28 [...?] 1804

Evidence

Forthcomingness

Ch. Investigatorial

§.1. Investigation - quid

The discovery of evidence is an object /operation/ which every party, who feels any want of that necessary help /introduction/ to justice naturally betakes himself to of himself: by immediate application in each instance to the source of evidence, if he knows where to apply to it, and is able to apply to it with success: if not by enquiry of those whom he looks upon as able to inform him where the source of immediate evidence is to be found: a person to whom the percipient witness has related what he saw: a person under whose view the states[?] goods have come or are supposed to have come, sees the commission of the theft: a person who has had in his custody, or seen in that of another, a deed which is necessary to substantiate the title.

If then these several persons are alike ready and willing, and alike seem to be so ready and willing, to land him their assistance in their respective spheres: it is well: investigatorial power, and investigatorial procedure are thus far of no use. If on the contrary, whether by enmity towards him, by connection of interest or sympathy with the adverse party - by aversion to the labour, or by fear of the expense, any one of the individuals through whom alone the needful information is to be had, is prevented from furnishing it, the just claim of the party is defeated: it is defeated as effectually by the refusal of the means thus necessary to the discovery of the admissible lot of evidence, as it would be by the refusal to exhibit it (understand at the ultimate hearing - ) when discovered. If where a deed /document/ is safely lodged in a hand public or private out of which it can not be removed but at the call of justice, a subpoenä is necessary to [...?] /ensure/ the production of it at the trial, suppose the same deed lodged for the moment in a hand /a set of hands/ interested in preventing it from being made use of on the present occasion, and /but/ at the same time interested in keeping its forthcoming for other occasions, and on that account prepared to shift it from hand to hand, power is competent to the hunting it out from hand to hand till it be caught are not less necessary than the common subpoenâ was in the other case, to enable /the enabling/ a man to obtain the justice which is his due.