{"id":6413,"date":"2017-11-03T15:23:45","date_gmt":"2017-11-03T15:23:45","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=6413"},"modified":"2017-11-03T15:56:54","modified_gmt":"2017-11-03T15:56:54","slug":"history-purpose-usage-of-writs","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=6413","title":{"rendered":"History, Purpose, & Usage of Writs"},"content":{"rendered":"

Definition of Writ<\/span>:<\/strong><\/span><\/p>\n

\u201c<\/strong>(bef. 12c.)<\/em> A court\u2019s written order, in the name of a state or other competent legal authority, commanding the addressee to do or refrain from doing some specified act.\u201d[1]<\/strong><\/span><\/p>\n

United States Law:<\/strong><\/span><\/p>\n

\u00a0 \u00a0 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. \u00a0The All Writs Act passed in 1789\u00a0<\/span>authorizes United States federal courts<\/a> to “issue all writs necessary or appropriate in aid of their respective jurisdictions & agreeable to the usages & principles of law”. \u00a0However, the Federal\u00a0<\/a><\/span>Rules of Civil Procedure<\/a>, adopted in 1938 to govern civil procedure in the United States district courts<\/a>, provide that there is only one form of action in civil cases, & explicitly abolished certain writs by name.<\/span><\/span><\/p>\n

All Writs Act:<\/strong><\/span><\/p>\n

U.S. Code Title 28\u00a0<\/span><\/strong>\u2014 JUDICIARY AND JUDICIAL PROCEDURE<\/span>
\n<\/span>PART V\u00a0<\/span><\/strong>\u2014 PROCEDURE<\/span>
\n<\/span>CHAPTER 111\u00a0<\/strong>\u2014 GENERAL PROVISIONS
\n\u00a7 1651. Writs<\/strong><\/span><\/p>\n

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.<\/span><\/strong><\/span><\/p>\n

(b) An alternative writ or rule nisi<\/span>\u00a0(“to show cause”) <\/em>may be issued by a justice or judge of a court which has jurisdiction.\u00a0<\/span><\/strong>[2]<\/span><\/p>\n

\u00a0 \u00a0 Excerpt from\u00a0W.S. Holdsworth’s\u00a0Sources and Literature of English Law<\/em><\/a>:<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u201c<\/span>Writs have a long history. We can trace their formal\u00a0<\/span><\/strong>origin to the Anglo-Saxon formulae by which the king used to\u00a0<\/strong>communicate his pleasure to persons & courts. \u00a0The Anglo-<\/strong>Norman writs, which we meet with after the Conquest<\/a>, are\u00a0<\/strong>substantially the Anglo-Saxon writs turned into Latin. \u00a0But what\u00a0<\/strong>is new is the much greater use made of them, owing to the\u00a0<\/strong><\/span>increase of royal power which came with the Conquest<\/a>.<\/span>\u201d[3]<\/span><\/strong><\/span><\/p>\n

Definition of Writ System<\/span>:<\/strong><\/span><\/p>\n

\u201c<\/strong>(1890) The common-law procedural system under which a plaintiff commences an action by obtaining the appropriate type of original writ.\u201d\u00a0<\/strong><\/span><\/p>\n

