The common law became more accessible to nonspecialists during the sixteenth and seventeenth centuries. As Richard Ross observes, “[a]n Englishman not privy to the manuscripts and oral traditions of the London-based legal professional would have had an easier time in 1640 than in 1550 learning about the procedure and duties of the royal courts, the boundaries of political and property rights, and the lineaments of the constitution.”Footnote 1
Existing scholarship has rightly identified the general shift toward the printing of the law in English.Footnote 2 However, it has not identified an important change during Charles I's reign, before the outbreak of the Civil War: a marked increase in the availability of printed English texts of particular types of legal materials, opening the learning and activities of the bar to nonspecialists. This article demonstrates and explains that change. The printing of a wider range of texts in English was dependent upon a shift to the use of English by the legal profession in their manuscripts, over which the profession then lost control. Opportunistic printers and booksellers obtained these manuscripts and began to print them.Footnote 3
In theory, there could have been two legal obstacles to the printing of the law in English too: the patent (official monopoly) on printing common law works and the official licensing system. The patent-holder could have insisted on printing only works in law-French; licensers could have denied a licence to works in English. However, neither the patent nor licensing seems to have been of any significance on this issue. The printers entitled to print under the patent engaged in the printing of new types of work in English.Footnote 4 Furthermore, there was very limited enforcement of the patent during the reign of Charles I, and unauthorised printers were involved in printing in English.Footnote 5 There is no evidence of the official licensing system for printed legal works being an obstacle to the printing of legal texts in English. Only six law books are known to have been officially licensed from 1581 to 1640; all of them are in English.Footnote 6 Some of these officially licensed works were also printed in contravention of the common law patent.Footnote 7 Official regulation of legal printing, whether through the patent or licensing, therefore did not affect printing of texts in English.
In practice, there were two important obstacles to gaining access to common law texts by non-lawyers. The first was material: many common law texts existed solely in manuscript. Although many manuscripts did circulate, this circulation was potentially more restricted than for printed works. The second obstacle was linguistic: common law literature was often written in law-French, a language that many in England could not read. Contemporaries were aware of these barriers to legal knowledge. In the 1520s, the lawyer and printer John Rastell could criticize the law as “kept so secretly,” consequently “a trap and a net to bring the people to vexation and trouble.”Footnote 8 Several decades later, the poet Samuel Daniel still complained that the common law “liv'd immur'd within…walls,” those walls “fram'd out of barbarousnesse,” a gibe at law-French.Footnote 9 These barriers to lay legal knowledge began to be overcome by the printing of common law material in English.Footnote 10 Although this began in the sixteenth century, in the reign of Charles I law reports, material from the Inns of Court and a wider range of other legal texts began to be printed in English.
Before the 1620s, much of the “commoning” of English law through English language printing was of certain types of material: collections of statutes; criminal law; introductory works such as Littleton's Tenures; and practice manuals for attorneys and officials who may not have been lawyers (such as justices of the peace).Footnote 11 Both statutory collections and books on criminal law were related to Rastell's concern that the law could be a “trap,” with references to ignorance of the law not serving as an excuse for illegality recurring through the period.Footnote 12 Some of these printed works replaced and supplemented an older tradition of oral public dissemination of the law, with little evidence of intervening widespread manuscript circulation: criminal law in particular may have been disseminated in charges given at quarter sessions and the assizes.Footnote 13 These works printed in English were not concerned with the intricacies of the law as debated and discussed in Westminster Hall. Although increased access to religious texts might have enabled every man to be his own priest in Reformation Europe, the limited range of common law texts available to nonspecialists would not have permitted every early-modern Englishman to be his own lawyer.
Seen from this perspective, there was an important qualitative change in the legal material printed during the reign of Charles I. Newly printed texts made the learning and activity of barristers, found in legal education and argued cases in the central courts, available to a wider audience.Footnote 14 The period from the accession of Charles to the outbreak of civil war witnessed the printing of the first volume of law reports in English, Hobart's Reports, in 1641.Footnote 15 Material from legal education in the Inns of Court and Chancery also appeared in print. The Inns were closed societies during their learning exercises, so this was a major change. The first reading to be printed was John Dodderidge's in New Inn, one of the Inns of Chancery.Footnote 16 The first reading to be printed from an Inn of Court was Robert Brooke's 1551 reading on a chapter of Magna Carta in 1641.Footnote 17 A range of diverse scholarly material from the legal profession also moved to print, whether this was the English language draft of Finch's Nomotechnia,Footnote 18 Francis Bacon's Maxims, Footnote 19 or William Lambarde's historical and jurisprudential text known as Archeion.Footnote 20 It is only with such a change that English law as a whole could be regarded as having been “commoned.”
Works such as Bacon's Maxims and Finch's Nomotechnia also purported to be guides to understanding other legal sources; therefore, the production of these works in English raised the possibility of a degree of self-education in the intricacies of the common law by readers. This is a marked contrast to the printing of criminal law and statutes in English, where the purpose of dissemination was to ensure obedience to the law, not to develop the skill to understand and apply it, especially on points of difficulty.Footnote 21 As Ross observes, it was accepted that subjects needed some legal knowledge, but opponents of publication in English rejected the idea of disseminating more sophisticated legal knowledge.Footnote 22 But in printing English works enabling anyone to interpret and understand other legal sources, Caroline printers provided a form of access to just such specialist learning.
