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.Footnote ¹ 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.Footnote ² 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.Footnote ³ 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.

This article is concerned with common-law attitudes towards printed and manuscript texts used in legal argument until 1640, contributing to a wide historical debate on the impact of printing, although the article concentrates on the decades around 1600 as the period when discussion is most common.Footnote ⁴ The majority of the ideas enunciated by common lawyers in the period do not seem to have had any roots in a specifically legal tradition, so the common-law attitudes may reflect views held more widely in society, while the role of the Inns of Court in providing some education to many young men who did not pursue legal careers suggests that any common-law ideas could have been formative of wider public attitudes.Footnote ⁵ A number of the justifications provided for relying upon printed material have close links with ideas of proof.Footnote ⁶ B. J. Shapiro has made much of the formative attitude of the common law in developing the concepts of proof in early modern England, and it may be that the common law also shaped attitudes towards print.Footnote ⁷ However, the concepts of proof in the common law also have very close links with early modern rhetoric, and R. J. Serjeantson has suggested rhetoric as another vehicle for the development of concepts of proof.Footnote ⁸ Given the thorough education in rhetoric of many Englishmen in the second half of the sixteenth century, this is a strong argument. If the importance of print was related to concepts of proof from rhetoric, then common lawyers' attitudes may be reflective of more widely held views.

After a brief historical introduction, I will present the evidence suggesting a growing preference for the use of printed material in argument and then consider possible reasons for that. Although individual common lawyers made a number of arguments concerning the merits of print, there was no clear consensus as to the principled basis for the ever stronger reliance upon it. In fact, many of the arguments used to enhance the “credit” of printed texts were also applied to manuscripts.

Historical Background

In the fifteenth century, lawyers did not learn what they described as “their law” from texts. Aside from a few treatises produced in preceding centuries, the main common-law texts were the year books—reports of discussions, typically in the Court of Common Pleas, by judges and senior practitioners on often quite abstruse questions. As one legal historian has observed, “[o]nly blind faith could persuade anyone who has tried to read the year books that the medieval common law was somehow derived from their contents.”Footnote ⁹ The year books were not the principal means of learning the medieval law, however. The material in the year books was read by men who had undergone training at the Inns of Court and who had been initiated into the mysteries of the legal profession. Of central importance to lawyers was what was called “common learning” or “our learning”—indeed, the common law itself was sometimes known as “our law.”Footnote ¹⁰ This consisted of assumptions and ideas about the law held in common by most lawyers. Much of this common learning was acquired through the oral traditions of the Inns of Court, whether by participation in the formal learning exercises or simply through a process of socialization in the course of communal activities. Observation of practice also contributed to lawyers' sense of their law. After their thorough immersion in the common learning, lawyers came to understand the assumptions behind the year books, rendering the texts more readily comprehensible. The common learning tradition declined for various reasons in the later sixteenth century.Footnote ¹¹

In medieval law, legal argument in court was premised upon the common assumptions and ideas that came from the Inns.Footnote ¹² Arguments in court could make reference to legal works, but a vague reference to “our books” is all that a reader normally can find.Footnote ¹³ This tradition of argument continued until the middle of the sixteenth century, with the reports from the reign of Henry VIII showing few references to law books.Footnote ¹⁴ As lawyers came to focus more on individual cases for their expositions of the law there is a corresponding increase in the references to precise points based around texts.Footnote ¹⁵

Legal printing began early. Aside from statutes, Littleton's New Tenures, an elementary student primer, was first printed in 1482. The book clearly enjoyed a high reputation by the middle of the sixteenth century, with one judge describing it as “the true and most sure register of the foundations and principles of our law.”Footnote ¹⁶ Whatever its value as a basic work, there is no evidence of it being cited in argument between lawyers until around the middle of the sixteenth century. Most early legal printing was of works that already circulated in manuscript—the year books and registers of writs. However, printing did lead to some quite early innovations: a legal dictionary and the first abridgements.Footnote ¹⁷ These abridgements were material extracted from both printed and manuscript texts and arranged under headings, providing a relatively easy reference tool for lawyers. Nevertheless, there is little evidence of legal argument in the first half of the sixteenth century becoming especially reliant on these texts.

The printing of common-law texts became subject to a royal patent, a Crown-granted monopoly, in 1553.Footnote ¹⁸ This patent remained in force until the collapse of authority in the 1640s, although it changed hands on a number of occasions, ultimately belonging to the Stationers' Company itself. Although there is no evidence of the monopoly having any particular effect on law printing, it is an important context that should be borne in mind. After the grant of the patent, legal printing was relatively conservative, tending to reprint older works rather than produce new texts.Footnote ¹⁹ Even books printed for the first time were often not novel. Aside from printing medieval works, some of the newer texts, such as Staunford's on the royal prerogative, were printed several years, or even decades, after their completion.Footnote ²⁰ Nevertheless, lawyers did want information about more recent developments. M. C. Mirow's study of the readings (lectures in the Inns of Court) upon the Statute of Wills 1540 shows that readers provided exposition and analysis of recent cases, presumably reflecting audiences' demands or expectations.Footnote ²¹ We might characterize this conservatism as the responsibility of the printer—with a relatively safe monopoly and continuing demand for the older texts, why would a businessman go to the expense of seeking out and acquiring new works?

