The maxim, Innocent until proven guilty, has had a good run in the twentieth

century. The United Nations incorporated the principle in its Declaration of Human
Rights in !"# under article eleven, section one. The maxim also found a place in the
$uropean %onvention for the
&rotection of Human Rights in !'( )as article *, section +, and was incorporated
into the United Nations International %ovenant on %ivil and &olitical Rights )as
article ", section +,. This was a satisfying development for -mericans .ecause there
are few maxims that have a greater resonance in -nglo/-merican, common law
0urisprudence. The -nglo/-merican reverence for the maxim does pose an
interesting conundrum1 it cannot .e found in 2agna %arta, the $nglish 3ill of
Rights of *#!, the Declaration of Independence, or in the %onstitution of the United
4tates5 and not, I might add, in the wor6s of the great $nglish 0urists, 3racton,
%o6e, and 3lac6stone. Nevertheless, some scholars have claimed that the maxim has
.een firmly em.edded in $nglish 0urisprudence since earliest times.
%laims a.out the maxim7s -nglo/ 4axon roots are sometimes 8uite stirring
and display a peculiarly 3ritish capacity to create intellectual %amelots 9 on their
side of the %hannel. -n $nglish scholar named %lementi gave a tal6 on the maxim
at :;ttingen, :ermany in !<". He informed his continental audience a.out the
maxim7s uni8ue -nglo/4axon origins. The $nglish devotion to the principle of
=Innocent until proven guilty7 served, he said, to >emphasi?e a separation .etween
$ngland and its $uropean mainland in matters of law.@ Aith a missionary7s ?eal,
%lementi propounded the virtues of innocence while .eing guilty of explicating texts
in which the maxim was completely a.sent.
%lementi did not 6now that the maxim @Innocent until proven guilty@
cannot .e found in any $nglish court case or any 0urisprudential treatise .efore ca.
#BB /// at least I have not yet found it in one. He also did not seem to 6now that the
Crench, in spite of their legal system7s .eing .ased on re.ar.ative Roman
0urisprudence, did include an article in the Crench Declaration of the Rights of 2an
and %iti?en of <#! stating that @every man is presumed innocent until declared
guilty.@ These facts raise two 8uestions that will .e the su.0ect of this essay1 how did
this piece of $nglish pragmatism .ecome a part of the Romanist Crench tradition
and how and when did the maxim surface in the -nglo/-merican traditionD
3efore we em.ar6, a few remar6s a.out what we are loo6ing for. Ae are
not loo6ing for the general notion of presumption or assumption of innocence. That
notion is remar6a.ly widespread in every legal system that I7ve loo6ed at /// except
the most primitive. It may even .e there too, .ut there were no 0urists to express the
idea. Ae are also not loo6ing for the modern notion of presumption of innocence in
-merican law. That notion has .een the su.0ect of much de.ate that, as far as I can
tell, now centers around the 8uestion1 what does presumption of innocence mean in
the context of the 0udicial process and how does it differ from reasona.le dou.tD Ae
are loo6ing for the maxim, >- person is presumed innocent until proven guilty,E and
we are loo6ing of the rights of due process that the maxim aphoristically expressed
in earlier 0urisprudence. 3y the end of my essay, I hope to have proven that the
maxim and the norm it expressed were core principles of earlier 0urisprudence,
whose original meaning has .een eviscerated, or at least radically changed, in
modern -merican 0urisprudence. -s this paper will also attempt to demonstrate,
the maxim .egan life as a norm that articulated a cluster of rights protecting
litigants. In -merican law, it has .ecome a notion, an assumption, with very little
content.
Ae can 6now exactly when the maxim formally entered -merican law1
through a 4upreme %ourt decision of #!", %offin vs. U.4. - lower court had refused
to instruct the 0ury that @The law presumes that persons charged with crime are
innocent until they are proven .y competent evidence to .e guilty@. The appeal to
the 4upreme %ourt was .ased in part on the lower courtFs refusal.
