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AMERICAN LAW REVIEW
PROOF BY COMPARISON OF HANDWRITING; ITS
The acceptable modes of proving handwriting are to-day fairly settled, in one way or another, in most jurisdictions under Anglo-American law. But in endeavoring to understand the reasons for the variety of rules that prevail in different jurisdictions, in attempting to employ the conflicting precedents, and in preparing other such statutory changes as those of the last decade in New York and Tennessee, it is indispensable to have in mind the history of the doctrines and, in particular, of the senses in which certain common phrases have been used. Without an appreciation of the historical perspective, without a realization that both doctrines and phrases have to be considered, not merely as fixed and at rest, but as moving, intelligent study or legislation is impossible. The attempt will here be made to outline briefly the main features of the history of the subject.
In proving a document or a signature to have been written by A, two distinct kinds of evidence offer themselves; first, testimony by a person who saw the act of writing, or some circumstance leading up or pointing back to it; secondly, evidence of some other sort. The difference is that in any and all ways of the second sort there is involved the establishment of a type or character of the handwriting, and an estimate, based on
comparison, that the disputed writing belongs to the type. This is so whether we employ witnesses who know that type and examine the disputed writing, or whether the jury is given the means of knowing thetype and making the examination. By the first mode we are not in any way concerned with the character of the person's writing; the witness testifies directly to seeing the act done, just as he would testify to seeing a blow struck. By the second mode, there is always an inference from the type to the genuineness of the disputed instance. It is obvious how wide the difference is; the first is in fact not strictly a proof of handwriting at all, but a proof of an act done. Now the first and most important point of legal history here is that, at a certain stage of our law, all of the second modes were, while not entirely repudiated, greatly discountenanced and strictly limited in their
For instance, a paper being offered as written by X, A's testimony that he saw X write it would be always received; but A's testimony that he had often seen X write and that this was X's writing would not be. The next point of importance is that the term “ comparison of hands” (or, in the older phrase, “ similitude of hands") was indiscriminately applied to all of the modes of the second sort, i.e., to any way of proving except by one who had seen the very document written. What we find is the gradual admission, one after another, of various modes of the second sort, but they were all at first known by the general phrase “ similitude” or “ comparison of hands;” and when that phrase was used, it covered even the testimony of one who had seen X write and thus knew his hand. Thirdly, with reference to the limited use of these modes of the second sort, we find, a, that the only kind of witness who could be heard was one who had seen X write; no other sort of knowledge was orthodox; b, that such testimony was conceded to be proper in civil causes only (and perhaps in petty causes alone, i.e., causes under forty shillings in amount), and that though (at the stage when we take up the matter, the era of the Restoration and the Revolution), the Crown was endeavoring to extend its use, this extension was strenuously opposed and was evidently against orthodox practice.
These points will be sufficiently illustrated by the following passages from the trials of the late 1600s:
It is 1
en rest easily it may in the world by I Baby comparing it
1683. Sidney's Trial.1 “Mr. Sheppard sworn. Atty.-Gen. Pray, will you look upon these writings (shewing the libel]. Are you acquainted with Colonel Sidney's band? Sheppard. Yes, my lord. Att.-Gen. Is that his handwriting? Sheppard. Yes, sir; I believe so. I believe all these sheets to be his hand. Atty.-Gen. How come you to be acquainted with his hand? Sheppard. I have seen him write the indorsement upon several bills of exchange. Col. Sidney. My lord, I desire you would please to consider this, that similitude of hands can be no evidence. L. C. J. Reserve yourself until anon, and make all the advantageous remarks you can. * Sidney. Now, my lord, I am not to give an account of these papers; I do not think they are before you, for there is nothing but the similitude of hands offered for proof. The similitude of hands is nothing; we know that bonds will be counterfeited, so that no man shall know his own hand. Remarks 3 by Sir John Hawles, Solicitor-General under Wm. III: "The evidence was, proving the book produced to be Col. Sidney's writing, because the hand was like what some of the witnesses had seen him write; an evidence never permitted in a criminal case before. The case of the Lady Carre 4 was well cited by Col. Sidney, against whom there was an indictment information of perjury, in which it was resolved that comparison of bands was no evidence in any criminal prosecution.''
1688. Trial of the Seven Bishops.5 Several witnesses were offered, most of whom had not seen the Bishops write, but had only had correspondence. After their testimony, which was very hesitating, Serj. Levinz: “My lord, before this paper is read, we hope you will let us be heard to it. For what is all the proof that they have given of this paper? They have a proof by comparison of hands, which in a criminal case ought not to be received.
For them to come to prove, hands only by those that saw letters, but never saw the persons write, this I hope will not amount to so much as comparison of hands. * It is an easy matter for any man's hand to be counterfeited; that they sure will agree, for frequent daily experience shows how easily it may be done; is it not easy then to cut any man down in the world by proving it like his hand? And proving that likeness by comparing it with something that he hath formerly seen? This strikes mighty deep. The honestest man in the world, and the most innocent, may be destroyed, and yet no fault to be found in the
19 How. St. Tr. 851.
4 i Sid. 418.
jury or in the judges."
