Books of the Common Law

Today I spent the morning in the reference section of WVU's downtown library reading J.H. Barker's article, "The Books of the Common Law," in the Cambridge History of the Book, vol. III. This was a very well written and enjoyable article. Barker adeptly described the English approach to law and legal studies and the significant difference from the emphasis on roman law that predominated the rest of Europe in the 14th, 15th and 16th centuries.

Having read several articles on the reading list, and approaching this course without a background in law, I was appreciative of the fact that Barker took time to explain terms that other authors assumed their readers would know. As a case in point, Barker's description of the Inns of Court was very helpful to me and made the article that much more enjoyable through a greater understanding of topical terminology.

The history of legal language, the use of law French, Latin and finally English for documents that would circulate among common readers was of great interest. Each language served a particular community of scholars who was versed in the intricacies and meaning of terms, implying a close knit community working within a set structure of language and law.

Even without a law background, I am quite familiar with Littleton. I have examined several copies and editions of Littleton, and Coke, and I can firmly picture the frontispiece portrait of Littleton in my mind, having seen it several times. A year or so ago I spent some time on EEBO examining differences in editions to determine which fit the imperfect copy in the rare book room missing it's title page. It was an interesting excursion to view the variety of editions and the differences in the printings. From that examination alone it was quite to clear to me that Littleton and Coke were standard texts.

I found the exploration of the development of the use of citations in English law of great interest. Barker notes an absence of citations as a peculiarity of English law before the middle of the sixteenth century. He also noted the lack of law books kept in court or referred to in court. Without a library or reference to books there would be no need for the practice of citations that developed after printing became a viable enterprise.

Indeed, the emphasis was on learned countenance, on the community of scholars who understood the law from lectures, not on books. As Barker says "There was a professional tradition that the law should be stated in a way which appealed to the right reasoning of a legally trained audience or readership; a proposition was therefore backed up not by strings of citations but by examples which showed its correctness."

I found Barker's discussion on the slow development of law libraries to the Inns of Court fascinating. There is something so compellingly romantic about books, reading about them chained like medieval maidens to their stocks, or like the dragons that preyed on them, lost to time. As early as 1475, Barker says that one of the Inns, Lincoln's, established a library. Throughout the 16th century these Inns were given books to bolster their holdings. The libraries of the four Inns of Court, beneficiary of prominent donors though they may have been, suffered losses incrementally over time, and none can now be accounted for. Every last book has vanished like the Lost Colony, either into private collections, or one suspects a more likely scenario, stolen by students.

The notation of signatures in books, then as now, and certainly a common feature of books of the nineteenth century where one can often see the linage of a boy's serial passed from generation to generation, were not unique to law books. Thus too, were the books in law libraries of the sixteenth century when changes of ownership were "carefully recorded on flyleaves."

There's so much to talk about in this article, but I fear this post is becoming quite lengthy so I'll jump to the impact of the press on the legal profession in England and call it a day. Step by step, Barker takes us through the origins of the books of common law, from the books of justices and statutes, with their coats of arms of prominent lawyers colorfully painted on the page denoting ownership and status, then to the law book trade, the press, printers and the legal profession, as well as the effect of the printing press to the profession.

All of a sudden, it must have seemed, printed texts were available and they were available in English, the common language. Therefore they could be read by a larger group of people than those schooled in the traditions of law French and Latin. The press brought an end to the production of manuscripts and with that end brought the demise of certain texts and the standardization of others, along with the rise of the use of citations based on these standard texts. Choice too, played a role in the impact of the press. As Barker says, "texts which had originally been rare or unique passed out of use and indiscriminate compilations of work by different hands that disregarded historical accuracy or textual purity, now makes it impossible to separate text as the original manuscripts have been lost." It is now that we see the rise of case law and printed case law.

Wise as to their situation, printers kept in close contact with the profession and located their shops near the Inns of Court, placing their goods within handy reach of their customer base. A ready supply and close proximity do much to counteract the the laborious copying of manuscripts. For good or ill, and mostly a little of both, the printing press and the books it produced were here to stay.