7 April 1804

Evidence

Forthcomingness

Ch.7. Appearance Ordin y

§.5. Rule 2. Quality

Suppose a /the/ door to be left open for the reparation of the mischief of the default by the appearance /attendance/ of the witness on a subsequent occasion, it is only in the case of intended expatriation on the part of the witness /an intention of expatriation on his part/, that the default can on his part have been the result of culpable intention, if an intention to give birth to the injustice which will be the natural consequence of such default, if not repaired by such subsequent attendance. By the death of the proposed witness the mischief will /may/ indeed by rendered equally irreparable /placed equally without this reach/. But that the contemplation of this sort of event should have given birth to the default is an evidence which, though barely possible, will be so improbable as to be scarce / / ever realised. That a man should be able to foresee with the requisite degree of accuracy and assurance the exact time of his own death, is a state of things extremely rare /one great improbability/: and that having in his own mind the assurance of a visit from the hand of death within a short and determinate length of time, he should take advantage of the interval to committ / to be guilty/ in cool blood of a nicely calculated injustice, is another great improbability, which would be to be mounted upon the shoulders of the former. There remains indeed the case of foreseen insanity: but if that be substituted to the case of foreseen death, the improbability will be found to be converted into impossibility, for any practical and moral purpose.

For on the supposition of his remaining /suppose him to remain/ at home within the reach of justice, and suppose the law to have made the requisite provision for procuring his attendance on a subsequent occasion, the supposed culpable intention would not be satisfied /neither be accomplished/ nor promoted by the default supposed to be committed in the first instance: and supposing penalty of any kind attributed to such default, this offence would be without profit, and this punishment of the offender himself would be the only fruit of it.