date

22 Mar 1805 Evidence Securities
22 Mar 1805

Evidence

Securities

Ch. Procedure Natural

Returning home /On his return/ from the labours of the field /day/, a man finds a cart /an implement of husbandary/ broken, a horse badly wounded. Whence came the mischief? From the beast alone, or did /had/ any of the family bear /borne/ a part in it? Was /Came/ it by /from/ design, or accident; if by accident, had negligence /inattention/ or rashness any share in the production of it? and at any rate, to which and how many and which of the family is it to be imputed. He addresses himself to all together, or to one after another, putting to each such questions as occur to him in the first instance - or are suggested to him by the answers received to preceding /drawn forth by former/ questions. Here we have penal procedure in a form somewhat different and still more simple; the form many Germany lawyers distinguished by the name of inquisitorial.

The first steps taken consist in mere enquiry; if, in the process of the inquiry, circumstances are discovered which present this or that individual in the character of the apparent author of the mischief and that mischief accompanied with blame, the inquiry has the effect /assumes the character/ of accusation; but no person having presented himself in the character of an accuser, the function of the accuser is [...?] to that of judge. There is reason why it should; for among the whole family besides the head, no one being more affected by the inquiry than another, unless the inquiry were set on foot[?] and prosecuted by the parent Judge it might well happen to it not to be persecuted not to be set on foot[?] by any body; no questions tending to draw forth the information being sought, no information would be obtained; and mischief in that or other shapes, might continue to flow from the same source. This is no reason why the two factions should not be united; from such union what mischief /inconvenience/ is to be apprehended? By /By whom, and through the influence of/ what sinister interest should it be produced?
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    Description: N. 1. (Copy)

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  • Title: [22 Mar. 1805 Evidence Securities]
    Description: 22 Mar. 1805

    Evidence

    Securities

    Ch. Procedure Natural

    In the bosom of a family An article of food, of clothing, the instrument employed in labour - being in the possession of one brother is claimed by another; possessor refuses /refusing/ to give it up, there common father is applied to, to say who shall have it. The father calls them both into his presence - each cites his story /states his case/; but each being partial to himself, neither of himself tells /brings forward/ any more of it than suits the purpose of his claim. But what each if left to himself would have kept back, each finds himself obliged to bring forward by a questions put to him for that purpose by the other - to these questions neither dares /ventures/ to refuse an answer, each seeing /forseeing/ that by [...?] common superior [...?] whose will the allowance or disallowance of the claim depends, that by their common superior, consciousness of wrong would be the inference drawn from silence. The disputed article /subject of the dispute/ is allotted /adjudged/ by the father to the complaining child /plaintiff, or to the defendant,/ or to the child complained against, as he sees fit. Thus we have the /In this representation we can see the/ model /rudiment/ /given/ and the exemplification of judicature, and of judicial procedure in cases of a non-penal nature.

    I found some berries in yonder bush; I was gathering them and eating them when by Brother came up, and in a tone of anger called to /commanded/ me to be gone /bid me cease gathering/. I would have shared them with him but that would not satisfy him; he had discovered them he said before I had and they were his. Not finding me unmoved /Finding his anger unfettered[?]/, he fell upon me, struck me, and reduced me to the condition which you see. Make him suffer, as he has made me suffer, or he will continue thus repeating the ill usage, and I shall never be at peace. The father calls them together as before, hears what each has to say for himself, what each is forced to say by the questions put to him by the other; and punishes [...?] as he sees fit. Here we have the genre of penal judicature, of judicial procedure in causes of a penal nature, and in that form of penal procedure, which among German lawyers is distinguished by the name of accusatorial.
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    Description: 22 Mar. 1805

    Evidence

    Securities

    Ch. Procedure Natural

    ''. Extensions for Distance

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    Yet even in this case, so it happened, that the defendant although resident at the home within the dominion of a foreign state were by /in/ any no matter by what means in an adequate degree subject to the powers or influence of the state in which the plaintiff has his residence (suppose by immovable possessions, by [...?] [...?] and [...?], or by the extention of personal visitation) in such case if with the cognizance of the judicial authority of his own country letters fraught with pertinent /suitable/ questions were by the care of some agent of the plaintiff on the spot put into the hands of the defendant suitable sources might then be extracted from him, sources containing testimony, self-serving or self-[...?] testimony, [...?] with or without extraneous evidence, information constituting a different ground for a decision in the cause.