Front Page Titles (by Subject) CHAPTER EIGHTEEN. - Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction
Return to Title Page for Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER EIGHTEEN. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
About Liberty Fund:
The text is in the public domain.
Fair use statement:
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.
Inquests of novel disseisin, of mort d’ancestor, and of darrein presentment, shall not be held elsewhere than in their own country–courts,1 and that in manner following,—We, or, if we should be out of the realm, our chief justiciar, will send two justiciars through every county four times a year, who shall, along with four knights of the county chosen by the county, hold the said assizes in the county court, on the day and in the place of meeting of that court.
Provision is here made for holding before the King’s travelling justices, frequently and in a convenient manner, three species of judicial inquests known as “petty assizes.” These are of exceptional interest from their connection with the genesis of trial by jury and the Justices of Assize.
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 of its officials at the royal exchequer by the occasional despatch of chosen individuals to inspect the provinces, 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,2 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 sphere of labour of these commissioners, as they passed from district to district, was the court of each shire, convened to meet them. They formed, in this way, a link between the old local popular courts and the system of royal justice. These travelling justices were of two types, Justices in Eyre and 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 Henry I. to the end of the fourteenth century.1 Their outstanding characteristics were the sweeping nature of their commissions (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 visited was left impoverished by fines and penalties. On one occasion, the men of Cornwall “from fear of their coming, fled to the woods.”2 An eyre was only resorted to at long intervals—seven years came to be the recognized term—and was a method of punishing delinquencies and miscarriages of justice and of collecting royal dues. It was not a visit from these hated Justices of Eyre that the barons in 1215 desired to have four times a year.
(b) The Justices of Assize also were 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.3 They seem to have been popular from the first, as they used a speedy and rational procedure; while the scope of their jurisdiction, although extended as their popularity increased, was limited by the 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 enquiries of the kind mentioned in the text, known as “assizes”; and the new species of travelling judges were hence called “Justices of Assize,” a name that 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.1 They are still “justices of assize” in an age which knows nothing of the old assizes.
Nature and Origin of the 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.2
The duellum, introduced at the Norman Conquest, remained for a century the chief method in use among the upper classes for determining serious litigations. Gradually, however, it was confined to two groups of pleas, one civil and the other criminal: appeals of treason and felony on the one hand, and suits to determine title to land on the other.3 The process of restriction was carried further by Henry II., who provided for the defendant or accused party, wherever possible, an option to trial by battle. Under chapter 36 will be explained the expedient adopted for evading combat in criminal cases. The present chapter relates to certain important groups of civil pleas,4 namely, the three Petty Assizes, the frequent use of which was now insisted on, although the Grand Assize was still viewed askance, for reasons to be explained in connection with chapter 34.
The Grand Assize
is not mentioned in Magna Carta; but some acquaintance with it is necessary to an appreciation of the Petty Assizes. In the troubled reign of Stephen, lands changed hands frequently: 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.
Henry II. introduced a startling innovation. The actual holder of a property de facto, when challenged to combat by a rival claimant, was allowed an option: he might force the claimant (if the latter persisted) to refer the matter to the oath of twelve knights of the neighbourhood. Henry’s ordinance provided for the appointment of these recognitors. Four leading knights of the 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.1 The name Grand Assize was applied alike to the procedure and to the knights who gave the verdict.
The procedure was slow; many formalities and possibilities of delay intervened, involving expensive journeys to the central 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. To lighten these hardships in comparatively unimportant cases, the Capitula of 1194 authorized Justices of Eyre to hold Grand Assizes where the lands did not exceed £5 in annual value.2
Normally, however, this procedure was for the King’s central Curia, neither for county court nor yet for baronial jurisdictions. For one thing, only magnates with wide demesnes were likely to command the attendance of twelve knights (or even of twelve freeholders) from their own territories. In combination with the rule given by Glanvill,1 that no plea concerning title to land could be commenced in any court without royal writ, and with the use made by the King of the writ praecipe,2 the Grand Assize, while superseding trial by battle, became also an expedient for curtailing the jurisdiction of mesne lords. It is easy to understand why (unlike the petty assizes) it never became popular with the magnates.