-lthough the lower court re0ected the maxim, the 0udge did instruct the 0ury
that @3efore you can find any one of the defendants guilty you must .e satisfied of
his guilt as charged in some of the counts of the indictment .eyond a reasona.le
dou.t.@ The lower court then instructed the 0ury at great length on the doctrine of
reasona.le dou.t and its relationship to evidence. The 4upreme %ourt saw its tas6
as determining whether the lower court had violated the defendantsF rights .y not
instructing the 0ury on presumption of innocence and whether reasona.le dou.t was
essentially the same as presumption of innocence.
Gustice $dward Douglas Ahite wrote the ma0ority opinion. Cor a legal
historian, his analysis is a da??ling display of legal history /// even if most of it is
wrong. To prove the anti8uity of @Innocent until &roven :uilty@ Ahite cited a story
from the late anti8ue Roman historian, -mmianus 2arcellinus, and texts from
GustinianFs Digest and %ode, &ope :regory IHFs Decretales, a decretal of &ope
Innocent III, and :iuseppe 2ascardi7s De pro.ationi.us, all of these wor6s, except
for -mmianus, from the continental law. None of the texts, unfortunately, contained
the maxim. Not one of them was from $nglish law.
Ahen Ahite turned to the -nglo/-merican tradition, he found the principle
clearly articulated in a num.er of nineteenth/century treatises on evidence and
criminal law. The 0urists Ahite cited were Ailliam Aills, IJ #*BK Ln circumstantial
$vidence, 4imon :reenleaf, Ln the Maw of $vidence I<#(/#'(K, and Ailliam 3est,
I#B!/#*!K Ln &resumptions. Lf these 0urists 3est is the only one who explicitly
states that it is a @maxim of law, that every person must .e presumed innocent until
proven guilty.@
Gustice Ahite did try and trace the maxim in the $nglish common law
tradition .ut could only find one piece of evidence. He cited an anonymous author of
an article in the North -merican Review of #' who stated that the maxim is first
found in a treatise on evidence .y an Irish 0urist named Meonard 2acNally. Ahite
concluded that even @if the principle had not yet found formal expression in the
common law writers at an earlier date, yet the practice which flowed from it has
existed in the common law from earliest time.@
In %offin v. U.4. Gustice Ahite ordained Meonard 2acNally I<'+/#+BK
as the midwife of @Innocent Until &roven :uilty7s@ entrance into the -merican
common law tradition. Aho is heD He was .orn in Du.lin in <'+. -n am.itious
sort, he was called to the Irish .ar in <<* and to the $nglish .ar in <#(. -t the
same time he .egan to write lyrics for musicals, some of which were performed in
%ovent :arden and other Mondon theaters. In <<! @The -potheosis of &unch1 -
4atirical 2as8ue@ was performed, followed .y thirteen other plays .etween <<!
and <#!. In anticipation of the pullulation of romantic medieval themes in the
nineteenth century, he entitled one play @Ro.in Hood, or 4herwood Corest, a comic
opera@ and another @Richard %oeur de Mion1 -n Historical Romance.@ -lthough
light fare, sort of a .argain .asement :il.ert and 4ullivan, 2acNally does merit a
mention in The :rove Dictionary of 2usic and 2usicians.
The anonymous author of the Dictionary of National 3iography7s
article on 2acNally alleged that he was @no great lawyer@ .ut an @astute and
elo8uent advocate.@ His dismissal of 2acNallyFs legal s6ills does the Irish .arrister
a grave disservice. The DN37s author did not reali?e that 2acNallyFs The Rules of
$vidence on &leas of the %rown illustrated from &rinted and 2anuscript Trials and
%ases, pu.lished in Du.lin and Mondon #B+ was immediately transported across
the -tlantic and printed in &hiladelphia #B" and reprinted in #. Lne cannot
read -merican treatises on evidence and presumption in the first half of the
nineteenth century without stum.ling over 2acNally.
2acNally was particularly important for the development of rules governing
evidence and procedure in criminal cases .ecause he had represented a num.er of
United Irishmen accused of treason. He 8uotes a large num.er of his own cases in
his .oo6. It is no flu6e that treason led 2acNally to consider the rules of evidence
more carefully than previous writers. The cases that society has found most heinous
have always .een those in which the rules of fair and 0ust procedure have come
under attac6.
