May 1804

Evidence

Forthcomingness

Investigatorial

In the Courts called Equity Courts, the same lameness /[...?]//helplessness/, the same want of the powers necessary to the administration /rendering of/ justice. No sooner is the first batch of evidence drawn out of the oven, than it is carefully locked up: and the preventing the evidence /produce/ of this first batch from leading to the discover of more /fresh/ evidence, is among the reasons if not the only reason that has been imagined, in justification of this strange secrecy /the secrecy thus introduced into the sanctuary of justice/. And since in the Equity Courts, any more than /as/ in the Common Law Courts no evidence can be received at all that is not fit to be received /operate/ in the character of ultimate, the powers of the one sort of Courts as well as of the other are alike /equally/ incapable of being employed in /for/ the investigation of a chain of evidence.

Even in penal /criminal/ procedure, where the mode is any other form than that of indictment, the resource /powers/ of investigatorial procedure fails /are refused/. I mean a procedure by attachment, and procedure by criminal information. Attachment is a mode confined in its application to a narrow description of cases: contempt or abuse of the power of the Court: and is consequently pursuable in every one of the three great Courts. Information is a mode in which a certain division of offences are prosecutable of those which are prosecutable also by indictment, it being confined to offence stiled misdemeanours, offences below the rank of felony. In these cases, if a man has occasion for one lot of evidence to serve for the discovery of another, he must betake himself to a Justice of the Peace, he must proceed by indictment: he must give up the idea /plan/ of proceeding by way of information, how desirable soever it may be on the score of any other of those considerations which have recommended it to practice.