The writ

下面为大家整理一篇优秀的essay代写范文- The writ，供大家参考学习，这篇论文讨论了英国令状。在英国普通法的发展历史中，英国的令状起着非常重要的作用，其突出作用表现在促进了王室司法管辖权的扩大，王室法庭通过不同的令状与郡法庭、领主法庭、教会法庭竞争司法管辖权。王室法庭逐步取得对多数案件的司法管辖权时，它通过审理全国范围内的多数案件，对各种案件进行总结，最终形成了通行全国的普通法为英国普通法的形成提供了必不可少的前提条件。

British writs have played a very important role in the development history of British common law. The prominent role of writs is to promote the expansion of royal jurisdiction. Royal courts compete with county courts, Lord courts and church courts for jurisdiction through different writs. When the royal court gradually acquired jurisdiction over most cases, it tried most cases nationwide, summarized various cases, and finally formed the common law prevailing in the country, which provided an indispensable prerequisite for the formation of the British common law.

The development history of British writ is a history of legal development. There are many factors contributing to the formation and development of British common law. In the Anglo-Saxon period, the use of writs was only similar to the use of other countries in Western Europe. It was just a simple executive order, without giving it more functions. After the Norman conquest, the Norman rulers did not completely abolish the old habits and systems of the Anglo-Saxon period, but still invoked the legal habits and political organizations of that time. William I adopted the witan conference in the Anglo-Saxon period and developed it into a royal council with the king as the supreme authority. Later, through the development of the royal council, three central royal courts came into being. The use of writs was also retained while various forms of political governance were retained. The use of writs after the Norman conquest was completely different from that of other countries in Western Europe. The British rulers endowed writs with more functions according to the actual needs of governance, and they no longer only served as administrative tools. "The anglo-norman king turned these ancient English writs into an instrument of unprecedented importance and greater adaptability. It seems that any activity of the government can be done through it. The prominent role of the British writ system is to expand the jurisdiction of the royal family and ultimately provide a precondition for the formation of British common law.

In the early days of king Norman's rule, the royal judicial system was not the only judicial system that existed. There were also church courts, lords' courts and local courts existing side by side with the royal courts. Until the reign of Henry ii, royal jurisdiction had been informal. And in the early days of the crown court, little attention was paid to the crown court, and a large number of cases were heard in magistrates' courts, ecclesiastical courts and lords' courts. The wise Kings of England, as they expanded their royal power in various ways and sought to establish a strong state, did not forget the important role of the judiciary in governing the country, and they began to unify the judiciary through various measures. The writ system with the reputation of "the greatest contribution to the government" certainly became one of the means to strengthen the royal judiciary. In such a situation, if the royal court wants to strengthen the judicial power, it must weaken the power of the local court, the church court and the suzerainty court to hear cases. "The history of early forms of litigation is the process by which courts compete for jurisdiction. The central judicial system does not exist from the beginning. The royal jurisdiction mainly concentrated in The following several Court: The Court of Common Plea, The Court of King 's Bench and The Court of Exchequer. Ordinary litigation courts mainly accept civil litigation between ordinary people; In theory the crown court has jurisdiction over all cases, but in practice it mainly deals with criminal cases that are alleged to violate the king's peace; The financial court mainly deals with cases involving property. The three central courts are located in Westminster hall. In order to make it easier for ordinary people who were far away from the court to get relief from the king, the circuit court came into being. As full-time courts controlled by the royal family were gradually established, conflicts of jurisdiction arose among the courts. The district court is represented by the county court. The county court was an important local administrative and judicial institution in medieval England. It was presided over by the sheriff and held a monthly session. It mainly accepted civil lawsuits against people, and the judgment of the case was made by all the public officials who participated in the trial. When the circuit was established, the county court was to be adjourned, and the whole court was to be assembled in the circuit. By this time the sheriff had no actual power, but was merely an assistant to the circuit judge. The circuit courts were also more frequent, and the county courts had little actual jurisdiction. Especially in civil affairs, people transferred cases from the county court to the royal court by applying to the secretarial office for a writ of retraction or a misjudgment order, which completely weakened the jurisdiction of the county court. As for the limitation of the criminal jurisdiction of the county court, it mainly comes from the gradual increase of the royal power in Britain. The royal family declared that it had jurisdiction over all "ACTS that broke the peace of the king" and deprived it of its criminal jurisdiction completely. The retraction order asserts that the county court's proceedings are defective and takes this as a reason to revoke its jurisdiction over such proceedings. This constitutes an early example of the use of writs to obtain jurisdiction.

