FORUM:COMMENT

Neighbors, Courts, and Kings:

Reflections on Michael Macnair's Vicini
PATRICK WORMALD

Mike Macnair's deeply learned and profoundly subtle article1 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 wit-
nessing 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-rig-
id distinctions for spheres where they will in practice have meant little. To
start near where he himself launches his argument: the position of the au-
thors 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 sug-
gest that "oath-helpers," "witnesses," and "sworn panels" would in prac-
tice 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 lit-
igation in the early medieval West was indeed one where judgment resid-
ed in courts as collectives rather than expert judicial officials (the more so
as one tracks northwards, further from surviving Roman apparatus). But

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.

Patrick Wormald is tutor and university lecturer at Christ Church, Oxford.

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© 1999 by the Board of Truftees of the University of Illinois
598 Law and History Review, Fall 1999
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 "pan-
el" 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 general-
ly. 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 ob-
vious, 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 Domes-
day jurors, so illuminatingly prosopographized by Chris Lewis, had for-
merly been members of their local hundred and shire courts, it is over-
whelmingly 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 Mac-
nair lies in the "Libellus ^Ethelwoldi Episcopi," a text substantially incor-
porated in Liber Eliensis but also extant independently.4 Therein we find
such transactions as the following:
From Leofric of Brandon . . . [Bishop jEthelwold] 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 pres-
ence 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 a n n u l . . . the agreement. . . But the lawmen {legates 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

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 Histori-
cal Society, London, 1962) ii 4-49b, pp. 75-117; the "Libellus ^thelwoldi" itself will shortly
be edited and translated by Alan Kennedy and Simon Keynes under the title Anglo-Saxon
Ely.
5. Lib. /Eth. 6 = Lib. El ii 8, p. 81.
 Neighbors, Courts, and Kings 599
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 iEthelwold 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."1 Sexferth was another witness of the aforementioned deathbed be-
quest 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 ^Ethelwine, ealdorman of East Anglia, and attended by "cit-
izens and hundred-men and twenty-four indices," 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, /Elfhelm
"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 four-
teen "testibus legalibus" before whom the Abbot of Ely made another of
his bargains." These "testes legates" 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, iElfhelm Pol-
ga'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 knowl-
edgeable 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 acknowl-
edged authority, precisely to facilitate resolution of any disputes arising.13

6. Lib. /Eth. 12 = Lib. El. ii 11, p. 86.

7. Lib. JEth. 10 = Lib. El. ii 11, p. 84.
8. Lib. JEth. 8 = Lib. El. ii 10, p. 83; Lib. /Eth. 46 = Lib. El. ii 35, p. 110.
9. Lib. /Eth. 22 = Lib. El. ii 16, pp. 92-93.
10. Lib. /Eth. 34 = Lib. El. ii 24, pp. 97-98.
11. Lib. /Eth. 13 = Lib. EL ii 11, p. 88.
12. Dorothy Whitelock, ed., Anglo-Saxon Wills (Cambridge: Cambridge University Press,
1930), no. xiii.
13.1 Edward 1—1:4; II iEthelstan 10, 12, 13:1; I ^Ethelred 3.
600 Law and History Review, Fall 1999
Under Edgar's Wihtbordesstan code, these became fixed totals, so presum-
ably semi-permanent bodies, of "gewitnes," who were under oath to de-
clare 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 ^thelred'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 wasfiftyyears since
he had begun attending meetings of the shire and hundred ("with my fa-
ther"), 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" activi-
ty 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 spear-
headed 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 "roy-
alist") 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 man-
age 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 ac-
tion against society's unacceptable elements: compare Macnair on "fama"
(574-77) (with an important aside on "local reputation" in the concluding

14. IV Edgar 3—6:2.

15. Ill ^thelred 3:1-2 (recte 1991, cf. Macnair, 542).
16. Raoul C. van Caenegem, English Lawsuits from William I to Richard I (Selden Soci-
ety, 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.
 Neighbors, Courts, and Kings 601
paragraph of Part II). The point about the "tihtbysig" of Edgar's, .(Ethel-
red'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 Priim 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 citi-
zen had a duty to accuse, rather than (as from Henry IPs time) to present
subjects (compare page 583). If this distinction means that those present-
ed to Angevin justices had the chance to "purge" themselves (namely, by
ordeal?), then just the same goes for the eleventh-century tihtbysig. ^ithel-
red'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).211 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 An-
gevin 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 citi-
zens was emphatically a feature of Henry's inheritance, and one whose
history was already in the 1160s a good two centuries old.

