Mike Macnair’s deeply learned and profoundly subtle article [1] establishes to the more or less total satisfaction of this respondent that the origins of “jury” procedure lie in testimonial rather than adjudicatory action: in witnessing by knowledgeable neighbors as opposed to “judgment-finding” by local experts. But then he is in my case—and perhaps to a greater extent than he himself realizes—preaching to the converted.
The article’s structural flaw, shared with the bulk of “jury” debates since legal history first became a specialized subject, lies in the use of over-rigid distinctions for spheres where they will in practice have meant little. To start near where he himself launches his argument: the position of the authors of the Davies and Fouracre, Settlement of Disputes, collection is misrepresented (539, 544-45) in so far as it is taken to equate the giving of evidence by witnesses with the reaching of decisions by courts. To say, as we did (and giving the quotation in full), that “the combination between a de facto need for some knowledge of a given case, and the general fear of perjury the courts drew upon to solemnicize their proceedings, put oath-helping, witnessing, and the inquest all in the same spectrum,” was to suggest that “oath-helpers,” “witnesses,” and “sworn panels” would in practice have involved much the same sets of people and materials; not, of course, that each was the same procedure as the others. [2] The context of litigation in the early medieval West was indeed one where judgment resided in courts as collectives rather than expert judicial officials (the more so as one tracks northwards, further from surviving Roman apparatus). But this does not mean, and was not intended by the “Bucknell group” to mean, that sworn panels were in effect adjudicatory.
The fundamental polarity of Macnair’s whole case lies between “panel” and “court,” evidence and judgment, neighborhood and expertise. This underlies not only the way that modern “pragmatism” is assimilated at the beginning and end to (very) old-fashioned “constitutionalism,” but also the article’s core section (Part II, 556-71) on “vicini” and “panels of locals” in Anglo-Norman practice and in that of the early medieval West generally. On the one hand stand neighbors who bear witness to a transaction’s validity because directly familiar with its details; on the other, more or less formally constituted bodies who attest that prescribed procedures have been properly observed (compare, for example, 560, 566-68, 569-70). The obvious, if tedious, rejoinder is to ask how much difference there could have been between these poles in practice. Take, for one, the Domesday cases of which Macnair makes much (570): who were likely to be members of a hundred court, the predominant Domesday adjudicating body, if not a group of the parties’ neighbors? While we cannot know that the English Domesday jurors, so illuminatingly prosopographized by Chris Lewis, had formerly been members of their local hundred and shire courts, it is overwhelmingly probable that many were; did they act habitually as knowledgeable neighbors or as legal experts? [3]
A rich body of pre-Conquest material regrettably overlooked by Macnair lies in the “Libellus Æthelwoldi Episcopi,” a text substantially incorporated in Liber Eliensis but also extant independently. [4] Therein we find such transactions as the following:
From Leofric of Brandon … [Bishop Æthelwold] bought twelve hides [at] Linden … paying one hundred mancuses and a very fine horse, and giving him the land at Bishampton which Leofric’s wife … had previously sold to him. This emptio et conventio was thus effected [at] Cambridge in the presence of the leading men of the district (melioribus eiusdem provinciae) [my emphasis] … After the death of King Edgar, that same Leofric attempted with crafty cunning to annul … the agreement … But the lawmen (legales viri) Leofric of Berle and Siferth Vecors, who had been involved in this matter as witnesses (huic rei intererant et testes fuerunt) [again, my emphasis] declared him convictum. [5]
What precise function, then, had Leofric of Berle and Siferth in this affair? In any event, the former was later among those who “witnessed” bequests to Ely by someone who chose to be buried there. [6]
