Front Page Titles (by Subject) CHAPTER XXIV.: AUTHENTICATION AND DEAUTHENTICATION, AS APPLIED TO PREAPPOINTED AND OTHER WRITTEN EVIDENCE. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XXIV.: AUTHENTICATION AND DEAUTHENTICATION, AS APPLIED TO PREAPPOINTED AND OTHER WRITTEN EVIDENCE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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AUTHENTICATION AND DEAUTHENTICATION, AS APPLIED TO PREAPPOINTED AND OTHER WRITTEN EVIDENCE.
Subject-matters of Authentication and Deauthentication.
Three main species or parcels have again and again been mentioned, as comprising together the whole possible matter of evidence—real, oral, and written. The same term, authentication, may be employed with reference to each of them: but the import of it in the three cases differs to a certain degree, according to the different natures of the subject-matter to which it is respectively applied.
1. In the case of real evidence, to authenticate the evidence is to establish the identity of the body (whatever it be) which is the source of the evidence,—the body, the appearances of which constitute the evidence,—together with the authenticity of those appearances: to make it appear, to the satisfaction of the judge, that the body exhibiting certain appearances at the time of its being produced in court, or subjected to the examination of a scientific witness (acting on that occasion in the character of a subordinate and deputed judge,) is the same body as that by which the evidentiary appearances were exhibited in the first instance; and that the appearances exhibited by it at the two points of time, and during the intervening interval, are the natural consequences of the principal fact, and have not been either fabricated or materially altered, either by design or negligence.
2. In the case of personal oral evidence, to authenticate the evidence is to establish the identity of the person who, in the character of a deposing witness, is subjected to oral examination,—who, in the character of a deposing witness, is admitted to give his testimony in the presence of the judge,—1. That he who speaks of himself as being such or such a person, is really that person; 2. That the person who, at the time in question, in presence of the judge, speaks of himself as having been present on a certain past occasion, on which a person known by a certain name was actually present, is that same person:—whether, on the occasion in hand, he call himself or is called, by the same, or by a different name.
3. In the case of written evidence, to establish the genuineness of the document is to make it appear, to the satisfaction of the judge, that the document exhibited as containing the discourse expressed by a certain person on a certain occasion, does really contain the discourse of that same person; and (where the occasion is material) that this discourse did really issue from him on that same occasion.
Correspondent to the respective natures of the respective species of evidence, will be the several courses requisite and proper to be taken for establishing their authenticity.
1. The case of real evidence admits of safe custody:—an expedient that applies not at all, or not with equally and uniformly unexceptionable propriety, in either of the other cases. For this purpose, a particular sort of person is not unfrequently appointed by law, in contemplation of his presumed trustworthiness with reference to this purpose. He takes charge of the article, keeps it in his possession till the time comes for its being produced in the character of evidence before the judge; and it is partly by the fact of his having thus kept it in his custody, partly by the testimony he gives, or is considered as giving, of its having been so kept without any fallacious alteration, that its authenticity is established.
2. The case of personal oral evidence—that is, of a person appearing before the judge to give his testimony—admits not of any appropriate mode of authentication. His being the same person as he who (commonly under the same name) is stated by him as having been present on the occasion in question—been present in the character of a percipient witness—is included of course in the testimony he gives. The fact of his identity (if there be any doubt about it) will, like any other matter of fact, be to be proved or disproved, as the case may be, by such evidence of any kind or kinds as the occasion furnishes.
3. It is in the case of written evidence that the business of authentication admits of the greatest diversity, and demands a proportionable degree of attention. The different modes of authentication may be divided into direct and circumstantial;—but for a detail of the different species of evidence requisite, and of the relative trustworthiness of each, reference must be made to the body of the work.
In questions relative to authenticity, the affirmative proposition is, except in here and there an extraordinary instance, the true one:—but since instances of this extraordinary description are unhappily found to exist, hence an operation opposite to authentication comes sometimes to be performed. Correspondent, in good measure, to the list of modes of authentication, will consequently be the list of modes of deauthentication. For the variations and additions, reference must be made, as above, to the body of the work.
Proper course where Genuineness is unsuspected.
Such being the subject-matters of authentication and deauthentication; next comes the inquiry, what is the proper course to be pursued upon any given occasion.
Here a distinction must be taken, in the first instance, between provisional and definitive authentication.
By provisional, I mean that evidence which may be received as sufficient for the authentication of the article in question, provided that no suspicion of its authenticity be expressed on the other side. By definitive, I mean that which, if satisfactory in itself, shall be deemed sufficient proof of the authenticity of the instrument, notwithstanding all protestations and contestations on the other side.
