Definition
Latin and Law Latin. Literally, "original writ." The writ that commenced a civil action in the English common law courts, issued out of Chancery and directed to the sheriff of the county where the defendant resided, commanding him to summon the defendant to appear and answer the plaintiff's claim. The breve originale was the formal procedural trigger for litigation — without it, a suit could not properly begin. It stood in contrast to writs issued during the course of proceedings (judicial writs), which derived their authority from the court itself rather than from Chancery.
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Common Confusion
BREVE ORIGINALE vs. JUDICIAL WRIT: A breve originale issued from Chancery and gave the action its legal existence. A judicial writ (breve judiciale) issued from the court during proceedings already underway. The distinction matters in historical sources: references to "the writ" in early English law may mean either, and context is necessary to determine which. Researchers reading Bracton or the Statute of Marlborough should not assume that every writ reference is an original writ.
BREVE ORIGINALE vs. WRIT OF SUMMONS: In post-1832 English practice, the original writ system was gradually displaced and eventually abolished, replaced by simpler forms of process including the writ of summons. Later sources using "original writ" may refer to the surviving form of this process rather than the classical breve originale.
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Why It Matters in Research
The breve originale is a foundational concept for understanding the architecture of common law pleading before the nineteenth-century procedural reforms. Several navigational points are essential:
Historical source traps: Sources from before roughly 1850 assume the writ system as the backbone of civil procedure. Terms like "form of action," "commencing suit," and "original process" are all organized around the breve originale. Researchers working in early English law reports, Year Books, or treatises such as Bracton or Littleton will encounter this concept implicitly throughout, even when not named directly.
Obsolescence boundary: In England, the Common Law Procedure Acts of the mid-nineteenth century and ultimately the Judicature Acts of 1873–1875 dismantled the original writ system. American jurisdictions largely abolished the forms of action through code pleading reforms beginning with the New York Field Code of 1848. Dictionary entries written before these reforms treat the breve originale as live doctrine; entries written after treat it as history. Know which era your source is addressing.
Corpus connections: The breve originale connects directly to the forms of action — debt, detinue, covenant, trespass, case, and others — because the choice of original writ determined which form of action was in play and what the plaintiff could recover. Understanding breve originale is prerequisite to understanding why the forms of action had such rigidity.
Plural usage: Rapalje & Lawrence notes the plural brevia, which appears in compound phrases (brevia adversaria, brevia amicabilia, brevia anticipantia) that have distinct technical meanings. Researchers encountering brevia in context should not assume simple reference to the breve originale — the compound form may carry a specific specialized sense.
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Historical Dictionary Support
The four source dictionaries are in close agreement on the core definition. All identify the breve originale as the original writ giving commencement to a suit. Burrill provides the most useful gloss, adding the Latin phrase quod actioni originem præstat — "that which furnishes origin to the action" — and citing Bracton fol. 413b and Reeves' History of English Law as primary sources. Bouvier is characteristically spare; Black follows Burrill's language closely.
Rapalje & Lawrence is the most useful of the four for researchers because it situates breve originale within the broader family of brevia, enumerating related compound terms. This signals that the term should be understood not as an isolated concept but as the anchor of a structured vocabulary of writ law.
What the historical dictionaries collectively miss: none of them explains the procedural mechanism by which the breve originale operated within Chancery's formulary system, nor do they adequately flag the term's obsolescence for American researchers, for whom the original writ system had no continuing practical life after code pleading reforms took hold. A researcher relying solely on these entries risks treating a purely historical artifact as a working procedural concept.
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Jurisdictional Note
The breve originale was a creature of English common law and has no operative existence in any modern American jurisdiction. American courts following code or rules-based pleading (as all do today) replaced the original writ with complaint-based process. The term appears in American legal writing only in historical analysis or in courts interpreting colonial-era legal instruments.
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Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Forms of Action | Writs, Common Law | Common Law Pleading
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