date

[094-273v] 27 May 1806 Evidence
[094-273v]

27 May 1806

Evidence

Exclusion II. Proper

Ch. Engl. Law & Vexation

'. to Judges

4. Roman /Rome bred/ mode per judicam ad hoc solum. /The/ [...?], whether extraneous witnesses examined vivâ voce by the Judge alone: if a party no other party present: if no extraneous witness no party present: no person present in quality of assistant to either party: no interrogatory consequently no counter-interrogatory by any person but the Judge. Interrogations proposed before hand and in writing: testimony delivered vivâ voce but, consigned to writing upon the spot. Employed under Roman Law every where out of the English School, and in the English School within a certain number of scribes[?] of the metropolis, under the direction of the Courts of Equity.

+ The decision not formed by the Judge by whom the evidence is thus collected.

5. Romano-Anglican mode by Commissioners /on both sides/. The same as above, except that the Commissioners, being nominated in equal number on each side, unite in some measure the character of representatives of the parties to that of Judges.

6. Romano Anglican mode before a Master /(a sort of subordinate Judge) in Equity and at Common Law/. The same as in N o 4 except that the decision is framed by the same Judge by whom the evidence is collected. Examination sometimes upon Written interrogations, prepared on behalf of parties, sometimes without any such help or dep.[?]

7. English Affidavit made upon oath. Testimony delivered in writing: neither counter-interrogation nor interrogation, by Judge, party or any body else. /Evidence/ Received indiscriminately in this shape from parties on both sides, and from extraneous witnesses

8. Affidavit mode without oath /Assertion uninterrogated and unsworn/, or special pleading mode. The same as N o │ │ except as to the absence /non-existence/ of the ceremony of the oath, and thence of punishment, in case of mendacity, vis for perjury. For the occasion In which this form is employed, see the ensuing Chapter on the Mendacity-licence. In the Roman School, (in the French class of it at least) in all cases, except where the Roman mode N o 4 is employed: /employed/ in use on all interlocutory, or say incidental, applications. In the English School, in use in such alleviations alone, as are included under the name of Pleadings. See the Chapter so intituled.
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    (a) /Concise idea /Slight sketch/ of the/ Principal diversities respecting the mode of collecting testimony; the shapes in which it is exhibited in practice.

    1. Natural ordinate mode: - the mode in use in Courts of Conscience, except in as far as cramped[?], by the terror of the technical Courts /- science[?] - and before a Justice of the Peace/ and before Arbitrators, Parties present: each testifying for himself, each, in answer to counter-interrogations put by the adversary, testifying against himself: extraneous witnesses examined on both sides by interrogations and counter-interrogations: the Judge also interposing with interrogations as he thinks proper: the Judge who decides upon the evidence the same person by and before whom it has thus been collected: - every thing delivered vivâ voce; but upon occasion capable of being consigned to writing. In case of necessity, assistants to the parties not excluded.

    2. English Jury mode: - The same as above, except that unless in the instance of the defendant where the nature of the cause introduces him in the character of a prisoner, the presence of the parties is not required; their interposition in the character of parties for the purpose of interrogation and observation discontinued in the character of testifying witnesses, for and against themselves, not endured.

    3. English epistolary mode: - examination, or [...?][...?][...?] - to the testimony of the Defendant only, not to that of the Plff or of any extraneous witness, in the English Courts of Equity: To Interrogatories delivered in writing, in an instrument called a Bill, on the behalf of one party, responses delivered in writing, /writing, in an instrument called an Answer,/ by the other. In point of reason and utility, this may be stated as necessary, be the subject of the suit what it may in some cases in the character of an eventual supplement, in some cases in that of a temporary, though never in that of an absolutely definitive, succedaneum, to the natural mode. In its own nature, who unless it be a lawyer, can need to be /the observation/, reminded, that no less applicable to plaintiffs than to Defendants; to extraneous witnesses than to parties?
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    In the English system, the appearance of the parties in the face of each other and the Judge is compleatly avoided and prevented in all cases except those in which it is not possible to prvent it. These are a [...?] class of criminal causes /+In causes non-penal premature[?] explanation[?] is avoided. in which the defendant appearing unavoidably in the character of a prisoner, and the Courts open [...?] exclusion of the adverse party the prosecution is impossible: especially of as in most cases /[...?]/ and of a penal nature he is admitted in the character of a witness. But in this case besides that explanation would come too late, by far the greater part of the delay, expence and vexation of the cause being already incurred, the shame of explanation is avoided in no inconsiderable degree by another arrangement: no question which the defendant would not wish to answer being sufficient to be put to him in any [...?] case for fear his guilt should come to light. It seems implicitly understood by /in/ the [...?], that no unnecessary discouragement should be thrown in the way of customers.
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    In the English Equity mode, two characteristic features, viz. the two modes of collecting evidence: 1. the secret mode, performed vivâ

    voce, for judicum àd leve[?]; applied principally to the evidence of extraneous witnesses: a mode bad in all cases: - 2. the epistolary mode; - a mode confined in its application to parties when examined as witnesses, and (for the sake of making two sorts[?] out of one) to the defendant's side of the suit: but, if good as applied to parties on one side, not less so as applied to parties on both sides: if good as applied to parties, not less so if applied to extraneous witnesses: if good as employed in Equity Law causes, not less so if employed in Common Law causes.

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