Published in A Ennio Cortese (3 Volumes. Roma: Il Cigno Galileo Galilei Edizioni, 2001) a revised version translated into Italian as "Innocente fino a prova contraria: Le origini di una massima giuridica," Processo penale e tutela dei diritti nell’ordinamento canonico, ed. Davide Cito (Milano: Giuffré Editore, 2005) 33-61, and also revised and published in English in 63 The Jurist (2003) 106-124 and in The Penal Process and the Protection of Rights in Canon Law: Proceedings of a Conference Held at the Pontifical University of the Holy Cross, Rome, March 25-26, 2004, edited by Patricia Dugan (Collection Gratianus Series; Montréal: Wilson & Lafleur, 2005) 45-66.

 

Innocent Until Proven Guilty:

The Origins of a Legal Maxim

 

Kenneth Pennington

 

 

Papal Justice and Due Process

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 1948 under article eleven, section one. The maxim also found a place in the European Convention for the Protection of Human Rights in 1953 [as article 6, section 2] and was incorporated into the United Nations International Covenant on Civil and Political Rights [as article 14, section 2]. This was a satisfying development for Americans because there are few maxims that have a greater resonance in Anglo-American, common law jurisprudence. The Anglo-American reverence for the maxim does pose an interesting conundrum: it cannot be found in Magna Carta, the English Bill of Rights of 1689, the Declaration of Independence, or in the Constitution of the United States; and not, I might add, in the works of the great English jurists, Bracton, Coke, and Blackstone. Nevertheless, some scholars have claimed that the maxim has been firmly embedded in English jurisprudence since earliest times.

            Claims about the maxim’s Anglo-Saxon roots are sometimes quite stirring and display a peculiarly British capacity to create intellectual Camelots — on their side of the Channel. An English scholar named Clementi gave a talk on the maxim at Göttingen, Germany in 1974. Footnote He informed his continental audience about the maxim’s unique Anglo-Saxon origins. The English devotion to the principle of ‘Innocent until proven guilty’ served, he said, to “emphasize a separation between England and its European mainland in matters of law." With a missionary’s zeal, Clementi propounded the virtues of innocence while being guilty of explicating texts in which the maxim was completely absent.

            Clementi did not know that the maxim "Innocent until proven guilty" cannot be found in any English court case or any jurisprudential treatise before ca. 1800 --- at least I have not yet found it in one. He also did not seem to know that the French, in spite of their legal system’s being based on rebarbative Roman jurisprudence, did include an article in the French Declaration of the Rights of Man and Citizen of 1789 stating that "every man is presumed innocent until declared guilty." Footnote These facts raise two questions that will be the subject of this essay: how did this piece of English pragmatism become a part of the Romanist French tradition and how and when did the maxim surface in the Anglo-American tradition?

            Before we embark, a few remarks about what we are looking for. We are not looking for the general notion of presumption or assumption of innocence. That notion is remarkably widespread in every legal system that I’ve looked at --- except the most primitive. It may even be there too, but there were no jurists to express the idea. We are also not looking for the modern notion of presumption of innocence in American law. That notion has been the subject of much debate that, as far as I can tell, now centers around the question: what does presumption of innocence mean in the context of the judicial process and how does it differ from reasonable doubt? We are looking for the maxim, “A person is presumed innocent until proven guilty,” and we are looking of the rights of due process that the maxim aphoristically expressed in earlier jurisprudence. By the end of my essay, I hope to have proven that the maxim and the norm it expressed were core principles of earlier jurisprudence, whose original meaning has been eviscerated, or at least radically changed, in modern American jurisprudence. Footnote As this paper will also attempt to demonstrate, the maxim began life as a norm that articulated a cluster of rights protecting litigants. In American law, it has become a notion, an assumption, with very little content.

