16 May 1804

Evidence

Forthcomingness

Ch. Investigatorial

Certain it is, that it is from the practice of English not of French Law - of the system in which the light of indicative evidence is /seems to be/ obtainable in all cases - not of the system in which it is not obtainable but in so narrow a description of cases - that in my own instance the idea of the distinction was deduced elicited. In different tribunals not competent to ultimate decision I observed masses of evidence collected: parts of it I saw preserved or at least noted and thereupon in tribunals competent to ultimate decision employed in the character of ultimate evidence (a) The other part staid behind received no further employment. Of this residuum /caput morturum/ what was to be said? Had it not been received? had it been excluded /refused/ to be heard /refused a hearing/ on any of the thousand pretences on /by/ which evidence on the occasion of the ultimate examination called a trial stands excluded? Not it indeed: it had been heard with as little objection as the most /best/ unexceptional evidence. Would it have been heard then known as it must have been in a general way what was to be expected from it - would it have been heard without any prospect of its being of any kind of use? No certainly. In what way then must it have been expected to prove of use? In the way of leading to the discovery of other evidence immediately applicable in an immediate way to the purpose of evidence.

Note

(a) In the case of preparatory examinations taken by single Justices of the [...?] material witnessess bound over to give evidence at the trial. In the case of investigation performed by a Committees of Parliament, and Commissions of Inquiry, evidence collected, and prosecutions in the way of impeachment or indictment grounded on the information thus obtained.