 | Studies in bibliography |  |
LITTERA SCRIPTA MANET:
BLACKSTONE AND ELECTRONIC TEXT
by
Michael Hancher
"Say, devil—paper, parchment, brass, or
stone?"
"We have but faith: we cannot know,
For knowledge is of things we see"
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 |
Figure 1. Calligraphic frontispiece, and title page, Warren Chappell,
A Short History of the Printed Word (1970).
"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,
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- |
regalique situ pyramidum altius,
quod non imber edax, non Aquilo impotens
possit diruere aut innumerabilis
annorum series et fuga temporum.
non omnis moriar multaque pars mei
vitabit Libitinam. . . .
Writing as such was not essential to the durability of poetry: ordered, formulaic oral poetry
like Homer's could survive in performance, to all appearances substantially unchanged, for
a long time. But Horace was boasting of what he had written.
"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
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]
Warren Chappell, A Short History of the Printed Word, A New York Times Book
(New York: Knopf, 1970). Copyright by The New York Times. For information about Chappell
see Paul A. Bennett, "Designer, Artist, Illustrator: Warren Chappell," Publishers'
Weekly 1 Oct. 1955: 1586-88, 1590; and Sonia Benson, "Chappell, Warren, 1904-1991," Something
About the Author 68 (1992): 48-51.
Trajanus was first issued, in an incomplete format, by the German type foundry D.
Stempel AG (Frankfurt am Main) in 1939. In the forward to Trajanus, a specimen pamphlet
published by Haskell House in New York after the war (1948?), Chappell remarks that the
name had been supplied by the foundry. For exemplars see J. Ben Lieberman, Types of
Typefaces and How to Recognize Them (New York: Sterling, 1968), 120; and Christopher
Perfect and Gordon Rookledge, Rookledge's International Type-Finder (New York: Beil,
1983), 16-17.
A broadside keepsake reproducing Chappell's frontispiece design from A Short History
was issued by the Caxton Club (Chicago) for its meeting of March 1992.
In chapter 2, "The Alphabet," Chappell illustrated one typeface and nine historical
styles of script with the same motto, "Littera scripta manet." He used the same strategy in
Littera Scripta Manet: My Life with Letters (New York: privately printed for The Typophiles,
1974)—which also twice reproduced his calligraphic interpretation of the phrase, including
the ascription to Horace. See also Chappell's The Living Alphabet (Charlottesville:
UP of Virginia, 1975), 49.
Lane Cooper, A Concordance to the Works of Horace (Washington, DC: Carnegie
Institution, 1916). Q. Horati Flacci, Opera, ed. Fredricus Klingner, 3rd ed. (Leipzig: Teubner,
1959); rpt. PHI CD-ROM 5.3 (Los Altos, CA: Packard Humanities Institute, 1991).
The error has been noticed before: "[T]he text is misattributed: Horace comes close
(v. 390, Ars poetica), but no cigar: a respected Classicist suggests that instead, some wellintentioned
mediæval schoolmaster perpetrated these words, although we shall likely never
know for sure." Literary Texts in an Electronic Age: Scholarly Implications and Library
Services, 31st Annual Clinic on Library Applications of Data Processing (Urbana: Graduate
School of Library and Information Science, U of Illinois, 1994), n. pag.
Chappell's Short History appeared in a second edition in 1999 (Point Roberts, WA:
Hartley), revised by Robert Bringhurst, who acknowledged that Chappell's "dates and
names were not always correct" (ix). Chappell's calligraphic frontispiece, with its ascription
to Horace, is omitted from this edition. On p. 273 Bringhurst notes that "[t]he phrase does
not appear in any of [Horace's] works."
Horace, The Odes and Epodes, trans. C. E. Bennett, Loeb Classical Library (1914; rpt.
Cambridge: Harvard UP, 1978), 278-299 (3.30, the last ode of book 3), ll. 1-7:
Ovid, Metamorphoses, trans. Frank Justus Miller, Loeb Classical Library, 2 vols.
(1916; rpt. London: Heinemann, 1966), 226-227 (15.871-879). Edmund Spenser, sonnet 75,
Amoretti and Epithalamion (London, 1595; rpt. Amsterdam: Theatrum Orbus Terrarum,
1969). Robert Herrick, "The Pillar of Fame," Hesperides (London, 1648; rpt. Menston, Eng.:
Scolar, 1969), 398. Ian Donaldson surveys this topic with an ironic eye in "The Destruction
of the Book," Book History 1 (1998), 1-10.
