This is the course of proceeding, when the Demandant has been successful in the Duel. But if he has been conquered, in the person of his Champion, then the Tenant shall be freed from his claim, without any possibility of being again disturbed by him. Thus far concerning the Duel,[101] where the Tenant should chuse or elect that mode of defending himself, against his Adversary.
CHAP. VI.
But, if the Tenant should prefer putting himself upon the King’s Grand Assise, the Demandant must either adopt the same course, or decline it. If the Demandant has once conceded in Court that he would put himself upon the Assise, and has so expressed himself before the Justices of the Common Pleas,[102] he cannot afterwards retract, but ought either to stand or fall by the Assise.
If he object to put himself upon the Grand Assise, he ought in such case to shew some cause, why the Assise should not proceed between them—such as, that they were of the same blood, and sprung from the same kindred stock from whence the Inheritance itself descended; and if the Demandant take this objection, the Tenant will either admit its validity, or deny it. If he admit it in Court, the Assise itself shall thereby cease, so that the matter shall be verbally pleaded and determined in Court; because it is then a question in Law, which of the parties is the nearer to the original stock, and as such, the Heir most justly entitled to the inheritance; and, in this manner, the nearer Heir shall prove his title, unless his adversary can allege in Court any reason, why such Heir has lost his right, either for a time or perpetually, or that any Ancestor of his had so done; as, for Example, that he has given or sold or exchanged the Land in question, or, by any other mode which the Law permits, has alienated it; or if the Heir, or any of his Ancestors, have committed Felony,[103] and forfeited their rights entirely, concerning which we shall treat more fully hereafter. Should the suit on any of these grounds be delayed, the matter may incidentally, through the Effect of Pleading having such a tendency, be regularly brought to the Duel. But if he, who has put himself upon the Assise, deny all Relationship between him and the Demandant, or, at least, insist, that they were not sprung from the same stock, from which the Inheritance descended, then, recourse must be had to the[104] common Kindred of both parties, who for this purpose are to be called into Court, in order that the Relationship of the parties to the suit may be investigated on their testimony. If the Relations unanimously affirm, that the litigating parties have descended from the same stock, from whence the Inheritance moved, their assertion is conclusive, unless one of the parties strongly persist in asserting the contrary; and, in such case, recourse shall be had to the Vicinage, whose testimony upon this subject, if it coincide with that of the Relations, must be unreservedly acquiesced in. The same course must be pursued, if the Relations differ in their Testimony; for then the parties must abide by the Verdict of the Vicinage. The Inquisition having been made, if the Parties be unquestionably found and proved to have sprung from the same stock, from which the Inheritance descended, the Assise shall cease, and the suit must verbally proceed, as I have before mentioned. But, if the contrary should appear to the Court and the King’s Justices, then, the Demandant who took the objection, that both parties were sprung from the same stock, in order maliciously to prevent the Assise, shall lose his suit. If nothing intervene to impede the progress of the Assise, then the question shall be as finally terminated by that mode of decision as by the Duel.
CHAP. VII.
The Grand[105] Assise is a certain royal benefit bestowed upon the people, and emanating from the clemency of the prince, with the advice of his nobles. So effectually does this proceeding preserve the lives and civil condition of Men,[106] that every one may now possess his right in safety, at the same time that he avoids the doubtful event of the Duel. Nor is this all: the severe punishment of an unexpected and premature Death is evaded, or, at least the opprobrium of a lasting infamy, of that dreadful and ignominious word[107] that so disgracefully resounds from the mouth of the conquered Champion.
This legal Institution flows from the most profound Equity. For that Justice, which, after many and long delays, is scarcely, if ever, elicited by the Duel, is more advantageously and expeditiously attained, through the benefit of this Institution. This Assise, indeed, allows not so many Essoins as the Duel, as will be seen in the sequel. And by this course of proceeding, both the labor of Men, and the expences of the poor are saved. Besides, by so much as the testimony of many credible witnesses, in judicial proceedings, preponderates over that of one only, by so much greater Equity is this Institution regulated than that of the Duel. For since the Duel proceeds upon the testimony of one Juror, this constitution requires the oaths of twelve lawful men, at least. These are the proceedings which lead to the Assise. The party who puts himself upon the Assise should, from the first, and in order to prevent his Adversary from subsequently impleading him, sue out a Writ for keeping the peace, the suit being already pending between the parties concerning the Tenement, and the Tenant having put himself upon the Assise.