26 May 1804

Evidence

Forthcomingness

Ch. Extraction.

§ 4. Ordinary.

Rule 3 d. In the case of suspicion of mendacity, a power ought ot be given to the Judge, to secure the eventual justiciability of the so suspected witness, in respect thereof by such means as promise to be adequate to the purpose: [...?]-justorial security, or even imprisonment not excepted.

Reasons. Without this precaution, although the coercive[?] means /applications/ employed for the extracion of the evidence be sufficient /should prove adequate to that object/, yet the evidence when extracted would be adequate /in many cases be apt to prove inadequate/ to the ultimate object - the discovery of the truth. In the case in question, the information yielded does not answer the purpose any further than as it is true /conformable to the truth/. But unless such precaution as that here recommended is taken /employed/ for securing the veracity of the evidence, all that is affected by the compulsory - the extraction process is the causing a man to speak - not the causing him to speak true. In this case, whatever may be the suffering, involved in /attached to/ the extractive process, how much soever soever it may be than that which is attached to the shape of punishment to perjury in the case in question, the examiner has it in his power to reduce the amount of it to that of the punishment for perjury: and in effect indeed much below that level: since by the supposition the suffering involved in the extractive process would be certain, being inflictable on the spot, whereas the punishment as for perjury would not be to be inflicted but at the end in consequence of a separate prosecution, subject to all the causes of uncertainty to which the event of such a prosecution is /stands/ exposed.