his experiences, and in this respect a long habitude of interrogating and judging accused persons gives great advantage in ascertaining the truth in the midst of indices often contradictory.
The preceding question depends again upon the care taken in the investigation of the offence; for one demands naturally much stronger proofs for imposing the death penalty than for inflicting a detention of some months. It is a reason for proportioning the care to the offence, great care taken with an unimportant case inevitably clearing many guilty ones. A law which gives to the judges power of moderating the care in the case of attenuating circumstances is then conformable at the same time to principles of humanity towards the culprit, and to the interest of society. The product of the probability of the offence by its gravity being the measure of the danger to which the acquittal of the accused can expose society, one would think that the care taken ought to depend upon this probability. This is done indirectly in the tribunals where one
retains for some time the accused against whom there are very strong proofs, but insufficient to condemn him; in the hope of acquiring new light one does not place him immediately in the midst of his fellow citizens, who would not see him again without great alarm. But the arbitrariness of this measure and the abuse which one can make of it have caused its rejection in the countries where one attaches the greatest price to individual liberty.
Now what is the probability that the decision of a tribunal which can condemn only by a given majority will be just, that is to say, conform to the true solution of the question proposed above? This important problem well solved will give the means of comparing among themselves the different tribunals. The majority of a single vote in a numerous tribunal indicates that the affair in question is very doubtful; the condemnation of the accused would be then contrary to the principles of humanity, protectors of innocence. The unanimity of the judges would give very strong probability of a just decision; but in abstaining from it too many guilty ones would be acquitted. It is necessary, then, either to limit the number of judges, if one wishes that they should be unanimous, or increase the majority necessary for a condemnation, when the tribunal becomes more numerous. I shall attempt to apply calculus to this subject, being persuaded that it is always the best guide when one bases it upon the data which common sense suggests to us.
The probability that the opinion of each judge is just enters as the principal element into this calculation. If in a tribunal of a thousand and one judges, five
hundred and one are of one opinion, and five hundred are of the contrary opinion, it is apparent that the probability of the opinion of each judge surpasses very little ½; for supposing it obviously very large a single vote of difference would be an improbable event. But if the judges are unanimous, this indicates in the proofs that degree of strength which entails conviction; the probability of the opinion of each judge is then very near unity or certainty, provided that the passions or the ordinary prejudices do not affect at the same time all the judges. Outside of these cases the ratio of the votes for or against the accused ought alone to determine this probability. I suppose thus that it can vary from ½ to unity, but that it cannot be below ½. If that were not the case the decision of the tribunal would be as insignificant as chance; it has value only in so far as the opinion of the judge has a greater tendency to truth than to error. It is thus by the ratio of the numbers of votes favorable, and contrary to the accused, that I determine the probability of this opinion.
These data suffice to ascertain the general expression of the probability that the decision of a tribunal judging by a known majority is just. In the tribunals where of eight judges five votes would be necessary for the condemnation of an accused, the probability of the error to be feared in the justice of the decision would