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CHAPTER VIII.: OF SUPPOSED WRITTEN EVIDENCE, TRANSMITTED THROUGH WRITTEN; OR TRANSCRIPTITIOUS EVIDENCE. - 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 SUPPOSED WRITTEN EVIDENCE, TRANSMITTED THROUGH WRITTEN; OR TRANSCRIPTITIOUS EVIDENCE.
A transcript, what—Modes of transcription.
On the occasion of this, as of other modifications of transmitted evidence, the main objects of inquiry are still two:—1. What shall be received? and, 2. Whatever comes to be received, by what consideration shall the estimate formed of it, in respect of comparative trustworthiness, be directed?
But, previously to our entrance into this inquiry, the bounds of the object must be previously fixed, and its several modifications distinguished.
By a transcript, taken in its largest sense, may be understood any discourse which, being expressed by permanent signs or characters, is proposed as capable of producing, in the way of evidence, the same effect as another discourse, which, being also expressed by permanent signs, is with reference to it termed the original.
Under this most general description are comprehended three modifications:—
1. A transcript which is such in tenor: a copy taken verbatim et literatim.
2. A transcript in purport only, without being such in tenor. Couched in a set of words more or less different, it contains what is looked upon as conveying precisely the same sense. To this head belong translations made into other languages.
3. A transcript in effect only. Not professing to contain so much as the purport of the original, at any rate not the whole of the purport, it professes to contain that which, with reference to the purpose in question, is sufficient for the purpose. To this head belong extracts and abridgments.
A transcript in tenor is a transcript both in purport and effect: a transcript in purport is also a transcript in effect.
A transcript in tenor is that modification which seems the most apt to be presented by the word; but the others have little less claim to consideration, and they also may be naturally expected to be considered under this head. Let this be examined in the first place. Whatever is said in relation to this principal and most proper modification, will serve as a model and standard of reference for whatever there may be occasion to say of the two others.
For making transcripts (understand transcripts in tenor,) the word transcript being taken in the most extensive sense, there are divers modes, performed by so many correspondent operations. Not being altogether upon a par in respect of probability of correctness, they require on that account to be distinguished:—
1. One is, writing, in the more common and confined sense of the word: writing with pen and ink. This is the most in use, except in the case where transcripts of the same original are required in large numbers, as in the case of.
2. Printing: including the old-established mode by moveable types, and the mode of modern invention in solid masses, called stereotypage.
3. Engraving, in the case where the characters are to be taken off in the way of impression: as in the ordinary case of engraving on copper, pewter, wood, glass, &c.
4. Sculpture: in the case where no impressions are meant to taken off.
5. Painting in various ways: which is but an elaborate mode of writing, comparatively of little use.*
In the case of the recently invented mode of writing with two or more pens at once, the distinction between original and transcript has, it is evident, no place: except in so far as, by an independent act of authentication, one or more of such draughts or copies should come thus to be distinguished from the rest.
So in the case of the anteriorly invented mode of taking off impressions from writing.
As between one mode of transcription and another, the probability of correctness, fraud apart, will depend on the following circumstances:—
1. The number of persons employed in the making and verification of the transcript.
2. The degree of attention requisite, and naturally to be expected, on the part of each.
3. The degree of publicity with which errors in general will, in the instance of each, be likely to be known and noticed.
On all these accounts taken together, printing seems to present a superior chance for correctness, in comparison with writing.†
As, by writing, a transcript may, for practical purposes, be, by means of due examination and verification, put upon a level with the original; so may printing, and with still greater facility and certainty.
In the case of laws, and all other documents of a public nature that are consigned to print, the printed copies ought to be placed, by appointment of law, upon the same level as the original.
Reason: In the case of laws, the printed copy is the only standard to which access is rendered possible to the people, who, at their peril, are bound to pay obedience to them.
In whatsoever cases forgery in the way of writing is made punishable, forgery in the way of printing, for the same purpose, ought to be made punishable in the same manner.
1. Forgery of laws; whether in the way of fabrication or falsification.
2. Forgery of a deed of administration; such as proclamations, nominations to offices, orders issued to public functionaries.
3. Forgery of articles of intelligence, or advertisements, in a newspaper published under the direct orders of government.
4. Forgery of articles of intelligence, or advertisements, in any private newspaper; the appearance of the paper current under that title being counterfeited by a person other than the accustomed publisher.
Reason: In the case of fraud, if any one of the possible modes of transcription were left unincluded in the penal consequences, fraud in that shape would be without a check; and being, as often as it succeeds, alike mischievous, in whatever shape, there is no reason why it should be exempted in one shape, more than in another.
In regard to a transcript professing to be such in tenor, a distinction must be taken between a transcript verified, and a transcript unverified, or (which comes to the same thing) not known to have been verified.
By a transcript verified in tenor, I understand a transcript, the conformity of which (i. e. of the tenor of it) to the tenor of the original, has been sufficiently established for every judicial purpose; at least for the judicial purpose to which, on the occasion in question, it is proposed to be applied.
Verification is to a transcript what authentication is to an original. By what means this effect may most advantageously be produced, is a topic of consideration that may be posted off to a separate head, with as much advantage, and with as little inconvenience, in this case as in that other, and for the same reason.*
Supposing the transcript verified—verified according to the import of the term as just fixed,—it thereby becomes dismissed in effect from the present subject. It is alter et idem, a perfect equivalent for the original; it can no longer be considered with propriety—with consistency at least, in the light of makeshift evidence.
What follows is, therefore, to be confined in its application to the case of a transcript not verified: either not known to have been verified by any means, or at least not known to have been verified by sufficient means.
Sources of untrustworthiness in transcriptitious evidence. Hearsay and transcriptitious evidence compared, in respect of probative force.
Applied to transcriptural evidence, the description of the characteristic fraud—the fraud liable to be practised without detection, if the transmitted evidence were to be received on the same footing as the original—is as follows. A man falsifies a real original, or fabricates a spurious one, to the end that, a transcript (here understand in tenor) being made of it, the effect of a forged script may be produced; at the same time that, the falsified or spurious original being destroyed, and thence no longer producible, the fraud may by that means pass undetected.
