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CHAPTER III.: MODES OF AUTHENTICATION IN THE CASE OF WRITTEN 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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MODES OF AUTHENTICATION IN THE CASE OF WRITTEN EVIDENCE.
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.)
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.
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.
[* ]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.
[* ]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.