date

1 April 1804 Evidence Forthcomingness
1 April 1804

Evidence

Forthcomingness

Ch. Investigatorial Engl Law

§ 2 English Law

NOTE (a)

(a) Time after time, upon the spur of this or that particular occurrence - time after time (for to take more than one step at a time or to act upon any thing that can be called a plan is as foreign to an English lawyer as to a savage of New South Wales /Othauti/) time after time, this or that offence has been taken up out of the civil trespasses, and exalted into the class of felonies. In the chaos of English law, and in particular in that dark of it which is clouded /overclouded/ by the word felony, a man neither sees half the good that he does, nor half the mischief. Among the mischief /To the account of mischief/ done, besides the most mischievous of all punishment the punishment f death which no man ought to inflict upon man without eating him /another whom he did not eat/, is the mischief called felony /are of the contents of Pandora's box/, a mass /hodge podge/ of punishment so mixed up and put together that to the lips that are so prompt to chatter /argue/ about it, there never yet belonged and eye that could see to the bottom of it. To the account of good belongs the exposing the cause to the light capable of being thrown upon it by investigatorial procedure. Thus it is on this occasion, as on so many thousand other, good and evil are so mixed up together /amalgamated/, that all solution /separation/ is impossible. A man can not produce a particle /draw forth a drop/ of good, but out comes evil comes out along with it in a stream. A man can scarce do evil, but good comes out along with it, tough perhaps without his thinking of it.

In no one English law book is any intimation /the slightest intimation any where/ to be found, of the real advantage thus obtained by converting offences /an offence,/ oftentimes offences /an offence/ perhaps till then unpunishable, into felonies /a felony/. If /So far as/ ignorance may here be inferred from silence, an English lawyer when he is manufacturing a trespass into a felony, no more knows what he is doing no more knows that he is giving the cause the benefit of investigatorial procedure, than Monsier Jordan[?] knows that he was talking prose when he was talking prose.
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    Ch 4 Investigatorial Engl Law

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    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.

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