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• Rationale of Judicial Evidence.
• Book V.: —of Circumstantial Evidence.
• Chapter I.: Circumstantial Evidence, What—how Distinguished From Direct Evidence.
• Chapter II.: Of Probabilizing, Disprobabilizing, and Infirmative Facts—examples of Principal Facts, With the Corresponding Evidentiary Facts—improbability and Impossibility, How Distinguished From the Other Kinds of Circumstantial Evidence.
• Chapter III.: Of Real Evidence, Or Evidence From Things.
• Chapter IV.: Of Preparations, Attempts, Declarations of Intention, and Thrlats, Considered As Affording Evidence of Delinquency.
• Chapter V.: Of Non-responsion, and False, Or Evasive Responsion, Considered As Affording Evidence of Delinquency.
• Chapter VI.: Of Spontaneous * Self-inculpative Testimony, Considered As Affording Evidence of Delinquency.
• Chapter VII.: Of Confessorial and Otherwise Self-disserving Evidence, Extracted By Interrogation.
• Chapter VIII.: Of Confusion of Mind, Considered As Affording Evidence of Delinquency.
• Chapter IX.: Of Fear, In So Far As Indicated By Passive Deportment, Considered As Affording Evidence of Delinquency.
• Chapter X.: Of Clandestinity, Considered As Affording Evidence of Delinquency.
• Chapter XI.: Of Suppression Or Fabrication of Evidence, Considered As Affording Evidence of Delinqufncy.
• Chapter XII.: Of Avoidance of Justiciability, Considered As Affording Evidence of Delinquency.
• Chapter XIII.: Of the Situation of the Supposed Delinquent In Respect of Motives, Means, Disposition, Character, and Station In Life, Considered As Affording Evidence of Delinquency.
• Chapter XIV.: Posteriora Priorum—priora Posteriorum. Fact Indicated, a Prior Event; Evidentiary Fact, a Posterior Event In the Same Series: and E Converso.
• Chapter XV.: On the Probative Force of Circumstantial Evidence.
• Chapter XVI.: Of Improbability and Impossibility. *
• Chapter XVII.: Atrocity of an Alleged Offence, How Far a Ground of Incredibility. ‡
• Book VI: Of Makeshift Evidence.
• Chapter I.: Of Makeshift Evidence In General.
• Chapter II.: Of Extrajudicially Written Evidence.
• Chapter III.: Of Unoriginal Evidence In General.
• Chapter IV.: Of Supposed Oral Evidence Transmitted Through Oral, Or Hearsay Evidence.
• Chapter V.: Instructions Concerning the Probative Force of Extrajudicially Written and Hearsay Evidence. *
• Chapter VI.: Of Supposed Written Evidence, Transmitted Through Oral; Or Memoriter Evidence. *
• Chapter VII.: Of Supposed Oral Evidence, Transmitted Through Written; Or Minuted Evidence.
• Chapter VIII.: Of Supposed Written Evidence, Transmitted Through Written; Or Transcriptitious Evidence.
• Chapter IX.: Of Reported Real Evidence: I. E. Supposed Real Evidence, Transmitted Through Oral Judicial Testimony, Or Through Casually-written Evidence.
• Chapter X.: Of Evidence Transmitted Through an Indefinite Number of Media.
• Chapter XI.: What Ought, and What Ought Not, to Be Done, to Obviate the Danger of Misdecision On the Ground of Makeshift Evidence.
• Chapter XII.: Aberrations of English Law In Regard to Makeshift Evidence.
• Book VII.: Of the Authentication of Evidence.
• Chapter I.: Authentication, What. Connexion of This Subject With That of Preappointed Evidence.
• Chapter II.: Subject-matters of Authentication, What. Modes of Authentication In the Case of Real and of Oral Evidence.
• Chapter III.: Modes of Authentication In the Case of Written Evidence.
• Chapter IV.: Modes of Deauthentication In the Case of Written Evidence.
• Chapter V.: Distinction Between Provisional and Definitive Authentication. Rules For the Legislator and the Judge, Concerning the Authentication of Written Evidence.
• Chapter VI.: Aberrations of English Law In Regard to the Authentication of Written Evidence.
• Book VIII.: On the Cause of Exclusion of Evidence—the Technical System of Procedure.
• Chapter I.: Object of This Inquiry—its Connexion With the Subject of the Present Work.
• Chapter II.: Technical Or Fee-gathering, and Natural Or Domestic, Systems of Procedure, What?
• Chapter III.: Cause of the Vices of Technical Procedure, the Sinister Interest of the Judge.
• Chapter IV.: Particular Exemplifications of the Vices Introduced By the Fee-gathering Principle Into Technical Judicature.
• Chapter V.: List of the Devices Employed Under the Fee-gathering System, For Promoting the Ends of Established Judicature, At the Expense of the Ends of Justice. *
• Chapter VI.: First Device—exclusion of the Parties From the Presence of the Judge.
• Chapter VII.: Second Device—tribunals Out of Reach: Or, Swallowing Up the Inferior Courts.
• Chapter VIII.: Third Device—bandying the Cause From Court to Court.
• Chapter IX.: Fourth Device—blind Fixation of Times For the Oplrations of Procedure.
• Chapter X.: Fifth Device—sitting At Long Intervals.
• Chapter XI.: Sixth Device—motion Business.
• Chapter XII.: Seventh Device,—decision Without Thought; Or Mechanical Judicature.
• Chapter XIII.: Eighth Device—chicaneries About Notice.
• Chapter XIV.: Ninth Device—principll of Nullification.
• Chapter XV.: Tenth Device—mendacity-licence.
• Chapter XVI.: Eleventh Device—ready Written Pleadings.
• Chapter XVII.: Twelfth Device—principle of Jargon, Or Jargonization.
• Chapter XVIII.: Thirteenth Device—fiction.
• Chapter XIX.: Fourteenth Device—entanglement of Jurisdictions.
• Chapter XX.: Fifteenth Device—means of Securing Forthcomingness, Uselessly Divfrsified.
• Chapter XXI.: Sixteenth Device—creation of Needless and Useless Offices.
• Chapter XXII.: Seventeenth Device—sham Pecuniary Checks to Delay, Vexation, and Expense.
• Chapter XXIII.: Eighteenth Device—double-fountain Principle.
• Chapter XXIV.: Nineteenth Device—laudation of Jurisprudential Law.
• Chapter XXV.: Habitual Contempt Shown By Judges to the Authority of the Legislature.
• Chapter XXVI.: Opinion-trade.
• Chapter XXVII.: Extension of the Above Devices to Substantive Law, As Far As Applicable.
• Chapter XXVIII.: Remedies Suggested For the Above Evils.
• Chapter XXIX.: Apology For the Above Exposure.
• Book IX.: On Exclusion of Evidence.
• Part I.: On the Exclusionary System In General.
• Chapter I.: Exclusion of Evidence. Its Connexion With the Ends of Justice.
• Chapter II.: Disregard Shown to the Ends of Justice Under the Exclusionary System.
• Chapter III.: General View of the Mischiefs of the Exclusionary System.
• Chapter IV.: Dicta of Judges On the Exclusionary System.
• Chapter V.: Species of Exclusion.
• Part II.: View of the Cases In Which Exclusion of Evidence Is Proper.
• Chapter I.: General View of the Cases In Which Exclusion Is Proper.
• Chapter II.: Exclusion On the Ground of Vexation, In What Cases Proper.
• Chapter III.: Exclusion On the Ground of Expense, In What Cases Proper.
• Chapter IV.: Exclusion On the Ground of Delay, In What Cases Proper.
• Chapter V.: Exclusion of Irrelevant Evidence, Proper.
• Chapter VI.: Exclusion of the Evidence of a Catholic Priest, Respecting the Confessions Intrusted to Him, Proper.
• Chapter VII.: Remedies Succedaneous to the Exclusion of Evidence.
• Part III.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Danger of Deception. *
• Chapter I.: Cases Enumerated.
• Chapter II.: Danger of Deception, Not a Proper Ground For Exclusion of Evidence.
• Chapter III.: Impropriety of Exclusion On the Ground of Interest.
• Chapter IV.: Impropriety of Exclusion On the Ground of Improbity.
• Chapter V.: Impropriety of Exclusion On the Ground of Religious Opinions.
• Chapter VI.: Impropriety of Exclusion On the Ground of Mlntal Imbecility, and Particularly of Infancy and Superannuation.
• Chapter VII.: Of the Restoratives For Competency, Devised By English Lawyers.
• Part IV.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Vexation.
• Chapter I.: Vexation to Individuals Arising Solely Out of the Execution of the Laws, Not a Proper Ground of Exclusion.
• Chapter II.: Enumeration of the Sorts of Evidence Improperly Excluded On This Ground By English Law.
• Chapter III.: Impropriety of the Exclusion Put Upon Self-disserving Evidence By English Law.
• Chapter IV.: Inconsistencies of English Law In Regard to Self-disserving Evidence.
• Chapter V.: Examination of the Cases In Which English Law Exempts One Person From Giving Evidence Against Another.
• Part V.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Double Account of Vexation and Danger of Deception.
• Chapter I.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Himself.
• Chapter II.: Examination of the Course Pursued In Regard to the Plaintiff’s Testimony By English Law.
• Chapter III.: Examination of the Course Pursued In Regard to the Defendant’s Testimony By English Law.
• Chapter IV.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Another Party On the Same Side. Examination of the Course Pursued In This Respect By English Law.
• Chapter V.: Probable Origin of the Above Exclusionary Rules.
• Part VI.: Of Disguised Exclusions.
• Chapter I.: Exclusion of Evidence For Want of Multiplicity.
• Chapter II.: Exclusion By Limitation Put Upon the Number of Witnesses.
• Chapter III.: Exclusion Put By Blind Arrangements of Procedure Upon Indeterminate Portions of the Mass of Evidence.
• Chapter IV.: Exclusion By Rendering a Particular Species of Evidence Conclusive.
• Chapter V.: Of the Rule, That Evidence Is to Be Confined to the Points In Issue. ‡
• Chapter VI.: Of Negative Exclusions.
• Book X.: Instructions to Be Delivered From the Legislator to the Judge, For the Estimation of the Probative Force of Evidence.
• Chapter I.: Preliminary Observations.
• Chapter II.: Of Interest In General, Considered As a Ground of Untrustworthiness In Testimony.
• Chapter III.: Of Pecuniary Interest, Considered As a Ground of Untrustworthiness In Testimony. *
• Chapter IV.: Of Interest Derived From Social Connexions In General.
• Chapter V.: Of Interest Derived From Sexual Connexions.
• Chapter VI.: Of Interest Derived From Situation With Respect to the Cause Or Suit.
• Chapter VII.: Of Improbity, Considered As a Cause of Untrustworthiness In Testimony.
• Chapter VIII.: Of the Comparative Mischief In the Event of Misdecision, to the Prejudice of the Plaintiff’s Or of the Defendant’s Side.
• Chapter IX.: Ulterior Safeguards Against the Inconveniencies Which May Present Themselves As Liable to Arise From the Abolition of the Exclusionary Rules.
• Chapter X.: Recapitulation.
• Conclusion.
• Note On the Belgic Code.

BOOK VII.

OF THE AUTHENTICATION OF EVIDENCE.

CHAPTER I.

AUTHENTICATION, WHAT. CONNEXION OF THIS SUBJECT WITH THAT OF PREAPPOINTED EVIDENCE.

In the book having for its subject preappointed evidence,* —in bringing to view the uses or advantages derivable from that kind of evidence, considered as applied to instruments expressive of contracts, taken in the largest sense,—prevention of spurious or falsified instruments, i. e. spurious in the whole or in part, was stated as being of the number of those uses.

The function then considered as belonging to the legislator was, so to order matters, that, in so far as contracts have been entered into, genuine instruments expressive of them shall be in existence; and that spurious instruments, instruments expressive of discourses that were never uttered by the persons by whom they purport, or by some one are pretended to have been uttered, may not be in existence.

So to order matters, as that, when an instrument so framed as above is genuine, it shall be believed to be, and recognised as, genuine; and that, when an instrument purporting or appearing or pretended to be so framed as above, is not genuine, but either spurious in toto or falsified, it shall be understood that it is spurious or falsified; and, in case of falsification, what are the parts in it that are falsified; is another of the legislator’s functions, which remains to form the subject of this book.

On that former occasion, room and demand were seen to exist for something in the way of regulation—something, how little soever in comparison with that which has so commonly been done.

On this occasion, there is no demand for anything whatsoever to be done in the way of regulation: whatever is to be done consists wholly of instruction—instruction from the legislator, delivered for the information and guidance of the judge.

CHAPTER II.

SUBJECT-MATTERS OF AUTHENTICATION, WHAT. MODES OF AUTHENTICATION IN THE CASE OF REAL AND OF ORAL EVIDENCE.

Three main species or parcels have again and again been mentioned, as comprising together the whole possible matter of evidence—real, oral, and written. The same term, authentication, may be employed with reference to each of them: but the import of it, in the three cases, differs to a certain degree, according to the different natures of the subject-matter to which it is respectively applied.

1. In the case of real evidence, to authenticate the evidence is to establish the identity of the body (whatever it be) which is the source of the evidence,—the body, the appearances of which constitute the evidence,—together with the authenticity of those appearances: to make it appear, to the satisfaction of the judge, that the body exhibiting certain appearances at the time of its being produced in court or subjected to the examination of a scientific witness (acting on that occasion in the character of a subordinate and deputed judge,) is the same body as that by which the evidentiary appearances were exhibited in the first instance. 2. That the appearances exhibited by it at the two points of time, and during the intervening interval, are the natural consequences of the principal fact, and have not been either fabricated, or materially altered, either by design or negligence.