For the purpose of provisional authentication (that is, in all ordinary cases,) that mode of authentication will be the most eligible, which in each instance can be employed with least vexation, expense, and delay. But should the authenticity of the document be disputed on the other side,—in a word, should it be accused of forgery,—in such case, the subordinate consideration referring to these collateral inconveniences must give way to the superior consideration referring to the direct justice of the case:—always supposed, that the imputation of forgery may not be allowed to be made through wantonness, much less in the express view of giving birth to those collateral inconveniences; and that accordingly, in the case of malâ fides or temerity, the burden of the inconvenience may rest ultimately on the head of the party to whose misconduct it owed its birth.
If the mode of authentication, which is not needful but in case of contestation, be regularly employed where there is no contestation, where no doubt of the authenticity of the document is really entertained; and if, between the two modes of authentication necessary in the two cases, there be, upon an average, any considerable difference in respect of vexation, expense, or delay;—the aggregate mischief unnecessarily produced in those three shapes must be prodigious indeed. Among the writings of all sorts which come to be exhibited in a court of judicature in the character of evidence, if there be one out of a thousand in respect to which any such suspicion as that of forgery is really entertained, the proportion would prove much larger than I should expect to find it. Upon this supposition, in nine hundred and ninety-nine instances out of every thousand, this mass of inconvenience will be created without necessity or use, if in pursuit of a phantastic idea of regularity, the employment of the definitive mode of authentication be insisted on, to the exclusion of the provisional mode—the most convenient, i. e. least vexatious, expensive, and dilatory mode, which might so unexceptionably have supplied its place. This oppressive plan of authentication we shall find established in English jurisprudence.
In the adjustment of the modes of authentication to be established in regard to written evidence, the leading points or ends require to be kept in view:—on the one hand, satisfaction in respect of trustworthiness—on the other hand, avoidance of delay, vexation, and expense, the three inseparable modifications of collateral inconvenience.
Of these two ends, this first mentioned, being the main and principal end, has in general been pursued with a degree of preference, which would have been very proper, but that the sacrifices that have been made to it, at the expense of the triple collateral ends, have been inordinate, and much beyond anything which good economy in this respect would be found to authorize.
The supposition upon which judges and legislators have proceeded, in the fixation of the modes of authentication which have been prescribed, has been that of a universal and constant disposition on the part of all suitors to commit forgery:—or if that supposition have not, in every instance, been actually entertained, it is the only one on which the modes prescribed are capable of being justified—the only one by which the price paid in the shape of delay, vexation, and expense, for the supposed advantage in the shape of satisfaction in respect of trustworthiness, would not be recognised to be excessive and oppressive. If among a thousand cases in which the legal effect of a piece of written evidence is in dispute, there be not so much as one in which the authenticity of it is a matter of real doubt on the part of the suitor against whom it is produced,—it is only in the one case where it is matter of real doubt, that the price paid for authentication in the shape of delay, vexation, and expense, or all together, need be so considerable as to be worth counting. Under the existing system, there is scarcely a cause in which it is not considerable, and in many a cause it would be found to be seriously oppressive.
Thus it happens, that for one grain of mischief produced, or that would or could be produced, by fraud in the shape of forgery, a thousand, ten thousand, are produced by fraud in the shape of chicane: of chicane, produced partly by the enmity of suitors, partly by the rapacity of agents, abetted by that of the subordinate officers of justice; both passions protected and encouraged and engendered by judges and legislators. Familiarized with the spectacle of continual misery, generated according to rule and custom, and therefore on their parts without blame; the reduction of the mischief to its minimum—the reduction of it so much as within narrower bounds, never presents itself to them as worth regarding. Like so many other processes, which go on as it were of themselves, according to pre-established and never-considered rules, the authentication of evidence is considered as a sort of mechanical operation, the pathological effects of which have no claim upon them for so much as a thought. Whence all this composure? For the observance of the established rules, the man in office is responsible:—for the propriety of these rules, for their subservience to the ends of justice, he is not responsible.
Course remaining where Suspicion has been declared.
To attempt in this place to combat the triple-headed monster of delay, vexation, and expense, by any proposed regulation of detail, would be to touch upon the topic of procedure: a general observation or two may serve to indicate the course. Authentication in the ultimate, and what may be styled the adverse mode, ought, instead of being the routine of practice, to be the dernier resort, the extraordinary resource. The process of authentication should be carried on, not at the time of trial, but between party and party at a preliminary meeting, either in the presence of the judge, or before some inferior minister of justice, whose time can best be spared.
