Vicinage and the Antecedents of the Jury

MIKE MACNAIR

The origins of trial by jury have been the subject of an extensive debate. 1 The traditional approach to the creation of the "palladium of liberty" saw the jurors as lay judges and located their origins in the lay judges of Anglo-Saxon England, continuing through the survival of the "ancient constitution." An alternative approach, that of Heinrich Brunner, found wide acceptance from the end of the last century and until recently. Brunner detected the origins of the jury in fiscal inquiries imposed by strong monarchs, reversing the constitutional politics of the older view. At present, the wheel has turned back toward judicial character and origins in general early medieval practice. The purpose of this article is to take a new look at the issue by approaching it from a different angle: the requirement that jurors should come de vicineto, from the locality. This approach has produced the following observations.	1
First, specially convened groups of vicini, locals or neighbors, were quite widely used as a mode of proof for "local" facts (like boundaries) in early medieval normative sources, following late Roman antecedents. The gist of the idea is not that locals will necessarily have direct knowledge of the facts, but that local reputation about them—including hearsay—is itself probative. These uses will explain much of the evidence for the use of groups of locals as a mode of proof in late Anglo-Saxon and Anglo-Norman law.	2
Second, early medieval uses of local reputation as a form of evidence were incorporated into the Roman-canon law of proof, and the perceived value of this sort of evidence was at a high point in the later twelfth century, when the use of jury-like bodies began to be generalized and systematized in the English royal courts. I suggest that a part of this process of generalization is compromises made between the royal courts, which at this time were committed to the judgment of God in the form of trial by battle and by ordeal, and the contemporary ecclesiastical courts, which rejected trial by battle and sought to use documents, witnesses, and procedure per notorium on the basis of the personal knowledge of the ecclesiastical judge. Local reputation was an acceptable canonical mode of proof (unlike trial by battle), which had already been practiced in England for more limited purposes and met the objections of the king and lay landowners to the procedural claims of the church. I suggest that Glanvill's characterization of the jurors as witnesses, and the persistence of this idea and the idea that the jury was only appropriate to facts of a certain type, reflect this context.	3
Third, in relation to the political history of the jury, this view implies that the role of the jury as the palladium of liberty was neither foreordained by Anglo-Saxon or early medieval roots, nor produced by a dialectic of strong government bringing forth self-government. The jury was produced in intimate, if antagonistic, contact with the canon law of proof, and down to the time of Bracton, if not later, it was still possible that either the separate examination of jurors, or the use of individual witnesses, would develop. The fact that it did not develop within the common law jurisdictions is a matter of later medieval political and legal history. 2 I would suggest, however, that the internal conceptual contradictions of the idea of the jurors as witnesses to local reputation made it highly suitable for compromise solutions to the problem of the distribution of power in the lawsuit.	4
The first part of this article gives a summary review of the Brunner thesis on the origins of the jury, the objections that have been made to it, and the currently preponderant alternative view. My primary objection to the recent view of the jury as a survival of collective judgment is its failure to account for a good deal of later medieval common law doctrine about the jury, which thought of the jurors as witnesses, as distinct from judges, and of the verdict as a mode of proof appropriate only to certain types of fact. I will therefore also lay out some of this doctrine. The second part considers early medieval normative sources on the use of vicini and local reputation and how this normative material relates to the Anglo-Norman uses of panels of locals in litigation. The third part looks at some of the uses of local reputation in the later medieval Roman-canon law of proof and at the possible relationship between the canon law and the legislation of Henry II, which systematized the use of panels of locals in presentment of crime and land cases. The concluding section considers briefly the larger issue of the implications of this view for the political history of the jury. The range of the issues posed by the question of the origins of the jury inevitably means that I will paint with a fairly broad brush; but I think that this is justified by the interpretive possibilities opened up by this approach.	5
I. Theories
1. Inquisitio: The Brunner Thesis and Its Critics
Traditionally, the jury was seen as a bastion of the liberties of the subject, and in consequence it was associated from the seventeenth century with the "Anglo-Saxon liberty" that distinguished England from the Continental absolutist Roman-law regimes. The origin of the jury was therefore located in the courts of Anglo-Saxon England, whose judges were (like jurors) laymen, rather than professionals; in the early Middle Ages, all courts were characteristically composed of groups of laymen, who decided both factual and normative questions, or at least decided the form of proof (testimony, documents, compurgation, ordeal, or battle) that would settle the dispute. 3 This view indicated that the jury was from the outset a judicial body, as it is today.	6
In the nineteenth century, it was suggested by Sir Francis Palgrave that the origin of the jury should be separated from the lay judges and from the jury's later judicial role. Rather, in its origin the jury was a piece of fiscal machinery for the compulsory interrogation of the inhabitants of a locality in the interests of the Crown, which was later extended to private litigants. It was introduced by the Norman kings following the fiscal practices of the Carolingian Empire. This suggestion was taken up and very considerably elaborated by Heinrich Brunner in his book Die Entstehung der Schwurgerichte (1872). This view sees the origins of the jury as testimonial, rather than judicial. It also has large implications about the political history and legal politics of the jury. Instead of the palladium of liberty descending from Anglo-Saxon or Germanic liberty, in the Brunner thesis the jury is in origin the creation of the fiscality of an aggressive centralizing monarchy, and not even "national" in origin. Strong royal government, as it were, trains the subjects for self-government.	7
A clear example of the Carolingian materials Brunner relied on for this derivation is a capitulary of 819:	8
Volumus autem ut de his libertatibus et rebus reddendis quae in nostra vestitura sunt primo per optimos quosques inquiratur; et si per illos inveniri non possit, tunc per eos qui post illos in illa vicinia meliores sunt; et si nec per illos rei veritatis inveniri potest, tunc liceat litigantibus ex utraque parte testes adhibere; et si discordaverint secundum constitutionem a nobis promulgatam examinentur. (However, we wish that in relation to liberties and things which are in our possession whose return is claimed inquiry is first as far as possible to be made from the best and if [the truth] cannot be found from them, then through the next best persons in the locality. And if the truth cannot be found from them either, then the litigants on either side may call witnesses. And if they should have disagreed, they should be examined according to our constitution.) 4
Brunner reinforced the relation to royal interest, which is apparent in this and some other capitularies, by suggesting that there might be a relationship with the late Roman law of fiscal claims to bona vacantia and forfeited goods. 5
The sequence of jury use in England is then: use in the Domesday inquiry for fiscal or near-fiscal purposes; use in the later eleventh and twelfth centuries by special concession; 6 regularization under Henry II, while retaining a royal monopoly 7 and a limitation to title to land, which under the English feudal regime had fiscal implications; subsequent generalization. Brunner's account obtained very wide support. It was followed by J. B. Thayer, by F. W. Maitland (with some reservations), and by W. S. Holdsworth. J. P. Dawson's book Lay Judges (1960) similarly takes Brunner's account as the starting point for the history of trial by jury, as does J. H. Baker's standard textbook on English legal history. 8	9
However, substantial objections have been made to Brunner's argument. In the first place, the argument that the inquisitio continued to be used in pre-Conquest Normandy and was imported from there to England was weakened by the silence of the pre-Conquest Norman sources and by the doubtful continuity between the Carolingians and the Normandy of William the Conqueror. 9 R. C. van Caenegem opposes to this objection the thinness of the Norman sources in general and the consequent danger of an argument from silence. 10 However, fiscal institutions are prima facie those most likely to leave records behind, 11 and conversely the least likely to survive across disorderly periods like the tenth and eleventh centuries. The latter point could be met by Goebel's argument that aspects of Carolingian criminal law and procedure countinued in use through their adoption by the "immunists," the holders of private jurisdiction, particularly ecclesiastical. But while Goebel found evidence for other aspects of Carolingian practice from the immunity jurisdictions, the fiscal inquisitio is not among them. 12	10
The second line of objection is that Brunner's derivation is over-specific. At first this argument was largely focused on the jury of presentment. Here prior Anglo-Saxon communal duties to present crime could be found in the provision of Ethelred's Wantage Code of a.d. 996 for twelve thegns who were to swear that they would accuse no one wrongly: an argument strongly developed by N. D. Hurnard in 1941, though since criticized by R. C. van Caenegem. 13 Recently Patrick Wormald has carried this line of argument further, linking the twelve thegns to general public duties to report crime found elsewhere in Anglo-Saxon law and in Carolingian sources—incidentally weakening the link between the Carolingian sources and the specific form of the jury of presentment offered by Brunner. 14 These suggested Anglo-Saxon antecedents, however, remained testimonial rather than judicial bodies; and the strength of royal government had merely been pushed back into Anglo-Saxon, rather than Anglo-Norman, England. 15	11
Another possible source for the jury of presentment is the use of jury-like bodies to present crime in the ecclesiastical courts; this was noticed by Maitland, C. H. Haskins and Hurnard, and extensively developed by R. C. van Caenegem, 16 while R. H. Helmholz has shown that jury-like bodies continued to be used for the establishment of fama, public suspicion of crime, in the later medieval English church courts. 17	12
The core of Brunner's argument, however, was the fiscality of the use of the jury in land title matters. It was a substantial blow to this that van Caenegem, in his English Writs from the Conquest to Magna Carta (1958), found considerable numbers of "recognitions" of locals in local, feudal, and church courts and arbitrations in the late eleventh and twelfth centuries. He also found an associated phenomenon of perambulations of land to establish boundaries. The appearance of the jury in local and feudal jurisdictions after it had become routinely available in the royal courts would be only natural. Its appearance there alongside its earliest appearances in the royal courts suggests that what we are concerned with is a mode of proof for facts of a certain type, rather than a royal privilege. Having found that the earliest example of the use of locals to establish boundaries appeared more than ten years before the Conquest, van Caenegem suggested that there must be deeper Anglo-Saxon (or Danish) roots. D. M. Stenton went further to argue that van Caenegem's evidence showed that a Norman derivation was wholly unnecessary. 18 On the other hand, further study has led van Caenegem to argue that institutions of lay fact finding seem to have been common in Europe, and particularly in northern Europe, at this period. 19 As might be expected, the institution closest to the English jury is that found in Normandy more or less contemporaneously (which gradually decayed after the destruction of the Angevin empire). 20 Institutions of lay fact finding also existed far more widely. Examples can be found in wider areas of France, Norman Sicily, Spain, parts of Germany, Scandinavia, the Low Countries, Hungary, and Serbia. 21 The lay decision of disputes of fact was thus quite widespread in high medieval Europe.	13
These two lines of argument are further developed by Susan Reynolds and by the contributors to the book The Settlement of Disputes in Early Medieval Europe (1986). These authors point to quite widespread use in the early Middle Ages of sworn panels of neighbors—not restricted to summons by royal authority, or to fiscality. Reynolds says that "Legal historians have seen these inquisitions as intrinsically different in legal principle from other collective judgments, but to contemporaries they may have been just a way of discovering the truth which was most readily available to a president of high authority and most appropriate for issues which required special knowledge." 22 Similarly, the Settlement of Disputes authors comment that judicial practice "put oath-helping, witnessing and the inquest all in the same spectrum," and that "it is not at all clear that it was the Carolingians who 'invented' the inquest, or even that they used it to any great extent." 23 What is distinctive about the English jury, these authors argue, is merely its regularization, due to the precocious development of royal law in later twelfth-century England, before the Roman-canon inquisitorial use of witnesses was developed. 24	14
Paul R. Hyams has found an analogous but not identical link between the jury and the absence of a distinction between testimony and judgment in early medieval judicial procedure. He argues that the early common law jury functioned as a substitute for the "judgment of God" (trial by ordeal and by battle). Hence it shared with these procedures the early medieval characteristics of being a formal proof, which substitutes for detailed enquiry into evidence, and a proof that closes the dispute, concluding both factual and normative debates. 25 But Hyams's account stresses the conceptual centrality of the judgment of God to early medieval judicial procedure, while The Settlement of Disputes is critical of this view. 26	15
In effect these views reinstate the idea of the jury as a survival of early medieval "liberty," in the sense of communal, as opposed to official, judgment—albeit without the nationalistic overtones of the original thesis of Anglo-Saxon liberty. However, the survival of the jury into the later Middle Ages is still made to depend on strong monarchy, as it is explained by the precocious strength of the English Crown.	16
These views are based on studies of practice; it can be added that the normative sources cited by Brunner do not, in fact, support an intimate link between fiscality and the judicial summons of locals as a mode of fact finding. In the first place, the sources for the late Roman fiscal inquisitio palatina cited by Brunner from the Theodosian Code provide for an official enquiry in the locality in which bona vacantia or forfeited goods are found. But they make no provision whatever for how this enquiry should be carried out, for instance, by asking a group of locals, which is, in contrast, the focus of the relevant Carolingian capitularies. 27 Second, the capitularies themselves contemplate—the capitulary of 819 quoted above is a good example here—that inquisitiones have previously been carried out using witnesses produced by the parties. Inquisitio, in fact, prima facie merely means an enquiry, and is not tied to any particular mode of proof: a proposition that remains true in the twelfth and thirteenth century sources. 28	17
If, however, we are forced back on the idea that "inquests" are just another mode of early medieval testimony, selected pragmatically, we are left without an explanation of some significant facts about the later medieval conception of the jury—in particular, its doctrinal restriction to specific classes of facts, and the extent to which bits of Roman-canon learning about witnesses are thought to apply to jurors. These, therefore, now need to be considered.	18
2. The Testimonial Theory of the Jury in Later Medieval Common Law Doctrine
Though the dominant tendency of recent literature has been to emphasize the judicial aspects of the role of the later medieval jury, 29 there is much later medieval common law legal-doctrinal evidence for the view that the jurors were in some sense witnesses, or that the jury verdict was a type of proof tendered to the court, which rendered judgment on the basis of one of a number of types of proof presented to it. First, there is direct evidence for treatment of the jurors as a species of witness: the challenges and the attaint. Second, the jury were supposed to have knowledge of the facts, a principle reflected in the requirements of vicinage and venue. Third, the doctrinal relationships between verdicts and some other modes of proof point to a definite conception of the jury as one among several modes of proof, and one apt to facts of a particular type.	19
(a) Jurors as witnesses: The challenges and the attaint. Glanvill says of the grand assize that it is to be preferred to battle, among other reasons, because "in proportion as the testimony of several suitable witnesses in judicial proceedings outweighs that of one man, so this constitution relies more on equity than does battle; for whereas battle is fought on the testimony of one witness, this constitution requires the oaths of at least twelve men." 30 When he comes to identify possible exceptions (challenges) to jurors, he says merely that "the grounds for taking exception to these jurors are the same as those for rejecting witnesses in an ecclesiastical court," and does not elaborate further. 31 Bracton on the jurors in novel disseisin removes the direct reference to the ecclesiastical courts, saying that "they may be kept from taking the oath for the same reasons that witnesses are kept from giving testimony"; he goes on to list some of the reasons, drawing mainly though not exclusively on Roman-canon procedural texts. 32 If the grounds for objecting to judges had not been specified in the canon law procedural sources, or if they had been the same as the grounds for objecting to witnesses, these references would be neutral. In fact, the grounds for recusation of a judge are specified in contemporary Roman-canon procedural literature, and they are not the same as those for objecting to witnesses, though there is some overlap. 33 If the authors of Glanvill and Bracton had thought that jurors were, as a matter of legal doctrine, lay judges, there is no reason for them not to have used the grounds of recusation of a judge. To this extent, therefore, jurors were clearly thought of in law as witnesses.	20
Similar reasoning applies to the procedure for attacking a verdict by way of attaint, invented for novel disseisin in 1201 and extended to juries in real actions generally in 1275. 34 The attaint is unmistakeably a proceeding to convict the trial jury of perjury, and the prior form of proceeding in relation to the grand assize is explicitly described as such by Glanvill. 35 Here, if the jury were considered as lay judges, the obvious approach would be that proceedings for false judgment would lie against them. This possibility appears to be considered obliquely in Bracton's treatment of the attaint, but is not followed up. 36 If they were judges of fact and the canon law proceduralists were to be followed, some sort of procedure by way of appeal would be appropriate. 37 Jurors share with witnesses, but not with judges, perjury prosecution as a primary mode of attacking what they say.	21
(b) Seeking informed jurors: Vicinage, venue, and special types of jury. The jury writs in Glanvill characteristically required that the jurors should come from the locality of the alleged facts, identified by vill (village or township). 38 By the later thirteenth century, this requirement was causing difficulty in impaneling juries, and it was progressively diluted and finally abolished by statutory intervention. 39 The rules as to venue subserved the vicinage rule, requiring the issuable facts alleged in pleadings to be laid in some specific place; they continued to be important after the vicinage rule had been substantially diluted. 40 The rules persisted in spite of significant inconveniences, as, for example, that in the fifteenth century the requirements of venue meant that events overseas were nontriable. 41	22
If the venue rules had meant that trial took place in the venue, this would be consistent with a rule of convenience for the attendance at trial of witnesses to give evidence to the jury. But trial could perfectly well take place in Westminster. If the venue rules had directed trial to the place of residence of the plaintiff or defendant, this would be consistent with the jurors as lay judges, the idea being that I ought to be judged by locals, comparable with the idea of trial by peers. But the venue was determined by the facts in issue. This gave rise to problems where, for example, a contract was alleged to be made in one county and broken in another. 42 The rules are therefore seeking informed jurors—even where, as in the contract cases, informed jurors are fairly unlikely.	23
This is corroborated by the various uses of special panels of "experts," summoned by venire facias, found episodically through the later Middle Ages; these range from foreign merchants to cooks, court officials, and surgeons. 43 A systematic instance was the writ de ventre inspiciendo under which a jury of matrons was summoned to determine whether a woman was genuinely pregnant. 44 The uses of special panels are evidence, along with the vicinage and venue rules, of a deep-rooted idea in the doctrine that jurors should be drawn from people who at least in some token sense had knowledge of the facts in issue.	24
(c) The verdict as a proof: Verdicts and other proofs. The Statute of Westminster I, 1275, in two places provides that matters may be averred by jury "or as the king's court may decide." 45 The jury was one among a range of possible proofs that could be tendered to support a pleading. Both this fact, and the alternative proofs and their scope, tell us something about later medieval doctrine about the jury. The fact that there were alternative proofs points to the verdict being a type of proof rather than a type of judgment; some of the rules about the boundaries between other proofs and verdicts tell us something about the perceived nature and scope of the verdict as a type of proof.	25
(i) Proof by documents. The use of documents (at least royal documents) was already a normal mode of proof in Glanvill, where jury trial was still exceptional, 46 and it remained doctrinally separate through the Middle Ages. A royal charter could be used to prevent the assize proceeding, that is, to oust the jury, in some petty assizes from an early date. 47 In the later medieval law, if documents were to be relied upon, they were supposed to be pleaded. They fell into two classes. Records were those documents of which a central copy was kept enrolled—the decisions of the royal courts, final concords, letters patent, and so forth. Here disputes as to the existence or terms of the document would be settled conclusively by calling up the original from the central record. 48 Deeds were private documents under seal (and with other formal requirements). Deeds could be proved to be forged or ineffective by inspection in court, without jury trial of the issue. According to Glanvill and Bracton they could also be proved to be genuine by comparison of seals on inspection in court. 49 The production of deeds thus did not automatically lead to jury trial, though it could. 50 In fact, the adverse party was not generally allowed to plead that a pleaded record or deed inaccurately stated the terms of the transaction it purported to record, or (for example) that he had paid money stated on the face of the deed to be owing, unless he could tender another deed. The reason given is that the writing ousts "parol averments" to the jury. 51 The characterization of such averments as "parol" is a clear indicator that the line drawn is between writing on the one hand, and oral testimony, that is, the verdict, on the other.	26
