University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 146 JANUARY1998 No. 2 ARTICLES THE COMMONING OF THE COMMON LAW: THE RENAISSANCE DEBATE OVER PRINTING ENGLISH LAW, 1520-1640 RIGHARDJ. Rosst I. WHYWAs ITACCEPTABLE TO PRINT IAW? ........................................... 329 A. H umanism ..................................................................................... 329 t Assistant Professor of Law, University of Chicago Law School. J.D. Yale, 1989; M. Phil. Yale, 1990. For comments and advice, I would like to thank Mary Bilder, Edward Cook, John Demos, Charles Donahue, Richard Epstein, Charles Gray, Peter Hoffer, Morton Horwitz, Stanley Katz, Daniel Klerman, David Lieberman, William Novak, Barbara Shapiro, Peter Stein, James Whitman, and participants in workshops at Harvard, New York University, and the University of Chicago. I especially benefited from the challenging questions of Thomas Green, Richard Helmholz, Steven Pincus, Jacqueline Ross, and Steven Wil. Joanna Grisinger provided excellent research assis- tance. I am grateful for the financial assistance of the Frieda and Arnold Shure Fund and the Bernard G. Sang Fund. (323) 324 UN!VERSITY OFPENNSYLVANIA LAWREVIEW [Vol. 146:323 B. Protestantism.................................................................................. 342 II. THE DEBATE OVER THE RISKS AND ADVANTAGES OF PUBLISHING LAW: PUBLICISTS AND ANTI-PUBLICISTS .............................................. 352 A. ForensicBoundaries ........................................................................ 353 B. ContrastingPredictions ................................................................... 357 1. The Law's "Mystery"; Publicist Appropriations of Law Printing for Professional Self-Defense .......................... 361 2. Making Knowledge Common and Inviting Its Misuse ......... 373 3. Litigiousness .......................................................................... 378 4. Political U nity ........................................................................ 379 C. The Anti-Publicists.......................................................................... 380 III. CHALLENGES TO THE PUBLICISTS, FOUNDATIONS FOR THE ANTI-PUBLICISTS: SOCIAL, POLTCAL, AND CULTURAL CONTEXTS FOR THE DEBATE ABOUT LAW PRINTING ............................ 386 A. Audience, Acclimation, and the Breakdown in Strategies of Containment............................................................................... 391 B. Wariness Towards Routine Print: Censorship,Religious Conformity, and PoliticalArcana .................................................... 417 C. Print and Manuscriptas Media for TransmittingLaw ..................... 432 IV. WHAT WAS AT STAKE IN THE DEBATE: THE "OWNERSHIP" OF THE LAW AND THE COMMONING OF THE COMMON LAW ...................... 446 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 vain- glory unworthy of their gravity."' Such laudable restraint was no more in , I have modernized spelling, punctuation, and capitalization in quotations from primary sources (including titles of works listed in the text and footnotes). I consulted manuscripts on microfilm or microfiche, except for works in the Harvard Law Library Rare Book Room, Yale's Beinecke Library, andJohn Hales's Orationin Commendation of Laws in the Free Library of Philadelphia, which I examined in person. Because of the particular demands of early modern historical scholarship, the author has requested waiver of several Bluebook citation rules. First, the University of Pennsylvania Law Review has not been able to check all pre-1700 imprints and manu- scripts. Mistakes are the sole responsibility of the author. Second, the author has cited materials according to chronological order or according to his estimation of 1998] PRINTING ENGLJSH LAW this cracking age, when all men in all professions quicquid subito crepant omnino ii statu Apollinis credunt [believe that whatever they suddenly rat- tie forth entirely comes from an Apollonian state (e.g. authoritative frenzy)]; who, for fear of burying their talent, post to the press to pub- lish to others that which they well understand not themselves; it being assuredly no matter of necessity to publish the reasons of thejudgment of the law, or apices [tittles or small points] or fictiones juris [legal fic- tions] 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 ru- inated by dishonest means, if men knew not how to cover their dishon- esty under some color of law or justice .... 2 Participating in the expansion of law publishing underway in Elizabe- than 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 sus- tained attention devoted to the history of the book in religion, state- craft, 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 their relative importance. Bluebook rules governing citation order have not been fol- lowed. Third, places of publication and publishers for pre-1900 works have not been supplied in conformity to historical citation practice and because of the difficulty of ascertaining such information for some sixteenth-century imprints. Fourth, the rule governing citation of material from microforms has been disregarded. Pre-1700 im- prints on microfilm have been cited by author, title, and date of publication. Manu- scripts have been cited by author, title, date of composition, and the manuscript iden- tification number of the library holding the source. The following abbreviations have been used throughout the Article: "MS" for "manuscript," "MSS" for "manuscripts," and "c." for "circa." 2 William Hudson, A Treatise of the Court of Star Chamber (MS, c.1621), in 2 COLLEcTANEAJURIDICA 1, 1-2 (Francis Hargrave ed., 1792). Hudson (1577/78-1635) was a bencher of Gray's Inn who practiced as a counsellor in Star Chamber. He wrote the Treatise in the 1610s and presented it to newly appointed Lord Keeper John William in 1621. The Treatise circulated widely in manuscript in the 1620s and 1630s as the more than 20 surviving copies attest. See Thomas G. Barnes, Mr. Hudson's Star Chamber, in TUDOR RULE AND REVOLUTION: ESSAYS FOR G.R. ELTON FROM HIS AMERICAN FRIENDS 285, 286-87, 296 (DelloydJ. Guth &John W. McKenna eds., 1982). An "Apollonian state" is a reference to the Delphic oracle, implying an authoritative pronouncement. In the early modern period, "publication" meant to "make public," whether through the press, through handwritten documents, or by speech. Unless otherwise noted, I will use "to publish" in its modern sense as a synonym for "to print." 326 UNTVERSITY OFPENNSYLVANIA LAWREVIEW [Vol. 146:323 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 provoked4 and carried a common law apologetic and nationalist literature. The legal press was a causal agent, and an important one. But law printing was also an intellectual problem, its meaning and repercus- sions uncertain and divisive. It provoked attacks, called forth de- fenses, conjured aspiration and warning. That history has yet to be written. This Article offers a contribution to recovering this lost de- bate, focusing on contemporaries' disagreements over the promises and drawbacks of legal publishing, treating the political and social ef- fects of books as contexts shaping the discussion. The first Part ex- plores the initial justification of law printing offered in Henrician England, an echo of humanist and Protestant advocacy of textual dis- semination as an agent of godly order, solidifying obedience as it dis- solved obscurantism. The second Part discusses the dispute that broke into public view in the latter sixteenth century over the per- ceived 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 dispu- tants' contrasting prophesies about the effects of lawbooks. Three in- terrelated developments stand out: the growing lay