Footnotes

[1] . See J.H. Baker, An Introduction to English Legal History 75 (4th ed. 2002); Dr. Heinrich Brunner, Die Entstehung der Schwurgerichte 427, 452 (Berlin, Weidmannsche Buchhandlung 1872); John P. Dawson, A History of Lay Judges 118–28, 213–27 (1960); S.F.C. Milsom, Historical Foundations of the Common Law 412, 418, 421, 424 (2d ed. 1981); 1 Francis Palgrave, The Rise and Progress of the English Commonwealth 243–44 (London, John Murray 1832); 2 Sir Frederick Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I 622–28 (2d ed., Cambridge Univ. Press 1898); 1 Sir James Fitzjames Stephen, A History of the Criminal Law of England 255–65 (London, MacMillan 1883). See also infra notes – (supporting the self-informing character of medieval juries). For historians who disagree with this consensus, see infra notes , –, and .

[2] . John H. Langbein, The Origins of Public Prosecution at Common Law, 17 Am. J. Legal Hist. 313, 314 (1973).

[3] . See James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law 85–136 (Boston, Little, Brown & Co. 1898); 1 John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 8, at 235–36 (3d ed. 1940); 5 Wigmore, supra, § 1364, at 10–12. More recent research suggests that rules regulating oral testimony did not develop until the eighteenth century, and, thus, that the decline of the self-informing jury was a necessary condition for the emergence of evidence law, but not its immediate cause. See T.P. Gallanis, The Rise of Modern Evidence Law, 84 Iowa L. Rev. 499, 537–40 (1999); John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 Colum. L. Rev. 1168, 1171–72 (1996).

[4] . John H. Langbein, Prosecuting Crime in the Renaissance: England, Germany, France 22, 43, 118–22, 204–05 (1974); Langbein, supra note , at 314.

[5] . Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800, at 16–18 (1985).

[6] . See, e.g., Margaret C. Klingelsmith, New Readings of Old Law, 66 U. Pa. L. Rev. 107, 107–22 (1918); Robert C. Palmer, Conscience and the Law: The English Criminal Jury, 84 Mich. L. Rev. 787, 795–96 (1986).

[7] . Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800 (J.S. Cockburn & Thomas A. Green eds., 1988) [hereinafter Twelve Good Men].

[8] . See generally Bernard William McLane, Juror Attitudes Toward Local Disorder: The Evidence of the 1328 Lincolnshire Trailbaston Proceedings, in Twelve Good Men, supra note , at 36–64; J.B. Post, Jury Lists and Juries in the Late Fourteenth Century, in Twelve Good Men, supra note , at 65–77.

[9] . See generally Edward Powell, Jury Trial at Gaol Delivery in the Late Middle Ages: The Midland Circuit, 1400–1429, in Twelve Good Men, supra note , at 78–116.

[10] . The hundred was an administrative subdivision of the county consisting of a number of villages.

[11] . See Post, supra note , at 65, 75–76; Powell, supra note , at 78, 113.

[12] . Powell, supra note , at 78, 97. "Our hypothesis must be that by the early fifteenth century the criminal trial jury was no longer self-informing in the accepted sense—if indeed it ever had been." Id. (emphasis added).

[13] . Id. at 115–16.

[14] . George Fisher, The Jury’s Rise as Lie Detector, 107 Yale L.J. 575, 591–92 (1997) (footnote omitted).

[15] . Thomas A. Green, A Retrospective on the Criminal Trial Jury, 1200–1800, in Twelve Good Men, supra note , at 358, 364–75; Langbein, supra note , at 1170 n.6. See also McLane, supra note , at 36, 57 (suggesting that jurors who lacked firsthand knowledge of crimes may have relied on jurors who lived closer to the crime scene).

[16] . Anthony Musson, Public Order and Law Enforcement: The Local Administration of Criminal Justice, 1294–1350, at 205 (1996).

[17] . See, e.g., Green, supra note , at 16–17 (forgoing citation of primary sources to support the contention that the medieval jury was self-informing); Langbein, supra note , at 314 (relying on James B. Thayer, A Preliminary Treatise on Evidence at the Common Law (Boston, Little, Brown & Co. 1898)). See also the twentieth-century sources cited in note , supra.

[18] . See Fisher, supra note , at 592–93.

[19] . Women constituted more than a third of appellors. Daniel Klerman, Women Prosecutors in Thirteenth-Century England, 14 Yale J.L. & Human. 271, 287–89 (2002).

