Lawyers, Judges and the “New” Media
Introduction
It occurred to me as I was writing the post about Judges and the Social Media that we have actually been down this track before – where lawyers and Judges have seized upon the new media and used it to publish and propogate their views about the law. The first information technology was the printing press, and lawyers and Judges began to use or influence the use of the new technology in the sixteenth and early seventeenth centuries. In this post I want to discuss the use of the printing press by sixteenth and early seventeenth century Judges and lawyers and consider the reasons why they chose to go into print. I have written a much more comprehensive study of the printing press as an agent of change in law and legal culture in the period 1475 – 1642 but the examples I have selected are John Rastell and Anthony Fitzherbert, Edmund Plowden and Sir Edward Coke.
John Rastell and Anthony Fitzherbert
John Rastell (c1475 – 1536) studied law at Middle Temple where he was an untter barrister by 1502. He moved from London to Coventry but returned with his family in 1508 where he ran a successful legal practice for over 20 years.
From about 1509 he also seems to have begun to print and publish: initially where he was dwelling ‘at the Fleet Bridge at the Abbot of Winchcombe’s Place’, then by 1515 near St Paul’s (where his premises comprised a room for the press, a shop, and living quarters), and eventually from Michaelmas 1519 at Paul’s Gate, Cheapside. Rastell’s shop sign was a mermaid; one of his two printing devices included a merman and mermaid.
He printed a compilation of the statutes of Edward V and Richard III and concentrated on producing law books, and over the years came increasingly to edit or write the books his press produced. Over his career his publication list came to comprise over fifty titles (a few he re-edited, some reprinted), including, in 800 folio leaves, the ambitious La graunde abridgement de la ley (1514–16) by Anthony Fitzherbert.
Rastell’s Prologus to the work states:
And though that I myself of small learning and discretion have enterprised with the help of divers other gentlemen, and taken labors and also intend more labors to take, as well for the ordering of the calendars of said great book of abridgements as in the numbering of the quotations and refennents of the cases therein, yet the only praise of the making of the said great abridgement ought to be given to Anthony Fitzherbert, serjeant at law, which by his great and long study of many years continuing hath compiled and gathered the same
Anthony Fitzherbert, one of the best known legal writers of the early sixteenth century was a senior lawyer having attained the rank of Serjeant at Law in 1510, a Kings Serjeant in 1516 and in 1522 became a Judge of the Bench of Common Pleas. He too saw the advantages and benefits of the new technology and was one of the earliest lawyers to have his own work put in print in his lifetime.[1]
La graunde abridgement, was an enormous enterprise for its day, a massive digest of 13,845 cases from the year-books arranged under alphabetical headings. A smaller but more original work was Fitzherbert’s La novel natura brevium which was published towards the end of his life in 1534. It was inspired by the so-called ‘old Natura brevium’ (the name given to two or more different medieval treatises, or lecture courses, on writs) but Fitzherbert’s was a new treatment and much more detailed, with references both to recent cases and to the abridgement. It remained the principal reference work on writs until the abolition of the forms of action in the nineteenth century. The original French text (with the forms of writs in Latin) was reprinted eleven times, the last edition appearing in 1635.
A third book, which appeared in the year of Fitzherbert’s death, was The New Boke of Justices of the Peas (1538), which appeared in both law French and English editions bearing the same date but differing slightly in content and arrangement. The adjective ‘new’ again paid due respect to an earlier work, this time the anonymous late medieval Boke of Justices of Peas which was printed about 1506, but Fitzherbert’s treatment was characteristically more thorough and detailed. These two ‘books of justices’ are hailed as the first printed treatises on English criminal law, and Fitzherbert’s remained in use until it was overtaken by Michael Dalton and Sir Edward Coke in the seventeenth century. There were eight reprints between 1540 and 1566, and an enlarged edition by Richard Crompton in law French (1583) which was itself reprinted five times.
Rastell printed the first volume of the Graunde Abridgement, his small press being utilized for humanistic texts of his brother-in-law Thomas More’s circle.
Elements of humanist thought underpinned important objectives for printing the law. One was the educational objective of making the law more easily accessible by printing it in English. The print properties of standardisation and dissemination were both recognised and perceived as assisting in the fulfilment of humanist educational goals. The other element was the deeper societal issue of the concept of the “common weal” or the common good. This theme is one that pervades the discussion about access to law and was one of the main societal imperatives of the time. The “common weal” was a concept that operated on a number of different levels having primarily political but also social implications. In all its various manifestations the “common weal” was perhaps the most significant underpinning for access to law, developing from humanist precepts until it took on a life of its own
The law was the basis for a functioning society for the good of all rather than for the wealth, power or honours associated with the Church, feudal ties or established power elites although even the humanists did not see this as a universal concept, in that generally the law favoured the propertied classes rather than the entire community. The importance of the law and the legal process as a part of the ordered State, promoting the values of harmony and unity was recognised and thus the study of the law was part and parcel of the humanist curriculum. The publication of law was a part of the wider educational process and another aspect of the informed order advocated by the humanists. Printed law books were less dangerous than the printed Bibles and religious tracts that were present on the Continent and were being imported into England. Ross points out that there was little threat arising from dissident translations of the statutes or “non-conformist” Year Books or treatises. Yet printed law books made dissent more formidable. They made legal resources available to those who wished to mount legal challenges to the establishment.
