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20 April 1804
Evidence
Forthcomingness
Ch. Deperition. prevent g
§.2. demand
§.2. Demand for separate /distinct/ arrangements having for their end in view the preventing the deperition of evidence.
When an article of evidence of any kind - personal oral, real, or personal written - has once been exhibited - at least if the exhibition made of it has been duly registered - the deperition of it has been prevented. So far therefore - that is in the ordinary state of things the provision made for the forthcomingess of evidence - and the provision made for preventing the deperition of it, coincide.
But a case conceivably enough, is that which the ordinary course appointed for the securing the forthcomingness of evidence in ordinary cases, is pursuing, the evidence which should have been rendered forthcoming, may perish: at the same time, that by an appropriate deviation, made in this view, from the ordinary course, it may /might/ have been preserved. The arrangements which present themselves as exclusively or more particularly adapted to this object, may on this account require to be distinguished from, or from among the arrangements directed to the more general object - the securing forthcomingness in regard to evidence.
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Title: [12[?] April 1804 Evidence Forthcomingness]Description: 12[?] April 1804 Evidence Forthcomingness Ch. Deperition - preventing §.2. Deperition quid Ch. Of Arrangements for preventing the deperition of evidence. §. Deperition if the evidence may be without deperition of the source Where evidence is spoken of as having perished or being liable to perish a distinction must be observed between the mere deperition of the evidence, the deperition of the thing /object/ which may come to be considered in the character of a source of evidence. If the object perishes whatever the evidence it would otherwise have been capable of affording of course perishes along with it. without perishing outright without perishing in any other character, an object - any object - may perish in the character of a source of evidence, viz: with reference to the principal fact in question whatever it may be. In case of homicide the bloody shirt /cloathing/ , so far from being made to perish by being washed, will rather be preserved by it so much the longer; but, in the character of a source of appropriate evidence, it is in such case as compleatly destroyed as if it had been consumed by fire. Thus again in the case of personal evidence. The evidence which a man would have been capable of affording, may be destroyed either by the destruction /death/ of the man or, by the destruction of his rational or conversable faculties, or by his removal to a spot /place/ at /from/ which the power of the court is not sufficient to procure his evidence. When /If/ the evidence, to be employed as such, must be exhibited at a certain point, or within a certain length /space/ or time it may thus perish relatively and in effect, without perishing in an absolute sense. Thus the evidence consisting of human testimony, may perish in effect by his insanity or his emigration although he left the country but for a short time and is since returned. But in a case of this sort if the evidence is destroyed the real matter /cause/ of the destruction is the negligence or rashness of the legislator or the judge.
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Title: [20 April 1804 Evidence Forthcomingness]Description: 20 April 1804 Evidence Forthcomingness Ch. Deperition prevent g If after the exhibition of the article of evidence in its appropriate state - personal oral, real, personal written - the minute by which the substance /memory/ of it should have been fixed /preserved/ from deperition fails of being made, the effect of such non-production is /may be/ the same as that which would have taken place, had it first been produced /brought into existence/, and immediately after production /coming into existence/ perished. Wherefore /To what end/ /use/ these distinctions? To this use. The objects themselves, the undesirable events, how closely soever connected, being perfectly distinct, such /so/ accordingly will be the arrangements proper to be taken for the prevention of them.
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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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