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 writs, but many forms exist and have existed.
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 specific 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 complaint form into a standard category that could be dealt with by standard procedures. The complainant 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. An informal complaint could usually start actions in local courts. 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, could 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 unique situation. However, 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.[9] 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.[9] 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. The solicitor would then hire a barrister 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 to conform 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.[10]
Writs applied to claims to be heard in one of the courts, eventually forming 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 procedures 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).
The following writs, amongst others, existed in England:[11]
Advocatione decimarum was a writ which lay for claiming the fourth part or more of tithes which belong to the church: Reg of Writs, fol 29b.[12][13][14] The writ was founded on section 4 of chapter 5 of the Statute of Westminster 1285.[15][16][17] It was obsolete by 1876.[18][19]
Arrestandis bonis ne dissipentur was a writ which lay for a man whose cattle or goods were taken by another, who was likely, during the controversy, to make away with them, and would hardly have been able to make satisfaction for them afterwards. Reg of Writs 126. Cowel.[20][21] The writ lay to seize the cattle and goods in the hands of a party, and to hold them during the pendency of a suit, to prevent their being made away with. Reg Orig 126b.[22] In 1816, Williams said the writ lay anciently.[23] Also called bonis arrestandis.[24][25][26]
Arrestando ipsum qui pecuniam recepit was a writ which anciently lay for the apprehension of him who had taken prest money for the king's wars, and afterwards hid himself, when he should have been ready to go. Reg Orig 24. Cowel.[27][28][29]
Arresto facto super bonis mercatorum alienigenorum was a writ that lay for a denizen against the goods of aliens found in the kingdom, as a recompense for goods taken from him in a foreign country after a refusal to restore them. Reg Orig 129; Cowel.[30][31] The writ was equivalent to clarigatio.[32][33]
Attornato faciendo,[34] or de attornato faciendo[35] or atturnato faciendo[36] or attornato recipiendo[37] or dedimus potestatem de attornato faciendo[38] or Attornato faciendo vel recipiendo, was a writ, commanding a sheriff or steward of a county court, or hundred court to receive an attorney for the person taking out the writ, and to admit his appearance by him. Cowel.[39][40] Sweet said it was the writ dedimus potestatem.[41] In 1760, Wynne said that the writ de attornato faciendo was obsolete.[42][43]
Auxilium ad filium militem faciendum et filiam maritandam,[44] or Auxilium ad filium primogenitum militem faciendum, vel ad filiam primogenitam maritandam,[45] was a writ directed to the sheriff of every county where the king or other lord had tenants, to levy of them reasonable aid towards the knighting of his son and the marriage of his eldest daughter. Cowel. No man was entitled to have this writ before his son had attained the age of fifteen years, or his daughter the age of seven years. FNB 82 A; Reg Orig 87; Glanvil, l 9, c 8;[44][46][47]Statute of Westminster 1275 c 36.[48] This writ was abolished by the Tenures Abolition Act 1660 (12 Cha. 2. c. 24).[49][50]
Ayel, or ayle or de avo[51] or aile[52] or aiel,[53] was a writ which lay for an heir to recover the possession of lands of which a grandfather or grandmother was seized in fee simple on the day of his or her death; and a stranger entered on that day and abated or dispossessed the heir of the inheritance. FNB 221D; 3 Bl Com 186. It was a possessory ancestral writ.[51][54][55] 1 Rosc Real Act 127. It was abolished by section 36 of the Real Property Limitation Act 1833 (3 & 4 Will 4 c 27).[51] Ayle was one of a group of writs consisting of ayle, besayle, tresayle, and cosinage.[56]
Chartis reddendis was a writ which lay against him that has charters of feoffment delivered him to be kept, and refuses to deliver them. Old Nat Brev, fol 66. Reg Orig, fol 159.[57][58][59] It was a writ of detinue of charters.[60][61] It had fallen into disuse by 1816[62] and was obsolete by 1843.[63][64]
1702 Writ of Attachment signed by Chief Justice John Guest of the Province of Pennsylvania in the name of Queen AnneReturn 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 adopted 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[65] 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 commonly 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 writ of habeas corpus, usually used to test the legality of a prisoner's detention, has expressly been preserved. It is explicitly mentioned in Article I, Section 9, Clause 2 of the Constitution of the United States. In the United States federal courts, the writ is most often used to review the constitutionality of criminal convictions rendered by state courts. The writ's application does not stop there: the Supreme Court has held the writ of habeas corpus open to all individuals held by the federal government, including Guantanamo Bay detainees. See Boumediene v. Bush.
In extraordinary circumstances, the United States court of appeals can use the common law writ of prohibition under the All Writs Act to control proceedings in the district courts.
Some courts have held that in rare circumstances in a federal criminal case, a United States district court may use the common law writ of error coram nobis under the All Writs Act to set aside a conviction when no other remedy is available.
In modern times, the All Writs Act is most commonly used as authority for federal courts to issue injunctions to protect their jurisdiction or effectuate their judgments.
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.
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.
A writ of audita querela inhibits the unconscionable use of a lawful judgment because of matters arising after the judgment.
