date

26 March 1804 Evidence Forthcomingness
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?
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  • Title: [26 March 1804 Evidence Forthcomingness]
    Description: 26 March 1804

    Evidence

    Forthcomingness

    Ch. 1 Generalia

    §.1. Objects

    Forthcomingness of the witness is one thing: forthcomingness of his evidence, is another. He may choose to produce himself in Court, but when the time comes for his speaking /called upon to speak/ he may choose rather to hold his tongue /to stand mute/. His presence may be obtained without the concurrence of his will: his testimony can not be obtained but through the [...?] /intervention/ of his will. Physical means /applications//powers/ are sufficient to produce the former effect /of the two effects/: psychological means alone are adequate to the latter: if with reference to this latter object, physical means have any power, it is only through the medium of psychological ones.

    In the natural and ordinary state of things the two results /effects/ are found conjoined. By his own good liking a man does not come into court in the character of a witness, without intending to act in that character, and to depose accordingly. When without his liking, a man is induced to come into Court in that character, whatever inducement is sufficient to engage him to appear in that character, is commonly sufficient to engage him to act on it. Even when by dint of more physical force subduing and overpowering his own physical force of resistance he is brought into Court, the proof /experimental proof thus/ given him of his own weakness is naturally and generally sufficient to wean him from the propensity of maintaining so unprofitable a struggle /contest/ as that of a battle between a captive individual and the whole force of the community [...?] ever against him in the best of all causes - the cause of justice.

    Such is the natural and ordinary state of things. But a system of procedure which fails /should fail/ to have made provision against extraordinary cases - even the most extraordinary cases, will be sure to find its course /progress/ obstructed /energies crippled/ and its designs defeated in the most ordinary cases. The system which in this respect is not provided against extraordinary cases, is ill provided against ordinary ones. Cases which when provided for /against/ are extraordinary, would /are/ if unprovided for become ordinary.
  • Title: [26 April 1804 Evidence Forthcomingness]
    Description: 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.
  • Title: [16 April 1804 Evidence Forthcomingness]
    Description: 16 April 1804

    Evidence

    Forthcomingness

    Ch. 1. Generalia

    §.3. Means 1. Powers

    In regard to power, the degree and mode in which the party having need of the evidence will be provided with this requisite will depend upon means which the law either employs of itself or what comes to the /much/ same thing, authorises /allows/ him to employ for the obtainment /attainment/ of that end. These means will be either be of a physical or a psychological nature: physical of a nature to act upon body as body; psychological, acting on body through the medium of mind; which is as much as to say motives.

    In regard to power the possession of this endowment will be necessary not only for the obtainment of the evidence, where the sources capable of yielding it are known, but also, where they are not as yet the objects of such knowledge, for the obtainment of such knowledge. Power, legal power judiciary power considered as directed to that object may be termed investigational power - power of /power for/ investigation. Of this application of judicial power mention will be made in a /separate/ chapter by itself.