20 May 1804

Evidence

Forthcomingness

Ch Investigatorial

§.4 Rule 3

Every now and then /In many instances//On this or that occasion/ it will happen that the intervention of the same Judge on both occasions shall be impossible: the Judge by or under whom a preparatory examination has been performed, dies, is incapacitated by illness, or is promoted or otherwise removed. Wherever /So far as/ any such impediment applies, whether the bar amount to an impossibility, or though it be no more than a preponderant inconvenience, so far the objection holds good in the character of an exception: but to the case to which it does not extend, its inapplicability follows of course.

On the ultimate examination, in English procedure in the Common Law branch a jury can be and is present to receive the mass of ultimate evidence as well as to decide upon it: and at any preliminary examination it neither does assist, nor without a very thorough /natural/ change in the course of procedure, if at all, /would be made to assist without preponderant inconvenience. The objection seems true enough: but so far as it applies it adds to the list of /operates as an article in/ the inconvenience attached to that mode of trial in the debtor and creditor account of its inconveniences and advantages. But the very idea of a system of procedure conducted /directed/ bonà fide by the hand /light/ of human reason to the manifest and undisputed because indispensable ends of justice, strikes horror and dismay accustomed to behold a perennial source of profit, power and reputation in every deviation from these ends.