VI.: 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 to Edward III.; and they gradually superseded the older Justices of Eyre, taking over such functions as were not inconsistent with the change from the medieval to the modern system of justice.

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.

(1) The commission of assize, already discussed, allowed them to hold petty assizes, but not (in the normal case) the grand assize.

(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.

(3) The commission of gaol delivery was, subsequently to 1299, conferred on the justices of assize, in accordance with a statute of that year, 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, to more or less responsible individuals, were from 1329 onwards conferred exclusively on the justices of assize, who thus obtained authority “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) 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.

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.