date

20 March 1808 Letter V §.6
20 March 1808

Letter V

§.6. Reasons

Ends of Justice

Non-forthcomingness of Evidence

Causes

Factitious causes negative and positive

Factitious Causes Negative.

1. Want of an all comprehensive system of arrangements for obtaining spontaneous discovery of persons possessing the faculty of yielding verbal testimony, or having in their custody and power sources of real or written evidence.

2. Want of an all comprehensive system of investigatorial procedure extending to all suits, non-penal as well as penal: and applicable to the tracing out, from mouth to mouth and from hand to hand, of persons and things in the character of sources of evidence-testimonial, real and written evidence.

3. Where on the part of a thing the faculty of yielding real evidence, or, on the part of a person, the faculty of yielding evidence of any description, testimonial, real or written, is in danger of perishing, as by death, expatriation, exprovinciation, absconsion &c, before the time at which, in ordinary course, the evidence in question would be collected; want of an all-comprehensive system of arrangements for collecting in time, and thus preventing the deposition of it.

4. Want of an all-comprehensive system of arrangements for compelling forthcomingness on the part of persons, in the character of sources of evidence, for the purpose of oral examination, in cases in which that mode of collecting evidence is prudentially as well as physically practicable.

5. Want of d o for collecting evidence by epistolary examination when oral is physically or prudentially impracticable or insufficient.
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  • Title: [20 March 1808 Letter V §.6]
    Description: 20 March 1808

    Letter V

    §.6. Reasons

    Ends of Justice

    Fallaciousness Causes

    Factitious Causes, Negative.

    1. Want of an all comprehensive system of arrangements for the collection and perpetuation of pre-appointed evidence as above. {See Non-forthcomingness of the Evidence}.

    N.B. To the more effectual prevention of deception, absolute exclusion of all evidence but the pre-appointed evidence in question is not necessary nor conducive in general: since, there is no sort of evidence whatsoever, unpre-appointed or pre-appointed, but what by force, fraud or accident is liable to have been rendered incorrect, obscure, ambiguous or incompleat. The sincerities, or indications of trustworthiness, by which preappointed evidence ought to be and may in general be corroborated, will give it a proportionable advantage against any ordinary evidence that may come into competition with it.

    2. Omission to apply to all cases alike, (where practicable without preponderant inconvenience in the shape of a vexation, expense and delay, in addition to the above natural securities for correctness and compleatness, the political, viz. the penalties attached to the violation of a testimonial oath or solemn affirmation: including also those securities which are constituted by the adoption of the mode of extraction and if need be registration, but adapted to the exigence of the case: statement in the first instance without, but always eventually subject to examination: examination oral or epistolary, or both, together or successively.

    3. Omission to put an exclusion upon evidence extracted by a less trustworthy mode of delivery or extraction (as in case of pleadings without oath), when, without preponderant inconvenience as above, it may be obtained in a more trustworthy shape from the same source: as in case of pleadings upon oath.

    4. Omission on the part of the Legislator to furnish to the Judge an all-comprehensive system of Instructions for his guidance in respect of the appertaining the probative form of evidence.
  • Title: [[?] March 1808 Letter V §.6]
    Description: [?] March 1808

    Letter V

    §.6. Reasons

    Ends of Justice

    Nonforthcoming s of Evidence

    Causes

    Causes of Non-forthcomingness on the part of the Evidence, considered as the cause of Misdecision, Non-demand, or Non-defence, and thence of failure of justice, or of injustice to the prejudice of the Defendant's side.

    I. Natural Causes - in case of personal evidence -

    1. The opportunities of knowledge possessed by the witness (i.e. by him who with respect to the fact in question was a percipient witness) unknown: viz. to the party who has need of service in the character of a deposing witness.

    2. The means of corresponding with him unknown.

    3. On summons to appear for the purpose of oral examination, he appears not.

    4. On being addressed in the way of epistolary examination, he answers not.

    5. The power of securing by compulsory means his appearance for the purpose of being orally examined is evaded by his being already, or by his placing himself, or being placed, out of the reach of justice i.e. of the power of the Judge.

    6. By infirmity of mind or body, temporary or perpetual, he becomes disqualified from serving, by examination oral or epistolary, in the character of a deposing witness.

    7. Oral examination being necessary to the correctness or compleatness of his testimony, his appearance for that purpose is indeed impracticable (physically or prudentially) by reason of the vexation and expense naturally and unavoidably attached to the operations necessary to his appearance for that purpose.
  • Title: [18 April 1804 Evidence Forthcomingness]
    Description: 18 April 1804

    Evidence

    Forthcomingness

    Ch. Written

    §. Inspection Engl. Law

    §. English Law

    In English jurisprudence, the right of obtaining the faculty of preparatory inspection at the hands of persons unwilling to afford it, seems to be, as it naturally would be of comparatively modern date. It is one of those innovations, by which in spite of the vis[?] inertia opposed by all official establishments, the ends of their institution will now and then, or here and there a fresh instance, be fulfilled. In this instance we may see one /another/ of the few infractions made upon the principle system of negligence or perverse industry, by which it seems as if originally to have been settled that the party's chance for justice should depend - /be as dependent as possible/ not upon the merits of his case, but upon the interest, the corrupt leaning, hostile passion, or at best the caprice of those /such/ individuals of whom assume services in the character of witnesses or sources /keepers/ of real or written evidence /documents/ it is his misfortune to stand in need.

    When on the one hand the right of obtaining /extracting/ evidence, even in the character of ultimate evidence was narrowed in such a multitude of instances, on such a multitude of pretences - when on the other hand, the case of personal evidence, the right of investigating and arranging /collecting/ the evidentiary matter /mass of evidence/ by preparatory examination was also confined within such narrow bounds as those which have been described in another place, no wonder that the faculty of obtaining the like preliminary indications by preparatory examination of another kind the correspondent /appropriate/sort/ /kind/ with respect to written evidence should have been of still later date. The practice of writing must have been very generally diffused, and miscellaneous scripts such as private letters trade men's books of account and Minutes /memorial/ of the transactions of corporate and other public bodies have become numerous and general before it would occur to suitors to entertain any hope of persuading Judges to extend their powers to the compelling the production of any such documents for the purposes of judicial decision in the character of written evidence.

    So far as concerns the manufacture for the purpose /[...?]/ of contractual evidence there has been want of sufficient scholarship from the very earliest ages. But writing is one thing, reading is another in the language of procedure even to this day, a man who has entered into a bond is not supposed to know how to read it, what he prays for, when an action comes to be grounded, is not the liberty of reading it himself but the opportunity /indulgence/ of hearing it read by somebody else /having it read to him.