date

3 April 1804 Forthcomingness
3 April 1804

Forthcomingness

Ch.7[?] Appearance Extraord.

§.1. 1. Pledges

Ch.7. - Extraordinary Securities for the Appearance of Witnesses.

§.1. Exaction of pledges.

1. Exaction of pledges - or in the language of the English law finding[?] security. Pledges are distinguishable and distinguished into real and personal. A real pledge for the performance of any act is understood to be given, when a mass /portion/ of the matter of wealth to a value looked upon as sufficient, is deposited in hands regarded as trustworthy to this purpose, on condition that if the act be performed in due manner and due time such portion shall be restored to the depositor; in the opposite case, otherwise disposed of, in part or in the whole, for example, made over, on the score of satisfaction, to the party prejudiced by such negative offence/failure/. The most obvious, because in general the most convenient shape that can be given to such pledge, is that of a sum of money. But nothing hinders but that it may be given in the shape of any specific article or mass of the matter of wealth, moveable or immoveable.

The employment of an immoveable article for this purpose, when the individual happens to be so provided is attended with this advantage, viz. that in this case the inconvenience /vexation/ and damage /expense/ which is apt to be attendant on a /any forced/ change of position may in general be avoided. The process may be sufficiently answered by a decision declaring the article to be untransferable during its continuance in the character of a pledge, provided that the /such/ untransferability be sufficiently notified to prevent / obviate/ that species of fraud which consists in pretending to transfer an article legally untransferable for the purposes of embezzling the price received for it.
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    A personal pledge for the performance of any act is understood to be given, when without actual deposition /deposition made/ of any portion of the matter of wealth, third persons one or more engage /bind/ themselves in the character of sponsors for the performance of the act on the part of the /their/ principal viz: the person in whose favour they are thus bound: the condition of the obligation being such, that if the act be performed in due manner and due time, then no further prejudice shall be sustained by them, and the obligation shall be understood to be at an end; but that in the opposite case, that some further specific inconvenience shall be cast upon them; for example the obligation of parting with a specific /specified/ portion of the matter of wealth, in the shape of a sum of money or otherwise, to be made over, on the score of satisfaction, to the party prejudice by such failure, as before.
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    In respect to the means of securing the exhibition of moveable real evidence, when discovered, the distinction already applied to the case of personal evidence, the distinction between ordinary means /securities/ and extraordinary, may be applied, with equal /like/ propriety and convenience, to this other species of evidence. In the case of personal evidence, the ordinary means securities have been already noted[?] as consisted /consisting/ of the judicial order for appearance the order addressed to the proposed witness and commanding his appearance - with the eventual punishment and burthen of satisfaction on case of non-appearance for the legal basis of it. In the case of this species of real evidence, the ordinary means will consist of a like judicial order, addressed to the owner or other actual possessor of the evidentiary thing in question, requiring /commanding/ him to bring it or send it by some fit person, as the case may require.

    In the case of personal evidence, the extraordinary means /securities/ have in like manner been stated as consisting of 1. [...?] the taking of pledges real and /or/ personal. 2. Fixation of domicile, 3. protection /protective licence/ against arrest. 4. visitation by the Judge. Of the four expedients thus applicable to the purpose of securing the forthcomingness of an individual in the character of a source of personal evidence there is not one that is not alike applicable to the same or any other individual in the character of owner or keeper of a thing capable of serving in the character of a source of real evidence.
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    §.2. Securities for appearance. I. Ordinary and Extraordinary.

    The propriety of the above rules being admitted, nothing remains /what now remains/ but to consider, what are the measures presented by the nature of the case as being in this or that case necessary, and in all cases conducive, to the accomplishment of the ends.

    In that /the ordinary/ state of things which is most ordinary, the proposed witness, provided the inciting motives necessary to overcome the force of the ordinarily restraining motives be presented to his mind, will have no such act in contemplation, as that of defrauding the public of that service which is commanded at his hands, and is due from him on the score of justice. The securities requisite and sufficient in this state of things for engaging his attendance, may be termed ordinary securities.

    Unfortunately this, though the most ordinary is by no means the only state of things of which experience affords us examples. Cases occurr and but too frequently, in which rather than submitt this obligation and the portion of vexation that happens to be attached to it, a proposed witness will have recourse /betake himself/ to [...?] or expatriation. Securities destined to the purpose of providing for this extraordinary state of /class of/ things may be termed /distinguished by the common appellation of/ extraordinary securities.