[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.