date

26 April 1804 Evidence Forthcomingness
26 April 1804

Evidence

Forthcomingness

Ch.1. Generalia

§.3. Means - 1. Powers.

With regard to the applicability of the two classes of means in question thus brought to view to the accomplishment of the three objects respectively a general /a leading/ observation or two may in this plan be not without its use.

1. In regard to the investigation and discovery of a source of evidence - a person a thing or a writing in that character, so far s the discovery is either of persons or through persons, and so far as it is necessary that the person by whom the discovery is to be made should be present viz: at the seat of judicature in order to make it, the means applicable to this purpose will coincide with those applicable respectively to the purpose of causing appearance on the part of a proposed witness, and to the purpose of casing his evidence to be extracted. There remains the case of correspondence with a proposed witness by written discource at a distance, of which in another place. As to the obtainment of the latter, to this object physical means will be inapplicable, psychological inapplicable, as will be seen more fully presently.

2. In regard to causing the appearance of some source of evidence person, thing, or script - physical means and psychological means will be equally applicable - alike capable of being made conducive to this purpose - though not equally eligible. The man may be brought into court, with the script or other thing - or either may be brought without the other.

3. To the extraction of the evidence, where a person is the source, physical means, applied /considered/ as such, and in the way of direct application, are obviously inapplicable /ineffective/. Physical means, in themselves, have no direct action on the mind. Though torture were employed - material, physical instruments applied to the material part of mans frame, if the application be productive of any effect, it will be in the character not of a physical application, but of a psychological one. If any evidence be extracted by it, it can only be through the medium of his mind: it will be extracted, not by the force of what is past, but by the fear of what is to come. You may squeeze blood out of a mans body, but, if mind yields not, you can not squeeze out evidence.
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  • Title: [26 March 1804 Evidence Forthcomingness]
    Description: 26 March 1804

    Evidence

    Forthcomingness

    Ch 1 Generalia

    §.3 Means Powers

    2. Causing presence

    For cause /ensuring/ the presence of the source of evidence in the case of a person there are two sorts of means - psychological and physical. In the case of a thing, considered by itself psychological means have no application: the business rests on physical ones. But when the presence of the person in whose custody the thing is, is produced by a psychological application /means/, the same may be said of the thing which he brings with him. The means by which he brings the thing /the thing is brought/ can not but be other than physical ones: but the means by which the bringer of the thing is brought, and thence /in that case/ by which the thing itself is brought, are psychological ones.

    3. Extraction

    To speak is more particularly a human function: but beings referred in true language to the class of things are not without exception uniformly unsusceptible of it. The evidence /discourse/ of a parrot, kept for a certain time on board a ship, would be not only good evidence but very conclusive evidence, though of the hearsay kind, of language held on board the ship.

    (a) Note

    The case of inferior animals endowed with a certain degree of sagacity /intelligence/ might be capable of affording an exception. A properly instructed pigeon of the carrier cast, would be capable of bringing himself /itself/ together with a letter to the /a/ Judge. Why not to a Judge for the purposes of justice, as to Mahomet for the purpose of imposture?

    Competent or not, (according to the story) to give evidence, a dog - almost any dog would be capable of bring himself in readiness to be examined /give evidence/.

    A pigeon, why should it not be as capable of perching upon the shoulder of the Judge as a hawk, the privileged bird of knighthood upon the fist of knight?
  • Title: [25 March 1804 Evidence Forthcomingness]
    Description: 25 March 1804

    Evidence

    Forthcomingness

    Ch 1 Generalia

    §.3. Means 1 Powers

    person in the character of a witness.

    1. division 1. for psychological means 2. physical means

    To psychological means are no other than motives: the part of the mind in question in the will: motives are the only agents /levers/ to the action of which the will of man is exposed. by which the will of man can be moved.

    Means of the psychological order will require to be considered under the three following primary delineations, viz:

    1. Simple invitations.

    2. Remuneratory applications.

    3. Compulsory applications.

    1. Simple invitations, in the making /authorizing/ of which the government legislator trusts exclusively to such motives as the nature of man and things /the case/ applies to the will of the person addressed - not adding to that natural force any factitious /artificial/ force of his own creation. Instance the invitations afforded by simple advertisements inserted in the public press[?] or otherwise dispersed by individuals, or even by government.

    2. Remuneratory applications - Offer of the matter of reward, most commonly in a pecuniary shape, either by government at the expense of the public, or by individuals, at their own expense, with the allowance of government

    3. Compulsory applications. Denuntiation of punishment, in case of non-compliance. Punishment /legal punishment administrable /applicable/ to individuals without distinction/ being exclusively the art of government, and of government alone, applications of this kind can not come /of course originate/ in any other quarter /source/ than government: of government acting on this occasion, in the department of judicature. Monitoieres of which in their place - Monitoiere, or species of advertisement, in use in Catholic Countries may be considered as of a [...?] or middle nature, belonging in certain points of view to the head of simple invitations, in others to that of compulsory applications.
  • Title: [29 April 1804 Evidence Forthcomingness]
    Description: 29 April 1804

    Evidence

    Forthcomingness

    Ch.3. Means Physical

    3. Inspection

    3. Inspection. By this word we are presented with the idea of an operation to /by/ which, considered in the light of a purely physical no degree of /scarce only/ vexation could be attached /be produced/. Corn can not at this time of day be blasted by being looked at: person or thing, no alteration of a purely physical can be produced in the object, by its being subjected to this process. By the penetrating glance of an improperly curious eye, - in a manufactory, in a library table - in a bedchamber - secrets indeed may be disclosed, secrets over and above the facts the disclosure of which a man is entitled to for the purpose of legal evidence, and the degree of vexation producible by the disclosure has no assignable limits.

    The case to which this operation is more particularly though not exclusively applicable, is that of written evidence.

    In this case the vexation producible by inspection wears a very different complexion, according to the nature of the source of the evidence /evidence/ - according as the evidence belongs to the head of contractual or other pre-appointed evidence, or that of casual evidence. In the first instance the script generally speaking can not but have been intended, or at least ought to have been intended for public inspection: for the inspection, if not of every man indiscriminately at least of every man interested in point of right /deriving a right thereto from special interest/, and at any rate of the Judge. In this other instance - as in the case of a letter, a memorandum book - a private correspondence - the matter spoken of in the script may be such as were intended to be carefully concealed from every person than the individual addressed - such as no one else has any legal interest in being acquainted with, and such as source any person could be made acquainted with without serious inconvenience and acute mental suffering to the parties to such correspondence.