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APPENDIX III.: a paper on subjects connected with the inquisitorial trial and the laws of evidence. - Francis Lieber, On Civil Liberty and Self-Government 
On Civil Liberty and Self-Government, 3rd revised edition, ed. Theodore D. Woolsey (Philadelphia: J.B. Lippincott & Co., 1883).
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a paper on subjects connected with the inquisitorial trial and the laws of evidence.
Few things, in my opinion, show more distinctly the early English character than the fact that, without vindictiveness or cruelty in the national character, the penal law inflicted death with a fearful disregard of human life, while at the same time the penal trial was carried on with great regard for individual rights and for the mode of ascertaining the truth. The English were from early times a peculiarly jural nation.
Those people who have the inquisitorial trial, on the other hand, were in some instances far less sanguinary in their punishments, but perfectly regardless of the trial, or, rather, the trial seemed to have been established chiefly for the prosecuting party. It aimed at knowing the truth; the means to arrive at it were little cared about. The rights of the prosecuted person appeared in a shadowy, undefined way. And all this continues to exist in many countries.
I do not speak here of the worst countries only. I do not mean to advert to the Austrian trial, as it was before the late revolutions. I refer, for instance, to the German penal trial; and mean by it the penal trial of the countries in which the common German law prevails, as well as those where, as in Prussia, a trial by statute law is introduced. The late revolutions have changed some items. The main ideas, however, remain, in many cases, the same.
Now, when a person accustomed to a regular and well-guarded penal trial reads such works as Feuerbach's Criminal Cases, or any detailed description of a penal trial, the laxity and incongruity of the procedure strike us among other things with reference to the following points:
1. The inquiring judge, that is, the judge who has been detailed, to use a military term, to lead the whole inquiry, and who has been day after day with the prisoner, and only one witness, viz. the secretary, and whose whole skill has been exerted to bring the prisoner to confession, or to establish the crime, is also frequently the first sentencing judge, and always very powerfully influences the sentence. If there is a separate sentencing judge, all the “acts,” that is, all that has been written down, is handed over to him, and from them he frames his sentence, upon which the other judges, if there are any, vote in plenary session. As a matter of course, they cannot know much about the subject, and must be guided by the report the sentencing judge makes.
2. The inquiring judge is, in many cases, what we would consider wholly unrestricted. He takes hearsay evidence, and all sorts of evidence, if he thinks proper. He is unrestricted as to time, and an accused person may be kept for years under trial. He is allowed to resort to all kinds of tricks, in order to work upon the imagination of the prisoner; for instance, calling him up at midnight, examining him and suddenly showing a skull to him. Every worthy and puerile motive to speak the truth and confess the offence is resorted to.
3. There is no regular indictment, nor does the accused know in his examinations what is charged against him; at least the law does not demand that he shall know it.
4. The prisoner is constantly urged to confess; the whole trial assumes the act charged against the prisoner, and treats him accordingly. Indeed it may be said that, although not avowedly, yet virtually, the inquisitorial trial assumes in a very great degree the character of an accusation which the accused has to disprove, not one which the accuser is bound to prove. In some countries and in certain cases this is positively the case. Even the French penal trial is by no means wholly free from this serious fault.
5. There is no physical torture resorted to in order “to bring out” the truth, since the positive abolition of the torture, but the moral torture which is applied is immense, and the judge is authorized by law to punish with lashes or other physical means every contradiction or lie proved from the convict's own Statements. That this can easily lead to all sorts of abuses is obvious.
6. There is no cross-examination of witnesses, and no stringent law to compel witnesses in favor of the prisoner to appear before the court.
7. Court and police frightfully mingle in their functions, in the first stages of the trial.
8. There is a most sorrowful defence, cautious, fearful of offending the judges upon whom the promotion of the defensor depends, and empowered to procure that certain points be further cleared up only through the court, which is the prosecuting party. Besides, the defence only begins when the whole investigation by the court is at an end, that is to say, all the “acts” are handed over to the defensor. He studies them and writes the defence, which is given along with the “acts” to the sentencing judge.
