OF THE PROCEEDINGS USUALLY RESORTED TO ABOUT, OR
IMMEDIATELY AFTER THE COMMENCEMENT OF THE SUIT; AND OF THE
DERAIGNING OF THE TENEMENT BY THE DUEL, OR GRAND ASSISE;
AND OF THE CHAMPIONS; AND OF THOSE THINGS WHICH APPERTAIN
TO THE DUEL OR GRAND ASSISE.
CHAP. I.
When, at last, both the litigating Parties are present in Court, and
the Demandant has proceeded to claim the Tenement in question, the
Tenant may pray a View of the Land.
But, with respect to the time which should be allowed him for this
purpose, a distinction is to be made, whether the Tenant has more land
in the Vill, where the Land in question is situated, or not. In the
latter case, no delay shall be conceded him: but, if he has more Land
in the Vill, further time shall be allowed him, and another day given
him to appear in Court.[83] If he then depart from Court, he may again
avail himself of three reasonable Essoins, and the Sheriff of the
County, where the Lands in question are situated, shall be directed to
send free men of his County to view the Land, by the following Writ:
[Footnote 83: “After the verification of his Essoins,” says the Regiam
Majestatem, “he shall have fifteen days for vising and seeing of the
Ground or Land,” (Reg. Maj. L. 1. c. 9.)]
CHAP. II.
“The King, to the Sheriff, Health. I command you that, without delay,
you send free and lawful men of the neighbourhood[84] of such a Vill,
to view one Hyde of Land in such a Vill, which _M._ claims against _R._
and of which there is a suit between them in my Court; and have four of
them before me, or my Justices, such a day, to testify of their view,
and what day they put to him. Witness, &c.”
[Footnote 84: _Visineto_—“It should be _vicineto_. _Vicinetum_ is
derived of this word _vicinus_, and signifieth neighbourhood, or a
place near at hand, or a neighbour place. And the reason, wherefore,
the Jury must be of the neighbourhood is for that _vicinus facta vicini
presumitur scire_,” (Co. Litt. 158. b.)]
CHAP. III.
After the three reasonable Essoins which accompany the view of the
Land,[85] both parties being again present in Court, the Demandant
should set forth his demand[86] and claim in this manner: “I demand
against this _H._ half a Knight’s Fee or two ploughlands, in such a
Vill, as my Right and Inheritance, of which my Father, or my Grand
Father, was seised in his Demesne as of Fee in the time of King Henry
the First, or after the first Coronation of our Lord the King, and from
whence he took the profits to the Value of five shillings at least, as
in Corn,[87] Hay, and other produce; and this I am ready to prove by
my Freeman _I._ and, if any accident happen to him, by such a one, or
by a third” (and the Demandant may thus name, as many as he chuses,
but one of them only shall wage the Duel,[88]) “who saw this or heard
it:”[89] or the Demandant may use other words thus—“and this I am ready
to prove by my Freeman _I._ to whom his Father, when on his death-bed,
injoined by the Faith which a Son owes to his Father, that if he ever
heard a claim concerning that Land, he should prove this as that which
his Father saw and heard.”[90]
[Footnote 85: “After three lawful Essoins,” says the Reg. Majestatem,
“when the parties are passed from the Court to the sight of the Land,
the Pursuer shall beware that he give distinctly the sight of the same,
conformably to the metes contained in the King’s writ. For if he gives
the sight thereof otherwise than is contained in the King’s writ of
Right, the writ may be cancelled as null, and of no avail in the Law.”
(Reg. Maj. L. 1. c. 9.)]
[Footnote 86: It will not suffice, says Bracton, simply to say, “I
demand such Land, as my right,” unless the Demandant make out his
right, and shew how, and by what means, it has descended to him.
Neither will it suffice to allege, that the Ancestor was seised in his
Demesne as of his free Tenement only, or in his Demesne as of Fee only,
including, as it does, the freehold and whole possessory right, unless
it be added, that he was so seised by right, which comprises the right
of Propriety. Nor, again, will these two rights of possession and of
propriety, or the _droit droit_, suffice, unless the Ancestor held the
Land in question in his Demesne; for if he held it in service, it will
not answer the purpose. Neither will it suffice, that the Ancestor
was seised as of Fee, and in right, and in his Demesne, unless it be
subjoined that he took the Esplees; because a momentary seisin is not
sufficient, without a taking of the Esplees, to found a Suit touching
the right of Propriety. Though all these requisites concur, it was
still necessary to add the time of the king. (Bracton 372. b. 373. a.)]
[Footnote 87: _Bladis_ signifieth, says Lord Coke, corn or grain whilst
it groweth. (2 Inst. 81.)]
[Footnote 88: The judicial combat appears to have been the most ancient
mode of terminating controversies known to the northern nations in
their original settlements. For _Velleius Paterculus_, (L. 2. c. 118)
apprises us, that all those questions, which were decided among the
Romans by legal trial, were terminated among the Germans by arms. It
was introduced into most, if not all, of those European nations, whom
the Gothic tribes subdued. In unison with their passion for arms, it
was consecrated by their superstition. Countenanced by their Princes,
and sanctioned not unfrequently by the Clergy, it long kept its ground.