However, conservatism was not necessarily the responsibility solely of the printer. Richard Tottell printed Littleton's Tenures in 1557 in an edition “conferred with diverse true written copies, and purged of sundry cases, having in some places more than the author wrote, and less in other some.”Footnote ²² The next printing, in 1567, instead proclaimed that the work contained “certain cases added by others of later time … they were lately removed from this book and so once more admitted at the request of the gentlemen students in the law of England.”Footnote ²³ The lawyers evidently wanted, and expected, their books to remain constant: Material that had been added after a book was written but was not the work of the author was to be included if it was part of the familiar printed edition. An attempt to change one of the standard printed legal texts had been decisively rejected. Consistency was prized more than humanistic textual purity.

Before considering the material any further, the outline here can be used as the basis of a very important caveat for my conclusions: In comparison to print in other contexts, that of common-law printed books was unusual. Common-law printing developed to serve the needs of a particular culture within early modern England within which manuscripts also circulated. These manuscripts were often more current, sometimes decades more current, than the output of the printing press. Although at least some common lawyers clearly did have knowledge of legal material from outside England, such material was rarely cited in court, and no instances have been discovered where the textual source of such knowledge was an issue.Footnote ²⁴ As such, the market for common-law books was always subject to a relatively conservative monopoly printer, and all of the printed material discussed here emerged from that monopoly. Finally, a focus upon references to the status of print and manuscript made in court means that only a very few individuals were involved. The same names recur in the reported cases of the late sixteenth and early seventeenth century, even in the court of King's Bench, where advocacy rights were less restricted than in the court of Common Pleas. From the evidence consulted here, there is no way of determining if the views of these common lawyers were shared by other barristers, let alone the growing mass of attorneys.Footnote ²⁵

Common lawyers came to recognize the importance of printing for their work. Francis Bacon made much of the significance to the law of the printing of Edward Coke's Reports, which commenced in 1600. According to Bacon, “had it not been for Sir Edward Coke's Reports … yet the law by this time had been almost like a ship without ballast,” clearly recognizing the importance of print as a stabilizing influence.Footnote ²⁶ By contrast, Edward Coke himself was more circumspect. Coke did recognize the importance of ensuring material was available to lawyers, although his initial justification for printing was the same as an earlier justification he gave for distributing a manuscript text, that without written copies of cases, memory would be lost or flawed, with the unwelcome consequence that for “want of a true and certain report . . . the right reason and rule of the Judges [is] utterly mistaken.”Footnote ²⁷ Coke, however, also recognized that printed texts could lead to unusual developments, undermining the stability Bacon attributed to print. In his report of Mary Portington's Case, Coke noted that an (unwelcome and apparently unorthodox) argument had not been made until an earlier report of his had been printed.Footnote ²⁸ As will become apparent, although print certainly could lead to changes in perspective, and may have supported unusual arguments, it was also valued by some lawyers for its relative certainty in a time of change, change often reflected in manuscript material before it was printed (if it ever was).Footnote ²⁹

The Emerging Preference for Print

The last year for which the year books were printed was 1535. Until the printing of Plowden's Commentaries in 1571, common lawyers had no printed literature addressing their contemporary law.Footnote ³⁰ If the law had remained stable and unchanging, this would not have been a difficulty, but the law was not static. Even Plowden's work could not remedy this deficiency as Plowden provided reports of a small number of cases in great detail, with those cases not addressing many of the changes underway. The posthumous reports of James Dyer, printed in 1585, were a further supplement, but still left many questions unaddressed or unresolved. To take an example, the common law of defamation emerged through the sixteenth century.Footnote ³¹ There are no defamation cases reported in Plowden and only eight in Dyer.Footnote ³² Common lawyers in defamation litigation therefore frequently made use of unprinted cases, some of which seem to have been widely circulated and known by many lawyers.Footnote ³³ As such, “substantial collections of manuscript law reports were still part of the ordinary working law library in the middle of the seventeenth century.”Footnote ³⁴

After 1550 we begin to see more references to textual material, whether print or manuscript, although it is only in the last decades of the sixteenth century that referencing becomes common practice. The fullest reports of legal discussion from 1550 to 1570 are those of Edward Plowden, subsequently printed as the Commentaries (1571). The reports are very full and contain a number of references to texts. The first 154 folio sides of legal argument in the volume cover the first years of the 1550s and contain 151 references to printed cases and 171 references to unattributed cases (which may have been hypothetical, from the common learning, taken from memory or manuscript, or simply unreferenced). The proportions are similar for the second volume of Plowden's Commentaries, covering cases in the first half of the 1570s. D. J. Ibbetson's survey of all the reports of Michaelmas term in 1595 counts 463 references to printed reports, 80 clear manuscript references, and an undisclosed number of references to cases that cannot be attributed to either print or manuscript.Footnote ³⁵ A slightly smaller sample compared to the survey of Plowden, of reported cases from 1630 to 1635, contains 390 references to printed cases, but only 108 to unprinted cases.Footnote ³⁶ There is both an increase in the rate of citation in the period 1550–1635 and a marked shift towards references to identifiable printed texts. The movement in favor of printed material is evident by the mid-1590s.

These statistics suggesting an increased use of printed texts in relation to manuscript are indicative, but they may simply reflect the convenience of making use of printed material over manuscripts, or even memory. However, there is some other evidence suggesting that printed material was actively preferred by common lawyers. This evidence is harder to discern, as one needs to find situations in which print and manuscript were used as alternatives, rather than the much more typical complementary references. Most of this evidence emerges from the fact of considerable, and dramatic, legal change over the course of the sixteenth century.

