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CHAPTER THIRTY–FOUR. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
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Breve quod vocatur Precipe de cetero non fiat alicui de aliquo tenemento unde liber homo amittere possit curiam suam.
The writ which is called praecipe shall not for the future be issued to anyone, regarding any tenement whereby a freeman may lose his court.
The grievance here dealt with lay at the heart of the quarrel of 1215, and the remedy adopted proved a vital factor in the history of royal jurisdiction in England. In extorting from John a solemn promise to restrict the use of this particular writ, the barons gained something of infinitely greater value than a petty reform of court procedure; they committed their enemy to a reversal of a line of policy vigorously pursued for half a century. The process by which the jurisdiction of the King’s courts was undermining that of the feudal courts was now to be arrested.2 Magna Carta, by this apparently inoffensive clause, was grappling in reality with an urgent problem of the day, fraught with tremendous practical issues alike for King and barons. This can only be understood in connection with the technical details on which it hinges.
Royal Writs and Feudal Jurisdictions.
In pleas of disputed titles to land, feudal theory gave sole jurisdiction to the lord of the fief. No principle was more absolutely established than this: no person, neither King nor Emperor, had any right to interfere, except on the one ground of failure of justice. Not even Henry II. dared to repudiate this universal rule; but he adopted expedients to render it inoperative. If Glanvill may be trusted, Henry was strong enough to obtain acquiescence in his prohibition of any plea, concerning ownership of a lay fee, being tried in a seignorial court without the licence of a royal precept.1
Henry also invented, or adopted from precedents of the Carolingian Emperors, two types of writ, the virtual effects of which were to evoke causes from the lords’ courts to his own, without too open an infringement of feudal principle.2 These were the Writ of Right and the Writ Praecipe. The Writ of Right proceeded on the principle that a lord superior was bound to see that his vassals dispensed justice to their rear vassals. When a freeholder, the tenant of a mesne lord, complained to the King that justice was refused him, the King formally commanded the remiss lord “to do full right” to the complainant, and added the threat that, unless he did so, the King himself would. The writ, known as a breve de recto tenendo, was thus issued to the owner of a feudal court; professed to afford him an opportunity of obedience by trying the plea in his court; and avoided conflict with feudal theory by justifying the proposed royal interference as “pro defectu justitiae.” It afforded, however, excellent opportunities for the insidious encroachments of the royal courts at the behest of powerful kings, who retained in their own hands the right to define what constituted a failure to do justice.3
The Writ Praecipe in its origin and antecedents differed fundamentally from the Writ of Right: it was addressed to the sheriff, not to the owner of a franchise; it was a more direct violation of feudal rights, for it made no allegation of failure of justice but simply ignored the lord’s jurisdiction, bidding the sheriff command the tenant to restore the land in question to the demandant; or else to appear before the royal court to explain his reasons for disobedience. No opportunity was afforded the mesne lord of hearing the plea. The whole procedure, almost without disguise or excuse, was an open transference of the dispute from the manorial court to that of the King.1 The writ, which on the surface reads merely as a summary and final command to hand over the estate to another, is really an “original writ” commencing a litigation in the King’s court. One important effect of its issue was that all proceedings instituted in inferior tribunals must immediately stop.
The feudal lord, in whose court baron the plea would naturally have been decided, was thus robbed by the King of his jurisdiction. With it, he lost also authority over his tenants, and numerous fees and perquisites. The writ praecipe was thus an ingenious device for “evoking” a particular cause from the manorial court to the King’s court.2
The two types of writ, praecipes and writs of right, at first contrasted as alternative methods of bringing a plea under royal jurisdiction, came in time to have entirely different relations. The person to whom the preliminary writ was issued, whether sheriff or lord of a franchise court, ceased to be of much importance, when the writ had become a mere formality. The essential feature of a Writ of Right came to be that it dealt with ownership as opposed to mere possession: all royal writs that originated pleas involving title to land were then reckoned Writs of Right, which now embraced an important species of the originally opposed genus of writs praecipe.3 Thus, in one place, writs praecipe and writs of right overlapped each other.4
The motives of Henry II., in instituting his legal reforms, were probably mixed; and it is not easy to determine whether he favoured his new writs most because they really stimulated the flow of justice in the feudal courts, or because they afforded facilities for sapping their strength. While reforming the entire administration of justice in England, the King hoped, by the same means, to destroy gradually the feudal privileges of his magnates. He intended to draw into his own courts all pleas relating to land. Questions of property were to be tried before his justices, by combat or, at the tenant’s option, by the grand assize; questions of possession (without any option) by the appropriate petty assize. The barons showed no desire to dispute the Crown’s assumption of a monopoly over the petty assizes; indeed they cordially acquiesced in this by the terms of chapter 18 of the Charter. The grand assize was another matter; they refused to be robbed of their right to determine, in their own courts baron, proprietary actions between their own tenants. Indeed, for such wholesale extension of the King’s jurisdiction over pleas of land, Henry II. had absolutely no precedent. He had made the Crown strong and then used its power for his own aggrandizement. The King’s courts had increased their authority, as a distinguished American historian has expressed it, “by direct usurpation, in derogation of the rights of the popular courts and manorial franchises, upon the sole authority of the King.”1
While undermining the feudal courts, Henry was devising improved methods of dispensing justice in his own. Efforts were being successfully made, as has been shown,2 to substitute the grand assize for trial by combat; and the desire for the more rational mode of proof favoured the King’s policy of removing important litigations to his own court. The assize procedure must be taken along with the writ of right and the writ praecipe as parts of one scheme of reform.