The rules of procedure for cases of treason were still su.stantially different
from the normal rules of criminal procedure in eighteenth/century Ireland. During
2acNallyFs lifetime the same rules of due process en0oyed .y $nglish defendants
were not extended to Irishmen defendants in treason trials. -lthough two statutes of
Ning $dward OI and another of Ailliam III re8uired two witnesses for any
conviction of treason, this procedural nicety was not extended to Irishmen.
2acNally emphasi?ed the presumption of innocence for those accused of treason
and 0ustified applying the same rules of due process to them as to other defendants
of criminal offences. His defense of Irish rights was fierce, and he argued
vehemently for the rights of defendants, often using examples from cases in which he
had participated. -lthough 2acNally never, pace The North -merican Review and
Ahite, 8uoted our maxim, he came very close to stating the principle when he
discussed the two witness rule for cases of treason .y citing %esare 3eccaria.
In 3eccariaFs 0udgment, one witness is not sufficient5 for whilst the
accused denies what the other affirms, truth remains suspended, and the
right that every one has to .e .elieved innocent turns the .alance in his
favour.
- century later Gustice Ahite may have used this passage from 2acNally to plant
the doctrine of presumption of innocence firmly in -merican 0urisprudence. Met me
note an important caveat here1 Ahite does not give a specific citation, and from the
wording of his opinion, he may not have even loo6ed at 2acNally7s .oo6.
2acNally7s story does however have a dar6er side. -fter his death in
#+B the $nglish press revealed that 2acNally had played the role of a dou.le agent
since at least <!". Ahile he was representing Irish revolutionaries as their defense
attorney in court, he was .etraying them to the government .y passing on 6ey
information. He relayed all the details a.out the revolutionary activities that he
received from his clients to the government prosecutors. Crom #BB until his death
he received (BBl. a year for his trou.le. Lf this side of 2acNally, Gustice Ahite 6new
nothing.
Lne may as6, from where did 2acNally get his principlesD 2acNally
ac6nowledged 3eccaria, and, indeed, %esare did extoll presumption of innocence
several times in his famous treatise, Dei delitti e delle pene ILn crimes and
punishmentsK. He argued for always having two witnesses .efore one could .e
condemned for a criminal offence1
2ore than one witness is needed, .ecause, so long as one party affirms and
the other denies, nothing is certain and the right triumphs that every man
has to .e .elieved innocent.
- few pages later, 3eccaria repeated the same argument when, in the most
passionate page of his tract, he assailed torture.
either the crime is certain or it is not5 if it is certain, then no other
punishment is called for than what is esta.lished .y law and other torments
are superfluous .ecause the criminalFs confession is superfluous5 if it is not
certain, then according to the law, you ought not torment an innocent
.ecause such is a man whose crimes have not .een proven.
2acNally relied on %esare 3eccaria to 0ustify presumption of innocence. 3ut
the story is much longer and more complicated than the o.vious lin6 that I have
shown .etween 3eccaria, 2acNally, and Gustice Ahite. The right to the
presumption of innocence had a long history that stretches .ac6 to the thirteenth
century. It is to the 0urisprudence of the Ius commune that I shall now turn in
search of the .irth of our maxim.
The Ius commune was the common law of $urope from the twelfth
to the seventeenth centuries. It was formed .y the fortuitous and contingent
con0uncture of Roman law, canon law, and, later, feudal law in the schools and
courts of medieval $urope. Its .irth too6 place in an age when momentous changes
in the practice of law were ta6ing place. Maw was evolving from unwritten
customary usages to written customary and legislated law. Gudicial procedure was in
a state of great flux. &rior to the twelfth century the 0udicial ordeal was a pervasive
mode of proof. During the course of the twelfth century, particularly in 4outhern
$urope, the ordeal was replaced .y the ordo iudiciarius, a mode of proof that was
.ased on Roman law, .ut whose rules were esta.lished .y the 0urists of the Ius
commune.