(Montesq. Spirit of Laws.) One of the earliest restrictions of the
practice, which is said to occur in history, was that imposed by our
Henry the First, but this merely prohibited the Trial by combat, in
questions concerning property of small value. (Brussel usage des Fiefs,
vol. ii. p. 962.) Louis the Seventh, of France, followed this example,
and promulgated a similar law. This was imitated by St. Louis; but his
regulations extended only to his own demesnes, (Hist. du France par le
Père Daniel tom. 5. 259.) It was reserved for the steady and masterly
hand of our Henry the Second, to give the death blow to the Trial by
combat, by the introduction of the Grand Assise—a remedy which, if my
memory does not grossly deceive me, is said by Roger Hoveden, to have
been invented by Glanville.]
[Footnote 89: The champion was relieved from the necessity of taking an
oath, that he had seen or heard the fact, and that his ancestor desired
him to deraign it, by the 41. c. West. 1. Until this alteration of
the Law took place “it seldom happened,” says the act, “but that the
champion of the Defendant (it should be Demandant, a translation the
original French requires) is forsworn.” (2 Inst. 246.)]
[Footnote 90: It is thus, according to Skene’s translation of the
Regiam Majestatem—“I sick ane man sayes and proponis against _N._
that my Father, my guidshir, or my Brother, or Sister, or some other
of my Parentage or kindred, was in the possession of sic ane Land by
the space of certain zieres and dayes; quhilk lyes in sic ane Towne,
be certain meths and marches, betwixt the Lands perteining to sic
ane man: quhilk Land I clame to perteine to me heritablie, halden of
our Soveraine Lord the King, or of sic ane other Lord. Payand to him
zierlie therefore sameikill and to others sameikill. Quhilk lands, with
the pertinents, perteins to me heritablie, be discent, or succession,
be the death of sic ane other of my blude and consanguinitie, as my
awin proper right. The quhilks Lands, with the pertinents, the said
_N._ be force and unjuslie halds fra me, against the Law of the Land;
to my great shame and skeath of ten pounds money, mair or lesse. The
quhilk gif the said _N._ denyes. I aske an assise of the indwellers
of sic ane Towne or place; and referres my claim to God, and ane gude
assise of neighbours. Provyding that, na suspect persons passe upon the
said assise. And, mairover, that it sall be lesome to me to say, mair
gif need beis.” (L. 1. c. 10.)]
The demand and claim of the Demandant being thus made, it shall be
at the election of the Tenant, either to defend himself against the
Demandant by the Duel,[91] or to put himself upon the King’s Grand
Assise, and require a Recognition to ascertain, which of the two have
the greater Right to the Land in dispute.
[Footnote 91: “The Trial by Champion in a Writ of Right hath been
anciently allowed by the common Law, and the Tenant in a Writ of Right
hath election, either to put himself upon the Grand Assise, or upon the
Trial by combat, by his Champion with the Champion of the Demandant;
which was instituted upon this reason, that in respect the Tenant had
lost his Evidences, or that the same were burnt or imbezeled, or that
his witnesses were dead, the Law permitted him to try it by combat
between his Champion and the Champion of the Demandant, hoping that
God would give victory to him that right had; and, of whose party the
victory fell out, for him was judgment finally given, for seldom death
ensued hereupon (for their weapons were but batounes) victory only
sufficed.”
Sir Edward Coke then gives the form of the champions oath; and adds,
“the champions are not bound to fight but until the stars appear; and
if the Tenant can defend himself until the stars appear, the Tenant
shall prevail.” (2 Inst. 246.)]
If he elect the former mode of proceeding, he must deny the right of
the Demandant, word for word as the Demandant has set it forth, and
this, either in person, or by some other fit man. But here we should
observe, that after the Tenant has once waged the Duel he must abide
by his choice, and cannot afterwards put himself upon the Assise.[92]
In this stage of the suit, the Tenant may again avail himself of three
reasonable Essoins in succession, with respect to his own person and of
the same number with regard to the person of his Champion.[93] All the
Essoins which can with propriety be resorted to having expired, it is
requisite, before the Duel can take place, that the Demandant should
appear in Court, accompanied by his Champion armed for the contest. Nor
will it suffice, if he then produce any other Champion than one of
those, upon whom he put the proof of his claim: neither, indeed, can
any other contend for him, after the Duel has been once waged.
[Footnote 92: _Assisa_ is derived, by Cowell, from the French
_asseoir_, to sit. The term has a variety of significations. We shall
briefly mention some of the chief.—1. It signifieth a Writ, thus assisa
of novel disseisin of _Juris Utrum_, &c. 2. It signified a Jury. 3.
It meant a statute or law, thus _assisa panis et cervisiæ_—_assisa de
Clarendon_, &c. 4. It is used for the court, place, or time, where
writs of assise were taken. 5. It meant a certain number. 6. It
imported a tax, or tribute. 7. It was used for a fine. (Vide Spelm.
Gloss. Anglo-Sax. LL. Ed. Wilkins, p. 328.)]