Historians have not previously identified this qualitative difference in the range of newly printed legal material, in English, in the reign of Charles I. This article is concerned with explaining the change. Why did the nature of legal works printed in English change approximately a century and a half after the first printed common law book? Existing scholarship has identified an ideological debate, within the legal profession and more broadly, about the publication of law to nonspecialists, and especially to individuals lower down the social hierarchy.Footnote 23 This debate has been linked with humanism, although this can be questioned.Footnote 24
Despite the change in what was printed after 1625, there is no evidence of a decisive ideological swing toward wider dissemination of the law before the outbreak of civil war. There was lively debate and discussion about the desirability of printing the law in English in the sixteenth century and first two decades of the seventeenth century, providing much of the source material for the work of Ross and others. The prefaces of printers and authors draw attention to the use of English and stress its desirability (or not). But English language printing of the common law from 1625 onwards passes unremarked.Footnote 25 Prefaces (where they exist) do not draw attention to printing in English. There is nothing in the earlier sources to indicate a decisive victory for those supporting printing in English. The earlier debates, informed by particular ideological positions, made it clear that there was widespread support for some printing in English. It may be that those printers who printed in English from 1625 or thereabouts believed that they were doing something that had already been shown to be acceptable, missing the nuances in the debates about printing in English, but none of the surviving Caroline sources demonstrate this.Footnote 26
The absence of discussion instead suggests that the printers and booksellers involved in the printing of legal works in English were not concerned with ideology.Footnote 27 This does not mean that ideology was necessarily irrelevant, but it does not seem to have been important for those printers and booksellers responsible for the works that emerged from the press during the reign of Charles I.
The argument of the article is that during the reign of Charles I, the printing of material in English, and printing of a wider range of material (including more sophisticated work), was non-ideological. These changes were a consequence of two inter-related developments, first, a long-term increase in the use of English by the legal profession in its own literature and education, and second, a loss of control over common law texts that were already circulating in manuscript. The range of material printed in English was closely related to existing circulation of such material in English language manuscripts, with printers and booksellers obtaining individual works in manuscript and printing them.
It is unlikely that changes in what was printed in English were simply a consequence of printers obtaining manuscript texts in English. Printers would only have printed such works if they believed that there was adequate demand for them. In this regard, the large increase in admissions to the Inns of Court from the reign of Elizabeth until the Civil War must be important.Footnote 28 Texts in English may have been particularly helpful for those admitted to the Inns with no intention of becoming barristers. These members of the Inns often only studied for short periods, but perhaps had some genuine interest in the law.Footnote 29 Even if they did not possess it before, former students at the Inns may have gained an interest in legal matters, something rendered more likely by the centrality of the law to English political and constitutional thinking.Footnote 30 Their brief education, coupled with the ready availability of some printed introductory works in English, may have meant that they never mastered law-French, or simply that after departing the Inns, they preferred to read material in English.
However, this long-term increase in the legally educated cannot in itself explain the timing of the emergence of a wider range of legal texts in English. It may be no coincidence that the printing of material that had circulated in manuscript coincides with the final rally in the number of admissions to the Inns of Court before the Civil War.Footnote 31 But this rally followed a short-term reduction in admissions, and only restored admissions to their longer-term trend. Demand was important, but changes in the availability to printers of manuscript texts in English appear to have been crucial.
This article has three important conclusions of wider significance. The first is that the views of the legal profession itself about the desirability of printing the law had come to be of relatively little importance. Common lawyers had lost control of much common law knowledge. Second, Interregnum legislation mandating the printing of law books in English, one of the few law reform proposals to be enacted in the period, was hardly revolutionary. Rather, it followed existing trends in both principle and (crucially) in practice, among both printers and the legal profession. Third, and finally, the article demonstrates a broader methodological point: to identify and understand the changes following the introduction of the printing press it is insufficient to consider what was printed. It is essential that historians also engage with the continuing history of older modes of communication, both oral (as in the Inns of Court) and written (manuscripts).Footnote 32
The Use of English by the Legal Profession
Common law literature was traditionally written in law-French. This was recognised as a barrier to non-lawyers acquiring legal knowledge.Footnote 33 As Christopher St. German observed of his own writing in English in 1530, “yf it had ben in Frenche: few shold have understand it but they that be lerned in the law.”Footnote 34 Lawyers sometimes consciously erected walls of the “hideous termes” of law-French to keep legal material away from non-lawyers.Footnote 35 Although law-French could be learned, John Davies thought that this would require knowledge of both English and Latin, impliedly excluding those without at least a grammar school education.Footnote 36 Even parliamentarians could struggle. In the 1610 session, the House of Commons ordered the reading of records concerning impositions, “and it was ordered that whether they were in French or Latin, they should be read in English…and by that means every one of the meanest capacity and learning should understand th’ effect of the records.”Footnote 37 Without such translation, law-French material would be inaccessible.
When lawyers intended their printed works to be for a wider audience, they avoided law-French. A good example is Sir Edward Coke's report of Calvin's Case, a test case concerning the legal status of Scots in England after the accession of James VI and I. Coke printed his report “by commandement…for the publike” and did so in English.Footnote 38 However, the remainder of that volume, containing reports of other cases about which no order for wider dissemination had been made, was in law-French.Footnote 39 Non-lawyers may also have been deterred by law-French. The surviving library of the non-lawyer Justice of the Peace Thomas Hoby contains only one volume of law reports. That volume is Coke's Fifth Reports, a work that contains a lengthy discussion of the legal status of the Church of England in Latin and English. On the limited surviving evidence, Hoby therefore only owned law reports which were not in law-French.Footnote 40
Some works concerned with legal matters had long been available in print in English by the 1620s. These ranged from guides for non-lawyers, such as justice of the peace manuals, to works for students.Footnote 41 The only more-technical work printed in English was William Staunford's work on the royal prerogative.Footnote 42 That book is exceptional and may have been intended for non-lawyers.Footnote 43 Aside from Staunford on the prerogative, law reports remained in law-French; more treatise-like works were in law-French or manuscript.
