4 May 1804

Evidence

Forthcomingness

Ch Investig Eng Law

§.1. Original deficiency

Little by little /By degrees/ this radical defect in the contrivance /plan/ of the system has in some instances /in this or that instance/ been to a certain degree supplied: but even in these /to that limited extent/ it is to accident /the fortuitous concourse of atoms/ that the system has been indebted for the improvement, not to design in any case. While the exercise of investigatorial power remained in every case impossible, that power continued /remained/ in every case unexercised: in proportion as in this or that instance the possibility of exercising /one inlet to the exercise of/ it came into existence, the practice of exercising it crept in. What there is of it, society is indebted for to the exertions /ingenuity and industry/ of the subordinate class of judges Justices of the peace - not to any individual breathing /person that ever existed/ in the character of a legislator of a Chief judge: to Country Gentlemen in a word not to men of law.

In a word wherever we see a non-lawyer - a man of education - anglicé a country gentleman acting in the character of a Justice of the Peace, acting at his own house, there we shall see evidence discovered by /truth brought to light by the exercise of/ legal powers, because the employment of legal powers for that purpose was not impossible, as to the professional Judges his superiors, if on this score justice is indebted to them in any shape, not to their exertions /it is to their forbearance/ that the thanks are due, not to their exertions but to their forbearance: to their sleep much rather than to their vigilance.

Books upon books might have been written for ages, as books are written by lawyers, and no such ideas other than investigatorial procedure might have been brought to view, no notion taken of the difference between that and procedure testibus /probitionibus/ cognitis - none consequently of the latitude /extent of ground/ to which the use /dominion/ of investigatorial procedure has extended, nor of the helplessness of the law for want of it in the cases to which it has not reached.

Note (a)

(a) a few [...?] excepted, and these clogged with exceptions upon exception, for facilitating the discovery of written evidence.