26 April 1804

Evidence

Forthcomingness

Ch.1. Generalia

§.3. Means - 1. Powers.

With regard to the applicability of the two classes of means in question thus brought to view to the accomplishment of the three objects respectively a general /a leading/ observation or two may in this plan be not without its use.

1. In regard to the investigation and discovery of a source of evidence - a person a thing or a writing in that character, so far s the discovery is either of persons or through persons, and so far as it is necessary that the person by whom the discovery is to be made should be present viz: at the seat of judicature in order to make it, the means applicable to this purpose will coincide with those applicable respectively to the purpose of causing appearance on the part of a proposed witness, and to the purpose of casing his evidence to be extracted. There remains the case of correspondence with a proposed witness by written discource at a distance, of which in another place. As to the obtainment of the latter, to this object physical means will be inapplicable, psychological inapplicable, as will be seen more fully presently.

2. In regard to causing the appearance of some source of evidence person, thing, or script - physical means and psychological means will be equally applicable - alike capable of being made conducive to this purpose - though not equally eligible. The man may be brought into court, with the script or other thing - or either may be brought without the other.

3. To the extraction of the evidence, where a person is the source, physical means, applied /considered/ as such, and in the way of direct application, are obviously inapplicable /ineffective/. Physical means, in themselves, have no direct action on the mind. Though torture were employed - material, physical instruments applied to the material part of mans frame, if the application be productive of any effect, it will be in the character not of a physical application, but of a psychological one. If any evidence be extracted by it, it can only be through the medium of his mind: it will be extracted, not by the force of what is past, but by the fear of what is to come. You may squeeze blood out of a mans body, but, if mind yields not, you can not squeeze out evidence.