Print became a facilitator in the educational process. The humanists wished to extend their audiences and their influence. The English followers of Italian and Northern European humanists had a respect for the power of the press to spread standardised classical texts which were the basis for the study of philosophy and rhetoric. Henry VIII, whose Court included a number of prominent humanists, used print propaganda to generate support for the “Kings Great Matter” and the break with Rome, although the humanist message remained the same. Rastell was advocating printed legal information in English in the 1520’s before the onset of the Tudor Revolution.
The language in which the law was expressed was also addressed. Humanist support for a law press and a preference for English or Latin over the arcane law French as a means of expression of the law were additional elements of what we would describe as “access to law.”[2] In this way the audience who could read and clearly understand the law as well would be extended – if legal works were printed in English – in addition to a general desire to widen the audience for books in general. As the interest in a law press grew so did the call, in print, for a broader diffusion of legal knowledge among lay people. Rastell claimed that law “kept secretly in the knowledge of a few persons and from the knowledge of the great multitude may rather be called a trap and a net to bring the people to vexation and trouble rather than a good order to bring them to peace and quietnesse.”[3]
Rastell’s position was expressed by others. The force or quality of statute law may have depended upon whether or not it was printed and therefore public, or not printed and therefore private. Justice James Dyer stated that if the latter “a man shall not be compelled to take consuance of this so easily as if it was in print.”[4]
This reflects Thomist legal thought which held that to obtain full status law had to be promulgated. In England promulgation was carried out by the sheriffs or by direct communication with the judges. Some legislation provided for its own promulgation.[5] However, did failure to promulgate invalidate law? Doe is of the view that such a proposition is doubtful although it was clearly preferable.[6] However, the press, although embraced for its various qualities, was also viewed with some suspicion particularly by religious elites who were contending with the dissemination of printed disputative literature which challenged long-held tenets of the faith. In answer the humanist law book publishers advanced three main reasons for the printing of the law.
The first two reasons involve what today would be referred to as “access to law” issues. First, being able to read and understand the law had a benefit in making the subject aware of the requirements for peaceful, responsible and virtuous living. The subject received a benefit and, in addition, such an understanding was in the interests of the “common weal.”
Secondly was the suggestion that greater availability of legal information would serve to loosen the stranglehold upon the law held by the legal profession. Law books would not replace lawyers but would allow the citizen to inform himself of the law as it affected his daily life, but when there was doubt or litigation the good subject should
“Resort to some man, that is learned in the laws of this realm, to have his counsel in such points, which he thinks doubtful concerning those said statutes, by the knowledge whereof, and by the diligent observing of the same, he may the better do his duty to his prince and sovereign, and also live in tranquillity and peace with his neighbour, according to the pleasure and commandment of almighty God”[7]
Law books were also of benefit to the legal profession in that they served an educative function. Thus, both lawyer and citizen would benefit by increased availability of printed legal information, and for the citizen the press uncovered that which had previously been unknown.
The third reason was that law preserved order and was the antithesis of chaos. This was a message that resonated in an England for whom the memory of the Wars of the Roses was still fresh. Chaos could be kept at bay by law. Promulgation and dissemination which were part and parcel of the operation of law could be reinforced by law publishing thus strengthening and enhancing order.
There can be no doubt that the early involvement of humanists in law book publishing had a profound effect not only upon the way in which law books were presented but also upon the way in which law books were viewed by the community. It was probably fortuitous that the Rastells were early pioneers of law publishing and although their output was not great their influence extended over a fifty year period.[8] They not only set the benchmark for the publication of useful law books but provided an example for others, as well as having a continuing influence even from exile. John Rastell’s son, William, a lawyer like his father and later a Judge, continued the family involvement in law printing although after the reign of Mary he did so from a distance. As a Catholic he left England after the accession of Elizabeth but his law publications continued to be printed by Richard Tottel.
Rastell’s association with the humanists of More’s circle, together with his expressed views about the availability of legal information and its expression in English gives us a clear indication of his motives for using the new technology of print. Not only was he a lawyer and an editor of law texts but he was actually a printer which demonstrates a real commitment to the new information technology.
The benefits and the advantages that the new technology presented in the dissemination of legal information for the orderly society and for the common weal are continued today in current access to law and legal information projects such as Austlii and the growth of serious legal information blawgs containing commentaries and explanations of the law. The beat goes on.[9]
Edmund Plowden
Edmund Plowden (c. 1518 – 1585) began his legal studies in 1538 at Middle Temple (one of the Inns of Court) tradition having it that he was so studious that he did not leave the inn once during the space of three years. He began recording cases he heard in court from at least 1550. In 1571 Plowden published Les comentaries, ou les reportes de Edmunde Plowden vn apprentice de le comen ley a volume of law reports that decisively broke out of the older year-book tradition, and was the first to be published by the author in his own lifetime and under his own name. The keys to Plowden’s approach were two resolutions he claims to have made at the beginning of his law studies. The first was:
[to] be present at, and to give diligent attention to, the debates and questions of law, and particularly to the arguments of those who were men of the greatest note and reputation for learning.[10]
The second was,
to commit to writing what I heard, and the judgment thereupon, which seemed to me to be much better than to rely on treacherous memory.[11]
But why did he put the Commentaries into print? Although law printing had been active in London for ninety years – the first law text was printed in 1481 – there was nevertheless a culture of information sharing of handwritten notebooks or casebooks among coteries of lawyers in the Inns of Court.
