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15 May 1804
Evidence
Forthcomingness
Ch Investigatorial
Romano Gallic
In causes of different complexions, I find frequent instances, where, after one budget of evidence has been collected, the cause is opened again for the reception of another. As often as this has happened, it is possible and natural enough, that a lot of evidence included in a first batch has /shall//may/ have in the character of indicative evidence, have served for the discovery of this or that lot that came to be included in the next. But this is a sort of information equally apt to result /be afforded/ by the best evidence as by the worst: by that which is most fit to serve for grounding a decision, and by that which is most compleatly unfit for being made any such use of /any such use/. And as no evidence is /seems/ too bad to be at least received in the character of ultimate evidence (whatever regard may come to be paid to it) the occasion does not take place for noting any such distinction as that between a sort of evidence which is fit to be received to help ground a decision in the character of ultimate evidence and that which is not fit to be received in any other character than that of indicative evidence.
As to the promiscuous reception of regular and makeshift evidence in the character of ultimate evidence: in the trial of the Calas s[?] at Toulouse, I observe hearsay evidence at so great a distance as the 5 the remove received and put upon the same line with immediate evidence. In other quarters the imbecility of this species of evidence does not indeed appear to have passed unobserved: but the blame attached /applied/ upon the Judges in that case appears to have been attached not upon the admission given to it, but upon the attention shewn to it. No notice appears to have been taken by other observers how perfectly unexceptional and serviceable this same wretched evidence wretched and scandalous in the character of indicative evidence. No care appears to have been taken either by the Judges or by the public prosecutor, to step from point to point in the chain /proceed from link to link in the chain/ of reporters, till the immediately percipient witness himself, or the falsity of the report which had spoken of Paul or Peter in that character had been brought to light.
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Title: [[...?] [...?] 1804 Evidence]Description: [...?] [...?] 1804 Evidence Forthcomingness Ch. Investigatorial §.1. Investigation quid Ch. Of Investigatorial Procedure and Investigatorial Tribunals /Courts of Enquiry/ By procedure ad investogadum or investigatorial procedure I understand any system or mode of procedure, considered as applied to the discovery of one lot of evidence through the medium of another: in other words one link in a chain of evidence (a) through the medium of another: in other words of following up a thread of evidence in examining a lot of evidence not in the character of a lot of a lot of evidence for the ultimate hearing /ultimate evidence/ - evidence for grounding a decision on the subject of the cause - but in the character of evidence of evidence /a lot of indicative evidence/. In a word it consists in the examination of evidence in the character of indicative evidence. Evidence fit for ultimate evidence, will not, it is plain, be on that account the less fit to be heard or received in the character of a lot o indicative evidence. But it may frequently happen, that a lot of evidence, plainly unfit to serve in the character of ultimate evidence shall be as fit as any other to serve in the character of indicative evidence. (b) Suppose In a case in which all the evidence which the transaction furnishes to be /is/ already known to both parties, there exists no demand for procedure of the investigational cast, as above described. For distinctions sake, procedure in this case may be termed procedure testibus cognitis, or rather to include real and written evidence, probationibus cognitis. (a) Note a Ch [...?] [...?] of a chain of evidence (b) [...?]?
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Title: [16 May 1804 Evidence Forthcomingness]Description: 16 May 1804 Evidence Forthcomingness Ch Investigatiorial Engl Law §. Romans Gallic In Romano Gallic procedure I see nothing that prevents the making the proper use of imperfect /exceptional/ evidence, the employing it in the character of indicative evidence for the discovery of such s shall be unexceptionable. But between the functions of a lot of evidence - service in the character of a ground of decision, and serving for the discovery of other evidence I see not the marks of any clear line of distinction drawn in the language or conduct of men of law. The time for the examination and receipt of evidence not being there as in England confined within the compass of a single day or fragment of a day, but susceptible of any extention which Justice (not to speak of injustice) can require there is nothing to prevent evidence from succeeding to one another in a chain of any length, in the order in which the several succeeding links are indicated by the several preceding ones. But between the two perfectly distinguishable functions of which [...?] a lot of evidence is, whether with propriety or not, susceptible serving in the character of a ground of decision, and serving for nothing other than /no other purpose than/ the discovery of other evidence. I see not the marks of any clear line of distinction drawn either in the language or the conduct of men of law. In the character of ultimate evidence /evidence for grounding a decision/, the imbecility of hearsay evidence for example, is seen to have been duly note: but on the one hand neither does the serviceableness of it in the character of indicative evidence appear to be ever noted (in French any more than in English law language there not being so much as a name for the expression of evidence considered as applied to this use) nor does its imbecility in the character of a ground for decision prevent its being received into the budget of evidence. Received it is ad without a question made, whether the immediate evidence the existence of which is indicated by it be or be /is or is/ not obtainable. Received it is, whatever trash it may consist of: received it is, for the person on whom the reception of a lot of evidence into the budget depends, appears to be not the Judge, but the party who has the examination of the witness or in the case of real or written evidence, in getting possession of it, has obtained /procured/ it: and it then rests with the Judge to pay such regard to each article as it appears to him to deserve.
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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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