The Volokh Conspiracy

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The uncivil jury, part 2: The unromantic origins of the jury and the continuous need for an alternative


In my previous post, I discussed Americans' unhealthy romance with the jury and the pitiful current reality of almost no civil jury trials. Litigants, the legal profession, and the bench have voted for settlement instead—settlement that may or may not reflect facts and law.

In this post, I'll demystify the origins of the jury and explain why an alternative was needed, and used, from the earliest days.

It's fascinating that so few members of the public—or even of the legal profession—are aware of the true origins of the jury. The institution depends heavily on myths and ignorance about its history to sustain devotion.

Thomas Jefferson was a vigorous promoter of one of the most persistent of these myths, though it did not originate with him: that the jury was a legacy of the Anglo-Saxons. [See H. Trevor Colbourn, The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution 158-84 (1965).] Jefferson viewed jury trial as one of the "free" Anglo-Saxon institutions that supposedly embodied a primitive democracy. He gloried in this inheritance of liberty from his ancestors. In Jefferson's view, although the feudal and French-speaking Normans temporarily deformed the rights of Englishmen, the English continually fought back and in the end maintained their liberties, including jury trial.

Jefferson could hardly have been more wrong. The Normans imposed jury trial on the English as a means of maintaining control of the country.

In the middle of the 12th century, King Henry II, who had been born and raised in France, had just gained control of England after a nasty civil war between two rival claimants to the throne (one of whom was his mother). Henry had a problem. The civil war had caused many landholders to be ousted from their lands by force. Lands often changed hands many times as rival factions gained and lost power. How was he to resolve who should possess what? The traditional Norman method of adjudicating title to land was trial by battle. That seemed too clumsy and inaccurate for the restorations Henry had in mind.

So he and his advisers hit upon a different means of deciding possession of land: Gather together 12 of the locals, put them on oath, and make them say which of two parties should possess a disputed piece of land.

Thus was born the civil jury.

Henry announced this new procedure in the Assize of Clarendon in 1166, exactly a century after his Norman great-grandfather William I had conquered England. (While he was at it, in the same Assize, Henry announced the creation of the jury of presentment, the forerunner of the grand jury, as a body to accuse alleged criminals. The criminal trial jury was still unknown; criminal trials were by ordeal—hot iron, hot water, cold water, and others.)

The new procedure had considerable advantages. Besides being more accurate than trial by battle, it was cheap. Royal officials could haul together 12 laypersons, under threat of heavy fines for non-appearance, and make them give a verdict without paying them. The jury was self-informing; no expensive official investigation was necessary. No dissent was tolerated; verdicts had to be unanimous. The system put great emphasis on the religious sanction of the oath, to ensure accuracy. The word juror comes from the French jureur, a person who swears an oath. One might have thought that Jefferson, who knew French, would have noticed this definitely unAnglo-Saxon etymology, but such is the power of romantic delusion that he ignored its import.

The jury system depended heavily on local knowledge, which jurors were apt to have because almost everyone lived in small villages. Jurors from the villages knew local persons and happenings well. Major decisions of the community such as when and what to plant and when to harvest were all made communally under the open fields system. Jurors were thus able to come to court knowing their verdict already. [See John H. Langbein, Renée Lettow Lerner, and Bruce P. Smith, History of the Common Law: The Development of Anglo-American Legal Institutions 13-17 (2009).]

But the system had disadvantages as well. No one expected a group of 12 villagers to be able to decide disputes involving complicated facts, multiple parties, multiple claims, or complex remedies. To enable decision-making by a jury, the system worked hard to radically simplify disputes.

To begin an action, a plaintiff had to choose and buy a writ. There were a few dozen writs, but all were rigid and formulaic, specifying a particular type of injury, defendant, procedure, and remedy. Opposing lawyers appeared before royal judges in the courts at Westminster, near London, to plead orally in each case down to a single, simple factual issue.

Almost no joinder of parties was tolerated. Complex remedies were rejected. A separate claim required a separate writ, that is, action, if it was not precluded altogether. Once the issue was properly joined, with these limitations, the case was sent to a local jury in the provinces to give its self-informed verdict, and judgment was entered accordingly. There was no appeal on substantive grounds. The voice of the jury was the voice of the country, which was the voice of God.

This was the common law system. It has been the subject of endless praise, by many who have ignored or been blithely unaware of its severe shortcomings.

Obviously many disputes could not adequately be resolved by such methods. English kings and their judges had to figure out alternatives to resolve more complicated disputes—or disputes that simply did not fit within the writ system—from the beginning. By the late 14th century, the main alternative had become the Court of Chancery.

What was Chancery? It began as the king's clerical office, but evolved into a court as the petitions kept pouring in. In charge was the lord chancellor, who until the beginning of the sixteenth century was almost always a bishop or an archbishop. This is significant, because the chancellor ran Chancery the same way he ran his church court: using procedure that had been developed on the continent of Europe by the church.

In Chancery, the chancellor, not lay jurors, found facts and resolved disputes. He allowed flexible claims, joinder of multiple parties and claims, complicated factual disputes, and complex remedies such as injunctions. He subpoenaed parties and witnesses to appear before him and testify under oath, and these depositions were taken down in writing. He could demand production of documents. He could deputize persons to administer interrogatories. These procedures, together with the substantive law that the chancellor applied, became known as equity.

Equity procedure was such an improvement on the common law that Chancery quickly developed a massive substantive jurisdiction. Fraud, forgery, trusts, bankruptcy, mortgages, business associations—all were entrusted to Chancery, in many cases exclusively. Given the shortcomings of the common law, equity was vital to the functioning of the legal system in England.

Chance plays a role in history. Henry II had to deal with the aftermath of the civil war in the 1150s and 60s. The procedures developed by the church and later used in Chancery reached English church courts from the continent in the 1180s. Had Henry's need for new procedures been delayed by just a few decades, England might have adopted continental procedure for all civil cases. The civil jury might never have existed.

In the next post, I'll discuss the development of jury trial, the efforts of English judges to control juries, and the ongoing controversies over nullification.