22 May 1804

Evidence

Place uncertain

Forthcomingness

Ch. Investig. Eng. Law

§.1. Original deficiency

The principal means of of the physical means /operations/ that may come to be employed for the purpose of securing the forthcomingness of evidence the principal articles have already been enumerated/ on [...?] has been already given: a few observations relative to /under the head of/ each may at present have their use.

Which of these may on each instance be conducive to the effect desired, is a subject concerning /question on/ which there will in general be little difficulty: natural understanding /common sense/ will in general present a ready answer, without any aid from science /study/ or from law. The difficulty is in each case to determine /In each instance, the difficult point[?] to determine/, which shall be allowed to be employed? allowed to the party by the Judge? allowed to the Judge by the legislator?

The word Trial is a term not fit to be /capable of being/ employed in universal jurisprudence: since it assumes an association such /a combination of a sort/ peculiar to English jurisprudence. On a trial, the decision on the question of fact, and the previous exhibition of the evidence - of a whole body of evidence on which that decision is together with the observations made on both sides upon the evidence to be grounded - are the work of the same day, - of the same sitting. In Roman procedure in the procedure of perhaps every civilized nation besides the English the exhibition and collection of the evidence is the work of one period the decision preceeded by the observation made on the evidence on both sides, of another. The sitting /A judicial sitting, whether/ for the purpose of hearing those observations, or for the purpose of hearing any arguments on questions of law arising out of the cause is termed /stated/ in French audience. To this word corresponds the English word hearing - the hearing of the cause - in a sense in which it is used in the Equity Courts in which no Jury being called in, no such word as trial is employed.