            We can know exactly when the maxim formally entered American law: through a Supreme Court decision of 1894, Coffin vs. U.S. A lower court had refused to instruct the jury that "The law presumes that persons charged with crime are innocent until they are proven by competent evidence to be guilty". The appeal to the Supreme Court was based in part on the lower court's refusal. Footnote

            Although the lower court rejected the maxim, the judge did instruct the jury that "Before you can find any one of the defendants guilty you must be satisfied of his guilt as charged in some of the counts of the indictment beyond a reasonable doubt." The lower court then instructed the jury at great length on the doctrine of reasonable doubt and its relationship to evidence. The Supreme Court saw its task as determining whether the lower court had violated the defendants' rights by not instructing the jury on presumption of innocence and whether reasonable doubt was essentially the same as presumption of innocence.

            Justice Edward Douglas White wrote the majority opinion. Footnote For a legal historian, his analysis is a dazzling display of legal history --- even if most of it is wrong. To prove the antiquity of "Innocent until Proven Guilty" White cited a story from the late antique Roman historian, Ammianus Marcellinus, and texts from Justinian's Digest and Code, Pope Gregory IX's Decretales, a decretal of Pope Innocent III, Footnote and Giuseppe Mascardi’s De probationibus, all of these works, except for Ammianus, from the continental law. Footnote None of the texts, unfortunately, contained the maxim. Not one of them was from English law.

            When White turned to the Anglo-American tradition, he found the principle clearly articulated in a number of nineteenth-century treatises on evidence and criminal law. The jurists White cited were William Wills, († 1860) On circumstantial Evidence, Simon Greenleaf, On the Law of Evidence (1783-1853), and William Best, (1809-1869) On Presumptions. Of these jurists Best is the only one who explicitly states that it is a "maxim of law, that every person must be presumed innocent until proven guilty."

            Justice White did try and trace the maxim in the English common law tradition but could only find one piece of evidence. He cited an anonymous author of an article in the North American Review of 1851 who stated that the maxim is first found in a treatise on evidence by an Irish jurist named Leonard MacNally. White 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." Footnote

            In Coffin v. U.S. Justice White ordained Leonard MacNally (1752-1820) as the midwife of "Innocent Until Proven Guilty’s" entrance into the American common law tradition. Footnote Who is he? He was born in Dublin in 1752. An ambitious sort, he was called to the Irish bar in 1776 and to the English bar in 1783. At the same time he began to write lyrics for musicals, some of which were performed in Covent Garden and other London theaters. In 1779 "The Apotheosis of Punch: A Satirical Masque" was performed, followed by thirteen other plays between 1779 and 1789. In anticipation of the pullulation of romantic medieval themes in the nineteenth century, he entitled one play "Robin Hood, or Sherwood Forest, a comic opera" and another "Richard Coeur de Lion: An Historical Romance." Although light fare, sort of a bargain basement Gilbert and Sullivan, MacNally does merit a mention in The Grove Dictionary of Music and Musicians. Footnote

            The anonymous author of the Dictionary of National Biography’s article on MacNally alleged that he was "no great lawyer" but an "astute and eloquent advocate." Footnote His dismissal of MacNally's legal skills does the Irish barrister a grave disservice. The DNB’s author did not realize that MacNally's The Rules of Evidence on Pleas of the Crown illustrated from Printed and Manuscript Trials and Cases, published in Dublin and London 1802 was immediately transported across the Atlantic and printed in Philadelphia 1804 and reprinted in 1811. One cannot read American treatises on evidence and presumption in the first half of the nineteenth century without stumbling over MacNally.

            MacNally was particularly important for the development of rules governing evidence and procedure in criminal cases because he had represented a number of United Irishmen accused of treason. He quotes a large number of his own cases in his book. It is no fluke that treason led MacNally to consider the rules of evidence more carefully than previous writers. The cases that society has found most heinous have always been those in which the rules of fair and just procedure have come under attack.

            The rules of procedure for cases of treason were still substantially different from the normal rules of criminal procedure in eighteenth-century Ireland. During MacNally's lifetime the same rules of due process enjoyed by English defendants were not extended to Irishmen defendants in treason trials. Although two statutes of King Edward VI and another of William III required two witnesses for any conviction of treason, this procedural nicety was not extended to Irishmen. MacNally emphasized the presumption of innocence for those accused of treason and justified 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. Although MacNally never, pace The North American Review and White, quoted our maxim, he came very close to stating the principle when he discussed the two witness rule for cases of treason by citing Cesare Beccaria.

