16 May 1804

Evidence

Forthcomingness

Ch Investigatorial

In English procedure the line between preliminary /preparatory/ examination and definition is a dear one - why? because the Judges by or before whom they are respectively conducted are never the same. The Justice of the Peace who collects and receives evidence of all sorts in the first instance can not "try" the cause. The Judge who with the Jury tries the cause can not, with or without the Jury, or any Jury perform any of these preparatory examinations by which the thread of evidence is investigated. The Jury does not come into existence until the last stage.

The sort of magistrate called a Justice of Peace is the only sort of magistrate by whom the process of investigation is capable of being conducted: where his authority ends, there ends the full compliment of power necessary for the obtainment of existing /obtainable stock/ of evidence.

In non-penal procedure as conducted /carried on/ in the Courts of Common Law, there exists no such resource for the obtainment of evidence. For the exhibition of evidence on the main point /question/ there is but one time, viz: that of the trial: at that period no evidence is received, but what is fit to operate /be regarded/ in the character of ultimate: no hearsay, casually written, unauthentic transcriptural evidence or any other species of makeshift evidence, except in the few cases in which such imperfect evidence /evidence of this imperfect character//nature/ is received in the character of ultimate. At that period /stage/ of the cause such simply indicative evidence were it even receivable /received/, would not be of any use: for subsequently to the trial no other evidence can be received. Accordingly at the trial not so much as a question can be asked, tending to the discovery of other evidence.