(2): The petty assizes

may, perhaps, have been the outcome of Henry’s determination to prevent misuse of his new engine of justice. 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.

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. 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.

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. 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.