Valuable boon as was the option to substitute the verdict of twelve knights for the duellum in questions of title to land, the reform had one obvious weak point: the option conferred might sometimes be usurped by the wrong man, if a turbulent claimant took the law into his own hands, evicted the 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.
The petty assizes
may, perhaps, have been the outcome of Henry’s determination to prevent misuse of his new engine of justice.3 If a demandant alleged that the present possessor had usurped his place by violence, 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 three are here mentioned, related to questions of “possession,” as opposed to “ownership.”
(a) 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 violent acts of eviction. “Novel” implies that such ejection was of recent date; for a summary remedy could be given only where there had not been undue delay in applying for it.1
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 quickly and in the district where the lands lay, twelve local 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.
(b) Mort d’ancestor. The protection afforded to the victim of “disseisin” did not remove all possibility of justice miscarrying; interested parties, other than the man ejected, were unprotected. An heir might be deprived of his tenement by his lord or by some rival claimant before he had an opportunity to take possession; never having been “in seisin,” he could not plead that he had been disseised. For the benefit of such an heir, a second petty assize, known as “mort d’ancestor,” was invented.2 This is mentioned in article 4 of the Assize of Northampton, issued in 1176, where procedure, essentially similar to, though not quite so speedy as that already described, was 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) Darrein presentment. Advowson (or the right of appointing to a vacant church) was then, as now, a species of real estate. Such patronage was highly prized, affording a living for a younger son or needy relative; or it might be converted into cash. Disputes often arose as to possession and ownership of advowsons. Any one who claimed the absolute property, as against the holder, must offer battle, as in the case of any other form of real estate; and the Charter says nothing on this head.1
The less vital question of possession was more rapidly determined: if a benefice fell vacant, and two proprietors claimed the patronage, the Church could not remain without a shepherd until the question was decided.2 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. Here, however, there might be a dispute as to facts. Twelve local men decided which claimant had made the last appointment (the “darrein presentment”); and the claimant thus preferred filled up vacancies, until ousted by battle or the Grand Assize.
All three forms of petty assize were merely new applications of the royal procedure known in England, since the Norman Conquest, as inquisitio or recognitio.3
Aims of Magna Carta.
If the petty assizes were objects of suspicion when first invented by Henry II., public opinion, half a century later, had vindicated their wisdom. The insurgent barons in 1215 were far from demanding their abolition; their new grievance was rather that sessions of assize were not held often enough. In prescribing the way in which these assizes must be held, several points were emphasized:—(1) No inquiry of the kind was to be held elsewhere than in the county where the property was situated. This was intended to meet the convenience of litigants, of those who served on assizes, and of all concerned.1 Within two years it was seen that this provision went too far. It was more convenient to hold certain inquiries before the Bench at Westminster, and the reissue of 1217 made two modifications: (a) Assizes of darrein presentment were thereafter to be taken before “the Justices of the Bench”; (b) any novel disseisin or 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.2
(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 thus settled. Such frequency involved expense and labour out of proportion to the good effected. The Charter of 1217, accordingly, provided that circuits 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.3
(3) The Charter regulates the composition of the tribunal. Two justices appointed by the King (or by his chief justiciar) are directed to hold the assizes, along with four knights of the shire. The bench of six thus combines representatives of the Curia with local landowners. No mention is made of the twelve recognitors: nor was this necessary, as their functions and status were well known in 1215, and their verdict formed the essential feature of the procedure.1 Chapter 19 provides that the classes, from whom recognitors had to be selected, should attend in sufficient numbers “for the efficient making of judgments.”
(4) The four knights were to be “elected” by the county court (quatuor militibus . . . electis per comitatum),2 and emphasis has been laid on this provision by historians searching for ancient prototypes of modern institutions. These knights have been incautiously welcomed as county magistrates elected on a more or less extended suffrage.3
As the provisions of the reissue of 1217 are more carelessly expressed, and as in particular they contain no word implying “election,” it is sometimes assumed that a change was intended; that a step tentatively taken towards representative local government in 1215 was deliberately retraced two years later.4“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 impressment of soldiers. 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 the chief share in the appointment. No evidence is forthcoming that any importance was attached in 1217 to the word “electus,” and its omission may have been due to inadvertence.
Effects of Magna Carta.
