Front Page Titles (by Subject) CHAPTER II.: SUBJECT-MATTERS OF AUTHENTICATION, WHAT. MODES OF AUTHENTICATION IN THE CASE OF REAL AND OF ORAL EVIDENCE. - The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
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CHAPTER II.: SUBJECT-MATTERS OF AUTHENTICATION, WHAT. MODES OF AUTHENTICATION IN THE CASE OF REAL AND OF ORAL EVIDENCE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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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.
[* ]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.