Sonnet 55, Shakespeare's Sonnets, Never Before Imprinted (London, 1609; rpt. London:
Scolar, 1968). "[P]owrefull rime" does not specify written poetry (it might be oral); however,
the last line of sonnet 65 does so specify, in expressing the poet's desire "[t]hat in black
inck my loue may still shine bright."
Adam Murimuth, Continuatio chronicarum, published together with Robert de Avesbury,
De Gestis mirabilibus regis Edwardi Tertii, ed. Edward Maunde Thompson (London:
Eyre and Spottiswoode, 1889), 3: "Quoniam, ut scribitur per antiquos, `Res audita perit, litera
scripta manet,' . . ." Murimuth invokes the maxim at the very outset of his chronicle as a
justification for bothering to write it; however, his authorities for the maxim—ut scribitur
per antiquos, "as is written by the ancients"—remain obscure.
The spelling litera, less correct by classical standards than littera, was common in medieval
Latin.
I owe thanks to George Sheets, Wolfgang Mieder, Tom Hill, F. R. P. Akehurst, and
Dennis Lien for helping me find early instances of this formula. Katherine Hedin and Professor
Sheets also gave me helpful advice on several legal details.
William Caxton, prologue to The Mirrour of the World (1481); The Prologues and
Epilogues of William Caxton, ed. W. J. B. Crotch, Early English Text Society Original Series
176 (London: Oxford UP, 1928), 50. Caxton interpolates the observation into his translation
of a French manuscript, where it does not appear; see N. F. Blake, Caxton and His World
(London: Deutsch, 1969), 154-155.
H. T. Riley, A Dictionary of Latin and Greek Quotations, Proverbs, Maxims and
Mottos (London: Bell, 1902), 631a.
Proverbia sententiaeque Latinitatis Medii Aevi: Lateinische Sprichwörter und
Sentenzen des Mittelalters in alphabetischer Anordnung, ed. Hans Walther, 9 vols. (Göttingen:
Vandenhoeck, 1963-86), 2: 750 (no. 13903a).
Thomas Branch, Principia Legis et Æquitatis, ed. William Walter Hening (Richmond:
White, 1824); as cited in Latin Words and Phrases for Lawyers, ed. R. S. Vasan (Dons
Mills, Ont.: Law and Business Publications, 1980), 142.
Gurney Benham, Benham's Book of Quotations, Proverbs and Household Words
(London: Harrap, 1948), 206.
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
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
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
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
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.
The maxim does not appear in J. W. Jones, A Translation of All the Greek, Latin,
Italian and French Quotations Which Occur in Blackstone's Commentaries on the Laws of
England, and Also in the Notes of Various Editions (Philadelphia: Johnson, 1905). Nonetheless,
at least by the nineteenth century the maxim had become a regular part of legal discourse;
see note 13 above. In 1804 the Supreme Court heard the maxim quoted by an attorney,
who cited the principle that "written evidence is in its nature of superior weight to
mere parol testimony, for verba volant, litera scripta manet; words barely spoken are fleeting,
but when written become permanent" (Church v. Hubbart, 6 U.S. 187, 203). See also James
Wigram, A Treatise on Extrinsic Evidence in Aid of the Interpretation of Wills, ed. John P.
O'Hara (New York: Baker, 1872), 49: "The law holds out a bounty on the reducing of contracts
to writing by precluding the adduction of parol evidence in such cases. If extrinsic
evidence was freely admitted, the utility of a written instrument would be greatly curtailed,
while the defects and errors of memory would be substituted for the permanent litera
scripta."
Blackstone does not mention that early in the eighteenth century the Worshipful Company
of Scriveners of London, who were chiefly responsible for preparing legal documents,
revised their armorial bearings to include the motto LITTERA SCRIPTA MANET—instead of the
motto SCRIBITE SCIENTES, which had figured there from early in the seventeenth century.
(Later yet, the original motto was restored.) See John Bromley, The Armorial Bearings of
the Guilds of London (London: Warne, 1960), 217 and plate 45; and Francis W. Steer, A
History of the Worshipful Company of Scriveners of London (London: Phillimore, 1973), 49.
I thank David L. Vander Meulen for bringing this fact to my attention.
