22 Mar. 1805

Evidence

Securities

Ch. Procedure Natural

In the bosom of a family An article of food, of clothing, the instrument employed in labour - being in the possession of one brother is claimed by another; possessor refuses /refusing/ to give it up, there common father is applied to, to say who shall have it. The father calls them both into his presence - each cites his story /states his case/; but each being partial to himself, neither of himself tells /brings forward/ any more of it than suits the purpose of his claim. But what each if left to himself would have kept back, each finds himself obliged to bring forward by a questions put to him for that purpose by the other - to these questions neither dares /ventures/ to refuse an answer, each seeing /forseeing/ that by [...?] common superior [...?] whose will the allowance or disallowance of the claim depends, that by their common superior, consciousness of wrong would be the inference drawn from silence. The disputed article /subject of the dispute/ is allotted /adjudged/ by the father to the complaining child /plaintiff, or to the defendant,/ or to the child complained against, as he sees fit. Thus we have the /In this representation we can see the/ model /rudiment/ /given/ and the exemplification of judicature, and of judicial procedure in cases of a non-penal nature.

I found some berries in yonder bush; I was gathering them and eating them when by Brother came up, and in a tone of anger called to /commanded/ me to be gone /bid me cease gathering/. I would have shared them with him but that would not satisfy him; he had discovered them he said before I had and they were his. Not finding me unmoved /Finding his anger unfettered[?]/, he fell upon me, struck me, and reduced me to the condition which you see. Make him suffer, as he has made me suffer, or he will continue thus repeating the ill usage, and I shall never be at peace. The father calls them together as before, hears what each has to say for himself, what each is forced to say by the questions put to him by the other; and punishes [...?] as he sees fit. Here we have the genre of penal judicature, of judicial procedure in causes of a penal nature, and in that form of penal procedure, which among German lawyers is distinguished by the name of accusatorial.