[Footnote 93: _Campionis._ “_Campio dicitur a campo_, because the
combat was strucken on the field, and, therefore is called camp-fight,
and he must be _liber homo_.” (2 Inst. 246.) In this derivation Spelman
concurs. The reader may consult the latter if desirous of seeing what
he terms _formula campi seu duelli_. (Gloss.)—Also the Mirror, c. 3. s.
24. 25. Bracton, the Assises of Jerusalem, Grand Custumary of Normandy,
&c.]
But if he who has waged the Duel should, in the interval pending the
Suit, happen to die, a distinction is to be made. If he died a natural
death, and this is declared by the Vicinage, (as it ought always to be,
if there exist any doubt concerning the fact,) the Demandant may in
the first place recur to one of those upon whom he placed his proof,
or to another proper person, even if he have not named any other,
provided that such other be an unobjectionable Witness—and thus the
Plea may begin again. If, however, his death was occasioned by his own
fault, his Principal shall lose the cause. It may be asked, whether
the Champion of the Demandant can substitute another in Court, to make
that proof which he took upon himself? According, indeed, to the Law,
and ancient custom of the Realm,[94] he cannot appoint any other,
unless it be his legitimate Son;[95] and here it may be observed, that
the Champion of the Demandant should be such a person as is a proper
Witness of the fact. Nor is it lawful for the Demandant to prosecute
his appeal in his own person, because it is not permitted unless by the
intervention of a proper Witness, who has both heard and seen the fact.
[Footnote 94: Vide Gul. 1. Instituta Saxonice in textu Roffensi, item
Somneri Gloss. ad LL. Hen. in voce _Bellum_. (Al. MS.)]
[Footnote 95: Vide Mirror, c. 4. s. 11.]
But the Tenant may defend himself, either in his own proper person,
if he chuse so to do, or by any other unobjectionable Witness, if
he prefer that course. But, if he has produced a Champion, and such
Champion should die in the interval, it may be asked, what the Law is,
whether the Tenant may defend himself by another Champion, or whether
he ought to lose his suit, or his seisin only? We must here have
recourse to our former distinction. It should also be remarked, that
the Champion of the Tenant cannot substitute another in Court for the
purpose of undertaking the defence, unless it be his own lawful[96] Son.
[Footnote 96: The Cottonian, Bodleian, and Dr. Milles’s MSS. concur
in omitting _lawful_, yet, that the true reading is as it stands in
the Harleian MS. and in the Text, is more than probable, since the son
of the Demandant’s champion was to be legitimate, and there can be no
reason suggested, why the same rule should not prevail, with respect to
the Tenant’s champion. The Rule itself most probably resulted from the
warlike spirit of the age, and the desire to keep up the dignity of a
species of trial, in which noble-men frequently personally engaged.]
But, it frequently happens, that a hired Champion is produced in
court, who, on account of a reward, has undertaken the proof. If the
adverse party should except to the person of such a Champion, alleging
him to be an improper witness, because he had accepted a reward to
undertake the proof, and should add, that he was prepared to prove
this accusation against the Champion, (if the latter chose to deny it)
either by himself or by another, who was present when the Champion had
taken the reward, the party shall be heard upon this charge, and the
principal Duel shall be deferred. If, upon this charge, the Champion
of the Demandant should be convicted and conquered in the Duel, then,
his Principal shall lose the suit, and the Champion himself, as
conquered, shall lose his law, namely, he shall from thenceforth never
be admitted in Court, as a Witness, for the purpose of making proof by
Duel, for any other person;[97] but, with respect to himself, he may
be admitted, either in defending his own body, or in prosecuting any
atrocious personal injury, as being a violation of the King’s Peace. He
may also defend by Duel his right to his own Fee and Inheritance.
[Footnote 97: From the Norman Code we learn, that the conquered
Champion was incompetent as a witness, as a champion, as a juror, &c.
(Le Grand Custum. de Norm. sparsim) which indeed coincides with the
text of Glanville, in point of substance.]
The Duel being finished, a fine of sixty shillings[98] shall be imposed
upon the party conquered, in the name of Recreantise,[99] and besides
which he shall lose his Law; and, if the Champion of the Tenant should
be conquered, his Principal shall lose the Land in question, with all
the fruits and produce found upon it at the time of Seisin of the Fee,
and never again shall be heard in Court concerning the same Land.[100]
For those matters, which have been once determined in the King’s Court
by Duel, remain for ever after unalterable. Upon the determination of
the suit, let the Sheriff be commanded by the following Writ, to give
possession of the Land to the successful party.
[Footnote 98: _Qui bellum vadiaverit et per judicium defecerit, 60 Sol.
emendet_ (LL. Hen. 1, c. 59 Ed. Wilkins.) The Mirror says 40s. and the
Cottonian MS. of Glanville 9s. whilst the sum fixed by the Norman code
was 40s. and one penny. (Vide Mirror, c. 3. s. 23. Grand Custumary of
Normandy c. 127.)]
