Document: Pers Sane "Thoughts on Lawful Justice"
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I expect I shall not survive these coming days, the Knights of the Merciful Sword in Arabel have suffered greatly since the loss of Lady Norah Iba' Pretur. Once we mentored every Initiate in the finer theory and fundamentals of mortal and divine law. Now many of our Initiatives struggle, unguided and the dilemma will only grow in the future. I have promised Lady Lhal that I will compile this; my understanding of what law truly is that it can be passed along to the Magistrates of the future. Forgive me my failures, I never lived up to Lady Norah's example and let our Order sink so low.
All goodly races are born possessing special rights, each of us is gifted with a soul; impermeable and immortal. Thus these rights can not be fully lost during our life-times, though poor examples exist of men trading these rights away in total there is no power short of free-will which can strip them. Though these rights are many, I must focus here on those that should belong to the accused.
All men deserve the fair and expedient execution of justice. When accused of a crime, a neutral arbiter should present the case, another defend the accused who though knows best his innocence may not speak the language of the law. An impartial magistrate must oversee the trial, ensuring that all evidence is found, all witnesses spoken to, and a decision reached that is fair to the accused, the victim, and to the larger society which is at all times both more important and equal to the two first parties.
Therefore, it is my belief that all trials must have a jury. The community must ascertain if the justice of a magistrate is suitable to the norms of their society. While law itself is an ideal, a perfect concept, no mortal society fully understands it and therefore only those aspects with which they are most enlightened and accepting can be held as just by themselves. If a magistrate through greater or lesser understanding fails to uphold the community's comprehension of law they will feel justice was not done, and provided their local custom is not injurious to precepts of justice enumerated herein-a wise official will demur to their local custom.
Too often, even a wise magistrate feels is it his duty to destroy a criminal, sometimes even before that criminal has broken laws. The jurist may feel the accused will one day commit murder, and thus bond him more strongly for theft with this understanding. This is a violation of justice! Not even the gods know a man's fate fully, even the weak can atone. Therefore, all men must be judged with optimism under the presumption of innocent intent. Neither though, should a man be forced into justice. Brow-beating, torture, trickery used to force a confession out of even the guilty is forfeiture of the principles of justice and no true magistrate will tolerate such tactics.
Further, the principle of justice is not punishment of the guilty, nor can it ever be the prevention of future crimes because we must presume optimistically the redemption of the accused. Thereby, the purpose of justice is to rectify the harm done to the society and the victim of the crime and encourage the rehabilitation of the accused. One must never forget that each soul condemned to the gallows is damned, one more soul sent to the Abyss before it could be risen up to the Celestial Peaks-we must mourn each life that justice demands ended before redemption's embrace and look strongly against those too quick to pass judgment.
Furthermore, we must never use our authority to pass judgment twice; those who have paid a debt to society are free from further punishment. A man who waits a year in prison to face trial, subsequently condemned to prison for a year must be released and not incarcerated for another year. To pass double jeopardy, to try a man twice for the same crime with the same evidence; to punish a man twice for the same crime, this is an injustice that itself must be fought.
Upon hearing a trial, a magistrate has several options. Should a society be enlightened to the point of having juries, the magistrate must present these options to them and hear their opinions before rendering the final arbitration of justice. Is the accused innocent of any crime? Then he must be Acquitted. Is the accused guilty of what has been presented by the prosecution? Then he is to be Convicted and punished according to the tradition of the society he wronged with every eye toward recompense to the victim for the harm suffered. Is the accused most likely guilty, but without all necessary proof? Then the verdict is Not Proven, thereby indicating this sentiment while acknowledging the accused deserves the benefits of an acquittal. Further, since the decision of Not Proven is indicative of lack of evidence, there is no Double Jeopardy should the accused face a second trial with new evidence held against him.
The above is integral to the lodging of convictions for treason. Treason being the most insidious of crimes, that fires the public imagination most strongly against the accused, and thereby being the most easily leveled charge to ruin or slander political enemies or assure the jury's bias against the accused-a just society will require its strongest proofs in cases of treason often demanding two witnesses to an overt act whereas the word of one good man is enough to proof guilt in most other trials.