In Beccaria's judgment, one witness is not sufficient; for whilst the accused denies what the other affirms, truth remains suspended, and the right that every one has to be believed innocent turns the balance in his favour. Footnote

A century later Justice White may have used this passage from MacNally to plant the doctrine of presumption of innocence firmly in American jurisprudence. Let me note an important caveat here: White does not give a specific citation, and from the wording of his opinion, he may not have even looked at MacNally’s book.

            MacNally’s story does however have a darker side. After his death in 1820 the English press revealed that MacNally had played the role of a double agent since at least 1794. While he was representing Irish revolutionaries as their defense attorney in court, he was betraying them to the government by passing on key information. He relayed all the details about the revolutionary activities that he received from his clients to the government prosecutors. From 1800 until his death he received 300l. a year for his trouble. Of this side of MacNally, Justice White knew nothing. Footnote

            One may ask, from where did MacNally get his principles? MacNally acknowledged Beccaria, and, indeed, Cesare did extoll presumption of innocence several times in his famous treatise, Dei delitti e delle pene (On crimes and punishments). He argued for always having two witnesses before one could be condemned for a criminal offence:

More than one witness is needed, because, so long as one party affirms and the other denies, nothing is certain and the right triumphs that every man has to be believed innocent. Footnote

A few pages later, Beccaria repeated the same argument when, in the most passionate page of his tract, he assailed torture. Footnote

either the crime is certain or it is not; if it is certain, then no other punishment is called for than what is established by law and other torments are superfluous because the criminal's confession is superfluous; if it is not certain, then according to the law, you ought not torment an innocent because such is a man whose crimes have not been proven. Footnote

MacNally relied on Cesare Beccaria to justify presumption of innocence. Footnote But the story is much longer and more complicated than the obvious link that I have shown between Beccaria, MacNally, and Justice White. The right to the presumption of innocence had a long history that stretches back to the thirteenth century. It is to the jurisprudence of the Ius commune that I shall now turn in search of the birth of our maxim.

            The Ius commune was the common law of Europe from the twelfth to the seventeenth centuries. It was formed by the fortuitous and contingent conjuncture of Roman law, canon law, and, later, feudal law in the schools and courts of medieval Europe. Its birth took place in an age when momentous changes in the practice of law were taking place. Law was evolving from unwritten customary usages to written customary and legislated law. Judicial procedure was in a state of great flux. Prior to the twelfth century the judicial ordeal was a pervasive mode of proof. During the course of the twelfth century, particularly in Southern Europe, the ordeal was replaced by the ordo iudiciarius, a mode of proof that was based on Roman law, but whose rules were established by the jurists of the Ius commune. Footnote

            The change from modes of proof based on the ordeal to a mode of proof borrowed from the procedural norms of Roman law was profoundly unsettling for twelfth-century society. Footnote Procedure is the central part of any legal system. A society’s sense of justice is intimately linked to its modes of proof. As the ordo iudiciarius was imposed on Europe’s courts by ecclesiastical and secular authorities, there is clear evidence that all strata of society had questions about its legitimacy.

            Although founded on Roman law, the ordo was new. It takes a leap of our imaginations to understand the turmoil this change must have created. We might project this turmoil into our own lives if we could imagine how we would react if our traditional procedural system were suddenly replaced by an alien set of procedural norms. Jurists of the twelfth century needed to justify these radical changes of procedure. Quite surprisingly, they found their justification in the Old Testament and ingeniously traced the origins of the ordo iudiciarius to God's judgment of Adam and Eve in paradise. By doing so, they created a powerful myth justifying the ordo that retained its explanatory force until the seventeenth century.