The change from modes of proof .ased on the ordeal to a mode of proof
.orrowed from the procedural norms of Roman law was profoundly unsettling for
twelfth/century society. &rocedure is the central part of any legal system. - society7s
sense of 0ustice is intimately lin6ed to its modes of proof. -s the ordo iudiciarius was
imposed on $urope7s courts .y ecclesiastical and secular authorities, there is clear
evidence that all strata of society had 8uestions a.out its legitimacy.
-lthough founded on Roman law, the ordo was new. It ta6es a leap of our
imaginations to understand the turmoil this change must have created. Ae might
pro0ect this turmoil into our own lives if we could imagine how we would react if our
traditional procedural system were suddenly replaced .y an alien set of procedural
norms. Gurists of the twelfth century needed to 0ustify these radical changes of
procedure. Puite surprisingly, they found their 0ustification in the Lld Testament
and ingeniously traced the origins of the ordo iudiciarius to :odFs 0udgment of
-dam and $ve in paradise. 3y doing so, they created a powerful myth 0ustifying the
ordo that retained its explanatory force until the seventeenth century.
The myth can give us insight into the wor6ings of the twelfth/century
0uridical mind. It7s originator was a 0urist named &aucapalea. He was the first to
lin6 the ordo iudiciarius to -dam and $ve. -round 'B he noted in his commentary
on :ratian7s Decretum that the ordo originated in paradise when -dam pleaded
innocent to the MordFs accusation of wrong doing. In :enesis (.!/+, the Mord .urst
into &aradise and demanded1 -dam u.i esD Lne may note that for a Deity His
8uestion was not particularly omniscient. -dam responded to the Mord7s accusation
of illegal apple pic6ing .y complaining @2y wife, whom Qou gave to me, gave Rthe
appleS to me, and I ate it.@ :od had, in other words entrapped -dam when he gave
him a wife. &aucapaleaFs point is su.tle .ut was not .e lost on later 0urists. -lthough
:od is omniscient, he too must summon defendants and hear their pleas. &aucapalea
added another piece of evidence that the ordo arose from the 3i.le. Ahen 2oses
decreed that the truth could .e found in the testimony of two or three witnesses, he
pronounced a .asic rule of evidence and confirmed the anti8uity of a system of
procedure accepted .y :od himself IDeuteronomy !.'K. 2ost importantly for our
story, the su.text of &aucapalea7s commentary clearly implies that if :od must
summon litigants to defend themselves, mere humans must also summon them and
presume that every defendant is innocent until proven guilty in court.
4o, from the middle of the twelfth century, the 0urists legitimated
the ordo .y placing its origins in the 3i.le. Aithout 8uestion this myth then
0ustified the ordo7s general adoption .y ecclesiastical courts /// and .y some secular
courts /// in the second half of the twelfth century. -lthough the general principle of
presumption of innocence was well esta.lished in the 0urisprudence of the Ius
commune .y the .eginning of the thirteenth century, that right was far from
a.solute. Notorious crimes provided the most clear infringement of the right. The
0urists did not see immediately that if :od must summon -dam to 0udgment, then
logic inexora.ly dictated that every defendant must .e summoned to trial. They did
universally agree that when a crime was heinous and notorious a 0udge could render
a decision against a defendant without a trial. In the middle of the thirteenth
century, one of the most distinguished 0urists of the age, Henricus of 4egusio,
summed up 0uristic thought when he declared that notorious crimes, especially those
committed against the %hurch, needed no formal 0uridical examination.
3efore presumption of innocence could .ecome an a.solute right, one more
crucial change had to occur. This change was .rought a.out in large part .y
&aucapalea7s argument that the ordo iudiciarius originated in the 3i.le. 3efore the
middle of the thirteenth century 0urists accepted the right of the prince or the 0udge
to ignore the rules of the 0udicial process .ecause they considered legal procedure to
.e a part of the civil law, that is positive law, and, therefore, completely under the
princeFs or 0udge7s authority. &aucapalea and the canonists introduced a different
story and a different paradigm. The inexora.le logic of their argument resulted in
the inevita.le conclusion that, if the ordo iudiciarius can first .e found in the Lld
Testament, and if :od had to respect the rights of defendants, then the rules of
procedure must transcend positive law.
