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THE

AMERICAN LAW REGISTER.

JANUARY, 1869.

TIIE LEGAL RELATIONS OF PHOTOGRAPIIS.

PHOTOGRAPHY is not only an interesting art, esthetically considered, but it is capable of important scientific applications. The public are familiar with its employment in the delineation of anatomical specimens and of all natural historical objects. It has also long been used for the purpose of identifying criminals. These, however, are but a few of the many applications of the art, which either have been suggested or, as civilization progresses, will be made, for purposes analogous to those indicated above, that is, either to transcribe and fix for the information of scholars or of strangers the features and other physical peculiarities of objects or persons that are absent, but about whose identity there is no question; or to aid in the identification of things or persons present, with others that are absent, but whose photographs are at hand. Thus—for the purpose of identification-an English law magazine has lately proposed that there should be appointed a public photographer, whose duty it should be to take and register the likenesses of all persons leaving England, and, once in every five years, of all persons residing in England-each person, with his photograph thus taken, to deposit also his autograph: Solic. Jour, and Reporter, for June 27th 1868. In the United States, it is said, the directors of the Park Bank of New York, establishing regulations for their new safe-deposit vaults, have adopted the idea of identifying each holder or lessee of a safe by his own carte-devisite previously taken and attached to his own folio or safe numVOL. XVII.-1

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ber. It has also been suggested that to the “paper” of every person who becomes naturalized, there should be attached his photograph, either fastened there by the official seal of the judge or commissioner, or taken by an official photographer on the paper itself. So, for the other purpose indicated, photography has lately been employed in England in a manner equally novel and interesting. Candidates for election to Parliament have, in some instances, it is said, instead of resorting to personal solicitation of votes, issued addresses containing, besides a declaration of principles, photographic likenesses of themselves. These all seem to be practical uses of the art; but others may be imagined of both kinds which would result in material advantage in the administration of justice and at the same time have an important bearing on the spread of civilization.

Thus—to aid in the identification of persons—the endorsees of drafts or letters of credit might be required, in important cases, to exhibit with the paper they hold their photographic likenesses with the endorsements under which they claim written upon their margins. So, a party seeking a divorce from an absent husband or wife, might be required to produce their marriage certificate containing the photographic likenesses of both, taken at the time of the marriage, by an official photographer; or to present the photograph of the person from whom a divorce is sought, and prove the identity aliunde. So, all persons enlisting in the army or navy might advantageously be photographed by an official photographer; all persons travelling as agents for commercial houses or acting otherwise in such a capacity as to make an identification desirable to those with whom they act. So, for the purpose of accurate delineation, many new uses may be imagined. Thus not to mention that large class of cases in which the art might be employed with great advantage in describing goods and chattels, and even real estate, to persons at a distance with whom the owners were in treaty for the sale of them—in all cases in our courts where, as in chancery causes, the depositions of witnesses not present are read, it would aid much in weighing their testimony, if their photographs were appended to their depositions. An official photographer might, on the suggestion of counsel, be present and take the likenesses of each witness, if desired, not only in his tranquil moods, but in moments of excitement or of embarrassment under cross-examination--the artist and his appa

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ratus being so placed, perhaps, as not themselves to be a cause of trepidation. The same advantage would follow from the accurate presentment of the moral, as determinable from the physical, qualities of witnesses, by photography, in many cases tried on appeal, where the result depends on the testimony of witnesses not present. So, where questions arise at Nisi Prius as to the genuineness of the alleged handwriting of a party, and the case is appealed, the difficulty of presenting the supposed spurious paper to the appellate court would be obviated by using a photographic copy. So, where an issue is made up as to the validity of a will—the will being contested on the ground of want of testamentary capacity, from imbecility, insanity, &c., it cannot be doubted that material aid in arriving at a just result might be derived from a photograph of the testator, taken by an official artist, in the act of signing the will, in the presence of the attesting witnesses. So, where a homicide has been committed, it is always important to ascertain as well the condition of the body when discovered as its position or relation to surrounding objects. In trials for murder or manslaughter, much time is very properly occupied in determining these circumstances from the imperfect and conflicting statements of witnesses, or from the rude plans and drawings of such artists as may be in the vicinity. It is obvious that were there an official photographer charged by law with the duty of taking views of the body and its surroundings in every case of homicide, and were it made the duty of the police or other exceutive authorities, before any change in the condition or relations of the body has taken place, to cause the official photographer to be present for the purpose indicated, the ascertainment of the facts relating to the killing would be much facilitated. And particularly would this be the case were the same precaution taken whenever any person is arrested charged with the crime, and the accused is to undergo the ordeal of a public interrogation before a magistrate or by the officers in charge. The official artist would preserve the lineaments of guilt or innocence as presented when the nature of the charge was communicated to the prisoner, and his protestations of innocence were uttered. I shall mention but a single other case in which the art might be similarly employed, and that is, where affrays or riots occur in large cities. The Emperor Napoleon is said to have so reconstructed the city of Paris, that there is no street or avenue, which could be barri

