A Roman face on an English body: the typography of Plowden’s Commentaries

ABSTRACT

This paper examines the typographic form of Plowden’s Commentaries within its legal, printing, and technological histories, demonstrating that its typographic appearance embeds complex tensions over the study and dissemination of the common law into its material form. There are legally relevant meanings in the shape of letters, beyond mere legibility, that are connected with the heritage of type design and print technologies. Within the context of debates over the propriety of early common law printing, this paper provides an examination of Plowden’s typographic style as roman and humanist. Tracing the genealogy of roman and humanist letters that led to the ones used in Plowden’s opening judgment, the typography of the Commentaries is connected to debates over the resistance of the common law (as an unwritten law) to humanism and Roman-style codification. Plowden’s typographic register is thereby seen to encode the Latinate traditions to which the structure and custom of the English common law is opposed.

KEYWORDS:

• Legal history
• typography
• legal aesthetics
• law reporting

Acknowledgments

Sincere thanks to Peter Goodrich, Valérie Hayaert, Dominic Smith, and Ian Williams for commenting on earlier drafts of this paper, as well as colleagues at Dundee Law School for their constructive engagements and discussion. Any errors or failings remain my own.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 I have made a distinction throughout this paper between ‘Roman’ and ‘roman’, and between ‘English’ and ‘english’. Where reference is to the national or geographic entity, proper nouns are used (‘Roman’, ‘English’); where reference is to general typographic categories, improper nouns are used: ‘roman’ for the serifed style of typeface; ‘english’ for the body size (the body size of type is discussed below: see text to notes 55-59).

2 Shaunnagh Dorsett and Shaun McVeigh, Jurisdiction (Routledge 2012) 34.

3 The literature is extensive. For an overview and practical guide, see Robert Bringhurst, The Elements of Typographic Style (Hartley and Marks 2002). For an exemplary textbook, see Ellen Lupton, Thinking With Type: A Critical Guide for Designers, Writers, Editors, and Students (2nd edn, Princeton Architectural Press 2010). For a wider range of critical perspectives and analyses, see Christopher Scott Wyatt and Dànielle Nicole DeVoss (eds), Type Matters: The Rhetoricity of Letterforms (Parlour Press 2018).

4 On the ‘backgrounding’ of law’s affective qualities, see, for example, Illan rua Wall, ‘The Ordinary Affects of Law’ (2023) 19 Law, Culture and the Humanities 191.

5 Mark Bland, ‘The Appearance of the Text in Early Modern England’ (1998) 11 Text 91, 92. As Jean-François Lyotard claims more generally, linguistic writing operates precisely through the suppression of text’s imagistic form: see Jean-François Lyotard, Discourse, Figure (University of Minnesota Press 2010) 210.

6 Even seeking to be ‘invisible’ to the reader, as much typography does, is a rhetorical move. For debate on the ‘crystal goblet’ thesis, that ‘type should not interfere with reading’ and instead transparently carry meaning, see Christopher Scott Wyatt, ‘On Type and Typographic Anatomy’ in Christopher Scott Wyatt and Dànielle Nicole DeVoss (eds), Type Matters: The Rhetoricity of Letterforms (Parlour Press 2018) 6–8; quotation at 6. As Wyatt concludes: type ‘is always rhetorical, including when it tries to be invisible’ (28).

7 See, for example, David Harvey, The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture 1475-–1642 (Hart 2017) 97. Tottel is better known for his poetic Miscellany: see, for example, Rachel Stenner, The Typographic Imaginary in Early Modern English Literature (Routledge 2019) 128–143.

8 See Peter Goodrich, Legal Emblems and the Art of Law: Obiter Depicta as the Vision of Governance (Cambridge University Press 2013).

9 See Linda Mulcahy, Legal Architecture: Justice, Due Process and the Place of Law (London: Routledge 2011).

10 See Leslie J Moran, ‘Judicial Bodies as Sexual Bodies: A Tale of Two Portraits’ (2008) 29 The Australian Feminist Law Journal 91. On law and dress more generally, see Gary Watt, Dress, Law and Naked Truth: A Cultural Study of Fashion and Form (London: Bloomsbury 2013).

