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25 Apr. 1804
Evidence
Forthcomingness
Ch. 1. Generalia
§.1. Objects
On this head, on each occasion the object in view - [...?] desideratum - the problem, is - how to exhibit /present/ b in a condition/ to present to the sensible faculties, and thence to the psychological cognizance, of the Judge the evidence, of what nature soever, of which the party in question, and in the first place the pursuer stands in need for supporting his claim, for making out his title to that service at the hands of the Judge - to that decision which he looks upon as his due. The presentation of the evidence itself to the senses of the Judge in each instance is the final result - the ultimate object of whatever steps are taken in relation to the evidence. But to produce this final result in respect of the evidence itself, two preliminary operations are necessary to be performed /conditions must necessarily have place/ in relation to the object be it person or thing which is the source of the evidence thus to be presented.
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Title: [14 Apr. 1803 Evidence Object]Description: 14 Apr. 1803 Evidence Object In the instance of /In regard to/ the other of the two problems the solution of it will as readily be seen not to belong /recognized with equal readiness as not belonging/ to the subject of Procedure. - Why? for the opposite reason: because for the purpose of doing what depends upon the parties concerned towards the solution of it - on the legislator in his department - or the Judge in his no special steps /no fresh steps/ are to be taken in each particular /individual/ instance - in the instance of each individual cause, by the Judge - the parties or any body else. To The legislator it belongs according to the measure of his wisdom to furnish the requisite lights - to exhibit the requisite instructions: to the Judge according to the prescription of his duty and the measure of his wisdom to conform to them - make application of them respectively to each particular case. For the use of English lawyers books [...?] extant in considerable number confined by these titles as well as in their contents to the subject of evidence. In these several books, [[in margin:] professing accordingly by their titles to have for their subject such part and such alone of the field of Procedure as belongs to Evidence] the questions /topics/ /discussions/ stated /discussed/ have been principally and almost exclusively confined to points belonging to this second problem. In the present work the field of enquiry is therefore with very little variation commensurate to the field of enquiry assumed by such books already extant as exhibit the same title.
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Title: [14 April 1803 Evidence Object]Description: 14 April 1803 Evidence Object Of these two problems the solution of the first will readily enough be understood to belong to the topic /subject/ of Procedure. Why? because the providing for the presentation /exhibition/ of the evidence to the cognizance of the judge requires a multitude of preliminary steps which on the first mention of them will be found to occupy a place, and that a principal one, in the series of steps of which the course /system/ of Procedure is composed. 1. How to trace out and discover such pieces of evidence whencesoever furnished whether by things or persons i.e. witnesses as the nature of the case promises, from[?] the complexion of it, to afford. 2. When found, how to guard it against the danger of being lost before the time comes for the presentation of it to the Judge. 3. When found to exist, how to cause it to be forthcoming. 4. Witnesses forthcoming, how to make sure of their deposing. 5. Witnesses forthcoming and deposing, how to make sure if possible what they depose shall as far as [...?] within their respective cognizance be the truth, the whole truth and nothing but the truth. Of these problems - not to mention other intermediate or incidental ones the solution for the reason just mentioned will be seen at first glance to belong to the subject /system/ of Procedure. Why? because on each occasion for the solution of each problem /of these subordinate problems/ some fresh step /fresh steps/ appears /presents itself/ as requisite to be taken and these on each such occasion different ones - to be taken by or on behalf of or at the instance of one or other party, in virtue of powers given by the legislator, by or under the authority of /from/ the Judge.
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Title: [9 May 1804 Evidence Forthcomingness]Description: 9 May 1804 Evidence Forthcomingness Ch. 1. Generalia §.2. Justiciability Of the analogy thus tested, what is the practical result in use? - that whatever trouble is bestowed in this plan on the subject of forthcomingness, is doubly paid for: that by the steps here taken on the ground of evidence, and advances made nor that an inconsiderable one on the ground of procedure: and that, by confronting /from a confrontation of/ the two topics as they are handled in the existing system of law, a source of reciprocal instruction and improvement mutually applicable to both may be deduced. (a) In french, justiciables or persons, considered as subject to the jurisdiction of this or that judge. In English we may say amenable to justice. Amenability to justice, besides having the inconvenience of a compound appellative, would in its import fall short of justiciability, extending no further, than forthcomingness: not to mention its want of coincidence in other points.
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