“my lord Chancellor's books are to be preferred before the lord Cokes precedents”).
59. Prest, Diary of Sir Richard Hutton, 12.
60. Such distaste for the use (or abuse) of the manuscript record is also evident in Richard Hutton's obituary for William Noy where Hutton observed that Noy had introduced novelties “pretended to be grounded upon ancient records” (Prest, Diary of Sir Richard Hutton, 98). Unlike the other examples here, Hutton distrusted Noy's use of manuscripts to support royal policy, rather than (as in the case of prohibitions) to frustrate it.
61. Eisenstein, Printing Press, 71–80. Eisenstein suggests that even where printing merely reproduced old works, this could still lead to new ideas. The attempts by lawyers here to utilize the printing of old works as the basis for preventing the success of new ideas would indicate that the proposed effect of the press was not inevitable or necessarily universal. Febvre and Martin's argument that printing did not necessarily hasten the transmission of new knowledge, and instead could give “authority to seductive fallacies” is more pertinent, but still not directly relevant (Febvre and Martin, Coming of the Book, 278) as there is still no recognition that the fact of printed status was used as a justification for the “authority” of older ideas as seems to be the case in the common law.
62. Bacon, “Proposition Touching Amendment of Laws,” 65.
63. The idea of law printers as agents of “unchange” (albeit in the eighteenth-century context) has been put forward by Baloch, T. A., “Law Booksellers and Printers as Agents of Unchange,” Cambridge Law Journal 66 (2007): 389–421CrossRefGoogle Scholar, http://journals.cambridge.org/action/displayIssue?jid=CLJ&volumeId=66&issueId=02&iid=1183592 (accessed February 26, 2009). Baloch's concern is with the conservatism of the legal printers and booksellers, particularly with regard to matters of arrangement and classification, with lawyers developing novel ideas beyond the printed material. The focus is therefore different from the argument presented here, which is instead concerned with the users of printed texts, rather than their manufacturers. The attitude towards print was certainly different for some lawyers in mainland Europe. In the early modern ius commune, texts from one territory could be used in another, leading to an (over)abundance of sources that caused some lawyers to suggest a preference for locally produced materials, even a ban on the importation of law books (See Ibbetson, “Common Law and Ius Commune,” 690–91 and 698–99). In Europe, therefore, lawyers sought to restrict the use of printed materials due to the massive supply.
64. The most notorious example of this in the sixteenth century is the changing attitude to uses in the 1520s. The common lawyers had seen uses as part of the common law, but a minority of lawyers (such as Thomas Audley) suggested an alternative position, which was ultimately accepted by the judges after direct royal intervention (see Baker, Oxford History of the Laws of England, 665–72). For James's approval of the focus on print in the prohibitions dispute, see above note 58 and text. Noy's subsequent use of manuscript material (see note 60 above) to provide legal justification for Crown policies perhaps explains why the preference for print was not pushed further—the Crown was able to work successfully within the existing norms of common law argument and so did not need to change them.
65. Baker, Introduction to English Legal History, 334.
66. Johns, Nature of the Book, 30–31.
67. Bacon, “Proposition Touching Amendment of Laws,” 69.
68. Browne v. Meredith (1600) BL.MS.Add. 25203, f.283v is an example of a case from memory being rejected. See above, nn.47–48 and text, for other cases being rejected.
69. Dumpor's Case 4 Co.Rep. 120 (1603).
70. Sir Edward Dimmocke's Case (1609) BL.MS.Harg. 33, f.22v.
71. Eisenstein, “Unacknowledged Revolution Revisited,” 92.
72. See a proclamation for jurors drafted by Francis Bacon, where it is stated that “the discerning and credit of testimony” is left “wholly to the juries' consciences and understanding” (cited in Holdsworth, W. S., A History of English Law, vol.1 (London: Methuen, 1938): 333n6Google Scholar.
73. Johns, Nature of the Book, 36.
74. Ibid., 30. The language of credit had a wider meaning of reliability in relation to all witnesses, whether textual or not.
75. On Yetsweirt in this regard, see Twemlow, , “Note on a Manuscript of Year-Books, Edward II and III, in the Bibliothèque Nationale,” English Historical Review 13 (1898): 80n2Google Scholar, http://ehr.oxfordjournals.org/content/volXIII/issueXLIX/index.dtl (accessed February 26 2009). Yetsweirt did the same for her printing of the year books of Edward V through Henry VIII in 1597 (Anni, Regum, Edwardi Quinti, Richardi Tertii, Henrici Septimi, et Henrici Octaui [London: Jane Yetsweirt, 1597]). See Ibbetson, “Legal Printing and Legal Doctrine,” 345–46, for some possible ramifications of standardization in the books. Johns observes that credit could not be attributed to a book on the basis of appearance alone, but his point is concerned with the variants found in even “the most lavishly produced volumes” (Johns, “How to Acknowledge a Revolution,” 120–21) rather than elements of the appearance of printed volumes which might suggest reliability.
