26 March 1804

Evidence

Forthcomingness

Ch. Extraction

The means of extracting formal evidence will wear a very different aspect, according to the relation which the witness bears to the cause. Is he a party? justice has him in her power: does he refuse to speak? she makes him /he loses/ lose his cause. In his station in the cause of the plaintiff? - the object of his application is defeated. By appearing in the /To appear in the/ character of plaintiff he lays claim to the receipt of a service at the hands of the Judge - no, says the judge: you have no right to any such service: you refuse to fulfil a condition you refuse to render your service to justice a service on your part, without which your title to the service you demand at my hands is defective.

In his station that of `defendant'? is it the defendant who is, or rather who would be thus refractory? The hold which justice has upon him is equally strong and efficient /sufficient/. Do you refuse to speak? says the judge? it is because the claim made upon you is just: - /because/ it is out of your power to contest it. But your contumacy shall /will/ not avail you. Silence on your part may as far as you are concerned, screen particulars from view: but, for the purpose of the general conclusion, for the purpose of your condemnation, silence and confession are alike instructive. To this purpose, they are the same and under different denominations. Confession is confession by discourse; silence is confession by deportment. +

Difference between penal and non-penal in this respect.

+ In B. III[?] Circumstantial

Ch. Confessional.