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CHAPTER III.: OF REAL EVIDENCE, OR EVIDENCE FROM THINGS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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OF REAL EVIDENCE, OR EVIDENCE FROM THINGS.
Of the nature and extent of real evidence.
Byreal evidence, I understand all evidence of which any object belonging to the class of things is the source; persons also included, in respect of such properties as belong to them in common with things.
The properties of things are the subject-matter of the different branches of physical science. A work having for its subject any such branch of science, is, as to a great part of its contents, a treatise on circumstantial evidence. In this point of view, this comparatively small portion of our field of inquiry is of itself infinite.
On the present occasion, the inquiry is limited to the field of law. Even after this limitation, however, there is scarce an imaginable distinction or observation, an indication of which could, with reference to the subject of the present work, be charged with being altogether irrelevant: for, in one way or other, and even in each instance in various ways, there is not an imaginable fact, the existence of which is not capable of being taken for the subject of inquiry in a court of judicature. No imaginable fact (for example,) the existence of which may not (unless in case of legal prohibition interposed for special reasons) have been taken for the subject of a wager: on which occasion, whether the wager has been won or no by Titius, may become a question to be determined by a court of law. Add to this, the case of a premium offered for an invention or discovery; the case of a claim put in to the sort of temporary monopoly granted to inventors for the encouragement of inventions; and the case of a question whether a contract, respecting the practice of any branch of art, or the affording instruction in relation to any branch of science, has been properly fulfilled. Of the evidence that on any of these occasions may come to be exhibited, a portion more or less considerable (if not the whole) will come under the notion of the species of evidence already distinguished under the appellation of scientific evidence: but it is not the less true that the facts brought to view on such occasions respectively, are brought to view in the character of evidentiary facts, and are included in the field of legal evidence. If, therefore, the whole Encyclopædia were to be crowded into the body of this work, and into this part of it in particular, there is not a page of it, that (if relevant with reference to the particular branch of art or science of which it undertook to treat) would, strictly speaking, be irrelevant—could be justly chargeable with being altogether irrelevant—with reference to the subject of this work. But, as the duration of human life, as well as human powers (psychological and physical,) has its limits; it becomes matter not only of convenience but of necessity, to mark off and abandon to the labours of their respective professional and other appropriate cultivators, these several distinguished and pre-eminent portions of the field of evidence.
Even in the more limited field opened by the penal branch of law,—a prodigiously ample and diversified demand, a demand scarce susceptible of limitation, will be seen to present itself. Cases of homicide and personal injury (not to mention at present a great variety of other cases,) are sufficient of themselves to draw deep upon the stores of medical science: cases of monetary forgery upon the metallurgic branch of chemistry: cases of scriptural forgery, upon the arts of the engraver, the paper-maker, the letter-founder, the ink-maker, and (through one or other channel) upon the stores of chemistry.
Of all modifications of real evidence, the human body is that source which will serve best for exemplification: the matter afforded by it being at the same time of the most interesting nature, susceptible of the greatest variety, and capable of being brought to view in the smallest compass, proportionally to the importance of the instruction conveyed by it. The following table is a translation, nearly literal, of the heads offered in Plink’s Elementa Medicinæ et Chirurgicæ Forensis, Vienna, 1781. A few articles are omitted; some as not being applicable to the present design; others as referring to vulgar errors, which, at this time of day, no longer threaten to be productive of errors in judicature.*
Questions belonging to the cognizance of criminal tribunals:—
Questions belonging to the cognizance of civil tribunals:—
Questions belonging to the cognizance of ecclesiastical tribunals:—
For the reasons already stated, the inquiry is in the present instance limited to the penal branch of law. The fact sought, and concerning which on each occasion the question is, whether it be evidenced or no, is delinquency: the evidentiary facts are any and every fact, considered as capable of operating in that character with reference to the fact sought.
Division of things, considered as sources of real evidence: the source of the division being the nature of the relation they respectively bear to the fact of delinquency, considered as the fact indicated.
I. Subject-matter of the offence itself.—1. The person killed or hurt. 2. The thing stolen or otherwise taken in the way of depredation, or damaged, or destroyed. 3. The instrument of contract fraudulently uttered or fabricated. 4. The genuine money diminished: the counterfeit money fabricated.
II. Fruits of the offence.—In the case of depredation above mentioned, it is the goods taken in the way of depredation which constitute the immediate fruits of the offence: in the case of forgery of written instruments, and monetary fabrication, it is the profit, in whatsoever shape obtained: in the case of subduction by monetary forgery, it is the quantity of valuable matter subducted.
III. Instruments of the offence.—Examples:—1. In the case of homicide or other bodily injury,—the pistol, sword, club, knife, or other weapon: in case of poisoning,—the poison. 2. In case of depredation by house-breaking,—the picklock keys, the crow or chisel, the ladder. 3. In case of incendiarism,—the combustibles. 4. In case of forgery,—the engraved plates, the instruments for the fabrication of the appropriate papers. 5. In case of monetary forgery,—the coining tools.