In practice in land litigation parties tended not to plead their documents, but to go to the general issue and then lead the documents in evidence to the jury. In the fourteenth and fifteenth century this gave rise to a problem if the jury returned a special verdict that was dependent on a disputed document. As long as the jury found a general verdict, the court had no official notice that its decision was not based on the knowledge of the jurors. When a special verdict was found, however, and the jury recited a document, it was arguable that the document ought to have been formally pleaded or at least produced in evidence, and that to find its terms was beyond the competence of the jury, so that the special verdict was bad. There are contradictory authorities on the point in the mid-fourteenth century; there is an early fifteenth-century decision that the verdict is bad, but Littleton, in the middle of that century, says that it is good. 52 These arguments point to juries being expected (and competent) to find a special type of fact: facts that are, or are capable of being, public knowledge in a locality.	27
(ii) Suit followed by wager of law. Witnesses produced by the party, who did not wage battle, began in the time of Glanvill to be described as secta or sequela, usually translated as suit. 53 Suit continued to be used as a form of proof in the thirteenth century outside the contexts in which wager of battle or a jury verdict was required, but it was seen as a weak type of witness evidence; 54 exceptionally in cases of personal status, "suit of kin," or the production of relatives was the required and normally conclusive form of proof. 55 Suit other than suit of kin could be defeated by a successful wager of law or compurgation, in which the proof was the defendant's oath with the support of eleven oath-helpers. In the early fourteenth century, suit became a mere matter of form, and by the fifteenth compurgation had become in effect (whatever it had been before) a decisory oath by the individual party, through the use of hired oath-helpers. 56	28
In the fourteenth century, there are identifiable conceptual boundaries between jury trial and compurgation in the contractual context. In the action of account, compurgation is denied where the liability depends on receipt from a third party. 57 The boundary here, also found in some debt cases, is between, on the one hand, transactions to which in principle the only witnesses are the parties, and on the other, transactions to which there may be other witnesses. The jury was appropriate where the facts were "within the knowledge of the country." 58 Wager of law is only appropriate to secret transactions.	29
When we go back to the early thirteenth century, any conceptual distinction is less clear because compurgation was more generally available. On this basis Maitland argued that the survival of compurgation in the old contractual actions was due merely to the antiquity of these forms of action. 59 But early fourteenth-century lawyers were capable of reshaping the rules of proof—as they did by reducing suit to a formality and by imposing the requirement of a deed in covenant—so that it is prima facie to be supposed that they allowed compurgation to survive in debt and detinue because they did not think jury trial appropriate to secret transactions. 60 In any case, the relationship between suit/ compurgation and trial by jury in these arguments is between types of proof, not between a type of proof and a type of adjudication.	30
(iii) Other modes of proof. The remaining alternative modes of proof are inspection by the court, trial "per proves," and variants on proof by witnesses. Inspection by the court as a proof is attested in two areas: the inspection of a party to determine age, and the inspection of wounds to determine whether they amounted to maims. 61 Allegations that a specific person was alive or dead fell in several cases to be tried "per proves" rather than by jury. 62 "Proves" here may mean witnesses, but could have let in anything that could be used to prove life or death in the canon law. 63	31
Minor officials and persons involved in procedural acts such as summons or distress could be joined to the jury or separately examined to prove facts in their knowledge. 64 Glanvill tells us that on an issue of family relationship in the writ of right, proof is by judicial summons of the parentela, the common blood relatives, the practice that developed into "suit of kin"; Bracton tells us that where the husband's right to curtesy is disputed and the issue is on the live birth of a child, this is to be proved by suit (meaning here witnesses) who heard the child cry. These bring us back to the thirteenth-century use of suit as witnesses who could be examined by the court as an optional mode of proof (which Maitland thought might, but for the entrenched position of jury trial, have developed into proof by witnesses along continental lines). 65	32
These proof variants illustrate the fact that jury trial is conceived as one among several modes of proof. Not even in the possessory assizes (where summoning the assize was specified in the original writ) does the jury wholly oust other methods of proof, whether by documents or "per proves." The availability of alternative modes of proof depends not on forms of action, but on factual issues arising on the pleadings.	33
There is, therefore, a considerable body of later medieval doctrinal evidence, starting with Glanvill, which shows a view of jurors as witnesses, not lay judges, and the verdict as a proof of a specific kind available for facts of a specific type. If the jury was unique in these features, we could attribute them to an original development of legal thought in England. However, there are several instances of "testimonial" lay fact finding by the production of panels of locals, restricted to specific types of disputed issue, from elsewhere in Europe in the twelfth century and later Middle Ages.	34
Besides the obvious Norman case, 66 the probatio per turba, French preuve par tourbe, was used to establish matters of custom in canon law and in France down to the early modern period; 67 inquisitions were used to fix boundaries in eleventh-century Norman Sicily; 68 in eleventh- to fourteenth-century Spain the pesquisa was used in cases of title to land and for some criminal cases; 69 in southern Germany in the fourteenth to fifteeenth century the Kundschaft was used in land litigation; 70 in thirteenth- and fourteenth-century Hungary the inquisitio was used in land, status, and fiscal cases, but only as a mechanism to allocate the duty of compurgation; 71 and in fourteenth-century Serbia some variants of the porota represented the use of local panels in boundary cases and to assess damage in cattle trespass. 72 Possible additions are early twelfth-century Aquitaine and Tuscany. 73 These cases are, like the early medieval "inquests" found by the Settlement of Disputes authors, wider than Brunner's narrowly fiscal conception. But equally, like the testimonial conception of the jury, they are not generally available modes of proof, but are restricted to certain types of factual issue. To borrow terminology from the later common law, the issues in question are generally, though not entirely, "local," rather than "transitory": 74 they concern persistent facts of which there may reasonably be expected to be a local reputation, like local custom, boundaries, possession, and personal status.	35
Now it is possible that all these are just instances of judicial pragmatism and hence convergent evolution of legal techniques—which is, in effect, Reynolds's view. This argument is, however, less attractive than it at first appears. A real instance of convergent legal evolution is discussed below, in the area of conveyancing techniques. Frankish law offers us a description of a form of conveyance of property by public ceremonious transfer before witnesses, often involving a symbolic object. 75 The function of this form of conveyance is much the same as the Roman mancipatio, 76 so that this is an instance of convergent legal evolution. We can see from this case that convergence in function can produce fairly radical differences in form, while what we see with jury-like modes of proof is closer to being a common form. It is therefore worth considering the possibility that the use of panels of locals for certain types of proof has a basis in late Roman and/or early medieval normative sources, before resorting to the hypothesis of convergent evolution.	36
II. Local Reputation in Early Medieval Law and Anglo-Norman Practice
1. Vicini in Late Roman and Early Medieval Normative Sources
The use of vicini, neighbors, as a special source of testimony, is primarily found in early medieval sources in the related contexts of conveyancing and boundaries. Besides these two are a number of minor uses.	37
(a) Conveyancing. The starting point in the late Roman sources for an early medieval concept of vicini as a special type of witnesses is two laws of Constantine the Great, which altered the law in relation to conveyances of land, so as to require a ceremonious transfer of the land executed on the property itself and in the presence of vicini (corporalis traditio). This was a change to the previous law, which allowed conveyance in the case of Italic land by ceremony of mancipatio, or generally by documents, executed away from the land itself. 77 The changes were motivated by concerns about tax liability and double conveyancing; 78 but their effect was inter alia to make the neighbors a required class of witnesses in relation to title. Thus, in the law on conveyance on sale,	38
... neminem debere ad venditionem rei cuiuslibet adfectare et accedere, nisi eo tempore, quo inter venditorem et emptorem contractus solemniter explicatur, certa et vera proprietas vicinis praesentibus demonstretur.... (No one may contract for or execute a sale of any property unless at the time of the formal conveyance | a certain and true property is shown in the presence of the neighbors.) 79
The conveyancing context, as Honoré explains, is that before these laws on a conveyance by traditio a description of the boundaries of the land by view or perambulation was theoretically required and the use of neighbors as witnesses was normal, in order to avoid or at least identify boundary disputes; however, conveyance by traditio had become "constructive" so that documentary conveyances could be used; and the use of neighbors was not required. 80 Under the new laws, the presence of the neighbors was required and, as G. G. Archi has pointed out, they become an added source of information about title. 81	39
Both laws were incorporated in the Code of Theodosius II in 438. 82 In the Code of Justinian, however, the law on sales disappears, and that on gifts loses the corporalis traditio provision. 83 It is possible that this is because the use of vicini is displaced (though still existing as a subsidiary mode) by the registration of transfers in local public records. This can be seen from a law of the Emperor Zeno dating from 478 in the Code of Justinian:	40
In donationibus, quae actis insinuantur, non esse necessarium iudicamus vicinos vel alios testes adhibere; nam superfluum est privatum testimonium, cum monumenta publica sufficiant. (In gifts, which have been inserted in the records, we do not judge it necessary to call the neighbors or other witnesses; for private testimony is superfluous, as the public records are sufficient.) 84
A variant form of the law on gifts was included in the Edictum Theoderici (which has been attributed either to the Visigoth Theoderic II [453-66] or to the Ostrogoth Theodoric the Great [489-526]) 85 and that on sales in the Breviary, dated to 506, of the Visigoth Alaric, where it received an interpretatio or explanation:
... quia iubetur, ut vicini rei quae venditur testes esse debeant et praesentes, in tantum, ut etiam de mediocribus rebus si quid in usum venditur, ostendi vicinis placeat, et sic conpareri, ne aliena vendantur. (... because it is ordered that the neighbors of the property which is sold must be witnesses and present, to the extent that even in the case of things of slight value, if anything is sold for use, it is our pleasure that it be shown to the neighbors and thus purchased, in order that the property of others may not be sold.) 86
The Breviary was extensively circulated in early France, and more widely in the form of epitomes. Haenel's edition reprints five of these epitomes, and in three of these, the Epitome Guelphyterbiani, the Epitome Monachi, and the Epitome of St. Gall, the requirement that sales be in the presence of the neighbors is present. 87 The same provision is found in the eighth-century Swiss Lex Romana Raetica. 88
The Burgundian Code of Gundobad, which is roughly contemporary with the Breviary, contains a similar requirement that sales of land must be in writing and attested by seven or five witnesses "loci illius consistentibus" (dwelling in that place) or at least three witnesses "loci illius consistentibus" who are of good reputation. 89 This requirement is not, however, present in the contemporary Lex Romana Burgundionum, which refers only to traditio and following possession. 90 The late fifth-century Visigothic Code of Euric requires either a document, or witnesses to the price, following a different provision of the Theodosian Code, and this approach is followed in the seventh-century Spanish Visigothic code. 91 Considerably later, the late eleventh- or early twelfth-century Expositio ad Libram Papiensem (Commentary on the Book of Pavia) says that a traditio must be on the land and in the presence of witnesses "sicut in lege Romanorum precipitur" (as is required in the law of the Romans), presumably referring back to the requirement of the Breviary. 92	41
The Salic Laws are uninformative on transfers of property; 93 the early seventh-century Frankish Lex Ribuaria, however, does give a definite mode of conveyancing using witnesses that is clearly not dependent on the use of vicini. The key is a ceremony of traditio and receipt of price, and the witnesses are to be children and to be slapped and have their ears pulled to fix the event in their memory. 94 This model of a ceremony off the land is also followed in the Leges Alamannorum and Lex Baiwariorum from the same period. 95 There is a fairly substantial reason to suppose that this concept had wider application, as it also appears in the eleventh-century Norman conveyancing practice studied by Emily Zack Tabuteau. The ceremony did not have to be on the land, and the witnesses do not seem to have been required to be vicini, as some of them were potential claimants selected to create, as it were, estoppels against themselves. 96	42
We can therefore see two broad early medieval conveyancing models. The first is sub-Roman and requires a ceremony on the land with neighbors to witness it. The second, the ceremony of transfer of a symbolic object off the land, with child and quasi-grantor witnesses, has a function analogous to the Roman mancipatio but is clearly unrelated to any Roman source. When we come to consider English practice, there is a striking movement between the two models at the time of the regularization of jury trial of land title under Henry II. The work of S. E. Thorne, M. T. Clanchy and, most recently, John Hudson has shown that much Anglo-Norman conveyancing practice was, like that of eleventh-century Normandy, based on the model of ceremonious transfer not executed on the land itself. 97 But, as Thorne showed in 1936, this practice was displaced in the later twelfth century by a requirement of a ceremony on the land and the execution of acts of possession by the transferee. 98 This is a striking coincidence if it is not more; Thorne drew the inference that the movement to a ceremony on the land was necessitated by jury trial. 99	43
(b) Boundaries. Probably linked to the conveyancing rule is a rule about boundaries. Honoré explains that the use of vicini before the legislation of Constantine was related to boundary issues. Laws of Constantine and later on the establishment of boundaries used expert surveyors, the agrimensores. 100 This was, however, of little relevance under early medieval conditions, and several normative texts required the use of locals. Thus, the Visigothic Code of Euric provides in the first place that boundaries that have been wrongfully altered are to be restored in the presence of the neighbors; 101 and, second, that where there are no clear boundaries,	44
... tunc Gothii [in-]/grediantur in loco hospitum et ducan[t, ubi]/ terminum fuerit ostensus. Tunc iud[ex], /quos certiores agnoverit, faciat eos s[a]/cramenta praebere, quod terminum s[ine]/ ulla fraude monstraverint.... (... then let the Goths enter into the place of the hosts and follow the boundary where it is shown. Then let the judge cause those whom he knows to be well informed to give oaths that they have shown the boundary without any fraud.) 102
In the main Visigothic codification, this method is reproduced in a slightly different form:
Cum autem proprietas fundi nullis certissimis signis aut limitibus probatur, quid debeat observari, eligat inspectio iudicantium, quos partium consensus elegerit, ita ut iudex, quos certiores agnoverit vel seniores, faciat eos sacramenta prebere, quod terminos sine ulla fraude monstraverint. (When the ownership of the land is not proved by any certain signs and limits, which ought to be observed, [the judge] may choose an inspection by arbiters, chosen by agreement of the parties, so that the judge should make those whom he knows to be the better informed, or elder, take oath [etc.].) 103
Similarly, the later Lombard kings made use of an inquisitio procedure in boundary cases. 104 In contrast, in the Alaman and Bavarian laws the procedure for determining boundary disputes involves trial by battle. 105
The use of local "seniores" to establish boundaries is also found in canon law sources. In the Irish collection of canons, the Hibernensis, it appears as:	45
De duabus ecclesiis contendentibus agrum unum. Synodus: Ager inquiratur in scriptione duarum ecclesiarum; si in scriptione non inveniatur, requiratur a senioribus et propinquis quantum temporis fuit cum altera et si sub jubileo certo mansit, sine vituperatione maneat in aeternum.... (About two churches disputing a piece of land. An Irish synod: the land should be looked up in the written evidences of the two churches; if it is not found there, inquiry should be made of elders neighboring [on the property] how long it has been held by the present holder; if it has remained unchallenged for longer than the period of legal warranty, let it remain [with the holder] for ever.... ) 106
At the Synod of Toul in 838 a dispute as to the boundaries of parishes was settled by "investigantes testimonio multorum, tam clericorum quam laicorum, qui antiquiores videbantur" (investigating by the testimony of many, clergy and lay, who appeared to be the older), who set out the parish bounds on oath. 107 Burchard of Worms attributes to one of the Synods of Aachen a diluted version that mixes this procedure with the use of the judgment of God, as in the Alaman and Bavarian laws:
... si contentio fuerit de terminatione duarum matricum, plebes utrarumque discernat; si non convenerit, lis Dei judicio discernatur. ( ... if there was dispute as to the boundaries of two mother churches, let the people of both decide it; if this is not possible, let the suit be decided by the judgment of God.) 108
Ivo of Chartres eliminates the use of the judgment of God, but Gratian retains it. 109 As will be seen below, the use of locals to prove boundaries was incorporated in the learned laws of the twelfth and thirteenth centuries.
(c) The assessment of damages to land. The use of vicini to assess damage to land in cases of cattle trespass can be found in the Visigothic laws 110 and, following them, the Bavarian laws, 111 and in the mid-seventh-century Lombard Edictus Rothari. 112 The Edictus Rothari also prescribes that neighbors are to estimate damages in the case of civil liability for fire. 113	46
(d) Questions of status. Early canon law sources make passing reference to the use of vicini or similar phrases in relation to two questions of personal status: proof that an individual was baptized, and proof of family relationship for the purposes of the prohibition of marriage within the prohibited degrees. The first is found in a letter of Pope Leo I (440-461): "Si nulla exstant indicia inter propinquos et familiares, nulla inter clericos aut vicinos quibus, hi de quibus quaeritur baptizati fuisse doceantur.... " (If there is no evidence among relatives and household members, none among clergy or any neighbors, from which it may be inferred that the subject of the enquiry has been baptized.... ) This text appears in the same terms in numerous canon law collections down to and including Gratian. 114	47
The case of family relationship is slightly more complex and more directly relevant. The acts of the Synod of Friuli (796/97) contain a provision requiring espousal and a delay before marriage, to allow enquiries from "vicini vel majores natu loci illius, qui possint scire lineam generationum utrorumque" (the neighbors and elders of the place, who may be able to know the ancestry of both of them). 115 Burchard of Worms attributes to St. Fabian (pope 236-251) the following:	48
Consanguineos extraneorum nullus accuset, vel consanguinitatem in synodo computet: sed propinqui, ad quorum notitiam pertinet, ... Si autem progenies tota defecerit, ab antiquioribus, et veracioribus, quibus eadem propinquitas nota sint, episcopus canonice perquirat.... (No unrelated person should accuse [married persons] of consanguinity, or compute consanguinity in synod: but the relatives, to whose notice it belongs ... If, however, the whole family stock is unavailable, the bishop should carry on a canonical inquiry among the older and more reliable who may have notice of the relationship.... ) 116
He also gives the form of the oath to be tendered in such a consanguinity inquiry, which requires the witnesses to tell on interrogation what they know or have heard from their neighbors or ancestors about the relationship: "quidquid inde scis, aut audisti a tuis vicinis, aut a tuis antiquioribus propinquis." 117
This body of law was collected by Gratian, 118 and the basic ideas are followed by Glanvill in discussing proof of family relationships. 119 The parentela, the members of a common lineage, are the preferred witnesses, but if they fail to produce an answer, then resort is had to the vicini; in either case, hearsay is acceptable.	49
The uses of vicini as a source of evidence discussed so far are fairly straightforward. The late Roman law of land transfer and, with it, the use of vicini to determine boundary issues, evidently survived in southern European normative materials, which is unsurprising as this was the area of greatest Roman legal influence in this period; 120 and the use of vicini in boundary cases passed into the canon law, which is equally unsurprising as the church was said to live by Roman law. 121 The derivation of the damages and status rules is less clear, but the concept is evidently the same: local reputation is an appropriate source of evidence for both local values and family relationships (though in the latter case the evidence of the family is preferred).	50
The Carolingian inquisitio capitularies, which are by no means limited to matters of royal interest, 122 should probably be understood in the light of this background, especially as they date after Charlemagne's coronation as emperor. Indeed, most date from the reign of Louis the Pious (814-29), an emperor notoriously influenced by the Church. 123 In addition, instances of the application of the procedure seem to be predominantly southern; the "southern" or "ecclesiastical" character of the other normative sources for the use of vicini therefore seems to persist in the inquisitio. 124 A link to land and status matters is apparent in a capitulary of 816:	51
Testes vero de qualibet re non aliunde nisi de ipso comitatu in quo res unde causa agitur posita est congregentur; quia non est credibile, ut de statu hominis vel de possessione eius per alios melius cognosci rei veritas possit quam per illos qui vicini sunt. (However, witnesses in any matter should not be assembled except from the county, in which the matter that is the subject of the case is alleged; because it is not credible, that in relation to the status of a man, or someone's possession, the truth of the matter can be better known than through those who are neighbors.) 125
In all these areas, of course, the evidence is too limited to show consistency of practice. What it shows is a normative tradition that was certainly available to judges, disputants, and writers about law in the twelfth century.