A writ of capias directs an officer to take the person named in the writ or order into custody.[66]
A writ of coram nobis corrects a previous error "of the most fundamental character" to "achieve justice" where "no other remedy" is available, e.g., when a judgment was rendered without full knowledge of the facts.
A writ of elegit orders the seizure of a portion of a debtor's lands and all his goods (except work animals) towards satisfying a creditor until the debt is paid off.
A writ of error is issued by an appellate court and directs a lower court of record to submit its record of the case laid for appeal.[67]
A writ of exigent (or exigend) commands a sheriff to summon a defendant indicted for a felony who had failed to appear in court to deliver himself upon pain of outlawry or forfeiture of his goods.
A writ of fieri facias (colloquially "fi fa") commands a sheriff to take and auction off enough property from a losing party to pay the debt (plus interest and costs) owed by a judgment debtor.
A writ of mittimus orders either (1) a court to send its record to another or (2) a jailor to receive the accused in their custody at any point during the investigative or trial process.
A writ of ne exeat restrains a defendant from fleeing the country or jurisdiction.
A writ of praemunire instructs a sheriff to order someone to appear in court to answer for several different crimes.
Under the Indian legal system, jurisdiction to issue 'prerogative writs' is given to the Supreme Court of India and the High Courts of Judicature of all Indian states. Parts of the law relating to writs are outlined 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:
The writ of prohibition (forbid) is issued by a higher court to a lower court, prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. Thus, the higher court transfers the case to itself.
The writ of habeas corpus (to have the body of) is issued to a detaining authority, ordering the detainer to produce the detained person in the issuing court, along with the cause of their detention. If the detention is illegal, the court issues an order to free the person.
The writ of certiorari (be informed) is issued to a lower court directing that the record of a case be sent up for review, together with all supporting files, evidence, and documents, usually to overrule the judgment of the lower court. It is one of the mechanisms by which the fundamental rights of the citizens are upheld.
The writ of mandamus (command) is issued to a subordinate court, an officer of the government, or a corporation or other institution commanding the performance of certain acts or duties. But it cannot be issued against a Public Authority for enforcing a Private Contractual Obligation read more
The writ of quo warranto (by what authority; under what warrant) is issued against a person who claims or usurps a public office. Through this writ, the court inquires 'by what authority' the person supports their claim.
↑ 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.
↑ Henry James Holthouse. A New Law Dictionary. 2nd Ed. London. Boston. 1850. p 29.
↑ Adams. A Juridicial Glossary. 1886. vol 1. p 191.
↑ 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.
↑ An Abridgment of Sir Edward Coke's Reports. New York. 1813. p 233
↑ Maugham. A Treatise on the Law of Attornies, Solicitors and Agents. 1825. p 6.
↑ English. A Dictionary of Words and Phrases Used in Ancient and Modern Law. 1899. Reprinted 2000. vol 1. p 79.
↑ 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.
↑ Mozely and Whitely. A Concise Law Dictionary. 1876. p 36
↑ 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.
↑ John Rastell and William Rastell. Les Termes de la Ley. In the Savoy. 1721. p 119.
↑ Bouvier. A Law Dictionary. 2nd Ed. 1843. vol 1. p 257.
↑ 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.
↑ "Glossary of Terms", Shelby County Criminal Court Clerk, s.v. "capias", retrieved on 30 Jun 2009: .
↑ "Writ and Petition History System in Texas" page 90In Quarles, Brandon D. and Cordon, Matthew C. (2003) Legal Research for the Texas Practitioner W.S. Hein, Buffalo, New York, ISBN978-0-8377-3626-6
↑ "Glossary of Terms", Colorado State Courts, retrieved on 19 June 2009: .
This article incorporates text from this source, which is in the public domain: John Rastell and William Rastell. Les Termes de la Ley. 1721.
This article incorporates text from this source, which is in the public domain: Stewart Rapalje and Robert L Lawrence. A Dictionary of American and English Law. Frederick D Lynn & Co. Jersey City. 1888. vol 1.
This article incorporates text from this source, which is in the public domain: Henry C Adams. A Juridical Glossary. 1886. Weed, Parsons & Company. Albany, New York. Volume 1.
This article incorporates text from this source, which is in the public domain: Henry James Holthouse. A New Law Dictionary. Second Edition. Thomas Blenkarn. London. Charles C Little and James. Boston. 1850.
In the field of jurisprudence, equity is the particular body of law, developed in the English Court of Chancery, with the general purpose of providing legal remedies for cases wherein the common law is inflexible and cannot fairly resolve the disputed legal matter. Conceptually, equity was part of the historical origins of the system of common law of England, yet is a field of law separate from common law, because equity has its own unique rules and principles, and was administered by courts of equity.
A writ of mandamus is a judicial remedy in the English and American common law system consisting of a court order that commands a government official or entity to perform an act it is legally required to perform as part of its official duties, or to refrain from performing an act the law forbids it from doing. Writs of mandamus are usually used in situations where a government official has failed to act as legally required or has taken a legally prohibited action. They cannot be issued to compel an authority to do something against the law. For example, it cannot be used to force a lower court to take a specific action on applications that have been made, but if the court refuses to rule one way or the other, then a mandamus can be used to order the court to rule on the applications.
