Of Crimes and Punishments
Of the Credibility of Witnesses.
To determine exactly the credibility of a witness, and the
force of evidence, is an important point in every good legislation. Every man
of common sense, that is, every one whose ideas have some connection with each
other, and whose sensations are conformable to those of other men, may be a
witness; but the credibility of his evidence will be in proportion as he is
interested in declaring or concealing the truth. Hence it appears how frivolous
is the reasoning of those who reject the testimony of women, on account of
their weakness; how puerile it is not to admit the evidence of those who are
under sentence of death, because they are dead in law; and how irrational to
exclude persons branded with infamy; for in all these cases they ought to be
credited, when they have no interest in giving false testimony.
The credibility of a witness, then, should only diminish
in proportion to the hatred, friendship, or connections, subsisting between him
and the delinquent. One witness is not sufficient for, whilst the accused
denies what the other affirms, truth remains suspended, and the right that
every one has to be believed innocent turns the balance in his favour.
The credibility of a witness is the less as the
atrociousness of the crime is greater, from the improbability of its having
been committed; as in cases of witchcraft, and acts of wanton cruelty. The
writers on penal laws have adopted a contrary principle, viz. that the
credibility of a witness is greater as the crime is more atrocious. Behold
their inhuman maxim, dictated by the most cruel imbecility. In atrocissimis,
leviores conjecturae sufficiunt, & licit judici jura transgredi. Let us
translate this sentence, that mankind may see one of the many unreasonable
principles to which they are ignorantly subject. In the most atrocious
crimes, the slightest conjectures are sufficient, and the judge is allowed to
exceed the limits of the law. The absurd practices of legislators are often
the effect of timidity, which is a principal source of the contradictions of
mankind. The legislators, (or rather lawyers, whose opinions when alive were
interested and venal, but which after their death become of decisive authority,
and are the sovereign arbiters of the lives and fortunes of men), terrified by
the condemnation of some innocent person, have burdened the law with pompous
and useless formalities, the scrupulous observance of which will place
anarchical impunity on the throne of justice; at other times, perplexed by
atrocious crimes of difficult proof, they imagined themselves under a necessity
of superseding the very formalities established by themselves; and thus, at one
time with despotic impatience, and at another with feminine timidity, they
transform their solemn judgments into a game of hazard.
But, to return: in the case of witchcraft, it is much more
probable that a number of men should be deceived than that any person should
exercise a power which God hath refused to every created being. In like manner,
in cases of wanton cruelty, the presumption is always against the accuser; for
no man is cruel without some interest, without some motive of fear or hate.
There are no spontaneous or superfluous sentiments in the heart of man; they
are all the result of impressions on the senses.
The credibility of a witness may also be diminished by his
being a member of a private society, whose customs and principles of conduct
are either not known or are different from those of the public. Such a man has
not only his own passions, but those of the society of which he is a member.
Finally, the credibility of a witness is still when the
question relates to the words of a criminal; for the tone of voice, the
gesture, all that precedes, accompanies, and follows the different ideas which
men annex to the same words, may so alter and modify a man's discourse, that it
is almost impossible to repeat them precisely in the manner in which they were
spoken. Besides, violent and uncommon actions, such as real crimes, leave a
trace in the multitude of circumstances that attend them, and in their effects;
but words remain only in the memory of the hearers, who are commonly negligent
or prejudiced. It is infinitely easier, then, to found an accusation on the
words than an the actions of a man; for in these the number of circumstances
urged against the accused afford him variety of means of justification.
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