In spite of what you have been reading and hearing in the media during the last year, the presumption of innocence, or even its existence, has not been on the lam. In fact, one might argue it's done quite well in the second half of the twentieth century. The United Nations placed the principle that a defendant is innocent until proven guilty 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].
The United Nations' declaration established "Innocent until proven guilty" as a right in the modern world. Yet there are few maxims that have a greater resonance in Anglo-American jurisprudence. But, in spite of our reverence for it, the maxim cannot be found in Magna Carta, the English Bill of Rights of 1689, the Declaration of Independence, or the Constitution of the United States; or, I might add, in the works of the great English jurists, Bracton, Coke, or 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 particularly 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.(1) He informed his learned, continental audience about the maxim's unique Anglo-Saxon origins. When a fourteenth-century English Parliament declared its complete independence from Roman law, the principle on which Parliament stood, was, he said, "that an accused person must be deemed innocent until such time as his or her guilt has been proved conclusively in court." Clementi declared that he would not have bothered his continental colleagues with "intimate details of English pragmatism" before England had entered the Common Market. Now, however, he assured them that "there is good reason why you should become better acquainted with us." English devotion to the principle of 'Innocent until proven guilty' served to "emphasize a separation between England and its European mainland in matters of law." With missionary zeal, Clementi propounded the virtues of innocence while being guilty of explicating a text in which the concept was completely absent.
Clementi did not know that the maxim "Innocent until proven guilty" cannot be found in any English court case or any tract on jurisprudence 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." These facts raise two questions that will be the subject of this talk: 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?
We can know exactly when the maxim formally entered American law: through a Supreme Court decision of 1894, Coffin vs. U.S. The court had heard a case from Indiana in which Francis A. Coffin and Percival A. Coffin had been convicted of having aided and abetted the President of the Indianapolis National Bank in the commission of misapplication of funds and making false entries in the bank's books. In other words, they defrauded the bank. The forty-fourth charge in the case was rejected by the lower court in its instruction to the jury. The appeal was based in part on the lower court's refusal.(2)
The forty-fourth charge stated: "The law presumes that persons charged with crime are innocent until they are proven by competent evidence to be guilty." Although the court rejected this charge, it 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. For a legal historian, his analysis is a dazzling display of legal history --- even if most of it is not correct. To prove the antiquity of "Innocent until Proven Guilty" White cited a story from the late antique Roman historian, Ammianus Marcellinus, Justinian's Digest and Code, Pope Gregory IX's Decretales, a decretal of Pope Innocent III,(3) and Giuseppe Mascardi's De probationibus, all, except for Ammianus, from the continental law.(4) None of the texts, unfortunately, contained the maxim. Not one of them, you may note, was from English law. Puzzling.
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's, On the Law of Evidence (1783-1853), and William Best's, (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."(5) Another piece of evidence that Clementi's faith was not unique.
Through 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.(6) Who was he? He was born in Dublin in 1752. After his father died in 1756, he spent a part of his childhood in Bordeaux. At 19 he opened a grocery shop in Dublin. An ambitious sort, he was called to the Irish bar in 1776 and to the English 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 Kmart Gilbert and Sullivan, MacNally does merit a mention in The Grove Dictionary of Music.
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." His dismissal of MacNally's legal skills does the Irish barrister a grave disservice. The DNB 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. Even during MacNally's lifetime the same rules of due process were not extended to Irish defendants in trials of treason. 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 Ireland. 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 rhetorically compelling:
If these English statutes were enacted because in cases of treason the oath of allegiance counterpoises the information of a single witness, is not an Irishman intitled(sic) to the benefit of that reason? --- or, if the principal reason for enacting those statutes was, as sir William Blackstone states, "To secure the subject from being sacrificed to fictitious conspiracies which have been the engines of profligate and crafty politicians in all ages," why should not Irishmen be granted the same security, from such conspiracies and the machinations of such politicians? The imperial parliament have to discuss and determine those questions at a future day.(7)
He never used the maxim "Innocent until Proven Guilty," but he argued vehemently for the rights of defendants, often using examples from cases in w
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