THE EVOLUTION OF WRITTEN PROOF
Jean-Phillipe Levy*
as legal evidence, has existed, in western civilization,
since the dawn of history, although it arrived later among some peoples
than others. But what is there in common between a Babylonian brick,
a Roman tryptych of wooden tablets covered with-wax, a charter under
seal of the Middle Ages, and a modern document, written or typed?1
How is one to find an "Ariadne's thread" as a guide in the labyrinth of
rules concerning form and the preservation of documents as well as their
probative value?2 It would be a truism to state that there is a single
constant from the beginning to the end of the evolution of written proof:
the existence of a written text, varying from a signature properly so-called
to another written procedure often employed, the seal or signet. It seems
however that it is there that one finds the essential problem, the means
of finding out whose signature or seal it is. It is clear that the signature
or seal of the person for whose benefit the document has been prepared,
the person who is to avail himself of the document at a trial, can have
in itself no probative force; otherwise it would be only too easy to manufacture proof and to violate rights! On the contrary, the writing and
seal'of the party who is making a' transfer, contracting an obligation, or
disposing of property, who provides a creditor with a release, or even
makes a will,' have. considerable value: it is against such a person (or
his heirs) that the document will operate as proof. If the signature or seal
are those of a third party, their authority is greater or less according to
the nature of the third party. The writing and, ultimately, the seal, will
take first place among forms which have the probative force of written
proof, and enable us to see the nature of written proof; and one may
already suspect that the solution of all of these questions depends upon
WRITTEN PROOF,
* Professor at the Faculty of Law and Economic Sciences, University of Paris. Translation
by Professor Ralph A. Newman of the Washington College of Law, American University.
1. Not to speak of recent inventions such as records or tape, which might be deemed
comparable with written documents.
2. Another problem arises with regard to documents; their juridical function. The question
arises as to whether their role is exclusively probative or dispositive. We do not take up
this question because it is outside the problem of proof; nor do we discuss problems of
registration or publication, which correspond to different purposes of proof. See generally,
concerning the form of documents, the basic studies of Auguste Duman, La Diplomatique et
la Forme des Actes, and Etude sur le Classement des Formes des Actes, Le Moyen Age,
1932 and 1933-34.
3. The term "disposant," describing the person for whose benefit a document has been
prepared, has no precise English counterpart. It designates either the party to a written
instrument who becomes indebted or obligated, who transfers title to property, who releases
a debtor who has paid his debt, or even a testator. Throughout this article the term "disposing party" will be used to describe the "disposant." (Translator's note.)
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circumstances in the scientific and social order which affect written
procedure.
One basic principle emerges from all these considerations; written proof
is not in itself really proof of an absolutely independent nature. Omitting
innumerable intermediate situations, the written document oscillates,
according to time, between two poles; its factual nature as proof, prepared in advance in written form, and a kind of admission of the disposing
party.
The second conception, which the writer adopts, is the easier one to
understand at present: does one not speak currently of the writing as an
"acknowledgment of debt"; does one not write often that one "acknowledges" an indebtedness or having received or transferred something? The
consequences of this follow logically, and first as to the method of writing.
The admission being a personal act,4 the person who binds himself always
affixes a recognizable personal sign, which can vary from a seal to a more
or less extensive piece of handwriting. It is also necessary to note that,
contrary to what one might expect at first impression, the handwriting
is a more effective mode of authentication than the seal. Although the seal
is unchangeable in that it is more difficult to imitate, it does not have an
unalterably personal character. It can be loaned.' It can be stolen or used
fraudulently in various subtile ways. If a seal is appended by illiterate
persons, and it is especially in times when education is at a low ebb that
it is most widely used, it may support a lie. Thus it is, particularly in the
case of a document containing a sample of the handwriting of the disposing party who is obligating himself, that it best serves the idea of an
"admitting act." Such an admission does not require the intervention of
witnesses to the instrument. If there are such witnesses, they are ordi4. Usually the admission is in the first person, as in letters. Many diplomats, especially
those who use the German language, consider this distinction a fundamental one. See, for
example, Brunner, Zur Rechtsgeschichte der Romischen und Germanischen Urkunden, p. 44
et seq. This doctrine wrongly attaches exclusive importance to an element which is only
one of several which interact and which do not raise essentially juridical problems. In
contemporary times many documents under private seal, except contracts to be gathered
from correspondence, are written without regard to this distinction.
When we speak of personal acts, this does not exclude action through an agent, either
to make the contract (mandat ad negotium) or merely to write it out (mandat ad instrumentum). In such a case the agent adds his own mark, for it is this which has dispositive
and probative value.
5.It often happens that one uses the seal of another person, or several persons use the
same seal successively. On the functions of the seal see L. Wenger, in Realenzyklopadie der
Altertums Wissenschajt, v. "Signum" (1923). The seal .may have different purposes: to
assure the enclosure and preservation of the document so as to recall to witnesses their
participation, to denote the intervention of the public authority, or what interests us here
the adherence of the disposing party. We point out as a curiosity the Babylonian usage, in
the second millenium B.C., of affixing the impression of a finger nail or garment in the
place for the seal; this signifies the adherence, but has no probative function.
EVOLUTION OF WRITTEN PROOF
narily few in number, playing only a secondary role.6 As to its probative
value, the authority of this kind of writing is strong and difficult to contradict because one must then support the burden, always quite heavy,7
of establishing that the admission is a forgery.
But history reveals that there is another way of looking at this problem: the writing can be a kind of testimony. The arrangements ("negotium") having been made by the interested parties, the consent having
been given by means of signs or words, one composes a notice, a memento,
relating to the agreement which has been reached or the decision which
has been made. This notice or memento indicates the witnesses to the
expression of the agreement.' If it is desired that the memento itself
constitute direct proof (at least provisionally, subject to verification),
one asks the witnesses to sign or seal the instrument. Since the important
point is the participation of witnesses to the instrument, the document
can be prepared by anyone, 10 if necessary even by the person who is to
benefit from it, but more often by official witnesses. Except in the case
of a document prepared by a legally qualified public officer, whose participation puts the document under the protection of the public authority,
the probative force of this kind of writing is hardly greater than that of
6. Especially to attest the origin of the writing. It is necessary to distinguish even today
the problem of the writing from -the problem of the contents of the document. The first
tends to find out if the document was really written by the person whom it indicates to
have been the author; otherwise put, whether the writing is neither false nor has it been
falsified after its writing; the second examines the degree of sincerity and veracity of the
declarations contained in the instrument, to detect lies of the scrivener. In the first case
one speaks of material forgery, in the second of intellectual falsehood. The witnesses, in the
document of the type of an admission, must only prevent the introduction of material forgery.
7. Against their author at least, and on condition that the identity of the author be not
placed in doubt or be not left in doubt, that is to say that the writing must be recognized
or verified. It is clear, as many of the writers, canonists and postglossators of the Middle
Ages have pointed out, that the document does not establish proof to the benefit of its
author.
8. The role of the witness to the instrument can be quite other than probative. The
participation in an instrument as a witness is a manner of consenting to it, of acquiescing
in it, and of renouncing any attack upon it. In the ancient Roman law and to some extent
even in the classic period, testimony is "an instrument of control exercised by society,"
J. LMvy-Bruhl, Le Timoignage Instrumentaire en Droit Romain, 84 & 174 (thise, Paris,
1910). We find similar interventions of witnesses in ancient Babylonian law, and also in
ancient French law, in the case of consent of relatives or of the lord to the alienation of
property. Such interventions do not in our view constitute true acts of testimony, because
of the absence of a probative function.
