![Writ 1702](https://upload.wikimedia.org/wikipedia/commons/a/aa/Writ_1702.jpg)
In
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
; in modern usage, this body is generally a
court
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...
.
Warrants,
prerogative writ
A prerogative writ is a historic term for a writ (official order) that directs the behavior of another arm of government, such as an agency, official, or other court. It was originally available only to the Crown under English law, and reflected ...
s,
subpoena
A subpoena (; also subpœna, supenna or subpena) or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of ...
s, and ''
certiorari
In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
'' are common types of writ, but many forms exist and have existed.
In its earliest form, a writ was simply a written order made by the English monarch to a specified person to undertake a specified action; for example, in the
feudal era a military summons by the king to one of his
tenants-in-chief
In medieval and early modern Europe, the term ''tenant-in-chief'' (or ''vassal-in-chief'') denoted a person who held his lands under various forms of feudal land tenure directly from the king or territorial prince to whom he did homage, as oppos ...
to appear dressed for battle with
retinue at a certain place and time. An early usage survives in the United Kingdom, Canada, and Australia in a
writ of election
A writ of election is a writ issued ordering the holding of an election. In Commonwealth countries writs are the usual mechanism by which general elections are called and are issued by the head of state or their representative. In the United ...
, which is a written order issued on behalf of the monarch (in Canada, by the
Governor General
Governor-general (plural ''governors-general''), or governor general (plural ''governors general''), is the title of an office-holder. In the context of governors-general and former British colonies, governors-general are appointed as viceroy t ...
and, in Australia, by the
Governor-General
Governor-general (plural ''governors-general''), or governor general (plural ''governors general''), is the title of an office-holder. In the context of governors-general and former British colonies, governors-general are appointed as viceroy t ...
for elections for the House of Representatives, or State Governors for state elections) to local officials (
High Sheriffs of every county in the United Kingdom) to hold a
general election
A general election is a political voting election where generally all or most members of a given political body are chosen. These are usually held for a nation, state, or territory's primary legislative body, and are different from by-elections ( ...
. Writs were used by the medieval English kings to summon people to
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
(then consisting primarily of the
House of Lords
The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
) whose advice was considered valuable or who were particularly influential, and who were thereby deemed to have been created "
barons by writ".
History
Origins
The writ was a unique development of the
Anglo-Saxon monarchy and consisted of a brief administrative order, authenticated (innovatively) by a
seal
Seal may refer to any of the following:
Common uses
* Pinniped, a diverse group of semi-aquatic marine mammals, many of which are commonly called seals, particularly:
** Earless seal, or "true seal"
** Fur seal
* Seal (emblem), a device to impr ...
.
[G. O. Sayles, ''The Medieval Foundations of England'' (London 1966) p. 174] Written in the
vernacular
A vernacular or vernacular language is in contrast with a "standard language". It refers to the language or dialect that is spoken by people that are inhabiting a particular country or region. The vernacular is typically the native language, n ...
, they generally made a
land grant
A land grant is a gift of real estate—land or its use privileges—made by a government or other authority as an incentive, means of enabling works, or as a reward for services to an individual, especially in return for military service. Grants ...
or conveyed instructions to a local court. In the beginning, writs were the documents issued by the King's Chancellor against a landowner whose
vassal
A vassal or liege subject is a person regarded as having a mutual obligation to a lord or monarch, in the context of the feudal system in medieval Europe. While the subordinate party is called a vassal, the dominant party is called a suzerain. W ...
complained to the King about an injustice, after a first summon by the sheriff to comply had been deemed fruitless.
William the Conqueror
William I; ang, WillelmI (Bates ''William the Conqueror'' p. 33– 9 September 1087), usually known as William the Conqueror and sometimes William the Bastard, was the first House of Normandy, Norman List of English monarchs#House of Norman ...
took over the system unchanged, but was to extend it in two ways: first, writs became mainly framed in Latin, not Anglo-Saxon; second, they covered an increasing range of royal commands and decisions. Writs of instruction continued to develop under his immediate successors, but it was not until
Henry II that writs became available for purchase by private individuals seeking justice, thus initiating a vast expansion in their role within the common law.