The implications of &aucapalea7s new paradigm evolved slowly in the
0urisprudence of the thirteenth century. The 3i.le was, afterall, the cornerstone of
human understanding of divine law, and, from :ratian on, the 0urists e8uated
divine law and natural law. %onse8uently, under the influence of &aucapalea,
.etween +'B and (BB the 0urists .egan to argue that the 0udicial process and the
norms of procedure were not derived from civil law, .ut from natural law or the law
of nations, the ius gentium. %onse8uently, the fundamental rules of procedure could
not .e omitted .y princes or 0udges. The right of a defendant to have his case heard
in court was a.solute, not contingent.
The 0urists who first discussed this pro.lem often referred to a gloss of
&ope Innocent IO when they redefined the origins of @actiones.@ Indeed, although he
does not 8uite meet the issue, Innocent was the first 0urist to .roach the 8uestion
whether the prince has an a.solute right to ta6e an action away from a su.0ect.
Mater two civilians, Ldofredus and :uido of 4u??ara connected the right to
own property with the right to o.tain a remedy for a wrong. If property had .een
esta.lished .y natural law, remedies for the recovery of property must also .e
protected .y natural law. They stopped short, however, of arguing that actions
derived from natural law.
Lnce the 0urists decided that the norms of procedure were part of natural
law, they 8uic6ly saw that essential rights of defendants could not .e transgressed.
The most sophisticated and complete summing up of 0uristic thin6ing a.out the
rights of defendants in the late thirteenth and early fourteenth centuries is found in
the wor6 of a Crench canonist, Gohannes 2onachus who died in ((. Ahile
glossing a decretal of &ope 3oniface OIII IRem non novamK he commented
extensively on the rights of a defendant. He .egan .y as6ing the 8uestion1 could the
pope, on the .asis of this decretal, proceed against a person if he had not cited himD
Gohannes concluded that the pope was only a.ove positive law, not natural law.
4ince a summons had .een esta.lished .y natural law, the pope could not omit it. He
argued that no 0udge, even the pope, could come to a 0ust decision unless the
defendant was present in court. Ahen a crime is notorious, the 0udge may proceed
in a summary fashion in some parts of the process, .ut the summons and 0udgment
must .e o.served. He argued that a summons to court IcitatioK and a 0udgment
IsententiaK were integral parts of the 0udicial process .ecause :enesis (.!/+ proved
that .oth were necessary. :od had .een .ound to summon -dam5 human 0udges
must do the same. Then he formulated an expression of a defendant7s right to a trial
and to due process with the following words1 a person is presumed innocent until
proven guilty Iitem 8uil.et presumitur innocens nisi pro.etur nocensK. This fact is a
dou.le .low to -nglophilic sensi.ilities1 not only is the maxim not found in -nglo/
4axon source, it was not even expressed $nglishT
This then is the ultimate irony of the story1 rather than a sturdy -nglo/
4axon, a cardinal of the Roman church, a Crenchman, a canonist, Gohannes
2onachus was the first $uropean 0urist to recogni?e the inexora.le logic of :odFs
0udgment of -dam1 :od could not condemn -dam without a trial .ecause even :od
must presume that -dam was innocent until proven guilty. Lther canonists played
with the idea of defendants7 rights. They coined a prover. that :od must even give
the devil his day in court. GohannesF commentary on Rem non novam eventually
.ecame the Lrdinary :loss of a late medieval collection of canon law 6nown as the
$xtravagantes communes. This collection and its gloss circulated in hundreds of
manuscripts and scores of printed editions until the seventeenth century. 4o 9 the
answer to our 8uestion, who first uttered the principle, Innocent until proven guilty
9 a perfect 8uestion for the legal edition of Trivial &ursuit 9 is the Crench canonist
Gohannes 2onachus. 4ince his gloss was read .y the 0urists of the Ius commune to
the time of %esare 3eccaria, it was a primary vehicle for transmitting the principle
to later generations of 0urists.
