Writ

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In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs and subpoenas are common types of writs but there are many others.

English law[edit]

History[edit]

Originally, 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. Some franchise courts, especially in the Counties Palatine, had their own system of writs that often reflected or anticipated the common law writs. The writ would act as a command that the case be brought before the court issuing the writ, or it might command some other act on the part of the recipient.

Where a plaintiff wished to have a case heard by a local court, or by 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, which did not necessarily need to be written down. 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, 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 suggests that by the time of Henry II, the use of writs had become a regular part of the system of royal justice in England.

At first, new writs could be drafted to fit new situations, although in practice the clerks of the Chancery would re-use old forms, and there were many books that were 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 legal document each time they wish to create one. The problem with this approach was that the ability to create new writs amounted to the ability to create new forms of action. Plaintiffs' rights would be defined, and in most cases limited, by the writs available to them. Thus, the ability to create new writs was close to the ability to create new rights, a form of 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, 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" (Abbot of Lilleshall v Harcourt (1256) 96 SS xxix 44). Ultimately, in 1258, the King was forced to accept the Provisions of Oxford, which prohibited, among other things, the creation of new forms of writ without the sanction of the King's council. New writs were created after that time, but only by the express sanction of Parliament, and the forms of writ remained essentially static, each writ defining a particular form of action.

With the abolition of the Forms of Action in 1832 and 1833, a profusion of writs was no longer needed, and one uniform writ came to be used. 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 that had been in use 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 issued in one of the courts that eventually formed a part of the High Court of Justice. The procedure in a County Court, which was established by statute, was to issue a 'summons'.

In 1999 the Woolf Reforms unified most of the procedure of the Supreme Court and the County Court in civil matters. These reforms ushered in the Civil Procedure Rules. Under these almost all civil actions, other than those connected with insolvency, are now begun by the completion of a 'Claim Form' as opposed to a 'Writ', 'Originating Application', or 'Summons': see Rules 7 and 8 of the Civil Procedure Rules.

Dropping the writ[edit]

In some Westminster systems, for example Canada, and some other parliamentary systems, the phrase 'dropping the writ' refers to the dissolution of parliament and the beginning of an election campaign to form a new one. This phrase derives from the fact that to hold an election in such a system a writ of election must be issued.

United States law[edit]

Early law of the United States inherited the traditional English writ system, in the sense of a rigid set of forms of relief that the law courts were authorized to grant. The All Writs Act[1] authorizes United States federal courts 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 in the United States district courts, 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 (civil action) or a motion 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, usually used to test the legality of a prisoner's detention, has expressly been preserved. It is explicitly mentioned in the United States Constitution (Art. 1, § 9, cl. 2[2]). In the United States federal courts, the writ is most often used to review the constitutionality of criminal convictions rendered by state courts. The writs 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.
  • By statute, the Supreme Court of the United States uses the writ of certiorari to review cases from the United States courts of appeals or from the state courts.
  • In extraordinary circumstances, the United States court of appeals can use the common-law writ of prohibition 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.
  • The United States district courts normally follow state- in the United States federal courts but are almost never used in practice. 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. states 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, 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 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[edit]

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, mandamus, procedendo, and certiorari.

The due process for petitions for such writs is not simply civil or criminal, because they incorporate the presumption of nonauthority, 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.

Other writs[edit]

  • A writ of attachment permits the arrest of a person or 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[3]
  • 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, and directs a lower court of record to submit its record of the case laid for appeal.[4]
  • 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 (a/k/a "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.[5]
  • 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.[6]
  • A writ of venire facias summons jurors to appear in court.[7]

Indian law[edit]

Under the Indian legal system, jurisdiction to issue 'prerogative writs' is given to the Supreme Court, and to the High Courts of Judicature of all Indian states. Parts of the law relating to writs are set forth in the Constitution of India. The Supreme Court, the highest in the country, may issue writs under Article 32 of the Constitution for enforcement of Fundamental Rights and under Articles 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 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 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 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 judgement of the lower court. It is one of the mechanisms by which the fundamental rights of the citizens are upheld.
  • The writ of mandamus is issued to a subordinate court, an officer of government, or a corporation or other institution commanding the performance of certain acts or duties.
  • The writ of quo warranto 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.

Notes[edit]

Writ of habeas corpus is not only to ask a detainer to produce the detainee in the court. It can be used also if a person is missing and the police is not taking any action, such as when a person is suspected to be detained by an influential person. The law says producing the body of the person, meaning he should be produced whether dead or alive. In fact writ of habeas corpus has scope for wide application.

  1. ^ 28 U.S.C. § 1651
  2. ^ Article One of the United States Constitution
  3. ^ "Glossary of Terms", Shelby County Criminal Court Clerk, s.v. "capias", retrieved on 30 Jun 2009: [1].
  4. ^ "Writ and Petition History System in Texas" page 90 In Quarles, Brandon D. and Cordon, Matthew C. (2003) Legal Research for the Texas Practitioner  W.S. Hein, Buffalo, New York, ISBN 978-0-8377-3626-6
  5. ^ "Legal Terms", Armstrong Lawyers, retrieved on 11 June 2009
  6. ^ "Glossary of Terms", Colorado State Courts, retrieved on 19 June 2009: [2].
  7. ^ "Gloss...Terms", Shelby (op. cit.), s.v. "Venire facias".

Bibliography[edit]

  • 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. ISBN 0-406-53101-3
  • Milsom, S. F. C. Historical Foundations of the Common Law (second edition). Butterworths 1981. ISBN 0-406-62503-4