Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt In Continental Europe and in England, there were two different responses to this crisis that explain how the civil and common law systems split off. On the Continent, where inquisitorial procedure had been developing over the course of the twelfth century, ordeals were replaced by the Romanocanon inquisition process. In England, where an early form of the jury had been introduced in the late twelfth century, ordeals were replaced by jury trials. RISE OF THE JURY TRIAL IN ENGLAND The practice of swearing men to furnish true information is ancient, with roots in Scandinavia and the old Carolingian empire.34 In England, an early form of the jury trial was used in the late eleventh and twelfth centuries.35 During the Norman invasion36 in the eleventh century, the Normans brought with them other forms of proof and trial, such as ordeals, wager of law,37 or trial by combat38. During the Norman period, the “accusing jury” was also common.39 The “accusing jury” was sworn to give a true answer, called veredictum, which is Latin for “verdict.”40 After the “accusing jury” named suspected criminals, the accused were sent to be tried by ordeal.41 The resulting verdicts of these procedures were essentially statements about the accused’s character, rather than his guilt or innocence.42 The prohibition in 1215 of the clergy’s participation in ordeals, resulting in the effective abolition of the ordeals, was a turning point. Although the older methods of proof were still part of the procedures applied in the earliest phase of the English courts, the use of a jury proved to be a better alternative and the older methods gradually fell out of use.43 34 Baker, p. 72. The Carolingian empire (800-924) was the historical period in the medieval France and Germany, ruled by the Frankish Carolingian dynasty. For more, see John W. Burgess, Sanctity of Law: In What Does It Consist? The Story of Man’s Attainment of Law and Order from Roman Times to the Present (1928), chapter 3, The Carolingian Empire and its Dependence of the Pope’s Authority. 35 Baker, p. 72-73. 36 The Norman invasion of England was the eleventh century occupation of England by an army of Norman, Breton, and French soldiers led by Duke William II of Normandy, later referred to as William the Conqueror. See Norman Davies, Europe: a history 336-339 (HarperPerennial 1998); see also Edward E. Freeman, The History of the Norman Conquest of England, Its Causes and Its Results, Volume 5, The Effects of the Norman Conquest, (Cambridge Univ. Press 2011) (first published in 1876). 37 Wager of law was a medieval defence used when an accused could establish his innocence by taking an oath and finding a required number of persons, typically twelve, to swear they believed the accused’s oath. See Baker, p. 73. 38 Trial by combat (or wager of battle) was a method used to settle accusations in the absence of witnesses or a confession, in which two parties in dispute fought in single combat. The winner of the fight was proclaimed to be right. Essentially, it was a judicially sanctioned duel. Trial by combat remained in use throughout the Middle Ages, gradually disappearing in the course of the sixteenth century. See Baker, p. 73. 39 Shapiro, Doubt, p. 5; Baker, p. 73. 40 Baker, p. 73. 41 Baker, p. 73. 42 Shapiro, Doubt, p. 3; Baker, p. 73. 43 Baker, p. 72-73. 22