The Knights of Assise and the Jurés-Justiciers
Mr H Marett Godfray in his essay on L'Origine des jures-justiciers dans les Iles de la Manche (Bulletin 18) quoted the following clause from the document known as Le Precepte d' Assise vis : Et est a savoir que yceulx 12 jures, selon l'etablissement de la coustume de Normandie sont mis et ordonnez au nom et au lieu de quatre chevaliers.
No judicial function
Mr Godfray rightly remarks that these Knights possessed no judicial functions and that the meaning of the clause cannot possibly be that they were replaced by the jures-justiciers. On the other hand he writes hazily about their duties. The cas de langueur were incidental.
When Henry II established the Grand Assise he ordained that when a complainant put himself on the assise, four Knights of the district containing the lands in dispute were to be chosen. By these four, 12 other Knights of the district were to be empanelled whose duty it was to solemnly declare before the Justicier to which suitor the lands rightfully belonged. See Glanville de legibus II 10 as follows: Per talia autem brevia, pacem perquirit is qui tenet et in assisam se ponit donee adversarius ad curiam veniens aliud breve perquirat ut per quatuor legales milites de comitatu et de visineto eligantur duodecim milites legales de eodem visineto qui super eo die coram me vel justiciis meis ad locum ilium parati sacramento recognoscere utrum R vel N majus jus habet in una hida terrae etc.
Now if Mr Godfray had consulted Magna Carta, he would have seen that the author of the Precepte d'Assize included these 12 recognitors in the phrase Quatre chevaliers. My reference is to the 15th chapter of Magna Carta as follows: "We shall send two Justiciers throughout every County four times a year who shall along with four knights chosen by the County hold the said Assises in the County Court."
Now when I write that the term "four Knights" includes the 12 recognitors, I'm not merely stating my own poor opinion, but have with me Mr McKechnie who is universally recognised as the leading exponent of Magna Carta and his comment is: "No mention is made of the 12 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." Hence to my mind the meaning of the Precepte is that the 12 jures-Justiciers replaced the 12 recognitors of the earlier law.
Unworkable in Jersey
Granted this, I shall now show how unworkable the original process would be in a little island like Jersey, owing to the impossible number of Knights required.
The duties of the Knights of Assize were varied, involving visits to sick defendants (de malo veniendi), inquiries on the spot into charges of housebreaking, cases of treasure trove etc. See Assize Roll of 1202 as follows: Milites missi ad videndum si delictum factum esset.
For these enquiries all the Knights in the neighbourhood seem to have been liable.
In the Assise of 1203, I noted four cas de langueur in the same County; but four different knights were employed for each visit making a total of 16 Knights in all.
To turn to the 12 Recognitors. In the time of Henry II their verdict had to be by a definite majority; according to Glanville their number had to be added to until 12 were definitely in favour of one side or the other. See Glanville de legibus II 12 as follows: Item si quidam eorum dixerint pro uno, quidam pro alio litigantium, adjiciendi sunt alii donee duodecim ad minus in alterutram partem concorditer acquieverint.
Furthermore if the judge was dissatisfied with their verdict's wording, he had the right to shut them up without food or drink until they produced a clear one.
See Year Books 21 Edward I as follows: Vus nus dirrez en un autre manere cornent yl est plus procheyn heyr, ou vus demorrez sanz manger e beyre jekes demeyn matyn enclos.
Falling on one small class, the system later proved an intolerable method and we find the Knights of the County using every endeavour to shirk the duty. Thus in an assise held at Lancaster in 1304 over the right in an advowson, the four Knights solemnly promised to choose 16 Knights of the County to decide the cause.
This promise they were unable to fulfill. As the record states:"They chose from themselves and others 13, for more Knights they could not find in the County." (And this in Lancashire) See Year Books 33 Edward I pp. 387-9 as follows: Ceo oyez vous Justice qe jeo leaument elirray de mey et des autrez 16 chivalers dil conte de Lancastre qe meuz sachent e velent verite dire le quel ad meur dreyt en lavoweson dil Eglise. E elurent de eux e des autrez 13; e plus de chivalers ne poeynt en le Conte trover. E les partiez lor chulanges rehercerent, e en 8 de chivalers se assenterent.
Nor did even the 4 Knights of Assise always turn up in Court. Thus in a case during the first years of King John (1202) when the parties were told the day when the knights would make the assise, the said knights neither appeared nor sent an essoin. See Assise Roll 478 Section 509 as follows: Dies datus est conano petenti et Alano tenenti de placito audiendi electionem quatuor militurn ad faciendum magnam assisam de I acra terra. 4 milites inde non venerunt vel se essoniaverunt.
Note that the Record does not deem it necessary to mention the 12 recognitors ; this was understood. The full form would be as given in section 154 of the same Roll viz De placito audiendi electionem 4 militum ad eligendum 12 ad faciendum magnam assisam.
Nor were the County Knights liable only for civil suits. There is a record of one curious 13th century trial when a Knight accused of rape, demanded to be tried by a jury of Knights and had his request granted. It is unfortunate that this interesting case is undated, but it was probably some time in the early 13th century. The defendant evidently invoked the clause of Magna Carta as to judgment by one's peers.
It is quite obvious that a system such as is described in this paper was totally unsuited to small places such as the Channel Islands, but as Mr Le Patourel writes in his recent book on their Mediaeval Administration no comprenhesive solution (of the origin of the jures-justiciers] seems to be in sight, for while there is sufficient evidence to confuse the issue there is not enough to straighten it out again.