LITTERA SCRIPTA MANET: BLACKSTONE AND ELECTRONIC TEXT
by
Michael Hancher
"Say, devil—paper, parchment, brass, or stone?"
(Goethe,
Faust)
"We have but faith: we cannot know, For knowledge is of things we see"
(Tennyson,
In Memoriam A. H. H.)
"[Y]ou cannot change my text"
(Landow,
Hypertext)
[1]
I
In 1970 Alfred A. Knopf, one of the leading publishers of quality trade books in the United States, in association with the leading newspaper of record, the New York Times, published a handsome book called A Short History of the Printed Word. Warren Chappell designed as well as wrote the book, bringing to a focus his substantial experience as an illustrator and book designer.[2] The bold frontispiece includes, in calligraphy, the motto
"LITTERA SCRIPTA MANET," and below it, in print, an ascription and translation: "HORACE: The written word remains" (Figure 1). The motto appears as white letters against a black ground, but the image may have resulted from a photographic reversal of letters inscribed in black ink on a white ground. Though evidently not typeset but hand-designed, the lettering of this motto suggests not handwriting but the monumental qualities of Roman letters carved in stone. Because such inscriptions supplied printing in the West with its repertoire of capital letters, the motto speaks here for the virtue not only of handwriting (probably the original referent), but also of the printed word that succeeded handwriting in Western culture—as Chappell explained (20, 22), and with the results that he celebrated. In fact, the manual calligraphy of this frontispiece mimics (though with considerable freedom of layout) the capital letters of the metal typeface, Trajanus, which Chappell had designed more than thirty years earlier; and which, in its name, saluted Trajan's column in Rome (c. A.D. 114), the originary source of Roman capitals.[3] Chappell's frontispiece artfully mediates script and printing,
making the same boastful claim for both: the written word remains.
[4]
Chappell credits the claim to Horace, but Horace did not write it. It will not be found in the standard concordance to Horace, nor in the electronic edition.[5] But the mistake is a motivated one; for Horace did write the famous, self-reflexive, self-fulfilling conclusion to his Odes, "[e]xegi monumentum aere perennius":
I have finished a monument more lasting than bronze and loftier than the Pyramids' royal pile, one that no wasting rain, no furious north wind can destroy, or the countless chain of years and the ages' flight. I shall not altogether die, but a mighty part of me shall escape the death-goddess.[6]
These written words have indeed remained, long surviving the poet, as he boasted they would. And that extraordinary boast became a literary common-
place, renewed by Ovid, Spenser, Shakespeare, Herrick, and many others.
[7] "Not marble, nor the guilded monument, / Of Princes shall out-liue this powrefull rime."
[8] Only poetry remains to posterity.
But the paradox of this poetic topic—that fragile writing, if well written, can outlast even monumental stone—is not really the point of Littera scripta manet. The earliest known formulation, apparently already proverbial as Adam Murimuth used it in his chronicle of the reign of Edward III, which he completed in 1347, is "Res audita perit, litera scripta manet."
[9] Caxton used a similar formula when he introduced the phrase to print:
"Vox audita perit / littera scripta manet."
[10]
The balanced maxim draws a contrast not between the considerable durability of stone and the even greater durability of writing, but between the dissipation, the instant loss, of the sounds of the spoken word, and the fixity and durability of the written word. That is, the contrast is not merely comparative ("writing lasts longer than a monument") but absolute, and all in the favor of writing. Several formulations insist on the same sharp contrast: "Litera scripta manet, verbum ut inane perit": "The written letter remains, as the empty word perishes."[11]
"Littera scripta manet, volat irrevocabile verbum": The written word remains, the spoken word flies away, not to be recalled.[12]
"[V]ox emissa volat, litera scripta manet": "While words
spoken may fly away and be forgotten, what is written remains as evidence."
[13] It has been suggested that
"litěra scripta manet" is "a portion of a mediæval pentameter."
[14] Maybe; but it wasn't something that Horace wrote.
