CHAPTER EIGHTEEN.
Recogniciones de nova dissaisina, de morte antecessoris, et de ultima presentacione, non capiantur nisi in suis comitatibus et hoc modo; nos, vel si extra regnum fuerimus, capitalis justiciarius noster, mittemus duos justiciarios per unumquemque comitatum per quatuor vices in anno, qui, cum quatuor militibus cujuslibet comitatus electis per comitatum, capiant in comitatu et in die et loco comitatus assisas predictas.
Inquests of novel disseisin, of mort d’ancestor, and of darrein presentment, shall not be held elsewhere than in their own county-courts,[[547]] and that in manner following,—We, or, if we should be out of the realm, our chief justiciar, will send two justiciars through every county four times a year, who shall, along with four knights of the county chosen by the county, hold the said assizes[[548]] in the county court, on the day and in the place of meeting of that court.
Provision is thus made for holding before the king’s travelling justices, frequently and in a convenient manner, three species of judicial inquests known as “the three petty assizes.” These are of exceptional interest, not only in relation to Magna Carta, but from their intimate connection with several constitutional problems of prime importance; with the reforms of Henry II. on the one hand, and with the genesis of trial by jury and of the Justices of Assize on the other.
I. The Curia Regis and the travelling Justices. From an early date, certainly from the accession of Henry I., it was the Crown’s practice to supplement the labours which its officials conducted within the precincts of the royal exchequer by the occasional despatch of chosen individuals to inspect the provinces in the royal interests, collecting information and revenue, and, incidentally, hearing lawsuits. Justice was thus dispensed in the king’s name by his delegates in every shire of England, and a distinction arose between two types of royal courts: (1) the King’s Council and its offshoots (including the three courts of common law and the court of chancery) which at first followed the king’s person, but gradually, as already shown,[[549]] found a settled home at Westminster; and (2) the courts of the itinerant justices which exercised such delegated authority as the Crown chose from time to time to entrust to them. The natural sphere of the labours of these royal commissioners as they passed from district to district was the court of each shire, specially convened to meet them. They formed in this way the chief link between the old local popular courts and the system of royal justice organized by Henry II.,[[550]] subordinating the former to the latter, until the county courts virtually became royal courts. These travelling justices passed through two stages, two different types receiving royal recognition at different periods, the Justices in Eyre and the Justices of Assize respectively.
(a) The Justices in Eyre were the earliest form of travelling judges, though their original duties were rather financial and administrative, than strictly judicial. Their history extends from the reign of Henry I. to the end of the fourteenth century.[[551]] Their outstanding characteristics were the sweeping nature of the commissions under which they acted (ad omnia placita), the harsh and drastic way in which they used their authority, and their intense unpopularity. Their advent was dreaded like a pestilence: each district they visited was left impoverished by fines and penalties. On one occasion, the men of Cornwall “from fear of their coming, fled to the woods.”[[552]]
An eyre was only resorted to at long intervals—every seven years came to be the recognized term—and was intended as a severe method of punishing delinquencies and miscarriages of justice occurring since the last one, and of collecting arrears of royal dues. It was not a visit from these universally-hated Justices of Eyre that the barons in 1215 demanded four times a year.
(b) The Justices of Assize were also travelling judges, but in their original form at least, possessed hardly another feature in common with the Justices in Eyre. Their history extends from a period not earlier than the reign of Henry II. down to the present day.[[553]] They seem to have been popular from the first, as their primary function was to determine pending suits by a rational and acceptable form of procedure; while the scope of their jurisdiction, although gradually extended as their popularity increased, was at all times limited strictly by the express terms of their commissions. They were regarded not as royal tax-gatherers armed with harsh powers of coercion, but as welcome bearers of justice to the doors of those who needed it.
At first their duties were confined to one species of judicial work, namely, to presiding at enquiries of the kind specially mentioned in the text. These particular inquests were known as “assizes,” and the new species of travelling judges were hence called “Justices of Assize,” a name which has clung to them for centuries, although their jurisdiction has been gradually increased till it now includes both civil and criminal pleas of every description, and although meanwhile the invention of new forms of process has superseded the old “assizes,” and at last necessitated their total abolition.[[554]] They are still “justices of assize” in an age which knows nothing of assizes.
