Page:Harvard Law Review Volume 5.djvu/267

251 THE JUR T AND ITS DE VEL OPMENT. 2 5 I Only the crown, the royal or ducal power, could have accom- plished so great an innovation as this (Brunner, Schw. 255- 62). The popular courts were hopelessly caught in the web of custom ; within narrow limits they moved forever round and round in the ancient track. The crown alone could compel parties who wished to abide by the old formal procedure to give it up, or enforce the attendance of the community witnesses who made up the inquest, or compel them to take an oath. The popular law had left it to the parties to produce their witnesses ; and the maxim that only royal authority could require a man to take an oath was what made and kept trial by jury the special possession of the royal courts. Only such as received the power by delegation from the crown, as the Church, great men, or royal officials presiding over popular courts, could try in this way. All this is but an il- lustration of the fact, as Maine has said (Early Law and Custom, c. vi.), that in early times the king was the great law-reformer. Beginning as an aid and supporter of the popular courts, enforcing their decisions, and exercising an " ultimate residuary authority " in correcting their errors, the king administered " that royal justice which had never been dissociated from him . . . [and] was ever waxing while the popular justice was waning. ... In those days whatever answered to what we now call the spirit of reform was confined to the king and his advisers ; he alone introduced com- parative gentleness into the law and simplified its procedure. . . . [This] was once the most valuable and indeed the most indispen- sable of all reforming agencies ; but at length its course was run, and in nearly all civilized societies its inheritance has devolved upon elective legislatures." 2. In the latter half of the eleventh century the Normans brought a strong type of this royal power to England. They brought also the inquisition. Through the whole of the next century and more, the growth and use of it in the Norman dominions on both sides of the channel were much the same. But from the beginning of the thirteenth century, when John lost his southern territory to the French, the inquisition, mainly dying slowly out in France, began its peculiar, astonishing development in England. In trying to follow its English history we remark at once that for more than a century there is little clear, authoritative information. We get our knowledge mainly from the scattered accounts of cases in Doomsday Book, and in Chronicles and