our laws prohibit suggestive (leading) questions in a lawsuit: those, that is (according to the doctors of law), which, instead of applying, as they should do,[145] to the genus in the circumstances of a crime, refer to the species; those, in other words, which from their immediate connection with a crime suggest to the accused a direct answer. questions, according to the criminal lawyers, ought, so to speak, ‘to envelop the main fact spirally and never to attack it in a direct line.’ the reasons for this method are, either that an answer may not be suggested to the accused which may place him face to face with the charge against him, or perhaps because it seems unnatural for him directly to criminate himself. but, whichever of these reasons it may be, the contradiction is remarkable between the existence of such a custom and the legal authorisation of torture; for what interrogatory can be more suggestive than pain? the former reason applies to the question of torture, because pain will suggest to a strong man obstinate silence, in order that he may exchange the greater penalty for the lesser, whilst it will suggest to a weak man confession, in order that he may escape from present torment, which has more influence over him than pain which is to come. the other reason evidently applies too, for if a special question leads a man to confess against natural right, the agonies of torture will more easily do the same. but men are more governed by the difference of names than by that of things.
finally, a man who, when examined, persists in an obstinate refusal to answer, deserves a punishment[146] fixed by the laws, and one of the heaviest they can inflict, that men may not in this way escape the necessary example they owe to the public. but this punishment is not necessary when it is beyond all doubt that such a person has committed such a crime, questions being useless, in the same way that confession is, when other proofs sufficiently demonstrate guilt and this last case is the most usual, for experience proves that in the majority of trials the accused are wont to plead ‘not guilty.’
