» N.S. Books
November 12th, 2000.
The Presumption of Innocence (II).
I here am dealing, not with innocence as a trait of young children, untainted or unacquainted as they are and therefore free from moral wrong, or guilt; but rather the sense that a person is free from a specific wrong or guilt, viz., has not committed the particular offence charged or in question; and thus, not deserving of the punishment or suffering inflicted. The guilt might take two forms: guilt by intention; or, guilt by association, being so often a feature of political trials. Guilt by association, comprehends the idea that one is simply guilty because they have, in some manner, attached themselves to an individual or with a group of persons who are charged with a violation of a legally established line of conduct.
Guilty feelings are to be found in all individuals, nurtured by the ideas of having done wrong, real or imagined. A person may find that another is meriting of condemnation and of reproach of conscience because, to the person making the finding, that the guilty person has wilfully committed a crime or heinous moral offence. It is to be observed that feelings of guilt may be had by a person (which sometimes bring on serious consequences) whether he is found to be guilty, or not. In legal usage, a finding of guilt may come about as a result of positive proof of guilt of the crime charged. With the finding of guilt then a consequence of the commission of the crime will be imposed, which, historically may range from the taking of a tooth, to the deprivation of liberty, or, indeed, to putting the convicted criminal to death. Because of these serious consequences, "It is better," as Blackstone wrote, "that ten guilty escape than that one innocent suffer." This proposition is one of the cornerstones of English justice with its many hurdles for the prosecution and escape holes for the accused. It is only when we are certain beyond a reasonable doubt that the person we have before us is guilty of the crime that we can mete out punishment in its full and proper form. It hasn't always been this way; there was what we now know as the Halifax law, or Lydford law, being: the summary procedure of certain local tribunals which had or assumed the power of inflicting sentence of death on thieves; the rule proverbially ascribed to them was "Hang first, Try afterwards."
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November, 2000 (2011)