II. The Nature and Origin of the three Petty Assizes. The institution of the "assizes"—particular forms of the sworn inquest—occupied a prominent place among the expedients by which Henry II. hoped to substitute a more rational procedure for the form of proof known as trial by combat.[[555]]
The duellum, introduced at the Norman Conquest, remained for a century thereafter the chief method in use among the upper classes for determining all serious pleas or litigations. Gradually, however, it was confined to two important groups of pleas, one civil and the other criminal: namely, appeals of treason and felony on the one hand, and suits to determine the title to land on the other.[[556]] This process of restriction was accelerated by the deliberate policy of Henry II., who attempted, indeed, to carry it much further, devising machinery which provided for the defendant or accused party, wherever possible, an option by resorting to which he could, in an ever increasing variety of circumstances, escape trial by battle altogether. Under chapter 36 will be explained the expedient adopted for evading combat in an appeal of treason or felony. The present chapter relates to the procedure devised by Henry for superseding the duellum in certain important groups of civil pleas,[[557]] and incidentally affords proof that this part of his reforms had already become popular with the opponents of the Crown. The frequent use of the three Petty Assizes was now insisted on, although the Grand Assize was still viewed askance for reasons to be explained in connection with chapter 34.
(1) The Grand Assize is not mentioned in Magna Carta; but some acquaintance with it is a necessary preliminary to a proper appreciation of the Petty Assizes. In the troubled reign of Stephen—which was rather the reign of anarchy in his name—lands changed hands frequently. This left to his successor a legacy of quarrels, too often leading to bloodshed. There was hardly an important estate in England to which, at Henry’s accession, two or more rival magnates did not lay claim. Constant litigations resulted, and the only legal method of deciding the issue was the duellum.
At some uncertain date, near the commencement of his reign, Henry II. introduced a startling innovation. The holder of a property de facto (that is the man in actual enjoyment of the estate in virtue of a bona fide title), when challenged to combat by a rival claimant was allowed an option: he might force the claimant (if the latter persisted) to refer the whole matter to the oath of twelve knights of the neighbourhood. Henry’s ordinance laid down careful rules for the appointment of these recognitors. Four leading knights of the whole county were first to be chosen, on whom was placed the duty of selecting twelve knights of the particular district where the lands lay, and these, with all due solemnity and in presence of the king’s justiciars, declared upon oath to which suitor the lands belonged. Their decision was final, and determined the question of ownership for all time coming.[[558]] The name Grand Assize was applied alike to the procedure and to the knights who gave the verdict. The twelve knights thus anticipated the functions of a modern jury, while the king’s justiciars acted like the presiding judge at a modern trial.[[559]]
Valuable as was this innovation, it had one obvious defect. The option it conferred might sometimes be usurped by the wrong man. It was intended to operate in the interests of order and justice by favouring the peaceable holder de facto; but what if a turbulent and lawless claimant, scorning an appeal to legal process, took the law into his own hands, evicted the previous holder by the rude method of self-help, and thereafter claimed the protection of Henry’s ordinance? In such a case the man of violence—the holder mala fide—would enjoy the option intended for his innocent victim.
(2) The petty assizes may, perhaps, be regarded as the outcome of Henry’s determination to prevent such misuse of his new engine of justice. If one claimant alleged that the other had usurped his rights by violence or fraud, the king allowed the preliminary plea thus raised to be summarily decided by the oath of twelve local landowners, according to a procedure known as a petty assize. These petty assizes, of which there were three kinds, all related to questions of “possession,” as opposed to questions of “ownership,” which could only be determined by battle or by the Grand Assize.