In the case of real evidence, safe custody will commonly besides have another object, viz. insuring the existence and forthcomingness of the object—preventing it from being destroyed or lost. But this purpose belongs not to the present head, but to the head of securing the forthcomingness of evidence.

2. In the case of personal oral evidence, to authenticate the evidence is to establish the identity of the person who, in the character of a deposing witness, is subjected to oral examination,—who, in the character of a deposing witness, is admitted to give his testimony in the presence of the judge: to make it appear to the satisfaction of the judge, 1. That he who speaks of himself as being such or such a person, is really that person; 2. That the person who, at the time in question, in presence of the judge, speaks of himself as having been present on a certain past occasion, on which a person known by a certain name was actually present, is that same person; whether, on the occasion in hand, he calls himself, or is called, by the same, or by a different, name.

3. In the case of written evidence, to establish the genuineness of the document is to make it appear, to the satisfaction of the judge, that the document exhibited as containing the discourse expressed by a certain person on a certain occasion, does really contain the discourse of that same person; and (where the occasion is material) that this discourse did really issue from him on that same occasion.

Correspondent to the respective nature of the respective species of evidence, will be the several courses requisite and proper to be taken for establishing their authenticity.

1. The case of real evidence admits of safe custody; an expedient that applies not at all, or not with equally and uniformly unexceptionable propriety, in either of the other cases. For this purpose, a particular sort of person is not unfrequently appointed by law, in contemplation of his presumed trustworthiness with reference to the purpose. He takes charge of the article, keeps it in his possession till the time comes for its being produced, in the character of evidence, before the judge; and it is partly by the fact of his having thus kept it in his custody, partly by the testimony he gives, or is considered as giving, of its having been so kept without any fallacious alteration, that its authenticity is established.

2. The case of personal oral evidence, that is, of a person appearing before the judge to give his testimony, admits not of any appropriate mode of authentication. His being the same person as he who (commonly under the same name) is stated by him as having been present on the occasion in question—been present in the character of a percipient witness—is included of course in the testimony he gives. The fact of his identity (if there be any doubt about it) will, like any other matter of fact, be to be proved or disproved, as the case is, by such evidence of any kind or kinds as the occasion furnishes.*

It is not often that in this case the demand for authentication will present itself. A case the most likely to give rise to doubts, is when, for a purpose innocent or criminal, the witness has, on the two different occasions, called himself, or suffered himself to be called, by different names.†

3. It is in the case of written evidence that the business of authentication admits of the greatest diversity, and demands a proportionable degree of attention.

The task will be found to be attended with very considerable differences, according to the differences of which the nature of the written document in question is susceptible—differences that have already been distinguished by appropriate names. I speak of the different modifications of written evidence that have been already marked out, and separately considered, under the general heads of Preappointed and Makeshift evidence. All these will, in their order, be now for this new purpose brought again to view.

A distinction must here be observed, between evidence of authenticity, and evidence of fairness. Authenticity may be proved by similitude of hands; it may be proved, provisionally at least, ex tenore, with or without the other presumption ex custodiâ. To the question of fairness, none of these media of proof, it is evident, can apply. The document may have been brought into existence by any modification of fraud or force, for any indication that can be afforded to the contrary from any of those sources. A bond is produced in evidence:—the obligor may have been in a state of insanity or intoxication when he executed it: he may have executed it with the fear of a pistol or a dagger before his eyes, or in a state of illegal imprisonment, to which he had been subjected for the purpose. Of none of these modifications will the signature, or the custody of the instrument, or the tenor of it, afford any sort of warning.

CHAPTER III.

MODES OF AUTHENTICATION IN THE CASE OF WRITTEN EVIDENCE.

§ 1.

Topics of inquiry.

On the subject of authentication, as applied to written evidence, two more questions present themselves for discussion: 1. What, with reference to the main end of justice, is, in each distinguishable case, the best, the most trustworthy evidence? in other words, what is the best, with reference to security against deception? or simply thus, what is, in each instance, the most trustworthy mode of authentication? 2. What inferior modes of authentication may, in the several different cases, be admitted in place of the most trustworthy mode?

1. Which is the most trustworthy mode? The authenticity, as above explained, of this or that piece of evidence, is a particular species of fact. Whatever sort of evidence is most trustworthy with reference to facts in general—to facts taken without distinction,—will be so with reference to this. That sort of evidence is the most trustworthy, which will admit of being extracted in the most trustworthy mode of extraction. What mode of extraction is most trustworthy, has been shown at large in the books entitled “Securities” and “Extraction:” oral examination, accompanied with cross-examination, and the other securities naturally and usually attendant on it.

This being the most trustworthy, the most satisfactory, and (with reference to the main end of evidence, security against deception) the best and most eligible, two circumstances concur in preventing it from being employed on all occasions: 1. There are occasions on which it is not obtainable: such is the case where, at the time when the demand for the evidence arises, the witnesses from whose mouth it should have been extracted are not forthcoming. 2. There are causes in which, though obtainable, the employment of this most trustworthy species of evidence would not upon the whole be eligible: Why? Because, if obtianed in this most trustworthy mode, the collateral inconvenience which, in the shape of vexation, expense, and delay, would inevitably result from the extraction of it in this mode, would be more considerable than the inconvenience consisting in what is lost in point of trustworthiness by the difference between the most trustworthy mode, and the next most trustworthy that may be to be obtained free from that collateral inconvenience.

As to unforthcomingness in evidence, the modifications of it, and their respective causes, have already been exhibited to view. Modifications, irremovable and removable: Causes of irremovable unforthcomingness, death, and incurable insanity: Causes of removable unforthcomingness,—1. Insanity or other indisposition not incurable; 2. Expatriation; 3. Latency (see Vol. VI. p. 419.)

§ 2.

Modes of authentication in the case of private contractual evidence.

I proceed to bring to view such modes or sources of authentication as present themselves in regard to the different species of written evidence: beginning with private contractual evidence. It is that which affords the greatest variety of modes. The order in which I arrange them is that of superiority: meaning by superiority, preferability, on the score of trustworthiness;—the most trustworthy standing first upon the list.

I. Authentication by direct evidence.

1. Testimony given by the attesting witness or witnesses. The greater the number of such witnesses, and the larger the proportion of them that appear in the character of deposing witnesses, the more satisfactory, of course, will be the proof. As to the mode of taking the deposition—the mode of examination,—nothing particular requires, on this occasion, to be said of it. On this occasion as on all others, it will be less and less satisfactory, according as it varies from that which is considered as the most satisfactory, the mode so often described.*

2. Testimony of non-attesting witnesses—representing themselves as having been percipient witnesses of the act of recognition. In that case, the perception taken by any such non-attesting percipient witness may have been as complete as it naturally will have been in the case of an attesting witness; or it may be less and less complete, in a variety of gradations. A man may have seen and heard what was passing through a chink or keyhole; he may have heard without seeing, without seeing the act of recognition, he may have seen the instrument in the first instance without the signature, and presently after with the signature; and so forth. In this way, the direct evidence may insensibly degenerate into circumstantial evidence.

3. Testimony of the party or parties—all of them, or any inferior proportion of the number. Proof from this source, (supposing all apprehension of mendacity out of the question,) will on all other grounds be preferable to that of extraneous witnesses, attesting or non-attesting. The transaction was their own: they are the less exposed to the danger of having forgotten it. The dispute relative to the transaction is their own: they need the less grudge the trouble of coming forward to give their testimony in relation to it. But (especially in the case where the death or unforthcomingness of one of the parties would leave mendacity on the other side without controul) it is partly on account of the danger of mendacity from such interested evidence, that recourse is had to the less suspected evidence of extraneous witnesses: and to parties, as well as to extraneous witnesses, it may happen at any time to die, or to be on any other account unforthcoming.

If the testimony of attesting witnesses is produced, the testimony of non-attesting witnesses will naturally be considered as superfluous. But if the authenticity be disputed, and be rendered more or less doubtful by the evidence or arguments adduced by the adverse party, and at the same time testimony of non-attesting witnesses happens to present itself; it cannot, it is plain, on the ground of superfluity, be excluded.

If, upon the face of it, the instrument appears to have been furnished with attesting witnesses, non-attesting witnesses cannot reasonably be tendered, unless some special cause (as hereinafter mentioned) be assigned for the non-production of any attesting witness. For, the attesting, the preappointed witnesses,—being, upon the face of the transaction, the chosen, and the only chosen witnesses,—cannot therefore but be regarded as more trustworthy than any witnesses taken without choice; unless some special reason be assigned, to show how it happened that this or that other witness, being also present, and being, by station in life, or character, more trustworthy than this or that attesting witness, was notwithstanding not called upon to put himself upon the list.

II. Authentication by circumstantial evidence.

4. The handwriting proved by similitude of hands, asserted by the testimony of a witness, who on other occasions has observed the characters traced by the party in question, while in the act of writing. Presumption from similitude of hands established by view of the act of writing. Presumption ex visu scriptionis.

5. The handwriting proved by similitude of hands, asserted by a witness, who, without having ever seen the party write, is sufficiently acquainted with his hand by correspondence: i. e. by having received from him letters, purporting (whether by their signature or by their contents) to be of his handwriting;* or by having seen other writings, which, by indications sufficiently persuasive, appeared to have been written with his hand. Presumption from similitude of hands established by view of other writings of the same hand: presumption ex scriptis olim visis.

6. The handwriting proved by similitude of hands, asserted by a witness, who, without any such previous acquaintance with the handwriting of the party as above, pronounces the handwriting in question to be the handwriting of the party, on a comparison made of it with other specimens of his handwriting, now, for the purpose of the comparison, produced to him for the first time. Presumption from similitude of hands established by comparison pro re natâ: or more briefly, presumption from comparison of hands—presumption ex comparatione scriptorum, or ex scripto nunc viso.

The two former modes may be characterized by the common description of authentication by acquaintance: the latter may be termed authentication by scientific opinion. The persons called in to give their opinions on a point of this sort, depose in the character of scientific witnesses. They will naturally be persons who, by office, profession, or pursuit, have been in the habit of regarding handwritings with a particular degree of attention, with a view to their authenticity or unauthenticity, their similitude or dissimilitude.

The handwriting of the party may (it is evident) form as proper a subject of authentication as that of any attesting witness. It is so even in a more direct way. It is only for the sake of establishing the concurrence of the party, that the attestation and deposition of the witness are called in. Suppose the authenticity of the party’s signature sufficiently established, that of the witness’s signature is not worth considering. The causes of suspicion which apply (as above) to the testimony of a party, extend not to his signature: the testimony to the presumed authenticity of the signature of the party is not his own interested testimony, but the uninterested testimony of an extraneous witness.

7. The authenticity of the instrument (the whole taken together,) inferred from the consideration of the person or persons in whose possession or custody it has been, from the apparent time of its origination,† to the time in hand, or such part of the intervening interval through which the possession of it can be traced. Presumption ex custodiâ.‡

8. The authenticity of the instrument (the whole taken together,) inferred from the consideration of its tenor, or say contents. Presumption ex tenore.

9. The authenticity of the instrument (the whole taken together,) exhibited by a subsequent indorsement: an entry made upon the back or other vacant part of the paper or parchment, in a hand purporting to be that of some official person, and expressive of the fact of its having, in the character of an authentic instrument, been subjected to his inspection in virtue of his office.* Presumption ex visu officiali.

By this species of evidence, the question in regard to authenticity is rather shifted off, than solved. Superinduced upon the original instrument is another piece of writing, which, as being a writing, requires authentication, as well as the original instrument. An indorsement of this kind may be considered as a supplemental written attestation added to the instrument, at a subsequent point of time to that of the execution of the instrument.

The memorandum in question, was it really written by or by the order of the person, by or by whose order it purports, upon the face of it, to have been written? It is only by circumstantial evidence, that to this question an answer can with propriety (at least in case of dispute) be given. By direct evidence, yes; if he be alive and forthcoming: but if he be, then, at an earlier or later stage of the inquiry, not any such circumstantial evidence, but this direct evidence, will, for the purpose in question, be the most satisfactory, and therefore the most proper, and ultimately the only proper, evidence.

In ancient times, when, by various circumstances connected with the immaturity of the human mind, forgeries were rendered much more easy and much more frequent than at present,—an incident not unfrequently exemplified is that of an official person visiting the written instruments deposited in this or that official receptacle, and (to serve as proof of their genuineness) writing or causing to be written upon each, a memorandum to the effect here spoken of.

Of the sort of apparent certificate or judgment here in question, the effect is, to declare the opinion of somebody, that the instrument on which it is marked was genuine—was not a forged one. If the principal, the substantive, document, be not incapable of having been taken for the subject or made the product of an act of forgery, neither is this subsidiary, this adjective, instrument. But forasmuch as, to each of any number of forgeries (especially if so many different hands, purporting to have been written at so many different times, be taken for the objects of imitation,) a separate set of difficulties stand opposed; the consequence is, that to any such apparent certificate if can scarcely happen to be altogether destitute of probative force. Some probative and authenticative force a document of this sort will always have, whereby, to the amount of it, it will make an addition to the intrinsic self-probative force possessed by the principal instrument itself—the evidence or presumption ex tenore.

As in the case of the original subject-matter, so in the case of this adjunct, evidence ex tenore, with evidence ex custodiâ for the corroboration of it, will in general be the only evidence on the ground of which a judgment concerning the genuineness of it can be formed.

To these it may now and then happen that the evidence ex collatione may be addable; viz. where, in the same repository, or in other accessible repositories, manuscripts which by their physical tenor appear to be of the same handwriting are to be found—manuscripts capable of being employed in the character of standard scripts.

