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WRIT.LAW
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1993-12-26
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WRIT
A writ is a court-issued, written order requiring a sheriff,
officer of the law, or other designated person empowered by a
sovereign authority to direct someone to do or to stop doing a
specific act. A writ may be a summons issued in order to begin
legal action or in order to get someone to appear before a
magistrate or in court (see SUBPOENA). Through a writ a court
may demand that property be returned, that sentence passed be
delivered or enforced, that records be turned over to the
proper authorities for correction or examination, or even that
rights hitherto denied be restored. Writs, used as early as the
13th century in Britain by the Norman kings, are, within
limits, still part of the Anglo-American judicial process.
Three of the most important writs are writs of HABEAS CORPUS,
INJUNCTION, and MANDAMUS.
MANDAMUS {man-day'-mus}
Mandamus (Latin, "we command") is a WRIT issued by a court of
superior jurisdiction commanding a lower court, a public
official, a corporation, or a private person to perform a
certain act. The writ is used when the right to be protected
and the duty to be compelled are unambiguous. It can be used
only to compel a ministerial duty, that is, when the person to
whom it is directed has no discretion in the matter. For
example, a public official who is required under law to sign or
grant a particular document after payment of a fee may be
ordered by a writ of mandamus to sign or issue that paper if no
other remedy exists for the person who obtained the writ. The
writ of mandamus can be either peremptory or alternative. If it
is peremptory, the defendant is compelled to perform the
specific act; if it is alternative, the defendant can choose
either to appear in court to contest the issuance of the writ
or to comply with it immediately. Usually a court will issue an
alternative writ first.
INJUNCTION
An injunction is a court decree granted by a judge requiring a
person to act or cease to act in a specific way. Injunctions
are of two kinds: prohibitory and mandatory. Prohibitory
injunctions forbid certain acts or activities; mandatory
injunctions require that certain acts or activities be
undertaken. If an injunction is defied, a judge may cite the
offender for CONTEMPT.
Injunctions may be preliminary or permanent. A preliminary
(also temporary or interlocutory) injunction is awarded when a
court is convinced that such an injunction is necessary to
prevent irreparable damage to the party seeking it. This
injunction remains in force until the issue has been settled by
a court decision or until a specified, limited period of time
has elapsed. A temporary restraining order is a type of
preliminary injunction in which only the party seeking the
order is heard by a court. Such an injunction is limited in its
duration and is often replaced by a regular temporary
injunction as soon as both parties are present in court. A
permanent, or final, injunction is granted at the conclusion of
the lawsuit.
Injunctions are governed by the common-law principles of
EQUITY. These principles apply to situations in which legal
remedies are considered inadequate, as in labor-management
disputes and issues involving governmental regulation. Because
an injunction can be obtained quickly--as opposed to
litigation, which is time-consuming--it is an effective way to
enforce regulatory statutes. Injunctions were frequently used
against labor unions until the Federal Anti-Injunction Act
(Norris-LaGuardia Act) of 1932. The LABOR-MANAGEMENT RELATIONS
ACT (Taft-Hartley Act) of 1947 and the LABOR-MANAGEMENT
REPORTING AND DISCLOSURE ACT (Lendrum-Griffin Act) of 1959
provided for the use of injunctions under certain conditions.
HABEAS CORPUS {hayb'-ee-uhs kor'-puhs}
Habeas corpus (Latin, "you are to bring the body") is a WRIT
issued by a court, requiring a person in custody to be brought
before it. Although the writ is issued for various purposes, it
is usually issued in criminal cases in order to determine
whether a prisoner is lawfully being held by the police, and if
so, what the charges are.
Habeas corpus is also used in civil cases, such as those which
require the presence of a minor in court to determine rightful
custody. Habeas corpus has been traced to early medieval times.
The Magna Carta (1215) set forth vague notions of due process
of law, which were later interpreted, inaccurately, as
including habeas corpus. Habeas corpus developed from
principles of due process in English common law.
It first took on historical significance with the attempts to
use the writ to protect individuals imprisoned by the Privy
Council of King Henry VII (r. 1485-1509). In 1628 the Petition
of Right, an assertion of civil liberties sent by Parliament to
King Charles I (r. 1625-49), included habeas corpus as one of
its principles. The act that abolished (1641) the tyrannical
Star Chamber court also provided for the right of habeas
corpus. It was the Habeas Corpus Act of 1679, however, that
firmly established the legal power of the writ and the
procedures to enforce it. The American colonists viewed habeas
corpus as one of the most important protections of personal
freedom. It was specifically guaranteed in the U.S.
Constitution, Article I, Section 9: "The Privilege of the Writ
of Habeas Corpus shall not be suspended unless when in Cases of
Rebellion or Invasion the public Safety may require it."
In England, Parliament has the power to suspend the writ of
habeas corpus, an act that occurred in 1794 in reaction to the
Reign of Terror in France. The U.S. Constitution failed to
specify who may suspend habeas corpus, a cause of much
controversy during the Civil War when President Abraham Lincoln
suspended it. Chief Justice Roger B. TANEY challenged Lincoln
by ruling in Ex parte Merryman (1861) that Congress alone could
suspend habeas corpus and try disloyal persons in military
courts. In EX PARTE MILLIGAN (1866), the Supreme Court held
that neither Congress nor the president could order military
trials in an area not in rebellion and where the federal courts
were open.
In some situations individuals may appeal to federal courts for
a writ of habeas corpus on the ground that they have been
deprived of DUE PROCESS of law or some other constitutional
right. To reduce the number of repeated appeals of death
penalty cases (see CAPITAL PUNISHMENT), the Supreme Court has
reinterpreted earlier rules so that a second or subsequent
petition for such a writ must be denied unless the petitioner
can demonstrate "cause" for not having raised the issue before
and can show that actual prejudice has been suffered as a
result of the error (McClesky v. Zant, 1991).