Writs could take two main forms: '
letters patent', which were open for all to read, and 'letters close' for one or more specified individuals alone.
Development
The development of writs as a means of commencing a court action was a form of "off-the-shelf" justice designed to enable the English law courts to rapidly process lawsuits by allocating each form of complaint into a standard category which could be dealt with by standard procedures. The complainant simply applied to the court for the writ most relevant to his complaint to be sent to the wrongdoer, which ordered him under royal authority to attend a royal court to answer for his actions. The development was part of the establishment of a
Court of Common Pleas
A court of common pleas is a common kind of court structure found in various common law jurisdictions. The form originated with the Court of Common Pleas at Westminster, which was created to permit individuals to press civil grievances against one ...
, for dealing with commonly made complaints by subjects of the crown, for example: "someone has damaged my property". The previous system of justice at the royal
court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness (or "inequity") of the Common law#History, common law. The Chancery had jurisdiction over ...
was tailor-made to suit each case and was thus highly time-consuming. Thus eventually the obtaining of a writ became necessary, in most cases, to have a case heard in one of the Royal Courts, such as the
King's Bench or
Common Pleas
A court of common pleas is a common kind of court structure found in various common law jurisdictions. The form originated with the Court of Common Pleas at Westminster, which was created to permit individuals to press civil grievances against one ...
. Some franchise courts, especially in the
Counties Palatine, had their own system of writs which often reflected or anticipated the common law writs. The writ was "served" on (delivered in person to) the wrongdoer and acted as a command that he should appear at a specified time and date before the court specified in the writ, or it might command some other act on the part of the recipient.
Where a
plaintiff
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...
wished to have a case heard by a local court, or by the justice of an
Eyre if one happened to be visiting the county, there would be no need to obtain a writ. Actions in local courts could usually be started by an informal complaint. However, if a plaintiff wished to avail himself of Royal — and by implication superior — justice in one of the King's courts, then he would need a writ, a command of the King, to enable him to do this. Initially, for common law, recourse to the King's courts was unusual, and something for which a plaintiff would have to pay. For most Royal Courts, the writ would usually have been purchased from the Chancery, although the court of the
Exchequer
In the civil service of the United Kingdom, His Majesty’s Exchequer, or just the Exchequer, is the accounting process of central government and the government's '' current account'' (i.e., money held from taxation and other government revenu ...
, being, in essence, another government department, was able to issue its own writs.
While originally writs were exceptional, or at least non-routine devices,
Maitland
Maitland is an English and Scottish surname. It arrived in Britain after the Norman conquest of 1066. There are two theories about its source. It is either a nickname reference to "bad temper/disposition" (Old French, ''Maltalent''; Anglo Norm ...
suggests that by the time of
King Henry II (1154–1189), the use of writs had become a regular part of the system of royal justice in England.
At first, new writs were drafted to fit each new situation, although in practice the clerks of the Chancery would use wording from previously issued writs, with suitable adjustments, often taken from reference books containing collections of forms of writ, much as in modern times lawyers frequently use fixed precedents or
boilerplate, rather than re-inventing the wording of a new legal document. The problem with this approach was that a plaintiff's rights and available forms of action at his disposal, would be defined, and in most cases limited, by the limited variety of writs available to him. Thus the power to create new writs was akin to the power to create new rights, a form of extra-parliamentary legislation. Moreover, a writ, if one could be found fitting the plaintiff's case, provided the legal means to remove the dispute from the jurisdiction of the local court, often controlled by a lesser
noble
A noble is a member of the nobility.
Noble may also refer to:
Places Antarctica
* Noble Glacier, King George Island
* Noble Nunatak, Marie Byrd Land
* Noble Peak, Wiencke Island
* Noble Rocks, Graham Land
Australia
* Noble Island, Gr ...