[Footnote 99: _Recreantisæ._ “Now the ancient law was, that the victory
should be proclaimed, that he that was vanquished should acknowledge
his fault in the audience of the people, or pronounce the horrible word
of _cravent_, in the name of _recreantise_ &c. and presently judgment
was to be given, and the recreant should _amittere legem_ &c.” (2
Inst. 247) “And the vanquished is to acknowledge his offence, in the
hearing of the people, or speak the horrible word of _cravent_, in the
name of _cowardice_, or his left foot to be disarmed and uncovered, in
sign of Cowardice.” (Mirror, 162 Ed. 1768.) “If he become _recreant_,
that is a crying coward, or craven, he shall for his perjury lose
_liberam legem_. _Craven_ is derived from the Greek word κραυην, _a
vociferatione_: others nearer home of crying and craving forgiveness.
And _recreantisa_ is devised of the French _recreance_, or giving back
or cowardice; and sometimes it is called _creantia_, per antiphrasen,
because he that useth it is not faithful but breaketh his oath.” (3
Inst. 221.)]
[Footnote 100: _Dominus autem pro quo Duellum subierat amittet penitus
quicquid per illud intendebat obtinere. Nec aliquid ulterius ipse vel
Heredes sui in querelâ contentionis de cetero poterunt reclamare._ (Le
Grand Custum. de Normand. c. 127.)]
CHAP. IV.
“The King to the Sheriff, Health. I command you that, without delay,
you give possession to _M._ of one Hyde of Land, in such a Vill,
concerning which there was a suit between him and _R._ in my Court;
because such Hyde of Land is adjudged to him in my Court, by the Duel.
Witness, &c.”
CHAP. V.
This is the course of proceeding, when the Demandant has been
successful in the Duel. But if he has been conquered, in the person of
his Champion, then the Tenant shall be freed from his claim, without
any possibility of being again disturbed by him. Thus far concerning
the Duel,[101] where the Tenant should chuse or elect that mode of
defending himself, against his Adversary.
[Footnote 101: In taking leave of the trial by Duel, the Reader will
recall to mind Judge Blackstone’s observation—that, though this species
of Trial is much disused, it is still in force, if the parties chuse to
abide by it. (3 Comm. 337.)]
CHAP. VI.
But, if the Tenant should prefer putting himself upon the King’s Grand
Assise, the Demandant must either adopt the same course, or decline it.
If the Demandant has once conceded in Court that he would put himself
upon the Assise, and has so expressed himself before the Justices of
the Common Pleas,[102] he cannot afterwards retract, but ought either
to stand or fall by the Assise.
[Footnote 102: _Coram Justiciis in Banco sedentibus_ is the much
controverted passage of the Text. Mr. Reeves conceives it to mean,
_before the Justices in open court_, observing, that this phrase has
been quoted by some persons to shew, that in the time of Glanville,
there were Justices _de banco_, in the modern sense of those words, a
construction, he proceeds to remark, which this passage will certainly
not warrant. (Hist. Eng. Law, 1. 125. in note.) On the same side with
Mr. Reeves we find Mr. Madox, who is, undoubtedly, a very respectable
authority, did he not indicate rather too strong an inclination to
interpret the passage, in favor of his own hypothesis. (Madox’s Excheq.
c. 19.) Lord Hale follows on the same side. “Neither,” says he, “do I
find any distinct mention of the court of _common_ Pleas in the time
of this king,”—speaking of Henry the second. (Hist. Com. Law, p. 142.)
This, it must be confessed, is but negative authority; for though it
may possibly be contended, that his Lordship viewed the doctrine of the
Text in the same light as Mr. Madox and Mr. Reeves view it, yet, it is
more probable, that he had forgotten it, or he otherwise would have
noticed, if merely to refute, it. As a strong supporter of a contrary
doctrine, we find Lord Coke. (2. Inst. 22. See also pref. to 8 Rep. and
Co. Litt. 71. b. and Mr. Hargrave’s note.) The reasons adduced by Mr.
Reeves and those who concur with him, appear by no means conclusive;
and I think it would be far from difficult to give a complete answer to
them, from considering the style and manner of expression peculiar to
our author. But as this is purely a speculative point, at least in the
present day, I am not anxious to balance it _in pulvere scholastico_,
as Mr. Madox professes to do it, but follow the high authority of Lord
Coke, without pretending to assert, that even his opinion may not here
be liable to question, so very doubtful is any conclusion which we may
come to upon the subject!!]