[20] . Powell, supra note , at 115–16 (emphasis added).

[21] . John Marshall Mitnick, From Neighbor-Witness to Judge of Proofs: The Transformation of the English Civil Juror, 32 Am. J. Legal Hist. 201, 220–29 (1988).

[22] . Green, supra note , at 370.

[23] . Powell, supra note , at 97, 115–16.

[24] . See, e.g., Green, supra note , at 16 ("No witnesses could come forward . . . ."); Langbein, supra note , at 1170 ("The medieval jury came to court not to listen but to speak, not to hear evidence but to deliver a verdict formulated in advance."). But see Green, supra note , at 16 n.48, 18 (noting that witnesses appeared at the eyre); Langbein, supra note , at 314 (stating that "Medieval juries came to court more to speak than to listen," rather than "not to listen") (emphasis added).

[25] . Green, supra note , at 18 (footnote omitted).

[26] . See Pleas of the Crown for the County of Gloucester Before the Abbot of Reading and His Fellows Justices Itinerant in the Fifth Year of the Reign of King Henry the Third and the Year of Grace, 1221, at xli (F.W. Maitland ed., London, MacMillan 1884) ("Occasionally other persons who are not jurors give evidence . . . .") (footnote omitted); Stephen, supra note , at 259–60 ("[T]hough the jurors were themselves the witnesses . . . other witnesses might be and sometimes were called upon criminal trials.").

[27] . See David J. Seipp, Jurors, Evidences, and the Tempest of 1499, in The Dearest Birth Right of the People of England: The Jury in the History of the Common Law 75 (John W. Cairns & Grant McLeod eds., 2002).

[28] . The presenting jury was the jury that accused persons of crime. It was the forerunner of the grand jury.

[29] . The eyre was a periodic session of royal justice, held in the countryside, that heard a wide range of civil and criminal cases.

[30] . 1 The 1235 Surrey Eyre 20, 94, 97–98 (C.A.F. Meekings & David Crook eds., Surrey Record Soc’y, vol. 31, 1979). Even though the representatives of the villages were sworn and associated with the presenting jurors in delivering the verdict, the sources do not always refer to them as jurors. For example, plea rolls often report the verdict in a form that suggests the villagers were not part of the jury: "The jurors and the four neighboring villages say on oath that . . . ." See, e.g., The Roll of the Shropshire Eyre of 1256, at 230, case 618 (Alan Harding ed., Selden Soc’y, vol. 96, 1981). See also infra note and accompanying text, where the jury is referred to as "the twelve." Nevertheless, because the villagers were sworn and seem to have delivered their verdict along with the presenting jurors, this Article refers to them as part of the jury, as is common in the literature.

[31] . See, e.g., 1 Royal Justice and the Medieval English Countryside: The Huntingdonshire Eyre of 1286, the Ramsey Abbey Banlieu Court of 1287, and the Assizes of 1287–88, at 419–21 (Anne Reiber DeWindt & Edwin Brezette DeWindt eds., 1981) [hereinafter Royal Justice]; The Roll of the Shropshire Eyre of 1256, supra note , at 301–06.

[32] . 1 The 1235 Surrey Eyre, supra note , at 97.

[33] . An amercement was a monetary penalty. Today it would be called a fine.

[34] . See, e.g., The Roll of the Shropshire Eyre of 1256, supra note , at 203, 207–08, 210, 214–15, cases 514, 535, 544, 565.

[35] . Jail delivery was a periodic session of royal justice in the countryside that tried those in jail or out on bail.

[36] . 2 Pollock & Maitland, supra note , at 624–25.

[37] . Wiltshire Gaol Delivery and Trailbaston Trials, 1275–1306, at 18–19 (Ralph B. Pugh ed., Wiltshire Record Soc’y, vol. 33, 1978).

[38] . JUST 3/18/2, m. 1 (Essex 1282 jail delivery, eight cases mentioning neighboring villages); JUST 1/1179, mm. 25–25d (Norfolk and Suffolk 1259 jail delivery, thirteen cases mentioning neighboring villages); JUST 1/1179, m. 14 (Suffolk 1254 jail delivery, three cases mentioning neighboring villages); JUST 1/1177A, m. 4d (Suffolk 1250 jail delivery, three cases mentioning neighboring villages); JUST 1/36, mm. 4–5 (Berkshire 1225 jail delivery, seventeen cases mentioning neighboring villages). All citations beginning "JUST" refer to documents in the National Archives, Kew, England. The Southern California Law Review could not check the JUST sources and relies on the author for the accuracy of these citations.

