III.: 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. 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) 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) 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. 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), 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.

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. “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.