CHAPTER SIXTEEN.

Nullus distringatur ad faciendum majus servicium de feodo militis, nec de alio libero tenemento, quam inde debetur.

For military tenants, the transition from scutage to service was a natural one; since it was not enough to protect themselves from exactions in money, if they were still exposed to arbitrary exactions in kind. John, therefore, declared that no freeholder should be constrained to do more service for his lands than he was legally bound to do. Disputes might arise, however, as to what extent of service actually was due in each particular case, and Magna Carta did nothing to remove such ambiguities. The difficulties of definition, indeed, were enormous, since the duration and conditions of service might vary widely even among tenants-in-chivalry, in consequence of special exemptions or special burdens which appeared in title deeds or rested upon immemorial usage. The barons would be unwilling to enter on so intricate and laborious a task, fearing that the introduction of such complications might do more harm than good. The necessity for accurate definition may never have occurred to them: the main purport of their grievance was so vividly present to their own minds that they did not acknowledge the possibility of any mistake. The military Crown tenants had frequently objected to serve abroad, particularly during John’s campaigns in Poitou, which involved a long expensive journey to a region in which they had nothing at stake.^[530] They regarded themselves as not legally bound to make expeditions to such portions of the Angevin Empire as had not belonged to the Norman kings when their ancestors got their fiefs. To force them to enter on campaigns to the south of France, or to fine them heavily for staying at home, was, they argued, to distrain them ad faciendum majus servicium de feodo militis quam inde debetur. When they inserted these words in the Charter, they doubtless regarded them as an absolute prohibition of compulsory service in Poitou, at all events.^[531] The clause was wide enough, however, to include many minor grievances connected with service. The barons did not confine its provisions to military service even, but extended it to other forms of freehold tenure (“nec de alio libero tenemento”). No freeholder, whether in socage, serjeanty, or frankalmoin, could in future be compelled to render services not legally due.

If the barons thought they had thus settled the vexed questions connected with foreign service, they deceived themselves. Although this chapter (unlike those dealing with scutage) remained in full force in all subsequent confirmations, it was far from preventing disputes. Yet the disputants in future reigns occupied somewhat different ground. From the days of William I. to those of Charles II.Charles II., when the feudal system was abolished, quarrels frequently arose, the most famous of which culminated in 1297 in Edward’s unseemly wrangle with the Earls of Norfolk and Hereford, whose duty it was to lead the royal army as hereditary Constable and Marshal respectively, but who refused point-blank to embark for Gascony except in attendance on the king’s person.^[532]

It has been shown in the Historical Introduction^[533] how the obligations of a military tenant fell naturally into three groups (services, incidents, and aids), while a fourth group (scutages) was added when the Crown had adopted the expedient of commuting military service for its equivalent value in money.

Feudal grievances also may be arranged in four corresponding groups, each redressed by special clauses of Magna Carta: abuse of aids by chapters 12, 14, and 15; abuse of the feudal incidents, by chapters 2 to 8; abuse of scutage, by chapters 12 and 14; and abuse of service, by the present chapter, which thus completes the long list of provisions intended to protect tenants against their feudal lords.

CHAPTER SEVENTEEN.

Communia placita non sequantur curiam nostram sed teneantur in aliquo loco certo.

An attempt was here made to render royal justice cheaper and more accessible. Law-suits in which the Crown had no special interest, common pleas, were to be held in some one, fixed, pre-appointed spot, and must no longer follow the king as he moved about from place to place. The full extent of the boon conferred by this reform will be better appreciated after a short consideration of the method of dispensing justice adopted by Henry II. and his sons.

I. The Curia Regis as a Court of Law. The evil complained of was a characteristically medieval one, and arose from the fact that all departments of government were originally centred in the king and his household, or Curia Regis, which performed royal and national business of every kind. This Curia Regis, indeed, united in itself the functions of the modern Cabinet, of the administrative departments (such as the Home Office, the Foreign Office, and the Admiralty), and of the various legal tribunals. It was the parent inter alia of the Court at St. James’s and the courts at Westminster. One result of throwing so many and miscellaneous duties on a small body of hard-worked officials was to produce a congestion of business. Nothing could be done outside of the royal household, and that household never tarried long in any one spot. Everything was focussed to one point, but to a point constantly in motion. Wherever the king went, there the Curia Regis, with all its departments, went also. The entire machinery of royal justice followed Henry II., as he passed, sometimes on the impulse of the moment, from one of his favourite hunting seats to another. Crowds thronged after him in hot pursuit, since it was difficult to transact business of moment elsewhere.