[39] . See supra note and accompanying text.

[40] . Daniel Klerman, Settlement and the Decline of Private Prosecution in Thirteenth-Century England, 19 Law & Hist. Rev. 38, 38–40, 50–53 (2001). This article did not address the treatment of appeals when the appellor died, but those cases conform to the same pattern.

[41] . Id. at 21–22.

[42] . No inferences should be drawn from the fact that jurors were less likely to convict when the appellor died than when the appellor retracted or decided not to prosecute, because the difference in conviction rates is not statistically significant.

[43] . For an example of such a case, see infra text accompanying note . For a discussion of the high conviction rates in such cases, see Daniel Klerman, The Selection of Thirteenth-Century Criminal Cases for Trial (Jan. 17, 2001) (unpublished manuscript, on file with author).

[44] . Powell, supra note , at 107. See J.G. Bellamy, The Criminal Trial in Later Medieval England 103 (1998). Note, however, that Bellamy believes the purpose of this proclamation was primarily to inform appellors, not victims prosecuting their cases by indictment.

[45] . 1 Close Rolls of the Reign of Henry III, A.D. 1227–1231, at 227–28, 386, 388–89 (1902) (1229 and 1230 jail deliveries); JUST 3/14/1, m. 11 (Devon 1271 jail delivery); 1 The 1235 Surrey Eyre, supra note , at 20.

[46] . See Musson, supra note , at 201–05.

[47] . 2 Bracton on the Laws and Customs of England 403–06 (George E. Woodbine ed., Samuel E. Thorne trans., 1968) (brackets, parentheses, and the items therein are part of Thorne’s translation) (footnotes omitted).

[48] . See Placita Corone or La Corone Pledee Devant Justices 8–9, 16–17 (J.M. Kaye ed., Selden Soc’y, Supp. Series, vol. 4, 1966).

[49] . Id. at 8.

[50] . See id. at 17–22.

[51] . Id. at 19–20.

[52] . 1 Britton 30 (Francis Morgan Nichols trans., Oxford, Clarendon Press 1865).

[53] . Id. at 31 (footnote omitted).

[54] . JUST 1/4, m. 30 (transcription and translation by the author).

[55] . JUST 1/229, m. 16 (transcription and translation by the author).

[56] . Rolls of the Justices in Eyre Being the Rolls of Pleas and Assizes for Yorkshire in 3 Henry III (1218–19), at 300 (Doris Mary Stenton ed., Selden Soc’y, vol. 56, 1937).

[57] . See 2 Pollock & Maitland, supra note , at 628.

[58] . For another example of duplicative testimony, see J.G. Jenkins, Calendar of the Roll of the Justices on Eyre, 1227, at 48, case 527 (Buckinghamshire Archaeological Soc’y, vol. 6, 1942).

[59] . Royal Justice, supra note , at 293, 295, 299, 307, 310, 360–61, 373, 401, cases 348, 351–52, 363, 384, 392, 528, 571, 656. But see id. cases 363, 388, 442.

[60] . 2 Pollock & Maitland, supra note , at 628.

[61] . See David J. Seipp, Crime in the Year Books, in Law Reporting in England 15, 16–17 (Chantal Stebbings ed., 1995). Seipp was kind enough to share with me his list of late thirteenth-century Year Book cases involving crime.

[62] . Y.B. 30–31 Edw. 1, at 529–32 (translation by author). Contrary to the Year Book editor’s suggestion, this case is from the Yorkshire eyre. David Crook, Triers and the Origin of the Grand Jury, 12 J. Legal Hist. 103, 116 n.71 (1991).

[63] . Y.B. 30–31 Edw. 1, at 521, 528–29, 534, 535, 538–39, 541.

[64] . Id. at 541. See 1 Britton, supra note , at 31.

[65] . See Langbein, supra note , at 315.

[66] . See David Crook, The Later Eyres, 97 Eng. Hist. Rev. 241, 246–47 (1982).

[67] . Provisions of Westminster, 1259, 43 Hen. 3, c. 13; Statute of Marlborough, 1267, 52 Hen. 3, c. 18.

[68] . Powell, supra note , at 88–94.

[69] . 25 Edw. 3, stat. 5, c. 3.

[70] . Powell, supra note , at 88–94.

[71] . See Green, supra note , at 369.

[72]. Id. at 370.