Writ

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A writ of attachment. Writ 1702.jpg
A writ of attachment.

In common law, a writ (Anglo-Saxon gewrit, Latin breve) [1] is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, and certiorari are common types of writ, but many forms exist and have existed.

Contents

In its earliest form, a writ was simply a written order made by the English monarch to a specified person to undertake a specified action; for example, in the feudal era a military summons by the king to one of his tenants-in-chief to appear dressed for battle with retinue at a certain place and time. [2] An early usage survives in the United Kingdom, Canada, and Australia in a writ of election, which is a written order issued on behalf of the monarch (in Canada, by the Governor General and, in Australia, by the Governor-General for elections for the House of Representatives, or State Governors for state elections) to local officials (High Sheriffs of every county in the United Kingdom) to hold a general election. Writs were used by the medieval English kings to summon people to Parliament [3] (then consisting primarily of the House of Lords) whose advice was considered valuable or who were particularly influential, and who were thereby deemed to have been created "barons by writ".

History

Origins

The writ was a unique development of the Anglo-Saxon monarchy and consisted of a brief administrative order, authenticated (innovatively) by a seal. [4] Written in the vernacular, they generally made a land grant or conveyed instructions to a local court. In the beginning, writs were the documents issued by the King's Chancellor against a landowner whose vassal complained to the King about an injustice, after a first summon by the sheriff to comply had been deemed fruitless. [4] William the Conqueror took over the system unchanged, but was to extend it in two ways: first, writs became mainly framed in Latin, not Anglo-Saxon; second, they covered an increasing range of royal commands and decisions. [5] Writs of instruction continued to develop under his immediate successors, but it was not until Henry II that writs became available for purchase by private individuals seeking justice, thus initiating a vast expansion in their role within the common law. [6]

Writs could take two main forms: 'letters patent', which were open for all to read, and 'letters close' for one or more specified individuals alone. [7]

Development

The development of writs as a means of commencing a court action was a form of "off-the-shelf" justice designed to enable the English law courts to rapidly process lawsuits by allocating each form of complaint into a standard category which could be dealt with by standard procedures. The complainant simply applied to the court for the writ most relevant to his complaint to be sent to the wrongdoer, which ordered him under royal authority to attend a royal court to answer for his actions. The development was part of the establishment of a Court of Common Pleas, for dealing with commonly made complaints by subjects of the crown, for example: "someone has damaged my property". The previous system of justice at the royal court of Chancery was tailor-made to suit each case and was thus highly time-consuming. Thus eventually the obtaining of a writ became necessary, in most cases, to have a case heard in one of the Royal Courts, such as the King's Bench or Common Pleas. Some franchise courts, especially in the Counties Palatine, had their own system of writs which often reflected or anticipated the common law writs. The writ was "served" on (delivered in person to) the wrongdoer and acted as a command that he should appear at a specified time and date before the court specified in the writ, or it might command some other act on the part of the recipient.

Where a plaintiff wished to have a case heard by a local court, or by the justice of an Eyre if one happened to be visiting the county, there would be no need to obtain a writ. Actions in local courts could usually be started by an informal complaint. However, if a plaintiff wished to avail himself of Royal — and by implication superior — justice in one of the King's courts, then he would need a writ, a command of the King, to enable him to do this. Initially, for common law, recourse to the King's courts was unusual, and something for which a plaintiff would have to pay. For most Royal Courts, the writ would usually have been purchased from the Chancery, although the court of the Exchequer, being, in essence, another government department, was able to issue its own writs.

While originally writs were exceptional, or at least non-routine devices, Maitland suggests that by the time of King Henry II (1154–1189), the use of writs had become a regular part of the system of royal justice in England.

At first, new writs were drafted to fit each new situation, although in practice the clerks of the Chancery would use wording from previously issued writs, with suitable adjustments, often taken from reference books containing collections of forms of writ, much as in modern times lawyers frequently use fixed precedents or boilerplate, rather than re-inventing the wording of a new legal document. The problem with this approach was that a plaintiff's rights and available forms of action at his disposal, would be defined, and in most cases limited, by the limited variety of writs available to him. Thus the power to create new writs was akin to the power to create new rights, a form of extra-parliamentary legislation. Moreover, a writ, if one could be found fitting the plaintiff's case, provided the legal means to remove the dispute from the jurisdiction of the local court, often controlled by a lesser noble, and instead have it heard by the King's judges. The nobility thus saw the creation of new writs as an erosion of their influence.