This entailed intolerable delay, annoyance, and expense upon litigants who brought their pleas for the king’s decision. The case of Richard d’Anesty is often cited in illustration of the hardships which this system inflicted upon suitors. His own account is extant and gives a graphic record of his journeyings in search of justice, throughout a period of five years, during which he visited in the king’s wake most parts of England, Normandy, Aquitaine, and Anjou. The plaintiff, although ultimately successful, paid dearly for his legal triumph. Reduced to borrow from the Jews to meet his enormous outlays, mostly travelling expenses, he had to discharge his debts with accumulations of interest at the ruinous rate of 86⅔ per cent.^[534]

II. Common Pleas and Royal Pleas. Long before 1215 all litigations conducted before the king’s courts had come to be divided roughly into two classes, according as the royal interests were or were not specially affected by the issue. Those on one side of this fluctuating line were known as royal pleas, or “pleas of the Crown,” provisions for holding which are contained in chapter 24, those on the other side as ordinary pleas or “common pleas,” to which alone the present chapter refers. As these ordinary suits did not require to be determined in the royal presence, it was therefore possible to appoint a special bench of judges to sit permanently in some fixed spot, to be selected once for all as likely to suit the convenience of litigants. No town was named in Magna Carta; but Westminster, even then the natural home of law, was probably intended from the first. It is Westminster that Sir Frederick Pollock has in mind when he writes in reference to this chapter: “We may also say that Magna Carta gave England a capital.”^[535] The barons in 1215, however, in asking this reform, were not insisting on any startling innovation, but demanding merely the strict observance of a rule long recognized. During most of John’s reign, a court did sit at Westminster dispensing justice, with more or less regularity; and there most “common pleas” were tried, unless John ordered otherwise.^[536] Magna Carta insisted that all exceptions must cease; the rule of law must supersede the royal caprice.

III. Effects of Magna Carta on the genesis of the three Courts of Common Law. The ultimate consequences of the accomplishment of this reform reached further than was foreseen. Intended merely to remove from litigants a practical grievance of frequent occurrence, it had important indirect effects on the development of the English Constitution. By securing for common pleas a permanent home, it gave an impetus to the disintegrating tendencies already at work within the many-sided household of the king. It contributed somewhat to the slow process whereby the Curia Regis, as an administrative organ, was differentiated from the same Curia as the dispenser of justice. It helped forward the cleavage destined to divide completely the future Courts of Westminster from the Court of St. James’s and from Downing Street. Nor was this all: the special treatment accorded to “common pleas” emphasized the distinction between them and royal pleas, and so contributed to the splitting up of the same Curia Regis, on its judicial side, into two distinct tribunals. One little group of judges were set apart for hearing common pleas, and were known as "the king’s Judges of the Bench," or more briefly as “the Bench,” and at a later date as the Court of Common Pleas. A second group, reserved for royal pleas, became the court Coram Rege, known subsequently as the Court of King’s Bench. There were thus two benches: a common bench for common pleas and a royal bench for pleas of the Crown.^[537]

The double process by which these two small courts separated themselves slowly from the parent court and from each other began long prior to Magna Carta, and was not completed before the close of the thirteenth century. These benches were also closely linked with a third bench, known for centuries as the Court of Exchequer, which was in its origin merely one department of that government bureau, the king’s financial Exchequer—that office in which money was weighed and tested and the royal accounts drawn up. Many disputes or pleas affecting Crown debts and debtors had to be there decided, and in due time a special group of officials were set aside to try these. These men, called, not judges, but “barons of the exchequer,” formed what was in fact, though not in name, a third bench or court of justice.