The surfacing of this maxim in the late middle ages coincides with the consolidation of bureaucratic power by scribes and secretaries. As a kind of advertisement, the maxim promoted the careers of those who were invested in writing, not speech; it is easy to imagine why a scribe first wrote it down. Chappell translates littera scripta manet as "the written word remains," but the phrase is littera scripta, not verbum scriptum. Words are spoken before they are written; but letters come into being as they are inscribed, or printed, or electronically coded; and the adepts of writing technologies have always had a stake in their success.[15]
II
Littera scripta manet was not one of the maxims that William Blackstone cited in his vastly influential treatise, Commentaries on the Laws of England (1765-69).[16] However, the topic had to interest him, because seventeenthcentury developments, particularly the Statute of Frauds (1677), tended in certain circumstances to privilege the written over the spoken word. In his discussion of the conveyance of property by deed, Blackstone briefly explains
why that statute encouraged the parties involved to (as we now say) "put it in writing":
Formerly many conveyances were made by parol, or word of mouth only, without writing; but this giving a handle to a variety of frauds, the statute 29 Car. II. c. 3 enacts, that no lease or estate in lands, tenements, or hereditaments [with certain exceptions] shall be looked upon as of greater force than a lease or estate at will; unless put in writing, and signed by the party granting, or his agent lawfully authorized in writing.[17]
Given the fact that in certain circumstances a written conveyance or deed will trump any oral evidence, Blackstone must address the question what physical form such a deed has to take (aside from the question of procedural form, such as the necessity for appropriate tax-revenue stamps) in order to count as a valid deed. It is as if Blackstone were asking, What counts, formally, as littera scripta? His remarkable answer, which emphasizes qualities of the substrate for writing, is informed by his reading of seventeenth-century treatises. Blackstone's attempt to rationalize the judicial practices that he found reported there has implications for twenty-first century understandings of littera scripta in the age of electronic text:
[T]he deed must be written, or I presume printed; for it may be in any character or any language; but it must be upon paper, or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deed. Wood or stone may be more durable, and linen less liable to rasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities: for there is nothing else so durable, and at the same time so little liable to alteration; nothing so secure from alteration, that is at the same time so durable.[18]
Here Blackstone draws a crucial distinction between durability and security: both are desirable features of the written word, but they are at odds: one comes at the expense of the other; and the ideal medium for writing will maximize both.
The substrate for writing must be durable because the distinctive advantage of writing over oral discourse is its durability: Littera scripta manet, vox audita perit. For writing to survive, the substrate must survive in stable form.[19] Writing is not really writing if it is (according to the classical watchword) "written on water."[20] Johannes Trithemius (1462-1516), the abbot of Sponheim
(Mainz, Germany), warned the monks in his scriptorium against the recent invention of printing, because it depended on paper, which he alleged to have a life-span much shorter than the thousand years he expected of parchment. But in fact the kind of paper that Blackstone and his judicial predecessors knew, which was made of linen or cotton fiber or a mix of both, proved to be about as sturdy and durable as parchment—certainly much more durable than the kind, made of acidic wood pulp, that came into use after 1850, which sometimes has a life-span measured only in decades.
[21]
Besides durability, there must also be security against alteration. Though parol evidence can be fabricated, the witness can be interrogated directly as a check against that. Now writing, as Socrates famously complained, is silent under examination.[22] Still, absent its author, a deed must be scrutinized to determine its authenticity—its freedom from alteration and sophistication. Fortunately, the more fragile the document, the more evident the tampering: the most secure document is the least durable. According to Blackstone, the ideal substrate would reconcile the competing demands of security and durability; it would be sufficiently fragile to betray tampering readily, but sufficiently durable to secure the permanence of the text. Paper and parchment are two such media, and so the law requires that deeds be written on paper or parchment, and not some other substrate.[23]
Such is Blackstone's logic—his rationalization of the common law as he received it. In practice that law may not have been so rational; and of the two authorities that Blackstone cites only one engages the problem. The New Natura Brevium of Anthony Fitz-Herbert (1470-1538), which appeared in numerous editions in the seventeenth and eighteenth centuries, exerted a lasting influence on legal practice and scholarship. In the relevant passage Fitz-Herbert merely discredits purported contracts that had been written on wooden tally-sticks—standard devices for accounting, but not, by legal custom, a legitimate medium for inscribing contracts:
If a Man make a Tally, and make Bond thereupon, and seal and deliver it as his Deed, yet it shall not bind him, but he may plead against the same, that he owed him nothing, or wage his Law. For an Obligation ought to be made in Writing in Parchment or Paper, and not written upon any Piece of Wood, as a Tally is.[24]
A marginal note cites several cases as precedents, but no explanation of the particulars is attempted.