76. An immediate example of the lack of change in the year books is found in Twemlow, “Note on a Manuscript of Year-Books,” 80n2, where it is observed that Yetsweirt's claim to have improved the text is undermined by it being identical to a prior printing! The year book of Henry VII, printed by Tottell in 1555, 1559, and 1563 has identical foliation in all printings, but the 1599 printing of Plowden used the title page to state that the sole difference to the earlier printing was the expanded marginal notes.
77. On the recognized problems with errors in printed texts around this period, see McKitterick, Print, Manuscript, 97–151. Readers of the first printed edition of Bracton would have been aware of just such difficulties because the printer drew them to their attention! To my knowledge it is the first common-law book to include a list of errata (H. de Bracton, De Legibus & Consuetendibus Angliae (London: Richard Tottell, 1569), sig. qiiiv-qiv).
78. Information supplied by J. H. Baker.
79. For example, the title pages to the year books of Henry IV printed in 1553, 1563, and 1576, and the 1562 printing of the year book of Edward III. See Bennett, English Books and Readers, 78, for an indication that the early law printers, when operating in competition with each other, would not only seek to praise their own work but also actively disparage that of others. Tottell's printing of Magna Carta in 1556 is perhaps the last example of this, where Tottell praises his own output in comparison with all his predecessors. H. J. Byrom notes that this was probably a deliberate marketing strategy against a competing edition produced only a few months earlier; see Byrom, H. J., “Richard Tottell—His Life and Work,” The Library (4th Series) 8 (1927): 206–9Google Scholar, http://library.oxfordjournals.org/cgi/reprint/s4-VIII/2/199 (accessed February 26, 2009). Such disparagement would condemn the earlier law books, but it disappears once Tottell's monopoly was firmly established, leaving readers to find only the praise.
80. Johns observes that “when people did refer to enhanced reliability, it was often in the face of direct evidence to the contrary” (Johns, Nature of the Book, 31). Although printed texts may not have been especially reliable, the concern here is what effect assertions of reliability may have had upon readers and their assessment of the text, not whether or not the statements were accurate. Tottell's placing of the claims about manuscripts on the title page was unusually prominent; Thomas Smith's De Republica Anglorum refers to the “contrariety and corruption” of the manuscript copies, implying that the printed version was compiled from the best of them, but this claim appears only in the printer's preface (Smith, T., De Republica Anglorum (London: Henry Middleton, 1584)Google Scholar, sig.A2-A2v).
81. See notes 43–44 above and text.
82. Pinchon's Case 9 Co.Rep. 89v (1611).
83. The Dean and Chapter of Chester's Case (1578) HEH.MS.El. 482, ff.40v-41 and Ibbetson, “Report and Record in Early-Modern Common Law,” 65–66.
84. For an example of Coke's Letter Dedicatory, see CUL.MS. Dd.13.24, f.51. Even those volumes of manuscript reports that seem to have been commercially produced by scribes lack such features. For an example of scribally produced reports, see Thomas Coventry's reports, discussed by Ibbetson, “Coventry's Reports,” 281–303.
86. Coke, Les Reports de Edward Coke, sig.iiiv and Chudleigh's Case 1 Co.Rep. 132 (1589).
87. Shapiro, Culture of Fact, 37, 47–48, and 15.
88. Coke, Les Reports de Edward Coke, sig.iiiv. Johns's thesis builds heavily upon this focus on the person as central to the credit of printed texts (especially Johns, Nature of the Book, 31–32).
89. For Carrill's reports and the association with Keilwey, see Simpson, A. W. B., “Keilwey's Reports, temp. Henry VII and Henry VIII,” Law Quarterly Review 73 (1957): 89–105Google Scholar. For Bendlowes's reports see Abbott, Law Reporting in England, 62–103. Coke referred to Bendlowes's reports in Sir William Pelham's Case (1590) 1 Co.Rep. 15 (1590) and in Henry Peytoe's Case 9 Co.Rep. 78v (1609). Thomas Egerton referred to Bendlowes in The Dean and Chapter of Chester's Case, ff.40v-41.
90. Holwood v. Hopkins, 90. Yelverton, as opposing counsel, did not seek to challenge the case, but rather distinguished it. Anderson CJ asked to see the record.