9. In the case of witnesses as of the disposing party, their intervention can be expressed
in the document by the seal, or by the signature, and in the latter case either by a subscription or by a simple signature. One can suppose a witness who wrote the entire document, and in the last analysis this is approximately the role which the modern notary plays
as did the tabellion of the later Empire, the one always adding his signature, the other his
"completio," equivalent to a subscription.
10. This type of document is ordinarily written in the third person, in the objective style.
This however is not essential.
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ordinary testimony, and the provisions of the document can be contradicted even by witnesses, as long as there is no question of forgery.
Once these principles are conceded, it is possible to discern the evolution of written proof in four main stages, which include many overlapping
areas.
I
The primitive type of writing is based on witnessing and is essentially
no different from testimony collected apart from judicial proceedings
which is reduced to writing in advance. It assumes moreover two distinct
forms although of the same nature; public acts and private act4, depending on whether or not there are official witnesses.
1. That which constitutes in a way the common law of antiquity is
what we call "the private act of witnessing." This first form is much more
widely used than the second. It is found throughout the world: as the
"imjt-pr" of the early Egyptian Empire;" as "the act with identification
of the writer and witnesses" of the end of the New Empire and of the
lower middle epoch; in the entire geographical and chronological area
where the cuneiform of writing prevailed; 2 in Judea, at the time of the
prophet Jeremiah; 1 in the Aramaic papyrus of Elephantine in upper
Egypt at the time of the Persian occupation; 4 in the Greek and Greco11. The word can be translated roughly by the words ."domestic document" (in German,
"Hausurkunde"). This document is closed by a seal (affixed by a superior official beginning
with the middle Empire; the vizir of the Higher or Lower Empire or his delegate) and
includes at the end a list of three witnesses, who neither seal nor write anything. It is simply
a list to find them in case of necessity. For bibliography on the Egyptian document see
1 A. Scharff and E. Seidl, Einfuhrung in die Agyptsche Rechts Geschichte bis ziim Elde
des Neuen Reiches 21 & 31 (Juristischer Tell, 1939). E. Seidl, Aegyptische Rechts Geschichte
der Saiten-und Perserzeit 16 & 29 (1956). For translations of texts see 1 Pirenne and Van
de Walle, Documents Juridiques Egyptien, Archives d'Histoire du Droit Oriental 1 et seq.
(1937). V, 1950; Pirenne and Stracmans, Le Testament a l'VEpoque de l'Ancien Empire Egyptien, Revue Internationale des Droits de L'Antiquiti 49 & 72 (1954).
12. A document written by a private person, who is sometimes one of the contracting
parties or one of his relatives or friends, and more often (in the case of cuneiform writing
not accessible to everyone) a professional, but without official character. The style is in the
third person, or, what comes to the same thing, a dialogue between the parties held recently.
There must be several witnesses whose identity appears in the instrument. Seals of the witnesses and of the disposing party must be applied on the clay. The bibliography is very
abundant. See especially M. San Nicolo, Bietrage zur Rechtsgeschichte im Bereiche der Keilschriltlichen Rechtsquellen 114-174 (1931). G. Cardascia, in the Manual d'Histoire des Institutions et des Faits Sociaux 26-29 (Monier, Cardascia and Imbert) (1955).
13. Jeremiah 32:10 & 14; document written by the beneficiary, sealed by him, but deriving
its probative force from the subscriptions of witnesses.
14. These papyri have been edited from approximately 495 to 400 B.C. The style is objective, reporting literally the words of the disposant. The instrument is sealed. The witnesses
themselves write their names by hand. Editions: Cowley, Aramaic Papyri of the Fifth
Century B.C., (1923); G. Kraeling, The Brooklyn Museum Aramaic Papyri (1953). See R.
Yaron, Introduction to the Law of the Aramaic Papyri (1961).
1964]
EVOLUTION OF WRITTEN PROOF
Egyptian "syngraphe";
15
and finally among the Romans, in the form of
document which seems to be called "testatio,"' 16 derived from "testis," or
witness, which in effect can serve to establish facts such as births
7
torts,'"
or a contract or a will.
Amateurs of archeology will find satisfaction in the curious spectacle
of materials of which the document is made: Mesopotamia brick; Roman
wooden tablets covered with wax; Asiatic leather or parchment; and
Egyptian papyrus, for everything in this domain is the product of local
materials. This external aspect is never significant from the legal point
of view. What is more important is that these documents, drawn up in
the manner of objective minutes, in the third person, as if it were a question of reporting the deposition of a witness,' 9 are drawn up by a scribe
according to the needs of the creditor or beneficiary of the transaction.
It usually happens however, that they are drawn up by a professional,
particularly in the case of such complicated writings as hieroglyphics,
"hieratiques," or cuneiform writings, but even in the case of simpler
forms of writings. These professionals and occasionally members of the
priestly caste sometimes write their own names. In that case they also
play the role of witnesses, and then sometimes withdraw and do not thereafter appear, because the probative force of the instrument itself does
not depend on their participation. It is not even based on the seal of the
transferor. The seal progressively disappears, except as to wills, from
East to West.
The presence of witnesses is essential. Their number varies enormously:
two or three in Assyria or in the early Egyptian Empire; four or sixteen,
15. Objective style. May be written by anyone, but usually by a professional who is not an
official. Seals of the disposant and of six witnesses; usually called "syngraphe Hexamartyros."
See 2 L. Mitteis, Grundzuge der Papyruskunde 1, 53-72 (1912) ; H. Steinacker, Die Antiken
Grunlagen der FruhmittelalterlichenPrivaturkunde28-34 (1927); A. B. Schwarz, Die Offentliche und Private Urkunde in Romischen Aegypten (1920); D. Cohen, Schets Van Het Notariaat in Het Oude .Egypte (1955) ; L. Wenger, Die Quellen des Romischen Rechts 78-88 (1953).
16. Objective style. Anyone may be the scrivener, sometimes the beneficiary of the document.
Seals of fairly numerous witnesses and of the disposant. See Kroell, Du Role de l'FAcrit Dans
la Preuve des Contrats (th~se, Nancy, 1906); Steinacker, op. cit. pp. 66-122; L. Wenger, Signurn, Realenzyklopadie der Altertumswissenschaft (1923), and Die Quellen etc. op. cit., pp.
54-101; 129-148; 734-755.
17. On the "testationes" referring to a birth, see the writer's article, Les Actes d'Atat Civil
Romaine, Rdvue Historique de Droit 465-480 (1952).
18. 3 V. Arangio-Ruiz. See example in Fontes Iuris Romani Antejustiniani 541-No. 188
(1943).
19. In latin, "testari" means, properly, "to appeal to witnesses"; the interested "testatus
est eos qui signaturi erant," appeals to those who were going to affix their seals, to state what
has occurred. The word can also refer to oral testimony. The civil testaments "tabulis et
libra" and the pretorian testaments "consignatis tabulis" belong essentially to the general
type of written "testatio." The grammarian Donat (fourth century A.D.) classifies written
documents together with testimony (tesimonia caeca).
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according to the importance of the matter, in the more recent demotic
documents; always six in the "syngraphe hexamartyros" of Egypt of the
Ptolemies; and often six or seven in the Roman instruments. The participation of the witnesses can be purely passive, their names being inscribed by other persons, as in Egypt in the most ancient times. It can
also be active, by the affixation of their seals, or, more rarely,20 by a
personally handwritten recital, which obviously suggests that a knowledge
of handwriting is commonplace. This knowledge is at the same time technical and of social significance. It has influenced the form of the instrument, in the course of bringing about more profound changes.