No wonder that the Germans universally called for a total change of such a trial, and, as I stated before, some very important changes have taken place.
The chief incongruity in this inquisitorial trial, however, is that it admits of half proofs, two of which amount to a whole proof, with other logical flagrancies, as well as the legal flagrancy of “deficient proof,” according to which a lighter punishment, but still a punishment, is inflicted.
It is ha dly conceivable how an intelligent nation, advanced in the sciences, can have continued a logical absurdity of such crying character until the most recent times, and can continue it, in some parts of the country, to this day. It is reversing the order of things, and substituting evidence, the means of arriving at the fact, which is the thing to determine the punishment, for the criminal fact.
The principle from which we start in penal law is, that crime ought to be followed by evil, as a consequence of the crime. If crimes punished themselves, we should not want judges; if judges were omniscient, we should not want trials. The object of the trial is to prove that a crime has been committed, and that it has been committed by the indicted person. This is called establishing the fact, which means proving it—reproducing it, as it were, before the eyes of the judge; in one word, convincing him of the truth of the charge, or fact; and it is the fact alone that can be punishable. But the idea of a fact does not admit of degrees. There may, indeed, be every possible degree of belief in a judge, from the first suspicion, from surmise, doubt, and belief, to the fullest conviction; but, if he metes out his punishments accordingly, he does not punish for facts done by others, but according to the degree of belief in himself. He substitutes his own subjective belief for the objective fact. Now, there cannot be half facts, or three-fourths of facts. A man may, indeed, buy poison, to commit murder; he may add to this, the mixing of the poison with a soup; he may add to this, the carrying of the soup to the sick-room; and he may add to this again, the presenting of the soup to a patient, who finally consumes it; but all these successive acts are not parts of facts. Wherever the evil-minded man stopped, it was a fact; and, if it is punished, it is not punished as part of a crime, but the inchoate crime is a whole penal fact, and, as such, punished. Again, though four persons may, as witnesses, establish a fact, a truth, each witness does not prove, on that account, a fourth of the truth, which, like the fact, is one and indivisible. If they prove a chain which ultimately establishes a fact, they still prove but one fact, and each one proves for himself a whole truth, which, in connection with the other truths, establishes the ultimate truth.
If four not very creditable witnesses establish one fact, when I would not have believed either of them singly, because, in the assumed case, they corroborate one another, when no connivance can have taken place, they are in this case good witnesses, each one for himself, and not four witnesses, each one worth a fourth of a good witness. A thousand liars cannot, as liars, establish a truth, but they may testify under circumstances which deprive them of the character of liars, and thus be in the case good witnesses.
It is true, indeed, that man, conscious of his fallibility, and resolved severely to punish certain crimes, has laid down the rule that, to prove certain crimes in such a manner that the law shall consider them as proved, an amount of testimony shall be necessary which is not required for lighter offences. But this is only as a safeguard, so as to prevent, as far as in us lies, the unjust infliction of severe punishment. It has nothing to do with parts of truths, or parts of facts. It has nothing to do with logic. In barbarous times, however, it was actually conceived that logic itself is of a sliding character, as it were. The Ripuarian laws demanded seventy-two compurgators to absolve an incendiary, or murderer (Leg. Ripuar., cap. vi., vii., and xi.). Here, the first error was to consider the accused as tainted, who must clear himself, and not as an accused person, upon whom the deed must be proved. The second error was that the number of compurgators must rise to clear the tainted person, according to the taint (which, as yet, is nothing but accusation). The Koran prescribes, in certain cases, a number of oaths—as though each oath, even of a person unworthy of belief, contained some truth, which, by repetition, could be accumulated, and ultimately form a whole truth. Not quite dissimilar is what we read in Gregory of Tours. When the chastity of a certain queen of France was suspected, three hundred knights swore, without hesitation, that the infant prince was truly begotten by her deceased husband. As if the oath of three hundred knights could have any weight, when none of them could know the fact. But, if people once fall into the error of demanding the proof of the negative to establish innocence, instead of demanding the proof positive of the charge, they must necessarily fall into all sorts of errors. The ecclesiastical law required, in a similar manner, or still requires, seventy witnesses to prove incontinency on a cardinal; and in Spain, as Chancellor Livingston tells us, it required more witnesses to convict a nobleman than a commoner. This is pretty much the same logic which, as Captain Wilkes tells us, induces the Fijians to put more powder into the gun if they fire at a large man.