If he object to put himself upon the Grand Assise, he ought in such
case to shew some cause, why the Assise should not proceed between
them—such as, that they were of the same blood, and sprung from the
same kindred stock from whence the Inheritance itself descended; and
if the Demandant take this objection, the Tenant will either admit
its validity, or deny it. If he admit it in Court, the Assise itself
shall thereby cease, so that the matter shall be verbally pleaded and
determined in Court; because it is then a question in Law, which of
the parties is the nearer to the original stock, and as such, the Heir
most justly entitled to the inheritance; and, in this manner, the
nearer Heir shall prove his title, unless his adversary can allege
in Court any reason, why such Heir has lost his right, either for a
time or perpetually, or that any Ancestor of his had so done; as, for
Example, that he has given or sold or exchanged the Land in question,
or, by any other mode which the Law permits, has alienated it; or if
the Heir, or any of his Ancestors, have committed Felony,[103] and
forfeited their rights entirely, concerning which we shall treat more
fully hereafter. Should the suit on any of these grounds be delayed,
the matter may incidentally, through the Effect of Pleading having
such a tendency, be regularly brought to the Duel. But if he, who has
put himself upon the Assise, deny all Relationship between him and
the Demandant, or, at least, insist, that they were not sprung from
the same stock, from which the Inheritance descended, then, recourse
must be had to the[104] common Kindred of both parties, who for this
purpose are to be called into Court, in order that the Relationship
of the parties to the suit may be investigated on their testimony. If
the Relations unanimously affirm, that the litigating parties have
descended from the same stock, from whence the Inheritance moved, their
assertion is conclusive, unless one of the parties strongly persist in
asserting the contrary; and, in such case, recourse shall be had to the
Vicinage, whose testimony upon this subject, if it coincide with that
of the Relations, must be unreservedly acquiesced in. The same course
must be pursued, if the Relations differ in their Testimony; for then
the parties must abide by the Verdict of the Vicinage. The Inquisition
having been made, if the Parties be unquestionably found and proved to
have sprung from the same stock, from which the Inheritance descended,
the Assise shall cease, and the suit must verbally proceed, as I have
before mentioned. But, if the contrary should appear to the Court and
the King’s Justices, then, the Demandant who took the objection, that
both parties were sprung from the same stock, in order maliciously to
prevent the Assise, shall lose his suit. If nothing intervene to impede
the progress of the Assise, then the question shall be as finally
terminated by that mode of decision as by the Duel.
[Footnote 103: Vide Bracton 130. s. 19, 20.—Fleta 43. s. 4. and Britton
c. 5. s. 7. and Infra, L. 7. c. 17. &c.]
[Footnote 104: But the Cottonian and Dr. Milles’s MSS. concur in
stating it to be, _to the Vicinage_. That the printed text of Glanville
is correct, seems unquestionable, as he mentions a reference to the
Vicinage, after that to the kindred had failed. All this is clear:
but according to the MS. alluded to, a reference must be made to the
Vicinage, after the Vicinage, which is assuredly absurd. To this may
be added, that the printed text corresponds with another part of
Glanville, where an object, not altogether dissimilar, is in view. Vide
L. 5. c. 4.]
CHAP. VII.
The Grand[105] Assise is a certain royal benefit bestowed upon the
people, and emanating from the clemency of the prince, with the advice
of his nobles. So effectually does this proceeding preserve the lives
and civil condition of Men,[106] that every one may now possess his
right in safety, at the same time that he avoids the doubtful event
of the Duel. Nor is this all: the severe punishment of an unexpected
and premature Death is evaded, or, at least the opprobrium of a
lasting infamy, of that dreadful and ignominious word[107] that so
disgracefully resounds from the mouth of the conquered Champion.
[Footnote 105: Mr. Reeves thinks the term _magna_ in the present
passage an interpolation, because the Cottonian, Bodleian, and Harleian
MSS. omit the word. It is with reluctance I differ from a writer, to
whom the profession is under such very considerable obligations—but
I submit, 1st, That the word _magna_ had occurred in the preceding
chapter, and all these MSS. had concurred in admitting it. 2ndly,
That the connection of the subject shews the Assise spoken of in
the two places, to be one and the same proceeding. 3rdly, That in
numberless other passages our author characterises this Assise by
the term _magna_, and most, if not all, of the MSS. admit it in such
passages. 4thly, That the Regiam Majestatem, the Mirror, the Diversity
of Courts, Bracton, Fleta, Lord Coke, Judge Blackstone, Cowell,
Spelman, Madox, and many others, always speak of this proceeding under
the term _Grand_ Assise; and lastly, that as the word _assisa_ had a
variety of meanings, it seems no less consistent with clearness of
expression, than compatible with the dignity of a proceeding, intended
in its object to effect so remarkable a revolution in our judicial
polity, as the abolishing of the Duel, to attach some honorable term of
distinction to it.]
[Footnote 106: _Status integritati tam salubriter._ Our Author alludes
to the consequences that befel the conquered champion: he lost his
life, or his _law_ &c. But, in losing his law, his condition or state
in society, as a civil character, was affected, being no longer capable
of waging the Duel for another &c. The Assise, says he, is so regardful
of the lives of men—of their condition, as civil Beings, that it
exposes neither the one nor the other to any danger.
The whole chapter is sufficiently crabbed and quaint: indeed, the most
difficult parts of the whole work are those in which the author has
aimed at being elegant.
This observation applies with particular force to our Author’s Preface.]
[Footnote 107: See Note page 40.]
This legal Institution flows from the most profound Equity. For
that Justice, which, after many and long delays, is scarcely, if
ever, elicited by the Duel, is more advantageously and expeditiously
attained, through the benefit of this Institution. This Assise, indeed,
allows not so many Essoins as the Duel, as will be seen in the sequel.
