Writ
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2008-06-21T20:35:19Z
Zanmusi
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I have made some minor changes to reflect the impact of the Civil Procedure Rules.
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In [[law]], a '''writ''' is a formal written order issued by a body with administrative or judicial [[jurisdiction]]. In modern usage, this public body is normally a [[court]]. [[Warrant (legal)|Warrants]], [[prerogative writ]]s, and [[subpoena]]s are types of writs, but there are many others.
==English law==
===History===<!-- This section is linked from [[Habeas corpus]] -->
In origin a writ was a letter, or command, from the King, or from some person exercising [[jurisdiction|franchise jurisdiction]]. Early writs were usually written in Latin and royal writs were sealed with the [[Great Seal of the Realm|Great Seal]]. 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 [[Court of Common Pleas (England)|Common Pleas]]. Some franchise courts, especially in the [[County Palatine|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 (disambiguation)|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 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.
For Royal Courts, the writ would usually have been purchased from the [[Court of Chancery|Chancery]], although the court of the [[Exchequer of Pleas|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, [[Frederic William Maitland|Maitland]] suggests that by the time of [[Henry II of England|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 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. 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]], there no longer needed to be a variety of writs, and one uniform of 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 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 of England and Wales|High Court of Justice]]. The procedure in a [[County Court]], which was a creature of 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 Rules all civil actions are now begun by the completion of a 'Claim Form' as opposed to a 'Writ': see Rules 7 and 8 of the Civil Procedure Rules. 'Writs' no longer exist in English civil procedure although the term is still encountered informally.
==Dropping the writ==
In some [[Westminster system|Westminster]], and some other [[parliament]]ary systems, the phrase 'dropping the writ' refers to the dissolution of government and the beginning of an [[election campaign]] to form a new House. This phrase derives from the fact that in order to hold an election in a parliamentary system the government must issue a '''[[election (writ)|writ of election]]'''.
==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 [[court]]s were authorized to grant. The [[All Writs Act]] ({{UnitedStatesCode|28|1651}}) 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 court]]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]] (civil action) or a [[motion (legal)|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. In the United States federal courts, the writ is most often used to review the constitutionality of criminal convictions rendered by [[state court]]s.
*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|common-law]] writ of '''[[prohibition (writ)|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-court practice with respect to certain [[provisional remedy|provisional remedies]] and procedures for enforcement of civil [[judgment]]s, which may include writs of '''[[attachment (law)|attachment]]''' and '''[[execution (civil procedure)|execution]]''', among others.
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 [[injunction]]s to protect their jurisdiction or effectuate their judgments.
The situation in the courts of the various [[U.S. state]]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]], 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''. 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. 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 Courts of India|High Court]] or the [[Supreme Court of India|Supreme court]] to protect the [[Fundamental Rights and Directive Principles of India|Fundamental rights]] of the citizens. 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.
* 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.
==References==
{{reflist}}
*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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