THE PALLADIUM OF JUSTICE: Origins of Trial by Jury

#### THE PALLADIUM OF JUSTICE: Origins of Trial by Jury. By Leonard W. Levy. Ivan R. Dee. 114 pp. $18.95

"The jury trial is at best the apotheosis of the amateur," Harvard Law School dean Erwin Griswold once declared. "Why should anyone think that 12 persons brought in from the street, selected in various ways for their lack of general ability, should have any special capacity for deciding controversies between persons?" These days, the jury system’s perceived shortcomings and outrages are legion: the acquittals of O.J. Simpson (after nine months of evidence and four hours of deliberation) and of the police officers who pummeled Rodney King; the $1 million award to a woman who claimed that a CAT scan had zapped her psychic powers; the $2.9 million awarded to a woman who spilled McDonald’s coffee in her lap; the $10.5 billion damages against Texaco (the jury reportedly tacked on another billion for each defense witness they loathed); and other tales of jurors befuddled or bamboozled, ignorant or indignant. Jury-room missteps may not be conclusive—judges routinely reduce excessive damage awards—but that’s hardly a ringing defense of the system.

Now comes historian Levy, author of the Pulitzer Prize-winning Origins of the Fifth Amendment (1968) and some 30 other books, to show how we got here. The jury arose eight centuries ago because Henry II (1154–1189) distrusted the traditional modes of settling disputes. Professional fighters—lances for hire— had corrupted trial by battle. Trial by ordeal was at the mercy of the supervising priest, who, if feeling charitable, might assign the litigant a less-than-nightmarish ordeal: immersing his arm in lukewarm rather than boiling water, for instance, or eating bread while those around him prayed that he would choke if guilty. So Henry established local, 12-man inquisitorial bodies and gradually expanded their jurisdiction. Why 12? According to the 17th-century treatise Duncomb’s Trials, "If the 12 apostles on their 12 thrones must try us in our eternal state, good reason has the law to appoint the number of 12 to try our temporal."

As Britain refined the jury system, Pope Innocent III (1198–1216) launched the Holy Inquisition against heretics. Conviction required something akin to proof beyond a reasonable doubt, which placed a premium on confessions—even confessions obtained by torture. So, despite the putatively pro-defendant standard of proof, "the entire history of the Inquisition reveals not a single instance of complete acquittal." Levy adroitly contrasts the inquisitorial system with the jury system, and assesses why Britain did not go the way of the Continent.

The British commitment to the local jury waned when jurors in the American colonies refused to enforce unpopular laws. Parliament shifted some trials in the colonies to judges ("the most grievous innovation of all," John Adams declared) and other trials to British juries (exposing the defendant, James Madison wrote, "to trial in a place where he was not even alleged to have ever made himself obnoxious"). The Declaration of Independence listed these practices as proof of Britain’s plot to impose "absolute despotism" on the colonies. The issue in the founding era was not amateur versus expert, as Griswold later framed it; it was citizen versus state.

When it shifts from Europe to America, Levy’s book unravels a bit, with twice-told tales and meager analysis. A larger problem is that his story ends around 1800. In that year (as in 1200), local jurors were valued because they were already familiar with the parties and the dispute. By 1900, judges often kept citizens with preexisting knowledge off juries. In 1800, too, juries often determined the law as well as the facts. By 1900, the Supreme Court had decreed that jurors were duty-bound to heed the judge’s instructions on the law (though they had, and still have, the raw power to acquit against the evidence). Given these and other changes since 1800, Akhil Reed Amar, in The Bill of Rights (1998), pronounces today’s jury "only a shadow of its former self." Such an assessment, or at least another century of history, would have enriched Levy’s book.

—Stephen Bates