In the first half of the nineteenth century, a model of legal education called “legal science” became prominent in American universities. The idea of teaching law as a science was not new in American education. In 1823 Timothy Dwight wrote that Tapping Reeve, at Litchfield, taught law “as a science, and not merely nor principally as a mechanical business; nor as a collection of loose independent fragments, but as a regular well-compacted system.” Dwight, however, used “science” in its older sense of an organized body of knowledge rather than in its emergent sense as a method characteristic of the study of nature. Similarly, James Kent and Joseph Story, Francis Hilliard, and Silas Jones all thought of themselves as approaching law as a science, but what they meant was that law was an outgrowth of the moral sciences.

Although it is well known that the criminal law's administration in nineteenth-century England altered decisively, little important change has been noted in the substantive criminal law. Yet change there was, but produced less through legislation (as was much administrative change) or even appeals court rulings than through everyday criminal justice practice. In particular, the effective meanings of legal terms central to the prosecution of homicide—terms such as provocation, intention, and insanity—were in motion during the nineteenth century as part of a broader redefining and reimagining of liability and responsibility. To grasp these often subtle shifts of meaning, we must look to the sites in which they occurred, the most important of which were the courtrooms of the assize courts, where the most serious offenses were tried.

In the early modern era, the business of England's criminal courts was founded upon charges brought and prosecuted by private individuals. And, as the English realized, private prosecutors posed a problem: how could the English ensure that private individuals would spend their own time and their own money in prosecuting an offender who had committed an offense against the peace of the realm? Parliament's solution was to proffer the carrot: sixteenth-century statute decreed that his prosecution of the thief was, in itself, action sufficient for the owner of stolen goods to recover those goods, while from 1692, statutes offered rewards to successful prosecutors of highway robbers, burglars, coiners, and other specified offenders. In contrast, England's magistrates wielded the stick, binding a plaintiff bringing an accusation of felony to prosecute an indictment against the alleged felon. As a result, private prosecutors of major offenses were both bribed and compelled to prosecute. Private prosecutors of more minor offenses were neither bribed nor compelled to prosecute, and yet they did, nonetheless, prosecute indictments. Why?

The origins of trial by jury have been the subject of an extensive debate. The traditional approach to the creation of the “palladium of liberty” saw the jurors as lay judges and located their origins in the lay judges of Anglo-Saxon England, continuing through the survival of the “ancient constitution.” An alternative approach, that of Heinrich Brunner, found wide acceptance from the end of the last century and until recently. Brunner detected the origins of the jury in fiscal inquiries imposed by strong monarchs, reversing the constitutional politics of the older view. At present, the wheel has turned back toward judicial character and origins in general early medieval practice. The purpose of this article is to take a new look at the issue by approaching it from a different angle: the requirement that jurors should come de vicineto, from the locality. This approach has produced the following observations.

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.

Mike Macnair's deeply learned and profoundly subtle article 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.

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 altogether the relevance of Anglo-Saxon practice or strong government (Wormald)—though I am pretty skeptical of the specific Carolingian-Norman lineage proposed by Brunner.

The Internet poses a massive problem of making sense out of information. Two movements are taking place, side by side. On the one side, since the entry costs are very low, vast amounts of information of enormous variability in quality and value are being dumped on the virtual market. On the other side, to make some sense of it, “search entrepreneurs”—Excite, Yahoo, AltaVista—strive valiantly to create automated engines that will retrieve what we want when we want it. They succeed very imperfectly. One or two keywords are a very crude way to capture meaning of any complexity or nuance.