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12 April 1804
Evidence
Forthcomingness
Ch. Written
§.4. Rules
§.4. Rules concerning the faculty of Inspection &c, with its concomitant operations.
Rule 1. Wherever by reason of impertinence /want of interest (natural interest) on the one hand viz./ on the part of the invoker of the evidence, and vexation on the other, viz: on the part of the possessor of the evidence /document or mass of documents/, the evidence, although it were to afford conclusive proof of the allegation in respect of which it were proposed to be produced, ought not to be produce din the character of ultimate evidence, in such case neither ought /should/ the right /faculty/ of preparatory inspection, examination and transcription as against an unwilling possessor /without the consent of the possessor/, be allowed by the Judge.
Rule 2. Wherever the production of the document or mass of documents ought to be compelled /made compellable/ in the character of ultimate evidence, the right of preparatory inspection examination and transcription of it ought to be granted, even without the consent of the possessor, so far forth as may be necessary for preparing it to be produced /serve/ and operate in the character of ultimate evidence.
Similar Items
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Title: [18 April 1804 Evidence Forthcomingness]Description: 18 April 1804 Evidence Forthcomingness Ch. Written §.1. Analogy In one respect however, in respect of preparatory examination written is more analogous to personal than to real evidence. To what preparatory in contract-distinction to ultimate interrogation is in the case of personal evidence, corresponds preparatory inspection, and, in case of need, preparatory transcription or abstraction, in the case of written evidence. Inspection in this particular case is analogous in some measure to discovery, in /as applied to/ the case of evidence in general: transcription, to appearance - [...?] or say production. The discovery of the document - the deed, the register, the official book is the discovery of the course of evidence. But, after the source has been discovered, inspection - examination of the document or aggregate mass of documents may be necessary, for the purpose of discovering what particular articles of evidence may be obtainable /deriveable/ from that source. In the case of written evidence, the point upon which what concerns the provision to be made for ensuring the forthcomingness of it, is /principally turns/ the provision to be made for the exercise of the faculty of inspection - viz: of preparatory inspection - together with the faculty of transcription, including abstraction, in consequence of the information which by the exercise of the faculty of inspection, has been obtained. On this head, the following leading rules or observations may be premised.
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Title: [18 April 1804 Evidence Forthcomingness]Description: 18 April 1804 Evidence Forthcomingness Ch. Written §.2 [...?] [...?] In many cases, without the faculty of preparatory inspection and transcription, the faculty of employing the document or mass of documents in question in the capacity /character/ of sources of ultimate evidence, viz: within a fixed or narrowly limited space of time - such for instance as the compass /duration/ of a single sitting, would be of little use, or even absolutely of none. The chance of its being so will be variable ad infinitum, according to the smallness or bulkiness of the mass - the order or disorder in which the materials /elementary parts/ of it are arranged - the presence or absence of appropriate assistances having for their object the affording facility to such researches /research/ - such as Tables of Contents and Indices. The following is a view of the purposes for which such /circumstances by which the demand for/ preparatory examination may be found necessary /created/ : the more necessary in proportion to the bulk /quantity/ and intricacy of the aggregate mass - 1. Opportunity of searching out the relevant matter (viz: that which is so with reference to the suit) and extracting it /picking it out/ from the irrelevant. Time to transcribe the passages in question, either at length, or in the way of abstract. 3. Time to put in order, the materials so extracted and observe the different bearings of the different parts of it upon the cause /matter in dispute/, upon the points to be proved, and the inferences which it maybe made to afford, /conclusion capable of being deduced from it/.
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Title: [19 April 1804 Evidence Forthcomingness]Description: 19 April 1804 Evidence Forthcomingness Ch. Written §.4. Rules Rule 3. Wherever the document or documents, the production of which is called for or proposed to be called for, for the purpose of their being made to serve as evidence, are mixed with others, the disclosure of which is resisted by the possessor, on the ground of its being productive of preponderant vexation, by divulgation of lawful secrets, political, commercial or domestic, the judge, upon hearing all parties interested, should in each individual case, take such arrangements as the circumstances of the case suggest /point out/, for reconciling, as far as possible, the contending interests. For example in the case of Minutes of proceedings of public board, o r of any corporate body, or Account books of any manufacturer, merchant or shopkeeper: Let the judge, or the person deputed by him, attend at the reading of the books for the purpose of research /the examination proposed to be made of the Books/. Let the book be put into the hands of the party invoking party, the paper of writing in the Book being previously secured against inspection, by untransparent paper or other paper covering superinduced /fastened/ upon it by the Keeper, at such places as he thinks fit: let a memorandum be previously made of the several pages to which such coverings are applied together with the length and breadth of each. At the same time let the Keeper be subject to examination /examined upon oath/ for the purpose of ascertaining, in the instance of each such covered [...?] so far as can be done without divulgation of the contents, whether it /they/ be or be not of a nature to serve for the purpose in question in the character of evidence. If in the instance of any such passage the propriety of affording or witholding communication of it can not otherwise be determined, let communication, for the purpose of such determination be made of it to the Judge. If, the nature /contents/ of the Book being considered (for example a Minute Book of the proceedings of a superior department /Board/ of Government) the office of the Judge be not of a rank sufficiently trustworthy to receive a communication of that sort, let a competent judicial office be appointed by the legislator which in such cases appeal may be made for that purpose by the official keeper of the Book.
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