In the case of the characteristic fraud, as above described, the falsity, so far as the written evidence is concerned, is confined to the extrajudicial part of the evidence. The object is distorted, or a fallacious object is fabricated, or the true one falsified; but the medium (for anything that appears) is correct and pure.
Here, however, as elsewhere, though complicity on the part of the writer of the transcript (privity, which is as much as to say complicity) is not of the essence of the fraud, neither is it excluded by it. The fraud may have been committed, and, having been committed, may ultimately, or for the time, have succeeded, whether the vice of the original was or was not known to the maker of the transcript, at the time of his making it.
Setting aside the characteristic fraud,—in the case of this, as of other transmitted evidence, for one source of true information, there are two sources of untrustworthiness and deception: 1. If there be an original from whence the transcript was made, that original may have been spurious, fraudulently altered, or simply incorrect; 2. The pretended transcript may have had no original, or, being taken from an original, may by fraud or by accident be incorrect.
To be spurious or incorrect, whether from mendacious design or from accident, is what may have happened (it may be said) to any single script, considered in the character of an original, or pretended original; and on that account, these causes of untrustworthiness ought not to be set down to the account of the supposed transcript as such. True: but in the case of a script purporting to be an original, and chargeable either with spuriousness or incorrectness, it may happen to it to wear upon the face of it marks of the spuriousness, or marks of the incorrectness, such as upon the face of a transcript would not be equally open to observation.
Moreover,—in the case where the script, to present the appearance of an original, would require to present the appearance of being authenticated (for example, by the person or persons whose discourse it purports to be, with or without the signature of any other person or persons in the character of attesting witnesses,)—if the supposed transcript were, without having been verified, to be received on the same footing as an original,—a person intending fraud would find a much better chance of success and safety in the making of a pretended transcript of the tenor in question, than in the fabrication of a spurious original, or the fraudulent alteration of a really existing one, since the means of detection capable of being afforded by the spurious signatures in the one case, and the obliterations, additions, or substitutions, in the other, would all be avoided by the expedient of the pretended transcript.
So far as simple incorrectness, the result of accident, clear of design and mendacity, is concerned, this species of transmitted evidence, supposed written through written, will appear much superior in trustworthiness to hearsay evidence; and that whether the supposed script which is the supposed source of the evidence, or the indubitably existing script constituting the medium through which the other is supposed to be conveyed, be considered.
1. As to the supposed original (whether really existing or not,) it may either be of the nature of preappointed evidence, or of the nature of casually written evidence. If it be of the nature of preappointed evidence, the trustworthiness of the discourse contained in it, is, by the supposition, placed, in one way or other, upon a superior footing. The lowest footing on which it can stand, is that of casually written evidence: and this (as hath already been seen) presents, in the nature of it, a security against incorrectness, superior to that which naturrally belongs to oral discourse. Writing, in the very nature of the operation, requires a degree of attention and recollection more than is required in speaking.
2. On the part of that one of the two persons concerned, whose writing constitutes the medium through which the supposed tenor of the original is transmitted,—the superiority of this modification of transmitted evidence, as well over supposed oral through oral, as supposed written through oral, is easily discernible.
1. In the case of supposed oral through oral,—the judicially reporting witness, at the time when the supposed extrajudicial statement presented itself to his ear, caught it as he could—caught it as it flew. He may have misconceived it from the first—he may have forgotten it in any part, or misrecollected it afterwards. The writer of the transcript has the original all along before him, and commits not to writing so much as a word till he is satisfied that his conception of it is just: and no sooner is a word thus fixed, than the preservation of it is placed on a ground much stronger than any that could be given to it by the firmest memory.
2. In the case of supposed written through oral,—the judicially reporting witness may or may not have had his own time for the forming of his conceptions in relation to the contents of the script. But, let the time actually taken by him have been ever so sufficient,—whether with any, and what, degree of correctness those conceptions have at the time of his deposition been preserved, depends altogether upon the power, the relative power, of his memory.
Supposing fraud entirely out of the question,—in a practical view, the trustworthiness of a transcript will be but little inferior to an original. There are two cases in which an error is of no practical importance: 1. When the words it falls upon are of no practical importance: 2. When, though the importance of the words it falls upon be ever so considerable, the correction requisite for it is sufficiently indicated by the context.
The oftener a series of words comes to be repeated, the less probable it is that an unintentional error in respect to any given words should be repeated in each instance: and if there be but a single instance in which it fails of being repeated, the true reading remaining in that instance will commonly serve for the correction of the false readings in all the others. This, of course, will hold equally good, whether in the original script the repetitions were, or were not, necessary to the purpose. Hence an advantage resulting from repetitions that otherwise would be useless: an advantage, though such a one as shrinks to nothing when compared with the disadvantages.
The more rare it is for a mere unintentional error of the transcriber to be productive of an incurable error in the sense, the stronger the indication given of fraud, where the error is material, and material in such a way as to be subservient to any assignable sinister purpose.
On the part of the transcriber, the faculty of conception being so amply assisted, and the use of the faculty of remembrance superseded,—whatever danger of incorrectness from this source remains open, depends upon the accidental deficiency of the faculty of attention. From the consideration that this is the faculty most exposed to fail, some light may be thrown on the question, which of the three shapes, omission, substitution, addition (in case of honest incorrectness,) the inaccuracy seems most likely to take.
1. Omission presents itself as being the most natural. On the part of any given word in the original, a momentary failure of attention to that word may have a correspondent omission for the result: and in this case (if a failure of the conception be altogether out of the question,) a larger portion of a line may with almost equal probability—an entire line with still greater probability, be the result.
2. Substitution of one word for another (in general by means of the substitution of this or that particular letter for another,) seems nearly, if not altogether, as probable as simple omission. What renders it the more probable is, that this species of inaccuracy is more apt than the preceding to originate in misconception. It may be referable in a greater or less degree to misconception, if, the transcriber being a man sufficiently acquainted with the subject to form a judgment, the transcript, deviating in this way from the original, presents, notwithstanding, an intelligible sense. If the sentence altogether presents either no sense at all, or none but what is plainly absurd and irrational, the transcriber not being altogether disqualified from judging, it is to a failure of attention, and that alone, that the inaccuracy seems referable.