            The myth can give us insight into the workings of the twelfth-century juridical mind. It’s originator was a jurist named Paucapalea. He was the first to link the ordo iudiciarius to Adam and Eve. Around 1150 he noted in his commentary on Gratian’s Decretum that the ordo originated in paradise when Adam pleaded innocent to the Lord's accusation of wrong doing. In Genesis 3.9-12, the Lord burst into Paradise and demanded: Adam ubi es? One may note that for a Deity His question was not particularly omniscient. Adam responded to the Lord’s accusation of illegal apple picking by complaining "My wife, whom You gave to me, gave <the apple> to me, and I ate it." God had, in other words entrapped Adam when he gave him a wife. Paucapalea's point is subtle but was not be lost on later jurists. Although God is omniscient, he too must summon defendants and hear their pleas. Paucapalea added another piece of evidence that the ordo arose from the Bible. When Moses decreed that the truth could be found in the testimony of two or three witnesses, he pronounced a basic rule of evidence and confirmed the antiquity of a system of procedure accepted by God himself (Deuteronomy 19.15). Most importantly for our story, the subtext of Paucapalea’s commentary clearly implies that if God must summon litigants to defend themselves, mere humans must also summon them and presume that every defendant is innocent until proven guilty in court. Footnote

                        So, from the middle of the twelfth century, the jurists legitimated the ordo by placing its origins in the Bible. Footnote Without question this myth then justified the ordo’s general adoption by ecclesiastical courts --- and by some secular courts --- in the second half of the twelfth century. Although the general principle of presumption of innocence was well established in the jurisprudence of the Ius commune by the beginning of the thirteenth century, that right was far from absolute. Notorious crimes provided the most clear infringement of the right. The jurists did not see immediately that if God must summon Adam to judgment, then logic inexorably dictated that every defendant must be summoned to trial. They did universally agree that when a crime was heinous and notorious a judge could render a decision against a defendant without a trial. In the middle of the thirteenth century, one of the most distinguished jurists of the age, Henricus of Segusio, summed up juristic thought when he declared that notorious crimes, especially those committed against the Church, needed no formal juridical examination. Footnote

            Before presumption of innocence could become an absolute right, one more crucial change had to occur. This change was brought about in large part by Paucapalea’s argument that the ordo iudiciarius originated in the Bible. Before the middle of the thirteenth century jurists accepted the right of the prince or the judge to ignore the rules of the judicial process because they considered legal procedure to be a part of the civil law, that is positive law, and, therefore, completely under the prince's or judge’s authority. Paucapalea and the canonists introduced a different story and a different paradigm. The inexorable logic of their argument resulted in the inevitable conclusion that, if the ordo iudiciarius can first be found in the Old Testament, and if God had to respect the rights of defendants, then the rules of procedure must transcend positive law.

            The implications of Paucapalea’s new paradigm evolved slowly in the jurisprudence of the thirteenth century. The Bible was, afterall, the cornerstone of human understanding of divine law, and, from Gratian on, the jurists equated divine law and natural law. Consequently, under the influence of Paucapalea, between 1250 and 1300 the jurists began to argue that the judicial process and the norms of procedure were not derived from civil law, but from natural law or the law of nations, the ius gentium. Consequently, the fundamental rules of procedure could not be omitted by princes or judges. The right of a defendant to have his case heard in court was absolute, not contingent.

            The jurists who first discussed this problem often referred to a gloss of Pope Innocent IV when they redefined the origins of "actiones." Footnote Indeed, although he does not quite meet the issue, Innocent was the first jurist to broach the question whether the prince has an absolute right to take an action away from a subject.

            Later two civilians, Odofredus and Guido of Suzzara connected the right to own property with the right to obtain a remedy for a wrong. If property had been established by natural law, remedies for the recovery of property must also be protected by natural law. They stopped short, however, of arguing that actions derived from natural law.

