at another with feminine timidity, they transform their solemn judgments into a game of hazard.
But to return. In the case of witchcraft, it is much more probable, that a number of men should be deceived, than that any person should exercise a power which God hath refused to every created being. In like manner, in cases of wanton cruelty, the presumption is always against the accuser, for no man is cruel without some interest, without some motive of fear or hate. There are no spontaneous or superfluous sentiments in the heart of man; they are all the result of impressions on the senses.
The credibility of a witness may also be diminished, by his being a member of a private society, whose custom and principles of conduct are either not known, or are different from those of the people. Such a man has not only his own passions, but those of the society of which he is a member.
Finally, the credibility of a witness is null, when the question relates to the words of a criminal; for the tone of voice, the gesture, all that precedes, accompanies and follows, the different ideas which men annex to the same words, may so alter and modify a man's discourse, that it is almost impossible to repeat them precisely in the manner in which they were spoken. Besides, violent and uncommon actions, such as real crimes, leave a trace in the multitude of circumstances that attend them, and in their effects; but words remain only in the memory of the hearers, who are commonly negligent or prejudiced. It is infinitely easier then to found an accusation on the words, than on the actions of a man; for in these, the number of circumstances, urged against the accused, afford him the variety of means of justification.
Chapter 14: Of Evidence and the Proofs of a Crime, and of the Form of Judgment
The following general theorem is of great use in determining the certainty of a fact. When the proofs of a crime are dependent on each other, that is, when the evidence of each witness, taken separately, proves nothing; or when all the proofs are dependent upon one, the number of proofs neither increase nor diminish the probability of the fact; for the force of the whole is no greater than the force of that which they depend; and if this fails, they all fall to the ground. When the proofs are independent on each other, the probability of the fact increases in proportion to the number of proofs; for the falsehood of one does not diminish the veracity of another.
It may seem extraordinary, that I speak of probability with regard to crimes, which, to deserve a punishment, must be certain. But this paradox will vanish, when it is considered, that, strictly speaking, moral certainty is only probability; but which is called a certainty, because every man in his senses assents to it from an habit produced by the necessity of acting, and which is anterior to all speculation. That certainty which is necessary to decide, that the accused is guilty, is the very same which determines every man in the most important transactions of his life.
The proofs of a crime may be divided into two classes, perfect and imperfect. I call those perfect which exclude the possibility of innocence; imperfect, those which do not exclude this possibility. Of the first, one only is sufficient for condemnation; of the second, as many are required as form a perfect proof; that is to say, that though each of these, separately taken, does not exclude the possibility of innocence, it is nevertheless excluded by their union. It should be also observed, that the imperfect proofs, of which the accused, if innocent, might clear himself, and does not, become perfect.
But it is much easier to feel this moral certainty of proofs, than to define it exactly. For this reason, I think it an excellent law which establishes assistants to the principal judge, and those chosen by lot; for that ignorance, which judges by its feelings, is less subject to error, than the knowledge of the laws, which judges by opinion. Where the laws are clear and precise, the office of the judge is merely to ascertain the fact. If, in examining the proofs of a crime, acuteness and dexterity be required; if clearness and precision be necessary in summing up the result; to judge of the result itself, nothing is wanting but plain and ordinary good sense, a less fallacious guide than the knowledge of a judge, accustomed to find guilty, and to reduce all things to an artificial system, borrowed from his studies. Happy the nation, where the knowledge of the law is not a science!
It is an admirable law which ordains, that every man shall be tried by his peers; for when life, liberty and fortune are in question, the sentiments, which a difference of rank and fortune inspire, should be silent; that superiority with which the fortunate look upon the unfortunate, and that envy with which the inferior regard their superiors, should have no influence. But when the crime is an offence against a fellow subject, one half of the judges should be peers to the accused, and the other, peers to the person offended. So that all private interest, which, in spite of ourselves, modifies the appearance of objects, is counteracted, and nothing remains to turn aside the direction of truth and the laws. It is also just, that the accused should have the liberty of excluding a certain number of his judges. Where this liberty is enjoyed for a long time, without any instance to the contrary, the criminal seems to condemn himself.
All trials should be public, that opinion, which is the best, or perhaps, the only cement of society, may curb the authority of the powerful, and the passions of the judge; and that the people may say, "We are protected by the laws; we are not slaves:" a sentiment which inspires courage, and which is the best tribute to a sovereign, who knows his real interest. I shall not enter into particulars. There may be some persons who expect that I should say all that can be said upon this subject; to such, what I have already written must be unintelligible.
Chapter 15: Of Secret Accusations
Secret accusations are a manifest abuse, but consecrated by custom in many nations, where, from the weakness of the government they are necessary. This custom makes men false and treacherous. Whoever suspects another to be an informer, behold in him an enemy; and from thence, mankind are accustomed to disguise their real sentiments; and from the habit of concealing them from others, they at last even hide them from themselves. Unhappy are those, who have arrived at this point! Without any certain and fixed principles to guide them, they fluctuate in the vast sea of opinion, and are busied only in escaping the monsters which surrounded them; to those, the present is always embittered by the uncertainty of the future; deprived of the pleasures of tranquility and security, some fleeting moments of happiness, scattered thinly through their wretched lives, console them for the misery of existing. Shall we, amongst such men, find intrepid soldiers, to defend their king and country? Amongst such men, shall we find incorruptible magistrates, who, with the spirit of freedom and patriotic eloquence, will support and explain the true interest of their sovereign; who, with the tributes, offer up at the throne the love and blessing of the people, and thus bestow on the palaces of the great and the humble cottage, peace and security; and to the industrious a prospect of bettering their lot, that useful ferment and vital principle of states?
Who can defend himself from calumny, armed with that impenetrable shield of tyranny, secrecy? What a miserable government must that be, where the sovereign suspects an enemy in every subject; and to secure the tranquility of the public, is obliged to sacrifice the repose of every individual?
By what argument is it pretended, that secret accusations may be justified! The public safety, say they, and the security and maintenance of the established form of government. But what a strange constitution is that, where the government, which hath in its favor not only power, but opinion, still more efficacious, yet fears its own subjects? The indemnity of the informer? Do not the laws defend him sufficiently; and are there subjects more powerful than the laws? The necessity of protecting the informer from infamy. Then secret calumny is authorized, and punished only when public. The nature of the crime. If actions, indifferent in themselves, or even useful to the public, were called crimes, both the accusation and the trial could never be too secret. But can there be any crime, committed against the public, which ought not to be publicly punished? I respect all governments; and I speak not of any one in particular. Such may sometimes be the nature of circumstances, that when abuses are inherent in the constitution, it may be imagined, that to rectify them would be to destroy