William Blackstone, Commentaries on the Laws of England, ed. A. W. Brian Simpson,
4 vols. (Chicago: U of Chicago P, 1979), 2: 297 (2.20.2). (A "lease or estate at will" would
be a mutually voluntary and therefore nonbinding arrangement.)
2: 297. Aside from two punctuation variants, this passage appears unchanged in the
ninth edition of Blackstone's Commentaries, 4 vols. (London, 1783; rpt. New York: Garland,
1978), 2: 297. Blackstone died in 1780.
Reviewing the early history of the loss of Greek literary texts, many of which
perished along with the papyri on which they were written, F. M. Hall observes that "[t]he
great losses . . . occurred in all probability before the papyrus roll was finally superseded in
the fifth century A.D. by the parchment codex. With the invention of a practically indestructible
form of book, literature was no longer at the mercy of the material upon which it was
written, and was not necessarily doomed to extinction during a period of neglect." A Companion
to Classical Texts (Oxford: Clarendon, 1913), 42.
"What a woman says to her ardent lover should be written in wind and running
water"; Catullus, Carmina 70: 3, cited by John Bartlett, Bartlett's Familiar Quotations, 17th
ed., ed. Justin Kaplan (Boston: Little, 2002), 93. Compare Ivan Illich and Barry Sanders,
ABC: The Alphabetization of the Popular Mind (San Francisco, CA: North Point, 1988), 27:
they report a Latin commonplace according to which "memory is a signet ring leaving its
impression on wax," and they cite a related comment in Aristotle, De Memoria et reminiscentia:
"Some men in the presence of considerable stimulus cannot remember owing to
disease or age, just as if a stylus or a seal were impressed on flowing water" (450bl-4).
The best-known instance is Keats's self-authored epitaph, solidly and indelibly inscribed
on his tombstone: "Here lies one whose name was writ in water." Aileen Ward, John Keats:
The Making of a Poet (New York: Viking, 1963), 400, 405-406; Oonagh Lahr, "Greek
Sources of `Writ in Water,' " Keats-Shelley Journal 21-22 (1972), 17-18.
Elizabeth L. Eisenstein implies that Trithemius was misled by "the topos which had
first set durable parchment against perishable papyrus"; The Printing Press as an Agent of
Change: Communications and Cultural Transformations in Early-Modern Europe (Cambridge:
Cambridge UP, 1980), 14.
Regarding the durability of paper see Dard Hunter, Papermaking: The History and
Technique of an Ancient Craft, 2nd ed. (New York: Knopf, 1978), 309; also, Jutta ReedScott,
Preserving Research Collections: A Collaboration between Librarians and Scholars
(Washington, DC: Association of Research Libraries et al., 1999: "Paper made from cotton
fiber has lasted for more than a thousand years, preservation microfilm can have a life expectancy
of hundreds of years, woodpulp newspaper pages deteriorate within decades, and
some types of computer disks show loss of information after a few years" (5). Cases vary,
however, especially depending on storage conditions; in Double Fold: Libraries and the
Assault on Paper (New York: Random, 2001), Nicholson Baker describes and illustrates
newspapers made from wood pulp that have survived a century or more without disintegrating
(5, 17; illustrations between 212 and 213).
The Collected Dialogues of Plato, ed. Edith Hamilton and Huntington Cairns, Bollingen
Series 71 (New York: Pantheon, 1961), 521 (Phaedrus 275d). Socrates makes a similar
objection to (oral) poetry in Protagoras, 347e (340).
Though Blackstone confirmed a materialist view of the identity of a deed, holding
paper or parchment to be essential to the document, in another legal arena he helped to
construct an idealist concept of the copyrightable work of literature, according to which
"[t]he paper and print are merely accidents, which serve as vehicles to convey . . . style and
sentiment to a distance"—"style and sentiment" being deemed "the essentials of a literary
composition." See Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge,
MA: Harvard UP, 1993), 89, quoting from English Reports 96: 189. Blackstone's differential
insistence on and indifference to the materiality of the text is only apparently
paradoxical. A deed exists as a unique exemplar, whereas a published work exists in multiple
copies, which are themselves often copied.
