From ‘In Defence of the Jury’, in E P Thompson, Making History: Writings on History and Culture (New York: New Press, 1994):
… Two basic propositions of democracy are so bizarre to their [UK government bureaucrats’] atrophied faculties that they really cannot comprehend them. The first is that there could be occasions when laws are judged by the public to be oppressive, or when the subject requires a defence against the Crown (or organs of the state). In our history it is at precisely such moments that the jury has interposed the power of its verdict…
The defence of the subject against the over-mighty state was once regarded – by such men as Sir William Blackstone and Thomas Jefferson – as a crucial function of the jury, elevating it to a high place among the defining institutions of a political democracy. For Alexis de Tocqueville the American jury as an ’eminently republican element in government’ which ‘places the real direction of Society in the hands of the governed’. I know of only one old judge, long retired from practice, who even understands this language today. And he – Lord Devlin – now writes in elegiac tone. Thirty years ago he could still say that ‘the jury is the lamp that shows that freedom lives.’ In 1978, he warned of the gathering signs ‘that the jury has another half-century or so of life to be spent in the sort of comfortable reservation which conquerors, bringing with them a new civilisation, assign to the natives whom they are displacing.
The second proposition is beyond the comprehension not only of our betters but of almost any of us in these latter days. It is the quaint archaic notion that anyone – randomly selected – might be able to perform a human-sized office or role. We have less sense of ourselves than villages in Medieval times, who rotated parish offices, or 18th century tradesmen who could find it in themselves to defy the Attorney-General and the Bench. The jury is perhaps the last place in our social organisation where any person, any citizen, may be called upon to perform a fully adult role. It has not been shown that our fellow citizens have failed, when placed in the jury box. They appear, when they find themselves there, to undergo some inexplicable reversion to pre-modern modes, and to find in themselves resources to fulfill the responsibility. But the very idea of it is ‘illogical’ and absurd. Only a crank could possibly suggest such a direct exercise of democracy today. Indeed, although as a historian I have to confess that the thing has worked, I can scarely comprehend it myself.
Originally published in the London Review of Books, Dec 1986.