In law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction. Law is a system of rules enforced through a set of Institutions used as an instrument to underpin civil obedience politics economics and society In Law, jurisdiction (from the Latin ius iuris meaning "law" and dicere meaning "to speak" is the practical Authority In modern usage, this public body is normally a court. A court is a forum used by a power base to adjudicate disputes and dispense civil, labour administrative and criminal Justice under its Warrants, prerogative writs, and subpoenas are types of writs, but there are many others. Most often the term warrant refers to a specific type of Authorization; a Writ issued by a competent officer usually a Judge or Magistrate Prerogative writs are a class of writs which originate from English law. A subpoena (səˈpiːnə is commonly defined as a written command to a person to Testify before a Court or be punished
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English law
History
In origin a writ was a letter, or command, from the King, or from some person exercising franchise jurisdiction. In Law, jurisdiction (from the Latin ius iuris meaning "law" and dicere meaning "to speak" is the practical Authority Early writs were usually written in Latin and royal writs were sealed with the Great Seal. The Great Seal of the Realm or Great Seal of the United Kingdom (prior to the Union the Great Seal of England, then Great Seal of Great Britain At a very early stage in the English common law, 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. The Queen's Bench (or during the reign of a male monarch the King's Bench) is the superior court in a number of jurisdictions within some of the Commonwealth realms The Court of Common Pleas, also known as the Common Bench, was a Common law court in the English legal system. Some franchise courts, especially in the Counties Palatine, had their own system of writs that often reflected or anticipated the common law writs. A county palatine is an area ruled by a Count palatine (or Earl palatine who may hold the higher title of Duke) with special authority and autonomy 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. A plaintiff ( Π in Legal shorthand) also known as a claimant or complainant, is the party who initiates a Lawsuit Actions in local courts could usually be started by an informal complaint, which may not necessarily need to be written down.
However if a plaintiff wished to avail themselves of Royal -- and by implication superior -- justice in one of the King's courts, then they would need a writ, a command of the King, to enable them 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. Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive
For 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. The Court of Chancery was one of the courts of equity in England and Wales. The Exchequer of Pleas or Exchequer was one of the three common-law courts of Medieval and Early Modern England and Wales.
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. Frederic William Maitland ( May 28, 1850 - December 19, 1906) was an English Jurist and Historian.
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 which 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. A plaintiff's rights (and by implication those of a defendant) would be defined by the writs available to them: the ability to create new writs was close to the ability to create new rights, a form of legislation.
There was increasing opposition to the creation of new writs by the Chancery. 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).
This resulted in the Provisions of Oxford 1258, which prohibited the creation of new forms of writ without the sanction of the King's council. The Provisions of Oxford were installed in 1258 by a group of barons led by Simon de Montfort 6th Earl of Leicester; these documents are often regarded as England's first written 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. The Forms of Action were the different procedures by which a legal claim could be made in the early history of the English common law.
With the abolition of the Forms of Action in 1832 and 1833, there no longer needed to be a variety of writs, and one uniform of writ came to be used. Year 1832 ( MDCCCXXXII) was a Leap year starting on Sunday (link will display the full calendar of the Gregorian Year 1833 ( MDCCCXXXIII) was a Common year starting on Tuesday (link will display the full calendar of the Gregorian Calendar (or a Common 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 subpoena (səˈpiːnə is commonly defined as a written command to a person to Testify before a Court or be punished A writ was a summons from the Crown, to the parties in the action, with on its back the substance of the action set out, together with a 'prayer', which requested 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 date 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. For the Cameroonian court by this name see High Court of Justice (Cameroon, for the Israeli court of this name see Supreme Court of Israel. The procedure in a County Court, which was a creature of statute, was to issue a 'summons'. England and Wales The County Court is the Workhorse of the civil justice system in England and Wales.
In 1999 the Woolf reforms unified most of the procedure of the Supreme Court and the County Court in civil matters. Most actions could be begun by the completion of a 'Claim Form'. The term 'writ' has now largely passed into disuse in English law.
Dropping the writ
In some Westminster, and some other parliamentary systems, the phrase 'dropping the writ' refers to the dissolution of government and the beginning of an election campaign to form a new House. The Westminster system is a democratic Parliamentary system of Government modelled after the British government (the Parliament of the United TalkParliament#Screen-size. -->A parliament is a Legislature, especially in those A political campaign is an organized effort which seeks to influence the decision making process within a specific group This phrase derives from the fact that in order to hold an election in a parliamentary system the government must issue a writ of election. A writ of election is a Writ issued by the Government ordering the holding of a special Election for a governmental Office.
