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The chief incongruity in this inquisitorial trial, however, is that it admits of half proofs, two of which amount to a whole proof, with other logical flagrancies, as.well as the ' legal flagrancy of “ deficient proof,” according to which a lighter punishment, but still a punishment, is inflicted.
It is hardly conceivable how an intelligent nation, advanced in the sciences, can have continued a logical absurdity of such crying character until the most recent times, and can continue it, in some parts of the country, to this day. It is reversing the things, and substituting evidence, the means of arriving at the fact, which is the thing to determine the punishment, for the criminal fact.
The principle from which we start in penal law is, that . crime ought to be followed by evil, as a consequence of the crime. If crimes punished themselves, we should not want judges; if judges were omniscient, we should not want trials. The object of the trial is to prove that a crime has been committed, and that it has been committed by the indicted person. This is called establishing the fact, which means proving it-reproducing it, as it were, before the eyes of the judge; in one word, convincing him of the truth of the charge, of the fact, and the fact alone—the deed can be punishable. But the idea of a fact does not admit of degrees. There may, indeed, be every possible degree of belief in a judge from the first suspicion, from surmise, doubt, and belief, to the fullest conviction; but, if he metes out his punishments accordingly, he does not punish for facts done by others, but according to the degree of belief in himself. He substitutes his own subjective belief for the objective fact. Now, there cannot be half facts, or three-fourths of facts. A man may, indeed, buy poison, to commit murder—he may add to this, the mixing of the poison with a soup; he may add to this, the carrying of the soup to the sick-room; and he may add to this again, the presenting of
the soup to a patient, who finally consumes it; but all these successive acts are not parts of facts. Wherever the evilminded man stopped, it was a fact; and, if it is punished, it is not punished as part of a crime, but the inchoate crime is a whole penal fact, and, as such, punished. Again, though four persons may, as witnesses, establish a fact-a truth, each witness does not prove, on that account, a fourth of the truth, which, like the fact, is one and indivisible. If they prove a chain which ultimately establishes a fact, they still prove but one fact, and each one proves for himself a whole truth, which, in connection with the other truths, establishes the ultimate truth.
If four not very creditable witnesses establish one fact, when I would not have believed either of them singly, because, in the assumed case, they corroborate one another, when no connivance can have taken place, they are in this case good witnesses, each one for himself, and not four witnesses, each one worth a fourth of a good witness. A thousand liars cannot, as liars, establish a truth, but they may testify under circumstances which deprive them of the character of liars, and thus be in the case good witnesses.
It is true, indeed, that man, conscious of his fallibility, and resolved severely to punish certain crimes, has laid down the rule that, to prove certain crimes in such a manner that the law shall consider them as proved, an amount of testimony shall be necessary which is not required for lighter offences. But this is only as a safeguard, so as to prevent, as far as in us lies, the unjust infliction of severe punishment. It has nothing to do with parts of truths, or parts of facts. It has nothing to do with logic. In barbarous times, however, it was actually conceived that logic itself is of a sliding character, as it were. The Ripuarian laws demanded seventy-two compurgators to absolve an incendiary, or murderer (Leg. Ripuar., cap. vi. vii. and xi.). Here, the first error was to consider the accused as tainted, who must clear himself, and not as one accused, upon whom the deed must be proved. The second error was that the number of compurgators must rise to clear the tainted person, according to the taint (which, as yet, is nothing but accusation). The Koran prescribes, in certain cases, a number of oaths—as though each oath, even of a person unworthy of belief, contained some truth, which, by repetition, could be accumulated, and ultimately form a whole truth. Not quite dissimilar is what we read in Gregory of Tours. When the chastity of a certain queen of France was suspected, three hundred knights swore, without hesitation, that the infant prince was truly begotten by her deceased husband. As if the oath of three hundred knights could have any weight, when none of them could know the fact. But, if people once fall into the error of demanding the proof of the negative to establish innocence, instead of demanding the proof positive of the charge, they must necessarily fall into all sorts of errors. The ecclesiastical law required, in a similar manner, or still requires, seventy witnesses to prove incontinency on a cardinal; and, in Spain, as chancellor Livingston tells us, it required more witnesses to convict a nobleman than a commoner. This is pretty much the same logic which, as Captain Wilkes tells us, induces the Fejeeans to put more powder into the gun if they fire at a large man.
On the other hand, the idea of punishing according to the degree of conviction in the judge, namely, lightly, if light suspicion only has been existing, more severely, if belief has been created, and so on, would not have been wholly inconsistent in ancient times, when men had not yet succeeded in strictly separating the moral law from the law of nature, and when the punishment was considered as a sort of extinction of guilt-a neutralizing agent. This is a theory
which actually some modern criminalists of prominence have endeavored to revive. According to them, the fact, not the deed, is punished-society has to wipe off the criminal fact which has occurred, and the punishment is like the minus put against the plus. But Aristotle already said, even the gods cannot make undone what has been done. The punishment would resemble the penitence which in early times kings had to undergo for great national calamities. If this unphilosophical view were true, it would be difficult to show why the criminal, who has committed the deed, is the one selected to re-establish the equilibrium or for the atonement. But the common sense of mankind has been in this case, as in a thousand others, sounder than theories of unpractical thinkers.
The judge who punishes half, because the evidence has sufficed to create half a conviction only, commits the same logical fault which a navigator would commit who has seen but dimly something that may be a rock, and would go but half out of the way of the danger. I say he commits the same logical fault, although the effects would be the reverse.
Punishment, which is the intentional infliction of some sufferance as deserved sufferance in which it differs from the infliction of pain by the surgeon), requires the establishment of the deed, and this is absolute. The various degrees of belief in the deed are only in the judge, not in the deed. The deed must determine the different degrees of infliction of pain or privation; all else is illogical.
If the reader has thought that I have dwelt too long on this subject, he must remember that millions are to this day subject to such legal logic as has been described.
It will be hardly necessary to refer in this place to the fact, that although the ascertainment of truth is the main object of the trial, it is not on that account allowed to resort to all and every means which may bring about this end. Sound sense and a due regard to the rights of individuals lead men to the conviction that a fixed law of evidence is necessary, and to prescribe rules according to which courts shall believe facts to be established, discarding all those means which may expose the accused to cruelty, which may be easily abused, which in turn may deceive, and whose effects in general would be worse than the good obtained. Truth, established according to those rules, is called legal truth. There can be but one truth, that is the conviction agreeing with fact, but truth may be established by various means, or by means agreeing with prescribed rules. There may be one witness who testifies that he has seen a man doing that, which, before the court can punish it, requires two witnesses. The judge may be thoroughly convinced that the witness speaks the truth; yet the truth would not be legally established—it would not be a legal truth. This, too, may appear unworthy of mention; but only to those who do not know how vehemently all persons hostile to liberty declaim against the dead letter of the law, the hollow formalism of the Anglican trial, and how anxious they are to substitute the subjective opinion of the judge for the positive and well defined law. I may put it down here as a fact of historical interest that even so late as my early days I heard a criminalist of some distinction regret the abolition of “the question," i. e. the torture, and I speak gravely when I say that, as times go in some countries, I should not be surprised if torture once more should be demanded by some jurists in them. Indeed, has it not been used ? Mr. Gladstone's pamphlet on Neapolitan affairs tells us strange things.?