date

March 1804 Evidence Forthcomingness
March 1804

Evidence

Forthcomingness

Ch.

§.1. General views

Ch. Means for the obtainment of evidence.

Upon a general and even hasty view /transient glance/ several propositions /observations/ all will present themselves: observations the bare announcement of which will serve to throw /suggest/ upon the subject few leading lights, the truth of which will, upon a closer scrutiny, be found to be confirmed /preliminary conceptions the truth of which for the most part receive confirmation /stand confirmed/ by a closer scrutiny/.

1. A system of arrangements compleat for all purposes and on all occasions can not be formed without a combination of these several modes of application: simple invitations, remuneratory applications and compulsory applications.

2. Discovery being attained, for the securing of deposition as well as personal appearance on the part of the witness compulsory applications will in general be necessary, as well as /and will in general be/ sufficient.

3. The principal /chief/ and almost only use of remuneratory applications as well as simple invitations, is for the purpose /obtainment/ of discovery.

These general observations /views/ being premised /borne in mind/ we shall be the better prepared for a more particular estimate of the nature /efficacy/ and relative congruity of the three several modes of application separately considered.
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  • 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: [27 March 1804 Evidence. Forthcomingness]
    Description: 27 March 1804

    Evidence.

    Forthcomingness

    Ch. Means

    §.2. Invitations

    §.1. Simple invitations.

    Simple /In the character of minor/ invitations are upon the face of them so inadequate that at first glance, they might seem scarce worth mentioning in this view. But upon a closer survey, this preconception will be found to require limitation in several points of view.

    In the case of a non-party /nonlitigant/ witness Neither for extraction of testimony nor for securing the appearance of the /a/ witness, can it perhaps in any individual instance be safely trusted to altogether: but for discovery it will in certain cases be seen to be neither inapplicable nor inefficient.

    In appearance at least The characteristic property of it consists in its not bringing to bear upon the will of the individual, whose [...?] nor[?] proposed to be engaged in the cause of justice, any factitious motives /any motives created for this purpose/: differing in this respect one the one hand from remuneratory applications, on the other hand from compulsive ones.

    If however it had not in any degree any such effect as that of applying on encreasing the action of human motives upon the human will of - upon the will either of the individual to whom /addressed by/ the invitation is addressed, or some other, this mode of application, would be nugatory and useless. Accordingly, with a single exception and that a slight one, it is capable of enlisting in the service of justice all those guardian /tutelary/ motives which have already been mentioned under the name of mendacity restraining motives: the motives belonging to the religious sanction, the motives belonging to the religious sanction, and frequently benevolence, of a more or less enlarged complexion according to the nature of the case. A truth to which the most uncultivated minds are not wholly insensible, is - that justice depends upon evidence, as well as general security upon justice. Setting aside the effect of this or that particular prejudice, in a civilized community every man conceives his duty to God or his reputation in society /among his acquaintances/ more or less concerned in giving such information in so far as it has fallen within his power as, by an address from competent authority he has made to understand is looked upon as conducive to so desirable an end.
  • Title: [28. March 1804 Evidence Forthcomingness]
    Description: 28. March 1804

    Evidence

    Forthcomingness

    Ch. Means

    §.3 Remuneratory

    §.3. Remuneratory applications.

    For the discovery of sources of evidence, an application of the matter of reward will in many /various/ cases be necessary. Why? because without such application evidence will not be at all obtainable. A mass of inviting motives will not exist capable of countervailing and surmounting the force of the restraining motives.

    Meantime The use of it is subject to a variety of disadvantages; viz: when compared with simple invitations in one hand, and compulsory applications on the other.

    1. Taken by itself its efficacy is precarious. The individuals capable of earning the ward being unknown, it can not be adjusted to their respective /the standard/ circumstances. And were they all known, reward has no such mastery over the will as punishment has.

    This inefficiency in the matter of reward is supplied more or less by combination /admixture//its being combined/ with a competent allotment of the matter of punishment

    2. It is essentially attended with expense: the efficacy of it or rather chance for efficacy is in general only in proportion to the expense. Compulsory application /Compulsion/ - punishment is indeed also connected though in another shape with expense. But besides the difference in quality between the expense of reward and the expense of punishment, there is this difference in point of certainty. The event in which the expense of reward is incurred - is that of success viz: the success of the other made by of /by/ it: success which is set over the most probable result and the most desirable. The event in which the expense of punishment is incurred, is only that of non-success: nor even then does it come to be sustained of course: nor is it ever inflicted but where in the judgment of those on whom it depends, it is become necessary to inflict it. In that state of things which is at once most natural and most desirable, no expense at all is incurred on this score.