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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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Title: [15 Apr 1804 Evidence Forthcomingness]Description: 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: [[...?] 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: [1 May 1804 Evidence Forthcomingness]Description: 1 May 1804 Evidence Forthcomingness Ch.3. Means physical §.7.6. Adduction 6 Adduction Adducture - adduction? whither? - to the seat of judicature. Subpoena [...?] [...?] - says the precept of the Judge addressed in the language of English law jurisprudence to the proposed witness, when commanded to repair to the place of trial the plan /scene/ of definitive hearing and examination - bringing with him the article /lot//source/ of written or real evidence, from which the evidence is proposed to be extracted. This operation, it is plain, is alike applicable to the case where a person alone, and the case where a thing, with or without a person having charge of it, is the proposed source of evidence. The case of its being /where the operation is/ performed upon a person, supposes reluctance on his part: at least in the most natural state of things, for though a thing will in general require /stand in need of/ a person to bring it, a person unless withheld by reluctance or infirmity will in the natural course of things, suffice to /be competent to the task of bringing/ himself. On the other hand suppose reluctance, (a disposition of mind which to a certain degree may be expected to be prevalent in one witness out of two or three) the operation of adduction may be necessitated, by reasons /demands/ of no less cogency, in the case of a witness for the purpose of securing forthcomingness with a view to evidence, on the part /than in the case/ of a party, for the purpose of securing justiciability.
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