Such evidence goes much further than simply showing common lawyers citing more printed material than unprinted. It indicates that some lawyers consciously sought to rely upon printed material, seemingly due to its printed status. This development is not seen until the end of the sixteenth century. Ibbetson has observed that although common lawyers clearly did continue to use manuscripts, in some contexts quite the contrary is seen. Using two cases from the last decade of the sixteenth century as his examples, he observes that the litigation concerned questions that simply did not exist in 1535. However, the lawyers in those cases sought to make use of the available printed matter as the basis of their arguments, despite the fact that there was a large body of considerably more pertinent manuscript material in existence.Footnote ³⁷ Given that at least some manuscripts certainly did circulate among lawyers,Footnote ³⁸ the fact that lawyers chose to rely upon less relevant printed material suggests a preference for the printed text in legal argument. This could be attributed simply to the convenience of using printed sources, but it may be one piece of evidence suggesting that lawyers considered printed material to be preferable to manuscript.

Some lawyers pushed this approach further. Rather than simply using print instead of manuscript, they expressed views that it was better to use printed material, sometimes going so far as to challenge the use of manuscript material. The simplest example is from Sir Edward Dimmocke's Case (1609). There was a conflict between the printed report of a case in Dyer's reports and a manuscript version. Walter simply observed “that he credited more the printed book.”Footnote ³⁹ Walter makes it clear that he does prefer printed material over manuscript. His use of the language of “credit” is important and will be addressed below.Footnote ⁴⁰

A little earlier, in the defamation case of Holwood v. Hopkins in 1600, Thomas Walmesley responded to Chief Justice Anderson's desire to view the record of the court of King's Bench by remarking that “our books are good precedents to guide us.”Footnote ⁴¹ The records of the courts are unwieldy documents, in both physical and intellectual senses, and all were handwritten.Footnote ⁴² Within legal argument, however, such admittedly difficult material seems to have had much greater force than mere references to reports of prior cases, although it was much less frequently used.Footnote ⁴³ Lawyers would use the record, referred to often as “precedents,” to confirm the accuracy of reports of cases, whether from print, manuscript, or personal memory. At times, reference was made to the record, and such references would cause a judge to change his mind as to the appropriate legal outcome in a case, an early example of binding precedent.Footnote ⁴⁴ The manuscript record was consequently of considerable importance in legal argument. Nevertheless, Walmesley sought to challenge its status. Crucially, Walmesley's argument makes it clear that the “books” to which he referred were the printed year books, as the only cases he brings into the discussion are from the printed canon. This suggests an important change in legal language. In the year books, references to the “books” are evidently references to manuscript texts (and perhaps only to a lawyer's imprecise recollection of those manuscripts), but Walmesley instead focuses exclusively on print. Walmesley's language is the first example we see of two important trends. The first is to use the language of “our books” in a context that shows that the “books” concerned were printed books only.Footnote ⁴⁵ The second is the use of print as a device for conservatism in the substantive law.

Walmesley seems to have decided his approach, though a failure, was worthwhile since he tried something similar in 1602. In the important contract litigation known as Slade's Case, when Francis Bacon made his argument and used printed cases in support of it, Chief Justice Popham asserted “[t]hat is not law,” to which Walmesley retorted, “[b]ut still the books are thus.”Footnote ⁴⁶ Walmesley sought to use the cases in the printed books as the sole determinant of what was, or was not, the law. The approach did not work in either of these cases: In Slade's Case Popham simply rejected Walmesley's approach with the curt response that “the books are against the law.”Footnote ⁴⁷ This rejection of cases was possible throughout the period discussed here.Footnote ⁴⁸ Both of these attempts to regulate legal argument so as to be limited to printed material were clearly conservative in their purpose—Walmesley was, in both cases, seeking to prevent changes being introduced into the law as understood by the Court of Common Pleas, in both instances an understanding different from that in the King's Bench.

The changed language of the “book” was not exclusive to Walmesley, although he provides the first evidence of it. After Walmesley, the language of the “books” is used in precise references to printed texts, not manuscripts. The change is perhaps a consequence of the fact that lawyers referred to “our books,” the common property of the profession. By 1600 or so, only printed books were truly common to the whole profession. We can see the change to the idea of the “books” in the language of James I in 1609 and in the reign of Charles I.Footnote ⁴⁹ In James v. Hayward in 1630, Justice Croke argued that unless a point was included in the “books,” it was invalid.Footnote ⁵⁰ From the material cited in the argument, the “books” seem only to be printed. If this is correct, we have a suggestion that the printed corpus of common-law literature was becoming an exclusive canon. The approach put forward was rejected by the other judges in their arguments, but Croke at least thought that it was plausible. If this change in legal language was widespread in the profession, it means that the directions given to newly appointed judges in the early 1630s by Lord Keeper Thomas Coventry are another example of this exclusive role for print. Coventry made it clear that the judges were to judge according to the “book cases,” rather than any “novelties” put forward by lawyers.Footnote ⁵¹

A final example of a special role for print comes from one of the most controversial legal issues of the late sixteenth and early seventeenth centuries. In that period, the common-law courts, in particular the Common Pleas, were in jurisdictional dispute with various other courts in England, such as the ecclesiastical courts and the Court of Admiralty. The common-law courts could, and did, issue writs of prohibition to regulate proceedings in these other courts. Whether, and in what circumstances, the common-law courts were entitled to issue such writs became a conflict into which, ultimately, James I himself was compelled to intervene.Footnote ⁵² Much of the dispute concerned the fact that the common-law courts had begun to grant prohibitions in situations where, apparently, no writs had been issued before. Evidently the printed common-law material, with its focus on the law before 1535, therefore contained no such writs. By contrast, once the common-law courts had issued a writ, it became part of the record of the court. The common-law courts defended their claims by references to their own records, material that would usually be determinative. Papers in the Ellesmere collection at the Huntington Library cast light on this dispute. Most of the argument was couched in simple terms—disputes over whether there were earlier precedents favoring one side or another. Hobart, the attorney general, produced a list of precedents on this point, as did Julius Caesar on behalf of the Court of Requests.Footnote ⁵³