Over time, opposition to the creation of new writs by the Chancery increased. For example, in 1256 a court was asked to quash a writ as "novel, unheard of, and against reason". [8] Ultimately in 1258, the King was forced to accept the Provisions of Oxford, which among other things, prohibited the creation of new forms of writ without the sanction of the King's council. New writs were created after that time only by the express sanction of Parliament and the forms of writ remained essentially static, each writ defining a particular form of action. It was the role and expertise of a solicitor to select on his client's behalf the appropriate writ for the proposed legal action. These were purchased from the court by payment of a fee. A barrister would then be hired by the solicitor to speak for his client in court.

Rationalisation of writs

With the abolition of the Forms of Action in 1832 and 1833,a profusion of writs was no longer needed, and one uniform writ came into use. After 1852, the need to state the name of the form of action was also abolished. In 1875, the form of writ was altered so that it conformed more to the subpoena used in the Chancery. A writ was a summons from the Crown, to the parties to the action, with on its back the substance of the action set out, together with a 'prayer' requesting a remedy from the court (for example damages). In 1980, the need for writs to be written in the name of the Crown was ended. From that time, a writ simply required the parties to appear. [9]

Writs applied to claims that were to be heard in one of the courts which eventually formed part of the High Court of Justice. The procedure in a county court, which was established by statute, was to issue a 'summons'.

In 1999, the Woolf Reforms unified most of the procedure of the Supreme Court and the county courts in civil matters. These reforms brought in the Civil Procedure Rules. Under these, almost all civil actions, other than those connected with insolvency, are now commenced by the completion of a 'Claim Form' as opposed to the obtaining of a 'Writ', 'Originating Application', or 'Summons' (see Rules 7 and 8 of the Civil Procedure Rules).

List

The following writs, amongst others, existed in England: [10]

Writ of election

In some Westminster systems, for example Canada and some other parliamentary systems, the phrase 'dropping the writ' refers colloquially to a dissolution of parliament and the beginning of an election campaign to form a new one. This phrase derives from the fact that to hold an election in such a system a writ of election must be issued on behalf of the monarch ordering the High Sheriffs of each county to set in motion the procedure for elections.

United States law

1702 Writ of Attachment signed by Chief Justice John Guest of the Province of Pennsylvania in the name of Queen Anne Writ 1702.jpg
1702 Writ of Attachment signed by Chief Justice John Guest of the Province of Pennsylvania in the name of Queen Anne
Return of the Writ shown above, endorsed by the Sheriff of Philadelphia, stating that he is still in possession of the attached property for want of a buyer Return of 1702 writ of attachment signed by Chief Justice John Guest of Pennsylvania.jpg
Return of the Writ shown above, endorsed by the Sheriff of Philadelphia, stating that he is still in possession of the attached property for want of a buyer

Early law of the United States inherited the traditional English writ system, in the sense of a rigid set of forms of relief that the law courts were authorized to grant. The All Writs Act [64] authorizes United States federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." However, the Federal Rules of Civil Procedure, adopted in 1938 to govern civil procedure in the United States district courts, provide that there is only one form of action in civil cases, and explicitly abolish certain writs by name. Relief formerly available by a writ is now normally available by a lawsuit (civil action) or a motion in a pending civil action. Nonetheless, a few writs have escaped abolition and remain in current use in the U.S. federal courts:

The situation in the courts of the various U.S. states varies from state to state but is often similar to that in the federal courts. Some states continue to use writ procedures, such as quo warranto , that have been abolished as a procedural matter in federal courts.

In an attempt to purge Latin from the language of the law, California law has for many years used the term 'writ of mandate' in place of writ of mandamus , and writ of review in place of writ of certiorari.

Prerogative writs

The "prerogative" writs are a subset of the class of writs, those that are to be heard ahead of any other cases on a court's docket except other such writs. The most common of the other such prerogative writs are habeas corpus, quo warranto, prohibito , mandamus, procedendo , and certiorari.

The due process for 'petitions for' such writs is not simply civil or criminal, because they incorporate the presumption of non-authority, so that the official who is the respondent has the burden to prove his authority to do or not do something, failing which the court has no discretion but to decide for the petitioner, who may be any person, not just an interested party. In this, they differ from a motion in a civil process in which the burden of proof is on the movant, and in which there can be a question of standing.