The stipulations of the Great Charter were not strictly followed in practice. It was not the custom under Henry III. for the Crown to grant general commissions to hold petty assizes. On the contrary, each litigant was left to make separate application to the King, who would then assign a justice by letters patent to preside over that one particular plea. Hundreds of such commissions might be issued in one year, and recognitors were separately summoned for each one of these. In 1258 the Petition of the Barons (c. 19) complained of this, and an attempt was made at organization. The Statute of Westminster II. (c. 30) ordained that two sworn justices should be assigned, before whom and none others assizes of Novel Disseisin and Mort d’ancestor (along with attaints) should be taken. They were to go on circuit three times a year, and to associate with themselves one or more of the discreetest knights of each county—instructions which fall short of the stipulations of Magna Carta.1
An Erroneous View.
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.”2 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—courts baron, as they were afterwards called. 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. The county courts by this time had fallen completely under the King’s domination, and were to all intents and purposes royal courts. The present chapter is thus conclusive evidence of the triumph of the King’s justice, which was the best article in the market, and, in spite of all defects, deserved the popularity it had won.
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, 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 functions as were not inconsistent with the change from the medieval to the modern system of justice.1
For centuries it was customary for the Crown to issue to the justices of each new circuit several commissions, each conferring jurisdiction over a different class of pleas. Founding on the authority of Sir Francis Bacon, historians have been wont to enumerate five distinct commissions.2
(1) The commission of assize, already discussed, allowed them to hold petty assizes, but not (in the normal case) the grand assize.3
(2) Commission of Nisi Prius. Under Statute Westminster II. c. 30, the sheriff was directed to summon jurors to Westminster “unless at an earlier date” (nisi prius) the justices of assize should happen to arrive in the county in question. This was interpreted as creating a jurisdiction in the justices of assize to try all non–criminal pleas of the county—a jurisdiction afterwards known as “nisi prius.” Thereafter, any such plea, whether begun in King’s Bench or Common Pleas, might be determined locally in its appropriate shire as well as at Westminster. According to the opinion generally received, a separate commission of “nisi prius” was issued to each group of justices of assize, but it has recently been urged that no separate commission was required, the one jurisdiction being merely incidental to the other.1
(3) The commission of gaol delivery was, subsequently to 1299, conferred on the justices of assize, in accordance with a statute of that year,2 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, who had too often abused their authority.
(4) Commissions of Oyer and Terminer, issued spasmodically from as early a date as 1285,3 to more or less responsible individuals, were from 1329 onwards conferred exclusively on the justices of assize, who thus obtained authority4 “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 commission of assize (with or without an added commission of nisi prius) conferred full jurisdiction over civil pleas.5
(5) In the generally received opinion, a fifth commission was invariably issued to the justices, in the form of a special commission of the peace, from the reign of Edward III. onwards.6
The justices of assize, from the small beginnings referred to in John’s Great Charter, thus gathered to themselves the powers exercised originally by various sets of commissioners. They have continued for many centuries to perform the functions conferred by these various commissions, and form a characteristic part of the judicial system of England.
[1 ]“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.
[2 ]See supra, c. 17.
[1 ]See W. S. Holdsworth (History of English Law, p. 115), who cites 1397 as the date of the final abolition of Eyres.
[2 ]This was in 1233: see Pollock and Maitland, I. 181.
[3 ]Blackstone, Commentaries, III. 58, assigns 1176 (the assize of Northampton), as the date of their institution.
[1 ]See statute 3 and 4 William IV. c. 27, §§ 36–7. The last actual case of a Grand Assize occurred in Davies v. Loundes, in 1835 and 1838 (1 Bing. N.C. 597, and 5 Bing. N.C. 161).
[2 ]The name “Assize” is sometimes a source of confusion, because of its various meanings. (1) Originally, it denoted a session or meeting of any sort. (2) It came to be reserved for sessions of the King’s Council. (3) It was applied to any Ordinance enacted in such a session, e.g. Assize of Clarendon. (4) It was extended to every institution or procedure established by royal ordinance, but (5) more particularly applied to the procedures known as Grand Assize and Petty Assizes. (6) Finally, it denotes at the present day a “session” of these Justices of Assize, thus combining something of its earliest meaning with something of its latest. In certain contexts, it has other meanings still, e.g. (7) an assessment or financial burden imposed at a “session.”
