Abstract

This work traces the formation, development, and demise of a doctrine that allowed an alien party, in a lawsuit against a native, to have a jury composed half of alien, as opposed to native, jurors. It looks at who counted as an alien, both for the purpose of claiming such a jury and for the purpose of serving on such a jury, and finds that, over time, the meanings of "alien" changed. Such changes point to changes in our conceptions of membership in a political community, a community represented by the jury. ;The work concerns itself with three major issues: the identity of the self and the other, the nature of law, and the limits of human knowledge. The history of the mixed jury reveals the development and limitations of modern positivist understandings of these issues. It tells a history of the disappearance of law as practice or as a way of life. ;From a practice in which "others" were recognized as community members entitled to their own law, the mixed jury, through statutory declaration, became doctrine. As official doctrine, the mixed jury no longer embodied a principle of personal law, but pointed to the king's assumption of authority over law. In the sixteenth century, the "countryman" link between the alien party and alien jurors was broken, and alien jurors no longer had to come from an alien claimant's community. The new relation between the alien party and alien jurors was "impartiality." Impartiality, however, suggested no reason to favor aliens over natives by providing the former with special juries. The loss of difference between aliens and natives that accompanied impartiality was reflected by the 1870 abolition of the mixed jury. ;Earlier, knowing what to do, or law, was truth, the truth of one's community, a community among others. Today, the truths and laws, if there are any, in texts about modern American jury law, are the empirical facts of social scientific research. From members of a community, we, and the other, have become interchangeable parts of a population