, and instead have it heard by the King's judges. The nobility thus saw the creation of new writs as an erosion of their influence.
Over time, opposition to the creation of new writs by the Chancery increased. For example, in 1256 a court was asked to quash a writ as "novel, unheard of, and against reason". Ultimately in 1258, the King was forced to accept the
Provisions of Oxford
The Provisions of Oxford were constitutional reforms developed during the Oxford Parliament of 1258 to resolve a dispute between King Henry III of England and his barons. The reforms were designed to ensure the king adhered to the rule of law and ...
, which among other things, prohibited the creation of new forms of writ without the sanction of the
King's council. New writs were created after that time only by the express sanction of Parliament and the forms of writ remained essentially static, each writ defining a particular
form of action
The forms of action were the different procedures by which a legal claim could be made during much of the history of the English common law. Depending on the court, a plaintiff would purchase a writ in Chancery (or file a bill) which would set in ...
. It was the role and expertise of a
solicitor
A solicitor is a legal practitioner who traditionally deals with most of the legal matters in some jurisdictions. A person must have legally-defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor and ...
to select on his client's behalf the appropriate writ for the proposed legal action. These were purchased from the court by payment of a fee. A
barrister
A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and ...
would then be hired by the solicitor to speak for his client in court.
Rationalisation of writs
With the abolition of the
Forms of Action
The forms of action were the different procedures by which a legal claim could be made during much of the history of the English common law. Depending on the court, a plaintiff would purchase a writ in Chancery (or file a bill) which would set in ...
in 1832 and 1833,a profusion of writs was no longer needed, and one uniform writ came into use. After 1852, the need to state the name of the form of action was also abolished. In 1875, the form of writ was altered so that it conformed more to the
subpoena
A subpoena (; also subpœna, supenna or subpena) or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of ...
used in the Chancery. A writ was a summons from the Crown, to the parties to the action, with on its back the substance of the action set out, together with a 'prayer' requesting a remedy from the court (for example damages). In 1980, the need for writs to be written in the name of the Crown was ended. From that time, a writ simply required the parties to appear.
Writs applied to claims that were to be heard in one of the courts which eventually formed part of the
High Court of Justice
The High Court of Justice in London, known properly as His Majesty's High Court of Justice in England, together with the Court of Appeal of England and Wales, Court of Appeal and the Crown Court, are the Courts of England and Wales, Senior Cou ...
. The procedure in a
county court
A county court is a court based in or with a jurisdiction covering one or more counties, which are administrative divisions (subnational entities) within a country, not to be confused with the medieval system of ''county courts'' held by the high ...
, which was established by statute, was to issue a 'summons'.
In 1999, the
Woolf Reforms
The Civil Procedure Rules (CPR) were introduced in 1997 as per the Civil Procedure Act 1997 by the Civil Procedure Rule Committee and are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civi ...
unified most of the procedure of the Supreme Court and the county courts in civil matters. These reforms brought in the
Civil Procedure Rules
The Civil Procedure Rules (CPR) were introduced in 1997 as per the Civil Procedure Act 1997 by the Civil Procedure Rule Committee and are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil ...
. Under these, almost all civil actions, other than those connected with insolvency, are now commenced by the completion of a 'Claim Form' as opposed to the obtaining of a 'Writ', 'Originating Application', or 'Summons' (see Rules 7 and 8 of the Civil Procedure Rules).
List
The following writs, amongst others, existed in England:
* ''Advocatione decimarum'' was a writ which lay for claiming the fourth part or more of
tithe
A tithe (; from Old English: ''teogoþa'' "tenth") is a one-tenth part of something, paid as a contribution to a religious organization or compulsory tax to government. Today, tithes are normally voluntary and paid in cash or cheques or more r ...
s which belong to the church: Reg of Writs, fol 29b. The writ was founded on section 4 of chapter 5 of the
Statute of Westminster 1285. It was obsolete by 1876.