And by this course of proceeding, both the labor of Men, and the
expences of the poor are saved. Besides, by so much as the testimony
of many credible witnesses, in judicial proceedings, preponderates
over that of one only, by so much greater Equity is this Institution
regulated than that of the Duel. For since the Duel proceeds upon
the testimony of one Juror, this constitution requires the oaths of
twelve lawful men, at least. These are the proceedings which lead to
the Assise. The party who puts himself upon the Assise should, from
the first, and in order to prevent his Adversary from subsequently
impleading him, sue out a Writ for keeping the peace, the suit being
already pending between the parties concerning the Tenement, and the
Tenant having put himself upon the Assise.
CHAP. VIII.
“The King to the Sheriff, Health. Prohibit _N._ that he hold not in
his Court the Plea which is between _M._ and _R._ of one Hyde of Land,
in such a Vill, which the said _R._ claims against the aforesaid _M._
by my Writ, unless the Duel be waged; because _M._ the Tenant hath put
himself upon my Assise, and prays a Recognition to be made, which of
them have the greater right to that Land. Witness &c.” If the suit be
concerning a service, on account of which the Tenant has put himself on
the Assise, as he is at liberty to do if he chuse, then, the Writ will
be as follows.
CHAP. IX.
“The King to the Sheriff, Health. Prohibit _N._ that he holds not in
his Court the Plea which is between _M._ and _R._ of the service of
eight shillings, and of one Quart[108] of Honey, and two stikes[109]
of Eels which the aforesaid _M._ exacts of the aforesaid _R._ for the
Yearly service of his free Tenement that he holds of him, in such a
Vill, for which Tenement the said _R._ acknowledges that he owes him
eight shillings a year for every service, unless the Duel be waged
between them, because _R._ from whom the service is required, puts
himself on my Assise, and prays a Recognition, whether he owes eight
Shillings a year for every service, and besides one Quart of Honey, and
two stikes of Eels. Witness &c.”
[Footnote 108: _Sextarii._ Vide Spelm. Gloss. ad vocem.]
[Footnote 109: _Stikis._ A stike seems to be 25, _sic dicta quod
trajecto vimine_, (_quod_ stic _dicimus_) connectebantur. (Spelm.
Gloss. ad voc. _stica_.)]
CHAP. X.
By means of such Writs, the Tenant may protect himself, and may put
himself upon the Assise, until his Adversary, appearing in Court, pray
another Writ, in order that four lawful Knights of the County, and of
the Vicinage, might elect twelve lawful Knights from the same Vicinage,
who should say, upon their oaths, which of the litigating parties, have
the greater right to the Land in question. The Writ for the summoning
of the four Knights is as follows——
CHAP. XI.
“The King to the Sheriff, Health.[110] Summon, by good summoners, four
lawful Knights of the Vicinage of Stoke, that they be at the Pentecost
before me, or my Justices, at Westminster, to elect on their oaths,
twelve lawful Knights of that Vicinage, who better know the truth, to
return, on their oaths, whether _M._ or _R._ have the greater right in
one Hyde of Land in Stoke, which _M._ claims against _R._ by my Writ,
and of which _R._ the Tenant, hath put himself upon my Assise and prays
a Recognition to be made, which of them have the greater right in that
Land; and, cause their names to be imbreviated. And summon, by good
Summoners, _R._ who holds the Land, that he be then there to hear the
election, and have there the Summoners, &c.”
[Footnote 110: Vide F.N.B. 9.]
CHAP. XII.
At such day the Tenant may essoin himself, and again have recourse to
three reasonable Essoins.
And this, indeed, appears but right; since, as we have explained in a
former part of this Treatise, as often as any one appears in Court, and
there performs that which the Law requires of him, he may again recur
to his Essoins.
But, then, it would happen, or, at least it might so, that as many,
if not a greater number, of Essoins, may intervene in the remedy of
the Grand Assise, as of the Duel, which is by no means compatible
with what we have already laid down. Let us, then, suppose, that the
Tenant has cast three successive Essoins against the election of the
twelve, by the four Knights. After these three Essoins, and upon the
Tenant appearing in Court, one or more of the four Knights may on the
same day cast an Essoin; and, if this be conceded, the Tenant might
again, after the Essoins of the four Knights were expired, essoin
himself afresh, and thus the Assise could scarcely, if ever, be brought
to a conclusion. We should, therefore, observe, that a certain just
Constitution[111] has been passed, under which the Court is authorised
to expedite the suit, upon the four Knights appearing in Court on the
day appointed them, and being prepared to proceed to the election of
the twelve Knights. Upon this occasion, whether the Tenant appear or
absent himself, the four Knights shall proceed upon their oaths to
elect the twelve. But, if the Tenant himself be present in Court, he
may possibly have a just cause of Exception against one or more of the
Twelve, and concerning this he should be heard in Court. It is usual,
indeed, for the purpose of satisfying the absent party, not to confine
the number to be elected to twelve, but to comprise as many more as may
incontrovertibly satisfy such absent party, when he return to Court.
