[720]. 12 Edward IV. c. 7. Apparently the earliest statute which refers to weirs as causing injury to fish was one passed in 1402, namely, 4 Henry IV. c. 11, see Moore, Fisheries, p. 175.
[721]. It seems to have been generally assumed that these charters conferred positive as well as negative privileges on the citizens of London; that not merely were obstructions to navigation thereby prohibited in their interests, but that wide rights of administration and jurisdiction over the waters of the Thames were conferred on the city authorities (rights which previous to 1197 had been exercised, it is assumed, by the Constable of the Tower of London). See Noorthouck, New History of London (1773) p. 36, and Luffman, Charters of London (1793) p. 13. The latter says of Richard’s grant in 1197: “By this charter the citizens became conservators of the river Thames.” The Patent Rolls of 33 Edward I.; 5 Edward III.; 8 Edward III., etc.; contain Commissions of Conservancy. See Moore, ibid., p. 176. In 1393 the statute of 17 Richard II. c. 9 granted authority to the Mayor of London to regulate weirs likely to destroy fish, and generally to “conserve” the Thames from Staines downwards, along with the Medway.
[722]. See Rotuli Cartarum, under the year 11 Henry III.
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]]