In order to assure a more perfect preservation of documentary proof,
it was often deposited in a safe place, with an impartial third person,
such as the "syngraphophylax," or guardian of the "synographe" of
Hellenistic Egypt, or with the treasures of a temple. An effective precaution
consisted in placing the instrument under seals placed on the instrument
itself, and to enclose it. Sometimes the entire instrument was placed there.
In ancient Egypt, this was always done in the case of wills throughout
the Empire. Sometimes only one copy was so disposed of. In such a case
two copies were made: 2 one of them freely accessible at all times, but
also ultimately exposed to the possibility of falsification; and the other
placed in safe-keeping to be opened only in the presence of a judge, in
the event of a contest. This extremely interesting procedure, which was
unknown to the ancient Egyptians, appeared before 2000 B.C. with the
brick case-tablets of Babylon, and continued in Mesopotamia until shortly
after 700. It was possibly employed in Jerusalem in the time of Jeremiah.
However, it was certainly used in Egypt from the time of Alexander's
conquest until the beginning of our era, and at Rome up to the middle
of the third century A.D.
The' ancients thus accumulated precautions which in our more hurried
or perhaps more honest epoch, are not felt to be necessary. Perhaps,
moreover, they had a particular need for these precautions by reason of
the testimonial nature of this proof. When doubt arose as to the origin
of the instrument or its provisions and verification was necessary, it consisted of calling and interrogating the witnesses. 22 Documents of this kind
20. The autographic subscription of witnesses appeared toward the seventh century B.C.
in Egypt, at the beginning of the sixth at Jerusalem (Jeremie, op. ct.), then in the fifth
century in the Aramaic papyrus of Elephantine. One does not find this subscription in the
syngraphe of Hellenistic Egypt. The oldest example of it in a document in Latin dates from
166 A.D., and the document of mixed type of testatio with the subscriptio of the disposant
has been established in Syria (P. Brit. Mus. 229, in the Fontes previously cited, p. 425, No.
132). The subscription of the witnesses is current in the Late Empire.
21. That which German diplomats call a "Doppelurkunde."
22. In a judgment dated in the sixth Egyptian dynasty, the court decided that the party
1964]
EVOLUTION OF WRITTEN PROOF
are then above all a list of witnesses, and the seal becomes a means of
recalling the role which they have played after a considerable lapse of
time and after many a similar use. The fact that most often (except in
the Egypt of the Pharaohs) the disposing party adds his seal to that of
the witnesses does not alter either the nature or the method of verification.
2. This testimonial nature is seen in a second type of document. We call
it a "public witnessing-act," or more simply a public act, because it
comprehends the concurrence of the public authority-whether political,
administrative, judicial, or even religious. This concurrence is somewhat
rare in the case of documents of interest to private persons. It consists
of two very dissimilar forms.
The more limited form confines itself to the preservation of the instrument. Thus in Egypt of the early Empire, the seal which concludes the
instrument is affixed by an official.13 More often the participation of the
State consists of registration. It is true that the purpose of registration
may be something very different from assuring the preservation of the
document. It can be purely fiscal, or have publicity as its goal, as was
often the case in Greece. In any case this registration constitutes a quite
widely spread usage, especially (under the name of anagraph) in some
Greek cities, in Egypt in the later epoch, and under the Lagides at DuraEuropos under the Seleucides. The tables or registers containing copies
or extracts of the documents are deposited in the public archives. This
method of State intervention does not greatly alter the probative force
of the document.
The effect is different when the public authority establishes the document and takes part in its preparation. One could cite many examples.
Thus in Egypt of the New Empire, the document consists of minutes,
very probably fictitious, consisting of arguments or of the judicial decision." In the vast area of the Near East where cuneiform writing was
used, the public documenf was confined to about the time of the fifteenth
and fourteenth centuries B.C., and in the peripheral areas at Ugarit on
the Mediterranean, at Susa on the edge of Iran, among the Hittites of
Asia Minor, less clearly in Assyria and Babylonia&5 Perhaps it is conwho relies on a document which has been contested must produce three witnesses who will
testify to his veracity; the case will then be decided in his favor (P. Berlin, inv. No. 9010,
cited in Scharff and Seidl, supra note 11, at 24-25. At Rome the opening of wills is preceded
by a verification of the seals, to which are called the witnesses to recognize their seals (texts
of the Digest, 29, 3; examples from the second century up to 474 A.D. are to be found in
Girard, Textes de Droit Romain 809, 815 (5th ed.).
23. Supra note 10.
24. Scharff and Seidl, supra note 11, at 28, 29. Other authors see in one of them minutes
of a genuine process real; see Pirenne and Van de Walle, No. 4, Arch. Hist. Dr. Orient (1937).
25. G. Boyer, Le Palais Royal d'Ugarit, pp. 283-293; P. Koschaker, Neue keilschriftliche
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nected with a certain quasi-feudal form of government. The writing of
these documents is curious. They are actually documents between private
persons, for example a sale between two subjects of the local king. But
the document is intended as if the property sold was a royal gift. The
royal seal, personal or dynastic, is placed on the document, and there is
a provision threatening the wrath of the sovereign against whomever
would dare to molest the acquirer of his title. One also finds documents
of public origin without number in Greek cities,2 in. Egypt of the
Ptolomies,2 7 and in Dura-Europos under the Parthian and then the Roman
occupation, then in the later Roman Empire, with the "insinuation apud
' 28
acta. )
Official preparation and preservation of the document are often com-
bined, as in Lagide Egypt at Dura-Europos, or in the "insinuation" of
the late Roman Empire. But there is no general practice or rule on this
point.
Among these publicly prepared documents there obviously exist numerous differences of form as well as of function, but this intervention of the
public authority can affect their structure and probative force. It sometimes eliminates the necessity of any witness to the instrument.21 Sometimes however private witnesses follow the official witness3 0 It happens
Rechtsurkunden aus der El-Amnarna Zeit, pp. 27-35; M. San Nicolo, Zeitschrift der SavignyStiftung, Rom. Abt. 21-50 (1928) and (1929) at 24-54; E. Cuq, Etudes sur I Droll
Babylonien etc., pp. 16-19.
26. See esp. Steinacker, supra n.15, at 46, 66. An essential text is the Fragment of Theophraste preserved by Stob~e, ed. Arangio-Ruiz and Olivieri, Inscriptiones Graecae Siciliae el
Inimae Italiae p. 240 et seq. In primitive Greece, the formalities of contracts are at first
exclusively oral. The contract is often made before a judicial college. The proof, by testimony,
is facilitated by special officials, the "mnamones," charged, as their name indicates, with the
duty of remembering and of testifying officially. Soon the mnamon becomes the grammateus,
or scribe, who instead of relying on his memory writes a notice to himself, which is deposited
in the city archives.
27. Mitteis, supra note 15, at 47, 87; Steinacker, supra note 15, at 28, 46. For Doura, see
the introduction to the Final Report, infra note 35, V, 1, by C. B. Welles, pp. 6-7, 43-44;
Actes dress6s devant la Cour.
28. The document, established by a tabellion who is not an official, is recognized before the
judicial authority, often the city magistrate sitting in open court. Its text, together with
the minutes of the hearing, are transcribed in the register, "acta," of the court. See for
striking examples at Ravenna in the fifth and sixth centuries, G. Marini, I Papiri Diplomatici
(new edition by J. 0. Tjader, Die Nichtlitterarischen Lateinischen Papyri Italiens ais der
Zeit 445-700).
