Paul Halliday: Jim Oldham’s Special Jury

Paul Halliday

Paul Halliday is the Julian Bishko Professor of History and Professor of Law at the University of Virginia.

I first met Jim Oldham twenty years ago, at a meeting of the ASLH. After I gave a paper, he introduced himself and asked if I might join him and others working on the cases concerning detention at Guantanamo Bay then wending their way through U.S. courts. That introduction changed my intellectual life in ways that reverberate through my work to this day. I shall always be grateful.

But I was grateful to Jim long before we met, for the example he set in his scholarship, which I already knew well. At that point, I had made some headway in what would be a long trawl through the manuscript records, and especially the manuscript case reports, of habeas corpus cases. I had done so in large part owing to the exhortations of Jim, who, along with Sir John Baker, has done more than anyone in recent decades to get us to take seriously what often ignored manuscripts hold, and to bring them into a more critical relationship with printed sources.[1]

On that first meeting and on others, I’ve heard Jim say in the middle of a thought, “well, I’m not a real historian, I’m just a lawyer…” (To which I usually replied by noting I wasn’t even a fake lawyer, let alone a real one.) But then he’d say something peculiarly incisive about past experience and why it took the form that it did. Hardly surprising. For it is not just in his exhortations, but by the example of all his work, that Jim shows exactly what a real historian looks like: like a person who understands how the nature of our sources—their physical form, how and why they were made, and the limitations these pose—must inform what we can claim to know. To see how much this matters in his work, all one needs to do is to read his footnotes, then go from the many notes where he cites a judge’s notebook or a manuscript case report back to his text to see how Jim has used such materials to correct what we thought we knew.

Today’s event, “The Love and Labor of Archival Research,” must attend to this aspect of Jim’s work above all else. The example of his intensive archival practice is what continues to ripple through the work of everyone in this room and many people beyond; it will do so well into the future. It certainly has and will in my own work. I want to reflect on this by giving a quick overview of Jim’s work on special juries. I’ll conclude with a small offering about special juries, in thanks to Jim, to show how we can continue to build on his findings by following his example of looking closely at previously ignored manuscripts. That will take us to Sri Lanka. But I get ahead of myself.

Jim’s work on juries, and in particular, the special jury, spans seven centuries; it crosses back and forth across the Atlantic. For me, the key result of this work is to make us think of the jury less as an institution, with one clear normative form, but as a practice marked by extraordinary variation across time and space. This claim—that historically, there has been no one conception or practice of the jury—should matter to lawyers as well as historians. After all, if jury practice in American courts is be guided by a so-called “historical test,” then Jim’s work suggests that test will produce much weirder results than our courts might recognize.[2]

How shall we understand the special jury? To summarize Jim’s findings, I think we can imagine the special jury’s specialness taking two main forms: one concerned with who shall be on a jury, the other with how a particular kind of jury was seated. In other words, one concerned with types of people—or, we might say, who might count as peers—and the other concerned with the procedures by which what came to be called a “struck jury” was made. Here, what was also called a “special jury” was a legal term of art, indicating a particular practice in jury formation.

Let’s begin with this first variety of specialness, concerned with who might count as a juror. We might understand this as running along a sliding scale, with a jury of ever more narrowly defined “peers” at one end, and at the other end, with what Jim calls a “reasonable cross-section of society.” By working at the “peer” end of the spectrum, Jim explains, a defendant would receive a “fair trial” by using “a representative number of people who share the defendant’s cultural, linguistic, ethnic, or possibly, socioeconomic circumstances.” At the other end of the spectrum, a jury made from a “reasonable cross-section” of society was intended “to ensure that members of all…segments of the community have the opportunity to be jurors.”[3] Though this might look like two different kinds of jury in conception—and Jim discusses them as such—Jim also shows how, in practice, they constantly interacted. In this way, all juries were to some degree special.

The most obvious form of specialness across this spectrum existed at the end where narrowly defined groups of peers worked together. Jim provides especially vibrant accounts of late medieval and early modern juries of matrons or merchants. His essay on the jury of matrons remains a classic of the social history of law; it’s just so rich in astonishing little details.[4] Though not called “special juries” as a legal term of art, such juries were certainly special in the colloquial sense. Making juries out of matrons or merchants when women’s bodies or commercial practices were in dispute, or calling juries of the “half tongue” in cases involving foreigners, involved giving a tight definition to what counts as a peer, thereby cutting down the “reasonable cross-section” of society from which sworn persons might otherwise be taken.[5]

We get a better sense of how the “peer” conception always cut down the “reasonable cross-section” conception of the jury by looking at the opposite end of the spectrum. After all, the most important criteria defining jury participation were those of gender and wealth. No women, and few poor people, sat on most juries: the kinds of people we might imagine were their peers were not seated to try women and the poor. Even if we accept, as early moderns did, that a “reasonable cross-section” of society could be exclusively male and financially secure, those who remained were further limited by one more form of restriction: geography, or what was often called vicinage. A vicinage requirement was normally met by ensuring that jurors were residents of the county where a dispute occurred. As the Court of Common Pleas put it in the fourteenth century when throwing out a verdict produced by a jury that violated this norm: “jurors [of one county] do not become knowledgeable about matters that happened in another county.”[6] If, according to late medieval expectations, a jury was to be at least in part self-informing, then all juries had to be special in at least this minimal, geographically circumscribed way.

