The Origins of the Special Jury James C. Oldhamt Special juries do not exist, as many people seem to suppose, by the authority of a modern statute; on the contrary, they are as ancient as the law itself, and were always struck, as they are at this day, by direction of the Court, when trials were had at the bar and not at nisi prius. Thomas Erskine, Esq., November 15, 17931 During the eighteenth and nineteenth centuries, the special jury emerged in English common and statutory law as a familiar feature of the civil trial.2 Ordinarily the term "special jury" ap- peared in case reports and statutes without explanation or defini- tion, suggesting a concept that was widely understood.3 As the Er- skine quotation indicates, however, the origins of the special jury were not well understood as of the late eighteenth century. Its ori- gins had not then, nor have they since, been subjected to careful historical study.4 t Professor of Law, Georgetown University Law Center. In addition to indispensable library support, see infra note 11, I wish to acknowledge with special thanks the following colleagues in history and law departments elsewhere who took the time to read all or part of this article in draft, and who extended to me valuable criticism and suggestions: Professors John Langbein, Richard Helmholz, James Cockburn, John McCusker, Charles Donahue, and Dr. J.H. Baker. Also, I have benefitted from the excellent assistance of Georgetown law students Violette Fernandez, Sarah Teslick, and Katharine Gresham, and I am grateful to the Georgetown University Law Center for research funds that made possible the essential detective work in sixteenth- to eighteenth-century English legal literature. ' THE CASE OF LIBEL, THE KING V. JOHN LAMBERT AND OTHERS, PRINTER AND PROPRIE- TORS OF THE MORNING CHRONICLE 16 (2d ed. London 1794). A trial at bar was a trial con- ducted in London before all of the judges of a particular court, contrasted with a trial at nisi prius conducted before a single judge in the country on assize or at special sittings in London and Westminster. I As will be shown, infra notes 85-108 and accompanying text, the special jury was used in criminal trials, especially during the formative era of the late seventeenth and eighteenth centuries. Except for high treason and seditious libel cases, civil usage was much more fre- quent than criminal usage by the mid-1700's. 3 This article does not deal with the "special verdict." For a discussion of the special verdict, see 3 W. BLACKSTONE, COMMENTARIES *377-78. Except in the loose sense that a spe- cial verdict might be requested as a way of getting a meaningful jury response to compli- cated facts, the concepts of special verdict and special jury are unrelated. 4 Many of the standard works on the history of the jury contain useful sketches of the special jury. See, e.g., THE COMPLETE JURYMAN: OR, A COMPENDIUM OF THE LAWS RELATING TO JURORS 69-72, 92-93, 126-28 (Dublin 1774) [hereinafter cited as THE COMPLETE JURYMAN]; W. FORSYTH, HISTORY OF TRIAL By JURY 173-75 (London 1852); J. KENNEDY, A TREATISE ON THE LAW AND PRACTICE OF JURIES 80-89 (London 1826); R. PHILLIPS, ON THE POWERS AND DUTIES OF JURIES, AND ON THE CRIMINAL LAWS OF ENGLAND 28-38, 66-68 (London 1811); J. THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 94-97, 419 n.1 (1898 & The University of Chicago Law Review [50:137 The history of the special jury has contemporary relevance to the ongoing debate in the United States over the right to a jury trial in complex civil litigation. More important, the special jury demonstrates that the jury cannot be viewed as a simple institu- tion with a limited fact-finding role. Unsuspected layers of com- photo. reprint 1969). Standard eighteenth- and nineteenth-century practice books contain passages on the special jury, although they do not ordinarily discuss the special jury in historical terms. See, e.g., 1 J. ARCHBOLD, THE PRACTICE OF THE COURT OF KING'S BENCH IN PERSONAL ACTIONS, AND EJECTMENT 180-91, 203-05 (2d ed. London 1826) (lst ed. London 1819); J. IMPEY, THE NEW INSTRUCTOR CLERICALIS 281-82 (4th ed. London 1788) (1st ed. London 1784); [R. RICH- ARDSON], THE ATTORNEY'S PRACTICE IN THE COURT OF KING'S BENCH 123 (London 1739); 1 B. SELLON, THE PRACTICE OF THE COURTS OF KING'S BENCH AND COMMON PLEAS 442-47, 455-57 (Dublin 1793); J. SHERIDAN, THE PRESENT PRACTICE OF THE COURT OF KING'S BENCH 261-65 (Dublin 1792); 2 W. TIDD, THE PRACTICE OF THE. COURTS OF KING'S BENCH, AND COMMON PLEAS, IN PERSONAL ACTIONS, AND EJECTMENT 787-94 (3d Am. ed. from 9th London ed. 1828, Philadelphia 1840) (1st ed. London 1790-1794). Occasional twentieth-century articles have advocated the revival of the special jury, and these pieces contain some historical discussion. See, e.g., Baker, In Defense of the "Blue Ribbon" Jury, 35 IowA L. REV. 409 (1950); Thatcher, Why Not Use the Special Jury?, 31 MINN. L. REV. 232 (1947); see also sources cited infra note 5. 