2. Panels of Locals and Other Forms of Collective Testimony in Anglo-Norman Judicial Practice
The early medieval normative sources discussed above imply that there may have been normative claims that parties could make in litigation about appropriate forms of proof. 126 This, in turn, would create patterns in the evidence of use: we would expect panels of neighbors, as distinct from party witnesses, compurgation, and direct determination by the court, to be commonly used in boundaries and status cases, and possibly in other areas of "continuing" facts in which local reputation was analogously probative. We would not expect to find panels of vicini used in relation to transitory facts like crimes and torts. In relation to title to land made under a conveyance, the normal mode of conveyance is also significant. Only the mode of conveyance by ceremony on the land would imply production of vicini in later litigation. But private ceremony off the land would imply production of charters or attesting witnesses, and conveyance by act in court would imply an appeal to the memory of the court itself.	52
How far does this hypothesis fit the evidence for collective testimony in Anglo-Norman England? R. C. van Caenegem's collection of lawsuits between 1066 and 1199 provides a convenient body of material. 127 It is a limited sample, from which any conclusions are impressionistic. There is, however, enough material to get some idea of the relative frequency of the use of different proof modes for different types of issue.	53
I have approached this data in two ways. The first looks at the nature of the disputed issues in those cases van Caenegem identifies as involving neutral collective testimony of some sort (inquests, recognitions, and so on). 128 It appears that there were two distinct modes of neutral collective testimony. One is the use of a special panel of locals; the other is the testimony of a local or feudal court. When we analyze the disputed issues, it becomes clear that there were also differences in the type of subject matter dealt with by the two modes. Table 1 shows the breakdown of disputed issues numerically and as a percentage of the total issues for that proof mode. 129	54
Table 1. Cases Indexed as "Inquest," etc.; Subjects     a This category includes claims characterized both as claims "to" churches and as claims to advowsons. In one of the earlier cases, no. 296 (1138 x 1139), the issue is characterized as lay fee or free alms, but the substance of the dispute is as to the possession of the church and its lands. b This category includes claims to all sorts of consuetudines, including rent, tolls, monopolies, jurisdictions and immunities, rights of common, rights to water, other easements, etc., as well as custom in the narrower sense of local norms. c This category includes all cases where a claim is said to be to land and not identifiably a dispute about boundary disputes or consuetudines.
The figures for cases up to 1164 tell us first that forms of neutral collective testimony were at this period used for practical purposes entirely to deal with local, as opposed to transitory, matters. The one apparent exception, a case of disseisin of a ship, is, in fact, part of a wider dispute about customs. 130 The nature of the sources inevitably means that the collection is heavily biased toward land disputes where one or more of the parties was an ecclesastical body. 131 This probably hides the use of locals to present crime 132 and may well hide other uses. However, in the case of trial by battle, van Caenegem's index gives ten cases before 1154, nine concerning land and one treason, and thirty-two cases between 1154 and 1198, seventeen concerning land, fourteen crime, and one an unidentified subject. We may therefore expect that if there was wide use of panels of locals to determine questions of fact other than those seen, the collection would provide some evidence of it.	55
Second, before 1164, special panels appear particularly likely to be used to decide boundary issues and questions of customs. The figures may somewhat overstate the extent to which at this period special panels were used to determine general land claims and claims to churches. 133 These features of the use of special panels are broadly consistent with the early medieval rule about boundaries and with its apparent conceptual basis: special panels were used primarily to determine boundaries and other questions, such as customs, that lie in local reputation.	56
The second angle of approach is through the cases that appear to involve claims to land, but are not identifiable as concerning boundaries or customs. Here the 111 Domesday cases, Lawsuits, nos. 21-131, form a distinct group. 134 Table 2 shows the analysis.	57
Table 2. Land Claims; Proof Modes     a There is one case, no. 408, the Anstey case (1158-63), of reference of an issue of bastardy to the ecclesiastical courts; since this is unique in the sample it is not tabulated.
These figures corroborate the impression from the "inquest, etc." cases analysed in Table 1. They show that before 1164 proof by a local court was a significant mode of proof in general land cases, significantly greater than the use of panels. In the Domesday cases it is absolutely dominant. 135 Some of these cases also give us some idea of what it is that the local court speaks to in general land cases. This seems to be a ceremony of "seising" by act in court, either by the authority of a writ, or by some representative. Thus, for example, in no. 45 one party is said to hold land unjustly "nemo enim eorum vidit brevem regis vel ex parte ejus hominem qui eum inde saisisset" (for none of them has seen a royal writ, nor on his side a man who might have given him seisin); in no. 171 the Riding say that "nunquam viderunt antecessorem episcopi fuisse saisitum neque per brevem neque per legatum" (they never saw that the predecessor of the Bishop was seised, either by writ or by messenger). 136	58
The claims to churches produce an analogous picture (see Table 3). 137 Here a relatively even distribution of proof modes in the earlier cases is replaced by an absolute dominance of the use of panels. The shift may be sharper, if slightly earlier, as three of the cases of the use of panels before 1164 are in the early part of the reign of Henry II. 138	59
Table 3. Claims to Churches and Their Advowsons
The defects of the evidence do not, therefore, prevent us from drawing the conclusion that the uses of panels of locals before the reforms of Henry II were more limited than they were after; that they were largely restricted to "continuing" facts and local reputation; and that they were strongly weighted toward boundary disputes and customs, at least by comparison both with the uses of the testimony of courts and with cases after 1164. It is consistent with the ecclesiastical bias of the sources to suppose that the reason for this character is that the practice comes from the canon law boundaries rule—which will also serve to explain the case of 1054 cited by van Caenegem in his English Writs, 139 without recourse to either Danish or purely Anglo-Saxon antecedents.	60
III: Processes of Systematization
The later twelfth century saw some systematization of the use of local reputation as a form of proof, both in the canon law and in English law in the form of the reforms of Henry II. The first of these processes, I would argue, helps us to understand the second.	61
1. Local Reputation in the Learned Law of Proof
The period between the late eleventh and the early thirteenth century saw the rediscovery of the Digest of Justinian; the development around the Corpus Iuris Civilis, Gratian's Decretum, and the papal decretals of systematic thought about law considered as an intellectually coherent field; and the emergence of a new systematic procedural thought. In the field of procedure, writers went beyond the exposition and glossing of the authoritative texts to offering systematic accounts of the topic designed for practical use, at an early stage: the earliest systematic procedural manual is attributed to Bulgarus (d. ca. 1166). 140 Systematic concepts of procedure and proof were an innovation in relation to Roman law, and the canon law practice was central to this innovation; 141 in consequence, significant elements of early medieval law were included, via Gratian, in the new learned law of procedure. The classic example of this is the survival of the early medieval practice of compurgation into the purgatio canonica of the canon law. 142	62
The effect of the growth of the new procedural doctrine on the uses of local reputation in the earlier canon law, discussed above, was double-edged. On the one hand, the new law drew an increasingly sharp distinction between the roles of judge and witness. In addition, the law associated with this distinction was inhospitable to forms of collective testimony and to the idea that local reputation had probative value. On the other, there are a number of references in the Corpus Iuris to reputation or the knowledge of neighbors as a means of proof, which provided support for some generalization from early medieval uses of local reputation.	63
The distinction between judge and witness is already present in Bulgarus's account, which tells us that a judge is not a competent witness in a cause in which he is judge. 143 The development of the distinction had two sides. On the one hand, the judge began to be required to act only on the basis of knowledge gained judicially through the lawsuit (secundum allegata et probata, according to what was alleged and proved), not on the basis of his private knowledge (conscientiam). This rule began to develop in the early twelfth century, but reached its full development only later. 144	64
Witnesses, in contrast, were required to speak to personal knowledge of facts in issue. In general, they were required to testify only to things done in their presence, which they had themselves seen and heard (de visu et auditu), not to hearsay (ab alio auditu). This rule had early medieval antecedents, 145 but it acquired an increased prominence with the growth of the requirement that witnesses should be separately and secretly examined by the judge in order to establish the grounds of their knowledge, since this provided a procedural method by which the rule could be applied. 146	65
Prima facie, these rules would seem to exclude the use of local reputation as a source of evidence. There were, however, exceptions of considerable importance, some of which reflected the presence of uses of reputation in the authoritative texts. Two main cases of this type were given as exceptions to the ab alio auditu rule in the early procedural literature. The first was the consanguinity rule, discussed above. 147 The second was a rule about memoria facti, the memory of things done. Two texts in the Digest say that where the issue was whether memory of building works was extant, what had to be shown was that "all agree that they neither saw nor heard the work being done nor heard from others who had seen and heard it and so on ad infinitum," which clearly requires the use of hearsay. 148 Ricardus Anglicus, writing in the 1190s, treated memoria facti as wide enough to include the consanguinity rule. 149 Both these exceptions were controversial in the thirteenth century; 150 but Durantis (later thirteenth century) generalized on the memoria facti rule to give a broad concept of communis opinio applicable to cases of prescriptive title, shown by the testimony of locals as to their own knowledge and (as they had heard) that of their predecessors and neighbors. 151	66
More general was the concept of fama, which translates directly as reputation or rumour. Fama has been most extensively studied in its character as public suspicion of crime. 152 It was clear from the early medieval texts collected by Gratian that fama was a sufficient basis to put a person to compurgation on a criminal charge, even though there was no accuser or witnesses. 153 Also, a rescript of the Emperor Hadrian extracted in the Digest refers to "consentiens fama," "common knowledge" as a possibly decisive form of evidence. 154	67
Whether fama could constitute full proof was disputable. In the later twelfth and early thirteenth century, it was linked to the concept of notorious or manifest crime, which was so widely known that it could be punished without accusation or proof. 155 In this context Pope Innocent III in 1199 drew a sharp distinction between notoriety and fama, and subsequently the dominant tendency was for fama to be treated as less than a full proof. 156 However, a quasi notoriety could still be described as coming from fama. 157 Accursius's ordinary gloss on the phrase in the Digest still reports that some, possibly himself included, thought that fama was sufficient in itself; 158 and Bartolus (1314-57), followed by Baldus (1327-1400), said that the value of fama depended on its quality and could range from being full proof to less than circumstantial evidence. 159	68
In specific contexts, moreover, fama—especially old fama—might still be an appropriate form of proof at later periods. Thus, a decretal of Honorius III (1216-27) says that boundaries may be proved inter alia by fama; the ordinary gloss on this decretal identifies the proof as by the old men of the parish, citing both to the older boundaries rule in Gratian and to the memoria facti texts in the Digest. 160 The persistence of this idea can be seen by its use in four of Baldus's consilia on boundaries; 161 Baldus also tells us that old fama that goes beyond living memory can be used with the force of notoriety to prove title to land. 162	69
Notoriety, meanwhile, had evolved into a theoretical category containing a variety of forms of proof that were conclusive—confessions in court, res judicata, irrebuttable presumptions, inspection by the court, and so forth. 163 The old idea that some facts are so widely known that they do not need proof, that is, that judicial notice can be taken of them, persisted. 164 Notoriety, in the sense of irrebuttable proof rather than of matters not needing proof, could still be established from local reputation in relation to "continuous" or repeated facts 165 and in relation to "transient" facts if these were proved by a combination of witnesses de visu et auditu and witnesses to reputation. 166 If such facts were to be treated as notorious, they came to require proof by large numbers of witnesses from the locality. 167 Waelkens has argued that this body of doctrine, coupled with the definition of a "turba" or crowd as a group of more than ten, was applied to the proof of custom to form the basis of the French enquête par tourbe—a concept that became part of the general canon law. 168 The verdict of twelve jurors is thus on the edge of this type of notoriety. 169	70
As to the proof of fama, from the thirteenth century, the normal position of the texts is that fama is to be proved by individual witnesses, who are to be examined on the source of the reputation. 170 But the ordinary gloss on Gratian's Decretum, written in the early thirteenth century, suggests in the first place an enquiry among the neighbors, though it offers the alternative of proof by two witnesses. 171 In the practice of the English church courts, Helmholz has found later instances of the use of jury-like panels to establish fama for the purpose of criminal prosecutions; and Donahue has found continued use of large numbers of local witnesses, speaking in similar or identical terms, to prove issues in which fama would be available, down to the fourteenth century. 172	71
Another approach was to treat local reputation as creating a presumption. Thus CJ 5. 4. 9 says that marriage may be proved by cohabitation as husband and wife and the birth of issue to the knowledge of neighbors and others; D. 14. 6. 3 pr. says that a person can be proved to have the status of paterfamilias by public reputation and acting as such; and the ordinary gloss on Gratian's Decretum gives vicinity as a ground for supposing knowledge of one's neighbors' offenses. 173 Ricardus Anglicus gives the last two cases as instances of presumptions, 174 and two decretals of Alexander III and one of Clement III, which refer to fama both of marriage and of illicit intercourse as proof, were placed in the Gregorian collection under the title De Praesumptionibus. 175 More generally, the ordinary gloss on the Decretum includes the statement that "vicinorum facta praesumimur scire" (we are presumed to know of the acts of neighbors); 176 and this idea reappears as a heading in the Gregorian collection, "Ex vicinitate praesumitur notitia facti loci vicini" (notice of local facts is presumed from locality). 177	72
Local reputation therefore came to have varying force depending on the context of its use and on the quality of the reputation. Though the proceduralists showed some tendency to restrict its weight, this was primarily motivated, as Fraher has demonstrated, by concerns about the standard of proof in criminal proceedings. Even here, local reputation of a high quality, as in the turba, could amount to notoriety. In the field of "continuous" facts, like title to land, local reputation could still be said to be proof in the early modern period. 178 The combination of these circumstances with the early medieval uses of local reputation explains the widespread presence of testimonial jury-like bodies in later medieval Europe, noted earlier. 179	73
In the later twelfth century, notoriety could still be said to arise ex fama, and fama itself—proved, perhaps, by enquiry from the locals, who were to be presumed to know local facts 180 —was an acceptable canonical proof in a substantial range of cases. Most of the examples given above are later than this period. But their background is the continuity of the early medieval rules about boundaries and status in the Decretum of Gratian, and they show the persistence of the use of reputation as a proof against the main current of the development of the law of witnesses. It is therefore fair to assume that local reputation was more widely acceptable as evidence in canon law in the later twelfth century. It would certainly have been more acceptable from the point of view of canonists than the use of trial by battle, which was explicitly condemned both in Gratian's Decretum and by Celestine III (1191-98). 181 This acceptability is, I would argue, important to the English developments.	74
2. Legislation of Henry II
The evidence from Lawsuits shows important changes in modes of proof in litigation under Henry II. The figures in Table 1, above, show expansion of the use of special panels, particularly in general land litigation and claims to churches, at the expense of the use of recognitions, and so forth, by local courts. This is corroborated by Tables 2 and 3. However, Table 2 also shows expansion of the use of panels, and of the judgment of God in the form of trial by battle, at the expense of documents and individual witnesses. An actual extension of the use of battle by Henry II is consistent with the similar routinization of the ordeals in criminal procedure under the assize of Clarendon in 1166, which Robert Bartlett has noted. 182 It rules out any explanation of the expanded use of panels in terms of a "rationalist" or anti-judgment of God position on the part of Henry II and his advisers.	75
The expanded use of panels in land litigation is the result of legislation, creating the petty assizes and the grand assize. Also a product of legislation, but only minimally reflected in the Lawsuits material, is the altered system of prosecution of crime under the assizes of Clarendon and Northampton.	76
We can not completely separate these changes from the disputed question of the nature and motivation of the general alterations in the administration of justice in this reign. The traditional view was that what was involved was a deliberate and rationalist reform of judicial procedure, involving inter alia the substitution of a rational mode of proof, the jury, for the judgment of God; this view was shared by both supporters and critics of the Brunner thesis. Reynolds and the Settlement of Disputes authors, in contrast, see the use of panels of locals as itself an early medieval mode of proof, and Hyams places the early jury in the context of the judgment of God. According to either of these views, the systematization of the use of panels is a result of the precocious strength of the English monarchy, which had the power to compel locals to swear and/or first instance jurisdiction in land and serious crime. As a result, jury-based procedure developed before the elaboration of the Roman-canon law of proof; accordingly, England did not receive this law.	77
However, S. F. C. Milsom has argued that Henry II's reforms were the result, not of a conscious plan to create a centralized system of adjudication, but of the accidental results of ad hoc expedients to deal with specific problems in the adjudication of disputes in feudal courts. This view has been followed, with some important amendments, by R. C. Palmer. 183 In relation to changes in proof modes, the logic of Milsom's and Palmer's views is most consistent with the concept of the routinization of the use of panels of locals as an early medieval survival. In particular it agrees with Hyams's variant on this view, that the "blank" general verdict reflects the commitment of later twelfth- and early thirteenth-century participants in adjudication to the judgment of God. 184	78
The accounts offered by Milsom and Palmer have, however, been criticized from several different directions. Some authors have emphasized the apparently deliberate features of the innovations of Henry II's reign outside land law, while others have called into question the extent to which feudal courts were "sovereign" before the reign. 185 A nuanced view of the reforms is offered by Joseph Biancalana, who argues that the early writs in relation to land express a royal aim of centralized justice, but within the framework of compromise over the relationship between feudal and royal jurisdiction, organized by the principle of "failure of justice." 186	79
In seeking to explain the changes in proof modes, I have found that Biancalana's account of jurisdictional compromise provides the most helpful framework, with, however, an added element, identified earlier by M. G. Cheney. 187 This is the special position of the church, or, more exactly, ecclesiastical bodies, bishops, and monasteries. It is well known that issues of ecclesiastical criminal jurisdiction and procedure were controversial in the reign of Henry II—not only in relation to criminous clerks, but also in relation to ex officio prosecution of laymen. 188 Jurisdiction and procedure in land claims was also a point of controversy.	80
In the first place, ecclesiastics were in this period aggressive claimants to land, some of which was admittedly held from them, though the conditions of tenure (hereditary or not) were disputed, while in other cases their title was disputed. This aggression may have been in part a result of real despoliation in the reign of Stephen, but it was also encouraged by the ecclesiastical reform movement, which made heritable alienation of church property invalid and imposed a duty to recover it. 189	81
Second, ecclesiastical bodies had a built-in advantage in litigation because they kept archives and could produce documents, which were highly valued in early medieval judicial procedure, including in twelfth-century England. 190 Equally, however, they could "produce" documents in another sense. M. T. Clanchy has commented that "Recent research may ultimately conclude that in England in the century after the Norman Conquest forgery of charters was the rule rather than the exception," and contemporaries were well aware of the problem. 191 The Roman-canon proceduralists were, in this context, to develop elaborate authentication rules for documents and a general preference for witnesses over documents, but these rules were not settled until the early thirteenth century. 192 Lay landowners were therefore faced with the possibility of being dispossessed or disinherited by the decisions of cathedral or monastic chapters on the basis of forged charters, perjured attesting witnesses, or even—as in the case of John Marshal in 1164—the bare assertion of the ecclesiastical judge that the facts were notorious. 193 Changes in the proof modes available in land disputes were therefore inescapably linked to controversy between the laity and the clergy. Taking these contexts as a starting point, the changes to modes of proof themselves have three elements. The first is the routinization of battle, more or less from the accession of Henry II, and the apparent exception to this in the case of claims to churches. The second is the development of the jury of presentment. The third is the use of panels, first in the petty assizes, and then in the grand assize.	82
