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CHAPTER VI.: ABERRATIONS OF ENGLISH LAW IN REGARD TO THE AUTHENTICATION 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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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.
ON THE CAUSE OF EXCLUSION OF EVIDENCE—THE TECHNICAL SYSTEM OF PROCEDURE.
[* ]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.
[† ]Com. Dig. by Hammond. Title, Testmoigne, p. 429.