Biology and the Origins of the English Jury

CHARLES DONAHUE, JR.

The history of institutions is plagued by the biological analogy. 1 We speak so frequently of the life and death, the birth, growth, maturity, and decline, of institutions that we forget that these words are being used metaphorically. Of course, the human beings who create and use the institutions have a birth and a death, but human institutions have only a start and a stop (frequently a far less precise one than those words might imply), and there is no reason why the periods between the start and stop need parallel those of living organisms.	1
Particularly insidious is the effect of the biological analogy on discussions of the origin of institutions—insidious because we rarely make the analogy explicit. If a human institution is like a living organism, it must have one, or, at most, two parent(s). The debate in the nineteenth century about the origin of the English jury was, as Michael Macnair points out, influenced by the politics of the time, but the fact that it was a debate at all may be the product of the biological analogy. If, as the Whig historians insisted, the jury was the offspring of the Anglo-Saxon institution of lay judges, then it could hardly be, as Brunner and most of the "scientific" historians who followed after him insisted, the offspring of the Carolingian imperial inquest, transmitted to Normandy and thence to England. At least it could not be unless the two possible parents had copulated, a possibility that none of the participants in the debate could contemplate.	2
Less horrified by the thought of miscegenation, we can consider the possibility that both the Whig historians and Brunner may have been right and ask which putative parent's genetic material came to dominate in the offspring. We cannot, however, consider Macnair's thesis without abandoning the biological analogy all together. For, if Macnair is right, the jury that emerged in the late twelfth century had three parents, the Anglo-Saxon lay judge, the Carolingian inquest, and the witness of Romano-canonical procedure, and of these the last was the most important. So far as I am aware, no living organism has three biological parents, and though we speak of a given genetic trait of one biological parent becoming dominant in the offspring, we cannot speak of one parent being more important biologically than the other.	3
At least in the case of this institution, we must extirpate the biological analogy. If we continue to use it, Macnair's path-breaking piece will simply be another occasion for fruitless debate about parentage. An occasional incautious word 2 and an occasional compression in the story 3 might give the impression that Macnair is talking about the stirps of the late twelfth-century English jury. He is not—or at least I hope he is not—and understanding will not advance if we insist on casting the argument in those terms.	4
In what terms, then, should we put it? Prior to the reign of Henry II, as I understand Macnair's argument, there was nothing particularly distinctive about the way in which the English legal system made use of the collective testimony or collective oath of groups of neighbors. Analogous uses can be found all over Europe. It was a method of proof—like the testimony of eyewitnesses, oaths of the parties, documents, ordeal, battle, and confession—that was used in certain kinds of cases, particularly those about land tenure, land boundaries, and personal status. This method of proof was greatly extended in the reign of Henry II. By the end of the reign we find it in presentations of felony, in the petty assizes (novel disseisin, mort d'ancestor, darein presentement, and utrum), and as an alternative to trial by battle in cases concerning the right to land (grand assize). While the criminal trial jury, the jury in writs of entry, and the use of juries for some types of issues in personal actions did not come until the next generation, these extensions (largely the product of the early thirteenth century) seem relatively easy to explain granted the extensive development of the jury, broadly conceived, in the reign of Henry II. What needs explaining is the development in Henry II's time. 4	5
Macnair seeks his explanation in the indubitable tension that arose between the church and Henry II. Building on earlier work by Mary Cheney, 5 he finds that one source of that tension was the large number of disputes about land between churchmen (particularly bishops and religious houses) and laymen. The question was what method of proof would be used in such cases. Trial by battle was unacceptable to the church. Proof by documents or witnesses, particularly if that proof took place in a church court, was unacceptable to the king, and perhaps to lay society generally. In the standoff, various forms of inquest (analogized, at least by those who knew something about Romano-canonical procedure, to proof of fama) proved to be an acceptable compromise. Even the use of juries to present felonies, at first glance a topic that seems quite unrelated to Henry's dispute with the church, may be seen to be connected with c. 6 of the constitutions of Clarendon, which requires that a bishop not proceed criminally against a layman unless the charge is supported by accusation of lawful accusers or by an oath taken by the sheriff of "twelve lawful men of the vicinage or vill." 6	6
