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       3 The Jury Trial (1)

      He considered what he should say to win over the whole audience once and for all, or if that were not possible, at least to win over most of them for the time being.

      FRANZ KAFKA, The Trial

      Innocent III’s decision in 1215 to abandon ordeals threw England as much into the lurch as it did the rest of Christendom. For time out of mind, the country’s kings had been subcontracting criminal justice to the clergy, who had been happy to to scald and drown suspected sinners for a small fee. Many ordinary folk had even come to trust trials by fire and water, if only because the primary alternative, trial by combat, seemed suspiciously favourable to whichever litigant was able to afford the better weapons and champion. The country’s response to the abolition of ordeals would, however, be very different from that adopted on the continent.

      Whereas continental rulers would turn to the techniques of the papal Inquisition and the rules of canonical law to fill the legal vacuum, the Church would never gain an equivalent degree of influence over royal justice in England. Its legal pretensions had already taken a heavy blow when knights loyal to Henry II had rid their king of turbulent Thomas Becket by braining him in Canterbury Cathedral in 1170. The assassination was followed by important concessions to clerical independence from a penitent Henry, and the English Church of the early thirteenth century was in no mood to rock the boat. While Catholicism’s legal traditions spawned across Europe, nurtured by the demands of its war on heresy, representatives of the English Church positively avoided their country’s royal courts. Clerics would long retain peculiar privileges: they were, for example, granted an automatic immunity from punishment if they read Psalm 51 of the Bible aloud from the dock, a provision that would mutate into ridiculousness over the years as convicts memorized the ‘neck verse’ and merciful judges treated them as monks. Bishops would, for another five centuries, retain the right to try religious crimes such as heresy and moral misdemeanours such as adultery. Canonical law would never get to supersede custom and statute, however. The irrationalities of England’s royal courts would come from sources other than the Good Book.

      The authorities initially had little idea what should replace trial by ordeal. Royal judges customarily took the king’s justice to jails around the realm every few years, and their coaches had already left London for the provinces in late 1218, when a rather perplexed note from the guardians of 11-year-old Henry III caught up with them. Proof by fire and water was no longer an option, it reminded them, and they might want to deal with minor cases by exacting promises of good behaviour. Exile would often be appropriate for those suspected of slightly more serious crimes. But all that the note could tentatively suggest for offences of violence or dishonesty was imprisonment – and in an era when judges toured dungeons to empty them rather than fill them up, the proposal was a stopgap rather than a solution. And yet, the king’s advisors had nothing else to offer. ‘For the present,’ they concluded forlornly, ‘we must rely very much on your discretion to act wisely according to the special circumstances of each case.’

      England’s judges would rise to the challenge. Their solution was seen for the first time at a trial in Westminster in 1220, when a self-confessed murderer called Alice snitched on five other accused men in the hope of saving her own skin. The charges could not be resolved by battle, because she was a woman, but those she named then agreed to submit ‘for good or ill’ to the judgment of twelve of their property-owning neighbours. Said neighbours promptly swore that one was a law-abiding man but that four were thieves, whereupon the unlucky quartet was hanged. By the following summer, when seven of the king’s judges set out on another circuit of England’s prisons, they had begun to use the new system regularly. Trial by twelve good men and true had been born.

      The jury trial would generate countless myths over the following centuries, and those claiming to describe its origins have been among the most tenacious. Athens, Rome, and the Magna Carta – an abortive truce signed in 1215 between King John and rebellious barons – have all, in their time, been credited with inventing the institution. In fact, it owed nothing to any of them. Athenians had judged in groups of several hundred at a time, the mythological Oresteia notwithstanding, and their civilization was one of which few people in thirteenth-century England would even have heard. The Roman Republic had seen the establishment of courts known as the iudicia publica, at which wealthy officers and senators had judged certain offences, but the precedent had no impact at all on English law. The Magna Carta, for its part, asserted that monarchs had to obey their own laws, and used language that would later support arguments for speedy and fair trials, but although it acknowledged pre-existing methods of trial, it did not prescribe any new ones.

      No innovation built on tradition has a single source, but some of the rituals from which Westminster’s judges were drawing in 1220 can be identified. England’s rulers had been assembling groups of sworn men to furnish them with information for several centuries, and a link between twelve men on oath and criminal justice had been seen as far back as AD 879, when King Alfred the Great signed a peace treaty with King Guthrum of Denmark. Their agreement, which partitioned England as the price for ending decades of Viking raids, established that a killer in either ruler’s realm could cleanse himself of blood-guilt by producing twelve sworn men (‘if he dares’). Quite where the idea of a dozen judges came from would always excite speculation, with later jurists crediting the Apostles, the tribes of Israel, and so on; but although that mystery remains obscure, it is very clear that in 1220 the number had become conventional. And only a short imaginative step would have been required to transform such compurgation rituals into the jury trial. Even in the early eleventh century, defendants in some cases had been required to choose co-swearers from an independent panel of locals rather than their friends, and the only change required was to turn that exception into the norm. Instead of being allowed to produce their own jurors, defendants would challenge those of their neighbours whom they did not trust to judge them fairly.

      Just as there was institutional continuity, the extension of the jury’s role into the field of criminal justice was not a sudden leap from ritual to reason. A society that in 1215 had been committed to the belief that God healed blisters and zapped perjurers for love of justice did not in the space of five years decide that He had lost interest. The new system still relied squarely on the oath, and witnesses played no more than an occasional role in trials until well into the fifteenth century. The earliest jurors were the witnesses and their veredictum – or ‘spoken truth’ – was the only testimony required. God remained the guarantor of justice, and His wisdom was discovered by rituals that treated jurors as ciphers to be cracked rather than as agents of rational inquiry. They were deprived of food, drink, and fire while they deliberated, individually imprisoned if they held out against the majority for longer than a day and a night, and collectively carted from court to court if they swore a verdict that the judge considered perjurious. The crowning absurdity was that, at the same time that jurors were effectively robbed of a right to silence, defendants were formally prohibited from swearing to their innocence – for fear that the guilty among them would otherwise lose their souls.

      No thirteenth-century thinker could have been entirely sure that fallible human beings were even capable of stepping into God’s shoes. The risk that a juror might break his oath would have been as keenly perceived as the hope that he would abide by it, while the few people who pondered such matters would have had little confidence in the ability of jurors to assess evidence. As elsewhere in Europe, the unseen deed, like the hidden motive, was widely perceived as a phenomenon beyond mortal ken, unknowable to all but God. England’s first legal writer, Henry Bracton, thus explained in the 1220s or 1230s that it made no sense for jurors to judge a poisoning – the quintessentially secret crime, always associated with sorcery in the pre-modern world – because ‘[they] can know nothing of the deed’.

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