* ''Arrestandis bonis ne dissipentur'' was a writ which lay for a man whose cattle or goods were taken by another, who was likely, during the controversy, to make away with them, and would hardly have been able to make satisfaction for them afterwards. Reg of Writs 126. Cowel. The writ lay to seize the cattle and goods in the hands of a party, and to hold them during the pendency of a suit, to prevent their being made away with. Reg Orig 126b. In 1816, Williams said the writ lay anciently. Also called ''bonis arrestandis''.
* ''Arrestando ipsum qui pecuniam recepit'' was a writ which anciently lay for the apprehension of him who had taken
prest money for the king's wars, and afterwards hid himself, when he should have been ready to go. Reg Orig 24. Cowel.
* ''Arresto facto super bonis mercatorum alienigenorum'' was a writ that lay for a denizen against the goods of aliens found in the kingdom, as a recompense for goods taken from him in a foreign country after a refusal to restore them. Reg Orig 129; Cowel. The writ was equivalent to
clarigatio.
* ''Attornato faciendo'', or ''de attornato faciendo'' or ''atturnato faciendo'' or ''attornato recipiendo'' or ''dedimus potestatem de attornato faciendo'' or ''Attornato faciendo vel recipiendo'', was a writ, commanding a sheriff or steward of a county court, or
hundred court
A hundred is an administrative division that is geographically part of a larger region. It was formerly used in England, Wales, some parts of the United States, Denmark, Southern Schleswig, Sweden, Finland, Norway, the Bishopric of Ösel–Wiek, C ...
to receive an attorney for the person taking out the writ, and to admit his appearance by him. Cowel. Sweet said it was the writ
dedimus potestatem In law, ''dedimus potestatem'' (Latin for "we have given the power") is a writ
In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern us ...
. In 1760, Wynne said that the writ ''de attornato faciendo'' was obsolete.
* ''Auxilium ad filium militem faciendum et filiam maritandam'',
[ or ''Auxilium ad filium primogenitum militem faciendum, vel ad filiam primogenitam maritandam'', was a writ directed to the sheriff of every county where the king or other lord had tenants, to levy of them reasonable ]aid
In international relations, aid (also known as international aid, overseas aid, foreign aid, economic aid or foreign assistance) is – from the perspective of governments – a voluntary transfer of resources from one country to another.
Ai ...
towards the knight
A knight is a person granted an honorary title of knighthood by a head of state (including the Pope) or representative for service to the monarch, the church or the country, especially in a military capacity. Knighthood finds origins in the Gr ...
ing of his son and the marriage of his eldest daughter. Cowel. No man was entitled to have this writ before his son had attained the age of fifteen years, or his daughter the age of seven years. FNB 82 A; Reg Orig 87; Glanvil, l 9, c 8;[Henry James Holthouse. A New Law Dictionary. 2nd Ed. London. Boston. 1850]
p 39
Statute of Westminster 1275
The Statute of Westminster of 1275 (3 Edw. I), also known as the Statute of Westminster I, codified the existing law in England, into 51 chapters. Only Chapter 5 (which mandates free elections) is still in force in the United Kingdom, whilst par ...
c 36. This writ was abolished by the Tenures Abolition Act 1660
The Tenures Abolition Act 1660 (12 Car 2 c 24), sometimes known as the Statute of Tenures, was an Act of the Parliament of England which changed the nature of several types of feudal land tenure in England. The long title of the Act was ''An act ...
(12 Car 2 c 24).
