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Encyclopedia > Prerogative writ

In English law, the prerogative writs are a class of writs originally available only to the Crown, but which were later made available to the king's subjects through the courts. The prerogative writs are a means by which the Crown, acting through its courts, effects control over inferior courts or public authorities throughout the kingdom. The writs are issued in the name of the Crown, who is the nominal plaintiff, on behalf of the applicant. English law is the law of England and Wales, rather than Scotland and Northern Ireland. ... In law, a writ is a formal written order issued by a government entity in the name of the sovereign power. ... The Crown is a term which is used to separate the government authority and property of the state in a kingdom from any personal influence and private assets held by the current Monarch. ... A plaintiff, also known as a claimant, or a complainant is the party who initiates a lawsuit (also known as an action) before a court. ...

The six prerogative writs are:

Certiorari is a legal term in Roman, English and American law referring to a type of writ seeking judicial review. ... In English Common Law habeas corpus is the name of several writs which may be issued by a judge ordering a prisoner to be brought before the court. ... A writ of mandamus or simply mandamus, which means we order in Latin, is the name of one of the prerogative writs and is a court order directing someone, most frequently a government official, to perform a specified act. ... A writ of prohibition, in the United States, is an official legal document drafted and issued by a supreme court or superior court to a judge presiding over a suit in an inferior court. ... In common law jurisprudence, procedendo is one of the prerogative writs. ... Quo warranto (Latin for by what warrant?) is one of the prerogative writs, the one that requires the person to whom it is directed to show what authority he has for exercising some right or power (or franchise) he claims to hold. ...

England and Wales

The prerogative writs other than habeas corpus are discretionary remedies, and have been known as prerogative orders in England and Wales since 1938. The writs of quo warranto and procedendo are now obsolete, and the orders of certiorari, mandamus and prohibition are under the new Civil Procedure Rules 1998 known as "quashing orders," "mandatory orders" and "prohibiting orders" respectively. In English Common Law habeas corpus is the name of several writs which may be issued by a judge ordering a prisoner to be brought before the court. ... 1938 (MCMXXXVIII) was a common year starting on Saturday (link will take you to calendar). ... 1998(MCMXCVIII) is a common year starting on Thursday of the Gregorian calendar, and was designated the International Year of the Ocean. ...

The writ of habeas corpus is still known by that name.

United States

In the United States federal court system, the issuance of writs is authorized by U.S. Code, Title 28, Section 1651. The language of the statute was left deliberately vague in order to allow the courts flexibility in determining what writs are necessary "in aid of their jurisdiction". Use of writs at the trial court level has been greatly curtailed by the adoption of the Federal Rules of Civil Procedure and its state court counterparts, which specify that there is "one form of action". The Federal Rules of Civil Procedure (FRCP) govern civil procedure in the United States district courts, or more simply, court procedures for civil suits. ... In the U.S., a state court has jurisdiction over disputes which occur in a state. ...

Nevertheless, the prudent litigator should familiarize himself with the availability of writs in the jurisdiction in which he or she is admitted to practice.

Quo warranto and procedendo are largely obsolete.

Habeas corpus still exists, of course, but its availability has been narrowed over the years at both federal and state levels.

The U.S. Supreme Court grants certiorari, while most state supreme courts grant review. The Supreme Court Building, Washington, D.C. The Supreme Court Building, Washington, D.C., (large image) The Supreme Court of the United States, located in Washington, D.C., is the highest court (see supreme court) in the United States; that is, it has ultimate judicial authority within the United States... In the United States, the state supreme court (known by other names in some states) is usually the highest state court in the state court system. ...

Mandamus has been replaced in the United States district courts and many state trial courts by injunction. In the federal system, it is generally available only to the federal courts of appeals, which issue writs of mandamus to lower courts and administrative hearing panels, while some state systems still allow trial courts to issue writs of mandamus or mandate directly to government officials. The United States district courts are the general trial courts of the United States federal court system. ... An injunction is an equitable remedy in the form of a court order that either prohibits or compels (enjoins or restrains) a party from continuing a particular activity. ...

Prohibition is also generally limited to appellate courts, who use it to prevent lower courts from exceeding their jurisdiction.

See also

  Results from FactBites:
Writ at AllExperts (1638 words)
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.
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).
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.
  More results at FactBites »



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