11 See Andreas Philippopoulos-Mihalopoulos, Spatial Justice: Body, Lawscape, Atmosphere (Routledge 2014).

12 On the innovation and concomitant effects of language’s written form, see Walter J Ong, Orality and Literacy: The Technologizing of the Word (Routledge 1988). As he notes (at 87): ‘Writing … moves speech from the oral-aural to a new sensory world, that of vision’, thereby transforming both speech and thought. For a detailed study of evolving conventions in visual communication more widely (including text), see Charles Kostelnick and Michael Hassett, Shaping Information: The Rhetoric of Visual Conventions (Southern Illinois University Press 2003).

13 In terms of type design, this shift is discussed more fully below: see section 4.

14 On lawyers’ professional immersion under the concept of ‘nos erudition’, see Harvey (n 7) 135–139.

15 Theodore FT Plucknett, A Concise History of the Common Law (Liberty Fund 2010) 272–273. Judicial reasoning was ‘off the record’, with early records containing only the order of the court: see John Baker, ‘Law Reporting in England 1550–1650’ (2017) 45 International Journal of Legal Information 209, 212.

16 John P Dawson, The Oracles of the Law (University Press of Michigan 1968) 10.

17 Ian Williams, ‘“He Creditted More the Printed Booke”: Common Lawyers’ Receptivity to Print, c.1550–1640’ (2010) 28 Law and History Review 39, 42.

18 Richard J Ross, ‘The Commoning of the Common Law: The Renaissance Debate over Printing English Law, 1520-1640’ (1998) 146 University of Pennsylvania Law Review 323, 392.

19 See Ian Williams, ‘Early-Modern Judges and the Practice of Precedent’ in Joshua Getzler and Paul Brand (eds), Judges and Judging in the History of the Common and Civil Law: From Antiquity to Modern Times (Cambridge University Press 2012).

20 Ross argues that resistance increased as printed texts became more commonplace in legal training and practice: see Ross (n 18). Indeed, extended anti-publicist sources are relatively rare, since they were not predisposed to publication: see ibid 385.

21 Hudson, quoted in Ross (n 18) 358.

22 See ibid 361.

23 ibid 428, citing a 1610 proclamation by King James himself.

24 ibid 359.

25 ibid 428.

26 Peter Goodrich, ‘The Emblem Book and Common Law’ in Lorna Hutson (ed), The Oxford Handbook of English Law and Literature, 1500–1700 (Oxford University Press 2017) 155.

27 In Gandorfer’s terms, it is ‘matterphorical’ – law is not pure concept manifesting in material form, but is constituted by its matter-discursive practice: see Daniela Gandorfer, Matterphorics: On the Laws of Theory (Duke University Press forthcoming).

28 Peter Goodrich, ‘Imago Decidendi: On the Common Law of Images’ (2017) 1 Art and Law 1, 28.

29 Andrew Zurcher, ‘Spenser, Plowden, and the Hypallactic Instrument’ in Lorna Hutson (ed), The Oxford Handbook of Law and Literature, 1500–11700 (Oxford University Press 2017) 655–656.

30 ibid 657.

31 On law’s ‘geography of mental spaces’, see Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law (University of California Press 1995) 9–10.

32 For a rich extended study of the revelation of law’s formless form as a structural staging of the fiction of a divide between visible and invisible, see Pierre Legendre, God in the Mirror: A Study of the Institution of Images (Lessons III) (PG Young tr, Routledge 2019).

33 See Ross (n 18) 329–342.

34 See, for example, Thomas Giddens, ‘A Series of Unfortunate Events or The Common Law’ (2021) 33 Law and Literature 23.

35 Ross (n 18) 338.

36 See ibid 334–336.

37 See, for example, CP Rodgers, ‘Humanism, History and the Common Law’ (1985) 6 The Journal of Legal History 129, 131–132; Mark D Walters, ‘Legal Humanism and Law-as-Integrity’ (2008) 67 The Cambridge Law Journal 352, 357–360. See also Peter Goodrich, ‘Intellection and Indiscipline’ (2009) 36 Journal of Law and Society 460.

38 See Rodgers (n 37).

39 On the repression of continental influences within the English tradition, and their critical return, see Peter Goodrich, ‘Critical Legal Studies in England: Prospective Histories’ (1992) 12 Oxford Journal of Legal Studies 195.