(a) The assize of novel disseisin. The word “seisin,” originally synonymous with “possession” in general, was gradually restricted by medieval lawyers to the possession of real estate. “Disseisin” thus meant the interruption of seisin or possession of land; and was the technical term applied to such violent acts of eviction as were likely to defeat the intention of Henry’s ordinance of the Grand Assize. “Novel” disseisin implied that such violent ejection was of comparatively recent date, for a summary remedy could only be given where there had not been undue delay in applying for it. The first of the petty assizes, then, was a rapid and peaceable method of ascertaining by reference to sworn local testimony whether an alleged recent eviction had really taken place or not. Without any of the law’s delays, without any expensive journeys to the king’s Court or to Westminster, but in a rapid manner and in the district where the lands lay, twelve local gentlemen[gentlemen] determined upon oath all allegations of this nature. If the recognitors of the petty assize answered “Yes,” then the evicted man would have “seisin” immediately restored to him, and along with “seisin” went the valued option of determining what proof should decide the "ownership"—whether it should be battle or the Grand Assize. An ordinance instituting this most famous of the three petty assizes was issued probably in 1166, a year fertile in legal expedients, and formed a necessary supplement to the ordinance of the Grand Assize, preventing all danger that the option intended for the man of peace should be usurped by the man of violence.[[560]]
(b) The assize of mort d’ancestor. The protection afforded to the victim of a “novel disseisin” did not remove all possibility of justice miscarrying. Interested parties, other than the man forcibly ejected, even his heirs, were left unprotected. Further, an heir might be forcibly deprived of his tenement either by his lord or by some other rival claimant before he had an opportunity to take possession; never having been “in seisin,” he could not plead that he had suffered “disseisin.” For the benefit of such an heir, a second petty assize, known as "mort d’ancestor," was invented.[[561]] This is mentioned in article 4 of the Assize of Northampton, an ordinance issued by Henry in 1176; and this earliest known reference probably marks its origin. Procedure, essentially similar to, though not quite so speedy or informal as, that already described was thus put at the heir’s disposal. If successful, he took the lands temporarily, subject to all defects in his ancestor’s title, leaving as before the question of absolute ownership to be determined (if challenged) by the more cumbrous machinery of the Grand Assize.
(c) The assize of darrein presentment. Advowson or the right of appointing the incumbent to a vacant church benefice was then, as now, a species of real estate. Such patronage was highly prized, affording as it did an opportunity of providing a living for a younger son or needy relative; or it might be converted into ready cash. Disputes often arose both as to the possession and as to the ownership of advowsons. Any one who claimed the absolute right or property as against the holder must do so by battle or the Grand Assize, exactly as in the case of any other form of real estate; and the Charter says nothing on this head.[[562]] On the other hand, the less vital question of possession might be more rapidly determined. If a benefice fell vacant, and each of two proprietors claimed the patronage, the Church could not remain without a shepherd, for years perhaps, until the question of title was decided. No; the man in possession was allowed to make the appointment. But who was the man in possession? Clearly he who had (or whose father had) presented a nominee to the living when the last vacancy occurred. Even here there was room for dispute as to the facts. Twelve local men decided which claimant had actually made the last appointment (the “darrein presentment”); and the claimant thus preferred had a legal right to fill up vacancies, remaining in possession until someone proved a better title by battle or the Grand Assize.
All three forms of the petty assize were merely new applications by Henry Plantagenet of the royal procedure known in England, since the Norman Conquest, as inquisitio or recognitio.[[563]]
III. The Assizes in 1215. The petty assizes, when invented by Henry II., were resented bitterly as innovations; but public opinion, half a century later, had abundantly vindicated the wisdom of this part of his reforms. The insurgent barons in 1215 were far from demanding their abolition; their new grievance was rather that sessions of the justices of assize were not held often enough. They prescribed the way in which these assizes, now grown so popular, were to be held, and several points were specially emphasized. (1) No inquiry of the kind was to be held elsewhere than in the county where the property was situated. Justice was in such cases to be brought to every landowner’s door, although pleas of the Crown might still follow the king, and ordinary common pleas had to be taken to Westminster. This was intended to save expense and to meet the convenience of litigants, of those who served on assizes, and of all concerned.[[564]] Within two years, however, it was seen that this provision went too far. It was more convenient to hold certain inquiries before the Bench at Westminster than in the particular locality. The reissue of 1217 therefore made two important modifications: (a) All assizes of darrein presentment were thereafter to be taken before “the Justices of the Bench.” (b) Any assize of novel disseisin or of mort d’ancestor revealing points of special difficulty, might also be reserved for the decision of the Bench. An element of uncertainty was thus introduced, of which the Crown took advantage. In a reported case of the year 1221 it was decided that an assize of mort d’ancestor should be held in its own county, not at Westminster.[[565]]
