25 May 1804

Evidence

3. Forthcomingness

Ch. Extraction

2. Personal - Party's

In a penal cause, on the side /in the case/ of the defendant, the result is not in all cases, quite so clear of difficulty. Yes: if the fact of any species of delinquency has been already /designated and/ rendered portable[?], by other evidence, although it be but make shift evidence.

But, suppose nothing more than a vague suspicion of delinquency to attach /has attached/ upon the defendant from any extraneous source so that not so much as the species of delinquency can from that source be ascertained, much /still/ less the individualizing circumstances of the act: - in this case [...?] the defendant cannot be convicted, since it can not be said of what he shall be convicted.

In this case, supposing him really guilty of any offinse, the punishment he receives cannot be the punishment attached to the /belonging to that particular/ offense. It can only be the punishment, whatever it may be, which it may be thought fit to attach to the offence against justice - the refusal to render the commanded service - the wilful and perspicatious silence. In this case the situation of /a/ party - called upon for his evidence is not /[...?] [...?]/ distinguishable from that of an extraneous witness. of which presently.

The case of a plaintiff in this same class of causes will also present but little difficulty. If the cause be of a compound nature, containing a claim of satisfaction to be rendered /afforded/ at the expense of the defendant, to the plaintiff in the character of a party injured as to so much the condition /situation/ of the plaintiff in this compound cause /coincides with/ is not to be distinguished from the situation of a plaintiff in a non-penal cause, as above.