date

[094-274v] 17 May 1806 *A
[094-274v]

17 May 1806

*A

Evidence

Note?

Exclusion II. Proper

Ch. Engl. Law & Vexation

'. to Judge

Note 2 (a)

(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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    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.

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    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

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    Obligation of yielding testimony at the instant and in the spot without opportunity of concerning, or time for imagining, safe falsehoods or safe reticences (a), exposes at the same time to the force of counter-interrogation, by questions arising out of the answers, as well as to the force of counter-evidence from extraneous sources - in case of detected[?] monopoly[?], few thee such are the checks, to which the testimony of the party is subjected, subject as of course, by the presence of the adverse party, concurring with the presence of the Judges: these /such/ consequently are the checks /securities/ to which the salutary force of the testimony of an extraneous witness ought equally to stand exposed.

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