* ''Ayel'', or ''ayle'' or ''de avo''[ or ''aile'' or ''aiel'', was a writ which lay for an heir to recover the possession of lands of which a grandfather or grandmother was seized in ]fee simple
In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" is real property held without limit of time (i.e., perm ...
on the day of his or her death; and a stranger entered on that day and abated or dispossessed the heir of the inheritance. FNB 221D; 3 Bl Com 186. It was a possessory ancestral writ.[ 1 Rosc Real Act 127. It was abolished by section 36 of the Real Property Limitation Act 1833 (3 & 4 Will 4 c 27).][Henry C Adams. A Juridical Glossary. 1886. Weed, Parsons & Company. Albany, New York. Volume 1]
p 278
Ayle was one of a group of writs that consisted of ayle, besayle, tresayle and cosinage.
* ''Chartis reddendis'' was a writ which lay against him that has charter
A charter is the grant of authority or rights, stating that the granter formally recognizes the prerogative of the recipient to exercise the rights specified. It is implicit that the granter retains superiority (or sovereignty), and that the rec ...
s of feoffment
In the Middle Ages, especially under the European feudal system, feoffment or enfeoffment was the deed by which a person was given land in exchange for a pledge of service. This mechanism was later used to avoid restrictions on the passage of ti ...
delivered him to be kept, and refuses to deliver them. Old Nat Brev, fol 66. Reg Orig, fol 159. It was a writ of detinue of charters. It had fallen into disuse by 1816 and was obsolete by 1843.
Writ of election
In some Westminster systems, for example Canada and some other parliamentary systems
A parliamentary system, or parliamentarian democracy, is a system of democratic governance of a state (or subordinate entity) where the executive derives its democratic legitimacy from its ability to command the support ("confidence") of the ...
, the phrase 'dropping the writ
Dropping the writ is the informal term in Canada for a procedure in parliamentary countries, where the head of government (that is the prime minister, premier or chief minister, as the case may be) goes to the head of state and formally advises ...
' refers colloquially to a dissolution of parliament
The dissolution of a legislative assembly is the mandatory simultaneous resignation of all of its members, in anticipation that a successive legislative assembly will reconvene later with possibly different members. In a democracy, the new assemb ...
and the beginning of an election campaign
A political campaign is an organized effort which seeks to influence the decision making progress within a specific group. In democracies, political campaigns often refer to electoral campaigns, by which representatives are chosen or referend ...
to form a new one. This phrase derives from the fact that to hold an election in such a system a writ of election
A writ of election is a writ issued ordering the holding of an election. In Commonwealth countries writs are the usual mechanism by which general elections are called and are issued by the head of state or their representative. In the United ...
must be issued on behalf of the monarch ordering the High Sheriffs of each county to set in motion the procedure for elections.
United States law
Early law of the United States
The law of the United States comprises many levels of Codification (law), codified and uncodified forms of law, of which the most important is the nation's Constitution of the United States, Constitution, which prescribes the foundation of the ...
inherited the traditional English writ system, in the sense of a rigid set of forms of relief that the law court
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...
s were authorized to grant. The All Writs Act
The All Writs Act is a United States federal statute, codified at , which authorizes the United States federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles ...
authorizes United States federal courts
The federal judiciary of the United States is one of the three branches of the federal government of the United States organized under the Constitution of the United States, United States Constitution and Law of the United States, laws of the fed ...
to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." However, the Federal Rules of Civil Procedure, adopted in 1938 to govern civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what ki ...
in the United States district court
The United States district courts are the trial courts of the United States federal judiciary, U.S. federal judiciary. There is one district court for each United States federal judicial district, federal judicial district, which each cover o ...
s, provide that there is only one form of action in civil cases, and explicitly abolish certain writs by name. Relief formerly available by a writ is now normally available by a lawsuit
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...