On the other hand, the idea of punishing according to the degree of conviction in the judge, namely, lightly if light suspicion only has been existing, more severely if belief has been created, and so on, would not have been wholly inconsistent in ancient times, when men had not yet succeeded in strictly separating the moral law from the law of nature, and when the punishment was considered as a sort of extinction of guilt—a neutralizing agent. This is a theory which actually some modern criminalists of prominence have endeavored to revive. According to them, the fact, not the deed, is punished—society has to wipe off the criminal fact which has occurred, and the punishment is like the minus put against the plus. But Aristotle already said, even the gods cannot make undone what has been done. The punishment would resemble the penitence which in early times kings had to undergo for great national calamities. If this unphilosophical view were true, it would be difficult to show why the criminal, who has committed the deed, is the one selected to re-establish the equilibrium or for the atonement. But the common sense of mankind has been in this case, as in a thousand others, sounder than theories of unpractical thinkers.
The judge who punishes half, because the evidence has sufficed to create half a conviction only, commits the same logical fault which a navigator would commit who has seen but dimly something that may be a rock, and would go but half out of the way of the danger. I say he commits the same logical fault, although the effects would be the reverse.
Punishment, which is the intentional infliction of some sufferance as deserved sufferance (in which it differs from the infliction of pain by the surgeon), requires the establishment of the deed, and this is absolute. The various degrees of belief in the deed are only in the judge, not in the deed. The deed must determine the different degrees of infliction of pain or privation; all else is illogical.
If the reader has thought that I have dwelt too long on this topic, he must remember that millions are to this day subject to such legal logic as has been described.
It will be hardly necessary to refer in this place to the fact, that although the ascertainment of truth is the main object of the trial, it is not on that account allowed to resort to all and every means which may bring about this end. Sound sense and a due regard to the rights of individuals lead men to the conviction that a fixed law of evidence is necessary, and to prescribe rules according to which courts shall believe facts to be established, discarding all those means which may expose the accused to cruelty, which may be easily abused, which in turn may deceive, and whose effects in general would be worse than the good obtained. Truth, established according to those rules, is called legal truth. There can be but one truth, that is the conviction agreeing with fact, but truth may be established by various means, or by means agreeing with prescribed rules. There may be one witness who testifies that he has seen a man doing that, which, before the court can punish it, requires two witnesses. The judge may be thoroughly convinced that the witness speaks the truth; yet the truth would not be legally established—it would not be a legal truth. This, too, may appear unworthy of mention; but only to those who do not know how vehemently all persons hostile to liberty declaim against the dead letter of the law, the hollow formalism of the Anglican trial, and how anxious they are to substitute the subjective opinion of the judge for the positive and well-defined law. I may put it down here as a fact of historical interest that even so late as my early days I heard a criminalist of some distinction regret the abolition of “the question,” i.e. the torture, and I speak gravely when I say that, as times go, I should not be surprised if the re-establishment of the torture should once more be called for in some countries. Indeed, has the torture not been used? Mr. Gladstone's pamphlet on Neapolitan affairs tells us strange things.1
[1.]It would seem that the torture actually continues to exist in some parts of Europe. The following is taken from the London Spectator, of December 22d, 1849, which gives as its authority the well-known Allgemeine Zeitung, published at Augsburg, and, consequently, not far from Switzerland