The party who has a document to produce, produces it in the first instance to the adverse party, who either admits the authenticity of it, or declares his intention to contest it. If he admit it, he marks it as admitted. If he choose to contest it, he has a right to do so, but he uses it at his peril; at the peril of simple costs in case of simple temerity; at the peril of extra costs in case of mala fides. The end in view is, in every instance, to save the suitors from the delay, vexation, and expense of adverse authentication, in so far as these several inconveniences are avoidable. The means to be employed in the prosecution of that end, is the making such arrangements as shall render it the indisputable interest of every individual concerned, each in their several stations—(parties, agents of parties, officers of justice of all classes)—to abstain from giving birth to these several inconveniences any further than as they are necessary.
The virtual penalty inflicted on this occasion by imposition of costs with the above views, should not depend on the ultimate decision of the cause, but should be inflicted pro unaquâque vice, for each act of authentication unnecessarily performed. Otherwise, to the enmity of a suitor, who was persuaded of his having the law on his side, the proposed remedy would apply no check. The principle would remain unapplied, unless to each particular act of vexation, its own particular penalty stood opposed.
To rash, as well as to malâ fide contestation, various are the other checks that might be, and if the ends of justice were the objects, naturally would be applied. If, for example, by the production of a source of evidence, the needfulness of which (after the mutual explanations in question) appeared more or less doubtful to the judge, delay and expense to a certain amount would manifestly be necessitated;—not only would eventual compensation for the damage by such delay be secured; as well as the expense attendant on the production of the evidence in question cast upon the party by whom the production of it was thus insisted on;—but if, by the exhibition of this evidence, a demand for counter-evidence to be exhibited by the adverse party were produced, the expense of such counter-evidence might provisionally be charged in the first instance, upon the party thus insisting; rather than that by such means it should be in his power to oppress his adversary, by exhausting his means of maintaining his post in the field of litigation—his means of pursuing, in the character of plaintiff, his own claim, or repelling, in the character of defendant, that of the party on the other side.
In some cases, for the purpose of provisional authentication, instead of the executed, or rather say recognised instrument, a transcript or an archetypal draught* may be employed;—and by this means, useless delay, vexation, and expense may be avoided.
Of the actual execution, and thence of the genuineness, of the proper instrument—so likewise of the correctness and completeness of the succedaneous script; even in case of contestation or doubt,—for saving of delay, vexation, and expense, evidence less conclusively probative than for the purpose of a definitive decision might be necessary, might for the purpose of a provisional decision be received on either side.
Even if contested, a script which is authentic ab intrà (i. e. which on the face of it presents the signature of the apparent author affixed to it for the evident purpose of authentication) need not be authenticated ab extrà in the first instance. Why? Because, unless it be supposed to be tainted with forgery, its authenticity cannot appear dubious. But delinquency ought not in any case to be presumed without special ground; much less delinquency of so high a cast.†
Inability to affect the authentication of a script, on or before a certain day, need not, ought not, to be rendered so much as a cause of delay, much less of ultimate miscarriage. A decision, in all other respects ultimate, might be made provisional, dependent upon the subsequent authentication of the instrument on or before a day to be named: nor need even that nomination be so inexorably peremptory, as to allow accident, much less fraud, to triumph over justice.
Advantages from the here proposed, compared with the established course.
In all these cases, the advantage and propriety of giving provisional admission and effect to such succedaneous evidence as above, depends upon the relative quantity of the inconvenience saved by it in the shape of delay, vexation, and expense. But, let it not be forgotten, that to this quantity there are no limits other than those of the earth’s circumference.
Note, moreover, that so far as concerns written evidence (including the fact of its genuineness and the nature of its contents,) the savings capable of being made in case of contestation would, the whole mass of them put together, be inconsiderable in comparison of that which, in the case of the supposed proper script upon a call made by the party exhibitant, would have place by reason of admission without contestation as above.
To these savings in the shape of delay, vexation, and expense, may be added a saving that in the account of an honest man will not be regarded as fit to be neglected—a saving in the article of improbity: improbity on the part of the parties and their professional advisers,—improbity on the part of the judges,—improbity on the part of the custos morum,—improbity on the part of the keeper of the royal conscience.
In the ordinary intercourse of life, a man to whom it has happened to deny his own hand-writing is pointed at as a man of lost character; and to such a degree lost, that, to a person to whom the like loss is not a matter of indifference, it may be scarcely safe to associate with him.
On what ground is it that, for such a mode of conduct, a man is thus consigned to infamy? On this, or on none, viz. that in this way he was knowingly and wilfully guilty of falsehood:—wilful and deliberate falsehood for the purpose of injustice.