Other writs

Indian law

Under the Indian legal system, jurisdiction to issue 'prerogative writs' is given to the Supreme Court, and to the High Courts of Judicature of all Indian states. Parts of the law relating to writs are set forth in the Constitution of India. The Supreme Court, the highest in the country, may issue writs under Article 32 of the Constitution for enforcement of fundamental rights and under Article 139 for enforcement of rights other than fundamental rights, while High Courts, the superior courts of the States, may issue writs under Articles 226. The Constitution broadly provides for five kinds of "prerogative" writs: habeas corpus, certiorari, mandamus, quo warranto and prohibition:

See also

Notes

  1. S. H. Steinberg ed., A New Dictionary of British History (London 1963) p. 402
  2. Francis Palgrave, Parliamentary Writs and Writs of Military Summons (2 volumes, 1827 and 1834)
  3. R. Wickson, The Community of the Realm in 13th Century England (London 1970) p.66
  4. 1 2 G. O. Sayles, The Medieval Foundations of England (London 1966) p. 174
  5. D. Douglas, William the Conqueror (London 1966) p. 293
  6. G. O. Sayles, The Medieval Foundations of England (London 1966) pp. 305, 332–33
  7. R. Wickson, the Community of the Realm in 13th C England (London 1970) p. 24
  8. Abbot of Lilleshall v Harcourt (1256) 96 SS xxix 44
  9. Rules of the Supreme Court (Writ and Appearance) 1979 (Statutory Instrument 1979, No. 1716), discussed in House of Lords in 1980,
  10. For a list of writs, see for example, "Antiquities of the Law" (1870) 1 Albany Law Journal 247.
  11. John Rastell and William Rastell. Les Termes de la Ley. In the Savoy. 1721. p 27
  12. Black's Law Dictionary, 2nd Ed, 1910, p 44.
  13. Ephraim Chambers. "Advocatione". Cyclopaedia. Fifth Edition. 1741. Volume 1.
  14. Finlason. Reeves' History of the English Law. New American Edition. 1880. p 501.
  15. Ruffhead. "Advowson" in "The Table". The Statutes at Large. 1765. Volume 9.
  16. Encyclopædia Britannica. 9th Ed. 1888. vol 23. p 412.
  17. Mozley and Whiteley. A Concise Law Dictionary. Butterworths. London. 1876. p 15.
  18. See further FNB 30 and 2 Co Inst 489 and 646.
  19. Henry James Holthouse. A New Law Dictionary. 2nd Ed. London. Boston. 1850. p 29.
  20. Ephraim Chambers. "Arrestandis". Cyclopaedia. Fifth Edition. 1741. Volume 1.
  21. Adams. A Juridicial Glossary. 1886. vol 1. p 277.
  22. Thomas Walter Williams. "ARR". A Compendious and Comprehensive Law Dictionary. 1816.
  23. Mozely and Whitely, A Concise Law Dictionary, 1876, p 48
  24. See further 2 Co Inst 328; "The Merry Wives of Windsor" (1984) 59 Shakespearean Criticism 150; Dolan (ed), "Renaissance Drama and the Law" (1996) 25 Renaissance Drama 158; Ross, Elizabethan Literature and the Law of Fraudulent Conveyance, 2003, p 26.
  25. As to the meaning of "cattle" generally, see for example Stroud, The Judicial Dictionary, 1890, p 113; and Dwarris, A General Treatise on Statutes, 2nd Ed, 1848, p 248.
  26. Henry James Holthouse. A New Law Dictionary. 2nd Ed. London. Boston. 1850. p 29.
  27. Ephraim Chambers. "Arrestando". Cyclopaedia. Fifth Edition. 1741. Volume 1.
  28. See further 2 Co Inst 53; Reg Orig 24; Tyler v Pomeroy (1864) 8 Allen's Massachusetts Reports 480 at 487.
  29. Henry James Holthouse. A New Law Dictionary. 2nd Ed. London. Boston. 1850. p 29.
  30. Ephraim Chambers. "Arresto". Cyclopaedia. Fifth Edition. 1741. Volume 1.
  31. Adams. A Juridicial Glossary. 1886. vol 1. p 191.
  32. See further Reg Orig 129; 2 Co Inst 205; FNB 114; 4 Co Inst 124; De Lovio v Boit (1815) 2 Gallison 398 at 408, 23 Myer's Federal Decisions 20 at 26; Molloy, De jure maritimo et navali, p 29; 17 Viner's Abridgment 4.
