date

25 April 1805 Evidence Ends
25 April 1805

Evidence

Ends

Ch.1

' 2

'.3 Preparatory

Explanation

Of suits that may be called bipartite there are two sorts One is where there is no plaintiff the function of plaintiff or prosecutor is /being/ performed by the Judge: or rather the enquiry being throughout carried on by the Judge of his own motion, and without waiting[?] to be applied to to carry it on at the instance of any person in the character of prosecutor or plaintiff. A suit of this kind is called a Judicial Enquiry. An Inquest - an Inquisition The species /system/ of procedure in so far as it is composed of such carried on in this mode is /has been/ called Inquisitorial procedure: and the defendANT WHERE THERE IS ONE IN MODERN[?] [...?] Inquisitors.(a) The mode of procedure is also called inquisitorial where a Judge /an officer/ or a set of Officers being armed with the requisite portion of judicial authority /power/ carry on of their own motion (i.e. without solicitation by any[?] person in[?] the character of a plaintiff) an enquiry in relation to any matter of fact, whether simple or to any degree of complexity, complex: the enquiry not having for its object the impressing upon any person any sort of obligation in the character of defendant.(a) 4(a) Examples 1. English Law. Proceedings of the Coroner /Coroners Inquest/, with his Jury, sitting on a dead body, to enquire into the cause of the death 2. Proceedings of a Committee of Enquiry appointed by either House of Parliament 3. Proceedings of Commissions of Enquiry, appointed ad hoc /on special occasions/ by [...?] of Parliament

3(a) Examples. Romans[?] - Gallic Law - Cases in which the Judge proceeds a [...?] [...?] office 2. In Romano-Germanic Law, the whole system of procedure called Inquisitorial, which seems in the penal branch to have not much less employment than its concurrent /the other/, termed the accusatorial. 3. In Romano-Anglican Law.
Similar Items
  • Title: [25 April 1805 Evidence Ends]
    Description: 25 April 1805

    Evidence

    Ends

    Ch.1.

    '.3. Introductory Explanations

    By the system of procedure I understand the system of legal arrangements by a set of rules prescribing the mode in which the proceedings made to a suit at law shall be conducted /carried on/ by the several sorts of persons concerned /known/, in consequence of the several incidents liable to arise therein: and declaring what on each occasion shall be done in the event as well of compliance, as of every possible mode of non-compliance in regard to each respective rule. /declaring what shall and what shall not be done in consequence of each incident./ A suit of law is either tripartite or bipartite.

    A /By a/ tripartite suit at law of which sort are by the greatest number of suits (called on different occasions an action a cause, a prosecution, a demand a legal demand) an enquiry (legal enquiry) an inquest, an inquisition) I understand any such series of proceedings as which takes place in consequence of a demand addressed [...?] by a party called a plaintiff+ to one person or set of persons in the character of a Judge or Judges (say for shortness to a Judge or the Judge) praying him to render to the demandant a sort of service[?] which by the tenor, purport or effect of some article of the substantive branch of the law he is required /is supposed/ in the case in question to render to a person being in the case of the demandant, at the charge of another person who in respect of the liberty reserved to him of disproving /disputing/ the title /right/ of the plaintiff to load /charge/ him with the obligation the imposition of which is necessarily included in the rendering of such service, is termed the defendant

    + Synonyms to the word Plaintiff 1. Complainant 2. Demandant 3. Petitioner [...?] in a penal case 4 Prosecutor 5. Accuser 6. Promovant[?.].
  • Title: [15 May 1804 Evidence Forthcomingness]
    Description: 15 May 1804

    Evidence

    Forthcomingness

    Ch. Investigatorial

    In French procedure /jurisprudence//practice/, though inquisitorial procedure, as above described, procedure d'office (as it is called) is not without example, it by no means makes an equal figure - occupies in the books a space - equal to that which is occupied by the same branch in the German books. The reason may perhaps, /case perhaps may/ be, that in German jurisprudence /Germany/ the office a public prosecutor, distinct from the Judge is not so constant an ingredient in the composition of the judicial establishment as in France.

    In English law, this mode of procedure is not less familiarly /[...?]/ known than in French or even that in German law. There is however this difference /one very observable difference/. In English law, except in here and there a case seldom exemplified in practice, the inquisitorial mode of proceeding is confined to the preparatory stages of procedure: at the ultimate hearing - the trial - an accusor presents himself a prosecutor distinct from the Judge: nor is the Judge who presides at the ultimate hearing the same as he by whom the procedure has been conducted in its preparatory stages.

    In the case of summary procedure before a single justice of the peace, the same Judge by whom the case is commenced conducts it, it is true, to the end: but then in these cases, the procedure is not in any stage of it, of the inquisitorial kind as above described: the function of accusor is from beginning to end carried on throughout by a party, the informer: an individual who finds his renumeration in an inducement in the receipt of the penalty (a pecuniary one) allotted /[...?]/ to him in that view.
  • Title: [15 May 1804 Evidence Superceded]
    Description: 15 May 1804

    Evidence

    Superceded?

    Forthcomingness

    Ch. Investigatorial Precede[?]

    Engl Law

    In practice a sort of connection may have been observed between the exercise of investigatorial procedure, and the exclusive exercise of the function of examination by the person of the Judge. A few observations explanatory of this connection, and of the causes of it may not be without their use.

    In a penal branch of law, it is the property /among the property/ of a certain class of offences to afford no particular individual, prompted by any natural interest to engage in the prosecution of them. + So far then as an offence of this sort is prosecuted, and no individual is engaged by factitious inducements to take upon him this task /undertake the charges//charge himself with the task/, it sill devolve upon /must be exercised by/ some official person, if by any body. It is not only possible, but usual, and in some respect convenient, that the task of carrying on such prosecution, and including or not including the main function of it - the examination of the evidence /witnessess/, should be performed by an official person appointed for this particular purpose, with an office distinct from that of the Judge. But neither is it without example, nor even unusual, nor in any point of view the least convenient arrangement, that this same function should be added to /consolidated with/ that of the Judge. Accordingly in German jurisprudence criminal procedure is divided into two not very unequal branches: accusatorial, where the operations necessary to the procurement and examination of the evidence is performed by a party, (private, public or both in conjunction) and inquisitorial, where the same operations are carried on by the Judge: in the first case, the defendant is called in Latin [...?] or accusatus; in the other, in German Latin, inquisitus.

    + Dumont