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21 May 1804
Evidence
Forthcomingness
Ch. Investigatorial Eng Law
§.2. Common Law [...?]
a /one/ person likely to afford evidence, a person from whose answers a chance of obtaining material and at the same legally admissible evidence promised to result. In the course of an examination of this kind it would every now and then appear that what the party thus examined had to say upon the subject did not amount to that sort of information that would be admissible above in the character of evidence; but that by what he said in relation to the same subject, an indication was afforded of some other person from whose answers, if examined in like manner, information of an unexceptional kind might probably be obtained.
Had the research /time/ been confined to /within/ the compass of a day, the light thus obtained would most commonly have been of no use - there was the /would have been/ evidence could it have been /be/ obtained; but the necessary time was not allowed for the obtaining it. But, owing to the absence of that wisdom by which under the auspices of professional /[...?]/ lawyers, the time and space were to be considered as annihilated, and the business of days and weeks or months was required to be finished /dispatched/ in a few hours, the researches of this non-professional magistrate were not confined within that time, nor in short within any definite /exactly defined/ compass of time: the science[?] which in so many instances had rendered it impossible that justice should be done by a Jury, had omitted to extend its wisdom /care/ to this subordinate /inferior/ and neglected course of judicature. That love of power which in a greater or less degree nature has implanted in every human breast that active propensity, which when lodged in official /judicial hands/ and confined by proper barriers contained within the limits becomes in effect the love of justice, would in this as on any other occasion, when not perverted or overawed by prejudice inspire a man with /infuse into a man's breast/ the desire of obtaining useful information, wherever such information was to be found. but the knowledge thus obtained by the Magistrate could this be obtained at the same time to /by/ the party, who would always be privy to the enquiry, and whose suggestions relative to the course to be taken relative to /on the occasion of/ it would
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Title: [1 March 1808 Letter VI Omissa]Description: 1 March 1808 Letter VI Omissa & Facienda II. no exclusion for interest II. 3. No exclusion of evidence on the ground of interest. The absurdity and ingenuity of the exclusion put on such a multiplicity of pretences[?] upon the light of evidence, is more commonly and impressively demonstrated by the argument from inconsistency than by any the more direct course. The subject of evidence coming in here only by the bye, a few limits though broad ones, are all that can be attested to it here. 1. By English jurisprudence /lawyers/ no interest, no motive of any kind is supposed to have /be capable of exercising/ any influence on man's conduct - or at least any sinister interest, but the love of the matter of wealth - commonly called the love of money, there is a being void of all social affection void of all dissocial affection - rendered with none but self-regarding ones, and those in respect of the object confined to many. 2. In the shape of pecuniary interest the only operative interest there[?] is no magnitude of amount which their rules with all their pretended strictness do not let[?] in[?] /are sufficient to [...?]/. Not many years ago died a duke, whose amount in [...?] came[?] in the public prints[?], estimated at ,150,000. Had the whole of it been in one estate, and that estate depending on the cause, the condition of [...?] to that estate would not have prevented the only son of that duke from being examined as a witness on that cause, either at the instance[?] of his fallow or at the instance of a party on the other side. But supposing the estate on the son, though liable to be taken from him at any time by the operation of [...?] impression called a receiver, then[?] though instead of the ,180,000 a year the estate was not worth so many [...?] out hand[?], the testimony would not at the instance of the father have been admissible.
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Title: [15 April 1804 Evidence Forthcomingness]Description: 15 April 1804 Evidence Forthcomingness Ch. Real The bill filed - and Defendant on his part being also unfortunate enough to have need of a document, the possession of which happens to be in the plaintiff, can the defendant, now that both parties are within the grips of the same court, avail himself of it's powers, for obtaining by the same opportunity the justice he, on his part, stands in need of? Can he not [...?] indeed. Not in that same suit, for concerning that the question was; not in virtue of that same bill : Yes, on condition of filing a cross-bill, doubling vexation, doubling expenses, doubling delay, dragging the plaintiff through the same misery and thorny road through which he has himself been dragged. In this way, for the purpose of obtaining or [?]effectually trying to obtain, that same sort of justice which in another case is obtained by a single /man/ [...?], of the simplest nature, such a one of which dozens or scores are obtained in a Court of Common Law in the compass as well as for the purpose of a single cause, the party is compelled to [...?] a separate suit, and that of a sort some number of times more vexatious, expensive, and dilitary than the principal one. A suit of an immoderate size is thus crammed into the belly of another suit, the size of which but for this unnatural distension would have been comparatively moderate. In the natural history of reptiles /serpents/, we read of a sort of serpent called the Bora one of which of the size of a ship's cable was seen bathing with a huge swelling in the throat, and the horns of a stag sticking out of its mouth. The monster thus described may serve as an emblem of an English suit at law with an English suit in equity in the belly of it. To an English eye a viper gorged by a toad some number of times his own natural diameter is a more frequent spectacle. In the case of an Issue out of Chancery we have already had occasion to observe this sort of intro-susception [...?]. In this case balking at the suit of law, considered by itself, the distinction is scarcely visible. It is as if the reptile[?], fresh from the egg, were to be swallowed by the toad.
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Title: [21 May 1804 Evidence Forthcomingness]Description: 21 May 1804 Evidence Forthcomingness Ch. Investigatorial Eng. Law §. Statue addition naturally be heard: and by the same means he would frequently gain such lights as would enable him with a reasonable prospect of success /advantage/ to summon in the character of a witness to be examined at the trial, this or that individual, of whose capacity to yield evidence he could not have been assured by any exertions of his own, unaided by the power of justice. But a course of preparatory inquiry thus conducted under the aid of judicial power is neither more nor less than what has been so /already/ frequently met to be designated by the name of investigatorial procedure. And thus without any care, and perhaps happily perhaps for justice, without observation /remark/ on the part of the sage of the law, a power crept silently /gradually sprung up/ into use /exercise/, by which without intending it they were enabled to hear the truth and thereby to do justice, in many a case in which had the business been conducted without variation in the plan chalked out by themselves /their own wisdom/, no such result would have taken place /would or could have been obtained/. The [...?] thus /once/ laid, accession chrystallized around it with out difficulty: the private towns of the Country Magistrate became the radiant point of judicial truth, the sanctuary of justice. In the year 1554 by a statue of Philip and Mary, an act of the legislator was passed, from which the practice of preliminary /preparatory/ examination, under the name of examination took its rise. It extended to all offences of the rank of felony: but it went no further: it descended no lower in the penal law: it extended to no species of non penal suit. By these statutes a person being apprehended for felony, was /is/, before he was either bailed or committed for trial, t be examined before the Justice to /before/ whom he was /is/ thus brought: the result of the examination is to be committed to writing: and the writing transmitted to the Court in which the trial is to take place. Another examination to be taken, under a requisition added by the same statutes is that of the persons by whom the defendant was thus brought. To these are now added, no 1 & 2 P. & M. C. 13 §.h.5 2 & 3 P & M. C. 10 A o 1555
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