C O M P A R AT I V E S T U D Y Baker suggests that “[t]he king’s judges did not start out in the twelfth century with an inspired vision of things to come; they simply took over and continued what had gone before, what must have seemed part of the natural order of things.”44 In the thirteenth century, the judicial practice settled on using men from the vicinity of the offense to speak under oath – juratores (which is Latin for persons who have been sworn) – about the accused’s innocence or guilt. This procedure became known as the jury trial. Jurors were viewed as representatives of the community’s opinion.45 English judges were less frequently residents of the locality. They sat in Westminster and travelled to the country, and when in need of local knowledge, they depended on jurors.46 Early on, there was some overlap in the jurors’ judicial function and their role as witnesses.47 Jurors delivered their judgment based on what they themselves knew or gathered in the process of independent investigation.48 In other words, they were not impartial fact-finders or judges of the facts. According to Whitman, in the Middle Ages jurors: (a) were permitted to enter a “special” verdict, making “mere findings of fact while forcing the judge to pronounce the perilous judgment on ultimate liability;”49 (b) were immune from the attaint – a procedure to punish civil trial jurors for committing perjury, as perjury was not yet a crime;50 and (c) “could avoid inflicting blood punishments in some instances by allowing the accused the benefit of clergy,” by which the accused could claim to be outside the jurisdiction of the secular courts and be tried instead under canon law, which did not have juries.51 These factors shielded criminal jurors from moral pressure.52 ROMANO-CANON INQUISITION IN CONTINENTAL EUROPE While the jury trials developed in England inquisitorial procedure was in power on the Continent. The procedure known as the action per inquisitionem (Latin for “by inquiry”) received official recognition from the Fourth Lateran Council, which employed highly rationalized procedures to determine the guilt or innocence of clerics suspected of crimes against the Catholic Church.53 During the thirteenth century, this Baker, p. 72. Morano, p. 509. See also Frederick Pollock & Frederic W. Maitland, The History of English L aw 622-26 (Cambridge University Press 1898) (hereinafter “Pollock”). 46 Whitman, p.147, ns. 81-82. 47 Baker states that, occasionally, judges would examine jurors one by one to evaluate their answers and even reserve the decision of guilt or innocence for themselves. See Baker, p. 75. 48 Morano, p. 509. 49 Whitman, p. 154. 50 Whitman, p. 154. 51 Whitman, p. 156. 52 Whitman, p. 157. 53 Whitman, p. 99, citing Mathias Schmoeckel, Humanität und Staatsraison 187-294 (Böhlau 2000) (hereinafter “Schmoeckel”). 44 45 23