The connection between the jury system and land distribution is much closer than either of you might have thought.
I didn't jump into this earlier because I didn't feel like amending Justin's thumbnail history of the jury system with complications.
In fact the standard story that we learn in law school is much as Justin put it
On 5/16/06, andie nachgeborenen <andie_nachgeborenen at yahoo.com> wrote:
> The jury is mainly a common law institution. In the
> form we are familiar with it derives from the practice
> that replaced the trials by combat (for nobles),
> trials by ordeal (mainly for commoners) and other
> appeals to God. This was in the 1180s, roughly, under
> Henry II.
But that standard story gives too much emphasis to the English common law tradition and to the older trials by combat. The jury system as we know it actually derives from Franco and Norman procedures of inquest. (Going further back than 700 AD a lot of this is complicated by the influence of Roman Law on the Gauls, but that is another question lost in history.) Frankish emperors and kings summoned inquests of neighbors from about the 8th century onward. The inquests were held in front of traveling royal officers. These inquests heard questions about the status of royal rights and of violations of royal commands. The inquests was always before local people in the neighborhood and 12 was usually tjhe magic number of people summoned to sit on these inquests. These inquests would be considered "civil" in nature today since they had a lot to do with deciding local "rights" including what we would call property rights. Only in the church trials were the inquests before groups of 12 allowed to decide guilt or innocence. Justin mentions Henry II but in Normandy Henry's father, Geoffrey of Anjou, urged that important civil trials come before inquests of 12 neighbors. This was an important form of local "accounting" or justice from the 8th century until the 12th when Henry ii systematized the process.
In relation to what Jim said their are some important points to be made between the beginnings of the jury system and property relations.
Looking closely at the beginnings of jury trials in the inquests of twelve neighbors, one can begin to understand the reason why they were much preferred by the King. William the Conqueror used inquests to compile the Domesday Book, neighborhood by neighborhood. This use of the inquest essentially made the inquest common. The connection between inquest and property rights can be seen clearly in how this survey was conducted. But it also helped to establish connections between William and the common people, below the feet of former rulers. The reasoning here is that a representative of the King combined with a local group of neighbors would know the neighborhood better than the Lord, who might not be trusted.
Now here is where the complications come in:
Henry II developed a system of writs that I won't go into here: But the judicial writ when introduced by Henry was used not to execute a royal order, but to summon an inquest to decide particular property questions. What Henry did that was an innovation was to combine the writ system with the inquest-jury system. Community participation to decide questions of property both legitimized Henry and cut across the power of his Lords. In other words, in the introduction of the jury system under Henry II we see a classic example of class struggle and the struggle between orders. What the judicial writ allowed was for the calling of the inquest to settle the immediate question of possession possession and use of land. The questions would be decided by 12 locals of the neighborhood. The question of ownership would be decide later and elsewhere, sometimes never and nowhere. The writ combined with the jury gave royal jurisdiction over the inquest proceedings thus using common people against the Lords who would have otherwise decided the questions of possession and ownership.
Harold Berman sums this up in one paragraph:
-- "Four important points should be noted here. First, the regular use of a small group of neighbors to decide cases before royal judges first emerged in English law, in civil cases, and only two generations later was it taken into criminal law. Second, the inquest did not hear evidence, but answered a question or questions of fact on the basis of what it knew prior to the presentations at trial. Third, because the jurors, who were neighbors and had had advance notice of the questions that would be put to them when the justices visited, were able to give answers without a time-consuming process of interrogation of witnesses at trial, it was possible for a few justices -- twenty-five in all ...- to handle all the judicial business of the entire country. Fourth, the decision of cases by jury verdicts of the local population, under the direction of royal justices, was a politically palatable alternative... to the decision of cases by local and feudal assemblies." p.449
On 5/17/06, Jim Devine <jdevine03 at gmail.com> wrote:
> Someone (Doug?) wrote: >>>>The bourgeoisie would never go for a jury
> system if it were designing things today.<<<
>
> andie nachgeborenen wrote:>>>The jury system was developed at a time
> when things were a lot less democratic than they are now. . .<<<
>
> I wrote: >> grassroots democracy -- as opposed to central-state
> democracy -- is very old. Back in English pre-capitalist times in
> English agriculture, for example, communities would regularly
> redistribute land among themselves in order to maintain equality.
> (This was despite the top-down system of feudalism, etc.) Of course,
> it wasn't perfect (being combined with patriarchy, etc.), but neither
> is the parliamentary democracy of today.<<
>
> andie nachgeborenen now writes:> You can't seriously be suggesting
> that the England of the 12th century was as or more democratic as the
> contemporary US.
>
> no, I distinguished between decentralized (local) democracy at the
> grassroots and centralized (state, parliamentary) democracy. My point
> was simply that local democracy can exist even in a feudal system. But
> even at the local level, there is probably more democracy now than in
> the 12th century. However, communities are often so atomized these
> days that local democracy may be effectively irrelevant (except in
> crisis times, e.g., when someone wants to put a toxic waste dump in
> the neighborhood). The 12th century communities were more like
> extended families or "tribal" organizations (alliances of extended
> families), though of course they weren't formalized with laws and the
> like.
>
> AN writes: >I'd like to know more about this supposed redistribution
> of land, considering that real estate -- so called because in them
> days that was the "real" basis of wealth -- was perhaps the single
> thing most closely monitored by the nobility. Possible serfs and the
> yeomanry informally redistributed the land that they held from the
> Lords.<
>
> The nature of land-ownership was very different than nowadays, being
> merged with politics. The Duke was not only your boss or landlord
> (some of the time) but also your political/judicial leader. The lord
> would "control" an area (under the delegated authority of the King),
> while usually restricting the mobility of producers out of the area.
> The lords did not just control the land; they also were able to draft
> or volunteer its inhabitants to fight in wars, both in England and on
> the Continent. (By the way, just as the producers were most often tied
> to the land, so was the lord. The duchy could not be sold.
> Surrendering the land would mean loss of one's title.)
>