Writ

In law, a writ is a formal written order issued by a public body in the name of the sovereign power. In modern usage, this public body is normally a court. Warrants, prerogative writs, and subpoenas are types of writs, but there are many others.

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History

In origin a writ was a letter, or command, from the King, usually written in Latin and sealed with the Great Seal. At a very early stage in the English common law, 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. The writ would act as a command that the case be brought before the Royal Court.

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Of course, 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, which need not necessarily be written down.

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However if a plaintiff wished to avail themselves of Royal -- and by implication superior -- justice in one of the King's courts, then they would need a writ, a command of the King, to enable them to do this. It is important to remember that in the very early stages of the evolution of the common law, recourse to the King's courts was unusual, and something for which a plaintiff would have to pay.

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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.

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

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At first, new writs could be drafted to fit new situations, although in practice the clerks of the Chancery would re-use old forms, and there were many books which were 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 legal document each time they wish to create one.

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The problem with this approach was that the ability to create new writs amounted to the ability to create new forms of action. A plaintiff's rights (and by implication those of a defendant) would be defined by the writs available to them: the ability to create new writs was close to the ability to create new rights, a form of legislation.

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There was increasing opposition to the creation of new writs by the Chancery. For example, in 1256, a court was asked to quash a writ as "novel, unheard of, and against reason" (Abbot of Lilleshall v Harcourt (1256) 96 SS xxix 44).

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This resulted in the Provisions of Oxford 1258, which prohibited the creation of new forms of writ without the sanction of the King's council. New writs were created after that time, but only by the express sanction of Parliament and the forms of writ remained essentially static. Each writ defining a particular form of action.

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With the abolition of the Forms of Action in 1832 and 1833, there no longer needed to be a variety of writs, and one uniform of writ came to be used. 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 that had been in use in the Chancery. A writ was a summons from the Crown, to the parties in the action, with on its back the substance of the action set out, together with a 'prayer', which requested a remedy from the court (for example damages).

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In 1980, the need for writs to be written in the name of the Crown was ended, from that date a writ simply required the parties to appear.

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Writs applied to claims that were to be issued in one of the courts that eventually formed a part of the High Court of Justice. The procedure in a County Court, which was a creature of statute, was to issue a 'summons'.

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In 1999, the Woolf reforms, unified most of the procedure of the Supreme Court and the County Court in civil matters. Most actions could be begun by the completion of a 'Claim Form'. The term 'writ' has now largely passed into disuse in English law.

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In the UK and in some other parliamentary systems, the phrase 'dropping the writ' refers to the dissolution of government and the beginning of an election campaign to form a new House. This phrase derives from the fact that in order to hold an election in a parliamentary system the government must issue a writ of election.

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References

• Maitland F. W. The Forms of Action at Common Law. Cambridge University Press 1962.
• Baker, J. H. An Introduction to English Legal History. Butterworths 1990. ISBN 0-406-53101-3
• Milsom, S. F. C. Historical Foundations of the Common Law (second edition). Butterworths 1981. ISBN 0-406-62503-4

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