In law, certiorari is a court process to seek judicial review of a decision of a lower court or government agency. Certiorari comes from the name of an English prerogative writ, issued by a superior court to direct that the record of the lower court be sent to the superior court for review. The term is Latin for "to be made more certain", and comes from the opening line of such writs, which traditionally began with the Latin words "Certiorari volumus...".
A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. This writ is often issued by a superior court to the lower court directing it not to proceed with a case which does not fall under its jurisdiction.
"Prerogative writ" is a historic term for a writ that directs the behavior of another arm of government, such as an agency, official, or other court. It was originally available only to the Crown under English law, and reflected the discretionary prerogative and extraordinary power of the monarch. The term may be considered antiquated, and the traditional six comprising writs are often called the extraordinary writs and described as extraordinary remedies.
A summons is a legal document issued by a court or by an administrative agency of government for various purposes.
In a civil proceeding or criminal prosecution under the common law or under statute, a defendant may raise a defense in an effort to avert civil liability or criminal conviction. A defense is put forward by a party to defeat a suit or action brought against the party, and may be based on legal grounds or on factual claims.
A writ of coram nobis is a legal order allowing a court to correct its original judgment upon discovery of a fundamental error that did not appear in the records of the original judgment's proceedings and that would have prevented the judgment from being pronounced. The term coram nobis is Latin for "before us" and the meaning of its full form, quae coram nobis resident, is "which [things] remain in our presence". The writ of coram nobis originated in the courts of common law in the English legal system during the sixteenth century.
Replevin or claim and delivery is a legal remedy which enables a person to recover personal property taken wrongfully or unlawfully, and to obtain compensation for resulting losses.
In tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor. For an action in detinue to succeed, a claimant must first prove that he had better right to possession of the chattel than the defendant, and second, that the defendant refused to return the chattel once demanded by the claimant.
The Statute of Marlborough is a set of laws passed by the Parliament of England during the reign of Henry III in 1267. The laws comprised 29 chapters, of which four are still in force. Those four chapters constitute the oldest piece of statute law in the United Kingdom still in force as of 2024.
Trover is a form of lawsuit in common law jurisdictions for recovery of damages for wrongful taking of personal property. Trover belongs to a series of remedies for such wrongful taking, its distinctive feature being recovery only for the value of whatever was taken, not for the recovery of the property itself.
A subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the ecclesiastical courts of Church during the High Middle Ages, especially in England. The use of the subpoena writ was gradually adopted over time by civil and criminal courts in England and the European continent.
The Supreme Court of the United States is the highest court in the federal judiciary of the United States. The procedures of the Court are governed by the U.S. Constitution, various federal statutes, and its own internal rules. Since 1869, the Court has consisted of one chief justice and eight associate justices. Justices are nominated by the president, and with the advice and consent (confirmation) of the U.S. Senate, appointed to the Court by the president. Once appointed, justices have lifetime tenure unless they resign, retire, or are removed from office.
Compurgation, also called trial by oath, wager of law, and oath-helping, was a defence used primarily in medieval law. A defendant could establish their innocence or nonliability by taking an oath and by getting a required number of persons, typically twelve, to swear they believed the defendant's oath. The wager of law was essentially a character reference, initially by kin and later by neighbours, often 11 or 12 men, and it was a way to give credibility to the oath of a defendant at a time when a person's oath had more credibility than a written record. It can be compared to a legal wager, which is the provision of surety at the beginning of legal action to minimize frivolous litigation.
Audita querela is a writ, stemming from English common law, that serves to permit a defendant who has had a judgment rendered against him or her to seek relief of the consequences of such a judgment where there is some new evidence or legal defense that was not previously available. The writ is thus generally used to prevent a judgment from being executed where enforcement of that judgment would be "contrary to justice". At common law, the writ may be useful where a creditor engages in fraud before the judgment is rendered, or because the debt had been discharged, paid or otherwise satisfied after the judgment is rendered.
In some jurisdictions, a petition for review is a formal request for an appellate tribunal to review the decision of a lower court or administrative body. If a jurisdiction utilizes petitions for review, then parties seeking appellate review of their case may submit a formal petition for review to an appropriate court. In United States federal courts, the term "petition for review" is also used to describe petitions that seek review of federal agency actions.
The writ of mandate is a type of extraordinary writ in the U.S. state of California. In California, certain writs are used by the superior courts, courts of appeal and the Supreme Court to command lower bodies, including both courts and administrative agencies, to do or not to do certain things. A writ of mandate may be granted by a court as an order to an inferior tribunal, corporation, board or person, both public and private. Unlike the federal court system, where interlocutory appeals may be taken on a permissive basis and mandamus are usually used to contest recusal decisions, the writ of mandate in California is not restricted to purely ministerial tasks, but can be used to correct any legal error by the trial court. Nonetheless, ordinary writ relief in the Court of Appeal is rarely granted.
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