Lawyers saw the noting and gathering of cases as a matter for their own benefit and information. Theirs was a specialised profession with its own practices, rituals, hierarchy and indeed language.[12] There was little commercial gain to be had from printing large numbers of varying case reports of some antiquity and which may not find a market, especially if lawyers preferred to compile their own notes and share them with their colleagues. Thus it could be argued that at this time lawyers looked to themselves for their legal information and those in the commercial world, sensing that there was not a market, discontinued large scale printing of the manuscript Year Books. This was a challenge to the new technology and indicates that putting legal material in print, and particularly contemporary legal material, was not a universal objective. Not only did the printers make a choice about the materials that they would print, but the lawyers themselves made a choice about whether their materials would be widely disseminated or restricted to the coterie.[13] The dissemination of written legal information was not the exclusive province of print.
Not only legal information was distributed in this way. Among the coteries that shared material were the Tudor poets who preferred not to see their work in print. The lawyer John Selden made the comment “ ’tis ridiculous for a Lord to print verses, ’tis well enough to make ’em to please himself, but to make them public is foolish.”[14] Why was it that Edmund Plowden decided to move from the usual way of information sharing and move into the (relatively) new medium of print. He provides his own explanation.
“I thought it my duty to decline making public my own vindication of the arguments of men more learned than myself, and to keep the work for my own private advantage and therefore avoid the censure of affecting a more acute and discerning judgement than I really had. But by and by an accident happened, which inclined me and (As I may say) forcibly compelled me to make this work public. For having lent my said book to a very few of my intimate friends, at their special instance and request, and but for a short time, their clerks and others, knowing thereof, got the book into their hands, and made such expedition by writing day and night, and in a short time they had transcribed a great number of cases, and especially of the first, contrary to my own knowledge and intent, or of those to whom I had lent the books; which copies at last came to the hands of some of the printers, who intended (as I was informed) top make a profit of them by publishing them. But the cases being transcribed by clerks and other ignorant persons who did not perfectly understand the matter, the copies were very corrupt, for in some places a whole line was omitted, and in others one word was put for another, which entirely changed the sense, and again in other places spaces were left where the writers did not understand the words, and divers other errors and defects there were, which, if the copy so taken had been printed, would have greatly defaced the work and been a discredit to me. And besides this, they had omitted to transcribe the pleadings according to the records, and had only transcribed the cases and arguments upon them, so that the benefit, which the reader would have reaped from the records of the pleadings in this book (which is also a Book of Entries of all others most gifted and tried) would have been totally lost. Wherefore, in order to prevent and avoid these defects, I considered with myself whether it was not better for me to put this work in print. During which consideration letters were sent to me by all the iustice of both benches and by the Barons of the Exchequer, requesting and encouraging me to make it public and at last, upon these and other motives, and hoping that it might be of some benefit to the students of law, I resolved (as you see I have done) to put it in print.”
Plowden’s attitude towards the concept of authorship is unusual. There can be no doubt that had the work been printed without his supervision or authority, his name would have been associated with it. Plowden was very careful to ensure that the quality and integrity of his work would be maintained and, for that purpose, it would be necessary for him to supervise its publication. Plowden was one of the rare examples where the name of the author was at least as important for the sale of the work as the quality of the content and, certainly, any printed publication with the name of Plowden associated with it would find a ready market within the legal profession.
Earlier reports were little more than summaries of special points in the argument and more often than not completely omitted the decision and the reasons for it. The Year Books especially were seen as pleading guides rather than providing an accurate report on the substantive issue before the Court. The decision in the matter was not important to the reporters. The changes in pleading practice, including the shift to written pleadings resulted in a corresponding shift in the way in which cases were presented and argued in Court. The issue became the effect of the pleadings rather than the nature of the issues and form that they should take. Whereas the cases reported in the Year Books comprised the dialogue between counsel and the Bench that had as its objective the formulation of the issue before the Court, the written pleadings defined the issue. What became of interest to the reporter was the argument on that issue and the outcome on that issue that was settled by the Court. Thus written pleadings became a necessary part of the report. The dialogue on the pleadings became insignificant and the decision of the Court assumed more significance.
Plowden’s reports were limited to those cases where a point of law needed to be decided. Unlike the Year Books each case was identifiable by name. At the beginning there was a full heading including the name of the parties, the date of the argument, the Court concerned and the term in which the proceedings were commenced. The body of the report contained the official record of the pleadings, a full note of the arguments of counsel and the Judges and the substance of the final judgments. In this way all the necessary information regarding the decision was contained in one place. This method was a significant and influential innovation and set a new benchmark for printed reports presented in a similar style.