IV. Materials of the subject-matter of the offence, or of the instruments of the offence, when they happen to have anything appropriate in their nature, exclusively or peculiarly fitting them for being converted into instruments of the offence.—Examples:—1. Silver or gold, in plates, or other suspicious forms, where coining is the offence in question. 2. Laurel leaves for distillation, where poisoning is the fact in question. 3. Drugs calculated for the purpose of adulteration, found in large quantities in the possession of a dealer in the article which such drugs are capable of being employed to adulterate.
V. Receptacles inclosing or having inclosed (as above)—1. The subject-matter; 2. the fruits; or 3. the instruments, of the offence.—Example:—1. The clothing of the person killed or hurt; 2. the house, ship, room, closet, stable, waggon, chest of drawers, package, case, in which the goods stolen, damaged, or destroyed, or the instruments or materials of the offence, were contained.
VI. Circumjacent (detached) bodies. Bodies circumjacent (though detached,) with reference to any of the objects above enumerated.—Examples:—The floor on which the person killed or wounded was standing; the chair on which he was sitting; the bed on which he was lying; the pathway spotted by his blood.
It is in virtue of some peculiarity in their condition, that the things in question are qualified to become sources of real evidence; evidentiary facts, with reference to the modification of delinquency in question—the fact indicated.
This condition may to the purpose in question be distinguished into relative and absolute: relative, bearing to the person in question any such relation as has the effect of indicating him in the character of the delinquent; absolute, indicating (without any indication of the person) the existence of the obnoxious event (the death, the damage to property by fire or other cause,) coupled or not with the indication of its being referable to human delinquency as its cause.
Physical real evidence (whether issuing from a real or from a personal source) requires to be distinguished into immediate, and reported. I call it immediate, in the case where the thing which is the source of the evidence is made present to the senses of the judge himself. I call it reported, in the case where it is not made present to the senses of the judge himself,—but the state of it in respect of the evidence, the evidentiary facts, said to be afforded by it, is presented to the judge no otherwise than by the report made of it by a person, by whom (in the character of a percipient witness) the state and condition of it in respect of the evidentiary facts in question is reported by him to have been observed.
In the case of immediate real evidence (as above described,) the evidence is of the circumstantial kind purely: it is a case of purely real, purely circumstantial evidence. In the case of reported evidence, it is of a compound or mixed kind, composed of supposed real evidence exhibited through the medium of personal; of circumstantial, exhibited through the medium of direct, evidence. To the reporting witness indeed, if his report be true, it was so much immediate, so much pure real evidence: but to the judge it is but reported real evidence.
The distinction is far from being a purely speculative one: practice requires to be directed by it. Reported real evidence is analogous to hearsay evidence, and labours more or less under the infirmities which attach to that modification of personal evidence, compounded of circumstantial evidence and direct,—of real evidence, and ordinary personal evidence (evidence given in the way of discourse:) it unites the infirmities of both. The lights afforded, or said to have been afforded, by the real evidence, are liable to be weakened in intensity, and altered in colour, by the medium through which it is transmitted: a topic which will come to be considered in the Book which treats of makeshift evidence.
From this infirmity results an obvious practical rule—viz. not to receive real evidence in the form of reported real evidence, when, without preponderant inconvenience, it can be had in the form of immediate real evidence: a rule exactly analogous to that which is alike obvious in the case of the analogous species of evidence called hearsay evidence. But of this elsewhere.
Infirmative five facts applicable to real evidence.
The evidentiary (i. e. the criminative or inculpative) facts belonging to this class being in so prodigious a degree multifarious,—in a correspondent degree multifarious must be the facts that apply to them respectively in the character of infirmative facts.
Yet, except in so far as the connexion between the principal fact and the evidentiary fact is necessary, there is not one such evidentiary fact but must have its correspondent infirmative facts, by the possibility of which its probative force is diminished.
Not that facts are altogether wanting, which (the evidentiary facts being by the nature of the principal fact so many criminative or inculpative facts) are applicable in common to all evidentiary facts belonging to the class of real evidence.
Of the infirmative facts of this description, five examples may be designated as follows, viz.—
1. Accident. The appearance unquestionable, but not having for its cause any agency of the supposed delinquent, directed to the production of the forbidden result in question: being produced either by causes purely physical, or (if with the intervention of any human agent acting in pursuit of any end) produced either by some other person, or by himself in pursuit of some unforbidden end.
2. Self-exculpative forgery in relation to real evidence (viz. the evidence composed of the appearances in question,) committed by some other person, guilty either in respect of the offence in question or some other offence. See, further on, Forgery in relation to Real Evidence.
3. Like forgery committed by some other person, who—though not guilty in respect of the offence indicated by the real evidence in question in its genuine state—yet, under the apprehension of the indications it affords to his prejudice, alters the appearance in question, with a view to the doing away of those indications.*
4. Like forgery committed by another person, in the view of subjecting the defendant to the imputation in question for a malicious purpose; i. e. for the purpose of causing him to suffer (either at the hand of the law or in the way of reputation) as if the offence in question had had him for the author of it or a partaker in it.
