date

30 April 1804 Evidence Forthcomingness
30 April 1804

Evidence

Forthcomingness

Ch 3. Means physical

§.3/2 Search

Search for [...?] /[...?]/ document is [...?] search: where where it is an [...?] or [...?] comprised in a book or mass of papers, inspection: which [...?]

To the principal import of the word Search is attached or not attached an accessory idea - , viz: that of latency or latitantcy on the part of the object searched for.

latitantcy, if that object be /if it be/ a person: concealment, self concealment is in that case implied in it in that case. latency without latitantcy if it be an object of the class of things. In this case on the part of some person there may be a desire of concealing it; but such desire is not implied in the import of the word search: for so long as the thing can not be found, there is the same need of searching for it, whether any desire of concealment exists on the part of any person or not: so long as a thing is not to be found, by the possessor of it, who wishes to find it, nobody wishing that he may not find it, the possessor of the thing contained, and of all receptacles containing it - house, room, [...?], box - is in /under/ the same necessity of searching for it, as if all the world were desirous it should remain concealed /unfindable/.

Written evidence, it is plain, is no less apt to be the object of search than real evidence at large. In a particular case viz: where the source of the evidence, not being removable without preponderant inconvenience, requires not only to be discovered but to be read, another term the word inspection is commonly employed: (a) but in this case the use of the word inspection does not supersede that of the word search: search is an operation necessarily preliminary to that of inspection, if the particular document in question is a constituent element /an elementary part/ of a large /an aggregate/ mass, the elements of which being in any way brought into physical contiguity, as in the case of a Book of Accounts, or collection of books or a bundle of papers compose a whole /a sort of receptacle/: in which the search for the particular document in question is to be made.

(a) a particular, in the language of highest law
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  • Title: [29 April 1804 Evidence Forthcomingness]
    Description: 29 April 1804

    Evidence

    Forthcomingness

    Ch 3. Means physical

    §.4.3. Inspection

    3. Inspection

    3. Inspection. This in the primary signification of the word is an operation of the utmost simplicity. The performance of /faculty of performing/ it requires no special /not necessarily/ legal power. Standing in a public road a man may see what is passing in a contiguous or adjacent private field: not to speak of the inside of a garden or the outside of a house. Distinctions might be added in no small number: distinctions bearing on differences, which on certain occasions, tax-gathering for instance, would not be in much danger of being reputed /deemed//considered as/ frivolous, at least by contributors in whom the species of vexation - indisputable but frequently in so unhappy a degree inevitable vexation - were imposed.

    But the case /in the cases/ to which on the ground of evidence the term is most apt to be employed, it is mainly synonymous to Search. I mean the case of sources of written evidence of whatever nature, preappointed or casual. (a)

    (a) Note Pre-appointed indeed more particularly: in the case of casual scripts, such as private letters memorandums - literary compositions - the word search being most apt to be employed, by reason of the unwillingness /reluctance/ to discover, the desire of concealing on the part of the possessor - the consequent latency of the documents - circumstance which the term /word/ signifying appears to imply, and which the operation /thing signified/ serves to obviate and put an end to. In this instance /instance/ inspection would be exactly synonymous search, were it that the word inspection odes not, as the word search does, bring to the view of the mind two distinct objects, a thing contained searched for, and a receptacle in which the search for it is made.
  • Title: [18 April 1804 Evidence Forthcomingness]
    Description: 18 April 1804

    Evidence

    Forthcomingness

    Ch.3. Means physical

    §3. 2 Search

    Search, an operation which in the instance /case/ of personal evidence is oftentimes rendered necessary by intentional latency - and in the instance of real evidence by intentional concealment - is pat in the instance of written evidence to be rendered necessary, sometimes by concealment - this act of the person in whose custody it is - parallel to the case of emolument including self concealment in the instance of personal evidence, is that of latency - difficulty of being found [...?] sometimes by a sort of unintentional latency on the part of the on the part of the document which constituting the force of real evidence. inaccurate being: the document itself.

    To the case of deeds and other detached written instruments, especially such as have a direct bearing on the matter in dispute, the operation is not so congenial - the expression so naturally applicable: as in the case of Registration books /Books of Account and other Registers/. Those who ever may be the owner or keeper of them may naturally enough be expected to be forthcoming at the first word: that he should know in what place or receptacle in his custody they are to be found - that he should know where to lay his hands on them at the first word, is an expectation that may naturally enough be expected /entertained/.

    In the case of Books - Registration - Books /Books of Accounts/ - in which a mass of heterogeneous matter, unlimited unlimitable in quantity and quality may happen to have been consigned, the idea conveyed by the word Search is very different - the operation may in an indefinite degree be laborious - may for the adequate performance of it require an infinitely greater length of time. (a)

    (a) Examples from English law with references to the cases in which such references have been made or required.

    1. Journals of the House of Commons.

    2. Journals of the House of Lords.

    3. Books of the Privy Council.

    4. Account Books of the Navy Office.

    5. Archives of an English University.

    6. Archives of a body corporate comprising the Government of a Borough Town.
  • Title: [12 April 1804 Evidence Forthcomingness]
    Description: 12 April 1804

    Evidence

    Forthcomingness

    Ch. Written

    §.4. Rules

    §.4. Rules concerning the faculty of Inspection &c, with its concomitant operations.

    Rule 1. Wherever by reason of impertinence /want of interest (natural interest) on the one hand viz./ on the part of the invoker of the evidence, and vexation on the other, viz: on the part of the possessor of the evidence /document or mass of documents/, the evidence, although it were to afford conclusive proof of the allegation in respect of which it were proposed to be produced, ought not to be produce din the character of ultimate evidence, in such case neither ought /should/ the right /faculty/ of preparatory inspection, examination and transcription as against an unwilling possessor /without the consent of the possessor/, be allowed by the Judge.

    Rule 2. Wherever the production of the document or mass of documents ought to be compelled /made compellable/ in the character of ultimate evidence, the right of preparatory inspection examination and transcription of it ought to be granted, even without the consent of the possessor, so far forth as may be necessary for preparing it to be produced /serve/ and operate in the character of ultimate evidence.