In the three cases where the conclusion is founded on a supposed similitude of hands, the superiority in quality ascribed to the prior in order cannot with propriety be ascribed to it but under certain conditions and limitations.

1. As between presumption ex visu scriptionis, and presumption ex scriptis olim cognitis. If, of two witnesses, each has, within the same compass of time, seen an equal number (ten suppose) of scripts derived from the same hand,—of which two witnesses, one only had, in the instance of one or more of these scripts, been an eye-witness of the act of writing,—the evidence of him by whom that advantage had been possessed, could not but, in a theoretical point of view, be regarded as the better evidence. Why? Because the mode of cognizance that fell exclusively to his lot, is, with reference to each such object of comparison, of the nature of direct evidence: the other is but presumptive, circumstantial evidence. In a practical view, however, the difference can seldom be worth regarding; especially if the way in which the cognizance was obtained was that of epistolary correspondence. When, from an individual more or less known to me in person or by reputation, I receive a letter, bearing his signature—that is, when I receive a letter with a signature purporting to be that of a person known to me as above,—on what supposition can such a letter have emanated from any other hand than his? On no other than that of forgery: a crime not to be presumed, or so much as suspected, without special ground, in any single instance: much less, in a number of unconnected instances.

Suppose, on the other hand, the writings of the same hand seen by one witness in ten instances, without his seeing the act of writing in any of those instances; while, by the other witness, the act of writing was seen in one instance only, he not having seen any other writings of the same hand: in this case, the evidence of him who had never seen the act of writing, would surely be regarded as the most satisfactory of the two.

So likewise in the third case, as compared with the two former ones: the case of scientific evidence, as compared with authentication under favour of opportunities derived from acquaintance. If, in respect to qualification for forming a right judgment, any advantage be afforded by opportunities derived from acquaintance, it can only be by reason of the comparatively greater number of opportunities. The number of opportunities of this sort derivable from personal acquaintance may have been considerable in any degree, and, upon a general view of the subject, will naturally appear indefinite. The number of data of this kind put into the hands of a scientific witness on the occasion in question, or on any one occasion, for any one particular purpose, will seldom be considerable, and will always be definite. But—suppose the opportunities of observation equal in every respect, as between the witness speaking from particular acquaintance, and the witness speaking from general and appropriate science—the superiority naturally belonging to the latter, by reason of the superior intensity of attention, and the superiority of appropriate intelligence naturally resulting from it, will be sufficient in general to bestow upon the value of his opinion a decided superiority. The witness speaking from acquaintance has (for example) received from the individual whose hand is in question, ten letters, and no more: and that, suppose, in the compass of two years. Let these same letters be put all at once into the hands of a scientific witness, together with the writing to be judged of, the advantage afforded him by his science must be inconsiderable indeed, if it does not render his opinion on the subject of more value than that of the unscientific witness, judging from particular acquaintance.

The case in which the presumption from custody is most apt to be called in, is that where the deed to be authenticated comes under the notion of an ancient deed. Antiquity, in this respect, not being designative of any particular length of time, to the exclusion of all others,—to give precision to our conception on the subject, it will be necessary to particularize some determinate length of time, beyond which (reckoning from the day of the exhibition of the deed in evidence) it shall be deemed an ancient one,—say, therefore, thirty years. Of the lapse of such a length of time, a natural and frequent consequence is, that all means of authentication by particular acquaintance shall, to a person in the situation of the party having occasion to authenticate the deed, be unattainable. Here, then, comes in the presumption from custody. Here is a deed signed, having, for the name of one of the parties, the name of one of my grandfathers. I myself never saw him; consequently, never saw him write. I can think of no person now living, who, to my knowledge, ever saw my grandfather, or had any correspondence with him. But upon the death of my father, on taking a survey of his effects, I found in a box this amongst other deeds.

The presumption ex tenore is the medium authenticationis that remains to be resorted to when all others are unattainable: it is a proof, and the only proof, that can never be wanting. The presumption ex custodiâ includes it, and, implicitly at least, is grounded on it. When I conclude the granter of that deed to have been my grandfather, it is not merely because it was once in the custody of my grandfather, but because, from the tenor of it, it is a deed in which my grandfather, in his time, could not but have had an interest. But, though the presumption ex custodiâ cannot present itself unaccompanied by the presumption ex tenore, yet the latter may without the former: and it is for this reason that the two sources of authentication are stated as separate. By accident, it might have happened to the deed to have been found in a receptacle not within my custody: by accident, it might have been found in a public road or street, into which it might have fallen by the accidental disruption of a package in a vehicle to which it had been consigned: by accident, it might have been found in a chandler’s shop, into which it had found its way by negligence, amidst a bundle of waste papers.

By this single presumption, unassisted even by the presumption ex custodiâ, deeds and other scripts are, in various cases, considered as sufficiently authenticated, under the actually established system of jurisprudence. They are so, for example, in English jurisprudence. A deed which is considered as sufficiently authenticated by the presumption ex tenore, is, in the language of that law, said to prove itself. Such is the phrase, in the language of one of those classes of men whose self-complacency is never so exulting as when they triumph, or seem to triumph, over reason. To have said, the authenticity of a deed may be presumed in certain cases from the tenor of it, would have been to have stated, not only the decision itself, but the consideration on which its claim to be regarded as a proper one depends. In the expression, in certain cases a deed proves itself, a decision to the same effect is expressed; but, in the place of the reason, it gives a paradox—an absurdity, if not in reality, in appearance—a sort of appropriate and professional figure of speech, of the same stamp with those by which, in so many other instances, these professional men seek to hide their meaning from the view of other men, and on which they love to found their claim to the praise of superiority in science.

§ 3.

Modes of authentication in the case of written official and casually written evidence.

The principal points of consideration being thus stated under the head of private contractual evidence,—being that which affords them in the greatest variety, the two remaining classes of written evidence—official evidence and casually written evidence, will give us but little trouble.

I. Written official evidence. If, in the case of private contractual evidence,—evidence issuing from an interested and thence suspected source, authentication ex tenore appears satisfactory, much more may it in the case of official evidence—evidence from a source, generally speaking, untainted by interest, and therefore unsuspected. In the case of private contractual evidence, the circumstance of custody, though material in itself, and, for the sake of one or other of the parties, necessary perhaps to be brought to view, contains in it matter of suspicion as well as confidence. The deed, according to my statement, has, from the time of the date of it, been either in my own custody, or in that of some progenitor or predecessor of mine; and this custody I allege as an indication serving to show the person appearing upon the face of the deed as a party to it, to have been really so Good: supposing my statement in this behalf to be true; but supposing the deed fabricated or fraudulently altered by my hand, will not its having been in my custody be a still more necessary consequence? If, instead of having been in a custody thus open to suspicion, it had been in the joint custody of a set of official persons not capable of deriving any advantage from any such forgery, the presumption ex custodiâ could not but be much clearer of suspicion, much more satisfactory and conclusive. Hence, as already intimated, one of the main advantages and uses of official custody for the purposes of official evidence.*

2. Casually written evidence. The same modes of authentication which apply to the two just-mentioned modifications of written evidence, apply in general to this. Two exceptions alone, and those altogether obvious, present themselves. Attesting witnesses are out of the case: the characteristic property of preappointed evidence, and therefore of private contractual evidence, if exhibited according to preappointed forms, being to exhibit this source of authentication; that of casually written evidence, not to exhibit it.†

Persons casually present may happen to have been percipient witnesses of the act of writing, in the case of the unsolemn document, as in the case of the solemn one; but writing in general is not a social work. Epistolatory writing affects solitude; and so does the act of literary composition, as well as the act of making memorandums for self-regarding and domestic use. This is more particularly and obviously the case with regard to that large division of casually written evidence, which is most apt to be exhibited in causes of a penal nature, and consists of documents obtained through the indiscretion or negligence of the writer, and produced against him in the character of confessorial evidence.

Oral examination of the alleged writer of the script, is evidently, in a general point of view, the most eligible mode of authentication. It is plainly so in the relation of a means to the main end—the discovery of the truth. Supposing the writing to be mine, there can be no one of whom it can be so certain that he knows whose writing it is, as myself—that one percipient witness, who, in the nature of things, cannot fail to have been a percipient witness of the act. Other witnesses to it there may have been, or not been, as the case may be.

This first choice remains at the same time susceptible of exceptions; partly on the ground of practicability, partly on the ground of eligibility.

1. The writer himself may be unamenable to the commands of justice: either for ever, as in case of death, or incurable insanity; or for a time, certain or uncertain, as in case of expatriation, latency, sickness.

2. The writer may, in respect of the fact in question, be bent against the declaration of the truth. This fact may either have been already ascertained by experience, or may only be presumed, or deemed presumable: presumable, either on general grounds, from his station in the cause; as when he is defendant in a cause of a highly penal nature, and the instrument (supposing it genuine) is a document capable of serving as conclusive evidence of his delinquency: or on particular grounds; as, for example, his moral character,—particularly in respect of veracity, the quality particularly in question in this instance.

3. In respect of delay, vexation, or expense, the choice of the writer himself for the authenticating witness may be attended with a degree of inconvenience, such as, either in the whole or in part, may be avoided by resorting to some other witness.

CHAPTER IV.

MODES OF DEAUTHENTICATION IN THE CASE OF WRITTEN EVIDENCE.

In the question relative to authenticity, the affirmative proposition is, as already observed, except in here and there an extraordinary instance, the true one. The affirmative is, therefore, under that exception, the proposition that comes to be proved: the negative, not; except in the extraordinary instances just spoken of. But, since instances of this description, how extraordinary soever, are unhappily found to exist, hence an operation opposite to authentication comes sometimes to be performed. Correspondent, in good measure, to the list of modes of authentication, will consequently be the list of modes of deauthentication. In the main, they will consist of the negation, or the reverse, of the modes of authentication: but with some variations and additions, as the tenor of them will show.

Modes of deauthentication:—sources from which a persuasion that the document in question is spurious or falsified, may be obtained.

I. Direct evidence:—

1. Testimony (disaffirmative) of attesting witnesses: i. e. of persons mentioned in the instrument as attesting witnesses.

2. Testimony (disaffirmative) of non-attesting witnesses; i. e. of persons not mentioned in the instrument as attesting witnesses.

3. Testimony (disaffirmative) of the party against whom the document is produced, and who denies his having authenticated it; denies the handwriting to be his; or, if signed as if by him, denies the signature to be his signature.

4. Testimony (disaffirmative and confessorial) of the party by whom it is produced (viz. the party in the cause;) and who, on being cross-examined or otherwise, confesses, either that he himself bore no part in the document in question, or that the other supposed party to the transaction (whether a party to the suit or no) bore really no part in it; in a word, that in one way or other it is spurious; or that, if there are certain portions of it in which they respectively bore a part, there are others in which they respectively did not bear any part: that is, that, in respect of a certain portion or portions of it, it has been falsified.

5. Hearsay evidence: testimony of any person whatever (attesting witness, non-attesting witness, or party,) declaring himself to have heard (on the part of an attesting witness, a non-attesting witness, or a party, by or in whose favour the document is produced) a discourse amounting to an assertion of its being spurious, or having been falsified.*

II. Circumstantial evidence:—

1. Dissimilitude of hands, deposed to ex visu scriptionis.

2. Ditto, ex scriptis olim cognitis.

3. Ditto, ex scripto nunc viso; the document in question being now inspected by some scientific eye, and, on being confronted with other scripts indubitably from the same pen, pronounced dissimilar.

4. Ditto, from the appearance of its being a feigned hand.

5. Presumption ex custodiâ: the party producing it, or a person through whose hands it has passed, being the person who in case of success would be a gainer by having fabricated or falsified it, or procured it to be fabricated or falsified, to the effect suspected.

6. Presumption ex tenore: marks of spuriousness or falsification apparent on the face of it.

Indications of spuriousness or falsification, apparent on the face of a written discourse, may be presented either by the physical entities of which the signs are composed, or by the consideration of the discourse signified.

I. Indications afforded by the paper, parchment, or other substratum, on which the colouring matter is laid:—

1. Paper, if of a date known to be posterior to the date apparent on the face of the instrument, a certain proof of spuriousness.

2. Paper,—if in any part the surface exhibit a roughness and comparative thinness, such as would be produced by an erasure (i. e. the scratching of an edged or pointed instrument,)—a cause for suspecting falsification.

3. Paper,—if, in any part which appears to have been written upon (as, for example, in the middle of a line of writing,) a stain appears, such as might have been produced by a solvent, applied for the purpose of dissolving the ink or other colouring matter of which the characters are composed,—another cause for suspecting falsification.

N. B.—Indications Nos. 2 and 3, apply alike to parchment, vellum, or any other substratum consisting of skin.

4. Ink. If the colour of the ink, being uniform throughout, appear of a colour fresher than what (as supposed) it would have been if written at the time of the date, this freshness may be thought to afford some suspicion of spuriousness. Very little reliance, however, can safely be placed upon this circumstance. In respect of quality of colour, intensity of colour, and glossiness, the difference may be as great between two inks made at the same time, as between two inks made at different times.

5. Ink. If the appearance of the ink be different in different parts of the same writing, such difference may afford a ground for suspecting falsification. In this case, the reason may be considerably stronger than in the last preceding one. If, to an ink employed in the first instance, there succeeds another sort of ink, which continues to be employed to the end, scarce any cause of suspicion can be afforded by this change: the natural interpretation is, that the penman, not being satisfied with the ink, or perhaps with the pen that he found in one inkstand, betook himself to another ink, or to another pen that he found in another inkstand. The only case in which any considerable cause of suspicion can be deduced from this source, is that in which the different kind of ink appears in spots and patches, having ink of the first appearance on each side of it.* In this case, two other indications will be to be looked out for: 1. Marks of a discoloration or stain, or of roughness and thinness, according to the nature of the chemical or mechanical means employed for the obliteration of the preexisting characters; 2. The probable import and importance of the words obliterated, as deducible from the context.