Certainly though, because a trial must be swift there is no need for a magistrate to hear a defense should the prosecution fail to provide a minimum of proof. In treason, should two witnesses be lacked a Directed Verdict must be presented to the jury instructing them to find innocence. In any other case, weak evidence must likewise lead to a Directed Verdict, and should a society not tolerate the presence of juries then the magistrate himself must end the trial upon the failure of prosecution to present convincing evidence.When the guilty must be punished, it is normative for society to set a Mandatory punishment that a magistrate shall not ignore. Yet where discretion is left to the judge, a sentence may even be Suspended and I feel this is merciful and wise for many whose guilt was caused through na�vety rather than malice. A Suspension provides a set time, be it weeks or even years, for the guilty to prove remorse and commitment to regeneration of his soul through public works before the magistrate again summons him to the bench and decides upon a fitting punishment. Often, when public sentiment is aroused against the accused this suspension allows tempers to cool that a truly just punishment can be enacted. Yet should the guilty commit any other crime during a suspension the punishment must be set at the strongest possible level for both crimes thereafter provided this punishment does not appear torturous or unusual, and this principle applies as well to dangerous offenders who continually flaunt society's law.
It is an unfortunate truth in our world that some criminals must die to repay society, their crimes are too painful or too ruinous to allow them to continue to live in the society they have harmed. Executions must be approved by the local lords and most certainly the Crown in the case of nobility, only the sovereign has the right to end the life of his subjects even should a magistrate declare that that life is forfeited. Yet no punishment can be torturous or unusual, though the guilty has lost his right to live; he retains his mortal dignity and his immortal soul. All options to save these must be made even as the hang-man's noose tightens.
Mercifully, not all Convictions or even the majority end with death. In the case of nobility it is virtually assured that the guilty man's word is still good and that should he agree to certain conditions and limitations upon his freedoms that he may be allowed back into society. Very rarely, a commoner may even be granted this Parole through the payment of a bond assuring acceptance of these limitations with the understanding that violation of these conditions will result in punishment at the highest allowable level and the loss of bond by the commoner. Parole is typically granted when desired by the defense, but should the magistrate wish to set these conditions himself then he is granting Probation. Finally, Probation or Parole should be allowable even if the guilty was for some time incarcerated or otherwise punished. Yet again, keep an eye toward local custom and consider Tariff of the guilty, wherein he must serve some minimum punishment set by the community before eligible for Parole.
Some crimes do not warrant execution, nor lesser punishments. Some souls are too dangerous to allow to live, but may be more so upon death. Necromancers, infernalists, and many such men dedicated to the principle of evil itself make this category and for them a Suspension of Life is a just sentence. These people may be placed into magical stasis permanently to guarantee the harmony of society, but this is the most terrible justice that any magistrate can administer.Even through all the due process of justice, mistakes may happen. The guilty should always be given the chance to appeal his verdict, trials must be swift but it is not always just to be quick with punishment. If a verdict is unfair, a Miscarriage of Justice has occurred. An appeal must be viable to a higher magistrate who then has the option of providing three recourses. Agreement with the original decision rendering the same Conviction, Parole, Probation, or Suspension (of Sentence or Life). Herein, there has been no Miscarriage of Justice. Yet, should the guilty not deserve the punishment delivered by the jurist's decree they may be Pardoned by the higher magistrate. This magistrate may still assign a lesser judgment against the guilty, or allow a portion of the original judgment to stand while disregarding another part. Yet, should the Miscarriage be most overwhelming and the accused proven innocent in the higher magistrate's eyes then they must be Exonerated for no crime was committed by their hand.
These are the fundamental principles of justice in my understanding. Many will argue these points even as clear as they are to myself. There are those who accept Trial by Combat, or Trial by Ordeal even in Cormyr and especially amongst the nobility, yet I do not feel these are just since the strong may demand them of the weak, and gods rarely intervene directly to protect the weak despite superstitions. By tradition many nobles are exempt from Execution, while feudal law often passes different standards on commoners than nobles. My testament is not a complete understanding of Justice, it is only my understanding of justice under Tyr's steady eye.
Editorial Note: This letter was found with Pers Sane's personal belongings shortly after his death. The letter was delivered to our library where we will care for the last words of one of Cormyr's many heroes.