Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/131

 4. GREEN: HENRY II 117 by the method of recognition, which undoubtedly provided a far better chance of justice to the suitor, replacing as it did the rude appeal to the ordeal or to battle by the sv/orn testimony of the chosen representatives, the good men and true, of the neighbourhood. But the custom was not yet governed by any positive and inviolable rules, and the action of the King's Court in this respect was imperfectly devel- oped, uncertain, and irregular. It is scarcely possible, indeed, to estimate the difficulties in the way of justice when Henry came to the throne. The wretched freeholders summoned to the Shire Court from farm and cattle, from mill or anvil or carpenter's bench, knew well the terrors of the journey through marsh and fen and forest, the dangers of flood and torrent, and perhaps of outlawed thief or murderer, the privations and hardships of the way; and the heavy fines which occur in the king's rolls for non-attendance show how anxiously great numbers of the suitors avoided joining in the troublesome and thank- less business of the court. When they reached the place of trial a strange medley of business awaited them as ques- tions arose of criminal jurisdiction, of feudal tenure, of English " sac and soc," of Norman franchises and Saxon liberties, with procedure sometimes of the one people, some- times of the other. The days dragged painfully on, as, without any help from trained lawyers, the " suitors " sought to settle perplexed questions between opposing claims of national, provincial, ecclesiastical, and civic laws, or made arduous journeys to visit the scene of some murder or out- rage, or sought for evidence on some difficult problem of fact. Evidence, indeed, was not easy to find when the ques- tion in dispute dated perhaps from some time before the civil war and the suppression of the sheriff's courts, for no writ- ten record was ever kept of the proceedings in court, and everything depended on the memory of witnesses. The dif- ficulties of taking evidence by compurgation increased daily. A method which centuries before had been successfully ap- plied to the local crimes of small and stationary communities bound together by the closest ties of kinship and of fellow- ship in possession of the soil, when every transaction was