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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: [15 Apr 1804 Evidence Forthcomingness]Description: 15 Apr 1804 Evidence Forthcomingness Ch. Real §. Appearance Physical powers, powers of seizure and adduction, are however, and in a case not unfrequently exemplified, at least as necessary in the instance of trial as in that case of personal, evidence. In the case where the possessor of the real evidence is bound by a predominant interest to the preservation of it, not yes, if his probity be under the safeguard of no such tie. In this case, the witness being by the supposition adverse, where to produce the document would be notice to destroy it. To possess any chance of being successful, an application for that purpose must therefore take him unawares. He may indeed destroy it as soon as it comes into his possession, or as soon as he comes to the apprized of the application /use/, (to his wishes, an adverse one) intended to be made of /for/ it. True, and if he does so, his possession of it not being known to any body but himself, there is no remedy: but as probity is not, so neither is improbity, always attended by consummate vigilance. Take away the power of sudden seizure, as above, that a source of real evidence, which he would not produce on summons should notwithstanding be preserved undestroyed in the custody of a dishonest witness is altogether in the nature of things. He preserves it, and in connection[?] with the party who has need of it avows the possession of it. For what purpose? - For the purpose of making his own bargains for the production or delivery of it.
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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: [15 April 1804 Evidence Forthcomingness]Description: 15 April 1804 Evidence Forthcomingness Ch. Real §. Extraction In regard to real evidence there is nothing that corresponds to the provision necessary for making the witness speak in the case of personal evidence. From this difficulty the case of real evidence is happily free. Once brought into Court, real evidence speaks for itself. Thus in the case of immediate real evidence. In the case where the real evidence, not being transferable /[...?]/ capable of being presented to the senses of the Judge, requires to be reported to him by a percipient witness, the witness in the ordinary case, which is that in which he is appointed either by the judge, or by a party to /[...?]/ whose wishes in that behalf he is predestined to conform /concur/, will not present any difficulty on this score. If the witness whose testimony is the medium through which the Judge is reduced to the necessity of viewing the real evidence, happens to be adverse in his inclinations to the side of the party by and for whom it is wanted, evidence of this mixed character may for its production stand in need of the same extraordinary powers as those which have already been brought to view on the subject of personal evidence.
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