Definition
An abolished English judicial writ directed at proceedings concerning title to lands or tenements. The writ commanded a tenant (the party holding the land) to appear and answer a default in a real action brought by a demandant. Cape took two principal forms depending on the stage of the proceeding at which it issued:
1. Cape magnum (grand cape): Issued before the tenant had appeared in court. It summoned the tenant both to answer the default and to respond to the demandant's claim over the land itself. A subspecies, the cape ad valentiam, operated similarly but was associated with actions tied to the value of the estate.
2. Cape parvum (petit cape): Issued after the tenant had already appeared, or after a view of the land had been granted. The petit cape summoned the tenant to answer the default only—not to litigate the underlying title claim anew. Burrill notes the name derives from the opening word of the writ's command form: "Cape in manum nostrum…" (Take into our hand…).
Both forms have been abolished and belong exclusively to the history of English real property procedure.
Common Language
Modern common usage (Wiktionary): A piece or point of land extending beyond the adjacent coast into a sea or lake; a promontory; a headland.
Historical common usage (Webster's 1913): A piece or point of land extending beyond the adjacent coast into the sea or a lake; a promontory; a headland.
The geographical meaning is entirely unrelated to the legal term. A researcher encountering "cape" in a historical legal record or pleading is looking at a procedural writ, not a reference to a landform. The shared word is coincidental; the legal sense derives from the Latin imperative "cape" (take), the commanding verb that opened the writ's operative language.
Common Confusion
Cape parvum is sometimes loosely described as a "lesser" or "smaller" writ than cape magnum, implying that size or importance is the distinguishing factor. Burrill corrects this: the petit cape is so called not because the writ itself was physically shorter but because it addressed a narrower legal question—the default only, not the underlying title dispute. Researchers should not read "petit" here as carrying the same comparative force it does in "petit jury" versus "grand jury," though that analogy is tempting and appears in some historical commentary.
Why It Matters in Research
Cape is a term of purely historical English practice and will appear only in pre-abolition sources—most relevantly in records, pleadings, and procedural treatises from the era of the real actions in English common law courts. Researchers working in early American colonial or post-colonial materials should be alert: real actions and their associated writs were received into American practice unevenly and largely fell away earlier in American jurisdictions than in England. Finding a reference to cape in an American source warrants close attention to date and jurisdiction.
The Latin etymology matters for corpus navigation. Because the operative word "cape" is a Latin imperative meaning "take," early writ forms will embed the word within Latin-form commands, not as a standalone English heading. Searching for "cape" in a digitized historical corpus may return both the writ and irrelevant geographical references; filtering by surrounding procedural vocabulary (demandant, tenant, default, plea of lands) will sharpen results.
Bouvier's truncated entry—the source text cuts off mid-sentence—reflects a broader pattern in historical legal dictionaries where entries on abolished procedural writs received abbreviated treatment even in editions contemporary with active practice. Researchers should treat Bouvier's entry as a starting point and consult Burrill's fuller analysis for the substantive distinctions between the two forms.
The connection between cape and rescous or recapture (which appears in adjacent Bouvier source material) is a false neighbor in the corpus: those entries concern maritime law and pound-breach, not real property procedure.
Historical Dictionary Support
The four source dictionaries agree on the essential framework: cape is a judicial writ, English in origin, addressed to proceedings involving lands or tenements, divided into grand and petit forms. There is no substantive disagreement among them on what the writ was.
The most instructive contribution comes from Burrill, who provides the actual Latin command text ("Cape in manum nostrum tertiam partem messuagii") and explicitly explains the etymological basis of the name. This is the entry that resolves the apparent puzzle of why a geographical word appears in a real property context. Black's (both editions) and Bouvier's treat the term more summarily, stating the division into forms without illuminating the underlying command structure.
All sources agree the writ was abolished. None of the historical dictionaries treat cape as live practice law or attempt to analogize it to surviving procedural mechanisms, which is the appropriate scholarly posture given how completely the real actions system was dismantled.
Jurisdictional Note
Cape was an English writ associated with the common law real actions system. American jurisdictions largely abandoned real actions and their attendant writs in the nineteenth century through statutory reform, well before or concurrent with English abolition. The writ has no modern operational form in any common law jurisdiction.