074_372.xml

Title: [4 April 1804 Evidence Forthcomingness]

Description: 4 April 1804

Evidence

Forthcomingness

Ch. 6 Appearance

§. 3 Cases for extraordinary

§. 3. Cases for extraordinary securities.

The /Of the/ cases in which it may happen to a witness to be prompted /incited/ to disobedience, acted upon by a motive too strong to be overcome by a security of the ordinary kind as above described the following are those that will be found most frequently [...?] /exemplified/ in practice.

1. Complicity. This takes place only in causes of a penal nature: and applies only to such witnessess the force whose testimony would act in favour of the plaintiff - would bear against the cause of the defendant. In this case, though, for want of knowledge or suspicion of the part taken by him, the proposed witness may not have been as yet placed in the predicament of a defendant, yet, if he be conscious in his own mind of having been a sharer in the delinquency, an apprehension if being proceeded against on that score, whatever motives would urge him to evasion in one case, will alike urge him to it in the other.

2. Subornation by a party. this cause of evasion is /This practice is alike/ applicable to non penal as to penal cases - subornation is a term not as yet commonly employed in any other case than that in which the offence to the commission of which a man is incited by his seducer consists in an act of an affirmative description - the exhibition of false testimony /evidence/. But an effect of the same nature, exerting the same influence /giving the same [...?]/ in the termination /event/ of the cause may be produced by an act of a negative description - the avoiding to give any evidence at all - and in that respect avoiding to give true evidence. In this way the effect of mendacity may be produced without any of the infamy attached to that species of improbity, and unless sufficient provision be made to the contrary, without any of the danger. The danger so far as corporal suffering is concerned will at any rate have been avoided in case of expatriation. As to the vexation attendant on such a proceeding, it may be very great, or it may amount absolutely to nothing, according to circumstances. In some circumstances, no quantity of the matter of corruption will enable an impulse adequate to the production of this effect: in other circumstances, especially where on other accounts a man peculates[?] whether to stay or go, the weight of a very small sum may be sufficient to turn the scale.

074_495.xml

Title: [4 Oct 1803 Evidence Judicature]

Description: 4 Oct 1803

Evidence

Judicature

Anonymous

5. Sympathy towards the individual[?] delinquent - the smuggler on whose head the tendency of the information is to bring down punishment. Under the name /appellation/ of smuggler must for this purpose be understood not merely the habitual and professional smuggler but every individual whatever who, lying on any score under the legal obligation of saying furnishing contributions to the use of the public, seeks to evade the fulfillment of it.

If on the one hand the restrictive motive the tendency of which is to restrain a man in such a case from giving open information are in this case more than ordinarily powerful /act in more than ordinary force/, on the other hand, in such stuff as the great majority of individual minds are composed of, the action of the inciting motives is more than ordinarily weak. These are 1. Public spirit. 2. Pecuniary interest in the part of the fair trader, who in respect of his traffic finds a competitor in the person of the smuggler. 3. Sympathy for the prejudices /Fair trader in respect of the damage/ flowing in upon him from that source.

1. Public spirit. In combination with party enmity this principle is found in great abundance: in combination with national enmity in still greater. In the latter state it is found among all classes from the highest down to the very lowest from the least to the most numerous. A combination with love of power and /or/ love of reputation, or both together it is in certain countries /nations/ the leading countries /nations/ in particular such as France and England, among certain classes, over the leading classes by no means rare. But like every other down, love of power and love of reputation require a certain prospect of success: and it is only to certain classes, and in those classes to certain individuals that ny prospect of this kind lies open, in such sort as to operate in the character of a principle of action with any considerate force. In the physical world, gold is said to be by no means an uncommon element though except in a few favoured spots broke down into particles of such [...?] /smallness/ /scarcity/ and dispersion as to be of no commercial value. In the moral world, public spirit in a state perfectly pure, free from any of the combinations above spoken of, is much more rare than gold in the physical wold, and moreover when it does exist exists in particles of such [...?] [...?], as seldom indeed not to be capable in the character of of outweighing an existing motive the lightest article on the abovementioned list of restraining motives.

074_391.xml

Title: [7 April 1804 Evidence Forthcomingness]

Description: 7 April 1804

Evidence

Forthcomingness

Ch.7. Appearance Ordin y

§.5. Rule 2. Quality

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.