The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law. <156 U.S. 432, 454> It is stated as unquestioned in the textbooks, and has been referred to as a matter of course in the decisions of this court and in the courts of the several states. See 1 Tayl. Ev. c. 5, 126, 127; Wills, Circ. Ev. c. 5, 91; Best. Pres. pt. 2, c. 1, 63, 64; Id. c. 3, 31-58; Greenl. Ev. pt. 5, 29, etc.; 11 Cr. Law Mag. 3; Whart. Ev. 1244; 2 Phil. Ev. ( Cowen & Hill's Notes) p. 289; Lilienthal's Tobacco v. U. S., 97 U.S. 237; Hopt v. Utah, 120 U.S. 430 , 7 Sup. Ct. 614; Com. v. Webster, 5 Cush. 320; State v. Bartlett, 43 N. H. 224; Alexander v. People, 96 Ill. 96; People v. Fairchild, 48 Mich. 31, 11 N. W. 773; People v. Millard, 53 Mich. 63, 18 N. W. 562; Com. v. Whittaker, 131 Mass. 224; Blake v. State, 3 Tex. App. 581; Wharton v. State, 73 Ala. 366; State v. Tibbetts, 35 Me. 81; Moorer v. State, 44 Ala. 15.
Greenleaf traces this presumption to Deuteronomy, and quotes Mascardius Do Probationibus to show that it was substantially embodied in the laws of Sparta and Athens. On Evidence, pt. 5, 29, note. Whether Greenleaf is correct or not in this view, there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration, as the following extracts show:
'Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day.' Code, L. 4, tit. 20, 1, l. 25.
'The noble (divus) Trajan wrote to Julius Frontonus that no man should be condemned on a criminal charge in his absence, because it was better to let the crime of a guilty person go unpunished than to condemn the innocent.' Dig. L. 48, tit. 19, l. 5.
'In all case of doubt the most merciful construction of facts should be preferred.' Dig. L. 50, tit. 17, l. 56.
'In criminal cases the milder construction shall always be preserved.' Dig. L. 50, tit. 17, 1, 155, 2.
'In cases of doubt it is no less just than it is safe to adopt the milder construction.' Dig. L. 50, tit. 17, l. 192, 1. <156 U.S. 432, 455> Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, 'a passionate man,' seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, 'Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?' to which Julian replied, 'If it suffices to accuse, what will become of the innocent?' Rerum Gestarum, lib. 18, c. 1. The rule thus found in the Roman law was, along with many other fundamental and human maxims of that system, preserved for mankind by the canon law. Decretum Gratiani de Presumptionibus, L. 2, T. 23, c. 14, A. D. 1198; Corpus Juris Canonici Hispani et Indici, R. P. Murillo Velarde, Tom. 1, L. 2, n. 140. Exactly when this presumption was, in precise words, stated to be a part of the common law, is involved in doubt. The writer of an able article in the North American Review (January, 1851), tracing the genesis of the principle, says that no express mention of the presumption of innocence can be found in the books of the common law earlier than the date of McNally's Evidence (1802). Whether this statement is correct is a matter of no moment, for there can be no doubt that, if the principle had not 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 the earliest time.
Fortescue says: 'Who, then, in England, can be put to death unjustly for any crime? since he is allowed so many pleas and privileges in favor of life. None but his neighbors, men of honest and good repute, against whom he can have no probable cause of exception, can find the person accused guilty. Indeed, one would much rather that twenty guilty persons should escape punishment of death than that one innocent person should be condemned and suffer capitally.' De Laudibus Legum Angliae (Amos' translation, Cambridge, 1825). <156 U.S. 432, 456> Lord Hale (1678) says: 'In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him; but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die.' 2 Hale, P. C. 290. He further observes: 'And thus the reasons stand on both sides; and, though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger, – 'Quod dubitas, ne feceris." 1 Hale, P. C. 24.
Blackstone (1753-1765) maintains that 'the law holds that it is better that ten guilty persons escape than that one innocent suffer.' 2 Bl. Comm. c. 27, marg. p. 358, ad finem.
Coffin v. U.S., 162 U.S. 664 (1896).
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