The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture 1475-1642

328 Pages·2015·4.05 MB·English

by  David J. Harvey

100mm 160mm 23.3mm 160mm 100mm
What impact did the printing press – a new
means of communicating the written word
– have on early modern English lawyers?
This book examines the way in which law
printing developed in the period from 1475
up until 1642 and the start of the English
Civil War. It offers a new perspective on the
T purposes and structures of the regulation of
H the printing press and considers how and
A
E why lawyers used the new technology. It
N
examines the way in which lawyers adapted
DL
to the use of printed works and the way in
A

EW which the new technology increased the
N availability of texts and books for lawyers
and the administrative community. It also
GE
LM considers the wider humanist context within
Y which law printing developed. The story is
P
S set against the backdrop of revolutionary
R
S changes in English society and the move
Y
H not only to print the law, but also increase its
N
E accessibility by making information available
T
D in English. The book will be of interest to
E
lawyers and legal historians, print and book
D
historians, and the general reader.
D A V I D J H A R V E Y
David Harvey is a District Court Judge sitting Also published by Hart
in Auckland, New Zealand and a part-time
lecturer in Law and Information Technology Re-Interpreting Blackstone’s Commentaries
T H E L A W E M P R Y N T E D
at the Faculty of Law, University of Auckland. A Seminal Text in National and International Contexts H
Edited by Wilfrid Prest A
R A N D E N G L Y S S H E D
Magna Carta Uncovered V
Anthony Arlidge and Igor Judge E
Y
The Printing Press as an Agent of Change
in Law and Legal Culture 1475–1642
Jacket design by www.cyandesign.co.uk
Jacket image: Circa 1695, an early printing press in
Holland. (Photo by Hulton Archive/Getty Images)
© Hulton Archive/Handout

The Law emprynTed and engLysshed
This book considers the impact of the printing press within the context of
the intellectual activity of the english legal profession in the sixteenth and
seventeenth centuries. The legal profession had developed a sophisticated edu-
cational process and practice based upon an oral–aural system along with the
utilisation of manuscript materials, largely self-created. The printing press pro-
vided an alternative to this culture as printed law books – law reports, abridge-
ments and treatises – became increasingly available and were used by lawyers
and students. at the same time movements were afoot to discard the arcane
language of the law and make printed legal materials available in english. a
tension arose as the advantages of print were recognised by the authorities – the
Church and the state. Those very qualities also turned out to be disadvantages
as the authorities struggled to regulate the vastly increased flow of information
that the printing press enabled. The law proved to be an unwieldy instrument in
this tension.
The legal works printed in the sixteenth century were primarily law reports
and abridgements, with a new style of law report becoming evident with the
printing of plowden’s Commentaries and, in the seventeenth century, the works
of sir edward Coke. print enabled legal writers to concentrate upon principle
rather than pleading and procedure. The seventeenth century saw a shift from
printed reports to printed treatises and guide books for administrators and
members of the ‘lower branch’ of the legal profession. Legal information, for
the purposes of standardising procedures and for educational purposes as a
supplement to a troubled traditional legal education system, began to domi-
nate.
The book closes on the eve of the english Civil war – a time that saw for a
short period the end of press licensing and the demise of star Chamber, which
had played a significant, albeit largely unsuccessful, role in attempting to regu-
late the output of the printing press and the printing trade.

