26 March 1804

Evidence

Forthcomingness

Ch. 1 Generalia

§.1. Objects

Forthcomingness of the witness is one thing: forthcomingness of his evidence, is another. He may choose to produce himself in Court, but when the time comes for his speaking /called upon to speak/ he may choose rather to hold his tongue /to stand mute/. His presence may be obtained without the concurrence of his will: his testimony can not be obtained but through the [...?] /intervention/ of his will. Physical means /applications//powers/ are sufficient to produce the former effect /of the two effects/: psychological means alone are adequate to the latter: if with reference to this latter object, physical means have any power, it is only through the medium of psychological ones.

In the natural and ordinary state of things the two results /effects/ are found conjoined. By his own good liking a man does not come into court in the character of a witness, without intending to act in that character, and to depose accordingly. When without his liking, a man is induced to come into Court in that character, whatever inducement is sufficient to engage him to appear in that character, is commonly sufficient to engage him to act on it. Even when by dint of more physical force subduing and overpowering his own physical force of resistance he is brought into Court, the proof /experimental proof thus/ given him of his own weakness is naturally and generally sufficient to wean him from the propensity of maintaining so unprofitable a struggle /contest/ as that of a battle between a captive individual and the whole force of the community [...?] ever against him in the best of all causes - the cause of justice.

Such is the natural and ordinary state of things. But a system of procedure which fails /should fail/ to have made provision against extraordinary cases - even the most extraordinary cases, will be sure to find its course /progress/ obstructed /energies crippled/ and its designs defeated in the most ordinary cases. The system which in this respect is not provided against extraordinary cases, is ill provided against ordinary ones. Cases which when provided for /against/ are extraordinary, would /are/ if unprovided for become ordinary.