Sol.-Gen. (opposing): “It is a wonderful thing, they say, that such evidence should be offered, but truly, my lord, it is a much stranger thing to hear Mr. Sergeant Pemberton say it was never done before.
[In Sidney's case) there was no person that swore he saw him write it; there was nothing proved but similitude of hands, to make the jury believe it his handwriting.”
Mr. J. Holloway: “In civil matters we do go upon slight proof, such as the comparison of hands, for proving a deed, or a witness' name; but in criminal matters we ought to be more strict and require positive and substantial proof." The judges being divided (Powell and Holloway, JJ., against, and Allybone, J., and Wright, L. C. J., in favor, the difference turning on the fact that the case was a criminal one), the evidence was not considered.
1691. Trial of Sir R. Grahme (Lord Preston).1 "L. C. J. Holt (to jury): Mr. Townesend says he has seen my lord write several times and does believe the writing to be in his hand; and to the same purpose says Bland. Lord Preston: I hope your lordship will please to observe to the jury that this is only a proof of similitude of hands ; nobody see me write them."
1695. R. v. Crosby. 2 " At this trial several treasonable papers were produced, which they swore they believed to be the handwriting of the prisoner; and on this a question arose whether comparison of hands were suficient; and per curiam (L. C. J. Holt], it is not sufficient for the original foundation of an attainder, but may be well used as a circumstantial and confirming evidence, if the fact be otherwise fully proved; as in my lord Preston's case, his attempting to go with them into France, and principally where they were found on his person. But here, since they were found elsewhere, to convict on a similitude of bands was to run into the error of Colonel Sidney's case." ;
These passages illustrate, then, (1) that the term “ similitude" or “ comparison of hands” covered all modes of proving handwriting (in the strict sense, i. e. every way in which the type of writing was the source of belief); (2) that the orthodox use of such proof was confined at least to civil causes ; * (3) that the
e Crosby's Cai - Ne. Serj. Pember ans Trial, supra, tagliating Sidney's su se difers 1
priting was pelin, in his stud ents that nailed li
1 12 How, St. Tr. 736.
of the time, of the then meaning of 2 12 Mod. 72.
the phrase, see the note of the learned 8 See also: 1684. Hayes' Trial, 10 compilers of Adolphus and Ellis' ReHow. St. Tr, 312-14; 1723. Bishop ports, vol. 5, p. 752. Atterbury's Trial, 16 id. 546. -. For 4 There can be little doubt that the other illustrations, from the literature use was not limited to petty causes,
only accepted mode of such proof was by those who had seen the person write. We have now to notice a gradual expansion of the limits of the doctrines under (2) and (3); and first of
2. We first find signs of a doctrine that in criminal cases proof by “similitude of hands" is admissible if the disputed paper was found in the accused's possession; in such a case of prima facie authorship, this doubtful kind of evidence was acceptable as “ circumstantial and confirming evidence,” in Lord Holt's language. This modification begins before 1700, and becomes common in the trials of the next century, and even as late as 1802 we find Mr. McNally writing:
1802. McNally, Evidence, 403: “But though mere comparison of handwriting be not evidence on an indictment or information, yet papers found in the custody of the defendant and the writing thereof proved to be in his hand by persons who have seen him write, is sufficient preliminary evidence to entitle the counsel for the Crown to have them read.”
This modification in its broad form (confining this kind of proof in criminal cases to corroborative purposes only) was embodied in the text-books of the 1700s. But by the end of the century
but was common in civil causes gen davit or answer may be further illuserally, particularly, in the proof of trated by the comparison of hands, witnesses' signatures to wills, deeds, which possibly may be evidence in conetc. See, for an example, Blurton v. currence with other proof that out of Toon, Skinner, 639 (1695).
the answer itself evince the identity of 1 1695. Crosby's Case, supra.
the person. But that the comparison 2 1688. Serj. Pemberton, in Seven of hands only should be a proof in & Bishop's Trial, supra, for defence, criminal prosecution was never law distinguishing Sidney's Case: “My but only in the time of King James, lord, that case differs from this toto and the distinction has ever been taken coelo; the writing was found in his that the comparison of hands is evipossession, in his study; there was dence in civil and not in criminal cases. the proof that nailed him," a distinc The reason why the comparison of tion not at the time put forward. Com hands is allowed to be evidence in pare also: 1684. Hayes' Trial, 10 civil matters is because men are disHow. St. Tr. 312–13; 1722. Layer's tinguished by their handwriting as Trial, 16 id. 199, 205; 1758. R. 0. Hen- well as hy their faces, for it is very sey, 1 Burr. 644.
seldom that the shape of their letters 3 Ante 1726. Gilbert, Evidence, 53: agree any more than the shapes of “The proof of false swearing to an affi their bodies; therefore, a comparison