CHAPTER XIII. CONCERNING THE PROBABILITY OF THE JUDGMENTS OF TRIBUNALS.
Analysis confirms what simple common sense teaches us, namely, the correctness of judgments is as much more probable as the judges are more numerous and more enlightened. It is important then that tribunals of appeal should fulfil these two conditions. The tribunals of the first instance standing in closer relation to those amenable offer to the higher tribunal the advantage of a first judgment already probable, and with which the latter often agree, be it in compromising or in desisting from their claims. But if the uncertainty of the matter in litigation and its importance determine a litigant to have recourse to the tribunal of appeals, he ought to find in a greater probability of obtaining an equitable judgment greater security for his fortune and the compensation for the trouble and expense which a new procedure entails. It is this which had no place in the institution of the reciprocal appeal of the tribunals of the district, an institution thereby very prejudicial to the interest of the citizens. It would be perhaps proper and conformable to the calculus of
probabilities to demand a majority of at least two votes in a tribunal of appeal in order to invalidate the sentence of the lower tribunal. One would obtain this result if the tribunal of appeal being composed of an even number of judges the sentence should stand in the case of the equality of votes.
I shall consider particularly the judgments in criminal matters.
In order to condemn an accused it is necessary without doubt that the judges should have the strongest proofs of his offence. But a moral proof is never more than a probability; and experience has only too clearly shown the errors of which criminal judgments, even those which appear to be the most just, are still susceptible. The impossibility of amending these errors is the strongest argument of the philosophers who have wished to proscribe the penalty of death. We should then be obliged to abstain from judging if it were necessary for us to await mathematical evidence. But the judgment is required by the danger which would result from the impunity of the crime. This judgment reduces itself, if I am not mistaken, to the solution of the following question: Has the proof of the offence of the accused the high degree of probability necessary so that the citizens would have less reason to doubt the errors of the tribunals, if he is innocent and condemned, than they would have to fear his new crimes and those of the unfortunate ones who would be emboldened by the example of his impunity if he were guilty and acquitted? The solution of this question depends upon several elements very difficult to ascertain. Such is the eminence of danger which would threaten society if the criminal accused should remain unpunished. Sometimes this danger is so great that the magistrate sees himself constrained to waive forms wisely established for the protection of innocence. But that which renders almost always this question insoluble is the impossibility of appreciating exactly the probability of the offence and of fixing that which is necessary for the condemnation of the accused. Each judge in this respect is forced to rely upon his own judgment. He forms his opinion by comparing the divers testimonies and the circumstances by which the offence is accompanied, to the results of his reflections and