Anthony Fitz-Herbert, New Natura Brevium, ed. Matthew Hale (London, 1730), 283
(sec. 122.I). (In medieval practice a "wager of law" was a formal commitment to disavow
a debt, with the sworn support of referees; see Henry Campbell Black, Black's Law Dictionary,
4th ed. [St. Paul, MN: West, 1968], 1750.) For an account of tallies generally see
M. T. Clanchy, From Memory to Written Record: England 1066-1307, 2nd ed. (Oxford:
Blackwell, 1993), 123-124; and plate VIII and the facing caption. Clanchy makes the intriguing
but unexplained comment that tallies were "harder to forge" than parchments (124).
Edward Coke, The First Part of the Institutes of the Laws of England; or, A Commentarie
upon Littleton (London, 1628), 229 (3. 370).
Gilbert à Beckett, The Comic Blackstone, rev. ed. (London: Bradbury, Agnew [1872]),
131. Ramsgate was a popular seaside resort.
G. C. Tiedeman, An Elementary Treatise on the American Law of Real Property,
2nd ed. (St. Louis, MO: Thomas, 1892), 742-743, as quoted in Blackstone, Commentaries,
ed. William Draper Lewis, 4 vols. (Philadelphia: Rees, 1902), 2: 756 n. 13. The reference to
"unprepared skins of animals" contrasts to parchment, which is specially prepared sheepskin
or goatskin.
Tiedeman, quoted by Lewis, 756 n. 13. Gerald Dworkin summarizes the requirements
for a deed in brisk terms that recall Blackstone: "A document is some writing which
furnishes evidence or information about something. All deeds are documents, but not all
documents are deeds. For instance, a legend chalked on a brick wall, or a writing tattooed on
a sailor's back may be documents but they are not deeds. A deed is, therefore, a particular
kind of document. It must be a writing and a writing on paper or its like, e.g., vellum or
parchment. . . . `Writing' includes print." Gerald Dworkin, Odgers' Construction of Deeds
and Statutes, 5th ed. (London: Sweet, 1967), 1.
The formal requirements of a will are more relaxed. The Wills Act 1837 required,
among other things, that a will be "in writing," but it did not specify any substrate. In a
well-known case, Hodson v. Barnes (1926), the court entertained the claim that "writing on
the shell of a hen's egg" was a proper will. In this case it decided, absent corroborating evidence,
that the writing was only a memorandum, not a will. However, "[i]t was not difficult
to conceive a state of facts in which unquestionably it would be a testamentary document";
for example, if the testator "had handed the eggshell over to a custodian to be put in a
secret place." Times Law Reports 43 (1926): 71, 72.
In "From Written Record to Memory in the Law of Wills," Ottawa Law Review
29 (1997-98): 39-61, Nicholas Kasirer examines the equivocal implications of a probate case
in Quebec, Re Rioux, which involved a purported will encoded on a computer diskette, and
a paper printout generated from it.
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
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]
Stephen Manes, "Time and Technology Threaten Digital Archives," New York
Times Apr. 7, 1998, F4. Jeff Rothenberg, "Ensuring the Longevity of Digital Documents,
Scientific American 272 (1995): 24-25.
Albert S. Osborn, Questioned Documents, 2nd ed. (Albany, NY: Boyd, 1929), 543.
Questioned Documents was the leading twentieth-century treatise in the field of forensic
document examination. Despite judicial misgivings that prevailed up to the end of the
nineteenth century, Osborn helped to establish that field as a "science" (displacing the
feebler pretensions of graphology), and he became increasingly influential in the courts as
an expert witness. Skepticism about the field has re-emerged only in recent decades. For an
account of Osborn's rhetorical skills, which made the most of an uncertain enterprise by
catering to judicial needs and stressing ocular demonstration, see Jennifer L. Mnookin,
"Scripting Expertise: The History of Handwriting Identification Evidence and the Judicial
Construction of Reliability," Virginia Law Review 87 (2001): 1723-1845, especially 1757-60,
1814-29.
Kasirer, in "From Written Record to Memory in the Law of Wills," expresses some
impatience with "conventional definitions of writings as visible, touchable entities and of
signatures as inky, human marks," and with the privileging of "[t]he ability to see the will
with the human eye, unassisted by technology" (59, 57). Compare the concerns expressed by
Eugene F. Provenzo, Jr., "The Electronic Panopticon: Censorship, Control, and Indoctrination
in a Post-Typographic Culture," Literacy Online: The Promise (and Peril) of Reading
and Writing with Computers, ed. Myron C. Tuman (Pittsburgh: U of Pittsburgh P, 1992):
"The ability to alter the past has always been potentially possible in analog culture. It has
tended, however, to be enormously time-consuming and relatively easy to detect. . . . The
alteration of photographic data by digital techniques represents a major problem in terms
of the integrity of historical documents, and the extent to which we can trust the information
from such sources in the future" (174, 179).
