date

2 April 1804 Evidence Forthcomingness
2 April 1804

Evidence

Forthcomingness

Ch Investigatorial

§.7. Course

Notificanda on the part of the Judge

1. In case of mendacity, penalty as for perjury

2. In case of falshood through temerity[?], penalty as for falshood through temerity.

3. In case of non-responsion within the time limited, if without any sinister /evil/ intention, obligation of personal attendance.

4. If in consequence of evil intention - i.e. in the view of defrauding or delaying justice, or occasioning vexation or expence, penalty accordingly.

5. In case of absence of the individual /proposed witness/ thus addressed, invitation for any friend of his, too write an answer, stating his absence and the expected time of his return. The inducement to the friend - inmate or not with the proposed witness - will be the savin the witness from the vexations and expences obligative[?] of personal attendance.

6. Invitation to any friend of the proposed witness as above, to furnish the information sought for, if in his power, signing his name, and declaring the nature of his connection /relation/ with the proposed witness whether by /in the way of/ blood relationship or affinity, s in the case of wife, husband, son, &c. or as master, servant, inmate, master of the house - fellow-lodger &c. near neighbour, or friend - and - acquaintance.

7. Answers, whether separate or by retransmission of the interrogative letter as above, to be put into the post office from whence the delivery was made.

7. For the reason 5 & 6, the letter to go open, unless on any individual occasion otherwise ordered at the instance of the party, by the Judge.

8. If the proposed witness be an illiterate person, and no person living in the same house capable of writing an answer, the letter might be delivered to the nearest official person competent to this task: such as the /an/ ecclesiastical minister, or any lay man holding any office in the village or other smallest territorial division, or any /even/ non-official person, on whose part a literary education may be presumed - such as a surgeon, apothecary or other medical man being nearest to the spot. Notice in this case to the proposed witness, at his abode or his representative as above mentioned.
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    Suppose a /the/ door to be left open for the reparation of the mischief of the default by the appearance /attendance/ of the witness on a subsequent occasion, it is only in the case of intended expatriation on the part of the witness /an intention of expatriation on his part/, that the default can on his part have been the result of culpable intention, if an intention to give birth to the injustice which will be the natural consequence of such default, if not repaired by such subsequent attendance. By the death of the proposed witness the mischief will /may/ indeed by rendered equally irreparable /placed equally without this reach/. But that the contemplation of this sort of event should have given birth to the default is an evidence which, though barely possible, will be so improbable as to be scarce / / ever realised. That a man should be able to foresee with the requisite degree of accuracy and assurance the exact time of his own death, is a state of things extremely rare /one great improbability/: and that having in his own mind the assurance of a visit from the hand of death within a short and determinate length of time, he should take advantage of the interval to committ / to be guilty/ in cool blood of a nicely calculated injustice, is another great improbability, which would be to be mounted upon the shoulders of the former. There remains indeed the case of foreseen insanity: but if that be substituted to the case of foreseen death, the improbability will be found to be converted into impossibility, for any practical and moral purpose.

    For on the supposition of his remaining /suppose him to remain/ at home within the reach of justice, and suppose the law to have made the requisite provision for procuring his attendance on a subsequent occasion, the supposed culpable intention would not be satisfied /neither be accomplished/ nor promoted by the default supposed to be committed in the first instance: and supposing penalty of any kind attributed to such default, this offence would be without profit, and this punishment of the offender himself would be the only fruit of it.
  • Title: [15 April 1804 Evidence Forthcomingness]
    Description: 15 April 1804

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    Instead of a system of procedure thus honestly and naturally directed /adapted/ to the attainment of its professed object, suppose a lame one, such as it will be but too easy to exemplify, and observe the consequence. A party (say the plaintiff) stands in need of the evidence which the documents in question, if produced at the judgment seat would afford: the document is known by him to be or at least to have been in the hands of the adverse party, the defendant; of what comes to the same thing in the hands of a third person, whose inclinations, towards the plaintiff's side, though he be not a party to the cause, are not less adverse. This being /Such being/ the /In this/ state if the facts, the provision made by the law for securing the production of the document, is in this wise /as follows/. A form of summons is provided, by which under a penalty, adequate or inadequate, the proposed witness is required to attend at the judgement seat on a day certain and not postponeable in the character of a witness: and to secure the forthcomingness of the document, to the above requisition is added /subjoined/ another, commanding him to bring it with him the document at the same place and time. Will he do any such thing? - not, if he has common sense. Witness, where is the deed /document/? it is, in the hand of [...?] ?Sir, it ought to be at hand/: before the summons was issued I had lent it him, he asking leave of me to look at it: upon receipt of the summons, I desired him to return it: he consented of course; the last thing I did before I, set out to pay my attendance here, was to ask him for it once more: his answer was that he had searched and searched, but had not as yet been fortunate enough to find it. Does Pirimus (the witness summoned) run any risk of suffering as for perjury? - not the smallest: in all this story, not a syllable but what was true.
  • Title: [4 April 1804 Evidence Forthcomingness]
    Description: 4 April 1804

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    §.2 Rule 1. Quantity

    Rule 1. Respecting quantity.

    "The value of the punishment must not be less in any case than what is sufficient to outweigh the profit of the offence."

    But in the present instance, there is it is evident no fixed limit to the profit of the offence, any more than to the mischief. The profit by the subtraction of evidence has no more to limit it than is capable of being as great, as the profit by false evidence. No effect whether in the way of mischief to the individual or the public, or in the way of advantage to the offending witness or the party with whom he is connected by the /any/ [...?] of interest as sympathy, but what may as well be produced by the one cause as by the other.

    In the characteristic ignominious exhibition proposed for the punishment of mendacious testimony be inapplicable to the case of criminal subtraction of testimony, still whatever chronicled punishment of any other kind imprisonment and primary punishment for example is appointed /provided/ in an unlimited quantity equally unlimited for the other.

    Supposed it limited to any precise quantity, what is the effect? - that with respect to all offences of which the profit is superior to the punishment, it operates pro tanto as a license. Let the prophit, for example and the punishment be both pecuniary, /suit[?] pecuniary/ the authenticity of a will by which property to the amount of £20,000 is bequeathed. It is in the powers of the proposed witness to prove it spurious. The penalty for non-appearance is limited to £10,000. What is the consequence? - that the criminal the forger by whom the will was forged /of the will/, gives the proposed witness the £10,000 who pays the penalty with it, and except whatever recompense if any, may be necessary to satisfy the proposed witness for so easy a [...?], puts the remaining £10,000 into his pocket in full security.

    + Introd. Ch. [...?] [Propertia] p.clxxv.