and the pares curiae or other witnesses. In England such witnesses
were part of the inquest, and joined in the verdict in case of disputed
right until 12 Edw. II. st. 1, c. 2. The breve testatum in England
developed into the feoffment, later into the deed of grant; in Scotland
into the charter, and later into the disposition. In canon law
breve or brevlegium denoted a letter from the pope, sealed with the seal of the fisherman and less formal than a bull. In old English ecclesiastical law a brief—still named in one of the rubrics of the
Book of Common Prayer—meant letters patent to churchwardens or other officers for the collection of money for church or charitable
purposes.[1] (For counsel's brief see under Brief.)
The writ in English law still occupies a very important position, which can scarcely be understood without a sketch of its history. History. The whole theory of pleading depends in the last resort upon the writ, the plaintiff's claim simply expanding its terms.
Writ or breve was at first used in a less technical sense than that which it afterwards assumed: thus in the Leges Henrici Primi it simply means a letter from the king, and in the Assize of Clarendon (1166) imbreviari means to be registered. It became formalized by the reign of Henry II., and precedents are given by Glanvill. The writ process was at that date the foundation of all civil justice in the king's court, and of much in the lower courts, and was a profitable source of revenue to the exchequer. Writs were not framed on any scientific scheme, but as occasion arose, and were frequently the result of compromise in the struggle between the king's and the lords' courts. Every writ had to be purchased (breve perquirere was the technical term). This purchase developed in later times into the payment of a fine to the king where the damages were laid above £40. The usual scale was 6s. 8d. for every 100 marks claimed. In suing out a writ of covenant, the basis of the proceedings in levying a fine, the king was entitled to his primer fine, i.e. one-tenth of the annual value of the land concerned. The sale of writs was forbidden by Magna Carta and other statutes in certain cases, especially that of the writ de odio et alia in favour of the liberty of the subject. A solicitor was so called because his original duty was to solicit or sue out a writ and take the due proceedings by paying the proper fine. The costs of a writ purchased were first allowed to a successful demandant by the Statute of Gloucester, 1278. The counterpart of the writ (contrabreve) was usually filed in court with the custos brevium. Through the Norman period the prerogative of issuing writs seems to have been undisputed. Glanvill's precedents did not exhaust all possible forms, for in the time of Bracton, in the 13th century, it was still possible to frame new writs at the pleasure of the crown. The Provisions of Oxford in 1258 put an end to this by enacting that the chancellor should not seal anything out of course (i.e. any writ for which there was no precedent) by the will of the king, but that he should do it by the council. In 1285 the Statute of Westminster the Second re-established the power of the crown within certain limits, that is, in causes of action in a similar case falling under the same law (in consimili casu cadente sub eodem jure) as those for which precedents of writs already existed in the chancery. These precedents were recorded about 1227 in the Registrum brevium, called by Sir Edward Coke the oldest book in the common law.[2] Apart from the powers given by the statute, new writs could only be issued by the authority of parliament, and writs are sometimes found set out in statutes, especially in the Statutum Walliae, 1284, where precedents of the most usual writs will be found. The Statute of Westminster the Second itself contained precedents of the writ of formedon and of many others. The original flexibility of the writ was thus limited within comparatively narrow bounds. The right to the issue of the writ determined the right of action. If the writ was not sufficient to found an action, the writ was said to fail (cadere). So essential was the writ that it was a legal axiom in Bracton that no one could sue at law without a writ, and it was called by Coke, in his introduction to Littleton, “the heartstrings of the common law.” As such it occupied an important place in some of the leading statutes dealing with constitutional rights. The Statute of Marlbridge, 1267, forbade a lord to distrain his freeholders to answer for their freeholds, or for anything touching their freeholds, without the king's writ. By 25 Edw. III. st. 5, c. 4 (1342), it was accorded, asserted and established that none should be taken by petition or suggestion made to the king or his council unless by indictment or presentment in due manner or by process made by writ original at the common law. 42 Edw. III. c. 3 (1359) provided that no man should be put to answer without presentment before justices, or matter of record, or by due process and writ original according to the old law of the land. Both these statutes were recited and the general principle confirmed by 16 Car. I. c. 10 (1641). Uniformity of procedure was secured by 27 Hen. VIII. c .24 (1536), by which all writs were to be in the king's name in a county palatine or liberty, but tested by those who had the county palatine or liberty. It was not until 1731 that, by virtue of 4 Geo. II. c. 26, writs were framed in the English language. They had previously been in Latin; this accounts for the Latin names by which a large number are still known.