However, another argument, more pertinent for present purposes, was put forward on a number of occasions. The anonymous “Observations” on the topic were express that they would be limited to the law as “may be demonstrated and proved by book cases in print” [emphasis added].Footnote ⁵⁴ As did Walmesley and Croke, it was asserted that printed material was the only appropriate source for legal argument. This approach was copied by other participants in the debate. A letter from James Montagu, the bishop of Bath and Wells, to the lord chancellor, Thomas Egerton, informed Egerton that the king desired him to ask the judges of the King's Bench as to whether the position taken by the Common Pleas was “warranted by diverse of your printed law books” [emphasis added].Footnote ⁵⁵ The judges of the King's Bench complied with this limitation in their reply.Footnote ⁵⁶ A 1609 letter from Thomas Walmesley on this issue responded to certain specific questions that had arisen in the dispute, and Walmesley, as before, limited his reply to what could be warranted by “book cases.”Footnote ⁵⁷ In fact, the approach seems to have been accepted by the king himself. During the 1609 debates, James made it very clear that he preferred the printed cases cited by Egerton to the “precedents” put in argument by Coke.Footnote ⁵⁸ James evidently found this distinction useful since he relied upon it again in 1616. In the process of suspending Edward Coke from his post as chief justice of the King's Bench, an action stimulated, at least in part, by the dispute over prohibitions and the contents of Coke's printed Reports, James I spoke in Star Chamber against judges making “new laws” or bringing in “new tricks.” James required the judges to “follow the old precedents and Plowden”; significantly, James sought to restore orthodoxy through references to the old records (rather than the recent entries) and Plowden's printed reports, excluding Coke's printed reports (the content of which was one of the reasons for Coke's dismissal) and any manuscript law reports.Footnote ⁵⁹ Once again we see a conscious reliance upon print as a means of restricting innovation, in this case in contrast to the use of manuscript reports or the manuscript record by the judges.Footnote ⁶⁰

The dispute over prohibitions brings out the issue most clearly. Most of the references to “the books” could simply be an expression of a preference for older legal ideas that happened to be contained in print. However, in the prohibitions dispute, the justification given for relying upon older law was not that old law is better law, but that the law found in printed texts is to be preferred, seemingly by virtue of the fact that the material is printed. This is a critical distinction, showing that at least some common lawyers were willing to distinguish between legal texts based solely upon the means of production. Since lawyers would not have advanced an argument favoring print unless they considered it potentially acceptable to other lawyers, we must consider the fact that perhaps the other references to the exclusive role of the (printed) books are further examples of this normative role for printing.

Evidently this evidence raises a serious challenge to E. L. Eisenstein's thesis that print led to the reading of a wider range of texts, a development with important consequences for intellectual history.Footnote ⁶¹ It is possible to dismiss this conservative use of print as a simple product of the relatively unique circumstances of the common law compared to other legal systems and intellectual fields. The common law experienced rapid and widely recognized change with which the printing press did not keep pace. There was certainly a degree of opportunism in these attempts to limit legal argument to printed texts—those propounding such a view were well aware that the printed material available to lawyers was limited and often too old to be of use in modern disputes. Bacon himself later admitted that without Edward Coke's printed Reports, the common law would have been in difficulty.Footnote ⁶² In such an environment, it would be easy to utilize the inertia of the press as an agent of “unchange.”Footnote ⁶³

Justifications for the Role of Print

The limited nature of legal literature may explain why lawyers sought to restrict argument to the printed sources. However, it does not explain how such a change could be justified (either expressly or impliedly). The position was not uncontested. If it had been, the suggestions in 1609 that one should rely solely upon printed texts would have meant that Hobart's simultaneous work to support the ecclesiastical jurisdiction by using the records of the court would have been superfluous. Lawyers did seek consciously to manipulate the distinction between print and manuscript tests, but they were not assured of success. In fact, the claims that legal argument should rely solely upon printed texts were never successful. This is important, but it does not detract from the fact that the argument was made. Minority views have the potential to become orthodoxy, particularly with royal backing or approval, such as that shown by James towards a focus on print.Footnote ⁶⁴ Furthermore, “lawyers are retained to present arguments which have a chance of success.”Footnote ⁶⁵ Although the assertions of an exclusive role appear to be tactical, even opportunistic, lawyers could only seize an opportunity that existed. The lawyers suggesting a special role for print were probably relying upon a more widespread attitude in the profession (and perhaps more generally) that printed material was to be preferred and sought to push the practical preference into a normative exclusivity. There are a number of possible justifications for both the preference for print and the assertions of its exclusivity.