(2) John’s Charter further insists on quarterly circuits of Justices of Assize; so that litigants in every county of England might have four opportunities each year of having their disputes amicably settled. Such excessive frequency was quite uncalled for, and involved unnecessary expense on the king, and an amount of labour on his officers out of all proportion to the good effected. The Charter of 1217, accordingly, provided that a circuit should be made only once a year. In 1285, however, it was enacted that they might be held three times a year, but not oftener.[[566]]
(3) The Charter speaks of the two justices and of the four county knights, but says nothing of the twelve knights from the immediate neighbourhood of the disputed property. The omission has no special significance. Magna Carta had no directions to convey on this matter, and therefore it kept silence; but the presence of the twelve must have been presumed, since their verdict formed the essential feature of the entire procedure.[[567]] The twelve formed the jury, and the two justices were the judges, while the chief duty of the four was to select the twelve. The chapter directed the justices “to hold the assizes along with the four knights”; but it does not appear whether the latter were to sit as local assessors of the court, or to serve along with the twelve recognitors, or to act as a link between the two.
(4) One fact about them was clearly stated, namely, the mode of their appointment. The four knights were to be “elected” in the county court (cum quatuor militibus ... electis per comitatum), and much emphasis has been laid on this provision by historians searching for ancient prototypes of modern institutions. These knights have been warmly welcomed as county magistrates elected on a more or less extended suffrage.[[568]]
As the provisions of the reissue of 1217 are more carelessly expressed, and as in particular they contain no word implying “election,” it has been assumed that a change in the mode of appointment was intended; that a step tentatively taken towards representative local government in 1215 was deliberately retraced two years later.[[569]] “Electus” however, in medieval Latin was a vague word, differing widely from the ideas usually associated with a modern “election,” and applied indiscriminately to all methods of appointment or selection, even to the proceedings of officers engaged by Edward I. to compel the enlistment of the best soldiers available for his army. The twelve knights were to be “appointed,” not “elected,” in the county court, and it remains doubtful whether the sheriff, the magnates, or the body of the suitors, would have secured the chief share in the appointment. No evidence is forthcoming that any special importance was attached in 1217 to the use of the word “electus,” and its omission may have been due to inadvertence.
IV. An Erroneous View. Henry Hallam, commenting on this chapter, seems to have misapprehended the issues at stake. "This clause stood opposed on the one hand to the encroachments of the king’s court, which might otherwise, by drawing pleas of land to itself, have defeated the suitor’s right to a jury from the vicinage: and, on the other, to those of the feudal aristocracy, who hated any interference of the Crown to chastise their violations of law, or control their own jurisdiction."[[570]] Hallam thus interprets the chapter as denoting a triumph of the old local popular courts over both the king’s courts and the courts of the feudal magnates. It denoted no such thing, but marked in reality a triumph (so far as it went) of the king’s courts over the tribunals of the feudal magnates—over the courts baron, as they were afterwards called, the most important of the three courts into which manorial jurisdictions afterwards split. The assizes, it is true, were to be taken in the county court, but they were to be taken there by the king’s justices, not by the sheriff. The county courts by this time had fallen completely under the domination of the king, and were to all intents and purposes (and in especial for this purpose) royal courts. The present chapter is thus conclusive evidence of the triumph of the king’s justice over all rivals in three important groups of pleas. Royal justice was the best article in the market, and, in spite of all defects, deserved the popularity which in this province it had evidently won, even among the barons whose jurisdiction it was superseding.
V. Later History of the Justices of Assize. Whatever may have been the exact date when there first went on tour throughout England travelling judges entitled to the description of “Justices of Assize,” such circuits, once instituted, have continued to be held at more or less regular intervals from the beginning of the thirteenth century to the present day. Their jurisdiction steadily widened under successive kings, from Henry II. to Edward III.; and they gradually superseded the older Justices of Eyre, taking over such of their functions as were not inconsistent with the change that was gradually transforming the medieval into the modern system of justice.[[571]] It was the custom for the Crown to issue new commissions to the justices as they set out upon each new circuit. Five distinct types of such commissions conferred jurisdiction over five different departments of judicial business.
