May 1804

Evidence

Forthcomingness

Ch. Investig. Eng. Law

§.1 Original deficiency

Ch. Investigatorial procedure continued - English law.

§ 1. Original deficiency of investigatorial power.

Investigatorial power being thus necessary to justice, and the necessity of it thus palpable, it may not be altogether uninteresting to observe the extent to which the use /application/ of it has been carried in English law.

In the original contexture /concoction/ of the system of procedure, the use of this instrument /apparatus/ for the discovery of truth was plainly impossible: impossible on both sides of a cause, and in all sorts of causes. Investigatorial power requires as in indispensable condition to the course of it, examination of evidence on two different occasions: the trial, if that be the name given to the ultimate examination, and at least one preparatory examination: an examination preparatory to the trial, because having for its object the discovery of such evidence as may be proper /fit/ to be presented /exhibited/ at the trial, the purpose of constituting the ground in which the decision on one side or the other /whether the side of the plaintiff or that of the defendants'/ shall be built. In English practice /procedure/ in its original frame, the trial being the only occasion on which the extracting of evidence with the aid of judicial power could be performed, and that trail not lasting /the time occupied by that trial not extending/ beyond the limits of a single sitting the very possibility of any such investigatory and preparatory course of examination was thereby excluded /shut out/. Here then was a jurisdiction lame at its birth: a system of action directed towards an end, but radically /unless by accident/ incompetent to the attainment of that end /unprovided with the means which in a multitude of instances would be indispensibly necessary to the attainment of that end/.