3. Addition of a word—insertion of a word to which no correspondent word exists in the original—is a mode of inaccuracy not altogether without example, but much less frequently exemplified than either of the two others. Judgment, attention, applied to the subject, applied to the original script, cannot be the cause of an inacuracy of this nature: the cause of it, when it does take place, must be sought for in the imagination: it must be considered as a product of the imagination, a production which finds its way into the transcript for want of that attentive comparison with the original, which, by showing the original to have no such part in it, would be sufficient to prevent it from being admitted into the transcript.
The use and object of the above distinctions, in so far as they may be found just, is to give facility to the detection of fraud—to serve for the distinguishing of a case of fraud from a case of honest incorrectness. If, in general, insertion be in any degree less apt to originate in accident than either omission or substitution,—then—if in any individual instance insertion should happen to have been discovered,—in that instance, should any marks of design (which here is as much as to say of fraud) be discovered, this particularly may perhaps be added to that side of the account.
In what cases, and on what conditions, shall a transcript be received in evidence?*
A script being tendered in evidence in the character of a transcript from another, that other spoken of in the character of an original,—shall it, or shall it not, be received?
For the purpose of an answer to this question, seven cases must in the first place be distinguished:—
I. The alleged original is in existence, producible or consultable, and known to be so.
II. The alleged original is in a state of expatriation.
III. The alleged original is in a state of exprovinciation.
IV. The alleged original is known to have existed; but is known to be no longer in existence.
V. The alleged original is known to have existed; but whether it be still in existence or not, is uncertain.
VI. It is not known whether the alleged transcript be a transcript or not, i. e. whether there ever existed a script, from which, in the character of a transcript, its existence was derived.
VII. The alleged original is known to be in existence, but in the power of the adverse party.
To meet these possible modifications in the relative situation of the lot of evidence, there are three modifications of which the conduct of the judge in relation to it is susceptible.
1. It may be received absolutely and unconditionally.
2. It may be rejected absolutely and unconditionally.
3. It may be received conditionally, or according to circumstances: say received sub modo.
This last course will, upon the whole, he found, in most cases, the most advantageous one.
Case I. The original known to be producible or consultable.
Rule 1. Where the original is, at the time, producible or accessible, no transcript or alleged transcript ought to be received without some special reason.
Reason: Because, in point of trustworthiness, and with a view to the danger of misdecision, no transcript can ever be, strictly speaking, exactly upon a par with the original. If, then, the original be produced at the same time, the transcript (except in the cases immediately following) is superfluous, and the vexation and expense incident to the production of it, uncompensated: if the original be not produced, the transcript may be deceptitious.
Rule 2. Where, on the occasion in question, the original cannot, without a considerable degree of difficulty, be referred to and perused,—in such case, a transcript in tenor, purport, or effect, as the case may be, may be exhibited in addition to the original, and at the same time.—Examples:
1. The original, in respect of obsoleteness of language, or handwriting, or both, difficult to be conceived or perused, and read with fluency.
2. The original conceived in a language (dead or living) other than the current language: (in this case, the transcript will be a transcript not in tenor, but in purport or effect.)
3. Where not the whole of the original, but a particular part or parts only, are applicable to the purpose in question, in the character of evidence: especially if the relevant portions be more or less scattered, and distant from each other. In this case, the transcript is of the nature of an extract or abridgment: a transcript neither in tenor, nor (throughout at least) in purport, but only in effect.
Rule 3. So, where, on the hearing of the cause, for the convenience of consultation, a number of copies are wanted at the same time.
Rule 4. For special preponderant reason, a transcript may, in every instance, under appropriate conditions, be received instead of the original.
Rule 5. Such reason will, in every instance, be reducible to some one or more of the modifications of collateral judicial inconvenience (viz. delay, vexation, or expense,) considered as resulting from the production or consultation of the original, over and above what would result from the production or consultation of the supposed transcript.
Rule 6. Of the cases in which it may happen that the production of the original in the first instance shall be productive of preponperant inconvenience in the shape of delay, vexation, and expense, the following may be examples:—
1. Where, at the time in question, it happens to be lodged in a place out of the dominions of the state.
2. Or in a place within some province beyond sea, or other widely distant province—(viz. with reference to the seat of the tribunal to which the evidence is to be presented.)
3. Where the original script in question forms part of a volume, which cannot conveniently be removed from the repository in which it is kept, by reason that other parts of its contents are requisite to be kept in that same place for other purposes.
Rule 7. When (for the avoidance of delay, vexation, or expense) a transcript is received in the place of the original, its faithfulness ought to have been previously established in the most trustworthy manner; or—if (for the avoidance of delay, vexation, and expense) not in the manner the most trustworthy of all—in the manner the next most trustworthy that shall be compatible with the avoidance of a preponderant degree of such collateral inconvenience.
Rule 8. With reference to the adverse party—the party against whom the lot of evidence is produced,—its fidelity will have been established in the most satisfactory manner, when such adverse party, by himself or his more competent agents, having (upon sufficient opportunity of access) compared the transcript with the original, finds the transcript equivalent in every respect to the original, in point of effect.
Rule 9. But no script ought ever to be received (except as by the next rule) in the character of a transcript, in lieu of the original (as above,) from the hands of any suitor, without a declaration upon oath, on the part of him or his law-agent, declaring the fact of his having examined it by the original, and of the persuasion he entertains of its fidelity.
Rule 10. If the transcript—having been examined by the original, and appearing upon the face of it so to have been, by some appropriate official person,—has thereupon been certified to be correct,—the party so tendering it in evidence is not bound so to re-examine it: but neither in this case should the declaration of his own persuasion respecting the fidelity of it be omitted; although such persuasion have no other ground than the general consideration of the security afforded by this species of preappointed evidence.
Reason 1. A possible case is, fraud on the part of the official examiner, by collusion with the party tendering the evidence.
2. Error on the part of the official examiner, viz. to the advantage of the party, and discovered by him by accident.
Case II. The original known to be in a state of expatriation.
