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 thefeudal era, a military summons by the king to one of histenants-in-chief to appear dressed for battle withretinue at a specific place and time.[3] An early usage survives in the United Kingdom, Canada, Australia, and some otherCommonwealth countries in awrit of election, which is a written order issued on behalf of the monarch (in Canada, by theGovernor General and, in Australia, by theGovernor-General for elections for the House of Representatives, or state governors for state elections) to local officials to hold ageneral election. Writs were used by the medieval English kings to summon people toParliament[4] (then consisting primarily of theHouse of Lords) whose advice was considered valuable or who were particularly influential, and who were thereby deemed to have been created "barons by writ".
Sometime before thetenth century, officials in England began utilizing writs to convey orders.[5] A "writ" was simply a short written command issued by a person in authority. It was customary for the sender toseal such a command as proof of its authenticity. In the days when writing was a rare art, a writ was revered because the person receiving the command was unlikely to deny or question its legitimacy.[6] TheNorman Conquest of England in 1066 led to the establishment of a strong, centralized monarchy. The firstNormanKing of England,William the Conqueror, modified writs to become mainly framed in Latin, increased the number of writs to cover additional royal commands, and established theCuria Regis in England.[7] TheCuria Regis, a Latin term meaning "royal council", consisted of the King of England and his loyal advisors. TheCuria Regis accompanied the King as he travelled. This council administered all of the King's governmental activities, including judicial matters.[8]
One of the most important members of theCuria Regis was theLord Chancellor. The Lord Chancellor led the chancery.Chancery is a general term for amedieval writing office that was responsible for the production of official documents.[9] The Lord Chancellor wrote writs on behalf of the King, maintained all official documents, and acted as the keeper of theroyal seal. This position, in effect, placed the Lord Chancellor as the head of the English legal system. The King, however, was the ultimate leader of the kingdom; therefore, the Lord Chancellor issued writs under the guidance of what he believed to be in the best interests of the King. Between the twelfth and thirteenth centuries, the Lord Chancellor had a large control over the issuance of all original writs. In this history of English common law, original writs began a legal proceeding, while a judicial writ was issued during a legal proceeding.[8]
The writ was a unique development of theAnglo-Saxon monarchy and consisted of a brief administrative order, authenticated (innovatively) by aseal.[10] Written in thevernacular, they generally made aland grant or conveyed instructions to a local court. In the beginning, writs were the documents issued by the King's Chancellor against a landowner whosevassal complained to the King about an injustice, after a first summon by the sheriff to comply had been deemed fruitless.[10]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.[7] Writs of instruction continued to develop under his immediate successors, but it was not untilHenry II that writs became available for purchase by private individuals seeking justice, thus initiating a vast expansion in their role within the common law.[10]
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.[4]
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 aCourt 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 royalcourt 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 theKing's Bench orCommon Pleas. Some franchise courts, especially in theCounties 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 aplaintiff wished to have a case heard by a local court or by the justice of anEyre 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 theExchequer, 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 ofKing 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 orboilerplate, 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 lessernoble, 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".[11] Ultimately, in 1258, the King was forced to accept theProvisions of Oxford, which among other things, prohibited the creation of new forms of writ without the sanction of theKing's council.[12] 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 particularform of action.[12] It was the role and expertise of asolicitor 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 abarrister to speak for his client in court.
With the abolition of theForms 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 thesubpoena used in the Chancery. A writ was asummons 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 (specifically, with the full name and titles of the sitting monarch) was abolished.[13] This occurred at the insistence of Lord ChancellorHailsham, who felt that a command from the monarch was too intimidating for ordinary laypeople.[13] From that time forward, a writ simply required the parties to appear.[14]
Writs applied to claims to be heard in one of the courts, eventually forming part of theHigh Court of Justice. The procedure in acounty court, which was established by statute, was to issue a 'summons'.
