It is well understood among those familiar with international law that the legal systems of England and Wales (and much of The Commonwealth) differ fundamentally from those of continental Europe. The former is generally referred to as the common law system, while the latter is generally labelled the civil law system. It is equally well understood that fundamental de jure dispute-resolution mechanisms vary significantly between the two, particularly in the common law’s dependence—historically in English law, and to this day in United States law—upon a lay jury as finder of fact. What is less well understood is the evolution of the common law judges’ exercise of control over the jury trial in order to achieve what is, at least in the eyes of judges, the just resolution of a case. I believe a fuller understanding of the legal history of England in this regard will lead to an appreciation of how the general legal principle of assuring a just result has been implemented by common law judges despite the strictures of the system of law in which they have labored.

Legal education in the United States is focused—and quite understandably so—upon transmitting to the students both the substantive and the procedural aspects of the common law system. Much of the first year curriculum focuses upon the “black-letter” building blocks of the system. Among those are courses with clear common law roots, exemplified by the causes of action ex delicto and ex contractu which have evolved over many centuries. Anyone who has taught such courses for a long time has been asked, “Professor, what has the concept we are studying got to do with justice?” Some law professors answer sardonically, something like this: “Ours is a system of laws, not of justice”.

As a general, overarching principle of law, of course, the achievement of justice as the end result of the legal process is a paramount goal. We all have an ingrained sense that a system of laws without justice is bereft of moral worth. Indeed, the fundaments of justice, it is written, issued forth directly from God to Moses:

And the Lord spake unto Moses, saying…Ye shall do no unrighteousness in judgment; thou shalt not respect the person of the poor nor honour the person of the mighty; but in righteousness shalt thou judge thy neighbor.¹

Judges are chosen and trained to achieve just results in their adjudications. In a system in which judges are not only the interpreters of law, but are also the ultimate resolvers of a case as to both facts and law, their obligation to achieve justice is fulfilled without extra-judicial influence. That is, their judgments are based solely upon their own resolutions of the legal and factual issues at play in the case. In the common law system as it stood for many centuries in England, though, the finding of fact was the sole province of a jury of local citizens, untrained in the law, not of judges. Indeed, English High Court judges lacked the power to make findings of fact in civil cases until the Common Law Procedure Act 1854; in consequence, all issues of disputed fact were necessarily decided by a lay jury from early medieval times to the middle of the nineteenth century.

When it comes to issues of fact, the common law judge’s role today (where the jury trial survives as an “instructed jury”) is primarily that of a gatekeeper, filtering what the jury hears and sees according to rules of evidence which allow or disallow specific sorts of evidence (e.g., hearsay) or which allow or disallow specific modes of evidence presentation (e.g., leading questions). Black-letter, focused gatekeeping rules such as these are not needed in systems of law in which there is no fact-finding jury. The common law judge in all jurisdictions instructs the jury on the principles of law governing the case. Those instructions are said to be binding on the jury, but the fact that most juries return a general verdict for one party or the other, without giving reasons, makes it difficult to tell if they have, in fact, been followed. In common law jurisdictions other than the United States, the judge also customarily “sums up” the evidence to the jury before submitting the case for deliberation, reviewing and giving commentary on the evidence the jury has heard.²

The instructed jury of today evolved during the early modern period (roughly, the Age of Colonialism) from the common law’s early, self-informing jury. The earlier jury at common law was composed of men from the vicinity of the trial, who were summoned to give witness to the royal justices as to the facts of the case stated in the plaintiff’s pleadings, in civil disputes.³ They knew, it is safe to say, the parties and the witnesses, as well as common repute as to their characters and credibility. They usually had most likely heard rumors about the underlying dispute. It is also generally thought that they knew a good bit of basic law. All Englishmen likely to be called upon for jury service were presumed to know the common law; its ubiquity is one reason why it is so named. In essence, in the days when England was very rural, the juries often were more like witnesses than like judges of the facts based on evidence. That is, they gave voice to local opinion, and the verdicts they returned were essentially adopted by the royal justices without question. Over time, though, common law judges developed tools that enabled them to see to it that a jury’s verdict that judges considered unjust would not stand.

