Researches On The Common Law Writs

The writ system, jury system, and perhaps assize system are the milestones of the birth or building of English common law. In western legal history, there were a large group of legal historians and jurists who had devoted to the studies of the common law writs. Among them there were famous medieval jurists Glanvill, Bracton and Edward Coke. Other scholars in the early modern period include Blackstone, Sir Henry Maine, Sir Frederick Pollock, and Frederick William Maitland. From 1900 onwards, Sir William Holdsworth, Edward Jenks, Theodre Plucknett, Florence Harmer, Milsom, Sir John Baker, and James Holt have all had great achievements in the research field of common law writs. Besides, the Belgium distinguished jurist R. C. van Caenegem is another important scholar in this research area. As Caenegem once said, anyone who studies English institutions at any time from the reign of Aethelred II to our own day is bound to come across the writs and the writ system.This dissertation is a study of the common law writs. It attempts to clarify the Definition, Origin, Evolution, Classifications, and the judicialization of the wirts. It also discusses the interrelationship between the writs and forms of action, the history and present of the writ of Habeas Corpus, and the function or the historical value of the English common law writs. The paper is to argue that the common law writs had gone through development processes from the executive writs to judicialized writs and from the extraordinary privilege to human rights. And the common law spirit which values procedure over substantive rights was formed unobservedly in these processes. When their mission had been fulfilled, the writs and the corresponding forms of action must disappear. However, like Maitland once said:"The forms of action we have buried, but they still rule us from their graves", the Anglo-American law is still haunted by the writ system and the forms of action.Besides the introductory part, the dissertation falls into seven parts. In the first part the historical background of the common law writs is outlined with special reference to the law courts. There used to be three categories of judicial power in England, viz. communal judicial power, seigniorial judicial power, and royal judicial power; these three kinds of judicial power are carried out separately by three different court systems, the communal courts, the feudal courts and the royal courts. The communal courts are mainly comprised of the county court, the hundred court, and the frankpledge. The feudal courts are composed of the seigniorial court and the manorial courts. The royal courts or King's Courts, also known as the "curia regis", are divided into three courts, namely the court of common pleas, king's (queen's) bench and the exchequer.The second part deals with the definition, origin and the several phases of the English writs. This article concludes that the common law writs are different from the interdictum in Roman law. The formal origin of the English writs can be traced to the Anglo-Saxon period, approximately the 9th or 10th century. The old Anglo-Saxon writs continued to be used in the reigns of the Conqueror William I and the William II (1066-1100); Writs were greatly developed in the reigns of the reigns of Henry I and Stephen (1100-1154); and the writs were in their blossom in the reign of the Henry II (1154-1189). The English writs were continued to be developed in the reigns of the Richardâ… , John and Henryâ…¢(1189-1272), and they got into shape and became fixed in the reign of Edwardâ… (1272-1307). From the reign of Edwardâ…¡(1307-1327) onward, the writs became decadent and were gradually repealed.In the third part, the divisions of the common law writs were examined. The writs can be either roughly divided into executive writs and judicialized writs or divided into the writs of right and the prerogative writs (extraordinary writs). The writs of right include the Writs of Right Proper and the Writs in the Nature of Writs of Right. The Writs of Right Proper can be further divided into the Writ of Right Patent and the Writ of Right Praecipe in Capite. The Writs in the Nature of Writs of Right mainly include the Writ of Right de rationabili parte, the Writ of Right of Advowson, the Writ of Right of Dower, the Writ of Dower Unde nihil habet, and the Writ of Formedon. The writs of right can also be divided into the original writs and the judicial writs. The original writs can be best represented by the Praecipe Writs, Plaints of Wrong, Trespass and Trespass on the Case. Lastly, the prerogative writs are comprised of the following writs:the writ of habeas corpus, the writ of mandamus, the writ of certiorari, the writ of prohibitionquo warranto, the writ of Ne exeat, the writ of Scire facias, and the writ of procedendo.The fourth part is to argue that the judicialization of the writs plays a key role in the realization of the centralization in England. This chapter fully explains the legal reforms of Henry II. The several innovative means employed by Henry II included the enacts or the edicts passed by the King, e. g. the Constitutions of Clarendon, the Assize of Clarendon, the Assize of Novel Disseisin, Inquest of Sheriffs, the Assize of Northampton, and the Assize of Arms. In addition, through the use of professional courts composed of the professional lawyers, the development of the writs system, the assize system and the jury system, Henry II successfully established a centralized nation. The paper concludes that the judicialization of the writs was of primary importance in the governance of the county in England.The Part V is about the practical usages of the writs. In this part, the author mainly focus on the forms of action. The article concludes that the procedural system of a county either belongs to a formulary system of procedure or a non-formulary system of procedure. Undoubtedly, the English procedural system was strongly characterized by its strict forms of action. The forms of action in England went through five historical periods. The first period,1066-1154; the second period,1154-1189; the third period,1189-1272; the fourth period,1272-1307; and the fifth period,1307-1833. The forms of action were classified into three forms, and they were real actions, personal actions, and mixed actions. There were 10 most important actions in the English legal history, (1) Debt, (2) Detinue, (3) Covenant, (4) Replevin, (5) Special Assumpsit, (6) General Assumpsit, (7) Trespass, (8), Trespass on the Case (9) Ejectment, and (10) Trover.The Part VI pays particular attention to the most important prerogative writ, the writ of habeas corpus. This chapter examines the definition, origin, and the development of the habeas corpus. Habeas Corpus Act in the English legal history can be compared with the Magna Carta of 1215. When the habeas corpus was brought to America by the colonists, it took root in the U. S. A. and became the only common law writ written in the U. S. Constitution. The sources of this constitutional clause include its practice in England, Address to the People of Quebec, early state constitutions, Ordinance of 1787 for the Government of the North-west Territory, the colony charters and doctrinal writings. In U. S. history, Jefferson, Jackon, Lincon and George W. Bush all attempted to suspend the habeas corpus. As the outcome of the tradition of the separation of powers and the checks and balances, habeas corpus naturally faces its fate as the executive power dominates in the U. S. A.. The Boumediene v. Bush of 2008 temporarily saved the life of habeas corpus.The Part VII (concluding part) deals with the historical value of the English writs. The paper concludes that the writ system is of affirmative significance to the formation of the procedural law. And since the writ system requires specific forms of action and proper procedures while strengthening the priority of the procedure of the substantive rights, it plays a key role in the birth of the doctrine of "remedies precede rights". The English writ system is also crucial to the development of the substantive law, practically the modern contract law, tort law, property law, and inheritance law. The path of the writs shows a process from the specific to the abstract, and this is well illustrated by the forms of action. In addition, the historical functions or influences of the English writs can also be found in the following aspects, the formation of the legal profession, the perfection of the court system, the establishment of the centralization, the limitation of the monarchical power, the independence of judicature, and the Anglo-American legal education with its unique characteristics.