Writ
In law, a writ is a formal written order issued by a government entity in the name of the sovereign power. In most cases, this government entity is a court. Two kinds of writs are warrants and prerogative writs, but there are many others.
English Law
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.
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.
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.
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 Henry II, the use of writs had become a regular part of the system of justice in England.
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 precendents or boilerplate, rather than re-inventing the wording of a legal document each time they wish to create one.
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.
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).
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.
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).
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.
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’.
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.
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.
United States Law
Early U.S. law inherited the traditional English writ system, in the sense of a rigid set of forms of relief that the law courts were authorized to grant. In the United States federal court system, the All Writs Act (28 U.S.C. 1651) authorizes 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, which were 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 normally available by a 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. In the United States federal courts, the writ is most often used to review the constitutionality of criminal convictions rendered by state courts.
- By statute, the Supreme Court of the United States uses the writ of certiorari to review cases from the United States Courts of Appeals or from the state courts.
- In extraordinary circumstances, the United States Courts of Appeals can use the common-law writs of mandamus and 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.
- The United States District Courts normally follow state-court practice with respect to certain provisional remedies and procedures for enforcement of civil judgments, which may include writs of attachment and execution, among others.
Certain other writs are available in theory in the United States federal courts but are almost never used in practice. 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. Early efforts to replace writ of habeas corpus with writ of have the body never caught on.