date

9 May 1804 Evidence Forthcomingness
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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  • Title: [5 May 1804 Evidence Forthcomingness]
    Description: 5 May 1804

    Evidence

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    Ch. 1 Generalia

    §.2. Justiciability

    §.2. Analogy of forthcomingness to justiciability.

    In this branch of the subject of evidence bears a close analogy to, is intimately connected /interwoven/ with a correspondent branch of the subject of procedure. I mean that of justiciability: on which occasion persons are considered in the character not of witnesses but of parties: things, not as sources of evidence, but as matters in dispute. In both cases /instances/ a service of a particular description is required by the law at the hands of the person upon whom its power is directed /a person is to be put into requisition for the purpose of justice: in both instances a service. But in the one case that service is of a very limited description, consisting in neither more nor less than the yielding of evidence: in the other case it consists in him /a man's/ abiding, content or not content, the sentence - the disposition of the law: how multifarious and how onerous soever to himself that service may be: that of quitting life not excluded /excepted/.

    In the case of a party for the most part the object of justiciability will be fulfilled /accomplished/ by forthcomingness, forthcomingness either of the person or of the matter in dispute: and forthcomingness, either of the party,, or the property in dispute will be necessary to the accomplishment of it /that//the/ object, as it is in the case of evidence: and thus far the two subjects coincide /go hand in hand, and in a manner coincide. But though where justiciability is in question /for the purpose of justiciability/, forthcomingness either of things or persons is almost always the desirable result, it is not in every instance an obtainable one, nor yet in every instance an altogether necessary one /result/. In the catalogue of penal, coercive and other burthensome inflictions, there is a division, and that an extensive and multifarious one, to which no forthcomingness either of persons or things is necessary. Witness banishment; fortfiture of reputation; fortfiture of the official situation; /of/ fortfiture of the protection of the law, including rights of all sorts: an infliction altogether incommensurable and indefinable, the mischief of which may vary from nothing to almost any thing.
  • Title: [April 1804 Evidence Forthcomingness]
    Description: April 1804

    Evidence

    Forthcomingness

    Ch.2. Means Courts

    Feature 1. Sittings uninterrupted.

    1. First as to the uninterruptedness of the sittings of the court.

    That in a Court of original and general jurisdiction no internal of inaction /incapacity for action should take place, isa topic that has been /will be/ fully handled elsewhere + /of a vacuum/ Not a day scarce an hour can take place without a certainty of collateral injustice, in the shape of vexation and delay - without a danger of direct injustice: of failure of justice or undue decision - and that for this very cause there in question, want of evidence. Evidence,in some instances may be had at any time: in others, it presents itself only for a moment only, and if not taken /arrested/ at that moment, it is gone for ever. This truth /consideration/ this important truth will be brought more particularly to view in the two succeeding chapters. +

    + Rationale of Procedure

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  • Title: [[...?] March 1804 Forthcomingness]
    Description: [...?] March 1804

    Forthcomingness

    §. Means 3. Powers

    §.4. General rules /principle/ respecting the choice of means.

    [...?] In a case where there is /In respect of the obtainment//As to which concerns/ a want of evidence, no means which presents a chance of being conducive to that end /the purpose/, ought to be forgone, without some special reason.

    Reason 1. The mischief liable to result from a deficiency of evidence are important and indisputable: according as it is on the plaintiff's or the defendants side that the deficiency takes place, failure of justice or undue decision may be the result /consequence/.

    Rule 2. As to the apprehended result capable of serving /operating/ in the character of a special reason, so as to forbid the employing a means /an operation/ of this or that description, as a means in relation to the end thus in view, the modifications of which it is susceptible have often been enumerated. 1. Direct injustice, in the shape of undue decision or failure of justice, a mischief not likely to ensue from such a cause, a mischief already mentioned as the natural result of the opposite state of things. 2. Collateral injustice, in one or other of its shapes vexation, expense and delay.

    In this obvious though too often neglected rule, we shall find a standard /guide//criterion/ for judging of the several sorts of means employed or employable /applied or applicable/ to the purpose of procuring evidence.

    Rule 3. Whatever physical means are employed with propriety to ensure /secure/ forthcomingness of persons in the character of parties for the purpose of their justiciability may be employed without scruple for securing forthcomingness of persons in the character of witnesses for the purpose of evidence.

    Reasons. Failure of justice is not liable to arise from /more certainly the result of/ want of justiciability than from want of evidence. As to vexation, the quantity resulting from the use of physical means where necessary to produce the effect is not greater in the case where the service required at a man's hand is that of yielding evidence, than where it consists in his abiding in the character of a party, the sentence of the law.