The Intention of Magna Carta.
The present chapter says nothing of the Writ of Right, but guards against the abuse of the Writ Praecipe, without attempting to interfere with its employment within its legitimate sphere, that is to say, in settling disputes as to Crown fiefs. John might keep his own court, and issue praecipes to his own tenants; but let him respect the rights of other feudal lords and not use his writs as engines of encroachment upon manorial jurisdictions. For the future, such writs must not be issued “concerning any tenement whereby a freeman may lose his court.” Writs praecipe might be freely used for any other purpose, but not for this. This one purpose, however, was exactly what had specially recommended them to King Henry.
The present chapter must, therefore, be regarded as one of the most reactionary in the Charter: the barons had forced John to promise a complete reversal of the deliberate policy of his father.
Here, then, under the guise of a small change in legal procedure, was concealed a notable triumph of feudalism over the centralizing policy of the monarchy—a backward step, which, if given full effect to, might have ushered in a second era of feudal turbulence such as had disgraced the reign of Stephen. We are told on high authority that John’s acknowledgment of “the claims of the feudal lord to hold a court which shall enjoy an exclusive competence in proprietary actions” was one which “Henry II. would hardly have been forced into.”1 That may well be; but John had already more than once rejected this proposal with vehemence. In 1215, he could no longer strive against the inevitable, and agreed under compulsion to provisions which he had no intention to keep. The concession, although insincere, was nevertheless an important one. The substance of chapter 34 was repeated, with some trivial verbal alterations, in all future issues of Magna Carta.2
Why did the barons, it may be asked, while attacking the writ praecipe, allow the writ of right patent to go unscathed? History is silent; but inferences may be drawn. The barons had no legal ground for condemning the legitimate use of the writ of right even when it deprived a baron or other freeman of his court. Feudal theory sanctioned this procedure, unless where it was abused; and it was difficult to define abuse of the procedure. If “pro defectu justitiae” was honestly alleged, the King had a right to interfere, well grounded in feudal law. The interference, too, even where unwarranted, was of a subtle nature, and difficult to guard against. Finally, encroachments initiated by this procedure had not been attempted before 1215 to any noticeable extent: the barons had no premonition of the new uses to which the writ of right would be put, after the channel of royal aggression by way of the praecipe had been closed. The writ of right patent was a cumbrous process, and its short day of usefulness came after the granting of Magna Carta.
Expedients for evading Magna Carta.
One question remains: was this provision observed in practice? The answer is that its letter was stringently observed, but its spirit was evaded. Writs praecipe that deliberately evoked suits, other than those of Crown tenants, to the King’s courts ceased to be issued, but the sphere denied to the writ was made as narrow as possible; and methods were devised for reducing seignorial courts practically to impotence, without direct violation of the terms of the Great Charter.
The letter of the law.
The Chancery, in obedience to Magna Carta, ceased to issue this particular form of writ in such a manner as to cause a freeman “to lose his court.” It was still issued to Crown tenants; but strictly denied to under–tenants, who were thus left to find redress at the feudal court of the magnate from whom they held their land.1
The measure thus forced on the Crown in the selfish interests of the baronage, inflicted hardship on tenants of mesne lords: the court baron was now their only source of feudal justice, and in that court they could not get the benefit of the improved methods of royal procedure. In particular, the grand assize was a royal monopoly. The magnates, indeed, desired to adopt it, but they had difficulty in getting together twelve knights willing to act as jurors.1 Whatever hopes the barons entertained of overcoming such difficulties were disappointed: in 1259 the Provisions of Westminster declared that freeholders should not be compelled to swear against their will “since no one can make them do this without the King’s warrant.”2 It was the deliberate policy of Edward I. to exaggerate all such difficulties, putting every obstacle in the way of private courts, until he reduced their jurisdictions to sinecures.3
Evasion of its spirit.
