Page:Harvard Law Review Volume 12.djvu/259

239 KINGS JUSTICE IN EARLY MIDDLE AGES. 239 r It was the eldest brother of a family of actions, and the procedure by assize in every form has a double importance. The justice it offers to the people is emphatically the King's justice; and, more- over, it operates by the modern and royal method of inquest on oath. There is not a doom given by the suitors of the court, but a judgment of the King's judges on the return made to their inquiry by lawful men who vouch for the facts. In considering this kind of action as familiarizing and extending the new mode of trial on the merits as against the formal procedure of the ancient courts, we must remember that " it soon became an ex- ceedingly popular action." ^ It made a great advance in both speed and efficacy on any remedy then existing; it might have continued popular, and escaped the fate of becoming in its turn antiquated and cumbrous in the eyes of later generations,'^ if its benefits had not been confined to freeholders. More than this, for interfering with old forms was in the twelfth century a bolder stroke than making new ones, Henry II. applied the new procedure to the action for determining title to land as distinct from immediate possession, " the great and final remedy of a writ of right." ^ We know so little of dealings with land other than book-land in Anglo-Saxon courts that it is impossible to say what more archaic forms, if any, the writ of right supplanted; but such as Henry II. found it, the process was Anglo-Norman, as- sumed feudal relations of tenure, and led — after many possible de- lays — to a decision by the regular Anglo-Norman method of proof, namely, battle. But now the King intervened, taking thought, as a prince tender of his subjects' welfare, for men's lives and the safety of their estates.* The tenant in possession challenged by a claimant might " avoid the doubtful chance of battle " by " putting himself on the King's Great Assize ; " that ordinance enabled him them he dared not act without the judgment of a court ; disseising free men who were in actual possession, right or wrong, meant being in trouble with the King for breaking the assize (quod si faceret, dicebat se cadere in misericordiam regis per assisam regni). Joe. de Brakel. page 57. 1 P. &M. ii.47. 2 There is no difficulty in finding a parallel. In discussing the somewhat analogous remedy called possessorium summarium or even summariissimum in modern Roman law, Savigiiy reported of his own knowledge an iastance where the summariissimum had lasted twelve years without any prospect of an end. Recht des Besitzes, 7th ed. 1865, page 534. 8 Blackst. iii. 191. preserved.
 * Glanv. ii. 7. The exact date is unknown, nor is the text of the assize itself