date

9 April 1804 Evidence Forthcomingness
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.
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  • Title: [9 Apr 1804 Evidence Forthcomingness]
    Description: 9 Apr 1804

    Evidence

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    Ch. 6. Appearance

    §.4. Subsequent Appearance

    Thus much as to the case of such causes of deperition of evidence as may be termed natural, being the result either of delinquency /or accident of injurious intention/. If, on the part of the law - i.e. either of the legislator, or his frequently unavoidable irremovable[?], but always inadequate substitute of the Judge - any such stupidity /blindness/ or indifference to justice /utility//the interests/ and utility, were supposable - causes of the like deperition, to which that effect had been given by the law might in contradistinction to the above natural causes, be termed factitious.

    To a factitious cause, as thus defined, might the effect be with obvious propriety be referred, if on the part of the persons in question any such absurdity were supposable, as that of appointing in the presence or any other instance an unextendible length of time for the performance of a service, the performance of which might be delayed by any one of a multitude of accidents /causes/ the unsurmountable efficiency of which were an every day's experience: the suffering a day to be appointed for the appearance and examination of a witness, and in case of his not appearing on that first day, not suffering him to appear or as much as be summoned to appear on any subsequent day. A degree of absurdity thus flagrant, is conceivable indeed, it may be said, but is not supposable. On this supposition, a reparable injustice being produced /done/ by design or accident, comes legislator or the judge, and converts it, of his own [...?], into an irreparable one. He enters /joins hands/ into a conspiracy /confederacy/ with the malefactor, and by measures pre-arranged for the purpose he incites him to come forward with his criminal progress, by ensuring to them that success which otherwise would be unattainable. By his own agency and with his eyes open he, on this occasion brings on that catastrophe, which is the death stroke to all his other labours, and on other occasions he exerts or at least pretends to exert himself with so much anxiety to prevent.

    A scratch is made in the bosom of justice by the hand of guilt or fortune: comes the legislator, poisons the wound, and from a cureable converts it into a mortal one.
  • Title: [9 April 1804 Evidence Forthcomingness]
    Description: 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:
  • Title: [4 April 1804 Evidence Forthcomingness]
    Description: 4 April 1804

    Evidence

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    §. 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.