R. H. Helmholz: Trials by Juries

R.H. Helmholz

R.H. Helmholz is the Ruth Wyatt Rosenson Distinguished Service Professor of Law at the University of Chicago Law School.

I welcome the chance to give a brief evaluation of Jim Oldham’s ability as a scholar and to provide an example of what his scholarship has meant in my own work.  I welcome it, first because I have a high opinion of what he has contributed to our understanding of legal history.  His writing on the history of juries has always been based on careful and extensive work with the relevant sources.  It has invariably been illuminating.  Conveniently summarized in the book he published in 2006, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries, it has made a real difference in what we know about the history of the common law.  In addition, his work has enlarged what I have been able to do within on my special interest: the history of the canon law and legal practice in the English church’s courts during the Middle Ages and into the early modern period.   

Jim’s great contribution has been to demonstrate what a protean institution the jury has been.  This has been true both in English and American law.  In England there were not only presentment juries and trial juries – the two we all learn about in courses in the history of the Common Law.  There were also juries of experts, juries de medietate linguae, juries of matrons, juries of merchants, and juries of neighbors called together to settle outstanding matters of local governance.  In other words, the term “jury” was used under many circumstances.   Juries served some quite different purposes.  The jurors themselves were charged with varied tasks.  In working on Lord Mansfield, Jim identified the astounding number of some six hundred cases in which these special juries of one sort or another played a role.  And it was more than a passive role.  These jurymen (and women) were not silent.  They contributed their own knowledge and their own expertise to the decision of different kinds of disputes, all of which had been brought before the royal courts.  Development over time in the role these juries played also occurred.  The English judges seem to have welcomed this development; they worked together with the many juries that were called into their courts.  In Jim’s view (and in mine) it is an exaggeration to suppose that judges and juries were engaged in a contest for supremacy. 

Jim’s scholarship thus raises several pertinent questions, one of which is: Was there ever a “jury system?” Should it be called a system at all? This matters, and not just because of today’s need to determine the meaning of the U.S. Constitution’s Seventh Amendment’s guarantee of jury trial.  It matters for a different reason.  Reliance upon jury verdicts is said to have been the institution that distinguished the English common law from the trial by witness testimony that was characteristic of procedural law on the Continent.  It is thought to have been a source of disagreement, or at least contest, between common lawyers and civil lawyers.  The traditional view is that “Roman-canon procedure was jury-free.”[1]  In England, determination of facts was made by juries; on the Continent it was made by judges, who applied a sophisticated law of evaluating written and oral evidence – a too sophisticated system according to many. And that divide was also one that separated the courts in England where the civil law provided the applicable procedural law, in particular the courts of the church and to some extent the Court of Chancery itself. 

At best, this is a defensible exaggeration. In fact, jury-like bodies were in regular use in England’s consistory courts. Long ago, Raoul Van Caenegem provided some examples of decisions made by these institutions in an ecclesiastical setting, taking them from twelfth century disputes about rights in land between religious houses.  These inquests occurred outside of the royal courts,[2] suggesting to him that the use of juries did not begin with the assizes of Henry II.  I can add that these instances were not isolated examples of the scope of the use of jury-like bodies in the later history of the ecclesiastical courts.  Indeed it happened quite often.[3]  Of course, like so many similar institutions in the civil law and the common law, the two were known by different names.  They were ‘Juries’ in the common law; ‘Inquests’ in the civil law.  Both, however, functioned in much the same way – putting a question of fact before a group of men or women assembled for the purpose of discovering the truth.  The judge would then act in response to their decision. 

Here are three representative examples drawn from the ecclesiastical court records.  First, when in 1305 a dispute over a legality of a husband’s harsh treatment of his wife came before the Court of Arches in London, the judge determined “to inquire by thirteen or twelve men from among the faithful neighbors (of the parties) as to which of the parties was guilty of the aforesaid dissension and dispute.”  That is a quote in translation.  Second, when a dispute about the condition of a parish church came before an ecclesiastical court in the diocese of Hereford in which the question of the sufficiency of the vicar’s duty to repair was at issue, the judge called upon an inquest “by faithful men, both clerical and lay, having full notice of the defects.” They were charged with deciding the dispute according to their estimate of the extent of those defects.  Third, when a man’s impotence was alleged as an impediment to his ability to contract a valid marriage, in England the ecclesiastical courts sometimes called upon a group of women to test the man’s virility.  Jim took note of it in his treatment of juries of matrons.  Here is an example: in a case from York in 1433, the court deputized seven “honest matrons” to do the testing.  One of them, in the words of the record, “exposed her naked breasts and with her hands warmed at the fire, held and rubbed the penis and testicles” of the unfortunate man.  The result: again in the words of the record, “the whole time aforesaid, the said penis remained not three inches long remaining without any increase or decrease.” 

I cannot help thinking that a connection between these ”honest matrons” in medieval York and the formidable group of matrons who appear on the dust jacket of Jim Oldham’s book, Trial by Jury, will not be obvious to many modern readers.  It does require some effort of the imagination.  Perhaps it is even true that a connection between them will only be apparent to lawyers.  But that seems appropriate.  Jim is a lawyer – and a good one.

[1] John Langbein, “Bifurcation and the Bench: The Influence of the Jury on English Conceptions of the Judiciary,” in Judges and Judging in the History of the Common Law and Civil Law: From Antiquity to Modern Times, ed. Paul Brand and Joshua Getzler (Cambridge: Cambridge University Press, 2012), 68.

[2] R. C. Van Caenegem, The Birth of the English Common Law (Cambridge: Cambridge University Press, 1973), 76-77.

[3] A fuller but still preliminary account of this subject is found in my “Canonical ‘Juries’ in Medieval England,” in Ins Wasser geworfen und Ozeane durchquert: Festschrift für Knut Wolfgang Nörr, ed. Mario Ascheri et al. (‎Böhlau Köln: Verlag, 2003), 403-18.