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15 May 1804
Evidence
Forthcomingness
Ch. Investigatorial
In French procedure /jurisprudence//practice/, though inquisitorial procedure, as above described, procedure d'office (as it is called) is not without example, it by no means makes an equal figure - occupies in the books a space - equal to that which is occupied by the same branch in the German books. The reason may perhaps, /case perhaps may/ be, that in German jurisprudence /Germany/ the office a public prosecutor, distinct from the Judge is not so constant an ingredient in the composition of the judicial establishment as in France.
In English law, this mode of procedure is not less familiarly /[...?]/ known than in French or even that in German law. There is however this difference /one very observable difference/. In English law, except in here and there a case seldom exemplified in practice, the inquisitorial mode of proceeding is confined to the preparatory stages of procedure: at the ultimate hearing - the trial - an accusor presents himself a prosecutor distinct from the Judge: nor is the Judge who presides at the ultimate hearing the same as he by whom the procedure has been conducted in its preparatory stages.
In the case of summary procedure before a single justice of the peace, the same Judge by whom the case is commenced conducts it, it is true, to the end: but then in these cases, the procedure is not in any stage of it, of the inquisitorial kind as above described: the function of accusor is from beginning to end carried on throughout by a party, the informer: an individual who finds his renumeration in an inducement in the receipt of the penalty (a pecuniary one) allotted /[...?]/ to him in that view.
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Title: [15 May 1804 Evidence Superceded]Description: 15 May 1804 Evidence Superceded? Forthcomingness Ch. Investigatorial Precede[?] Engl Law In practice a sort of connection may have been observed between the exercise of investigatorial procedure, and the exclusive exercise of the function of examination by the person of the Judge. A few observations explanatory of this connection, and of the causes of it may not be without their use. In a penal branch of law, it is the property /among the property/ of a certain class of offences to afford no particular individual, prompted by any natural interest to engage in the prosecution of them. + So far then as an offence of this sort is prosecuted, and no individual is engaged by factitious inducements to take upon him this task /undertake the charges//charge himself with the task/, it sill devolve upon /must be exercised by/ some official person, if by any body. It is not only possible, but usual, and in some respect convenient, that the task of carrying on such prosecution, and including or not including the main function of it - the examination of the evidence /witnessess/, should be performed by an official person appointed for this particular purpose, with an office distinct from that of the Judge. But neither is it without example, nor even unusual, nor in any point of view the least convenient arrangement, that this same function should be added to /consolidated with/ that of the Judge. Accordingly in German jurisprudence criminal procedure is divided into two not very unequal branches: accusatorial, where the operations necessary to the procurement and examination of the evidence is performed by a party, (private, public or both in conjunction) and inquisitorial, where the same operations are carried on by the Judge: in the first case, the defendant is called in Latin [...?] or accusatus; in the other, in German Latin, inquisitus. + Dumont
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Title: [18 April 1804 Evidence Forthcomingness]Description: 18 April 1804 Evidence Forthcomingness Ch. Written §. Inspection Engl. Law §. English Law In English jurisprudence, the right of obtaining the faculty of preparatory inspection at the hands of persons unwilling to afford it, seems to be, as it naturally would be of comparatively modern date. It is one of those innovations, by which in spite of the vis[?] inertia opposed by all official establishments, the ends of their institution will now and then, or here and there a fresh instance, be fulfilled. In this instance we may see one /another/ of the few infractions made upon the principle system of negligence or perverse industry, by which it seems as if originally to have been settled that the party's chance for justice should depend - /be as dependent as possible/ not upon the merits of his case, but upon the interest, the corrupt leaning, hostile passion, or at best the caprice of those /such/ individuals of whom assume services in the character of witnesses or sources /keepers/ of real or written evidence /documents/ it is his misfortune to stand in need. When on the one hand the right of obtaining /extracting/ evidence, even in the character of ultimate evidence was narrowed in such a multitude of instances, on such a multitude of pretences - when on the other hand, the case of personal evidence, the right of investigating and arranging /collecting/ the evidentiary matter /mass of evidence/ by preparatory examination was also confined within such narrow bounds as those which have been described in another place, no wonder that the faculty of obtaining the like preliminary indications by preparatory examination of another kind the correspondent /appropriate/sort/ /kind/ with respect to written evidence should have been of still later date. The practice of writing must have been very generally diffused, and miscellaneous scripts such as private letters trade men's books of account and Minutes /memorial/ of the transactions of corporate and other public bodies have become numerous and general before it would occur to suitors to entertain any hope of persuading Judges to extend their powers to the compelling the production of any such documents for the purposes of judicial decision in the character of written evidence. So far as concerns the manufacture for the purpose /[...?]/ of contractual evidence there has been want of sufficient scholarship from the very earliest ages. But writing is one thing, reading is another in the language of procedure even to this day, a man who has entered into a bond is not supposed to know how to read it, what he prays for, when an action comes to be grounded, is not the liberty of reading it himself but the opportunity /indulgence/ of hearing it read by somebody else /having it read to him.
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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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