C O M P A R AT I V E S T U D Y Thus, then, although a judge should have an internal presumption against the accused, he should not hesitate to act on the presumption of his innocence, and, in doubtful cases, to consider the error which acquits as more justifiable, or less injurious to the good of society, than the error which condemns. In listening to the voice of humanity, he will only be following that of reason. But we must be on our guard against those sentimental exaggerations which tend to give crime impunity, under the pretext of ensuring the safety of innocence. Public applause has been, so to speak, set up to auction. At first, it was said to be better to save several guilty men than to condemn a single innocent man; others, to make the maxim more striking, fixed on the number ten; a third made his ten a hundred, and a fourth made it a thousand. All these candidates for the prize of humanity have been outstripped by I know not how many writers, who hold, that, in no case, ought an accused person to be condemned unless the evidence amount to mathematical or absolute certainty. According to this maxim, nobody ought to be punished, lest an innocent man be punished.84 Whitman also notes that the jurists who shaped the in dubio pro reo principle understood the conflict between a rule that counselled mildness and the public interest that crimes should not go unpunished. This conflict concerning judicial discretion and the judge’s role as a “public person” would be fought repeatedly in the subsequent centuries.85 From the philosophers of the Age of Reason came as well new ideas about certainty and probability.86 Therefore, systematizing the levels of probability, English philosopher John Locke (1632 – 1704) reasoned: The first, therefore, and highest degree of probability, is, when the general consent of all men, in all ages, as far as it can be known, concurs with a man’s constant and never-failing experience in like cases, to confirm the truth of any particular matter of fact attested by fair witnesses: such are all the stated constitutions and properties of bodies and the regular proceedings of causes and effects in the ordinary course of nature…. These probabilities rise so near to certainty, that they govern our thoughts as absolutely … as the most evident demonstration…. We make little or no difference between them and certain knowledge... The next degree of probability is when I find by my own experience, and the agreement of all others that mention it, a thing to be for the most part so, and that the particular instance of it is attested by many and undoubted witnesses: v.g. history giving us such an account of men in all ages, and my own experience, as far as I had an opportunity to observe, confirming it, that most men prefer See J. Bentham, A Treatise on Judicial Evidence (M. Dumont Ed.) London, 1825, p.198. See Richard M. Fraher, Conviction According to Conscience: The Medieval Jurists’ Debate Concerning Judicial Discretion and the Law of Proof, 7 Law & Hist. Rev. 23, 88 (1989). 86 Shapiro, Doubt, p. 2, 6-7. 84 85 29