5 This issue recently has received considerable attention in the law reviews. Morris Ar- nold and Patrick Devlin, each commissioned to write articles in connection with then-pend- ing cases, provide especially provocative and opposing views. See Arnold, A HistoricalIn- quiry into the Right to Trial by Jury in Complex Civil Litigation, 128 U. PA. L. REV. 829 (1980); Devlin, Jury Trial of Complex Cases: English Practice at the Time of the Seventh Amendment, 80 COLUM. L. REV. 43 (1980). Devlin's article contains a short passage on the special jury. See id. at 80-83. For a sampling of related studies, see Campbell & Le Poidevin, Complex Cases and Jury Trials: A Reply to Professor Arnold, 128 U. PA. L. REv. 965 (1980); Harris & Liber- man, Can the Jury Survive the Complex Antitrust Case?, 24 N.Y.L. SCH. L. REv. 611 (1979); Jorde, The Seventh Amendment Right to Jury Trial of Antitrust Issues, 69 CALIF. L. REv. 1 (1981); Lempert, Civil Juries and Complex Cases: Let's Not Rush to Judgment, 80 MICH. L. REv. 68 (1981); Luneberg & Nordenberg, Specially Qualified Juries and Expert Nonjury Tribunals: Alternatives for Coping with the Complexities of Modern Civil Litiga- tion, 67 VA. L. REv. 887 (1981); Oakes, The Right to Strike the Jury Trial Demand in Complex Litigation, 34 U. MIAMI L. REV. 243 (1980); Note, Unfit for Jury Determination: Complex Civil Litigation and the Seventh Amendment Right of Trial by Jury, 20 B.C.L. REV. 511 (1979); Note, The Right to a Jury Trial in Complex Civil Litigation, 92 HARV. L. REv. 898 (1979); Note, Preservingthe Right to Jury Trial in Complex Civil Cases, 32 STAN. L. REV. 99 (1979); Note, The Right to Trial by Jury in Complex Litigation, 20 WM. & MARY L. REv. 329 (1978). One study has argued specifically for the use of special jurors in complex civil litigation. Note, The Case for Special Juries in Complex Civil Litigation, 89 YALE L.J. 1155 (1980); see also Luneberg & Nordenberg, supra, at 899-950 (proposing the same thing). The special jury may be seen as a compromise solution to the present debate over the "complexity exception" to the seventh amendment. As this study shows, common law courts have been familiar with the use of special juries to decide issues requiring expertise. This usage reached its zenith in the merchant juries impaneled in Lord Mansfield's court (see infra note 13; infra note 451 and accompanying text), an era just before the period relevant to the American constitutional inquiry. Perhaps, therefore, these historical patterns deserve more attention in the ongoing constitutional debate. 19831 Origins of the Special Jury 139 plexity present a rich and varied history deserving of further study. This article goes part way by isolating the origins of the spe- cial jury in English law and tracing its evolution until the mid- eighteenth century. Close examination of the usage of the term "special jury" since its appearance in cases and legal literature during the second half of the seventeenth century reveals two fundamental points. First, a special jury might satisfy any or all of the following definitions: a jury of individuals of higher class than usual; a jury of experts; and a "struck jury," that is, one formed by a special procedure allowing parties to strike names from an unusually large panel of prospec- tive jurors.' Second, various juries were formed before and after the seventeenth century that met the first two of the above defini- tions, even though these juries were never expressly denominated "special." For example, in cases of national importance, grand ju- ries often consisted of leading citizens.' The same was true of petit juries in cases involving such issues as high treason or seditious libel." Juries of experts ranged from panels of cooks and fishmongers 9 to the all-female jury impaneled to ascertain whether a female defendant was pregnant.10 Only the third definition, the struck jury, came to be consistently identified as the "special jury." This article traces the history of all three kinds of "special jury" from the earliest era for which meaningful records were ac- cessible1" to 1730, the year of Parliament's first significant enact- 6 The struck jury procedure was associated early with trials at bar. See infra notes 316- 61 and accompanying text. 7 See infra notes 131-35 and accompanying text. See infra note 85 and accompanying text. See infra note 206 and accompanying text.