Roman law, canon law, the Ius commune1 from these sources spring that
great -nglo/4axon principle1 - person is presumed innocent until proven guilty. The
8uestion remains, however, how deeply did this doctrine inform the 0urisprudence
and court practice of late medieval and early modern $uropeD In this essay I shall
give only a .rief outline of the pro.lem and a rough s6etch of the storyFs main
features up to the time with which we .egan, the time of 3eccaria and 2acNally.
- glance at the standard accounts of procedure and law after the thirteenth
century would seem to render the opinion risi.le that any conception of @innocent
until proven guilty@ existed .efore the eighteenth century in $uropean
0urisprudence. In8uisitorial courts searching out heresy seem the antithesis of due
process and contrary to any conception of defendants7 rights. Torture, secret
accusations, and ar.itrary procedural in0ustices seem the norm rather than the
exception. 4ome modern scholars have argued that the courts felt an o.ligation to
punish crimes, it was a matter of pu.lic utility, and that procedural short cuts to the
@truth@ li6e torture were means through which these courts fulfilled their
o.ligations.
4o the 8uestion is, how did a defendant7s right to a presumption of innocence
survive in late medieval and early modern 0urisprudenceD It has .een true in the
past and remains true today that procedural rules are .ro6en and rights violated
most often when 0udges have faced crimes that stri6e societyFs most sensitive nerves.
The cases in which I have found that the presumption of innocence is discussed
again and again are those that dealt with marginal groups, especially heretics,
witches, and Gews.
Met me give a few examples. In (!# or (!!, 4alamon and his son
2oyses, Gews living in Rimini, had .een accused .y several %hristian women of
having had sexual relations with them. The case was heard .y a Cranciscan
in8uisitor, Gohannes de &ogiali. The case fell under the 0urisdiction of the In8uisition
.ecause 4alamon and 2oyses had used heretical arguments to seduce the women.
Ahen they encountered virtuous resistance from the women 4alamon and 2oyses
told them that %hristian women who fornicated with Gewish men did not sin. The
women testified .efore the In8uisition that they capitulated to 4alamon and 2oyses
only after having .een convinced .y their clever arguments. Ae do not 6now the
facts .ehind this case, only its outcome as reported in the papal court. -lthough the
.are facts might ma6e us thin6 of this case as material for a 3occaccian farce,
4alamon and 2oyses did not thin6 the accusation was amusing. The in8uisitorFs
summary of the case is of great interest. He called witnesses .efore him, examined
them, and too6 their oaths to tell the truth. In the end he did not find that the
accusations against 4alamon and 2oyses were 0uridically and legitimately proven. It
is not often that we find a 0udge 0ustifying his decision in the 2iddle -ges. In this
case, Gohannes de &ogiali did. He examined the facts and concluded that @it was
.etter to leave a crime unpunished than to condemn an innocent person.@ 2any of
you will recogni?e in these words >3lac6stone7s ratioE1 >the law holds that it is
.etter that ten guilty persons escape than one person suffer,E that entered $nglish
law from the Ius commune through Cortescue.
Gohannes had to choose .etween two conceptions of order1 that crimes
should .e punished in the pu.lic interest or that defendants should .e presumed
innocent if proofs were insufficient, even in a delicate case where an outsider had
violated more than 0ust the pu.lic order. Gohannes also had to choose .etween a
standard of 0ustice for %hristians and a standard for Gews. Ahen 0udges and 0urists
as6ed themselves that 8uestion in the fifteenth and sixteenth century, the theoretical
answer was invaria.ly the same1 Gews had the same rights of due process as
%hristians. -nd if proofs failed, they were presumed innocent. To .e sure, the theory
did not always find its way into the courtroom, .ut the rules were repeated again
and again in papal mandates sent to local 0udges and to in8uisitorial courts. In "*!
&ope &aul II confirmed the petition of the $mperor Crederic6 III that a.solved
%hristian 0udges, notaries, and scri.es who participated in cases involving Gews
from any wrong doing. 4ome %hristian priests had refused to a.solve them from
their sins unless they did penance for their roles in court aiding Gews. @Gustice,@
&ope &aul o.served, @ought to .e common to all, %hristian or Gew.@ Mater popes
issued decretals that specified in great detail the procedural protections that Gews
must .e given. - letter of &ope 4ixtus IO in "#+ mandated that Gews should receive
the names of their accusers, should .e a.le to present legitimate exceptions, proofs,
and defenses to the court, and, if these rights were violated, could appeal to Rome.