So successful were Plowden’s reports that they were the subject of a number of re-printings and were themselves the subject of an abridgment by Thomas Ashe in 1597 and 1607 which was later translated into English by Fabian Hicks and published in 1650.[15] Plowden’s style influenced those who followed including Coke who praised the Commentaries as “exquisite and elaborate.”[16]
The praise accorded to Plowden by Coke is not merely an example of post publication validation of a text. It demonstrates the complex interactions that surrounded the acceptance of printed works. The new medium presented a challenge to Plowden in terms of the potential that it presented for loss of control of the content and a possible damage to his reputation. It does not seem from the available evidence that Plowden had any other reason to print apart from the urging of friends and to preserve the work from an opportunistic printer. Once the work was printed under his supervision, Plowden’s objective was complete. Yet his name associated with the printed work was almost as important as the fact of printing.[17] And the way in which others recommended his text demonstrates that printing of itself did nothing special other than make the work more readily available. It is the interaction with and by others involved in some way with the work that enhanced its presence in print. Although it could be argued that a similar sort of interaction could take place with manuscript,[18] the properties of the new technology meant that interactions with others relied upon as well as enhanced those properties. Print fixed Plowden’s work – his copy was standardised and, importantly, it was available. The interactions of others ensured that advantage was taken of those qualities.
And so it is today. But the big difference is that Web 2.0 allows for a greater level of interation, comment and engagement. Feedback, which in Plowden’s day would have been by letter of by personal contact, is wider and more extensive and not limited to a select coterie. But once again, the theme behind the particular song remains the same.
Sir Edward Coke
Sir Edward Coke (1552 – 1634) was one of the most influential and controversial judicial figures of the early seventeenth century. He started his legal studies in 1571 and at some point during his student days he began keeping a commonplace book; in 1579, possibly in connection with his taking up a readership at Lyon’s Inn, Coke began keeping detailed records of cases. He was called to the bar in 1578 and went on to become one of the most prominent lawyers in England. He became Attorney-General, prosecuted Sir Walter Ralegh and was also involved with the interrogation of those involved in the Powder Treason and was one of those who prosecuted Guy Fawkes, describing in lurid detail the traitor’s death of hanging, drawing and quartering.
Coke was appointed Chief Justice of the Court of Common Pleas on 30 June 1606, being created serjeant-at-law for the occasion, and Chief Justice of the King’s Bench on 25 October 1613. His tenure in these courts proved turbulent, being marked by friction with James I
But by this time Coke had been publishing his Reports, first in manuscript and later in print. His first well-known work was a manuscript report of Shelley’s case, circulated soon after the decision in 1581. This was in keeping with the circulation of manuscript notes kept by lawyers and which I have already discussed.
In 1600, afraid that unauthorized versions of his case reports might be printed—and probably following the example of Edmund Plowden, with whom he had worked and whom he revered—Coke issued the First Part of his Reports. By 1615 he had put out eleven volumes, making available more than 467 cases, carried the imprimatur and the authority of the Lord Chief Justice. These case reports provided a critical mass of material for the rapidly developing modern common law. Reversing medieval jurisprudence, which had often relied on general learning and reason, Coke preferred to amass precedents. Coke’s view was ‘The reporting of particular cases or examples is the most perspicuous course of teaching the right rule and reason of the law’.[19]
Was Coke, like Plowden, a reluctant user of the new technology. His attitude to seeing his work in print was initially one of reluctance but from 1600 when the first volume of the Reports was printed through until the end of his life this attitude changed to the point where he became an enthusiastic adherent of printing the law. The changing political climate and Sir Edward’s progress from Attorney General, which was the position that he occupied when the first volume of the Reports were printed, through his position as a Judge, his fall and his subsequent career in politics provides an explanation for this shift in attitude. As noted there was circulation of manuscript copies of Coke’s case notes amongst select members of the legal fraternity and, like Plowden, Coke arranged for the printing of the first volume,[20] fearful that unauthorised versions may find their way into print. He was mindful of his reputation and of the value that would be attached to Reports coming out under his name.
“I have sithence the xxii yeere of her Maiesties Raigne, which is not xx yeeres compleat, observed the true reasons as neere as I could, of such matters in Law (wherein I was of Councell & acquainted with the estate of the Question) as have bin adjudged upon greate & mature deliberation; And as I never meant (as many have found) to keepe them so secret for mine own private use, as to deny the request of any of my friend to have either view mor copy of any of them; So til of late I never could be perswaded (as many can witness) to make them so publique, as by intreaty to commit them to print.”[21]
Coke revisited the purpose of publication from time to time throughout the Prefaces. In the Preface to the Seventh Volume.
