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25 May 1804
Evidence
3. Forthcomingness
Ch. Extraction
2. Personal - Party's
In a penal cause, on the side /in the case/ of the defendant, the result is not in all cases, quite so clear of difficulty. Yes: if the fact of any species of delinquency has been already /designated and/ rendered portable[?], by other evidence, although it be but make shift evidence.
But, suppose nothing more than a vague suspicion of delinquency to attach /has attached/ upon the defendant from any extraneous source so that not so much as the species of delinquency can from that source be ascertained, much /still/ less the individualizing circumstances of the act: - in this case [...?] the defendant cannot be convicted, since it can not be said of what he shall be convicted.
In this case, supposing him really guilty of any offinse, the punishment he receives cannot be the punishment attached to the /belonging to that particular/ offense. It can only be the punishment, whatever it may be, which it may be thought fit to attach to the offence against justice - the refusal to render the commanded service - the wilful and perspicatious silence. In this case the situation of /a/ party - called upon for his evidence is not /[...?] [...?]/ distinguishable from that of an extraneous witness. of which presently.
The case of a plaintiff in this same class of causes will also present but little difficulty. If the cause be of a compound nature, containing a claim of satisfaction to be rendered /afforded/ at the expense of the defendant, to the plaintiff in the character of a party injured as to so much the condition /situation/ of the plaintiff in this compound cause /coincides with/ is not to be distinguished from the situation of a plaintiff in a non-penal cause, as above.
Similar Items
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Title: [24 May 1804 B, Evidence]Description: 24 May 1804 B, Evidence 2. Forthcomingness Ch. Extraction §.2. Personal[?]. Party's § 2. Extraction of personal evidence - Party's defendant's evidence. In the case of personal evidence - in that case centers all the difficulty: in this case it is but true that the legislator will find, be his sagacity what it may, a most perplexing choice of difficulties. By One fundamental division /distinction/, the distinction between the evidence of a party, and the evidence of an extraneous witness, a considerable light will be thrown upon the subject in the first instance, and hence part of the difficulty will be seen[?] to be cleared away. First let it be the evidence of the defendant, and the cause a non-penal one - Examine him - will he not speak? no matter: let him lose his cause. Reasons already given under another head. + By his refusal to answer he escapes furnishing direct evidence: but by the same negative act, actually he furnishes evidence: evidence which though but circumstantial, is as condusive as any direct evidence would be in the same case. In the case of the plaintiff, there is as little difficulty, or rather, if possible, still less: the falsity of the allegations on which his claim is founded is virtually acknowledged by himself. (a) Bill taken per[?] confess. + B. Circumstantial Ch. Non-re
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Title: [25 May 1804 Evidence 4.]Description: 25 May 1804 Evidence 4. Forthcomingness Ch. Extraction. 3 §. 2. Personal - Party's On the other hand, suppose it a cause purely penal, the plaintiff not assuming to have received any injury from the offence, not calling for any advantage to be administered to himself on the score of satisfaction - not calling for any thing but punishment to be inflicted on the defendant for the benefit of the public at large, in this case the preceeding practical conclusion would /not have[?]/ no longer be applicable. Rights purely but the [...?] rights a man may without prejudice to the public, be permitted to give u0p. Supposing the fate of the defendant in respect of conviction or acquittal to depend upon evidence /testimony/ which the plaintiff in such a cause can give /exhibit/ and refuse to give /exhibit/, such wilful silence would have the effect of a collusion with the defendant - an act of treachery with respect to the /public/ which the plaintiff had taken upon himself by the institution of the cause. In this case whatever compulsory process would be necessary in the case of /to be employed upon/ an extraneous witness would be equally necessary in the case of the pretended plaintiff, deserting the cause of the public, and going /joining/ over to the side of the defendant, with impunity in his hand: - the guilty defendant, for such he must be, or the offence against justice would be without profit and without motive /inducement/, or the treachery would be of no use.
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Title: [9 April 1804 Evidence Forthcomingness]Description: 9 April 1804 Evidence Forthcomingness Ch.6. Appearance §.4. Subsequent Appearance The consequences of such folly or such wickedness, were it supposable, would according to the nature of the cause, and according to the side of the cause prejudiced by such deperition /the wound thus given to justice/, assume that diversity and opposition of character /complexion/ that has so often been exemplified /brought to view/. In causes purely penal and mixt, the evidence suppressed being evidence requisite for the proof /demonotration//conviction/ of delinquency, evidence sought for/ wanted/ on the part of the plaintiff, the consequence would be impurity - the triumph of guilt in causes of /belonging to/ the same character /classes/, the evidence suppressed being evidence requisite for aquittal evidence sought for on the part of the defendant, the consequence would be conviction, and punishment of the innocent: in causes purely non-penal, the evidence suppressed being evidence wanted on the part of the plaintiff, the consequence would be non [...?] of right /wrongful/ refusal of the service due/; or if wanted on the part of the defendant, wrongful imposition of an undue obligation - an injustice which to the amount of the weight of the burthen would be tantamount /equivalent/ to so much unjust punishment: in causes of a mixed nature /kind/, in which, the offence being of a nature to wound the public through the sides[?] of a particular individual, the demand for satisfaction in cases of delinquency is combined with the demand for punishment, the consequence of the suppression if, as above, to the prejudice of the plaintiff's side would be, to add to the refusal of the punishment in /on/ the administration of which the interest of the public is concerned /at stake/, the refusal of the satisfaction by which alone the injury to the individual can be made to erase; yet to the prejudice of the defendants, undue punishment aggravated by the burthen some obligation of defraying the expence of satisfaction for imaginary wrong.
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