(a) The routinization of battle and the exception for claims to churches. When Henry II succeeded to the throne, he had an immediate aim of restoring the consuetudines of his grandfather. 194 What these were was and remains disputable; but one starting point from which he or his ministers might have identified them could be documents of Henry I. Henry I's 1108 order on the holding of shire and hundred courts prescribes trial by battle in land cases. 195 While this order does not seem, from the Lawsuits evidence, to have created a routine practice, the later 1150s saw the appearance of the writ of right, with wager of battle as standard; and thereafter the Lawsuits evidence shows a substantial increase in the use or offer of battle in land litigation. If this procedure could be justified on the basis of the precedents, politically it must have been easily saleable to lay landowners. This was not only because of the inclusion of the jurisdictional principle discussed by Biancalana, but also because, by requiring wager of battle, it provided a prophylactic against ecclesiastical forgery of titles. From the church's point of view, however, battle was a clearly uncanonical mode of proof. 196	83
Claims to churches appear to be treated differently in the later 1150s, with three cases showing the use of special panels. It seems possible that this difference is a product of jurisdictional controversy. The one possible earlier instance, the Luton church case of 1139, certainly involved jurisdictional controversy, 197 and the church had, for obvious reasons, a considerably stronger normative claim to canon law jurisdiction over claims to churches than it did to jurisdiction in general land disputes. The use of panels would then be a compromise solution: jurisdiction remains with the royal courts, but a canonically acceptable proof is used.	84
(b) Presentment. C. 6 of the constitutions of Clarendon (1164) requires the bishop or archdeacon to entertain prosecutions only by accusation by lawful accusers, or on the basis of legales homines de visneto produced by the sheriff, 198 that is, of fama established by an enquiry from vicini. As van Caenegem and Helmholz have shown, this provision (which may have followed or adapted an earlier ordinance) takes a position on a disputable issue of canon law (what was required to establish fama), but the role of the sheriff is merely to assist the bishop, and Becket did not offer criticism of the clause. 199	85
Shortly afterwards, the assize of Clarendon in 1166 required enquiry to be made through panels drawn from hundreds and villages as to the existence of persons accused or suspect of certain serious crimes. The use of panels in this context is, as Wormald puts it, a "change of tactics" from the existing prosecution machinery. 200 A notable aspect of this tactical difference is that the older machinery, in both Hurnard's and Wormald's accounts, has the effect of placing on individuals or local courts a duty to accuse suspects. 201 Accusation, in Henry II's reign, normally leads to personal trial by battle between accuser and accused. 202 Presentment, in contrast, like canonical fama, leads to the defendant being put to purge himself; the members of the panel are free of the risks involved in personal accusation. While the textual relationship between Constitutions c. 6 and Assize c. 1 is not intimate, Glanvill was to characterize the presentment process as "si nullus appareat accusator certus sed fama solummodo eum publice accusat" (if no specific accuser appears, but only public fama accuses him); that is, the relationship to canonical prosecution on the basis of fama was close enough to be noticed by a near contemporary. 203	86
Conversely, and as van Caenegem pointed out, the requirement that the fama should be sworn to by a panel of locals, like that in the constitutions of Clarendon c. 6, requires a higher quality of proof of fama than permitting this to be asserted by a judge or official ex officio. 204 Given this aspect, the presenting jury could be expected to have a "filtering" role, disposing of complaints and suspicions that were not widely believed by reliable persons. Such a role, which is also identified by Susanne Jenks, 205 accounts adequately for the "medial" decision-making role in practice found by R. D. Groot, 206 without the need to suppose a judicial conceptualization.	87
A filtering role based on fama would also account for the use of "medial" juries in appeals, on the issue whether an appeal was brought de odio et atia (from hate and spite), discussed by Groot. 207 The practice may have been judicial. In form, however, the issue is as to the qualifications of an accuser. An accuser in the appeal of felony was a quasi-witness, who had to swear de visu et auditu. 208 In canon law, accusers were disqualified if the accusation was motivated by personal enmity; 209 odio et atia seems to be a close analogue; and local reputation was an obvious means of proof of preexisting enmity.	88
(c) Land claims: The petty assizes. C. 9 of the constitutions of Clarendon provides a mechanism for determining by panel in the royal court whether land is lay fee or free alms, prior to substantive litigation about the land: the assize utrum. This appears to be a fairly narrow extension of the existing use of panels in claims to churches. We remain within the framework of jurisdictional compromise observed by Biancalana of the writ of right, but in the context of canon law jurisdiction. Jurisdiction over land that is held in free alms is conceded to the canon law, but the question whether it is free alms is to be determined in the royal court. The proof mode is similarly a compromise. The use of the testimony of a court would have prejudged the issue of jurisdiction, so we get the use of a panel to establish local reputation of the facts. 210	89
The date of the assize procedure for disseisins is disputed, but it may belong to about the same period, ca. 1166. 211 (Cheney has argued that the new remedy was at least in part a response to the litigation between Archbishop Becket and John Marshal in 1164.) 212 The remedy is conceptually interlocutory, that is, it does not prejudice subsequent proceedings in the right. 213 This context has implications for proof. Determination of recent seisin and disseisin by local reputation is entirely appropriate. 214 To determine reputation by a panel produced by the sheriff, as opposed to the ecclesiastical judge taking judicial notice—as Becket claimed to in the Marshal case—is consistent with the approach of the constitutions of Clarendon c. 6 to ex officio prosecution on the basis of fama. On the other hand, the short time limit on the procedure for practical purposes excludes documents; proof by witnesses led to trial by battle, which would be inappropriate for an interlocutory proceeding; and the testimony of members of a local court would have prejudiced the jurisdictional balance if the hundred or county were used and, in the light of the Marshal case, been worthless because of bias if the honor court were used. These latter considerations would apply with equal force to the later possessory assizes (mort d'ancestor, darrein presentment), which in any case clearly involve adaptations of the procedural mechanisms originally devised for novel disseisin.	90
The grand assize. In 1176 Henry conceded to the pope, as part of the post-Becket settlement, that "clerici non cogantur facere duellum" (clerks shall not be forced to wage battle). 215 The grand assize, probably of 1179, that introduced the regular use of special panels into proceedings in the writ of right, is the minimum possible implementation of this promise. 216 The king's face is saved by making an alternative mode of proof generally available to all tenants (defendants), rather than merely to clerks. Giving it only to tenants preserves the principle of trial by battle. Clerks are not obliged to wage battle, because nobody is obliged to begin litigation. Only tenants are obliged to fight, and therefore only tenants are given the standard option of a panel instead of battle.	91
The use of panels in this context may well be influenced by the previous success of novel disseisin. In addition, some of the considerations relevant to novel disseisin are relevant here, albeit in a different way. Proof by witnesses led automatically to battle. Documents were not permitted to be conclusive, but could be controverted by battle; since this was also true of the judgment of a local court, it was presumably true of its recognitio or testimony in proceedings in the curia regis. 217 The only way to comply with the 1176 promise without abandoning battle altogether was therefore to make panels available as a mode of final proof. We are again in the presence of a compromise solution to the conflict of jurisdictions and proof modes.	92
The adoption of the grand assize had fundamental effects. In spite of Glanvill's explicit statements that it is a special benefit, and conversely that trial by battle is normal, 218 the grand assize, together with the existing petty assizes, "normalizes" the use of panels in cases related to land. The subsequently developed writs of entry for land claims used panels as the default mode of proof. Conversely, recognitions by local courts—so important in earlier practice—were marginalized. At the same time, the continued use of the reign of Henry I as a limitation date for claims in the right meant that subsequent dealings with the land were not unlikely. This combination, if nothing else, would have forced the displacement of the older modes of conveyance off the land by conveyance on the land by livery and seisin, identified by Thorne. 219 It may also explain the general mise of the grand assize in terms of which party had "greater right," a form of general words capable of covering the varying forms of devolution of title since 1135. 220	93
The difference between the reigns of Henry I and Henry II is in part that Henry II's legislation has effects in practice visible from the evidence in Lawsuits; and toward the end of the reign Glanvill is able to describe a systematic course of the court. The extended use of panels is in this sense (as part of a process of regularization and doctrinalization) part of a change in the processes of adjudication, the beginning of a transition in secular courts from lay custom to professional law. 221 A movement from lay custom toward professional law also appears in the replacement of the testimony of courts with the testimony of panels, as well as in Glanvill and Bracton, when they identify the jurors as witnesses and apply to them some part of the canon law of witnesses. 222 The roles of witness and judge are beginning to be separated, as in the contemporary Roman-canon procedural literature.	94
The extension of the use of panels does not in itself tell us anything about the question of whether the general process of regularization and professionalization was the result of the conscious initiative of the king and his advisers, or of unintended consequences. In itself it is a more "reactive" phenomenon. Its context is what may be called wrestling between the royal and ecclesiastical jurisdictions, since it involved intimate contact of an antagonistic character. The king and his advisers and justices were not simply copying the developing canon law of proof, but rather stretching both canonical concepts and local practices to gain political advantage in the middle ground. Identifying the recognitors as witnesses, subject to canon law exceptions to witnesses, prosecution for perjury, and so forth, is part of this process.	95
IV: Conclusions
Accounts of the origins of the jury function, at least in part, to explain jury trial as an aspect of the difference between the common law and the civil law traditions. The traditional Anglo-Saxonist account, the Brunner thesis, and the more recent versions of collective witness/judgment have this in common. For all of them, the use of proto-juries in Henry II's reforms builds on early medieval practices, predates the development of the learned law of proof, and thus sets the English common law on a path divergent from the rest of Europe, that of the ultimate dominance of trial by jury.	96
Beyond this point, these narratives diverge in relation to matters of politics. The Anglo-Saxonist thesis linked the jury to liberty and constitutionalism, the learned law of proof to absolutism. It made of the jury a matter of national identity: the strength of the constitutional traditions of the Anglo-Saxon polity, in this view, reached through 1066 and the Middle Ages to "ancient constitutionalism" in the early modern period. The Brunner thesis, in contrast, denies the national specificity of jury trial. It makes the institution emerge, not from traditional liberty but from its opposite, strong monarchical government, which in some sense trains the subjects for freedom.	97
The recent return to early medieval origins in collective testimony and collective judgment shifts from constitutional politics to those of the general European transition from lay adjudication to professional law—a transition begun, though not completed, in the twelfth century. In the context of this transition, jury trial appears as an early medieval survival, as opposed to the professionalized model of the learned laws.	98
My conclusions on these matters start with negative ones. In the first place, according to the account given here, the jury is not a direct descendant of lay collective judgment. The relationship is mediated by the uses of vicini in early medieval, and particularly canon, law and by the uses of local reputation in the early development of the learned laws. In the reforms of Henry II the use of panels of locals replaced the judgment-testimony of local lay courts, and it involved thinking about the jurors as witnesses.	99
Second, whatever the truth of the general idea that strong monarchy trained the subjects for self-government, 223 the origins of trial by jury do not appear to be an instance of this phenomenon. The use of panels of locals as a mode of proof was not restricted to matters of royal interest either conceptually or in practice, whether early medieval (including Carolingian) or Anglo-Norman. The limitations on the use of jury trial found in the later medieval common law appear to be as much a matter of the nature of the disputed facts as of the question of whether jury trial was made available by royal legislation.	100
Third, we probably cannot use the origins of the jury alone to explain jury trial as a divergence from the learned law of proof. The presence of proto-juries in land matters and in grounding public prosecutions on the basis of fama is not in itself and in its time a major divergence, and such bodies continued to be used elsewhere in Europe through the later Middle Ages. The real divergences are to be sought elsewhere, particularly (among other differences) 224 in the absence of the separate and secret examination of witnesses (including jurors, but also other witnesses) in the later common law. But this was not settled in our period; both Glanvill and Bracton are clear that the grounds of the jurors' knowledge ought to be examined by the judge, and there are instances in practice during this time. 225	101
On the other hand, if my argument is correct, Henry II or his advisers made a conscious choice to extend the use of panels of locals, rather than tightening up the rules for proof by witnesses and documents. This choice was not made on the basis of ignorance of the contemporary canon law of proof, but of familiarity with it, and it was motivated by contemporary politico-legal conditions. The subsequent steps in the generalization of jury trial and the marginalization of other modes of proof, and the move toward the "blank" verdict, 226 need to be explained at least in part in terms of the politico-legal conditions when these steps were taken, not by an automatic dynamic set in place in the later twelfth century.	102
At this point we are beginning to move from negative to positive conclusions. To locate the extended use of panels of locals in the relationships between royal law and canon law in the later twelfth century is to see it as part of the process of transition from lay adjudication to professional law. Yet, within this transition, it embodies a contradiction.	103
As we have already seen, the transition from lay judgment to professional law involved defining the roles of judge and witness by mutual exclusion: the judge is to decide only on the basis of facts alleged and proved, not on the basis of personal knowledge; the witness, in contrast, is to speak only to personal knowledge on the basis of immediate sense-perception, not to draw conclusions. In reality, of course, all judgments are based in part on the judge's personal knowledge, for instance, of the ordinary course of nature; while, conversely, every act of sense-perception (as, for example, eyewitness identification) is an act of judgment. Every judge is partly a witness and every witness is partly a judge, so that the systematic conceptual distinction between the two involves an inherent implicit contradiction.	104
This implicit contradiction is explicit in the use of local reputation as evidence. Witnesses to local reputation do not speak to personal sense-perception. They speak to the prior perceptions and judgment of the locality, and, indeed, they judge that it is the judgment of the locality—hence the academic proceduralists' attempts to pin down limits to the uses of notoriety and fama.	105
Conversely, however, this internal contradiction within the doctrinal concepts of professional law opens up a conceptual space within which persons can be in theory witnesses, but in practice judges in a much stronger sense. The possibility of agreed, concerted, or common-form testimony to local reputation (which existed as a possibility in the learned laws as well as the common law) 227 can operate as a cover for off-the-record lay adjudication. In this way the forms of professional law can be preserved and, for example, straightforward cases based on documents dealt with professionally; but these forms can be married to at least a partial practice of lay judgment.	106
To go beyond this point is inevitably speculative. I have already suggested, however, that the extended use of local reputation represents a compromise solution in the conflict between royal and church courts. It seems possible that the flexibility to compromise between lay adjudication and professional law, backed by internal conceptual contradiction in the doctrine, may have given continued attractiveness to the jury form in the later Middle Ages in the context of different compromises: those between centrally and locally controlled administration of justice. 228 If so, the ability to perform this political function ultimately depended on the original ability to think of jurors as witnesses to local reputation.	107
Mike Macnair is a senior lecturer in the law department at Lancaster University. He is indebted to David Ibbetson and Paul Brand for helpful comments on an earlier version of this article. He is also greatly indebted to the anonymous reviewers for the Law and History Review for their criticisms of a subsequent version, which helped him to rework the argument extensively. He also thanks them, as well as Charles Donahue and Patrick Wormald, for a number of smaller points in relation to the revised version. None of these should be taken to agree with the argument or to be in any way responsible for any errors of the author. Notes       1. The literature up to that date is listed and discussed in Heinrich Brunner, Die Entstehung der Schwurgerichte (Berlin: Weidman, 1872), chap. The debate following Brunner's arguments is discussed by R. C. van Caenegem, Royal Writs in England from the Conquest to Glanvill (Selden Society, vol. 77, 1959), 57-61, and R. V. Turner, "The Origins of the Medieval English Jury: Frankish, English or Scandinavian?" Journal of British Studies 7, no. 2 (1968): 1-10 (reprinted in idem, Judges, Administrators and the Common Law in Angevin England (London: Hambledon Press, 1994), chap. 3.
2. It did, of course, appear in prerogative or equity and summary jurisdictions from the fifteenth century.
3. For general discussion, see J. P. Dawson, A History of Lay Judges (Cambridge, Mass.: Harvard University Press, 1960), 35-118; Wendy Davies and Paul Fouracre, eds., The Settlement of Disputes in Early Medieval Europe (Cambridge: Cambridge University Press, 1986). For specific discussion of eleventh-century English practice, see Paul Brand, The Origins of the English Legal Profession (Oxford: Blackwell, 1992), chap. 1; John Hudson, The Formation of the English Common Law (London: Longman, 1996) chaps. 1-4.
4. Cap. miss. 819 c. 2, in Monumenta Germaniae Historica ... (various dates and places of publication) [MGH] Capitularia vol. 1, ed. A. Boretius, 289; my translation. The cross-reference is to Cap. 816 c. 1, id. 268 (see below, note 125 and text there). For other instances, Brunner, Schwurgerichte, 88, cites from Capitularia Regum Francorum, MGH, Leges (folio) vol. 1, Cap. miss. 803 p. 115; Resp. misso cuidam data 819 p. 227; Cap. miss. 829 p. 354; Resp. misso cuid. data 819 p. 227; Cap. missor. Aquisgr. 817 p. 226 (217). For other listings of the relevant sources, see F. L. Ganshof, "La Preuve dans le droit franc," Receuils de la Société Jean Bodin 17 (1965): 92-98, and J. F. Niermeyer and C. van de Kieft, Mediae Latinitatis Lexicon Minus (Leiden: Brill, 1976) [hereinafter Lexicon Minus], s.v. inquaestio, inquirere, inquisitio, veritas.
5. Brunner, Schwurgerichte, 87, n. 1, cites the Code of Theodosius [hereinafter CTh] 10.10.11, which provides for an enquiry in which private individuals are to be given an opportunity to make claims to bona vacantia, 10.8.2, which provides for inventories of bona vacantia to be returned including information about claims, and 10.10.29, which makes incidental use of the phrase "inquisitio palatina," and cross-refers to CTh 10.10.7, which bars informers from access to the court (i.e., to claim forfeited goods) until after a judicial examination. CTh 10.8.5, in the same context, is worth direct quotation: "... certi palatini electi et jurejurando obstricti mittantur, ut eorum instantia v[ir] s[pectabilis] proconsul praesentae fisci patrono diligenter inquirat ... " ("trustworthy palatines shall be selected, bound by an oath, and sent to the place, in order that at their instance the respectable proconsul ... may diligently inquire ... "). (Text from Theodor Mommsen, Paul Meyer, and Paul Krueger, eds., Theodosiani Libri XVI, vol. 1 [reprint, Berlin: Weidman, 1962]; translation from Clyde Pharr, ed., The Theodosian Code [Princeton: Princeton University Press, 1952].) Here the palatines, to be sent to the place (i.e., the province) to get the proconsul to enquire, appear analogous to Carolingian missi or English eyre justices.
6. Brunner, Schwurgerichte, chap. 10; van Caenegem, Royal Writs in England, 61-68.
7. The Treatise on the Laws and Customs of the Realm of England Commonly called Glanvill, ed. and trans. G. D. G. Hall, (London: Nelson, 1965) [hereinafter Glanvill], xii, 25, Hall p. 148: "tunc enim ista recognitio sicut quelibet alia in curia domini regis debet tractari" ("for then this recognition must, like all others, be dealt with in the court of the lord king").
8. J. B. Thayer, A Preliminary Treatise on Evidence at the Common Law (1898; reprint, New York: A. M. Kelley, 1969), 47-65; Sir Frederick Pollock and F. W. Maitland, The History of English Law before the Time of Edward I, 2d ed. (1898), reissued with a new introduction and select bibliography by S. F. C. Milsom (Cambridge: Cambridge University Press, 1968), 1: 138-44; Sir William Holdsworth, A History of English Law (16 vols., London: Methuen, 1922-66), 1: 312-15; John P. Dawson, A History of Lay Judges (Cambridge, Mass.: Harvard University Press, 1960), 118-21; J. H. Baker, An Introduction to English Legal History, 3d ed. (London: Butterworths, 1990), 86-87.