40 Harvey (n 7) 161.

41 See also ibid 160–161.

42 Baker (n 15) 211.

43 ibid 212. On the immediate impact of Plowden, see Harvey (n 7) 161–162. It is worth noting that an earlier text of importance might be Bracton, which from the thirteenth century provided lawyers with commentary on legal decisions drawn from the court record. However, Bracton – although significant – is beyond the focus of this paper, since it does not ‘report’ on cases in the modern format that Plowden adopts, being piecemeal and polemical. See Plucknett (n 15) 259–260.

44 Baker (n 15) 211.

45 The folio format is itself significant to note, for instance. The bare size and shape of the volume indicates the importance of the text, since folios were ‘reserved for substantial works of serious intellectual, religious or political import’, including ‘lawbooks … classical literature and works of scholarship’: Bland (n 5) 117.

46 Note that ‘judgment’ technically refers to the court’s decision, not to the fuller concept of facts, law, reasoning, and justification that characterizes today’s concept of ‘judgment’; as noted above, this underlying reasoning was ‘off the record’: see Baker (n 15) 212. In this period, as the concept of precedent was still emerging, the ‘record’ of decisions was also clearly distinguished from reporting or commentary upon that record, with the record (i.e. the court roll) being recognised as the most authoritative source: see Williams (n 19) 56–60. Indeed, this is arguably why Plowden adopted his method of reproducing directly from the record – a practice now followed by modern full-text law reports that reproduce court transcripts, with clearly demarcated commentary and metadata.

47 See Baker (n 15) 211.

48 As Bland notes, ‘italic was used … in order to convey the orality of the text’: Bland (n 5) 99–100. The current paper does not engage with the form and use of italics, but on the general development and spread of italic types from their Italian source, see Harry Carter, A View of Early Typography up to about 1600 (Hyphen Press 2002) 117–126.

49 Kostelnick and Hassett (n 12) 6.

50 See n 1, above, on the use of ‘Roman’ vs ‘roman’.

51 A subsequent report of this case, translated from Plowden’s initial version, can be found at Reniger v Fogossa 75 ER 1.

52 The translation is reproduced from Reniger v Fogossa 75 ER 1, 33.

53 See n 43 above, and Baker (n 15) 212.

54 See Carter (n 48) 3.

55 For comprehensive diagrams detailing the complex anatomy of a piece of type, see ibid 127 (Figure 1). For fuller details and discussion of the complex techniques of printing and typographic production, and their early development, see ibid 5–22; Lucien Febvre and Henri-Jean Martin, The Coming of the Book (Verso 1997) 45–76.

56 Other elements may also contribute to this spacing, such as any ‘leading’ used between lines to widen them. See Febvre and Martin (n 55) 61. See also n 67, below, on size variation in early printing.

57 On traditional size terminology, see briefly ibid 60; Frank Isaac, English Printers’ Types of the Sixteenth Century (Oxford University Press 1936) vi. For fuller analysis of the development of the conventional point system, arguably emerging from the traditional printing sizes, see Robin Kinross, Modern Typography: An Essay in Critical History (Éditions B42 2019) 22–33.

58 See n 1, above, on the use of ‘English’ vs ‘english’.

59 On measuring type over 20 lines, see Isaac (n 57) xi.

60 See ibid 30–31. Note that Isaac’s type classification uses ‘Garamond’ as a general style, not letters cut by Garamond himself. Isaac’s taxonomy divides into ‘gothic’ and ‘roman’, with ‘roman’ subdivided into ‘pre-Garamond’ and ‘Garamond’ – indicative of the significance of Garamond’s designs for the evolution of roman type: see ibid xii–xiii. I have used ‘post-Garamond’ to accommodate this nuance in Isaac’s particular terminology.

61 Carter (n 48) 84. Note that Garamond did not invent out of nothing, and it is generally thought he derived his work from the types cut for the (undercelebrated) Italian printer Aldus: Alexander Lawson, Anatomy of a Typeface (Hamish Hamilton 1990) 132–133.