(civil action) or a motion
In physics, motion is the phenomenon in which an object changes its position with respect to time. Motion is mathematically described in terms of displacement, distance, velocity, acceleration, speed and frame of reference to an observer and mea ...
in a pending civil action. Nonetheless, a few writs have escaped abolition and remain in current use in the U.S. federal courts:
* The writ of ''habeas corpus
''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
'', usually used to test the legality of a prisoner's detention, has expressly been preserved. It is explicitly mentioned in Article I, Section 9, Clause 2 of the Constitution of the United States
The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
. In the United States federal courts, the writ is most often used to review the constitutionality of criminal convictions rendered by state courts. The writ's application does not stop there: the Supreme Court has held the writ of ''habeas corpus'' open to all individuals held by the federal government, including Guantanamo Bay detainees. See ''Boumediene v. Bush
''Boumediene v. Bush'', 553 U.S. 723 (2008), was a writ of ''habeas corpus'' submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by ...
''.
* By statute, the Supreme Court of the United States
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
uses the writ of ''certiorari
In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
'' to review cases from the United States courts of appeals or from the state courts.
* In extraordinary circumstances, the United States court of appeals
United may refer to:
Places
* United, Pennsylvania, an unincorporated community
* United, West Virginia, an unincorporated community
Arts and entertainment Films
* ''United'' (2003 film), a Norwegian film
* ''United'' (2011 film), a BBC Two f ...
can use the common law writ of prohibition
Prohibition is the act or practice of forbidding something by law; more particularly the term refers to the banning of the manufacture, storage (whether in barrels or in bottles), transportation, sale, possession, and consumption of alcoholic ...
under the All Writs Act to control proceedings in the district courts.
* Some courts have held that in rare circumstances in a federal criminal case, a United States district court may use the common law writ of error ''coram nobis'' under the All Writs Act to set aside a conviction when no other remedy is available.
* In modern times, the All Writs Act is most commonly used as authority for federal courts to issue injunctions to protect their jurisdiction or effectuate their judgments.
The situation in the courts of the various U.S. state
In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its sove ...
s varies from state to state but is often similar to that in the federal courts. Some states continue to use writ procedures, such as ''quo warranto
In law, especially English and American common law, ''quo warranto'' (Medieval Latin for "by what warrant?") is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right, power, or ...
'', that have been abolished as a procedural matter in federal courts.
In an attempt to purge Latin from the language of the law, California law
The law of California consists of several levels, including Constitutional law, constitutional, Statutory law, statutory, and regulatory law, as well as case law. The California Codes form the general statutory law, and most state agency regulati ...
has for many years used the term 'writ of mandate' in place of ''writ of mandamus'', and ''writ of review'' in place of ''writ of certiorari''.
Prerogative writs
The "prerogative" writs are a subset of the class of writs, those that are to be heard ahead of any other cases on a court's docket except other such writs. The most common of the other such prerogative writs are ''habeas corpus'', ''quo warranto'', ''prohibito
A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. This writ is often issued by a superior court to the lower court directing it not to proceed with a case which does not fall under its jurisdicti ...
'', ''mandamus'', ''procedendo
In common-law jurisprudence, ''procedendo'' is one of the prerogative writs. It is a writ that sends a case from an appellate court to a lower court with an order to proceed to judgment.
{{quote, The writ of procedendo is merely an order from a ...
'', and ''certiorari''.
The due process for 'petitions for' such writs is not simply civil or criminal, because they incorporate the presumption of non-authority, so that the official who is the respondent has the burden to prove his authority to do or not do something, failing which the court has no discretion but to decide for the petitioner, who may be any person, not just an interested party. In this, they differ from a motion in a civil process in which the burden of proof is on the movant, and in which there can be a question of standing
Standing, also referred to as orthostasis, is a position in which the body is held in an ''erect'' ("orthostatic") position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the s ...
.
Other writs
* A ''writ of attachment'' permits the seizure of private property.
* A ''writ of audita querela'' inhibits the unconscionable use of a lawful judgment because of matters arising subsequent to the judgment.
* A ''writ of capias'' directs an officer to take into custody the person named in the writ or order.
* A ''writ of coram nobis'' corrects a previous error "of the most fundamental character" to "achieve justice" where "no other remedy" is available, e.g., when a judgment was rendered without full knowledge of the facts.