Crom the num.er of times the Roman curia repeated these admonitions over the
next fifty years, theory and practice may not have always happily coincided.
4everal sixteenth/century letters emphasi?ed a GewFs right to a defense, to have an
advocate, and to receive money from supporters for a defense in heresy and
apostasy trials. -s &ope &aul III declared in '(', @no one should .e deprived of a
defense, which is esta.lished .y the law of nature.@ The right to a defense, a lawyer,
and the means to conduct a defense was an o.vious extension of the rights enshrined
.y the maxim @Innocent until &roven :uilty.@ 3y way of contrast, the common law
did not recogni?e the right of a criminal defendant to counsel in treason trials until
*!*.
The sixteenth century .ecame a great age for criminal law and procedure
in the Ius commune. $arlier 0urists had written tracts on torture, evidence, heresy
and witchcraft trials, .ut none had written a detailed tract on criminal procedure.
Crom the thirteenth to fifteenth centuries, treatises on criminal procedure were,
with only a few exceptions, short and schematic. During the sixteenth century, the
0urists synthesi?ed the 0urisprudence of the Ius commune, and they wrote great
tracts on the rights of criminal defendants. The names of these proceduralists are
not well 6nown1 :iuseppe 2ascardi, :iovanni Muigi Riccio, :iulio %laro, and
:iacomo 2enochio are not household names, even to legal historians. Lne of the
great figures in this development was &rospero Carinacci who lived from '""/*#.
He was educated in &erugia and 8uic6ly gained experience on .oth sides of the
.ench. In '*< he .ecame the general commissioner in the service of the Lrsini of
3racciano5 the next year he too6 up residence in Rome as a mem.er of the papal
camera. However, in '<B he was imprisioned for an un6nown crime. Megal
pro.lems hounded him for the rest of his life. He lost an eye in a fight, was stripped
of his positions, and was even accused of sodomy. In spite of his difficulties, &ope
%lement OIII reinstated him to the papal court in '!*. He .egan his most
important wor6, &raxis et theorica criminalis, in '# and put the finishing touches
on it .y *B.
CarinacciFs treatise .ristles with the presumption of innocence. The issue
arose in several different contexts. He insisted that the exception of innocence was
privileged in law and could never .e a.olished .y statute5 if a statute would a.olish
a defendantFs right to a defense, it should .e interpreted as only .eing un0ust or
calumnious defenses. $ven the pope could not ta6e away the right of a defendant to
prove his innocence, since that right was grounded in the law of nature. Mi6e other
0urists who wrote on criminal procedure, Carinacci distinguished .etween
presumptions of law and of men1 a presumption of man was, for example, that in
dou.t, a man was presumed to .e good.
-nother great voice of reason in criminal procedure was Crederic6 von
4pee I'!/*('K. 4pee was a 0urist, Gesuit, poet /// literary critics are still spilling
in6 on his most important poem, Trut?nachtigall. 2ost importantly, he was a critic
of intolerance and ignorance. -s 3eccaria would a century later, he condemned
torture, the persecution of witches, and other crimes that enraged princes and the
ra..le. Unfortunately for him, $urope was not yet ready for his voice of reason. He
was stripped of his academic positions and condemned .y his order after the
pu.lication of %autio criminalis, his famous treatise on procedure in witchcraft
trials. He died young at Trier while helping to treat soldiers infected .y the plague of
*('.
@2ust we assume that witches are guiltyD@ he as6ed in %autio
criminalis. @ThatFs a stupid 8uestion,@ he answered. His condemnation of torture
was a.solute. He too6 his arguments from Carinacci. His rhetoric inspired 3eccaria
a century later1
%an a defendant who does not confess under torture .e condemnedD @I
assume,@ wrote 4pee, @that no one can .e condemned unless his guilt is
certain5 an innocent person ought not .e 6illed. $veryone is presumed
innocent, who is not 6nown to .e guilty.@
There is some irony in this part of the story too. 3eccaria and &ietro Oerri,
3eccaria7s muse who wrote a significant tract on torture pu.lished long after Dei
delitti, pro.a.ly .orrowed 4peeFs thought and adapted his words when they wrote
a.out torture. Qet 3eccaria and Oerri condemned 4pee, Carinacci and other 0urists
at the same time that they appropriated their ideas, accusing them of .eing soft on
torture.
