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1 April 1804
Evidence
Forthcomingness
Ch. 5 Investigatorial
§.5. Connection between investigatorial procedure and examination per judicum.
The existence of a connection between investigatorial procedure and examination per judicum - examination conducted solely by a Judge - is matter of fact: exemplified in a procedure of various continental nations. The fact is notorious. To point out the reason of it, meaning /understand/ the historical reason, may not be without its use. /may serve to throw upon the subject some ulterior lights/.
This is a /an entire/ class of causes, penal causes and that a very extensive one in which no one individual more than another has any natural interest to prosecute: offences striking against the government as such without affecting an /any/ individual more than any other. Striking with peculiar force against government - and thence against the members of government as such - against that body in which the construction /composition/ of the legislation /bodies of the laws/ depends, this is the class of offences to the suppression of which the exertions /ingenuity/ of government will naturally be directed with peculiar industry /energy/.
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Title: [15 May 1804 Evidence Superceded]Description: 15 May 1804 Evidence Superceded? Forthcomingness Ch. Investigatorial Precede[?] Engl Law In practice a sort of connection may have been observed between the exercise of investigatorial procedure, and the exclusive exercise of the function of examination by the person of the Judge. A few observations explanatory of this connection, and of the causes of it may not be without their use. In a penal branch of law, it is the property /among the property/ of a certain class of offences to afford no particular individual, prompted by any natural interest to engage in the prosecution of them. + So far then as an offence of this sort is prosecuted, and no individual is engaged by factitious inducements to take upon him this task /undertake the charges//charge himself with the task/, it sill devolve upon /must be exercised by/ some official person, if by any body. It is not only possible, but usual, and in some respect convenient, that the task of carrying on such prosecution, and including or not including the main function of it - the examination of the evidence /witnessess/, should be performed by an official person appointed for this particular purpose, with an office distinct from that of the Judge. But neither is it without example, nor even unusual, nor in any point of view the least convenient arrangement, that this same function should be added to /consolidated with/ that of the Judge. Accordingly in German jurisprudence criminal procedure is divided into two not very unequal branches: accusatorial, where the operations necessary to the procurement and examination of the evidence is performed by a party, (private, public or both in conjunction) and inquisitorial, where the same operations are carried on by the Judge: in the first case, the defendant is called in Latin [...?] or accusatus; in the other, in German Latin, inquisitus. + Dumont
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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: [31 March 1804 Evidence Forthcomingness]Description: 31 March 1804 Evidence Forthcomingness Ch. Investigatorial §.7. Course §.4. Peculiarities of investigatorial procedure As to the plea or mode /course/ of proceeding in investigatorial procedure, it will be obvious at first sight, that between procedure in this case and procedure testibus cognitis there can be no great difference. The securities for trustworthiness, including the mode of examination will be the same - the occasional legitimate causes of delay - sickness, distance or expatriation of the witness - will be the same: and so on throughout. Two observations present themselves alone as turning /being grounded/ upon the main points of distinction between procedure for the obtainment of ultimate evidence in the first instance, and procedure for the obtainment of it through the medium of indicative evidence.
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