The man by whom his adversary in litigation is loaded with the delay, vexation, and expense of proving (as well as exposed to the peril of not being able, after all, in the teeth of so many opposing quirks, to prove at any expense) the genuineness of a document, of which there exists no real doubt;—literally speaking, and to outside appearance, this man does not commit the falsehood that would have been committed, had the question, “Is the genuineness of this document matter of doubt to you?” been put, and answered in the affirmative. The falsehood is not committed:—but what is committed is an injustice;—an injustice which, in point of mischievousness, is exactly upon a level with such falsehood: the injustice, in which such falsehood would have found its sole object, and its sole advantage.
The falsehood has not been committed:—but why has it not? Only because the judges (in whom the practice in this behalf has found its creators and preservers) have taken such good and effectual care to secure, to every dishonest man who in this way finds his account in making himself their instrument, the benefit of such falsehood; without that risk which, had the eventual necessity of it been left subsisting, would have constituted the expense of it.
In so far as concerns justice and veracity, there are two codes of morality that in this country have currency and influence;—viz. that of the public at large, and that of Westminster Hall. In no two countries, can the complexion of their respective legal codes be easily more opposite, than that of those two moral codes, which have currency, not only in the same country, but in the same societies:—and if so it be, that, in the public at large, the system of morals that has place in practice is upon the whole honest and pure;—it is so, not in proportion as the morality of Westminster Hall (of which so many samples have already been, and so many more will be exhibited) is revered and conformed to, but in proportion as it is abhorred. So far as concerns love of truth and justice, the greatest, but at the same time the most hopeless improvement would be, the raising of the mind of a thorough-paced English lawyer, on a bench or under a bench, to a level with that of an average man taken at random, whose mind had not, for professional views and purposes, been poisoned with the study of the law:—as, on the other hand, in point of sound understanding and true wisdom, the raising the same sort of mind to a level with that of a man of competent education, of the nature of that to which the term liberal is commonly applied.
Yes:—it is from novels such as Maria Edgeworth’s, that virtues such as the love of justice and veracity,—it is from the benches, the bars, the offices, the desks, in and about Westminster Hall, that the hatred of these virtues, and the love of the opposite vices,—is imbibed.—But that which to Maria Edgeworth was not known, or by Maria Edgeworth was not dared to be revealed, is the genealogy of her Lawyer Case: that that very ingenious and industrious gentleman had for his elder brother the Honourable Charles Case, barrister-at law, M. P. in the lower house; and both of them for their father, the Right Honourable the Lord Chief-Justice Case, Christopher Baron Casington, in the upper:—and that it was only by executing the powers given or preserved to him, and earning the rewards offered and so well secured to him, by his noble and learned father, that the younger son became what he was.
How long, for the self-same wickedness, shall the inferiors in power and opulence—the inferiors, who are but instruments,—be execrated, and the superiors, who are the authors of it, adored? Attorneys, solicitors,—were they makers of common-law?—were they the makers of the technical system of procedure?—were they the makers of the law of evidence?
English Practice.—Case 1. Authenticative Testimony of Parties excluded.
The distinction between provisional and definitive authentication is unknown to English law. In all cases alike, it insists upon having the authentication performed in the same mode:—without allowing of any exceptions on the score of vexation, expense, or delay. It presumes all mankind to be forgers;—and where there is forgery, affords no facilities for the detection of it. It guards against deception where there is none to guard against; and where deception is at work, interdicting the interrogation of the suspected person, it interdicts the most efficient means of scrutiny.
Previous meeting between the parties, for the purpose of ascertaining whether any and what documents presented by one party are contested by the other, there is none:—disputed or not, the authenticity of every document must be proved.
True it is, that for saving of delay, vexation, and expense, sometimes it does happen, that on one or both sides the genuineness of this or that instrument of contract or other script (or, as it may happen, of all the scripts meant to be exhibited) is admitted. But it is only in so far as on both sides, or (if it be an equity suit or cause) on all sides, and that to an indefinite number, all persons concerned, law advisers as well as suitors, are honest,—and not only negatively honest, but completely and actively and zealously honest,—that any such admission, with the consequent savings, can have place.
In regard to the species of fact here in question, as in regard to every other, the most satisfactory, and on every account beyond comparison the most eligible, evidence (need it again be said?) is that of the parties;—viz. in relation to each fact, that one of the parties against whom it makes.
