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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.
Similar Items
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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.
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Title: [17 April 1804 Evidence Forthcomingness]Description: 17 April 1804 Evidence Forthcomingness Ch.4. Misprision §.4. Engl. Law §.4. English Law. Under the English Law, Non-delation, as above described perhaps even non-information in relation to a non-penal right, is punishable in certain cases. In speaking of the established /existing/ law of any country, it is not possible to avoid using the words, employed by professional men on each occasion, whether they have any meaning or whether they have none /analogy to the things signified./ In Blackstone we find a class of offences, called misprisions and contempts. Misprisions he says are contempts: Misprisions and Contempts, are therefore contempts and contempts: Misprisions are either negative or positive. The negative not one of which are indicative in the smallest degree of any such sentiment as that of contempt on the part of any body towards any body, consist solely of non-delation and non-information, as above described /defined/. In this sense there is misprision of treason /in Blackstones language concealment of treason/: there is also misprision of felony: concealment of felony: but whether it is that inferior offences are not concealable /capable of being concealed/ or that the concealment of them is not punishable, it does not appear from Blackstone at least that there is misprision of any thing else that is to say of any other sort of offence. A sort of negative misprision however there is Conceal t of Treason True is[?] Embezzlement on the part of the Tudors Mispris. [...?]
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Title: [16 April 1804 Evidence Forthcomingness]Description: 16 April 1804 Evidence Forthcomingness Ch. 4. Misprision §.2. Extent eligible 2. Eligible extent - Rules for marking it out. Such being the possible extent, capable of being given to the offence characterizable by the name of non-information, next comes the question in what cases the imposition of the correspondent obligation is an eligible measure? On this subject the answer to be given may be comprized under the following rules. Rule 1. For the purpose of no cause, not being of a penal nature, ought the obligation resulting from the extension /creation/ of the sort of offence called non-information to be imposed. In other words - of the sort of offence, characterizable by the name of non-information, no modification that is not comprizable under the head of non-delation, ought to be imposed. Reason. The punishment and prosecution as for any such offence should be so much vexation. By reason /In consequence/ of the natural and in some degree almost insuperable non notoriety of the law, especially the non-penal branch of it, this vexation would /might/ frequently be incurred. but in general in such non-penal cases, in which information /indication/ of evidentuary facts from casually percipient witness were necessary to the purposes of justice, the purpose of it might be sufficiently answered by its being furnished where called for by notice, advertisement, general or particular, communicated /given/ for that purpose. This being admitted, whatever portion of vexation were to be produced by a penal law to the effect in question would be needless.
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