David Bearman, "Archiving and Authenticity," Research Agenda for Networked
Cultural Heritage, ed. David Bearman (Santa Monica, CA: Getty, 1996), 63. (Regarding the
online version see 7.) See also Bearman's earlier collection of articles, Electronic Evidence:
Strategies for Managing Records in Contemporary Organizations (Pittsburgh: Archives and
Museums Informatics, 1994); and Peter S. Graham, Intellectual Preservation: Electronic
Preservation of the Third Kind (Washington, DC: Commission on Preservation and Access,
1994). R. J. Robertson, Jr., in "Electronic Commerce on the Internet and the Statute of
Frauds," South Carolina Law Review 49 (1998): 787-846, before recommending statutory
revisions to authorize electronic commerce, summarizes the advantages of material writing
and the disadvantages of immaterial, electronic writing, in terms that support the present
analysis; see especially 795-796.
For a less anxious perspective see Peter L. Shillingsburg, "Polymorphic, Polysemic, Protean,
Reliable, Electronic Texts," Palimpsest: Editorial Theory in the Humanities, ed.
George Bornstein and Ralph G. Williams (Ann Arbor: U of Michigan P, 1993), 29-43.
Modern Language Association of America, "Statement on the Significance of Primary
Records," Profession 95 (1995): 27, 28. For an account of the preparation of this statement,
see G. Thomas Tanselle, "Introduction" (29-32). For an institutional assessment of
the practical and economic difficulties that face such demands, see Stephen G. Nichols and
Abby Smith, The Evidence in Hand: Report of the Task Force on the Artifact in Library
Collections (Washington, DC: Council on Library and Information Resources, 2001).
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,
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,
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
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
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."
Walter Benjamin, "The Work of Art in the Age of Mechanical Reproduction,"
Illuminations, trans. Harry Zohn, ed. Hannah Arendt (New York: Schocken, 1969), 221: "the
technique of reproduction detaches the reproduced object from the domain of tradition.
By making many reproductions it substitutes a plurality of copies for a unique existence."
Benjamin was familiar only with imperfect, analog copies: his argument applies even more
strictly to digital reproductions of digital texts, which are indistinguishable from originals.
See Robert O. McClintock, "Marking the Second Frontier," Teachers College Record 89
(1988): 348: "Copies, in the familiar analog realm are costly to make and at best approximate,
leaving clear traces of what is the original and what is the copy. In the digital realm,
copies are nearly costless, [and] they are often indistinguishable from the original. . . ."
"[A]n illiterate king is a crowned Ass"—so Fulk the Good, Count of Anjou (d. c. 960),
is said to have disparaged King Louis IV of France; see The Plantagenet Chronicles, ed.
Elizabeth Hallam (New York: Weidenfeld, 1986), 22. Bertrand Russell, in his History of
Western Philosophy, 2nd ed. (London: Unwin, 1979), 432, attributes the same remark—
proverbial?—to John of Salisbury (d. 1180). Gibbon ridiculed an "illiterate king of Italy" in
similar terms; The History of the Decline and Fall of the Roman Empire, ed. David Womersley,
3 vols. (New York: Penguin, 1994), 2: 526 (ch. 39).
Richard J. Cox, The First Generation of Electronic Records Archivists in the
United States: A Study in Professionalization, Primary Sources and Original Works 3 (New
York: Haworth, 1994), 3-4. Regarding the secrecy of secretaryship in the Renaissance, see
Richard Rambuss, Spenser's Secret Career, Cambridge Studies in Renaissance Literature and
Culture (Cambridge: Cambridge UP, 1993), esp. 30, 47-48.
Robertson acknowledges "the difficulty of differentiating which forms of digital
signature are based on sufficiently reliable algorithms and which are not" ("Electronic
Commerce," 842). He envisions, ultimately, a national panel of experts: "The . . . issue of
who should determine whether a security procedure qualifies under the relevant standards
is . . . a difficult one. Ideally, a national or international accrediting body comprised of
scientists or information security experts might come into existence and develop standards
for security procedures in electronic commerce" (843). In the meantime he recommends
relying on a state-level "administrative agency," which would "employ experts necessary to
evaluate the procedure [and] take advantage of the knowledge in the information security
industry" (844).
