074_420.xml

Title: [26 May 1804 D 1 Evidence]

Description: 26 May 1804

D 1

Evidence

9.

Ch. Extraction

§.4 Ordinary

Rules relative to the choice of means of extraction in ordinary cases: - 1. Quantity of suffering admissible.

Rule 1. The quantum of the suffering inflicted by the extraction process should not in its maximum be greater than that /what/ which would be annexed to the[?] offences /for/ by which the demand for the evidence /testimony/ in question is constituted: but up to that pitch it may in case of necessity be made to rise.

Reason. The inducement /motion/ by which the examiner is /may be/ stimulated is the satisfaction of saving the defendant from the punishment attached to the principal offence: is regarded /by the supposition/ as sufficient for the purpose of deterring persons in general from the commission of the offence. Provided /So as a/ punishment to this amount is /be but/ inflicted, the law is in that instance executed, and so far the object /design/ of the law is fulfilled. True it is, that the individual who in this case suffers is not indeed the individual by whom the principal offence was committed. But /Yet/ as such example as that of impunity and triumphant guilt is in this case the consequence of the escape. Justice has had its victim, though not the victim[?] that would bave been preferred. What a bystander understands from the examle is, that in the event of his finding a friend willing in this way to take the suffering upon himself he may enjoy impunity. But if any man likely to act - to engage in a plan /scheme/ of delinquency - on the strength of any such assurance[?] /expectation[?]/ if not, then no assurance or so much as expectation /hope/ of impunity is afforded by the example.

The practice of existing systems is altogether unusual[?] to this reasoning. In English law assisting /enabling/ a felon to escape, is felony. Refusing to yield the evidence by which a felon would be convicted is but a particular modeof enabling him to escape.

074_422.xml

Title: [26 May 1804 Evidence Forthcomingness]

Description: 26 May 1804

Evidence

Forthcomingness

Ch. Extraction.

§ 4. Ordinary.

Rule 3 d. In the case of suspicion of mendacity, a power ought ot be given to the Judge, to secure the eventual justiciability of the so suspected witness, in respect thereof by such means as promise to be adequate to the purpose: [...?]-justorial security, or even imprisonment not excepted.

Reasons. Without this precaution, although the coercive[?] means /applications/ employed for the extracion of the evidence be sufficient /should prove adequate to that object/, yet the evidence when extracted would be adequate /in many cases be apt to prove inadequate/ to the ultimate object - the discovery of the truth. In the case in question, the information yielded does not answer the purpose any further than as it is true /conformable to the truth/. But unless such precaution as that here recommended is taken /employed/ for securing the veracity of the evidence, all that is affected by the compulsory - the extraction process is the causing a man to speak - not the causing him to speak true. In this case, whatever may be the suffering, involved in /attached to/ the extractive process, how much soever soever it may be than that which is attached to the shape of punishment to perjury in the case in question, the examiner has it in his power to reduce the amount of it to that of the punishment for perjury: and in effect indeed much below that level: since by the supposition the suffering involved in the extractive process would be certain, being inflictable on the spot, whereas the punishment as for perjury would not be to be inflicted but at the end in consequence of a separate prosecution, subject to all the causes of uncertainty to which the event of such a prosecution is /stands/ exposed.

074_427.xml

Title: [26 May 1804 Evidence Ch. Extraction]

Description: 26 May 1804

Evidence

Ch. Extraction

§ Engl. Law

In the case of a delinquent /delinquency/ - of an individual presumed or suspected of delinquency, all this rigour is laid aside. The law knows /admitts/ of no other infliction in the character of a compulsive process, the law admitts of no other infliction, than simple imprisonment. What is the consequence? that in many cases a long protracted course of suffering is produced - a long remainder[?] of life filled not infrequently with bitterness, and the object in view not compassed / / after all - : the quantity of suffering augmented, and the whole of it thrown away.

Many a dishonest debtor in whom the juryman's torture would have produced immediate compliance, carries the fruits of this dishonesty with him to prison, and there consumes them, in defiance of his injured and impoverished creditors.

In the case of bankruptcy, i.e. commercial insolvency non-responsion and false-responsion is /are/ indeed as far as concerns the concealment of effects /assets/ applicable in satisfaction of debts, made punishable and punishable with death; but even here the distant and eludible punishment is preferred to the unelludible and instant compulsory infliction; and in cases of non-commercial insolvency, and in all other cases in which evidence is supposed to be extracted

simple imprisonment and that alone is applied, and is the only [074-427/2]

infliction applicable. This infliction is indeed susceptible of prodigious variation, under the same name variable upon a prodigiously extensive scale: depending upon the localities of the prison - the accommodations afforded by the prison, and the exterior appendages /territory/ annexed to it: but the variations depend upon accident, are the result /product/ not of justice /wisdom/ but of negligence and in practice are not applied, nor indeed capable of being applied with uniformity to this purpose.