The first possible reason for preferring printed texts over manuscript was that of reliability. This contrasts with Johns's approach, who argued that printed texts were recognized as unreliable,Footnote ⁶⁶ an attitude supported by Francis Bacon's scheme to establish official law reporting in England. According to Bacon, misprintings “many times confound the students.”Footnote ⁶⁷ As with the manuscript tradition, printed texts had difficulties associated with their use and were certainly not invariably uniform or reliable. The best evidence comes from situations where a printed report was dismissed because the content was considered to be incorrect. We have already seen Chief Justice Anderson rejecting a printed text as wrong, which would suggest an idea that printed texts were certainly not recognized as automatically acceptable or accurate. This rejection of any special status was not unique to Anderson: Other judges also rejected cases found in print. Printed cases seem to have been no different than manuscript material or pure memory, all of which could be rejected on this basis.Footnote ⁶⁸ The crucial concern is whether printed material could be rejected because of its printed status. Following Johns's analysis, this would be to attribute the inaccuracy to flaws in the printing process rather than to the author or reporter. Aside from Bacon's remark, only one case has been found where a judge, instead of simply announcing that the material was incorrect as a statement of the law, expressly criticized the text because of its printed status. In Dumpor's Case (1603), Chief Justice Popham made it clear that a case printed in Dyer was incorrect, “and for this the chief justice said that he thought the case was falsely imprinted, for he held clearly that this was not the law.”Footnote ⁶⁹

Popham's rejection of Dyer's reports may have simply been Popham taking advantage of the recognized unreliability of the printing process to reject otherwise persuasive material in a more politic manner rather than an assertion that the substance of the material was wrong. However, a few years later, Sir Edward Dimmocke's Case (1609) featured a conflict between the printed and manuscript versions of a case in Dyer's reports. Walter resolved the conflict by stating “that he credited more the printed book.”Footnote ⁷⁰ Why was Popham able to reject a case because of the unreliability of print, but the same printed work was later considered to have more “credit” than a manuscript?

There is an easy answer: Popham and Walter were not discussing the same thing. Popham was concerned with the individual report that he compared to an external standard (his personal legal knowledge) and found the printed report inconsistent, so probably inaccurate. Walter was instead comparing two texts and argued in the more general terms that the printed book was to be preferred to a manuscript. This resolves the seeming conflict, but it merely clarifies the real question: Why was Walter able to simply assert that a printed book had more “credit” than a manuscript? This becomes more problematic if we accept Eisenstein's point that “the idea that simply printing a text could make it more accurate or credible strikes me as absurd.”Footnote ⁷¹

Walter does not give any justification for his preference for a printed text, but one is implicit in his language of “credit.” The language of “credit” is found in early modern sources when assessing the reliability of, and weight to be given to, the testimony of witnesses.Footnote ⁷² Johns shows that the language of credit was also used as a means of overcoming the apparent indeterminacy of the printed text.Footnote ⁷³ The function of credit was to answer a seemingly simple question: “Could a printed book be trusted to be what it claimed?”Footnote ⁷⁴ In the legal context, could a printed law report be trusted to be an accurate statement of what had occurred in court from which lawyers could ascertain the law? Johns has made it clear that early modern readers developed various techniques by which they attributed “credit” to printed texts. I will be discussing the various means by which readers may have attributed credit to printed texts. Some come from the efforts of the printers, but others reflect broader ideas of credit current in legal discourse that could have particular application to printed texts.

On a rather simplistic measure, printed common-law books do not look especially unreliable, which would aid their “credit,” at least in comparison to manuscripts. Although it is very difficult to assess reliability without considerable research, a proxy measure has been used here. Once the patent system was established, the same books were reprinted and their pagination or foliation remained more or less constant. There are occasional variations of one or two words at the start and ends of pages, but that is all. Even when Jane Yetsweirt reprinted year books in a different format, she inserted marks indicating the earlier foliation.Footnote ⁷⁵ Although the law printer also made much of the improvements and enlargements made between printings, these were invariably limited to marginalia, typically expanded references and cross-references, rather than any changes to the texts themselves.Footnote ⁷⁶ Lawyers may, therefore, have become accustomed to legal texts that were not prone to change. The fact of relative stability in the books may have led to an impression of reliability, certainly compared to the acknowledged problems with many other printed works.Footnote ⁷⁷ The less stable manuscript tradition would then generally appear less reliable in this regard, even if the substance of the text was no different. It is perhaps noteworthy that Thomas Walmesley, whose name appeared with some regularity when discussing attempts to limit legal argument to print for conservative purposes, was also a collector of legal manuscripts, who may consequently have been more aware of the difficulties inherent in their use.Footnote ⁷⁸

These efforts of the printers may have been complemented by the claims the printers made about their products. Many of the year books printed by Richard Tottell included claims on their title pages that the edition had been compiled in conjunction with manuscript copies, rather than merely earlier printings.Footnote ⁷⁹ Although this was evidently done for commercial reasons, it may have had an impact upon readers in suggesting that there was no benefit from examining manuscripts because the work of comparison had already been completed.Footnote ⁸⁰

Beyond the world of the printing house, lawyers seem to have devised strategies for the award of credit to both printed books and manuscripts, all of which could justify a role for printed texts. Although the techniques were applied to all texts, many of them would have benefited printed texts more than the type of manuscripts lawyers used in argument. The first of these techniques depends upon the fact that the printed reports of Plowden and some of those from Coke, but not the earlier reports from the year books, were prefaced by references to the record. The strength of the record in legal argument, and its importance, has been described above.Footnote ⁸¹ In Pinchon's Case (1611), Coke explained why the record was so important, stating that he “reported out of the record itself at length, to the intent the reader may be assured of the truth of the said case.”Footnote ⁸² Although Plowden included the full record, Coke included merely the pleadings, not the entry of judgment into the record. Nevertheless, Coke's Reports did at least give the reference to the record in a given case, enabling easier verification. This use of the record was not limited to printed material. Thomas Egerton linked his citations of the manuscript reports of Bendlowes to references to the record of the cases reported, and Ibbetson has shown that this was a more general, although not universal, practice in the late sixteenth century.Footnote ⁸³ Lawyers associated both printed and manuscript reports with the record, presumably for precisely the reason Coke gave—to attest to the reliability of the report. The form of printed reports in itself began to provide a means for assuming the reliability of the report—including the text of the record acting as a verification of the report itself, an advantage shared by only a few manuscripts.