All three of the Courts of Common Law—the Court of King’s Bench, the Court of Common Pleas, and the Court of Exchequer—were thus offshoots of the king’s household. In theory, each of these ought to have confined itself to the special class of suits to which it owed its origin—to royal pleas, common pleas, and exchequer pleas respectively; but by a process well known to lawyers and law-courts in all ages, each of them eagerly encroached on the jurisdictions and the fees appropriate to the others, until they became, for most purposes, three sister courts of similar and co-ordinate authority. They were bound to decide all suits according to the technical and inflexible rules of common law; and their jurisdiction thus required a supplement, which was supplied by the genesis of the Court of Chancery, dispensing, not common law, but equity, which professed to give (and, for a short time, actually did give) redress on the merits of each case as it arose, unrestrained by precedents and legal subtleties.

IV. The Evolution of the Court of Common Pleas. The comment usually made upon the present chapter is that we have here the origin of the Court of Common Pleas. Now, legal institutions do not spring, full-fledged, into being. The Court of Common Pleas, like its sister Courts of King’s Bench and Exchequer, was the result of a long process of gradual separation from a common parent stem. Prior to 1215 several tentative efforts seem to have been made towards establishing each of these. On the other hand, it is probable, nay certain, that long after 1215 the Court of Common Pleas did not completely shake off either its early dependence upon the Curia Regis, or yet its close connection with its sister tribunals.

Three stages in the process of evolution may be emphasized. (1) The earliest trace of the existence of a definite bench of judges, set apart for trying common pleas, is to be found in 1178, not in 1215. When Henry II. returned from Normandy in the former year, he found that there had been irregularities in his absence. To prevent their recurrence, he effected certain changes in his judicial arrangements, the exact nature of which is matter of dispute. A contemporary writer^[538] relates how Henry chose two clerks and three laymen from the officials of his own household, and gave to these five men authority to hear all complaints and to do right “and not to recede from his court.” It was long thought that this marked the origin of the Court of King’s Bench, but Mr. Pike^[539] has conclusively proved that the bench thus established was the predecessor, not of the royal bench, but rather of the bench for common pleas.

In 1178, then, these five judges were set apart to hear ordinary suits; but they were specially directed not to leave Henry’s court; so that common pleas still “followed the king,” even ordinary litigants in non-royal pleas having to pursue the king in quest of justice as he passed from place to place in quest of sport.

It must not be supposed that the arrangement thus made in 1178 settled the practice for the whole period of thirty-seven years preceding the grant of Magna Carta. On the contrary, it was merely one of many experiments tried by that restless reformer, Henry of Anjou; and the separate court then instituted may have been pulled down and set up again many times. The bench which appears in 1178 had probably, at best, a fitful and intermittent existence. There is evidence, however, that some such court did exist and did try common pleas in the reigns of Richard and John.^[540] On the other hand, this tribunal had in John’s reign ceased to follow the king’s movements habitually (thus disregarding the decree of 1178), and had established itself at Westminster.^[541] It was in 1215 considered an abuse for John to try a common plea elsewhere. Times had changed since his father had granted as a boon that a set of judges should remain constantly at “his court” to try such cases.

(2) Magna Carta in 1215 gave authoritative sanction to the already recognized rule that common pleas should be tried at Westminster, instead of moving with the king. No exceptions were henceforth to be allowed. Young Henry renewed this promise, and the circumstance of his minority favoured its strict observance. A mere boy could not make royal progresses through the land dispensing justice as he went. Accordingly, all pleas continued for some twenty years to be heard at Westminster. The same circumstances, which thus emphasized the stability of common pleas (along with all other kinds of pleas) in one fixed place, may have arrested the process of cleavage between the two benches. All the judges of both courts sat at Westminster, and therefore there was the less need for allocating the business between them with any exactitude. The two benches were in danger of coalescing.