Edward Coke (1552-1634), Blackstone's most important predecessor, drew up a larger list of proscribed substrates. He also mentioned a partial rationale: the need to forestall "alteration or corruption."
[A Deed] ought to be in Parchment or in Paper. For if a writing bee made upon a peece of wood, or upon a peece of Linnen, or in the barke of a tree, or on a stone, or the like, &c. and the same bee sealed or delivered, yet it is no Deed, for a Deed must bee written eyther in Parchment or Paper as before is said, for the writing upon these is least subject to alteration or corruption.[25]
Now "stone" is unacceptable. Why? Certainly stone is durable enough. The problem must be that it lacks the requisite fragility; that is, a fragility that would betray any effort to tamper with the inscription. Presumably Coke imagines the discredited writing to be deposited upon the surface of the stone, not incised below the surface: for incised writing would show signs of tampering readily enough, but superficial writing could be altered without damaging
the stone—without leaving a trace. This question will come up again.
Later commentators have not been much impressed by Blackstone's efforts to rationalize the tradition as he received it. Actually, there have not been many later commentators on this passage. The first of these, the comic writer Gilbert à Beckett, a staff writer for Punch, reduces this passage, along with the rest of Blackstone's Commentaries, to a froth of punning inanity. In The Comic Blackstone (illustrated by George Cruikshank—who ignored this passage), à Beckett stipulates that the third necessary characteristic of a deed is that
[a] deed must be on paper or parchment, for it has been decided to be no deed if it be written on stone, board, linen, or leather. So that an indenture cannot be made with the sole of a man's foot, though it has been done on the sands at Ramsgate. Such an indenture is not however binding, and it is liable to be quashed or squashed, when Neptune enters upon his usual roll, which he does about breakfast time. A deed is not good on linen, but we have seen a cotton conveyance, when property, such as a pound of cherries, has been passed from one boy to another in a pocket-handkerchief.[26]
More in earnest, the American jurist C. G. Tiedeman found Blackstone's comments to be merely advisory in any case, and nonsensical in the case of stone or metal:
There can be no objection in principle to a deed written on cloth or on unprepared skins of animals, so long as the writing remains unobliterated. And the reason [i.e., Blackstone's double rationale of durability and security] fails altogether if the writing is carved on stone or engraved on metal.[27]
Which would be true, if the stone were carved—and not written upon. But I suppose that Blackstone, like Coke, objects to stone—for example, a piece of slate—that has been written upon, not incised; for such superficial writing might indeed be altered without leaving an apparent trace of the alteration. Even writing upon parchment is more secure than writing upon stone; for though ink can be scraped away from the surface of parchment, it will usually leave a visible trace there.
It is pertinent that in the paragraph quoted above Blackstone shifts the predication of durability from the substrate to the "writing on" the substrate. It is not enough for the substrate, the ground of writing, to endure; the writing itself must endure, along with its ground. The writing as perceived exists as a figure against the ground; to endure, it must stand in a secure relation to that ground. That is, it must be indelible—literally, undestroyable. Though stone is durable, writing upon it is often not indelible. Writing with ink upon ordinary paper usually makes indelible marks.
Tiedeman notes that the question is one that has not "[met] with any
positive adjudication," though Blackstone's preference for parchment or paper has become "the accepted opinion of all the courts and treatise-writers."
[28] The easy availability of paper in the modern era would present few challenges to such an opinion. However, the postmodern displacement of paper by electronic media offers a new challenge. Is a virtual deed a deed indeed? Or is a deed writ on electrons like one writ on water?
[29] Whatever the legal outcome to such questions, Blackstone's analysis can help guide our thinking about their implications.