II. Indications of spuriousness or falsification afforded by the nature of the discourse signified:—

1. In the script in question, mention (direct, or in the way of allusion more or less oblique) made of facts of later date; i. e. of facts that did not come into existence but at a time posterior to the date expressed on the face of the instrument. Facts; viz. things, persons, or events; or situations or other appearances of things or persons.*

2. In the script in question, words or combinations of words, or modes of spelling, known not to have been in use but at a time posterior to the date.

3. In the script in question, mention made of pretended facts, of the non-existence of which the individual in question is, from other sources, known to have been conscious: supposed facts, for example, inconsistent with other facts, of the existence of which he is known to have been conscious. In a deed (for example) recital of a fact, the falsity of which could not but have been known to him at the time. From this circumstance, it is evident, no indication of spuriousness or falsification can be deduced, any further than as the absence of mendacity on the part of the supposed author is assumed.

4. In the script in question, it being a contract (viz. either an instrument of conveyance or an instrument of engagement,) engagements or conveyances incompatible with prior conveyances made, or engagements entered into, by the individual in question, or known by him to have been respectively made or entered into by those in whose place, in that respect, he stands. From this circumstance, no indication of spuriousness or falsification can be deduced, any further than as the knowledge on his part of the disposition of law in this behalf, and the absence of improbity on his part in this respect, are assumed.

5. In the script in question, indications of a character manifestly superior or inferior to that of the individual in question, in respect of learning, intelligence, veracity, or any other branch of morality, as established by other writings, discourses, or actions of his, sufficiently ascertained. This indication is in a manner confined to scripts belonging to the head of casually written evidence, such as letters, memorandums, and literary compositions; in contradistinction to such as belong to the respective heads of private contractual evidence and official evidence.

6. In the script in question, opinions, affections, or tastes, manifestly opposite to those of the individual in question, according to information satisfactorily deduced from other sources. This again is in a manner confined to casually written evidence, as above.

7. In the script in question, the style, phraseology, or mode of spelling, manifestly dissimilar to those of the individual in question, ascertained from other sources. The idea attached to the word style being as yet extremely vague, the indication grounded on it will be proportionably vague. Another indication that applies principally to written evidence of the casual kind, as above.

8. In the script in question, the style or phraseology manifestly dissimilar to that in use in the office in question. This, upon the face of it, applies exclusively to official evidence.

CHAPTER V.

DISTINCTION BETWEEN PROVISIONAL AND DEFINITIVE AUTHENTICATION. RULES FOR THE LEGISLATOR AND THE JUDGE, CONCERNING THE AUTHENTICATION OF WRITTEN EVIDENCE.

Such being the possible modes of authentication,—next comes the inquiry, which mode on each occasion ought to be required?

For this purpose, a distinction must be taken, in the first instance, between provisional authentication, and definitive.

By provisional, I mean that evidence which may be received as sufficient for the authentication of the evidence in question, provided that no suspicion of its authenticity is expressed on the other side. By definitive, I mean that which, if satisfactory in itself, shall be deemed sufficient proof of the authenticity of the instrument, notwithstanding all protestations and contestacions on the other side.

For the purpose of provisional authentication (that is, in all ordinary cases,) that mode of authentication will be the most eligible, which in each instance can be employed with least vexation, expense, and delay. But, should the authenticity of the document be disputed on the other side—in a word, should it be accused of forgery,—in such case the subordinate consideration referring to these collateral inconveniences must give way to the superior consideration referring to the direct justice of the case: always supposed, that the imputation of forgery may not be allowed to be made through mere wantonness, much less in the express view of giving birth to those collateral inconveniences; and that, accordingly, in the case of mala fides or temerity, the burden of the inconvenience may rest ultimately on the head of the party to whose misconduct it owed its birth.

If the mode of authentication which is not needful but in case of contestation, be regularly employed where there is no contestation—where no doubt of the authenticity of the document is really entertained; and if, between the modes of authentication necessary in the two cases, there be upon an average any considerable difference in respect of vexation, expense, or delay; the aggregate mischief unnecessarily produced in those three shapes must be prodigious indeed. Among the writings of all sorts which come to be exhibited in a court of judicature in the character of evidence, if there be one out of a thousand in respect to which any such suspicion is really entertained, the proportion would prove much larger than I should expect to find it. Upon this supposition, in nine hundred and ninety-nine instances out of every thousand, this mass of inconvenience will be created without necessity or use, if, in pursuit of a phantastic idea of regularity, the employment of the definitive mode of authentication be insisted on, to the exclusion of the provisional mode: the most convenient, i. e. least vexatious, expensive, and dilatory mode, which might so unexceptionably have supplied its place. This oppressive plan of authentication we shall find established in English jurisprudence.

In the adjustment of the modes of authentication to be established in regard to written evidence, the leading points or ends require to be kept in view: on the one hand, satisfaction in respect of trustworthiness; on the other hand, avoidance of delay, vexation, and expense—the three inseparable modifications of collateral inconvenience.

Of these two ends, this first-mentioned being the main and principal end, has in general been pursued with a degree of preference, which would have been very proper, but that the sacrifices that have been made to it, at the expense of the triple collateral end, have been inordinate, and much beyond anything which good economy in this respect would be found to authorize.

The supposition upon which judges and legislators have proceeded, in the fixation of the modes of authentication which they have prescribed, has been that of a universal and constant disposition on the part of all suitors to commit forgery: or, if that supposition has not in every instance been actually entertained, it is the only one on which the modes prescribed are capable of being justified—the only one by which the price paid, in the shape of delay, vexation, and expense, for the supposed advantage in the shape of satisfaction in respect of trustworthiness, would not be recognised to be excessive and oppressive. If among a thousand cases in which the legal effect of a piece of written evidence is in dispute, there be not so much as one in which the authenticity of it is a matter of real doubt on the part of the suitor against whom it is produced,—it is only in the one case where it is matter of real doubt, that the price paid for authentication in the shape of delay, vexation, and expense, or all together, need be so considerable as to be worth counting. Under the existing system, there is scarce a cause in which it is not considerable, and in many a cause it would be found to be seriously oppressive.

Thus it happens, that for one grain of mischief produced, or that would or could be produced, by fraud in the shape of forgery, a thousand, ten thousand, are produced by fraud in the shape of chicane: of chicane, produced partly by the enmity of suitors, partly by the rapacity of their agents, abetted by that of the subordinate officers of justice: both passions protected and encouraged and engendered by prejudice and indifference on the part of judges and legislators. Familiarized with the spectacle of continual misery, generated according to rule and custom, and therefore on their parts without blame,—the reduction of the mischief to its minimum, the reduction of it so much as within any narrower bounds, never presents itself to them as worth regarding. Like so many other processes which go on as it were of themselves, according to pre-established and never-considered rules, the authentication of evidence is considered as a sort of mechanical operation, the pathological effects of which have no claim upon them for so much as a thought. Whence all this composure? For the observance of the established rules, the man in office is responsible: for the propriety of these rules—for their subservience to the ends of justice, he is not responsible.

To attempt in this place to combat the triple-headed monster by any proposed regulations of detail, would be to touch upon the topic of procedure: a general observation or two may serve to indicate the course. Authentication in the ultimate, and what may be styled the adverse, mode, ought, instead of being the routine of practice, to be the dernier resort, the extraordinary recourse. The process of authentication should be carried on, not at the time of trial, but between party and party, at a preliminary meeting, either in the presence of the judge, or before some inferior minister of justice, whose time can best be spared.*

The party who has a document to produce, produces it in the first instance to the adverse party, who either admits the authenticity of it, or declares his intention to contest it. If he admits it, he marks it as admitted. If he chooses to contest it, he has a right to do so, but he uses it at his peril—at the peril of simple costs in case of simple temerity, at the peril of extra costs in case of mala fides. The end in view is, in every instance, to save the suitors from the delay, vexation, and expense, of adverse authentication, in so far as these several inconveniences are avoidable. The means to be employed in the prosecution of that end, is the taking such arrangements as shall make it the indisputable interest of every individual concerned, each in their several stations (parties, agents of parties, officers of justice of all classes,) to abstain from giving birth to these several inconveniences, any further than as they are necessary.

The virtual penalty inflicted on this occasion by imposition of costs with the above views, should not depend on the ultimate decision of the cause, but should be infficted pro unaquâque vice, for each act of authentication unnecessarily performed. Otherwise, to the enmity of a suitor who was persuaded of his having the law on his side, the proposed remedy would apply no check. The principle would remain unapplied, unless, to each particular act of vexation, its own particular penalty stood opposed.

On the subject of the supposed proportion between the number of the cases in which suspicion of spuriousness has not existence, and that of those in which it has existence, one observation there is, which, to every person to whom the practice of technical procedure is familiar, will be almost sure to present itself.

“Number of cases,” says the objector, “in which no suspicion of spuriousness is entertained, nine hundred and ninety-nine; be it so: number of cases in which suspicion of that sort is really entertained, one, and no more; be this likewise, for argument’s sake at least, admitted. But, in addition to the one case in which any such suspicion is really entertained, what is there to prevent the bringing forward a pretence of suspicion, in an indefinite multitude of other instances? and in particular (for example) in every instance in which the party who is in the wrong (suppose the defendant) has more to gain than to lose by the delay, or, on either side of the cause, entertains a hope of forcing his injured adversary out of the field of litigation by the pressure of the expense.”

The answer is: The state of things on which the above question grounds itself, is the existing state of things under the reign of technical procedure. But, in respect of the matter in question, the state of things here supposed is exactly opposite.

It being the policy of the existing state of things (for the sake of giving every practicable increase to the number of causes, and to the profit extractible from each) to give every possible increase to the number of malâ fide defences and demands, as well as to the number of the operations performed, and to the number and length of the instruments exhibited, on the occasion of each such suit, bonâ and malâ fide such taken together—and, to that end, to afford to wilful falsehood and insincerity, in every imaginable shape, every practicable facility and encouragement,—falsehood and insincerity in the parties litigant have accordingly been exempted, with little exception, from the check of counter-interrogation in every shape, and without any exception, from the check of counter-interrogation in the vivâ voce shape.

But, in the state of things here in question, whatsoever, on this or on any other subject, were said by a party on either side of the suit or cause, would be said under the influence of whatsoever securities for correctness and completeness are or would be applied to the case of an extraneous witness: under the influence of vivâ voce counter-interrogation at any rate: under the check of an oath, if, notwithstanding the objections brought forward in this work against that ceremony, it were thought fit to be retained; if not, under the check of a solemn and deliberate averment.

A party contestant would no more have it in his power to reap any advantage from a naked averment, declarative of a belief on his part in disaffirmance of its genuineness, or of a suspicion of its spuriousness, than the party exhibitant could do, from a naked averment, declarative of a belief on his part in affirmance of its genuineness. Each would alike be liable to be called upon (and under the same securities for sincerity as in the case of any extraneous witness) to state, in the most explicit manner, the grounds of the persuasion professed by him to be entertained.

To rash, as well as to mala fide contestation, various are the other checks that might be, and, if the ends of justice were the objects, naturally would be, applied. If, for example, by the production of a source of evidence, the needfulness of which (after the mutual explanations in question) appeared more or less doubtful to the judge, delay and expense to a certain amount would manifestly be necessitated,—not only would eventual compensation for the damage by such delay be secured, as well as the expense attendant on the production of the evidence in question cast of course upon the party by whom the production of it was thus insisted on;—but if, by the exhibition of this evidence, a demand for counter-evidence to be exhibited by the adverse party were produced, the expense of such counter-evidence might provisionally be charged, in the first instance, upon the party thus insisting: rather than that by such means it should be in his power to oppress his adversary, by exhausting his means of maintaining his post in the field of litigation—his means of pursuing, in the character of plaintiff, his own claim, or repelling, in the character of defendant, that of the party on the other side.

In some cases, for the purpose of provisional authentication, instead of the executed, or rather say recognised, instrument, a transcript, or an archetypal draught,* may be employed.

Several cases may be mentioned, in which, supposing less delay, vexation, and expense, to be necessary to the adequate authentication of this succedaneous script, than to that of the proper instrument, the substitution may be employed with advantage.

Note that, for the purpose of discussion, on the ground of the contents, subject to eventual correction, the succedaneous script may serve exactly as well as the proper instrument.

If, in so far as, under the contract in question, the dispute turns upon the point of law, the question of law is decided against the exhibitant (plaintiff or defendant,)—the delay, vexation, and expense, of which the exhibition of the proper instrument would be productive, may, if worth saving, be thus saved.

Supposing that there is no question of law, or, if there be, that the question is decided in favour of the exhibitant: in either case, allowance of his claim follows of course, upon the supposition of the conformity of the succedaneous script thus exhibited to the proper instrument, of which the genuineness as well as the existence is thus, provisionally at least, supposed. Supposing the exhibitant to be the plaintiff: in this case, upon the authority of this succedaneous script, even possession might be delivered to him, if adequate security be given by him for eventual restitution ad integrum; i. e. for putting the adversary in a plight in every respect as good as if the possession had not been changed.†

Of the actual execution, and thence of the genuineness, of the proper instrument (so likewise of the correctness and completeness of the succedaneous script,) even in case of contestation or doubt,—for saving of delay, vexation, and expense, evidence less conclusively probative than for the purpose of a definitive decision might be necessary, might, for the purpose of a provisional decision, be received on either side.

