What Is a Writ? A Written Command That Started Every Case

A writ was a written order issued in the sovereign's name commanding somebody to do something or to appear and answer a claim, and obtaining the right one was the necessary first step in bringing a case. Each form of writ corresponded to a particular kind of wrong and carried its own procedure, its own available defences and its own mode of trial, so choosing the wrong one meant losing regardless of the merits. They were issued by the chancery on payment of a fee, from a register of established forms that grew over time, and the register itself became the practical statement of what the law recognised. That arrangement inverted the modern relationship between rights and procedure, since a person did not have a right that procedure served but rather had whatever the available procedure supplied.

The register held dozens of forms and a handful did most of the work:

• •Writs of right, concerning ownership of land, which was the central subject of early common law
• •Novel disseisin, for someone recently dispossessed of land
• •Debt and covenant, for money owed and for agreements under seal
• •Trespass, for direct forcible wrongs, which became enormously important
• •Trespass on the case, an extension covering indirect harm, from which most of modern tort descends
• •Habeas corpus, requiring a detained person to be produced before a court, which survives and matters

Because a claim had to fit an existing form, the development of English law proceeded by stretching those forms rather than by declaring new rights. Legislation in 1258 restricted the creation of genuinely new writs, and a statute in 1285 permitted forms similar to existing ones, which channelled all subsequent development through analogy. Lawyers therefore argued that a novel grievance resembled an established one closely enough to use its writ, and the accumulated stretching produced doctrines that make sense historically and look arbitrary otherwise. Much of the structure of modern tort and contract, including distinctions that survive in the law of several countries, records which writ a claim once had to be squeezed into. The system was abolished in England by reforms between 1832 and 1875, which replaced it with a single form of action.

The rigidity of the system generated its own remedy, which is the origin of an entire parallel body of law. Petitioners who could find no writ fitting their case, or who had a writ and found the remedy inadequate, appealed directly to the sovereign for relief, and those petitions were referred to the chancellor, who decided them on conscience rather than by the rules. That practice hardened into the Court of Chancery and into equity, a body of doctrine developed alongside the common law and correcting it, which introduced the trust, the injunction, specific performance and the remedies available where money is not enough. Equity had its own defects, being slow and uncertain enough to be satirised at length, and it was merged administratively with the common law in the nineteenth century while remaining conceptually distinct.

Several elements outlived the system that produced them. Habeas corpus remains a live and important remedy in many jurisdictions, requiring that a person's detention be justified before a court, and it is entrenched constitutionally in several countries precisely because of its history. Prerogative orders compelling or prohibiting official action, formerly writs, continue as the mechanism of judicial review under modern names. The term survives in ordinary procedure in various jurisdictions for the document starting an action. Writs of election formally trigger elections in several parliamentary systems. And the deeper legacy is conceptual, since the categories of the common law were shaped by the forms, and courts still reason by analogy from established categories rather than from general principle, which is the habit the system instilled.

A written command in the sovereign's name started a case, and each form covered one kind of wrong with its own procedure, so choosing wrongly lost the case regardless of merit. Restrictions on creating new forms meant the law developed by stretching existing ones through analogy. Habeas corpus and the orders used in judicial review are the surviving descendants.