9. Turner, "The Origins of the Medieval English Jury," 5, cites M. de Bouard, "De La Neustrie Carolingienne à la Normandie féodale: continuité ou discontinuité," Bulletin of the Institute of Historical Research 21 (1955): 1-14, and D. Douglas, "The Rise of Normandy," Proceedings of the British Academy 33 (1947): 101-31, for lack of continuity. In contrast, David Bates, Normandy before 1066 (London: Longman, 1982), in agreement with more recent French scholarship, argues for an exceptionally high degree of continuity of Carolingian institutions in Normandy down to c. 1020. Bates does, however, argue for a major crisis of ducal authority and recasting of Norman society into a more or less "feudal" shape in the period 1020-1050, and that William the Conqueror's revival of ducal power "had to operate within a changed social framework." Ibid., 178.
10. van Caenegem, Royal Writs in England, 57, n. 2, and idem, The Birth of the English Common Law, 2d ed. (Cambridge: Cambridge University Press, 1988), 74-75.
11. As is apparent from the early appearance of Exchequer records in England.
12. Julius Goebel, Jr., Felony and Misdemeanor: A Study in the History of Criminal Law (1937; reprint, Philadelphia: University of Pennsylvania Press, 1976), 171-86.
13. N. D. Hurnard, "The Jury of Presentment and the Assize of Clarendon," English Historical Review 56 (1941): 374-410, developing less detailed suggestions by Stubbs and Vinogradoff; criticized by van Caenegem, "Public Prosecution of Crime in Twelfth-Century England," in idem, Legal History: A European Perspective (London: Hambledon Press, 1991), chap. 1.
14. Patrick Wormald, "Maitland and Anglo-Saxon Law: Beyond Domesday Book," in The History of English Law: Centenary Essays on "Pollock and Maitland," ed. John Hudson (Oxford: Oxford University Press, 1996), 10-12; Brunner, Schwurgerichte, chap. 25. This seems to represent a shift from Wormald's earlier argument that traces of fiscal inquisitio procedure can be found elsewhere in Aethelred's legislation and the twelve thegns of the Wantage Code are therefore to be understood in these terms. See Wormald, "Aethelred the Lawmaker," in Ethelred the Unready, ed. David Hill. British Archeological Reports, British Series 59 (Oxford, 1978), 66-69. 15. This point is forcefully argued by D. M. Stenton, English Justice between the Norman Conquest and the Great Charter, 1066-1215 (London: G. Allen and Unwin, 1965), chap. 1.
16. Pollock and Maitland, History of English Law, 1: 142; C. H. Haskins, Norman Institutions (1918; reprint, New York, 1960), 227; van Caenegem, "Public Prosecution."
17. R. H. Helmholz, "The Early History of the Grand Jury and the Canon Law," University of Chicago Law Review 50 (1983): 613-27.
18. van Caenegem, Royal Writs in England, 69-81; Stenton, English Justice, 16-17.
19. van Caenegem, Royal Writs in England, 58; "Methods of Proof in Western Mediaeval Law," in Legal History: A European Perspective (London: Hambledon Press, 1994), 95-97 (English translation of "La Preuve dans le droit du moyen age occidental," Receuils de la Société Jean Bodin 17 [1965]: 691-753); "The Law of Evidence in the Twelfth Century: European Perspective and Intellectual Background," in Proceedings of the Second International Congress of Mediaeval Canon Law, ed. Stephan Kuttner and J. J. Ryan. Monumenta iuris canonici, ser. C, vol. 1 (1965): 298-99; "History of European Civil Procedure," in International Encyclopaedia of Comparative Law, ed. M. Cappalletti, vol. 16, ch. 2: "Civil Procedure," (1972), 8-9, 33, 39-40, 43, 47, 48; The Birth of the English Common Law, chap. 3.
20. R. Besnier, "'Inquisitiones' et 'Recognitiones': Le nouveau système des preuves à l'époque des Coutumiers Normands,' Revue historique de droit français et étranger, 4th ser., 28 (1950): 183-212, and idem, "La Dégénérescence des caractères Normands des preuves dans la procédure civile du Duché après la Rédaction du Grand Coutumier," Revue historique de droit français et étranger, 4th ser., 37 (1959): 52-59.
21. This list is drawn synthetically from the various works of van Caenegem (see above, note 19) and (in relation to Sicily) from Haskins, Norman Institutions, 232-34.
22. Susan Reynolds, Kingdoms and Communities in Europe, 900-1300 (Oxford: Oxford University Press, 1984), 28-29.
23. "Conclusion," Settlement of Disputes, 221. The authors undertook to produce a collective view. In the preface to the book, they comment that "we eventually arrived at a common view for Introduction and Conclusion ... the pieces stand as an expression of the group approach" (ix).
24. Reynolds, Kingdoms and Communities, 23-34; "Conclusion," Settlement of Disputes, 220-21. Compare also van Caenegem, "L'histoire du droit et la chronologie. Réflexions sur la formation du 'Common Law' et la procédure Romano-canonique," in Études d'histoire du Droit Canonique dediées à Gabriel le Bras (Paris: Sirey, 1965), 2: 1459-65.
25. 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. M. S. Arnold (Chapel Hill: University of North Carolina Press, 1981), 91-126. Compare also idem, "Henry II and Ganelon," The Syracuse Scholar 4 (1983): 26-27.
26. See Settlement of Disputes, 221-23; compare also Robert Bartlett, Trial By Fire and Water: The Medieval Judicial Order (Oxford: Clarendon Press, 1986), who argues that the judgment of God was reserved for "hard cases."
27. See the sources cited above, note 5, and add the Code of Justinian [hereinafter CJ] 10.11.5c, on forfeited goods, in Theodor Mommsen and Paul Krueger, eds., Corpus Iuris Civilis, 13th ed. (Berlin: Weidman, 1963), 2: 399 [subsequent citations to the Corpus Iuris are to this edition unless otherwise indicated], which makes clear that all normal forms of proof may be used in such an inquiry: "Per omnes autem legitimos modos et probationes scriptas sive non scriptas quaestio de rebus fiat, per testes etiam, qui veritatem scire poterunt...." (in the Latin translation of the original Greek).
28. Lexicon Minus, s.v. inquisitio; Reynolds, Kingdoms and Communities, 29, n. 61; and for the twelfth and thirteenth centuries, see Yvonne Bongert, Récherches sur les cours laiques du Xe au XIIIe siecle (Paris: A. and J. Picard, 1949), 261, and L. Waelkens, "L'Origine de l'enquête par turbe," Tijdschrift voor Rechtsgeschiedenis 57 (1985): 338-39.
29. This has two aspects. The first is the extent to which juries were expected to pass on normative as well as factual questions, for which the locus classicus is T. A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 (Chicago: University of Chicago Press, 1985); compare also R. C. Palmer, "Conscience and the Law: The English Criminal Jury," Michigan Law Review 84 (1986): 791-97, and Hyams, "Trial by Ordeal," 118 and n. 153. The second aspect is the extent to which juries were led by evidence, rather than relying on personal knowledge or locally current hearsay. The literature on this point is conveniently reviewed by George Fisher, "The Jury's Rise as Lie Detector," Yale Law Journal 107 (1997): 591-94 and notes there.
30. Glanvill, ii, 7, p. 28, Hall's translation.
31. Ibid., 12, p. 32, Hall's translation.
32. Bracton De Legibus et Consuetudinibus Angliae, ed. G. E. Woodbine and S. E. Thorne, 4 vols. (Cambridge, Mass.: Harvard University Press, 1968-77) [hereinafter Bracton], fol. 185, iii 71, (Thorne's translation) and Thorne's notes there.
33. Listings can be found, among others, in the Ordo "Invocato Christi Nomine" traditionally attributed to Pillius (1191 x 1198). See Ludwig Wahrmund, ed., Quellen zur Geschichte des Römisch-kanonischen Prozesses (1905-1931; reprint, Aalen: Scientia Verlag, 1962), vol. 5, i, 40-45; the Summa de Ordine Iudiciario of Damasus (1210 x 1215), Wahrmund, Quellen, vol. 4, iv at pp. 22-25; and the Summa Aurea of William of Drogheda (1239 x 1245), Wahrmund, Quellen, vol. 2, ii at pp. 377-79. (All dates given here for the original texts are those given by Wahrmund.) Thorne, Bracton 3: 71n., cites to William of Drogheda on this point to source part of Bracton's treatment of challenges; but it is not clear that this is correct. First, Thorne dates the basic text of Bracton to the 1220s-1230s (Bracton iii, Introduction), while Wahrmund dates Drogheda to between 1239 and 1245 (Quellen, vol. 2, ii at pp. xvi-xviii). Second, Bracton refers explicitly to the grounds of exclusion of witnesses. Finally, the two points for which Thorne identifies Drogheda as the source, the exclusion of household members and of advocates, were common to the exclusion of witnesses and the recusation of judges.
34. For the invention in 1201, see J. C. Holt, Magna Carta, 2d ed. (Cambridge: Cambridge University Press, 1992), 181-82; the extension in 1275 is by Stat. Westminster I c. 38.
35. Glanvill, ii, 19, pp. 35-36 (cf. also Hall p. 36, n. 1 on the distinction between this procedure and the attaint). For detailed discussion of the attaint, see Bracton, fols. 288b-293b, iii 336-49.
36. For the procedure in and consequences of false judgment proceedings in the early thirteenth century, see Pollock and Maitland, History of English Law, 2: 666-68. The discussion in Bracton is at fol. 228b, iii 336-37, and fol. 290b, iii 341.
37. A summary account of appeals is given by O. F. Robinson, T. D. Fergus, and W. M. Gordon, An Introduction to European Legal History (Abingdon: Professional Books, 1985), 142-44. Some early examples of discussion by the proceduralists are in the Summa de Ordine Iudiciario of Ricardus Anglicus (1196), Wahrmund, Quellen, vol. 2, iii at pp. 81-88, and that of Damasus (see above, note 33), pp. 59-61.
38. Glanvill, vii, 11, p. 30, Grand Assize, the four knights to elect twelve "de eodem visneto"; ix, 13, p. 115, reasonable boundaries, "per legales homines de visneto"; xiii, 3, p. 150, Mort d'Ancestor, "liberos et legales homines de visneto"; the same formula is in all the petty assizes.
39. The reduction of the vicinage requirement starts with Stat. Westminster II 1285 c. 38, and concludes with Somers' Act, 4 Anne, c. 16 § 6 (1705) for civil proceedings, 6 Geo. 4, c. 50 § 13 (1826) for criminal proceedings; intermediate statutes are discussed by Thayer, A Preliminary Treatise, 91.
40. See Henry Rolle, Un Abridgment des Plusieurs Cases et Resolutions del Common Ley (London, 1668) [hereinafter Rolle Abr.], 2: 596-624 for issues relating to venue, mostly drawn from medieval cases. I have used Rolle in preference to Sir Anthony Fitzherbert, La Graunde Abridgment (London, 1516), for ease of access to references, since Fitzherbert uses a less sophisticated division of the material.
41. Baker, English Legal History, 141, 143; Sir John Fortescue, De Laudibus Legum Angliae, ed. and trans. S. B. Chrimes (Cambridge: Cambridge University Press, 1949), 75-77.
42. For judgment by locals as a right related to trial by peers, see the discussion by Susan Reynolds, Fiefs and Vassals: The Medieval Evidence Reinterpreted (Oxford: Oxford University Press, 1994), 202-4, 384, and F. M. Stenton, The First Century of English Feudalism, 1066-1166, 2d ed. (Oxford: Clarendon Press, 1961), 61. For the determination of the venue by the facts in issue, see Rolle Abr., 2: 596-624. For specific examples of misfeasance liability in assumpsit, see Stratton v. Swanlond (1374) and Skyrne v. Butolf (1388) in J. H. Baker and S. F. C. Milsom, Sources of English Legal History: Private Law to 1750 (London: Butterworth, 1986), 360, 362. Both cases are cited by Baker, English Legal History, 376. See also Marshal's Case (1441) in Baker and Milsom, Sources, 367.
43. The examples are taken from Thayer, A Preliminary Treatise, 93-94; J. B. Post, "Jury Lists and Juries in the Late Fourteenth Century," in Twelve Good Men and True: The Criminal Trial Jury in England, 1200-1800, ed. J. S. Cockburn and T. A. Green (Princeton: Princeton University Press, 1988), 70; Edward Powell, "Jury Trial at Gaol Delivery in the Late Middle Ages: The Midland Circuit, 1400-1429," in ibid., 80; Holdsworth, A History of English Law, 9: 212, nn. 4, 5.
44. James C. Oldham, "The Origins of the Special Jury," University of Chicago Law Review 50 (1983): 171-72, summarizes criminal and civil uses. There is a striking similarity to the proof mode in the Digest of Justinian, D. 25. 4. 1. De inspiciendo ventre custodiendoque partu. Corpus Iuris Civilis 1: 367-68.
45. c. 40, Statutes of the Realm i, p. 36, on counterpleading voucher to warranty in mort d'ancestor and writs of entry: "... & le demaundaunt le contre pleide, & veille averrer par assise, ou par pais, ou en autre manere, si com la Court le Rey agardera.... " See also c. 44, id. p. 37, allowing challenge of essoins ultra mare: the plaintiff/ demandant "... suie la verrement [sic] par pais, ou sicom la Court le Rey agardera.... "
46. Glanvill, x, 17, p. 132: "generali modo probandi in curia, scilicet per scriptum vel per duellum." Paul R. Hyams, "The Charter as a Source for the Early Common Law," Journal of Legal History 12 (1991): 180-81, argues that at first only royal charters were acceptable.
47. This is attested from Normandy in two darrein presentment cases of 1185, cited by Jacques Boussard, Le Gouvernement d'Henri II Plantagenet (Paris: Librarie d'Argences, 1956), 292, n. 1. For England, Glanvill, xiii, 11, pp. 154-55, says that a royal charter specially or expressly confirming land to the tenant stops the assize; see also Donald W. Sutherland, The Assize of Novel Disseisin (Oxford: Clarendon Press), 20, n. 1, and Holdsworth, A History of English Law, 9: 148 and 166, and authorities cited there.
48. For summary discussion of estoppel by record, see Holdsworth, A History of English Law, 9: 147-54 and sources cited there; later medieval instances of trial by the record are collected in Rolle Abr., 2: 574-76.
49. Inspection to disprove was the procedure of profert and oyer. See Thayer, A Preliminary Treatise, 13-14 and 104-6; J. H. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 3d ed. (Boston: Little, Brown, 1940), iv, § 1177 at pp. 409-411; and Holdsworth, A History of English Law, 9: 167-68. Many cases on the law in this area can be found in the tables to Maynard's edition of the Year Books (London, 1679; reprint, 1981) under the title Monstrans de Faits. For proof by comparison of seals, see Glanvill, x, 12, p. 127; Bracton, fol. 398b, iv 242-43.
50. By plea of non est factum, alleging forgery, or in the case of conveyances of land, riens passa per le fet, alleging the absence or divergence of the formal conveyance by feoffment.
51. See A. W. B. Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Oxford: Clarendon Press, 1975), 95-98, 99-101.
52. YB 12 Edw. 3, Lib. Ass. pl. 16, p. 35; YB 26 Edw. 3, Lib. Ass. pl. 2, p. 119; YB 28 Edw. 3, Lib. Ass. pl. 3, p. 145; YB 7 Hen. 5, pl. 3, fols. 5-9; Littleton, Tenures § 366, in Sir Edward Coke, The First Part of the Institutes of the Laws of England, or, a Commentary upon Littleton, 11th ed. (London, 1719), 226a-227a.
53. The first use of secta or sequela in this sense, as opposed to suit of court or "following" or "retinue" more generally, appears to be in Glanvill, x, 12, pp. 127-28 and x, 17, p. 132. There is no mention in the Leges Henrici Primi. Lawsuits (=English Lawsuits from William I to Richard I, ed. R. C. van Caenegem [Selden Society, vols. 106 and 107, 1990-1991]) has only one instance, no. 656, dated 1190 x 1200. The earliest uses given by R. E. Latham, Revised Medieval Latin Word-list from British and Irish Sources (reprint with supplement, London: British Academy, 1980) are from 1196, s.v. sec/ta, and c. 1190, s.v. secutio, sequela. Nor does Lexicon Minus give any earlier or non-British uses. The argument of Thayer, A Preliminary Treatise, 10-16, followed by Maitland, Pollock and Maitland, History of English Law, 2: 606-10, that suit is an early medieval preliminary to proof rather than a proof itself, is therefore probably impermissible; it appears to be a late twelfth-century derogatory term for simple proof by witnesses.
54. Bracton, fol. 400b, iv 248, says that suit does not amount to proof, but merely raises a praesumptio levis that is destroyed by contrary proof or wager of law, because it can be made by familiares and domestici, i.e., suspect witnesses. Suit are also described as testes in Magna Carta c. 38, and Bracton, fol. 438, iv 360, describes persons who are clearly witnesses to the live birth of a child who determine the case as ... secta. Compare also the discussion of the relationship of suit to proof by witnesses in Beatrice Queen of Germany v. Edmund Earl of Cornwall (1274). See Paul Brand, ed., The Earliest English Law Reports, vol. 1 (Selden Society, vol. 111, 1996), 21-22, no. 1274.2 (described as suite in the French report), 22-23 (described as testes in the Latin report) and in the record, 24-27 (an attempt is made by the defendant to distinguish the effect of testes and of secta; the plaintiff argues that proof of this type is disallowed by Magna Carta).
55. Paul R. Hyams, "The Proof of Villein Status in the Common Law," English Historical Review 89 (1974): 722-30, summarized in idem, King, Lords and Peasants in Medieval England (Oxford: Clarendon Press, 1980), 173-75.
56. For suit as a matter of form, see Simpson, The Common Law of Contract, 137; Anon v. Warren (1343) YB 17 & 18 Edw. 3, Rolls Series, p. 73 (translation in Baker and Milsom, Sources, 212). For compurgation as, in effect, a single decisory oath and its continued use into the early modern period, see Baker, English Legal History, 87-88.
57. Braund v. Friday (1314), William Craddock Bolland, ed., Year Books of Edward II, vol. 16, 7 Edward II, AD 1313-1314, Selden Society, vol. 39 (London: Bernard Quaritch, 1922), 104; Oxford v. Baillart (1318), John P. Collas and Theodore F. T. Plucknett, eds., Year Books of Edward II, vol. 23, 12 Edward II, Michaelmas AD 1318, Selden Society, vol. 65 (London: Bernard Quaritch, 1950), 7; Beaumont v. Kydale (1319), John P. Collas and Theodore F. T. Plucknett, eds., Year Books of Edward II, vol. 24, 12 Edward II, Hilary and Part of Easter 1319, Selden Society, vol. 70 (London: Bernard Quaritch, 1953), 146; Le Taillour v. atte Medwe (1320), S. J. Stoljar and L. J. Downer, eds., Year Books of Edward II, vol. 27, 14 Edward II, Michaelmas 1320, Selden Society, vol. 104 (London: Selden Society, 1988), 39; and Anon (1320), ibid., 42, all cited and discussed by Stoljar and Downer, Selden Society, vol. 104, xiii-xiv; and Perton v. Tumby (1317), M. Dominica Legge and Sir William Holdsworth, eds., Year Books of Edward II, vol. 21, 10 Edward II, AD 1316-1317, Selden Society, vol. 54 (London: Bernard Quaritch, 1935), 109, Baker and Milsom, Sources, 289.