Even if contested, a script which is authenticated ab intrà (i. e. which, on the face of it, presents the signature of the apparent author, affixed to it for the evident purpose of authentication) need not be authenticated ab extrà in the first instance. Why? Because, unless it be supposed to be tainted with forgery, its authenticity cannot appear dubious. But delinquency ought not in any case to be presumed without special ground; much less delinquency of so high a cast.

Inability to effect the authentication of a script on or before a certain day, need not—ought not, to be rendered so much as a cause of delay, much less of ultimate miscarriage. The decision—a decision in all other respects ultimate—might be made provisional, dependent upon the subsequent authentication of the instrument on or before a day to be named: nor need even that nomination be so inexorably peremptory, as to allow accident, much less fraud, to triumph over justice.

Note that, in all these cases, the advantage and propriety of giving admission (provisional admission and effect) to such succedaneous evidence, depends upon the relative quantity of the inconvenience saved by it, in the shape of delay, vexation, and expense. But let it not be forgotten that to this quantity there are no limits, other than those of the earth’s circumference.*

Note, moreover, that, so far as concerns written evidence (including the fact of its genuineness, and the nature of its contents,) the savings capable of being made in case of contestation, would, the whole mass of them put together, be inconsiderable, in comparison with that which, in the case of the supposed proper script, upon a call made by the party exhibitant, would have place, by reason of admission without contestation, as above.

To these savings in the shape of delay, vexation, and expense, may be added a saving that, in the account of an honest man, will not be regarded as fit to be neglected—a saving in the article of improbity: improbity on the part of the parties and their professional advisers, improbity on the part of the judges, improbity on the part of the custos morum, improbity on the part of the keeper of the royal conscience.

In the ordinary intercourse of life, a man to whom it has happened to deny his own handwriting, is pointed at as a man of lost character; and to such a degree lost, that, to a person to whom the like loss is not a matter of indifference, it may be scarce safe to associate with him.

On what ground is it that, for such a mode of conduct, a man is thus consigned to infamy? On this, or on none, viz. that in this way he was knowingly and wilfully guilty of falsehood—wilful and deliberate falsehood for the purpose of injustice.

The man by whom his adversary in litigation is loaded with the delay, vexation, and expense of proving (as well as exposed to the peril of not being able after all, in the teeth of so many opposing quirks, to prove at any expense) the genuineness of a document, of which there exists no real doubt;—literally speaking, and to outside appearance, this man does not commit the falsehood that would have been committed had the question, “Is the genuineness of this document matter ofdoubt to you?” been put and answered in the affirmative. The falsehood is not committed: but what is committed is an injustice—an injustice which, in point of mischievousness, is exactly upon a level with such falsehood—the injustice, in which such falsehood would have found its sole object, and its sole advantage.

The falsehood has not been committed: but why has it not? Only because the judges (in whom the practice in this behalf has found its creators and preservers) have taken such good and effectual care to secure, to every dishonest man who in this way finds his account in making himself their instrument, the benefit of such falsehood; without that risk, which, had the eventual necessity of it been left subsisting, would have constituted the expense of it.

In so far as concerns justice and veracity, there are two codes of morality that in this country have currency and influence;—viz. that of the public at large, and that of Westminster Hall. In no two countries can the complexion of their respective legal codes be easily more opposite, than that of those two moral codes, which have currency, not only in the same country, but in the same societies: and, if so it be, that, in the public at large, the system of morals that has place in practice, is, upon the whole, honest and pure,—it is so, not in proportion as the morality of Westminster hall (of which so many samples have already been, and so many more will be, exhibited) is revered and conformed to, but in proportion as it is abhorred. So far as concerns love of truth and justice, the greatest but at the same time the most hopeless improvement would be, the raising of the mind of a thorough-paced English lawyer, on a bench or under a bench, to a level with that of an average man taken at random, whose mind had not, for professional views and purposes, been poisoned with the study of the law: as, on the other hand, in point of sound understanding and true wisdom, the raising the same sort of mind to a level with that of a man of competent education, of the nature of that to which the term liberal is commonly applied.

Yes: it is from novels such as Maria Edgeworth’s, that virtues such as the love of justice and veracity,—it is from the benches, the bars, the offices, the desks in and about Westminster Hall, that the hatred of these virtues, and the love of the opposite vices,—is imbibed. But that which to Maria Edgeworth was not known, or by Maria Edgeworth was not dared to be revealed, is the genealogy of her Lawyer Case: that that very ingenious and industrious gentleman had for his elder brother the Honourable Charles Case, barrister at law, M. P. in the lower house; and both of them for their father the Right Honourable the Lord Chief Justice Case, Christopher Baron Casington, in the upper: and that it was only by executing the powers given or preserved to him, and earning the rewards offered and so well secured to him, by his noble and learned father, that the younger son became what he was.

How long, for the self-same wickedness, shall the inferiors in power and opulence—the inferiors who are but instruments—be execrated, and the superiors, who are the authors of it, adored? Attorneys, solicitors,—were they the makers of judge-made law?—were they the makers of the system of technical procedure?—were they the makers of the law of evidence?

CHAPTER VI.

ABERRATIONS OF ENGLISH LAW IN REGARD TO THE AUTHENTICATION OF WRITTEN EVIDENCE.

The distinction between provisional and definitive authentication is unknown to English law. In all cases alike, it insists upon having the authentication performed in the same mode; without allowing of any exceptions on the score of vexation, expense, or delay. It presumes all mankind to be forgers; and, where there is forgery, affords no facilities for the detection of it. It guards against deception where there is none to guard against; and where deception is at work, interdicting the interrogation of the suspected person, it interdicts the most efficient means of scrutiny.

Previous meeting between the parties, for the purpose of ascertaining whether any and what documents presented by one party are contested by the other, there is none: disputed or not, the authenticity of every document must be proved.

True it is, that, for saving of delay, vexation, and expense, sometimes it does happen, that on one or both sides the genuineness of this or that instrument of contract or other script (or, as it may happen, of all the scripts meant to be exhibited,) is admitted.

But it is only in so far as, on both sides, or (if it be an equity suit or cause) on all sides—and that to an indefinite number, all persons concerned, law advisers as well as suitors, are honest—and not only negatively honest, but completely and actively and zealously honest,—that any such admission, with the consequent savings, can have place. If, by any such admission, a law adviser were to prevent his client from reaping any advantage which by the refusal of it might be obtainable (whether for want of the adversary’s being able to procure the evidence, or by thrusting him out of the contest by the intolerable pressure of the expense,)—his conscience would hardly acquit him of treachery, in betraying his client’s interest.

“Not so,” says somebody: “for, by the fear of eventual costs (i. e. of the eventual obligation of reimbursing the costs on the other side,) a dishonest, no less than an honest, man may be restrained from giving increase to such costs, though it be on the other side.”

True, if every man were his own lawyer: but, under the reign of technical procedure, no man ever is, or with any the smallest chance of success can be, his own lawyer: and, so long as the system of procedure remains on that level in the scale of unintelligibility, to which it has been raised by the undiscontinued exertions of so many ages, the quantum of each man’s burthen in this shape will always depend upon the sort of man, whose interest it is that it be as heavy as possible.

In this state of things, for the keeping down of superfluous expense on the part of the client, no degree of honesty on his part would suffice, without that sort and degree of honesty on the part of his law adviser, the existence of which (unless here and there, by great good fortune) under such encouragement as is given to him to be dishonest, it would be altogether absurd and idle to expect.

Without the preliminary meeting above spoken of, it is physically impossible that, in relation to the matter in question, justice, or anything approaching to it, should be done. Injustice, in the shape of needless delay, vexation, and expense, if not in the shape of actual misdecision, is unavoidable.

But although, without the aid of this arrangement, it is impossible that wrong should not be done, yet there are degrees of wrong; and, in instances to a great extent, wrong, over and above what was rendered necessary by the absence of this arrangement, will actually be seen to be done.

From the determination taken to put an exclusion upon that which is not only the best evidence, but the least burthensome evidence, viz. the evidence of the parties, follow—1. (in violation of the dictates correspondent to the direct ends of justice) two opposite mischiefs; not only groundless exclusion, but rash and insufficiently guarded admission; and 2. (in violation of the dictates correspondent to the collateral ends of justice) enhancement of the necessary burthen—an enhancement, to the amount of which there are no assignable bounds: nor let it ever be out of mind, that—whenever the expense which presses upon him who has right on his side, swells beyond endurance—misdecision, to the destruction of his right, is the consequence; and the evil opposite to the direct ends, is either substituted or added to the evil opposite to the collateral ends, of justice.

I. Exclusion put upon the testimony of parties; viz. even at the trial.

II. Exclusion put upon the testimony of non-attesting witnesses.

III. Admission given to instruments without authentication;—i. e. admission given, without other proof, to an instrument purporting upon the face of it to be of a certain age; viz. thirty years old or upwards.

IV. Inadequate mode of bringing to view the supposed contents of a script in possession of the adversary.

For exemplification of the mischievousness, absurdity, and inconsistency (not to say improbity,) by which the practice in relation to this subject is characterized, a brief observation or two under the above several heads may suffice. But so full of complication, self-contradiction, and uncertainty, is this same practice, that the idea given of the chaos by the few samples of it thus brought to view, is little less inadequate than would be the idea of a house, by the like number of bricks picked out of it.

I. Exclusion put upon the testimony of parties; viz. at the trial of the cause.

In regard to the species of fact here in question, as in regard to every other, the most satisfactory, and on every account beyond comparison the most eligible, evidence (need it again be said?) is that of the parties;—viz. in relation to each fact, that one of the parties against whom it makes.

By the exclusion put upon the preliminary meeting, this evidence stands excluded, from the commencement of the cause. And when, at the end of half a year, or a whole year, or some number of years, from the day of the commencement, that inquiry which ought to have begun, and in most instances would have been concluded on that same day, is, under the name of the trial, suffered to take place,—upon this same best evidence is an exclusion again put, by means of another exclusionary rule.

In the eye of common sense, this is the best evidence possible. In the eye of the law, it is no evidence at all: therefore not the best evidence. For, on this part of the field, when exclusion is the object, out of the word best is formed the basis of the pretence.

Always excepted (I mean from the exclusionary rule) the case where an extra price, and that a most enormous one, is paid for opening the door to that which otherwise would be the excluded evidence; viz. at the equity shop and elsewhere. By the immesurable and profitable addition thus made to vexation and expense together, coupled with the comparative badness of the shape in which the evidence is extracted, the objection which would otherwise have been so peremptory, is now removed.

Rather than give admission to that best and most satisfactory of all evidence, no evidence so loose and unsatisfactory but that admission will be given to it: in the case of an instrument of contract, for example, proof (i. e. what is called proof—viz. mere circumstantial evidence) of the genuineness of a couple of words purporting to be the name of an attesting witness. Look at these words, viz. John Smith. Did you ever know any person who ever bore that name? Yes.—Did you ever see him write, or receive letters which you understood to have been written with his hand? Yes.—Judging from these opportunities, do you believe these words to have been written by him? Yes.

True it is, that, when no better is to be had, the exigence of the case necessitates the reception of this loose—this circumstantial evidence. But, when the case affords not only direct evidence, but the most trustworthy of all direct evidence,—to exclude that best evidence, and admit this loose evidence instead of it! How inexplicable the folly, were it not for the sinister interest that lurks at the bottom of it!

Wounded by the rule itself, justice is again wounded by the evasions of the rule.

1. Three obligors jointly bound in a bond. Proof by extraneous witnesses (it must be supposed) being somehow or other unobtainable, one of the obligors is called to prove the execution of it. But, for this purpose, he must have been left out of the action, and the recourse against him lost.* Just as it happens in penal cases, where one of two malefactors is let off, that his testimony may be employable against the other.

2. If a subscribing witness is become infamous,—on producing his conviction, his hand may be proved as if he were dead. Here inferior evidence is let in, to the exclusion of the best: circumstantial, to the exclusion of direct. So much for security against deception. Moreover, the conviction must be produced: a lumbering record lugged in, at a heavy and unnecessary expense, to prove a fact in itself notorious, and capable of being sufficiently proved by less expensive means; and which, after all, cannot be sufficiently proved by this means. John Brown was convicted; true: but how does the dead parchment prove that it was the same John Brown?†

3. So, when an attesting witness, being the only surviving witness, had become interested, without any prejudice to his character, his hand was allowed to be proved by somebody else, on the presumption that he himself would have denied it.‡ Pre-established rules apart, the experiment might have been tried, at least; and if he had perjured himself, then might it have been time enough to encounter the perjury by other evidence.

II. Exclusion put upon the testimony of non-attestors.

Witnesses to the number of half a dozen or half a score, all of them unexceptionable, are ready to be produced; each of them ready to say, “I saw the several parties attaching their respective signatures to this instrument, saying (each of them,) I deliver this as my act and deed.”

Quibbleton, counsel for the defendant, addressing himself to the first of these witnesses: What is your name?

Answer. John Stiles.

Quibbleton. My lord, here is the deed:—two (your lordship sees,) and but two, attesting witnesses; neither of them is named John Stiles.

Judge. Set aside this witness.

Half a dozen or half a score, all of undisputed character, all ready to speak to this plain fact, and not one of them permitted.∥ Why not permitted? Answer: Because, in the first place, if permitted they would all perjure themselves: in the next place, having thus perjured themselves, they would all of them, in spite of counsel’s cross-examination and judge’s direction, obtain credence. Two persuasions these, neither of them (it is true) avowed, because, when absurdity or improbity enter upon the stage, they do not, either of them, present themselves stark naked. But, to give to the exclusion so much as the colour of being conducive to the ends of justice, these persuasions must both of them be entertained; or, at any rate, of the matters of fact respectively predicted by them, the certainty, or (to speak with a degree of correctness new as yet to lawyers’ language) the preponderant probability, must be assumed.

