date

1 May 1804 Evidence Forthcomingness
1 May 1804

Evidence

Forthcomingness

Ch. 3. Means physical

§.5.4. Transcriptitions

After Inspection immediately

Imitative representation. - Transcription.

4. Transcription - This, taken in its literal and most confined /narrowest/ sense is an operation, confined as to its subject matter, to the case of written evidence. It may be necessary, whether without preponderant inconvenience, the document in question can or can not itself be removed without preponderant inconvenience. In the latter case, the produce of the operation the transcript will in all events and in every state of things be an indisputable /indisputably necessary in the character of a/ substitute to the original; for the purpose of the definitive hearing and the exhibition made on that occasion of the evidence in question in the character of ultimate evidence. In the other case, it may or may not be necessary for the purpose of previous exhibition or consideration or exhibition at a /any/ time prior to that of the definitive hearing of the cause: if the contents of the document are compleatly foreknown by the party who will have occasion to exhibit, transcription at an early period, and for the purpose of consideration, is of course unnecessary, but if in any point it fails of being compleatly foreknown, transcription may be necessary /requisite/, and the necessity of it will be more and more urgent in the proportion in which the contents of it fail of being foreknown: the necessity of the transcription will be more and more urgent: insomuch that a case may easily happen in which a refusal of the liberty of transcription, shall be tantamount to a refusal to cause or suffer the source of evidence to be produced at all - in a word tantamount to a denial of evidence, which is itself tantamount to a denial of justice.
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  • Title: [18 April 1804 Evidence Forthcomingness]
    Description: 18 April 1804

    Evidence

    Forthcomingness

    Ch. Written

    §.1. Analogy

    In one respect however, in respect of preparatory examination written is more analogous to personal than to real evidence. To what preparatory in contract-distinction to ultimate interrogation is in the case of personal evidence, corresponds preparatory inspection, and, in case of need, preparatory transcription or abstraction, in the case of written evidence.

    Inspection in this particular case is analogous in some measure to discovery, in /as applied to/ the case of evidence in general: transcription, to appearance - [...?] or say production. The discovery of the document - the deed, the register, the official book is the discovery of the course of evidence. But, after the source has been discovered, inspection - examination of the document or aggregate mass of documents may be necessary, for the purpose of discovering what particular articles of evidence may be obtainable /deriveable/ from that source.

    In the case of written evidence, the point upon which what concerns the provision to be made for ensuring the forthcomingness of it, is /principally turns/ the provision to be made for the exercise of the faculty of inspection - viz: of preparatory inspection - together with the faculty of transcription, including abstraction, in consequence of the information which by the exercise of the faculty of inspection, has been obtained.

    On this head, the following leading rules or observations may be premised.
  • 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.
  • Title: [18 April 1804 Evidence Forthcomingness]
    Description: 18 April 1804

    Evidence

    Forthcomingness

    Ch. Written

    §.2 [...?] [...?]

    In many cases, without the faculty of preparatory inspection and transcription, the faculty of employing the document or mass of documents in question in the capacity /character/ of sources of ultimate evidence, viz: within a fixed or narrowly limited space of time - such for instance as the compass /duration/ of a single sitting, would be of little use, or even absolutely of none. The chance of its being so will be variable ad infinitum, according to the smallness or bulkiness of the mass - the order or disorder in which the materials /elementary parts/ of it are arranged - the presence or absence of appropriate assistances having for their object the affording facility to such researches /research/ - such as Tables of Contents and Indices.

    The following is a view of the purposes for which such /circumstances by which the demand for/ preparatory examination may be found necessary /created/ : the more necessary in proportion to the bulk /quantity/ and intricacy of the aggregate mass -

    1. Opportunity of searching out the relevant matter (viz: that which is so with reference to the suit) and extracting it /picking it out/ from the irrelevant. Time to transcribe the passages in question, either at length, or in the way of abstract. 3. Time to put in order, the materials so extracted and observe the different bearings of the different parts of it upon the cause /matter in dispute/, upon the points to be proved, and the inferences which it maybe made to afford, /conclusion capable of being deduced from it/.