1 April 1804

Evidence

Forthcomingness

Ch 4 Investigatorial Engl Law

§ 8 English Law

§ 8. English Law.

Investigatorial power being thus necessary to justice /Power for following up a chain of evidence/, and the necessity of it thus obvious, it will /may/ be not uninteresting to observe the extent to which the use of it has been carried on by English law.

Turning now to English jurisprudence, we shall see at once /the same time/ an exemplification of the use /utility/ of investigatorial procedure, and the failure of justice from the want of it.

In comparison of procedure testibus cognitis, investigatorial procedure is in England comparatively of recent growth. It dates no earlier than from about the middle of the 16 the century. In the reign of Edward 6 the power was given for the first time to a Justice of the Peace to take the examination of a prisoner brought before him on a charge of felony: that is of any offence to which the punishment so denominated stood annext. What the object in view was on that occasion on the part of the legislature does not very clearly appear. The effect of it has at any rate to establish a cause of investigatorial procedure as above explained, previous to the course /[...?] of ultimate examination, carried on /performed/ before a Judge /a Jury/ and Jury, and called in the language of English jurisprudence called the Trial: a word which has not its equivalent in any other language.

In English jurisprudence /Law/ investigatorial procedure so far as the examination of living witnessess is concerned is confined altogether to penal law; nor is it altogether co-extensive with that branch of law. It extends to all felonies that is to say to all offences to which the punishment is denominated happens to be annext, and to all other offences ranked under the denomination of breaches of the peace. It extends accordingly /consequently/ to those offences prosecutable in the mode /course/ of procedure called Indictment: but not to all offences so prosecutable. To an offence prosecutable by Indictment it does not extend where that offence happens to be prosecuted by the course of procedure called Information. Neither /As little/ does it extend t any offence prosecuted by the course of procedure called a penal action: a curse of procedure which in most of its features coincides with the ordinary course of procedure ordinarily employed in the non-penal suits carried on in the Courts of Common Law.