By the exclusion put upon the preliminary meeting, this evidence stands excluded, from the commencement of the cause. And when, at the end of half a year, or a whole year, or some number of years, from the day of the commencement, that inquiry which ought to have begun, and in most instances would have been concluded on that same day, is under the name of the trial suffered to take place,—upon this same best evidence is an exclusion again put, by means of another exclusionary rule.
In the eye of common sense, this is the best evidence possible: in the eye of the law, it is no evidence at all; therefore not the best evidence. For on this part of the field, when exclusion is the object, out of the word best, is formed the basis of the pretence.
Always excepted (I mean from the exclusionary rule) the case where an extra price, and that a most enormous one, is paid for opening the door to that which otherwise would be the excluded evidence;—viz. at the equity shop, and elsewhere. By the immeasurable and profitable addition thus made to vexation and expense together, coupled with the comparative badness of the shape in which the evidence is extracted, the objection which would have been so peremptory, is now removed.
Rather than give admission to that best and most satisfactory of all evidence, no evidence so loose and unsatisfactory, but that admission will be given to it:—in the case of an instrument of contract, for example, proof (i. e. what is called proof, viz. mere circumstantial evidence) of the genuineness of a couple of words, purporting to be the name of an attesting witness. Look at these words, viz. John Smith. Did you ever know any person who ever bore that name? Yes. Did you ever see him write, or receive letters, which you understood to have been written by his hand? Yes. Judging from these opportunities, do you believe these words to have been written by him? Yes.
True it is, that, when no better is to be had, the exigence of the case necessitates the reception of this loose, this circumstantial evidence. But when the case affords not only direct evidence, but the most trustworthy of all direct evidence,—to exclude that best evidence, and admit this loose evidence instead of it—how inexplicable the folly, were it not for the sinister interest that lurks at the bottom of it!
Wounded by the rule itself, justice is again wounded by the evasions of the rule.
1. Three obligors jointly bound in a bond. Proof by extraneous witnesses (it must be supposed) being somehow or other unobtainable, one of the obligors is called to prove the execution of it. But for this purpose, he must have been left out of the action, and the recourse against him lost. Just as it happens in penal cases, where one of two malefactors is let off, that his testimony may be employable against the other.
2. If a subscribing witness is become infamous,—on producing his conviction, his hand may be proved as if he were dead. Here inferior evidence is let in, to the exclusion of the best:—circumstantial, to the exclusion of direct. So much for security against deception. Moreover, the conviction must be produced:—a lumbering record, lugged in at a heavy and unnecessary expense, to prove a fact in itself notorious, and capable of being sufficiently proved by less expensive means; and which, after all, cannot be sufficiently proved by this means. John Brown was convicted:—true, but how does the dead parchment prove that it was the same John Brown?
3. So, when an attesting witness being the only surviving witness, had become interested,* without any prejudice to his character, his hand was allowed to be proved by somebody else, on the presumption that he himself would have denied it. Pre-established rules apart, the experiment might have been tried, at least, and if he had perjured himself, then might it have been time enough to encounter the perjury by other evidence.
English Practice.—Case 2. Authenticative Testimony of non-attesting Witnesses excluded.
Witnesses to the number of half-a-dozen, or half-a-score, all of them unexceptionable, are ready to be produced; each of them ready to say, “I saw the several parties attaching their respective signatures to this instrument, saying (each of them) I deliver this as my act and deed.”
Quibbleton, counsel for the defendant, addressing himself to the first of these witnesses—“What is your name?”
Quibbleton—“My Lord, here is the deed: two (your lordship sees) and but two attesting witnesses;—neither of them is named John Stiles.”
Judge—“Set aside this witness.”
Half-a-dozen, or half-a-score, all of undisputed character, all ready to speak to this plain fact, and not one of them permitted. Why not permitted? Answer: Because, in the first place, if permitted, they would all of them perjure themselves; they would all of them, in spite of counsels’ cross-examination and judges’ direction, obtain credence. Two persuasions these, neither of them (it is true) avowed, because, when absurdity or improbity enter upon the stage, they do not, either of them, present themselves stark naked. But to give to the exclusion so much as the colour of being conducive to the ends of justice, these persuasions must both of them be entertained; or, at any rate, of the matters of fact respectively predicated by them, the certainty, or (to speak with a degree of correctness new as yet to lawyers’ language) the preponderant probability must be assumed.
But supposing these persuasions entertained, on what ground is it that they must have been entertained? On this ground, and no other, viz. that the names of these persons are not to be found upon-the face of the instrument, in the character of attesting witnesses.
