date

6 April 1804 Evidence Forthcomingness
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.
Similar Items
  • Title: [28 March 1805 Evidence Securities]
    Description: 28 March 1805

    Evidence

    Securities

    Ch. Procedure Natural

    ''. Judi. Powers necessary

    But though the mode of enquiry that naturally takes place in domestic /the domestic/ judicature is a model which to the extent of it can not without injustice be departed from in political judicature, powers will readily present themselves without which the domestic judicial system can never with any sufficient appearance of efficiency /of adequate efficiency/ be applied to any such public purpose. These are

    1. Powers for securing the forthcomingness of persons at whatsoever distance whether in the character of parties or of witnesses.

    2. Powers for securing the forthcomingness of things, to the like extent whether in the character of sources of real evidence, or in the character of subjects or objects of property - elementary parts /components/ of the aggregate mass or stock of the matter of wealth, wheresoever situated, in other words for converting this matter of wealth into the matter of satisfaction - punishment in general pecuniary satisfaction, according to the nature of the case - (in as far as human frailty admitts).

    3. Adequate powers of punishment adequate to the purpose of securing the veracity and verity on the part of persons (parties included) in the character of witnesses: including the power of subjecting mendacity, by the intervention of an oath /the ceremony/, to whatever may be the pains attached to perjury.

    Such are the principal powers requisite for the making /rendering/ the domestic system of enquiry applicable with effect to the purposes of public judicature. But as to the mode of enquiry, it will not (it is evident) be the less entitled to the epithet of natural, whatever may be the powers superadded for the purpose of giving it effect when employed upon the enlarged scale of public judicature.
  • Title: [6 April 1804 Evidence Forthcomingness]
    Description: 6 April 1804

    Evidence

    Forthcomingness

    Ch.7. Appearance Ordin y

    §.5. Rule 2. d Quality

    Rule 2 d - respecting quality. In cases which afford /present/ a party afflicted by a special injury /specially injured/, the punishment should consist of or include the subtraction of a portion of the matter of wealth, for the purpose of its being converted into the matter of satisfaction and in that shape made over to the party so injured. +

    The cases /sorts of causes/ are, it is evident, comparatively few, in which this property may not be of use in practice. It is applicable in all non penal cases /suits/ /causes/ in all mixt cases / causes/, and even in such cases purely penal, in so far as the mischief to the public takes /wears/ a pecuniary shape.

    Two difficulties /A difficulty/ however attend the application of it. I mean over and above those which are inseparable from /in all sorts of causes attach upon / the operation of taking from one party a portion of the matter of wealth for the purpose of giving it to another.

    1. There will frequently /naturally/ be a difficulty will naturally present itself in regard to How is it to be known

    + Introd. p. cxiv. [properties]

    what the effect of the evidence would have been had it been

    delivered? Dilemma Either it is known or it is not known what the effect of the evidence would have been, had it been given. If known, there is not damage done: since the fact which should have been proved by it, is ascertained by other evidence, and the party who would otherwise have been injured is in the same plight as if the evidence had been delivered and therefore has sustained no injury. If not known, then again no damage has been done or at least /or, what comes to the same thing/ it is not known what damage, and therefore the ground for satisfaction can not be made out.
  • Title: [10 May 1805 Evidence Introd]
    Description: 10 May 1805

    Evidence Introd

    Introd.

    Ch.5. Collateral Incidental

    ' 4. Vexation Shapes

    Vexation per Judicum.

    Vexation per judium. The natural course is for bringing about the appearance of the Source of evidence - the man, thing or script, in the presence of the judge, the natural course is that the source of evidence should move to the Judge: - not the Judge to the source of evidence. The most natural? shy? - because in general the most convenient. Cases however are not wanting in which it is the least convenient: nor others (witness land and houses) in which it is impossible. In those of the former class therefore, convenience; in those of the other, necessity, ordains that it shall be the Judge that shall move to the source of evidence. Whether then it be for convenience or through necessity, in cases of this description the question of adduction[?] (sciliert[?] adjudium) vanishes out of the list[?] of physical means of forthcomingness, and that of visitation per judium takes its place.

    In this case as compared with that of adduction, the vexation, whatever it might have been, ceases: or if it ceases not entirely is transferred from the party to the Judge, to whom it is made up /compensated/ for by the advantages attached to the /his/ office.

    Vexation is not only in itself an evil, but it operates as an official cause of ulterior evil: of a /the/ sort of evil opposite to the other ends of procedure /the system/. By disabling or deterring men from coming forward in the character of prosecutors or plaintiffs, it exempts delinquents from punishment, deprives the injured of the benefit of satisfaction, deprives possessors of other inchoate and as yet ineffective rights of the faculty of rendering them consummate and effective and thus it become pregnant[?] with those evils that stand opposed to the direct ends of justice: by disabling or deterring men /a man/ from standing their ground in the character of defendants, it subjects them to obligations of all sorts, howsoever undue: to the burthen of suffering punishment, where undue, of rendering satisfaction where undue, and to the burthen of obligations of all sorts corresponding to rights unduly claimed by a plaintiff, and for his benefit, and at the charge of the defendant allowed and converted into consummate. And thus it becomes pregnant with those acts which will presently[?] be seen to stand opposed to the ultimate collateral ends of justice. See further in Ch. Ulterior Ends.