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caded in case of a revolt of his subjects, that cannot now be swept by his batteries. So, it is not unreasonable to suppose, that when the art of photography is perfected, the streets and alleys of our great cities will be swept by photographic batteries, so located as to take, from many points of view at once, the likenesses of persons engaged in disturbing the peace, for use in subsequent legal examinations. The details of the process, including the collateral incidents which science may deviso to render it effective, such as lights thrown upon the mob to bring into relief in the night or in cloudy weather the individuals composing it, I shall not attempt to give. That is the business of those charged with the improvement of photography. All I affirm is, that the art is capable of such an extension; and I need not add that to apply it thus successfully would be of advantage in the administration of justice equal to that which resulted from the employment of street-lamps in cities-one of the most efficient causes, as historians admit, of the diminution of crime and of the consequent advance of civilization, that have ever existed.

The principal object of this paper, however, is, to determine the evidentiary rank of the products of the photographic art. Is a photograph, considered as a narration or delineation of facts, a piece of hearsay, or of original and direct, evidence? Let us look at it as employed for each of the two purposes indicated, that is, first, for that of identification, and, secondly, for that of mere delineation of features or qualities. Before proceeding to do this, with respect to the former, we must determine what is involved in the process of identification of a person or thing as ordinarily effected in a court of justice. In identifying a person a witness is produced and required to compare the person presented for identification with him with whom he is sought to be identified, as the latter remains pictured in the witness's mind; that is, with the conception or image of him existing in his “mind's eye.” So, if the identification be of one physical object or place with another; the same act of comparison of the thing presented with a mere mental image or idea of it, is required of the witness.

Now, let us suppose a photograph to be employed for the same purpose: a witness—he may be an expert-would be asked to compare the person proposed with a likeness or image of him formed, not by the mysterious operation of vital laws and forces

but by the subtle actions of chemical agencies; formed, too, not in the brain or upon the retina of the eye of the witness, but upon the equally faithful and far more durable tablet used by the photographer. The question is, are these processes so far identical as to entitle the corresponding steps in both to the same rank as evidence.

The process is, doubtless, in one respect, more complex, when conducted with than without the use of the photograph. Without it the image which forms the standard of comparison is one created in the brain of a person who stands at once as photographer and identifying witness; with it, the photographer or other person vouching for the genuineness of the photograph, and the witness making the comparison, would commonly be different persons, and the image a tertium quid, extraneous to both.

This disadvantage, however, is compensated for by the greater certainty, when the photograph is employed, that the image forming the standard of comparison is neither a compliment nor a caricature. The photographic apparatus never intentionally falsifies nor do its products ever so fade as to distort the image they present, as do the figures of things committed to the treacherous memory of men. The comparative certainty of the two processes may be inferred from a single example. The heir to an estate has been a long time missing. A photographic likeness of him, as he was about the time of his disappearance, is preserved. A person presenting himself and claiming the inheritance, an issue is made up to determine whether he is the true heir or not. Witnesses speaking to his identity must rely wholly upon their recollections of what he was when they last saw, or used to see, hima method involving every kind and degree of error to which the human mind is subject. Let witnesses, now, be shown a photographic likeness of him, proved to be genuine, and be required with it to compare the person proposing himself for identification, and the sources of error would be sensibly diminished. Others, it is true, might exist, peculiar to this mode of identification, by which the balance might, in a measure, be restored. Thus, the fact that the comparison would be of a living person, whose face might present many different phases in as many seconds, with a lifeless image, in which there may have been fixed by the imperfect methods of the art, a fleeting or unusual expression of its

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