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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: [May 1804 Evidence Forthcomingness]Description: May 1804 Evidence Forthcomingness Ch.3. Means physical §.1. Verbalization necessary To point the attention of the reader a preliminary /general/ observation may in this place have its use. for the investigation /discovery/ of the operation which on each occasion may be /promises/ conducive to the end in view - conducive to the purposes of direct justice, no straw of attention, no particular sagacity will in general be necessary: which on each occasion will be conducive to the end /that end/ in view is a question to which a ready answer will in general be presented by the plainest common sense. The point of difficulty is the vexation: a collateral and undeservable /an unsought worse than useless/ product resulting, in a quantity more or less considerable, from every one of these operations: vexation in the case of personal evidence for example to the proposed witness: in the case of real evidence, to the possessor of the source of real evidence, or to the possessor of a house, ship, waggon or other receptacle in which the source of real evidence (not to speak of personal or written evidence), is lodged. On this occasion, as on all others within the field of legislation /judicial procedure/ comes the constant and constantly difficult but necessary option - the option to be made between direct injustice and collateral inconvenience: to determine what price it is necessary and worth while to pay in the shape of mischief /inconvenience/ produced on the one hand, to purchase security from /exemption from//the absence of/ mischief on the other: and in each case /instance/ to increase to its maximum the advantage obtained; to reduce to its minimum the price thus paid fore it, to determine in this view what power shall be allowable by the judge to the party: what allowed to the party immediately or through the medium of the judge, by the legislator.
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Title: [22 May 1804 Evidence Place]Description: 22 May 1804 Evidence Place uncertain Forthcomingness Ch. Investig. Eng. Law §.1. Original deficiency The principal means of of the physical means /operations/ that may come to be employed for the purpose of securing the forthcomingness of evidence the principal articles have already been enumerated/ on [...?] has been already given: a few observations relative to /under the head of/ each may at present have their use. Which of these may on each instance be conducive to the effect desired, is a subject concerning /question on/ which there will in general be little difficulty: natural understanding /common sense/ will in general present a ready answer, without any aid from science /study/ or from law. The difficulty is in each case to determine /In each instance, the difficult point[?] to determine/, which shall be allowed to be employed? allowed to the party by the Judge? allowed to the Judge by the legislator? The word Trial is a term not fit to be /capable of being/ employed in universal jurisprudence: since it assumes an association such /a combination of a sort/ peculiar to English jurisprudence. On a trial, the decision on the question of fact, and the previous exhibition of the evidence - of a whole body of evidence on which that decision is together with the observations made on both sides upon the evidence to be grounded - are the work of the same day, - of the same sitting. In Roman procedure in the procedure of perhaps every civilized nation besides the English the exhibition and collection of the evidence is the work of one period the decision preceeded by the observation made on the evidence on both sides, of another. The sitting /A judicial sitting, whether/ for the purpose of hearing those observations, or for the purpose of hearing any arguments on questions of law arising out of the cause is termed /stated/ in French audience. To this word corresponds the English word hearing - the hearing of the cause - in a sense in which it is used in the Equity Courts in which no Jury being called in, no such word as trial is employed.
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Title: [May 1804 Evidence Forthcomingness]Description: 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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