            Once the jurists decided that the norms of procedure were part of natural law, they quickly saw that essential rights of defendants could not be transgressed. The most sophisticated and complete summing up of juristic thinking about the rights of defendants in the late thirteenth and early fourteenth centuries is found in the work of a French canonist, Johannes Monachus who died in 1313. While glossing a decretal of Pope Boniface VIII (Rem non novam) he commented extensively on the rights of a defendant. He began by asking the question: could the pope, on the basis of this decretal, proceed against a person if he had not cited him? Johannes concluded that the pope was only above positive law, not natural law. Since a summons had been established by natural law, the pope could not omit it. He argued that no judge, even the pope, could come to a just decision unless the defendant was present in court. When a crime is notorious, the judge may proceed in a summary fashion in some parts of the process, but the summons and judgment must be observed. He argued that a summons to court (citatio) and a judgment (sententia) were integral parts of the judicial process because Genesis 3.9-12 proved that both were necessary. God had been bound to summon Adam; human judges must do the same. Then he formulated an expression of a defendant’s right to a trial and to due process with the following words: a person is presumed innocent until proven guilty (item quilbet presumitur innocens nisi probetur nocens). Footnote This fact is a double blow to Anglophilic sensibilities: not only is the maxim not found in Anglo-Saxon source, it was not even expressed English!

            This then is the ultimate irony of the story: rather than a sturdy Anglo-Saxon, a cardinal of the Roman church, a Frenchman, a canonist, Johannes Monachus was the first European jurist to recognize the inexorable logic of God's judgment of Adam: God could not condemn Adam without a trial because even God must presume that Adam was innocent until proven guilty. Other canonists played with the idea of defendants’ rights. Footnote They coined a proverb that God must even give the devil his day in court. Johannes' commentary on Rem non novam eventually became the Ordinary Gloss of a late medieval collection of canon law known as the Extravagantes communes. This collection and its gloss circulated in hundreds of manuscripts and scores of printed editions until the seventeenth century. Footnote So — the answer to our question, who first uttered the principle, Innocent until proven guilty — a perfect question for the legal edition of Trivial Pursuit — is the French canonist Johannes Monachus. Since his gloss was read by the jurists of the Ius commune to the time of Cesare Beccaria, it was a primary vehicle for transmitting the principle to later generations of jurists.

            Roman law, canon law, the Ius commune: from these sources spring that great Anglo-Saxon principle: A person is presumed innocent until proven guilty. The question remains, however, how deeply did this doctrine inform the jurisprudence and court practice of late medieval and early modern Europe? In this essay I shall give only a brief outline of the problem and a rough sketch of the story's main features up to the time with which we began, the time of Beccaria and MacNally.

            A glance at the standard accounts of procedure and law after the thirteenth century would seem to render the opinion risible that any conception of "innocent until proven guilty" existed before the eighteenth century in European jurisprudence. Inquisitorial courts searching out heresy seem the antithesis of due process and contrary to any conception of defendants’ rights. Torture, secret accusations, and arbitrary procedural injustices seem the norm rather than the exception. Some modern scholars have argued that the courts felt an obligation to punish crimes, it was a matter of public utility, and that procedural short cuts to the "truth" like torture were means through which these courts fulfilled their obligations.

            So the question is, how did a defendant’s right to a presumption of innocence survive in late medieval and early modern jurisprudence? It has been true in the past and remains true today that procedural rules are broken and rights violated most often when judges have faced crimes that strike society's 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 Jews.

            Let me give a few examples. In 1398 or 1399, Salamon and his son Moyses, Jews living in Rimini, had been accused by several Christian women of having had sexual relations with them. The case was heard by a Franciscan inquisitor, Johannes de Pogiali. The case fell under the jurisdiction of the Inquisition because Salamon and Moyses had used heretical arguments to seduce the women. When they encountered virtuous resistance from the women Salamon and Moyses told them that Christian women who fornicated with Jewish men did not sin. The women testified before the Inquisition that they capitulated to Salamon and Moyses only after having been convinced by their clever arguments. Footnote We do not know the facts behind this case, only its outcome as reported in the papal court. Although the bare facts might make us think of this case as material for a Boccaccian farce, Salamon and Moyses did not think the accusation was amusing. The inquisitor's summary of the case is of great interest. He called witnesses before him, examined them, and took their oaths to tell the truth. In the end he did not find that the accusations against Salamon and Moyses were juridically and legitimately proven. It is not often that we find a judge justifying his decision in the Middle Ages. In this case, Johannes de Pogiali did. He examined the facts and concluded that "it was better to leave a crime unpunished than to condemn an innocent person." Footnote Many of you will recognize in these words “Blackstone’s ratio”: “the law holds that it is better that ten guilty persons escape than one person suffer,” that entered English law from the Ius commune through Fortescue. Footnote

