date

9 April 1804 Evidence Forthcomingness
9 April 1804

Evidence

Forthcomingness

Ch. 6. Appearance - Generalia

§. 4. Subsequent Appearance

§. 4. Demand for extraordinary securities, how influenced by the admission or exclusion of subsequent appearance.

In case of a disposition /tendency/ on the part of the witness to evade the service thus due from him to justice, the plans formed by him for the purpose as well as the probability of his actually forming any such plans - of his yielding on this occasion to the force /action/ of the seducing /repelling[?]/ motives, will depend /be governed/ in a very considerable degree noon /be governed by/ the course taken by the law - in relation to /upon the/ the consequences annexed to his non-appearance. If, according to the dictates of common sense and an ordinary regard for justice, the consequence annexed to such non-attendance on a first summons, is an obligation to attend on a second /subsequent/ summons//occasion/, coupled or not coupled with the obligation of making satisfaction for the damage occasioned by the first default - and so lotrics[?] quotiis[?] - in such case whatever be the object proposed by the default in respect of the offence of the cause - whatever be the seducing motives by the force of which the delinquent witness was invited to delinquency - the probability /chance//prospect/ of encompassing the prospect of success would in general be very unpromising. The delinquency remaining subject to the obligation the mischief resulting to himself /drawn down upon his own head/ by his own delinquency would be certain and conclusive the profit looked to from such [...?], with the correspondent mischief to the other parties, would in general be but temporary - not to say momentary - and inconclusive: the mischief /damage/ to himself - the mischief drawn down upon his own head by his own delinquency, would be certain and conclusive:
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  • Title: [9 April 1804 Evidence Forthcomingness]
    Description: 9 April 1804

    Evidence

    Forthcomingness

    Ch 6 Appearance

    §.4 Subsequent Appearance

    In this case, setting aside the desire of liberating himself from some personal vexation annexed by accident to the obligation of paying attendence at the particular time and place in question, the cases in which morally /psychologically/ speaking it would be possible for him to entertain any such project /unjust design/ would seem /be/ comparatively speaking within a narrow compass. They might all be composed under the following heads

    1. On his own part eventual design /project/ of immigration on his part

    2. a like design /project/ of latency /latitantcy/ on his part.

    3. An expectation of a deperition of any other evidence, viz: in the interval between the time of his non-attendance upon the first summons, and the time indicated by the supervening /next/ summons: viz: of such evidence to wit the deposition of which would exercise upon the event of the cause, the same /an/ influence /as//similar to what/ was meant to be exercised in it by his own non-attendance and the consequent disposition of his own evidence: - of the evidence which, in the event of his appearance /attendance/ he would have found himself compelled to give, and which by his ultimate and permanent disappearance, whether in the way of immigration, or in the way of [...?] and successful latitantcy, would be destroyed.

    As to the general causes of the deperition of personal evidence (a), they have already been noted and commemorated: - immigration, and latency as above (in case of voluntary and purposed latentcy distinguished as above by the appellation of latitantcy.) These together with death and the comparatively rare case of relative insanity /imbecility/. On the part of other proposed witnesses the two last as well as the two first of these results may have alike been the objects of the expectation of the given witness in question. In regard to the two last, that death on his own part - that his own death should have been the object of his own expectation, is a state of things always probably because continually exemplified: that in the occasion such as that in question that it should have been built upon, and trusted to in the character of an instrument of premeditated injustice is always possible, though by no means conformable to the ordinary complexion of human nature.

    a Understand natural causes for if to the number of those which may be termed factiticous, being incited by the imbecility or depravity of law itself, there is evidently no certain limit.
  • 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.
  • Title: [6 April 1804 Evidence Forthcomingness]
    Description: 6 April 1804

    Evidence

    Forthcomingness

    Ch.6. Appearance

    §.5. Rule 2. Quality

    I assume even before this argument is analysed and applied to particular cases, fallacy, in some shape or other, it must be evident, lurks under it. The same fact may be proved for one purpose, and not proved for another. Instances in which damage though really produced, is not capable of being proved, are liable to happen in all cases, and more apt in this perhaps than in most. But from the impracticability of rendering justice in this or that particular case, no reason whatever arises against the rendering it in cases in which the rendering it /fulfilment of this duty/ is practicable. Let the following case serve instead of a multitude. A granary full of corn the property of Lazius[?] has been purposely burnt by Incendiarius by Injustice.[?] Argus was a percipient witness and the only percipient witness to the transaction /act/. Argus speaks of it in the presence /company/ of other persons, through one of whom it comes to the ear of Innocens. Innocens summons Argus to appear and given evidence. Argus, being gained by Incendiarius makes default. In such case, supposing a number of irreproachable witnesses to concurr in giving an account of the extrajudicial evidence so given /uttered/ by Argus even this hearsay evidence, when coupled with the non-appearance of Argus, especially if corroborated by other circumstantial evidence, might perhaps appear, to the satisfaction of the Judge a sufficient ground for giving a decision against Incendiarius - if not for the purpose of ulterior punishment under the name of punishment, at any rate for the purpose of the [...?] of being subjected to the burthen pecuniary satisfaction. In that case, and supposing the pecuniary faculties of Incendiarius, sufficient /competent/ to the affording the matter of satisfaction in adequate quantity, the demand of Lazius would be satisfied /supplied/ from that source, and the punishment inflicted on Argus would be left free to assume any other shape. But on either of the two opposite suppositions - suppose Incendiarius either not corrected or not solvent, the demand not only for punishment, but for punishment in this shape, will attach upon Argus: and the evidence, though not sufficient to correct Incendiarius of the original sense, may be sufficient to correct Argus of the derivative offence on his part that has thus grown out of it on his part, and to convict him to this purpose.