58. Simpson, The Common Law of Contract, 142-43, and cf. Dunman v. Weldon (1329), Donald W. Sutherland, ed., The Eyre of Northamptonshire: 3-4 Edward III, AD 1329-1330, vol. 1, Selden Society, vol. 97 (London: Selden Society, 1983), 476, Baker and Milsom, Sources, 210; Anon (1356), YB 30 Edw. 3, Michs. fol. 18, Baker and Milsom, Sources, 213; Reading on Magna Carta c. 38, Baker and Milsom, Sources, 214.
59. Pollock and Maitland, History of English Law, 2: 634-35.
60. For reducing suit to a formality, see above, note 56. P. Philbin sees the introduction of the requirement of a deed in covenant as motivated by evidentiary concerns of this type. See Philbin, "Proving the Will of Another: The Specialty Requirement in Covenant," Harvard Law Review 105 (1992): 2001-20; but that the result was a change in proof rules is still consistent with the different arguments of Robert C. Palmer and D. J. Ibbetson (reviewed in Philbin's article).
61. Some early cases of determination of age by inspection are collected by Wigmore, A Treatise on Evidence, iii, § 1154, some later ones in Rolle Abr., 2: 572-73. Some fourteenth-century cases of the examination of wounds are collected in Rolle Abr., 2: 578, Per le Court pls. 1-4.
62. See Rolle Abr., 2: 577, citing: life of the husband in Dower, YB 17 Edw. 3, Michs pl. 18 at fol. 49b, pl. 22, fol. 50b; YB 8 Hen. 6, Hil. pl. 7, p. 21 at 23; death of the husband in a foreign county in an assize, YB 39 Edw. 3, Lib. Ass. pl. 9 p. 234, though contra life of the husband to abate the wife's writ is triable by the assize, YB 30 Edw. 3, Lib. Ass. pl. 26, p. 178, secus if the allegation is that the husband is alive in a foreign county, YB 36 Edw. 3, Lib. Ass. pl. 5, p. 215, but contra if P has not alleged marriage and the death of her husband (ibid.); life of the husband/ victim in a foreign county in the widow's appeal for his killing, YB 41 Edw. 3, Lib. Ass. pl. 5, p. 252, YB 43 Edw. 3, Lib. Ass. pl. 26, p. 273. Thayer, A Preliminary Treatise, 23, and Pollock and Maitland, History of English Law, 2: 638, were therefore wrong to suppose that the rule is peculiar to Dower; the cases in the Liber Assisarum indicate that a critical issue is whether the life or death is alleged to be in a foreign county, so that the jury cannot have local knowledge of the fact. Cf. also Croxby v. Tilebroc (1219), Doris Mary Stenton, ed., Rolls of the Justices in Eyre: Being the Rolls of Pleas and Assizes for Lincolnshire 1218-19 and Worcestershire 1221, Selden Society, vol. 53 (1934; reprint, Abingdon: Professional Books, 1978), 315, pl. 655, and Baker and Milsom, Sources, 23 (death, where the party was alleged to be alive in Jerusalem, to be proved by suit present at the death).
63. It would be odd though not impossible that "proves" should be used where "testmoignes" would have done perfectly well; proof of life or death of absent persons by direct testimony often poses difficulties; and, though this is very late evidence, in Thorne v. Rolff (1560), Moo. K.B. 14, 2 Dy. 185a, presumptive evidence of death from the husband's absence overseas for seven years was accepted in this form of trial.
64. YB 31 Edw. 3, Lib. Ass. pl. 6, p. 185 (extendors, joined to the jury); cases cited Rolle Abr., 2: 581-82 (summoners, pernors, veiors, bailiffs and escheators); Rider v. Strode (1382), Samuel E. Thorne, Michael E. Hager, Margaret MacVeagh Thorne, and Charles Donahue, Jr., eds., Year Books of Richard II: 6 Richard II (Cambridge, Mass.: The Ames Foundation, 1996) 11 (summoners, the record showing the procedure); see also comment by Donahue, ibid., 37.
65. Glanvill, ii, 6, p. 27 (as will appear below, this practice in the form stated by Glanvill is probably drawn from the canon law); Bracton, fol. 438, iv. p. 360; and cf. also Carlisle v. Boythorpe (1218-19), Doris Mary Stenton, ed., Rolls of the Justices in Eyre: Being the Rolls of Pleas and Assizes for Yorkshire in 3 Henry III (1218-19), Selden Society, vol. 56 (1937; reprint, Abingdon: Professional Books, 1978), 7, pl. 22, Baker and Milsom Sources, 40; Maitland, Pollock and Maitland, History of English Law, 2: 637-39.
66. See above, note 20.
67. This is not cited by van Caenegem, presumably because technically it is used for proof of law rather than of facts. Brunner, Schwurgerichte, 386-92, and, following him, René Filhol, "La Preuve de la coutume dans l'ancien droit français," Receuils de la Société Jean Bodin 17 (1965): 360-61, saw this institution as derived from the Carolingian inquisitio via Norman practice. In contrast, Waelkens, "L'Origine," argues that the procedure was created by an ordinance of 1270 and based on the application of the Romano-canonical doctrine of notoriety. Filhol, "La Preuve," 362-71, gives the later history.
68. Haskins, Norman Institutions, 232-34.
69. E. E. S. Procter, "The Judicial Use of Pesquisa in Leon and Castille," English Historical Review Supplement 2 (1966).
70. Hans Schlosser, Spätmittelalterlicher Zivilprozess nach bayerischen Quellen: Gerichtsverfassung und Rechtsgang (Cologne: Böhlau, 1971), 371-75 (cited by van Caenegem, "History of European Civil Procedure," 42); we are concerned here with what Schlosser calls the "nichtrichterliche Kundschaft."
71. van Caenegem, "History of European Civil Procedure," 48.
72. Dragomir Stojcevic, "La Preuve dans le droit serbe," Receuils de la Société Jean Bodin 17 (1965): 662-75. Stojcevic cites other uses of the porota, which correspond much more closely to compurgation, and an evolution in and subsequent to the Code of Dusan (1349-54) toward a quasi-judicial role of an arbitral character.
73. For Aquitaine, Boussard, Gouvernement, 292-93, gives some instances of inquisitio procedure from Aquitaine at around 1100. Since, however, Boussard's view is that the Angevin jury is merely an inquisitorial mode of proof by witnesses, a precursor of the later French enquête, it may be that these are in fact merely instances of proof by witnesses, rather than of the genuine inquisitio. For Tuscany, Antonio Pertile, Storia del diritto italiano (Turin: Unione tipografico-editrice, 1900), 6: 391, cites a case dated to 1114.
74. William Blackstone, Commentaries on the Laws of England (London, 1765-69; reprint, Chicago: University of Chicago Press, 1979), 3: 294-95.
75. See below, notes 94-96 and the accompanying text.
76. A convenient discussion of mancipatio is in J. A. C. Thomas, Textbook of Roman Law (Amsterdam: North-Holland, 1976), 152-55.
77. See the discussion by Tony Honoré, "Conveyances of Land and Professional Standards in the Later Empire," in New Perspectives in the Roman Law of Property, ed. Peter Birks (Oxford: Oxford University Press, 1989), 137-49, drawing on W. E. Voss, Recht und Rhetorik in den Kaisergesetzen der Spätantike: Eine Untersuchung zum nachklassischen Kauf- und übereignungsrecht (Frankfurt: Lowenklau, 1982).
78. Honoré, "Conveyances of Land," 142-48.
79. Fragmenta Quae Dicitur Vaticana 35, 4, in Salvatore Riccobono et al., eds., Fontes Iuris Romani Antejustiniani (Florence: S. A. G. Barbéra, 1964), 2: 470. Translation down to | is from Honoré, "Conveyances of Land," 144; thereafter is my (as far as possible) literal translation; Honoré's paraphrase of the second part reads proprietas as "boundaries." The editors of Fontes and those of the Theodosian Code (see above, note 5) date this law to 337; Honoré, "Conveyances of Land," 142, n. 27, however, says that Voss dates it to 313.
80. See Honoré, "Conveyances of Land," 139 (boundaries and neighbors), 140-41 (constructive delivery).
81. See G. G. Archi, "Les Preuves dans le droit du bas-empire," Receuils de la Société Jean Bodin 16 (1965): 409-10.
82. Sales, CTh 3.1.2: "Id etiam placuit neminem ad venditionem rei cuiuslibet accedere, nisi eo tempore, quo inter venditorem et emptorem contractus solemniter explicatur, certa et vera proprietas a vicinis demonstretur: ... Nec inter emptorem et venditorem solemnia in cuniculis celebrentur, sed fraudulenta venditio penitus sepulta depereat." The change from "praesentis vicinis demonstretur" to "a vicinis demonstretur" supports Archi's argument that they speak to the vendor or donor's title. But since the Interpretatio in the Breviary of Alaric and the epitomized versions (see below, notes 86-87) follow the line that the vicini are to be witnesses to the instant conveyance, it may be merely an error in the manuscript tradition. Gifts, CTh 8.12.1.2: "et corporalis traditio subsequatur ad excludendam vim atque inruptionem advocata vicinitate omnibus arbitris adhibitis, quorum postea fide probabitur donatam rem.... "
83. CJ 8.53.25.1; and cf. Krueger's notes, Corpus Iuris Civilis, 2: 363, n. 14, and 364, n. 12.
84. CJ 8.53.31; my translation and emphases. The law goes on to validate informally created gifts. The registration system continued after the fall of the western empire in at least southern France and Italy. See Ian Wood, "Disputes in Late Fifth- and Sixth-Century Gaul: Some Problems," in Settlement of Disputes, 12-14.
85. P. Pithoeus and F. Bluhme, eds., MGH, Leges (fol) V, c. 53, p. 157: "De traditione vero quam semper in locis secundum leges fieri necesse est, si magistratus, defensor, aut duumviri quinquenniales forte defuerint, ad conficienda introductionum gesta tres sufficiant curiales; dummodo vicinis scientibus impleatur corporalis introductionis effectus" (my emphasis). The debate on the attribution of this text is conveniently summarized by P. Amory, People and Identity in Ostrogothic Italy 489-554 (Cambridge: Cambridge University Press, 1997), 78-79, n. 187, preferring the Ostrogothic identification, as does S. J. Barnish, Cassiodorus: Variae (Philadelphia: University of Pennsylvania Press, 1992), 22-23, n. 30.
86. G. F. Haenel, ed., Lex Romana Visigothorum (1869), 72; translation from Pharr, The Theodosian Code, 63.
87. Lex Romana Visigothorum at 3.1.2, p. 73. Epitome Guelphyterbiani: "vicinis praesentibus, vindiccionem fieri." Epitome Monachi: "Omnis venditio etiam de mediocribus rebus in praesentia fiat vicinorum." Epitome St. Gall: "Nam quicumque homo in qualecumque loco terram conparere voluerit vicinus [sic] loci illius in suo testimonio rogit esse ne alterius facultatem aut terram conparet." For the circulation of the Breviary, see Ian Wood, "The Code in Merovingian Gaul," in The Theodosian Code, ed. Jill Harries and Ian Wood (Ithaca: Cornell University Press, 1993), 162-66.
88. K. Zeumer, ed., MGH Leges (fol) V Bk 3 c. 1 [s 2], p. 327: "Nam quicumque homo in qualecumque loco terram conparere voluerit, vicinus [vicinis in one MS] loci illius in suo testimonio roget esse, ne alterius facultatem aut terram conparet."
89. Liber Constitutionem c. 99, MGH, Leges Burgundionum, ed. L. R. von Salis, p. 113: "[1] Si quis manicipium aut agrum aut vineam aut aream vel domum factam in quocumque loco comparaverit, iubemus, ut, si non fuerit firmata aut subscripta, pretium perdat; certe si loci illius consistentibus scriptura ipsa subscripta aut signata non fuerit, aut septem aut quinque testibus. [2] Certe si quinque testes ad praesens inventi non fuerint, tres idoneos testes loci illius consistentes, quorum fama numquam maculata est, praecipimus subscribendos; certe si non, invalidam scripturam iubemus esse." K. F. Drew, in the introduction to her translation, The Burgundian Code (1949; reprint, Philadelphia: University of Pennsylvania Press, 1972), 5-7, dates this part of the Code to 524-32 or later.
90. Lex Romana Burgundionum tit. 35 De Vinditionibus [sic] [2.], MGH, Leges Burgundionum, p. 152. The editor says that the Roman source of this passage is unknown.
91. CTh 3.9.1; Codex Eurici tit. De Venditionibus, c. 286, MGH, Leges Visigothorum, ed. K. Zeumer, 11; LVis 5, 4, 3, id., 218-19.
92. Expositio ad Ludovici Pii 11.(14)., A. Boretius, ed., Liber Legis Langobardorum Papiensis, MGH, Leges Langobardorum 526: "In hoc capitulo legitur: 'legitimam traditionem facere studeat,' id est vadat super terram et eum inde investiat, sicut in lege Romanorum precipitur, et in presentia testium fiat."
93. MGH, Lex Salica, ed. K. A. Eckhardt. The nearest approach is tit. 10 §§ 3 and 6 and tit. 47 § 1, which concern issues connected with theft and allegedly stolen goods.
94. Tit. 63, MGH, Lex Ribuaria, ed. F. Beyerle and R. Buchner, p. 116: "Si quis villam aut vineam vel quamlibet possessiunculam ab alio conparaverit, et testamentum accipere non potuerit, si mediocris res est, cum sex testibus, et si parva, cum tres, quod si magna, cum duodecim ad locum traditionis cum totidem numero pueros accedat, et sic eis praesentibus praetium tradat et possessionem accipiat, et unicuique de parvulis alapas donet et torcet auriculas, ut ei in postmodum testimonium praebant...." This is an alternative to a preferred procedure under tit. 62, ibid., pp. 114-16, of transfer by act in the mallus (local public court) with documentation. For the dating, see K. A. Eckhardt, Lex Ribuaria (Gottingen: Musterschmidt, 1959); Ian Wood, The Merovingian Kingdoms, 450-751 (London: Longman, 1994), 116.
95. MGH, Leges Alamannorum, ed. K. Lehmann, 1, 1, p. 64 (version A codd. 3-12; the textual variants are not material to the sense, and the edition of K. A. Eckhardt is identical at the points cited here): "et qui voluerit hoc facere, per cartam de rebus suis ad ecclesiam, ubi dare voluerit, firmitatem faciat et testes sex vel septem adhibeat, et nomina eorum ipsa carta contineat, et coram sacerdote, qui ad ecclesiam deservit, super altare ponat...." MGH, Lex Baiwariorum, ed. E. von Schwind, 16, 2, p. 432: "Si quis vendiderit possessionem suam alicui terram cultam non cultam prata vel silvas: post accepto pretio aut per cartam aut per testes conprobetur firma emptio. / Ille testes per aurem debet esse tractus, quia sic habet lex vestra; duas vel tres vel amplius debent esse testes."
96. Emily Zack Tabuteau, Transfers of Property in Eleventh-Century Norman Law (Chapel Hill: University of North Carolina Press, 1988), chap. 7. That they were not required to be vicini does not imply that locals might not be included, and, other things being equal, it is likely that some would.
97. Thorne, "Livery of Seisin," Law Quarterly Review 52 (1936): 353-55; Clanchy, From Memory to Written Record, 2d ed. (Oxford: Blackwell, 1993), 254-60; Hudson, Land, Law and Lordship in Anglo-Norman England (Oxford: Oxford University Press, 1994), 159-64. As will be seen below, there is also evidence of a third model which involves transfer by an act in court.
98. Thorne, "Livery," 356 and following.
99. Ibid., 356-57.
100. On pre-Constantinian use of vicini, see above, 556. CTh 2.26; CJ 3.38.3 and following. Cf. the discussion of related Byzantine rules by W. Ashburner "The Farmers' Law," Journal of Hellenic Studies 32 (1912): 85-86. The shift to local testimony, though not found in the Farmers' Law, is found in tenth-century Byzantine practice. See R. Morris, "Dispute Settlement in the Byzantine Provinces in the Tenth Century," in Settlement of Disputes, 136, 142, 146.
101. Fragmenta Codex Rescripti. Code of Euric [hereinafter CE] tit. 274, MGH Leges Visigothorum, p. 3 [inserted by Zeumer from the Lex Baiwariorum, 12, 1-3]: "Si/ quis , dum arat vel planteat vineam,/ terminum casu, non volumtate evellerit,/ vicinis praesentibus restituat terminum/ et nullum damnum patiatur."
102. CE tit. 276, MGH Leges Visigothorum, p. 4. Translation from Walter Goffart, Barbarians and Romans, A.D. 418-584 (Princeton: Princeton University Press, 1980), appendix B, p. 235. The context is not entirely clear; see the review of different approaches, ibid., 235-40. Goffart quotes the edition of CE of Alvaro d'Ors, Estudios Visigoticos, vol. 2, El Codigo de Eurico (1960), 21, which is not at this point and for my purposes materially different from that of Zeumer.
103. Lex Visigothorum [hereinafter LVis] 10, 3, 5, MGH Leges Visigothorum, p. 398; my (rough) translation. Goffart, Barbarians and Romans, 235, reads proprietas as "composition"; cf. Honoré's reading of the same word in Fragmenta Vaticana 35, 4 as "boundaries" ("Conveyances of Land," 144, n. 79).
104. Pertile, Storia del Diritto Italiano, 6: 390, cites several examples; another is the report in C. Cipolla, ed., Codice Diplomatico del monasterio di San Columbano di Bobbio (Rome, 1918), 1: 146, no. 24, of an inquisitio in 747 "per silvanos nostros" to fix boundaries (cited Lexicon Minus s.v. veritas [2]).
105. Leges Alamannorum 81 (codd. A)/ 84 (codd. B), p. 145 at 146: "Tunc spondeant inter se pugna duorum.... "; Lex Baiwariorum 12, 8, pp. 402-3, on cases where there are no marked boundaries. On the other hand, as already indicated, LBai 12, 3 reproduces the Visigothic requirement of restoration of boundaries in the presence of the witnesses. In addition, LBai 12, 4, on cases where boundaries are marked, reproduces part of LVis 10, 3, 3 on the same issue, and two MSS add "Tunc iurent tres vicini, quibus notum est, vel plures et ostendant, sicut rectum est."
106. Capitula selecta ex Antiqua Canonum Collectione facta in Hibernia Saeculo circa VIII, in J. P. Migne, ed., Patrologiae Cursus Completus ... series Latina [hereinafter PL] 96: 1299. Translation from R. Sharpe, "Dispute Settlement in Medieval Ireland," in Settlement of Disputes, 183; square brackets indicate Sharpe's additions to clarify the sense.
107. A. Werminghoff, ed., MGH, Concilia II, i, p. 782 at 783.
108. Burchard of Worms, Libri Decretorum 3, 22, in PL 140: 677. It is not in the MGH, Concilia texts of these synods.
109. Ivo of Chartres, Decretum 3, 27, in PL 161: 204. Gratian, C. 16 q. 1 c. 54, attributes the canon to one of the Councils of Toledo. Emil Friedberg, ed., Decretum Magistri Gratiani (Leipzig, 1879), 778. However, the notes to the Editio Romana comment that it is not found there. Corpus Iuris Canonici Emendatum et Notis Illustratum: Gregorii XII Pont. Max. Iussu Editum (Lyon, 1606), 738. [Citations to Gratian in conventional form are hereafter to Friedberg's edition unless otherwise indicated.]
