[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 This ingenious reform, while superseding trial by battle, incidentally superseded also the jurisdiction of mesne lords.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.