Because the history of English law is one of evolution, by and large, rather than of top-down statutory or royal direction (of course, with exceptions), it is not easy to pinpoint a time at which the polar shift in the jury system from self-instructed to instructed took place. It was a process contributed to by many factors, including the expansion of jury venires within the counties beyond the immediate locality where the dispute arose and population shifts from rural areas to manufacturing centers as the Industrial Revolution progressed, all resulting in venires unlikely to bring any foreknowledge with them to the trial. Although precise milestones in this transformative process are difficult to discern,⁴ one thing that is clear is that, as the jury’s role shifted over time, so did that of the judge, who took a more active role in management of the trial. Arguments of counsel were cabined by the judge; rules of evidence were applied by the judge; and in the “summing up”, the jury were instructed by the judge on the law and heard his comments on the facts.

The judges eventually gave themselves broad powers to nullify the result of an unjust jury verdict. It was by the exercise of their powers of jury control that the English common law judges carried out their duty to see to it that a just result was the ultimate outcome of a trial, though the journey down the road from self-instructing to instructed jury under judicial control was a long one. It might well be said that the history of the common law is one in which justice in result came to depend largely upon the judge-jury dynamic.

There is no easy way to shed scholarly light upon the administration of law in England before the Norman Conquest (A.D. 1066). It is generally thought that the common law, and especially the institution of judgment by one’s neighbors, had its roots in Anglo-Saxon tribal custom. In fact, one of the foremost legal history texts utilized in the United States makes reference to der Sachsenspiegel ⁵ to illustrate early legal proceedings in England. The record expands after the Conquest, and a fair amount is recorded about legal developments from the thirteenth century forward.

Despite the fact that many minor disputes were resolved by lords of manors, the Crown was from early times looked to as a fount of justice, much as in Roman times the Emperor had been. The maintenance of a just and fair body of law is so important a royal duty that a substantial part of the English Coronation Oath has been traditionally devoted to it. We find this account of the Coronation Oath of Edward II in 1308⁶:

[Bishop] Sire, will you grant and keep and by your oath confirm to the people of England the laws and customs given to them by the previous just and god-fearing kings, your ancestors, and especially the laws, customs, and liberties granted to the clergy and people by the glorious king, the sainted Edward, your predecessor?

[Edward II] I grant and promise them.

[B] Sire, will you in all your judgments, so far as in you lies, preserve to God and Holy Church, and to the people and clergy, entire peace and concord before God?

[E] I will preserve them.

[B] Sire, will you, so far as in you lies, cause justice to be rendered rightly,

impartially, and wisely, in compassion and in truth?

[E] I will do so.

[B] Sire, do you grant to be held and observed the just laws and customs that the community of your realm shall determine, and will you, so far as in you lies,

defend and strengthen them to the honour of God?

[E] I grant and promise them.

During the reign of Henry II (1154-89), the administration of justice came under increasing royal control, and the royal justices began to travel regularly on circuit, away from the curia regis, to major county towns to hold sessions of court, in what came to be the eyre and assize sessions. All royal itinerant justices had sworn an oath, according to Bracton, focused upon the doing of justice:

The oath shall be this. Each will swear, one after the other, that in the counties into which they are to travel they will do right justice to the best of their ability to rich and poor alike [straight from Leviticus 19], and that they will observe the assise [sic] according to the articles set out … and that they will execute all that is right and just in matters pertaining to the crown of the lord king. And after his oath let each of them be instructed to promote, to the best of his ability, the advantage of the lord king.

The prevailing theme of these officers’ oaths was to do what is both right (presumably, being faithful to the common law) and just.⁷ Although jurors also swore an oath—to return a true verdict—they did so as laymen, not as officers of the realm. The role of the jury in criminal trials held before royal justices on circuit after the Assize of Clarendon 1166 was essentially to act as an accusatory body, with ultimate resolution of the case achieved through ordeal. When the ordeal fell into disuse after the Fourth Lateran Council in 1215,⁸ the English jury which had presented the accused replaced the ordeal as the ultimate finder of disputed fact, and its verdict dictated the result of the trial and the court’s judgment thereon.⁹ Although the historical record is sparse on the development of a separate trial jury in civil and criminal cases, by statute in the mid-fourteenth century presenting jurors were effectively precluded from acting as trial jurors, and separate juries were drawn from the local venire for presentment and trial¹⁰ (this development was to lay one of the foundations for the later demise of the self-instructing jury, as discussed infra).

