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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.
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