(1) The commission of assize was the earliest of all, authorizing them to hold petty assizes, but not the grand assize. Of this sufficient has already been said.
(2) The commission of nisi prius conferred a wider civil jurisdiction, embracing practically all the non-criminal pleas pending at the time in the counties which they visited. These powers were originally based on the terms of the Statute of Westminster II., which became law in 1285,[[572]] and directed that all civil pleas (under certain exceptions) might be heard in their own counties. Thenceforward most ordinary suits might be tried either locally before the justices of assize, or else before the bench at Westminster. The statute directed, however, that sheriffs, in summoning jurors to Westminster, were only to do so conditionally—jurors were to attend there unless already (nisi prius) the justices of assize had come into the county; that is, if the justices arrived meanwhile in the locality, the jurors and all others concerned were saved a journey, and the pleas in question were heard on the spot. The commissions under which the travelling justices heard locally such civil pleas were therefore known as “Commissions of nisi prius.”
(3) The commission of gaol delivery was, subsequently to 1299, invariably conferred on the justices of assize, in accordance with a statute of that year,[[573]] authorizing them to inspect all gaols and enquire into all charges against prisoners, and to set free those unjustly detained. Previously, similar powers had been spasmodically conferred on separate commissioners, sometimes quite unfit for such a trust, who had too often abused their authority.
(4) Commissions of Oyer and Terminer, issued spasmodically from as early a date as 1285,[[574]] to more or less responsible individuals, were from 1329 onwards conferred exclusively on the justices of assize, who thus obtained authority[[575]] “to hear and determine” all criminal pleas pending in the counties they visited. This, combined with the commission of gaol delivery, amounted to a full jurisdiction over crimes and criminals of every kind and degree; just as the commissions of assize and nisi prius combined gave them full jurisdiction over all civil pleas.[[576]]
(5) The ordinary commission of the peace was invariably issued to the justices of assize from the reign of Edward III., conferring on them powers similar to those of the local justices of peace in every county which they might visit.
By a process of the survival of the fittest the justices of assize, from the small beginnings referred to in John’s Great Charter, thus gradually gathered to themselves the powers exercised originally by various rival sets of commissioners; and they have continued for many centuries to perform the functions conferred by these five different commissions, forming a characteristic and indispensable part of the judicial system of England.[[577]]
[547]. “Comitatus” indicates both the county where the lands lay and the court of that county. It was originally the sphere of influence of a comes or earl. Cf. supra, c. 2, (p. 238, n.)
[548]. “The said assizes” were previously called, not assizes but “inquests” (recogniciones), a wider term of which the three petty assizes here named were three special applications.
[551]. See W. S. Houldsworth (History of English Law, p. 115), who cites 1397 as the date of the final abolition of Eyres.
[552]. This was in 1233: see Pollock and Maitland, I. 181.
[553]. Blackstone, Commentaries, III. 58, assigns 1176, (the assize of Northampton) as the date of their institution.
[554]. See Statute 3 and 4 William IV. c. 27 §§ 36-7. The last actual case of a Grand Assize occurred in Davies v. Loundes, in 1835 and 1838 (1 Bing. N. C. 597, and 5 Bing. N. C. 161).
[555]. The name “Assize” is sometimes a source of confusion, because of the various meanings which attach to it. (1) Originally it denoted a session or meeting of any sort. (2) It came to be specially reserved for sessions of the king’s Council. (3) It was applied to any Ordinance enacted by the king in such a session, e.g. the Assize of Clarendon or the Assize of Northampton. (4) It was extended to every institution or procedure established by such royal ordinance, but (5) more particularly applied to the institutions or procedures known as the Grand Assize, and the Petty Assizes, from which the “Justices of Assize” took their name. (6) Finally, it denotes at the present day a “session” of these Justices of Assize, thus combining something of its earliest meaning with something of its latest. In certain contexts it has other meanings still, e.g. (7) an assessment or financial burden imposed at a “session” of the king’s council or of some other authority.