This case is, upon the very face of it, a modification of the first case: but, presenting a demand for an appropriate set of arrangements, it requires to be arranged under a separate head.
In the case of transcriptural evidence, expatriation of the script is analogous to expatriation of the person in the case of casually written and hearsay evidence. The arrangements demanded—though, by reason of the different nature of the subject-matter, they will not in terminis coincide with the arrangements suitable to those two preceding cases—will, under the guidance of analogy, be naturally indicated by them.
Rule. Where, in regard to a script proffered in the character of a transcript, it is ascertained or believed that the original is in a state of expatriation,—let the following arrangements await the option of the judge:—
1. To cause the transcript to be sent abroad (viz. to the place where the original is kept,) for examination, and attestation of verity.
2. To cause a fresh transcript from the original, duly verified, to be imported and produced.
3. To cause the original itself to be imported and produced, if practicable, and without preponderant inconvenience.
Any one of these arrangements to be taken, or none, according to the importance of the cause, the importance of the article of evidence in question in relation to the cause, the degree of persuasion respecting the faithfulness or unfaithfulness of the transcript, and the comparative degrees of inconvenience, in the shape of delay, vexation, and expense, attached to the three respective courses.
A time to be declared, subject to abbreviation or enlargement for sufficient cause, at the expiration of which, if the intended operation chosen (as above) be not performed, it shall be regarded as impracticable.
The provisional decision to be in favour either of the party proffering the evidence, or of the adverse party: and in either case, with or without security taken for eventual reinstatement.
Observations. Unless the non-existence of the alleged original, or the unfaithfulness of the transcript in all material points, he believed—even although there should be no other direct evidence of the existence of the original than the judicial testimony of the party, nor of its faithfulness, than his declared belief,—the judge will scarcely refuse to pronounce the provisional decision in favour of the faithfulness of the transcript, taking security for reinstatement in case the result of the reference so made to the original should prove unfavourable. For the reasons why, see the examination of Case VI. further on.
Case III. The original known to be in a state of exprovinciation.
This case is, also, upon the face of it, a modification of Case I.: a modification closely analogous to the last preceding case, the case of expatriation. The arrangements requisite to be taken will, in their general description, coincide with those already brought to view in that last-mentioned case; but, in detail, the description of them will obviously require to be, in various particulars, different. In the case of expatriation, everything that can be done is more or less dependent upon the facilities given or withholden by the government in the foreign state: in the case of exprovinciation, it depends upon the arrangements taken in that behalf by the government in the state in question—in the same state.
Rule. Where, in regard to a script proffered in the character of a transcript, it is ascertained or believed that the original is in a state of exprovinciation,—let the same arrangements as in the case of expatriation await the option of the judge; subject to such arrangements, if any, as may have been taken in this behalf by the legislator, the common sovereign of both provinces.
Observations. As far as local distance is concerned, the quantum of delay, vexation, and expense, attendant upon that circumstance, may be as great in the case of exprovinciation as in that of expatriation;—the only uniform difference between the two cases consists in this, viz. that, in the case of exprovinciation, access to the original, or the production of it, will be at the command of the government of the country in which the transcript is thus proffered; in the case of expatriation, not.
Case IV. The original known to have existed, but to be no longer in existence.
Rule. Where, in regard to a script produced in the character of a transcript, it is known that an original script from whence it was transcribed was once in existence, but that it is no longer in existence; let the transcript be received in place of the original, subject to whatever considerations may be alleged in diminution of its trustworthiness.
Reason. Neither fraud, nor material incorrectness, are to be presumed: both cases are, in comparison, extremely rare. In this case, forgery in the way of fabrication is by the supposition out of the question. An original to the transcript there really was: the only question is, whether the representation given of it by the transcript be substantially a faithful one. If for every thousand transcripts there have been one unfaithful one, and no more; on this supposition, the probability of misdecision, even supposing the unfaithful transcript to obtain credence, is but as a thousand to one; whereas, on the other hand, if the transcript be necessary to warrant the decision prayed for on the side of him by whom it is proffered, and being so, is rejected, misdecision, in case of rejection, is a certain consequence.
Or say thus: If, in every ten transcripts of each of which the original has ceased to be in existence, whereupon the transcript has been proffered in evidence in its stead, there has been one unfaithful and no more; then, in case of admission, the probability of misdecision is, at the utmost, but as one to ten; whereas, in case of rejection, it is certain.
Previously to the deperition of the original, no fraud in any shape can have existed, unless at the time of the fraud the deperition had been foreseen; which it could hardly have been, unless an intention of procuring such deperition had formed a part of the fraudulent contrivance: no fraud in any shape, either by, or by the help of, purposed infidelity on the part of the transcriber; or by the like on the part of an examiner; or by forgery in the way of falsification, committed by another person at a time posterior to the examination: always understood and supposed that, according to the known dispositions of the law, so long as the original is in being, the transcript cannot be received on any terms; or not but upon the terms of being confronted with the original, in case of dispute.
No sooner, however, is the deperition known, than the check which the existence of the original opposed to forgery in the way of falsification is at an end. The transcript becomes, in that event, at that period, exposed to falsification; to wit, as much as an original would have been, but no more: the transcript, as such, is not on this score less trustworthy than an original would have been in its place.
Here, if the author of the falsification was the party by whom the transcript is proffered in evidence, the most natural case is, that, for the purpose of giving room for the falsification, it was by him, or by his means, that the deperition of the original was procured: but another possible case is, that the deperition took place without his participation; for example, by accidental fire, or in some other way by mere accident; and, the opening to fraud being thus made, then it was that it occurred to him to take advantage of it.
If it be clear that, from the time of the deperition of the original down to the time of the production of the transcript, the transcript has never been either in his custody, or, to any such purpose, in his power,—all suspicion of fraud on his part of course falls to the ground.
As to mere accident: in one point of view it should afford no reason at all for the rejection of a proffered transcript in this case. For (design being by the supposition out of the question) an incorrectness, even supposing it material, is not more likely to operate to the prejudice of one party than of another: the chances of advantage and disadvantage being, therefore, equal, and that with reference to each party, their situations are respectively the same as if there were no chance either of advantage or disadvantage on either side.