Tracing the legal history of England in the medieval period poses significant problems, albeit not so great as those involved in pre-Conquest legal historical inquiry. Although from the thirteenth century onwards, there exist many writs, judgment rolls, and the like, full reports of trials are sparse. There are several reasons for this.

Trials in civil matters at common law were instituted by writs. The judicial writ was a letter patent, obtained by the plaintiff from the Clerks of Chancery, in the form of a command of the King. It evolved from a simple restorative command to a wrongdoer that he right his wrong into a judicial instrument essentially directing trial of the dispute. Because the High Courts (King’s Bench and Common Pleas) sat in the Palace of Westminster and because in the days of the self-instructing jury a venire of locals was needed to render a sound verdict, there evolved a clever process (nisi prius) to empanel a jury venire from the locality and to have that venire present at trial before the royal justices on their assize circuits throughout the kingdom. The writ directed trial on a date certain before the court at its seat at Westminster, “unless before” (nisi prius) the stated date, an assize were held before which the issue could be locally tried. The stated trial date at Westminster was always carefully scheduled for a date after the next scheduled assize in the locality.¹¹ Land ownership disputes—which were very serious matters indeed in a feudal, agrarian society—were especially suitable for adjudication by a local jury, likely to be very familiar from generation to generation with what were regarded as settled land boundaries and rights of ownership in their vicinage.

Writs also essentially acted as a grant of adjudicative and jurisdictional powers to the royal justices to try the case stated in the writ, and then to have judgment entered according to the jury’s verdict. These judgments were recorded on judgment rolls at Westminster, which were preserved as permanent records. Because the writ and the judgment were the bookends of a case at common law, they were carefully recorded, along with other very formulaic pleadings which framed the legal basis for the trial and the narrowed the factual issue(s) for the jury’s determination. But what of the trial itself? Relatively few complete full reports of early trials can be found. One reason for this is that the trial was likely to have been conducted in three languages: Latin was the language of the writs, pleadings and judgments; Law French (a patois of French, English, and Latin) was spoken amongst the lawyers and justices; and English was spoken by the witnesses and jurors. It was unlikely that, in the county towns in which assizes were held, many persons fluent enough in all three languages could be found or were interested in making any attempt at a verbatim record.

Lawyers and judges of the day, because pleadings and colloquies about formulaic pleadings were so foundational to the common law’s perspective on achieving justice, were interested in recording (and studying as precedent) only those aspects of the case. What the jury did—evaluating the evidence and making findings of fact—was its business. Many volumes of early reports can be found, setting forth mainly colloquies on the law between the judge and counsel. Yet, the heart of the trial itself—the testimony and documents produced by the parties before the jury—is usually missing in these reports; the evidence was not considered part of the record of the proceedings.¹² Thus, it can be difficult to tell to what extent broader principles of justice played a role in the conduct of the trial itself early on.

Nonetheless, a few interesting early case reports shedding light upon the roles of the royal justice and the jury in seeing to it that justice was done can be found. The following is the report of a latter-thirteenth century trial at gaol (jail) delivery of a man indicted for murder:

[Justice] Sheriff, why has this man been taken?

[Sheriff] Sir, for the death of a man who he is supposed to have killed in self defence.

[Justice] What is your name?

[Accused] Sir, Thomas de N.

[J] Thomas, what was the name of the man whom you killed in premeditated attack, feloniously as a felon?

[A] Sir, if you please, I have never been a felon and never did mischief to living man, in premeditated attack; and so I have done nothing wrong against the man whose name you ask: who, feloniously and as a felon and in premeditated attack tried to kill me on such a day, at such an hour, in such a year in my own house in such a township, for no fault on my part and solely on account of his malice.

[J] Tell us the circumstances.

