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22 May 1804
Evidence
Forthcomingness
Ch Investigatorial Eng Law
§.6. Equity application
§.6. Incompleat application /exercise/ of it in Courts of Equity.
If the system of procedure was the work of any one man in the character of a legislator furnished with requisite powers - if there were any one individual breathing on whom /to whose account/ the responsibility /blame/ for any the grossest and most mischievous /pernicious/ imperfections observable in it could be fixed /charged/, the single word discovery would lead to /afford on his part/ evidence but too conclusive of the most flagrant deficiency of probity or the grossest want of intelligence /either of probity or intelligence/.
The Courts of Common Law refusing /denying/ as hath been already /since/ stated all aid to justice from this source, the only recourse was in the power of comparatively modern date assumed by the Courts calling themselves /called/ Courts of Equity. An application made to a Court of Equity, and having for its object the discovery of evidence, is accordingly termed a Bill of Discovery.
When the individual of /from/ whom the information is sought is not a party to the suit - is witness purely extraneous - the Bill is not allowed /does not lie/: nothing that is called discovery - no preparatory discovery is to be had from him. Has he in his hands the evidence - say the written evidence - the deed you stand in need of to support your claim? You must commence your suit bring your action at Common Law - file your Bill in Equity, subject yourself to all that vexation and expence before you know whether it will be in your power to obtain the evidence necessary to constitute a ground for it. After a certain number of months or years spent in the combat /warfare/ commenced in the Bill you then obtain a summons /notice/ to be issued to the possessor of the deed requiring to produce the deed, appearing or not appearing to be examined in the character of a witness at the same time: if his inclinations are in your favour, he therefore produces it; if his inclinations turn against your, or what comes to the same thing lean in favour of your adversary as soon as necessary before the summons, the subpeonâ reaches him, he empties his hand of the deed and you loose your cause.
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Title: [15 April 1804 Evidence Forthcomingness]Description: 15 April 1804 Evidence Forthcomingness Ch. Real Instead of a system of procedure thus honestly and naturally directed /adapted/ to the attainment of its professed object, suppose a lame one, such as it will be but too easy to exemplify, and observe the consequence. A party (say the plaintiff) stands in need of the evidence which the documents in question, if produced at the judgment seat would afford: the document is known by him to be or at least to have been in the hands of the adverse party, the defendant; of what comes to the same thing in the hands of a third person, whose inclinations, towards the plaintiff's side, though he be not a party to the cause, are not less adverse. This being /Such being/ the /In this/ state if the facts, the provision made by the law for securing the production of the document, is in this wise /as follows/. A form of summons is provided, by which under a penalty, adequate or inadequate, the proposed witness is required to attend at the judgement seat on a day certain and not postponeable in the character of a witness: and to secure the forthcomingness of the document, to the above requisition is added /subjoined/ another, commanding him to bring it with him the document at the same place and time. Will he do any such thing? - not, if he has common sense. Witness, where is the deed /document/? it is, in the hand of [...?] ?Sir, it ought to be at hand/: before the summons was issued I had lent it him, he asking leave of me to look at it: upon receipt of the summons, I desired him to return it: he consented of course; the last thing I did before I, set out to pay my attendance here, was to ask him for it once more: his answer was that he had searched and searched, but had not as yet been fortunate enough to find it. Does Pirimus (the witness summoned) run any risk of suffering as for perjury? - not the smallest: in all this story, not a syllable but what was true.
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Title: [28 [...?] 1804 Evidence Forthcomingness]Description: 28 [...?] 1804 Evidence Forthcomingness Ch. Investigatorial §.1. Investigation - quid The discovery of evidence is an object /operation/ which every party, who feels any want of that necessary help /introduction/ to justice naturally betakes himself to of himself: by immediate application in each instance to the source of evidence, if he knows where to apply to it, and is able to apply to it with success: if not by enquiry of those whom he looks upon as able to inform him where the source of immediate evidence is to be found: a person to whom the percipient witness has related what he saw: a person under whose view the states[?] goods have come or are supposed to have come, sees the commission of the theft: a person who has had in his custody, or seen in that of another, a deed which is necessary to substantiate the title. If then these several persons are alike ready and willing, and alike seem to be so ready and willing, to land him their assistance in their respective spheres: it is well: investigatorial power, and investigatorial procedure are thus far of no use. If on the contrary, whether by enmity towards him, by connection of interest or sympathy with the adverse party - by aversion to the labour, or by fear of the expense, any one of the individuals through whom alone the needful information is to be had, is prevented from furnishing it, the just claim of the party is defeated: it is defeated as effectually by the refusal of the means thus necessary to the discovery of the admissible lot of evidence, as it would be by the refusal to exhibit it (understand at the ultimate hearing - ) when discovered. If where a deed /document/ is safely lodged in a hand public or private out of which it can not be removed but at the call of justice, a subpoenä is necessary to [...?] /ensure/ the production of it at the trial, suppose the same deed lodged for the moment in a hand /a set of hands/ interested in preventing it from being made use of on the present occasion, and /but/ at the same time interested in keeping its forthcoming for other occasions, and on that account prepared to shift it from hand to hand, power is competent to the hunting it out from hand to hand till it be caught are not less necessary than the common subpoenâ was in the other case, to enable /the enabling/ a man to obtain the justice which is his due.
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Title: [26 March 1804 Evidence Forthcomingness]Description: 26 March 1804 Evidence Forthcomingness Ch. Extraction The means of extracting formal evidence will wear a very different aspect, according to the relation which the witness bears to the cause. Is he a party? justice has him in her power: does he refuse to speak? she makes him /he loses/ lose his cause. In his station in the cause of the plaintiff? - the object of his application is defeated. By appearing in the /To appear in the/ character of plaintiff he lays claim to the receipt of a service at the hands of the Judge - no, says the judge: you have no right to any such service: you refuse to fulfil a condition you refuse to render your service to justice a service on your part, without which your title to the service you demand at my hands is defective. In his station that of `defendant'? is it the defendant who is, or rather who would be thus refractory? The hold which justice has upon him is equally strong and efficient /sufficient/. Do you refuse to speak? says the judge? it is because the claim made upon you is just: - /because/ it is out of your power to contest it. But your contumacy shall /will/ not avail you. Silence on your part may as far as you are concerned, screen particulars from view: but, for the purpose of the general conclusion, for the purpose of your condemnation, silence and confession are alike instructive. To this purpose, they are the same and under different denominations. Confession is confession by discourse; silence is confession by deportment. + Difference between penal and non-penal in this respect. + In B. III[?] Circumstantial Ch. Confessional.
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