Page:Harvard Law Review Volume 5.djvu/280

264 264 HAR YARD LA W RE VIE W. things. A student is struck at once with the rapid growth of the new mode of trial during the next century. The evil practice of exacting a large and uncertain fee for granting a recognition, even when it was matter of right, 1 which continued throughout the twelfth century, was forbidden by John's Magna Carta, in 121 5. The Barons had demanded in their "Articles," 2 Ne jus vendatur, vel differatur vel vetitum sit ; and in art. 40 of the Charter the king had promised " Nulli vendemus, nulli negabimus aut differe- mus rectum aut justiciam. Then the multiplication, in civil cases, of new writs and forms of action available as of right, and all of them calling for a trial by jury, gave it a great increase. As to the king's right to issue new writs, the abridgment of the right in 1258, and the enactment in 1285 of that fruitful provision (St. Westm. II. c. 24) whereby the clerks in chancery were empow- ered to issue new writs in consimili casu, — authorizing actions on the case and providing the channels through which a vast propor- tion of the flood of subsequent litigation has flowed, — I can merely allude to these things. 3 Even without all this and before it, there had been an extraordinary growth ; for instance, tres- pass, occasionally resorted to in John's reign or earlier, 4 became apparently a writ of course about the middle of the thirteenth century ; such, at any rate, is the opinion of some of our best scholars. 5 In this, as well as in all cases which were not covered by established rules, the jury was the mode of trial. "And since in a plea of trespass the defendant can hardly escape making his defence by the country, the justice, by consent of parties, shall make inquiry of the truth by lawful inquest," says the Statute of Wales in 1284 (c. xi.). 6 "To avoid the perilous risk of battle it is better to proceed by our writs of trespass than by appeals," says Britton (A.D. 1291-2). 7 In 1304 (Y. B. 32 & 33 Edw. I. 1 Big. Hist. Proc. 187-90. a No. 30; Stubbs, Charters (6th ed.), 293. 8 See Big. PI. A. N. Introd. xxviii-xxx. * Big. Proc. 1 60. 6 Professor Ames in Harv. Law Rev. Hi. 29, note; confirmed by Professor Maitland in his valuable article on the " Register of Original Writs," ib. 177-9, 217: " At the end o the Baron's war ... we suddenly come upon a large crop of such actions." 6 1 St. Realm, p. 66. 7 f. 49; Nichols, i. 1 23. A learned friend suggests that by the middle of the thirteenth century there were no cases where a defendant on his trial might not regularly have a jury if he applied for it, and no case where a plaintiff might not have it except debt, detinue, and the grand assise, — allowing, of course, for situations where documents were the proper mode of trial.