Law, Politics, and the Jury

MIKE MACNAIR

I am grateful for the opportunity to clarify some parts of my argument that is afforded by the comments of Charles Donahue and Patrick Wormald. I should say at the outset that I am not seeking to propose a monocausal explanation of the origins of the generalized use of jury trial at common law, whether a "stirps" or a "smoking gun" (Donahue), or to exclude altogether the relevance of Anglo-Saxon practice or strong government (Wormald)—though I am pretty skeptical of the specific Carolingian-Norman lineage proposed by Brunner.	1
In fact, to advert to the biological analogy discussed by Donahue, a part of the point of my article is to argue against "genetic" explanations of the institution by which its origins fully determine its subsequent development whether directly (old ancient constitutionalism, and the newer idea that substitution for the ordeal produces the "blank" verdict) or dialectically (the Brunner thesis). In contrast to grand narratives of this type, 1 I argue that the extension, and/or systematization and theorization, of the testimonial use of panels of neighbors was precipitated by a concrete conjuncture in procedural law and politics. I also argue that understanding the subsequent development of the institution requires the investigation of later specific conjunctures at which choices were made to extend further the uses of jury trial and to take steps that tended to "judicialize" the jurors. My suggestion in relation to these developments is that the (indirect) relationship of the jury verdict to fama/notoriety and the conception of the jurors as witnesses to local reputation opened up a range of possibilities for later decisions that were different from the possibilities which would have been available had the jurors been initially conceptualized as judges. Social institutions are, I think, more like buildings than animals: the materials used in their construction and the original architecture affect subsequent use and development (both by limiting the range of possibilities and by making some developments more probable than others) but much less strongly than DNA constrains the development of organisms.	2
In a sense, the criticisms of my article offered by the two commentators make a similar point from opposite historical directions. Wormald says that I make over-lawyerly distinctions about the early medieval period, while Donahue thinks that I am projecting back later medieval canonical learning about fama and notoriety into the twelfth century. To some extent these points may be an effect of the article's organization. More fundamental, however, is a problem about how to understand "law" and the relationships between normative sources and judicial practice in the period between the late eleventh and the early thirteenth century.	3
My understanding, for what it is worth, is that from the mid-thirteenth century at the latest in England there existed a system of legal reasoning, not unlike the modern system. Further, and again like modern law, the legitimacy of the judicial decision rested on the apparent consistency of the procedure and of the judicial reasoning (so far as it was known) with the canons of legal reasoning and therefore with the authoritative sources and their interpretation, so far as relevant. In contrast, it seems from the secondary literature that in the early medieval period, though there were normative sources that claimed authority, (a) there was no elaborated system of legal reasoning, and (b) at least in northern Europe, the legitimacy of the judicial decision rested directly on the support of the locals (lay collective judgment or witness of some sort), the political authority of the court president, or religious authority (judgment of god). Accordingly, in this period the normative sources, leges and such-like, had only a limited relationship to actual judicial practice. Lawyerly distinctions are therefore appropriate for the later, but not the earlier, period.	4
The intervening period, between the late eleventh century and the early thirteenth, is one of transition (whose causes and nature are much disputed) from the earlier form of "law" to the later. Which reading of normative sources and arguments is more appropriate to this period? The approach assumed in my article is roughly as follows. First, we should not look for a definite sharp cut-off point before which everything is lay custom and after which everything is professional law. Rather, this period saw increasing use of written normative sources and claims about historic norms, as opposed to current custom and practice, in forensic argument—before as well as after the emergence of professional or semiprofessional doctrinal systems. 2 An associated development is the appearance of more lawyerly "semi-systematic" treatments of norms and of arguments from distinctions. In this context normative conceptual distinctions between procedural forms are more likely to appear, though—as I hope I made clear in section II.2 of the article—as rough patterns of correlations rather than as strictly applied rules. 3	5
The distinctions I draw between different procedures in the early medieval normative sources are, then, not intended to imply that these were necessarily sharp distinctions in the early medieval practice, but distinctions that would be likely to be "read" in the early medieval sources in the proto-legal and legal argument of the twelfth century. Thus I am happy to accept the points made by Wormald about the lack of practical distinction between acting as knowledgeable neighbors (or attesting witnesses) and as juristic experts, whether in pre-Conquest Cambridgeshire or in the Domesday proceedings; and I agree entirely with his statement that "... panels became more obviously distinct from 'courts,' because courts were increasingly bodies endowed with special legal skills and spearheaded by vocally decisive royal justices."	6