There are some remarkable parallels in the chronology. A provision in the constitutions of Clarendon of 1164, which began the Becket dispute, is almost certainly the origin of the assize utrum. 7 The case of John Marshal and Becket, which Cheney posited was the catalyst for the assize of novel disseisin, was heard at the council of Northampton later in the same year. The assize of Clarendon (which established the jury of presentment) came less than a year and half after that. The council of Windsor, generally thought to have promulgated the grand assize, is dated in 1179, three years after Henry II had agreed at Avranches that clerics would not have to undergo trial by battle.	7
There is, however, a danger in focusing on these details. The more we focus on them the more we are likely to think that we have found the "smoking gun." The jury, we might conclude, is the product of a confrontation between the Romano-canonic system of proof and older methods of proof, methods that made some use of collective testimony or collective oath, but that also made, particularly in their Anglo-Norman versions, considerable use of trial by battle and other forms of the "judgment of God." The same assize of Clarendon that inaugurated the presentment jury also provided that those so presented were to undergo the ordeal, a method of proof that was unacceptable to many churchmen as early as the 1160s and that was ultimately to be condemned by the church in the thirteenth century. 8 That Henry II insisted on accusation (analogous to the secular appeal) or an oath of twelve lawful men (analogous to the jury of presentment) for ecclesiastical criminal proceedings in 1164 and generalized the jury of presentment in royal secular criminal proceedings in 1166 does not necessarily mean that the two events are connected in any causal sense. The fact that Becket did not object to c. 6 of the constitutions need not have been the cause of the general adoption of the jury of presentment in the assize. Becket was, after all, claiming that clerics were exempt from secular criminal process.	8
Causal connection between the use of jury-like bodies in the petty and grand assizes is less easy to exclude. The case of Becket and John Marshal is telling, and clerics were very much involved in land litigation. Glanvill, however, describes the grand assize as a "royal boon," 9 and he is not speaking solely of clerics, but of all those who were tenants (defendants) in the writ of right and feared the consequences of battle, the delays that it entailed, and, perhaps, the arbitrary nature of its outcome. 10 Hence, in the case of the petty and grand assizes one might argue that acceptability to the church was a necessary, but need not have been a sufficient, condition for these institutions.	9
There is another reason to hesitate before concluding that the jury is the product of a confrontation between the Romano-canonic system of proof and older methods of proof. As Macnair's limpid exposition of the Romano-canonic system of proof (Part III.1) makes clear, much about that system was as yet ill defined in the third quarter of the twelfth century. Ultimately, that system developed a body of doctrine about proof by fama (never a full proof but useable in conjunction with other forms of proof to create a full proof and, with considerable consequences for the criminal process, useable to shift the burden of coming forward with evidence to the defendant) and of proof of fama (just who and what kinds of people counted in making up a proof of the general understanding in the area). This body of doctrine drew upon, and was, to some extent, a continuation of, earlier ideas about the circumstances in which testimony by, or the oath of, vicini was appropriate. Little of it, however, can be traced as far back as the third quarter of the twelfth century.	10
To give some idea of the difficulties, let us examine one of the decretals of Alexander III (1159-1181) that Macnair cites, Illud quoque (X 2.23.11). Illud quoque is an important decretal in the development of the doctrine about proof by fama. In it the pope orders the archbishop of Genoa "to make careful inquiry of the fame of the area" in order to determine whether a man was married to a woman, as he asserted, or whether she was his concubine, as she asserted. 11 Had this decretal been known in England in the 1160s, it might have been used to support an argument that inquiry into fama was an acceptable method of proof in the ordo iudiciarius. Unfortunately, there is considerable evidence that it could not have been known in England in this period, and some evidence that it could not have been known in England until after Alexander's death in 1181. 12	11
The Romano-canonic material on proof by fame and proof of fame was vague in the third quarter of the twelfth century, but it was there. We can see the subsequent developments with the advantage of hindsight, but contemporaries might not have been able to see them. Curiously, this fact may reinforce Macnair's conclusions. Trial by battle was unacceptable to churchmen, certainly by the time of Alexander III, but the range of possible methods of proof that were acceptable to both regnum and sacerdotium was perhaps broader than it would be fifty years later. Ultimately, a rather sharp differentiation emerged between proof by witnesses and proof by inquest. 13 It is not at all clear that these distinctions were clearly seen in the mid-twelfth century. The church also used inquest in a number of situations in this period and continued to use it for some time. 14 Proof by witnesses in the church courts in the time of Hubert Walter (archbishop of Canterbury, 1193-1205), and even later, sometimes looks very much like proof by inquest. 15 The compromise with the secular authorities may have been to hand in the convergent practices of both the church and the secular authorities, even without a developed doctrine about proof of fama or fama as proof.	12
