6 April 1804

Evidence

Forthcomingness

Ch.6. Appearance

§.5. Rule 2. Quality

I assume even before this argument is analysed and applied to particular cases, fallacy, in some shape or other, it must be evident, lurks under it. The same fact may be proved for one purpose, and not proved for another. Instances in which damage though really produced, is not capable of being proved, are liable to happen in all cases, and more apt in this perhaps than in most. But from the impracticability of rendering justice in this or that particular case, no reason whatever arises against the rendering it in cases in which the rendering it /fulfilment of this duty/ is practicable. Let the following case serve instead of a multitude. A granary full of corn the property of Lazius[?] has been purposely burnt by Incendiarius by Injustice.[?] Argus was a percipient witness and the only percipient witness to the transaction /act/. Argus speaks of it in the presence /company/ of other persons, through one of whom it comes to the ear of Innocens. Innocens summons Argus to appear and given evidence. Argus, being gained by Incendiarius makes default. In such case, supposing a number of irreproachable witnesses to concurr in giving an account of the extrajudicial evidence so given /uttered/ by Argus even this hearsay evidence, when coupled with the non-appearance of Argus, especially if corroborated by other circumstantial evidence, might perhaps appear, to the satisfaction of the Judge a sufficient ground for giving a decision against Incendiarius - if not for the purpose of ulterior punishment under the name of punishment, at any rate for the purpose of the [...?] of being subjected to the burthen pecuniary satisfaction. In that case, and supposing the pecuniary faculties of Incendiarius, sufficient /competent/ to the affording the matter of satisfaction in adequate quantity, the demand of Lazius would be satisfied /supplied/ from that source, and the punishment inflicted on Argus would be left free to assume any other shape. But on either of the two opposite suppositions - suppose Incendiarius either not corrected or not solvent, the demand not only for punishment, but for punishment in this shape, will attach upon Argus: and the evidence, though not sufficient to correct Incendiarius of the original sense, may be sufficient to correct Argus of the derivative offence on his part that has thus grown out of it on his part, and to convict him to this purpose.