The relevance of answers depends, of course, on getting the questions right. Sometimes, however, we are not quite sure that we actually know what the question is. The doctrine that underlies the title question to this essay is commonly ascribed to William Blackstone. in Commentaries on the Laws of England (1769), Blackstone wrote that "the law holds that it is better that ten guilty persons escape, than that one innocent suffer." (1) This formulation is not the only version of the doctrine. For example, in his book on Evidence (1824), another British scholar, Thomas Starkie, insisted "that it is better that ninety-nine ... offenders shall escape than that one innocent man be condemned." (2) The various versions of this idea in circulation inspired Jeremy Bentham to make the following skeptical comment in A Treatise on Judicial Evidence (1825):
At first it was said to be better to save several guilty men, than to condemn a single innocent man; others, to make the maxim more striking, fixed on the number ten, a third made this ten a hundred, and a fourth made it a thousand. All these candidates for the prize of humanity have been outstripped by I know not how many writers, who hold, that, in no case, ought an accused to be condemned, unless the evidence amount to mathematical or absolute certainty. According to this maxim, nobody ought to be punished, lest an innocent man be punished.