29. At Ugarit, at Susa. In Hellenistic Egypt, it is most exceptional that a document, at any
rate between living persons, prepared by an "agoranome" provides with witnesses. The same
is true in the case of documents drawn by a "grapheion." There are no witnesses in the
documents called "with synchoresis," drawn up before the judicial authorities of Alexandria.
The same is true in the Late Empire in the case of documents inserted "apud acta"; a document interpolated among the others is provided with witnesses; in the case of the judicial
minutes, only the magistrate and the greffier may be witnesses.
30. In the Egyptian documents in the form of judicial minutes; also among the Hittites
and sometimes at Dura-Europos, but not in all cases.
1964]
EVOLUTION OF WRITTEN PROOF
that the public document has greater effect than the private document.
Thus the public cuneiform document gives rise to an intangible right
effective against all the world ("erga omnes"). The document of the late
Roman Empire, if inserted among documents (apud acta), has superior
probative effect.31 This is not always true, however. It is clear that this
particular probative force, when it exists, applies to the particular quality
of the witness, as owner personally or by delegation of the public authority. As a Greek writer of the first century of our era, Dion Chrysostome,
has said, the document is then more solid because the person who relies
on it "takes the whole city as witness" of his transaction.3 2
II
Thus the seal of the disposing party does not change the nature of the
document as an admission, because it does not eliminate the necessity of
calling in witnesses. It is the handwriting alone which, by its expanding
use (thanks to the progress of education and to the facilities of the
alphabet), enabled it to attain this new stage.
The decisive turning point probably 3 lies in Greece of the fourth century B.C. According to a grammarian,34 the well-known orator Hyperidus
"called 'hand' (cheir) that which one ordinarily calls 'chirographe,' and
said that it is impossible to deny one's handwriting." From that point on,
handwriting (chirographe) spread into the whole Hellenistic world,3 5
and the Romans adopted it in their turn.
Thus the proof of etymology, as Hyperidus saw, is the hand of the
disposing party, who becomes at this point confused with the scrivener
31. The texts say that this document is equivalent to the publicum testimonium, because
it has the publica fides, the perpetua firmitas, which the interpolated document avoids by
having recourse to the verification of writing (Nov. 73 just., c. VIII, sec. 3). No text says
however that such a document cannot be attacked.
32. Orationes, XXXI, ed. Mor., p. 326; ed. Dindorf, p. 362.
33. Already in Egypt of the Pharaohs, in documents of the lower period in certain rare
cases, the disposing party writes his name, stating that he has written it by his own hand;
cf. E. Seidl, Aegyptische Rechtsgeschichte der Saiten und Perserzeit, p. 20.
34. Pollux, Onom., II, 152. Hyperidus lived from 389 to 322 B.C. The passage from
Hyperidus to which Pollux refers is part of his speech against Lycophron.
35. Outside of Egypt, the chirographe is used for certain documents in Greece. It passed
into Palestine under the Antonines and was discovered with other manuscripts said to come
from the neighborhood of the Dead Sea. J. T. Milik and R. de Vaux, Discoveries in the
Judaean Desert, vol. II, Les grottes de Murabba'at, No. 114, p. 240 et seq., sets forth
examples of the document. Still earlier, it is clearly referred to in Tobet, I, p. 16; IV, p. 21;
V, p. 3; IX, p. 6, but although most of the account refers to Assyria and Media in the
seventh century B.C., the work is generally considered to be Hellenistic. In any event, the
Greek version is the most ancient in existence. See also the Parable of the unfaithful
"econome," Luc. XVI, 6 and 7. We find no original Greek document coming from -Greece
itself, neither of this nor of any other type. At Dura-Europos in Mesopotamia, the chirographe
is not practicable, but the disposing party affixed his subscription at any rate; see The
Excavations a Dura-Europos,Final Reports, V, p. 1, by Welles, Fink and Gilliam.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 13
(scribe) which plays the essential role. The handwriting (chirographe)
is a personal act, 6 and can assume two forms. On the one hand it constitutes the very body of the document, wholly written in the hand of
the disposing party. Sometimes, however, at the end of a document, not
in the personal handwriting of the disposing party, the work of some
scrivener, often a professional,3 7 the disposant adds a "hypographe" or
"subscriptio" by hand. It generally consists of a very brief resum6 of
that which precedes, or an express affirmation of what is said there. This
'CC8
subscriptio," remote ancestor of our signature, 8 is no other than a
compressed handwritten document or "chirographe." This custom will
be considered obligatory in the late Roman Empire."'
This document which the disposing party brings into existence is the
equivalent of an admission of the dispositive arrangements. The handwriting constitutes a means of authentication so obvious that it could
be enough by itself to dispense with any other precaution, particularly
seals and witnesses. Today the signature is often used without a seal or
witness. The Greeks must have perceived this quickly, at least in the
case of those in Egypt which have left us, thanks to the dryness of the
climate, the most abundant information. 40 The Romans on the contrary
displayed much more timidity and it is especially interesting to compare
the evolution of the private document in these two linguistic, rather than
geographic, areas4 in the course of the ages which have followed the
Christian era.
In Hellenistic Egypt, the "syngraphe," with its six witnesses, was
speedilr displaced in favor of its powerful challenger, chirography. 42
36. It is ordinarily drawn up in the first person, and often in letter form; in Egypt, it
commences with a salutation, and is sometimes called epistula by the Romans. The personal
character of the chirographe does not prevent the replacement of the true disposing party
by a mandatory; cf. note 3 supra.
37. Like the tabellion of the later Roman Empire.
38. Besides the word "subscription" which no longer corresponds to its etymological
meaning, there exists in our present law a case of true subscription in the formality of the
"Good for": the obligor of a sum of money or of an obligation capable of measurement in
money, if the private document acknowledging the debt has not been written entirely in his
handwriting, must at any rate write "good" or "approved" with the indication, fully written
out, of the sum or quantity, before signing (French Civil Code Art. 1326).
39. From this period dates the habit, for illiterates, of tracing the sign of the cross. This
sign is used in the Albertini Tablets of the latter part of the fifth century (Ed. Courtois,
Leschi, Perrat and Saumagne) as well as in the Ravenna papyri.
40. The most ancient Egyptian chirographe is that from 248 B.C. The hypographe appeared
toward the same period. There were never any seals or instrumental witnesses in the Egyptian
chirographes (nor for the "hypomnema," which shows analogous traits), nor for the document of Murabba'at cited note 34 supra.
41. There have even been found in Egypt documents executed in that country, but in Latin
and for Romans; they follow all the Roman formal requirements.
42. The syngraphe begins to become degraded and to lose its distinctive traits toward the
end of the second century B.C. Beginning from the end of the first century, there are few
1964]
EVOLUTION OF WRITTEN PROOF
This, from its first appearance in that country, in the very middle of the
third century B.C., did not require a seal. This means of authentication
persists only in the case of wills and public documents. "Non signat Oriens
aut Aegyptus, etiam nunc litteris contenta solis." Pliny the Elder indicates
that the East and Egypt do not require the seal and are satisfied with the
handwriting. 43 The same attitude appears in the case of "witnessing instruments," never in the case of the chirographe, an instrument in the
handwriting of the disposing party. 44 The handwriting of the disposing
party is then the sole method of validation. It reigns in the pure state.