But, supposing these persuasions entertained, on what ground is it that they must have been entertained? On this ground, and no other, viz. that the names of these persons are not to be found upon the face of the instrument, in the character of attesting witnesses.

Exists there, then, any article of law, by which it is required (on pain of nullity, or any other pain,) that, upon the face of every deed of the sort in question (wills being out of the question,) there shall be visible the names of two persons in the character of attesting witnesses? No: neither of any article of real (i. e. legislative) law, nor so much as any rule deduced in the shape of judge-made law.

On what ground, then, stands the rejection? Answer: On this ground, viz. that—when the name of a person, purporting to have been written by him in the character of an attesting witness, is visible on the face of the instrument—the testimony of any number of persons who (if they are to be believed) actually saw what it is there declared that this man saw, is not, with relation to the fact in question, the best evidence.

Non-Lawyer. What?—The evidence being good enough to produce a complete (or at least preponderant) persuasion, in this case,—by the mere circumstance of its not being the very best imaginable (admitting, for argument’s sake, that it is not the very best)—by this one circumstance, is any sufficient ground afforded for shutting out this evidence, when there is no other? and when, in consequence, if this be shut out, the party who has right on his side must lose his cause?

Lawyer. Oh! but where, there being upon the face of the deed an attesting witness, he is not produced, but instead of him others are produced whose names are not upon the deed, here is an omission: from which we draw a conclusion; and the conclusion is, that, had the attesting witness been produced, his testimony would have been against the genuineness of the deed.

Non-Lawyer. And on this conclusion it is that you build the two other necessary conclusions, viz. that the non-attesting witnesses, being all of them so many intended perjurors, would all of them have affirmed the genuineness of the deed, the fact being otherwise, and, thus falsely affirming it, would have gained credence!

With submission, suppositions of a contrary tendency might be raised in any number,—any one of them less improbable than the above. Take half a dozen, or so, for examples:—

1. We know not where to look for the attesting witness: we know not who he was: we know not whether he be alive or dead.

2. We know indeed who he is, and where he is; but he is not within the jurisdiction of the court.

3. He is, indeed, within the jurisdiction of the court; and the place where he is, is known to us: but that place is far distant; and we,—who, at our peril, on pain of losing his evidence, and along with it (it now seems) our cause, were bound to advance to him whatsoever money, in case of dispute, should be deemed sufficient to defray the necessary and proper expense of his journey to and fro, attendance, and demurrage, whatsoever that might be—could not either find of our own so much money, or borrow it;—your laws against usury forbidding a man, in recompense for any risk, or for the relief of any exigency, to accept of any extra price.

4. Yes; we do know who he is: and it is because he was so well known to us, that we took care not to call him. He is a dishonest man, an enemy to us, and in league with the parties on the other side. After having promised or not promised to come, he would, after all, come or not come, according as, in their view of the matter, it would be best for them that he should or should not come. If he did come, he would deny his own handwriting: I know nothing about the matter, he would say: it was not by me that this name was written.

By counter-evidence, or even by counter-interrogation, it might have been possible for us, notwithstanding, to extract from him the truth of the case; and the more so, because, in the presence of two other persons (who are not, however, either of them, at present within our reach,) once upon a time he did declare and confess, that the name in question was really written by his hand. But both these means of coming at the truth we are debarred from, by another of your rules; viz. the rule, by virtue of which, merely because we are unfortunate enough to stand thus in need of his evidence,—of this enemy of ours, it is said by you that he is our own witness; and that, because he is our own witness, he must not by us be contradicted, or so much as questioned. Whatsoever may tend to the bringing him to view in this his true character, whether it be counter-interrogation or counter-evidence, we are thus forced by you to suppress.

Independently of regulation—positive and effectually notified regulation—it is difficult to say what there is that should determine the choice of the party in favour of a supposed attesting, to the exclusion of (or even in preference to) a non-attesting, but by him equally known to have been a percipient, witness. True it is, that, by the signature of the attesting witness, proof is so far given, that in relation to the transaction in question he was a percipient witness. Yes: but is it a proof that no other person was? a proof, too, which, by those who know that the contrary is true, is to be regarded as a convincing one?

The attesting witness would cost (suppose) so much money to produce: the non-attesting witness may be had for a few shillings less. This, in the eye of a considerate, and especially in the eye of a poor man, honestly advised, should suffice to give the preference to the non-attesting witness. The attesting witness would, after all expenses paid him, suffer inconvenience (suppose) from the attendance: the non-attesting witness would not suffer any inconvenience. This, in the eye of a humane and considerate man, should suffice for securing the like preference.

Oh! but we have a rule about the best evidence; viz. that in no case shall any evidence be received but the very best which the nature of the case admits of.

Preciously instructive rule! We receive no evidence but what we receive: for anything more precise, or intelligible, or wise, or honest, than this, will not be found in it.

No evidence do we ever receive, other than the best evidence. And what is the best evidence? Answer: It is, on each occasion, that which we receive as such.

They know not, themselves, what their own rules are. Strange indeed it would be if they did: for, that which has no existence, how is it to be known to anybody? They know not themselves what their own rules are, they resolve that every other man shall know them: that is, without the possibility of knowing them, shall, as often as occasion offers, be punished for not knowing them.

Nemo tenetur ad impossibilia, says another of their maxims. But in any one of their maxims, so sure as there is anything good, so sure is practice opposite.

Once more: Partly upon the source, partly upon the shape, depends the goodness of an article of evidence. As to the shape; in so far as depends upon themselves, in none but the very worst shape (come it from what source it will) do they receive any evidence: and, so it be in this worst, but to themselves most profitable, shape, no source so impure but that from that bad source they are ever ready to receive it. Yet, such is their delicacy, that (as if for evidence, as for meat, there were a market, at which, with money in his hand, a man may pick and choose) none, forsooth, will they put up with, but the very best of evidence.

III. Admission given to instruments without authentication.

By the man of law, whenever you see a gnat strained at, on a second glance make sure of seeing a camel taken up and swallowed.

Behold an instrument, for the authentication of which, to-day, a whole score of witnesses, who (every one of them, if they are to be believed) were percipient witnesses of the execution of it (they not being attesting witnesses,) will not suffice: it is accordingly dealt with as if it were forged. Wait till to-morrow, this spurious deed becomes genuine: and so plainly genuine, that, for the proof of its genuineness, no evidence is required.

This metamorphosis, who was the god that operated it? Answer: The god Time. Yesterday the script wanted a day of being thirty years old: to-day the thirty years are fulfilled.

This admission has neither quite so much absurdity in it, nor quite so much mischievousness, as the exclusions. The instrument, if it be not what it purports to be, is a forgery. Forgery, a flagitious and pernicious crime, is not to be presumed. Independently of particular argumentative grounds, the odds against the fact, as testified by experience, are prodigious: for every forged instrument, you have genuine ones by thousands.

Not but that to this crime (by the exclusion put upon the interrogated testimony of the party by whom or in whose behalf the instrument is produced) every encouragement has been given, which it has been in the power of Judge and Co. to give to it. Suppose the party to have forged it: he puts it silently into the hands of his lawyer, and it is the lawyer’s business to fight it up. At the lawyer’s elbow, if so it please him, sits the forgerer. There he may sit till he is tired, for he is in no danger: the law has taken him under her care; not a single question can be put to him.

Convenient as this law is to every criminal, to an honest man it may happen but too frequently to be laid by it under an embarrassment, out of which it seems not altogether easy to say how he is to be delivered.

The instrument purporting, upon the face of it, to be thirty years old, or more,—this antiquity, coupled with possession (i. e. with the relation borne to the suit or cause, or to the fact in question, by the individual in whose possession it has been,) is accepted as evidence sufficient for the authentication of it. But the individual (suppose) in whose possession it is, is the plaintiff; and, for the whole of the time that has elapsed since the execution of it, or for a part more or less considerable of that length of time, he has kept it locked up in his strong box: not having in all that time shown it (because in all that time no occasion has called upon him to show it) to any person who is without interest in the suit or cause. By whose testimony, then, is the custody of it to be proved? By his, the plaintiff’s? Oh no: that would be contrary to the inviolable rule. But if not by his testimony, it cannot—by the very supposition it cannot, be proved by that of any one else.

Yes, if he had had information, timely information, of the existence of this rule of law; for in that case he might have got this or that uninterested person to look at it. But if any such information had reached his mind, the care and pains taken by Judge and Co. for so many centuries to keep it out of his reach would have been frustrated. By keeping them from receiving existence, in and from any determinate form of words, care has been taken, very effectual care, that neither by non-lawyers, nor by lawyers themselves, shall any of these portions of imaginary law be laid hold of by inspection. By their uniform repugnance to every conclusion that would be drawn by common sense, care not less effectual has been taken that they shall never have been laid hold of by inference or conjecture.

If, in this case, the exemption granted from the obligation of authenticating the document by evidence ab extrà is proper, it can only be because, in the other cases, the obligation is itself improper, as being needless. Forgery is not the crime of any particular point of time: whatever be the probability of it at this present day, it was not less on this day thirty years. A deed purporting to have been fairly executed thirty years ago, may have been forged or falsified at the time of the date, or at any rate may have been forged or falsified at any subsequent point of time. Forged writings, of an apparent date two hundred years anterior to the real date,* —forged writings ascribed to Shakespeare,† have been known to deceive the very elect among English lawyers.‡

IV. Shifts, when the script is in the power of the adversary.

The hostility of the technical system to the ends of justice—the consciousness of that hostility, on the part of those who, while they are acting under it, are profiting by it—the violation at the same time so continually offered by themselves to the very principles to which by themselves the highest importance is attached,—all this may be seen exemplified in a case which shall now be brought to view.

When the article of written evidence, which the party in question stands in need of, happens to be in the hands of a party on the other side; when an instrument which a plaintiff (for example) stands in need of, happens to be in the possession of the defendant; the sort of shift that has been made is truly curious.

Under a rational system of procedure, the course is plain and easy: the evidence acted upon is of the best kind imaginable. Both parties being together in the presence of the judge, the plaintiff says to the defendant, “To make out my case, I have need of such or such an instrument,” describing it: “you have it; have the goodness to produce it.” “Yes,” says the defendant (unless his plan be to perjure himself,) “and here it is:” or, “I have it not with me at present; but on such a day and hour as it shall please the judge to appoint, I will bring it hither, or send it to you at your house, or give you access to it in mine.”

Under the technical system, no such meeting being to be had, no such question can at any such meeting be put. But, at the trial (viz. under the common-law, alias non-equity, system, of which jury trial makes a part,) at the trial, that is, after half a year’s, or a year’s, or more than a year’s, factitious delay, with its vexation and expense,—then it is, that, for the first time, a chance for procuring the production of a necessary instrument may be obtained.

Though, neither for any such purpose nor for any other—neither to the party on either side nor to any agent of his—can anything in the shape of a question be put vivâ voce by a party or agent on the other side,—the question (for example,) the instrument (describing it,) have you it, or no?—yet, under the name of a notice, a sort of requisition in writing calling upon him to exhibit it, may be, and every now and then is, delivered. Of this notice to exhibit the instrument, what is the effect? That the defendant is under any obligation to exhibit it? No such thing. To produce any such effect would require nothing less than a suit in equity; whereupon the instrument would be exhibited or not: and if exhibited, not till the end of the greatest number of years to which the defendant (having an adequate interest) had found it in his power to put off the exhibition of it. To have enabled the party thus far to obtain justice without aid from equity, would have been robbing the Lord Chancellor and the Master of the Rolls, and the swarm of subordinates of whose fees the patronage part of their emolument is composed.

What, then, is the effect? Answer: that, after this notice, if that best evidence which is asked for be not obtainable—not obtainable, only because those on whom it depends do not choose it should be obtained,—what is deemed the next best evidence that happens to be in the plaintiff’s possession is admitted: and on this occasion no evidence is too loose to be admitted.

After such notice given, one succedaneum that has been admitted is a supposed transcript: “an examined copy,” are the words. Another is, “parol evidence of the contents.”*

In the midst of all this laxity, observe and admire the strictness: “In case it be a copy that is offered, it must first be proved, that the original, of which it purports to be a copy, was a genuine instrument.” So much the more business for the benefit of the man of law: so much the more chance of failure, for the benefit and encouragement of the wrong-doer.

But suppose no such copy producible;—the best and only evidence which it is in the plaintiff’s power to produce, being, as above, “parol evidence of the contents;” i. e. some account given of the supposed contents of the supposed instrument, by a person into whose hands, by some accident or other, the opportunity of bestowing upon it a perusal more or less adequate—of throwing over it a glance more or less slight, and thus giving an account of it more or less correct and complete,—has happened to find its way.

This casual reporter,—for his report to be received, is it necessary that he (or, in his stead, the party by whom he is called in) should have established in due form the genuineness of the instrument, which, for ever so short a time, chance had thus thrown into his hands?

In this one point may be seen a mine, a rich mine, of future causes.

Behold now another mine. The two sorts of makeshift evidence, thus brought to view in the case of a deed,—viz. a supposed transcript (copy examined or not examined,) and parol evidence of supposed contents,—shall they apply, and under any and what modifications, to any and what other sorts of scripts?

Delight paints itself on the countenance of law, at the thoughts of such a mine of nonsuits, and, to the lawyer at any rate, if not to the client and suitor, of agreeable surprises.

Good all this, as far as it goes; when so it is that a man’s good fortune has put into his hands any such makeshift evidence. But if not, what in that case becomes of the notice? In that case, the wrongdoer triumphs: the party who is in the right loses his right, whatever it may be; and so the matter ends.

