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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.
Similar Items
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Title: [26 May 1804 Evidence 8.]Description: 26 May 1804 Evidence 8. Forthcomingness Ch. Extraction §.3. Non Party's From /To/ the nature of these several occasions, as above described results /corresponds/ the nature and magnitude of the mischief liable to be produced by /ensue from/ the want of an adequately efficient extraction process adequate to the end /its object/. possessed of a degree of sufficiency adequate to its end. In the first case the worse that can happen is impunity to one or more offenders in respect of a past crime /offence/. In the second case the mischief is at most only a part of what it is in the first, and in some instances it may amount to nothing If the /suffering of the/ attached to/ punishment competent to the offence measuring an individual offence, does not exceed in respect of suffering that which is attached to banishment and outlawry, the suppression of the required evidence does not prevent it from taking place. In the third case, this mischief for want of the evidence sought may rise /is capable of rising//swelling/ to a pitch altogether unlimited: in the way of individual suffering no price can be too great /much/ to pay for any promising prospect of preventing it /a first chance for the prevention of it/. From this view of the matter, the demand for instruments for the extraction of evidence, may be distinguished into ordinary, as in the two first cases, and extraordinary, as in the third.
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Title: [26 May 1804 Evidence 10]Description: 26 May 1804 Evidence 10 Forthcomingness Ch. Extraction. §.4 Ordinary Rule 2. The suffering should not be inflicted without such evidence of the delinquency (i.e. of its being in the power of the individual to yield the information required) as would be sufficient to warrant the infliction of a quantity of suffering to equal amount on the score of punishment, community[?] so called.
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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.
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