In 1999, theWoolf Reforms unified most of the procedures of the Supreme Court and the county courts in civil matters. These reforms brought in theCivil 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:[15]
Advocatione decimarum was a writ which lay for claiming the fourth part or more oftithes which belong to the church: Reg of Writs, fol 29b.[16][17][18] The writ was founded on section 4 of chapter 5 of theStatute of Westminster 1285.[19][20][21] It was obsolete by 1876.[22][23]
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.[24][25] 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.[26] In 1816, Williams said the writ lay anciently.[27] Also calledbonis arrestandis.[28][29][30]
Arrestando ipsum qui pecuniam recepit was a writ which anciently lay for the apprehension of him who had takenprest money for the king's wars, and afterwards hid himself, when he should have been ready to go. Reg Orig 24. Cowel.[31][32][33]
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.[34][35] The writ was equivalent toclarigatio.[36][37]
Attornato faciendo,[38] orde attornato faciendo[39] oratturnato faciendo[40] orattornato recipiendo[41] ordedimus potestatem de attornato faciendo[42] orAttornato faciendo vel recipiendo, was a writ, commanding a sheriff or steward of a county court, orhundred court to receive an attorney for the person taking out the writ, and to admit his appearance by him. Cowel.[43][44] Sweet said it was the writdedimus potestatem.[45] In 1760, Wynne said that the writde attornato faciendo was obsolete.[46][47]
Auxilium ad filium militem faciendum et filiam maritandam,[48] orAuxilium ad filium primogenitum militem faciendum, vel ad filiam primogenitam maritandam,[49] was a writ directed to the sheriff of every county where the king or other lord had tenants, to levy of them reasonableaid towards theknighting 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;[48][50][51]Statute of Westminster 1275 c 36.[52] This writ was abolished by theTenures Abolition Act 1660 (12 Cha. 2. c. 24).[53][54]
Ayel, orayle orde avo[55] oraile[56] oraiel,[57] was a writ which lay for an heir to recover the possession of lands of which a grandfather or grandmother wasseized infee 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 apossessory ancestral writ.[55][58][59] 1 Rosc Real Act 127. It was abolished by section 36 of theReal Property Limitation Act 1833 (3 & 4 Will 4 c 27).[55] Ayle was one of a group of writs consisting of ayle, besayle, tresayle, and cosinage.[60]
Beau pleader, whereby it is provided that nofine shall be taken of anyone in any court for fair pleading, i.e. for not pleading aptly, and to the purpose.[61]
Chartis reddendis was a writ which lay against him that hascharters offeoffment delivered him to be kept, and refuses to deliver them. Old Nat Brev, fol 66. Reg Orig, fol 159.[62][63][64] It was a writ ofdetinue of charters.[65][66] It had fallen into disuse by 1816[67] and was obsolete by 1843.[68][69]
1702 Writ of Attachment signed by Chief JusticeJohn Guest of theProvince of Pennsylvania in the name ofQueen AnneReturn of the Writ shown above, endorsed by theSheriff ofPhiladelphia, stating that he is still in possession of the attached property for want of a buyer
Earlylaw of the United States adopted the traditional English writ system, in the sense of a rigid set of forms of relief that the lawcourts were authorized to grant. TheAll Writs Act[70] authorizesUnited 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, theFederal Rules of Civil Procedure, adopted in 1938 to governcivil procedure in theUnited 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 alawsuit (civil action) or amotion in a pending civil action. Nonetheless, a few writs have escaped abolition and remain in current use in the U.S. federal courts:[71]
The writ ofhabeas 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 theConstitution of the United States. In the United States federal courts, the writ is most often used to review the constitutionality of criminal convictions rendered bystate courts. The writ's application does not stop there: the Supreme Court has held the writ ofhabeas corpus open to all individuals held by the federal government, includingGuantanamo Bay detainees. SeeBoumediene v. Bush.
In extraordinary circumstances, theUnited States courts of appeals can use the common law writ ofprohibition 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 oferrorcoram 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 issueinjunctions to protect their jurisdiction or effectuate their judgments.
The situation in the courts of the variousU.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 asquo 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 ofwrit ofmandamus andwrit of review in place ofwrit 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 arehabeas corpus,quo warranto,prohibito,mandamus,procedendo, andcertiorari.
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 ofstanding.
Awrit of audita querela inhibits the unconscionable use of a lawful judgment because of matters arising after the judgment.
Awrit of capias directs an officer to take the person named in the writ or order into custody.[72]
Awrit 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.
Awrit 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.
Awrit of error is issued by anappellate court and directs a lower court of record to submit its record of the case laid for appeal.[73]
Awrit of exigent (orexigend) 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.
Awrit 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.
Awrit 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.
Awrit of ne exeat restrains a defendant from fleeing the country or jurisdiction.
Awrit 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 theSupreme Court of India and the High Courts of Judicature of allIndian states. Parts of the law relating to writs are outlined in theConstitution of India. The Supreme Court, the highest in the country, may issue writs under Article 32 of the Constitution for enforcement offundamental 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:
Thewrit 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.
Thewrit 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.
Thewrit 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 thefundamental rights of the citizens are upheld.
Thewrit 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
Thewrit 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.
^See further Reg Orig129; 2 Co Inst205; FNB114; 4 Co Inst124; De Lovio v Boit (1815) 2 Gallison 398 at408, 23 Myer's Federal Decisions 20 at26; Molloy,De jure maritimo et navali,p 29; 17 Viner's Abridgment4.
^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 inRuffhead'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 Review356. (1943)Bulletin of the Institute of Historical Research 217. Booth, The Nature and Practice of Real Actions, 2nd Ed, 1811, Ch 16, pp200 to 205.
^Stewart Rapalje and Robert L Lawrence. A Dictionary of American and English Law. Frederick D Lynn & Co. Jersey City. 1888. vol 1.p 341.
^"Detinue of charters" (or "detinue for charters") was a form ofdetinue.
^Williams."Chartis reddendis". A Compendious and comprehensive Law Dictionary. 1816.
^Bouvier. A Law Dictionary. 2nd Ed. 1843. vol 1.p 257.
^See further, Finlason, Reeves' History of the English Law, 1869, vol 2, pp383 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:[4].
^"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:[5].
This article incorporates text from this source, which is in thepublic domain: John Rastell and William Rastell. Les Termes de la Ley. 1721.
This article incorporates text from this source, which is in thepublic 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 thepublic 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 thepublic domain: Henry James Holthouse. A New Law Dictionary. Second Edition. Thomas Blenkarn. London. Charles C Little and James. Boston. 1850.
This article incorporates text from a publication now in thepublic domain: Chambers, Ephraim, ed. (1728). "Beau pleader".Cyclopædia, or an Universal Dictionary of Arts and Sciences (1st ed.). James and John Knapton, et al.[3]