Suzerainty courts are created on the basis of suzerainty privileges. Britain is a typical country with a suit-vassal relationship. The Lord with a certain number of vassals can set up courts in his own territory. Such courts are not courts of a strictly judicial nature, but deal with matters relating to administration, economy and administration of justice. In its judicial function, the suzerain's court dealt with the following matters: in civil matters, the suzerain's court had jurisdiction over persons under forty shillings, over claims to real property, and over claims to non-freehold property... On the criminal side, although it had no right to be involved in crimes against the peace of the king, it had exclusive jurisdiction over ACTS which broke the habits of the manor. The seigniorial court enjoyed so much jurisdiction that the royal court also experienced a protracted battle with it in its struggle for jurisdiction. Royal court use rights writ launched with the Lord for the struggle of jurisdiction, Henry ii establishment of the "no king rights writ, anyone don't need to free him hold land and responses to" principle and the establishment of large trial jury system way to win a large amount of land proceedings for the royal court cases.

Before the writ of rights was issued, a suit of rights concerning a real estate interest could be taken at any time in the suzerainty court, and the suzerainty court had exclusive jurisdiction over the suit of rights, which could not be touched by the royal court. In feudal times, the importance of land was self-evident, and suzerainty courts enjoyed exclusive rights to litigate the fat meat. This situation stimulated the mind of Henry ii, who gradually took steps to gain jurisdiction over real estate litigation, and eventually created a writ of rights, a writ of rights issued by the Lord chancellor to initiate a suit of rights. This resulted in the absence of a writ of rights, which made it impossible for the suzerain's court to proceed with a suit of rights, i.e., "without a writ of rights of the king, no one was required to defend the land he freely held". People's demand for writs of rights is an important force in the development of writs of rights. In order to obtain better and faster judicial protection, the people wanted the king to intervene in their proceedings, because the king could remind the heads of the courts of their duties. The king would order "justice done," "justice restored," "rightful possession," and so on. Slowly, obtaining a writ of rights has become a prerequisite for starting a lawsuit: if a clever plaintiff takes the case seriously, he will get one before suing his opponent. Otherwise his lawsuit would be tainted by litigation and, as a result, no one would be responsible for answering any questions about the lawsuit. The rule was then established that whoever sued a freeholder in any local court must obtain a royal writ of entitlement. With the establishment of this rule, writ of rights became a necessary prerequisite for the Lord's court to conduct free real estate litigation, and it was impossible to decide the ownership of real estate litigation without writ of rights in the Lord's court.

At the same time, the writ of rights, which requires the Lord to exercise the rights of the parties, also emphasizes that if the Lord fails to properly handle the litigation between the parties, the county court will solve the problem -- the Lord court may lose jurisdiction over the litigation of rights. After the royal court obtained some jurisdiction over the litigation of rights, Henry ii stipulated the grand jury system, which gave the defendants in the litigation of rights the right to choose between duel and jury. When the dawn of civilization gradually lit up people's hearts, the irrational dueling method adopted by the suzerainty court was suspected and tired by people, and the grand jury was composed of four knights elected by the sheriff and twelve men elected by the four of them. The people chosen were usually neighbors of the parties, who had some knowledge of the land in question, and whose decisions based on their answers to the questions were more rational and appealing -- the introduction of grand juries had left the suzerainty court almost completely without jurisdiction over the litigation of rights. The lords' courts were slow and inefficient, and to avoid wasting time, the plaintiffs turned to god and the king, as all who were in trouble did. The writ of rights and the great jury system that accompanied it attracted the public to place all cases of liberty estate litigation within the jurisdiction of the crown court.