[556]. See Neilson, Trial by Combat, 33–6, and authorities there cited.
[557]. Cf. supra, pp. 103-4 for the place of “combat” in legal procedure; and pp. 108-9 for Henry’s policy in discouraging it. For the later history of trial by battle, see infra, under c. 36.
[558]. See Glanvill, II. 7.
[559]. The various steps in the procedure ought to be clearly grasped, (a) A claimant challenged the title of the actual tenant in the court baron of the lord, from whom the tenement was held, and offered battle by a champion, who was supposed to be a witness. (b) The tenant (now become a defendant) applied to the king for a royal writ, the issue of which, ipso facto, stopped all procedure in the court baron, (c) The claimant (plaintiff) had thus to make the next move; and Henry’s ordinance left only one move which he could make, namely to apply for a new royal writ, but one of a different kind. This new writ referred the question of title to twelve knights of the Grand Assize. (d) Before these could be appointed and give their verdict, many formalities and delays necessarily intervened, involving expensive journeys to the king’s Curia, first by the four appointing knights and afterwards by the twelve appointed. Months and even years might elapse before the final verdict was obtained. This ingenious reform, while superseding trial by battle, incidentally superseded also the jurisdiction of mesne lords. Hence the Grand Assize never became popular with the magnates. Cf. under c. 34.
[560]. The date of the ordinance of the Grand Assize is not known. It has been argued that its origin may be traced to an earlier date than that of the assize of novel disseisin (see Mr. J. H. Round in the Athenaeum for 28th January, 1899); but in any case the logical sequence seems to be that given in the text. The question of chronological sequence is still open.
[561]. At so late a date as 1267 it was found necessary to recognize by statute the right of the heir who had come of age to oust his guardian from his lands by an assize of mort d’ancestor. See Statute of Marlborough, c. 16.
[562]. Such was the law as late as 1285. The Statute of Westminster II. (13 Edward I. c. 5) authoritatively explains that, when any one had wrongfully presented a clerk to a vacant church, the real patron could not recover his advowson except by a writ of right “quod habet terminari per duellum vel per magnam assisam.”
[563]. The relations of the assizes to the ancient inquisitio and to the modern jury are discussed supra, pp. [158-163].
[564]. Thus two successive chapters of Magna Carta emphasize two divergent tendencies: c. 17 had demanded that “common pleas” should all be held at Westminster, while c. 18 demands that “assizes” should not be taken there. In both cases, the object was to consult the convenience of litigants.
[565]. See Bracton’s Note Book, case No. 1478; a case also cited by Coke (Second Institute, proem.). If this assize had presented points of special difficulty it might have been held at Westminster without violating Magna Carta.
[566]. 13 Edward I. c. 30. Stephen, History of Criminal Law, 105–7, gives further details.
[567]. See Assize of Northampton, c. 4.
[568]. See, e.g. Stubbs, preface to R. Hoveden, IV. xcviii.; Blackstone, Great Charter, xxxvi.; Medley, Engl. Const. History, 130.
[569]. Blackstone, Ibid., points out these changes in the charter of 1217: “the leaving indefinite the number of the knights and the justices of assize, the abolishing of the election of the former, and the reducing the times of taking assizes to once in every year.”
[570]. See Middle Ages, II. 464.
[571]. Cf. Coke, First Institute, 293 b.: “As the power of justices of assises by many acts of parliament and other commissions increased, so these justices itinerant by little and little vanished away.”
[572]. 13 Edward I. c. 30.
[573]. 27 Edward I. c. 3.
[574]. 13 Edward I. c. 39; see Stephen, Hist. Criminal Law, p. 106.
[575]. 2 Edward III. c. 2. Ibid., 110.
[576]. It is unnecessary to do more than notice the exceptional “commissions of trailbaston,” supposed to date from the Statute of Rageman (1276), conferring special powers for the suppression of powerful wrongdoers. These were soon superseded by the commissions of oyer and terminer.
[577]. Mr. W. S. Holdsworth, Hist. Eng. Law, 116–123, gives an admirable and concise account of the justices and their commissions. For fuller information see Stephen, Hist. Criminal Law, I. 97-111.