Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt Therefrom, in his seminal text The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial, contemporary Professor James Q. Whitman argues that, although the reasonable doubt standard emerged in the course of the seventeenth and eighteenth centuries (as others conclude), its origins can be traced to the Middle Ages, where it was originally conceived not for the protection of the accused, but rather to protect the “souls of the jurors”: “The reasonable doubt rule … is the last vestige of a vanished premodern Christian world. At its origins, this familiar rule was not intended to perform the function we ask it to promote today: It was not primarily intended to protect the accused. Instead, it had a significantly different purpose. Strange as it may sound, the reasonable doubt formula was originally concerned with protecting the souls of the jurors against damnation”.19 Other contemporary scholars, represented by Anthony A. Morano and Barbara J. Shapiro, share Whitman’s observations that early Christian theologians viewed any bloodshed as a pollution of the soul requiring purification.20 However, they don’t share Whitman’s theological interpretation that reasonable doubt emerged in Middle Ages but see reasonable doubt as “a concept born of the secular Enlightenment and humanist philosophy of the XVIII century.” This is because, according to them, the ordal provided a transcendental truth which is indisputable by definition, so the case could hardly be considered doubtful.21 To protect judges, it has been also thought that it is the law that sheds the convicted criminal’s blood, not the judge. According to an early Christian theologian Saint Jerome (347 – 420): “To punish murderers, and those who commit sacrilege and poisoners, is not to shed blood. It is the ministry of the laws.”22 Latin philosopher and theologian, Saint Augustine of Hippo (354 – 430), similarly noted: “[W]hen a man is killed justly, it is the law that kills him, not you.” By placing the onus of taking the life or mutilating the body of a convicted criminal on the law, judges were mere conduits “[contributing] their efforts to killing criminals, without themselves suffering the loss of eternal life as ‘murderers.’”23 Centuries later Popes Clement III (1187 – 1191) and Innocent III (1198 – 1216) exhorted clergy to avoid the stain of bloodshed by following the safer path: James Q. Whitman, The Origins of “Reasonable Doubt” 2-3 (Yale University Press 2008) (hereinafter “Whitman”) p. 3. Barbara Shapiro, Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the Anglo-American Law of Evidence 4 (University of California Press 1991) (hereinafter “Shapiro, Doubt”); Anthony Morano, A Reexamination of the Development of the Reasonable Doubt Rule, 55 B. U. L. Rev. 507 (1975) (hereinafter “Morano”), p. 51. 21 Miller W. Shealy Jr., A Reasonable Doubt About “Reasonable Doubt”, 65 Okla. L. Rev. 225, 229 (20122013) (hereinafter “Shealy”). 22 Whitman, p. 39, note 36, citing Commentaria In Hieremiam IV, 35. In S. Hieronymi Opera, pt. I, 3, Corpus Christianorum Series Latina, vol. 74 (Turnholt: Brepols 1960), 201: “Homicidas enim et sacrilegos en venenarios punier, non est effusion sanguinis, se legume ministerium.”. 23 Whitman, p. 40. 19 20 20