Subpoena

In September this journal printed an article entitled “What Does ‘Praecipe’ Mean?” The resulting wave of enthusiasm (my thanks to both of you; you know who you are) inspired this sequel. The editors have, after some hesitation, consented to print it, rejecting the complaints that Praecipe I was a thinly-disguised sexual allegory (now don’t you wish you’d read it?).

Our last installment left you on the edge of your seats by posing the dramatic question: what does “subpoena” mean? If you read it, you know why that is important and why the knowing of it will forever change your perception of yourself and your understanding of humanity. (If not, you may just want to skip this and read the classifieds instead.)

For those of you still here, “subpoena” means “under penalty.” The writ subpoena read as follows:

Ricardus dei gracia Rex Anglie et Francie et Dominus Hibernie, Thomas Holbein, salutem.
Quibusdam certis de causis nos et consilium nostrum intime moventibus, tibi precipimus firmiter
iniungentes quod omnibus aliis pretermissis et excusacione quaecumque penitus cessante in
propria persona tua sis coram nobis et dicto consilio nostro die sabbati proximo fuaro ubicumque
tunc fueritad respondendum super hiis que tibi obicientur tunc ibidem ex parte, nostra et ad
faciendum ulterius et recipiendum quod curia nostra consideraverit in haec parte. Et hoc sub
poena centum librarum nullatenus ommittas. Et habeas ibi tunc hac breve.

In other words,

Richard [the Second], by grace of God King of England and France and Lord of Ireland, to
Thomas Holbein, greetings. For certain causes nearly moving us and our Council we command
you, firmly enjoining you that, all other matters laid aside and all excuse whatsoever wholly
ceasing, you do come in your proper person before us and our said Council on Saturday next
wheresoever it shall then be, to answer to those things which shall then and there be objected
against you on our behalf, and further to do and receive whatever our court shall consider in
that behalf. And this under penalty of [paying] £100 you shall in no wise omit. And then have you
there this writ.

This sample is from 1388; the writ had been developed about 1330. It is recognizably — and in fact is almost exactly — what we today know as a subpoena. It commands one’s appearance but does not give details of the controversy. It was prepared ahead of time as a form, with blanks for the person summoned and the date of appearance. Even the language is much the same; until the present streamlined (and ugly) forms were introduced just a few years ago, most subpoenas still said things like “all other excuses being laid aside,” and any form book (Am Jur Pleading and Practice Forms, for example) has subpoenas containing most of the fourteenth-century language — even the monetary penalty.

(Why was the writ so wordy? The answer, it may be useful to keep in mind, is not that our stupid ancestors didn’t know how to make it any shorter; many writs are short and Latin can be a fairly terse language. But, based on years of experience, they knew that if they wanted their writs obeyed they had to say “we really mean it” or “this means you” or something of the sort. Unless told specifically that they had no excuse, defendants would — as defendants are wont to do — find one.)

The principal difference between medieval and modern subpoenas is that the medieval writ had a specialized purpose: it was to actions in equity what praecipe was to suits at law, viz, the equivalent of a Summons and Complaint. It was issued on the application of a plaintiff and was served on the defendant to begin the proceedings. But subpoena was issued out of the Chancery — the section of the royal court’s administrative apparatus that later gave rise to courts of equity — and was directed to the redress of grievances that suits at law could not reach.

Compare subpoena to the writ praecipe (the copy you cut out and saved from the first Praecipe article) and you will see that the two are similar but that subpoena is the more ominous and powerful. Praecipe explains who is complaining about what; subpoena doesn’t. Praecipe vaguely requires an appearance before the king’s justices; subpoena commands an almost immediate appearance at the royal court (“wheresoever it shall then be"; the king moved around a lot and didn’t necessarily know where he would be next Saturday — but you were expected to find out) by the person summoned (and not, as often happened at law, by some servant or lieutenant). And praecipe did not contain the penalty clause, which was of course the thing that really got people’s attention and thereby gave its name to the writ. The penalty could be imposed because, while praecipe was directed to the sheriff, a subpoena was a direct order from the king to the person summoned; violation of such an order could of course be validly punished.

But £100 (the amount varied but that sum is typical) was an enormous sum that very few could have paid. The clause was a device intended to enforce obedience in terrorem. (Poena, by the way, is the source of the word “penalty”; some of the fourteenth-century writs already spelled it “pena.” The Latin word, though, connotes a specifically monetary penalty.)

The comparison between praecipe and subpoena, then, is basically that between law and equity in general. Subpoena was quicker and more peremptory, offered prompt relief where law provided none, and operated by means of personal orders enforced by what we would today call sanctions. The operation of subpoena is no mystery to those at all familiar with modern equity practice.

Happily, however, we are more enlightened that the unfortunates of the fourteenth century. We have burst the shackles of the past, cast off the cumbersome and complicated rituals of the primitives, and established the swift and efficient justice worthy of Modern Person. Now, instead of praecipes and subpoenas, we juggle praecipes and subpoenas and summons and complaints and OSCs and petitions for injunction and motions on every imaginable subject, including why all those other things weren’t used properly, or can’t be used, or have to be used all over again. I think you can see just exactly how lucky we are that the Rules of Civil Procedure have brought us out of the Darkness.

Now that you know about early procedure, though, you are no doubt wondering about the institutions of the common law. How did lawyers arise? What does “attorney” mean? Where, you ask (and haven’t we all), did the judge come from?

Coming Soon (maybe; keep those cards and letters coming): Praecipe III.