date

Evidence 16 June 1805 Introd
Evidence

16 June 1805

Introd

Regular useless

The sort of inquiry made Nisi Prius and /or/ /what is called the Trial/ the Assizes - the sort of inquiry carried on in the presence of a Jury will not always suffice, will very frequently not suffice without preparatory inquiries. The business of the Trial, is to display before the Jury, and take their decision upon which, the [...?] of evidence on both sides, as collected for the purpose. But before it /there/ can be displayed, a pretty long thread /chain/ of previous inquiry is sometimes necessary, for the collection of it.

The collection of the evidence frequently by the investigation of a thread of evidence, is the business of these preparatory examinations which are taken, previous to the trial for a felony /trials for [...?]/ the trial in case[?] of felony. To the definitive inquiry called a Trial a course of preparatory examination such as those, you have all the oral inquiry that is necessary, and more than is ever actually employed, in non-penal cases.

But the two inquiries, the definitive and preparatory thus /just/ described, the two inquiries put together, amount to no more than is done, effect no more than is affected by the single and simple inquiry carried on in which /which comprises /constitutes/ and with the addition of judgement and execution, exhausts/ Summary Procedure.
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    . Jury

    In /civil/ causes called civil under the existing system it continually happens that the At present the operations /inquiry/ that should have been compleated in one sitting, requires two or more constituting in effect so many distinct and distinct causes, one or other party having been unprepared and in some way or other taken by surprise. Whence this surprise? For want want of those previous explanations which in the summary mode could not but have taken place, taken place at the very first meeting.

    Trial by Jury is unavoidably encumbered with an expense from which summary procedure is free. The Jury might in all instances as already they do in most instances, be made to give their expense and labour gratis. But by an arrangement of this sort the burthen so far from being annihilated is increased. It is [...?] /made to pass secretly and severely/ upon a few instead of being laid as by equal taxation it would be laid equally upon the whole community, and thus rendered nearly imperceptible.

    At any rate upon the plan here proposed, the burthen of Jury service, wheresoever is reduced to the least quantity - to which being so laid respectively, it is in its nature to be reduced.

    From the [...?] number of O[?] number /so frequently laid upon the/ twelve, and the almost constant employment of this number for definitive trials for all trials but the useless preparatory one before the Grand Jury, one would think there were some unequal virtue in the number. Were the spell ever to be dissolved, that, in many instances at least, it might then appear, for every real purpose of justice, a number considerably less inferior might serve.
  • Title: [17 May 1804 Evidence Forthcomingness]
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    2. In cases where a second hearing is necessary a definitive hearing is necessary, over and above the preparatory one, in the course of which testimony that has been heard already in the course of a preparatory examination, comes again to be heard on the occasion of a definitive general examination (as in the case of an English trial for a felony) it is of use that the Judge who pronounces and presides at the /such/ second examination of the same witness should have been present at the first examination of the same witness - why? because he will be better enabled in this case than he could have been otherwise /in this case he will be enabled in a degree in which he could not have been otherwise to judge of the consistency and thence of the veracity and correctness of the testimony given by the witness on the ultimate examination on the result of which the decision depends. On the first examination, a witness, whether party or extraneous witness is taken in a great measure unprepared, and comparatively speaking without being possessed of the data necessary for subservient to the purpose of concerting a plan of falshood: on this occasion the visible but undesirable part of his deportment constitutes an instructive fund of circumstantial evidence. + In any subsequent examination he has always time, and frequently data, for correcting his evidence otherwise than according to truth - for dropping or explaining away known falshoods improbabilities and self-contradictions. If the Judge present at the first /preparatory/ examination is not present at the definitive examination of the same witness, this fund, this highly instructive and unsuspicious fund of information is lost, and false lights will be apt to take its place.
  • Title: [16 May 1804 Evidence Forthcomingness]
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    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.