date

7 April 1804 Evidence Forthcomingness
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.
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  • Title: [3 April 1804 Evidence Forthcomingness]
    Description: 3 April 1804

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    Ch.6. Appearance

    §.5. Safe-conduct

    §.5. Securities continued. 4. Safe-conduct to latitants and fugitives

    4. In case of residence abroad - expatriation precediately performed - safe-conduct granted for the purpose, by the judge.

    By safe-conduct on this occasion, I mean /understand/ what is meant /understood/ by it in the same occasion in German Law + - the assurance of exemption from corporal caption and imprisonment for an during the time requisite to be consumed within the home jurisdiction in question on /during/ his journey to the seat of judicature, his stay thither previous to his examination, and subsequently thereto, his return from thence.

    An assurance of this sort is a security given - not by the witness, but to the witness. It supposes on his part, exposure to such arrest: which may be either through punishable delinquency, or on a non-penal account, on the score of satisfaction; for example on account of debt.

    If so far as punishable delinquency is concerned, it may be concerned, it may be considered on the footing of pardon: a partial and temporary remission of punishment for this particular purpose: in that respect a sort of partial failure of justice - a sort of direct injustice (for such it is with reference to the cause from whence his /such/ expatriation took its rise) committed, for the purpose of avoiding the supposed greater injustices which it is apprehended would take place for want of the benefit of his evidence.

    To weigh inconvenience against inconvenience, on this occasion as on every other, will be the province of the Judge: and according to this preponderance, to grant the safe-conduct or refuse it.
  • 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: []
    Description: <...?> 1804

    Evidence

    Forthcomingness

    Ch. 6 [...?]

    §.2. Securities in general

    §.2. Securities for appearance. I. Ordinary and Extraordinary.

    The propriety of the above rules being admitted, nothing remains /what now remains/ but to consider, what are the measures presented by the nature of the case as being in this or that case necessary, and in all cases conducive, to the accomplishment of the ends.

    In that /the ordinary/ state of things which is most ordinary, the proposed witness, provided the inciting motives necessary to overcome the force of the ordinarily restraining motives be presented to his mind, will have no such act in contemplation, as that of defrauding the public of that service which is commanded at his hands, and is due from him on the score of justice. The securities requisite and sufficient in this state of things for engaging his attendance, may be termed ordinary securities.

    Unfortunately this, though the most ordinary is by no means the only state of things of which experience affords us examples. Cases occurr and but too frequently, in which rather than submitt this obligation and the portion of vexation that happens to be attached to it, a proposed witness will have recourse /betake himself/ to [...?] or expatriation. Securities destined to the purpose of providing for this extraordinary state of /class of/ things may be termed /distinguished by the common appellation of/ extraordinary securities.