Definition
Attachment is the act or legal process by which a court takes custody of a person, or seizes property, through judicial authority. The term operates across multiple distinct legal contexts, each with its own procedural rules and consequences.
1. Prejudgment attachment (civil property seizure). A creditor's remedy by which a plaintiff, before obtaining final judgment, secures a defendant's property under court authority to prevent its dissipation or to establish jurisdiction. The seized property is held as security for any eventual judgment.
2. Attachment of the person. A writ issuing from a court compelling the appearance of a person who has failed to comply with prior process, or who has committed a contempt of court. Unlike an arrest in a purely criminal sense, this form of attachment is the court's coercive mechanism to enforce its own authority.
3. Attachment for contempt. A related but distinct use: the seizure or detention of a person who has defied a court order. Burrill distinguishes this as quasi-criminal in nature, issuing from a court of record against someone who has "openly insulted the court or resisted its process."
4. Jeopardy attachment (criminal procedure). In double jeopardy doctrine, "attachment of jeopardy" marks the point at which constitutional double jeopardy protections engage — in a jury trial, when the jury is sworn; in a bench trial, when the first witness is sworn.
5. Right to counsel attachment. In Sixth Amendment doctrine, "attachment of the right to counsel" refers to the point at which the constitutional right to counsel formally applies — at or after the initiation of formal adversarial proceedings.
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Common Language
Modern common usage (Wiktionary): A strong bonding or fondness for someone or something; a device or accessory connected to a piece of equipment; a file sent with an email.
Historical common usage (Webster's 1913): "The act of attaching, or state of being attached; close adherence or affection; fidelity; regard" — as in attachment to a friend or party. Also the physical means by which one thing is joined to another.
The gap between common and legal meaning is significant and runs in two directions. First, ordinary English uses "attachment" to mean emotional connection or physical fastening — neither of which maps onto the legal process. Second, even readers who recognize the legal flavor of the word tend to understand it only as property seizure, missing the entirely separate doctrinal uses in criminal procedure (jeopardy and right to counsel). A researcher encountering "attachment" in a legal source must first determine which of these distinct meanings is operative before the passage can be accurately understood.
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Common Confusion
Three common conflations affect research:
Attachment vs. garnishment. Both are collection-related remedies, but they are not identical. Attachment seizes the debtor's property directly; garnishment reaches property or debts held by a third party (e.g., wages held by an employer). Historical sources sometimes use the terms interchangeably or treat garnishment as a species of attachment. Modern practice has largely separated them, but the older fusion persists in pre-twentieth-century sources.
Prejudgment attachment vs. execution. Execution is a post-judgment remedy enforcing a judgment already entered. Prejudgment attachment is a pre-judgment protective measure. The distinction matters enormously procedurally — attachment triggers due process concerns about seizing property before liability is established.
Attachment of jeopardy vs. attachment of the right to counsel. These are unrelated doctrines that share vocabulary. Both use "attachment" to mean the point at which a constitutional protection engages, but they attach at different moments, under different amendments, for different purposes.
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Core Elements
For prejudgment attachment, most jurisdictions require the creditor to establish:
Probable cause or a prima facie claim. The plaintiff must demonstrate a valid underlying claim, not merely allege one.
Statutory grounds. Attachment is not available as of right; the plaintiff must show a recognized ground — typically that the defendant is a nonresident, is concealing or dissipating assets, or has committed fraud.
Bond or undertaking. The attaching party ordinarily must post security to compensate the defendant if the attachment proves wrongful.
Judicial authorization. Modern due process doctrine generally requires prior judicial approval, or at minimum a prompt post-seizure hearing, before deprivation of property can stand.
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Recognized Forms
/SUBTYPES
Original attachment. Process used to bring a nonresident or absent defendant before the court by seizing property in lieu of personal service.
Ancillary attachment. Issued in a case where the court already has personal jurisdiction, used to secure the defendant's assets pending judgment.
Attachment for contempt. Coercive process against a person who has defied a court order; quasi-criminal in character.
Foreign attachment. A common law and early American procedure allowing a creditor to reach a defendant's property held by a third party within the jurisdiction, even when the defendant was not personally before the court. The ancestor of modern garnishment.