            Johannes had to choose between two conceptions of order: that crimes should be punished in the public interest or that defendants should be presumed innocent if proofs were insufficient, even in a delicate case where an outsider had violated more than just the public order. Footnote Johannes also had to choose between a standard of justice for Christians and a standard for Jews. When judges and jurists asked themselves that question in the fifteenth and sixteenth century, the theoretical answer was invariably the same: Jews had the same rights of due process as Christians. And if proofs failed, they were presumed innocent. To be sure, the theory did not always find its way into the courtroom, but the rules were repeated again and again in papal mandates sent to local judges and to inquisitorial courts. In 1469 Pope Paul II confirmed the petition of the Emperor Frederick III that absolved Christian judges, notaries, and scribes who participated in cases involving Jews from any wrong doing. Some Christian priests had refused to absolve them from their sins unless they did penance for their roles in court aiding Jews. "Justice," Pope Paul observed, "ought to be common to all, Christian or Jew." Footnote Later popes issued decretals that specified in great detail the procedural protections that Jews must be given. A letter of Pope Sixtus IV in 1482 mandated that Jews should receive the names of their accusers, should be able to present legitimate exceptions, proofs, and defenses to the court, and, if these rights were violated, could appeal to Rome. Footnote From the number of times the Roman curia repeated these admonitions over the next fifty years, theory and practice may not have always happily coincided. Footnote Several sixteenth-century letters emphasized a Jew's right to a defense, to have an advocate, and to receive money from supporters for a defense in heresy and apostasy trials. Footnote As Pope Paul III declared in 1535, "no one should be deprived of a defense, which is established by the law of nature." Footnote The right to a defense, a lawyer, and the means to conduct a defense was an obvious extension of the rights enshrined by the maxim "Innocent until Proven Guilty." By way of contrast, the common law did not recognize the right of a criminal defendant to counsel in treason trials until 1696. Footnote

            The sixteenth century became a great age for criminal law and procedure in the Ius commune. Earlier jurists had written tracts on torture, evidence, heresy and witchcraft trials, but none had written a detailed tract on criminal procedure. From the thirteenth to fifteenth centuries, treatises on criminal procedure were, with only a few exceptions, short and schematic. Footnote During the sixteenth century, the jurists synthesized the jurisprudence of the Ius commune, and they wrote great tracts on the rights of criminal defendants. The names of these proceduralists are not well known: Giuseppe Mascardi, Giovanni Luigi Riccio, Giulio Claro, and Giacomo Menochio are not household names, even to legal historians. One of the great figures in this development was Prospero Farinacci who lived from 1544-1618. He was educated in Perugia and quickly gained experience on both sides of the bench. In 1567 he became the general commissioner in the service of the Orsini of Bracciano; the next year he took up residence in Rome as a member of the papal camera. However, in 1570 he was imprisioned for an unknown crime. Legal problems 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, Pope Clement VIII reinstated him to the papal court in 1596. He began his most important work, Praxis et theorica criminalis, in 1581 and put the finishing touches on it by 1601. Footnote

            Farinacci's treatise bristles 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 be abolished by statute; if a statute would abolish a defendant's right to a defense, it should be interpreted as only being unjust or calumnious defenses. Footnote Even the pope could not take away the right of a defendant to prove his innocence, since that right was grounded in the law of nature. Footnote Like other jurists who wrote on criminal procedure, Farinacci distinguished between presumptions of law and of men: a presumption of man was, for example, that in doubt, a man was presumed to be good. Footnote

