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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: [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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Title: [14 April 1804 Evidence Forthcomingness]Description: 14 April 1804 Evidence Forthcomingness Ch. Real Appearance In these several ways it is that security which in the character of psychological means serve for /to ensure/ the forthcomingness of a witness of personal evidence, serve /operate/ by the intervention and instrumentality of his physical powers, in the character of physical means for securing the forthcomingness of the /an/ article of real evidence of which he has the custody. Last and most efficacious as the list of ordinary securities or means comes the physical expedient of corporal caption and adduction, an expedient applicable with much less difficulty and delicacy to things, than the persons - to a source of real than to a source of personal evidence.
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Title: [14 Apr 1804 Evidence Forthcomingness]Description: 14 Apr 1804 Evidence Forthcomingness Ch. Real §. Engl. Law In cases non-penal, the necessity of investigatorial procedure to the effectual obtainment of real evidence has been already mentioned. But in these cases no such procedure is /means of coming at the truth is/ allowed/ /afforded/ by English law. The subpoenâ [...?] [...?] is without efficacy upon any but willing witnesses. The trial is appointed for a fixed day. An /A judicial/ order, denominated as above, is sent to the witness, requiring him to attend at the trial on that day, bringing with him the article /required source/ of real evidence. If it be his desire to bring it, well : he brings it accordingly: if it be not his desire, it is equally well: he leaves it behind. Oh, but then he disobeys the order, and subjects himself to the penal consequences of his disobedience - no such thing. He knows before hand what he has to expect: he is informed of it by the nature of the case, or any such information /intimation/ be necessary, by express intimation given to him by the defendant. The subpoenâ is put into his hands : but before it reaches them, care has been taken by him to empty them of the desired /wished for/ source of real evidence. Against the honest it is good : as to the dishonest it gives them their own way
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