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16 May 1804
Evidence
Forthcomingness
Ch Investigatorial
In English procedure the line between preliminary /preparatory/ examination and definition is a dear one - why? because the Judges by or before whom they are respectively conducted are never the same. The Justice of the Peace who collects and receives evidence of all sorts in the first instance can not "try" the cause. The Judge who with the Jury tries the cause can not, with or without the Jury, or any Jury perform any of these preparatory examinations by which the thread of evidence is investigated. The Jury does not come into existence until the last stage.
The sort of magistrate called a Justice of Peace is the only sort of magistrate by whom the process of investigation is capable of being conducted: where his authority ends, there ends the full compliment of power necessary for the obtainment of existing /obtainable stock/ of evidence.
In non-penal procedure as conducted /carried on/ in the Courts of Common Law, there exists no such resource for the obtainment of evidence. For the exhibition of evidence on the main point /question/ there is but one time, viz: that of the trial: at that period no evidence is received, but what is fit to operate /be regarded/ in the character of ultimate: no hearsay, casually written, unauthentic transcriptural evidence or any other species of makeshift evidence, except in the few cases in which such imperfect evidence /evidence of this imperfect character//nature/ is received in the character of ultimate. At that period /stage/ of the cause such simply indicative evidence were it even receivable /received/, would not be of any use: for subsequently to the trial no other evidence can be received. Accordingly at the trial not so much as a question can be asked, tending to the discovery of other evidence.
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Title: [15 May 1804 Evidence Forthcomingness]Description: 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: [20 May 1804 Evidence Forthcomingness]Description: 20 May 1804 Evidence Forthcomingness Ch Investigatorial §.4 Rule 3 Every now and then /In many instances//On this or that occasion/ it will happen that the intervention of the same Judge on both occasions shall be impossible: the Judge by or under whom a preparatory examination has been performed, dies, is incapacitated by illness, or is promoted or otherwise removed. Wherever /So far as/ any such impediment applies, whether the bar amount to an impossibility, or though it be no more than a preponderant inconvenience, so far the objection holds good in the character of an exception: but to the case to which it does not extend, its inapplicability follows of course. On the ultimate examination, in English procedure in the Common Law branch a jury can be and is present to receive the mass of ultimate evidence as well as to decide upon it: and at any preliminary examination it neither does assist, nor without a very thorough /natural/ change in the course of procedure, if at all, /would be made to assist without preponderant inconvenience. The objection seems true enough: but so far as it applies it adds to the list of /operates as an article in/ the inconvenience attached to that mode of trial in the debtor and creditor account of its inconveniences and advantages. But the very idea of a system of procedure conducted /directed/ bonà fide by the hand /light/ of human reason to the manifest and undisputed because indispensable ends of justice, strikes horror and dismay accustomed to behold a perennial source of profit, power and reputation in every deviation from these ends.
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Title: [16 May 1804 Evidence Forthcomingness]Description: 16 May 1804 Evidence Forthcomingness Ch. Investigatorial Certain it is, that it is from the practice of English not of French Law - of the system in which the light of indicative evidence is /seems to be/ obtainable in all cases - not of the system in which it is not obtainable but in so narrow a description of cases - that in my own instance the idea of the distinction was deduced elicited. In different tribunals not competent to ultimate decision I observed masses of evidence collected: parts of it I saw preserved or at least noted and thereupon in tribunals competent to ultimate decision employed in the character of ultimate evidence (a) The other part staid behind received no further employment. Of this residuum /caput morturum/ what was to be said? Had it not been received? had it been excluded /refused/ to be heard /refused a hearing/ on any of the thousand pretences on /by/ which evidence on the occasion of the ultimate examination called a trial stands excluded? Not it indeed: it had been heard with as little objection as the most /best/ unexceptional evidence. Would it have been heard then known as it must have been in a general way what was to be expected from it - would it have been heard without any prospect of its being of any kind of use? No certainly. In what way then must it have been expected to prove of use? In the way of leading to the discovery of other evidence immediately applicable in an immediate way to the purpose of evidence. Note (a) In the case of preparatory examinations taken by single Justices of the [...?] material witnessess bound over to give evidence at the trial. In the case of investigation performed by a Committees of Parliament, and Commissions of Inquiry, evidence collected, and prosecutions in the way of impeachment or indictment grounded on the information thus obtained.
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