5. Like forgery committed in sport; i. e. without any design to subject the individual in question either to legal punishment or lasting disrepute, but only to momentary alarm.†
On the circumstantial evidence of delinquency, afforded by the possession of an article of criminative real evidence.
Nothing is more familiar than the word possession; nothing more variable and indistinct than the ideas which are wont to be attached to that word: but, in so far as on any occasion it is considered as being applicable in such sort that a thing considered as a source of criminative real evidence, being such in relation to the supposed delinquent in question, is considered as being in his possession,—in so far is the relation indicated by the word possession apt to be considered as evidentiary of delinquency in his instance. Of this species of criminative circumstantial evidence, possession of stolen goods affords the most obvious and frequently exemplified case.
Of possession of criminative evidence, the probative force will be liable to be varied according to a distinction expressible by the terms actual and antecedent: actual, when at the very time in question, the thing in question is supposed to be found in possession of the supposed delinquent; antecedent, when it is only supposed to have been in his possession at some antecedent point of time.
In the latter case, its identity is supposed, but is liable to become the matter of an additional question: in relation to which question, this or that supposed intrinsic mark of ownership, designed or undesigned, will frequently present itself in the character of an article of real evidence, serving to probabilize the supposed fact in question; viz. that the thing which is not now, was at some antecedent point of time, in the possession of the supposed delinquent.
To possession of criminative real evidence, in its character of a fact evidentiary of delinquency, apply, in the character of infirmative facts, those five which we have seen applying to real evidence itself when considered as criminative.
Additional infirmative facts applying to possession of criminative real evidence, and not to the real evidence itself, are—
6. (1.) Unconsciousness: when, though the situation of the thing in question is or has been such as to warrant its being said to be or to have been in the possession of the supposed delinquent, he himself has never been conscious of its being so: a state of things that may naturally enough have been brought into existence by any of the five causes enumerated (as above) under the head of real evidence.
7. (2.) Clandestine introduction. Subsequently to the introduction of the thing into the place by its introduction into which it is put into his possession, he becomes conscious of its being there; but, of the operation by which it was introduced, he had not, while the operation was going forward, any knowledge.
8. (3.) Forcible introduction: when it was with his knowledge indeed, but against his declared or known will, that the thing in question was placed in that situation in which it is considered as being in his possession: as, if by conspiracy among three men against one, one lays hold of both his hands, another puts into his pocket a stolen handkerchief, which the third, running up during the scuffle, finds there.
By the circumstance of force, supposing it proved, the criminative effect of possession (as above) would be destroyed altogether: but what may happen is, that the possession shall have been proved, when the force is not proved.
9. (4.) In case of supposed antecedent possession (as above)—non-identity of the thing in question. The man is seen running, and, on the path which he has been taking, a handkerchief is seen lying. A handkerchief resembling it had been seen in his hand; but though similar, it was not the same.
10. (5.) Furtherance of justice: receipt or seizure of the thing in question, in the view of applying it to its use in the character of a source of criminative evidence: as in the case of an official minister of justice so demeaning himself in the execution of his office, or an individual volunteering his services to the same effect.
Nothing can be more persuasive than the circumstance of possession commonly is, when corroborated by other criminative circumstances: nothing more inconclusive, supposing it to stand alone. Receptacles may be contained one within the other, as in the case of a nest of boxes: the jewel in a case; the case in a box; the box in a bureau; the bureau in a closet; the closet in a room; the room in a house; the house in a field. Possession of the jewel, actual possession, may thus belong to half a dozen different persons at the same time: and as to antecedent possession, the number of possible successive possessors is manifestly beyond all limit.
Connected with this subject, is the consideration of the probative force of possession of criminative written evidence.
When written evidence—such as (supposing it to have for its author the supposed delinquent) would, in the character of confessorial evidence, tend to induce a persuasion of his being guilty of the offence in question—is found in his possession,—the mere circumstance of its being in his possession will of itself, if separated from the circumstances that are so apt to be connected with it, scarce be capable of possessing criminative force sufficient to entitle it to the denomination of criminative evidence.
If, indeed, possessing with regard to him this criminative tendency, and speaking in his own person, it appears upon the face of it to be written with his own hand (as in the case of a memorandum written for his own use, or a letter written by him and intended to be sent to the person to whom it is addressed, but not sent;) there is no doubt that—if, being spoken, it would have amounted to self-criminative (i. e. to confessorial) evidence—it will, being written, amount to no less. But, in this case, its criminative force depends altogether upon what it contributes in the character of confessorial evidence, towards inducing a persuasion of his having been concerned in the forbidden act. From the circumstance of its being found in his possession, it can scarce be said to derive any probative force over and above what it would have possessed if found anywhere else: if, for example, being a letter, it had been sent to the person for whom it was designed, and by him produced in evidence.
