From Orality to Literacy in Public & Private Law

The transitions in England from the oral to the written record in legislation and regulation, in private property conveyances, and in pleading and evidence, are illustrative chapters of the greater story of law and its scribal medium.

In many ways, legislative and regulatory affairs of government continued to rely heavily on the spoken word. Proclamations of parliamentary laws and royal orders, oral instructions conveyed by royal couriers, and delegates bearing oral witness to written treaties were commonplace during England's manuscript period. ⁹⁴ So prevalent was this pattern that even the Magna Carta, which "became the great precedent for putting legislation into writing ... was not officially enrolled in the royal archives, although it was proclaimed extensively and repeatedly." ⁹⁵ Although the rule of writing was of central importance to legal development during this period (as the burst of written legislation in the thirteenth century reign of Edward I demonstrated ⁹⁶) it alone could not become authoritative in the law. ⁹⁷

Yet, in other ways, writing waged war against the customs of the oral tradition. The most stark examples of this struggle are the quo warranto statutes of 1275 and 1293, in which Edward I fixed the date of Richard I's coronation as the formal date of "legal memory." ⁹⁸ These statutes prevented Edward I's tenants­in­chief from relying on "age­old" custom to establish their feudal franchises, privileges, and immunities and required them to present written evidence in the king's quo warranto proceedings of any such right allegedly acquired after September 3, 1189. ⁹⁹ Quo warranto exemplified the power of writing to fix an artificial point of legal reference, and thereby to constrain the legal effects of fluid recollections.

Chirography also affected the realm of private law. Whereas once the transfer of land was signified by the symbolic exchange of a knife or turf, after the thirteenth century laymen conveyed property by charter. ¹⁰⁰ Whereas once the testator spoke his will in the presence of witnesses, the thirteenth century allowed closed written wills and sealed documents as evidence in probate administration. ¹⁰¹ The transition from living memory to the written record formalized the intentions of the parties and preserved them over time. This process chipped away at the edifice of the oral tradition. "Documents changed the significance of bearing witness by hearing and seeing legal procedures, because written evidence could be heard by reading aloud or seen by inspecting the document. In John of Salisbury's definition, letters 'indicate voices' and bring things to mind 'through the windows of the eyes."' ¹⁰²