Its success was much less pronounced under the Romans, who were
more attached to traditional precautions. The two types of documents,
the "testatio" of impersonal writing and the personal handwriting, can
hardly be classified according to the date of their appearance. 45 The
"testatio" maintained itself for nearly three centuries after the Christian
era. It cannot be said to have disappeared, but rather, it combined with
the "subscriptio. 48 The seal is still used in the third century A.D. and
was not abandoned, except in wills, until the beginning of the later
Empire; (even then it survived in wills). As to the witnessing of documents, this was never renounced in Roman law. They are less usual in
the Roman handwritten documents of the early Empire than in the
"testationes," but it is most exceptional4 7 to find them entirely discarded.
Still in the later Empire, a law of the Emperor Honorius, in 421, expresses
the official mistrust of handwriting and restricts its validity to a specified
discoveries of original "syngraphii." There are allusions to documents called hexamartyron,
but it is not known if this word still designates the same document as before. Of those
which have been found, only three indicate the presence of witnesses, four at the maximum.
43. Naturalis Historia, XXII, 6. This moreover is not accurate as to the documents
written in Greek at Dura-Europos under the occupation of the Parthans. On the contrary,
in the third century, under the Roman occupation, the seal disappears, to be replaced by a
special knot at the end of a cord which holds the enclosed writing. A document in Syrian of
243 (the No. 28 of the Final Reports) is still fortified by a seal, probably official. The forms
of the syngraphe are preserved at Dura-Europos up to the middle of the third century,
except as to the requirement of a seal; for example, the impersonal phraseology, and instrumental witnesses.
44. The chirographe has bad perhaps for some time a value inferior to that of the syngraphe, for in a release given by chirographe (B.G.U. 260) the creditor promises the debtor
to give him, upon demand, a release in hexamartyron. At Dura-Europos, the subscriptions
of the witnesses are current in the third century.
45. In spite of the attempts of certain learned writers like Zangemeister, followed recently
by M. Arangio-Ruiz, who think that the testatio is older than the chirographe. These conjectures are extremely tenuous. At Pompeii as at Herculaneum both forms, often combined,
moreover, can be found at intervals of only a few years.
46. There are still testationes of the Late Empire, notably in the Tablets Albertini, but
they are followed by the subscription of the parties or, if they are illiterate, by the sign of
the cross traced by them. Inversely, the chirographe combines with the testatio in the sense
that it includes subscriptions of the instrumental witnesses.
47. Some releases are found at Pompeii, in the form of chirographe, which do not include
the participation of witnesses.
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[Vol. 13
period of time after the execution of the document.4 8 Even in the Eastern
Empire49 the legislation of Justinian, in the sixth century, enacted all
sorts of measures which exhibited the same mistrust. Every document
dealing with an object of a value greater than a pound of gold, if only
established by a "tabellion,"5 0 must be supported by the "subscriptio"
of three witnesses. In the absence of such validation, it is not void, but
is regarded as having been drawn up without deliberation, "incaute compositum.' 1 If a doubt arises as to the authenticity of a written document, it can be verified by the interrogation of witnesses, as a last resort
of the "tabellion" and his aides, preferably to a comparison of handwriting. This method is used only incidentally, and in case of conflict
between the results of the comparison of the handwriting and the declarations of the witnesses the judge must give preference to the testimony of
the witnesses. It is also by means of an inquest involving the interrogation
of the "tabellion," his aides and witnesses, that the validity of a document
is established. Similarly, a will before it is opened, must give way to a
process of verification participated in by the witnesses, who are called
' So also at
upon to authenticate their "subscriptio."52
this relatively late
period the admission, based on the handwriting, has been accepted only
incompletely in Roman law. The probative force of the "instrumentum"
rests always on the testimony.
This reliance on instrumentary testimony as to the authenticity of documents explains the final obstacle to the attempts to introduce the holographic will, that is to say, without witnesses, the fact that the entire
writing is in the hand of the testator constituting its only formality. This
was, curiously, a Western innovation, the work of Emperor Valentine III
in 446.11 But its recognition was of brief duration. 4 The Justinian Code
did not receive it.55 It was socially premature.
48. C. Theod., 2, 27, law "Super chirographis mortuorum." If the disposing party is dead,
the creditor can utilize his chirographe only within two or five years, and may prove his
writing only by the comparison of writings. If the debtor is still living, the document is
effective only for twelve years. This law has not been received into the Code of Justinian.
49. However a law of Leon, Emperor of the East (Code of Just., 8.17.11) decrees that a
written document has the same value, whether or not it was witnessed, except in the case of
pledges where (for reasons of a date certain) preference is given to documents fortified by
the subscription of three witnesses or established before a tabellion.
50. Although the tabellions form corporations under the supervision of authorities, they
do not have the quality of public officers and the documents which they prepare do not have
special authority. Cf. our study of L'autoritJ des 'instrumenta publice confecta d'aprs le
Code et les Novelles de Justinien, Ann. Fac. Droit d'Aix 173, 191 (1950).
51. See essentially the Novella 44 and 73.
52. For an example from the year 474 at Ravenna, see P. F. Girard, Textes de Droit
Romain, p. 815.
53. Nov. Valent. III, 21 (20), 2, 1, (A.D.446).
54. It passes into the Breviaire of Alaric and survives for some time in the law of the
Visigoths.
55. Except for the share of ascendants (Code Just. 6, 23, 21, 3; Nov. 107, c. I and II).
1964]
EVOLUTION OF WRITTEN PROOF
In short, the Romans, in contrast to the Greeks, did not dare to follow
to the end the new concept which rested the validity of documents solely
on their handwriting. They remained in an intermediary position, piling
up safeguards against forgeries.
III
With the problem of written documents as with many other problems,
the Middle Ages mark, in the West, a recoiling from an abandonment
of the concept of the admission invented by the Greeks, and followed in
part by the Romans. We are not even referring to the early Middle Ages
when written proof played no more than a minor role. But in the same
period when civilization was awakening, men returned, in the learned
Roman-canon law, to the idea, almost in its pure state,56 that the written
document is testimony, and did not hesitate to express that idea. Canonists of the twelfth and thirteenth centuries, post-glossators of the fourteenth, call "attestationes," or even "testimonia" what are in reality
only written documents. The "tabellion," for them, is deemed a witness
(which is entirely correct). This return to earlier usage applies also to
the form of documents. One observes a veritable resurrection of the seal
which assumes a new aspect, the origin of which is unknown, the seal
"hanging on a tail."5 7 It is at first the sign of authority (as" it had been
in Egypt of the Early Empire), and it is reserved for lords and personages of the ecclesiastical hierarchy. Towards the fourteenth and fifteenth
centuries, the middle class, plain people, possessed sehls, and it became
the mark of the individual, the sign of adherence to the document. It
disappeared, in France, toward the end of the Middle Ages, because of
the more widespread use of the sign manual, which is a drawing, and of
the signature, which is hardly more than a writing, to survive either under
the attenuated form of the stamp (dry or moist) or signet (seal), and
only in certain types of official documents. Another sign of authentication
continues to be respected: the instrumental testimony. Documents fortified by a seal or by the subscription of three witnesses still living are
classed among the "instrumenta publica" and preferred to "instrumenta
privata." While these validate the writing only if they are recognized by
56. However, the idea of the admission persists, latently, for when the authors of the
"Droit Savant" speak of the extra-judicial admission, and especially of resorting to proof by
a writing, it is of the document containing the admission of the debtor or disposant of which
they are dearly thinking. We refer to our work, for this question as for all that concerns
this third phase of the history, La Hierarchic des Preuves dans le Droit Savant du Moyen
Age (1939), particularly pp. 72-79; 80, n.74; and 86-105.