* A ''writ of elegit'' orders the seizure of a portion of a debtor's lands and all his goods (except work animals) towards satisfying a creditor, until the debt is paid off.
* A ''writ of error'' is issued by an appellate court
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of ...
, and directs a lower court of record to submit its record of the case laid for appeal.
* A ''writ of exigent'' (or ''exigend'') commands a sheriff to summon a defendant indicted for a felony, who had failed to appear in court, to deliver himself up upon pain of outlawry or forfeiture of his goods.
* A ''writ of fieri facias'' (colloquially "fi fa") commands a sheriff to take and auction off enough property from a losing party to pay the debt (plus interest and costs) owed by a judgment debtor.
* A ''writ of mittimus'' orders either (1) a court to send its record to another or (2) a jailor to receive the accused in his or her custody at any point during the investigative or trial process.
* A ''writ of ne exeat'' restrains a defendant from fleeing the country or jurisdiction.
* A ''writ of praemunire'' instructs a sheriff to order someone to appear in court to answer for any of a number of different crimes.
* A ''writ of scire facias'' revives a dormant judgment.
* A ''writ of supersedeas'' contains a command to stay the proceedings at law.
* A ''writ of venire facias'' summons jurors to appear in court.["Gloss...Terms", ''Shelby'' (op. cit.), s.v. "Venire facias".]
Indian law
Under the Indian legal system, jurisdiction to issue 'prerogative writ
A prerogative writ is a historic term for a writ (official order) that directs the behavior of another arm of government, such as an agency, official, or other court. It was originally available only to the Crown under English law, and reflected ...
s' is given to the Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
, and to the High Courts of Judicature of all Indian states
India is a federal union comprising 28 states and 8 union territories, with a total of 36 entities. The states and union territories are further subdivided into districts and smaller administrative divisions.
History
Pre-indepen ...
. Parts of the law relating to writs are set forth in the Constitution of India
The Constitution of India (IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental ri ...
. The Supreme Court, the highest in the country, may issue writs under Article 32 of the Constitution for enforcement of fundamental rights
Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustai ...
and under Article 139 for enforcement of rights other than fundamental rights, while High Courts, the superior courts of the States, may issue writs under Articles 226. The Constitution broadly provides for five kinds of "prerogative" writs: ''habeas corpus'', ''certiorari'', ''mandamus'', ''quo warranto'' and prohibition:
* The ''writ of prohibition
A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. This writ is often issued by a superior court to the lower court directing it not to proceed with a case which does not fall under its jurisdicti ...
'' (forbid) is issued by a higher court to a lower court prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. Thus, the higher court transfers the case to itself.
* The ''writ of habeas corpus
''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
'' (to have the body of) is issued to a detaining authority, ordering the detainer to produce the detained person in the issuing court, along with the cause of his or her detention. If the detention is found to be illegal, the court issues an order to set the person free.
* The ''writ of certiorari
In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
'' (be informed) is issued to a lower court directing that the record of a case be sent up for review, together with all supporting files, evidence, and documents, usually with the intention of overruling the judgment of the lower court. It is one of the mechanisms by which the fundamental rights
Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustai ...
of the citizens are upheld.
* The ''writ of mandamus
(; ) is a judicial remedy in the form of an order from a court to any government, subordinate court, corporation, or public authority, to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from ...
'' (command) is issued to a subordinate court, an officer of the government, or a corporation or other institution commanding the performance of certain acts or duties.
* The '' writ of quo warranto'' (by what authority; under what warrant) is issued against a person who claims or usurps a public office. Through this writ, the court inquires 'by what authority' the person supports his or her claim.
See also
* List of writs
Notes
Bibliography
*Maitland F. W. The Forms of Action at Common Law. Cambridge University Press 1962.
*Baker, J. H. An Introduction to English Legal History. Butterworths 1990.
*Milsom, S. F. C. Historical Foundations of the Common Law (second edition). Butterworths 1981.
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