BREVE JUDICIALE - The Law Mind Legal Dictionary

BREVE JUDICIALEAuthored

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Definition

A breve judiciale (Latin: "judicial writ") is a writ issued during the course of an already-commenced legal action — as distinguished from an original writ, which initiated proceedings. In medieval and early common law practice, the writ system was the procedural skeleton of litigation. The original writ (breve originale) called a defendant into court and defined the cause of action; all subsequent writs issued by the court to advance, compel, or enforce that action were breva judicialia. The term thus describes a category of writ rather than a single, specific instrument.

Two Latin maxims attach to the concept and carry independent significance:

1. Breve judiciale debet sequi suum originale, et accessorium suum principale — "A judicial writ ought to follow its original, and an accessory its principal." This maxim of procedural dependency means the judicial writ could not exceed or contradict the scope of the original writ that gave rise to it. The action's boundaries were set at the outset.

2. Breve judiciale non cadit pro defectu formae — "A judicial writ fails not through defect of form." Once a suit was properly commenced, technical irregularities in a subsequent judicial writ were not necessarily fatal — a leniency not always extended to original writs, where strict form was critical.

Common Confusion

BREVE JUDICIALE is frequently encountered alongside BREVE ORIGINALE and BREVE NOMINATUM in historical sources, and the distinctions matter. A breve originale commenced the action; a breve judiciale followed from it. A breve nominatum was a writ that stated the specific circumstances or details of the cause — a descriptive subcategory rather than a stage-of-litigation classification. Researchers encountering "breve" alone in a historical text must determine from context which type is meant; early sources often use the bare term without qualification.

Why It Matters in Research

This is a term researchers will encounter almost exclusively in pre-modern English legal sources — treatises on the writ system, abridgments, and commentaries from the medieval period through the seventeenth century. By the nineteenth century, procedural reforms progressively displaced the writ system, and breve judiciale became a historical artifact rather than operative vocabulary.

Several research traps warrant attention:

First, the term appears as part of an interlocking taxonomy. Understanding breve judiciale requires knowing where it sits relative to original writs, mesne process writs, and final process writs. Sources that define one without the others leave the taxonomy incomplete.

Second, the maxim breve judiciale non cadit pro defectu formae has independent research value beyond the term itself. It was cited as a principle of procedural liberality toward in-process writs and appears in arguments about the effect of formal defects on ongoing litigation. A researcher tracking the history of procedural formalism should treat this maxim as a searchable unit.

Third, the first maxim — that a judicial writ follows its original — carries substantive implications for how courts understood the scope of remedies available once an action was underway. It surfaces in discussions of what a court could properly order mid-litigation and connects to broader questions about the limits of judicial authority in the writ-based system.

Fourth, the term's Latin form means researchers must be alert to variant spellings and abbreviations. Bracton's usage (fol. 413b) is an anchor point for the classical definition; later writers citing or paraphrasing Bracton may use slightly different formulations.

Historical Dictionary Support

Rapalje & Lawrence and Burrill agree on the core definition: a judicial writ is one issued after suit has commenced, in contrast to the original writ. Burrill adds precision by referencing Bracton (fol. 413b) and Crabb's History of English Law as authorities, and notes that the term breve appears in imperial and pontifical constitutions as early as the third century in the sense of a brief or summary written statement — a useful reminder that the word itself predates common law usage and carried documentary meaning in ecclesiastical and civilian traditions before it was absorbed into English procedural practice.

Both sources reproduce the two maxims, though neither analyzes them at length. Neither source addresses the post-medieval decline of the term or the procedural reform era that rendered it obsolete. Researchers using these dictionaries as sole guides should supplement with Crabb or Bracton directly for doctrinal depth, and should not assume the term carries living authority in any modern jurisdiction.

Jurisdictional Note

Breve judiciale is a term of English common law provenance. It has no operative significance in modern common law jurisdictions, which replaced the writ system with rules-based civil procedure. The term appears in American legal dictionaries principally for historical and comparative purposes.

BREVE JUDICIALEmain

Burrill's Law Dictionary • 1867

L. Lat. A judicial writ; a writ issued in judicio, after a suit was commenced.* Crabb's Hist. Eng. Law, 114. Bract. fol. 413 b. Any other writ than an original writ.* Breve, Judicial writ. See The term breve (Græco-barb. Boeßtov,) occurs in the imperial and pontifical constitutions as early as the third century, in the same sense which Bracton gives it, viz. a brief or summary statement in writing, (scrip tum quod summam rei continet.) Spelman. The breve of the English courts has been called a letter or epistle, because it commenced in the same way as the letters of the ancient Romans did :-Titius Aulo suo, Salutem; Titius to his friend Aulus, BREVE NOMINATUM. L. Lat. A Greeting:-Rex, justitiariis suis, &c., sawrit in which the circumstances of the lutem; The king to his justices, Greeting. case (time, place and demand,) were parOur own writs at the present day comticularly expressed, or named; as distinmence with the same epistolary phrase ;-guished from the breve innominatum, which "The People, &c., to the sheriff, &c., contained only a general complaint without Greeting." See Epistola, Litteræ. So a particulars. Gilb. C. Pleas, 3, and note. letter of attorney (literæ procuratoria) was called in English, as old as Bracton's dal law. A brief memorandum in writing, time, a "writ," (breve); and in law French, breve d' atturney. Bract. fol. 40. Litt. R. 143. The modern German brief has the same sense of letter, and this meaning seems to be of very high antiquity. Hickes' Thes. Diss. Epist. in notis, p. 3. Steph. Pl. Appendix, Note (2). See Writ. The great repository of the old English brevia is that ancient compilation termed Registrum Brevium, the Register of Writs, and usually referred to in the books as