15 Apr 1804

Evidence

Forthcomingness

Ch. Real

§. Appearance

Physical powers, powers of seizure and adduction, are however, and in a case not unfrequently exemplified, at least as necessary in the instance of trial as in that case of personal, evidence. In the case where the possessor of the real evidence is bound by a predominant interest to the preservation of it, not yes, if his probity be under the safeguard of no such tie. In this case, the witness being by the supposition adverse, where to produce the document would be notice to destroy it. To possess any chance of being successful, an application for that purpose must therefore take him unawares. He may indeed destroy it as soon as it comes into his possession, or as soon as he comes to the apprized of the application /use/, (to his wishes, an adverse one) intended to be made of /for/ it. True, and if he does so, his possession of it not being known to any body but himself, there is no remedy: but as probity is not, so neither is improbity, always attended by consummate vigilance.

Take away the power of sudden seizure, as above, that a source of real evidence, which he would not produce on summons should notwithstanding be preserved undestroyed in the custody of a dishonest witness is altogether in the nature of things. He preserves it, and in connection[?] with the party who has need of it avows the possession of it. For what purpose? - For the purpose of making his own bargains for the production or delivery of it.