Writs and Prerogative Writs In law, a writ is an official order given by a court that can apply to individuals or groups depending upon the decree of the court and the nature of the writ itself. In contemporary legal English, the word “writ” is most commonly used to refer to one or more of the prerogative writs. The prerogative writs, also called common law writs or extraordinary writs, are a group of seven writs originally ordered by the courts of England as rules governing lesser courts. Today, some of the prerogative writs are in use, while others are not. Some of the writs are also in use, under the same or different names, in other countries such as the United States and India.he writ of mandamus is an order that someone, usually a government official or lower court, do something that body is legally obliged to do. This writ may be issued if a lower court has not acted according to the law, but a writ of mandamus cannot be used to compel someone to do something he or she is not legally obliged to do. In Latin, mandamus means “we command”. Prohibition A writ of prohibition might be viewed as the opposite of the writ of mandamus. A writ of prohibition is a court order that commands a lower court to stop doing something it is doing. In order to be valid, a writ of prohibition must be applied to an action that the lower court (or other body receiving the writ, often an individual judge) is legally not allowed to do. In other words, the writ does not apply to things that the court is not legally prohibited from doing. ScireFacias Although it has been abolished in the United States, the writ of scirefacias, Latin for “to know the causes” is still of legal and historical relevance. Similar to the process of impeachment, the writ of scirefacias compels a lower court to provide the record of a given case and for the defendant in the case to defend against the record. In some U.S. states, this writ can still be used to bring stagnant cases into action. Procedeno and Quo Warranto The final two writs, the writ of procedeno and the writ of quo warranto, are now mostly obsolete, or are used very infrequently. The writ of procedeno compels a lower court to make a judgment on a case. The writ of quo warranto compels a party to prove that they are actually entitled to a right they claim to possess. Constitution Org A writ of quo warranto is not a petition, but a notice of demand, issued by a demandant, to a respondant claiming some delegated power, and filed with a court of competent jurisdiction, to hold a hearing within 3 to 20 days, depending on the distance of the respondant to the court, to present proof of his authority to execute his claimed powers. The real man or woman is the accuser of the statutory person, a strawman The real man or woman is the accuser of the statutory person, a strawman If the court finds the proof insufficient, or if the court fails to hold the hearing, the respondant must cease to exercise the power. If the power is to hold an office, he must vacate the office. The writ is unlike a petition or motion to show cause, because the burden of proof is on the respondant, not on the demandant. By itself, the writ does not seek the support of the court to order the respondant to cease the exercise or vacate the office. That would be an accompanying writ of prohibito or a writ of mandamus. All such writs contemplate enforcement by the people as militia, although that could include the sheriff or constable as commander of militia. The right involved is that of the respondant to present his evidence. These writs are called prerogative writs because they are supposed to be docketed ahead of all other cases except other prerogative writs. The demandant represents the sovereign, the people, and anyone may appear in that capacity, even without a personal stake in the decision. A writ of habeas corpus may be regarded as a subset of quo warranto, for cases where the claimed power is to hold a prisoner, but with the addition of a requirement to produce the prisoner in court, not just appear to present evidence of authority. The prerogative writ of quo warranto has been suppressed at the federal level in the United States, and deprecated at the state level, but remains a right under the Ninth Amendment, which was understood and presumed by the Founders, and which affords the only judicial remedy for violations of the Constitution by public officials and agents. Here are a few writings on the subject. Revival of the writs must be combined with reviving standing for private prosecution of public rights, subverted by the “cases and controversies” doctrine and the decision in Frothingham v. Mellon, 262 U.S. 447 (1923), which is discussed in an article by Steve Winter, The Metaphor of Standing and the Problem of Self-Governance. Although some of these writings are copyrighted, we are assured that all the chapters of all the ones still copyrighted have been attached to pleadings in various cases, and thus made part of the public record, thereby putting them into the public domain. A critical key to achieving federal constitutional compliance is to resurrect quo warranto and other common law writs. This involves reasserting and strengthening the original All-Writs Act and repealing or declaring unconstitutional legislation, such as the Tax Anti-Injunction Act, and those Rules of Judicial Procedure, that have restricted the jurisdiction of federal courts to accept these writs and grant a fair hearing (“oyer”) and a decision on the merits (“terminer”) on such demands. HTML Version The Practice of Extraordinary Remedies, Chester James Antieau, 1987, Chapter on Quo Warranto. HTML Version A Treatise on Extraordinary Legal Remedies, Embracing Mandamus, Quo Warranto and Prohibition, James L. High, 1896, Section on Quo Warranto. HTML Version A Treatise on the Legal Remedies of Mandamus and Prohibition, Habeas Corpus, Certiorari, and Quo Warranto, Horace g. Wood, 1896, Section on Quo Warranto.
Posted on: Sun, 21 Dec 2014 07:59:43 +0000
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