While the letter of Magna Carta was strictly kept, its spirit was evaded. It was impossible to give loyal effect to an enactment that went directly counter to the whole stream of progress. Manorial justice was falling into disrepute, while royal justice was becoming more efficient and more popular. Under–tenants, deprived of access to the King’s court by the direct road of the writ praecipe, sought more tortuous modes of entrance. Legal fictions were devised. The problem was how to evade Magna Carta without openly infringing it: the King’s justices and would–be litigants in the King’s courts formed a tacit alliance for this end, but had to proceed by wary steps, in the teeth of opposition from the powerful owners of seignorial courts. Three methods were adopted by the Crown:—
(a) Magna Carta had not condemned the writ praecipe, but only its abuse; and abuse was sometimes difficult to define. That writ remained the normal procedure in cases of Crown holdings,1 and a liberal interpretation of this exception would sometimes pass unchallenged, though there seems no ground for supposing that any recognized legal fiction of this nature came into use. Then, besides the later developments of the praecipe (to be afterwards described), the King claimed, in spite of Magna Carta, to grant ex gratia speciali the very writ complained of.2
(b) When the use of the writ praecipe was barred, the King could fall back on the more cumbrous procedure instituted by writ of right, the potentialities of which were developed after 1215. Coke3 cites an instance from the 34th year of Edward I., where a demandant admitted that the lands in dispute were not held of the King in capite but of his brother Edmund, and therefore he could not proceed by way of praecipe, but he might, if he so desired, proceed by writ of right patent in the King’s curia. This substitution of the writ of right for the praecipe is described by Professor Maitland4 as “a victory of feudalism consecrated by the Great Charter.”
When a tenant, whose title was challenged in his lord’s court, applied to the King for a grand assize, the plea was practically certain, by one avenue or another, to reach the Curia Regis.1 The rule that no one need defend his liberum tenementum unless summoned by a royal writ also worked towards the same end. But many difficulties lay in the path of the writ of right.2 The Petition of the Barons of 1259 (chapter 29)3 illustrates one attempt to make the most of these. Moreover, the whole procedure was dilatory, expensive, and inelastic, and it was gladly abandoned, after the invention of less direct but more convenient methods of effecting the same purpose.
(c) The procedure which rendered recourse to the writ of right unnecessary was instituted by one of various writs developed from the older praecipe and known as writs of entry. These writs instituted procedure in the King’s court on the averment of some recent flaw in the tenant’s title, which could be settled without opening up the whole matter of the ownership. This was a subterfuge, for the settling of the special point virtually decided the general question of ownership without appeal. Although probably not invented for the express purpose of defeating this chapter of the Great Charter, these writs were soon applied to that purpose. One of the most useful of their number was the writ of cosinage, devised by William of Raleigh, extending to others than the dispossessed heir the simple procedure of the petty assizes. As early as 1237, it was decided in the King’s court that such a writ did not violate the Charter.4 Writs of entry were thus, from the point of view of the magnate with his private court, wolves in sheep’s clothing. They professed to determine a question of possession, but really decided a question of ownership At first, the pleas to which they could be applied were few and special. Steadily, new forms of action were devised to cover almost every conceivable case. The process of evolution was a long one, commencing soon after 1215, and virtually concluding with chapter 29 of the Statute of Marlborough, or rather with the liberal construction which Crown lawyers placed upon that statute in the following reign.
Edward I., at the height of his power, and eager to set his house in order, shrank from an open breach of the Great Charter, gladly adopting subtle expedients to oust mesne lords from rights secured to them by the present chapter. In Edward’s reign the legal machinery was brought to perfection, so that thereafter no action relating to freehold was ever again tried in the courts baron of the magnates, but, in direct violation of the spirit of Magna Carta, decided in the courts of the King.1
The demandant had no need to infringe the prohibition against the older form of writ praecipe when he could obtain another writ, equally effective. A writ of entry was, indeed, to a peaceable demandant, preferable to a writ praecipe, which could only be issued to one prepared to offer battle, the option of accepting lying with his adversary. Crown tenants, even, who could obtain the original writ praecipe, came to prefer the modern substitute; and clause 34 of Magna Carta was virtually obsolete.
Influence on later legal development.
One of the indirect effects of the clause was of a most unfortunate nature. The necessity it created for effecting reforms by a tortuous path did great and lasting harm to the form of English law. Legal fictions have indeed their uses, by evading technical rules of law in the interests of substantial justice. The price paid for this relief, however, is usually a heavy one. Complicated procedures and underhand expedients have to be invented, and these lead in turn to new legal technicalities of a more irrational nature than the old ones. It would have been better in the interests of scientific jurisprudence, if so desirable a result could have been effected in a more straightforward manner. The authors of Magna Carta must bear the blame.2
[2 ]The Histoire des ducs, 149, paraphrases this chapter thus: “Toutes hautes justices vaurrent–ils avoir en lor tierres.” Miss Norgate, Minority, 11, has not grasped the significance of this clause.
[1 ]Glanvill, XII. 25. See supra, p. 89.