I do not want to leave the impression that I disagree with Macnair's conclusion that the jury, in the broad sense, was the product of a conflict. Proof was contentious stuff in the Middle Ages, perhaps in no time more so than in the twelfth century. Nor do I want to give the impression that the growing body of learning on Romano-canonic proof did not play some role in what ultimately emerged. I do want to suggest that the emergence of this institution is likely to have been the product of more than just the conflict between regnum and sacerdotium, between ingrained secular ideas about custom and Romano-canonical learning. Macnair has shown that a large number of different factors and ill-defined institutions were at play, some of which had little to do with the church or the Becket controversy. He has added much to our knowledge of the range of possible explanatory variables; he has not, in my view, totally removed some of the traditional ones from that range. These include a memory, correct or mistaken, of what was done "in the time of King Edward [the Confessor]," the practice of making inquests for administrative purposes (of which Domesday Book is simply the most dramatic example), and the fact that forcing, or persuading, a group of locals to come up with an answer to a hard question is one of the relatively few ways that the caseload that Henry II envisaged, and that was achieved in the time of his sons, could possibly have been handled with the resources that were at hand. The alternative was various forms of appeal to the judgment of God, which may have been becoming problematical for reasons other than the opposition of some churchmen. 16	13
Once we rid ourselves of the generative image, many plausible explanations turn out to be mutually consistent. It may be fruitless to ask which explanation is the most plausible because different features of the jury may have made it acceptable to different elements in the society. Macnair has given us a powerful argument why it might have proved acceptable to those who knew something about Romano-canonical procedure, a group that may well have included not only those who were guiding the course of development of the church courts but at least some of those who were guiding the course of development of the curia regis. Further research may be able to determine more precisely who knew what when, but Macnair has clearly set us off in the right direction so far as this group is concerned. That leaves, however, a rather large number of people who counted and who neither knew nor cared about Roman-canonical procedure. Their thoughts were largely unrecorded and are difficult even to speculate about. It is particularly difficult to ascribe to them political motives without being anachronistic, but that does not mean that we should not try.	14
Charles Donahue, Jr., is the Paul A. Freund Professor of Law, Harvard University Notes       1. Cf. Jean Gaudemet, "Histoire du droit et histoire des institutions: Bilan et perspectives," in Bronnen voor de geschiedenis van de instellingen en België, ed. Hugo de Schepper (Brussels: Algemeen Rijksarchief, 1977), 8
2. E.g., "the jury is not a direct descendant of lay collective judgment" (588).
3. E.g., the leap from Part II.1, where all the sources are Continental and the latest source discussed is Burchard of Worms (1008 x 1012), and most are considerably earlier than that, to Part II.2, where the use of panels in England, principally in the twelfth century, is seen to conform to the practice described in Part II.1.
4. I pass over here Macnair's argument, with which I largely agree, that the nature of the jury changed in later periods, that it became, in his characterization, more like a body of lay judges and less like Romano-canonical witnesses to fama.
5. Mary Cheney, "The Litigation Between John Marshal and Archbishop Thomas Becket in 1164: A Pointer to the Origin of Novel Disseisin," in Law and Social Change in British History, ed. J. A. Guy and H. G. Beale (London: Royal Historical Society, 1984), 9-26.
6. My summary of this provision, like Macnair's (582-83), passes over some important ambiguities with regard to the role of the archdeacon and as to precisely what the sheriff is supposed to do with the twelve men.
7. Constitutions of Clarendon (1164), c. 9.
8. For different views of the story, see Paul R. Hyams, "Trial by Ordeal: The Key to Proof in the Early Common Law," in On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne, ed. Morris S. Arnold et al. (Chapel Hill: University of North Carolina Press, 1981), 90-126; Robert Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford: Clarendon Press, 1986).
9. The Treatise on the Laws and Customs of England Commonly Called Glanvill, ed. G. D. G. Hall (London: Nelson, 1965), 2.7, at p. 28 (regale quoddam beneficium).
10. "Justice ... is seldom arrived at by battle." Ibid.
11. Recourse to fama in the case was necessitated by the fact that the woman had challenged as fraudulent the notarized instrument of marriage that the man had produced.
12. See Charles Donahue, "The Dating of Alexander the Third's Marriage Decretals: Dauvillier Revisited after Fifty Years," Zeitschrift der Savigny-Stiftung für Rechtsgeschichte 99 (Kanonistische Abteilung 68) (1982): 100 (dating the decretal [= WH 1033] to the years 1174 x 1181).
13. Charles Donahue, "Proof by Witnesses in the Church Courts of Medieval England: An Imperfect Reception of the Learned Law," in Essays Thorne, 136-37.
14. Ibid., 135-36, 140-41.
15. Ibid., 139-40, 148-50.
16. For the possibilities, see Hyams, "Trial by Ordeal."
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