CHAPTER THIRTY-FOUR.
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, concerning any tenement whereby a freeman may lose his court.
In extorting from John a solemn promise to restrict the use of the particular writ here referred to, the barons gained something of infinitely greater value than a petty reform of court procedure; they committed their enemy to a complete reversal of a line of policy vigorously and consistently pursued for at least half a century. The process by which the jurisdiction of the king’s courts was steadily undermining that of the feudal courts was now to be suddenly arrested. Magna Carta by this apparently inoffensive clause was grappling in reality with an urgent political 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.
I. Royal Writs and the Feudal Jurisdictions. The class of writs, called from their initial word “Writs praecipe,” was a large one, and freely used by the Crown for issuing peremptory orders of various kinds to its officers and others. This provision of Magna Carta had special reference to one type of these writs only, the so-called praecipe quod reddat.[[723]] These were intended to inaugurate, before the king’s justices, pleas for determining the ownership of property either by battle or by grand assize—preferably the latter. They were called “Writs of Right,” because they treated of questions of title, not merely questions of possession.
The form of a praecipe quod reddat, as actually issued from the Chancery of Henry II. (who invented it), is given by Glanvill, and its terms illustrate the insidious methods by which the Crown encroached on feudal jurisdictions.[[724]] The writ was directed to the sheriff, and began bluntly:—“Command” (praecipe) A. “to give back” (quod reddat) to B. a piece of ground there specified, or alternatively, “to explain why he had not done so” (ostensurus quare non fecerit). The real object does not, however, appear upon the surface. It was by no means intended that the man to whom the command was issued, should abandon his claim without discussion. He would naturally take the alternative allowed him, namely, appear before the king’s justices and there “show cause” why he had not obeyed the order, by proving (if he could) a better title to the property in dispute than that alleged by the rival claimant. 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 mainly an ingenious device for “evoking” a particular cause from the manorial court to the king’s court.[[725]]
Henry II., in inventing or systematizing the legal procedure known as “the writ process,” because its leading feature was that it forbade any action to be begun without a royal writ, had two objects in view. While reforming by its instrumentality 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, step by step, 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 defendant’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.”[[726]]
Now, the chief instrument devised by Henry for effecting such usurpations was precisely this particular form of the writ praecipe (or Writ of Right).[[727]] Tenants whose titles were challenged gladly purchased such writs, as the only way to escape trial by combat; and John frequently issued them to the prejudice of feudal lords, whose jurisdiction was thus curtailed. The barons in 1215 considered this a grievance; and Magna Carta in demanding its redress deliberately attempted to arrest the process of royal usurpation. The tide must be turned back; the system of feudal justice, now fast becoming obsolete, must in its entirety be revived. Each freeman or baron must be left without competition as the sole source of justice to his own tenants in all pleas of land, unmolested by these new-fangled writs of right. It was not intended, of course, to abolish completely the extensive and useful class of writs praecipe; but merely to prevent the Crown using them as an engine of encroachment upon manorial jurisdictions.[[728]] The king might keep his own court and issue writs to his own tenants; but let him respect the courts of others. 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 it to the great king who had invented it.
The present chapter must, therefore, be regarded as containing one of the most reactionary provisions of the entire Charter. The barons had, at last, succeeded in compelling John to promise a complete reversal of a central part 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.”[[729]] That may well be; but John had already more than once rejected this proposal with violence. 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.[[730]]
II. Influence of this Provision on later Legal Development. One important question still remains: Was this provision observed in practice? The answer is partly Yes, but chiefly No. Its letter was stringently enforced; but its spirit was evaded. (1) 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 all under-tenants, who were thus left to find redress at the feudal court of the magnate from whom they held their land.[[731]] The measure thus forced on the Crown in the selfish interests of the baronage inflicted hardship on tenants of mesne lords, in whose faces the doors of the king’s tribunals, opened to them by Henry II., were once more closed in all pleas touching their freeholds. In such cases the court baron of their lord was now their only source of 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 this was rendered difficult by an obstacle which the Crown made the most of.[[732]] They had difficulty in getting together twelve knights willing to act as jurors; and they could not force them to give a sworn verdict against their will. The king might compel; but a mesne lord could only persuade. Men of the required status objected to the waste of time, and dreaded the danger of being punished for false verdicts, inseparable from the duty of serving on a grand assize. Whatever hopes the barons may have 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."[[733]] 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.[[734]]
(2) While the letter of Magna Carta was strictly kept, its spirit was evaded. It was impossible to give loyal effect to an enactment which went directly counter to the whole stream of progress. Manorial justice was falling fast into disrepute and abeyance, while royal justice was becoming more efficient and more popular, and was soon to rid itself of all competitors and obtain a monopoly. Under-tenants, deprived of access to the king’s court by the direct road of the writ praecipe, sought other and more tortuous modes of entrance. Legal fictions were devised. The great 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 slow and wary steps, in the teeth of bitter opposition from the powerful owners of seignorial courts. The process adopted consisted of a series of formal changes in the technical procedure of the king’s courts. Its key lies in the ingenious original (or originating) writs invented by Crown lawyers, which really effected one thing while professing to effect something quite different. These new writs were known as writs of entry and came half-way between writs of right (or writs praecipe) and the petty assizes; half-way between writs commencing actions dealing with title (and therefore attacked by chapter 34 of Magna Carta) and writs dealing with possession (and therefore welcomed by chapter 18). 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 cheat mesne lords out of the rights secured to them by the present chapter. In Edward’s reign, then, the legal machinery invented for this purpose was brought to perfection, so that thereafter no action relating to freehold was ever again tried in the courts baron of the magnates. All such pleas were, in direct violation of the spirit of Magna Carta, decided in the courts of the king.[[735]]
The claimant, then, had no need to infringe the prohibition against the writ praecipe when he could obtain another writ, equally effective, under a different name. A writ of entry was, indeed, to a peaceable plaintiff, infinitely 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 writ praecipe, came to prefer the more modern substitute; and clause 34 of Magna Carta was thereafter virtually obsolete.
