The following is taken from an article written by Eric London and published 5 October 2018.
It was in the 13th and 14th centuries with the development of the jus commune, however, that the presumption of innocence first crystallized into a fundamental legal principle. The adoption of jus commune marked a revolution in legal forms, replacing the unwritten custom-based European law of the high Middle Ages with a more advanced, written common law system that combined a revitalized Roman legal framework based on procedure with Catholic canon. It was the French lawyer Johannes Monachus who first used the phrase item quilbet presumitur innocens nisi probetur nocens—“a person is presumed innocent until proven guilty.”
As Catholic University law professor Kenneth Pennington notes, this principle “summarized the procedural rights that every human being should have no matter what the person’s status, religion, or citizenship.” It “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 publicly, and to present evidence in their defence.”
Pennington explains that the presumption of innocence came under attack in the late medieval and early modern period. During the Inquisition, many European Jews were accused of sexually assaulting Christian women and were burnt or otherwise killed.
In one such case in 1398 or 1399, Papal Judge Johannes de Pogiali took the rare step of conducting an investigation into the facts underlying the accusations. Discovering that the particular accusations were false, de Pogiali concluded: “It was better to leave a crime unpunished than to condemn an innocent person.” Pennington adds, “Many will recognize in these words ‘Blackstone’s ratio:’ ‘the law holds that it is better that ten guilty persons escape than one person suffer.’”
In the 15th through the 17th centuries, the right to the presumption of innocence was affirmed in papal letters requiring that Jews be granted the right to counsel and to know the names of their accusers.
The emergence of a presumption of innocence coincides with the earliest development of bourgeois law. The presumption was advanced in opposition to the medieval torture chamber, where the accused person was simply tortured until he “confessed.” Under this regime of torture, the court proceeding consisted merely of the confessed sinner being brought before a tribunal to acknowledge his confession.
“Must we assume that witches are guilty?” asked German Jesuit professor Friedrich von Spee, an early opponent of torture, in his 1631 work Cautio Criminalis. “I assume 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.”
In the 18th century, the revolutionary European and American bourgeoisie were determined to deliver a blow against centuries of feudal backwardness and arbitrary dynastic rule. Their chief ideologists, schooled in the ideas of the rational Enlightenment, recognized the presumption of guilt as a characteristic of tyranny that is wholly inconsistent with democracy and the rule of law.
The revolutionaries rejected the notion that rights could be granted or rescinded by the state at will. Rather, rights were vested in “the people” themselves, and the maintenance of the rule of law meant protecting them from the power of the government. In this sense, the American Declaration’s “right to revolution” is incompatible with the presumption of guilt. Strong, repressive states justify their existence based on suspicion of the population and the need for social control.
It was a rejection of this reactionary view that guided the revolutionaries and led John Adams to remark in relation to the presumption of innocence that “there was never a system of laws in the world in which this rule did not prevail.” Benjamin Franklin expanded Blackstone’s ratio by a factor of ten, declaring “it is better 100 guilty Persons should escape than that one innocent Person should suffer.”
Similarly, during the French Revolution, Quintard-Morénas explains that the third estate viewed the monarchy’s use of torture and its belief in the presumption of the guilt of its subjects as an indication of the regressive character of the Bourbon dynasty:
“The relative indifference of the population to the plight of accused criminals, combined with the widely shared opinion among jurists that torture was not a punishment and that humanizing criminal procedure would encourage crime, contributed to maintain a practice that increasingly fell into disuse in France at the end of the seventeenth century.”
The representatives of the third estate who gathered at the Estates-Generals in 1789 “referred to the presumption of innocence to request a better treatment of suspects and their complete absolution in the event of insufficient evidence.” The presumption was enshrined in the French Declaration of the Rights of Man and serves as the foundation for the US Constitution’s Bill of Rights.
Today the powerful anti-democratic tendencies unleashed by the government in the conduct of the war on terror have advanced the erosion of democratic consciousness and seeped into all aspects of domestic law.