Among themselves, common lawyers did not use law-French for all purposes. As Baker observes, law-French was in “steady decline after 1362.”Footnote 44 Crucially, the evidence suggests that by 1600 or thereabouts, lawyers were generally thinking and arguing in English. High level common law education and writing was increasingly in English.
Even in the reign of Henry VIII, it was observed that whereas junior lawyers and students in the Inns of Court did moot in law-French, benchers reasoned in English.Footnote 45 Students continued to moot in French in the 1620s, at least in the Middle Temple.Footnote 46 However, readings, the lectures given in the Inns, seem to have been in English.Footnote 47 Manuscript texts of readings were also often in English, as were other works circulating in manuscript. In combination with the introductory works available in English printed editions, the education of common lawyers was increasingly education in English.
A predominant role for English can also be seen in seventeenth century treatise-style literature and other pieces of legal scholarship. The best example of this is Henry Finch's Nomotechnia.Footnote 48 Although printed in 1613 in law-French, Wilfrid Prest has demonstrated that Finch drafted the work in the late-sixteenth and early-seventeenth century, in English.Footnote 49 Finch then produced a law-French version for printing. Francis Bacon also said that he intended his Maxims to be in law-French.Footnote 50 All of the surviving manuscripts are in English, and although it is possible that Bacon wrote a no-longer extant law-French original and then produced an English translation, the reverse seems more likely, given the proliferation of English language legal writing near 1600. For these authors, the use of law-French had become both a matter of choice and (perhaps more importantly) of extra labor. Shorter works written for nonspecialists but intended for limited circulation in manuscript, such as a text written for a (prospective) patron, were also in English. Edward Coke's Little Treatise of Baile and Mainprize is a good example.Footnote 51
English was the language in which lawyers prepared their speeches for use in court. The surviving examples are all in English and show “how lawyers phrased their arguments in the [English] vernacular.”Footnote 52 Preparing and thinking about arguments for use in court was consequently an activity undertaken in English. In combination, the examples of oral legal education, legal writing, and preparation for curial argument show a profession that thought in English and increasingly wrote those thoughts in English too.
Law reports, a vital part of common law literature, appear to be the exception. They continued to be written in law-French in the 1630s, suggesting that although law-French was not the language of legal thought, it was in some sense the language of (unofficial) legal memory, just as Latin was the language of official record.Footnote 53 In 1641, the Reports of Henry Hobart were published posthumously.Footnote 54 Hobart's Reports were the first to be printed in English, breaking a long-standing practice in both print and manuscript, and opening the activities of the bar and judges to a nonprofessional audience.Footnote 55 However, the printed Reports were not a translation, as surviving manuscript copies of Hobart's Reports are also in English.Footnote 56 Hobart's Reports therefore demonstrate that even a highly successful early seventeenth-century lawyer used English for his personal reports, rather than the more traditional law-French.
Other collections of law reports can be found that mix English and law-French. The manuscripts of the Jacobean Exchequer reports attributed to Richard Lane are a good example.Footnote 57 Although the relationship among the various manuscripts is complex, and that between the manuscripts and the printed version of the reports even more so, some relevant points can be discerned.Footnote 58 Although some manuscripts of “Lane's” reports may date from the later seventeenth century,Footnote 59 one of the manuscripts discussed here was owned and annotated by Henry Calthorpe, who died in 1637.Footnote 60 These observations therefore relate to law reports circulating during the reign of Charles I, and perhaps earlier.
Law-French predominates in these reports, but there is a considerable amount of English material. The manuscripts also do not all use the same language at the same points in the reports, suggesting some degree of choice of language by copyists at some point in the dissemination of the text. There are some manuscripts in which the use of English and law-French appears to be identical,Footnote 61 but others where it differs.Footnote 62 This is despite the presence of the same hand in some of these differing manuscripts.Footnote 63 These manuscripts show that some lawyers were using English in parts of their law reports. In some cases English is limited to the text of grants, conveyances, or recitation of the facts, with legal argument remaining in law-French.Footnote 64 Such an approach would maintain the inaccessibility of the law for non-lawyers, who would need to learn the relevant language to begin to try to understand the law, but in other cases there is considerable legal argument, as well as conclusions of law, recorded in English.Footnote 65 For these reports, the detail of legal argument was being circulated, in manuscript, in English.
One manuscript of Hobart's Reports points toward the conclusion that English was either preferable or easier.Footnote 66 This text is a redaction of Hobart's original, reducing the length of the individual reports.Footnote 67 In this version of the text, there are attempts by the unknown writer to use law-French. As with writers of legal scholarship, the use of law-French here was a choice and entailed extra work. Crucially, the writer appears to have tried and failed in this attempt to translate the reports. Use of law-French is attempted twice early in the volume before the writer gives up.Footnote 68 The act of recreating Hobart's meaning in law-French had defeated him. Hobart's use of English, and one lawyer's failed attempt to use law-French instead, suggest that in the first decades of the seventeenth century, law-French had entered a period of decline as a functional language for the profession, at least for composing new texts.