110. LVis 8, 3, 13, Leges Visigothorum, p. 326: "... ut presentibus his aut vicinis eorum damnum, quod inlatum fuerit, estimetur, et ad campum utreque partes conveniant, ut, postquam damnum inspexerint, ... and ibid., 15, p. 327: "Quod si dominus pecorum mittere vel venire noluerit, damnum a vicinis, quod factum est, extimetur.... "
111. LBai 14, 17, MGH, Lex Baiwariorum, pp. 419-20: "Ut nemo praesumat alienum animal occidere neque porcum, quamvis in damnum eum invenerit. Sed reclaudat eum, donec domino eius ostendat damnum. Et aliqui de vicinis eorum videant hoc et designent locum qui lesus est, et alia quae intacta sunt usque ad maturitatem.... "
112. Edictus Rothari c. 346, ed. F. Bluhme, MGH Leges Langobardorum, p. 79: "ut damnum quod arbitratum fuerit componatur, aut fabula, quae inter vicinus est."
113. Edictus Rothari c. 146, MGH Leges Langobardorum, pp. 33-34: "De incendio Si quis casam alienam asto animo, id est voluntarie, incendit, in treblum restituat ea, quod est sibi tertia, sub extimatione pretii cum omnem intrinsecus, quidquid intus crematus fuit, que vicini bone fidei homines adpraetiaverint, restauret...."
114. Leo the Great, Letter 167, inquisitio 17, PL 54: 1208; Burchard 4, 44, PL 140: 735; Ivo, Decretum c. 238, PL 161: 117, and Pannormia 1, 94, PL 161: 1065-66; Gratian, De consecratione D. 4, c. 113, p. 1396-97.
115. c. 8, MGH, Concilia II, i, p. 191 at 192. The same rule is found in ibid., p. 53, prohibiting marriage "antequam presbitero adnuntiet et parentibus suis et vicinis, que eorum possint examinare propinquitatem," c. 12 of a text that Werminghoff ascribes to a Bavarian Synod of 740 x 750; however, Wilfried Hartmann, Die Synoden der Karolingerzeit im Frankenreich und in Italien (Paderborn: Ferdinand Schöningh, 1989), 90, says that it is an episcopal capitulary dating to shortly after 800.
116. Libri Decretorum 7, 21, PL 140: 783. As editors of Gratian have noted, there may be a relationship to CTh 9.7.2, a law of Constantine of 326 restricting accusations of adultery to "proximis necessariisque personis ... hoc est patrueli consobrino et consanguineo ... " and more particularly the interpretatio of the Breviary on it, "In adulterio extraneam mulierum nullus accuset, sed propinqui, ad quorum notam pertinet, ... "; this text looks very like a conflation of this rule with the Synod of Friuli rule about the use of relatives and locals to establish relationship before marriage. Broadly the same text is in Ivo, Decretum, 9, 57, PL 161: 670, Pannormia 7, 84, PL 161: 1301, and Gratian, C. 35 q. 6 c. 1.
117. Libri Decretorum 7, 25, PL 140: 784, also in Regino of Prüm, De Disciplina Ecclesiastica 2, 23, PL 132: 238, Ivo, Decretum 9, 61, PL 161: 670, Pannormia 7, 87, PL 161: 1302, and Gratian, Decretum C. 35 q. 6 c. 5.
118. With a good deal of elaboration; C. 35 q. 6, ed. Friedberg, pp. 1277-81.
119. Glanvill, ii, 6, p. 27, on a pleading that the grand assize should not proceed because the parties are of common stock under the source of the inheritance; see ibid. v, 4, pp. 55-56, for proof of free or villein status. In both cases the preferred proof is by production of relatives, but if this does not settle the matter, "tunc decurrendum est ad visnetum" (27), "ad visnetum erit recuperandum" (55). The visnetum here is a special purpose jury, not the regular assize. It is fairly clear that in Glanvill, parentela has not yet become a term of art in the rules of preference for inheritance, as discussed by Pollock and Maitland, History of English Law, 2: 295-302 (cited by Hall, 184), since in the first passage cited the expression used is stipite parentele, while in the second, and in xiii, 11, p. 155, (common stock as bar to the assize mort d'ancestor) it is stipite, unqualified; and in vi, 17, p. 68, parentela is used as a synonym for canonical consanguinity as a bar to marriage.
120. Cf. Robinson, Fergus, and Gordon, European Legal History, 5-19.
121. MGH, Lex Ribuaria 61, 1, pp. 108-9 at 109, "secundum legem Romanam, quam ecclesia vivit."
122. Some general instances are listed by Robert Jacob, "Jugement des hommes et jugement de Dieu à l'aube du Moyen Age," in his edited volume, Le juge et le jugement dans les traditions juridiques européennes. Études d'histoire comparée (Paris: L.G.D.J, 1996), 56, n. 35: Pippini Cap. Italicum (801? 806 x 810) c. 12, MGH, Capitularia i, p. 209; Cap. cum primis const. (808) c. 3, MGH, Capitularia i, p. 139; Cap. de Iustitiis faciendis (811 x 813) c. 3, MGH, Capitularia i, p. 176. Though a capitulary of ca. 820-21 restricted inquisitiones to causas ... dominicas, i.e., matters of royal interest, an exception was still provided by the same capitulary for the poor: Cap. de Iustitiis faciendis (ca. 820), MGH, Capitularia i, p. 295 (cited in Ganshof, "La Preuve dans le droit franc," 95), and judicial selection of witnesses was made generally available in 832: Hlothari Cap. Papiense (832) c. 11, MGH, Capitularia ii, pp. 61-62.
123. For the preponderance of inquisitio capitularies in the reign of Louis the Pious, see Ganshof, "La Preuve dans le droit franc," 95; for church influence on Louis the Pious, see J. M. Wallace-Hadrill, The Barbarian West, 3d ed. (London: Hutchison, 1967, reprint, 1972), 140-42.
124. This point is made by D. A. Bullough, "Europae Pater: Charlemagne and His Achievement in the Light of Recent Scholarship," English Historical Review 85 (1970): 92-95, postulating a Lombard origin, and J. L. Nelson, "Dispute Settlement in Carolingian West Francia," in Settlement of Disputes, 60-61. The instances collected in Lexicon Minus and by Ganshof also come primarily from Italy, France south of the Loire, Switzerland and southern Germany. See Lexicon Minus s.v. inquaestio, and Ganshof, "La Preuve dans le droit franc," 95-96, nn. 53, 54.
125. Cap. 816 c. 1, MGH, Capitularia i, p. 268; my translation. Cf. also the slightly variant version in Cap. 818-19 c. 10, id. p. 283. For discussion of the context of these provisions in Carolingian proof procedure in general, see Jacob, "Jugement," and Nelson, "Dispute Settlement," 47; a radically different account is given by Gerhard Schmitz, "The Capitulary Legislation of Louis the Pious," in Charlemagne's Heir: New Perspectives on the Reign of Louis the Pious, ed. Peter Godman and Roger Collins (Oxford: Clarendon Press, 1990), 434-35.
126. On claims based on normative sources in Anglo-Norman customary judicial practice more generally, see Hudson, The Formation of the English Common Law, 11.
127. See above, note 53; cases are cited by number.
128. The cases are indexed by van Caenegem under Inquest, Jury, Juror, Recognition (=investigation), Venue, and Verdict. There are 147 cases, but several involve more than one disputed issue. Thus, there are 177 disputed issues. Of these, 21 do not seem to involve neutral collective testimony, but a determination on the basis of a confession in court, documents, party witnesses, or a judgment of God. Eighteen provide no information as to proof procedure. This leaves 138 disputes to consider. I have taken the constitutions of Clarendon, 1164, the date of the assize utrum, as a convenient point of division between cases before and those during and after the reforms of Henry II. Using van Caenegem's termini ad quem to give the latest possible date to cases produces a division of 65 disputed issues dating up to and including 1164 and 73 dating after 1165.
129. Omitted from Table 1 are those topics that appeared only once: up to 1164, seisin and disseisin of a ship; from 1165, charitable funds, presentment of crime, and trespass damages.
130. Lawsuits, no. 212 (1116 x 1118); the larger dispute is no. 254 (1127), which is between the archbishop of Canterbury and the monastery of St. Augustine and concerns tolls, customs, and the right to a ferry at Sandwich.
131. See van Caenegem's analysis of the parties and subject-matter, Lawsuits, 106: xxiv-xv, and compare the comment of the Settlement of Disputes authors at 4.
132. This was certainly the case after the assize of Clarendon in 1166, and probably, on the basis of the arguments of Hurnard and Wormald (see above, nn. 13-14), before then; though from these it is not so clear that the pre-1166 mechanism would appear in the cases to be the use of a special panel.
133. Of the ten general land claims, four (nos. 18H, 63, 64, and 253) are probably brief references to the "homines qui juraverunt" (men who swore) or "exauctores terrae" (enquirers of the land) in Domesday. Two are claims to small amounts of land, which may be boundary disputes, a second issue in no. 253 and no. 309; and custom seems to be the main issue in no. 278, a London dispute about ownership of a wharf and liability to tolls (1110 x 1133). Claims to churches present a problem of chronology. Three of the five cases, nos. 354 and 355 (1156), and no. 365 (1156 x 1157), date to the 1150s and two appear to be standard forms, which suggests a connection with the early stages of Henry II's reforms.
134. Of the Domesday cases, ten do not provide information about the mode of proof; since more than one mode of proof is offered in several cases, this produces a total of 129 proof modes. For the general frequency of disputed titles in Domesday and its possible significance, see Paul R. Hyams, "'No Register of Title': The Domesday Inquest and Land Adjudication," Anglo-Norman Studies 9 (1987): 127-42; J. C. Holt, "1086," in idem, ed., Domesday Studies (Woodbridge, UK: Boydell Press, 1987), 41-64. I have been unable to consult Patrick Wormald, "Domesday Lawsuits: A Provisional List and Preliminary Comment," in England in the Eleventh Century, ed. Carola Hicks. Harlaxton Medieval Studies 2 (Stamford, UK: Paul Watkins, 1992), 61-102. Outside of Domesday cases, there are 149 cases up to 1164, of which 92 (62 percent) offer no information as to proof mode; the remaining 57 generate 67 modes of proof. There are 122 cases from 1165-99, of which 64 (52 percent) offer no information as to proof mode; at this period multiple proof modes in a single case seem to disappear, and there are only 58 proof modes shown.
135. Cf. the discussion by Robin Fleming, "Oral Testimony and the Domesday Inquest," Anglo-Norman Studies 17 (1995): 101-22.
136. Hudson, Land, Law and Lordship, 161, does not draw a distinction between "seising" in this sense, the ceremonies recorded in charters, and the transfer of possession by ceremony on the land that is the later livery and seisin. But the practical arrangements transferor and transferee need to make are very different, and, as already indicated, so are the implications for subsequent proof.
137. Here there are 39 cases before 1164, of which 19 (49 percent) provide no information as to proof mode, and a further 3 (8 percent) appear to be canon law proceedings; the remaining 17 produce 21 proof modes. From 1165 on, there are 44 cases, of which 7 provide no information as to proof, and 7 appear to be canon law (together, 32 percent); the remaining 30 each use a single proof mode.
138. Nos. 354 and 355 (1156) and no. 365 (1156 x 1157). The fourth is no. 296 (1138 x 1139), "hominibus de Luytun," which could possibly be a local court.
139. van Caenegem, Royal Writs in England, 69-71; since this is a dispute between two abbeys about boundaries, it is wholly unsurprising to find the canon law rule applied.
140. Robinson, Fergus, and Gordon, European Legal History, 90; the text is printed by Agathon Wunderlich, ed., Anecdota quae processum civile spectant (Gottingen: Vanderhoeck and Ruprecht, 1841) and by Ludwig Wahrmund, Excerpta Legum Edita a Bulgarino Causidico, Quellen 4, i. Wahrmund dates it to before 1148 (Quellen 4, i: xx). The account of the framework of the law of proof here largely follows J.-P. Lévy, La Hiérarchie des preuves dans le droit savant du Moyen-Age (Paris: Librairie du Recueil Sirey, 1939).
141. Lévy, La Hiérarchie des preuves, 19-21.
142. Ibid., 11-21 and chap. 5.
143. "ad testimonium in iudicio adulterii admittitur praetor non in ea causa iudex. Nam si judicaturus est, non admittitur, ... " See Wahrmund, Quellen 4, 1: 6; the text but not the sense varies slightly in Wunderlich, Anecdota, 20.
144. K. W. Nörr, Zur Stellung des Richters im Gelehrten Prozess der Frühzeit: Iudex secundum allegata non secundum conscientiam iudicat (Munich: C. H. Beck, 1967), ch. 1.
145. The early history of the ab alio auditu rule is discussed by F. R. Herrmann, "The Establishment of a Rule Against Hearsay in Romano-Canonical Procedure," Virginia Journal of International Law 36 (1995): 1-51.
146. Though this requirement was derived from the Code of Justinian (CJ 4.20.14) and was adopted in some Carolingian capitularies (Jacob, "Jugement," 56, n. 35), it was not prominent in early medieval practice. It is not mentioned by Bulgarus and is absent from Gratian's listing of material from the Corpus Iuris in C. 4 q. 2 & 3 c. 3. References to the publication of depositions in the Decretals of Alexander III (1159-81) imply that it must be present by this period: see X. 2. 20. 15, 18, and 19, in E. Friedberg, ed., Decretalium Collectiones (Corpus Iuris Canonici) (Leipzig: Tauchnitz, 1879), 2: 320, 321 [citations to the Decretals in standard form hereafter are to this edition unless otherwise indicated].
147. Gratian, C. 35 q. 6, cited above, n. 118. Ricardus Anglicus (Wahrmund, Quellen 2, iii, p. 43) incorporates the terms of the consanguinity oath into the general witness oath ("sed ita se a maioribus accepisse"), though citing to a letter of Eugenius III (1145-53) on consanguinity (printed by Wahrmund, ibid., n. 15, from 1 Comp. 2.13.20, in E. Friedberg, ed., Quinque Compilationes Antiquae [Leipzig: Tauchnitz, 1882]). The Ordo Invocato Christi Nomine gives "in parentele casu" as an exception to de visu et auditu, citing C. 35 q. 6 cc. 5 & 8 (Wahrmund, Quellen 5, i, p. 108; F. Bergman, ed., Pillii, Tancredi, Gratiae libri de iudiciorum ordine [Gottingen: Vanderhoeck and Ruprecht, 1842], p. 69). Damasus cites to 1 Comp. 4.15.2, a decretal not received in the Gregorian collection, for the proposition that testimony ab alio auditu is restricted to matrimonial cases and extrajudicial confessions of payment or nonpayment, though he immediately points out that it is also available in the actio aquae pluviae arcendae (Wunderlich, Anecdota, 19-20; Wahrmund, Quellen 2, iii: 52-53).
148. D. 22. 3. 28 and 39. 3. 2. 8; the quotation is from the translation by Honoré of the last sentence of D. 22. 3. 28 (see Honoré in The Digest of Justinian, Latin text ed. Theodore Mommsen and Paul Krueger, English translation ed. Alan Watson [Philadelphia: University of Pennsylvania Press, 1985], 2: 648).
149. Pillii, Tancredi, 44. However, the Ordo 'Invocato' (Pillii Tancredi, 69, Wahrmund, Quellen 5, i: 107-8), Damasus (Wunderlich, Anecdota, 108-9; Wahrmund, Quellen 4, iv: 52-53), and the Ordo Iudiciarius of Tancred (1215 x 1216) in Pillii Tancredi, 239-40, state the point more narrowly in terms of the actio aquae pluviae arcendae for (in English terms) nuisance by diverting rainwater, the context of the Roman sources.
150. The rules on proof of family relationship were tightened up by the Lateran Council of 1215, requiring minimum standards of credibility in both the witnesses and their sources: X. 2. 20. 47. This is followed by Tancred, Pillii Tancredi, 236-37. The Ordo Judiciarius "Scientiam" (1235 x 1240) (Wahrmund, Quellen, vol. 2, i, 51) takes the view that the effect of the council's decision is a complete ban on testimony ab alio auditu in this context ("in hoc casu dicitur, quod testimonium de auditu non valet excepta causa matrimonii secundum iura antiqua, sed illud revocatum est per Lateranense concilium"; Wahrmund's notes show some variation between the lines taken by different MSS). Accursius, gloss Audierint to D. 39. 3. 2. 8 takes the same line (cited here from Accursii Glossa in Digesta Nova. Corpus Glossatorum Juris Civilis, vol. 9 (Turin: ex officina Erasmiana, 1968; facsimile reprint of Digestum Novum [Venice; Baptista de Tortis, 1487/8]); on the other hand, the computation of relationships is accepted by Durantis. See Gulielmus Durantis, Speculum Iuris (Frankfurt, 1592), bk. 1, pt. iv, rubric de teste § 1 opponitur, no. 54, p. 282.
The Ordo "Scientiam" denies that the Roman sources support the use of testimony ab alio auditu even in the actio aquae pluviae arcendae ("Diceret quidam, quod valet testimonium de auditu, ut si de opere antiquo quaeratur, ut [D. 22. 3. 28, 39. 3. 2. 8], sed si diligenter inspiciantur duae predictae leges, reperietur, quod ibi non requiritur testimonium de auditu, sed de facti visu"), and Accursius, gloss Si Arbiter to D. 22. 3. 28, says that the testimony is not truly de auditu, because the fact in issue is the existence of memory: "nam debet probare actor memoria operis extare. Sed memoria retinetur per auditum: ergo est probatio veritatis.... " But memoria facti is still listed as an exception to ab alio auditu by Durantis, Speculum Iuris, no. 54.
151. Durantis, Speculum Iuris, bk. 2, pt. ii, rubric probatio § 1, no. 20, p. 267: "Ultimo quaeritur qualiter fiet probatio communis opinionis, vel etiam praescriptionis tanti temporis, cuius memoria non existit ... [he then gives an example of a dispute in which a monastery's claim to tithe depended on whether the land was "newly ploughed"] ... testes monasterii dicere debent, quod est communis opinio hominum habitantem circa loca, quae monasterium asserit novalia esse, & etiam aliorum, quibus cura est de his quaerere, vel melius hominum, qui circa hoc arbitrantur nullem viventem vidisse, vel audivisse, quando loca illa culta fuerint."
152. See Lévy, La Hiérarchie des preuves, 113-17; Francesco Migliorino, Fama e infamia: Problemi della società medievale nel pensiero guiridico nei secoli XII e XIII (Catania: Giannotta, 1985), 49-72; R. M. Fraher, "Conviction According to Conscience: The Medieval Jurists' Debate Concerning Judicial Discretion and the Law of Proof," Law and History Review 7 (1989): 32-40, and literature cited there.
153. C. 2 q. 5 d.p.c. 4 & cc. 5, 11-13, 16, & C. 6 q. 5. c.2, C. 15 q. 5 c. 1.
154. D. 22. 5. 3. 2: "alias numerus testium, alias dignitas et auctoritas, alias veluti consentiens fama confirmat rei de qua quaeritur fidem" ("sometimes the number of witnesses, sometimes their dignity and authority, at others common knowledge settles the truth of the matter in issue") (translation by Honoré, The Digest of Justinian, 2: 650-51). The text is in Gratian at C. 4. q. 2 & 3 c. 3, and in many discussions of proof: e.g., John of Salisbury, Policraticus, bk. 5, c. 14 (ca. 1159), ed. Clement C. J. Webb (Oxford: Clarendon, 1909). 1: 343.
