date

May 1804 Evidence Forthcomingness
May 1804

Evidence

Forthcomingness

Investigatorial

In the Courts called Equity Courts, the same lameness /[...?]//helplessness/, the same want of the powers necessary to the administration /rendering of/ justice. No sooner is the first batch of evidence drawn out of the oven, than it is carefully locked up: and the preventing the evidence /produce/ of this first batch from leading to the discover of more /fresh/ evidence, is among the reasons if not the only reason that has been imagined, in justification of this strange secrecy /the secrecy thus introduced into the sanctuary of justice/. And since in the Equity Courts, any more than /as/ in the Common Law Courts no evidence can be received at all that is not fit to be received /operate/ in the character of ultimate, the powers of the one sort of Courts as well as of the other are alike /equally/ incapable of being employed in /for/ the investigation of a chain of evidence.

Even in penal /criminal/ procedure, where the mode is any other form than that of indictment, the resource /powers/ of investigatorial procedure fails /are refused/. I mean a procedure by attachment, and procedure by criminal information. Attachment is a mode confined in its application to a narrow description of cases: contempt or abuse of the power of the Court: and is consequently pursuable in every one of the three great Courts. Information is a mode in which a certain division of offences are prosecutable of those which are prosecutable also by indictment, it being confined to offence stiled misdemeanours, offences below the rank of felony. In these cases, if a man has occasion for one lot of evidence to serve for the discovery of another, he must betake himself to a Justice of the Peace, he must proceed by indictment: he must give up the idea /plan/ of proceeding by way of information, how desirable soever it may be on the score of any other of those considerations which have recommended it to practice.
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  • Title: [1 April 1804 Evidence Forthcomingness]
    Description: 1 April 1804

    Evidence

    Forthcomingness

    Ch 4 Investigatorial Engl Law

    § 8 English Law

    § 8. English Law.

    Investigatorial power being thus necessary to justice /Power for following up a chain of evidence/, and the necessity of it thus obvious, it will /may/ be not uninteresting to observe the extent to which the use of it has been carried on by English law.

    Turning now to English jurisprudence, we shall see at once /the same time/ an exemplification of the use /utility/ of investigatorial procedure, and the failure of justice from the want of it.

    In comparison of procedure testibus cognitis, investigatorial procedure is in England comparatively of recent growth. It dates no earlier than from about the middle of the 16 the century. In the reign of Edward 6 the power was given for the first time to a Justice of the Peace to take the examination of a prisoner brought before him on a charge of felony: that is of any offence to which the punishment so denominated stood annext. What the object in view was on that occasion on the part of the legislature does not very clearly appear. The effect of it has at any rate to establish a cause of investigatorial procedure as above explained, previous to the course /[...?] of ultimate examination, carried on /performed/ before a Judge /a Jury/ and Jury, and called in the language of English jurisprudence called the Trial: a word which has not its equivalent in any other language.

    In English jurisprudence /Law/ investigatorial procedure so far as the examination of living witnessess is concerned is confined altogether to penal law; nor is it altogether co-extensive with that branch of law. It extends to all felonies that is to say to all offences to which the punishment is denominated happens to be annext, and to all other offences ranked under the denomination of breaches of the peace. It extends accordingly /consequently/ to those offences prosecutable in the mode /course/ of procedure called Indictment: but not to all offences so prosecutable. To an offence prosecutable by Indictment it does not extend where that offence happens to be prosecuted by the course of procedure called Information. Neither /As little/ does it extend t any offence prosecuted by the course of procedure called a penal action: a curse of procedure which in most of its features coincides with the ordinary course of procedure ordinarily employed in the non-penal suits carried on in the Courts of Common Law.
  • Title: [22 May 1804 Evidence Forthcomingness]
    Description: 22 May 1804

    Evidence

    Forthcomingness

    Ch Investigatorial Eng Law

    §.6. Equity application

    §.6. Incompleat application /exercise/ of it in Courts of Equity.

    If the system of procedure was the work of any one man in the character of a legislator furnished with requisite powers - if there were any one individual breathing on whom /to whose account/ the responsibility /blame/ for any the grossest and most mischievous /pernicious/ imperfections observable in it could be fixed /charged/, the single word discovery would lead to /afford on his part/ evidence but too conclusive of the most flagrant deficiency of probity or the grossest want of intelligence /either of probity or intelligence/.

    The Courts of Common Law refusing /denying/ as hath been already /since/ stated all aid to justice from this source, the only recourse was in the power of comparatively modern date assumed by the Courts calling themselves /called/ Courts of Equity. An application made to a Court of Equity, and having for its object the discovery of evidence, is accordingly termed a Bill of Discovery.

    When the individual of /from/ whom the information is sought is not a party to the suit - is witness purely extraneous - the Bill is not allowed /does not lie/: nothing that is called discovery - no preparatory discovery is to be had from him. Has he in his hands the evidence - say the written evidence - the deed you stand in need of to support your claim? You must commence your suit bring your action at Common Law - file your Bill in Equity, subject yourself to all that vexation and expence before you know whether it will be in your power to obtain the evidence necessary to constitute a ground for it. After a certain number of months or years spent in the combat /warfare/ commenced in the Bill you then obtain a summons /notice/ to be issued to the possessor of the deed requiring to produce the deed, appearing or not appearing to be examined in the character of a witness at the same time: if his inclinations are in your favour, he therefore produces it; if his inclinations turn against your, or what comes to the same thing lean in favour of your adversary as soon as necessary before the summons, the subpeonâ reaches him, he empties his hand of the deed and you loose your cause.
  • 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.