(3) About the year 1234 a third stage was reached. Henry began to follow the precedent, set by his ancestors, of moving through his realm with judges in his train, hearing pleas wherever he stopped. While one group of judges went with him, another remained at Westminster. Some way of allocating the business had therefore to be found. Common pleas, in accordance with Magna Carta, remained stationary; while pleas of the Crown went on their travels. The split between the two benches now became absolute. Each provided itself with separate records. From the year 1234, two continuous series of distinct rolls can be traced, known respectively as rotuli placitorum coram rege and rotuli placitorum de banco. If any date in the history of one law court, which is in process of becoming two, can be reckoned as specially marking the point of separation, it should be that at which separate rolls appear. The court’s memory lies in its records, which are thus closely associated with its identity. In 1234 the common bench and the royal bench had become distinct.^[542] Evidence drawn from a few years later proves that a definition of common pleas had been arrived at and that the rule which required them to be held “in a fixed place” was insisted on. While Henry and his justices sat in judgment at Worcester in 1238, a litigant protested against his suit being tried before them. It was a “common plea” and therefore, he argued, ought not to follow the king, in violation of Magna Carta. At Westminster only, not at Worcester or elsewhere, could his case be heard.^[543]

With royal pleas, however, it was very different: for long they continued to follow the king’s person without any protest being raised; and the Court of King’s Bench did not finally settle at Westminster for nearly a century after the Court of Common Pleas had been established there. So late as 1300, Edward I. ordained by the Articuli super cartas that “the Justices of his Bench” (as well as his Chancellor) should follow him so that he might have at all times near him “some sages of the law, which be able duly to order all such matters as shall come into the Court at all times when need shall require.”^[544]

V. Erroneous Views. In the reign of Edward I. the real motive of this chapter of Magna Charta—so quickly had the organization of the law courts progressed—had already been lost sight of. The day of wandering common pleas, such as that of Richard d’Anesty, had been long forgotten. Some litigants of Edward’s time had, however, a different grievance of their own, connected with the hearing of their suits. The Court of Exchequer was willing, for an adequate consideration, to place its specially potent machinery, devised originally for the king’s exclusive use, at the disposal of private creditors, thus treating “common pleas” as “exchequer pleas.” Ordinary debtors, summoned as defendants before the barones scaccarii, were subjected to harsher treatment than they would have experienced elsewhere. It was not unnatural that defendants who found themselves thus hustled should read the words of Magna Carta relative to “common pleas” as precisely suited to their own case. They made this mistake the more readily as the original motive had been forgotten. The Charter was thus read as preventing the stationary Court of Exchequer (not the constantly moving King’s Bench) from hearing ordinary suits. This erroneous view received legislative sanction. The Articuli super cartas in 1300 declared that no common pleas should thenceforth be held in the Exchequer “contrary to the form of the Great Charter.”^[545]

This is a clear misinterpretation of the intention of Magna Carta. The Exchequer never “followed the Crown”; it stayed at Westminster where its offices, tallies, and pipe rolls were. The Charter would have expressed itself in widely different words if it had desired to exclude common pleas from the Exchequer. The Articuli super Cartas, however, attempted what the Charter of 1215 did not. After 1300 it was clearly illegal to hold any pleas in the Exchequer, unless such as affected the Crown and its ministers. Subsequent statutes confirmed this; but their plain intention was always defeated by the ingenious use of legal fictions and the connivance of the Barons of Exchequer, who welcomed the increase of their fees which kept pace with the increase of business.^[546]

The evil directly attacked by Magna Carta was something quite different—an evil wider, more pressing and less technical, namely, the practice of causing ordinary litigants, with their legal advisers and witnesses, to dance attendance on a constantly moving court.

CHAPTER EIGHTEEN.

Recogniciones de nova dissaisina, de morte antecessoris, et de ultima presentacione, non capiantur nisi in suis comitatibus et hoc modo; nos, vel si extra regnum fuerimus, capitalis justiciarius noster, mittemus duos justiciarios per unumquemque comitatum per quatuor vices in anno, qui, cum quatuor militibus cujuslibet comitatus electis per comitatum, capiant in comitatu et in die et loco comitatus assisas predictas.

Provision is thus made for holding before the king’s travelling justices, frequently and in a convenient manner, three species of judicial inquests known as “the three petty assizes.” These are of exceptional interest, not only in relation to Magna Carta, but from their intimate connection with several constitutional problems of prime importance; with the reforms of Henry II. on the one hand, and with the genesis of trial by jury and of the Justices of Assize on the other.

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.

(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 gentlemengentlemen 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.

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]