155. Lévy, La Hiérarchie des preuves, chap. 2, esp. 33-43; Migliorino, Fama e infamia, 49-55.
156. X. 5. 3. 13, on simony, cited by Lévy, La Hiérarchie des preuves, 38, n. 31, and 113-17.
157. X. 2. 24. 32, decretal of Honorius III (1216-27), on usury: "Unde expedire videtis, quod exigatur de veritate dicenda a partibus iuramentum, quum ex fama quasi notorium habeatur," cited by Lévy, La Hiérarchie des preuves, 38, n. 31.
158. Gloss Confirmat to D. 22. 5. 3. 2: "Dicitur fama confirmare, id est cum alio firmare; non quod per se fama non sufficiat, sed respectu assertionis partis; quam assertionem fama confirmat. Sufficit ergo per se." The gloss goes on to discuss alternative views, that fama is sufficient where it is consistent with the ordinary course of nature, or that it is only a half proof. Cf. Fraher, "Conviction," 36-37.
159. Baldus, Consiliorum, Sive Responsorum D. Baldi Ubaldi Perusini.... (Frankfurt am Main, 1589), 5 vols. in 1, separately foliated, cited here in the form [vol.], Cons. [Consilium number], no. [section number], fol. [folio number]; iv Cons. 465, no. 10, fol. 96v-97r, on manifest usury: "Et hoc nota vehementiam famae, nam ut eleganter ait Bart. in suis consiliis consi. 27 q. incip. D. Paci. fama potest esse ita vehemens, quod per seipsum sufficit ad solam probationem [citations omitted]. Et potest esse ita debilis quod non faceret etiam indicium secundum Bar. In casu nostro fama vehemens est...."
160. X. 2. 19. 13: "secundum divisiones, quae per libros antiquos vel alio modo melius probantur, necnon et testes, famam et quaecunque alia adminicula." Gloss testes, fama (In Decretales D. Gregorii Papae IX ... [Rome, 1584], p. 496: "per testes enim antiquos utriusque parochiae probatur hujusmodi divisio 16 q 1. Plures [C. 16. q. 1 c. 54], & rusticis senibus praecipue in antiquis creditur ff de leg. 3 si chorus [D. 32. 1. 79. 1], & fama in talibus praecipue valet, quorum memoria non habetur ff de probatio, si arbiter. ff de aq. plu. arc., in summa, § item Labeo [D. 22. 3. 28 and 39. 3. 2. 8]".) He goes on to assert that fama is not a full proof.
161. Consiliorum i, Cons. 420 no. 1, fo. 124r; ii, Cons. 286 no. 1, fols. 72v-73; iii, Cons. 468, nos. 1-2, fo. 123v; v, Cons. 445, nos. 1 & 4, fols. 107v-108r.
162. Consiliorum i, Cons. 89 no. 5, fo. 26r, for proof of ancestral title: "Tertio praemittendum est, quod licet fama non probet verum dominium, nec veram possessionem ex propria virtute famae ... tamen fama multum [sic] antiqua, & quae transcendit sensum hominum viventium, facit notorium, & probat in vim notorii. Ista est glo. ordi. ff de neg. gest. l. at qui natura § cum me absente [D. 3. 5. 19. 3, gloss Committat, 2., "Vel erat manifestum per publicam famam ... "].... "
163. Lévy, La Hiérarchie des preuves, 45, 46-47 and 53-66.
164. E.g., Baldus, Baldi Ubaldi Perusini ... Consiliorum, sive Responsorum, Volumen Sextum (Venice, 1602), Cons. 114, pp. 219-23, at no. 13, general harvest failure, and cf. matters of general history, Lévy, La Hiérarchie des preuves, 49.
165. Lévy, La Hiérarchie des preuves, 52-53.
166. Ibid., 49-52.
167. Ibid., 50 and especially nn. 48-49.
168. Waelkens, "L'Origine." For a rather less precise view, cf. J. Ayliffe, Parergon Iuris Canonici Anglicani (London, 1726), 196.
169. The collector of Bracton's Note Book annotated a case of 1222 where the plaintiff produced ten or eleven secta to prove the taking of a horse in a public place with "Nota quod ea que manifesta sunt non indigent probatione" (Thayer, A Preliminary Treatise, 13, n. 1, citing Bracton's Note Book ii Case 194). This annotation is a straight application of canonist notoriety doctrine that refers to this form of notoriety, since secta/ testes are produced rather than the judge simply taking notice of the fact.
170. Lévy, La Hiérarchie des preuves, 116 and sources cited there.
171. Gloss Saepe to C. 4 q. 2 & 3 c. 3 [i.e., the consentiens fama text from D. 22. 5. 3. 2], in Decretum Gratiani Emendatum ... (Rome, 1584), i p. 723: "... & si iudex dubitat de fama, quaerat a vicinis ff. de magi. conve. l. 1 § si praeses [D. 27. 8. 1. 3] & magis valeat fama quam unus testis ut extra. de consan. & af. super eo [X. 4. 13. 5 or 4. 14. 2]. Potest autem fama probari per duos testes, ut extra. eo tam litteris." Cf. also the mid-thirteenth century Summa of Magister Aegidius, a judge at Bologna, tit. 73, in Wahrmund, Quellen, 1, vi, p. 25: "Nota, quod aliquando fiunt inquisitiones et recipiuntur testes sine aliqua accusatione vel denuntiatione super maleficiis, id est super homicidis, furtis et similibus. Et tunc tabellio accedat ad locum, ubi maleficium perpetratum est, et a convicinis vel hominibus de incontrata recipiat iuramenta et inquirat de veritate secundum qualitatem delicti...."
172. Helmholz, "Early History," 618 ff.; C. Donahue, Jr., "Proof by Witnesses in the Church Courts of Medieval England: An Imperfect Reception of the Learned Law," in On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne, ed. M. S. Arnold et al. (Chapel Hill: University of North Carolina Press, 1981), 136-37, 140, 150-51.
173. Gloss Ex vicina to De poen. D. 1 c. 46, in Decretum Gratiani Universi Iuris Canonici Pontificas Constitutiones ... (Venice, 1567), p. 1105.
174. P. 62: "Ratione cohabitationis, distantiae vel vicinitatis, ut supra de poen. di. I sed et continuo, qui dixerat et cet."; p. 6: "Ex communi et vulgari opinione, ut ff. ad Macedonianum, l. si quis patrem...."
175. X. 2. 23. 11, on marriage: "... quia in huiusmodi dubietate fama viciniae magis debet attendi, tuae sollicitudinis erit fama loci diligenter inquirere, ... " The other two decretals both involve confessions supported by fama and circumstantial evidence: X. 2. 23. 12 (adultery) and X. 2. 23. 13 (fornication).
176. Gloss Nescire to C. 23 q. 1, in Decretum Gratiani Universi Iuris Canonici Pontificas Constitutiones ... (Venice, 1567), p. 841.
177. X. 2. 23. 7; the same point is in a different form in c. 8, both somewhat tenuously constructed on the basis of casual remarks in letters of Gregory the Great.
178. E.g., Dionysius Gothofredus's notes to his edition of the Corpus Iuris Civilis contain the general propositions that old facts and ownership are to be proved by fama: note (d) to Gloss Committat, 2., to D. 3. 5. 19. 3: "Probatur facta antiqua per famam ut et dominium," note (e) to id., "Fama probatur dominium ... " in Corpus Iuris Civilis Iustinianei (Lyon, 1612). Gothofredus also says that "Probatur fama per viciniam et circumcolentes. Proinde si divitiis, moribus, matrimonio et similibus quibusdam quaeritur, vicini interrogandi erunt. Vicinus enim conditionem vicini sui nosce [sic] intelligitur" (note to existimatione circumcolentium in D. 43. 12. 1. 1).
179. See above, 554-55 and notes 66-73.
180. See above, notes 171-72, 176-77.
181. C. 2 q. 5 c. 22; X. 5. 35. 1.
182. In the Domesday cases, the judgment of God commonly seems to be offered as a challenge to the testimony of a local court (e.g., nos. 100, 104, 105, 112, 121, 122, 123) and the forms offered are: ordeal 10, ordeal or battle 7, "proof" unspecified 5, oath or ordeal 1. In the pre-1164 cases on land there are only three instances of the use or offer of the judgment of God; two cases of battle, one dating to 1154 x 1158, and one of unilateral oath. In contrast, in the post-1165 cases there are 14 instances of the use of the judgment of God, all of the use or offer of battle. The routine use of battle in land cases therefore seems to be an innovation in the reign of Henry II. On criminal cases, see Bartlett, Trial by Fire and Water, 65-68.
183. Milsom, most fully in The Legal Framework of English Feudalism. Cambridge Studies in English Legal History (Cambridge: Cambridge University Press, 1976); Palmer, "The Feudal Framework of English Law," Michigan Law Review 79 (1981): 1130-64; "The Origins of Property in England," Law and History Review 3 (1985): 1-50.
184. For Hyams, see above, note 25.
185. For the emphasis on deliberate features, see, e.g., Paul Brand, "'Multis Vigiliis Excogitatam et Inventam': Henry II and the Creation of the English Common Law," in idem, The Making of the Common Law (London: Hambledon Press, 1992), 78-102, especially 81-83, and "The Origins of English Land Law: Milsom and After" in ibid., 203-25; and cf. R. V. Turner, The English Judiciary in the Age of Glanvill and Bracton, c. 1176-1239 (Cambridge: Cambridge University Press, 1985). For a critique of the "sovereignty" of feudal courts, see, e.g., Hudson, Land, Law and Lordship, and The Formation of the English Common Law; Reynolds, Fiefs and Vassals, 374-86.
186. Joseph Biancalana, "For Want of Justice: Legal Reforms of Henry II," Columbia Law Review 88 (1988): 433-536.
187. M. G. Cheney, "The Litigation between John Marshal and 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. Relations with the church are also identified as critical to the formation of the common law by Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass.: Harvard University Press, 1983), 435-59; T. G. Watkin, "The Political Philosophy of the Lord King," in Communities and Courts in Britain, 1150-1900, ed. Christopher Brooks and Michael Lobban (London: Hambledon Press, 1997), 6-12; and Bruce O'Brien, "The Becket Conflict and the Invention of the Myth of Lex non scripta" (paper presented at the Thirteenth British Legal History Conference, Cambridge, July 1997).
188. See van Caenegem, Legal History: A European Perspective, chap. 1.
189. Cheney, "The Litigation," 9 and 18-21.
190. For the value of documents in early medieval litigation generally, see "Conclusion," Settlement of Disputes, 219; their use in twelfth-century England is apparent from Tables 2 and 3 above; and cf. Fleming, "Oral Testimony and the Domesday Inquest," 111: "In all of Domesday Book, oral testimony never supersedes written testimony."
191. Clanchy, From Memory to Written Record, 318-27; the quotation is at 318.
192. Lévy, La Hiérarchie des preuves, 86-105.
193. Cheney, "The Litigation," 13-14, quoting Herbert of Bosham (also in Lawsuits, 424, no. 420): "ubi manifesta videbatur injuria, absque questione revocando.... Conventus vero respondet nullo modo se litigaturum super his quae ad dominium suum pertinere fuisset notissimum. ... " ("where the injury to the church seemed to be manifest, he took back the estates without proceedings.... when he was questioned, he replied that he would on no account enter into litigation about things that were very well known to belong to his demesne.... " [Cheney's translation]).
194. W. L. Warren, Henry II (London: Eyre Methuen, 1973), 262-63; Warren argues passim that this aim was the key to Henry's general policy.
195. William Stubbs, ed., Select Charters and Other Illustrations of English Constitutional History ... , 9th ed. (rev. H. W. C. Davis, Oxford: Clarendon Press, 1929), 122: "et hoc duello fiat, nisi in eis remanserit" ("and this [trial] shall be by battle, unless the parties stop this"). (This translation follows Felix Liebermann, Die Gesetze der Angelsachsen [reprint, Tübingen: Scientia Aalen, 1960], 3: 301, 300, Einleitung no. 8, and 2: 755, Zweikampf no. 11, in preference to Carl Stephenson and F. G. Marcham, Sources of English Consitutional History [New York: Harper, 1937], 49, no. 24, "unless it is given up through their own fault" and to D. C. Douglas and G. W. Greenaway, English Historical Documents [London, 1953], 2: 433, no. 43, "and if it be not there [in the County Court] settled.")
196. See above, note 181. Since battle in land cases was fought by champions, rather than by the parties, ecclesiastical bodies were neither directly debarred from waging it, nor particularly disadvantaged.
197. Lawsuits, 250, no. 296. The defendant refuses episcopal jurisdiction; both a mandate from the papal legate, and a royal writ, instruct the recognition to be made.
198. Stubbs, Charters, 165.
199. van Caenegem, "Public Prosecution"; Helmholz, "Early History"; Warren, Henry II, 480.
200. Wormald, "Maitland," 10.
201. Ibid., 11.
202. Glanvill, xiv, 1, is supported on this by the evidence from Lawsuits. See above, 568.
203. Glanvill, xiv, 1, p. 171. Hall translates as "... but the accusation is based only on public notoriety," and footnotes "i.e. is by presentment." In spite of the relationship between fama and notoriety in canon law at this period, fama here clearly means fama, not notoriety.
204. van Caenegem, "Public Prosecution," 30-33.
205. Susanne Jenks, "Die 'Assize of Clarendon' von 1166," Tijdschrift voor Rechtsgeschiedenis 63 (1995): 30-33, 36-41.
206. Roger D. Groot, "The Jury of Presentment before 1215," American Journal of Legal History 26 (1982): 1-24.
207. Roger D. Groot, "The Jury in Private Criminal Prosecutions before 1215," American Journal of Legal History 27 (1983): 113-41; and cf. also M. H. Kerr, "Angevin Reform of the Appeal of Felony," Law and History Review 13 (1995): 369-73.
208. F. W. Maitland, ed., Select Pleas of the Crown, Selden Society, vol. 1 (1888), pl. 29, cited by Pollock and Maitland, History of English Law, 2: 622, n. 3; M. J. Russell, "Trial by Battle and the Appeal of Felony," Journal of Legal History 1 (1980): 146.
209. Gratian, C. 3 q. 5 c. 4, "... inimicos ... accusatores esse antecessores nostri apostoli prohibuerunt.... "; repeated in the Rhetorica Ecclesiastica (1160 x 1180), Wahrmund, Quellen 1, iv p. 72.
210. Cf. Pollock and Maitland, History of English Law, 1: 144-45.
211. This is the view of Stenton, English Justice, 35-43, Sutherland, Novel Disseisin, chap. 1, Cheney, "The Litigation," and Biancalana, "For Want of Justice," 476-81, as opposed to van Caenegem, Royal Writs in England, 285-303, who is followed by Warren, Henry II, 337-38, and Milsom, Historical Foundations of the Common Law 138-39.The point is not essential to my argument, since the issues were still live through the 1170s.
212. Cheney, "The Litigation."
213. Issues about the relationship of seisin and possessio (for which see van Caenegem, Royal Writs in England, 445 and literature cited there, and Milsom, Legal Framework, 39-41) are immaterial to this procedural point. It is also no objection that parties usually used novel disseisin to terminate their disputes, since costs considerations mean that interlocutory remedies commonly terminate disputes at all periods.
214. Even in the later learned laws, where fama was normally a half proof, half proofs were acceptable in interlocutory and possessory proceedings, which were summary: e.g., Johannes de Fasolus, De Summariis Cognitionibus (1272 x 1286), Wahrmund, Quellen 4, v at pp. 6, 13; Johannes de Lignano, Super Clementina "Saepe" (ca. 1380), Wahrmund, Quellen 4, vi at p. 10.
215. Ralph of Diceto, Radulphi de Diceto Decani Lundoniensis Opera Historica, ed. W. Stubbs (London, Rolls Series, 1876), 1: 410 [my translation]. Warren, Henry II, 538, translates as "clerks shall not be obliged to engage in the judicial duel"; this suggests that clerks were being forced to fight in person, which does not seem to have been the normal case.
216. The promise clearly relates to civil proceedings, because the issue of criminous clerks is separately dealt with: "quod clericus de caetero non trahatur ante judicem secularem in persona sua de aliquo criminali, neque de aliquo forisfacturo, excepto forisfacturo forestae meae, et excepto laico feodo ... " (Radulphi de Diceto, 1: 410).
217. Documents, Glanvill, x, 12, p. 127; judgment of a local court, ibid., viii, 8, p. 101.
218. Glanvill ii, 7, p. 38, and compare also the general statement that battle and documents are the normal modes of proof in court (ibid., x, 17, p. 132).
219. Thorne, "Livery of Seisin," 353-55.
220. Glanvill, ii, 10 and 11, p. 30. On the possible relationship to devolutions of title, compare Warren, Henry II, 349-50; in contrast Hyams, "Trial by Ordeal," 118, n. 153, identifies the question as normative or mixed.
221. Cf., e.g., Brand, "Multis Vigiliis."
222. See above, 546-48.
223. This is a common feature of many treatments of the Angevin period and is not dependent on the Brunner thesis. But the arguments of Reynolds, Kingdoms and Communities, must cast some doubt on the idea that royal intervention was needed to promote self-government.
224. These include the treatment of documents, the absence of procedures to compel confession, and the nonacceptance by the common lawyers of the cumulation of part proofs.
225. Glanvill, ii, 17, pp. 34-35, on the grand assize, requires consideration of the quality of the recognitors' knowledge of the facts, in order to decide whether jurors who do not have the required knowledge should be replaced. On presenting juries in criminal cases, Glanvill, xiv, 1, p. 171 requires inquiries. Bracton, fols. 143-143b, Thorne 2: 404, requires the judge, if he has doubts, to inquire of the jury as to the source of their knowledge. For practice, Warren, Henry II, 356, cites a case of 1194 from F. W. Maitland, ed., Three Rolls of the King's Court in the Reign of Richard I (Pipe Roll Soc., 1896) 100-101; and in Lawsuits, no. 172B, 1: 143-44, a verdict of 13 Henry III (1228-29), the jurors are "Requisiti per justiciarios per quid sciunt haec omnia ita expresse," and recite extensive reasons; they add the rider that "omnes homines sunt hujusmodi credendi de vero et falso dicendo, probando vel defendendo per suum 'na' et per suum 'ya' pro qualibet re, salvis assisis terrae de tenementis et inquisicionibus de vita et membro," which strongly implies that the practice was normal in land and crime proceedings, even though it may not normally have left a trace on the record.
226. S. F. C. Milsom, Studies in the History of the Common Law (London: Hambledon Press, 1985), 171-89; but cf. the evidence of interrogation of juries to create special verdicts or lead the jury to the "correct" general verdict, discussed by Dawson, Lay Judges, 123-24 for early criminal cases, Sutherland, Novel Disseisin, 73 and n. 1 for land cases, and M. S. Arnold, "Law and Fact in the Medieval Jury Trial: Out of Sight, Out of Mind?" American Journal of Legal History 18 (1974): 267-80, and his introduction to his Select Cases of Trespass from the King's Courts, 1307-1399, Selden Society, vol. 100 (1985), 1: xxiii-xxv for land cases and trespass.
227. Fraher, "Conviction," 34 and 70, n. 79.
228. For recent discussions of political issues around central and local administration of justice in the fourteenth century, see, e.g., Robert C. Palmer, English Law in the Age of the Black Death (Chapel Hill: University of North Carolina Press, 1993), part 1; W. M. Ormrod, Political Life in Medieval England, 1300-1450 (London: St. Martin, 1995), chap. 6; Anthony Musson, Public Order and Law Enforcement: The Local Administration of Criminal Justice, 1294-1350 (Woodbridge: Boydell Press, 1996), chap. 11.

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