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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: [[...?] April 1804 Forthcomingness]Description: [...?] April 1804 Forthcomingness Ch. Real §.1. Generalia Ch. Of Securing the forthcomingness of Real evidence §.1. In the case of real evidence the operation of discovery, securing forthcomingness, and prevention of deposition are so intimately connected, that so to separate them as to speak of any as without the other, is matter of some difficulty. In respect of discovery, what has been said on the subject of personal evidence, will with little addition, omission or alteration be applicable to real evidence. Moreover, the arrangements proper for /subservient to/ the purpose of /adapted to the/ securing the forthcomingness of real objects for the purpose of evidence - in the character of the matter of evidence, will in many instances /for the most part/ be applicable to the ulterior /further/ purpose of securing the same objects in the character of the matter of punishment for the benefit of the public at large or of the matter of satisfaction for the benefit of the party injured by this offence. In the case of real the operations necessary for securing its forthcomingness /causing it to be forthcoming/ will be found to assume very different characters, and to have /wear/ very different denominations in conformity to certain /the/ corresponding differences in the nature of the things themselves. Thus the following divisions and distinctions. 1. Division of real evidence into immovable and movable and things of a mixt nature viz: navagable vessels or rather of [...?] evidence furnished by unmovable objects, and evidence furnished by movable objects moveable? 2. Destinction of real evidence (chiefly moveable) into unperishable and perishable. Or rather into unperishing and perishing. 3. Destinction of moveable real evidence into real evidence at large and ordinary written evidence. In the ensuing chapter on real evidence.
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Title: [May 1804 Evidence Forthcomingness]Description: May 1804 Evidence Forthcomingness Ch.3. Means physical §.1. Verbalization necessary 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.
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