57. In ancient times, the seal was affixed directly to the document. In the document
No. 28 of Dura-Europos, in Syriac, of 243 A.D., a clay seal is nevertheless placed on a shred
cut in the parchment.
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[Vol. 13
the person whom they identify as the author, or are validated judicially,
the "instrumenta publica," provided they give no indication of falsification, are entitled to credence in the absence of proof to the contrary.
Also, notaries may call witnesses to documents prepared by themselves
(like the "tabellions" of the later Roman Empire), as do judges also."
Among those witnesses, certain ones have official authority, which
explains how certain documents have greater force than others. It is
difficult, unfortunately, to agree with the classification of documents as
public or private, because the terminology of the Middle Ages, exceedingly confused, often extends to inordinate lengths the expression of
"instrumentum publicum," to the point of making it include all writings
clothed with a known seal and little subject to falsification, or established
with the participation of a minimum of three witnesses, if they are still
living and capable of being interrogated. However, notarized documents
and judicial minutes validate the contents; that is to say that the matter
to which they relate is deemed to be true in the absence of proof to the
contrary. But all these details are less characteristic of the regression we
have mentioned, than a rule, constantly repeated since the thirteenth or
fourteenth century, "Witnesses are worth more than letters"; proof in
the form of testimony prevails over proof in writing. Contrary to what
one might expect, it is not customary law which first introduced this rule.
It appeared first in the "droit savant'--Roman-canonical law. Two
opposing tendencies emerge in the twelfth century; one of them favoring
written proof and ifistrusting testimony because of the fallibility of human
memory, "memoria hominum labilis"; 5 the other, to the opposite effect.
The latter view prevailed. Between 1206 and 1209, a decretal of Innocent
11160 gave the preference to depositions of four witnesses over the provisions of a notarized document confirmed by the declarations of the
notary. One may deduce immediately a general rule, accepted not only
by the canonists but by the legists as well, working on the foundation of
Roman texts. In the following century, it passed, in France, into the
customary law,61 from which it received the form under which we have
cited the rule.
58. The rule of canon law (Fourth Lateran Council of 1215) requires that the judicial
process-verbal must be written by a notary (greffier) or by the Judge in the presence of two
witnesses, and it had already been decided by Innocent III in 1198, that the writing of a
judge is worth no more than his word, nor his word more than that of a witness (X, 2,
20, 28 and 2, 19, 11). The canonist Geoffroy from Trani wrote toward 1241: "Presentia
testium facit ut instrumento credatur," and Bartolus said in the following century "testes
adhibentur instrumento ut per eos imponatur fides instrumento."
59. One may also invoke a law of Constantine (Code Just., 4, 21, 15) which placed
equally in the process, literal proof and testimonial proof.
60. X, 2, 22, 10.
61.0 The first author to express this was probably Jean Boutillier, Somme rural, tit. CVI,
EVOLUTION OF WRITTEN PROOF
The effect of the rule is dual. The more innocuous effect attaches significance only to witnesses to instruments, those who are mentioned in
the document or at least have been present during its preparation. The
means of disclosing falsehood is interrogation. It is thus only a problem
of what we have called a question of handwriting. There is a graver
problem; in its usual acceptation, the rule means that without even raising
the question of forgery, the provisions of a writing can be contradicted
by the declarations of witnesses, even those whose names do not appear
on the instrument. It is no more than merely a question of contents of
the document. During the two or three centuries which followed, there is
discussion only of the number of witnesses necessary to contradict a
written document; some demand five, which again gives the writing some
importance; others demand only three witnesses; and some are content
with two, the minimum number for adequate testimony by virtue of the
adage, "testis unus, testis nullus." This last view is most remarkable:
testimony and written proof are placed on an equal footing, or indeed,
testimony prevails over written proof. If one of the parties relies on an
instrument, the other may without even asserting its falsity, produce two
witnesses in order for his contention to prevail.
What are the reasons for such an extraordinary solution? The reasons
given by the medieval authors are disconcerting. They cite Roman texts,
especially a passage of one of the Novels of Justinian according to which
"that which is said vocally and is supported by an oath is more worthy
of credence than' the writing alone"; 62 but this passage has been isolated
from its context and devitalized. Properly interpreted, it envisages no
more than a conflict between the declarations of signatory witnesses, and
the conclusions to be drawn from a comparison of writings. To one
accustomed to the scholastic passion for withholding conclusions unless
fortified by "auctoritates," citations of juridical or biblical texts, this
argument is denuded of all persuasive force. It is necessary to search
elsewhere for the true explanation. The truth is that for the men of the
Middle Ages, written proof, as in the case of proof by testimony, is two
different kinds of one and the same type of proof the nature of which is
testimony. But while in the one case the witnesses are living and present,
in the other case they are absent and as if dead. One speaks of the "vox
mortua instrumentorum" which is opposed to the living voice of witnesses.
who wrote toward 1390. Loysel, in incorporating it in his Institutes coutumi~res (1608), has
made it widely known. The English law of the Middle Ages seems not to have adopted this
rule: see Morrison, Some Features of the Roman and English Law of Evidence, 33 Tul. L.
Rev. 577, 591 (1959).
62. Nov. 73, c. III.
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[Vol. 13
A true witness can be examined face to face; one can question him, notice
whether he hesitates or vacillates, if he flushes, if he grows pale: one can
ask him the source of his knowledge of the facts. The majesty of the
judicial ceremony will impress him and will frighten him if this prove
necessary, thus trapping him in the course of a lie." Furthermore, several
witnesses, two at least, are necessary, and their statements must agree;
while a written document remains impassive. The parchment on which it
is inscribed is "only the skin of a dead beast," 4 on which "the pen of
the scrivener can note anything."6 5 The suspicion in which it is held is
thus explained.
To apply strictly the principles which control its use, one gains the
impression that the written document is hardly more than a kind of
repertory of witnesses. The party who offers it is not relieved from the
obligation of producing some of them, in order to verify the handwriting
and contents. His adversary is equally allowed to produce witnesses for
the purpose of contradicting its contents, without even questioning the
authenticity of the handwriting. Finally, in case of conflict between
witnesses who confirm and other witnesses who contradict the writing,
preference is generally given to the side represented by the majority view.
In this strife, the writing counts no more; it is completely forgotten.
But beyond these juridical considerations, the basic explanation of this
scorn of written proof is to be found in conditions of society in the
historical context in which the attitude was born. The Middle Ages are a
period when forgeries abound, for example the celebrated False Capitularies and the False Decretals,"6 by which the age was completely duped.
63. The following is a translation of what the jurisconsult Baldus wrote, at the end of
the fourteenth century (X, 2, 20); "The convincing quality of the living voice moves more
strongly and more effectively the mind of the hearer. It has in itself something which touches
the intelligence by reason of the truth which nature gives it. As Saint Jerome has said, it has
no limit to its latent energy. We blush to say many things which we do not blush to write.
All the same, one must see in a witness with what trembling he speaks, what there is in the
voice and the visage, if he hesitates (vacillat). Cassiodorus said that there is no greater
testimony of the thought and the good faith than the quality and the corroboration of
words, and there is a popular adage which says, speak and I will recognize you." One must
not forget, furthermore, that the judge can put to the question a witness whose bad faith is
dear. In the customary law, the witness risks being twisted and provoked into a judicial duel
or submitted to an ordeal, for example to the proof of burning iron.
