The commoning of the common law: the Renaissance debate over printing English law, 1520-1640.

• Author: Ross, Richard J.

1. WHY WAS IT ACCEPTABLE TO PRINT LAW?

   1. Humanism

   2. Protestantism II. THE DEBATE OVER THE RISKS AND ADVANTAGES OF PUBLISHING LAW: PUBLICISTS AND ANTI-PUBLICISTS

   1. Forensic Boundaries

   2. Contrasting Predictions

      1. The Law's "Mystery"; Publicist Appropriations of

         Law Printing for Professional Self-Defense

      2. Making Knowledge Common and Inviting Its Misuse

      3. Litigiousness

      4. Political Unity

   3. The Anti-Publicists III. CHALLENGES TO THE PUBLICISTS, FOUNDATIONS FOR THE ANTI-PUBLICISTS: SOCIAL, POLITICAL, AND CULTURAL CONTEXTS FOR THE DEBATE ABOUT LAW PRINTING

   1. Audience, Acclimation, and the Breakdown in Strategies

      of Containment

   2. Wariness Towards Routine Print: Censorship, Religious

      Conformity, and Political Arcana

   3. Print and Manuscript as Media for Transmitting Law IV. WHAT WAS AT STAKE IN THE DEBATE: THE "OWNERSHIP" OF THE LAW AND THE COMMONING OF THE COMMON LAW

      Why publish the laws of England? What effects would printing have? From the early sixteenth century through the Civil War, these questions framed a debate among English lawyers over the propriety, advantages, and risks of legal publication. Advocates of law printing, in their soaring moments, prophesied national unity, godliness, and social harmony flowing from the legal press as readily as quartos and folios. The barrister William Hudson, by contrast, looked back with "reverence" on the common lawyers who abstained from "publishing their meditations and arguments,... holding it as a flag of their vainglory unworthy of their gravity."(1) Such laudable restraint was no more in

      this cracking age, when all men in all professions quicquid subito

      crepant omnino a statu Apollinis credunt [believe that whatever they

      suddenly rattle forth entirely comes from an Apollonian state (e.g.

      authoritative frenzy)]; who, for fear of burying their talent, post to the

      press to publish to others that which they well understand not themselves;

      it being assuredly no matter of necessity to publish the reasons of the

      judgment of the law, or apices [tittles or small points] or fictiones

      juris [legal fictions] to the multitude, who are apt to furnish themselves

      with shifts to cloak their wickedness, rather than to gain understanding

      to further the government of the Commonwealth: for surely few men would

      be ruinated by dishonest means, if men knew not how to cover their

      dishonesty under some color of law or justice ....(2)

      Participating in the expansion of law publishing underway in Elizabethan and early Stuart England, lawyers questioned print's impact on a profession heavily dependent on manuscripts and oral tradition and on a nation reading lawbooks without the interpretive conventions imbued by legal training.(3)

      Print's effect on English legal culture has not received the sustained attention devoted to the history of the book in religion, statecraft, and science. But neither has it gone unnoticed. Historians of communications have explored the social impact of law publishing, and legal historians have examined the influence of printing on the doctrinal and institutional development of the common law. To cite only several of its various ramifications, print, historians say, helped along the recognition that law was made rather than found; facilitated the formation of the modern notion of precedent, the solidification of a group identity within the profession, and the breakdown of the oral learning exercises in the Inns of Court; and both provoked and carried a common law apologetic and nationalist literature.(4)