-s -lessandro 2an?oni elo8uently pointed out, Oerri
overemphasi?ed his contri.ution to the intellectual arguments that underpinned his
condemnation of torture and de/emphasi?ed the contri.ution of earlier 0urists. -s
part of 2an?oniFs account of a 2ilanese cause cUlV.re in which the 0udges sent
several innocent men to the rac6 with almost no evidence of their guilt, he
demonstrated that Oerri had seriously distorted the legal tradition.
Crom this evidence and from all we 6now of the practice of torture in their
own time, one can undou.tedly conclude that the interpreters of criminal
procedure left the theory and practice of torture much, .ut much, less
.ar.arous than they found it. Lf course it would .e a.surd to attri.ute this
diminution of evil to one cause alone, .ut I thin6 that among the many causes
that it would .e reasona.le to count the repeated reproofs and warnings,
renewed pu.licly, century after century, .y 0urists to whom it is certainly
granted a definite authority over the practice of the courts.
2an?oni had extraordinary insight into the evolution of norms in $uropean
0urisprudence. He perceived extraordinarily well the complicated dialectic through
which 0urists argued with, .orrowed from, and added to the thought of their
predecessors and, in their wor6s, spo6e across the centuries to their successors. I
might add, in this essay dedicated to the modern scholar who has done most to
reintroduce the norms of the Ius commune into contemporary scholarship, that the
0urists and 2an?oni have had a worthy successor.
Ae have come full circle1 from Gustice Ahite to 2acNally to 3eccaria to
Gohannes 2onachus and .ac6 to 3eccaria. The evolution of the norm that every
person is presumed innocent until proven guilty is a case study of the long process
through which principles of law emerge, slowly, hesitantly, sometimes painfully, in
0urisprudence. The maxim, innocent until proven guilty was .orn in the late
thirteenth century, preserved in the universal 0urisprudence of the Ius commune,
employed in the defense of marginali?ed defendants, Gews, heretics, and witches, in
the early modern period, and finally deployed as a powerful argument against
torture in the sixteenth, seventeenth and eighteenth centuries. 3y this last route it
entered the 0urisprudence of the common law through a thoroughly disreputa.le
Irishman7s having read a .oo6 on criminal punishments .y an Italian. 3ut .ecause
it was a transplant from the Ius commune, it entered the world of -merican law in a
very different form. It no longer was a maxim that signified the .undle of rights that
was due to every defendant. 3ecause -merican law did not inherit the 0urisprudence
of the Ius commune directly, its .roader meanings were lost during the transplant.
%onse8uently, the focus in -merican has .een entirely on its meaning for the
presenting of evidence and for procedural rules in the courtroom. In the
0urisprudence of the Ius commune, the maxim summari?ed the procedural rights
that every human .eing should have no matter what the person7s status, religion, or
citi?enship. The maxim protected defendants from .eing coerced to give testimony
and to incriminate themselves. It granted them the a.solute right to .e summoned,
to have their case heard in an open court, to have legal counsel, to have their
sentence pronounced pu.lically, and to present evidence in their defense. - 0urist of
the Ius commune would .e pu??led that today we can em.race >a person is innocent
until proven guiltyE and still deny human .eings a hearing under certain
circumstances. Cor them the maxim meant >no one, a.solutely no one, can .e denied
a trial under any circumstances.E -nd that everyone, a.solutely everyone, had the
right to conduct a vigorous, thorough defense.
In a world that is cho6ed .y the narrow hori?ons of legal systems imprisoned
.y national sovereignties, this story is the .est argument I 6now for returning to a
conception of law that .road, comparative, and open to the 0urisprudence of other
legal systems.