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.