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15 Apr 1804
Evidence
Forthcomingness
Ch. Real
§. Appearance
Under the head of investigatorial procedure, forthcomingness, considered in a general point of view being then the subject of consideration - discovery of the source, production of the source and extraction of the evidence included - but more particularly the operation of discovery as being the earliest of the three - the necessity of that comprehensive and efficient plan /scheme/ /course/ of procedure has already been brought to view. In the case of personal evidence, the utility of it appeared to bear in a more particular manner /almost exclusively/ upon the preliminary operation of discovery: the attendence of the witness at the judgement seat remaining in that case to be provided for by other means : viz: by those other means that have also been brought to view. In the case of real evidence, over and /after and/ above discovery, the use of this instrument of justice continues to be equally indispensible, for the purpose of securing the production and preventing the disposition of it. A man can not be locked up in a box, and shifted from hand to hand among a confederacy of hands interested in /bent upon/ the suppression of his evidence. A jewel or a deed may, without prejudice to its existence for other purposes, be disposed of in this manner, and without difficulty. Under the investigational system let but one hand in the chain be discovered, the document may be pursued through all the rest - pursued from hand to hand, till it be arrested and secured by the hand of law /for the use of justice/. No hand into /through/ which it has ever come /passed/, that can either deny the receipt of it, or refuse to indicate the next ulterior hand into which it has been passed, but at the peril of the pains of perjury.
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Title: [26 March 1804 Evidence Forthcomingness]Description: 26 March 1804 Evidence Forthcomingness Ch.1 Generalia In the denomination of these several particular ends a slight change will require to be made, before they can serve with convenience to constitute /stand as/ so many heads in the ensuing pages. For the name of the result produced, we must substitute the operation by which it is or is endeavoured to be produced. By the word discovery, the desired result is indicated /expressed/. Investigation is the process which has discovery for its object or end in view. The success of the endeavour is upon the face of it matter of uncertainty, depending on other causes as well as the agency of the individual by whom the endeavour is made. Investigation being nothing [...?] the evidence is so far at his command in all cases. Investigation therefore will be /constitute/ the head under which whatever belongs to the exertions used for the purpose of discovery will most aptly be arranged. Investigation, considered as the /a/ task of the individual - the party - supposes the pre-existence of a tribunal with powers adequate to such a task. Unfortunately it is not in every tribunal that these necessary powers are to be found. Hence the necessity of a a measure[?] whereby this particular course of procedure may be brought to view - call in then investigational procedure. A judicial tribunal to be competent to the purpose of its institution should /must/ in the composition of its stock of powers, include powers of investigational procedure.
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Title: [April 1804 Evidence Forthcomingness]Description: April 1804 Evidence Forthcomingness Ch.2. Means Courts Feature 1. Sittings uninterrupted. 1. First as to the uninterruptedness of the sittings of the court. That in a Court of original and general jurisdiction no internal of inaction /incapacity for action should take place, isa topic that has been /will be/ fully handled elsewhere + /of a vacuum/ Not a day scarce an hour can take place without a certainty of collateral injustice, in the shape of vexation and delay - without a danger of direct injustice: of failure of justice or undue decision - and that for this very cause there in question, want of evidence. Evidence,in some instances may be had at any time: in others, it presents itself only for a moment only, and if not taken /arrested/ at that moment, it is gone for ever. This truth /consideration/ this important truth will be brought more particularly to view in the two succeeding chapters. + + Rationale of Procedure + Ch 6 Investigational Ch 9 Appearance Extraord y
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Title: [18 April 1804 Evidence Forthcomingness]Description: 18 April 1804 Evidence Forthcomingness Ch. Written §.1. Analogy Written evidence, partaking of the nature of real evidence in respect of its form, that is the form of the immediate source the paper or parchment belonging to the class of things - whatever under the /this/ head of securing forthcomingness there may have been occasion to predicate of real evidence, will apply /be capable /applicable/ of being/ with little or no alteration to written evidence. What conduces to the discovery of other real evidence will conduce to the discovery of this modification written evidence. The precautions /measures of precaution/ necessary for securing the appearance of real evidence, by preventing it from being shifted from hand to hand will be equally necessary and equally conducive to the obviating the like plan of evasion /concealment/ /subreption/ in the case of written evidence: with this difference that an article /apiece/ of written evidence, having no intrinsic commercial value, none but what is altogether relative, is in that respect the more expose to the danger of being destroyed in a physical sense, for the purpose of destroying it /its being destroyed/ in its character of a source of evidence. As to what concerns the extraction of this evidence is capable of yielding when produced, in other words the making it speak - it speaks for itself in general more plainly, and in a sense less figurative than any article /piece/ of purely real evidence. This however supposes the authenticity of it out of dispute: for, supposing it disputed, the trial of it in that character supposes /requires/ a course of investigatorial proof more intricate in general and difficult than any which is usually requisite for the trial of the same point either in the case of personal or in that of real evidence.
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