But this circumstance is not altogether destructive of all probability of misdecision from this source. Whether the incorrectness be taken advantage of or no, will depend upon that one of the parties in whose custody or power the transcript is: if the error be to his disadvantage, and he aware of it, he will either not produce the transcript at all, or not without pointing out the error, and claiming the benefit of its being corrected; if it be to his advantage, and his disposition be to such a degree dishonest, he will in that case take advantage of the error, although he had no part in the production of it.
If, from the above considerations, the cases on which the investigation turns seem far-fetched and improbable,—the more far-fetched and improbable the cases appear on which the investigation turns, the clearer will be the impropriety of any rule, which, in the case supposed, should pronounce the exclusion of transcriptural evidence.
Case V. The alleged original known to have existed; but whether it be still in existence or no, is uncertain.
Rule. When, in regard to a script produced in the character of a transcript, it is known that an original script from whence it was transcribed was once in existence, but whether it be still in existence is uncertain,—let the transcript be received in evidence: but, in the framing of the decision grounded on the evidence, for the avoidance of irreparable injustice, let the same arrangements await the option of the judge, as in the case where (as above) the original is known to be in a state of expatriation.
Case VI. A script purporting upon the face of it to be a transcript, is proffered as such, but the existence of the supposed original has not been ascertained.
Rule. It may sometimes happen that a script, purporting or appearing upon the face of it to be a transcript taken from some original of the same tenor, purport, or effect, shall be proffered in evidence to serve in place of the supposed original; at the same time that no other direct evidence of the existence of such original is producible. In such case, let such supposed transcript be received in evidence for what it appears to be worth; subject always to the double uncertainty whether any such original as it purports to have been transcribed from, ever existed; and whether, supposing such original to have existed, the supposed transcript in question be a sufficiently faithful transcript of it.
In some modifications of this case, the persuasive force of an article of evidence of this description may be of itself very slight and inconsiderable. At the worst, however, it will operate as a lot of circumstantial evidence, evidentiary of the existence of a correspondent original; and it is of the nature of circumstantial evidence to be susceptible of any degree of persuasive force: and, as circumstantial evidence, be it in what shape it may, cannot be too slight to be received, in company with other evidence, so neither can it in this.
If the supposed original be an article of casually-written evidence, it may be extremely difficult to determine whether the script in question be a transcript of an original of the same tenor or effect, or whether it may not itself be an original, not having been transcribed from any other. (See below, § 5.)
In the case where the supposed original (supposing it to exist) must have been an article of preappointed evidence, it will in general be sufficiently apparent that the script in question—the alleged transcript, if it had not an original, could not itself be an original. Why? Because the original, being by the supposition an article of preappointed evidence, (for example, an instrument of agreement or conveyance,) will have been furnished with some intrinsic marks of authentication, prescribed or customary, such as could not, without forgery, be given to a transcript.
In this case, another doubt may also arise concerning the alleged transcript,—viz. whether it be a transcript from an original actually authenticated, or only a preparatory sketch or draught of an instrument to the same effect, not at that time authenticated. In the former case, a correspondent original must, by the supposition, have existed: in the other case, though intended, it may never have existed. In the former case, it is of the nature of that species of circumstantial evidence, distinguished on a former occasion by the name of posteriora priorum evidence; on the other, of the opposite nature, priora posteriorum evidence.
If, upon the face of an original of the nature in question, a certain formulary of attestation (whether by positive appointment of law, or by custom) be generally to be found,—the difference between a transcript and a preparatory draught will, in general, not be difficult to decide: if it be a transcript, the formulary of attestation will hardly have been omitted in it; if it be but a preparatory draught, no such formulary can make part of it.
The most suspicious modification of this case is where a party proffers in evidence a script, which, according to his account of it, is a transcript, in tenor, purport, or effect, made from an original instrument, of the nature of preappointed evidence (contractual, for instance, or say an agreement or conveyance;) which instrument, he says, was once in his possession (or in the possession of some person to whose interest he succeeds in quality of representative—suppose his ancestor or testator,) but is now, to use the common expression, lost: i. e. not that he knows of its having perished, or has any particular reason for supposing it to have perished; but that, after every search he can make, he has not been able to find it, nor can think of any place, as yet unsearched or uninquired at, at which he sees any probability of its being found.
This sort of case lies obviously open to the characteristic fraud. It may be, that no such original instrument was ever in existence; and that the party, not choosing to run the hazard of forging, in the way of fabrication, any pretended original to the same effect, makes and produces this pretended transcript, regarding the fraud in this shape as being more promising in point of success, or less exposed to danger.
What, on the other hand, may also be, is, that a genuine original to that same effect was once, and perhaps still continues to be, in existence, but, by the operation of some cause altogether out of the reach of his knowledge or conjecture, either was destroyed, or was concealed or removed out of his knowledge. But, as neither judicial mendacity, nor fraud in any other shape, ought to be presumed—i. e. regarded as certain, without special inquiry and consideration into the idiosyncrasy of the case,—the state of things in question, though a ground of suspicion, forms no sufficient ground for the absolute rejection of the evidence.
This, in the most suspicious form that it can assume, is but a modification of self-serving evidence; of which, even in its most questionable and least trustworthy shape, it has already been in some degree, and will hereafter* be more fully, shown, that it ought not in any case to be absolutely excluded; much less where, as here supposed, the party is subjectable to vivâ voce cross-examination upon oath.
By whose hand was the alleged transcript made? By that of the party by whom, in the character of a transcript, it is proffered in evidence? It is in this case so obviously exposed to suspicion, that it seems little in danger of being accepted for more than it is worth. Is it in the handwriting of another person? Then there must have been some other person concerned in the business, and (if not imposed upon) privy to the fraud. If, in respect of punishment, a fraud of this kind is placed (as it ought to be) upon a level with ordinary forgery,—in such case, the danger incurred by the admission of this transcriptural kind of evidence differs but inconsiderably from the danger inseparably attached to the admission of preappointed but unregistered contractual evidence in general; since all such evidence, being unregistered, is liable to be forged.