The end of law-French as a language used to write diaries would offer some support to this conclusion.Footnote 69 Law-French seems to have become particularly unsuitable where writers sought to record speeches, rather than merely the sense of them, accurately. John Lowther's 1624 parliamentary diary uses law-French for short notes, but longer reports of speeches are in English.Footnote 70 The same can be seen in a volume of Jacobean Star Chamber reports in law-French, in which the reporter uses English to report a particularly impressive speech by Francis Bacon.Footnote 71 Complex English was increasingly difficult for these writers to record in law-French, just as lawyers seemed to struggle to compose new texts in the language.
This would have been a particular problem for law reporters. Plowden's 1571 Commentaries set a new model for law reports, providing much fuller reports of what had been said by the judges.Footnote 72 Reporters trying to provide the level of detail found in the best early-modern reports may have found it increasingly difficult to do so in law-French. This pressure to produce fuller reports may explain the difficulty in translating Hobart's reports into law-French.Footnote 73 Hobart's reports are longer and fuller than many contemporary reports. The dramatic legal changes of the sixteenth and early-seventeenth centuries may also have contributed to these difficulties, as reporters sought to write reports of arguments delivered in English, referring to doctrines that did not appear in the law-French of the yearbooks.Footnote 74
This conclusion moves the date for the “terminal decline” of law-French forward from Baker's suggestion of the “late seventeenth century,” identifying the decline as in effect in the first decades of the seventeenth century.Footnote 75 A tipping point seems to have been reached, with English becoming the default language for some genres and increasingly important for others, whereas some lawyers (at least) found it increasingly difficult to express themselves adequately in law-French. If this is correct, it suggests that a movement to printing in English was not tied to desires for dissemination of legal texts to non-lawyers, but was part of, and reflected, a wider shift in the legal profession's preferred language. But lawyers’ increasing use of English would have had little consequence for the printing of law books, had the English language texts remained in manuscript. This, however, was to change.
The Movement of Manuscripts: From Profession to Public
Much legal material in the sixteenth and seventeenth centuries was published only in manuscript.Footnote 76 There is a tendency to think of such manuscript publication of legal texts as meaning that access to those texts was quite limited, with literary coterie publication providing a model.Footnote 77 For some texts, such as Henry Sherfield's 1624 reading, this was undoubtedly the case. Sherfield retained close control over his text of the reading and carefully recorded the few loans he made of it.Footnote 78
However, not all manuscripts had tightly restricted circulations. Some circulated widely and even did so commercially. Some of these texts were professionally copied outside the immediate circle of the legal profession. William Lambarde's massive and widely circulated collection of material on Chancery is an excellent example.Footnote 79 The professional scribe of one copy has even been identified.Footnote 80 Lambarde's collection on Star Chamber, sometimes circulating with his Chancery material, was sufficiently widespread that two other authors could refer to it, seemingly assuming that any reader of their manuscripts would know, or be able to access, Lambarde's manuscript work.Footnote 81
One known scribe, Ralph Starkey, made his living from selling manuscripts copied by himself and his associates. There is surviving material identifying some of the works he sold. These included manuscripts on legal topics of wider public interest, such as the Star Chamber proceedings against one of Elizabeth's secretaries in relation to the execution of Mary, Queen of Scots.Footnote 82 Another catalogue from a manuscript dealer from 1622 to 1625 also contains various works of legal interest amidst political works, biographies, and travel literature. The legal items range from the arraignments in famous cases to material concerning the legal disputes over prohibitions and the church courts and the Case of Commendams from the second decade of the seventeenth century.Footnote 83 The same catalogue also lists a discourse on Chancery, including its antiquity, jurisdiction, and mode of proceeding, together with a similar collection on the Star Chamber.Footnote 84
Some of these manuscripts could have been produced from attendance at public events. But others, such as the collection of material on prohibitions, arose from private discussions.Footnote 85 Manuscripts could move from private circulation to a more public one, beyond the control or wishes of the author or owner. Simonds D'Ewes gives an example from one of the Cotton manuscripts. After a loan, the manuscript eventually made its way to Robert Cotton, who forgot that it was in fact his own. Cotton gave the manuscript to a clerk in his service to copy. That clerk “took one copy secretly for himself…and out of his own transcript sold away several copies.”Footnote 86
Just such a concern with personal clerks copying manuscripts for wider dissemination is evident in early-modern legal publishing, even in the 1570s. In the preface to his Commentaries, Plowden explains the printing of his collection of law reports as a response to the loss of control over his manuscript. According to Plowden, the manuscript had been borrowed by friends, whose clerks had then made copies.Footnote 87 There is evidence for such a role for clerks into the reign of Charles I. John Lightfoot, a barrister and the owner of one copy of a widely circulated set of Caroline Star Chamber reports, reports that he received the book “From Henrie Dwyer servant to my Brother Francis Phelips the xxvjth day of June Anno domini 1636.”Footnote 88 Francis Philips was also a barrister. Assuming that Lightfoot's note is accurate,Footnote 89 it constitutes evidence of a lawyer's servant, perhaps a clerk, being involved in the circulation of legal manuscripts into the 1630s.