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.[[736]]
[723]. The numerous varieties of writs praecipe are arranged by Coke (Second Institute, p. 40) in three groups, according to the nature of the orders they were intended to convey, viz.:—(a) praecipe quod reddat; (b) quod permittat; and (c) quod faciat. Those specially referred to in this chapter are of the first type.
[724]. The writ ran as follows:—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. See Glanvill, I. c. 6.
[725]. Cf. Stubbs, Const. Hist., I. 576.
[726]. See Bigelow, Hist. of Procedure, 78. Glanvill, read between the lines, contains admissions which support this view. Friend of prerogative as he was, he shows consciousness of a distinction between the proper and improper use of the royal jurisdiction. Thus in I. c. 3, he speaks of the king’s courts as normally dealing with “pleas of baronies” (i.e. litigations concerning Crown fiefs); in I. c. 5, he speaks of what he evidently considers an abnormal expansion of this jurisdiction to any plea anent a free tenement or fief, if the Crown so desired,—that is, the Crown claimed an option, in circumstances admitted to be abnormal, of deciding pleas as to fiefs held under mesne lords. This distinction is identical with that on which the present chapter of Magna Carta is based.
[727]. The normal procedure seems to have included the following steps: (a) a claimant in the court of the lord of the fief offers to prove by battle a better title than the tenant in possession; (b) the tenant applies to the king to have the issue decided by grand assize; (c) a writ praecipe quod reddat is then issued in the form given by Glanvill, I. c. 6, (already cited) virtually forbidding the claimant to proceed elsewhere than before the king; (d) a second writ follows in the form given by Glanvill, II. c. 8, forbidding the lord “to hold in his court the plea between the litigants M. and R. because M. the tenant has put himself upon my assize.” Cf. supra, c. 18.
[728]. Cf. Bracton, folio 281. See also Bracton’s Note Book, case 1215, where a certain writ praecipe was held not to be struck at by Magna Carta, since it did not take any man’s court away.
[729]. Pollock and Maitland, I 151.
[730]. 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 the villeins of mesne lords. Perhaps the object of the addition is to make it clear that there was no interference with the king’s rights over the holdings of his own villeins on royal demesne.
[731]. The writs, thus restricted so that only tenants in capite could obtain them, were thereafter known as writs praecipe in capite. Under that name the writ appears in Coke’s version of the charter of Henry III. (Second Institute, p. 38), and in the translation given in the Statutes at Large of the reissue of 1225. There is no authority in any text of Magna Carta for the addition of the words in capite, and the explanation of their presence in these versions must be sought in the tendency of lawyers in an age long subsequent to 1215 to re-edit Magna Carta in the technical language of their own day. Coke emphasised the restriction of this remedy to Crown tenants. “No man ought to have this writ out of the Chancery upon a suggestion, but oath must be made, before the granting thereof, that the land is holden of the king in capite,” (p. 38), and he illustrates what he says by reference to two cases drawn from the reign of Edward I.
[732]. 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 at least, exceptional it is true, John acquiesced in grand assizes being held in feudal courts. On 4th May, 1201, he granted licence to Hubert Walter (and his successors) to hold them for his tenants in gavelkind, a tenure peculiar to Kent. See New Rymer, I. 83.
[733]. See article 18 (Select Charters, p. 404). Other articles show a similar strong bias against seignorial justice. Cf. chapter 29 of the Petition of the Barons (Select Charters, 386), and the comment of 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.”
[734]. There was, however, a partially successful attempt made to revive feudal jurisdictions as late as the reign of Edward III. See Stubbs, Const. Hist., II. 638-9.
[735]. Technical details are admirably 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.
[736]. Cf. Pollock and Maitland, I. 151, and Sel. Pleas in Manorial Courts, already cited.