date

1 May 1804 Evidence Forthcomingness
1 May 1804

Evidence

Forthcomingness

Ch.3. Means physical

§.7.6. Adduction

6 Adduction

Adducture - adduction? whither? - to the seat of judicature. Subpoena [...?] [...?] - says the precept of the Judge addressed in the language of English law jurisprudence to the proposed witness, when commanded to repair to the place of trial the plan /scene/ of definitive hearing and examination - bringing with him the article /lot//source/ of written or real evidence, from which the evidence is proposed to be extracted.

This operation, it is plain, is alike applicable to the case where a person alone, and the case where a thing, with or without a person having charge of it, is the proposed source of evidence. The case of its being /where the operation is/ performed upon a person, supposes reluctance on his part: at least in the most natural state of things, for though a thing will in general require /stand in need of/ a person to bring it, a person unless withheld by reluctance or infirmity will in the natural course of things, suffice to /be competent to the task of bringing/ himself. On the other hand suppose reluctance, (a disposition of mind which to a certain degree may be expected to be prevalent in one witness out of two or three) the operation of adduction may be necessitated, by reasons /demands/ of no less cogency, in the case of a witness for the purpose of securing forthcomingness with a view to evidence, on the part /than in the case/ of a party, for the purpose of securing justiciability.
Similar Items
  • Title: [1 May 1804 Evidence Forthcomingness]
    Description: 1 May 1804

    Evidence

    Forthcomingness

    Ch 3. Means physical

    §.8.7. Commitment - Sequest

    After Adduction

    Before

    Committment - Sequestration. Committment, viz: consignment to a place of safe-custody where a person the source of evidence in question is a person: sequestration, viz: consignment in like manner to a place of safe-custody, where the source of evidence is /belongs/ a thing /to the class of things/. Operations in themselves /their physical nature/ as well as their intention much the same: but in their effects and consequences, particularly in respect of vexation, susceptible of great and serious diversity; and committment more especially susceptible in itself of great and serious diversification.

    To committ or not to committ is a question that presents itself immediately after adduction. In what case? not if the purpose of the adduction has been the extraction of the evidence at the definitive hearing: not: why? because in that case the examination has been performed, and if the proposed witness has submitted to be examined, and has made answers accordingly, as in the common course of things, the object has been accomplished and the vexation would be without use. Saving the possible though extremely rare case of the peremptory refusal to give /speak in/ evidence, in which case the operation of commitment would plainly be indispensable, the only occasion which can present a demand for it is where the examination, for the purpose for which the demand for the personal appearance of the proposed witness is required, is of the nature of a preliminary examination. In this case the object or end in view will be the securing the forthcomingness of the witness, for the sake of securing his evidence form deposition: and the supposition, the only supposition by which the pursuit of the object by means this vexatious can be justified, will be that of a reluctance on his part - a reluctance rising to such a degree /pitch/ as to render doubtful his appearance at the definitive or any intervening examination, unless the physical means in question be employed to secure it.
  • Title: [14 April 1804 Evidence Forthcomingness]
    Description: 14 April 1804

    Evidence

    Forthcomingness

    Ch. Real

    Appearance

    In these several ways it is that security which in the character of psychological means serve for /to ensure/ the forthcomingness of a witness of personal evidence, serve /operate/ by the intervention and instrumentality of his physical powers, in the character of physical means for securing the forthcomingness of the /an/ article of real evidence of which he has the custody.

    Last and most efficacious as the list of ordinary securities or means comes the physical expedient of corporal caption and adduction, an expedient applicable with much less difficulty and delicacy to things, than the persons - to a source of real than to a source of personal evidence.
  • Title: [25 March 1804 Evidence Forthcomingness]
    Description: 25 March 1804

    Evidence

    Forthcomingness

    Ch.

    Invitations

    Simple invitations /Applications simply invitative/ are evidently not applicable with propriety to the case where the source of evidence is patent /already known/: to an individual /a human/ who in his individual capacity has been fixed upon as likely to possess the information requisite to qualify him for yielding evidence: nothing could be more unconducive /unsuitable/ to the end than to trust to the casual operation of possible /possibly acting/ motives for the discharge of an almost indispensable duty from the discharge of which it may happen to a man to be withheld by forces to the magnitude of which there are no definite limits. To trust the interests of justice to the success of an application this feeble and precarious, would be to place the fate of the party in a state of absolute dependence on the will and pleasure of the witness: a state of things the mischievousness of which has already been brought to view. +

    The rule of prudence is too obvious to have any where been altogether overlooked in established practice. No system of procedure is so lame as not to furnish a system of punishment, more or less well-arranged, for in case of non-compliance with an application of this kind.

    + In B. Examination ch. Discreditory