17 May 1804

Evidence

Forthcomingness

Ch. Investigatorial

§.3. Rule 1 & 2

Rule 1. Investigatorial procedure ought to be made applicable to every sort of cause.

Reasons.

1. The Circumstance by which the demand for investigatorial procedure is constituted is a circumstance alltogether foreign to the nature of the cause. Penal or non-penal, it is alike incident to every sort of cause: as likely to take place in one sort of cause as in another.

2. The reason for compelling the evidence of an indicative witness, through whom alone an ultimate witness can be discovered and made known stands on exactly the same footing as the reason for compelling the evidence of the ultimate witness. In which ever instance, power for that purpose be denied /refused/, the probability or certainty, or failure of justice, or undue decision, as the case may be, is the same.

3. In the case of a source of real or written evidence, it has already been shewn /is sufficiently manifest/, that without an unlimited fund of investigatorial power, evidence of this sort may be shifted from hand to hand without end, and supposing a lot of evidence of this description necessary to substantiate the plaintiff/s claim, or the defendants defence, in /for/ whatever time the hearing of the cause is fixed, he may be sure to lose it, for want of the evidence thus kept back.

4. Take away the investigatorial power in question, the party having need of the evidence the lot of indicative evidence in question is altogether at the mercy of the individual on whom it depends whether or not the indicative evidence in question shall be exhibited /one individual from whom, by reason of [...?] to one party, favour to another, or caprice, or indolence, the obtaining of it may be altogether hopeless/: exactly as much as if the power of commanding the exhibition of the lot of ultimate evidence in question or any other lot of ultimate evidence were in like manner taken away. Add again the investigatorial power, the dependence of the party is no longer upon the favour of an individual, but upon the justice of his cause.