The History of English Law before the Time of Edward I. Frederic William Maitland

this simple question about seisin and disseisin; if it gives the plaintiff a verdict he is to be restored to his possession. We may state the matter in two other ways: by the one we may show what is being done for our private, by the other what is being done for our public law. (1) Possession or seisin, as something quite distinct from ownership or best right, is to be protected by an unusually rapid remedy. (2) The seisin of a free tenement, no matter of what lord it be holden, is protected by the king. Hereafter in connexion with property law we may speak of the private side of this new remedy and of its relation to the actio spolii of the canon law; here we have but to notice the great principle of public law that the king has laid down. The ownership of land may be a matter for the feudal courts: the king himself will protect by royal writ and inquest of neighbours every seisin of a free tenement. It is a principle which in course of time can be made good even against kings. The most famous words of Magna Carta will enshrine the formula of the novel disseisin.²⁵

The grand assize.At some time or another in his reign Henry went further than this. He decreed that no man need answer for his free tenement [p.126] without royal writ.²⁶ He decreed also that in a proprietary action for land, an action proceeding in the feudal court, the defending party, the “tenant” as he was called, might have the action removed into the king’s court and the whole question of right determined by the verdict of neighbours. In this case the inquest bears the name of “the grand assize.”²⁷ It is a far more solemn affair than the assize of novel disseisin and it speaks to the question of best right. The term “grand assize” would seem to point to some great ordinance; but the thought cannot but occur to us that the three principles which we have here stated may have been announced, and that the institutions which were to maintain them may have been fashioned, at one and the same time. In every case we see the royal protection of possession. No one is to be disseised of his free tenement unjustly and without a judgment; no one is to be disseised of his free tenement even by a judgment unless he has been summoned to answer by a royal writ; no one is to be forced to defend his seisin of a free tenement by battle.²⁸ The ordinance that instituted the grand assize was a one-sided measure, a protection of possessors. The claimant had to offer battle; the possessor, if he pleased, might refuse battle and put himself upon the grand assize.

The assize of mort d’ancestor.Then to all seeming the council held at Northampton in 1176 instituted a second possessory assize, the assize of mort d’ancestor (assisa de morte antecessoris).²⁹ Apparently we have the words whereby this was accomplished, though the practice of the courts soon left those words behind it. The principle of the novel disseisin is that one man, even though he claims and actually has the ownership [p.127] of the land, is not to turn another man out of possession without first obtaining a judgment. The principle of the mort d’ancestor is that if a man has died in seisin, that is, possession of a tenement, and was not holding it as a mere life-tenant, his heir is entitled to obtain possession of it as against every other person, no matter that such person claims and actually has a better right to the land than the dead man had. Such a right, if it exists, must be asserted in an action: it is not to be asserted by “self-help,” by a seizure of the vacant tenement. Another and a heavy blow is thus struck at feudal justice, for the defendant in an assize of mort d’ancestor is very likely to be the dead tenant’s lord, who will have seized the lands upon some pretext of making good his seignorial claims. Another use is found for the inquest of neighbours, for the questions whether the dead man died seised and whether the claimant is his heir will be decided by verdict.

The assize of darrein presentment.Scarcely less important than litigation about land is litigation about the advowsons of churches. Henry has here asserted as against the church that such litigation belongs to a temporal forum, and as against the feudatories that it belongs to the king’s own court.³⁰ A proprietary action for an advowson must be begun in the king’s court by royal writ, “writ of right of advowson”; the claimant must offer battle; his adversary may choose between battle and the grand assize. Then at some time or another during his reign Henry gave a possessory action, the assize of darrein presentment (assisa de ultima presentatione), which stands to the writ of right of advowson in somewhat the same relation as that in which the novel disseisin stands to the writ of right for land. If the church is vacant and two persons are quarrelling about the advowson, it is very necessary that some provisional, some possessory judgment should be given. Especially necessary is this after the Lateran Council of 1179, for should the church remain vacant for a few months the diocesan bishop will fill up the vacancy.³¹ The principle of the new assize is, simply stated, this: “He who presented last time, let him present this time also; but this without prejudice to any question of right.” [p.128] An inquest of neighbours is summoned to declare who it was that presented the last parson.³²

Assize and jury.Thus the sworn inquest begins to make its way into our ordinary civil procedure. In a proprietary action for land or for advowson, the “tenant,” the passive party, may, rejecting battle, “put himself upon the grand assize of our lord the king,” and an inquest will then declare who has the better right. In four other cases a plaintiff may begin proceedings by obtaining a royal writ, which will direct that an inquest shall answer a particular question formulated in the writ. These four cases are the subject-matter of the four petty assizes, (1) the assize utrum, (2) the novel disseisin, (3) the mort d’ancestor, (4) the darrein presentment. It is probable that for a short while a few other cases were met in a similar fashion; but in a little time we have these four and only these four petty assizes. Only in these four instances does the writ which is the first step in the procedure, “the original writ,” direct the empanelling of an inquest. Trial by jury, in the narrowest sense of that term, trial by jury as distinct from trial by an assize, slowly creeps in by another route. The principle from which it starts is simply this, that if in any action the litigants by their pleadings come to an issue of fact, they may agree to be bound by the verdict of a jury and will be bound accordingly. In course of time the judges will in effect drive litigants into such agreements by saying, “You must accept your opponent’s offer of a jury or you will lose your cause”; but in theory the jury only comes in after both parties have consented to accept its verdict. An assize, other than a grand assize, is summoned by the original writ; it is summoned at the same time that the defendant is summoned and before his story has been heard; a jury is not summoned until the litigants in their pleadings have agreed to take the testimony of “the country” about some matter of fact. In course of time the jury, which has its roots in the fertile ground of consent, will grow at the expense of the assize, which has sprung from the stony soil of ordinance. Even an assisa when summoned will often be turned into a jury (vertitur in juratam) by the consent of the parties. But still trial by jury, if we use this term in a large sense, and neglect some technical details, is introduced by the ordinances of Henry II. as part of the usual machinery of [p.129] civil justice. Already before the end of his reign it fills a large space in Glanvill’s text-book. The old modes of proof are not abolished; proof by battle we shall have with us until 1819,³³ proof by oath-helpers until 1833;³⁴ but from this moment onwards they are being pushed into the background.

The system of original writs.Closely connected with the introduction of trial by inquest is the growth of that system of original writs which is soon to become the ground-plan of all civil justice. For a long time past the king at the instance of complainants has issued writs, which either bade their adversaries appear in the royal court to answer the complaint, or else committed their causes to the care of the sheriff or of the feudal lord and commanded that right should be done to them in the county court or the seignorial court. Such writs were wont to specify with some particularity the subject-matter of the complaint. The sheriff, for example, was not merely told to entertain a suit which the Abbot of Abingdon was bringing against the men of Stanton: he was told to do full right to the abbot in the matter of a sluice which,