Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt circulated in the moral and philosophical literature, they “were poured into the old formulas so that they emerged at the end of the century as the secular moral standard of ‘beyond reasonable doubt.’”160 Shapiro concludes that reasonable doubt was “simply a better explanation of the satisfied conscience standard that resulted from increasing familiarity with the ‘moral certainty’ concept.”161 Similarly, Sheppard links the early standard for convictions with certainty, rather than persuasion. He argues that the juror’s “obligation of an oath before God suggests that the jurors believed in an independent conviction of the guilt of the accused. Such an obligation would be unlikely to be met by persuasion to a lesser degree than certainty.”162 Sheppard explains that from the XVII to XIX centuries European philosophical debates turned on ideas of knowledge, understandings of probability, and levels of certainty. He concludes that as these divisions between different forms of certainty – including moral certainty – became widely accepted, they were applied in the common law.163 Sheppard concludes that the “moral element” of certainty can be seen as both “a neutral concept related to practical action,” as well as “an ethical concept related to judgments of right and wrong.”164 He argues that “there is no evidence that requirements of moral certainty would have been meant to alter the way in which jurors reached their beliefs.”165 Rather, moral certainty was “merely an addition by the educated to their description of what jurors would do, and had in fact been doing.”166 Not all records of the English cases prior to the XVII and early XVIII centuries survived. Because few other reports contain jury charges (instructions), scholars mostly rely on the State Trials167 and The Old Bailey Sessions Papers.168 The State Trials were cases brought under English law on offenses against the State. The Old Bailey Session Papers are transcripts of ordinary criminal trials in the Old Bailey Criminal Court in London.169 Shapiro, Moral Certainty, p. 171. Shapiro, Moral Certainty, p. 171. 162 Sheppard, p. 1174. 163 Sheppard, p. 1177-78. 164 Sheppard, p. 1180. 165 Sheppard, p. 1181. 166 Sheppard, p. 1181. 167 William Cobbett, Thomas Bayly Howell & Thomas Jones Howell, Cobbett’s Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors From the Earliest Period to the Present time (T.C. Hansard & R. Bagshaw 1816) (hereinafter “State Trials”), available at https://archive.org/details/acompletecollec03cobbgoog (last accessed 14 April 2016). 168 Green, p. 251-52. Shapiro, Doubt, p. 22. 169 The transcripts and summaries of the cases are available at http://www.oldbaileyonline.org. 160 161 38