Kasirer dryly remarks that "[t]he technological dimension of creating digital signatures,
involving a mix of computer science and applied mathematics called cryptography, is happily
not beyond the understanding of all lawyers" ("From Written Record," 57 n. 82). He
recommends, as providing "better explanations than those of the present author," a paper
by N. S. Bender, "Digital Commerce and the Utah Digital Signature Act" (no longer available
at the internet address that Kasirer gives, nor elsewhere online); and Sunny Handa and
Marc Branchaud, "Re-Evaluating Proposals for a Public Key Infrastructure," Law/Technology
29:3 (1996): 1-26. See also A. Michael Froomkin, "The Essential Role of Trusted
Third Parties in Electronic Commerce," Oregon Law Review 75 (1996): 49-115; and "The
Long-Term Preservation of Authentic Electronic Records: Findings of the InterPARES
Project" (2001), <http://www.interpares.org/book/index.htm>, consulted 13 Jan. 2003.
American Law Institute, Uniform Commercial Code, 9th ed. (Philadelphia: American
Law Institute, 1978), 16; cited with other relevant texts in Michael Hancher, "The Law
of Signatures," Law and Aesthetics, ed. Roberta Kevelson, New Studies in Aesthetics 11 (New
York: Lang, 1992), 230-232.
Similar misgivings arise in the case of electronic balloting. See Secure Electronic
Voting, ed. Dimitris A. Gritzalis, Advances in Information Security (Boston: Kluwer, 2003),
especially the chapter by Rebecca T. Mercuri and Peter G. Neumann, "Verification for
Electronic Balloting Systems," 31-42, which recommends establishing a corroborative "paper
trail."
T. S. Eliot, "Whispers of Immortality," Collected Poems, 1909-1962 (New York:
Harcourt, 1963), 45: "Donne, I suppose, was such another / Who found no substitute for
sense, / To seize and clutch and penetrate; / Expert beyond experience, / He knew the
anguish of the marrow / The ague of the skeleton. . . ."
Following up on some suggestive remarks by Jean Baudrillard about the relation
between the "tactile" and the "digital" (Simulations [New York: Semiotext(e), 1983], 115),
George P. Landow has identified "a single defining characteristic of the digital word" to be
the fact that, "[u]nlike all previous forms of textuality, the digital word is virtual, not
physical" ("Twenty Minutes into the Future; or, How Are We Moving Beyond the Book?",
in The Future of the Book, ed. Geoffrey Nunberg [Berkeley: U of California P, 1997], 215;
see also Landow, Hypertext 19). In describing the consequences of this basic categorical
shift Landow does not assess the mystification—and professional realignment—that it entails.
Aristotle's Poetics, trans. Leon Golden, ed. O. B. Hardison, Jr. (Englewood Cliffs,
NJ: Prentice, 1968), 11, 14-15 (chs. 6, 7).
Writing half a century before Blackstone, Joseph Addison drew attention to "the
proper Limits, as well as the Defectiveness, of our Imagination; how it is confined to a very
small Quantity of Space, and immediately stopt in its Operations, when it endeavours to
take in any thing that is very great, or very little. . . . The Object is too big for our Capacity,
when we would comprehend the Circumference of a World, and dwindles into nothing,
when we endeavor after the Idea of an Atome." Addison speculates that "this Defect of
Imagination may not be in the Soul it self, but as it acts in Conjunction with the Body."
Spectator 420 (2 July 1712); The Spectator, ed. Donald F. Bond, 5 vols. (Oxford: Clarendon,
1965), 3: 576-577. Bond cites precedents in Descartes and Hobbes (3: 576 n. 1).
Indeed, under current law, the physician is responsible for enabling such informed
consent. For a comprehensive account of clinical and legal aspects see Ruth R.
Faden and Tom L. Beauchamp, A History and Theory of Informed Consent (New York: Oxford
UP, 1986).