Such copying by clerks may have been particularly concerning because lawyers’ clerks were involved in commercial scribal work more generally.Footnote 90 In Thomas Dekker's 1606 Newes from Hell, lawyers’ clerks are one of the groups that the Devil considers “to scribble for him.”Footnote 91 If this scribal activity by clerks included the copying and dissemination of legal manuscripts, this would be an obvious route for such manuscripts to leave the control of barristers and become part of wider circulation.
Such copying may explain a tantalizingly vague, but extremely significant, remark near the end of the 1622–25 catalogue. Next to the heading “common law” is simply noted the availability of “divers peeces of Comon Lawe, vzt, Arguments Reports Readings &c.”Footnote 92 This is one of very few pieces of evidence showing the commercial availability of common law manuscripts related to the work and learning of the bar, and appears to be the only known evidence of the sale of material from readings.Footnote 93 It is not clear if the material in the catalogue would have been in English or law-French, but this brief advertisement shows that the general public had already ceased to be excluded from the learning of the bar. If a member of the public could reach this dealer in manuscripts, legal material could have been obtained by a non-lawyer. There was very substantial and widespread manuscript circulation in the first half of the seventeenth century, so such access by the wider public cannot be dismissed.Footnote 94 This circulation can be linked to an increase in professional, commercial, copying of manuscripts in the 1620s, at just the moment when circulating legal manuscripts can first be identified as being available commercially from dealers not connected with the legal profession.Footnote 95 Once commercial copyists and manuscript dealers acquired a text, any control that lawyers had once exercised over the circulation of legal manuscripts was lost.
From Published Manuscript to Print Publication
Several of the works that appeared from 1625 to 1642 can be identified as having been quite widely disseminated in English manuscripts before their appearance in print. Manuscript circulation may be linked with the eventual printing of a work. For some works, it can even be shown that the manuscript circulation that preceded printing was commercial circulation, beyond any control by the legal profession. William Lambarde's Archeion, printed twice in 1635, was part of Lambarde's larger collection on Chancery, at least one copy of which was copied commercially.Footnote 96 Nicholas Bacon's arguments on the jurisdiction of Chancery, printed in 1641, were also part of the same collection.Footnote 97 Edward Coke's Little Treatise of Baile and Mainprize, printed in 1635,Footnote 98 exists in two manuscript copies associated with a particular commercial scribe.Footnote 99 Francis Bacon's Maxims, first printed in 1630, survives in eleven manuscripts.Footnote 100 Thomas Egerton, Lord Chancellor Ellesmere, wrote a brief to crown lawyers in the Jacobean debate about the Chancery jurisdiction, which was printed in 1641.Footnote 101 Thirty manuscript copies are known.Footnote 102 Hobart's Reports similarly circulated widely, with eight surviving copies of the reports.Footnote 103 Two of those volumes provide explicit date evidence of circulation in the 1630s.Footnote 104 One of those two volumes also shows that the manuscript was a commercial object, being purchased for £3 10s.Footnote 105 It is not clear that this volume was the product of commercial copying, rather than just a privately produced copy that had been sold. The owner, John Maynard, noted that the volume included a table (now lost), but that the table did not continue for cases after folio 527, because the writing was so bad, hardly what one would expect from a professional scribe.Footnote 106
Material from legal education in the Inns of Court and Chancery that appeared in print during the reign of Charles I, similarly survives in multiple copies, indicating wider circulation. John Dodderidge's reading, the first to be printed, has five surviving copies.Footnote 107 Charles Calthrope's The Relation betweene the Lord of a Mannor and the Coppy-Holder his Tenant was a printing of his 1574–75 reading in Furnival's Inn, one of the Inns of Chancery, a reading that survives in seventeen manuscripts.Footnote 108 The two readings from the Inns of Court to be printed, Robert Brooke's and Francis Bacon's, both survive in four manuscript copies.Footnote 109 The evidence of the catalogue from 1622 to 1625 shows that it is possible that these readings were circulating in manuscripts that were themselves objects of commerce.Footnote 110
There is, therefore, a correlation among several of the new works printed during the reign of Charles I and circulation in manuscript, and a weaker but still evident correlation with the commercial circulation of manuscripts.Footnote 111 Showing that several of the new legal works printed in English during 1625–1642 circulated in manuscript before printing suggests that it was manuscripts that had in some sense been “published” that were often put into print by booksellers and printers.
Such printing was not under the control of the authors of the relevant works; indeed generally the author was dead. There is evidence suggesting that a living author may have been able to affect the printing of his manuscript. John Dodderidge's The Lawyers Light was entered into the Register of the Stationers’ Company in October 1627, in favor of Benjamin Fisher.Footnote 112 However, this registration was struck through, and it is possible that this was because of Dodderidge's interference. Some support for the idea that the striking through happened quite soon after registration, and was related to Dodderidge himself, is that Fisher did not print the work soon after registration. However, The Lawyers Light was printed in 1629, after Dodderidge's death in 1628, suggesting that Dodderidge may have been able to control the printing of his manuscript during his lifetime (at least if the copy was registered), but not after his death.Footnote 113
Although there is no direct evidence of a new legal work being printed in English from a published manuscript acquired by a printer, there is plenty of evidence that strongly suggests this. The vague explanations as to how printers obtained the texts they printed is a good starting point. Printers refer to copies of the text arriving in their hands before printing.Footnote 114 This language was not unusual in early-modern printing generally. Nor was it unprecedented in legal printing, although it was much less common for law books. An unusually early example of such vagueness appeared in 1567, when Richard Tottel referred to the text of Staunford's Prerogative having been “delivered to mee,” albeit evidently not by Staunford, who had died in 1558.Footnote 115 However, it appears with considerably greater frequency after 1640. The vague language avoids any claims of authorial imprimatur.Footnote 116 Indeed, as Bennett noted, “the prevailing custom…allowed a printer, once he was in possession of a manuscript, however come by, to treat it as his own, and to go ahead with it, just as he would have done with a manuscript brought to him by the author himself.”Footnote 117
The deliberately vague statements of the printers are of little assistance, beyond suggesting that printers did not receive these texts from the author or other relevant figure. There is no other direct evidence, and as Bennett observed, “[m]embers of the printing trade were always on the watch for possible manuscripts, and acted without much concern for the interests of the author once they were on the scent.”Footnote 118 In relation to the printing of law books in the reign of Charles I, there is enough suggestive evidence to point toward how printers and booksellers acquired these texts.
