Writ

In common law, a writ (Anglo-Saxon gewrit, Latin breve) 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 common law, a writ (Anglo-Saxon gewrit, Latin breve) 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. 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, (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'. The writ was a unique development of the Anglo-Saxon monarchy and consisted of a brief administrative order, authenticated (innovatively) by a seal. 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. 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. 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. Writs could take two main forms, open (patent) for all to read, and 'letters close' for one or more specified individuals alone. 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'. 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.