  33. An Abridgment of Sir Edward Coke's Reports. New York. 1813. p 233
  34. Maugham. A Treatise on the Law of Attornies, Solicitors and Agents. 1825. p 6.
  35. The New Encyclopaedia. 1807. vol 3. p 78.
  36. Adams. A Juridicial Glossary. 1886. vol 1. p 277.
  37. Adams. A Juridicial Glossary. 1886. vol 1. p 619.
  38. Henry James Holthouse. A New Law Dictionary. 2nd Ed. London. Boston. 1850. p 36
  39. Ephraim Chambers. "Atturnato". Cyclopaedia. Fifth Edition. 1741. Volume 1.
  40. Sweet. A Dictionary of English Law. 1882. p 153.
  41. Edward Wynne. "Observations on Fitzherbert's Natura Brevium". 1760. printed in "A Miscellany containing Several Law Tracts". 1765. p 24.
  42. See further FNB 156
  43. 1 2 Henry James Holthouse. A New Law Dictionary. 2nd Ed. London. Boston. 1850. p 39.
  44. Adams. A Juridicial Glossary. 1886. vol 1. p 230.
  45. Ephraim Chambers. "Auxilium". Cyclopaedia. Fifth Edition. 1741. Volume 1.
  46. English. A Dictionary of Words and Phrases Used in Ancient and Modern Law. 1899. Reprinted 2000. vol 1. p 79.
  47. Digby. An Introduction to the History of the Law of Real Property. 2nd Ed. 1876. p 117. The enactment which is chapter 36 in Ruffhead's edition is sometimes cited as chapter 35.
  48. Mozely and Whitely. A Concise Law Dictionary. 1876. p 36
  49. See further 2 Broom & Had Com 144; FNB 82 and 83; and The Law-french Dictionary.
  50. 1 2 3 Henry C Adams. A Juridical Glossary. 1886. Weed, Parsons & Company. Albany, New York. Volume 1. p 278.
  51. John Rastell and William Rastell. Les Termes de la Ley. In the Savoy. 1721. p 35
  52. 1 Rosc Real Act 127
  53. Ephraim Chambers. "Ayel". Cyclopaedia. Fifth Edition. 1741. Volume 1.
  54. Also called an ancestral possessory writ: 1 Rosc. Real Act. 127; Martin, Civil Procedure at Common Law, 1899, p 127. Ayel is an ancestral writ: Roberts, A Digest of Select British Statutes, 1817, p 148. Cf. Booth, p 83.
  55. Roberts, A Digest of Select British Statutes, 1817, p 148. Buchanan, A Technological Dictionary, 1846, p 133. (1879) 112 Westminster Review 356. (1943) Bulletin of the Institute of Historical Research 217. Booth, The Nature and Practice of Real Actions, 2nd Ed, 1811, Ch 16, pp 200 to 205.
  56. John Rastell and William Rastell. Les Termes de la Ley. In the Savoy. 1721. p 119.
  57. Ephraim Chambers. "Chartis". Cyclopaedia. Fifth Edition. 1741. Volume 1.
  58. Bouvier's Law Dictionary. Revised 6th Ed. 1856.
  59. Stewart Rapalje and Robert L Lawrence. A Dictionary of American and English Law. Frederick D Lynn & Co. Jersey City. 1888. vol 1. p 341.
  60. "Detinue of charters" (or "detinue for charters") was a form of detinue.
  61. Williams. " Chartis reddendis". A Compendious and comprehensive Law Dictionary. 1816.
  62. Bouvier. A Law Dictionary. 2nd Ed. 1843. vol 1. p 257.
  63. See further, Finlason, Reeves' History of the English Law, 1869, vol 2, pp 383 to 385; and Troubat, The Practice in Civil Actions and Proceedings, 1837, vol 2, p 30.
  64. 28 U.S.C.   § 1651
  65. "Glossary of Terms", Shelby County Criminal Court Clerk, s.v. "capias", retrieved on 30 Jun 2009: .
  66. "Writ and Petition History System in Texas" page 90 In Quarles, Brandon D. and Cordon, Matthew C. (2003) Legal Research for the Texas Practitioner  W.S. Hein, Buffalo, New York, ISBN   978-0-8377-3626-6
  67. "Glossary of Terms", Colorado State Courts, retrieved on 19 June 2009: .
  68. "Gloss...Terms", Shelby (op. cit.), s.v. "Venire facias".

Bibliography

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This page is a glossary of law.