91. Lawyers asserting their memory of cases in which they themselves had been counsel presumably also relate to this approach (for examples, see Browne v. Strode, f.3v per Hide J; Johnson v. Beatson (1633) CUL.MS. Gg.ii.19, f.372 per Bancks). Although the lawyers so doing may not have possessed particular skill or erudition in the law, it would have been at least discourteous for the judges to note that fact in open court! Verification of the source of a document, as in the case of Hele's manuscript report, was also important in relation to official documents. In Dighton v. Bartholmew (1602) BL.MS.Add. 25203, f.488, a copy of the record was produced that had been “certified” by the second prothonotary (one of the clerks of the court), but in Andrewes v. Lord Cromwell (1602) BL.MS.Add. 25203, f.493v, an example of an earlier writs was not in the hand of any cursitor, “and for this the court did not take much regard of them,” presumably due to a lack of reliability. These approaches to official documents have similarities to ideas in the romano-canonical and common-law traditions concerning proof by written documents, ideas also applied in the equity jurisdictions in which common lawyers appeared as counsel (see Macnair, M. R. T., The Law of Proof in Early Modern Equity (Berlin: Duncker & Humblot, 1999), 91–130Google Scholar, especially 114–128).
92. The absence of anonymous works is perhaps another unusual feature of common-law printed books in this period.
93. Penyngton v. Hunte (1544) in Reports of Cases in the Time of Henry VIII, Vol.II, ed. J. H. Baker, Publications of the Selden Society 121 (2004): 458.
94. Andrewes v. Lord Cromwell, f.508 per Yelverton J.
95. Coke, Le Tierce Part des Reports, sig. Ciiiv, F. Bacon De Augmentis Scientiarum, in The Works of Francis Bacon, vol.5, 104, Aphorism 75, and Bacon, “Proposition Touching Amendment of Laws,” 69.
96. Keilwey, R., Relationes quorundam casuum selectorum ex libris Roberti Keilwey (London: Thomas Wight, 1602)Google Scholar, sig.qii.
97. Dyer, J., Cy ensuont ascuns nouel cases, collectes per le iades tresreuerend iudge, Mounsieur Iasques Dyer (London: Richard Tottell, 1585)Google Scholar, sig. *2v.
98. Mary Portington's Case, 40.
99. Norwood v. Read 1 Plowden 182–182v (1558).
100. See, for example, Baker, Introduction to English Legal History, 179–80.
101. Plowden, Les Commentaries, sig. qii.
102. For references to the personal characteristics of witnesses, see Shapiro, “Classical Rhetoric and the English Law of Evidence,” 56, 62, 64–65, and 67, and Shapiro, Culture of Fact, 9, 14, and 16.
103. Coke, Le Tierce Part des Reports, sig. Ciiiv and Bacon, “Proposition Touching Amendment of Laws,” 69.
104. Johns, Nature of the Book, 250–51.
105. Plowden, Les Commentaries, sig.qii-qiii.
106. Ross, “Commoning of the Common Law,” 418n270, observes that a Star Chamber decree of 1586 required common-law books to be licensed by two chief justices, amended in 1637 to a sole chief justice or his appointee. This was a continuation from a prepublication review mechanism imposed by Elizabeth in 1559 (420).
107. Wade's Case (1622) CUL.MS. Ii.5.34, f.123.
108. The reason for nonregistration is probably that the registration of works acted as a “copyright that protected the work against infringement” (Ross, “Commoning of the Common Law,” 422). The monopoly on printing common-law works discussed by Baker (Baker, “Books of the Common Law,” 429, and Baker, “English Law Books and Legal Publishing,” 492) explains why protection for individual works provided by the Stationers' Register was not required for common-law books before the Civil War: Irrespective of registration only the common law patentee could print common-law works, and was probably better protected by his (or her, in the case of Jane Yetsweirt) monopoly than by registration (the patent could be enforced through the common-law courts, whereas protection by registration was regulated internally by the Stationers' Company). Nonregistration seems to have been fairly common: “estimates vary widely, but it seems that perhaps a third of printed titles were never entered [in the Register]” (Johns, Nature of the Book, 220). Roger Norton, the patentee for “grammars and accidences” only registered his books published under the patent when he considered that patent under threat from parliamentary activity in the 1640s (Johns, Nature of the Book, 337), and it seems probable that the common-law patentees similarly considered their patent sufficient protection in itself. There were two mass registrations of legal titles in the register: the first to Richard Tottell on February 18, 1583, and the second listed common-law titles included within the “English Stock” of the Stationers' Company on March 5, 1620 (Arber, A Transcript of the Register of the Company of Stationers of London, 1554–1640 A.D. (privately printed, 1875–1894), 2:419 and 3:668–69). The first of these registrations may have been just such a precautionary registration as that by Norton, as 1582–83 was a period of considerable ferment and discord both within the Stationers' Company and without concerning the patents (Arber, 2:19–21). Criticism of the law patent was made to Lord Burghley (Arber, 1:111 and 1:116). Tottell was described by other printers as selling law books “at excessive prices, to the hindrance of a great number of poor students” (Arber, 1:111).