“I set downe in writing, out of my short observations which I had taken of the effect of every argument (as my manner is, and ever hath beene) a summarie memeoriall of the principall authorites and reasons of the reasolutions of that case, for mineowne privat sollace and instruction. I never thought to have published the same, for that it was not like to give any direction in like cases that might happen (the chiefest end of publishing Reports) ….Now when I ended it for my privat, I was by commandment to beginne againe ( a matter of no small labour and difficultie) for the publicke. For certainly, that succinct method and collection that will serve for the privat memorial or repertory, especially of him that knew and heard al, will nothing become a publique Report for the present & al posteritie, or be suffcient to instruct those readers, who of themselves know nothing, but must be instructed by the report onley in the right rule & reason of the case in question……
I thought good as well for thine instruction and use (good reader) as for the repose and quiet of many, in resolving of questions and doubts (wherein there hath beene great diversitie of opinions) concerning their estates and possessions to publish some others that are common in accident, weightie in consequent, and yet never resolved or adjudged before.”[22]
At an earlier stage in the preface to his First Reports, Coke expressed his criticism of the quality of some of the reports that had been published, demonstrating a concern about reliability:
For I have often observed, that for want of a true and certain Report the case that hath bin adjudghed standing upon the recke of manie running Reports (especially of such as understood not the State of the Question) hath bin so diversely drawne out, as many times the true parts of the case have bin disordered and disjointed, and most commonly the right reason & rule of the Judges utterly mistaken.[23]
and it is perhaps noteworthy that in the preface there is no expression of the humility that certainly appears in Plowden’s preface. One may be justified in asserting that Sir Edward considered that his Reports avoid these pitfalls and were a true and correct report of the case, albeit with his own interpolations.[24] Control by authors over unauthorised printing was a problem in the early seventeenth century. Accuracy and credit were clearly matters which concerned Coke and perhaps it is ironic that despite his concerns, The Complete Copyholder which was never authorised for printing was nevertheless published.[25]
The ability to ensure control over the presentation of his material in print was not the only matter that motivated Coke. Throughout all the prefaces to his Reports and other writings there was a recognition of the importance of making information available both for the education of students and for the “common good”. This did not mean that Coke readily endorsed all legal printing. He was critical of some material on offer and in particular some Abridgements.[26] He noted that these had profited the authors themselves:
“but as they are used have brought no small prejudice to others; for the advised and orderly reading over of the Bookes at large in such maner as elsewhere I have pointed out, I absolutely determine to be the right way to enduring and perfect knowledge; and to use abridgements as tables and to trust only to the Books at large. …. and certain it is that the tumulatuarie reading of Abridgements, doth cause a confused judgment and a broken and troubled kind of deliverie or utterance. But to reduce the said penal Lawes into some Methode or order is an honourable, profitable and commendable work for the whole Commonwealth.”[27]
Coke’s value upon education and learning appeared in the second volume of the Reports:
There is no jewell in the world comparable to learning, No learning so excellent both for Prince and Subject as knowledge of Lawes; and no knowledge of any Lawes (I speake of humaine) so necessarie for all estates, and for all causes, concerning goodes, landes, or lyfe, as the common Lawes of England.[28]
It is not surprising that he saw his Reports and published works as fulfilling an educative function and frequently addressed students of the law in his writings, emphasising the value of accurate source material and frequently giving advice on how to use it and apply it in the course of study.
“In troth, reading, hearing, conference, meditation, & recordation, are necessary I confesse to the knowledge of the common Law, because it consisteth upon so many, & almost infinite particulars: but an orderly observation in writing is most requisite of them all; for reading without hearing is darke and irksome, & hearing without reading is slipperie and uncertaine, neither of them truly yeeld seasonable fruit without conference, nor both of them with conference, without meditation & recordation, nor all of them together without due and orderly observation.”[29]
In his discussion of the style of his case reporting Coke gave further advice to students.
“I have added the pleadings at large: as well for the warrant, and better understanding of the cases and matters in Law, as for the better instruction of the studious Reader in good pleading, which Mast. Littleton faith is one of the most honorable, lawdable, and profitable things in the Law: I wish the continuances had bene omitted, and yet some of them also are not without their fruite. To the Reader mine advise is, that in reading of these or any new Reports, hee neglect not in any case the reading of the old Bookes of yeares reported in former ages, for assuredly out of the old fields must spring and grow the new corne….”[30]
Coke continued his educational advice in the Third Volume[31] setting out a reading list starting with the early common law texts[32] and moving on to more recent publications[33] and concluded that the “most useful and those of the greatest authoritie and excellencie” are the Register, Littleton, Fitzherbert and Stanford and reference is made on other occasions to some or all of these texts, especially in the tenth volume of the Reports.[34]
Coke tendered more advice about the path of learning that a student might undertake. In the Preface to the Third Volume[35] he discussed in some detail what he referred to the degrees of the Law and traced the path that might be followed by a student through the Inns of Chancery to the Inns of Court, and the progress that a typical student might undertake. Given that his primary audience was either those studying or already qualified in the law, and given that the Reports themselves were written in the “language of the law” it seems curious that he considered it necessary to embark upon this discussion. A possible conclusion is that by the time he reached the third volume, Coke was writing for a wider audience and possibly for posterity, thus taking the opportunity to expound upon the common lawyer’s course of education and immersion in what was a difficult field to master.
The wider audience was contemplated in the Preface to the Fifth Volume when Coke stated, after denouncing ignorance and holding that truth and an end of ignorance was an end of confusion, and that the laws of England were the birthright of its subjects
“My only end and desire is, that such as are desirous to see & know (as who will not desire to see & know his owne may be instructed: such as have bene taught amisse (every man beleeving as he hath bene taught) may see & satisfie himselfe with the truth, & such as know and hold the truth (by having so ready and easie a way to the fountaine themselves) may be comforted and confirmed.[36]
As part of his educative function, Coke used the prefaces to his Reports to discuss and develop certain matters of law, and especially wrote about the history of the common law and of common law principles. The Sixth Volume of the Reports followed up on his assertions of the excellence of the common law that he made in the Second Volume. In the Sixth Volume he refers again to the educational function that he sees performed by the Reports
“The reporting of particular cases or examples is the most perspicuous course of teaching, the right rule and reason of the Law: for so did Almightie God himselfe, when hee delivered by Moases his Judiciall Lawes……
And the Glossographers, to illustrate the rule of the Civile Law, doe often reduce the rule into a Case, for the more lively expressing and true application of the same. In reading these and other of my Reports, I desire the Reader that hee would not reade (and as it were swallow) too much at once; for greedie appetites are not of the best digestion: the whole is to be attained to by parts, and Nature (which is the best guide) maketh no leape….
