23 May 1804

Evidence

Forthcomingness

Ch. Monitoires

§.1. Compulsory

Ch. Of Monitoires.

§.1. Monitories, how far compulsory.

The sort of advertisement or general address, stiled in French procedure Monitoire, may be considered either as a simple invitation, or as a compulsory application an application of the compulsory cast. It is a simple invitation, inasmuch as it does not employ the force of the political sanction to secure compliance: it is /may be considered/ an application of the compulsory kind, in so far as it aims at employing and succeeds in applying /employing/ the force of the religious sanction to that same purpose. The service commanded by it, on behalf of public justice, is that of yielding such evidence as each individual may be capable of yielding in relation to a fact or supposed fact stated in the instrument. (a)

The instrument by which in case of supposed non compliance it seeks to apply the force of the religious sanction in the event of a supposed disobedience to the requisition of service as above described, is a sentence of excommunication. In so far as on this or that occasion such sentence may appear capable of being productive /producing/ to the prejudice of such delinquent any effects of the nature of those which are produced by the force of the political sanction - in other words, by legal punishment, the requisition conveyed by it must be /will be to be/ considered as being of the nature not of a simple invitation, but of a compulsive process. But as the sort of delinquency in question is of that /a/ sort the proof of which will in general be extremely difficult to establish, not to speak of the want of sufficient inducement to attempt the establishing of it to the satisfaction of an earthly tribunal, the probability of compliance may be considered as resting in general upon the force with which the power of the religious sanction is brought to act upon the mind of the /each/ individual, who considers himself as addressed by it; over and above the force of those latent inducements, which will naturally be brought into action by an address made on any such occasion from the judicial power in the state although conveyed in the form of simple invitation, unarmed /unsupported/ either by factitious reward or punishment.

(a) Note in next page