Apr 07, 2013 11:17 PM

Shawn FolkesShawn Ofthefamily Folkes

Habeas Corpus by Shawn Ofthefamily Folkes

FYI:

The writ of habeas corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the English courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of non-authority. The official who is the respondent has the burden to prove his authority to do or not do something. Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof.

Also... Pay attention to these writs in particular:

A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. In practice, the Court directs the Clerk to issue the Writ, and directs the Sheriff to serve it on the subordinate, and the Clerk prepares the Writ and gives it to the Sheriff, who serves it. This writ is normally issued by a superior court to the lower court asking it not to proceed with a case which does not fall under its jurisdiction.These Writs are issued as "alternative" or "peremptory." An alternative Writ directs the recipient to immediately act, or desist, and "Show Cause" why the directive should not be made permanent. A peremptory Writ directs the recipient to immediately act, or desist, and "return" the Writ, with certification of its compliance, within a certain time.When an agency of an official body is the target of the Writ of Prohibition, the Writ is directed to the official body over which the court has direct jurisdiction, ordering the official body to cause the agency to desist.Although the rest of this article speaks to judicial processes, a writ of prohibition may be directed by any court of record (i.e., higher than a misdemeanor court) toward any official body, whether a court or a county, city or town government, that is within the court's jurisdiction.

Mandamus is a judicial remedy which is in the form of an order from a superior court to any government subordinate court, corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases of a statutory duty. It cannot be issued to compel an authority to do something against statutory provision. For example, it cannot be used to force a lower court to reject or authorize applications that have been made, but if the court refuses to rule one way or the other then a mandamus can be used to order the court to rule on the applications.Mandamus may be a command to do an administrative action or not to take a particular action, and it is supplemented by legal rights. In the American legal system it must be a judicially enforceable and legally protected right before one suffering a grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing.

Interesting terms one should also familiarize oneself with these as well:

aggrieve[ uh-greev ]verb (used with object) aggrieved, ag·griev·ing.1. to oppress or wrong grievously; injure by injustice.2. to afflict with pain, anxiety, etc.

Franchise[ fran-chahyz ]noun1. a privilege of a public nature conferred on an individual, group, or company by a government: a franchise to operate a bus system.2. the right or license granted by a company to an individual or group to market its products or services in a specific territory.3. a store, restaurant, or other business operating under such a license.4. the territory over which such a license extends.5. the right to vote: to guarantee the franchise of every citizen.6. a privilege arising from the grant of a sovereign or government, or from prescription, which presupposes a grant.7. a player of great talent or popular appeal, considered vitally important to a team's success or future.8. a legal immunity or exemption from a particular burden, exaction, or the like.9. freedom, especially from imprisonment, servitude, or moral restraint.

Printed copy · Anthology Volume 1, page 1161

Printed copy of this post — Printed copy from The Tender For Law Anthology, Volume 1, page 1161 (printed 14 June 2014). Added by this site; not part of the Facebook export.

Read Comments 13

Adam Thomas

Apr 08, 2013 12:20 AM

Interesting learning the words that I've heard before but I never knew what they meant. Good ol LATIN :D

Will Lawful Man

Apr 08, 2013 12:24 AM

Other writs, also named habeas corpus.

Habeas corpus ad deliberandum et recipiendum: a writ for bringing an accused from a different county into a court in the place where a crime had been committed for purposes of trial, or more literally to return holding the body for purposes of “deliberation and receipt” of a decision.

Habeas corpus ad faciendum et recipiendum (also called habeas corpus cum causa): a writ of a superior court to a custodian to return with the body being held by the order of a lower court "with reasons", for the purpose of “receiving” the decision of the superior court and of “doing” what it ordered.

Habeas corpus ad prosequendum: a writ ordering return with a prisoner for the purpose of “prosecuting” him before the court.

Habeas corpus ad respondendum: a writ ordering return to allow the prisoner to “answer” to new proceedings before the court.

Habeas corpus ad testificandum: a writ ordering return with the body of a prisoner for the purposes of “testifying".

Printed copy · Anthology Volume 1, page 1161 · cut by a page break

Printed copy of this comment — Printed copy from The Tender For Law Anthology, Volume 1, page 1161 (printed 14 June 2014). Added by this site; not part of the Facebook export. A page break in the printout cut off the beginning of this comment, with its name.

Shawn FolkesShawn Ofthefamily Folkes

Apr 08, 2013 12:04 PM

One more word To add to ones knowledge and personal vocab database:

"grant" legal definition

A transaction in which a grantor transfers a subset of his or her own rights in property; the rights so transferred.To transfer rights in real or personal property; in litigation, accession by the court to a party’s request made by motion or pleading.

Contract: " A contract is an agreement having a lawful object entered into voluntarily by two or more parties, each of whom intends to create one or more legal obligations between or among them. The elements of a contract are "offer" and "acceptance" by "competent persons" having legal capacity who exchange "consideration" to create "mutuality of obligation." Proof of some or all of these elements may be done in writing, though contracts may be made entirely orally or by conduct. The remedy for breach of contract can be "damages" in the form of compensation of money or specific performance enforced through an injunction. Both of these remedies award the party at loss the "benefit of the bargain" or expectation damages, which are greater than mere reliance damages, as in promissory estoppel. The parties may be natural persons or juristic persons. A contract is a legally enforceable promise or undertaking that something will or will not occur. The word promise can be used as a legal synonym for contract, although care is required as a promise may not have the full standing of a contract, as when it is an agreement without consideration."

I'm sure you all know this stuff...but...just in case... And refreshes are always good since there is so much to learn and know. I do know....words, how they are used, and the paper they are printed on? Powerful stuff...more deadly than any firearm

Printed copy · Anthology Volume 1, page 1162

James Allan

Apr 08, 2013 1:49 PM

Nice stuff Shawn, what is the source?

Printed copy · Anthology Volume 1, page 1163

Shawn FolkesShawn Ofthefamily Folkes

Apr 08, 2013 2:15 PM

I dug this up from....Geeze..all Over the place! That's one advantage of being a pre-internet University lit major ...i know how to research. I actually made notes about this here on Facebook awhile ago, so I just copied this from previous notes I had already made.... My dads an English professor so I've always been intrigued with the "meaning" of words...which often mean something different from what we think. Scott has certainly shown us this!

My fave "misunderstood" word... Is ANARCHY

Printed copy · Anthology Volume 1, page 1163

Cheryl Watson

Apr 08, 2013 5:21 PM

Quo warranto (Medieval Latin for "by what warrant?") is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power (or "franchise") they claim to hold. **On my to do list is getting a major rehaul of the CFSA and the abolishment of the NS Civil Forfeiture Act. the civil forfeiture act is the same process as for getting custody of your kids but only they take your money and get the judge to give custody of the money to the NS.Gov., I wanted to know under what authority this law got approved for use. I could go to court and prove the law is illegal or I could get the judge to order Quo warranto and let the administrator prove why it should stand. Is this a correct understanding of Quo warranto .

Printed copy · Anthology Volume 1, page 1163

Pete Daoust

Apr 08, 2013 5:23 PM

Oh...and don't forget that in the eyes of OUR public servant....."All civilians are probable criminals and should be treated that way." .....Its not ME who said it....its them.....

Printed copy · Anthology Volume 1, page 1163 · cut by a page break