If the party disguises his hand, to make it look like that of another person, a question that cannot fail to be put to him is, who the writer is. In this case, whether he names a particular individual, or declares that he knows not who it is, here at any rate is a case of judicial mendacity, superadded to a fraud which ought likewise to be considered as a modification of forgery. If the person named by him be a living individual, then the individual is living to contradict him: if an individual now dead, there will be other writings, the genuine writings of that same individual, to confront with this forged and spurious script: if it be an individual of whose hand no specimens are to be found, then comes the species of counter-evidence constituted by the improbability of the alleged fact, viz. that, of a hand expert in writing, this, and no one other production, should be to be found.
Supposing the instrument genuine, it will seldom happen that no circumstantial evidence, evidentiary of the occasion of executing it, and the probability of its having been executed, should be to be found. In proportion as the existence of this sort of confirmative circumstantial evidence appears probable, the unforthcomingness of it will constitute an objection to the trustworthiness of the supposed transcript; and an objection too obvious to be in danger of being overlooked.
By all these considerations, not only the danger of deception in case of fraud, but the probability of an attempt at deception by fraud, will surely appear to be reduced very considerably below—I will not say certainty—but below an even chance. To facilitate conception,—out of a hundred cases in which evidence of this sort is proffered, in ten, and no more than ten, it is accompanied with fraud, and in one out of these ten the fraud succeeds. Thus stands the matter, on the supposition of the admission of the evidence. In ninety cases out of every hundred, right decision—justice, is the consequence; in one only, misdecision—injustice. Next, suppose a peremptory exclusion put upon this species of evidence. Here the proportions are reversed: in one instance, misdecision—injustice, is prevented; in ninety instances, right decision is prevented, injustice is produced.
If the above ratios appear too great, take lesser ones: but they will hardly be taken, by anybody, so small, but that, in his view of the matter, the probability will be still on the same side—the practical result will be still the same.
Case VII. The original in the power of the adverse party.
Observations. In this case, so long as the party in whose hands the original is, does not produce it, the existence of the alleged transcript being notified to him, the fidelity of the transcript is thereby proved, as against such detainer, by a most satisfactory species of evidence—the virtual admission of the party interested in the proof of unfaithfulness on the part of the transcript, if in truth it were chargeable with any such defect.
That a script, or anything else, should have been in the power of the party in question, or any other individual, is one of those events against the happening of which, be they ever so undesirable, no industry on the part of the law can afford security. But that a script, or anything else, the forthcomingness of which is requisite for the purposes of justice, should continue unforthcoming notwithstanding, and at the same time continue in existence, is a state of things which cannot have place from any other cause than an inexcusable imperfection—a voluntary imbecility, in the system of procedure. Supposing it (for argument’s sake) put out of doubt, that a man, having any such article in his custody or power, wilfully persists in the non-production of it,—no torture that he chose to submit to, rather than comply in this respect with the obligations of justice, could be too severe: at no price should it be permitted to a man to purchase the privilege of flying in the face of law, and committing a known injustice.*
A possible, and not very extraordinary case, is this: The original, having been in the hands of the adverse party, has passed out of his hands, and altogether out of his power, without any design of eluding the probative force of the transcript, and, in a word, without any default of his in any shape. In this case, he will naturally be able to show, if it has perished, that it has perished: if not, into what other hands it has passed. If, instead of this, he declares (being, of course, judicially examined) that he knows not what is become of the original,—in such case, although the declaration should be true, no injustice can reasonably be to be apprehended from considering the verity of the transcript, as between them two at least, as sufficiently established. If, after this declaration, he declares, moreover (under the same securities for veracity as are applied to the testimony of an ordinary witness,) that he does not believe the alleged transcript to be faithful, but to be unfaithful in such or such specified points,—here comes a contrariety of evidence, a difficulty under which the judge must form, on this as on other cases, the best judgment in his power.
In this case,—as between these two parties, the withholder of the original, and the holder of the transcript,—it manifestly makes no difference, whether the original be produced, that, by comparison with it, the transcript may be verified; or whether, on the non-production of the original, the verity of the transcript be declared to be sufficiently ascertained.
As between them two, yes: supposing the holder of the transcript satisfied of its verity—satisfied, consequently, that the original itself, if produced, would not be more favourable to his cause. As between them two, yes: but not as between other persons. If it were understood that, on the terms of establishing the verity of an alleged transcript, the possessor of the alleged original had it absolutely in his power to protect it from the scrutiny of the judge, and to make the alleged transcript good evidence against other persons, in the same or other suits,—the effect of forgery might thus be rendered attainable, without any of the risks. In pursuance of a preconcerted scheme of collusion, in an action brought on purpose, a pretended transcript of a deed of any description and to any value is proferred in evidence by the plaintiff; notice for the production of the original is given to the defendant; the defendant forbears to produce it; and thereupon the character of an original—an original confirmed by judicial inquiry, is given to the fraudulently pretended transcript.
Arrangements for securing the fidelity of transcripts.
Rule 1. Upon every transcript, made by a public scribe in the course of office, let a pledge of correctness be entered upon the face of it, as follows:—
1. The name of the transcriber, written by his own hand.
2. The designation of the actual time of taking the transcript; expressed by the day, month, and year.
3. The designation of the place at which the transcript was taken.
Rule 2. If, of the same transcript, one part be written by one hand, another by another, the designation should be repeated every time in thus changes hands; but, the name once given at length, the initials will afterwards be sufficient.
Rule 3. This obligation ought equally to be extended to professional scribes: for example, to notaries, conveyancers, attorneys, and their clerks.
Rule 4. Where, either at the time of making the transcript, or afterwards, it comes to be examined by any person other than the transcriber, the same pledge of correctness should be given by such examiner likewise.
Rule 5. And this whether, on the part of the transcriber, the transcript bears on the face of it any such pledge of correctness, or not.
Rule 6. Of every such official, as well as of every such professional transcript, as well the writer as the examiner should at all times be subject to judicial examination, touching the fidelity of the transcript, and the truth of their respective marks of verification, as above.
