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14 April 1804
Evidence
Forthcomingness
Ch. Real
§. Engl. Law
Of the incapacity the plaintiff is laid under with respect to the obtaining discovery of real evidence, or authentication of written evidence, by questions put to the defendant on the occasion of the preliminary examination, and thence the insufficiency of the investigatorial procedure, even in those cases in which it is permitted to be employed, for the obtainment of these objects, mention has already been made in another place. To those purposes, physical means /applications/ may be employed; psychological ones can /must/ not be employed. In a case of felony you may search a man's home for proof /evidence/, to be produced against him - you may search his cloathes his person for stolen goods for instruments of rapine /depredation/ - but you must not ask him where in case of search any such thing would be to be found. You may cause a female to be searched in a manner of which decency forbids the description but as to the putting so much as a question to her it must not be done.
Something to be said of misdemeanours.
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Title: [30 April 1804 Evidence Forthcomingness]Description: 30 April 1804 Evidence Forthcomingness Ch 3. Means physical §.3/2 Search Search for [...?] /[...?]/ document is [...?] search: where where it is an [...?] or [...?] comprised in a book or mass of papers, inspection: which [...?] To the principal import of the word Search is attached or not attached an accessory idea - , viz: that of latency or latitantcy on the part of the object searched for. latitantcy, if that object be /if it be/ a person: concealment, self concealment is in that case implied in it in that case. latency without latitantcy if it be an object of the class of things. In this case on the part of some person there may be a desire of concealing it; but such desire is not implied in the import of the word search: for so long as the thing can not be found, there is the same need of searching for it, whether any desire of concealment exists on the part of any person or not: so long as a thing is not to be found, by the possessor of it, who wishes to find it, nobody wishing that he may not find it, the possessor of the thing contained, and of all receptacles containing it - house, room, [...?], box - is in /under/ the same necessity of searching for it, as if all the world were desirous it should remain concealed /unfindable/. Written evidence, it is plain, is no less apt to be the object of search than real evidence at large. In a particular case viz: where the source of the evidence, not being removable without preponderant inconvenience, requires not only to be discovered but to be read, another term the word inspection is commonly employed: (a) but in this case the use of the word inspection does not supersede that of the word search: search is an operation necessarily preliminary to that of inspection, if the particular document in question is a constituent element /an elementary part/ of a large /an aggregate/ mass, the elements of which being in any way brought into physical contiguity, as in the case of a Book of Accounts, or collection of books or a bundle of papers compose a whole /a sort of receptacle/: in which the search for the particular document in question is to be made. (a) a particular, in the language of highest law
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Title: [29 April 1804 Evidence Forthcomingness]Description: 29 April 1804 Evidence Forthcomingness Ch 3. Means physical §.4.3. Inspection 3. Inspection 3. Inspection. This in the primary signification of the word is an operation of the utmost simplicity. The performance of /faculty of performing/ it requires no special /not necessarily/ legal power. Standing in a public road a man may see what is passing in a contiguous or adjacent private field: not to speak of the inside of a garden or the outside of a house. Distinctions might be added in no small number: distinctions bearing on differences, which on certain occasions, tax-gathering for instance, would not be in much danger of being reputed /deemed//considered as/ frivolous, at least by contributors in whom the species of vexation - indisputable but frequently in so unhappy a degree inevitable vexation - were imposed. But the case /in the cases/ to which on the ground of evidence the term is most apt to be employed, it is mainly synonymous to Search. I mean the case of sources of written evidence of whatever nature, preappointed or casual. (a) (a) Note Pre-appointed indeed more particularly: in the case of casual scripts, such as private letters memorandums - literary compositions - the word search being most apt to be employed, by reason of the unwillingness /reluctance/ to discover, the desire of concealing on the part of the possessor - the consequent latency of the documents - circumstance which the term /word/ signifying appears to imply, and which the operation /thing signified/ serves to obviate and put an end to. In this instance /instance/ inspection would be exactly synonymous search, were it that the word inspection odes not, as the word search does, bring to the view of the mind two distinct objects, a thing contained searched for, and a receptacle in which the search for it is made.
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Title: [29 April 1804 Evidence Forthcomingness]Description: 29 April 1804 Evidence Forthcomingness Ch 3 Means physical § [...?] 2 Search 2. The word Search presents a conception more complex and diversified. It is alike applicable to the case of personal and the case of real evidence. In either case, it places at least two objects upon the scene: a place or thing searched in: a person or thing searched for in that thing or place. For things in which search is capable of being made there is one general name receptacles Receptacles, confining the application of the term to the case of a space inclosed in all sides, are of all sizes from the largest church to the case that encloses the minutest trinket. The degree /quantity/ of vexation producible by the process of search, will depend in no inconsiderable degree upon the capacity of the receptacle. Encrease it /Suppose it of//Raise it to/ a certain size, it then becomes capable of inclosing a human being, and if any such person be of /in/ the number of its contents the vexation is susceptible of a /an additional/ shape, very different from that which it wears in the opposite case. Hence one material distinction - receptacles habitable and uninhabitable. In regard to habital receptacles, another very important /material/ distinction presents itself: the distinction between stationary /on the one hand/ and vehicular /movable or vehicular on the other/. Stationary, viz:. such as ordinary Houses and other /more/ buildings. (a) House upon wheels, Barns &c [...?] altogether
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