(2): 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, 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.

(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. Coke 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 Maitland 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. 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. The Petition of the Barons of 1259 (chapter 29) 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. 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.

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.