Shortly afterwards, we read how a complex deal between Æthelwold and a local couple involved “Leofwine the reeve and Wine of Witchford” in payment of two-thirds of the price, “the witnesses of which matter were Sexferth and Oskytel and Oswiu of Beche and Uvi et plures alii fideles viri.” [7] Sexferth was another witness of the aforementioned deathbed bequest to Ely. Wine of Witchford crops up as agent in similar transactions concerning Stretham and Witchford (here too alongside reeve Leofwine), [8] and as among “meliores de Ely” who were “testes” of a purchase by Ely’s abbot. [9] As for Oskytel and Oswiu of Beche: after another of Ely’s prolonged post-975 disputes had been settled before a “grande placitum” held at Cambridge by Æthelwine, ealdorman of East Anglia, and attended by “citizens and hundred-men and twenty-four iudices,” it was they whom the ealdorman deputed to make a circuit of the property with the victorious abbot and see that all was to his satisfaction. [10] As a final instance, Ælfhelm “Polga” was one of two “sureties (vades)” for the Stretham transaction wherein Wine of Witchford (and, for that matter, “Oswiu and Oskytel of Beche”) were also participants; soon afterwards, he appears as one of fourteen “testibus legalibus” before whom the Abbot of Ely made another of his bargains. [11] These “testes legales” seem to be something other than the twenty-four “iudicibus” before whom the abbot conducted the business too, even if one wonders quite what the difference was. As it is, Ælfhelm Polga’s will happens to survive: he was evidently a figure of some substance through several shires, with his own goldsmith and indeed “longship.” [12]
It seems impossible to decide whether men like this served as knowledgeable locals or juristic specialists; perhaps they did not invariably know themselves. Cambridgeshire’s tenth-century squirearchy was by that token both the most promising source of informed opinion and the best qualified dispenser of sound judgment. It was in fact of the essence of later Anglo-Saxon law on business deals that these be witnessed by figures of acknowledged authority, precisely to facilitate resolution of any disputes arising. [13] Under Edgar’s Wihtbordesstan code, these became fixed totals, so presumably semi-permanent bodies, of “gewitnes,” who were under oath to declare nothing but what they had seen or heard. [14] It is far from impossible that these “professionalized” witnesses were the same as Cambridge’s twenty-four “iudices”; and by no means unimaginable that they formed “pa yldestan XII pegnas” required by Æthelred’s Wantage code to proceed against men of “ill-repute.” [15] When, then, Hervey de Glanville leapt to his feet at a Suffolk shire court ca. 1150, proclaimed that it was fifty years since he had begun attending meetings of the shire and hundred (“with my father”), and vouched on that basis for the claims made in the Abbot of Bury’s documents, was he witness or judge, neighbor or expert? [16] All we can say for sure is that he was not the same sort of judge as his son would become. The point about Macnair’s vividly illustrated rising tide of “panel” activity after 1165 (Tables 1-3, 568-70 and compare 578-79, 588-89) would then be 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.
If my modern “pragmatism” in effect brings me closer to Macnair’s “vicinal” model than he may realize, he is quite right in thinking that the primary upshot of my own views is that “the strength of royal government [is] merely … pushed back into Anglo-Saxon rather than Anglo-Norman, England” (542). The virtue of the Brunnerist (we should perhaps say “royalist”) case is, it has always seemed to me, that it takes up the story where the evidence itself begins it: with the campaign against the incorrigibly criminal orchestrated by the assize of Clarendon’s jury of presentment. The irony is that, whatever else Brunner found in Carolingian capitularies (and Macnair’s point [565-66 with notes 122-25] is well taken), he did not manage to locate there panels sworn to denounce malefactors. [17] The obligation to deliver suspects up for condign judgment was inherent in the loyalty-oath of all free Carolingian subjects. So it was in that of the Old English kingdom. Macnair is more hesitant about this evidence than he need have been and may once again have introduced a distinction more evident to the modern than to an early medieval eye.
On the one hand, “ill-fame” was absolutely central to Old English action against society’s unacceptable elements: compare Macnair on “fama” (574-77) (with an important aside on “local reputation” in the concluding paragraph of Part II). The point about the “tihtbysig” of Edgar’s, Æthelred’s, and Cnut’s legislation is that he was literally “charge-laden.” [18] That is to say, he was often in trouble: Cnut proceeded to clarify the point by specifying that he was accused by “three men together.” [19] It is the duty of the upright citizen to proceed vigorously against such. [20] If it is indeed the case that ecclesiastical perceptions were the essential catalyst/medium here (compare Macnair, page 578 and following), there is not much less reason to suppose that Anglo-Saxons knew what sort of thing Regino of Prüm was writing than that Henry’s lawyers were aware of Justinian or Gratian. Anglo-Saxon justice was an offshoot—in some sense an intensification— of the Carolingian reforming initiative.
