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22 May 1804
Evidence
Forthcomingness
Ch. Investig. Engl. Law
§.6. Equity application
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.
and to a compleat extent, setting aside the fragments exercised /worked with//operated/ by Courts of Equity
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Title: [21 May 1804 Forthcomingness]Description: 21 May 1804 Forthcomingness Ch Investigatorial Eng Law §.5. Causes not embraced §.5. Causes to which it remains inapplicable. In the above examples we have seen all the instances to /in/ which this necessary article in the inventory of legal powers is employed upon any regular and comprehensive scale /steadily and constantly made use/. The cases to which it does not extend /the uses of it/ are soon designated, since they fill up the whole remaining measure of the work of the law. It is not employed /employable/ in any cause of a non-penal nature: whether carried on in /the scene of it be/ a Court called a Court of Common Law, or in a Court called a Court of Equity. Even in a penal case it is not employed, except where the prosecution is conducted in the mode called an indictment: it is not in any case /instance/ where the prosecution is by information, or by attachment: nor consequently in the case of any species of offence which is not prosecutable but in one or other of these two modes. I speak of fragments of jurisdiction exercised here and there in this time; traces of them /they/ may be found scattered in the practice of both Common Law and Equity. Inspection and discovery under one or other of these two words the whole collection of them have been /may be/ ranged may be arranged /ranked/ composed, for use for under these same words they have been comprized in the books and language of men of law. As to what concerns inspection the dispositions mad /arrangements taken/ by English Law have already been /will be/ brought to view under that head: what concerns discovery remains /[...?]/ to be spoken of in this place.
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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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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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