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.