Exists there, then, any article of law, by which it is required (on pain of nullity, or any other pain,) that upon the face of every deed of the sort in question (wills being out of the question,) there shall be visible the names of two persons in the character of attesting witnesses? No:—neither of any article of real (i. e. legislative) law, nor so much as any rule delivered in the shape of judge-made law.
On what ground, then, stands the rejection? Answer: On this ground, viz. that when the name of a person, purporting to have been written by him in the character of an attesting witness, is visible on the face of the instrument,—the testimony of any number of persons who (if they are to be believed) actually saw what it is there declared that this man saw, is not, with relation to the fact in question, the best evidence.
Non-lawyer: What!—the evidence being good enough to produce a complete (or at least preponderant) persuasion;—in this case, by the mere circumstance of its not being the very best imaginable (admitting, for argument’s sake, that it is not the very best,) by this one circumstance, is any sufficient ground afforded for shutting out this evidence, when there is no other?—and when, in consequence, if this be shut out, the party who has right on his side must lose his cause?
Lawyer: Oh! but where, there being upon the face of the deed an attesting witness, he is not produced, but instead of him others are produced, whose names are not upon the deed: here is an omission; from which we draw a conclusion:—and the conclusion is, that, had the attesting witness been produced, his testimony would have been against the genuineness of the deed.
Non-lawyer: And on this conclusion it is that you build the two other necessary conclusions, viz. that the non-attesting witnesses, being all of them so many intended perjurers, would all of them have affirmed the genuineness of the deed, the fact being otherwise, and thus falsely affirming it would have gained credence!
With submission, suppositions of a contrary tendency might be raised in any number, any one of them less improbable than the above.
Independently of regulation—positive and effectually notified regulation—it is difficult to say what there is that should determine the choice of the party in favour of a supposed attesting, to the exclusion of (or even in preference to) a non-attesting, but by him equally known to have been a percipient witness. True it is, that, by the signature of the attesting witness, proof is so far given, that in relation to the transaction in question he was a percipient witness. Yes;—but is it a proof that no other person was?—a proof too, which by those who know that the contrary is true, is to be regarded as a convincing one?
The attesting witness would cost (suppose) so much money to produce: the non-attesting witness may be had for a few shillings less. This, in the eye of a considerate, and, especially in the eye of a poor man, honestly advised, should suffice to give the preference to the non-attesting witness. The attesting witness would, after all expenses paid him, suffer inconvenience (suppose) from the attendance:—the non-attesting witness would not suffer any inconvenience:—this, in the eye of a humane and considerate man, would suffice for securing the like preference.
Oh! but we have a rule about the best evidence, viz. that in no case shall any evidence be received but the very best evidence which the nature of the case admits of.
Preciously instructive rule! We receive no evidence but what we receive:—for anything more precise, or intelligible, or wise, or honest than this, will not be found in it.
No evidence do we ever receive other than the best evidence. And what is the best evidence? Answer: It is, on each occasion, that which we receive as such.
They know not themselves what their own rules are. Strange indeed it would be if they did: for that which has no existence, how is it to be known to anybody? They know not themselves what their own rules are: they resolve that every other man shall know them;—that is, without the possibility of knowing them, shall, as often as occasion offers, be punished for not knowing them.
Nemo tenetur ad impossibilia, says another of their maxims. But in any one of their maxims, so sure as there is anything good, so sure is practice opposite.
Once more: Partly upon the source, partly upon the shape, depends the goodness of an article of evidence. As to the shape:—in so far as depends upon themselves, in none but the very worst shape (come it from what source it will) do they receive any evidence:—and so it be in this worst shape, no source so impure but that from that bad source they are ever ready to receive it. Yet such is their delicacy, that (as if for evidence, as for meat, there were a market at which, with money in his hand, a man may pick and choose) none, forsooth, will they put up with, but the very best of evidence.
English Practice.—Case 3. Admission given to Instruments without Authentication.
By the man of law, wherever you see a gnat strained at, on a second glance make sure of seeing a camel taken up and swallowed.
Behold an instrument, for the authentication of which, to-day, a whole score of witnesses, who (every one of them, if they are to be believed) were percipient witnesses of the execution of it (they not being attesting witnesses) will not suffice: it is accordingly dealt with as if it were forged. Wait till tomorrow, this spurious deed becomes genuine: and so plainly genuine, that for the proof of its genuineness no evidence is required.
This metamorphosis, by what was it effected? Answer: By time. Yesterday, the script wanted a day of being thirty years old: to-day, the thirty years are fulfilled.
This admission has neither quite so much absurdity in it, nor quite so much mischievousness, as the exclusions. The instrument, if it be not what it purports to be, is a forgery. Forgery, a flagitious and pernicious crime, is not to be presumed. Independently of particular argumentative grounds, the odds against the fact, as testified by experience, are prodigious:—for every forged instrument, you have genuine ones by thousands.
