|
|
|
|
FORUM:
THE ORIGINS OF THE JURY
|
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
themincluding hearsayis 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 sourcesincidentally 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 neighborsnot
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, judgmentalbeit
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 contemplatethe
capitulary of 819 quoted above is a good example herethat
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 juryin 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 jurorseven
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 enrolledthe 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 proofas they did by reducing suit
to a formality and by imposing the requirement of a deed in covenantso
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 techniqueswhich 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
|
| |
 |
|
|
| |