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30 March 1804
Forthcomingness
Ch. Investigatory
§.2. Permanence.
§32 Permanence of session necessary to an investigatorial tribunal. Rule 1. To be competent to the purpose /business/ of investigatorial procedure - to be competent to the degree in which it might and ought to be made competent, every court of original jurisdiction can not but must be permanent: its sittings must be and is continued.
Reasons A chain of indicative evidence may be of any length: the [..?] it is composed of may be in any number: the time necessarily or eventually consumed in travelling from link to link between the examination of first indicative witness, and the examination of the witness whose testimony is found capable of being employed in the character of ultimate evidence, may b any length of time. In the course of that time it amy happen as well to the evidence of such ultimate witness as to the evidence of any intermediate witness to have perished. A witness who is not examined at this or that particular point of time, may not be to be examined at any other point of time. Reasons [..?] to the fountainhead. In case of non-existence or discontinuity of competent tribunal.
Principals. 1. danger of injustice by deposition of evidence. 2. Collateral injustice certain, in the shape of vexation, expence and delay.
Rule 2. As there is no tribunal of original jurisdiction, to which it may not happen to be called upon to proceed in the way of investigatorial procedure, for this, not to speak of other reasons every court of original jurisdiction ought to be permanent: its sittings ought to be undiscontinued.
Rule 3. In so far as it may happen to the same witness to be subjected to more than one examination in relation to the same fact - viz: once or oftener in the character of an indicative witness, for the purpose of extracting from him testimony of the indicative kind, and again in the character of an ultimate witness, hence it is desirable that the same Judge by whom or in whose presence such testimony is extracted in the first instance, should be /the judge by whom or in whose/ presence it is extracted in every other instance.
1. Reasons. 1. Of the circumstantial evidence /psychological/ of the psychological kind in various shapes will naturally be afforded on a first examination, a great part will be apt to disappear to vary or lose more or less of its trustworthiness or impressive force on any subsequent occasion.
Deportment - clearness or confusion of mind, verirality[?] or mendacity as and [...?] by countenance, voice and gesture
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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: [17 May 1804 Evidence Forthcomingness]Description: 17 May 1804 Evidence Forthcomingness Ch. Investigatorial §.3. Rule 1 & 2 Rule 1. Investigatorial procedure ought to be made applicable to every sort of cause. Reasons. 1. The Circumstance by which the demand for investigatorial procedure is constituted is a circumstance alltogether foreign to the nature of the cause. Penal or non-penal, it is alike incident to every sort of cause: as likely to take place in one sort of cause as in another. 2. The reason for compelling the evidence of an indicative witness, through whom alone an ultimate witness can be discovered and made known stands on exactly the same footing as the reason for compelling the evidence of the ultimate witness. In which ever instance, power for that purpose be denied /refused/, the probability or certainty, or failure of justice, or undue decision, as the case may be, is the same. 3. In the case of a source of real or written evidence, it has already been shewn /is sufficiently manifest/, that without an unlimited fund of investigatorial power, evidence of this sort may be shifted from hand to hand without end, and supposing a lot of evidence of this description necessary to substantiate the plaintiff/s claim, or the defendants defence, in /for/ whatever time the hearing of the cause is fixed, he may be sure to lose it, for want of the evidence thus kept back. 4. Take away the investigatorial power in question, the party having need of the evidence the lot of indicative evidence in question is altogether at the mercy of the individual on whom it depends whether or not the indicative evidence in question shall be exhibited /one individual from whom, by reason of [...?] to one party, favour to another, or caprice, or indolence, the obtaining of it may be altogether hopeless/: exactly as much as if the power of commanding the exhibition of the lot of ultimate evidence in question or any other lot of ultimate evidence were in like manner taken away. Add again the investigatorial power, the dependence of the party is no longer upon the favour of an individual, but upon the justice of his cause.
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Title: [31 March 1804 Evidence Forthcomingness]Description: 31 March 1804 Evidence Forthcomingness Ch. Investigatorial §.7. Course §.4. Peculiarities of investigatorial procedure As to the plea or mode /course/ of proceeding in investigatorial procedure, it will be obvious at first sight, that between procedure in this case and procedure testibus cognitis there can be no great difference. The securities for trustworthiness, including the mode of examination will be the same - the occasional legitimate causes of delay - sickness, distance or expatriation of the witness - will be the same: and so on throughout. Two observations present themselves alone as turning /being grounded/ upon the main points of distinction between procedure for the obtainment of ultimate evidence in the first instance, and procedure for the obtainment of it through the medium of indicative evidence.
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