It being still of such a nature as (had it for its author, as above, the supposed delinquent, and were it spoken in his person) would operate against him in the character of confessorial evidence; suppose it were to have for its author another individual, writing and speaking of the criminal transaction in question, whether in the character of an accomplice or an accuser. With a probative force proportioned to the strength of the indication afforded by it, and to the trustworthiness of the writer, it would operate in the character of the weak and makeshift species of evidence which will be brought to view in the next Book, under the name of casually-written or written casual evidence. But, from the circumstance of its being found in the possession of the supposed delinquent, it would scarcely derive any probative force, over and above what it would have possessed, if, in its way to his house, it had been intercepted—(for example, at a post-office.)
Addressed to him by word of mouth—or even, although not addressed to him, if spoken in his presence—a discourse of exactly the same tenor might have operated against him with a considerable degree of probative force. Why? Because—when the supposed delinquent and the virtual accuser were (at the time of uttering the virtual accusation) in presence of each other—not only the motive to contradict the accusation in case of its falsity, but the opportunity, the opportunity for immediate contradiction, exists. Noncontradiction of criminative discourse operates therefore as evidentiary of confession; though not without standing exposed to the debilitative force of various infirmative facts. But, where the form of the criminative discourse was in writing, and the parties not in presence—the opportunity of immediate contradiction not having place—the circumstance of the writing’s being found in the possession of the individual so addressed by it, scarce affords, of itself, any the slightest inference.
In the case of real evidence, possession may indeed, and not unreasonably, be considered as operating in the character of a criminative circumstance. Why? Because, by possession of things fit for use, a most natural (though sometimes not an infallible) presumption is afforded of actual use and ownership: including under the head of use, in the case of a mercantile man, sale, as being a mode of using particularly adapted to his situation in life.
But, as in the case of real evidence a man’s having possession of a thing of any sort affords of itself scarce any presumption of his having made it,—so, in the case of written evidence, mere possession of a manuscript of any kind, not being in his own handwriting, affords scarce any presumption of his having been the author of it. In regard to writings, as in regard to chairs and tables, possession is good evidence of ownership: but of the possessor’s being the author of the writings, it is not much better evidence than of his having made the chairs and tables.
True it is, that, where the authorship has for its proof similitude of hands (which is a sort of real evidence.) possession adds probable force to it. Why? Because, if it be extraordinary that writing, bearing such a degree of resemblance to that of Reus, should not be his, it is still more extraordinary that writing bearing such a degree of resemblance to that of Reus, and moreover found in his possession, should not be his.
Taken by itself, so weak is the probative, the criminative force of written evidence (understand all along such written evidence the tendency of which is to fix the imputation of the offence in question on the individual in whose possession it happens to be found,) that it is scarce susceptible of being rendered weaker by the consideration of any facts operating in the character of infirmative facts. But the infirmative facts capable of applying to it are of the same nature as those which have been seen applying to the case of possession of real evidence at large, when considered in respect of the criminative force with which it is capable of operating.
So far as concerns clandestine introduction (so it exceed not a certain magnitude,) a mass of written evidence possesses a means peculiar to itself for being introduced into a man’s possession without his consent or privity. It may have come, for example, by the post, addressed to himself: it may have come by the post addressed to some inmate of his, and thus remain in his possession for any length of time without his knowledge.
“On such an occasion” (naming it,) “my dear friend, you failed in your enterprise;” an enterprise (describing it by allusion) of theft, robbery, murder, treason: “on such a day, do so and so, and you will succeed.” In this way, so far as possession of criminative written evidence amounts to crimination, it is in the power of any one man to make circumstantial evidence of criminality in any shape, against any other.
It has perhaps very seldom happened that written evidence, tending to criminate a man in respect of the crimes in question, has been found in his possession, but there has been good and sufficient reason for regarding him as guilty. But, in these same cases, the principal reason has been constituted, not by this of possession, but by similitude of hands, or by other evidence.
Supposed facts that belong not to this head are apt to be urged in the character of infirmative facts, for the purpose of encountering the criminative circumstantial evidence constituted by possession of written evidence of the nature here in question. Such are—
1. Irrelevancy of the discourse, either with reference to delinquency in general, or with reference to the particular species of delinquency, or individual act of supposed delinquency, in question.
2. Unauthenticity of the script purporting to be in the handwriting of the supposed delinquent.*
Of interrogation, as an instrument for supplying the deficiencies of real evidence.
In the character of criminative evidences, besides the special and contingent infirmities to which they are respectively liable, the several mute evidences which compose the subject of this chapter have, as such, several infirmities in common:—1. The indications they afford are particularly apt to be incomplete. By written evidence, to which it happens to be found in the possession of the supposed delinquent, the lights afforded may be to any degree broken, imperfect, inconclusive. 2. From the intrinsic nature of these mute evidences, by which their criminative force is exposed to the opposition of so many infirmative facts, arises the question—a question that forces itself upon every rational mind,—these several possible infirmative facts, in the individual case in question, have they, or any of them, actually had place?
