or wager of battle. In this institution, in the case of a criminal accusation, the parties in person, at least when they were not incapacitated by age, sex, or physical infirmity, fought with special weapons under the eyes of the court, from dawn until nightfall, or until one was beaten helpless or confessed defeat by crying "Craven." If this result was not reached until the stars appeared, the party who had been adjudged to prove his case lost. In disputes about land a champion might be appointed to take the place of either party, as also where personal participation was, for any of the reasons mentioned above, impossible. Wager of battle was the appropriate mode of proof in trials as to the ownership of land, one of the commonest sources of litigation in medieval England.

41. The inquest.-Fortunately for the future of legal development, these arbitrary and extrarational modes of proof were not resorted to in the administrative work of the Curia Regis. In ascertaining what lands were subject to the royal tax levy, and for how much, a far more efficient means had long been used. This was the inquest, an institution which had come down from the days of the Roman government of France and had been adopted in turn by the Frankish kings and the Norman dukes. The inquest was, in essence, an inquiry conducted by royal officials, originally to ascertain the facts necessary to enable the collection of the royal revenue. These officers had the power to summon before them the leading men of a neighborhood and require from them under oath (whence they were

called jurors) the desired information as to land and chattel ownership and value. An early instance of the fiscal use of the inquest in England was that which had produced the Domesday Book. But even in William I's day the king had turned this rational method of arriving at facts to judicial uses, and had commanded his sheriffs to inquire in particular cases from "the honest men of the vicinage” the facts which would enable him to settle a dispute as to the right of possession of land by one or another of his tenants. What had before been only an occasional use, Henry II now made usual in judicial proceedings where a decision turned upon a question of fact, such as the possession of land, which would be a matter of common knowledge in the neighborhood. By a series of royal ordinances known as assizes, he provided that certain questions of common occurrence in litigation, such as the right to the present possession of freehold property, should be determined by the royal courts and upon the oath of a jury of the neighborhood. Another assize, known as the Grand Assize, gave to a defendant in a suit relating to the ownership of land the privilege of refusing the wager of battle by which the matter would be decided in the feudal court of the overlord of the disputants, and submitting the question which of the disputants had the greater right in the land to a court under royal control, to be settled by a reference to a jury of the county in which the freehold was situated. The advantage of this is graphically put by Glanvil, one of Henry's legal officers and the author of the first general treatise on En

glish law: "So effectually," he writes, "does this proceeding preserve the lives and civil condition of men that everyone may now possess his right in safety at the same time that he avoids the doubtful event of the Duel. Nor is this all; the severe punishment of an unexpected premature death is evaded, or at least the opprobrium of a lasting infamy or that dreadful and ignominious word that disgracefully resounds from the mouth of the conquered champion.'

From the point of view of the king, moreover, these assizes gave him direct control over the most important sources of private litigation, disputes about the possession and ownership of land. They were supplemented by an enactment which provided that no suit as to a freehold should be commenced without the royal permission embodied in what was called a writ of right. These various ordinances of the king sapped the very stronghold of the baronial courts, since it had been of the essence of the feudal tenure of the barons that disputes between undertenants should be decided in the court of the lord of both litigants.

42. The king's peace and the grand jury.—The other field of law which Henry had to control was the prevention and punishment of crime. The machinery of the local authorities for this purpose-the hue and cry after a fleeing suspect, and the appeal of felony brought by a private accuser, were both seriously defective. The outcome of the appeal was likely to be a trial by battle, in which the original offense might be augmented by the wounding or

killing of the accuser. The local courts, moreover, often lacked power either to pursue or to punish a malefactor who refused to submit to their jurisdiction. Henry met the situation by making a wide extension of the king's claims to punish certain wrongs as offenses against the royal honor, and by using the institution of the inquest in this field also for ascertaining the facts as to crimes committed in each neighborhood. At first the men summoned merely answered under oath the inquiry as to what crimes had been committed and who had committed them or were generally suspected to have done so. In other words, they presented to the king's officers the information current in the neighborhood as to suspects, but did not pass upon their guilt or innocence. They were really an accusing jury, and their responses constituted an indictment which had to be followed by a trial-unless, indeed, the suspect was already of bad reputation, in which case he was punished as a felon on the mere indictment; the punishment including both mutilation and forfeiture of goods to the king. It was not until later times that there developed from this germ a separate trial jury in criminal cases.

Successive ordinances extended the list of the wrongs which the king treated as in a special sense wrongs against him. Treason, murder, robbery and theft, and later arson and false coinage, were offenses which the king asserted his right to punish in his own court by forfeiting the criminal's goods as well as inflicting death or mutilation upon him or banishing him from the realm. The vigor and

efficiency of the royal criminal justice naturally tended to reduce the appeals of felony by which private individuals sought vengeance in the local courts, and thus the conception of the crown as the guardian of the social interest in peace and order, the root of a genuine criminal law, was made familiar to the English mind.

43. The writ process.-Henry drew litigation into the royal courts not only by substituting an efficient mode of trial for the obsolete methods of the local courts, but also by providing for his own tribunals a better preliminary process for securing the attendance of the defendant. The older courts, as we have seen, left this task to the plaintiff; and moreover they made his performance of it difficult by prescribing with much detail the procedure he must follow to entitle him to use any force to compel his adversary's compliance. But if a man sought the aid of the King's Court, Henry lent him the power of the royal officers to bring his adversary before the judges. Here again he turned the administrative machinery of the Curia Regis to judicial ends. The king's writ, a writing from the king, was the regular means by which the court as an administrative body had directed the action of the royal officers. Now, if a man presented a good case to the King's Court, a writ issued from the chancery, one of its offices, but signed with the king's sign manual, directing the sheriff to summon the defendant into court. This royal summons no one would lightly disobey. A second value of the writ lay in the very fact that it was a written document. The