The writ was issued from the common law side of the chancery, and was in the special charge of the hanaper and petty bag offices.[3] Though issuing from the king's chancery, it did not necessarily direct the trial of the question in the king's court. In whatever court it was returnable, it called in the aid of the sheriff as executive officer. It was either addressed to him or, if addressed to the party alleged to be in default, it concluded with a threat of constraint by the sheriff in the event of disobedience, generally in those terms, et, nisi feceris, vicecomes de N. faciat ne amplius clamorem audiam pro defectu justitiae. If the writ was returnable in the county court or the lord's court, the sheriff or the lord sat as the deputy of the king, not by virtue of his inherent jurisdiction. The writ was not necessary for the initiation of proceedings in these courts or before the justices in eyre, but a custom seems to have grown up of suing out a writ from the king where the claim was above 40s. Cases were transferred from the lord's court to the county court by writ of tolt (so called because it removed, tollit, the case), from the latter to the king's court by writ of pone (so called from its first word). By Magna Carta the power of bringing a suit in the king's court in the first instance by writ of praecipe was taken away, and the writ was thenceforth only returnable in the king's court where the tenant held of the king in capite, or where the lord had no court or abandoned his right. Hence it became a common form in the writ of right to allege that the lord had renounced his court (dominus remisit curiam) so as to secure trial in the king's court.
Besides being used for the trial of disputes, writs addressed to sheriffs, mayors, commissioners or others were in constant use for financial and political purposes, e.g. for the collection of fifteenths, scutage, tallage, &c., for summons to the council and later to parliament, and for dissolving a parliament, the last by means of the rarely occurring writ de revocation parliamenti.
There were several divisions of writs (excluding those purely financial and political), the most important being that into original and judicial, the former (tested in the name of the king) issued to bring a suit before the proper court, the latter (tested in the name of a judge) issued during the progress of a suit or to enforce judgment. Original were either optional, i.e. giving an option of doing a certain act or of showing cause why it was not done, beginning with the words praecipe quod reddat, the principal example being the writ on which proceedings in a common recovery (see Fine) were based, or peremptory, i.e. calling on a person to do a certain act, beginning with the words si A. fecerit te securum. Original were also either de cursu (also called by Bracton formata) or magistralia, the former those fixed in form and depending on precedent, the latter those framed by the masters in chancery under the powers of the Statute of Westminster the Second. They were also either general or special, the latter setting forth the grounds of the demand with greater particularity than the former. In regard to real estate they might be possessory or ancestral. By 5 Geo. II. c. 27 (1732) special writs were confined to causes of action amounting to £10 or upwards. There was also a division of writs into writs of right (ex debito justitiae), such as habeas corpus, and prerogative writs (ex gratia), such as mandamus and prohibition. Coke and other authorities mention numerous other divisions, but those which have been named appear to be the principal.
The most interesting form of writ from the historical point of view was the writ of right (breve de recto), called by Blackstone “the highest writ in the law,” used at first for debt and other personal claims, afterwards confined to the recovery of real estate as the writ of right par excellence. It was so called from the words plenum rectum contained in it, and was the remedy for obtaining justice for ouster from or privation of the freehold. By it property as well as possession could be recovered. It generally lay in the king's court, as has been said, by virtue of a fictitious allegation. In that case it was addressed to the sheriff and was called a writ of right close. When addressed to the lord and tried in his court, it was generally a writ of right patent. After the appearance of the tenant the demandant in a writ of right counted, that is, claimed against the tenant according to the writ, but in more precise terms, the writ being as it were the embryo of the future count. The trial was originally by battle (see Trial), but in the reign of Henry II. an alternative and optional procedure was introduced, interesting as the earliest example of the substitution of something like the jury (q.v.) for the judicial combat. A writ de magna assisa eligenda was directed to the sheriff commanding him to return four knights of the county and vicinage to the court, there to return twelve other knights of the vicinage to try upon oath the question contained in the writ of right (technically called the mise). This mode of trial was known as trial by the grand assize. Generally the whole of the sixteen knights were sworn, though twelve was a sufficient number. The last occasion of trial by the grand
- ↑
See W. Bewes, Church Briefs (1896). The lines in Cowper's
“Charity” allude to such a brief:—
“ The brief proclaimed it visits every pew, But first the squire's—a compliment but due.” - ↑ See article by F. W. Maitland in 3 Harvard Law Rev. 177.
- ↑ The place where writs were deposited was called breviarium or breviorium. This use of the word must be distinguished from legal compendia, such as the Breviarium Alarici or Breviarium extravagantium.