For filling up the above-mentioned deficiencies, for clearing up these last-mentioned doubts, the nature of things has provided one and the same natural and naturally efficacious instrument—interrogation.
On this, as on all other occasions, the way to know is to inquire: a proposition that from the beginning of the world to the present day has never been a secret to any human being, unless it be to English lawyers. And of whom to inquire? Of whom, but of the one person in the world, who, if the fact be in existence, cannot fail to know of it?—the one person in the world, in comparison with whose evidence, every other imaginable species of evidence, direct or circumstantial (except in so far as this naturally best evidence happens, by the force of sinister motives, to be driven into mendacity,) is a miserable makeshift: insomuch that if, on the score of hardship to the person so interrogated, there were any rational objection capable of applying to the extraction of the evidence from this most direct, and (in case of confessorial responsion) most trustworthy, of all sources,—it would operate, and with augmented force, to the exclusion of all other evidence.
The case in which the written evidence is confessorial, as compared with the case in which it is extraneous, here presents a difference. In the case of confessorial written evidence, the author of the writing and the possessor of it are but one person: there is not, therefore, of necessity more than one person of whom to inquire concerning it. In the case of extraneous written evidence, there are at least two persons: the person in whose possession it is supposed to be, and the person whose writing it is supposed to be. These two at the least: add to whom (in the case of a script purporting or supposed to be a transcript, or written from dictation,) the original writer or dictator, on the one hand; the transcriber or amanuensis, on the other.
Of these two persons, the possessor and the writer (dismissing, for simplicity’s sake, the accidental decomposition of the writer into the original and the derivative writer as above,) it may happen to the latter to be no longer forthcoming in such sort as to be subject to inquiry: death, imbecility, or expatriation, may have put him out of reach. In this case, the imperfect evidence, which to false science and blind prejudice has been the object of exclusive choice, is left by necessity in the character of the only receivable, because the only obtainable, evidence from that same source.
But, in the case of confessorial evidence, where the possessor of the evidence and the writer are one and the same person, if he be also the defendant, and in that character forthcoming, this first resource, the faculty of inquiring, remains accessible.
On this same occasion, there remains in both the above cases yet another sort of person, who, when the process of inquiry is going on, ought not to pass unheeded. This is the person, whosoever he may be (in the ordinary course of things, an official person,) by whose instrumentality the papers, which it was so much the interest of other persons to conceal, have been brought under the eye of justice. The papers produced in the character of criminative evidence, whether confessorial or extraneous, are all genuine. Be it so:—but the papers which thus are produced, are they all the papers that, in the character of evidence in relation to this same supposed delinquency, could have been produced? These are criminative: but did the same possession, or any other within the reach of the searchers, afford no others that were exculpative? These are questions which common sense, in aid of common probity, cannot fail of pressing upon the minds of all parties concerned; but to which the system of English procedure affords no adequate and all-comprehensive means of obtaining answers.
In pursuance of one of the most mischievous conceits that ever entered into a lawyer’s head—one of the most absurd if justice, one of the best imagined if injustice, were the object,—the above sources of necessary explanation have in great measure been cut off: and always to the prejudice of justice, on whichever side of the cause seated.
By the responsive testimony of the defendant, the existence of the criminative fact cannot be established, nor the clouds that hung over it be cleared up, because no man is to be compelled to accuse himself.
By the responsive judicial testimony of the same person, neither can the existence of any of the above-mentioned infirmative facts be established, nor the clouds that hung over it be cleared up; because no man is to be a witness in his own cause.
If it were by a plaintiff in the cause that a mass of evidences—partly inculpative, partly infirmative with relation to the criminative facts, or in any other way exculpative—were discovered and made forthcoming,—he produces what he pleases, he suppresses what he pleases: master at the same time of an accusation and a defence,—he produces the accusation, he suppresses the defence. Why?—Because no man is, with or against his will, to be a witness in his own cause.
Of these mischievous maxims, the breach is as notorious, and perhaps as extensive, as the observance, but, broken as they are, there remains force in them to do mischief in deplorable abundance, as well by their application to this topic, as to a multitude of others.*
Forgery of real evidence.
When the appearance of things leads to wrong conclusions, the deceit will sometimes be the pure work of nature, at other times the work of human artifice.
The former case is exemplified but seldom; when it is, its birth may, in the language in use among naturalists, be ascribed to the play of nature.
The irrational animals may be ranked, and to this purpose without injury, in the class of things. A case which, whether real or fictitious, is famous in the history of French jurisprudence, may serve for illustration to an English eye. There, as elsewhere, magpies have been remarked for a propensity to pick up and hide not food only, but other articles, though of a nature not applicable by these hoarders to any ascertainable use. An innocent person was accused of stealing from the house of a neighbour several pieces of gold, and, being convicted, suffered an ignominious death. The real thief was a magpie, which, without the privity of its master, had taken the money at different times, piece by piece, from the too accessible hoard of a neighbour, and deposited it in a place inaccessible to any other than the unfortunate person who suffered as for stealing it.