Printed reports also had an important advantage over manuscript texts. The new printed law reports produced after 1550, rather than reprints, featured prefaces. With certain notable exceptions, such as Coke's unusual circulation of his argument in Shelley's Case with a letter dedicatory, manuscript reports did not.Footnote ⁸⁴ The preface provided a space in which the authors of reports could assert the reliability and accuracy of an entire volume. Any claims in the preface would then apply to the whole work. Plowden, for example, made much of the fact that the content of his reports, when he was collecting them for purely personal use, had been approved by the participants in the cases, implying that the best witnesses had corroborated the reports.Footnote ⁸⁵ Coke's assertion that he “was of counsel, and acquainted with the state of the question” for all the cases in his first volume of Reports is another attempt to demonstrate their reliability through his status as an eyewitness, as is Coke's remark in his report of Chudleigh's Case that he had observed most of the judicial arguments personally and otherwise he relied upon “credible relation of others.”Footnote ⁸⁶ These claims to being an eyewitness to the events reported was a means of a first-hand witness ensuring the reliability of texts—and is found in other early modern disciplines. Shapiro draws attention to the fact that “perfect history” required the author to be just such an eyewitness, in fact, ideally a participant, and that “the rhetorical critique of hearsay was well known.”Footnote ⁸⁷ Coke and Plowden made use of these common cultural ideas to establish the “credit” of their reports. It is quite possible that the “credit” given to reports by Dyer was similarly based upon his status as a participant-observer in many of the cases he reported.

One criticism of early modern reports, made by Coke presumably in relation to manuscripts, was that they were “masterless,” by which Coke seems to mean they lacked an identified individual with responsibility for the text.Footnote ⁸⁸ Manuscripts were often anonymous, and lawyers would have been well aware that many manuscript reports were produced by students as part of their education. To bolster the acceptability of references to manuscript reports, lawyers sought to associate the manuscript with lawyers who were well-known, and well-reputed, law reporters: The reports of Carrill and Bendlowes were particularly prominent.Footnote ⁸⁹ Aside from these common examples, the same approach lay behind Serjeant Hele's use of a manuscript report in Holwood v. Hopkins (1600). Hele claimed that the report was in the hand of Popham CJ.Footnote ⁹⁰ Although this did not satisfy Anderson CJ, who asked to see the record of the case, Hele's assertion of the author of the manuscript was an attempt to improve its standing in argument, presumably through the prestige associated with its author.Footnote ⁹¹

Exactly the same approach can be seen with regard to printed texts. The printed common-law works cited in argument were not anonymous; in fact, many of them were referenced simply by the author's name. Many claims to the reliability of printed works are made by reference to the personal characteristics of authors.Footnote ⁹² In Penyngton v. Hunte (1544), an earlier discussion than others, the solicitor-general, Henry Bradshaw, asserted that the text of a writ found in Fitzherbert's printed Novel Natura Brevium was to be preferred over that found in “various old registers,” because Fitzherbert “was a learned and discreet man, and doubtless before making his book he had perused many of the registers and based the form of writ in his book on the most perfect of them.”Footnote ⁹³ The same point was made about Fitzherbert in 1602, that he had “very great industry in the perusing of precedents and records . . . his authority is to be preferred.”Footnote ⁹⁴ In both these cases it is the reliability of a printed text, and from reliability its acceptability, that were determined by the personal qualities of the author of the text. Similarly, Edward Coke in 1602 made it clear that the unknown authors of the (printed) year books were “discreet and learned professors of law,” but Bacon's recommended scheme for law reporting also stressed that reporters should be “most learned counsel” and “grave and sound lawyers.”Footnote ⁹⁵ All these descriptions implied the reliability of the text through the work of the author. Posthumous publications of law reports featured similar techniques. The preface to the printed edition of Carrill's reports, known as Keilwey, commenced with a list of Robert Keilwey's praiseworthy qualities. These focused upon his hard work and erudition, implying that the reports that were considered to be his work would be of high quality.Footnote ⁹⁶ Dyer's reports were prefaced with a claim that “grave and learned judgments” by men of “greater countenance” than those making the decision to print had induced the publication of the work.Footnote ⁹⁷ These claims therefore asserted that the text was worthy of recognition and could be used profitably.

Some references to the author are not concerned with the reliability of the text, but rather simply the credit of the author in a vaguer sense. When Coke disagreed with a printed case in his report of Mary Portington's Case (1613), he made it very clear that he still regarded the author very highly, suggesting that had it not been for other factors, the author's personal reputation would have seen the case accepted.Footnote ⁹⁸ In Norwood v. Read (1558), printed in Plowden's Commentaries, there is a reference to the rejection of a case from a year book in one of Fitzherbert's printed works. Counsel urged Fitzherbert's position to be accepted as “Fitzherbert was a judge of great fame,” clearly intending to obtain credit for the view by relying upon the personal prestige of Fitzherbert as author, but with no express assertion that Fitzherbert's office would ensure the reliability of the text.Footnote ⁹⁹ Evidently any such assertions as to the quality of the known authors of printed texts would aid in demonstrating the credit of the work as a record of past events.

