probabilities to demand a majority of at least two votes in a tribunal of appeal in order to invalidate the sentence of the lower tribunal. One would obtain this result if the tribunal of appeal being composed of an even number of judges the sentence should stand in the case of the equality of votes.
I shall consider particularly the judgments in criminal matters.
In order to condemn an accused it is necessary without doubt that the judges should have the strongest proofs of his offence. But a moral proof is never more than a probability; and experience has only too clearly shown the errors of which criminal judgments, even those which appear to be the most just, are still susceptible. The impossibility of amending these errors is the strongest argument of the philosophers who have wished to proscribe the penalty of death. We should then be obliged to abstain from judging if it were necessary for us to await mathematical evidence. But the judgment is required by the danger which would result from the impunity of the crime. This judgment reduces itself, if I am not mistaken, to the solution of the following question: Has the proof of the offence of the accused the high degree of probability necessary so that the citizens would have less reason to doubt the errors of the tribunals, if he is innocent and condemned, than they would have to fear his new crimes and those of the unfortunate ones who would be emboldened by the example of his impunity if he were guilty and acquitted? The solution of this question depends upon several elements very difficult to ascertain. Such is the eminence of danger which would
