Scribal Technology & Legal Procedure

The written word also altered the world of judicial proceedings. Beginning with the reign of Henry II (1154­1189), the royal writ summoned a party to court where once the crier's voice had done so. ¹⁰³ Thirteenth century criminal procedure demanded formal and precise written indictments ¹⁰⁴ where once the king's inquests depended solely on the oral oaths of twelve neighbors. By the time of Edward I (1272­1307), attorneys prepared and submitted written pleadings where once narrators spoke the pleadings in court. ¹⁰⁵ Whereas once the oral testimony of a witness was the sole type of evidence, by the end of the scribal era written evidence was well on its way to becoming the better form of proof. ¹⁰⁶ Likewise, texts such as Bracton's treatise and the English Year Books moved the bench and bar to rely increasingly on prior cases as persuasive guides if not binding precedents. ¹⁰⁷

In spite of these developments, scribal technology could not take complete hold of the legal procedure. This was largely due to an abiding faith in the oral ways of custom, and a lingering skepticism about the authenticity and reliability of writing. Centuries of manorial, local, mercantile, feudal, and constitutional custom ¹⁰⁸ biased English judges against the independent force of written laws, whether decisional or statutory. ¹⁰⁹ Moreover, during much of the manuscript era, "[t]he technology of [the] written record was insufficiently advanced to be ... reliable." ¹¹⁰ Consequently, "[t]o make a record often meant to bear oral witness, not to produce a document." ¹¹¹

Against this backdrop, a key question arose in the manuscript era: Which form of legal record is the more reliable, oral or written? ¹¹² A historical anecdote involving the investiture controversy between the Archbishop of Canterbury's monks and the bishops of King Henry I depicts the struggle between orality and literacy that characterized the law at the midpoint of the scribal period:

Anselm's monks: "But what about the evidence of the letters?"
Henry's bishops: "As we don't accept evidence of monks against bishops, why should we accept that of a sheepskin?"
Anselm's monks: "Shame on you! Are not the Gospels written down on sheepskins?" ¹¹³

Law's scribal way continued long after the invention of moveable type, ¹¹⁴ though print inevitably overtook script and assumed many of its characteristics without being hindered by many of its shortcomings. Indeed, print reinforced and magnified the characteristics of the manuscript, giving law new meaning. Yet even in the era of print, the legacy of scribal law lives on. Few legal documents­the deed, the contract, the will, the confession, the commercial transaction, the pleading, the official document­can be deemed authentic without a penned signature. ¹¹⁵ While this requirement may not hold true for paratexts, it exists for the printed law, to which we now turn.