            Another great voice of reason in criminal procedure was Frederick von Spee (1591-1635). Spee was a jurist, Jesuit, poet --- literary critics are still spilling ink on his most important poem, Trutznachtigall. Most importantly, he was a critic of intolerance and ignorance. As Beccaria would a century later, he condemned torture, the persecution of witches, and other crimes that enraged princes and the rabble. Unfortunately for him, Europe was not yet ready for his voice of reason. He was stripped of his academic positions and condemned by his order after the publication of Cautio criminalis, his famous treatise on procedure in witchcraft trials. He died young at Trier while helping to treat soldiers infected by the plague of 1635. Footnote

            "Must we assume that witches are guilty?" he asked in Cautio criminalis. "That's a stupid question," he answered. Footnote His condemnation of torture was absolute. He took his arguments from Farinacci. Footnote His rhetoric inspired Beccaria a century later: Footnote

Can a defendant who does not confess under torture be condemned? "I assume," wrote Spee, "that no one can be condemned unless his guilt is certain; an innocent person ought not be killed. Everyone is presumed innocent, who is not known to be guilty." Footnote

            There is some irony in this part of the story too. Beccaria and Pietro Verri, Beccaria’s muse who wrote a significant tract on torture published long after Dei delitti, Footnote probably borrowed Spee's thought and adapted his words when they wrote about torture. Footnote Yet Beccaria and Verri condemned Spee, Farinacci and other jurists at the same time that they appropriated their ideas, accusing them of being soft on torture. Footnote

            As Alessandro Manzoni eloquently pointed out, Verri overemphasized his contribution to the intellectual arguments that underpinned his condemnation of torture and de-emphasized the contribution of earlier jurists. As part of Manzoni's account of a Milanese cause célèbre in which the judges sent several innocent men to the rack with almost no evidence of their guilt, he demonstrated that Verri had seriously distorted the legal tradition. Footnote

From this evidence and from all we know of the practice of torture in their own time, one can undoubtedly conclude that the interpreters of criminal procedure left the theory and practice of torture much, but much, less barbarous than they found it. Of course it would be absurd to attribute this diminution of evil to one cause alone, but I think that among the many causes that it would be reasonable to count the repeated reproofs and warnings, renewed publicly, century after century, by jurists to whom it is certainly granted a definite authority over the practice of the courts.

Manzoni had extraordinary insight into the evolution of norms in European jurisprudence. He perceived extraordinarily well the complicated dialectic through which jurists argued with, borrowed from, and added to the thought of their predecessors and, in their works, spoke 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 jurists and Manzoni have had a worthy successor.

            We have come full circle: from Justice White to MacNally to Beccaria to Johannes Monachus and back to Beccaria. 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 jurisprudence. The maxim, innocent until proven guilty was born in the late thirteenth century, preserved in the universal jurisprudence of the Ius commune, employed in the defense of marginalized defendants, Jews, heretics, and witches, in the early modern period, and finally deployed as a powerful argument against torture in the sixteenth, seventeenth and eighteenth centuries. By this last route it entered the jurisprudence of the common law through a thoroughly disreputable Irishman’s having read a book on criminal punishments by an Italian. But because it was a transplant from the Ius commune, it entered the world of American law in a very different form. It no longer was a maxim that signified the bundle of rights that was due to every defendant. Because American law did not inherit the jurisprudence of the Ius commune directly, its broader meanings were lost during the transplant. Consequently, the focus in American has been entirely on its meaning for the presenting of evidence and for procedural rules in the courtroom. In the jurisprudence of the Ius commune, the maxim summarized the procedural rights that every human being should have no matter what the person’s status, religion, or citizenship. The maxim protected defendants from being coerced to give testimony and to incriminate themselves. It granted them the absolute right to be summoned, to have their case heard in an open court, to have legal counsel, to have their sentence pronounced publically, and to present evidence in their defense. A jurist of the Ius commune would be puzzled that today we can embrace “a person is innocent until proven guilty” and still deny human beings a hearing under certain circumstances. For them the maxim meant “no one, absolutely no one, can be denied a trial under any circumstances.” And that everyone, absolutely everyone, had the right to conduct a vigorous, thorough defense.

            In a world that is choked by the narrow horizons of legal systems imprisoned by national sovereignties, this story is the best argument I know for returning to a conception of law that broad, comparative, and open to the jurisprudence of other legal systems.