Rule 7. If, notwithstanding all such external evidence, the fidelity of the transcript be in dispute, and the original be still forthcoming,—the examination of the transcript by the original, as touching the points in dispute, may be made at any time, by or under the eyes of the judge.
Taken on the whole, the uses of these entries are not unobvious.
1. To afford a security against incorrectness through negligence. If error appears, it appears at the same time who the person is, to whom it is to be imputed.
2. To afford a security against fraud. If fraud have any share in the production of the error,—being the work of design, it cannot but be a material one, so as to operate to the prejudice of some right. But, the more material it is, the more strongly it points the eye of suspicion upon the person of the transcriber; and there he is, to answer for it. If the entry be not the writing of the person whose writing it purports to be, it is then a forgery: and, in this case, the punishment and peril of forgery attach upon the fraud.
3. A collateral and inferior use, in the case of the transcriber, is, to serve as an index and measure of his capacity and diligence, by showing the quantity of business dispatched by him in each given portion of time.
The use of the designation of the time, coupled with that of the place, is to throw difficulties in the way of forgery. The forgery will be detected, if it should appear that, on the day in question, there was no such person writing in that office, in that place. And, as to the clerk himself whose hand is thus forged, it will be easier to him to say with assurance that he wrote no such paper on this or that particular day, than that he never wrote any such paper in the whole course of his life. At the particular time in question, it may happen to him to recollect that his whole time was occupied about other business.
In the case of the examiner’s mark of attestation, an effectual indication of forgery will be afforded, should it ever appear that, before the time therein specified, the original had perished.
In the case of an official transcript, the designation of the place may, at first sight, appear superfluous. The situation of the official house is a matter of universal notoriety; and the official books and documents are kept at the official house. But,
1. In some cases, the office itself is ambulatory; as in the case of military offices, by sea and land.
2. The transcript may be of the nature of those which are destined to be sent out of the office; such as circular letters, and the like.
3. The document in question, though designed to be kept in the office, may, on some unforeseen occasion, be sent out of it, or, by accident, separated from it. The designation of the place will in this case serve for the replacement of it.
4. The designation of the person is scarcely complete without the designation of the place. Of the names called proper names, there are few but what are in fact common to many persons.
Of the above-proposed arrangements, the description is simple, the efficiency obvious, and the trouble not considerable. The application of them may at least be considered as forming the matter of a general rule. If, in this or that particular instance, the labour should appear to outweigh the utility,—in every such particular instance it will be easy to discard them by a special rule of exception adapted to the case.
In the case of an official transcript (as above,) a transcript having for its writer, or examiner, or both, a public functionary,—if the above arrangements for the security of individual responsibility be established, the security afforded (as above) by the relative date of the judicial deposition, will be the less material; inasmuch as the certificate or attestation of transcription or examination will never have been attached to the transcription, but under the persuasion of eventual liability to judicial scrutiny.
On that supposition, the case to which it applies with particular efficiency is that where the examiner has not been any such public functionary, but some unofficial individual—such, for instance, as a professional agent of this or that one of the parties in the cause; or, in case of an instrument of conveyance, or other contract, the man of law, or the clerk of the man of law (notary, attorney, or conveyancer,) by whom the original was drawn, or who, in the way of his professional functions, had had occasion to advert to the contents of the original for any other purpose.
With the help of this check, so strong is the collective body of security thus afforded, that the trustworthiness of an examiner of the least trustworthy description may be raised by it to a level superior in the eye of reason to a person of the most trustworthy description, to whom, for want of the requisite arrangements, the security for individual responsibility is found not to apply. For example, the testimony of the party by whom, and consequently in favour of whom, the supposed transcript is proffered in evidence, will, under these circumstances, present a better claim to credence than can be presented by any supposed official transcript;—nay, even by any transcript, of which, though it be known that it was made or examined in this or that particular office, and consequently by one or other of the clerks that at one time or other have been employed in that office, it is not known by what one in particular of those clerks it was written or examined.
How to distinguish between original and transcript.
In the case of preappointed evidence, all difficulty from this source is, or at least naturally will be, endeavoured to be provided against and prevented.
But, in the case of casually-written evidence, the case may remain exposed to every difficulty.
If it be a letter, that letter will naturally be signed by him whose discourse it is. But, among persons in habits of intimacy with each other, and perfectly acquainted with each other’s hands, the formality will often have been omitted.
But a script appears in form of a letter, and that letter signed by a name. To a person sufficiently acquainted with the handwriting, it may be proportionally clear that it is the handwriting of the individual whose name it bears: but, to the persons interested in the business, that person and his handwriting are (suppose) alike unknown. In that case, fraud of every kind apart, it cannot assuredly be known to a certainty whether the script be an original or a copy. All that can be said is, that its being an original is the more frequent, and thence in each individual case (setting aside idiosyncratic indications) the more natural and probable, result. For,
1. Considered in an aggregate point of view, the number of letters of which no transcripts are taken, exceeds (it may well be thought) in a prodigious degree the number of those of which transcripts are taken. But the strength of this consideration will depend upon a variety of circumstances:—1. Upon the importance of the subject of the letter; commercial, or non-commercial—relative to business purely private, or to business more or less public, &c.: 2. Upon the prevalence of the faculty and habit of taking copies of letters, in the country in question, at the time in question.
2. When a transcript of a letter is taken (fraud apart,) it is common and natural that upon the face of it it should be so intituled; or, at any rate, that in some way or other an indication should be given of its not being meant for anything more. On the other hand, this indication is a circumstance to which it may easily happen to be omitted. A letter lies before me: I take a copy of it (no matter for what purpose) for my own use: I know it to be but a copy: what need have I to give the information to myself?
Suppose other persons are meant to share with me in this use—all of whom are acquainted either with me or with the writer of the original, and with our respective hands. Even in this case, the indication will be apt to appear alike superfluous, and, as such, to be omitted.