First is a statement by Bernard Alsop and Thomas Fawcett, involved in the printing of The Use of the Law and The Lawyers Light Footnote 119 in 1629, and John Dodderidge's reading as A Compleat Parson in 1630.Footnote 120 All of these are English language works, and Dodderidge's reading clearly did circulate in manuscript. In 1627, Alsop and Fawcett were summoned before the High Commission for involvement in the printing of Robert Cotton's Short View of the Long life and Reign of Henry the Third.Footnote 121 Their defense was that they had printed a text already available in manuscript, one that they had purchased from a second-hand bookseller, Ferdinand Ely.Footnote 122 It is not clear whether this was true or not. Although Cotton claimed to have written the work in 1614, Kevin Sharpe does not rule out the possibility that Cotton himself was behind the 1627 printing.Footnote 123 A defense to an investigation by the High Commission need not have been true, but for the defense to be effective, it would have to have been credible. Alsop and Fawcett's business, therefore, either sometimes printed existing manuscripts available commercially, or this practice was sufficiently widespread that they could claim to do so. Either possibility suggests that printers might make use of commercially available manuscripts to produce new printed works.
Alsop and Fawcett's suggested role for second-hand booksellers is plausible. In 1628, a list of “such Booke sellers, as deale in old Libraryes” was given to the Privy Council.Footnote 124 Of the listed book sellers, ten or eleven (just over one quarter) were located on Chancery Lane and Fleet Street (linked as a single location in the list) or at Gray's Inn Gate, all locations near the Inns of Court and firmly within legal London.Footnote 125 There is even a direct link with Alsop and Fawcet. The other person listed as being involved in their printing of The Use of the Law and The Lawyers Light in 1629 was Benjamin Fisher. In 1628 Fisher was listed as a dealer in old libraries on Aldersgate Street, and he is the person for whom The Use of the Law and The Lawyers Light were apparently printed. It seems likely that Fisher acquired the manuscript (or manuscripts) in his work as a dealer in second-hand material and then made the decision to have them printed.
Fisher would not be alone. Two other names associated with the printing of legal manuscripts in English are also found on the 1628 list of second-hand dealers, and both did so in close proximity to the legal profession. Matthew Walbancke was identified as a dealer at Gray's Inn Gate, and Laurence Chapman was one of the second-hand booksellers listed as being based in Chancery Lane and Fleet Street. Walbancke and Chapman were the two printers of Francis Bacon's Reading.Footnote 126 Chapman was also connected with the printing of Brooke's Reading.Footnote 127 The first two readings from the Inns of Court to be printed were therefore printed in connection with booksellers who dealt in existing collections, as was the first reading (Dodderidge's) printed from the Inns of Chancery. It seems highly likely that both Walbancke and Chapman acquired their manuscript copies of the relevant readings in this capacity, decided that there was a possible market for these particular texts, and arranged their printing. In both cases, the works were by prominent lawyers and authors. Brooke had been chief justice of the Court of Common Pleas and was the author of an important reference work for early-modern lawyers.Footnote 128 His name would have made the reading an attractive purchase for lawyers, while the subject matter (a chapter of Magna Carta) might have been readily marketable in the atmosphere of 1642. Francis Bacon had been Lord Chancellor as well as an important English author. His legal works had begun to appear in print with the Maxims in 1630, and his reading was on a very popular topic with a ready market in the profession.Footnote 129
A second connection between English language legal manuscripts and the printing of such manuscripts arises in the role of law booksellers as vendors, and perhaps producers, of new manuscript copies. There is good evidence of law booksellers having such a role in relation to parliamentary and political texts, but that role may have encompassed a wider range of texts.Footnote 130 There was, in any event, an unclear boundary between parliamentary and legal material, especially in the legalistic culture of early-modern England.Footnote 131 Thomas Fuller claimed that his printed collection of parliamentary material from the reign of Charles I would be of use to lawyers for the “severall Cases here largely reported.”Footnote 132 A particularly good example from the late 1630s is The Case of Ship Money (R v. Hampden) from 1638, concerning Charles I's power to levy extra-parliamentary taxation during the Personal Rule. Manuscript pamphlets of the decision and the judges’ speeches “circulated very widely,” many of them as “commercially produced” pamphlets;Footnote 133 they are some of the “most reproduced texts of the decade,” despite appearing relatively late in the 1630s.Footnote 134 These manuscripts are just the sort of hybrid legal-political material that law booksellers might be expected to produce or sell. The widely circulated, commercially produced, manuscripts of the Ship Money case then made their way into print, at least in part, with Richard Hutton's dissenting judgment printed in 1641.Footnote 135
One law bookseller seems to have had connections with providers of manuscripts of parliamentary material, although the precise nature of the link cannot be discovered. One manuscript of the tumultuous debates in the House of Commons in 1629 can be identified as purchased from “W Walbancke” on August 10, 1629.Footnote 136 The Walbancke family were booksellers and publishers from the reign of James I onwards. The founder of the printing family, Matthew Walbancke, was involved in law printing, including that of material previously circulating in English.Footnote 137 Although one member of the Walbancke family was involved in the dissemination of manuscript parliamentary material in the late-1620s, in the 1640s Matthew Walbancke began to print it instead.Footnote 138 It is plausible that the same occurred in relation to law books. Matthew Walbancke had a connection with the manuscript trade, which may have given him access to legal manuscripts. He also dealt in old libraries, potentially giving access to manuscript material, especially circulating manuscripts.