      The legal press was a causal agent, and an important one. But law printing was also an intellectual problem, its meaning and repercussions uncertain and divisive. It provoked attacks, called forth defenses, conjured aspiration and warning. That history has yet to be written. This Article offers a contribution to recovering this lost debate, focusing on contemporaries' disagreements over the promises and drawbacks of legal publishing, treating the political and social effects of books as contexts shaping the discussion. The first Part explores the initial justification of law printing offered in Henrician England, an echo of humanist and Protestant advocacy of textual dissemination as an agent of godly order, solidifying obedience as it dissolved obscurantism. The second Part discusses the dispute that broke into public view in the latter sixteenth century over the perceived threats and advantages of legal publishing, a controversy pressed by an emerging group of skeptics such as Hudson, whom I dub the "anti-publicists." Anti-publicist arguments were not confined to a discernible circle, still less the program of a movement, but were an idiom of disapproval employed selectively. The third Part explores the context engendering the debate and making plausible the disputants' contrasting prophesies about the effects of lawbooks. Three interrelated developments stand out: the growing lay audience putting lawbooks to political uses and undermining the tacit identification of the reading public with the profession; increasing episcopal and absolutist suspicion of the unwitting dangers of licit printing; and the gradual realization within the profession of how print reshaped the control of knowledge (and hence of status and power) among themselves and between themselves and the nation. The fourth and final Part reflects on how the controversy over law printing implicated a larger change in English legal culture: the "commoning" of the common law along the simultaneous dimensions of communication and ideology as the law evolved, in the realm of perception, from a guild possession to a national inheritance.

      In pursuing these topics, this Article has several aims. First, it employs methods and asks questions characteristic of work on the "history of the book"(5) in order to enrich the received picture of the common law's growing intellectual and social presence in Tudor and early Stuart England.(6) The flourishing of lawbooks around the turn of the seventeenth century studied from within legal history under the rubric of "legal literature" and from without as an agent of state-building and political argument was a more deeply controversial process than generally supposed. Not only were the jurisprudential content and organizational strategies of lawbooks contested, but more fundamentally, so was the very wisdom of resorting to print as a communicative medium.(7) Parts II and III delineate the costs of law printing and explore justificatory strategies that emerged in response. Second, this Article portrays the anti-publicists as part of a larger late Elizabethan and early Stuart backlash against "publicity" in statecraft and nonconformist "popularity" in religion, as a legal correlate to these latter two movements. The family resemblances among the three testify to the breadth of Courtly ambivalence with printed tutelage. In particular, the overlap of anti-publicist and absolutist vocabulary hints at an absolutist concern with the pace and style of dissemination, a largely overlooked part of their legal agenda (to go along with their well-known efforts to reshape constitutional norms). Third, and most broadly, the debate over legal publishing identifies as a historical problem the emergence of the idea, or ideal, that subjects ought to know the inner reasons as well as the commands of the law at a time when print made this possible for the first time. Initially serving Henrician solidification of the kingdom, this ideal of a justified rather than apodictic law later became a carrier of "constitutionalist" politics under the challenge of a contrary absolutist model of royal proprietorship of legal knowledge.

1. WHY WAS IT ACCEPTABLE TO PRINT LAW?

   In the early sixteenth century, print was unusual, even a touch anomalous among the law's manuscripts, orations, and memorial traditions. How could lawyers justify the legal press? The state's desire for widespread promulgation of legal commands, the growth of legal education and the profession, litigation and a legally literate lay readership, and the increasing importance of the common law in national political argument expanded the book market. The lawyer's desire for status, patronage, professional standing, and political advantage motivated him to write for the press (when his work was not being stolen or posthumously appropriated). But neither the structural forces driving the market nor the individual motivations of authors provided an intellectually and politically satisfying rationale for legal publishing. Lawyers fashioned one out of the vocabulary of early- to mid-sixteenth-century English humanism and Protestantism, which favored them with well-recognized, polemically powerful idioms attached to a cultural politics supportive of law publishing.

   1. Humanism

      Building on Plato's concept of a res publica by way of Erasmus, English humanists such as Thomas More and Thomas Starkey championed a vision of an ideal commonwealth. The public interest of the community rather than the private interest of rulers or dominant factions was its end, the participation in governance of citizens tutored in the virtues of honesty, public-spiritedness, and godliness its foundation. The Platonic model of sound knowledge expressing itself in virtuous action made the proper education of the political nation an especially salient concern. As Peter La Primaudaye would later put it in The French Academy, sound knowledge was the "efficient cause of prudence."(8) Cultivation of the citizenry's virtues through immersion in the studia humanitatis and religion would contain aggression and faction and encourage harmony and unity, the central ends of the cooperative commonwealth. With a little ingenuity, the legal press could be cast as a brother educator, another prop for informed order.(9)

      John Rastell (1475-1536) pioneered the argument. One of the earliest important legal publishers, editors, and translators, he used his English-language...