{"id":6134,"date":"2017-11-02T00:39:02","date_gmt":"2017-11-02T00:39:02","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=6134"},"modified":"2017-11-03T19:05:58","modified_gmt":"2017-11-03T19:05:58","slug":"writs-that-have-been-abolished","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=6134","title":{"rendered":"Writs that have been Abolished"},"content":{"rendered":"

Writ of Elegit<\/span>:<\/strong>
\n\u201c<\/strong>[Latin ‘he has chosen’) (16c.) Hist<\/em>. A writ of execution<\/strong> (first given by<\/span>
\n13 Edw. ch. 18) either on a judgment for a debt or damages or on the forfeiture of a<\/strong><\/span>
\nrecognizance taken in the king\u2019s court. Under it, the defendant\u2019s goods & chattels were\u00a0<\/strong><\/span>appraised and, except for plow beasts, delivered to the plaintiff to satisfy the debt. If the\u00a0<\/strong><\/span>goods were not sufficient to pay the debt, then the portion of the defendant\u2019s freehold\u00a0<\/strong><\/span>lands held at the time of judgment was also delivered to the plaintiff, to hold until the\u00a0<\/strong><\/span>debt was satisfied out of rents and profits or until the defendant’s interest expired.\u00a0<\/strong><\/span>During this period the plaintiff was called tenant by elegit, & the estate an estate by\u00a0<\/strong><\/span>elegit. The writ was abolished in England in 1956, & it is no longer used anywhere in\u00a0<\/strong><\/span>the United States.\u201d <\/strong>[1]<\/span><\/p>\n

Extent in Aid<\/span>:<\/strong><\/span><\/p>\n

\u201c<\/strong>(18c.) Hist<\/em>. A writ that a Crown debtor could obtain against a person\u00a0<\/strong><\/span>indebted to the Crown debtor so that the crown debtor could satisfy the debt to the\u00a0<\/strong><\/span>crown. This writ, having been much abused peculiar privileges that Crown debtors\u00a0<\/strong><\/span>enjoyed, was abolished in 1947 by the Crown Proceedings Act.\u201d<\/strong><\/span><\/p>\n

Writ de haeretico comburendo<\/em><\/span>:<\/strong><\/span><\/p>\n

\u201c<\/strong>[Law Latin ‘of burning a heretic’] (17c.) Hist. l. A\u00a0<\/strong><\/span>writ ordering the execution by burning of a convicted heretic who refused to recant, or\u00a0<\/strong><\/span>was convicted of heresy again after recanting. The writ was abolished in 1677.<\/strong> 29 Car.\u00a0<\/span>II, c.9. \u2013 Also termed de haeretico comburendo<\/em>.\u201d<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Excerpt from William Blackstone’s\u00a0Commentaries on the Laws of England<\/a>:<\/span><\/p>\n

\u00a0 \u00a0 \u201c[W]e find among our ancient precedents a writ de<\/span><\/strong><\/span>
\nhaeretico comburendo, which is thought by some to be as ancient\u00a0<\/strong><\/span>as the common law itself. However, it appears from thence, that\u00a0<\/strong><\/span>the conviction of heresy by the common law was not in any petty\u00a0<\/strong><\/span>ecclesiastical court, but before the archbishop himself in a\u00a0<\/strong><\/span>provincial synod; & that the delinquent was delivered over to the\u00a0<\/strong><\/span>king to do as he should please with him: so that the crown had a\u00a0<\/strong><\/span>control over the spiritual power, and might pardon the convict by\u00a0<\/strong><\/span>issuing no process against him; the writ de haeretico comburendo\u00a0<\/strong><\/span>being not a writ of course, but issuing only by the special direction\u00a0<\/strong><\/span>of the king in council.\u201d <\/span><\/strong>[2]<\/span><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Excerpt from William Holdsworth’s\u00a0A History of English Law<\/a><\/em>:<\/span><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201c<\/span>But the case of Sawtre (1400) is a clear case in which the\u00a0<\/strong><\/span>rule of the canon law was applied. He was convicted of heresy\u00a0<\/strong><\/span>before the Bishop of Norwich and recanted his heresy. He fell\u00a0<\/strong><\/span>again into heresy, & was condemned by the archbishop & his\u00a0<\/strong><\/span>provincial Council, as a relapsed heretic. On this conviction the\u00a0<\/strong><\/span>king issued a writ de haeretico comburendo. This case clearly\u00a0<\/strong><\/span>shows that the common law recognized the rule of the canon\u00a0<\/strong><\/span>law…<\/span>\u201d <\/strong>[3]<\/span><\/p>\n

2.<\/strong> (the writ was used to enforce) the first English penal law against heresy, enacted in<\/strong><\/span>
\n1401<\/strong> (2 Hen. 4, ch. 15). The law authorized the burning of defendants who relapsed or<\/strong><\/span>
\nrefused to abandon their heretical opinions.<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Excerpt from Frederick Pollock & Frederic Maitland’s The History of\u00a0<\/a>English Law Before the Time of Edward I<\/a>\u00a0(1899):<\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201cThe first English statute that denounced the penalty of\u00a0<\/span><\/strong><\/span>death against heretics was passed in the year 1401. Whether\u00a0<\/strong><\/span>before that statute the law that was in force in our land demanded\u00a0<\/strong><\/span>or suffered that such persons should be burnt is a question that\u00a0<\/strong><\/span>has been eagerly debated; on it in the days of Elizabeth & James I\u00a0<\/strong><\/span>depended the lives of Anabaptists & Arians; it has not yet lost its\u00a0<\/strong><\/span>interest; but it is a question that buzzes in a vacuum, for until\u00a0<\/strong><\/span>Lollardy became troublesome there was too little heresy in\u00a0<\/strong><\/span><\/span>England to beget a settled course of procedure.<\/span>\u201d <\/strong>[4]<\/span><\/p>\n