The printing of Hobart's Reports fits into one of these models. It is clear from John Maynard's copy that the Reports could be purchased.Footnote 139 It is not clear whether this was as a new scribally produced copy or as a second-hand manuscript.Footnote 140 Either way, such a manuscript could be connected with law booksellers who then caused texts to be printed. The only complication is that Hobart's Reports were printed by the assigns of the law patentee, John More, and no connections between the assigns and the manuscript trade have been discovered.Footnote 141 However, in the early 1640s, there was a complicated set of relationships among the assigns of the law patentee, law booksellers, and printers in producing printed texts, so we cannot exclude such a relationship for Hobart's Reports.Footnote 142
These explanations are not obviously limited to the years after 1625. Legal manuscripts existed and circulated for decades before the 1620s. Nonetheless, there are factors that explain the relatively late movement of more sophisticated legal material from manuscript to print. One possible change in ideology may be visible in, and caused by, the printing of Edward Coke's Commentarie upon Littleton in 1628. The Commentarie contains the original law-French of Littleton's Tenures, with an English translation in a parallel column, all surrounded by a very dense English language gloss. Coke explained in his preface that the printing of some common law material in English was “not without president,” explaining that this was “an introduction to the knowledge of the nationall Lawes of the Realme, a work necessarie.” At this point Coke seems to have been following the trend of making only introductory works available. However, he continues to explain that the Commentarie would make the law available to “any of the Nobilitie, or Gentrie of this Realme, or of any other estate, or profession whatsoever.”Footnote 143 This was to go much further than earlier publications, especially as Coke's gloss was substantially more than introductory.
Nevertheless, the Commentarie did not lead to lawyers making a substantial short-term change in the material that they prepared for the press, and the broad statements about printing common law material in English found in the preface need to be qualified. First, the Commentarie is almost 400 pages long, and would probably have been too expensive for many people outside of the upper echelons of society, or the legal profession, to afford.Footnote 144 This was not a work that would disseminate the law widely. Perhaps more significantly, the form of Coke's Commentarie suggest that whatever the statements in the preface suggest, Coke's intended audience was lawyers, particularly law students.Footnote 145 The printing of Littleton's original law-French text together with an English translation was an innovation. One reason for this printing may have been to provide some assistance to those learning to read law-French itself, given the difficulties that some lawyers seem to have experienced with that language.Footnote 146 Such a focus on law students would also explain Coke's production of the other three volumes of his Institutes, a series named after an introductory civilian work explicitly directed to students rather than to the wider public.Footnote 147 The second volume of the Institutes, in particular, appears to be aimed at providing a printed gloss on statutes that may have been part of a regular cycle in the Inns of Court, a key part of legal education in the fifteenth century.Footnote 148
More plausible explanations for the movement of material from manuscript to print are not ideological, but mundane, connected to the relationship between manuscripts and the printers and booksellers involved in law printing in the reign of Charles I.
First is a possible increase in the volume of manuscript copying in the 1620s. Millstone's work on parliamentary material suggests a marked increase in copying, especially in the second half of the decade, even if the material being copied was itself older.Footnote 149 It is not necessarily the case that the same pattern would be visible in legal manuscripts. However, an increase in copying in the 1620s suggests not just increased demand, but also the potential of increased supply, indicating a larger body of copyists who may have turned their hand to legal manuscripts too.
Increasing circulation of legal manuscripts in English, particularly the circulation of manuscripts commercially, would encourage booksellers and printers to print works. Such circulation would demonstrate demand for the work, especially to booksellers connected with the manuscript trade. Proven demand would ameliorate some of the financial risks involved in printing a new work.
Second is the increasing use of English by the profession in its manuscripts. This may have had two related consequences. The first is that there is more evidence of the copying of English manuscripts by professional scribes than there is for such scribes copying law-French material. The surviving evidence for the material copied and then sold by Ralph Starkey suggests that all the legally related material was in English.Footnote 150 There clearly are multiple copies of law-French manuscripts. Some of the copying looks professionalFootnote 151 and in some instances appears to be commercial.Footnote 152 Although commercial copying of law-French was therefore not unknown, English material is more prevalent in identifiably commercial copying, despite the much larger body of law-French legal material (especially law reports). This may indicate that professional scribes lacked the linguistic skills to copy law-French or that they believed that material in English was more desirable (perhaps because of a larger possible market). By using English more frequently in their manuscripts, lawyers opened those manuscripts to commercial copying, which encouraged subsequent printing.