Not but that to this crime (by the exclusion put upon the interrogated testimony of the party by whom, or in whose behalf, the instrument is produced) every encouragement has been given, which it has been in the power of Judge and Co. to give to it. Suppose the party to have forged it: he puts it silently into the hands of his lawyer, and it is the lawyer’s business to fight it up. At the lawyer’s elbow, if so it please him, sits the forger. There he may sit till he is tired, for he is in no danger; the law has taken him under her care: not a single question can be put to him.
Convenient as this law is to every criminal, to an honest man it may happen but too frequently to be laid by it under an embarrassment, out of which it seems not altogether easy to say how he is to be delivered.
The instrument purporting upon the face of it to be thirty years old or more: this antiquity, coupled with possession (i. e. with the relation borne to the suit or cause, or to the fact in question, by the individual in whose possession it has been,) is accepted as evidence sufficient for the authentication of it. But the individual (suppose) in whose possession it is, is the plaintiff;—and for the whole of the time that has elapsed since the execution of it, or for a part, more or less considerable, of that length of time, he has kept it locked up in his strong box: not having in all that time shown it (because in all that time no occasion has called upon him to show it) to any person who is without interest in the suit or cause. By whose testimony, then, is the custody of it to be proved? By his, the plaintiff’s? Oh no: that would be contrary to the inviolable rule. But if not by his testimony, it cannot—by the very supposition it cannot—be proved by that of any one else.
Yes: if he had had information, timely information, of the existence of this rule of law; for in that case he might have got this or that uninterested person to look at it. But if any such information had reached his mind, the care and pains taken by Judge and Co. for so many centuries to keep it out of his reach would have been frustrated. By keeping them from receiving existence in and from any determinate form of words, care has been taken—very effectual care—that neither by non-lawyers, nor by lawyers themselves, shall any of these portions of imaginary law be laid hold of by inspection. By their uniform repugnance to every conclusion that would be drawn by common sense, care not less effectual has been taken that they shall never have been laid hold of by inference or conjecture.
If, in this case, the exemption granted from the obligation of authenticating the document by evidence ab extrà be proper, it can only be because, in the other cases, the obligation is itself improper, being needless. Forgery is not the crime of any particular point of time;—whatever be the probability of it at this present day, it was not less on this day thirty years. A deed purporting to have been fairly executed thirty years ago, may have been forged or falsified at any subsequent point of time. Forged writings, of an apparent date two hundred years anterior to their real date, forged writings ascribed to Shakespear,* have been known to deceive the very elect among English lawyers.
English Practice.—Case 4. Shifts where the Script is in the power of the adversary.
The hostility of the technical system to the ends of justice—the consciousness of that hostility on the part of those who, while they are acting under it, are profiting by it,—the violation at the same time so continually offered by themselves to the very principles to which by themselves the highest importance is attached,—all this may be seen exemplified in a case which shall now be brought to view.
When the article of written evidence which the party in question stands in need of, happens to be in the hands of a party on the other side;—when an instrument which a plaintiff (for example) stands in need of, happens to be in the possession of the defendant;—the sort of shift that has been made is truly curious.
Under a rational system of procedure, the course is plain and easy;—the evidence acted upon is of the best kind imaginable. Both parties being together in the presence of the judge, the plaintiff says to the defendant—“To make out my case, I have need of such or such an instrument” (describing it:) “you have it, have the goodness to produce it.” “Yes,” says the defendant (unless his plan be to perjure himself,) “and here it is:” or—“I have it not with me at present—but on such a day and hour as it shall please the judge to appoint, I will bring it hither, or send it to you at your house, or give you access to it in mine.”
Under the technical system, no such meeting being to be had, no such question can at any such meeting be put. But, at the trial (viz. under the common-law, alias non-equity system, of which jury-trial makes a part,) at the trial, that is, after half-a-year’s or a year’s, or more than a year’s factitious delay, with its vexation and expense; then it is, that, for the first time, a chance for procuring the production of a necessary instrument may be obtained.
