[094-274v]

17 May 1806

*A

Evidence

Note?

Exclusion II. Proper

Ch. Engl. Law & Vexation

'. to Judge

Note 2 (a)

(a) /Concise idea /Slight sketch/ of the/ Principal diversities respecting the mode of collecting testimony; the shapes in which it is exhibited in practice.

1. Natural ordinate mode: - the mode in use in Courts of Conscience, except in as far as cramped[?], by the terror of the technical Courts /- science[?] - and before a Justice of the Peace/ and before Arbitrators, Parties present: each testifying for himself, each, in answer to counter-interrogations put by the adversary, testifying against himself: extraneous witnesses examined on both sides by interrogations and counter-interrogations: the Judge also interposing with interrogations as he thinks proper: the Judge who decides upon the evidence the same person by and before whom it has thus been collected: - every thing delivered vivâ voce; but upon occasion capable of being consigned to writing. In case of necessity, assistants to the parties not excluded.

2. English Jury mode: - The same as above, except that unless in the instance of the defendant where the nature of the cause introduces him in the character of a prisoner, the presence of the parties is not required; their interposition in the character of parties for the purpose of interrogation and observation discontinued in the character of testifying witnesses, for and against themselves, not endured.

3. English epistolary mode: - examination, or [...?][...?][...?] - to the testimony of the Defendant only, not to that of the Plff or of any extraneous witness, in the English Courts of Equity: To Interrogatories delivered in writing, in an instrument called a Bill, on the behalf of one party, responses delivered in writing, /writing, in an instrument called an Answer,/ by the other. In point of reason and utility, this may be stated as necessary, be the subject of the suit what it may in some cases in the character of an eventual supplement, in some cases in that of a temporary, though never in that of an absolutely definitive, succedaneum, to the natural mode. In its own nature, who unless it be a lawyer, can need to be /the observation/, reminded, that no less applicable to plaintiffs than to Defendants; to extraneous witnesses than to parties?