Did but the judge deign to admit at the outset into his presence, the persons whose properties and liberties he has contrived with so little trouble to dispose of,—whatsoever were the instrument wanted, if it were not found in one of two hands in which it was expected to be found, it would be in another: every instrument that was necessary to justice would be ferreted out: as it actually is, in the case where, justice being necessary to his own personal protection as well as that of the public, it has been the pleasure of the man of law that the necessary instruments should be made forthcoming; viz. in the preparatory examinations taken, as in a case of murder, robbery, or other felony, by a justice of the peace.

No loophole (or at least not so many loopholes) would then be left for the wrongdoer to creep out of; thus foiling, for a time, or for ever, the party whom he has wronged.

But, under the technical system, this business of notices affords to the wrongdoer an inexhaustible fund of chances:† in this lottery, a nonsuit (the produce of which is an additional suit) constitutes the prize in which Judge and Co., with their protegé and partner, the wrongdoer, are sharers.*

I proceed to speak of the course taken by the English law on the subject of authentication, in regard to any sort of document coming under the notion of official evidence,—whether as purporting to be the work of an official hand, or to bear upon the face of it a testimony of its authenticity, imprinted upon it by an official signature. Here, under both principles,—the principles here advanced, and those acted upon (as above) by the jurisprudential law in question,—tenor and custody together should be sufficient proof. Upon the principles here advanced, the former alone is sufficient proof: much more that and the presumption ex custodiâ together, when the custody is that of a hand so completely exempt from suspicion as in this case. But, upon the principles of English law, the presumption ex tenore alone cannot be sufficient; for to this case the ground of antiquity does not extend; and, as to the other part of the proof, it consists in the custody, which the law does not require.

According to Comyns,† “a deed indorsed as enrolled shall be read without proof.” According to his continuator, the certificate of the auditor of the dutchy of Lancaster is sufficient evidence of the enrolment of a dutchy lease. According to the same, the indorsement by the proper officer is sufficient evidence of the enrolment of a bargain and sale. If (as I should suppose to be the case) the instrument in question was in these several instances admitted, as an ancient deed would have been, to prove itself,—no proof of the official custody in which it had been, was exhibited. But, on this supposition, to call the certificate that of the auditor, calling the indorsement an indorsement by the proper officer, was a petition principii, an assumption of the very fact that required to be proved. In another case in the same book, where the custody is considered as part of the case, the fact of its being proved is mentioned (430.)

Doubts upon doubts might be started upon this topic, and upon the several decisions that have been given on the occasion of it. In the way of statute law, I could undertake to clear up all these doubts, if what ought to be extirpated were fit to be amended. In the way of dissertation, I could undertake for nothing but to thicken them.

[* ]Book IV. (Vol. VI. p. 508.)

[* ]Safe-custody is an expedient not uncommonly, and in certain cases not unnecessarily, employed, on the person of an individual, for the purpose of securing the exhibition of his evidence. But in this case, as in that of real evidence, safe-custody for this purpose belongs not to the head of authentication, but to that of securing the forthcomingness of evidence.

[† ]The case of the identification of a party must not on this occasion be confounded with that of the identification of a witness. In the case of a defendant in a criminal cause, in whose presence another person in the character of a witness comes forward to depose—to depose, say in affirmation of the act of delinquency—a common preliminary address is, Look upon the prisoner; the person now before you, in the character of the defendant, is he the same person of whom you have been speaking, or were about to speak, as the person whom, on the occasion in question, you saw doing so and so? But in this case, the piece of evidence authenticated belongs not to the division of personal evidence, but to that of real evidence: the person whose identity is in question, is not the person of the deponent, but the person of him who is the subject-matter of the deposition—of the evidence.

[* ]See Book II. Securities, and Book III. Extraction.

[* ]In England, the proof of handwriting must be by witnesses, who have seen the proposed writer write, or who have received letters from him, and acted upon them. 1 Phil. Ev. 465, et seq. Proof from similarity of hands is not admitted.—Ed.

[† ]Under English law, if a deed is thirty years old, it is said to prove itself, and is admitted in evidence, without any proof of its execution. 2 Term. Rep. 471. Bull, N. P. 255. And so of bonds and ancient letters and receipts. 1 Phil. Ev. 458, 459.—Ed.

[‡ ]The evidentiary fact is here the custody in which (i. e. the persons in whose custody) the document in question appears to have been kept.

Proportioned to the antiquity of the instrument, will be the probable number of the persons by whom this situation, with reference to the document in question, has been successively occupied. The last of them (when he is not the only one) will have been the person by whom the instrument is tendered.

Here, then, comes a demand for spontaneous declaration on this subject on the part of such exhibitant, and for liberty of counter-interrogation on the opposite side of the suit or cause.

Such declaration is itself direct evidence; and, in addition to it, a demand may by accident present itself for ulterior articles of direct evidence, to an indefinite number. But, the purpose of the evidence ex custodiâ being to fortify or wesken the evidence ex tenore, and the evidence ex custodiâ, as well as that ex tenore, being both of them, with relation to the fact of the genuineness of the document, of the nature of circumstantial evidence,—hence it is that all direct evidence, which has for its subject the history (as it were) of the document, the enumeration of the different hands into which, from the time of its birth, it has successively passed, comes under the head of circumstantial evidence: for it is but rarely that, without the intervention of direct evidence, circumstantial evidence finds its way into the presence of the judge.

[* ]In the case of Alexander Humphreys or Alexander, tried before the Court of Justiciary in Scotland, in April 1839, for forging documents, with a view to prove his right of succession to the honours and estates of the earldom of Stirling,—one of the documents, which the jury found to be forged (finding it not proven that it was forged by the accused,) was a map of Canada, and corresponding documents, which bore certificates from Lewis XV., Fenelon Archbishop of Cambray, and Flechier Bishop of Nismes. (See Trial of Alexander Humphreys or Alexander, &c. Edited by William Turnbull, Advocate. Edin. 1839.)—Ed.

[* ]See Book IV. Preappointed.

[† ]Unless, to a writing unofficial, and not bearing relation to any purpose which contractual or other legal writings, usually drawn up in legal form, have in view, the author or authors, having authentication in view, should call in the assistance of some other individual or individuals, in the character of attesting witnesses.

[* ]Hearsay evidence of this description (the supposed extrajudicial evidence of the supposed percipient witness, being supposed to have been delivered mortis causâ) has actually been admitted, and, as it should seem, credited, in English law. “In ejectment,” says Hawkins, “when a will was produced on the part of the plaintiff, subscribed by three witnesses, two of whom were dead, and the third witness on her cross-examination swore, that while she was attending one of the deceased witnesses in his last illness, and about three weeks before his death, he pulled the will in question from his bosom, and acknowledged and declared to her that the said will was forged by himself; this was held good evidence.”—Hawkins, 50. [Vide supra, p. 156. Note †.]

[* ]In a little work, called “The Theory of Presumptive Proof; or, an Inquiry into the Nature of Circumstantial Evidence, including an Examination of the Evidence on the Trial of Captain Donellan, London, 1815,” the following curious case is stated.—Ed.

“John Hawkins and George Simpson were indicted for robbing the mail, on the 16th of April 1722. Hawkins, in his defence, set up an alibi; to prove which, he called one William Fuller, who deposed, that Hawkins came to his house on Sunday the 15th of April, and lay there that night, and did not go out until the next morning. Being asked by the Court, ‘By what token do you remember that it was the 15tha of April? He replied, ‘By a very good token; for he owed me a sum of money for horse-hire, and on Tuesday, the 10th of April, he called upon me and paid me in full, and I gave him a receipt; and I very well remember, that he lay at my house the Sunday night following.’ The receipt was now produced. ‘April the 10th, 1722. Received of Mr. John Hawkins, the sum of one pound ten shillings, in full of all accounts, per me William Fuller.’ Upon inspecting the receipt, the Court asked Fuller who wrote it; he replied, ‘Hawkins wrote the body of it, and I signed it.’ Court—‘Did you see him write it?’ Fuller—‘Yes.’ Court—‘And how long was it after he wrote it, before you signed?’ Fuller—‘I signed it immediately, without going from the table.’ Court—‘How many standishes do you keep in the house?’ Fuller—‘Standishes?’ Court—‘Aye, standishes; it is a plain question.’ Fuller—‘My Lord, but one; and that is enough for the little writing we have to do.’ Court—‘Then you signed the receipt with the same ink that Hawkins wrote the body of it with?’ Fuller—‘For certain.’ Court—‘Officer, hand the receipt to the jury. Gentlemen, you will see that the body of the note is written with one kind of ink, and the name at the bottom with another very different; and yet this witness has sworn, that they were both written with the same ink, and one immediately after the other. You will judge what credit is to be given to his evidence!’

“Thus the authenticity of the receipt, and the credit of the witness, were overthrown by the sagacity of the Court! But while the judge, Lord Chief Baron Montague, was summing up the evidence, he was interrupted by the following occurrence: the person who reports the trial was then taking notes of the proceedings; his ink, as it happened, was very bad, being thick at the bottom, and thin and waterish at the top, so that, accordingly as he dipped the pen, the writing appeared very pale or pretty black. This circumstance being remarked by some gentlemen present, they handed the book to the jury: the judge perceiving them very attentively inspecting it, called to them—‘Gentlemen, what are you doing? What book is that?’ They told him, that it was the writer’s book, and that they were observing how the same ink appeared pale in one place, and black in another. The judge then told them—‘You ought not, Gentlemen, to take notice of anything but what is produced in evidence;’ and, turning to the writer, demanded—‘What he meant by showing that book to the jury?’ And being informed by the writer, that it was taken from him, be inquired ‘who took it, and who handed it to the jury?’ But this the writer could not say, as the gentlemen near him were all strangers to him, and he had not taken any particular notice of the person who took his book.

“That a jury ought not to take notice of anything but what is produced in evidence, has been said to be law; but, on the contrary, it has been held, and surely very properly, that a juryman may find from his own knowledge; indeed, what evidence can convince a person that that is which he knows not to be?

“Hawkins and Simpson were convicted and executed: indeed, the evidence against them was very strong; but, had the fate of Hawkins depended upon the single testimony of Fuller, he would, but for this occurrence, have fallen a sacrifice to the acuteness of the judge! who appears to have been much displeased at the accidental confutation of his remarks on the receipt, although it was an accident in favour of life; and, had it not been a case where other evidence was so strong against the accused, it must have been looked upon as the special interposition of Providence.”

[* ]See Book I. Chap. III.

[* ]In the following Book, the necessity of such a preliminary meeting, for innumerable other purposes as well as this, will be fully shown.

[* ]Archetypal,—i. e. the corrected and settled draught from which the instrument itself was transcribed, and which served as an archetype, or original to it. The appellation rough draught would not have served; since nothing hinders but that this original, to which no signatures have been attached, may have been no less fair than the instrument which (being transcribed from it) became the subject of the act of recognition, and in consequence received the signatures.

[† ]In actual practice (Peake, p. 64,) where the supposed authentic instrument has, according to the evidence (but quære, what and whose evidence?) been lost (but quære, whether known to have perished—or, after search, simply not found?) a statement made of the supposed contents, from mere memory, has been received instead of it.a To how prodigious an amount, in this real case, is the danger of abuse and mischievous misdecision greater than in the above supposed and proposed case! Supposing the fact of such deperition out of doubt: on this supposition, all check to intentional and mendacious misrepresentation of the supposed contents of the instrument, has perished along with it: and as to unintentional misrepresentation, who does not see how slight the security against it is in this real case—how strong, and all but complete, in the supposed case? Unless the witness or witnesses by whom (in speaking of the succedaneous script as genuine) the proper instrument is spoken of not only as being genuine but as being in existence, say thereby what is not true,—there the scripts remain, both of them, capable of being confronted at any time, until one of them is lost or destroyed.

[* ]About forty years ago, in a statute relative to East India affairs (26 Geo. III. c. 57, sect. 38, Peake. 66,) provision was made, that,—in the case of written evidence of a certain description, written and attested in the East Indies,—for the authentication of any such article of evidence in Great Britain, proof of the handwriting of the persons whose signature appeared on the face of the instrument, should suffice: and this too for definitive authentication, and without a thought of any need of eventual confirmation by ulterior and better evidence: and so, vice versâ, in the case where an instrument executed in Great Britain requires to be authenticated in the East Indies.a

To this same purpose, a discovery that perhaps will one of these days be made, is, that, besides the East Indies, the surface of the earth includes other countries, more or less distant from Great Britain; and, in the course of a century or so, at the present rate of the progress of legislation, the benefit of this provision may be expected to be extended to several of those other countries. But for each such country a separate act will be required; and, to warrant the motion for leave to bring in the bill, proof will be required (or at least an assurance given by a certain number of persons) that by the want of such accommodation divers persons have lost their property and been ruined; and, as often as any such bill is brought in, it will be opposed on the ground of innovation; and the proposer will be held up to view in the character of a Jacobinical anarchist, a Utopian speculatist, or both in one.

Voluminousness in tenor, scantiness in purport: thus it is that these vices, both of them to an insurmountable extent, are the properties of the same body of law. In this same state of things, on the part of men in power, the most anxious of all exertions are those which have for their object the preventing the application of reason to the field of law.

The trial in London; abode of the sole surviving attesting witness, a place in Cumberland or Cornwall; correspondents of his in plenty in London, with volumes of letters received from him; his handwriting would not be believed to be his, without his being dragged from Cumberland or Cornwall, for no other purpose than to say that it is his. A consideration which (on this as on every other occasion) is, by the licensed oppressors of the poor, and plunderers of rich and poor, trodden under foot, is, that, to a man who has not money enough to fetch a witness from Cumberland or Cornwall, the witness might as well be in the East Indies.