A cursarie and tumultuarie reading doth ever make a confused memorie, a troubled utterance and an incertaine judgement.”[37]
It was not only in the Reports that Coke gave advice to students. In the First Institute (Coke on Littleton) he states:
“My advice to the Student is, that before he reade any part of our Commentaries vpon any Section, that first he reade againe and againe our author himselfe in that section, and doe his best endeavours first of himselfe, and then by conference with others (which is the life of study) to understand it, and then to reade our Commentary thereupon and no more at any one time, than he is able with delight to beare away, and after to meditate thereon, which is the life of reading. But of this argument we have for the better direction of our student and his studies spoken in our epistle to our First Booke of Reports.”[38]
The educational importance of his work was continued in the Book of Entries in which it was stated on the title page that it was “collected and published for the common good and benefit of all the studious and learned professors of the Laws of England”[39] and is therefore obviously designed for a student or professional audience. Precedents of pleadings are gathered together for education and presupposes reading for study, as well as use for practical application.
Sir Edward was well aware of the power of print and he was not backward in promoting his own works. His reference back to his own “first Booke of Reports” provides an example. But apart from the difficulty of an author citing another of his own works as an authority, the significant sub-text to Coke’s comment is that there is no hesitation to refer to printed works. This theme occurs regularly in Coke’s work. So accepted has print become by the time of the printing of Coke on Littleton that in the preface Sir Edward set out the printing history of Littleton’s Tenures as well as a number of other leading texts in print.
Indeed the use of printed work was becoming such a norm that Sir Edward gave advice on how to use printed texts. He recognised some of the problems accompanying printed texts, primarily surrounding issues of credit, but at the same time was not hesitant in recommending certain texts, all of which were in print at the time.
“In reading of the cases in the Bookes at large, which sometimes are obscure and misprinted, if the Reader after the diligent reading of the case, shall observe how the case is abridged in those two great Abridgements of Justice Fitzherbert and Sir Robert Brooke, it will both illustrate the case and delight the Reader; And yet neither that of Statham nor that of the Booke of Assises is to be rejected: And for pleading the great booke of Entries is of singular use and utility. To the former Reports you may add the exquisite and elaborate Commentaries at large of Master Plowden, a grave man and singularly well learned, and the summarie and fruitful observations of that famous and most reverend Judge and sage of the Law Sir Iames Dyer, Knight, late chiefe Justice of the Court of Common pleas, and mine own simple labors: Then have you 15 Bookes or Treatises, and as many volumes of the Reports, besides the Abridgements of the common Lawes; For I speake not of the Statutes and Actes of parliament, whereof there bee divers great volumes. And for that it is hard for a man to report any part of branch of any Art or science justly and truly, which he professeth not, and impossible to make a just and true relation of any thing that hee understands not: I pray the beware of Chronicle Law reported in our Annales, for that will undoubtedly lead thee to error.[40]
By the time that the Fourth Volume of the Reports was printed (1604) Coke had shed his reluctance to see his work in print. The themes of education and the benefit of the commonwealth – themes that had been constant justifications for putting work into print and implicitly recognising the properties of print – were made clear and the importance of knowledge of the law – such knowledge being acquired by publication of the law was emphasised:
“To make one plaine and perspicuous law divided into articles, so as every subject may know what acts be in force, what repealed, either by particular or generall words in part or the whole and what branches & parts abridged, what enlarged, what expounded; so as each man may clearley know what and how much is of them in force, and how to obey them, it were a necessary work and worthy of singuler commendation; which His Maiesty out of his great wisdome and care to the common wealth hath commanded to be done.”[41]
Coke considered for the good of the commonwealth he owed a duty not to keep his reports private but was encouraged to publish and communicate them to all. Thus, the importance of dissemination by way of publication using the print medium was for the good of the common wealth and was considered a high calling. The public good as a reason for publication was further discussed in the Sixth Volume of the Reports.
“I have (good Reader) brought this sixt worke to a conclusion, and published it for thy private instruction, for the publique good and quiet of many, and for preventing of daunger the daughter of Errour.”[42]
And the importance of the common law as providing an end to disputes which was for the common good was stated in the Eighth Volume:
“the antient & excellent institution of the Comon Law might be recontinued for the good of the commo’wealth (for it is convenient for the commonwealth that there be an end to controversies).”[43]
By the Eighth Volume Coke had refined what he considered his duty to publish Reports
“So ought every man according to his power, place & capacity to bring somewhat , not onely to the profit and adorning of our deere Countrey (our great Eagles nest) but therein also, as much as such mean instruments can to expres their inward intention & desire, to honor the peaceable days of his Maiesties happy and blessed government to al posterity. And for that I have bin called to this place of Judicature by his Maiesties exceeding grace & favor, I hold it my duty, having observed many things concerning my profession, to publish amongst other certaine Cases that have bin adjudged and resolved since his Maiesties raigne in his highest Courts of ordinary Iustice in this calme and flourishing springtime of his Maiesties Justice, amounting with those of my former edition in al to 84”.[44]
and the importance of publication was by the Tenth Volume becoming associated with some of the higher elements of truth and Justice, for in discussing the nature of the cases appearing in the work he had made them available to with the purpose that “shee which is the foundation of Justice should not lie hiddeen and unknowne.[45]
The concluding words of the Eleventh Volume, the last to be published in his lifetime, aptly summarised Coke’s purposes in printing his Reports.