[3 ]See Neilson, Trial by Combat, 33–6, and authorities there cited.
[4 ]Cf. supra, p. 85, for the place of “combat” in legal procedure; and p. 89, for Henry’s policy in discouraging it. For the later history of trial by battle, see infra, under c. 36.
[1 ]See Glanvill, II. 7.
[2 ]Sel. Chart., 259. The Assize of Northampton in 1176 (ibid. 152) had given them jurisdiction over estates of half a knight’s fee or less, but nothing was there said of the mode of proof.
[1 ]Glanvill, XII. 25.
[2 ]See infra, under c. 34.
[3 ]In the matter of actual date, the received opinion is that the “novel disseisin” procedure dates from 1166, and the Grand Assize came later. Round (Athenaeum for 28th Jany., 1899) suggests 1179. The evolution of the various writs was, however, a slow process, and steps in the chain are wanting. Under Geoffrey Plantagenet in Normandy various writs shade off into one another. See Haskins, Amer. Hist. Rev., VIII. 613 ff. In any view, the logical sequence seems to be that given in the text.
[1 ]In Normandy the corresponding period was “since the last harvest.” See Maitland, Equity, 323.
[2 ]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.
[1 ]Such was the law as late as 1285. Westminster II. c. 5 explains that, when any one had wrongfully presented to a vacant church, the real patron could not recover his advowson except by writ of right “quod habet terminari per duellum vel per magnam assisam.”
[2 ]A Lateran Council in 1179 authorized the diocesan bishop to appoint after three months’ vacancy. Hence there was additional need of haste.
[3 ]The relations of the assizes to the ancient inquisitio and to the modern jury are discussed supra, pp. 134–8.
[1 ]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.
[2 ]See Bracton’s Note–book, No. 1478; cited Coke (Second Institute, proem). If this assize had presented points of special difficulty it might have been held at Westminster without violating Magna Carta, as amended in 1217.
[3 ]13 Edward I. c. 30. Stephen, History of Criminal Law, 105–7, gives further details.
[1 ]Cf. Assize of Northampton, c. 4.
[2 ]Cf. infra, c. 48, where twelve sworn knights are to be chosen per probos homines ejusdem comitatus. Cf. also Forma Procedendi of 1194 (Sel. Charters, 255).
[3 ]See, e.g. Stubbs, preface to R. Hoveden, IV. xcviii.; Blackstone, Great Charter, xxxvi.; Medley, Eng. Const. Hist., 130.
[4 ]Blackstone, ibid., points out these changes in the charter of 1217: “the leaving indefinite the number of the knights and the justices of assize, the abolishing of the election of the former, and the reducing the times of taking assizes to once in every year.”
[1 ]On the whole subject, see an admirable article by G. J. Turner, Encycl. Laws of Engl., III. 76 ff.
[2 ]See Middle Ages, II. 464.
[1 ]Cf. Coke, First Institute, 293b: “As the power of justices of assizes by many Acts of Parliament and other commissions increased, so these justices itinerant by little and little vanished away.”
[2 ]On whole subject see Stubbs, Sel. Chart., 141–3; Stephen, Hist. Crim. Law, I. 79–111; Holdsworth, I. 116–123. Contrast, however, Turner, op. cit., III. 76 ff.
[3 ]For the exception where lands were under £5 in annual value, see supra, p. 273.
[1 ]G. J. Turner, ibid., p. 79.
[2 ]27 Edward I. c. 3. For early history of gaol delivery, see Pollock and Maitland, II. 642.
[3 ]13 Edward I. c. 39; see Stephen, Hist. Criminal Law, p. 106.
[4 ]Edward III. c. 2. Ibid., 110.
[5 ]It is unnecessary to do more than notice the exceptional “commissions of trailbaston,” supposed to date from the Statute of Rageman (1276), conferring special powers for the suppression of powerful wrongdoers. These were soon superseded by the commissions of oyer and terminer.
[6 ]Mr. Turner (ibid., p. 79) suggests, however, that a separate commission was not needed, as “all justices of assize and gaol delivery were in the commission of the peace within the precincts of the court.” In his view the justices received three distinct commissions, not five.