074_306.xml

Title: [17 May 1804 Evidence Forthcomingness]

Description: 17 May 1804

Evidence

Forthcomingness

Ch. Investigatorial

§.2. Rules

These observations being premised, five rules present themselves as being sufficiently intelligible without further preparation. As far as any observations in the character of reasons seem capable of being of worth subjoining, they will accordingly be subjoined.

Rule 1. Investigatorial procedure ought to be made applicable to every sort of cause.

2. Power of investigatorial procedure ought to be possessed and exercised by every Court of Justice.

Rule 3. In and for each individual cause, power of investigatorial power and power of ultimate decision ought to be lodged in the same hands

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 investigatorial procedure is lodged in relation to the same cause: and vice versâ.

Rule 4. In each individual cause, whether investigatorial power shall be exercised, and how far depends upon the degree of vexation, expense and delay attending /attendant on/ the investigation, compared with the importance of the cause, and the importance of the evidence of the question to the cause

Rule 5. Purely indicative evidence, though it ought not to be received into the budget of ultimate evidence, where the purport of the ultimately applicable evidence indicated by it is conformable to the indication so given, ought however to be preserved, for the purpose of being confronted with it in case of contradiction /disconformity/ and thence operating as a security for its trustworthiness.

Note

i.e. in relation to what articles of ultimate evidence and what articles of indicative evidence

Note

viz the lot of ultimate evidence

074_305.xml

Title: [28 [...?] 1804 Evidence Forthcomingness]

Description: 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.

074_367.xml

Title: [30 March 1804 Forthcomingness]

Description: 30 March 1804

Forthcomingness

Ch. Investigatory

§.2. Permanence.

§32 Permanence of session necessary to an investigatorial tribunal. Rule 1. To be competent to the purpose /business/ of investigatorial procedure - to be competent to the degree in which it might and ought to be made competent, every court of original jurisdiction can not but must be permanent: its sittings must be and is continued.

Reasons A chain of indicative evidence may be of any length: the [..?] it is composed of may be in any number: the time necessarily or eventually consumed in travelling from link to link between the examination of first indicative witness, and the examination of the witness whose testimony is found capable of being employed in the character of ultimate evidence, may b any length of time. In the course of that time it amy happen as well to the evidence of such ultimate witness as to the evidence of any intermediate witness to have perished. A witness who is not examined at this or that particular point of time, may not be to be examined at any other point of time. Reasons [..?] to the fountainhead. In case of non-existence or discontinuity of competent tribunal.

Principals. 1. danger of injustice by deposition of evidence. 2. Collateral injustice certain, in the shape of vexation, expence and delay.

Rule 2. As there is no tribunal of original jurisdiction, to which it may not happen to be called upon to proceed in the way of investigatorial procedure, for this, not to speak of other reasons every court of original jurisdiction ought to be permanent: its sittings ought to be undiscontinued.

Rule 3. In so far as it may happen to the same witness to be subjected to more than one examination in relation to the same fact - viz: once or oftener in the character of an indicative witness, for the purpose of extracting from him testimony of the indicative kind, and again in the character of an ultimate witness, hence it is desirable that the same Judge by whom or in whose presence such testimony is extracted in the first instance, should be /the judge by whom or in whose/ presence it is extracted in every other instance.

1. Reasons. 1. Of the circumstantial evidence /psychological/ of the psychological kind in various shapes will naturally be afforded on a first examination, a great part will be apt to disappear to vary or lose more or less of its trustworthiness or impressive force on any subsequent occasion.

Deportment - clearness or confusion of mind, verirality[?] or mendacity as and [...?] by countenance, voice and gesture