For Jurors may be excepted against by the same means by which Witnesses
in the Court Christian are justly rejected.[112] It should also be
observed, that if the party, who has put himself upon the grand Assise,
appear, although some of the four Knights are absent, the twelve may
be elected by one of the four taking to himself two or three other
Knights from the same County, if such happen to be in Court, though
not summoned for the purpose, provided such course of proceeding meet
with the approbation of the Court, and be mutually consented to by the
litigating parties. But, for greater caution, and to avoid all possible
cavil, it is usual to summon six or more Knights to Court, for the
purpose of making the election.
[Footnote 111: A Constitution, an Institution, an Assise, were
promiscuously employed to designate a Statute or Law.]
[Footnote 112: “All the persons suspect to either of the party,” says
the Regiam Majestatem, “shall be repelled.” (Vide Reg. Majestatem, L.
1. c. 10.) See also Bracton 185. a.]
Indeed, if the object be to expedite the proceedings, it will more
avail to follow the direction of the Court, than to observe the
accustomed course of the Law. It is, therefore, committed to the
discretion, and Judgment of the King or his Justices, so to temper the
proceeding, as to render it more beneficial and equitable.
CHAP. XIII.
But any person may put himself upon the Assise concerning a Service,
or Land, and besides, concerning demands of service, and concerning
the Right of Advowson to any Church. Nor is the party confined to this
remedy, as against a stranger merely, but he may avail himself of it
against his Lord for the purpose of ascertaining, whether the Lord has
greater Right to retain the object in question in his Demesne, or the
Tenant to hold it of him. It is easy to form a Writ, adapted to the
variety of circumstances.
CHAP. XIV.
The Election of the twelve Knights having been made, they should be
summoned to appear in Court, prepared upon their oaths to declare,
which of them, namely, whether the Tenant, or the Demandant, possess
the greater right to the property in question. Let the Summons be made
by the following Writ——
CHAP. XV.
“The King to the Sheriff, Health. Summon, by good Summoners, those
twelve Knights _R._ and _N._ (naming each) that they be, on such a day,
before me or my Justices at such a place, prepared on their oaths to
return, whether _R._ or _N._ have greater right, in one Hyde of Land,
or in the subject matter of dispute, which the aforesaid _R._ claims
against the aforesaid _N._ and of which the aforesaid _N._ the Tenant,
has put himself upon our Assise, and has prayed a Recognition, which of
them have the greater right to the thing in question; and, in the mean
time, let them view the Land or Tenement itself, of which the service
is demanded; and Summon, by good Summoners, _N._ the Tenant, that he be
then there to hear that Recognition, &c.”
CHAP. XVI.
On the day fixed for the attendance of the twelve Knights to take
the Recognition, whether the Tenant appear, or absent himself, the
Recognition shall proceed without delay; nor shall any Essoin avail
the Tenant, because as his presence is not requisite, the Recognition
may proceed without him;[113] since, if he were present, he would, by
having, when in Court, put himself upon the Grand Assise, be precluded
from alleging any reason, why it should be deferred. It is different
with respect to the absence of the Demandant. If he should essoin
himself, the Assise shall, for that day, be deferred, and another
day shall be given in Court; because though a Party may lose by his
default, no one when absent shall gain anything.
[Footnote 113: “The absence of either of the Parties shall not stay the
Assise to proceed, seeing they did consent that the matter should pass
to the knowledge of an Assise.” (Regiam Majestatem, L. 1. c. 12.)]
CHAP. XVII.
When the Assise proceeds to make the Recognition, the right will be
well known either to all the Jurors, or some may know it, and some
not, or all may be alike ignorant concerning it. If none of them are
acquainted with the truth of the matter, and this be testified upon
their oaths in Court, recourse must be had to others, until such can
be found who do know the truth of it. Should it, however, happen that
some of them know the truth of the matter, and some not, the latter are
to be rejected, and others summoned to Court, until twelve, at least,
can be found who are unanimous.[114] But, if some of the Jurors should
decide for one party, and some of them for the other, then, others must
be added, until twelve, at least, can be obtained who agree in favor
of one side. Each of the Knights summoned for this purpose ought to
swear, that he will neither utter that which is false, nor knowingly
conceal the truth. With respect to the knowledge requisite on the part
of those sworn, they should be acquainted with the merits of the cause,
either from what they have personally seen and heard, or from the
declarations of their Fathers, and from other sources equally entitled
to credit, as if falling within their own immediate knowledge.[115]
[Footnote 114: Concerning this mode of supplying the Jurors, termed in
our old Law Books _afforciament_, the Reader may consult the Mirror, c.
4. s. 24.—Bracton L. 4. c. 19.—Britton p. 136.—Fleta 4. c. 9. s. 9. and
Mr. Kelham’s Translation of Britton’s Pleas of the Crown. Note 22. p.
35.]
[Footnote 115: The Reader will remark the singular coincidence, in many
respects, between the two proceedings, the Duel and the Grand Assise.
This was no doubt intentional, and indicated a wise and political
tenderness towards the prejudices of the age, still strongly inclining
towards the trial by Battle.]
CHAP. XVIII.
When the twelve Knights, who have appeared for the purpose of making
Recognition, entertain no doubt about the truth of the thing, then, the
Assise must proceed to ascertain, whether the Demandant, or Tenant,
have the greater right to the subject in dispute.
