As the fittest it survived. existence after the Conquest, and took its place in the procedure of the local courts alongside of compurgation, witnesses, documents, ordeal, and battle. How in the process of time and of growth this new method of trial gradually superseded or absorbed all other methods of trial which had prevailed in the popular courts is a question full of interest, but one which belongs to the history of legal procedure. Suffice it here to say that such was the final result of the development of the jury in England, where, rather by the silent force of its own. intrinsic excellence than by the artificial stimulus of legislation, it gradually overshadowed and exterminated all other methods of trial which had ever been employed for the settlement of issues in which disputed facts were in question. By the force of the law of natural selection it outlived them all, as the fittest it survived. First employed in suits in which rights to land were in question, the jury was gradually extended by the judges to the trial of other civil causes in which rights to land were not involved. The decree of the Lateran Council which led to the abolition of trial by ordeal paved the way for the introduction of the trial jury into criminal procedure. After ordeals were abolished in England, no way remained of traversing the presumption of guilt which arose out of the accusation made by the jury of presentment. To remedy the evil by giving to the accused his constitutional right to traverse in some form the presumption of guilt raised against him, trial by petty jury was gradually introduced in criminal cases.1 Long after the jury had thus worked its way to a position of supremacy in both civil and criminal causes, some of its older rivals lived on in neglect and obscurity until finally abolished by statute in the present century. As late as 1818, in the case of Ashford v. Thornton, before referred to, the judges held, after solemn argument, that trial by battle in appeals of murder was still a part of English criminal procedure: this decision led to its abolition in the following year.2 In the case of King v. Williams, which occurred in 1824, the ancient method of trial by com. purgation, in the form of "wager of law," was for the last time actually put in force; ten years later a statute ended 1 See above, p. 310. 2 See above, p. 311. 3 Probably the last case in which it was employed was that of King v. its existence. As all other methods of trial except trial by jury gradually fell into disuse, and as the king's courts held in the shires were gradually relieved of all fiscal and administrative work, the county parliaments, which were originally convened to meet the itinerant justices, were slowly transformed into the modern courts of assize, in which the itinerant justices still preside, but in which the general assembly of the shire is represented only by the grand and petty jurors summoned by the sheriff for the dispatch of the civil and criminal business to be disposed of. Williams, 2 B. & C. 538. "Wager of law" was abolished by 3 & 4 Will. IV., C. 42, § 13. Cf. Stephen, Hist. Crim. Growth of the royal authority after the Conquest. CHAPTER IV. THE WINNING OF THE CHARTERS. 1. In the two preceding chapters the attempt was made to emphasize the fact that, although the Norman conquest brought with it a change of dynasty, the establishment of a new nobility, and a sweeping confiscation through which most of the great estates were transferred from English to Norman hands, yet that it did not involve the displacement of the English nation, nor a wiping out of the immemorial laws and political institutions of the conquered race. The Old-English system of local, self-governing communities survived; and upon that tenacious system as a substructure the Norman system of central administration was superimposed. During the four Norman reigns, upon the immutable foundations of Old-English local freedom was organized a vigorous system of central administration with the source of its strength in the royal authority. How the royal authority itself was strengthened and consolidated through the results of the Conquest has already been explained in the review which has been heretofore made of the double origin of William's kingship. It was no part of the Conqueror's plan to remain simply a military chieftain wholly dependent upon the jealous and exacting host by whose aid the Conquest had been accomplished. With the prescience of a statesman, he claimed to be the ruler of a nation in which Norman and Englishmen were alike his subjects, and as such ruler he claimed the possession of every royal right that had ever belonged to any of the kings who had gone before him. The sum of royal power which thus accrued to William as a national king was augmented by the addition of every feudal right which tended to increase the royal revenue or to strengthen the royal authority. As a national king, William claimed every kind of revenue, ordinary and extraordinary, which had ever belonged to any of his English predecessors. As feudal lord, William firmly established the doctrine that he was the supreme landlord, and that all lands were held by grant from him. All landowners thus became tenants of the king, and under William's successors the feudal revenue which accrued from this source was enormous.1 finance. In order to exercise the vast powers, and to discharge the Centralization of jusendless and intricate duties, which the growth of the royal tice and power after the Conquest thus concentrated around the person of the king, it became necessary for the crown to organize, out of the main body of the great council, a smaller body which could be charged under the king's direction with the whole work of central or national administration. During the reign of Henry I. this inner council, known as the curia regis, was organized by Bishop Roger of Salisbury into a strong judicial and ministerial body, whose methodical procedure imposed upon the despotic powers of the crown the restraints at least of administrative routine. In this reign the financial side of the curia, now called for the first time the exchequer, was definitely organized, and before it the whole financial administration of the kingdom passed in review.2 The vast power thus consolidated in the hands of the crown through the centralization of finance was soon augmented by the centralization of justice. Not until after the Norman conquest did the tendency in that direction grow strong enough to enable the king's court seriously to encroach upon the ancient local and popular courts. Not until the principle was firmly established that the king was the fountain of justice, and that all courts were the king's courts, did it become possible for the king to invade with his writ any jurisdiction and to withdraw from it any cause whatsoever. Through the instrumentality of the writ process in its various forms, the curia regis persistently encroached upon the popular and franchise courts, until the main body of judicial business was finally withdrawn from them into the royal tribunals. This vast concentration of powers around the person of the king, this constant withdrawal of jurisdiction from the local and popular courts into a single central and royal court, 1 As to the double origin of William's kingship, see above, pp. 232-234. 2 As to the growth of the inner council, see above, p. 242. 8 For the history of the centralization of justice, see above, p. 257. character of for the charters. naturally and necessarily resulted in vesting in the Norman. system of central administration as embodied in the crown an abnormal preponderance both in power and authority. Out of this condition of things arose the gravest political problem to which the constitutional growth of the English nation has ever given birth. That problem was so to limit the royal authority, so to combine the vigorous Norman system of central administration with the laxer system of Old-English local freedom, as to preserve the counterpoise between the two, and at the same time retain in the new combination the Origin and strongest elements of both. In the effort to work out this the struggle result the prolonged and bitter struggle for the charters had its birth. But it must not be supposed that the leaders in this struggle upon the part of the nation against the crown were political theorists intent upon bringing about a readjustment of the forces of government upon abstract lines to be drawn in paper constitutions. They were practical statesmen and patriots intent upon the redress of existing evils by winning back under new forms a part at least of the ancient freedom which the nation as a whole had lost. The struggle for the charters did not grow out of any vague apprehension of possible evils which might arise out of the unequal adjustment of the Norman system of central administration to the Old-English system of local freedom embodied in the township, the hundred, and the shire. Neither did it grow out of the mere possession, by wise and politic princes of the type of Henry I. and his grandson Henry II., of vast and unlimited powers which were never deliberately employed for purposes of oppression merely. Not until the grinding weight of the central and royal authority was actually and wantonly applied by careless despots to the oppression of all classes and conditions of men did the collective people, in the persons of the three estates, rise up as one man to grapple with the crown in a struggle for the establishment of rights which were made eternal. The two parties to the contest, whose history is now to be recounted, are therefore the central or royal authority upon the one hand, and the nation, marshalled in the ranks of the three estates, upon the other. 2. Having briefly reviewed the growth of the royal authority, it next becomes necessary to summarize the causes which |