date

29 April 1804 Evidence Forthcomingness
29 April 1804

Evidence

Forthcomingness

Ch.3. Means Physical

3. Inspection

3. Inspection. By this word we are presented with the idea of an operation to /by/ which, considered in the light of a purely physical no degree of /scarce only/ vexation could be attached /be produced/. Corn can not at this time of day be blasted by being looked at: person or thing, no alteration of a purely physical can be produced in the object, by its being subjected to this process. By the penetrating glance of an improperly curious eye, - in a manufactory, in a library table - in a bedchamber - secrets indeed may be disclosed, secrets over and above the facts the disclosure of which a man is entitled to for the purpose of legal evidence, and the degree of vexation producible by the disclosure has no assignable limits.

The case to which this operation is more particularly though not exclusively applicable, is that of written evidence.

In this case the vexation producible by inspection wears a very different complexion, according to the nature of the source of the evidence /evidence/ - according as the evidence belongs to the head of contractual or other pre-appointed evidence, or that of casual evidence. In the first instance the script generally speaking can not but have been intended, or at least ought to have been intended for public inspection: for the inspection, if not of every man indiscriminately at least of every man interested in point of right /deriving a right thereto from special interest/, and at any rate of the Judge. In this other instance - as in the case of a letter, a memorandum book - a private correspondence - the matter spoken of in the script may be such as were intended to be carefully concealed from every person than the individual addressed - such as no one else has any legal interest in being acquainted with, and such as source any person could be made acquainted with without serious inconvenience and acute mental suffering to the parties to such correspondence.
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  • Title: [29 April 1804 Evidence Forthcomingness]
    Description: 29 April 1804

    Evidence

    Forthcomingness

    Ch 3. Means physical

    1 Entry

    1. Entry a topic, the application of which is confined to real evidence To adduction ad tribunal inspection is always necessary always: to inspection, search frequently: to search, entry commonly: almost always, if the spot in which the search is to be made is private property almost always.

    Vexation or not, and if any, to what degree, are questions that depend much upon the nature of the place upon which the entry is made. Land unenclosed, vexation, none: land enclosed, vexation commonly but little. Buildings, vexation is apt to [...?] greater and greater, according to the customary degree of reclusion and privacy of the place /spot/. An Outhouse, such as a barn or stable: in the case of the dwelling houses the outer door only passed through, or an inner door: the door of a common parlour only, or of a bedchamber: the bedchamber that of a person of the male sex, or that of a female. As to secrets in trade they will seldom be susceptible as being discovered by mere entry, without search.
  • Title: [8 May 1805 Evidence Introd]
    Description: 8 May 1805

    Evidence

    Introd

    Ch.5. Collateral incidental

    ' 4 Vexation Persons.

    3. Nor are third persons exempt from the chance of finding themselves involved in the mass /current/ /stream/ of vexation produced by a suit at law.

    In the case of Bail, the vexation though not the less real, yet being in one /a certain/ sense voluntary, finds in some degree a compensation by the pleasure of sympathy or whatever other motive gave birth to the consent as to the rendering of this service.

    But not infrequently it happens to third persons without any such consent, and without any habitual /particular/ connection with either party, it happens to third persons to find themselves thus involved. 1. A defendant or his goods being under pursuit for the purpose of securing his forthcomingness or justiciability the house or presence of a third person is broken in upon, or even his personal safety put in danger by his being called upon, and obliged, in virtue of an appropriate provision of law, to join in the pursuit.

    2. Secrets the discovery of which operates prejudice of /in a way prejudicial to/ a third person come to be disclosed by means of the examinations incident to the investigation of a chain of evidence.

    4. In a certain sense even the public, the community at large, are not altogether exempt from the vexation to which from the source /unsusceptible of vexation from this source/ here in question third persons are exposed. The public have not indeed a house /dwelling/ to be broken in upon, or a person to alarmed or plagued. But there are secrets by the disclosure of which the interests of the public in general may be injured. To this head belong all such state secrets by the disclosure of which the pernicious designs /purposes/ of an enemy, or of a power about to become such, may be served.
  • Title: [26 April 1804 Evidence Forthcomingness]
    Description: 26 April 1804

    Evidence

    Forthcomingness

    Ch.1. Generalia

    ยง.3. Means - 1. Powers.

    With regard to the applicability of the two classes of means in question thus brought to view to the accomplishment of the three objects respectively a general /a leading/ observation or two may in this plan be not without its use.

    1. In regard to the investigation and discovery of a source of evidence - a person a thing or a writing in that character, so far s the discovery is either of persons or through persons, and so far as it is necessary that the person by whom the discovery is to be made should be present viz: at the seat of judicature in order to make it, the means applicable to this purpose will coincide with those applicable respectively to the purpose of causing appearance on the part of a proposed witness, and to the purpose of casing his evidence to be extracted. There remains the case of correspondence with a proposed witness by written discource at a distance, of which in another place. As to the obtainment of the latter, to this object physical means will be inapplicable, psychological inapplicable, as will be seen more fully presently.

    2. In regard to causing the appearance of some source of evidence person, thing, or script - physical means and psychological means will be equally applicable - alike capable of being made conducive to this purpose - though not equally eligible. The man may be brought into court, with the script or other thing - or either may be brought without the other.

    3. To the extraction of the evidence, where a person is the source, physical means, applied /considered/ as such, and in the way of direct application, are obviously inapplicable /ineffective/. Physical means, in themselves, have no direct action on the mind. Though torture were employed - material, physical instruments applied to the material part of mans frame, if the application be productive of any effect, it will be in the character not of a physical application, but of a psychological one. If any evidence be extracted by it, it can only be through the medium of his mind: it will be extracted, not by the force of what is past, but by the fear of what is to come. You may squeeze blood out of a mans body, but, if mind yields not, you can not squeeze out evidence.