III
Despite the easy analogy of electrons and water, and despite anecdotal lore about obsolescent electronic texts, which die if they happen to survive the only machines that can read them,[30] the main problem with electronic text is not the problem of durability. For there are two different routes to durability: the durability of the particular inscription, or the replicability of the inscribed text. Blackstone almost encounters this distinction when he remarks that "the deed must be written, or I presume printed." Printing, being a technology that can readily replicate a text, can give it durability of a second kind, beyond the durability of any particular inscription. After all, the boasts of Horace, Ovid, and Shakespeare were fulfilled not because their holograph manuscripts "remained"—they did not—but because they were copied, first in manuscript and eventually by print, which greatly multiplied the number of copies and so hedged against the loss of any copy. Important early English manuscript documents were, as we say now, "backed up"—that is, copied onto
multiple parchments and deposited in multiple archives.
[31] Durability can be copy-ability. Of course, copies may vary in accuracy, making textual criticism both possible and necessary. Electronic text makes copying extraordinarily easy and potentially of much greater accuracy than any manual or print process. Despite its wimpy, insubstantial appearance, electronic text passes the first of Blackstone's tests. Even, or perhaps especially, in its electronic form,
littera scripta manet. Replicating like an electronic virus, the stuff is actually very hard to expunge, as many a bureaucrat or newsgroup participant has learned with regret.
The main problem with electronic text has to do with the second of Blackstone's requisites: that is, the security of the letter—its security against tampering. Not that letters written or printed on paper or parchment cannot be tampered with or forged: they are not always what they represent themselves to be. Nonetheless, such forgeries and alterations often show: under more or less ordinary scrutiny they may be seen for what they are. Albert S. Osborn (1858-1956), a forensic expert who was celebrated for his skill in the detection of document tampering, once described the process of detection in terms that recall Blackstone's reliance for security on the fragility of paper and parchment, and that also amount to practical advice to l'homme moyen sensuel, the ordinary person possessed of ordinary senses, and ordinary common sense:
Alteration and tampering would be made much more difficult if all business forms that pass from hand to hand should be printed on dry, very smooth and perfectly white calendered paper, not of the highest quality, with an ample field of pure white paper surface above and below the amount line.
Calendered paper, like ordinary foolscap, is made smooth by pressure as it runs between heavy rolls. This operation compresses and smooths the sheet and the slightest disturbance of the surface of any kind is easily seen. The application of water, or any fluid, swells the paper and destroys the uniformity of the surface and is easily discovered.
Abrasion erasures also are very apparent on this paper and it is impossible to erase even pencil writing from paper of this kind without destroying the sheen or reflective quality of the paper when the erasure is made. . . . an erasure of this kind is seen at once by holding the paper so that the surface reflects light to the eye. The disturbed portion will not reflect the same as undisturbed portions. The banker or business man should select the paper upon which checks and drafts are to be printed and not meekly accept whatever paper and design is [sic] offered to him.[32]
Such was the world of writing on paper—a world not free of suspicions, but a world nonetheless in which you might expect to find your suspicions confirmed or disconfirmed: simply look and see.[33] The new world of writing with electrons prompts a stronger misgiving: the fear that one can never see for oneself whether the written word that persistently remains (assuming that it does) is the word it was supposed to be, or is, rather, an invisible imposture.
