216
might consider both questions,
and should consider them separately.
11. It is rather difficult
to keep these issues distinct.
It is impossible to prevent one's judgment upon the bearing of evidence being
affected by a sense of the responsibility
that attaches to a decision
upon that evidence, for
in theory, the proof required to
convict
is
of
the
same kind as
that required to convict
him
of a capital offence;
but, in practice,
doubts
which do not prevent a
jury convicting in one
case do prevent them in
the other.
12. Where
a
Magistrate
is
considering whether there is such a probable
case to
warrant him in
committing a man for trial by
an
English Court
of justice, he judges of the evidence and decides, knowing
the prisoner will be fairly tried and ultimately not convicted unless he is
really guilty. But here, in considering whether or not there is a probable case, it is impossible not to feel
that
a jury
will
be
influenced by the decision.