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CITE

    28 USC Sec. 1651                                            01/05/2009

EXPCITE

    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART V - PROCEDURE
    CHAPTER 111 - GENERAL PROVISIONS

HEAD

    Sec. 1651. Writs

STATUTE

      (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.
      (b) An alternative writ or rule nisi may be issued by a justice
    or judge of a court which has jurisdiction.

SOURCE

    (June 25, 1948, ch. 646, 62 Stat. 944; May 24, 1949, ch. 139, Sec.
    90, 63 Stat. 102.)

HISTORICAL AND REVISION NOTES

                                 1948 ACT
      Based on title 28, U.S.C., 1940 ed., Secs. 342, 376, 377 (Mar. 3,
    1911, ch. 231, Secs. 234, 261, 262, 36 Stat. 1156, 1162).
      Section consolidates sections 342, 376, and 377 of title 28,
    U.S.C., 1940 ed., with necessary changes in phraseology.
      Such section 342 provided:
      "The Supreme Court shall have power to issue writs of prohibition
    to the district courts, when proceeding as courts of admiralty and
    maritime jurisdiction; and writs of mandamus, in cases warranted by
    the principles and usages of law, to any courts appointed under the
    authority of the United States, or to persons holding office under
    the authority of the United States, where a State, or an
    ambassador, or other public minister, or a consul, or vice consul
    is a party."
      Such section 376 provided:
      "Writs of ne exeat may be granted by any justice of the Supreme
    Court, in cases where they might be granted by the Supreme Court;
    and by any district judge, in cases where they might be granted by
    the district court of which he is a judge. But no writ of ne exeat
    shall be granted unless a suit in equity is commenced, and
    satisfactory proof is made to the court or judge granting the same
    that the defendant designs quickly to depart from the United
    States."
      Such section 377 provided:
      "The Supreme Court and the district courts shall have power to
    issue writs of scire facias. The Supreme Court, the circuit courts
    of appeals, and the district courts shall have power to issue all
    writs not specifically provided for by statute, which may be
    necessary for the exercise of their respective jurisdictions, and
    agreeable to the usages and principles of law."
      The special provisions of section 342 of title 28, U.S.C., 1940
    ed., with reference to writs of prohibition and mandamus, admiralty
    courts and other courts and officers of the United States were
    omitted as unnecessary in view of the revised section.
      The revised section extends the power to issue writs in aid of
    jurisdiction, to all courts established by Act of Congress, thus
    making explicit the right to exercise powers implied from the
    creation of such courts.
      The provisions of section 376 of title 28, U.S.C., 1940 ed., with
    respect to the powers of a justice or judge in issuing writs of ne
    exeat were changed and made the basis of subsection (b) of the
    revised section but the conditions and limitations on the writ of
    ne exeat were omitted as merely confirmatory of well-settled
    principles of law.
      The provision in section 377 of title 28, U.S.C., 1940 ed.,
    authorizing issuance of writs of scire facias, was omitted in view
    of rule 81(b) of the Federal Rules of Civil Procedure abolishing
    such writ. The revised section is expressive of the construction
    recently placed upon such section by the Supreme Court in U.S.
    Alkali Export Assn. v. U.S., 65 S.Ct. 1120, 325 U.S. 196, 89 L.Ed.
    1554, and De Beers Consol. Mines v. U.S., 65 S.Ct. 1130, 325 U.S.
    212, 89 L.Ed. 1566.
                                 1949 ACT
      This section corrects a grammatical error in subsection (a) of
    section 1651 of title 28, U.S.C.
                                AMENDMENTS
      1949 - Subsec. (a). Act May 24, 1949, inserted "and" after
    "jurisdictions".
                               WRIT OF ERROR
      Act Jan. 31, 1928, ch. 14, Sec. 2, 45 Stat. 54, as amended Apr.
    26, 1928, ch. 440, 45 Stat. 466; June 25, 1948, ch. 646, Sec. 23,
    62 Stat. 990, provided that: "All Acts of Congress referring to
    writs of error shall be construed as amended to the extent
    necessary to substitute appeal for writ of error."
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