Several years ago David Bearman, a consultant who had held administrative positions in the Office of Information Resource Management at The Smithsonian Institution, prepared a brief introduction to such problems, titled "Archiving and Authenticity." Published online in 1995 as part of a symposium, it reappeared, revised, the following year as part of a paper document issued by the Getty Art History Information Program, a collection of articles titled Research Agenda for Networked Cultural Heritage. The online edition was withdrawn in 1999, but the paper edition fortunately survives. Bearman's comments are at least as pertinent now as they were in 1995:
The proliferation of electronic information and communication systems has created a crisis of accountability and evidence. As more and more of the records of our society are available in electronic form, users are asking how they can be sure electronic records created in the past will be available in the future and how they can be sure those received today are trustworthy. The issue is critical for all aspects of humanistic studies because these scholarly disciplines depend on the study of original texts, images, and multimedia sources. To even imagine the humanities, it is essential to have correct attribution, certainty of authenticity, and the ability to view sources many decades or centuries after they are created.[34]
Bearman's logic is consistent with the "Statement on the Significance of Primary Records," published by the Modern Language Association of America in 1995, which argues the need to preserve for "future study . . . texts that appeared in the past in handwritten or printed form on paper or parchment." Such material embodiments provide essential information about the history of the text in question, including the history of its consumption as well as of its production. "If we approach the electronic future with these thoughts in mind," the report urges, "we will be more rigorous in our demands of new forms of textual presentation and more vigilant in our protection of the artifacts embodying the old forms. Both these actions are necessary to ensure the continuation of productive reading, teaching, and scholarship."[35]
IV
Texts written in analog media are naturally auto-historical: that is, whatever their putative referent, they carry more or less legible traces of the history of their being inscribed, a history which can be understood in relation to the history of other events. In that respect such texts are like stone, which has its place in the geologic record. But texts written in digital bits are essentially ahistorical: as an ephemeral patterning of electrons they lack a fixed relation to any historical moment. They are like water. In Walter Benjamin's terms, they renounce the "aura" of historical authenticity in favor of an easy access afforded by the perfect, fungible reproduction.[36] Electronic text is naturally synchronic; and only the artifice of experts can authenticate it by binding it to the history of passing moments, through such devices as "digital timestamping" based upon "hashing" the code.[37]
If in principle the fear of forgery, of electronically cooked books, is a reasonable fear, in practice most people don't give it much thought, because they leave it to the experts to worry about. And there have always been experts,
custodians of our concerns, in positions of power over our understandings and our welfare. Illiterate monarchs
[38] had to trust literate secretaries, who practiced their craft in secret; and ordinary people rely on the arcane verbal skills of lawyers and accountants. The computer technicians who would guarantee, with secret and invisible code, the authenticity and freedom-fromtampering of our electronic documents, do not have a categorically greater power than such bureaucrats.
[39] But the scale of control is different, and the thralldom of a king to his clerk may be less disturbing politically than the dependency of millions on the document-security systems and assurances of a few. In the era of electronic writing, both of Blackstone's textual criteria— durability and security—can be satisfied, but only by entrusting a new secretariat of digital experts. What they do and how they do it will be a mystery: their guild will be a mystery; and that will be the source of their power.
[40]
On 30 June 2000 President Clinton advanced electronic commerce in the United States by signing the Electronic Signatures in Global and National Commerce Act (15 U.S.C. 7001). He signed the bill twice, once by passing a signature card over a scanner (an act confirmed by his keyboarding his password,
"Buddy"—after his dog), and then again by inscribing his name on paper with a felt pen.
[41] This law took effect on 1 October 2000. It provides, "with respect to any transaction in or affecting interstate or foreign commerce," that
a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and . . . a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.[42]
"[W]ills, codicils, or testamentary trusts" are specifically exempted from the operation of this law, as are certain other documents (468). The law leaves it to federal or state regulators "to specify performance standards to assure accuracy, record integrity, and accessibility of records"—without, however, "requir[ing] use of a particular type of software or hardware" (470).
The terms "accuracy" and "record integrity" conceivably overlap each other, and so do not square precisely with Blackstone's concepts of durability and security. They are not among the terms explained in the Definitions section of the act. "Record integrity" presumably includes security against malicious alteration, as well as against casual decay; and accuracy presupposes a kind of self-identity and durability; so both of Blackstone's criteria remain in play. However, in the electronic domain there is no reason to foreground them by opposing them, as Blackstone does in the material domain: durability and security are not at odds in cyberspace, where threats to durability and security arrive from all sides. The E-Sign Act (to call it by its user-friendly nickname) favors no particular medium: like Faust in his indifference to paper, parchment, brass, or stone, the new law is open to using any tool at hand: whatever works, so long as it is electronic. "The term `electronic signature' means"—very broadly—"an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record" (422).