When the deceit is the work of art—has human artifice for its cause—it may be ranked with forgery: the act by which deceit is produced, or endeavoured to be produced, may be termed forgery of real evidence.†
In another, though a nearly related, point of view, forgery of real evidence is to real evidence what subornation is to personal: it is an attempt to pervert and corrupt the nature of things, of real objects, and thus force them to speak false. Of themselves the things are silent, or, if they speak, speak to the inculpation of the defendant: by the force he applies, a thing that was silent is made to depose falsely—a thing that was speaking against him is either made to speak in his favour, or at least put to silence.
As well in the case of real evidence as in the case of written evidence, forgery is susceptible of one main distinction—into fabricative and obliterative. The case where, in the employment of expedients of this kind, the endeavour of the criminal is simply to remove the imputation from himself, without seeking to fasten it on anybody else, is as common as the other case is rare. Whatever be the crime, a main object of the endeavour of the criminal is of course to expunge, as effectually as possible, all traces of the commission of it. The hands, the garments of the murderer, have they received a stain from the blood of the deceased? The most obvious reflection suggests the removing the stain from everything from which it can be removed, and the destroying or hiding anything from which it cannot be removed. To superinduce upon any object an appearance, the tendency of which shall be to disprove the commission of the crime,—whether by disproving the existence of the criminal act or some criminative circumstance, or by proving the existence of some justificative, or extenuative, or exemptive, circumstance;—an artifice of this tendency would suppose an ulterior degree of refinement, and would come under the denomination of fabricative forgery of real evidence.
As it is only through the medium of physical facts that psychological facts can be brought to view, it is, consequently, through the medium of physical facts alone, that any deceptitious representation of psychological facts can be conveyed. Physical facts alone, and not psychological facts, are the only one of the two sorts of facts upon and in respect of which forgery can, properly speaking, be committed—to which the operations indicated by the term forgery can bear any direct and immediate application.
As to physical facts; although, among the several modifications of which real evidence of the evanescent kind is susceptible—evidence consisting of motions, sounds, colours, smells, tastes, and (if the word may be used) touches,—there is not perhaps a single article that has not, at one time or other, been taken for the subject of that sort of deceptitious operation which, applied to other subjects, has received the name of forgery; yet it is among the modifications of permanent real evidence that we are to look for that modification of forgery which is most in use, most readily apprehended, and most apt to present itself under that name.
The beautiful history of the patriarch Joseph will afford us one exemplication of forgery respecting real evidence. Preparatory to the affectionate forgiveness he meditated to extend to his brethren, his plan required that an alarm should be raised in their guilty bosoms—an apprehension of being punished, not indeed for the barbarity of which he had formerly been the victim, but for a supposed offence of recent date, of which they were altogether innocent. In this view it was, that, into one of the sacks that had been filled with the corn which they had been buying, he caused a cup to be introduced, which, not having bought it, they had never meant to take. Here then we have an example of forgery of real evidence of theft—forgery of real evidence of the permanent kind—forgery of evidence presented by the permanent situation of a certain material object, a certain real body, principal object and subject-matter of the supposed theft, the imputation of which it was intended thus to fix upon them, though for a time only, and for a generous and friendly purpose.
Another example may be afforded by the modern case of Captain Donnellan. The smell afforded by the laurel-water, the poison supposed to have been employed by him as the instrument of death,—this important phenomenon, susceptible of permanence in respect of the substance itself and its odorous power, evanescent when considered in respect of the sensations of which, on any given occasion, it might have been productive,—was, at any rate (so long as the phial continued impregnated with it,) a lot of real evidence—a lot of evidence indicative, at once, of the physical act by which the poison was applied to the organs of the patient; of the intention, the murderous intention, in pursuance of which these acts were performed; and of the criminal consciousness with which that intention was accompanied. Conscious of all these facts, as well as of the punishment annexed by law to such crimes, Donnellan, on observing how the phial had become the subject of observation, took it up, and, with the apparent view of doing away the instructive smell, poured water into it, and rinsed it out. The forgery thus actually committed was of the kind that has been distinguished by the name of obliterative. Suppose now that, instead of simply clearing the phial of the existing smell, it had been his plan, for further security, to superinduce another—the smell, for instance, of some highly-scented medicine, such as would have been suitable to the patient’s case,—fabricative forgery would thus have been added to obliterative.
In the case where guilt, guilt on the part of the forger, really exists,—the inculpative fact, of which the act in question operates as evidence, is a psychological fact—the existence of culpable consciousness—consciousness that the act, whereby the effect is intended to be produced, is of the number of those which stand proscribed by one at least of the two guardian sanctions, the political and the moral, if not by both.
The presumption thus afforded by this species of circumstantial evidence—the presumption of correspondent delinquency—is obviously a strong one; it is, however, far from being a conclusive one. Cases, supposable cases, are not wanting, in which (supposing them realized) the failure of the presumption, the erroneousness of the inference, will be obvious and indisputable; nor are instances wanting in which these several supposable cases have been exemplified in real life.