Writ of assize of mort d’ancestor<\/span>:<\/strong><\/span><\/p>\n

\u201c<\/strong>(17c.) An action for the recovery of land belonging\u00a0<\/strong><\/span>to the claimant’s ancestor. Mort d’ancestor was abolished in the early 19th century.<\/strong> \u2013\u00a0<\/span>Also termed assisa mortis d’ancestoris,; assisa de morte antecessoris.\u201d<\/span><\/p>\n

Assize<\/span>:<\/strong><\/span><\/p>\n

\u201c6. A jury trial.\u201d<\/strong><\/span><\/p>\n

Writ of habeas corpora juratorum<\/span>:<\/strong><\/span><\/p>\n

\u201c<\/strong>[Law Latin ‘that you have the bodies of the<\/span>
\njurors’] (17c.) Hist<\/em>. A writ commanding the sheriff to bring in jurors and, if necessary,<\/strong><\/span>
\nto take their lands & goods as security to ensure their attendance in court for a trial<\/strong><\/span>
\nsetting. This writ issued from the Court of Common Pleas & served the same purpose as\u00a0<\/strong><\/span>a distringas juratores in the King\u2019s Bench. The writ was abolished in 1852.\u201d<\/strong><\/span><\/p>\n

Writ of Assistance<\/span>:<\/strong><\/span><\/p>\n

\u201c<\/strong>(17c.) 1. A writ to enforce a court’s decree transferring real\u00a0<\/strong><\/span>property; the title of which has been previously adjudicated.<\/strong> 2.<\/strong> Hist<\/em>. A writ issued by\u00a0<\/strong><\/span>the Court of Exchequer ordering the sheriff to assist in collecting a debt owed the\u00a0<\/strong><\/span>Crown. 3.<\/strong> Hist<\/em>. In colonial America, a writ issued by a superior colonial court\u00a0<\/strong><\/span>authorizing an officer of the Crown to enter & search any premises suspected of<\/strong><\/span>
\ncontaining contraband. The attempted use of this writ in Massachusetts in 1761 was one\u00a0<\/strong><\/span>of the acts that led to the American Revolution.\u201d<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0 Excerpt from A.C. McLaughlin’s\u00a0Cyclopedia of\u00a0<\/a><\/em>American Government<\/em><\/a>:<\/span><\/p>\n

\u00a0 \u00a0 \u00a0 \u201cWRIT OF ASSISTANCE. A writ provided for by a<\/span><\/strong><\/span>
\nstatute of Charles ii and confirmed by later statutes. in<\/strong><\/span>
\nEngland it issued from the court of exchequer. in America<\/strong><\/span>
\nduring the French war (1755-1763) such writs were issued as\u00a0<\/strong><\/span>means of enforcing the revenue law. They gave authority to\u00a0<\/strong><\/span>board a ship in port and to search for smuggled goods, and also\u00a0<\/strong><\/span>to enter vaults, warehouses, and other places. Directed to the\u00a0<\/strong><\/span>Justices of the Peace, Sheriffs, Constables and all other our<\/strong><\/span>Officers and Subjects,\u2019 the writ directed them to \u2018be aiding,\u00a0<\/strong><\/span>assisting, and helping\u2019 the customs officer in the execution of\u00a0<\/strong><\/span>his duty. On application for a writ, in 1761, a great discussion\u00a0<\/strong><\/span>arose before the Massachusetts superior court. Oxenbridge\u00a0<\/strong><\/span>Thacher & James Otis appeared in opposition to the writ.\u00a0<\/strong><\/span>Otis, John Adams tells us\u2019, was \u2018a flame of fire.\u2019 He eloquently\u00a0<\/strong><\/span>declaimed against the legality of the writ, declaring that an act\u00a0<\/strong><\/span>against the Constitution & natural equity was void. After some\u00a0<\/strong><\/span>delay the writ was issued. Otis\u2019s declamation against general\u00a0<\/strong><\/span>warrants \u2013 warrants which do not specify the place to be\u00a0<\/strong><\/span>searched or the person or thing sought\u2013 was in part doubtless\u00a0<\/strong><\/span>a foundation for the later constitutional provision against\u00a0<\/strong><\/span>them.<\/span>\u201d [5]<\/strong><\/span><\/p>\n

References:<\/span><\/strong><\/span><\/p>\n

[1]:\u00a0Black\u2019s Law Dictionary\u00a0Deluxe Tenth Edition\u00a0by Henry Campbell Black & Editor in Chief Bryan A. Garner<\/a>. ISBN: 978-0-314-62130-6<\/strong><\/span><\/p>\n

[2]:\u00a04 William Blackstone, Commentaries on the Laws of England<\/a><\/strong><\/span>
\n 46-47 (1769)<\/strong><\/span><\/p>\n

[3]:\u00a01 William Holdsworth, A History of English Law<\/a> 617 (7t ed.<\/strong><\/span>
\n 1956)<\/strong><\/span><\/p>\n

[4]:\u00a02 Frederick Pollock & Frederic Maitland, The History of<\/a><\/strong><\/span>
\n English Law Before the Time of Edward<\/a> I 544 (1899)<\/strong><\/span><\/p>\n

[5]: A.C. McLaughlin, \u201cWrit of Assistance,\u201d in 3 Cyclopedia of<\/a><\/strong><\/span>
\n American Government 702 (A.C. McLaughlin Er Albert<\/strong><\/span>
\n Bushnell Hart eds., 1963)<\/strong><\/span><\/p>\n

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