Specialness of these simple kinds—gender, wealth, and place—sat alongside all the other kinds of specialness that Jim discussed in detail: matrons, merchants, foreigners, etc. Another way to think about juries made special by the status of their members is to see them as operating on the same principle—the vicinage principle—though transposed into another key. If vicinage is about physical proximity, then juries of merchants or matrons operated according to proximities of a different sort: of gender or profession. Either way, defining who counted as a peer always meant working with something less than a “reasonable cross-section” of society.

The degrees of specialness that ran between these two poles were categorically different from the second kind of specialness Jim identified. Here, a jury became titularly “special” according to the process by which it was made: usually as the parties to a case alternated in “striking” names from a list of potential jurors until only twelve remained. As Jim shows, the words ”struck” and “special” were often used as synonyms for this practice, which became more regular after a statute of 1730.[7] Over time, such juries were typically restricted to “men of quality and substance,” a pattern that appeared across the Atlantic, where many colonies, then states, used “struck” juries to ensure that men of “the better rank” would fill them.[8] A cynic might observe—critics centuries ago certainly did—that a “struck jury” might be little more than a polite term for a packed jury.[9]

A special jury created by this procedure was different in kind, not degree, from the other kinds of special jury that I have described as running along the scale between a “reasonable cross-section” of society and a jury of peers. We might go further: to say that one point of this striking process was to remove jury selection from the peer to reasonable cross-section sliding scale altogether, resulting in a jury that was neither a “reasonable cross-section” nor one made of people who might be thought of as peers of the parties. Instead, it often resulted in an elite body judging others of humbler status.

Whether we follow degrees of specialness along a spectrum between breadth at one end and a more narrowly defined group of peers at the other, or we focus on special juries arising from a process during which names were struck from lists, Jim shows that jury process has always operated a long way from a “reasonable cross-section” conception of juries. Any notion that this was once the pervasive norm, Jim concludes, is “ahistorical:” a judgment, I might add, that only a very real historian could make, and one made as a warning to those who think it looks easy to enlist history in the solution of contemporary legal puzzles.[10]


I want to conclude by pointing to juries in early 19th-century Ceylon to illustrate these same issues at work in a very different setting, and thereby demonstrate the broad explanatory force of Jim’s work on the special jury. The island now called Sri Lanka was taken by the British from the Dutch in 1796. While Dutch and indigenous property laws largely persisted, English criminal law was adopted at the same time that a Supreme Court was erected in 1801. A decade later, a new charter for that court created what the British celebrated as the first so-called “native” juries anywhere in Britain’s empire.

The operation of these Ceylon juries shows vividly the two kinds of specialness in jury practice that Jim identified: the kind that always narrowed a “reasonable cross-section” of society into a group of peers; and another kind of specialness, which soon became dominant in Ceylon’s criminal trials, made by following a procedure by which only certain sorts of people might serve on juries. I was only able to see the meaning of all this for two reasons. First, Jim had taught me to keep an eye open for a much wider range of jury practices than I might have found otherwise; second, I followed his exhortation that we must attend to little-studied manuscripts to discover new things: in this case, by going to the archives in Colombo.

At first, the plan in Ceylon was to adopt what were effectively mixed-tongue juries of a kind Jim discussed in England, used when foreigners were parties to litigation.[11] In Ceylon, this would have meant mixing British jurors with locals. Instead, a more fine-grained approach was adopted. This involved sorting the population into lists categorized by religion, caste, and class.[12] Just as the vicinage principle might morph into a status principle in England to define “peer” in ways that were appropriate to the parties involved—matrons, merchants—this effort in Sri Lanka involved a transposition of the vicinage principle into a caste, religion, and class principle. Vellales of the first class would judge Vellale defendants of the first class; “Moormen” juries would decide the fate of Islamic defendants. As Jim suggests, and as we find in modern debates about jury composition according to various markers of race, gender, and class, we might see the choice to proceed this way in Ceylon arising from a view that only those most like the accused could deliver justice. Another reason to use the “peer” principle to narrow the “reasonable cross-section” principle in this way involved the special knowledge of the norms of specific religious or caste groups such juries could bring to their work—something not unlike England’s use of matrons and merchants.

