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Published online by Cambridge University Press: 28 October 2011
The history of institutions is plagued by the biological analogy. We speak so frequently of the life and death, the birth, growth, maturity, and decline, of institutions that we forget that these words are being used metaphorically. Of course, the human beings who create and use the institutions have a birth and a death, but human institutions have only a start and a stop (frequently a far less precise one than those words might imply), and there is no reason why the periods between the start and stop need parallel those of living organisms.
1. Cf. Gaudemet, Jean, “Histoire du droit et histoire des institutions: Bilan et perspectives,” in Bronnen voor de geschiedenis van de instellingen en België, ed. Schepper, Hugo de (Brussels: Algemeen Rijksarchief, 1977), 81.Google Scholar
2. E.g., “the jury is not a direct descendant of lay collective judgment” (588).
3. E.g., the leap from Part II. I, where all the sources are Continental and the latest source discussed is Burchard of Worms (1008 × 1012), and most are considerably earlier than that, to Part II.2, where the use of panels in England, principally in the twelfth century, is seen to conform to the practice described in Part II. l.
4. I pass over here Macnair's argument, with which I largely agree, that the nature of the jury changed in later periods, that it became, in his characterization, more like a body of lay judges and less like Romano-canonical witnesses to fama.
5. Cheney, Mary, “The Litigation Between John Marshal and Archbishop Thomas Becket in 1164: A Pointer to the Origin of Novel Disseisin,” in Law and Social Change in British History, ed. Guy, J. A. and Beale, H. G. (London: Royal Historical Society, 1984), 9–26.Google Scholar
6. My summary of this provision, like Macnair's (582–83), passes over some important ambiguities with regard to the role of the archdeacon and as to precisely what the sheriff is supposed to do with the twelve men.
7. Constitutions of Clarendon (1164), c. 9.
8. For different views of the story, see Hyams, Paul R., “Trial by Ordeal: The Key to Proof in the Early Common Law,” in On the Laws and Customs of England: Essays in Honor of Samuel E. Thome, ed. Arnold, Morris S. et al. (Chapel Hill: University of North Carolina Press, 1981), 90–126Google Scholar; Bartlett, Robert, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford: Clarendon Press, 1986).Google Scholar
9. The Treatise on the Laws and Customs of England Commonly Called Glanvill, ed. Hall, G. D. G. (London: Nelson, 1965), 2.7, at p. 28Google Scholar(regale quoddam beneficium).
10. “Justice … is seldom arrived at by battle.” Ibid.
11. Recourse to fama in the case was necessitated by the fact that the woman had challenged as fraudulent the notarized instrument of marriage that the man had produced.
12. See Donahue, Charles, “The Dating of Alexander the Third's Marriage Decretals: Dauvillier Revisited after Fifty Years,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte 99 (Kanonistische Abteilung 68) (1982): 100Google Scholar (dating the decretal [= WH 103] to the years 1174 × 1181).
13. Charles Donahue, “Proof by Witnesses in the Church Courts of Medieval England: An Imperfect Reception of the Learned Law,” in Essays Thome, 136–37.
14. Ibid., 135–36, 140–41.
15. Ibid., 139⁁10, 148–50.
16. For the possibilities, see Hyams, “Trial by Ordeal.”
