Writ

From Wikipedia, the free encyclopedia

Jump to navigationJump to search

A writ of attachment.

For other uses, see Writ (disambiguation).

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, and subpoenas are common types of
writ, 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 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
historical UK) to hold a general election. Writs were used by the medieval English kings
to summon persons 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".

Contents

 1History
o 1.1Origins
o 1.2Development
o 1.3Rationalisation of writs
 2Writ of election
 3United States law
o 3.1Prerogative writs
o 3.2Other writs
 4Indian law
 5Notes
 6Bibliography
History[edit]
Origins[edit]
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 document 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 the Second 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, open (patent) for all to read, and 'letters close' for one
or more specified individuals alone.[7]
Development[edit]
This section does not cite any sources. Please help improve this
section by adding citations to reliable sources. Unsourced material may be
challenged and removed. (September 2017) (Learn how and when to remove this
template message)

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 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.