Page:Harvard Law Review Volume 5.djvu/272

256 HAR VARD LA W RE VIE W. year 1152. 1 This work lay in establishing it as a right to have this method of proof in certain classes of cases, and in making it obligatory. Before this, it had been granted merely as matter of royal favor in particular instances ; it now became, in some cases, matter of right to have the king's writ ordering it. 2 The phrase now became "recognition" rather than "inquisition," — the two terms in reality importing two aspects of the same thing, one, the inquiry, the other, the answer. These " recognitions " were so many new modes of trial on par- ticular questions, established by a dead lift of royal power. In the case of the "great assise" this trial was optional with the tenant, but not with the demandant. As regards the other recog- nitions they were required, in specified sorts of cases, — equally obligatory upon both parties. In theory, such recognitions might have been established in other cases, e. g., in criminal matters, by the same authority. If one should be inclined to wonder why this was not done he should bethink him of the extraordinary nature of the actual achievement. The real wonder is that so much was done ; for the introduction of a compulsory procedure of this sort was very foreign to the conceptions of the older law. By that, men had "tried " their own cases. To put upon a man who had the right to go to the proof, instead of the probatio, defencio, purgatio, of the older law, where he produced the persons or the things that cleared him, the necessity of submitting himself to the test of what a set of strangers might say, witnesses selected by a public officer, — this was a wonderful thing. 3 It was a portentous thing that any ruler should set himself above the old lex et consuetudo. Nearly a century and a half later, where we find the king claiming this power, we see also how firmly he is resisted. In 1 291-2 it was sought, in ascertaining certain facts, to put some great men to their oath. They all 1 Brunner, Schw. 300—304. Brunner here makes the interesting remark that " the need of innovations must have already made itself felt, for the reason that a dangerous rival to the rude and inelastic procedure of the temporal courts was growing up, in the canon law. ... It may be therefore be regarded as no mere coincidence that Henry II., the reformer of procedure, was the man who first succeeded in forcing the ecclesiastical jurisdiction into narrower limits." See the remark of Bereford, J., in 1303 (Y. B. 31 Edw. I., 492). 2 Brunner, Schw. 304-5. 8 A friend reminds me of the many proofs, such as outlawry and distress, that survived even to modern times, of the inability of the old law to compel a man directly to submit to judicial authority.