This openness to possibility, this refusal to specify a narrow formal and technical definition of what will count as an electronic signature, is consistent with the long-standing informality of the law of signatures in Great Britain and the United States. In this respect law differs from lore. Despite common lore, often enforced by clerks, about the need to conform recognizably to one's so-called "legal signature" (a lay concept without legal standing), one can put one's name to paper in any form—and indeed not only one's name but any graphic symbol at all—in an indefinite number of ways: it will count as a signature, so long as it was affixed with the intent to sign. The longstanding
Uniform Commercial Code defines the word "signed" so as to include "any symbol executed or adopted by a party with present intention to
authenticate a writing."
[43] The new definition of "electronic signature" is comparably broad.
A key difference, though, is that under the old regime of paper a signer would know experientially, and could choose, how she was signing. Under the new, electronic regime, others, more expert, will know better and make the choice for her beforehand, and will afterwards determine whether she has in fact signed. The market, and the experts, will decide how we best will sign our names in electrons. Similarly for the construction of the electronic text or record as a whole: it will say what the experts assure.[44]
When T. S. Eliot complimented John Donne for being "expert beyond experience" the preposition "beyond" marked an intensification. That is, Donne, "[w]ho found no substitute for sense, / To seize and clutch and penetrate," experienced more than the ordinary person, and more thoroughly, but in the same modality, through physical "sense."[45] His expertise, though hyper-experience, beyond the limits of ordinary experience, was still something that he experienced. But the expertise of a postmodern technician is "beyond" experience in a simpler, less rigorous way: it deals with a disembodied reality inaccessible to and unassessable by the laity.[46]
The problem is one of scale—"proper magnitude," as Aristotle explained in a different context: we can directly assess only what is not too large or too small.[47] Superstrings of galaxies and strings of DNA are alike outsized and beyond experience.[48] So are the carriers of bits and bytes. We must entrust them all to the experts.
But don't we trust experts all the time? The reader who buys a copy of King Lear trusts that the editor prepared the text in an expert way—if she thinks about the question at all. (If not, the trust lies even deeper.) The patient who accepts her physician's prescription trusts that it was framed with appropriate expertise. Furthemore, the facts and principles that inform both disciplines (textual criticism, medicine) are more or less available, should one care to investigate them: the reader can learn enough about the text of King Lear to second-guess her editor, or the patient can learn enough about her ailment and treatment to provide "informed consent."[49] Is the case not the same with electronic text?
It is true that a producer or consumer of electronic text can educate herself in the mysteries that would guarantee its authenticity, as a general matter. But she will hardly be in a position to examine the coded electronic arrangements that would secure a given transaction. Concerning the particulars she must take much on faith. And to participate at all she will have no choice in the matter, for the expertise of electronic experts is now a cultural given, not an option.
Contrast the expertise of the "handwriting expert," or "examiner of questioned documents," which over a century ago gained prestige and authority in courts of law.[50] On Jennifer Mnookin's analysis, testimonial expertise in the identification of handwriting has been, if not quite a legal fiction, a judicial construct; furthermore, recent decisions leave its future very much in doubt.[51] That is, the expertise of the handwriting expert is contingent, not
necessary: courts can make do without it. But it is impossible to imagine secure electronic inscription without imagining also the supervision (direct or indirect) of an electronic expert, whose procedures and actions are beyond ordinary inspection.
"Believe one who experienced it": "experto credite," urged Diomedes, who had personally experienced combat against the hero of the Aeneid (11.283). We, however, must believe our new secretary, the electronic expert, not for what she has experienced, which we cannot assess, but for her credentials, which we can, more or less.[52] Such essential trust, circular, would probably have disquieted Blackstone, an expert of the old school; but now, in the new millennium, regarding littera scripta, there is no alternative to it.
I've presented versions of this argument to several academic conferences over the last few years, and the reception has varied in instructive ways.[53] Sometimes objections have been raised to Blackstone's ideologically suspect preoccupation with questions of authority and property. However, once there was a quick, impatient response from a law professor who is expert in internet law. Though I can only paraphrase his response, the gist of what he said is clear in memory: "You don't have to worry," he said; "trust us."
Notes