62 See Craig Eliason, ‘A History of the “Humanist” Type Classification’ (2015) 18 Printing History 3.

63 For an overview of Haultin’s roman types and general significance, see Hendrick DL Vervliet, ‘Printing Types of Pierre Haultin (ca.1510-87) Part I: Roman Types’ 30 Querendo 87. On his underratedness in type histories, see Carter (n 48) 86–87.

64 A matrix is the set of moulds for casting type. Letters are initially cut on ‘punches’ of hard metal, which are then used to create moulds by striking them into softer metal (e.g. copper). Hence the term ‘punchcutters’ for those who create letterforms. For the technicalities of early print, see Carter (n 48) ch 1.

65 ibid 86.

66 See Vervliet (n 63) 114.

67 Printing is not an exact science. 92mm over 20 lines is approximately 4.6mm per line (roughly 13 point). Plowden was measured at 95mm over 20 lines, and 47mm over 10 lines, with individual lines varying between 4.5 and 5mm. It is conventional to measure type over 20 lines: see Isaac (n 57) xi. Yet Isaac also notes at n 1 – citing McKerrow, who prefers to measure over 10 lines – that ‘english’ size varies between 45–47mm for 10 lines (13–13.5 point). Most informatively, as James Mosley explains in his preface to Carter (n 48) 13: ‘On the printed page, type appears in a variety of conditions, new or worn, over- or underinked. Type from identical matrices may look very different if it is cast in a mould for a larger or smaller body, or if a different setting … makes it appear more widely or closely set. The extent to which the dimensions of the impression have altered when the paper it is printed on has shrunk in drying, perhaps unevenly, after having been printed damp make it unwise to rely on exact measurements from the page’.

68 Vervliet (n 63) 94. Vervliet observes these typical characteristics emerging from about 1550.

69 ibid.

70 The ‘bowl’ refers to the loop on letters such as P and R.

71 See Vervliet (n 63) 114.

72 See ibid 113.

73 Isaac notes that most of Tottel’s fonts can be matched to those also held by other London printers: Isaac (n 57) 31.

74 See John Dreyfus (ed), Type Specimen Facsimiles [1-15]: Reproduction of Fifteen Type Specimen Sheets Issued Between the Sixteenth and Eighteenth Centuries (Bowes 1963) sheet 15.

75 There are some letters that do not fit this analysis, such as the occasional M lacking a top-right serif, or R that has a longer tail. There also appear to be at least two different versions of the capital C, one with a narrower opening than the other. Figure 2 gives good examples: the R in ‘Regis’ (cf ‘Recognitio’), the M in ‘Maroma’ (cf ‘Meryke’ and the first ‘Martini’), and the C in ‘Carell’ (cf ‘Coseworthe’ and ‘Concessum’). These letters are more in line with Garamond’s style – especially the asymmetrical M which, as Carter notes, was a feature that Garamond removed when he recut many of his fonts in 1550: see Carter (n 48) 85. Lawson also notes the addition of the right serif to the M in Garamond’s later cuts: see Lawson (n 61) 133. It may be that different sets of type owned by Tottel became mixed, or that he purchased fonts of the same body from different sources. Carter does note that, while Haultin’s faces were more common, some of Garamond’s did find their way to London in the first half of the 16th century, prior to the 1550 recut: see Carter (n 48) 86. Regardless, for the purposes of the argument in this paper, the style of these other letters remains humanist: see Figure 6.

76 Bringhurst (n 3) 123.

77 ibid.

78 Garamond’s letters are sampled from a number of specimens contained in John Dreyfus (ed), Type Specimen Facsimiles [16-18]: Reproductions of Christopher Plantin’s ‘Idex Sive Specimen Characterum’ 1567 and Folio Specimens of c.1585, Together with the Le Bé-Moretus Specimen, c. 1599 (Bodley Head 1972). The M comes from specimen 24 of Plantin’s 1567 Index Characterum. The sampled T and P are from specimen 26 and 32, respectively, in Plantin’s 1585 Folio Specimen, but represent the same font: Garamond’s ‘english’ size roman (90mm over 20 lines) – see ibid 4. The R is from specimen 38 in the 1585 Folio Specimen: this specimen is of Garamond’s smaller ‘pica’ size roman (80mm over 20 lines). It thus does not match the ‘english roman’ size of the M, T, and P, but shows the longer ‘tail’ on the R which is characteristic of Garamond’s cuts.