The handwriting "expert" gained a distinct authority in common usage even before
the courts recognized his claim to expertise. For a while the noun expert, which had meant,
generally, "[o]ne whose special knowledge or skill causes him to be regarded as an authority;
a specialist," acquired the particular meaning "one skilled in the study of handwritings"
(Oxford English Dictionary, sense 2.b., citing instances from 1858 to 1886). See also the
controversial treatise The Handwriting of Junius Professionally Investigated by Mr. Charles
Chabot, Expert (London: Murray, 1871). In the preface Edward Twistleton remarks that
"he had occasion . . . to consult Mr. Chabot, the Expert"; and the note appended to Chabot's
name details that "he has . . . during the last sixteen years exercised the profession of a
general Expert in handwriting" (xii).
See note 32. The leading case is Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993),
which threatens all the forensic "sciences" with touchstone questions that are supposed to
characterize genuine modern sciences; such as "whether the theory or technique in question
can be (and has been) tested, whether it has been subjected to peer review and publication,
its known or potential error rate and the existence and maintenance of standards
controlling its operation, and whether it has attracted widespread acceptance within a
relevant scientific community" (509 U.S. 579, 580). It is an open question whether handwriting
examiners will be able to pass these tests of credibility. Fingerprint examiners are
in a similar fix, though the outcome may differ; see Simon Cole, Suspect Indentities: A History
of Fingerprinting and Criminal Identification (Cambridge, MA: Harvard UP, 2001), 284286;
and Jennifer L. Mnookin, "Fingerprint Evidence in an Age of DNA Profiling," Brooklyn
Law Review 67 (2001): 13-70.
"[T]he role of the expert remains socially contingent: what is judged is not so
much the content of the evidence or advice, as the credibility and/or legitimacy of the
person giving that evidence or advice; if we trust the expert, we trust their expertise."
Wendy Faulkner, James Fleck, and Robin Williams, "Exploring Expertise: Issues and
Perspectives," Exploring Expertise: Issues and Perspectives, ed. Robin Williams, Wendy
Faulkner, and James Fleck (London: Macmillan, 1988), 4.
Second Annual Meeting, Working Group on Law, Culture, and the Humanities;
Wake Forest University, Winston-Salem, NC, March 1999. "Economies of Writing II," a
program arranged by the Society for Critical Exchange for the 116th Annual Convention of
the Modern Language Association of America; Washington, DC, December 2000. Internet
Research 2.0 (second annual conference), Association of Internet Researchers; University of
Minnesota—Twin Cities, October 2001. "Electronic Text and the Future of the Book," a
special panel for the Tenth Annual Conference, Society for the History of Authorship,
Reading, and Publishing (SHARP); Institute of English Studies, School of Advanced Study,
University of London, July 2002. "Technological Innovation and Cultural Change: Interdisciplinary
Perspectives in Media and the Public Sphere"; European Studies Consortium,
University of Minnesota—Twin Cities (with Universiteit van Amsterdam), September 2002.
J. W. [von] Goethe, Faust: A Tragedy, trans. John S. Blackie (Edinburgh: Blackwood,
1834), 69 (2.6). Faust indulges Mephistopheles's stipulation that their fatal bargain must be
in writing, and defiantly allows him to choose the substrate as well as the writing tool: "Say,
devil—paper, parchment, brass, or stone? / This I leave to thee alone: / Style, or chisel, or
pen shall it be? / Thou has thy choice of all the three."
Tennyson's Poetry: Authoritative Texts, Juvenilia and Early Responses, Criticism, ed.
Robert W. Hill, Jr., Norton Critical Edition (New York: Norton, 1971), 120; quoted by
Jennifer L. Mnookin as epigraph to "The Image of Truth: Photographic Evidence and the
Power of Analogy," Yale Journal of Law and the Humanities 10 (1998), 1. Compare William
Logan: "We considered ourselves eighteenth-century, / judging things by what the eye could
see, / as if every landscape were a mirror / of the Age of Reason" ("Floods in Cambridge,"
New Republic 9-16 Sept. 2002: 40).
"[A] full hypertext system ... offers the reader and writer the same environment. Therefore,
by opening the text-processing program, or editor, as it is known, you can take notes,
or you can write against my interpretations, against my text. Although you cannot change
my text, you can write a response and then link it to my document" (emphasis added).
George P. Landow, Hypertext: The Convergence of Contemporary Critical Theory and
Technology (Baltimore, MD: Johns Hopkins UP, 1992), 7.
| Studies in bibliography | |