The process that produces this change, however, forces sharper conceptual distinctions between procedures. A good example is the matter of accusation and presentment, Wormald's last point. Here my original text (583) is perhaps misleading. My argument is that Henry II's regime, from an early stage in the reign, creates a new rigor in judicial procedure. Part of this new rigor is a routine requirement that individual accusation of crime (appeal of felony) must be supported by wager of battle. Under these new conditions, an individual duty on all citizens to accuse suspect persons becomes a duty to offer battle. I am concerned with this risk to the accuser entailed in the offer of battle. Substituting direct prosecution on the basis of fama/notoriety established by panels, without individual accusation, removes this risk—not, obviously, the risk to the accused! In this context my suggestion is not that Constitutions c. 6 and its acceptability to Becket causes the adoption of panels in the Assize c. 1 (Donahue, 594), but that it provides a convenient model for a solution to a separate problem.	7
I am happy to accept that the varied early medieval uses of the information of neighbors as a mode of proof and/or of judgment is at least a causa sine qua non of the later medieval uses of panels of locals both in England and elsewhere, and thus that Carolingian reform and the Anglo-Saxon inheritance are relevant to this. My argument is against a simple continuity of these earlier practices: they have to be reinterpreted and relocated in the changed world/s of later medieval legal discourse, even in England.	8
This approach informs the way I have used the canonical sources on fama, which Donahue criticizes as reading back later law. My understanding is that the twelfth-century canonists inherit from the earlier medieval period a range of uses of vicini, and of "notoriety" or "manifest" crime, in normative sources. In all probability they also inherit a much wider range of uses in practice of the production of locals, shared with the secular practice and probably sharing with it the ambiguity in practice between knowledge of facts, status, and "legal" expertise discussed by Wormald. My discussion of the history of fama doctrine in the canon law, then, is intended to be a discussion of how these earlier practices are cut down and reinterpreted by systematic legal thought about procedure. Uses of fama persist—and in some cases are even regarded as full proof—in the later medieval period, in the face of a general theory of proof that is quite hostile; and this circumstance combined with the early medieval evidence entitles us to suppose that, in the transitional period before the doctrine is solidly formed, this sort of evidence would be more widely regarded as acceptable.	9
I mean to argue that Henry II's advisers would have knowledge of this general acceptability, but not of the fine detail of the later development of the law relating to fama and notoriety. I also mean to argue that Henry II's advisers were conscious of the distinction between judge and witness drawn by the canonists, because (a) the evidence for this distinction is actually quite early, and (b) awareness of this distinction provides the simplest explanation of the early characterization of the jurors as witnesses. I am therefore entirely in agreement with Donahue when he says that "Ultimately, a rather sharp differentiation emerged between proof by witnesses and proof by inquest. It is not at all clear that these distinctions were clearly seen in the mid-twelfth century."	10
More broadly, I am not seeking (as Donahue perhaps suggests I am) to identify the origin of the jury in a simple "confrontation between the Romano-canonic system of proof and older methods of proof" or between "ingrained secular ideas about custom and Romano-canonic learning." Rather, I see increasingly insistent appeals to normative sources as disrupting a traditional reliance on current "custom and practice." In this context, the (alleged) customs of Edward the Confessor or of Henry I are normative sources alleged against current custom and pragmatic decision making, in the same way as the canons collected in Gratian or other written sources are alleged against current "bad customs." I see the apparent expansion of trial by battle in the reign of Henry II as part of this new world of formalistic-legalistic argument—as much as Becket's claim to act without trial in cases of notoriety. My argument is therefore that in land disputes, as in the prosecution of crime, a new rigor in normative argument forces differentiation in, and conflict about, proof practices. I suggest that an important element in this process is in the notorious contemporary conflict between regnum and sacerdotium, but also in the possibly related run of disputes between lay landowners and religious institutions about tenure and title.	11
I am perhaps more skeptical than Donahue about the presence in the 1160s to the 1180s of "people who counted and who neither knew nor cared" about the procedural issues in dispute between king and archbishop, a political event on the same scale as a presidential impeachment. 4 Equally, I am somewhat skeptical about the extent to which Henry II contemplated the caseload that his reforms produced for his judges or thought seriously and pragmatically about how to handle it. This seems to me to presuppose rather twentieth-century administrative capabilities and mindset. Nonetheless, I accept—as I said at the beginning of this response—that it is inappropriate to seek a monocausal explanation of trial by jury. Accordingly, as Donahue says, later twelfth-century motives other than those dealing with relations between clergy and laity need to be considered (so far as they can be ascertained). Within this framework I stand by the core claims of my article.	12
Notes       1. I do not mean to say that grand narrative theories are always inappropriate to the explanation of historical legal phenomena, merely that they do not seem to be appropriate to the history of jury trial.
2. Equally, of course, reliance on current custom and practice, "judgment of peers," and so forth, continues after the emergence of professional legal doctrine.
3. I take this approach to be broadly consistent with that of John Hudson in The Formation of the English Common Law (London: Longman, 1996).
4. This is obviously not quite the same thing as knowing and caring about the detail of Romano-canonical procedural law; but it is on the disputes, not the details, that my argument about motivations rests.

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