Of the sort of script thus allowed to be in this makeshift mode authenticated, the description is, of course, inadequate to the demand. Instruments of contract—instruments of the nature of those which are in use to be furnished with attesting witnesses,—yes. But a script at large, and (for example) a commercial letter or account-book, is this capable of being thus authenticated? Answer,—Yes or No: whichever happens to be most convenient and agreeable to the judge.—Much may be said on both sides: enough for this purpose on either side.

[* ]From the very learned notes to the cause of Cabell v. Vaughan, 1 Saund. 291, it appears that all joint obligors ought to be made defendants, and that the plaintiff may be compelled to join them all, if advantage be taken of the omission in due time, and by a proper plea: and so, on the other hand, ought all obligees to join in an action. If, then, all the obligors are joined in the action, of course no one of them could be called as a witness. But if an action is brought against one only of three obligors, and advantage be not taken in due time of the omission of the others, then undoubtedly one of the omitting obligors may be called as a witness. Str. 35.—Ed.

[† ]In such a case as this, proof of the identity of the individual with the John Brown mentioned in the record, would be required.—Ed.

[‡ ]In Goss v. Tracy, the deposition of the plaintiff being offered in evidence, was objected to, and Tilley’s case, Salk. 286, was cited in support of the objection. In that case an unexceptionable witness had been examined, and his deposition duly taken. This witness afterwards became interested in the cause, and at a subsequent trial at bar, his deposition was offered in evidence. The Court sent a judge to the Court of King’s Bench for their opinion on the point, and they held, that the deposition could not be read, for that the witness was living, and could not himself have been a witness at that time, vivâ voce, because he was then interested.—Ed.

[∥ ]Probably enough, in any individual case which gave birth or confirmation to this doctrine, the exclusion was not actually put upon any greater number than one witness. But in the nature of the case there is not anything to hinder the presence of any such percipient but non-attesting witnesses, in these or any still greater numbers: and (let the number in attendance have been ever so great) the same reason that sufficed for the exclusion of the one who was first tendered, would have sufficed for the exclusion of all the others: nor, therefore, were it ever so great or ever so small, would the number actually in readiness to be produced have appeared, unless by accident, upon the face of the report or treatise.

[* ]In the case of the claimant of the Stirling peerage, noticed above (p. 173,) one of the documents found to be forged, bore to be a charter by Charles I., of the year 1639.—Ed.

[† ]See the controversy between Mr. Malone and Mr. Chalmers.

[‡ ]Another remarkable feature of this fixation, is its being made without authority. Among the radical and incurable vices of jurisprudential (in contradistinction to statute) law, is, its incapacity to make fixations; to fix upon this or that quantity, in any shape, for any purpose; to fix upon this or that quantity, to the exclusion of all others. Analogy is the only instrument which jurisprudence can employ to weave its cobwebs; and, on the ground of law, it is seldom indeed that analogy can be seen to point to any particular quantity, more decidedly than to another. A rule of this sort is what, in English statute law, is called a statute of limitations. If in any one instance a statute of limitations can legally and constitutionally be passed, in the way of jurisprudential law, by this or that bench of judges, or even single judge, instead of Parliament, so may it in every other. In other cases, the usurpation has been more or less veiled: here it is stark naked. Accordingly, it has never been practised but in the dark. The personality of the author of the rule, and even of the decision, has been carefully concealed. No judge has ever avowed the making of it: when brought forward, it has been pretended to be found ready made.

[* ]Admission having thus been given, not only to an examined copy, but even to parol evidence of the supposed contents, would it be given to an archetypal draught? to the unrecognised and unsigned original, from which the recognised and signed instrument itself, was itself but a transcript? Having to pronounce between these two species of makeshift evidence, while, by the power and for the benefit of the lawyers, the proper and more satisfactory species of evidence is kept out of the way,—common sense would, without hesitation, answer in the affirmative; common law, therefore, after the usual hesitation, not improbably in the negative.

[† ]Vide infrà, Book VIII. Chap. XIII. Chicaneries about Notice.

[* ]In one sample more, read at once the nature of judge-made law in general, and therein read the technical system of procedure, and therein, again, the law of evidence in particular.

When the script you want is in possession of your adversary, you have seen already what the succedaneum is, and what sort of chance there is of its being obtainable.

When the script is in possession of a person capable of being a witness (a non-litigant witness;) for the purpose of having it exhibited, you serve him with a writ called a subpæna duces tecum, by which he is ordered to attend and bring with him the script. If he obeys, it is well: if he obeys, that is, if so it be that he not only attends, but brings it. But what if he comes without it? To this hour, it is not settled what is to be done with him, nor how the script is to be got at and applied in the character of evidence. At any rate, to the party who, being in the right, has need of the evidence, the cause is lost for that time: saved to him, or not saved, the liberty of trying a new one.

Doubts from another mine:—The case of the proposed witness comes within some one or other of the thousand and one cases of exclusion. He is weak in mind, interested, a felon, an excommunicated person, an atheist, and so forth. In any such impure hand, may or may not the script be exhibited (viz. in the first place,) it, in obedience to the subpæna, it be actually brought? Exhibited? Yes: but by whom then is it to be authenticated, or any account given of it? In the next place, as to compulsion, and the means thereof; suppose (notwithstanding the other already-mentioned mine of doubts,) suppose it settled, that the hand, if pure and orthodox, would have been compellable,—shall the atheistical hand, for example, be compellable? or shall an atheist, on condition of declaring himself such, or a theist, on condition of declaring himself an atheist, be allowed to keep back the necessary document, and thus to gain his point, giving the cause thus to the wrongdoer, whom he is in league with?

All this, like everything else—all this ever hath been, is now, and (so long as judge-made law reigneth) ever shall be, exactly as the judge pleases.

[† ]Com. Dig. by Hammond. Title, Testmoigne, p. 429.

[* ]In a little work, called “The Theory of Presumptive Proof; or, an Inquiry into the Nature of Circumstantial Evidence, including an Examination of the Evidence on the Trial of Captain Donellan, London, 1815,” the following curious case is stated.—Ed.

“John Hawkins and George Simpson were indicted for robbing the mail, on the 16th of April 1722. Hawkins, in his defence, set up an alibi; to prove which, he called one William Fuller, who deposed, that Hawkins came to his house on Sunday the 15th of April, and lay there that night, and did not go out until the next morning. Being asked by the Court, ‘By what token do you remember that it was the 15tha of April? He replied, ‘By a very good token; for he owed me a sum of money for horse-hire, and on Tuesday, the 10th of April, he called upon me and paid me in full, and I gave him a receipt; and I very well remember, that he lay at my house the Sunday night following.’ The receipt was now produced. ‘April the 10th, 1722. Received of Mr. John Hawkins, the sum of one pound ten shillings, in full of all accounts, per me William Fuller.’ Upon inspecting the receipt, the Court asked Fuller who wrote it; he replied, ‘Hawkins wrote the body of it, and I signed it.’ Court—‘Did you see him write it?’ Fuller—‘Yes.’ Court—‘And how long was it after he wrote it, before you signed?’ Fuller—‘I signed it immediately, without going from the table.’ Court—‘How many standishes do you keep in the house?’ Fuller—‘Standishes?’ Court—‘Aye, standishes; it is a plain question.’ Fuller—‘My Lord, but one; and that is enough for the little writing we have to do.’ Court—‘Then you signed the receipt with the same ink that Hawkins wrote the body of it with?’ Fuller—‘For certain.’ Court—‘Officer, hand the receipt to the jury. Gentlemen, you will see that the body of the note is written with one kind of ink, and the name at the bottom with another very different; and yet this witness has sworn, that they were both written with the same ink, and one immediately after the other. You will judge what credit is to be given to his evidence!’

“Thus the authenticity of the receipt, and the credit of the witness, were overthrown by the sagacity of the Court! But while the judge, Lord Chief Baron Montague, was summing up the evidence, he was interrupted by the following occurrence: the person who reports the trial was then taking notes of the proceedings; his ink, as it happened, was very bad, being thick at the bottom, and thin and waterish at the top, so that, accordingly as he dipped the pen, the writing appeared very pale or pretty black. This circumstance being remarked by some gentlemen present, they handed the book to the jury: the judge perceiving them very attentively inspecting it, called to them—‘Gentlemen, what are you doing? What book is that?’ They told him, that it was the writer’s book, and that they were observing how the same ink appeared pale in one place, and black in another. The judge then told them—‘You ought not, Gentlemen, to take notice of anything but what is produced in evidence;’ and, turning to the writer, demanded—‘What he meant by showing that book to the jury?’ And being informed by the writer, that it was taken from him, be inquired ‘who took it, and who handed it to the jury?’ But this the writer could not say, as the gentlemen near him were all strangers to him, and he had not taken any particular notice of the person who took his book.

“That a jury ought not to take notice of anything but what is produced in evidence, has been said to be law; but, on the contrary, it has been held, and surely very properly, that a juryman may find from his own knowledge; indeed, what evidence can convince a person that that is which he knows not to be?

“Hawkins and Simpson were convicted and executed: indeed, the evidence against them was very strong; but, had the fate of Hawkins depended upon the single testimony of Fuller, he would, but for this occurrence, have fallen a sacrifice to the acuteness of the judge! who appears to have been much displeased at the accidental confutation of his remarks on the receipt, although it was an accident in favour of life; and, had it not been a case where other evidence was so strong against the accused, it must have been looked upon as the special interposition of Providence.”

[† ]In actual practice (Peake, p. 64,) where the supposed authentic instrument has, according to the evidence (but quære, what and whose evidence?) been lost (but quære, whether known to have perished—or, after search, simply not found?) a statement made of the supposed contents, from mere memory, has been received instead of it.a To how prodigious an amount, in this real case, is the danger of abuse and mischievous misdecision greater than in the above supposed and proposed case! Supposing the fact of such deperition out of doubt: on this supposition, all check to intentional and mendacious misrepresentation of the supposed contents of the instrument, has perished along with it: and as to unintentional misrepresentation, who does not see how slight the security against it is in this real case—how strong, and all but complete, in the supposed case? Unless the witness or witnesses by whom (in speaking of the succedaneous script as genuine) the proper instrument is spoken of not only as being genuine but as being in existence, say thereby what is not true,—there the scripts remain, both of them, capable of being confronted at any time, until one of them is lost or destroyed.

[* ]About forty years ago, in a statute relative to East India affairs (26 Geo. III. c. 57, sect. 38, Peake. 66,) provision was made, that,—in the case of written evidence of a certain description, written and attested in the East Indies,—for the authentication of any such article of evidence in Great Britain, proof of the handwriting of the persons whose signature appeared on the face of the instrument, should suffice: and this too for definitive authentication, and without a thought of any need of eventual confirmation by ulterior and better evidence: and so, vice versâ, in the case where an instrument executed in Great Britain requires to be authenticated in the East Indies.a

To this same purpose, a discovery that perhaps will one of these days be made, is, that, besides the East Indies, the surface of the earth includes other countries, more or less distant from Great Britain; and, in the course of a century or so, at the present rate of the progress of legislation, the benefit of this provision may be expected to be extended to several of those other countries. But for each such country a separate act will be required; and, to warrant the motion for leave to bring in the bill, proof will be required (or at least an assurance given by a certain number of persons) that by the want of such accommodation divers persons have lost their property and been ruined; and, as often as any such bill is brought in, it will be opposed on the ground of innovation; and the proposer will be held up to view in the character of a Jacobinical anarchist, a Utopian speculatist, or both in one.

Voluminousness in tenor, scantiness in purport: thus it is that these vices, both of them to an insurmountable extent, are the properties of the same body of law. In this same state of things, on the part of men in power, the most anxious of all exertions are those which have for their object the preventing the application of reason to the field of law.

The trial in London; abode of the sole surviving attesting witness, a place in Cumberland or Cornwall; correspondents of his in plenty in London, with volumes of letters received from him; his handwriting would not be believed to be his, without his being dragged from Cumberland or Cornwall, for no other purpose than to say that it is his. A consideration which (on this as on every other occasion) is, by the licensed oppressors of the poor, and plunderers of rich and poor, trodden under foot, is, that, to a man who has not money enough to fetch a witness from Cumberland or Cornwall, the witness might as well be in the East Indies.

Of the sort of script thus allowed to be in this makeshift mode authenticated, the description is, of course, inadequate to the demand. Instruments of contract—instruments of the nature of those which are in use to be furnished with attesting witnesses,—yes. But a script at large, and (for example) a commercial letter or account-book, is this capable of being thus authenticated? Answer,—Yes or No: whichever happens to be most convenient and agreeable to the judge.—Much may be said on both sides: enough for this purpose on either side.

[a ]The robbery was committed about two o’clock on the morning of the 16th.

[a ]In the fifth edition of Peake’s Compendium, p. 96, the passage relating to the subject runs thus.—Ed.“But of private deeds, or other instruments, the production of the original, if in existence, and in the power of the party using it, is always required: till which done, no evidence whatever of the contents can be received; but where the original has been destroyed or lost by accident,—as where an original award was lost in a mail which was robbed; or, being in the hands of the adverse party, notice has been given him to produce it,—then an examined copy, or even parol evidence of the contents, being the best evidence in the power of the party, is received.”

[a ]This is referred to by 100 Peake. 5th edit., and in p. 60 allusion is made to the 13 Geo. III. c. 63, sect. 40, which was passed to enable the Court of King’s Bench, in all cases of indictment or information for misdemeanour or offences committed in India, to award writs of mandamus requiring certain judges in India to hold a court for the examination of witnesses, and to transmit the depositions to England.—These depositions are declared to be as good and competent evidence, as if the witnesses had been present, and sworn and examined vivâ voce. The 44th section makes a similar provision in civil actions or suits, in any court of law or equity, for which cause arises in India.—Ed.