15 May 1804

Evidence

Superceded?

Forthcomingness

Ch. Investigatorial Precede[?]

Engl Law

In practice a sort of connection may have been observed between the exercise of investigatorial procedure, and the exclusive exercise of the function of examination by the person of the Judge. A few observations explanatory of this connection, and of the causes of it may not be without their use.

In a penal branch of law, it is the property /among the property/ of a certain class of offences to afford no particular individual, prompted by any natural interest to engage in the prosecution of them. + So far then as an offence of this sort is prosecuted, and no individual is engaged by factitious inducements to take upon him this task /undertake the charges//charge himself with the task/, it sill devolve upon /must be exercised by/ some official person, if by any body. It is not only possible, but usual, and in some respect convenient, that the task of carrying on such prosecution, and including or not including the main function of it - the examination of the evidence /witnessess/, should be performed by an official person appointed for this particular purpose, with an office distinct from that of the Judge. But neither is it without example, nor even unusual, nor in any point of view the least convenient arrangement, that this same function should be added to /consolidated with/ that of the Judge. Accordingly in German jurisprudence criminal procedure is divided into two not very unequal branches: accusatorial, where the operations necessary to the procurement and examination of the evidence is performed by a party, (private, public or both in conjunction) and inquisitorial, where the same operations are carried on by the Judge: in the first case, the defendant is called in Latin [...?] or accusatus; in the other, in German Latin, inquisitus.

+ Dumont