Note (return) — Chapter II

The nature of this change may perhaps be best understood by comparing it with the similar but earlier and far more complete change that has taken place in the conditions under which that decision is formed which is expressed in the verdict of a jury. Trial by jury was, in its origin, simply a method of ascertaining, from ordinary men whose veracity was secured by religious sanctions, their real opinions on each case.[72] The various ways in which those opinions might have been formed were matters beyond the cognisance of the royal official who called the jury together, swore them, and registered their verdict. Trial by jury in England might therefore have developed on the same lines as it did in Athens, and have perished from the same causes. The number of the jury might have been increased, and the parties in the case might have hired advocates to write or deliver for them addresses containing distortions of fact and appeals to prejudice as audacious as those in the Private Orations of Demosthenes. It might have become more important that the witnesses should burst into passionate weeping than that they should tell what they knew, and the final verdict might have been taken by a show of hands, in a crowd that was rapidly degenerating into a mob. If such an institution had lasted up to our time, the newspapers would have taken sides in every important case. Each would have had its own version of the facts, the most telling points of which would have been reserved for the final edition on the eve of the verdict, and the fate of the prisoner or defendant would often have depended upon a strictly party vote.