On the other hand, it splits hairs to maintain that the Old English citizen had a duty to accuse, rather than (as from Henry II’s time) to present subjects (compare page 583). If this distinction means that those presented to Angevin justices had the chance to “purge” themselves (namely, by ordeal?), then just the same goes for the eleventh-century tihtbysig. Æthelred’s legislation is quite clear that if no surety can be found for such, he is put to the ordeal to “clear” himself (or, more likely, fail to). [21] I for one find much of the same restless intolerance of the socially deviant (especially those unable to “amerce” themselves out of potentially lethal trouble) in the law-making of England’s first kings as I do in that of their great Angevin successor.
This respondent, in sum, has no inclination to deny the reality of change in and after the 1160s. Mike Macnair’s article offers a rich range of insights into the sources and ultimate implications of those changes. But I am in little doubt that the use of neighborhoods to proceed against suspect citizens was emphatically a feature of Henry’s inheritance, and one whose history was already in the 1160s a good two centuries old. 1. Mike Macnair, “Vicinage and the Antecedents of the Jury,” Law and History Review 17 (1999): 537-90.
Patrick Wormald is tutor and university lecturer at Christ Church, Oxford.
Notes
1. Mike MacNair, “Vicinage and the Antecedents of the Jury,” Law and History Review 17 (1999): 537-90.
2. Wendy Davies and Paul Fouracre, eds., The Settlement of Disputes in Early Medieval Europe (Cambridge: Cambridge University Press, 1986), 221.
3. Christopher P. Lewis, “The Domesday Jurors,” Haskins Society Journal 5 (1993): 17-44.
4. Edwin O. Blake, ed., Liber Eliensis (Camden Society, 3d ser., vol. 92, Royal Historical Society, London, 1962) ii 4-49b, pp. 75-117; the “Libellus Æthelwoldi” itself will shortly be edited and translated by Alan Kennedy and Simon Keynes under the title Anglo-Saxon Ely.
5. Lib. Æth. 6 = Lib. El. ii 8, p. 81.
6. Lib. Æth. 12 = Lib. El. ii 11, p. 8
7. Lib. Æth. 10 = Lib. El. ii 11, p. 84.
8. Lib. Æth. 8 = Lib. El. ii 10, p. 83; Lib. Æth. 46 = Lib. El. ii 35, p. 110.
9. Lib. Æth. 22 = Lib. El. ii 16, pp. 92-93.
10. Lib. Æth. 34 = Lib. El. ii 24, pp. 97-98.
11. Lib. Æth. 13 = Lib. El. ii 11, p. 88.
12. Dorothy Whitelock, ed., Anglo-Saxon Wills (Cambridge: Cambridge University Press, 1930), no. xiii.
13. I Edward 1—1: 4; II Æthelstan 10, 12, 13: 1; I Æthelred 3.
14. IV Edgar 3—6: 2.
15. III Æthelred 3: 1-2 (recte ?997, cf. Macnair, 542).
16. Raoul C. van Caenegem, English Lawsuits from William I to Richard I (Selden Society, vols. 106-7, 1990-1991), no. 331, p. 290.
17. See my comment, “Frederic William Maitland and the Earliest English Law,” Law and History Review 16 (1998): 12 and n. 43.
18. III Edgar 7, I Æthelred 1: 1, III Æthelred 3: 2,4, II Cnut 22, 25, etc.; cf. already III Edmund 7: 1, “omnes infamati et accusationibus ingravati.”
19. II Cnut 30.
20. II Cnut 25, III Edgar 7, with II Æthelstan 20—20: 6: be it noted, as regards the argument above, that the duties later appertaining to the hundred are, for Æthelstan, those of “pa yldestan men that belong to the burh.”
21. E.g., I Æthelred 1: 1-4, 4 [taken up by II Cnut 30—30: 3, 33], III 3: 4—4: 2.