18. Ill Edgar 7, I /Ethelred 1:1, HI /Ethelred 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 ^Ethelstan 20—20:6: be it noted, as regards the argu-
ment above, that the duties later appertaining to the hundred are, for jEthelstan, those of "pa
yldestan men that belong to the burh."
21. E.g., I /Ethelred 1:1-4, 4 [taken up by II Cnut 30—30:3, 33], III 3:4—4:2.
 FORUM: RESPONSE

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 alto-
gether the relevance of Anglo-Saxon practice or strong government (Worm-
aid)—though I am pretty skeptical of the specific Carolingian-Norman lin-
eage proposed by Brunner.
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 sugges-
tion in relation to these developments is that the (indirect) relationship of
the jury verdict to/ama/notoriety and the conception of the jurors as wit-
nesses to local reputation opened up a range of possibilities for later deci-
sions that were different from the possibilities which would have been
available had the jurors been initially conceptualized as judges. Social in-
stitutions 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
1.1 do not mean to say that grand narrative theories are always inappropriate to the ex-
planation of historical legal phenomena, merely that they do not seem to be appropriate to
the history of jury trial.

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604 Law and History Review, Fall 1999
some developments more probable than others) but much less strongly than
DNA constrains the development of organisms.

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 learn-
ing 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.
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 le-
gitimacy 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 sec-
ondary literature that in the early medieval period, though there were nor-
mative 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 col-
lective 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 rela-
tionship to actual judicial practice. Lawyerly distinctions are therefore
appropriate for the later, but not the earlier, period.
The intervening period, between the late eleventh century and the early
thirteenth, is one of transition (whose causes and nature are much disput-
ed) from the earlier form of "law" to the later. Which reading of norma-
tive 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 increas-
ing 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.

2. Equally, of course, reliance on current custom and practice, "judgment of peers," and
so forth, continues after the emergence of professional legal doctrine.
 Law, Politics, and the Jury 605
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 ap-
plied rules.3
The distinctions I draw between different procedures in the early medi-
eval normative sources are, then, not intended to imply that these were
necessarily sharp distinctions in the early medieval practice, but distinc-
tions 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 Domes-
day proceedings; and I agree entirely with his statement that ". . . panels
became more obviously distinct from 'courts,' because courts were increas-
ingly bodies endowed with special legal skills and spearheaded by vocal-
ly decisive royal justices."
The process that produces this change, however, forces sharper concep-
tual distinctions between procedures. A good example is the matter of ac-
cusation and presentment, Wormald's last point. Here my original text (583)
is perhaps misleading. My argument is that Henry IFs 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 condi-
tions, 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 offamal
notoriety established by panels, without individual accusation, removes this
risk—not, obviously, the risk to the accused! In this context my sugges-
tion 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.
I am happy to accept that the varied early medieval uses of the informa-
tion 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 in-
heritance 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.
This approach informs the way I have used the canonical sources on
fama, which Donahue criticizes as reading back later law. My understand-

3.1 take this approach to be broadly consistent with that of John Hudson in The Forma-
tion of the English Common Law (London: Longman, 1996).
606 Law and History Review, Fall 1999
ing 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 prac-
tice and probably sharing with it the ambiguity in practice between knowl-
edge of facts, status, and "legal" expertise discussed by Wormald. My dis-
cussion 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 reinter-
preted by systematic legal thought about procedure. Uses offama 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.
I mean to argue that Henry IFs 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 ex-
planation of the early characterization of the jurors as witnesses. I am there-
fore 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."
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 Ro-
mano-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 disrupt-
ing a traditional reliance on current "custom and practice." In this context,
the (alleged) customs of Edward the Confessor or of Henry I are norma-
tive sources alleged against current custom and pragmatic decision mak-
ing, in the same way as the canons collected in Gratian or other written
sources are alleged against current "bad customs." I see the apparent ex-
pansion of trial by battle in the reign of Henry II as part of this new world
offormalistic-legalistic argument—as much as Becket's claim to act with-
out trial in cases of notoriety. My argument is therefore that in land dis-
putes, 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
 Law, Politics, and the Jury 607
run of disputes between lay landowners and religious institutions about
tenure and title.
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 archbish-
op, a political event on the same scale as a presidential impeachment.4
Equally, I am somewhat skeptical about the extent to which Henry II con-
templated 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 mind-
set. 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 consid-
ered (so far as they can be ascertained). Within this framework I stand by
the core claims of my article.

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 argu-
ment about motivations rests.