“The end of this edition is, that God may be gloried, His Maiestie honoured, the common good encreased, the Learned confirmed, and the Student instructed.”[46]
The end of Coke’s judicial career came when James ordered that Coke was not to ride on the summer assize circuit. Instead he was to censor his own law reports, ‘wherein (as his majesty is informed) there be many exorbitant and extravagant opinions set down and published for positive and good law’.[47] Coke superficially complied and addressed one law suit. That was all he was prepared to do. On 2 October 1616, after perusing his Reports, Coke reported that he had found only five trifling errors. This was defiance, and James responded in kind. He demanded that his obstinate chief justice explain five of his most dangerous conceits. When Coke refused this final opportunity to recant the king acted. On 16 November 1616 Coke was removed from the bench. It was said, John Chamberlain wrote, that ‘four p’s’ had overthrown the chief justice: ‘that is, pride, prohibitions, praemunire, and prerogative’[48]
But that was not the end of Edward Coke. He commenced a career as a Member of Parliament. In 1628 he argued ‘I know that prerogative is part of the law but sovereign power is no parliamentary word: in my opinion, it weakens Magna Carta … Magna Carta is such a fellow that he will have no sovereign’.[49]
When Charles I warned the Commons that he would veto any bill that did more than reconfirm Magna Carta, Coke saw a rare opportunity; the king’s demand gave him the chance to make new law out of the greatest medieval statute. The result was the Petition of Right, something more than a list of grievances, if less than an actual bill of rights. It was Coke who suggested the petition.
But the King had a long memory and in April 1632 the king’s men raided his home at Stoke and Coke wept as his papers were removed. In 1633 Charles sealed Coke’s rooms at the Inner Temple. Finally, in the last days of August 1634, while Coke lay dying, the king’s men ransacked both Coke’s study at Stoke and his files at the Inner Temple. Roger Coke, the judge’s grandson, wrote that they seized more than fifty manuscripts and other papers. Clearly his writings and the use of his papers after his death was seen as a potential threat. Both the requirements in 1616 that he censor his writings and the raids on his papers and his chambers indicate that Coke the Judge and lawyer had stepped over the mark among other things in using print to spread his views about the law and the fear of further dissemination of opinions that may have been contrary to Royal police by means of the new communications technology.
Certainly Coke’s unwillingness to change his Reports demonstrated the risks he encountered in using the new technology. It is doubtful that he would have attracted the same attention had he circulated manuscripts among his colleagues and stayed away from print.
[1] The other most notable one of the first part of the sixteenth century was Christopher St German, the author of Doctor and Student.
[2] Law-French was the language of lawyers and Latin the language of an educated elite. Thus printing in Latin would extend the audience but in a very limited way.
[3] John Rastell, “Prologus Johannis Rastell”, in Exposiciones terminorum legum anglorum. Et natura breuium (Johannes Rastell, London, 1525) STC 20702
[4] Wood v Dallison cited in I. S. Williams “He credited more the printed booke” (2010) 28 LHR 38 at p. 67 – 68 fn 39.
[5] N.. Doe Fundamental Authority in Late Medieval English Law (Cambridge University Press, Cambridge 1990) p.38.
[6] Ibid. p. 39 Doe refers to the author of Mirror of Justices, a text of questionable provenance which emphasised the importance of the textualisation and publication of “the laws and usages of the realm”. For a discussion of textualisation and the law see Peter Tiersma Parchment Paper Pixels: Law and the Technologies of Communication (University of Chicago Press, Chicago, 2010) p. 28, 31 – 32.
[7] John Rastell, above n. 3.
[8] Other law printing pioneers were Wynkyn de Worde, William de Machlinia, William Lettou, Richard Pynson and Robert Redman. See above p. 102-103 for discussion of their role.
[10] Edmund Plowden Les comentaries, ou les reportes de Edmunde Plowden vn apprentice de le comen ley (Richard Tottell, London, 1571) Preface
STC 20040
[12]Summed up in the term “notre erudition” – see J.H. Baker Laws Two Bodies – Some Evidential Problems in English Legal History (Oxford University Press, Oxford 2001) esp. Ch 3.
[13] Possibly an aspect of “notre erudition” especially as far as case notes or reports were concerned. The oeuvre of printed treatises suggests that they were intended for a wider audience (or more extensive dissemination). It is perhaps relevant to note that the cross referencing to other legal works was to those that were in print rather than manuscript sources. The cross referencing to printed material pointed the reader in that direction. Any relevant manuscript material would have come to the attention of the reader from another source or would be derived from the coterie or “notre erudition” if indeed the reader was privy to it.
