Writs that have been Abolished

Writ of Elegit:
[Latin ‘he has chosen’) (16c.) Hist. A writ of execution (first given by

13 Edw. ch. 18) either on a judgment for a debt or damages or on the forfeiture of a
recognizance taken in the king’s court. Under it, the defendant’s goods & chattels were appraised and, except for plow beasts, delivered to the plaintiff to satisfy the debt. If the goods were not sufficient to pay the debt, then the portion of the defendant’s freehold lands held at the time of judgment was also delivered to the plaintiff, to hold until the debt was satisfied out of rents and profits or until the defendant’s interest expired. During this period the plaintiff was called tenant by elegit, & the estate an estate by elegit. The writ was abolished in England in 1956, & it is no longer used anywhere in the United States.” [1]

Extent in Aid:

(18c.) Hist. A writ that a Crown debtor could obtain against a person indebted to the Crown debtor so that the crown debtor could satisfy the debt to the crown. This writ, having been much abused peculiar privileges that Crown debtors enjoyed, was abolished in 1947 by the Crown Proceedings Act.”

Writ de haeretico comburendo:

[Law Latin ‘of burning a heretic’] (17c.) Hist. l. A writ ordering the execution by burning of a convicted heretic who refused to recant, or was convicted of heresy again after recanting. The writ was abolished in 1677. 29 Car. II, c.9. – Also termed de haeretico comburendo.

     Excerpt from William Blackstone’s Commentaries on the Laws of England:

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

     Excerpt from William Holdsworth’s A History of English Law:

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

2. (the writ was used to enforce) the first English penal law against heresy, enacted in
1401 (2 Hen. 4, ch. 15). The law authorized the burning of defendants who relapsed or
refused to abandon their heretical opinions.

     Excerpt from Frederick Pollock & Frederic Maitland’s The History of English Law Before the Time of Edward I (1899):

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

Writ of assize of mort d’ancestor:

(17c.) An action for the recovery of land belonging to the claimant’s ancestor. Mort d’ancestor was abolished in the early 19th century. – Also termed assisa mortis d’ancestoris,; assisa de morte antecessoris.”

Assize:

“6. A jury trial.”

Writ of habeas corpora juratorum:

[Law Latin ‘that you have the bodies of the
jurors’] (17c.) Hist. A writ commanding the sheriff to bring in jurors and, if necessary,
to take their lands & goods as security to ensure their attendance in court for a trial
setting. This writ issued from the Court of Common Pleas & served the same purpose as a distringas juratores in the King’s Bench. The writ was abolished in 1852.”

Writ of Assistance:

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

      Excerpt from A.C. McLaughlin’s Cyclopedia of American Government:

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

References:

[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]: 4 William Blackstone, Commentaries on the Laws of England
46-47 (1769)

[3]: 1 William Holdsworth, A History of English Law 617 (7t ed.
1956)

[4]: 2 Frederick Pollock & Frederic Maitland, The History of
English Law Before the Time of Edward I 544 (1899)

[5]: A.C. McLaughlin, “Writ of Assistance,” in 3 Cyclopedia of
American Government 702 (A.C. McLaughlin Er Albert
Bushnell Hart eds., 1963)

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Notice: Wild Willpower does not condone the actions of Maximilian Robespierre, however the above quote is excellent!

 

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