64. The pope and canonist Innocent IV, toward the middle of the thirteenth century, wrote
that the function of tabellion is contrary to natural law and has something miraculoug about
it for one believes, when something is covered with writing by a tabellion, in a "chartac
animalis mortui" (X, 2, 22, 14, n.1). The same thought was expressed by Panormitain in
the fifteenth century.
65. As was said by a monk in the eleventh century.
66. We know that the collection of pretended capitularies of Benedictus Levita and of
Angilramnus Metensis episcopus as weli as of decretas of Isidorum Mercator comprise, with
less important pieces, a collection of false documents probably composed by the same laboratory of forgeries, established in the diocese of Mans or in the province of Rheims, toward the
1964]
EVOLUTION OF WRITTEN PROOF
The cartularies of the churches and abbeys begin for the most part with
a charter of Charlemagne or of Louis the Pious, the apocryphal character
of which has been revealed by modern criticism. The best canonists
abound in practical formulae which enable one to recognize a false papal
decree. The fear of falsehood becomes permanent.
The peril struck at those who wrote documents and at their clients.
In spite of efforts to establish a corps of imperial notaries, pontifical
notaries, royal notaries and sometimes seignorial notaries, there was no
solid organization nor any strict supervision of the 'body of notaries.
Poorly protected, the reputation of the profession was debased by unconscientious individuals. Besides, outside of official notaries, there were no
standards of qualification for licenses to prepare documents. Laboratories
for forgers could be established and function for some time without being
exposed. "Clerici vagantes," clergymen who had not been admitted into
the ecclesiastic hierarchy (the canon law fought against them unceasingly), more or less instructed but in the wrong way, were impelled, in
order to live, to fabricate for pay false documents as well as prepare
honest ones. Along with this risk of falsehood or material alteration, with
respect to the handwriting, the veracity of the contents of written documents was also often subject to cautious scrutiny, because it was exposed
to another danger: the danger of the scrivener's bad faith or mendacity,
the more so because the client, very often, could not read. The preference
accorded to living witnesses is thus much less strange than appears at
first impression.
IV
But a sudden change takes place at the end of the Middle Ages. The
statutes of the Italian trading cities favor written proof. At Genoa, before
the celebrated commercial tribunal of the Rota, proof was received, in
substance, by notarized documents and even by privately executed releases, bills of exchange, etc.67 The movement grew in France and led to
the new maxim, "letters are better than witnesses."
The reason for this was two sorts of social change: the diffusion of
education in the trading cities, where the merchant class opened numerous
elementary schools, which concentrated on the practical aspects of education without intellectual exchange with the universities; and the great
improvement of the notarial profession. In France, for example, the
middle of the ninth century. Modern criticism has unmasked the imposture, which had
escaped the attention of contemporaries since the Carolingian kings themselves cite officially
the collection of Benedictus.
67. 2 Salvioli, Storia Della Procedura, pp. 439-443. See the Decisiones Rotae Genuensis
(1582).
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[Vol. 13
massive reform, introduced by royalty, of the corps of notaries, dates
from the fourteenth and fifteenth centuries. The ordinances on the subject were innumerable" and were duplicated in those of the great fiefs
which were still independent.6 9 Notarized documents from then on include
guarantees of their authenticity. The same development took place with
respect to documents under private sign, all of which were written, or
at least read and signed, by the parties. These documents acquired the
value of an admission. At the same time contracts, which had become
more complex, could not be retained in memory. These new circumstances
reduced the value of testimony to second place, and at this point its
inconveniences become apparent, inconveniences as ancient as proof by
70
testimony itself.
The modern period marks the triumph of written proof and, among its
techniques, is the triumph of the chirographe, the act of admission. This
is true throughout western European law, but probably nowhere does this
triumph find expression in the official legislative texts to a more pronounced degree than in France, as much in respect of the weight of
written documents as their form.
The superiority of written proof was consecrated in France in the
ordinance of Moulins (1565) .' This ordinance enacted two measures.
It required written proof in the case of all debts above a hundred livres.
It also forbade proof by the testimony of witnesses in contradiction or
enlargement of the contents of a writing. These provisions were continued
under Louis XIV in the great "civil" ordinance, the code of civil procedure, of 1667;72 then by the Code Napoleon of 1804.71 The Italian
68. One of the most celebrated is that of Charles VI, of April, 1411, which grants to royal
notaries the right to exhibit in their study an escutcheon with the royal arms (Isambert, VII,
p. 253). Another, of Charles VII, of 1453, article 17, directed to the particular case of a
judgment altered by the judges after it has been pronounced, had forbidden any attach upon
a public document under pretext of forgery without bringing a criminal charge. It was
interpreted as envisaging all public documents in all cases. Cf. J. Brissaud, Manuel d'Histoire
du Droit Privi,p. 461, n.2.
69. Notably in Brittany, where the ducal constitutions since the fourteenth century and
especially since 1405 and up to 1462, constantly contain provisions concerning all sorts of
notaries.
70. Loysel repeats the dictum, "He is mad who trusts himself to an inquest, for he who
refreshes more proves more"; it was evidently very ancient, but its importance had escaped
the epoch of the superiority of testimonial proof.
71. Art. 54: "... . for all things exceeding the value of one hundred pounds contracts must
be executed before notaries . . . , without receiving any proof by witnesses beyond the
contents of the contract or that which was alleged to have been said or agreed upon beforehand, then or since; in which we do not intend to exclude the proof made by the parties
under their signatures, seals and private writings." See the ancient commentary of Boiceau
and Danty.
72. Tit. XX, 2: "contracts" is replaced by "documents," for the purpose of extending the
scope of the provision.
73. Art. 1341: "There must be documents executed before notaries or under private signa-
1964]
EVOLUTION OF WRITTEN PROOF
civil codes, up to 1942, reproduced these requirements almost without
change.74 It is true that other continental codes,75 not to speak of English
law,76 ignore them and admit testimonial proof without any restriction.
This does not prevent written proof from being the most widely used in
these countries, nor written documents from being protected against over77
easy contradiction by the testimony of witnesses.
The form of documents has freed itself from the usages of millenia.
The seal and the instrumental witnesses have almost completely disappeared 78 except in the case of certain authentic documents. There still
exist public witnessing documents which are grouped, at least in France,
under the common designation of "authentic documents." These are of
ture, for all things exceeding the sum or value of one hundred and fifty francs, even for
voluntary bailments; and no proof shall be received by testimony contradicting and beyond
the contents of the document, nor concerning that which was alleged to have been said
before, at the time or since the documents, although the sum or value was less than one
hundred and fifty francs." The exclusion of the oral proof includes the exclusion of proof by
means of presumptions (art. 1353). It is curious, since it is merchants who have originated
the usage of written proof, that an exception is provided in the case of commercial transactions (art. 1341; art. 109 of the Code of Commerce) ; it is in fact hardly utilized, except by
certain merchants operating in the country districts. Since a law of 1941, the minimum has
been raised to 5,000 francs, which have become 50 new francs since the French monetary
reform of 1960.
74. 'Codice civile of 1942, art. 2721 and 2722; the limit of amount is 5,000 lira.
75. Code Civil Portuguese of 1867, art. 2506-2508; Spanish Civil Code of 1889, art. 1244
and 1248; especially in Germany and Switzerland, where there is no limit to the admission of
oral proof. But many authors, in these same countries, criticise this latitude as too wide: cf.
