(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.