The Memorial Culture of Early Modern English Lawyers: Memory as Keyword, Shelter and Identity, 1560-1640

Abstract

Between 1580 and 1640, memory became increasingly important in diverse areas of English legal culture: in education, in historical and antiquarian writing, in the bar’s understanding of its social role, in the organization of legal literature, in political argument, in mediation between national courts and local remembered law, and in the conceptualization of the ideal structure of legal knowledge. A “memorial culture” coalesced in early modern English law. It was a composite - in part self-conscious theorizing about recollection, in part a growing attention to the challenges of remembrance spreading as a byproduct of innovations in the profession’s work and styles of argument and education. To English lawyers, memory became an intellectual keyword, a shelter, and a badge of guild identity no less than a subject of lawyerly manipulation and a repository of information. The centrality of memory to the thought and practices of this legal culture created forensic advantages and vulnerabilities for a profession at the center of political, jurisdictional and dignitary conflicts.

One could construe the common law’s frequent invocation of what had gone before - precedent, history, tradition - as an appeal to memory, which in some sense it was. But I wish to pursue something more specific. I focus on discussions of the mental faculty of memory, employment of metaphors of remembrance (including the description of the common law as an oral tradition), and changes in what lawyers remembered and how they did so. Memorial culture was a configuration of disparate political, intellectual, pedagogical, and professional elements.

The increasing influence of legal publishing plays an important role in the story. As print slowly began displacing oral tradition and recollection as a repository of the law in the latter sixteenth century, as legal knowledge moved from instantiation in distinguished persons to encapsulation in printed texts, the configuration of memorial culture began crystallizing, partly in response. At the center of this essay lies this two-sided development - that memory’s growing salience and complexity as a cultural discourse ran parallel to its diminishing importance as a carrier of legal knowledge, with print contributing to both parts of the process. The essay explores the seeming anomaly that English lawyers came to see remembering the law as a cultural ideal and a badge of professional identity at the very time when print was displacing memory as a carrier of knowledge.

The essay has two historiographical aims. First, it challenges the widely-held “stage theory” of legal communications. Most historians assume that law moved from a largely oral system in Anglo-Saxon England, to the mixed oral and manuscript system of the middle ages, to the combined oral, manuscript, and print system of the early modern period, to the ascension of print, and finally towards the growing role of electronic media at the close of the twentieth century. Later communicative forms work in tandem with and then gradually superseded earlier ones. Yet the decline of memory and oral tradition as carriers of legal knowledge went hand in hand with, indeed provoked, the development of a cultural discourse of memory. This suggests the methodological importance of separating, for heuristic purposes, the functional and cultural sides of forms of legal communications. Their trajectories moved in different directions, calling into question the commonly assumed forward movement of legal communications from anterior to later stages along a single axis.

Second, the construct of memorial culture offers another way to periodize English law by identifying an early modern “custodial moment.” To speak of a custodial moment is to identify a distinctive phase in the sensibility of legal culture. Custodianship has always been central to the precedent-based common law. Yet the increasing salience and theoretical sophistication of memory talk in its various forms, coupled with the growing awareness of legal mutability and loss attending late Renaissance historicism, changed custodianship. It became not only a necessity, but an intellectual problematic. By the eighteenth century, an Enlightenment rhetoric of purifying law of inherited “barbarities” made guardianship of tradition a more contested stance. The early modern custodial moment stood between uncongenial late medieval and Enlightenment periods.

My argument unfolds in four sections. The first explores the lineaments of memorial culture. The second attends to a likely objection: was memorial culture but a continuation of medieval practice? The third inquires after the profession’s reasons for emphasizing memory and the advantages of doing so. The fourth develops the idea of a “custodial moment” in early modern English jurisprudence.

Keywords: Legal history, history of the book, print culture, intellectual history, law and technology