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10 July 1804
Procedure & Evidence
Note
Evils causes
Intricacy
The causes /suits/ by far the most common of any are as follows
1. In the superior criminal class /department of procedure/ - theft - with or without the circumstances of aggravation which it ----- it ---- robbery housebreaking or burglary. Among crimes punished by the English law with the -- mode if ---- called felony, unclergyable or clergyable, the number of individual crimes of the above description committed in a year is at least 7 /20 or 10/ times as great as that of all other felonious crimes put together.
2. In the inferior criminal or penal class /department/ - assault - (or injurious words spoken or written the number of individual offences of this description taking into account those prosecuted for in what is called the civil mode as well as those prosecuted for in what is called the criminal mode would probably found superior to all other offences under the ---- of felony prosecutable for one or other of those modes.
3. In the non-penal class /department/ debt for goods sold or for money lent on a bill or note of hand and delivered by a shop-keeper to a consumer, the number of these suits commenced could perhaps be found 30, 40 or 80 times as great as that of all other non-penal causes put together But in each of /every one/ of these species of causes the case is most commonly at the utmost or very near the utmost point /pitch/ of simplicity.
1. In the case of theft there is frequently no more than a single witness the owner of the good alleged to be stolen, or suppose another or two to be added the complexity thereby added to the case is, in respect of the additional quantity of time thereby required by the operation of which the evidence is the subject matter, too inconsiderable to be worth taking into the account /noting for this purpose/.
2. In the case of assaults and verbal injuries the same observations apply without any difference worth insisting on.
3. In the case of goods sold and delivered to a consumer upon credit, if at the shop, there will be the master shop-keeper if his testimony be admitted or at any rate his journey-man: if delivered elsewhere, the porter with or without the corresponding evidence derived from the evidence of the Book-keeper confirmed and ----ed by the ---- of his books
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Title: [17 May 1804 Evidence Forthcomingness]Description: 17 May 1804 Evidence Forthcomingness Ch. Investigatorial § 4 Rule 3 3. Rule 3. In relation to each individual cause power of ultimate decision ought to be lodged in the same hands as those in which power of investigational procedure is lodged in relation to the same cause: and vice versâ. More briefly these - Powers of ultimate decision and power of investigatorial procedure ought to be lodged in the same hands. Reasons - Reason 1. If all the evidence which the transaction furnishes happens to be present /forthcoming/ at the first hearing, let the Judge, who on that occasion receives the evidence, be competent to decide, the decision may be, and (saving the case of a demand of time for deliberation) ought to be pronounced. Vexation, expense and delay all unnecessary and useless will in that case be the inseparable results of any subsequent hearing. But if the judge who is competent to receive the evidence in the first instance is not competent to decide upon it, there must in all cases be at least two hearings, of which one at least is /can not but be/ productive of the useless inconveniences just mentioned. N.B. The cases in which the inconvenience in question would take place promise /appear/ to be by far the greater number. For in every country in by far the greater number of causes at present brought into a Court of Justice the right is clear, the evidence known and simple. Debt proved by a Bond /Bill of Exchange/ or title of land in possession of the plaintiff. Debt for goods as sold and delivered by a shop-keeper: evidence the testimony of his journeyman or porter. Battery proved by the person beaten with or without testimony of a witness or witnesses whom he brings with him. Theft /Depredation/ committed by a thief on a house or shop evidence the testimony of the person who caught the thief in the act, with the goods upon him.
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Title: [1 April 1804 Evidence Forthcomingness]Description: 1 April 1804 Evidence Forthcomingness Ch 4 Investigatorial Engl Law § 8 English Law § 8. English Law. Investigatorial power being thus necessary to justice /Power for following up a chain of evidence/, and the necessity of it thus obvious, it will /may/ be not uninteresting to observe the extent to which the use of it has been carried on by English law. Turning now to English jurisprudence, we shall see at once /the same time/ an exemplification of the use /utility/ of investigatorial procedure, and the failure of justice from the want of it. In comparison of procedure testibus cognitis, investigatorial procedure is in England comparatively of recent growth. It dates no earlier than from about the middle of the 16 the century. In the reign of Edward 6 the power was given for the first time to a Justice of the Peace to take the examination of a prisoner brought before him on a charge of felony: that is of any offence to which the punishment so denominated stood annext. What the object in view was on that occasion on the part of the legislature does not very clearly appear. The effect of it has at any rate to establish a cause of investigatorial procedure as above explained, previous to the course /[...?] of ultimate examination, carried on /performed/ before a Judge /a Jury/ and Jury, and called in the language of English jurisprudence called the Trial: a word which has not its equivalent in any other language. In English jurisprudence /Law/ investigatorial procedure so far as the examination of living witnessess is concerned is confined altogether to penal law; nor is it altogether co-extensive with that branch of law. It extends to all felonies that is to say to all offences to which the punishment is denominated happens to be annext, and to all other offences ranked under the denomination of breaches of the peace. It extends accordingly /consequently/ to those offences prosecutable in the mode /course/ of procedure called Indictment: but not to all offences so prosecutable. To an offence prosecutable by Indictment it does not extend where that offence happens to be prosecuted by the course of procedure called Information. Neither /As little/ does it extend t any offence prosecuted by the course of procedure called a penal action: a curse of procedure which in most of its features coincides with the ordinary course of procedure ordinarily employed in the non-penal suits carried on in the Courts of Common Law.
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Title: [11 April 1805 Evidence Securities]Description: 11 April 1805 Evidence Securities Ch. Procedure Technical '.3 Objects ulterior 5. Prosecutions are suits: suits constituted by a demand made of satisfaction or punishment, or both on the occasion of an /some/ offence. The greater the number of offences committed within a given time the greater the numbers of offences liable to be prosecuted out of which prosecutions may arise. Fifth object of the technical system: to render the number of offences, (crimes of all sorts included) as great as possible. That the man of law his own interest in the multiplication /frequency/ of offences in general, and of those more odious offences which are distinguished by the name of crimes in particular, is manifest: for suits occasioned by offences, suits for the prosecution of crimes, are suits. Note His interest in this respect his interest is not uniform and absolute. His interest is derived from, and proportioned not to the quantity of mischief produced by the commission of them, but to the quantity of profit extractable from the prosecution of them. In a general way o speaking, it is true to say that it is his interest that as many crimes as possible be committed, because the greater the aggregate number of these that are committed, the greater will naturally be the number of those that are prosecuted. But in the commission of those of mala fide be of which it is certain that they neither will be prosecuted, nor be productive of others that will be prosecuted, he has no interest. So likewise, there be any crimes or other offences, from the prosecution of which no profit is extractable by him, weather from the defendants side of the case, nor yet from that of the prosecutor, in the multiplication of crimes and other offences of the description he has no interest. A man of law /lawyers/ is a man. From this character he derives a general interest, opposite to the special interest on this ground which belongs to him in the character of a man of law. As a man his interest requires that the number of crimes committed be as small, as a man of law that it be as great as possible. From crimes /In the commission of offences/ which are not prosecuted, crimes /of offences/ the prosecution of which affords him /if such there be/ no profit, he has no /not in the character of a man of law any/ interest: in these cases, in so far as they can be distinguished from the rest, the interest that belongs to him in the character of a man, being unballanced, will be seen to turn /dominate/ the scale. In the commission of offences which afford him a half-profit, profit on the prosecution of those not being extractable but from one side, in his character of man of law he will have as it were but a half-interest.
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