1. Forgery (exculpative) in self-defence against a false accusation; forgery having for its object the removal of appearances tending to fasten the imputation of delinquency upon an individual really innocent. The party in question being innocent,—suppose at the same time a number of natural appearances tending to induce a persuasion of his being guilty. Take away the pre-existing source of deception, the forgery in question is true evidence of guilt: add the pre-existing source of deception, the forgery by which the deception from this source is endeavoured to be done away, is, in the character of evidence of guilt, fallacious.
No system of established procedure is yet known that does not afford instances—instances in greater numbers than an eye of sensibility can contemplate without concern and apprehension—where individuals, really innocent, have sunk under a load of imputation heaped upon them by fallacious circumstantial evidence. Suppose an article of this description, pregnant with false inferences,—an article exhibiting appearances susceptible of permanence:—the dagger employed by a murderer, conveved into the pocket of an innocent man; one garment of an innocent man stained, by design or accident, with blood from the body of a man who has been murdered. Suppose the innocent man detected in his endeavours to rid himself of the dagger, to wash away the blood: the dagger, the blood, fallacious as they are, are, notwithstanding, evidence: these endeavours, innocent as they are, will accordingly be, in appearance at any rate, and in a certain sense in reality, forgery of real evidence.
The case of the unfortunate Calas affords an exemplification of more than one of the incidents by which the conclusiveness of an inculpative presumption may be proved. A son of his had received a violent death from his own hands: the father was brought to trial on a charge of murdering the son. As far as the confusion of mind into which he was plunged permitted, he had obliterated or changed some of the appearances about the body of the deceased, and other circumjacent bodies: here was forgery of real evidence. On his examination, he denied some of the facts by which the non-naturality of the death was indicated: in this mode, as in the former, he concealed—not indeed the fatal act itself, the act by which the process of strangulation was effected (for in that he had neither part nor privity,)—but some of the evidentiary facts by which it was indicated: here was clandestinity. To what end all these aberrations from the line of truth?—to cover guilt?—No; for there was none anywhere. The object was to save the reputation of his departed child, and thereby the reputation of the family, from the ignominy which, had the direct truth been known, would (he was but too well assured) be stamped upon it by a most mischievous and endemial prejudice.*
2. Forgery (inculpative) acted in sport: forgery committed in endeavouring, for a sportive purpose, to fasten upon an innocent person the imputation of delinquency in this or that shape for a time.†
In the story already referred to—the story of Joseph and his brethren—we may find an exemplification of this case; though the sport was there not of the mirthful, but of the serious and moral—not of the comic, but of the tragic kind. Suppose the patriarch,—minister as he was to an absolute king,—suppose him, notwithstanding, amenable to the ordinary dispensations of justice: suppose his fraternal and generous project observed, and mistaken for a serious hostile one:—the ultimate innocence of intention would, when demonstrated, have been sufficient to repel the presumption afforded by the apparent indications of a design deceptitious and injurious, and to add to the instances by which it is proved that, in the character of inculpative evidence, this, any more than any other species of evidence, is never entirely exempt from the danger of proving fallacious.
Penal justice is not the only theatre of a fraud of this complexion: it is equally applicable to non-penal cases. It may have for its object the subjecting a man to punishment, or to the burthen of making satisfaction, when undue: it may have for its object the exempting a man from punishment when due: it may equally have for its object the causing a man to be put into possession of some right to which he has no just claim: it may have for its object the exempting a man from some obligation, which, as necessary to the collation of a correspondent right, some other person has a just claim to see imposed upon him.
The clandestine removal of a land-mark affords an example of a case of forgery of real evidence, having for its object the acquisition of a proprietary right. Considered in respect of its most obvious and most frequent motive and efficient cause, it is a contrivance for stealing land: it is a succedaneum to the forgery of a deed, designed to serve as evidence of a title to land. Considered as the act of a person to whom the loss would not be productive of any profit, it would at any rate be a contrivance for injuring a person in his property, by destroying his title to land.
By the foregoing theoretic views, a few practical instructions are obviously suggested.
The first is, that it is an office incumbent on the legislator, and, under his authority and guidance, on the judge,—whenever any material objects present themselves as capable of affording real evidence in the cause (be it penal, be it non-penal,)—to take such measures as may be suitable to the nature of the case, for securing their continuance in that state in which they shall be still exhibitive of the evidence which they appeared to exhibit at the time of their being first observed; and to prevent them from either passing of themselves, or being purposely or accidentally brought, into any other state, in which the evidence exhibited by them might be in danger of proving fallacious.
The attention bestowed upon this object, is, in the French law, particularly conspicuous: more so than in the English. In the former, the judge has general explicit duties presented to him, and explicit rules for his guidance, with commensurate powers. In the English law, no special powers extensive enough to embrace the object are possessed by any magistrate; and in the exercise of his powers, so far as they happen to be adequate, he is left to his own unassisted discretion, without any instruction for his guidance.