L. Rosenberg, Leltrbuch des Deutschen Zivilprozessrechts 537 (4th ed. 1949).
76. Fairly recent laws have been enacted, in English law, for reducing certain transactions
to writing, as for example wills (Wills Act of 1937) or sales of real property (Law of
Property Act of 1925). In such cases proof by other means than by writing is in principle
not admissible; see Phipson, Manual of the Law of Evidence 99 (8th ed. 1959). On all
questions of proof in Anglo-Saxon law see the classic treatise of Wigmore, Evidence (3d ed.
1940).
77. See, e.g., for the law of England: when a document has been drawn up to express an
agreement, whether the law requires it, or the parties have agreed to do so, oral proof is not
admissible against the writing, nor to add or restrict the provisions. However, an entirely
oral agreement can, although it cannot create a subsequent modification, produce the total
rescission of the contract. Cf. Phipson, supra note 76, at 99, 108.
78. In France, the only case where the seal is still required in a private document is that
of the mystical will, which is so regulated by article 976 of the Civil Code: "When the
testator wishes to make a mystic or secret will, he shall be required to sign his dispositions,
whether he has written them himself, or has had them written by another person. The
paper which shall contain his dispositions, or the paper which will serve as envelope, if there
is one, shall be closed and sealed. The testator shall present it thus closed and sealed, to the
notary and to at least six witnesses (two since a law of 1950) or he shall dose and seal it in
their presence...." But this will is so to speak no more used. In England the evolution has
taken place contrary to what has taken place in France. In France the seal, long reserved for
gentlemen, then for some bourgeois, has finally been abandoned. In England, the commoners
have received the right to have a seal, the use of which has become general. At the present
time the deed must be signed and sealed, but if the signature is correct the presence of the
seal is presumed: cf. Phipson, supra note 76, at 242, with the consequence that practically the
use of the seal tends to fall into desuetude. See also Brissaud, op. cit. supra note 68, at 462,
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 13
three basic types: documents of the civil State, minutes of officers of the
police judiciary, and notarized documents. These are furthermore of a
mixed nature, uniting at the same time the testimony of the notary (who
signs and affixes his seal) and the admission of the disposing party (who
similarly affixes his signature). Their probative force is very great,7 9 but
is limited to statements made by the public officer after a personal examination, and only in the exercise of his duties, that is, within the strict
limits of his jurisdiction. All these favors are, however, exceptions to
the common law. They rest on the role of the privileged witness which
the public authority has conferred on their authors, who are public magistrates or functionaries. As for the notary, he has succeeded to the
greffier (clerk) of the court, even to the court itself from which he has
become detached only gradually in the course of the ages,"0 and, as the
jurist Loyseau sl said at the end of the sixteenth century, "it is the judge
who speaks through them." Private witnessing documents have disappeared. Thus all which is not a written admission figures no more otherwise than as an exception, justified by reasons of security or of particular
requirements of public order.
79. The document of the civil State established good faith up to the plea of forgery,
article 45, paragraph 2, French Civil Code; similarly as to the notarial document, article
1319. For the German law see the Z.P.O., art. 437 (question of handwriting) and art. 415
and 418 (question of content): the proof of forgery or of error is permitted, but the presumption is in favor of the document.
Up to the end of the year 1958, the hearing conducted by officials of the police judiciary
had the same probative force up to the plea of forgery in French law (Cbde of Criminal
Instruction, art. 154, par. 2 and art. 189). The new Code of Penal Procedure has discarded
this unusual authority, and permits the introduction of contrary proof in writing or by oral
testimony, but leaving their probative force until proof to the contrary, art. 430, 431, 433
and 537.
80. In the earlier Middle Ages, the power of authentication could emanate only from a
single jurisdiction. The parties presented themselves by agreement before the judge, creating
jurisdiction by consent, for the purpose of having their agreement stated by the judge. In the
French of the Middle Ages, "notaire" indicates ordinarily the greffier of the court. However,
little by little, the parties, instead of coming before the judge, went directly before the
greffier, or before a notary who specialized in this function of receiving contracts, by dividing
the function which was originally a single function. But there existed for a long while two
types of notaries according to regions, bitterly disputing the jurisdiction in the bordering
zones. In the notariat of the Italian type, the notary, although attached theoretically more or
less to a court, acted alone, without the intervention of the court. This notariat spread in
the twelfth century into Provence and Languedoc. In the other system, characteristic of the
country more to the north, the notarial documents acquired authenticity only when completed by the seal of the jurisdiction to which the notary was attached. The definitive
separation between the notary and the court took place only gradually. See on this question
Brissaud, supra note 68, at 458, n.5 and 461; Giry, Manuel de Diplomatique; A. de
Bouard, Manuel de Diplomatique Franeaise et Pontificate, II, L'acte priv6; G. Tessier, La
diplomiatique; 4 A. Gouron and J. Hilaire, Les 'sceaux' Rigoureux du Midi de la France, Rec.
Memoires et Travaux Soc. Hist. des anciens Pays de Droit AOcrit, 3 et seq. (1957). For the
document sealed with the seal of the jurisdiction, in England, see R. L. Henry, Contracts
in the Local Courts of Medieval England 131, 178 (1926).
81. Des oflices, liv. II, ch. V, No. 50.
1964]
EVOLUTION OF WRITTEN PROOF
The written admission, in the handwriting of the disposing party, has
regained the essential place. Its supremacy is displayed in all respects.
First by its diffusion, and the frequency of its use. Also by its form and
the unity of its nature, which consists solely of the writing of the disposing
party, or even of his simple subscription"' or signature at the end of a
typed or printed text, without the least recourse to witnesses to the document, and which our judicial decisions have also aided by the almost
complete practical assimilation of the simple exchange of letters to a
document under private sign properly so called. By this it is possible to
measure the road which has been taken since the wise precautions of
antiquity, the abandonment of which has not provoked-far from it-the
reappearance of falsification. Finally this handwritten document in its
pure state has a very great value as proof. As in the case of all written
proof, it is of greater admissibility than testimony, at least in the legal
systems which follow the French example. And its probative force, once
the problem of the authenticity of the writing (which must be recognized
or verified judicially if it is disputed), is regulated, is equal, as to its
contents, to that of an authentic document, with respect to those who
have signed it.83 Finally, its success is equal to its concomitant, the holographic will, the use of which hardly goes back beyond the sixteenth
century:84 there, the demands are greater; besides the signature, the
whole document and its date must be in the hand of the testator, due to
the dangers to which a document designed to take effect only after the
death of its author, is subject. But in every way this will is a handwritten
instrument, and the modern age, for testamentary documents as well as
inter vivos documents, is indeed the age of the triumph of written proof.
82. On the "good for," as a veritable subscription, see note 37 supra.
83. Art. 1322, French Civil Code: "The private document under seal, recognized by the one
which it matches, or kept legally for recognition, has, between those who have subscribed and
between their heirs, the same faith as the authentic document." There are fairly analogous
provisions in German law: the private document (Privaturkunde) must be proved true if it is
contested, or if its signature is contested, art. 439; it is a question of handwriting. But once
this problem is resolved, as to the contents, it creates full faith (see sec. 416 Z.O.)
The participation of instrumental witnesses is not required, in most European legal systems,
except for formal wills.
84. 1 Ch. Lefebvre, L'ancien Droit des Successions 196 (1912); 2 Fr. Olivier-Martin, Hist.
Coutune Prey. et Vic. Paris,2, 494, 507 (1930) ; Brissaud, supra note 68, at 663; G. Lepointe,
Les Successions dans l'anc. Droit, p. 236. IT many countries, as in France, this form of will
tends to become used almost exclusively.