WITNESSES.
It is a great point in every good system of laws to determine exactly
the credibility of witnesses and the proofs of guilt Every reasonable
man—that is, every man with a certain connection between his ideas and
with feelings like those of other men—is capable of bearing witness. The
true measure of his credibility is only the interest he has in speaking
or in not speaking the truth; so that nothing can be more frivolous than
to reject the evidence of women on the pretext of their feebleness,
nothing more childish than to apply the results of real death to civil
death as regards the testimony of the condemned, nothing more unmeaning
than to insist on the mark of infamy in the infamous when they have no
interest in lying.
Among other abuses of grammar, which have no slight influence on human
affairs, that one is notable which makes the evidence of a condemned
criminal null and void. ‘He is _dead civilly_’ say gravely the
peripatetic lawyers, ‘and a _dead man_ is incapable of any action.’ In
support of this silly metaphor many victims have been sacrificed, and
it has very often been disputed with all seriousness whether the truth
should not yield to judicial formulas. Provided that the testimony of
a condemned criminal does not go to the extent of stopping the course
of justice, why should not a fitting period be allowed, even after
condemnation, both to the extreme wretchedness of the criminal and to the
interests of truth, so that, by his adducing fresh matter to alter the
complexion of the fact, he may justify himself or others in a new trial?
Forms and ceremonies are necessary in the administration of justice,
because they leave nothing to the free will of the administrator; because
they give the people an idea of a justice which is not tumultuary and
self-interested, but steadfast and regular; and because men, the slaves
of habit and imitation, are more influenced by their feelings than by
arguments. But such forms can never without fatal danger be so firmly
fixed by the laws as to be injurious to truth, which from being either
too simple or two complex needs some external pomp to conciliate the
ignorant populace.
The credibility, therefore, of a witness must diminish in proportion
to the hatred, friendship, or close connection between himself and the
accused. More than one witness is necessary, because, so long as one
affirms and another denies, nothing is proved, and the right which
everyone has of being held innocent prevails. The credibility of a
witness becomes appreciably less, the greater the atrocity of the
crime imputed,[66] or the improbability of the circumstances, as in
charges of magic and gratuitously cruel actions. It is more likely, as
regards the former accusation, that many men should lie than that such
an accusation should be true, because it is easier for many men to be
united in an ignorant mistake or in persecuting hatred than for one man
to exercise a power which God either has not conferred or has taken away
from every created being. The same reasoning holds good also of the
second accusation, for man is only cruel in proportion to his interest
to be so, to his hatred or to his fear. Properly speaking, there is no
superfluous feeling in human nature, every feeling being always in strict
accordance with the impressions made upon the senses. In the same way the
credibility of a witness may sometimes be lessened by the fact of his
being a member of some secret society, whose purposes and principles are
either not well understood or differ from those of general acceptance;
for such a man has not only his own passions but those of others besides.
Lastly, a witness’s evidence is almost null when spoken words are
construed into a crime. For the tone, the gesture, all that precedes or
follows the different ideas attached by men to the same words, so alter
and modify a man’s utterances, that it is almost impossible to repeat
them exactly as they were spoken. Moreover, actions of a violent and
unusual character, such as real crimes are, leave their traces in the
numberless circumstances and effects that flow from them; and of such
actions the greater the number of the circumstances adduced in proof, the
more numerous are the chances for the accused to clear himself. But words
only remain in the memory of their hearers, and memory is for the most
part unfaithful and often deceitful. It is on that account ever so much
more easy to fix a calumny upon a man’s words than upon his actions.