But if they decide in favor of the Tenant, or make any other
declaration, by which it should sufficiently appear to the King, or his
Justices, that the Tenant has greater right to the subject in dispute,
then, by the Judgment of the Court, he shall be dismissed, for ever
released from the claim of the Demandant, who shall never again be
heard in Court with effect concerning the matter. For those questions
which have been once lawfully determined by the King’s Grand Assise,
shall upon no subsequent occasion be with propriety revived. But, if by
this Assise it be decided in Court in favor of the Demandant, then, his
Adversary shall lose the Land in question, which shall be restored to
the Demandant, together with all the fruits and produce found upon the
Land at the time of Seisin.[116]
[Footnote 116: “Because,” says the Regiam Majestatem, “the fruits
extant and dependant upon the ground are part of the Land and ground.”
(L. 1. c. 12.)]
CHAP. XIX.[117]
[Footnote 117: It may be here noticed, that the present chapter is
one of the authorities to which Lord Coke appeals, in support of his
position, that an attaint lay at common Law, both in Pleas real and
personal. (2 Inst. 129, 236.)]
A punishment is ordained for those who rashly swear in this Assise,
and is with much propriety inserted in that Royal Institution.[118]
For if the Jurors shall, by due course of Law, be convicted, or, by
legal Confession, be proved to have perjured themselves in Court, they
shall be despoiled of all their Chattels and Moveables, which shall be
forfeited to the King, although by the great clemency of the Prince,
their freehold Tenements are spared. They shall also be thrown into
prison, and be there detained for one year at least. In fine, deprived
for ever after of their Law, they shall justly incur the mark of
perpetual infamy. This penalty is properly ordained, in order that a
similarity[119] of punishment may deter Men in such a Case, from the
unlawful use of an Oath.
[Footnote 118: In commenting upon the Statute _de finibus levatis_, 27.
Ed. 1. Mr. Barrington observes, “the Statute consists of four chapters,
and the first states, the great perjury which prevailed among Jurors
at this time, which offence _in a witness_ was not now punishable by
any Act of Parliament; it may be perhaps thought a reflection on the
common Law to assert, that this crime was totally disregarded, but yet
we do not hear of any such prosecution, except the attaint of a Jury be
considered as such.” (Observ. on Anc. Stat. 176.) It will not, I trust,
be considered as a want of respect for the high authority in question,
to observe, that the general position intended to be supported, seems
to be refuted by the latter part of the passage, if, as I conceive,
the _Juror_ was, in those times, of necessity a _witness_: it was part
of his qualification that he was a witness, the two characters being
then blended. This is, I submit, evident from the 17th chapter of the
present book. A separation of character seems to have been the gradual
effect of posterior times. Nor is this all. The punishment of a Juror,
when guilty of perjury, appears from the present chapter of Glanville
to have been imposed by an Act of Parliament. If this Act, like most,
if not all, of those mentioned in the following pages, be not now
extant, it is assuredly no small part of the merit of Glanville, that
he has preserved the substance of those public Records, of which no
other trace can be found.]
[Footnote 119: Our author seems to allude to the punishment inflicted
on the conquered Champion—such Champion’s cowardice being esteemed a
species of perjury, as Lord Coke informs us, with which the perjury of
the Jurors in the assise was commensurate. The same principle pervades
the Norman Code—_Omnes autem illi, qui perjurio vel læsione fidei sunt
infames, ab hoc etiam sunt repellendi; et omnes illi qui in bello
succubuerunt._ (Le Grand Custum. de Normand. c. 62.)]
It should be observed, that the Duel never shall be waged in a case
where the Assise cannot be resorted to. The converse of the proposition
equally holds.
If the Land in question be adjudged to the Demandant, he shall be
remitted to the Sheriff of the County, where the Land is situated, in
order to recover his possession.
And, for this purpose, he shall have the following Writ——
CHAP. XX.
“The King to the Sheriff, Health. I command you that, without delay,
you deliver possession to _N._ of one Hyde of Land, in such a Vill,
which he claims against _R._ of which the said _R._ put himself upon my
Assise, because the said _R._[120] has recovered that Land, in my Court
by a Recognition. Witness, &c.”
[Footnote 120: This _R._ should be _N._]
CHAP. XXI.
But, if there are not any Knights to be found in the Vicinage, nor in
the County itself, who are acquainted with the truth of the matter in
dispute, it is a question, what steps shall be resorted to?
Whether, from that circumstance alone, the Tenant shall prevail against
his Adversary?
If this be answered in the affirmative, shall the Demandant lose his
Right, supposing he has any? A doubt, indeed, may be entertained upon
this subject. Let us suppose that two or three lawful men, or even
more, provided the number did not exceed twelve, who, as Witnesses of
the fact, should offer themselves in Court, to prove it. Let us, even,
suppose that they were of such an age as to be qualified to make proof
by the Duel, and should make use of all such words in Court, on account
of which the Duel is generally awarded. After all this, it may be
doubted, whether any of them shall be heard upon the subject.