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Why It Matters in Research
Attachment is a term that requires context before meaning. A researcher who encounters "attachment" in an 1850 treatise on civil practice is reading about a property seizure remedy with roots in English common law. The same word in a 1970 constitutional law article likely refers to jeopardy or the Sixth Amendment right to counsel — doctrines with no historical antecedent in the procedural attachment literature. Cross-context confusion is common and consequential.
Historical trap — due process evolution. Pre-twentieth-century prejudgment attachment was largely summary: a creditor could seize a defendant's property on an ex parte showing with minimal judicial oversight. That changed significantly after Sniadach v. Family Finance Corp. (1969) and Fuentes v. Shevin (1972), which imposed constitutional due process constraints on prejudgment seizures. Sources written before the early 1970s describe a fundamentally different procedural landscape. A historical source that describes attachment as readily available on a creditor's affidavit is not wrong for its time — but it does not describe current doctrine.
Historical trap — fusion with garnishment. Bouvier and many nineteenth-century authorities treat foreign attachment and garnishment as overlapping or nearly synonymous. Modern practice draws a clean line. Researchers tracing the development of either remedy must account for this historical conflation to avoid anachronistic readings.
Jurisdictional variation in availability. Attachment is a statutory remedy in all American jurisdictions, but the permissible grounds, notice requirements, and bond obligations vary substantially. A statement that "attachment requires X" drawn from one jurisdiction's cases or statutes may not generalize.
Criminal procedure uses are entirely doctrinal. The "attachment" of jeopardy or of the right to counsel does not appear in the historical procedural dictionaries at all — these are twentieth-century constitutional law constructs that borrowed the word for a specific technical purpose. A researcher using the historical dictionaries to understand those doctrines will find nothing relevant.
Corpus connections. The civil procedure attachment doctrine connects most directly to garnishment, execution, and the constitutional due process cases governing prejudgment remedies. The criminal law attachment concepts connect to speedy trial, double jeopardy, critical stage analysis, and the Sixth Amendment right to counsel — an entirely different doctrinal network.
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Historical Dictionary Support
The historical dictionaries converge on the core meaning — attachment as seizure of person or property by legal process — but with instructive variations in emphasis.
Burrill is the most analytically precise of the shelf sources. He distinguishes attachment against the person from attachment of property, treats the contempt-based attachment as quasi-criminal, and notes its issuance from courts of record. His structural separation of the term's applications is useful for researchers working with pre-modern sources.
Bouvier emphasizes the jurisdictional function of attachment — bringing before the court a person or property not otherwise subject to its process — and notes that attachment is "in its nature, but not strictly, a proceeding in rem." That qualification is jurisprudentially important: it signals that courts and commentators debated the in rem / in personam classification, a debate that bears on due process analysis in later cases.
Rapalje & Lawrence highlight the etymological link (Old French: attacher, "hold fast, apprehend") and note cleanly that the word describes both the proceeding and the writ — a point worth remembering when reading historical sources that may use "attachment" to mean the court order rather than the overall process.
Black's (2nd Ed.) provides the most expansive catalog of purposes: bringing a person before the court, acquiring jurisdiction over property, compelling appearance, furnishing security for debt. That enumeration is useful as a checklist when classifying older attachment proceedings.
What the historical dictionaries miss entirely: the constitutional law uses of "attachment" in double jeopardy and right-to-counsel doctrine. These concepts did not exist as discrete doctrines when the major historical dictionaries were compiled. Researchers should not expect to find them there.
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Jurisdictional Note
Prejudgment attachment is a creature of state statute, and the available grounds, procedural requirements, and constitutional constraints differ significantly across jurisdictions. Some states require an evidentiary hearing before issuance; others permit ex parte attachment on a creditor's affidavit with post-seizure review. Federal courts sitting in diversity apply the attachment law of the forum state under Rule 64 of the Federal Rules of Civil Procedure.
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Encyclopedia Cross-Reference
civpro_118: Attachment, Garnishment, and Prejudgment Remedies (The Law Mind Civil Procedure & Evidence Encyclopedia) — primary reference for civil property attachment doctrine, procedural requirements, and due process constraints.
criminal_170: Double Jeopardy — Attachment and Scope (The Law Mind Criminal Law Encyclopedia) — covers when jeopardy attaches and its consequences for retrial and overlapping charges.
criminal_174: Right to Counsel — Attachment and Critical Stages (The Law Mind Criminal Law Encyclopedia) — covers the Sixth Amendment attachment point and its application across pretrial proceedings.
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