All the effort that went into making these remarkable jury lists soon came to naught. Part of the problem involved reputation and status: many jurors from elite castes and classes complained that they had been “paneled together” with people beneath their station.[13] Another issue was one long faced in England: the cost of jury service, especially for those of slender means, when hundreds had to wait around at sessions, uncertain they might even be seated on a panel.[14] So, within a few years, the overwhelming number of verdicts were instead produced by juries of Burghers (people of mixed European descent) or first-class Vellales—the most socially eminent group—rather than by juries that matched defendants by caste and religion.

This hand-colored aquatint, published by Rudolph Ackermann and engraved from an original watercolor by James Stephanoff (ca. 1818), celebrated the adoption of jury trials in Ceylon. It also depicts what amounts to a special jury (left, rear) sitting in judgment of five lower caste defendants in the dock, at center.  Image courtesy of the Yale Center for British Art (B1977.14.13147).

This practice was confirmed in 1815, by an extraordinary series of orders that createdwhat they called, in imitation of English practice, “special juries.”This order declared it

desirable that in all criminal cases of a serious nature, the juries should be composed solely of persons of the highest respectability & of the best education, and that such persons should be distinguished in this country, as they are in England, by the name of Special Jurymen.[15]

Use of special juries led to an apparent uptick in conviction rates[16]—which had been quite low by contemporary English standards—and to a remarkable group of petitions from island convicts in 1829-31 complaining they had been judged by jurors who were not of their “nation:” in other words, they had been convicted by people who were not their peers.[17]

I’ve travelled a long way from the Atlantic world where Jim has done his work. I have done so to show how far we might go with his findings, and with his methods, and to thank him for the example he has set for all of us. When we follow that example, we discover how what he has taught us about special juries in England and America also teaches us about all those other parts of the world where juries have appeared. This puts America’s legal history not only into what we often think of as a “heritage” tied in linear fashion to England, but into a multi-dimensional web of interactions and experiences that long stretched, and still stretches, around the globe. One significant purpose of Jim’s work on the special jury has been to show us how our assumptions about the past have often been wrong, and to show us how, when corrected, we might have to rethink the ideas we deploy when we try to solve problems in the present. All I want to suggest in closing is that what Jim has shown us of Anglo-American experience is also true of experiences far beyond. Showing us all that? Now that’s the accomplishment of a real historian, one to whom I owe so much. So, I can only conclude by saying, thank you.

[1] John Baker, “Why the History of English Law Has Not Been Finished,” Cambridge Law Journal, 59 (2000), 62-84.

[2] James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries (New York, 2006), 1-4.

[3] Oldham, Trial by Jury, 176-77.

[4] Oldham, Trial by Jury, 80-114.

[5] Oldham, Trial by Jury, 138-40.

[6] Oldham, Trial by Jury, 117, quoting Y.B. 1 Edw. 3, f. 2, lib. ass.16.

[7] 3 George 2, c. 25. Oldham, Trial by Jury, 142. The first statutory reference to special juries was in 1696: 7/8 William 3, c32; Oldham, Trial by Jury, 145.

[8] Oldham, Trial by Jury, especially 133, 179, 194, 174-212.

[9] Oldham, Trial by Jury, 166.

[10] Oldham, Trial by Jury, 209.

[11] Oldham, Trial by Jury, 138-40 and 202-03. For Governor Sir Thomas Maitland’s proposal along these lines, see the National Archives, London [TNA], CO54/31, f. 100.

[12] These lists of late 1811 are in the Sri Lankan National Archives, Colombo [SLNA], 25.1/29. On caste and jury trials, see John D. Rogers, Crime, Justice and Society in Colonial Sri Lanka (London, 1987), 33-37 and 47. See also M. U. de Silva, “Land Tenure, Caste System, and the Rajakariya, under Foreign Rule: A Review of Change in Sri Lanka under Western Powers, 1597-1832,” Journal of the Royal Asiatic Society of Sri Lanka, new series 37 (1993), 1-57.

[13] Letter of forty-two Burghers to Sir Alexander Johnston CJ, July 1815: SLNA 25.1/27, and TNA, CO54/68, f. 226.

[14] These summonses were always broken down by caste. The summons for Colombo sessions in August 1816 was typical in calling for 50 Burghers and 250 Sinhalese, “Malabar” (Tamil speaking), and “Moor” (Muslim) jurors. SLNA, 81/150, 24 August 1816.

[15] SLNA, 81/150; also printed in TNA, CO54/88, f. 202v. (11 August 1815).

[16] At three sessions in 1815-16, when there was broader participation in juries, 30% of 33 accused were convicted. At two sessions of 1825 and 1827, 55% of 22 accused were convicted. These are small numbers, so one must not overdraw conclusions from them. See SLNA, 81/150 (1815-16) and 81/153 (1825-27).

[17] TNA, CO416/31, f. 165.