date

6 April 1804 Evidence Forthcomingness
6 April 1804

Evidence

Forthcomingness

Ch.8. Appearance Extraord y

§.5. Sick bed

As to the consumption /demand/ extraordinary draught made by it upon the judges time, the inconvenience is possible only, not unavoidable. Cases of this sort will in comparison be very rare: when they do happen, unless the time of the Judge be overloaded by ordinary duties, this extraordinary one will not easily or frequently be productive of any such effect: and if all this not to speak of other purposes, the judge have the power of deportation, as he ought to have, the /this/ inconvenience at any rate will be obviated altogether.

How the evidence be extracted in this less advantageous way at an earlier period, or at the price of the requisite degree of delay, shall the operation be postponed, and the evidence extracted in the same advantageous way at a later period: viz: after the return of the patient to a state of health such as will enable him /requisite/ to render this service in the regular mode and place. - The option /choice/ /decision/ it is evident must be left /committed to the discretion of the Judge. The quantities - the values of antagonising advantage and inconvenience to be weighed against each other, being on both sides susceptible of indefinite variation, every /any/ regulation which assumes them to be fixed, cannot but be erroneous. The great evil to be guarded against it being an irreparable one will be the deposition of the evidence, by the extinction of the source. Further[?] in another chapter.

As to the formalities proper to be observed in the conduct of an operation of this kind, any details in relation to them would hardly pay for the space they would consume. The leading principles are already given. Of the several securities for trustworthiness and their respective uses the Judge is supposed to [...?] a competent conception. It will apply more or less if the security deriveable from this source, according to the degree in which the patient is capable of bearing it. He will take with him for example either no person but his official amanuensis, or he will give [...?] [...?] to a party or an /a professional/ agent of a party on each side.
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    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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    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.
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    To point the attention of the reader a preliminary /general/ observation may in this place have its use. for the investigation /discovery/ of the operation which on each occasion may be /promises/ conducive to the end in view - conducive to the purposes of direct justice, no straw of attention, no particular sagacity will in general be necessary: which on each occasion will be conducive to the end /that end/ in view is a question to which a ready answer will in general be presented by the plainest common sense. The point of difficulty is the vexation: a collateral and undeservable /an unsought worse than useless/ product resulting, in a quantity more or less considerable, from every one of these operations: vexation in the case of personal evidence for example to the proposed witness: in the case of real evidence, to the possessor of the source of real evidence, or to the possessor of a house, ship, waggon or other receptacle in which the source of real evidence (not to speak of personal or written evidence), is lodged. On this occasion, as on all others within the field of legislation /judicial procedure/ comes the constant and constantly difficult but necessary option - the option to be made between direct injustice and collateral inconvenience: to determine what price it is necessary and worth while to pay in the shape of mischief /inconvenience/ produced on the one hand, to purchase security from /exemption from//the absence of/ mischief on the other: and in each case /instance/ to increase to its maximum the advantage obtained; to reduce to its minimum the price thus paid fore it, to determine in this view what power shall be allowable by the judge to the party: what allowed to the party immediately or through the medium of the judge, by the legislator.