[A] Sir, I was unwilling to hire to him a horse for the purpose of riding about his business…And because I refused him the loan of my horse he ran at me in my own house with a Welsh knife…I did not at first return his blows; but when I realized that he was set on killing me I started to defend myself: that is to say I wounded him in the right arm with a little pointed knife which I carried, making no further onslaught and acting in this way only to save my own life.

[J] Did he die of such wound?

[A] In truth sir, I do not know.

[J] Thomas, you have greatly embroidered your tale and coloured your defence for you are telling us only what you think will be to your advantage, and suppressing whatever you think may damage you, and I do not believe you have told the whole truth.

[A] Sir, I have told the whole truth, and related the affair from the beginning to the end in every detail, and of this I trust God and the country [i.e., the jury] both for good and evil.

[J] And so let the inquest be held.

[Reporter] And the jury said the same as Thomas had related. So the justice then says:

[J] Thomas, these good people testify by their oaths to the truth of what you have said. So our judgment is that what you did to him, you did in self defence. But we cannot release you from this prison without the king’s special grace. However we will send a report of your case to the king’s court and ensure that you receive his special grace.

[A] Sir, I thank you.¹³

The trial reported above is a crystalline example of the indeposable role of the jury as trier of fact, and that of the justice as an administrator, charged not with the determination of fact but of conducting the trial and recording the judgment. Indeed, had the justice been trier of fact, Thomas would have been executed forthwith, as is quite clear from the pre-verdict colloquy between the two. But the justice, apparently without equivocation and despite his own assessment of the accused’s credibility, immediately and fully embraced the verdict of the jury of assembled locals, who knew Thomas and likely knew the deceased, as well. The voice of the jury was the voice of justice, and the royal justice’s immediate and unquestioning acceptance of it, including promising to see to the administrative details of the accused’s release from custody, was his obedience to that voice. The jury, having heard the evidence (what evidence there was, beyond the accused’s colloquy with the justice, is unreported), had done justice, prevailing over the personal predilection of the royal judge. This was the early common law at work.

As time went by, English judges were faced with solving three problems inherent in the common law’s reliance upon the combination of procedural formalism and a jury’s verdict for a just result. The first was control over the jury during the trial; the second was jury indecision; and the third was a jury decision that the judge thought “false”. Obviously, to accept and enter judgment upon a false verdict would not do justice. Approaches to resolving these questions evolved over the long history of the common law.

Control over the trial jury before its deliberations, as illustrated by the case of Thomas reported above, was not part of the early common law judge’s role; the jury’s determination of the facts was entirely up to them and clearly binding upon him. By the seventeenth century, though, common law judges had become much more energetic in exerting their influence upon juries during trial, as will be discussed infra.

Jury indecision had been from early times a vexation for common law judges. The following passage describes not only the evolution of judicial control over the deliberative process to bring about a unanimous verdict, but also sheds light upon the transition of the jury from a group of self-informing quasi-witnesses subject to few constraints, to a deliberative body charged with resolving disputes based upon evidence at trial, and insulated to at least some extent from outside influence:

By the late fourteenth century, however, it was obvious that the collective, judicial character of the jury was going to prevail. The duty of the jury was not merely to answer questions, but to try sworn evidence in court. Although jurors were still allowed, even expected, to inform themselves before coming to court, by the 1380 it was clearly an irregularity to communicate with them once they were sworn other than by giving evidence in open court. If the jurors were spoken to, or treated to food or drink, by either party, their verdict could be quashed and a new trial ordered. The sequestration of the jury became a regular practice … and it was enforced with such rigidity that its members became as prisoners to the court. After their charge [by the judge at the end of the trial], the jurors were confined “without meat, drink, fire or candle”, or conversation with others, until they were agreed; and if they could not agree they were supposed to be carried round the circuit [on Assizes] in a cart until they did. The merest suspicion of misbehaviour was punishable, and we read of Tudor jurors being fined for eating sweets. The constraints of discomfort were primarily intended to encourage unanimity….¹⁴

Jury indecision continues to be a problem to this day where juries still are utilized, but the harsh methods of encouraging a verdict discussed in the passage above have been replaced with gentler exhortations and, in cases of hopeless deadlock, the declaration of a mistrial, with a retrial to follow in most cases.