date

28 Aug 1804 Evidence Note
28 Aug 1804

Evidence

Note

Circumstantial

Ch.2. Explanations

Note

(a) There is even a class of offences, and that a most extensive /comprehensive/ one, in the case of which, - no act of a physical nature - no motion - enters into the composition of the offence. These are /I speak of/ negative offences: class so extensive /comprehensive/ as to spread over the whole field of penal law. No /no/ positive species of delinquency - no positive species pernicious agency, that has not its correspondent negative offence.

See [...?] where this is shown at large. In many instances, where /Offences are not wanting, in which though/ the mischievous result is in ordinary cases the effect of some physical act of a positive nature (for example witness homicide) yet the same effect is in some circumstances liable to ensue from a mere negative course of action. For example in the case of an infant on the part of the mother or the nurse, the omission to administer food - or the omission of any of the services necessary to the continuance of life. So in the case of a prisoner, like omissions on the part of the Jailor.
Similar Items
  • Title: [2 April 1804 Evidence Forthcomingness]
    Description: 2 April 1804

    Evidence

    Forthcomingness

    Ch.4. Misprision

    extent conceivable

    Ch. 4. Means continued - Obligation, of informing without previous summons.

    §.4. Compulsion by pre-established obligation: viz: obligation of furnishing evidence spontaneously, i.e. without summons to that effect.

    §.1. Conceivable extent of the obligation.

    One way of obtaining discovery of evidence, is by means of a pre-established law of general obligation, obliging persons in general, or persons of particular descriptions, to give information, to take the local Judge /Judge ad hoc/, or other official person appointed for the purpose, of matters of fact of the description in question - capable of serving as evidence in the species of cause in question, and this without waiting for any address general or special, specifying the particular purpose - i.e. the particular /individual/ cause or suit for which such information is required.

    A law or obligation of this sort /By a law to this effect/ a class of negative offences would be created, the ramifications of which would be capable of being extended over every division of the substantive law non-penal branch as well as penal included.

    It is in its application to the penal branch that the nature of such an obligation will be most readily and clearly apprehended.

    In a former work mention has been made of the class of offences termed negative offences: a class so /capable of/ compleatly pervading the whole system of penal law, that for every different species of positive offence, a correspondent species of negative offence might be incurred: the positive offence consisting as the production of the sort of mischief in question; the negative in the seeing it about to take place, without using any endeavours to prevent it. A negative offence of this class might be termed one species of Non-prevention.

    Parallel to and co-extensive with that division of negative offences, may be added the other division here in question. An offence belonging to this division consists in the not giving /forbearing to give/ information of or concerning all /any/ offence belonging to the list of positive offences. It may be termed an offence of Non-delation. But in like manner a basis for a correspondent modification of the offence of non-delation may be afforded by each [...?] of the negative offence of non-prevention.
  • Title: [5 July 1804 Procedure and Evidence]
    Description: 5 July 1804

    Procedure and Evidence

    B. Evils causes

    Ch.1 Generalia

    2. natural and factitious

    Division of the factitious causes of injustice into negative and positive or say affirmative: negative consisting in the omission of such obviously necessary arrangements for the furtherance of justice or the prevention of injustice (as seem pointed out by the plainest common sense) as seem incapable of escaping the mind when are suggested by the ------ of things /circumstances/ /incidents/ by which the demand for them is produced: positive, consisting in the opposing of some positive bar, for instance by the actual prohibition, to the /some/ /an/ /making of some/ arrangement which, were it not for such a prohibition, would be taken, by the spontaneous act of the party or individual in question, with or without any thing /act/ done by the legislator to promote it.

    Omission to employ the requisite means (compulsory and /or/ in--latory or both) for proving[?] the attendance of a witness liable to be unwilling, may be given for an example of a negative factitious cause of injustice. Refusal to permitt a person of that description to serve at the seat of judicature in the character of a witness may, in the supposition that the grounds of such refusal is not sufficient, be given for an example of a positive factitious cause of injustice.
  • Title: [16 April 1804 Evidence Forthcomingness]
    Description: 16 April 1804

    Evidence

    Forthcomingness

    Ch.4. Misprision

    §.2. Rules.

    Rule 5. Non-delation ought not be made punishable, without special advertisement in any cases in /other than such/ which from the obvious mischievousness of the principal offence, the fact of its being treated as such by the law, and accordingly made punishable cannot but have been universally notorious: - as in the case of premeditated homicide, mutilation, disfigurement, incendiarism destructive inundation, highway robbery, and house-robbery, and the like.

    Rule 6. As in non-information at large, so in non-delation, the propriety of treating the negative act in question upon the footing of an offence will depend upon the means and upon the effortcy of the means employed for conveying to the cognizance the proposed witness notice of his being subject to the obligation so imposed.

    Rule 7. No law, for the purpose of extending to this or that principal species of offence, or to this or that class of persons in the character of proposed witnesses, ought to be enacted, without clearly specifying the time and mode of making the required communication, together with a sufficient description of the Judge or other official person to whom it shall be made.

    Rule 8. The sorts of principal offences in relation to which the obligation of delation is imposed, ought to be clearly designated and distinguished by the insertion of their names or descriptions in an appropriate catalogue.