date

26 March 1804 Evidence 3.
26 March 1804

Evidence

3.

Forthcomingness

Ch. Extraction

The propriety of this inference and of this procedure, will not be found to stand on a different footing, whether the case of a penal suit, or the case of a suit not penal be considered: nor in the case of a penal suit, does it matter how severe the penalty.

Considered in the character of punishment, it is the property of this means of compulsion not to be susceptible of injustice. Punishment commonly so called - punishment applied to offences of the ordinary description, is on every occasion [...?] /[...?]/ to be inflicted unjustly, for want of /through default/ of trustworthiness on the part of the inculpative evidence. Real evidence may be fallacious: personal evidence /the evidence of witnesses/ may be incorrect or mendacious. In this case we have /see/ a witness whose evidence so far as it makes against the defendant can not but be true: he has nothing to mesh[?] him to mendacity on that side: he has every thing to restrain him from it.

Of punishment, viewed in any point of view, it is impossible to say that it is too great /severe/. Is it /Does it seem to be/ inflicted? - it is because it is not great /severe/ enough: it is not great /force//powerful/ enough to subdue the proponents to the offence[...?] of the offence - to subdue the force of the delinquency - [...?][...?]. Is it inflicted? - it is by his own choice that it is inflicted: since it depended altogether upon himself to exempt /save/ himself from it. And by /how/ what means exempt himself from it? By fulfilling that obligation - which the law imposes upon every man in his case. If he dies for it, it is by his own act that he dies: he dies, not by ordinary homicide, but by suicide.

And why is it that he will not speak. - Only because he is guilty, and is conscious of his being so. suppose him not guilty morally speaking, it is impossible that he should not speak; he has every thing to gain /hope/ by speaking, he has nothing to lose by it.

The punishment, therefore, if such it be called, is unsusceptible of injustice is incapable of being applied any further than it is due.
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  • Title: [25 May 1804 Evidence 4.]
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