21 May 1804

Evidence

Forthcomingness

Ch. Investig Eng law

§.1. Original deficiency

In the case of several operations, preparatory to this exhibition of the evidence - personal, real or written - whether necessarily or incidentally - such as /viz./ entry, search, arrest, inspection, detention, sequestration and adduction - the operations which in each case may be conducive to direct justice pressed[?] themselves as it were of themselves. Which of these may in each instance be conducive to the end in view to the effect desired, is a question concerning which there can /will/ in general [...?] be little difficulty: common sense natural understanding will in general [...?] a ready answer without any aid from science or from law. The difficulty in each case /the case of each/ is to determine which[?] shall be allowed to be employed: allowed to the party by the Judge? allowed to the Judge by the legislator? to make the option between direct and collateral injustice - to decide in each case between the conflicting claims of direct justice on the one hand and the justice opposite to collateral injustice, principally in the shape of vexation, on the other: vexation to wit in the case of personal evidence to the proposed witness: in the case of real evidence, to the possessor of the source of real evidence, or of the house, shop waggon or other receptacle in which it is lodged /contained/

The natural consequence of this primaeval defect makes a curious contrast with the policy of the evidence - excluding /exclusionary/ system that afterwards developed itself by degrees. By /From/ the absence of all legal power of preliminary examination /investigation/, no evidence could ever be discovered, in such source at least as to be capable of being employed at the trial, but through /by/ favour of the persons through whom the discovery was to be made. It was the effect then of every such discovery then afforded /to afford/ no slight presumption at least of bias, of partiality on the part of the indicative witness to the cause of the party, to whom /at whose instance/ the disclosure was to be made: and this continued to be the case, after that while on the other hand, the bare possibility of a bias, to the minutest amount, (not to speak of the shadow /name/ without the reality of a possibility) became /had/ under the policy just spoken of, been rendered a sufficient ground for the peremptory rejection of a mans /any man's/ evidence - biased, he was inadmissible; unbiased he was not to be had.