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28 April 1804
Evidence
Forthcomingness
Ch.2. Means Courts
§.3. Ambulatory
The superiority of reported real evidence to immediate real evidence, if collected in secret as above or even in private will be more particularly manifest, in a case where for taking a correct and intelligent view of the object in question, appropriate scientific knowledge /information/ is required. suppose it a case of housebreaking; for /to the/ judging whether an entry had been made in the ordinary way, or by force and fracture, a Judge would in general be as well qualified /competent/ as an architect or any other man. suppose that on the other hand a non-penal cause between landlord and outgoing tenant - a demand for summary satisfaction on the score of delapidations. Going to the spot by himself, a Judge would be utterly at a loss what sum to award. Sitting quietly in the Courthouse, he would hear Architects on each side, or an Architect appointed on both sides, and his decision would rest on the best grounds the nature of the case admitted of /competent and unexceptional grounds/.
As to written evidence, it can scarcely happen to it to present any sufficient /adequate/ demand for a step thus deviating from the ordinary course. An inscription upon a building or a tomb stone, yes: in regard to written documents of the ordinary kind physical incapacity of being removed can never take place /be realized/; & in case of inconvenience transcripts may in general come in lieu of the original to every practical purpose.
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Title: [13 May 1804 Evidence Forthcomingness]Description: 13 May 1804 Evidence Forthcomingness Ch. 3. Means physical §.1. Verbalization necessary The principal sources of diversification requiring on this occasion to be drawn from /upon/ will be seen to be as follows: - 1. The subject matter of the operation: which, in most instances is the same thing as to say, the source of evidence: viz: an object of /belonging to/ the class of persons /person or a thing/: and object belonging to the class of things: a thing at large, or that particular sort of a thing which constitutes a source or article of written evidence: a receptacle, as in case of entry - or a thing contained in a receptacle: in both instances a thing belonging to the class of immovables, or a thing moveable ... 2. the stage which the operation occupies in his relative order of relative time: in the course or order of procedure. - entry, search, inspection, arrest or seizure, detention, commitment or sequestration: such is the order which presents itself as that in which the several operations, such of them as on each occasion come into exercise, seem most likely /naturally/ to succeed one another in the ordinary state of things. Of the two remaining ones - identificative notation, and maintenance including alimentation - it will be seen /appear/ that they are less constant in respect of the demand for them, and unless fixed in point of relative time. I proceed to bring them to view in an order which without deviating much from that /the strict order/ of relative time, presented itself /appeared/ as preferable by saving /preserving/ the enquiry from the confusion incident to the premature mention of articles occupying a particular station on the list.
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Title: [20 April 1804 Evidence Forthcomingness]Description: 20 April 1804 Evidence Forthcomingness Ch. Deperition. prevent g §.2. demand §.2. Demand for separate /distinct/ arrangements having for their end in view the preventing the deperition of evidence. When an article of evidence of any kind - personal oral, real, or personal written - has once been exhibited - at least if the exhibition made of it has been duly registered - the deperition of it has been prevented. So far therefore - that is in the ordinary state of things the provision made for the forthcomingess of evidence - and the provision made for preventing the deperition of it, coincide. But a case conceivably enough, is that which the ordinary course appointed for the securing the forthcomingness of evidence in ordinary cases, is pursuing, the evidence which should have been rendered forthcoming, may perish: at the same time, that by an appropriate deviation, made in this view, from the ordinary course, it may /might/ have been preserved. The arrangements which present themselves as exclusively or more particularly adapted to this object, may on this account require to be distinguished from, or from among the arrangements directed to the more general object - the securing forthcomingness in regard to evidence.
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Title: [16 May 1804 Evidence Forthcomingness]Description: 16 May 1804 Evidence Forthcomingness Ch. Investigatorial Certain it is, that it is from the practice of English not of French Law - of the system in which the light of indicative evidence is /seems to be/ obtainable in all cases - not of the system in which it is not obtainable but in so narrow a description of cases - that in my own instance the idea of the distinction was deduced elicited. In different tribunals not competent to ultimate decision I observed masses of evidence collected: parts of it I saw preserved or at least noted and thereupon in tribunals competent to ultimate decision employed in the character of ultimate evidence (a) The other part staid behind received no further employment. Of this residuum /caput morturum/ what was to be said? Had it not been received? had it been excluded /refused/ to be heard /refused a hearing/ on any of the thousand pretences on /by/ which evidence on the occasion of the ultimate examination called a trial stands excluded? Not it indeed: it had been heard with as little objection as the most /best/ unexceptional evidence. Would it have been heard then known as it must have been in a general way what was to be expected from it - would it have been heard without any prospect of its being of any kind of use? No certainly. In what way then must it have been expected to prove of use? In the way of leading to the discovery of other evidence immediately applicable in an immediate way to the purpose of evidence. Note (a) In the case of preparatory examinations taken by single Justices of the [...?] material witnessess bound over to give evidence at the trial. In the case of investigation performed by a Committees of Parliament, and Commissions of Inquiry, evidence collected, and prosecutions in the way of impeachment or indictment grounded on the information thus obtained.
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