date

4 May 1804 Evidence Forthcomingness
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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    §.1 Original deficiency

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    § 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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    It being in the nature of magisterial procedure to require instead of a single witness examined at one sitting: viz: the trial, two or more witnesses, interrogated /examined/ at two or more sittings with intervals of uncertain duration between each, a professional lawyer, arguing from the nature of the case /a priori/, with allusions to the comparative delation of the system of procedure pursued in other countries, would have no bad case to make in this ground for the defence of existing abuse /mal-practice/, and the comfortable proposition that all improvement is radically impossible. Unhappily all this fair argument /theory/ /magnificent edifice/ falls /crumbles/ to dust at the sound of a single allusion to experience. The cause /sorts of causes/ in which investigatorial procedure has place, are precisely those which are dispatched /receive their decision/ in the shortest space of time. Where investigatorial procedure has place (I speak of felonies) the same cause has been known to be begun and finished in the same day. The causes to which it does not extend - the Equity causes - are the hereditary causes, which like the gout and other disease, extend from generation to generation, filling with bitterness the cup of each mans life. In time indeed, but not by time alone, is business done. And moreover the causes thus marked as the most expeditious are moreover the most important of all causes.

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    By procedure ad investogadum or investigatorial procedure I understand any system or mode of procedure, considered as applied to the discovery of one lot of evidence through the medium of another: in other words one link in a chain of evidence (a) through the medium of another: in other words of following up a thread of evidence in examining a lot of evidence not in the character of a lot of a lot of evidence for the ultimate hearing /ultimate evidence/ - evidence for grounding a decision on the subject of the cause - but in the character of evidence of evidence /a lot of indicative evidence/. In a word it consists in the examination of evidence in the character of indicative evidence.

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    Suppose In a case in which all the evidence which the transaction furnishes to be /is/ already known to both parties, there exists no demand for procedure of the investigational cast, as above described. For distinctions sake, procedure in this case may be termed procedure testibus cognitis, or rather to include real and written evidence, probationibus cognitis.

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