Thousands of victims of police murder in the US do not receive the benefit of the presumption of innocence. They are presumed guilty as a result of living in “high-crime areas,” where the police shoot first and ask questions later. Instead, police on the beat, armed with the latest weaponry from the battlefields of North Africa, the Middle East and Central Asia, serve as judge, jury and executioner and are hardly ever punished.
Tens of millions of undocumented immigrants, whose very presence in the US has been deemed “illegal” by the same laws aimed against “terrorists,” can be dragged out of their homes or off the job, separated from their loved ones, thrown into cages and forced to face physical and sexual abuse in detention centers for months or years on end.
Eight million people are either in prison, jail or on parole or probation. That arrestees who have not been convicted of a crime can be held in jail while they await trial is no longer even a matter for debate.
The abandonment of progressive attitudes toward due process and the presumption of innocence is most pronounced among affluent sections of the upper-middle class. For this privileged layer, identity politics and postmodernist philosophy have become key theoretical vehicles for the attack on the presumption of innocence.
Proponents of this view have leapt to defend the accusers in several instances where the accusations were false. In the Tawana Brawley, Duke Lacrosse and University of Virginia Rolling Stone cases, the media and supporters of identity politics assumed that the accused must be guilty because they were white men.
The modern-day opponents of due process can claim all they want that they wish only to presume the guilt of the rich and powerful, not the oppressed. But the common law is based on precedent, and instigators of attacks on democratic rights do not have the luxury of deciding whose democratic rights will be violated and whose will not.
Whatever rules are established against the wealthy will be brought down upon the backs of the poor and defenceless with the ruthless force of the power of the state and public opinion.
In cases like the Scopes Monkey trial, the Sacco and Vanzetti frame-up, the Dreyfus Affair, the trial of Oscar Wilde, the Leo Franks case, the Leopold and Loeb trial and the frame-up of the Scottsboro Boys, the political left rejected calls for blood and vengeance and sought to expose the powerful interests fanning the flames of passion and prejudice.
It was in the 13th and 14th centuries with the development of the jus commune, however, that the presumption of innocence first crystallized into a fundamental legal principle. The adoption of jus commune marked a revolution in legal forms, replacing the unwritten custom-based European law of the high Middle Ages with a more advanced, written common law system that combined a revitalized Roman legal framework based on procedure with Catholic canon. It was the French lawyer Johannes Monachus who first used the phrase item quilbet presumitur innocens nisi probetur nocens—“a person is presumed innocent until proven guilty.”
As Catholic University law professor Kenneth Pennington notes, this principle “summarized the procedural rights that every human being should have no matter what the person’s status, religion, or citizenship.” It “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 publicly, and to present evidence in their defence.”
Pennington explains that the presumption of innocence came under attack in the late medieval and early modern period. During the Inquisition, many European Jews were accused of sexually assaulting Christian women and were burnt or otherwise killed.
In one such case in 1398 or 1399, Papal Judge Johannes de Pogiali took the rare step of conducting an investigation into the facts underlying the accusations. Discovering that the particular accusations were false, de Pogiali concluded: “It was better to leave a crime unpunished than to condemn an innocent person.” Pennington adds, “Many will recognize in these words ‘Blackstone’s ratio:’ ‘the law holds that it is better that ten guilty persons escape than one person suffer.’”
In the 15th through the 17th centuries, the right to the presumption of innocence was affirmed in papal letters requiring that Jews be granted the right to counsel and to know the names of their accusers.
The emergence of a presumption of innocence coincides with the earliest development of bourgeois law. The presumption was advanced in opposition to the medieval torture chamber, where the accused person was simply tortured until he “confessed.” Under this regime of torture, the court proceeding consisted merely of the confessed sinner being brought before a tribunal to acknowledge his confession.
“Must we assume that witches are guilty?” asked German Jesuit professor Friedrich von Spee, an early opponent of torture, in his 1631 work Cautio Criminalis. “I assume 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.”