Coke's remark about the year books, however, suggests that the characteristics of authors were not necessarily based upon any clear knowledge, because the authors of the year books were, and remain, largely unknown.Footnote ¹⁰⁰ Coke's attribution of quality to the year books through their authors was therefore fictitious, at most a presumption he used to assert the quality of the text, although the myth of the four appointed reporters upon which Coke's assumption was based had been made decades earlier in the preface to Plowden's Commentaries.Footnote ¹⁰¹ The characteristics of authors highlighted by those seeking to support a reference to a printed text were also important in early modern common-law practice in assessing the credibility of witnesses. References to the learning, education, office, and fame of witnesses, which can be seen in claims about printed books, are also all found in both the rhetorical tradition and early modern justice of the peace manuals.Footnote ¹⁰² The crucial role of these ad hominem arguments in establishing the credibility of both witnesses and texts in early modern England explains Coke's concern to establish the authorship of the year books. Although lawyers used the same technique for attributing credit to printed and manuscript texts, the difference in authorship, and particularly the knowledge as to the author of the printed common-law texts, would raise the status of printed texts against many of the manuscripts in circulation.

The personal characteristics of authors of printed texts could also mix with other arguments in favor of print. Most obviously, Coke asserted that the year book writers had been appointed by the Crown, and Bacon thought the king should do just that for the future.Footnote ¹⁰³ This idea of official status may have contributed to ideas of print as being in some way sanctioned and therefore to be preferred. Certainly the record was an unquestionably official manuscript and seems to have been the most authoritative source of legal argument. Although manuscript texts were not condemned by any particular importance attached to official status, authorized texts (such as printed material and the record) would have been relatively stronger in argument. Johns has suggested that an official warrant may have contributed to ideas of the “credit” of printed books, even going so far as to suggest that books printed under the patents granted by royal prerogative may have been viewed as the work of the Crown itself.Footnote ¹⁰⁴ The argument is interesting, but no trace of it has been found in common-law argument before 1640. Edward Plowden had a different claim to some form of official status—although his reports were collected for his personal use, various friends, including judges, had been the agents persuading him to print.Footnote ¹⁰⁵ In effect, Plowden asserted an imprimatur for the content of his material from the judges, themselves Crown servants. Edward Coke was unable to do so, but Coke's subsequent appointment to the judiciary meant that at least the later volumes of his Reports merged the recognized status of the author with the fact that he could give himself judicial authorization to print.

There was official regulation of the press in early modern England, regulation which did, at least in theory, affect the law press. Elizabeth imposed a prepublication review procedure in 1559, and in 1586 common law books were required to be licensed by the two chief justices, amended in 1637 to a sole chief justice.Footnote ¹⁰⁶ In 1622, Serjeant Hendon sought to rely upon Dalison's reports, which had been printed as an appendix to another work by Thomas Ashe. One of the judges, Hobart, “demanded of him by what warrant those reports of Dalisons came in print.”Footnote ¹⁰⁷ Hendon promptly changed his argument to continue without further reference to the case he cited. Hobart's challenge indicates that unless reports had a “warrant” they might not be readily accepted in argument. The obvious warrant would be from the licensing system. The difficulty with this is that there is no evidence of any law books being licensed before around 1650. The licensing requirement was only triggered if books were entered into the registers of the Stationers' Company when printed. Common-law books (including those of Ashe) were only entered into the register on two very exceptional occasions, when they were entered as a group, although in neither case is there any evidence of licenses being awarded as a consequence.Footnote ¹⁰⁸ Any assertion of the need for a “warrant” for the acceptability of printed law books therefore could not stem from the official licensing procedure. Perhaps more important was an informal system of preprinting review. When Ferdinando Pulton sought to produce his edition of the statutes in the early seventeenth century, he not only communicated with Lord Chancellor Ellesmere but was also advised by Ellesmere to contact several judges.Footnote ¹⁰⁹ Although not a formal system of licensing, it may be that judges expected works to have been approved by senior practitioners before publication, and that a failure to obtain such approval may have cast doubt upon a book. The response of Hobart may, however, have been limited to the peculiar circumstances surrounding Ashe's book in which the reports were found. Ashe's work included reports from both Bendlowes and Dalison. There is some evidence that permission had been sought from the judges by Bendlowes's son to print the reports of Bendlowes. This permission was denied.Footnote ¹¹⁰ Rather than indicating a general rejection of material for which there was no “warrant,” it may rather be that Ashe's printing of Dalison associated those reports with the work of Bendlowes, which the judges had prohibited from being printed. Hobart's rejection of the text may be a reaction to Ashe ignoring the judges' views, rather than any evidence of a general idea that printed texts needed to be in some sense “official” if they were to be acceptable in argument.

The final rationale for the increased importance of print relates to Renaissance traditions of discourse, but it also has links with European legal theory and some uniquely common law ideas. It is also a justification for the role of print that was independent from any judgment as to the “credit” of individual works. Simply put, printed texts provided a common, and widely known, store of materials from which lawyers could draw their arguments. The commonplacing tradition of the sixteenth and seventeenth centuries was one in which people sought to find ideas and materials common to all from which to construct arguments.Footnote ¹¹¹ This would suggest a rationale for print coming to predominate over manuscript in all fields of discussion. Certainly lawyers, and other people closely connected with the Inns of Court, recognized this fact generally during the reign of Charles I; Selden advised others to rely upon “familiar” material when making arguments, and John Donne condemned the use of manuscripts, apparently using an argument from “the School.”Footnote ¹¹² Manuscript material, even if it circulated, could not be assumed to be known by all lawyers. Even the records of the court, though technically accessible to all (upon suitable payment being made), were difficult to obtain. The record was stored in a cellar whose qualities can be inferred from it being known to lawyers simply as “Hell.”Footnote ¹¹³ Pure memory, not clearly associated with any text, was even more vulnerable to challenge as unknown. Judges did dismiss cases put in argument on the basis that no one in court could remember them, although on other occasions they were willing to rely upon their own memory of cases from thirty years earlier!Footnote ¹¹⁴