Though either for any such purpose, or for any other, neither to the party on either side, nor to any agent of his, can anything in the shape of a question be put vivâ voce by a party or agent on the other side,—the question (for example) the instrument (describing it,) have you it or no?—yet under the name of a notice, a sort of requisition in writing calling upon him to exhibit it, may be, and every now and then is, delivered. Of this notice to exhibit the instrument, what is the effect?—that the defendant is under any obligation to exhibit it? No such thing. To produce any such effect would require nothing less than a suit in equity; whereupon the instrument would be exhibited or not: and if exhibited, not till the end of the greatest number of years to which the defendant (having an adequate interest) had found it in his power to put off the exhibition of it. To have enabled the party thus far to have obtained justice without aid from equity, would have been robbing the Lord Chancellor and the Master of the Rolls, and the swarm of subordinates, of whose fees the patronage part of their emolument is composed.
What, then, is the effect? Answer: That after this notice, if that best evidence which is asked for be not obtainable,—not obtainable only because those on whom it depends do not choose that it should be obtained,—what is deemed the next best evidence that happens to be in the plaintiff’s possession is admitted: and on this occasion no evidence is too loose to be admitted.
After such notice given, one succedaneum that has been admitted is a supposed transcript:—“an examined copy,” are the words.—Another is, “parol evidence of the contents.”
In the midst of all this laxity, observe and admire the strictness:—“In case it be a copy that is offered, it must first be proved that the original, of which it purports to be a copy, was a genuine instrument.” So much the more business for the benefit of the man of law:—so much the more chance of failure, for the benefit and encouragement of the wrong-doer.
But suppose no such copy producible,—the best and only evidence which it is in the plaintiff’s power to produce, being as above, “parol evidence of the contents,” i. e. some account given of the supposed instrument, by a person into whose hands, by some accident or other opportunity of bestowing upon it a perusal more or less adequate,—of throwing over it a glance more or less correct and complete,—it has happened to find its way.
This casual reporter,—for his report to be received, is it necessary that he (or, in his stead, the party by whom he is called in) should have established in due form the genuineness of the instrument, which, for ever so short a time, chance had thus thrown into his hands?
In this one point may be seen a mine, a rich mine, of future cases.
Behold now another mine. The two sorts of make-shift evidence thus brought to view in the case of a deed,—viz. a supposed transcript (copy examined or not examined,) and parol evidence of supposed contents,—shall they apply, and under any and what modifications, to any and what other sort of scripts?
Delight paints itself on the countenance of the man of law, at the thoughts of such a mine of non-suits, and to the lawyer at any rate, if not to the client and suitor, of agreeable surprises.
Good all this, as far as it goes; when so it is that a man’s good fortune has put into his hands any such make-shift evidence. But if not, what in that case becomes of the notice? In that case, the wrongdoer triumphs: the party who is in the right loses his right, whatever it may be; and so the matter ends.
Did but the judge deign to admit, at the outset, into his presence, the persons whose properties and liberties he has contrived, with so little trouble, to dispose of,—whatsoever were the instrument wanted, if it were not found in one of two hands in which it was expected to be found, it would be in another: every instrument that was necessary to justice would be ferreted out; as it actually is, in the case where, justice being necessary to his own personal protection as well as that of the public, it has been the pleasure of the man of law that the necessary instruments should be made forthcoming,—viz. in the preparatory examinations taken, as in a case of murder, robbery, or other felony, by a justice of the peace. No loophole (or at least not so many loopholes) would then be left for the wrong-doer to creep out of; thus foiling for a time, or for ever, the party whom he has wronged.
But, under the technical system, this business of notices affords to the wrong-doer an inexhaustible fund of chances: in this lottery, a nonsuit (the produce of which is an additional suit) constitutes the prize, in which Judge and Co., with their protegés and partners, the wrong-doers, are sharers.
In one sample more, read at once the nature of judge-made law in general, and therein read the technical system of procedure; and therein, again, the law of evidence in particular.
When the script you want is in possession of your adversary, you have seen already what the succedaneum is, and what sort of chance there is of its being obtainable.
When the script is in possession of a person capable of being a witness (a non-litigant witness,)—for the purpose of having it exhibited, you serve him with a writ called a subpæna duces tecum, by which he is ordered to attend, and bring with him the script. If he obey, it is well:—if he obey, that is, if so it be that he not only attend, but bring it. But, what if he come without it? To this hour it is not settled what is to be done with him, nor how the script is to be got at, and applied in the character of evidence. At any rate, to the party who, being in the right, has need of the evidence, the cause is lost for that time:—saved to him, or not saved, the liberty of trying a new one.
[* ]Archetypal, i. e. the corrected and settled draught from which the instrument itself was transcribed, and which served as an archetype or original to it.
[† ]In Scotland, a deed executed according to certain forms is presumed genuine, until its spuriousness be proved in a separate action by the person impugning it.—Ed.
[* ]Comyns. 106.
[* ]See the controversy between Mr. Malone and Mr. Chalmers.