Before any suspicion has arisen—before any steps have been taken, in the view of bringing the delinquent to justice—the field for this species of forgery is open to him; and no provisions taken by the legislator can be of any use, the moment for making application of them not being yet come. But as soon as suspicion has told her tale to justice, and the servants of justice have been put upon the search for evidence, then it is that things as well as persons may in this view be fit objects of their care.
2. Another subject for the consideration at least of the legislator, is, the putting (where practicable) this species of forgery, under its several applications, upon the same footing in respect of prohibition and punishment, as forgery of written evidence, when directed to the same ends.
By the compilers of the books of Romano-German law, Prussian* as well as Austrian,† removal of land-marks constitutes an independent species of delinquency, under a title by itself, not referred to frand, the crimen falsi, or any other genus. Under the same denomination, mention had been found to be made of it in the original books of ancient Roman law.‡ This, it is evident, is a case of forgery of real evidence, in which the obliterative and the fabricative species are combined. In so far as the designation that had been given of the real boundary is done away by it, it is obliterative; in so far as an indication of a false boundary is presented, by setting the mark down again in a wrong place, it is fabricative.
In this spot, and in this alone, the penal law of these two German states has covered a portion, important indeed in its nature, but comparatively minute in its extent, of the wide field of this modification of forgery.
Neither the English nor the old French law have made so much as this small advance towards the comprehension of this fraud. The French, in their adoption of the Roman law, seem somehow or other to have dropt what the more faithful Germans have copied.
In French jurisprudence, however, instances are not wanting of the application, real as well as suspected, of this species of fraud, to the most mischievous and flagitious purposes.
In the case of Le Brun,∥ who died of the torture that had been unjustly inflicted on him for his supposed participation in the murder of his mistress, the judicial officers, when possession had been taken of an old key that had been in his occupation, were charged by his advocates with having altered it into a master-key, for the purpose of his appearing to possess a facility, which in fact he did not possess, for the commission of the crime.
Under the Roman law, the word stellionatus served as a head to comprise a hodge-podge of offences, chiefly of the predatory class, bearing scarce any other resemblance to each other. Out of six, the third is si quis imposturam faciet in necem alterius—if any one shall have employed imposition in the view of depriving another of his life. Under this head, forgery of real evidence for that particular purpose may probably have been meant to be comprised.
A lizard is a cunning animal, and a stellio is the most cunning of all the lizards, as Pliny, the most accurate of natural historians, assures us. It is upon the ground of this anecdote of natural history, that the Roman lawyers have jumbled together so many other offences which require no contrivance, under the name of stellionatus. Stellionatus should, by this description of it, have been synonymous to fraud, or been used to express exclusively some modification of fraud.
[* ]In this table, the several articles consist of so many species of principal facts, facts supposed to be evidenced. The corresponding lists of evidentiary facts, expressed here by the word signs. are exhibited in the corresponding divisions of the book. To have transcribed them would have been to transcribe the whole work, consisting of 184 pages. Specimens, however, have been exhibited, in the case of homicide in general, and of infanticide in particular.
[* ]In a tale of the Arabian Nights’ Entertainments (the Little Hunchback,) the body of a man who died by accident finds its way into the house of an innocent man, and from thence (under the apprehension inspired by the fear of its operation in the character of real evidence) into a series of other houses. Not many years ago, the story was introduced upon the English stage. So many transfers (as above;) so many exemplifications of real evidence; so many exemplifications of a forgery, and at the same time an innocent forgery, of real evidence.
[† ]Example—story of Joseph and his brethren.
[* ]See Book VII. Authentication.
[* ]See Book IX. Exclusion; Part IV. Vexation; Chap. III. Self-disserving Evidence.
[† ]In some cases, this species of fraud (the deceptitious fabrication, obliteration, or alteration, of the appearances presented by a natural body) constitutes a substantive independent offence of itself—forgery of which writing of any kind is the subject-matter or the object—forgery of which general money of any sort, the general medium of exchange, is the subject-matter or the object of these modifications of the more extensive species of deception—forgery in regard to real evidence in general—the subject-matter has been already touched uponunder the head of Pre-appointed Real Evidence.
[* ]Whether, in the case in question, the several above-distinguished modifications of innocent deception did actually take place, would be a scrutiny foreign to the purpose. Some, indisputably; not all, possibly: but the inquiry would be completely useless, since, correct or not correct, the statement answers, in equal degree, the purpose of illustration. What is material is—the circumstances in it (if any) that are false, are, in any future case, just as likely to be exemplified as if they had been true.
[† ]If the endeavour be a serious one—an endeavour to cause an innocent person to suffer ultimately as for a delinquency, of which, to the knowledge of the forger, he is not guilty,—the act directed by this intention, and accompanied by this consciousness, constitutes a substantive offence, and the presumption of delinquency afforded by the forgery is by the supposition not fallacious.
[* ]Boehmer, § 2, Cap. 33.
[† ]Banniza, § 464-471.
[‡ ]Heineccii Elem. (ad Pand.) Pars. VII. § 149.
[∥ ]Causes Célèbres (1737), iii. 323.