(1): 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. 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.

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, 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, 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.