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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.
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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.
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Title: [25 March 1804 Evidence Forthcomingness]Description: 25 March 1804 Evidence Forthcomingness Ch. Invitations Simple invitations /Applications simply invitative/ are evidently not applicable with propriety to the case where the source of evidence is patent /already known/: to an individual /a human/ who in his individual capacity has been fixed upon as likely to possess the information requisite to qualify him for yielding evidence: nothing could be more unconducive /unsuitable/ to the end than to trust to the casual operation of possible /possibly acting/ motives for the discharge of an almost indispensable duty from the discharge of which it may happen to a man to be withheld by forces to the magnitude of which there are no definite limits. To trust the interests of justice to the success of an application this feeble and precarious, would be to place the fate of the party in a state of absolute dependence on the will and pleasure of the witness: a state of things the mischievousness of which has already been brought to view. + The rule of prudence is too obvious to have any where been altogether overlooked in established practice. No system of procedure is so lame as not to furnish a system of punishment, more or less well-arranged, for in case of non-compliance with an application of this kind. + In B. Examination ch. Discreditory
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Title: [27 March 1804 Evidence Forthcomingness]Description: 27 March 1804 Evidence Forthcomingness Ch 1 Generalia §.3. Means 1 Powers Thus much for the present respecting the powers capable of being created by law and applied to the purpose of securing the forthcomingness of evidence. A further view, more and more particular, will be given of them, as we advance. But, be that what they may, the efficacy of them will in any great degree be dependant, on certain leading feature in the organisation of the Courts of justice to which the application of these powers /task of applying it/ is committed. The exhibition of these leading features will be the business of the next chapter. In speaking of psychological means, and saying that all three varieties of those means are capable of being applied as well to the extraction of testimony from a witness, as to the ensuring /securing/his appearance, I speak only of what is possible, not of what is eligible. Applied to this purpose the inability of simple invitations - as well as the impropriety of remuneratory applications, strike the mind at first glance.
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