[2 ]Brunner, Schwurgerichte, 78 ff.
[3 ]The form of the writ is given in Glanvill, XII. 3.
[1 ]Cf. Stubbs, Const. Hist., I. 576.
[2 ]Glanvill, I. 6, gives the form of a praecipe: Rex vicecomiti salutem, Praecipe A. quod sine dilatione reddat B. unam hidam terrae in villa illa, unde idem B. queritur quod praedictus A. ei deforceat: et nisi fecerit, summone eum per bonos summonitores quod sit ibi coram me vel Justiciariis meis in crastino post octabas clausi Paschae apud locum illum, ostensurus quare non fecerit. Et habeas ibi summonitores et hoc breve. Teste Ranulpho de Glanvilla apud Clarendon.
[3 ]Brunner, Schwurgerichte, 411; Maitland, Col. Papers, II. 129.
[4 ]Coke, Sec. Inst., 40, gives three varieties of praecipe: (a) praecipe quod reddat; (b) quod permittat; (c) quod faciat. The first group includes one variety of Writs of Right and the various Writs of Entry. Writs of Right, on their part, are of three kinds: (1) writ of right patent, (2) writ praecipe, (3) little writ of right, applicable to villeins on ancient demesne.
[1 ]See Bigelow, Hist. of Procedure, 78. Glanvill, read between the lines, supports this view. Thus in I. c. 3, he speaks of the King’s courts as normally dealing with “pleas of baronies”; in I. c. 5, he speaks of what he evidently considers an abnormal expansion of this jurisdiction to any plea anent a free tenement, if the Crown so desired.
[2 ]See supra, under c. 18.
[1 ]Pollock and Maitland, I. 151.
[2 ]The version of 1216 speaks of a “free tenement,” where that of 1215 spoke merely of a “tenement.” The addition makes no change, since in no case could the King’s courts try pleas affecting villeins of mesne lords. Perhaps the object is to make it clear that there was no interference with the King’s rights over holdings of his own villeins.
[1 ]In translating the reissue of 1225, the Statutes at Large expand the word “praecipe” into “praecipe in capite,” for which there is no authority in any known text of Magna Carta, though it appears in Coke’s version of Henry’s charter (Sec. Inst., 38). Authorities differ as to what constitutes a praecipe in capite. Brunner, Schwurgerichte, sec. xx., declares it to be so called “because it begins with the word Praecipe”; yet all praecipes so begin, even Writs of Entry, which are certainly not condemned by Magna Carta. Coke (Sec. Inst., 38) seems (inconsistently with his own version of Magna Carta) to identify the praecipe in capite with a class of writs not prohibited in the Charter, namely, with those professing to deal with estates held directly under the Crown: no one ought to have it without taking oath “that the land is holden of the King in capite.” He cites illustrations from the reign of Edward I. Adams (Origin, 104), speaks of an “in capite” clause inserted in praecipes to evade the prohibition of Magna Carta. See also Holdsworth, III. 10.
[1 ]Such an attempt seems to have been made in 1207 by Walter de Lacy, Earl of Ulster, who set up in his Irish fief what is described as nova assisa, against which John protested. See Rot. Pat., I. 72, for writ dated 23rd May, 1207. In one case John acquiesced in grand assizes being held in feudal courts: on 4th May, 1201, he granted licence to Hubert Walter to hold them for his tenants in gavelkind. See New Rymer, I. 83.
[2 ]See article 18 (Select Charters, 404). Cf. chapter 29 of the Petition of the Barons (Select Charters, 386), and Pollock and Maitland, I. 182: “The voice of the nation, or what made itself heard as such, no longer, as in 1215, demanded protection for the seignorial courts.”
[3 ]A partially successful attempt was made to revive feudal jurisdictions as late as the reign of Edward III. See Stubbs, Const. Hist., II. 638–9.
[1 ]See, e.g. Madox, I. 793.
[2 ]Bracton, 404b.
[3 ]Sec. Inst., 38.
[4 ]Coll. Papers, II. 129.
[1 ]See Brunner, Schwurgerichte, 406; Maitland, Coll. Papers, II. 129.
[2 ]See Glanvill, XII. 7.
[3 ]Sel. Chart., 386–7.
[4 ]See Bracton’s Note–book, plea 1215, where the writ in question is cited at length: it contains the sentence, “nec tollat alicui curiam suam ubi locum habere possit breve de recto.”
[1 ]Technical details are given by Pollock and Maitland, II. 63–7. The whole family of writs were known as “writs of entry sur disseisin”; and these were applied to still wider uses after 1267 on the authority of the Statute of Marlborough, as “writs of entry sur disseisin on the post.” See also Maitland, Preface to Sel. Pleas in Manorial Courts, p. lv.
[2 ]Cf. Pollock and Maitland, I. 151, and Sel. Pleas in Manorial Courts, already cited.