Definition of Process<\/span>:<\/strong><\/span><\/p>\n

“<\/strong>n.\u00a0<\/em>(14c.) 1. The proceedings in any action or prosecution<\/strong> <due process of law>. \u00a02. A summons<\/a> or writ<\/a>, especially to appear or respond in court<\/strong> <service of process>. \u00a0– Also termed\u00a0judicial process; legal process.<\/em>“<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Excerpt from Joseph Chitty’s\u00a0A Practical Treatise on the Criminal Law<\/a><\/em>:<\/strong><\/span><\/div>\n
\u00a0<\/span><\/div>\n
\u00a0 \u00a0 \u00a0\u201cProcess is so denominated because it proceeds<\/em> or issues forth in order to bring the defendant into court, to answer the charge preferred against him, and signifies the\u00a0writs<\/a> or judicial means by which he is brought to\u00a0answer<\/a>.<\/span>\u201d<\/strong>[4] \u00a0<\/strong><\/span><\/div>\n
\u00a0<\/strong><\/span><\/div>\n
\u00a0 \u00a0 Excerpt from C.J.S.’s\u00a0Process<\/a>:<\/strong><\/span><\/div>\n
\u00a0<\/span><\/div>\n
\u00a0 \u00a0 \u00a0\u201cThe term \u2018process\u2019 is not limited to \u2018summons<\/a>.\u2019 In its broadest sense it is equivalent to, or synonymous with, \u2018procedure,\u2019 or \u2018proceeding.\u2019 Sometimes the term is also broadly defined as the means whereby a court compels a compliance with its demands<\/em>.\u00a0<\/span><\/strong><\/span><\/div>\n
\u00a0<\/span><\/div>\n
\u00a0 \u00a0 \u2018Process\u2019 and \u2018writ<\/a>\u2019 or \u2018writs<\/a>\u2019 are synonymous, in the sense that every\u00a0writ<\/a> is a process, and in a narrow sense of the term \u2018process\u2019 is limited to judicial\u00a0writ<\/a>\u00a0in an action, or at least to\u00a0writs<\/a><\/strong><\/span>\u00a0or writings issued from or out of a court, under the seal thereof and returnable thereto; but it is not always necessary to construe the term so strictly as to limit\u00a0it to a writ issued by a court in the exercise of its ordinary Jurisdiction.<\/span>\u201d\u00a0[5]<\/strong><\/span><\/div>\n
<\/div>\n
\n
\n

History & Development:<\/strong><\/span><\/p>\n

\u00a0<\/strong> \u00a0 In its earliest form a writ was simply a written order made by the English monarch to a\u00a0specified person to undertake a specified action; for example, in the feudal era a military \u00a0summons by the king to one of his tenants-in-chief to appear dressed for battle with retinue at a\u00a0certain place & time.<\/span><\/p>\n<\/div>\n

\u00a0 \u00a0 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. \u00a0The complainant (person who files the complaint<\/a>)\u00a0<\/em>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.\u00a0 The development was part of the establishment of a Court of Common Pleas, for dealing with commonly made complaints by subjects of the crown, for example: “someone has damaged my property”.<\/span><\/p>\n

\u00a0 \u00a0 \u00a0The previous system of justice at the royal court of Chancery was tailor-made to suit each case & was thus highly time-consuming. \u00a0The writ was “served” on (delivered in person to) the wrongdoer & acted as a command that he should appear at a specified time & date before the court specified in the writ, or it might command some other act on the part of the recipient.<\/span><\/p>\n

\u00a0 \u00a0 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.\u00a0 However, if a plaintiff wished to avail himself of Royal\u2014 and by implication superior\u2014 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, & something for which a plaintiff would have to pay. \u00a0While originally writs were exceptional, or at least non-routine devices, Maitland 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.<\/span><\/p>\n

\u00a0 \u00a0 With the abolition of the Forms of Action<\/a> in 1832 and 1833, a profusion of writs was no longer needed, & one uniform writ came into use.\u00a0 After 1852 the need to state the name of the form of action was also abolished.\u00a0 In 1999 the Woolf Reforms unified most of the procedure of the Supreme Court & the County Court in civil matters.\u00a0 These reforms brought in the Civil Procedure Rules<\/a>.\u00a0 Under these almost all civil actions<\/a>, 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).<\/span><\/p>\n

\u00a0 \u00a0 Relief formerly available by a writ is now normally available by a lawsuit (civil action<\/a>) or a motion in a pending civil action. Nonetheless, a few writs have escaped abolition & remain in current use in the U.S. federal courts:<\/span><\/p>\n