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.