The increased use of English may have also facilitated decisions by booksellers and printers about whether to invest in printing a particular manuscript. Non-lawyers, such as law booksellers and printers, may not have been able to read law-French. This would have made it difficult to determine the subject matter of a manuscript, let alone make any assessment as to its quality.Footnote 153 These were, presumably, relevant factors in the decision as to whether printing a manuscript would provide a sufficient return. English language manuscripts, by contrast, could be read and assessed by booksellers and printers without needing to involve the legal profession. The use of English not only made it easier for booksellers and printers to decide whether to print the work, but if the profession had previously been able to exercise some control over what was printed through the printers’ need for advice, that control was removed or reduced by the shift to English.
For example, Brooke's reading on the Magna Carta in English could have been read by a non-lawyer bookseller or printer. That reader would have been able to identify the subject matter of the reading and form his own assessment as to the likely demand for a text on the Magna Carta by a major lawyer in the febrile atmosphere of the early 1640s. The use of English would not necessarily be the only relevant factor. For example, as some readings became more treatise-like, the nature (and possibly value) of the text may have become more obvious to non-specialists.Footnote 154 The manuscript text would look more like something that could be printed in a book rather than merely some fragmentary or disjointed speaker's notes or a record of an oral exercise made by an audience member.Footnote 155
Some support for the use of English encouraging the printing of a work may be found in the different treatment of two sets of Jacobean law reports that both circulated in commercially available manuscripts. Francis Moore's reports survive in several professionally produced manuscripts, at least one of which was sold, and which were written in law-French and not printed until 1663.Footnote 156 Manuscripts of Henry Hobart's reports also circulated widely, with one copy showing evidence of sale.Footnote 157 Hobart's reports were in English and printed in 1641.Footnote 158 It may be that the linguistic difference explains the different treatment of these works, although this cannot be known definitively.
Third, and peculiar to the period 1625–42 is a change in the patent for printing common law books. From the late 1620s, the patent was held by a non-printer, John More, and leased to a syndicate that was principally concerned with reprinting standard works, rather than printing new material, at least until 1640.Footnote 159 However, the patent was increasingly breached, largely without consequences.Footnote 160 Several of the unauthorized printers printed English language material.Footnote 161 The range of law printers and booksellers involved in the market for law books in the 1630s and early 1640s may have contributed to the change in what was printed. Those printers, unlike the patentee in the sixteenth century or the assigns from the late 1620s, were non-specialists who printed some legal works as part of a more diverse portfolio. They were not concerned with producing competing printings of standard legal texts, many of which were several hundred pages long. Instead, they were printing shorter works, and many of the higher-level legal works in English, such as readings, fell into that category.
Furthermore, these non-specialist printers may have lacked the black-letter type that was traditional for law-French law books. From the late-sixteenth century, Roman type generally replaced black letter for printing vernacular works.Footnote 162 Black letter was increasingly a specialist type, used only for particular purposes and not always available.Footnote 163 Legal printing persisted in its use of black letter for both law-French and English works.Footnote 164 However, printers may have believed that works in English could be printed in Roman type, a development that had already occurred in other learned fields and that made Roman type the default for English vernacular printing. As these printers were not specialists in legal printing, they may not have known that traditionally, black letter was also used for legal works in English, instead perceiving it to be the type used for law-French works. Printers without access to black-letter type would therefore have felt able to print English language law books without breaching typographical conventions.Footnote 165
Conclusion
The appearance of a substantial body of sophisticated common law material in English and in print from the mid-1620s to the early 1640s was the result of a combination of particular factors, but not of ideologies about the desirability of disseminating the law. Some of the factors were longer term, such as the increasing use of English by the legal profession, but others were peculiar to the period, especially the number of booksellers and printers involved in printing legal works. The interaction between the actors in, and market for, manuscript works and the production of printed works in English is peculiarly well evidenced for the 1620s–40s, but it may be that this was not a major change to past practice.
Although the printing of legal material in English during the reign of Charles I was not ideologically driven, it may have had ideological consequences: narrowly, in demonstrating that the law could be printed in English and, consequently, that the claimed necessity of law-French was incorrect. The demonstration from 1625 to 1642 of the possibility of printing the law in English, combined with Edward Coke's conversion to the cause of printing in English in his Commentarie upon Littleton, may explain why it was thought acceptable and possible to mandate such English language printing for the future, one of very few law reform measures to be enacted during the Interregnum.Footnote 166
More broadly, the new legal material printed in English, especially after 1640, showed an important change in subject matter. Legal printing until 1640 had largely avoided matters of public controversy, with such material circulating in manuscript. As those manuscripts made their way into print, newly printed works often engaged directly with complaints about the government of Charles I, and did so for a wider audience.Footnote 167 The printing of the dissenting argument in Ship Money is a good example, but the best example is the printing of James Whitelocke's early seventeenth century argument on the king's power to levy impositions, an extra-parliamentary tax on exports and imports. The printed text shows the potential for wider dissemination beyond London and the legal elite. Whitelocke's argument was printed by Richard Bishop for John Burroughes in Fleet Street. However, some copies have a title page indicating that the work was to be sold “by Richard Hassell Book-seller in Bristoll.”Footnote 168 Bristol did not have a large community of common lawyers, a highly centralized profession, but it did have a sizeable mercantile community, just the sort of non-lawyers who would be interested in a statement of the law about export and import taxes. Although the movement to printing the law in English was not ideological, in the years immediately preceding the outbreak of civil war, works such as Whitelocke's show that it could be used for ideological purposes, and have much wider consequences.
