threaten society if the criminal accused should remain unpunished. Sometimes this danger is so great that the magistrate sees himself constrained to waive forms wisely established for the protection of innocence. But that which renders almost always this question insoluble is the impossibility of appreciating exactly the probability of the offence and of fixing that which is necessary for the condemnation of the accused. Each judge in this respect is forced to rely upon his own judgment. He forms his opinion by comparing the divers testimonies and the circumstances by which the offence is accompanied, to the results of his reflections and his experiences, and in this respect a long habitude of interrogating and judging accused persons gives great advantage in ascertaining the truth in the midst of indices often contradictory.
The preceding question depends again upon the care taken in the investigation of the offence; for one demands naturally much stronger proofs for imposing the death penalty than for inflicting a detention of some months. It is a reason for proportioning the care to the offence, great care taken with an unimportant case inevitably clearing many guilty ones. A law which gives to the judges power of moderating the care in the case of attenuating circumstances is then conformable at the same time to principles of humanity towards the culprit, and to the interest of society. The product of the probability of the offence by its gravity being the measure of the danger to which the acquittal of the accused can expose society, one would think that the care taken ought to depend upon this probability. This is done indirectly in the tribunals where one
