 | |  |
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,
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-
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
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
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
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
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
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,
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,
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
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
"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
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.
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:
regalique situ pyramidum altius,
quod non imber cdax, non Aquilo impotens
possit diruere aut innumerabilis
annorum serics 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.
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.
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.
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).
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.
| | |