The Law Emprynted and
Englysshed
The Printing Press as an Agent of Change in
Law and Legal Culture 1475–1642
David J Harvey
OXFOrd and pOrTLand, OregOn
2015
published in the United Kingdom by hart publishing Ltd
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© david J harvey 2015
david J harvey has asserted his right under the Copyright, designs and patents act 1988,
to be identified as the author of this work.
hart publishing is an imprint of Bloomsbury publishing plc.
all rights reserved
no part of this publication may be reproduced, stored in a retrieval system, or transmitted, in
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British Library Cataloguing in publication data
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IsBn: 978-1-84946-668-4
IsBn (ePDF): 978-1-78225-732-5
Preface
This book, like Tolkien’s The Lord of the Rings grew in the telling. what began
as a plan to research and write about information technology and its effect
upon the law changed into an historical study addressing the impact of the first
information technology upon the law primarily because the reverberations of
the introduction of digital technologies are still being felt and will be for some
time. a distance of four to five hundred years allows for more detached and
objective observation.
new information communication technologies – like many new technologies
in general – bring about changes. Communication of information is a
fundamental aspect of the human being as a social animal. First there was oral
language. Then writing and written language allowed for the information that
oral language conveyed to be recorded and disseminated, although the reach
of the information depended upon the nature of the medium. That manual,
scribal model of written communication of information changed in 1450 with
the invention of the printing press.
But when we look simply at the communication of information, we focus
upon what may be termed the ‘content layer’. The medium of communication
itself has its own special features and peculiarities. These could be various
described as properties, qualities or ‘affordances’. They sit below the content
layer, yet their presence is probably more important than the content itself.
The properties are what sub-consciously influence us in terms of our use and
expectations of and responses to information. These qualities can even have
an influence upon how we seek out information. In the late medieval pre-print
era texts were few and were widely dispersed. scholars often had to seek out
information, travelling extensively to far off repositories or libraries, some
of which may have been located in other countries. The time that it took to
retrieve the information sought was considerable and if one wishes to couch
that information gathering in terms of information flows, the seeker of the
information moved to the information itself.
The printing press did not reverse that flow completely but the volume of
material that came from the printing press meant that scholars could order a
book from a printer, and have the book delivered to the scholar at his location.
In that respect, the information flow was towards the seeker. Travel to a library
continued, but the greater volume of printed works meant that a local library
might, more often than not, have a copy which the scholar might check.
This enormous saving in time allowed for a wider scope of study and a more
deliberative and analytical approach to information.
vi Preface
as new technologies developed, information expectations changed and
developed. we saw the expansion of oral communication – long-distance style
– with radio. we saw speedy delivery of text – after decoding – by telegraph
and telegram. we saw oral information accompanied by pictures at a distance
with television. some of these technologies introduced a time dependency
into information communication. we had to be in front of the TV or within
hearing distance of the radio at 6 o’clock to see or hear the news. But in addition
television was preparatory for a reality of information communication in the
digital paradigm – we became used to getting information from a screen. we
didn’t understand it as that. But when personal computers came along, getting
information from a screen was unremarkable.
The digital paradigm, with multimedia, instant information, searchability
and enhanced distribution and permanence of information, is as revolutionary
as the print paradigm. and once again the information flow heads towards the
user who need not move from his or her screen to obtain what is required.
This book about the impact of the printing press on lawyers, law and legal
culture looks at how the qualities of the press as well as its content affected a
profession whose stock-in-trade was, and still is, information. The effect was
not revolutionary but it was incremental and the introduction of printing and
the qualities that sat behind printed information laid the foundation for such
fundamental doctrines of law such as statutory interpretation and the doctrine
of precedent. The information that both these doctrines rely upon must be
standardised, reliable and available – all qualities that print possessed or enabled
in a better and more effective way than manuscript. my book does not travel
that part of the road. But it does trace the way in which information available
in print began to become an important part of the information communication
armoury of lawyers.
This book, as I have suggested, had a long gestation. It started as a doctoral
dissertation and in that I was greatly assisted by a number of people whom I
gratefully acknowledge.
I must thank professor david williams of the Faculty of Law at auckland
University for his patience and guidance over the years, ms Judith Bassett
of the history department of the Faculty of arts for her helpful comments
about elizabeth eisenstein’s work, and the way in which that work should be
approached in the context of this study and dr Lindsay diggelmann, also of the
history department of the auckland University Faculty of arts for his gentle
and very helpful detailed critique of this work as it moved, like the common
law, from a disorganised mass of apparently related concepts to some coherent
and structured form. In addition I must thank my examiners, professor Jeremy
Finn of the University of Canterbury who was relentless at the viva and dr Ian
williams of the University College, London whose initial critique of the work
was absolutely invaluable.
Thanks are also due to associate-professor Bernard Brown of the Faculty of
Law who taught me Legal history as an undergraduate in what now seems to
Preface vii
be an immemorial past and who consented to read the finished product, and to
my earlier teachers at school – many of them Oxford men – who encouraged
intellectual curiosity and examination. Thanks must be given to guy Charlton,
Joy Liddicoat and arthur Tse who also read the work through. The comments,
suggestions and assistance of all are greatly appreciated. any errors that remain
are mine.
my colleagues in the Common rooms of the manukau and auckland district
Courts have had to put up with one-sided discussions about Tudor and stuart
legal history and culture with a patience and humour that can only be admired.
Occasionally a mass e-mail to the Judges of the various Common rooms have
acquainted them with the observations of sir edward Coke on the advisability
(or otherwise) of giving reasons for decisions or some such other matter. Their
forbearance in the face of such ‘spam’ is appreciated.
grateful thanks are due to richard hart who saw a future for this book,
and for the editing staff at hart publishing whose assistance, suggestions and
improvements to the original have been immeasurable. I must pay tribute to
Catherine minahan for her patient and erudite copy-editing. however, in
identifying her I in no way should be seen as minimising the enormous assistance
rendered by Bill asquith, melanie hamill, Tom adams and the staff of hart
publishing. The high reputation of a publishing house flows from its people and
it has been a privilege to work with such a team.
Finally I should pay tribute to my family. Because they are always there they
bear the full brunt of the impact of a study such as this which has continued
for some years. patience and forbearance have been the hallmarks of their
tolerance of what must appear to be an obsession with the printing press and its
impact upon law and legal culture in a time long forgotten and of little seeming
relevance. without their support and continued love this work would never have
been finished.