the country was rescued only by the superior ability of Henry II. And yet to the strong political and administrative organization which William and Henry I gave to England was due the survival of the idea of law and order through this troubled time. The Normans had created a state. It remained for the Angevins to turn the state into the service of a realm-wide justice: to make the state, in other words, the efficient protector of the whole of the society under its sway.

CHAPTER VI.

THE MAKING OF THE COMMON LAW.

38. The work of Henry II-In general.-The development of English law owes more, perhaps, to the administrative genius of Henry II (1154-1189) than to the contribution of any other man in its history. Taught by the shameful lawlessness and disorder of Stephen's reign the absolute necessity of a strongly centralized organization of the government to maintain the supremacy of the kingly power, Henry found in the King's Court his most effective means of securing this end. In certain fields of operation the central government must have direct control, or it could not endure. In the first place, the crown must control the land, for the land was the source of the royal revenue and the basis of the whole political structure of a feudal monarchy. Moreover, the crown must assert and establish its right to punish violence and maintain order, or the country would relapse into the anarchy from which it had just emerged.

39. The crown, the Church, and the barons.-The powers which chiefly menaced the supremacy of the crown in these fields were the Church and the barons. These owed much of their strength to the courts in which they administered justice. To weaken the influence of these tribunals was Henry's first task. The conclusion of his long struggle with Arch

bishop Becket, the head of the Church in England, was marked by the king's enactment known as the Constitutions of Clarendon (1164), ordinances which restricted materially the jurisdiction permitted to the ecclesiastical courts. The contest against the baronial jurisdiction was more prolonged, but on the whole more permanently successful. The king's method was partly repressive, but still more competitive. Instead of keeping the King's Court concerned merely with the disputes of the great lords and difficult of access to the common man, he threw it open to a wide variety of litigation, and by his plan of judicial itineraries brought it to the door of every Englishman, a rival of the local court bidding for lawsuits with an offer of speedier and surer justice.

40. The older modes of trial.-Henry's advantage over the local courts lay in great part in the superior machinery of his own tribunal, already developed in the administrative practice of that body. The local courts retained the historic modes of trial developed in the popular courts. That is, the judgment of the assembled freemen in these courts did not profess to determine the truth of a controversy. That, they felt, was a matter often beyond human power to ascertain. The judgment they rendered merely decided how one or the other party to the suit should prove his case; the three main methods in vogue being proof by oath, by ordeal, and by battle. All were appeals to the justice of God to manifest the right. In proof by oath, called wager of law, the man called upon to prove might sometimes swear to his claim or clear himself of the charge against

him by his unsupported oath. Oftener he was required also to bring a certain number of other men, called compurgators (oath helpers), who would swear that the oath he had sworn was clear and unperjured. In a conflict of sworn testimony men believed that God would vindicate the right. As Maitland drily says, "It is common knowledge that those who perjure themselves are often struck dead or reduced to the stature of dwarfs, or find that they cannot remove their hands from the relics they have profaned." 18

The ordeal was the commoner mode of proof in cases of crime. Various forms were prescribed for different classes of men-the ordeal by cold or hot water for the lowest or servile classes, by hot iron for lay freemen, or by morsel for the clergy. In essence the ordeal of whatever kind was a requirement that the person remitted to proof by its means should successfully invoke the Divine interposition on his behalf. Thus, in the ordeal by fire the man decreed to prove his case must lift a red-hot piece of iron, weighing a pound or more, and carry it in his bare hand three paces. His hand was then wrapped in clean linen for three days, and when unwrapped must be well healed. It is clear that without a friend at court a remission of the accused to the ordeal was practically equivalent to his conviction.

To these forms of proof familiar to the AngloSaxon courts the Normans added another of essentially similar sort, which they brought with them from France-the institution of the judicial combat 18 Maitland, Collected Papers, vol. II, p. 447.

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