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 to Edward III.; and they gradually superseded the older Justices of Eyre, taking over such of their functions as were not inconsistent with the change that was gradually transforming the medieval into the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.)