In the 18th century, the revolutionary European and American bourgeoisie were determined to deliver a blow against centuries of feudal backwardness and arbitrary dynastic rule. Their chief ideologists, schooled in the ideas of the rational Enlightenment, recognized the presumption of guilt as a characteristic of tyranny that is wholly inconsistent with democracy and the rule of law.
The revolutionaries rejected the notion that rights could be granted or rescinded by the state at will. Rather, rights were vested in “the people” themselves, and the maintenance of the rule of law meant protecting them from the power of the government. In this sense, the American Declaration’s “right to revolution” is incompatible with the presumption of guilt. Strong, repressive states justify their existence based on suspicion of the population and the need for social control.
It was a rejection of this reactionary view that guided the revolutionaries and led John Adams to remark in relation to the presumption of innocence that “there was never a system of laws in the world in which this rule did not prevail.” Benjamin Franklin expanded Blackstone’s ratio by a factor of ten, declaring “it is better 100 guilty Persons should escape than that one innocent Person should suffer.”
Similarly, during the French Revolution, Quintard-Morénas explains that the third estate viewed the monarchy’s use of torture and its belief in the presumption of the guilt of its subjects as an indication of the regressive character of the Bourbon dynasty:
“The relative indifference of the population to the plight of accused criminals, combined with the widely shared opinion among jurists that torture was not a punishment and that humanizing criminal procedure would encourage crime, contributed to maintain a practice that increasingly fell into disuse in France at the end of the seventeenth century.”
The representatives of the third estate who gathered at the Estates-Generals in 1789 “referred to the presumption of innocence to request a better treatment of suspects and their complete absolution in the event of insufficient evidence.” The presumption was enshrined in the French Declaration of the Rights of Man and serves as the foundation for the US Constitution’s Bill of Rights.
Today the powerful anti-democratic tendencies unleashed by the government in the conduct of the war on terror have advanced the erosion of democratic consciousness and seeped into all aspects of domestic law.
Thousands of victims of police murder in the US do not receive the benefit of the presumption of innocence. They are presumed guilty as a result of living in “high-crime areas,” where the police shoot first and ask questions later. Instead, police on the beat, armed with the latest weaponry from the battlefields of North Africa, the Middle East and Central Asia, serve as judge, jury and executioner and are hardly ever punished.
Tens of millions of undocumented immigrants, whose very presence in the US has been deemed “illegal” by the same laws aimed against “terrorists,” can be dragged out of their homes or off the job, separated from their loved ones, thrown into cages and forced to face physical and sexual abuse in detention centers for months or years on end.
Eight million people are either in prison, jail or on parole or probation. That arrestees who have not been convicted of a crime can be held in jail while they await trial is no longer even a matter for debate.
The abandonment of progressive attitudes toward due process and the presumption of innocence is most pronounced among affluent sections of the upper-middle class. For this privileged layer, identity politics and postmodernist philosophy have become key theoretical vehicles for the attack on the presumption of innocence.
Proponents of this view have leapt to defend the accusers in several instances where the accusations were false. In the Tawana Brawley, Duke Lacrosse and University of Virginia Rolling Stone cases, the media and supporters of identity politics assumed that the accused must be guilty because they were white men.
The modern-day opponents of due process can claim all they want that they wish only to presume the guilt of the rich and powerful, not the oppressed. But the common law is based on precedent, and instigators of attacks on democratic rights do not have the luxury of deciding whose democratic rights will be violated and whose will not.
Whatever rules are established against the wealthy will be brought down upon the backs of the poor and defenceless with the ruthless force of the power of the state and public opinion.
In cases like the Scopes Monkey trial, the Sacco and Vanzetti frame-up, the Dreyfus Affair, the trial of Oscar Wilde, the Leo Franks case, the Leopold and Loeb trial and the frame-up of the Scottsboro Boys, the political left rejected calls for blood and vengeance and sought to expose the powerful interests fanning the flames of passion and prejudice.
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