3. If the original be no more than a memorandum, written by the writer for his own use, and not addressed to anybody, or meant to be sent to anybody;—in that case, if a transcript be taken of it by another person, it may be impossible for any third person (otherwise than by examination of one of the persons—the writer of the original, or the transcriber) to give so much as a guess which was the original, which the transcript. Either, presenting itself without the other, would of course be taken for an original: from the sight of the original alone, no person would be led to conclude that any transcript had been made of it; from the sight of the transcript alone, no person would be led to conclude that it was not an original, but a transcript. Such would generally be the case, supposing both of them equally free from alterations and slips of the pen. On the other hand, where alterations and blemishes are visible, from the nature of these blemishes some sort of indication or ground of conjecture respecting the script in question taken singly, as to the question whether it be an original or a copy, may every now and then be discoverable.
In an original, whatever alterations occur will naturally have arisen from a correspondent change in the thought and plan of the discourse. If one word be struck out, and another written over it, the word thus substituted will commonly have no resemblance in physical appearance to the word to which it is substituted: especially if, a clause composed of three or four words in connexion being struck through, another clause, embracing also a number of words, be put to serve instead of it.
In a transcript, where any such alterations are perceptible, if the error consisted in the omission of a word or series of words, the correction will consist in the insertion of such omitted word or words; which insertion, the error not having been discovered till the line is finished, will commonly be made in the way of interlineation. If the error consisted in the substitution of one word for another, the improper word will, in general, be a word more or less nearly similar in physical appearance to the proper one.
In short,—in an original, if any alterations are perceptible, they will be such as, being the result of a change of thought, will be indicative of such a change: in a transcript, if any alterations are perceptible, they will not be indicative of any change of thought.
On the occasion of these and all other such diagnostics, a caution as useful as any or all of them put together, is, not to place too implicit a confidence in them; and this for two reasons:—1. Because, even frand apart, their conclusiveness is susceptible of an infinity of gradations; 2. Because, if any one were understood to be conclusive, fraud would naturally bend its endeavours to take advantage of the rule.—Example: In the natural state of things, fraud apart, an original brouillon may swarm with substitutions and interlincations, to any degree of complication: a transcript will not naturally be infected in any considerable degree with any such blemishes. But, if this were to be understood in the character of a peremptory rule, to which the judge were obliged to conform—a man who, making a transcript, wished for any sinister purpose to make it pass for an original, would fill it with such blemishes on purpose.
Rule. Where, as between divers scripts emanating from the same original source, a doubt arises which is to be considered as the authentic draught; as, for instance, between two such scripts, whether the first be a rough sketch preparatory to the original, and the second the original, or the first an original, and the second a transcript (viz. either in tenor or in substance;)—let not the claim of any such script to be considered as the more authentic, be regarded as fixed by any general rule applicable to all sorts, or to any sorts, of scripts, except so far as, in the instance of this or that particular species of script, the distinction may have been fixed by an appropriate provision of statute law. But, in each instance, let all such of the contending scripts as can be produced, be produced accordingly; and, from a joint comparison of them all, let the true import of the discourse be collected.
1. Shop-books. Several shop-books kept by the same shopkeeper. In some, the order of the entries will have been purely chronological: in the waste-book and journal. In others, the primary principle of arrangement will be logical; the transactions being classed in groups, sometimes according to the persons, sometimes according to the things, to which they relate: the chronological principle of arrangement being secondary with relation to these logical ones.
In general, an entry belonging to that book in which the transaction is entered before it is entered in any other, will be more trustworthy than the correspondent entry in any other of the books: because the former one will be of the nature of an original, the others no more than transcripts, entered on so many different principles of arrangement. But it may happen that a mistake was made in the prior entry, and that it received correction in a posterior one.
2. Official books of any public office. The documents usually entered in the office being known,—the document, as made out in proper form, will naturally have been preceded in many instances by a short minute or memorandum, indicative of the species of the document which is to be made out, and serving for instruction to the clerk by whom it is to be made out.
3. The documents (if more than one) serving to exhibit a man’s last will:—viz. if no sufficient care has been taken by the legislator to stamp the character of anthenticity upon a document of a particular description, to the exclusion of all others that are liable to come into competition with it: or if a document, upon the face of it authentic, should come to be impugned on the ground of spuriousness, falsification, or unfairness in respect of the mode of bringing it into existence.
[* ]Add to these lithography, which, when this work was written, had scarcely been applied to the multiplication of copies of a written document.—Editor.
[† ]Why so? 1. Because in the natural state of things, the printer, having no particular interest in any legal use to which it may happen to the document to be applied, occupies in this respect a station analogous to an official one. By a printer, I mean a person exercising his function in the ordinary way of trade: not to speak of a printer employed in the printing of laws or other legal documents, by authority of government, 2. Because the printer is in every instance either actually known, or capable of being known, as the workman of his own works; his livelihood depends upon the reputation of them in point of correctness; and the correctness or incorrectness of them is subjected to the eyes of a number of witnesses and judges, greater beyond comparison than usually has place in the case of any transcript performed by hand.
[* ]See Book VII. Authentication.
[* ]The rule of law relating to transcripts is thus laid down by Phillips:—“Examined copies, and the parol evidence of witnesses, are the ordinary and regular proof of the contents of lost writings. But when a written paper has been traced into the possession of one of the parties to the suit, who does not produce it after receiving a notice, something less than an examined copy may reasonably be admitted as sufficient, at least to oblige the party to give better evidence, by producing the paper itself, if he finds the secondary evidence incorrect.” I Phil. Evid. p. 439, 440. In the case of Pritt v. Fairclough, 3 Camph. 305, an entry by a deceased clerk, in a letter-book, was admitted as evidence of the contents of a letter, the receipt of which was acknowledged by the defendant, but which letter was not produced at the trial when required. This case was remarkable for the following dictum laid down by Lord Ellenborough:—“The rules of evidence must expand according to the exigencies of society.” It is much to be lamented, that the Judges, as a body, have not courage enough to act upon this dictum, and sweep away these exclusionary rules, which are in such direct opposition to the exigencies of society,—in other words, to the ends of justice.—Ed.
[* ]Book IX. Exclusion.
[* ]English procedure, with the most perfect complacency, licenses injustice in this shape, to a most deplorable extent. But of this kind of imperfection the display belongs, not to the present subject, but to that of Procedure, and the head of Forthcomingness.