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May 1804
Evidence
Forthcomingness
Ch. Investig. Eng. Law
§.1 Original deficiency
Ch. Investigatorial procedure continued - English law.
§ 1. Original deficiency of investigatorial power.
Investigatorial power being thus necessary to justice, and the necessity of it thus palpable, it may not be altogether uninteresting to observe the extent to which the use /application/ of it has been carried in English law.
In the original contexture /concoction/ of the system of procedure, the use of this instrument /apparatus/ for the discovery of truth was plainly impossible: impossible on both sides of a cause, and in all sorts of causes. Investigatorial power requires as in indispensable condition to the course of it, examination of evidence on two different occasions: the trial, if that be the name given to the ultimate examination, and at least one preparatory examination: an examination preparatory to the trial, because having for its object the discovery of such evidence as may be proper /fit/ to be presented /exhibited/ at the trial, the purpose of constituting the ground in which the decision on one side or the other /whether the side of the plaintiff or that of the defendants'/ shall be built. In English practice /procedure/ in its original frame, the trial being the only occasion on which the extracting of evidence with the aid of judicial power could be performed, and that trail not lasting /the time occupied by that trial not extending/ beyond the limits of a single sitting the very possibility of any such investigatory and preparatory course of examination was thereby excluded /shut out/. Here then was a jurisdiction lame at its birth: a system of action directed towards an end, but radically /unless by accident/ incompetent to the attainment of that end /unprovided with the means which in a multitude of instances would be indispensibly necessary to the attainment of that end/.
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Title: [21 May 1804 Evidence Forthcomingness]Description: 21 May 1804 Evidence Forthcomingness Ch. Investig Eng law §.1. Original deficiency In the case of several operations, preparatory to this exhibition of the evidence - personal, real or written - whether necessarily or incidentally - such as /viz./ entry, search, arrest, inspection, detention, sequestration and adduction - the operations which in each case may be conducive to direct justice pressed[?] themselves as it were of themselves. Which of these may in each instance be conducive to the end in view to the effect desired, is a question concerning which there can /will/ in general [...?] be little difficulty: common sense natural understanding will in general [...?] a ready answer without any aid from science or from law. The difficulty in each case /the case of each/ is to determine which[?] shall be allowed to be employed: allowed to the party by the Judge? allowed to the Judge by the legislator? to make the option between direct and collateral injustice - to decide in each case between the conflicting claims of direct justice on the one hand and the justice opposite to collateral injustice, principally in the shape of vexation, on the other: vexation to wit in the case of personal evidence to the proposed witness: in the case of real evidence, to the possessor of the source of real evidence, or of the house, shop waggon or other receptacle in which it is lodged /contained/ The natural consequence of this primaeval defect makes a curious contrast with the policy of the evidence - excluding /exclusionary/ system that afterwards developed itself by degrees. By /From/ the absence of all legal power of preliminary examination /investigation/, no evidence could ever be discovered, in such source at least as to be capable of being employed at the trial, but through /by/ favour of the persons through whom the discovery was to be made. It was the effect then of every such discovery then afforded /to afford/ no slight presumption at least of bias, of partiality on the part of the indicative witness to the cause of the party, to whom /at whose instance/ the disclosure was to be made: and this continued to be the case, after that while on the other hand, the bare possibility of a bias, to the minutest amount, (not to speak of the shadow /name/ without the reality of a possibility) became /had/ under the policy just spoken of, been rendered a sufficient ground for the peremptory rejection of a mans /any man's/ evidence - biased, he was inadmissible; unbiased he was not to be had.
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Title: [16 May 1804 Evidence Forthcomingness]Description: 16 May 1804 Evidence Forthcomingness Ch Investigatorial In English procedure the line between preliminary /preparatory/ examination and definition is a dear one - why? because the Judges by or before whom they are respectively conducted are never the same. The Justice of the Peace who collects and receives evidence of all sorts in the first instance can not "try" the cause. The Judge who with the Jury tries the cause can not, with or without the Jury, or any Jury perform any of these preparatory examinations by which the thread of evidence is investigated. The Jury does not come into existence until the last stage. The sort of magistrate called a Justice of Peace is the only sort of magistrate by whom the process of investigation is capable of being conducted: where his authority ends, there ends the full compliment of power necessary for the obtainment of existing /obtainable stock/ of evidence. In non-penal procedure as conducted /carried on/ in the Courts of Common Law, there exists no such resource for the obtainment of evidence. For the exhibition of evidence on the main point /question/ there is but one time, viz: that of the trial: at that period no evidence is received, but what is fit to operate /be regarded/ in the character of ultimate: no hearsay, casually written, unauthentic transcriptural evidence or any other species of makeshift evidence, except in the few cases in which such imperfect evidence /evidence of this imperfect character//nature/ is received in the character of ultimate. At that period /stage/ of the cause such simply indicative evidence were it even receivable /received/, would not be of any use: for subsequently to the trial no other evidence can be received. Accordingly at the trial not so much as a question can be asked, tending to the discovery of other evidence.
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Title: [4 May 1804 Evidence Forthcomingness]Description: 4 May 1804 Evidence Forthcomingness Ch Investig Eng Law §.1. Original deficiency Little by little /By degrees/ this radical defect in the contrivance /plan/ of the system has in some instances /in this or that instance/ been to a certain degree supplied: but even in these /to that limited extent/ it is to accident /the fortuitous concourse of atoms/ that the system has been indebted for the improvement, not to design in any case. While the exercise of investigatorial power remained in every case impossible, that power continued /remained/ in every case unexercised: in proportion as in this or that instance the possibility of exercising /one inlet to the exercise of/ it came into existence, the practice of exercising it crept in. What there is of it, society is indebted for to the exertions /ingenuity and industry/ of the subordinate class of judges Justices of the peace - not to any individual breathing /person that ever existed/ in the character of a legislator of a Chief judge: to Country Gentlemen in a word not to men of law. In a word wherever we see a non-lawyer - a man of education - anglicé a country gentleman acting in the character of a Justice of the Peace, acting at his own house, there we shall see evidence discovered by /truth brought to light by the exercise of/ legal powers, because the employment of legal powers for that purpose was not impossible, as to the professional Judges his superiors, if on this score justice is indebted to them in any shape, not to their exertions /it is to their forbearance/ that the thanks are due, not to their exertions but to their forbearance: to their sleep much rather than to their vigilance. Books upon books might have been written for ages, as books are written by lawyers, and no such ideas other than investigatorial procedure might have been brought to view, no notion taken of the difference between that and procedure testibus /probitionibus/ cognitis - none consequently of the latitude /extent of ground/ to which the use /dominion/ of investigatorial procedure has extended, nor of the helplessness of the law for want of it in the cases to which it has not reached. Note (a) (a) a few [...?] excepted, and these clogged with exceptions upon exception, for facilitating the discovery of written evidence.
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