United States law
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 law of the United States was originally largely derived from the Common law system of English law, which was in force at the time of the Revolutionary A court is a forum used by a power base to adjudicate disputes and dispense civil, labour administrative and criminal Justice under its The All Writs Act () 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. Title 28 ( Judiciary and Judicial Procedure) is the portion of the United States Code (federal statutory law that governs the federal judicial system The United States federal courts are the system of Courts organized under the Constitution and laws of the Federal government of the United States " 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. The Federal Rules of Civil Procedure (FRCP are rules governing Civil procedure in United States district (federal courts that is court procedures for Civil Year 1938 ( MCMXXXVIII) was a Common year starting on Saturday (link will display the full calendar of the Gregorian calendar. Civil procedure is the body of law that sets out the process that Courts will follow when hearing cases of a civil nature (a " Civil action " as opposed to The United States district courts are the general Trial courts of the United States federal court system. The Forms of Action were the different procedures by which a legal claim could be made in the early history of the English common law. Relief formerly available by a writ is now normally available by a lawsuit (civil action) or a motion in a pending civil action. In law a lawsuit is a civil action brought before a Court in which the party commencing the action the Plaintiff, seeks a legal or equitable remedy A legal motion is a procedural device in Law to bring a limited contested matter before a Court for decision 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. Habeas corpus (ˈheɪbiəs ˈkɔɹpəs ( Latin: command that you have the body is the name of a legal action or Writ, through which a person can seek relief In the United States federal courts, the writ is most often used to review the constitutionality of criminal convictions rendered by state courts. In the United States, a state court has Jurisdiction over disputes with some connection to a U
- 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. The Supreme Court of the United States is the highest judicial body in the United States and leads the federal judiciary. Certiorari (ˌsɚʃioʊ('rɛri 'rɑri is a legal term in Roman, English, Philippine and American law referring to a type of Writ
- 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. The United States courts of appeals (or circuit courts) are the intermediate appellate courts Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive A writ of prohibition is a Prerogative writ sought in a Court of appeal, usually requesting a ruling from the appellate court that a lower court be prohibited from
- 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 Law, a motion for a writ of coram nobis (or error coram nobis, from the Latin "in our presence" usually translated in context as
- The United States district courts normally follow state-court practice with respect to certain provisional remedies and procedures for enforcement of civil judgments, which may include writs of attachment and execution, among others. The purpose of a provisional remedy is the preservation of the Status quo until final disposition of a matter can occur In non-legal contexts a judgment is a balanced weighing up of evidence preparatory to making a decision Attachment is a legal process by which a Court of law at the request of a Creditor, designates specific property owned by the Debtor to be transferred A writ of execution is a common Court order granted by a Court in an attempt to satisfy a Judgment obtained by a Plaintiff.
Certain other writs are available in theory 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. An injunction is an Equitable remedy in the form of a Court order, whereby a party is required to do or interact with in certain ways all right or to refrain from
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. A US state is any one of the fifty subnational entities of the United States of America that share Sovereignty with the federal government Some states continue to use writ procedures, such as quo warranto, that have been abolished as a procedural matter in federal courts. Quo warranto ( Medieval Latin for "by what warrant?" is one of the Prerogative writs that requires the person to whom it is directed to show what
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. Latin ( lingua Latīna, laˈtiːna is an Italic language, historically spoken in Latium and Ancient Rome. California law consists of the Constitution of California (the State constitution) and California Statutes, comprising 29 codes. Early efforts to replace writ of habeas corpus with writ of have the body never caught on.
Other writs you may see:
- Writ of Bodily Attachment: A writ commanding law enforcement to physically bring in a person in contempt of court. Evidently, you cannot get out of this writ just by paying the fine, the court can hold you up to 48 hours to meet with the person issuing the writ directly.
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, 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 an issue of standing.
Indian law
Under Indian Legal System jurisdiction to issue 'prerogative writs' is given to Supreme Court and High Courts of Judicature of all Indian states. Law relating to the writ jurisdiction is provided in the Constitution of India. Supreme Court of India, which is the apex court in the country, can issue writ under Article 32 of the Constitution. While for High Courts, which are the apex court in any state, can issue writ under Article 226 and 227 of the Constitution of India. 'Writ' is eminently designed by the makers of the Constitution, and in the same way it is developed very widely and efficiently by the courts in India. Constitution of India broadly provides for five kinds of 'prerogative writs', namely, Habeas Corpus, Certiorari, Mandamus, Quo Warranto and Prohibition. Basic details of which are as follows:
- 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. A writ of prohibition is a Prerogative writ sought in a Court of appeal, usually requesting a ruling from the appellate court that a lower court be prohibited from In doing so, the higher court seeks a transfer of the case to itself
- The writ of habeas corpus means 'let us have the body'. It is a writ issued to a detaining authority to produce the detained person in court to know cause for detention. If the detention is found to be illegal, the court issues an order to set the person free.
- The writ of certiorari is one of the writs issued by the High Court or the Supreme court to protect the Fundamental rights of the citizens. India 's judicial system is made up of the Supreme Court of India at the apex of the hierarchy for the entire country and twenty-one High Courts at the The Supreme Court of India is the highest court of the land as established by Part V Chapter IV of the Constitution of India. The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties are sections of the Constitution of India that prescribe the fundamental It is issued to a lower court directing it that the record of a case be sent up for review with all the files, evidence and documents with an aim to overrule the judgement of the lower court.
- The writ of mandamus is an order of a court of law issued to a subordinate court or an officer of government or a corporation or any other institution commanding the performance of certain acts or duties. A writ of mandamus or simply mandamus, which means "we command" in Latin, is the name of one of the Prerogative writs in the Common
- The writ of quo warranto is issued against a person who claims or usurps a public office. Quo warranto ( Medieval Latin for "by what warrant?" is one of the Prerogative writs that requires the person to whom it is directed to show what Through this writ the court inquires 'by what authority' the person supports his or her claim.
References
- 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
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