However, the matter is not as simple as might be believed. Even though all lawyers had access to printed books, there is some evidence that no lawyers had access to the texts themselves when making their arguments in court. In the vast majority of instances this has no effect on legal argument—printed material was generally accepted and disputes focussed upon substantive issues. However, when lawyers made points that were either unusual or controversial, the accessibility of print may have been preferred. According to Plowden, in 1553 Chomley and Gerard made a point they accepted might be controversial, so had brought the relevant text to court to show to the judges.Footnote ¹¹⁵ In this regard the shared nature of print is associated with reliability—assertions from a printed text could be verified by presenting a widely known book with all the benefits outlined above. By contrast, unknown texts were vulnerable to insinuations of impropriety. Serjeant Hele once asserted a case in argument:

The reporter here was therefore skeptical about unknown material. Although most lawyers were probably not deliberately misleading in references to unknown material, it would always be a possibility with manuscripts.

The idea of printed material being generally available may have possessed greater force for lawyers than a simple acknowledgement of the utility of widely known material, possessing instead a degree of normative force. The first reason for this idea is found in the sermon of Donne quoted above and in a remark by Dyer. This argument was similar to, perhaps based on, the Thomist position that for a lex to be effective law it had to be promulgated, a view occasionally enunciated in the medieval common law, but never applied.Footnote ¹¹⁷ The use of Thomist arguments to privilege print would give a theoretical foundation to a preference for print, indeed for an exclusive role for print. Although Donne was familiar with legal ideas from his time at the Inns, his sermon did not concern the common law, but it did concern legalistic matters, and Donne's associations with the Inns of Court give it more significance than it might otherwise have. Donne explained that the Final Judgment is an exercise of God's Law and emphasized that condemnation by a secret law would not be just, but that God's law had been published.Footnote ¹¹⁸ This public law of God was contrasted with the secrecy and unknown status of manuscript. Dyer's invocation of the Thomist idea is more clear. In Wood v. Dallison (1579–90), Dyer sought to mitigate the consequences of a statute due to its unprinted status. Dyer observed that “this statute … is a private statute not printed therefore a man shall not be compelled to take conusance of this so easily as if it was in print” [emphasis added].Footnote ¹¹⁹ In the second half of the sixteenth century, a “public” statute was one that had been officially printed.Footnote ¹²⁰ Dyer therefore argued that because a statute (a lex in European and theological terms) was unprinted it had less force as law.

The second reason why the use of printed material may have possessed normative force is unique to the common law. The author of the “Observations” on the granting of prohibitions by the Common Pleas justified relying solely upon printed books as it is “[o]ut of which books, students of the common law learn their knowledge, and do or should, direct their counsel and advice to their client.”Footnote ¹²¹ Students of the law “learn their knowledge” [emphasis added] from print. This language is crucial. As discussed earlier, common lawyers were a professional group who defined themselves by their learning, and had done so for generations.Footnote ¹²² The author of the “Observations” in effect acknowledges that the “common learning” of the common lawyers was no longer obtained through oral instruction in the Inns of Court, but by reading.Footnote ¹²³ Other sources of legal knowledge were not, or were becoming less, common. Manuscripts were inevitably unknown to at least some of the profession, and access to Hell was restricted, even for lawyers.

The common lawyers' notion of common learning carried with it connotations of approved doctrine. The author of the “Observations” even went so far as to compare the judges' reliance upon their own prior proceedings to determine their powers and jurisdiction, rather than on print, as differing “not much from the Pope's proof of his supremacy by citing the opinion and judgments of former Popes and their parasites.”Footnote ¹²⁴ The argument was directed against the citation of a court's own precedents to justify its jurisdiction. However, in the “Observations” this inappropriate use of a court's own precedents was expressly linked with the use of unprinted material, linking the reliance upon unprinted precedents with discredited modes of Catholic reasoning, rendering such arguments un-Protestant and associating them with a church widely seen as subversive.Footnote ¹²⁵ The notion of approval and correctness is also seen in James I's speech to all the judges and the directions to new judges given by the Lord Keeper in the 1630s. Good judges would rely upon printed texts, bad judges on “novelties,” impliedly not those found in print.Footnote ¹²⁶ These views all suggest another context in which Love's claim that manuscript came to be seen as subversive can be borne out.Footnote ¹²⁷ For these lawyers, manuscripts could be subverted, but the common knowledge found in print would ensure correct reasoning.

More interesting is that just as Thomas Walmesley and others relied upon the medieval language of “our books” to stress an exclusive role for print, the author of the “Observations” still relied upon ideas from the medieval common law of common lawyers defining themselves by “their learning” and their books. In both cases, these lawyers proposed radical changes to the existing norms of legal argument, but did so by relying upon old ideas. These old ideas were then applied in the changed context of a world where printing enabled greater access to texts. It is no coincidence that it is around 1600 that we begin to see common lawyers asserting that “their law” is written law (lex scripta) rather than unwritten law.Footnote ¹²⁸ Thomas Egerton even made it clear that the common law was not originally lex scripta, but it had become such by 1609, resolving a theoretical conundrum that first perplexed lawyers in the twelfth century.Footnote ¹²⁹