Praecipe

A brief quiz for litigators: What does the word “praecipe” mean? What is a law “suit”? Why do we divide a “complaint” into “counts”?

The average score on this quiz is zero. You are probably average. If you knew any of the answers, you pass; if not, you probably couldn’t care less. And that isn’t your fault; no one ever taught you this stuff or told you why it was important. But it turns out that the answers to these and other urgent questions tell us much about why we do what we do and where we stand in the Great Legal Scheme of Things (which, admit it, you’ve been wondering about lately). They are interesting and occasionally

useful.

“Praecipe,” for example, means “command.” In order to sue someone in medieval England a person obtained from a clerk at court (the court, the place where the king was) a writ (i.e., a written thing) which read as follows (in this example A is suing B to recover property:

Rex vicecomti salutem,

Praecipe B quod juste et sine dilatione reddat B unam hidam terrae quod clamat esse jus et
haereditatem suam, et tenere de nobis in capite, et unde quaeritur quod praedictus B ei injuste
deforciat. Et nisi fecerit, et praedictus A fecerit te securum de clamore suo prosequendo, tunc
summone per bonos summonitores praedictus B quod sit coram justiciariss nostris ostensurus
quaere non fecerit. Et habeas ibi summonitores et hoc breve.

Most probably don’t need a translation but for those from Phoenix the Latin means:

The King to the Sheriff, greetings.

Command B that justly and without delay he render to A one hide of land which he claimeth to
be his right and inheritance, and to hold of us in chief, and whereof he complains that the
aforesaid B unjustly deforceth him. And unless he will do this, and if the aforesaid A shall give
you security to prosecute his claim, then summon by good summoners the aforesaid B that he
be before our justices to show wherefore he hath not done it. And have there the summons
and this writ.

As was the custom, this writ became known by the first word of its text: praecipe. It was, as is its modern counterpart, an official order to do something; for historical reasons it purports to order B to give the land to A but that rarely happened, the effect of praecipe being to call B into court. Today, of course, we “complain” to the court simply by filing a Complaint. A praecipe is now something that the clerk’s office gives us to issue to itself, ordering itself to issue subpoenas, dismiss cases, etc. This isn’t highly logical but allows another fee to be charged. Medieval process worked on much the same principle.

The writ had been standardized by about A.D. 1150. It was a legal form: clerks wrote up praecipes in batches, leaving blanks for the names of the parties and the details of the controversy. Upon payment of a fee (the purpose of civil justice being, then as now, to keep order and to make money), a clerk would fill in the blanks and have the writ signed by the king or by some designated member of his court. The signer probably couldn’t write very well but could draw what every educated person could: his name and the sign of the cross. (Those who didn’t know how to write their names could at least draw a cross, which eventually became an “X.”) [Though signatures from private persons were not generally used until a bit later; see “Reading and Writing.” I have also read speculation that the “X” for an illiterate’s signature came from a Greek letter used as an abbreviation in scribal practice. My version seems more likely.]

Praecipe ordered the sheriff [from “shire reeve,” “shire” meaning “county” and “reeve” being an Anglo-Saxon word for an official] to deliver the writ to B using “good summoners,” i.e. process servers. To prove that this had been done the sheriff or summoners had to bring the writ back to court when the case was heard and swear that they had served it; in other words, they had to make return of service. (The writ was also returned so that the judge could read it and find out what the allegations and issues were. I haven’t been able to discover when the custom of reading the pleadings, which would seem useful, died out.)

Once served, a defendant could obtain three continuances. He could then raise a number of technical defenses; narrow medieval minds seem to have suspected him of doing so simply in order to delay trial on the merits. Because of this and other practices a lawsuit in the twelfth century could easily last two years or more.

When at last the case came to trial the plaintiff would tell the judge — in French, the spoken language of the court [see “The Language of the Law”] his counte, i.e., his “story.” But the plaintiff’s bare word (his nude parole) was not enough. He needed two or more — preferably more — witnesses. His group of witnesses was called his secta (“suit”). So, after telling his story the plaintiff would “bring his suit” — present his witnesses. Usually the first witness would say that he agreed with what the plaintiff said; subsequent witnesses would say that they agreed with what the first witness said. Apparently this allowed the judge to “move the case along.” The defendant would also state a counte and present a secta. Since the credibility of witnesses was measured primarily by their number (a primitive notion, typical of simple medieval minds, properly rejected by enlightened modernity in favor of hired experts), having a big secta was, then as now, an advantage.

After 1179 A.D. a litigant could have the case decided by a jury. The jury was made up of twelve knights from the local county. Jurors were selected for their knowledge of the property, the parties, and the dispute, and before the trial they were given time to investigate the controversy. When the judge had heard the parties’ stories and witnesses, and if he found the evidence sufficient to go to the jury, he would ask the jurors the dispositive question in the case — for example, “Did B take A’s property?” The theory was that the jurors would answer the question using their own, independent knowledge. When the jury declared its answer (veredictum) the judge would decide the case based upon the jury’s answer.

That, then, is the quick and dirty version of the history of civil procedure. Now that you know it, what do you know? To begin with, you know enough to pass the quiz — what “praecipe” means, why we talk about filing “suit,”, why we set forth a “count” in our “Complaint.” You also know some interesting things. You know that the system of which we are a part has existed in essentially its present form for 800 years. What we do is the product of eight centuries of development and refinement. How refined were doctors in 1150? Or scientists? What other profession has a longer pedigree (well, okay, maybe one or two — but not very many). But you also know some things that may give pause. To recognize our ancestors is to acknowledge that the original genius of the system is not ours, and that our own accomplishments are by comparison rather minor embellishments. Finer minds than ours have gone before us, building what we now but maintain. Whether the “advances” we make are all for the best should properly be measured against the whole and not merely against the concerns of the last few years.

Now, then: Do you know what “subpoena” means?