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.