79 See ibid. Bringhurst’s example diagrams also show that as type evolves into the 17th century baroque – and beyond – the axis becomes more generally variable or is omitted altogether (e.g. with modernist geometric letters). See ibid 12–15.

80 See Lawson (n 61) 35.

81 See BL Ullman, The Origin and Development of Humanistic Script (Edizioni di Storia e Letteratura 1960) 11–12, quote at 12. See also Febvre and Martin (n 55) 79.

82 See Ullman (n 79) 11–19.

83 ibid 12.

84 On this alternative thesis, see Teresa De Robertis, ‘Humanistic Script: Origins’ in Frank T Coulson and Robert G Babcock (eds), The Oxford Handbook of Latin Paleography (Oxford University Press 2020) 515.

85 ibid 518.

86 ibid 510.

87 See, generally, Ullman (n 79).

88 ibid 127. See also Bringhurst (n 3) 122–123.

89 De Robertis (n 82) 518.

90 Ullman (n 79) 134.

91 De Robertis (n 82) 515.

92 Ullman (n 79) 133.

93 Bringhurst (n 3) 122–123.

94 Bland (n 5) 92.

95 Lupton (n 3) 15.

96 Febvre and Martin (n 55) 77.

97 Humanism has contended meanings, not simply those linked with human origin. In type, the ‘humanist’ label is similarly contentious, although does have a significant root in the renaissance humanism that influenced Jenson. See Eliason (n 62).

98 Bland (n 5) 104. See also Febvre and Martin (n 55) 78–83.

99 Bland (n 5) 93.

100 ibid 104.

101 This change in style, Bland continues, was associated with ‘a combination of Italianate fashion, economic prosperity and type replacement [that] finally changed the typography of literary publications … between 1588 and 1593’: ibid 94.

102 ibid 93.

103 Febvre and Martin (n 55) 88.

104 For more on Garamond, including other Parisian figures such as the printers Estienne and Plantin who were instrumental in Garamond’s fame and subsequent influence, see Lawson (n 61) 129–140.

105 On the trust the legal profession placed in Tottel, seemingly due to his affiliations with the legal community via Rastell’s son William, see Harvey (n 7) 98–101.

106 As Plowden’s prologue puts it: his manuscript ‘came to the handes of some printers who ment (as I was informed) to sett them forthe for gain. And because the cases were written by … ignorant persons, that perfectly did not understande the matter, the copies were very corrupt … Therefore to preuent and eschewe these defectes, I did deliberate whether it weare my parte to put this booke in print myself. … [Meanwhile,] all the Judges of both the benches & Barons of the Eschequer’ sent him requests ‘to put the woorke in print’, which he dutifully did. (I have regularized the long ‘s’ in this quotation, but otherwise maintained spelling.)

107 Richard Helgerson, Forms of Nationhood: The Elizabethan Writing of England (University of Chicago Press 1992) 75.

108 ibid.

109 See ibid 76–77. As Helgerson notes (at 77): ‘When customs are registered at the king’s behest, they become text law and the king becomes their author.’

110 Harvey (n 7) 221.

111 See ibid 220–234.

112 Helgerson (n 105) 85.

113 Coke, as cited in ibid 84.

114 Rodgers (n 37) 137.

115 Helgerson (n 105) 84.

116 On the general humanist connection between study and virtue in the common law, see Giddens (n 34).

117 See Helgerson (n 105) 97–100. As Coke puts it: ‘the common law is itself nothing else but reason … [but] an artificial perfection of reason, gotten by long study, observation, and experience’ (98, citing Coke).

118 ibid 100.

119 See ibid 83–84.

120 Rodgers (n 37) 136.

121 On the control of sovereign power through law’s textual form, see Ino Augsberg, ‘Reading Law: On Law as a Textual Phenomenon’ (2010) 22 Law and Literature 26. On the variable understanding of the relation between law and sovereign authority, see, for example, Karl Shoemaker, ‘The King’s Two Bodies as Lamentation’ (2017) 13 Law, Culture and the Humanities 24.