II.: 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.” 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.

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.