110. Abbott, Law Reporting in England, 97.
111. Sharpe, K., Reading Revolutions: The Politics of Reading in Early Modern England (New Haven, Conn.: Yale University Press, 2000), 190–91Google Scholar.
112. “In quoting of Books; quote such Authors; as are usually read; others you may read for your own satisfaction but not name them” (Selden, J., Table Talk of John Selden, ed. Pollock, F. [London: Quaritch, 1927], 24Google Scholar). John Donne, former law student (1592–94 or 96) and reader in divinity at Lincoln's Inn (1616–21) preached a sermon in 1628 in which he said that “if it be well said in the School, Absurdum est disputare, ex manuscriptis, it is an unjust thing in Controversies and Disputations, to press arguments out of Manuscripts, that cannot be seen by every man” (The Sermons of John Donne, vol. 8, ed. G. R. Potter and E. M. Simpson (Berkeley: University of California Press, 1953–62), 348). Donne's remark suggests that ideas about manuscripts being unacceptable due to their unavailability had wider currency in Caroline England. My thanks to Jacqueline Rose of Newnham College, Cambridge, for bringing this quote to my attention.
113. See Baker, “History of English Law,” 70.
114. As an example of an unreported case being rejected for being unknown, see Miller and Jones v. Manwaring (1634) CUL.MS. Gg.ii.19, f.609, where Rolle put a case that was rejected by the court (“and the court said that it did not remember such a case”). For Popham's reliance on his long-term memory, see Payne v. Mallory (1601) BL.MS.Add. 25203, f.360v.
115. Woodland v. Mantel and Redsole 1 Plowden 96 (1553). See Baker, Oxford History of the Laws of England, 487.
116. Lashford v. Saunders (1599), Yale Law School Manuscript G.R.29.13, ff.34v-35.
117. See Doe, N., Fundamental Authority in Late Medieval English Law (Cambridge: Cambridge University Press, 1990), 38–39Google Scholar.
118. Sermons of John Donne, 345–46.
119. Wood v. Dallison (1579–80) BL.MS.Harg. 4, f.72. The reliance upon the printed status of the statute seems to be an opportunistic argument by Dyer: The other judges (Meade and Windham) simply relied upon a presumption that the facts accorded with the statute.
120. Elton, G. R., “The Sessional Printing of Statutes, 1484–1547,” in Wealth and Power in Tudor England: Essays Presented to S. T. Bindoff, ed. Ives, E. W., Knecht, R. J., and Scarisbrick, J. J. (London: Athlone, 1978), 81–82Google Scholar.
121. HEH.MS.El. 2011, f.3v.
122. See notes above 9–11 and text.
123. The focus upon reading as the core of a law student's studies had already been recognized by Fulbeck in his Direction, where his discussion focussed upon the books to be read, and the manner in which to do it, rather than attendance at the Inns (Fulbeck, W., A Direction or Preparative to the Study of the Lawe (London: Thomas Wight, 1600)Google Scholar, 26v-38).
124. HEH.MS.El 2011, f.7.
125. I am grateful to Hilary Larkin of St. John's College, Cambridge, for advice on this point.
126. See notes 51 and 59 above and text.
127. Love, Scribal Publication in Seventeenth-Century England, 188–90.
128. Coke asserted that the common law was lex scripta in Andrewes v. Lord Cromwell, f.507v. Bacon in that case sought to deny the status of the common law as written law, seemingly for tactical reasons.
129. Egerton, T., The Speech of the Lord Chancellor of England, in the Eschequer Chamber, Touching the Post-Nati (London: Society of Stationers, 1609), 33Google Scholar. On the medieval concern over the common law's unwritten status see Lobban, M., A History of the Philosophy of Law in the Common Law World, 1600–1900 (Dordrecht: Springer, 2007), 1–3Google Scholar.
130. This preference for print, especially if the normative role of print discussed here was more widely accepted, may mean that legal historians should not always give equal weight to print and manuscript when determining how contemporary lawyers viewed “the law,” although manuscript sources do, of course, still provide much of the best evidence for what actually occurred in legal practice in the early modern period. In this regard, perhaps the “Manuscript Tradition” of legal historians needs to be subject to greater contextualization; on the “Manuscript Tradition,” see Seipp, D. J., “The Law's Many Bodies, and the Manuscript Tradition in English Legal History” Journal of Legal History 25 (2004): 74–83CrossRefGoogle Scholar, http://www.informaworld.com/smpp/section?content=a713947190&fulltext=713240928 (accessed February 26, 2009).