Ecclesiastical courts are cross-border judicial organizations established by Christianity. In western European countries, there are ecclesiastical courts, which are unified in application of ecclesiastical laws and directly subordinate to the Pope. All secular monarchies have no right to interfere in the affairs of ecclesiastical courts. In England at that time, the church courts dealt with a large number of matters: first, the church claimed exclusive jurisdiction over all matters concerning the economic interests of the church; The appointment and demotion of priests; All religious affairs resembling a celebration of the worship of god; And the management of church groups and the internal distribution of income; The ecclesiastical courts also like to deal with cases that have any connection to the land granted to the church; Church courts also deal with church taxes, marriage cases, wills and so on. As far as church law is concerned, any case involving these matters can be heard by registering a complaint with the corresponding archdeacon or bishop's court, and the losing party can appeal to the corresponding archdiocese's court and finally to the Pope. More appeals were filed by popes in the 13th century in England than in any other country. The Pope also exercised a general jurisdiction of first instance: the plaintiff could appeal from the court a writ specifying that the Pope's envoy should go to the place to try any case. In England at that time, the church had jurisdiction over many cases, and the church courts consolidated their territory with invisible spiritual authority. It was a long and difficult process for the British royal court to compete for jurisdiction with the church court. William I, William ii and Henry I all took various ways to limit the jurisdiction of the church court. Especially in the period of Henry ii, the struggle became more intense and eventually turned into the confrontation between Henry and beckett. In 1164, the tenth year of the reign of Henry ii, at a meeting held in clarendon, Henry ii enacted the clarendon charter, a law aimed at limiting the privileges of the church and the powers of the religious courts. The main content of the law is: if a priest is accused of a crime, should be tried by a secular court; the king's judges hear disputes over land between clerical and lay staff; The archbishop can appeal only to the king; The clerical staff should obey the call of the king, etc. The promulgation of this law was a heavy blow to the jurisdiction of the church courts. It put many restrictions on the jurisdiction of the church and put many cases involving priests into the king's court. And since the days of Henry ii, the crown court, not the ecclesiastical court, has been the initiator and victor of almost every dispute.

Taking the writ defining the nature of land as an example, this paper analyzes how the royal court and the church court compete for jurisdiction. Medieval England established the principle that all land claims on church property should be settled in church courts. This forms to want to establish the jurisdiction that involves land case, should make clear to be in first the land in lawsuit is education property or common property. Property belonging to the church is under the jurisdiction of the court of the church, property belonging to the common is settled by the court of the king. The establishment of the writ defining the nature of land was to solve the problem of religious property or secular property, which was of great significance for the king's court to obtain jurisdiction over land issues at that time. Since the question of religious or secular property was considered a question of fact, a jury of twelve law-abiding freemen should reach its conclusions before the king's judges. The Constitutions of Clarendon prescribed in article 9 of 1164: "keep on the cleric believed to be free to teach service and the common people think that belong to the common keep land tenure dispute, composed of 12 law-abiding people to make the cutting in front of the presiding judge, jury decided according to the cutting disputes involving property owned by the royal court, or the church under the jurisdiction of the court." Such a writ did not determine who had the final right to the land, but through it the king's court obtained jurisdiction over the action to determine the nature of the land. This article declares that the nature of property can only be determined by the crown court, which is the premise for determining the jurisdiction of property litigation. It is in this way that the jurisdiction of property litigation is essentially controlled, because it is likely that the jury will declare the property to be vulgar rather than religious. "Henry was successful and very successful in that regard. The courts of his successors have insisted that they have exclusive jurisdiction over matters relating to the ownership or possession of land, even if the land was acquired for charity.

In addition, the crown court competes with the ecclesiastical courts for jurisdiction by establishing parallel jurisdictions. The church has always claimed jurisdiction over cases involving fiduciary contracts, and the church courts have held that when a person takes an oath and makes a promise, he has already appealed his soul to god. This matter of spiritual salvation is rightly under the jurisdiction of the church. The crown court has also maintained a juxtaposition of jurisdiction over claims involving fiduciary warranties. Article 15 of the clarendon charter stipulates that the church shall not exclude such jurisdiction from the crown court on grounds that a party in a debt action violates his oath. The end result is that neither party easily gives up the jurisdiction over such cases, so both parties enjoy the jurisdiction over such cases. Political wisdom.

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