[14] Samuel Harvey Reynolds, (ed) The Table Talk of John Selden (Oxford University Press, Oxford, 1892), p.
135. See also Nicola Shulman Graven with Diamonds: The Many Lives of Thomas Wyatt (Short Books, London, 2011); J.W. Saunders “The Stigma of Print – A Note on the Social Bases of Tudor Poetry” (1951) Essays in Criticism 139. For further discussion see The Law Emprynted and Englysshed pge 153 et seq.
[15] Abridgment des touts les cases reportez alarge per Monsieur Plowden (Jane Yetswiert, London, 1597) STC 20037; The 1607 printing was by Adam Islip for the Stationers – STC 20038. Fabian Hicks An exact abridgment in English, of The commentaries, or reports of the learned and famous lawyer, Edmond Plowden ((Printed by R. White, and T. Roycroft, for Matthew Walbanke, and Henry Twyford, London, 1650) Wing (2nd ed.) / P2609.
[16] 2 Cokes Reports p.viii (preface).
[17] The association of a report with a named reporter had been developing in importance in manuscript law reports. See Baker Introduction to English Legal History (3rd ed) (Butterworths, London, 1990) p. 180.
[18]And did although the behaviours were more related to disseminating something that was in short supply rather than recommending something that was readily available.
[19] 4 Coke Reports Preface
[21] Ibid. “The Preface to the Reader.” Folio C2 et seq A similar comment is made in the Preface to the Third Volume – “Your extraordinarie allowance of my last Reports, being freshly accompanied with new desires, have overcome me to publish these few excellent Judgements and Resolutions of the reverend Judges and sages of the Law.” “To the Reader” Folio C2 pages unnumbered.
[22] 7 Cokes Reports The Preface Folio aiii pages unnumbered.
[23] 1 Cokes Reports “The Preface to the Reader” Folio C2 pages unnumbered.
[24] It is not clear on the face of the Reports where Coke’s interpolations occur.
[25] Cokes worst fears about “true and certain” reports had come to pass. In the Preface to the Seventh Volume he is highly critical of a pamphlet reporting a speech given at the Norwich Assizes in August 1606. He is critical particularly of the lack of context and the errors of law that it contained. His comment that he would not have let any of his works pass under the name ascribed to the pamphlet, and if he had thought it worthy would have published it himself. The subtext to the complaint is that there was a passing off, much to Coke’s anger and embarrassment.
[26] Coke places great store on reading as a method of study. Although he has also referred to discussion and contemplation as essential study skills, the focus more and more shifts to the use of books. Coke was educated in the Elizabethan Inns of Court where the oral-memorial system or moots, exercises and readings was still continuing undiminished. By the seventeenth century it may be fair to conclude that Coke saw that there was a shift in legal education towards a more individually centered form of study which could be best achieved by considering and reading the “right books”.
[27] 4 Cokes Reports Folio B3 pages unnumbered.
[28] 2 Cokes Reports “To the Learned Reader” ¶3 pages unnumbered.
[29] 1 Cokes Reports “Preface to the Reader” page unnumbered.
[32] Glanvil, Bracton, Britton, Fleta, Ingham and Nova Narrationes
[33] The Old Tenures, the Old Natura Brevium, Littleton, Doctor and Student, Perkins, Fitzherbert’s Natura Brevium and Stanford’s Plees de la Coron.
[36] 5 Cokes Reports “To the Reader” Folio Aiiii pages unnumbered.
[37] 6 Cokes Reports “To the Reader” Folio ¶iii pages unnumbered.
[38] Coke on Littleton “The Preface” Folio C3 pages unnumbered.
[39] Edward Coke A Booke of Entries (Printed for the Societie of Stationers, London, 1614) The “common good” in this context was limited to the audience – the book was for the benefit of all of them. Beyond this social implication this cannot be said to extend to the “common weale” either in the wider social or political senses. The title page may well contain some printer’s hyperbole. Note that the term “ law student” had a special meaning in the early modern period which was wider than that contemplated by the undergraduate student of today..
[40] 3 Cokes Reports “To the Reader” Folio C2 page unnumbered. The Book of Entries to which he refers may well have been his own although it was not printed until 1614. It is in the Preface to the Third Volume of the Reports that Coke repeats the theory advanced by Plowden that authorship of the Year Books rested with four “reporters” appointed by the Crown.
[41] 4 Cokes Reports “To the Reader” Folio B3 pages unnumbered. In this passage Coke is referring to statutory law which had increased in volume since the reign of Henry VIII. It emphasises the general theme of the preface which is about making the law available.
[42] 6 Cokes Reports “To the Reader” Folio ¶iii pages unnumbered.
[43] 8 Cokes Reports “To the Reader” Folio Aii page unnumbered.
[45] 10 Cokes Reports “To the Reader” pages unnumbered.
[46] 11 Cokes Reports “To the Reader” pages unnumbered. The Twelfth Volume and Thirteenth volumes were printed posthumously in 1656.
[47] The letters of John Chamberlain, ed. N. E. McClure, 2 vols. (1939) 2.14
[49] C. Russell, Parliaments and English politics, 1621–1629 (1979) p. 352
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